#### Ballentine *v.*Ballentine.

On the trial of a scire facias sur mortgage, the plaintiff offered in evidence, as res judicata, the record of an equity suit, instituted after the scire facias proceedings were begun, by the terre-tenant against the mortgagor and mortgagee, wherein the bill charged the defendants with fraud in the execution of the mortgage, being the same fraud alleged in the affidavit of defence to the scire facias proceeding. The record showed that the bill was dismissed “without prejudice to his right to set up the matter and things therein alleged as a defence to the scire facias upon the mortgage.” Held, that the fraud alleged in defence to the scire facias was not res judicata, and that the offer should be over-ruled.

In the above case, plaintiff proposed to prove, by his own testimony, that, during the hearing of the bill in equity, he was called, for cross-examination, and fully examined, the hearing having taken place when the terre-tenant was alive, it there appearing that the consideration of the mortgage in suit was the payment to a bank of a sum of money on account of a mortgage it held against defendant mortgagor, and that the plaintiff had not paid and taken an assignment of the mortgage of the bank until March 27,1877, although the mortgage in suit was dated July 7, 1876; to be followed by evidence showing that he had assumed the payment of the bank’s mortgage at the date of the execution of the mortgage in suit, and had paid the interest on the bank’s mortgage in September, 1876. This evidence was objected to, on the ground that the witness was incompetent to give testimony as to matters occurring prior to the death of the defendant terre-tenant, which had occurred since the decree in the equity suit. Held, that it was not error to sustain the objection.

Such evidence is not rendered admissible by an agreement of counsel that, “ whereas the terre tenant may desire to read in evidence the notes and exhibits taken by the master in the equity proceeding, it is agreed that, if otherwise competent and relevant, the said notes and exhibits may be read in evidence, if desired, without calling the master or other witnesses to prove them.”

Oct. 18, 1888.

Error, No. 195, Oct. T., 1888, to C. P. Washington Co., to review a judgment for defendant on a scire facias sur mortgage, by James W. Ballentine against N. Ballentine, mortgagor, and B. L. Fahnestock, terre-tenant, at Jan. T., 1880, No. 125. Green, J., absent.

An affidavit of claim was filed with a copy of the mortgage. An affidavit of defence, filed by defendant terre-tenant, averred that, at the time the mortgage was executed by Nathanial Ballentine to James W. Ballentine, his son, Nathaniel, was indebted to the affiant in the sum of $5,800, a part of which remained unpaid, and to other persons in large sums; and that the giving of this mortgage by Nathaniel Ballentine was with intent to defraud the affiant and other creditors, and that the said J. W. Ballentine had knowledge of the entire transaction, and was chargeable with notice of the fraud. Subsequently, the terre-tenant pleaded payment and payment with leave.

The following agreement as to testimony was filed Nov. 22, 1887: “Whereas the terre-tenant may desire to read in evidence the notes of meetings, testimony and exhibits taken by Mr. D. F. Patterson, the examiner, and filed by him with his report as master in the case of Fahnestock *v.*Ballentine, No. 362 in equity, it is now agreed that if otherwise competent and relevant, the said notes and *334exhibits may be read in evidence, if desired, without calling Mr. Patterson or other witnesses to prove them.”

April 14, 1888, the death of B. L. Fahnestock terre-tenant, was suggested, and B. S. Fahnestock, executor, was substituted.

On the trial, Sept. 13, x888, the plaintiff offered in evidence the paper, pleadings, record and master’s report and decree of the court in the case of B. L. Fahnestock, plaintiff, versus J. W. Ballentine and N. Ballentine, at No. 362 in equity, showing that the very fraud that it is now alleged in this case, and alleged in the bill and pleadings, was passed upon and determined by this court sitting on the chancery side, and a decree of dismissal of the bill, and that the matter is res judicata.

Objected to upon the ground that the record shows that there was no determination of this proceeding upon the merits, but the decree expressly provides that the dismissal of the plaintiff’s bill in that proceeding shall be without prejudice to his right to make the defence which he has attempted to make in this case to-day, as appears by the opinion and decree of his Honor Judge Hart on file in this case.

