5 Whart. 446 | Pa. | 1840
The opinion of the Court was delivered by
When this case was formerly reviewed, (3 Wharton, 419,), it was ruled that the defendants were estopped from averring that this was a joint contract, in consequence of a former proceeding and judgment before a justice of the peace. A suit had been brought in the name of Kelly alone; and on the defence that the contract was made with Kelly and Boyle, the justice gave judgment for the defendants. If the plaintiff was aggrieved, his remedy was by appeal; but instead of resorting to this obvious course, he acquiesced in the correctness of the decision, and resorted to the present suit. After this, he is estopped from alleging that the contract was with Kelly alone, for it is not competent for him by proof aliunde, and especially by the oath of one of the parties, to show, contrary to the record, that it wás not a joint contract. Is then Boyle, who is put on the record by Kelly, competent without a release, to prove the indebtedness of the defendants'? We are of the opinion, that he is not competent for that purpose; for although it has been decided that on a common assignment in this state, there is no warranty of the solvency of the debtor, yet there is an implied warranty that the debt is due. A judgment for the defendants would subject Boyle to a suit by Kelly, on the assignment; and consequently he has such
Judgment reversed, and a venire de novo awarded.
