#### Gray's Executors *et al. versus*Whitney.

1. Every vendor of personal property impliedly warrants the title to the vendee, and is incompetent as a witness to establish the title of his vendee, except as made so by act of April 15th, 1869.

2. Gray leased to Martin, who covenanted that all improvements should belong to Gray; Martin put in a new boiler, and, with the consent of Gray, assigned the lease to Whitney, subject to its covenants. Gray having died, his executors, to the use-of his heirs, sued Whitney for rent accrued after Gray’s death. He pleaded, as set-off, that the plaintiffs had detained and converted thé boiler which he averred was his property. *Held,*that that the action being by executors, Martin was incompetent as witness to prove that he had put in the boiler under an agreement with Gray that he might sell it, and that Gray had so informed Whitney when ho received the assignment.

3. Although not a party to the record, Martin was not within the exception of the act of April 9th, 1870.

March 2d, 1876.

Before Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ. '

Error to the District Court of *Philadelphia,*of July Term, 1874, No. 85.

, This was an action of debt, commenced September 13th, 1873, by Edward Shippen and J. L. Hannan, executors, etc., *333of Robert E. Gray, deceased, and Robert G. White, trustee of Elizabeth White, to the use of Ervin Agnew, trustee under the will of Elizabeth White, deceased, and May Ann Gray, widow of George W. Gray, Sophie C. Garrett, Robert E. Gray, and Anna M. Gill, children.and heirs of George W. Gray, deceased.

The action was to recover one month’s rent under a lease from Robert E. Gray to Thomas Martin, which was assigned to the defendant. The lease was dated February 21-st, 1866, between Robert E. Gray, in his-own right, and as trustee for Elizabeth White and Thomas Martin.

It leased a brewery, on Sixth Street, near Chestnut Stréet, Philadelphia, known as “ Gray’s Brewery,” with all the machinery, etc., specified in the schedule annexed to the lease, to Martin, his heirs, executors, administrators, and assigns, for seven years from the 1st day of March, 1866, at the annual rent of $5000, payable monthly, in sums of $416.66; Martin to do the necessary improvements, including the machinery, at his own expense. Should he make any improvements they were to belong to Gray, and be surrendered at the end of the term. The premises not to be underlet except with the written consent of Gray. Amongst the items in the sehedul'e was, “ steam engine and boiler.”

On the 29th of November, 1867, Martin assigned the lease to the defendant, he covenanting in the assignment “ with T. J. Martin and R. E. Gray, lessor, separately, to assume and perform all the covenants in the said lease to be by T. J. Martin done and performed,” and Gray in the assignment expressly consenting to the assignment. The assignment was executed by Martin, defendant, and Gray. Gray died in 1870. The suit was for one month’s rent, due September 1st, 1873.

The defendant pleaded “ nil debet,” and also a special plea of set-off. The plea averred that the plaintiffs were indebted to the defendant in the sum of $2000, being the value of a steam boiler, the property of the defendant, and on the premises leased, and wrongfully detained from the defendant by the plaintiff, and converted to their own use; the defendant offered to set-off against plaintiffs’ demand so much of the $2000 -as might be necessary to satisfy the demand.

On the trial, April 24th, 1874, before Lynd, J., the plaintiff gave in evidence the lease and assignment above mentioned, and rested.

The defendant then offered to prove by Martin, the original lessee, and the assignor of the defendant, that the boiler mentioned in the plea of set-off was not part of the steam engine and boiler mentioned in the schedule, but was inde*334pendent of the same; that it was introduced by witness into the premises in 1866 for the purposes of his business as a brewer; that he sold and delivered it to defendant when he assigned the lease ; that plaintiffs prevented defendant from removing the boiler at the expiration of the term, and converted it to their use.

The plaintiffs objected to the offer.

The Court rejected it on the ground that it was irrelevant to the issues, and sealed a bill of exceptions.

Defendant then offered to prove, by the same witness, that he (the witness) introduced the boiler into the said brewery premises, at an expense of about $4000, with the consent of Robert E. Gray, the then landlord, and under an express agreement with said landlord that he, Martin, might sell it again or remove it at the expiration of the lease.

Also, that the defendant purchased the boiler from Martin when he took the assignment of the lease, with the full knowledge of Robert E. Gray, and after he had asked Robert E. Gray whether Martin had the right to sell it, and was assured that Martin had that right; and that Robert E. Gray told the defendant that if he bought the boiler from Martin he should have the right to sell it again, or remove it at the end of the term.