The Court: “Since the adjournment of court last night, we have examined carefully the record and papers offered in evidence. Taking the report of the master, it would appear that the defence here set up was passed upon by him, but it clearly appears from the papers offered in evidence that the court did not intend to determine the case upon its merits. The decree reads this way: ‘And now, August nth, 1884, this cause came on to be heard on the master’s report and exception thereto, and was argued by counsel; and thereupon it is considered, ordered, adjudged and decreed that the said exceptions be overruled, and said report confirmed; that plaintiff’s bill is now dismissed without prejudice to his right to set up the matters and things therein alleged as a defence to the scire facias upon the mortgage given by Nathaniel Ballentine, dated July 6th, 1876, and more particularly mentioned and described in said bill; and it is further ordered that the plaintiff, B. L. Fahnestock, pay the costs of this proceeding, including the examiner and master’s fee, which is now fixed at two hundred dollars.’

“ Seeking an explanation of the latter part of this decree that has been termed surplusage by plaintiff’s counsel, we turn to the judge’s opinion, which was filed with the decree, and we find this language: ‘ In view of the decree which I have concluded to pass in this case, it would not be proper to enter upon a full discussion of the principal question as to the validity of the mortgage in suit, because that question may come up again for hearing on the law side of the court, and should not, therefore, be prejudiced now. But I feel constrained to say that I am not entirely satisfied with the outcome of the proceedings before the master. Owing to an oversight on part of counsel, there was not as full and complete an investigation of facts as there should have been; and it is now like the case of a *335mistrial at law, where the judge, to prevent a failure of justice, will hasten to order a re-trial of the issue before another jury.’

“The question now before us is not, should the judge have sent the case back to the master for further hearing, in place of making the decree he did, but, did he decide the case upon its merits, or did he decide that the trial before the master should go for nothing, and dismiss the bill, reserving the plaintiff the right to set up the matters which he complained of as a defence in this suit. We must take the decree as it reads; we cannot eliminate from it certain words to make it evidence to sustain the plaintiff’s offer; and we are therefore of the opinion that the papers and record offered in evidence do not show the defence set up here is res adjudicata. The objections to the offer are sustained, offer overruled and bill sealed.” [2]

When J. W. Ballentine was on the stand, plaintiff’s counsel proposed to prove by the witness that, during the hearing of the bill in equity.filed by B. L. Fahnestock against himself and his father, he was called for cross-examination by B. L. Fahnestock’s counsel; that he was then fully examined; that this hearing took place several years before Mr. Fahnestock’s death; that in the testimony then adduced it appeared that the mortgage in suit was dated-July 7, 1876, and that the mortgage of the Savings Bank, referred to in the testimony already, was assigned to the witness on March 27,1877 ; this evidence to be followed by evidence showing that although the formal transfer of the mortgage was made on or about the date of the execution of the mortgage in suit; and that the semi-annual interest, referred to by the accountant of the bank on the stand a while ago, was paid by him in pursuance of that assumption. This for the purpose of relieving against the alleged contradiction established by the evidence in behalf of the terre-tenant.

Objected to on 'the ground that the witness is incompetent to testify as to matters occurring prior to January 4th, 1888, the date of the death of Mr. Fahnestock.

Objection sustained, offer overruled and bill sealed for defendant. [1]

The plaintiff asked the court to charge the jury as follows:

“ 3. There being no evidence that the plaintiff had knowledge of a fraudulent intent on the part of N. Ballentine to cheat and defraud creditors (especially Fahnestock) in executing and delivering the mortgage in suit, the verdict must be for the plaintiff. *Ans.*There is no positive evidence of this ktiowledge, but we leave it to the jury to say whether the facts proven in the case warrant the conclusion that he had such knowledge, and if they find that he had not, the verdict should be for the plaintiff, unless the mortgage in suit was without consideration.” [5]

The defendant asked the court to charge the jury as follows:

“ 1. If they find from the evidence that the mortgage in suit was without consideration, then it was fraudulent and void as to existing creditors, whether there was actual intent to hinder, delay or *336defraud creditors or not; and if they further find that, when the mortgage was thus given without consideration, Nathaniel Ballentine was indebted to B. L. Fahnestock, their verdict should be for the defendant. *Ans.*Affirmed.” [3]

“ 2. If they find that, at the time the mortgage was given, Nathaniel Ballentine was to some extent indebted to J. W. Ballentine, yet if they also find that the mortgage was given for more than was due with the intention to incumber the property in order to hinder and delay or defraud other creditors, the verdict should be in favor of the defendant. *Ans,*Affirmed, if J. W. Ballentine had knowledge of this intention on the part of Nathaniel Ballentine.” [4]

Verdict for defendant and judgment thereon.

