Mason, &c., vs. Mason, &c. It is past all comprehension that his father did not know he was present at the time he testifies of; not only so, but this boy has since grown up, studied law, and was one of appellants' attorneys in the original suit, and must himself have known what he could testify to, and its importance before the original trial, thereby exhibiting double laches, in both client and attorney. To open a case on such a flimsy pretext as this, would be to make. endless litigation, and jeopardize the rights of the successful party. If the father was too careless or too delicate to inquire of the son, and the son was in the same condition as to his clients, the law requires that they should so remain; having not spoken at the right time, they cannot now be heard. This is the only additional evidence offered of what occurred at the time of the valuation of the land, and entering into the contract between appellants and Todd and wife, and Jno. Mason, deceased. Another class of evidence is offered of what Jno. Mason said before and after the contract, and after the making the deeds, in the absence of all the parties, especially of Wm. Mason and Todd and wife. It is evident that the rights of the parties under the contract, whatever that was, must be fixed at the time the contract was made; for, whatever may have been the inclination of Jno. Mason's mind previously to the meeting of his children, it was subject to alteration and modification; at least his intentions and desires, as previously expressed, did not make a contract; therefore, they are not competent to show what the contract was when made. Representations of a party as to the soundness and condition of his property to one who may subsequently purchase, are competent, because it may be presumed these were repeated or relied on by the vendee; Mason, &c., vs. Mason, &c. but the vendor's statement of his intentions or desires will not be evidence of what a subsequent contract was, when made in the absence of all the contracting parties. When the contract was made and consummated, and Jno. Mason conveyed the land, he ceased to have any interest in it, and the rights of appellants and appellees became fixed and vested, in no manner subject to Jno. Mason's subsequent control, or will, or desires; therefore, his subsequent statements would, at best, be but hearsay, and for that reason incompetent. It is insisted, that, as he conveyed by general warranty, he would be incompetent to testify for appellants, if alive, as he would then be called to uphold his warranty. Had these statements of his now offered been under oath, without a release, there might be much force in the objection; but as they were, at best, but conversations with others than the parties, and in their absence, we think it clear that they are not competent. But it is also seriously insisted, that the appellants have now proved that Wm. Mason accepted eight hundred and fifty dollars from appellants before the original suit, in discharge of his father's estate. Although this is not specifically averred as being received in discharge of appellants, because of their getting said land, yet, as they set up that Wm. Mason and Todd and wife were to be made equal by John Mason out of his other estate, perhaps it should be regarded as a full denial of William Mason's right of recovery; but its great infirmity is, that it was not set up or relied on in the original defense. The reason assigned is, that they then knew of no one by whom they could prove it; but they could at least have set it up, and searched his conscience, and having done so, had he denied it under oath, and had they subsequently discovered evidence by which they could establish it, and Mason, &c., vs. Mason, &c. thus successfully establish his fraud and falsehood, there would have been much in this specification; but when it was not even presented as a defense, we see but little force in it now; besides, our Civil Code is explicit, that all defenses known must be presented, and no subsequent modification of a judgment shall be made for a pre-existing cause of defense. It is also insisted, that now they have proved that Wm. Mason said that the original suit was without his consent or authority. This cause was set up in the original defense to his petition, and evidenced by his two letters written to one of appellants; yet his pleadings were sworn to by himself, and he manifested an interest in prosecuting the suit; denied the charge that it was began and prosecuted without his authority, under oath, and averred that the suit was begun, and was being prosecuted, by his approbation, to establish his rights, and for his benefit; and these were doubtless considered by the court as of more importance than his verbal statements, in perhaps idle or drunken conversations, especially as he has manifested his right of recovery of more than five thousand dollars. It is also insisted, that C. M. Todd, the minor appellee, was not properly before the court-the summons not being executed on him as the law requires. His rights were protected by the appointment of a guardian ad litem, who prosecuted with vigilance his cause, and obtained a judgment in his behalf. The law will not hand him over to the tender mercies of his adversaries, to see that all the orders were strictly regular as to him, and if not, permit them to escape responsibility to him as fixed by the judgment. However forcible such objection might come from him, it has none when presented by his adversary: first, because if it only applies to the last suit, the Mason, &c., vs. Mason, &c. error was their own; if to the first suit, it is too late, after said judgment has been affirmed by this court. By section 53, Civil Code, an infant may sue by his guardian or next friend. If it was technically erroneous to permit a cross-suit by an infant, by his guardian ad litem, which is by no means certain, after issue and judgment in his behalf, it is too late to object. Nor does the suspension of the execution, until statutory guardian is appointed, injure defendant, as he could pay the money in court. Certainly the expense and harassment of an execution could be of no benefit to him. As these appellants substantially got, by their amended petitions, the benefit of the causes assigned in their original petition for a review, there would be no substantial reversible error in sustaining a demurrer to it, even if it was demonstrated that it was erroneously sustained, which it is not. Wherefore, the judgment is affirmed with damages, there being a supersedeas. Perrit vs. Crouch and The Commonwealth. CASE 28-PETITION ORDINARY-JUNE 3. Perrit vs. Crouch and The Commonwealth. APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1. In a qui tam action by the Commonwealth and C. against P., under section 4, chapter 42, Revised Statutes (1 Stanton, 563), for treble the value of six hundred dollars in United States Treasury notes, alleged to have been unlawfully lost by C., jr., by gambling on a faro bank kept by P., a judgment for eighteen hundred dollars in money is held to be erroneous, and is reversed. As the court judicially knows that the treasury notes lost were not equivalent to money, the judg-. ment should have been for the amount only of the treble value of the treasury notes so lost. 2. The act of March 2, 1860 (Myers' Sup., 434), provides, "that all laws now in force that gives to the prosecutor or informer, other than the Commonwealth's Attorney, in any action for the recovery of money lost at gaming, any portion of the forfeiture, any part of a penalty for gaming consequent upon conviction, be, and the same are hereby, repealed; and that hereafter all moneys so forfeited, after payment of the necessary cost of prosecution, that went to the informer or prosecutor, other than the Commonwealth's Attorney, be, and the same are hereby, appropriated to the use and benefit of the Common School Fund of this Commonwealth." The unskillful and incongruous phraseology of the foregoing enactment is construed, that it did not repeal or modify section 4, chapter 42, Revised Statutes (1 Stant., 563), to-wit: "Section IV. If such loser or his creditor do not sue for the money or thing lost within six months after its payment or delivery, and prosecute the suit to recovery with due diligence, any other person may sue the winner and recover treble the amount or value of the money or thing lost, if suit be so brought within five years from the delivery or payment. One half of what is so recovered shall be for the person suing, and the other half for the Commonwealth." * 3. The Act of March 2, 1860, above, applies to public prosecutions or proceedings provided for in chapter 42 of the Revised Statutes, and does not affect a suit under section 4, of said chapter. |