The plaintiffs objected to the offers'; they were rejected by the Court, and several bills of exception sealed.

The verdict was for the plaintiffs, for $482.90.

The defendant took a writ of error, and assigned for error the rejection of his several offers of evidence.

*W. S. Price*for plaintiff in error.

Set-off, as a ground of demand, is independent of the plaintiffs’ cause of action: Good *v.*Good, *9*Watts, 567.

As the case stood when the offer of proof was made, it was as though E. D. Whitney had brought an action of trover against R. G. White, trustee-for Elizabeth White, Mary II. Gray, Sophie C. Garrett, Robert E. Gray (not the lessor), and Anna M. Gill, for the value of his boiler. Those were all living parties.

Martin was a competent witness to prove, in such a controversy, that the boiler was not a part of the steam-engine or boiler mentioned in the schedule, and .that he had placed it in the brewery premises in the year 1866, for the purposes of his trade and business as a brewer. The offer was pertinent, for a tenant who erects fixtures for the benefit of his trade or business may remove them from the demised premises within his term: Hey *v.*Bruner, 11 P. F. Smith, *33587. This offer stood independent of any contract in relation to the boiler, and also of the other offers of proof made afterwards.

The court below ruled that Martin was not a competent witness by the act of April 15th, 1869, sect. 1 (Pamph. L., 30), 1 Br. Purd., 624, pl. 16. The exception under which Martin was supposed to fall, is that the act shall not apply' where the assignor of the thing or contract in action may be dead. But it had not appeared that Martin was the assignor of the thing in action in this ease, the boiler; and he was alive, and therefore not within the letter of the law. Was he within the .meaning of the law, as interpreted by this Court in Karns *v.*Tanner, 16 P. F. Smith, 297? In that case, the assignee of the lease stood in the shoes of the original lessee, and the lease was the thing or contract in action. In the case in hand, and under the first offer of proof, there was no contract and no party other than Martin to the transaction. It was his individual act that was to be proved. He was only offered to prove that the boiler in question was not the same that is mentioned in the lease, but one which he placed on the premises while he was a tenant, for the purposes of his trade and business as a brewer there.

It was supposed in the Court below that the second offer wa,s within the other exception in the act of 1869, that the act shall not apply to actions by or against executors, administrators or guardians. But the action when the offer was made was not the action for rent, but that contained in the special plea of set-off, which was neither by or against an executor, administrator or guardian. The agreement between Robert E. Gray and the witness, as offered to be proved, was not a “ contract in action in ” this case. The executors of Robert E. Gray have no real interest in this suit, and are not the real actors, but their names are used by the heirs at law of George W. Gray, who was a son of Robert E. Gray. Hpon the decease of Robert E. Gray, the right to a moiety of the rent followed the ownership of the real estate out of which it was reserved; and by the time that for the month of August, 1873, fell due, a moiety of it was found to belong to the heirs at law of George W. Gray, deceased, who was a son of the lessor, and they, in order to recover, used the names of the executors of the lessor, because the rent was reserved payable to “ the said lessor, his heirs, executors, administrators and assigns.” Is such a suit to be considered as brought by executors, within the true-intent and meaning of the act of 1869 ? The act of 1869 is an enabling statute, and must not be so applied as to per*336vert its spirit and meaning: McFerren *v.*Mont Alto Iron Co., 26 P. F. Smith, 181.

As to the matters in the third offer: Martin, the witness, was not a party to this transaction between Whitney and the lessor, but stood, in the light of a bystander called to prove a conversation and statements which were had and made in his presence.

*G. Junkin,*for defendants in error.

Judgment was entered in the Supreme Court, March 13th, 1876.

Per Curiam:

Every vendor of personal property impliedly warrants the title to the vendee. There can be no doubt, therefore, that Thomas J. Martin was an interested witness, and incompetent until he was made competent by the act of April 15th, 1869 (Pamph. L., 30). But that act expressly declares that it shall not apply to actions by or against executors. The witness was offered to prove a verbal contract with the testator in his lifetime, and therefore it cannot be pretended that he was within the exception of the act of 9th April, 1870 (Pamph. L., 45), though that act in words is confined to the case of a party to the record, which the witness in this case was not.

We think, therefore, that he was properly rejected.

Judgment affirmed.