*The assignments of error*specified, 1, 2, the rulings on the evidence, quoting the bills of exceptions; 3, 4, 5, the answers to the points, quoting the points and answers.

*John G. McConnell*and *H. M.*Dougan, with them *I. Y. Hamilton,*for plaintiff in error.

The second offer was not to prove the declarations of the parties to the mortgage in suit, but the notes of what they had testified to in the equity proceeding were to be used without calling the master to prove the authenticity of the notes themselves. Section 9 of the Act of April 23, 1887, P. L. 158, does not apply to the evidence of parties. It does, in terms, apply to witnesses who, since a former hearing, have died, are beyond the reach of a subpoena, or for some cause have become incompetent. The witnesses to whom the section applies are those of whose examination a party had actual or constructive notice, and opportunity to be present and examine or cross-examine. The reading of these notes was then tantamount to placing J. W. Ballentine on the stand by the defendant. Under § 7 of the Act of 1887, he was thus made competent for all purposes. Mr. Fahnestock had ample opportunity to learn what J. W. Ballentine could say about the transaction. Ballentine should now have an opportunity to explain why 'it was that the mortgage, although not actually paid by him until March 27, 1877, was legitimately part of the consideration for the mortgage in suit. His adversary having placed him upon the stand, he was competent to explain this transaction. 0

As to the second assignment of error: It being certain that the court had made a -decee in the equity suit, the only question was whether that decree was interlocutory or final. In the solution of this question, the opinion of the court is not to be considered, because the reasons given by the court are no part of the decree. Durant *v.*Essex Co., 7 Wal. 107.

When a decree does not reserve the consideration of the points of equity arising, etc., it is a final decree, and may be pleaded in bar. 2 Dan. Ch. Pr., 1 Am. Ed., 1190. And such a decree is conclusive as evidence: Kelsey *v.*Murphy, 26 Pa. 80.

*337Where a bill has been dismissed upon the merits, the decree is final. Sparks *v.*Walton, 4 Phila. 93 ; Hughes *v.*U. S., 4 Wal. 232; Warran *v.*Bodley, 14 Pet. 406; Bigelow *v.*Winsor, 1 Gray, 299; Foote *v.*Gibbs, 1 Gray, 412; Bigelow, Estoppel, 34-5 ; Wells, Res Adjudicata, § 455.

It was the duty of the court to dispose of the suit in equity, and the right of the parties that this should be done. Saylor’s Ap., 39 Pa. 495. And it is to be presumed that the court intended to discharge its duty. If, for the information of his conscience, the chancellor had desired the aid of a jury, the decree would have been made accordingly.

As to the remaining assignments of error: There is no evidence that J. W. Valentine had knowledge of any fraudulent intent. Hence the plaintiff’s first point should have been unqualifiedly affirmed. The defendant’s first point, in its last clause, assumes the fact to be that the mortgage was given without consideration. This was error, even if there had been evidence to support the proposition that the mortgage was a mere gift. The question would have been for the jury. Fraud may be presumed, but the facts which warrant the presumption must be proved; no presumption can be drawn from a presumption. Douglass *v.*Mitchell’s Exr’s, 35 Pa. 440.

*John H. Murdoch, I. Hancock*and *R. W. Irwin,*with them *E. E. Crumrine*and *Boyd Crumrine,*for defendant in error.

The plaintiff’s offer of evidence under the first specification of error was made “ for the purpose of relieving against the alleged contradiction established by the evidence in behalf of the terre-tenant.”

Under the Act of April 15, 1869, § 2, P. L. 30, Ballentine was not made a competent witness generally by the mere fact of being called as if on cross-examination. Miller, Competency of Witnesses, 142-3, distinguishing Seip *v.*Storch, 52 Pa. 210, and relying upon Bierly’s Ap., 3 W. N. C. 210, lays down the rule that when a party or interested person is called under the Act of 1869, the very fact of calling him as if under cross-examination, precludes the idea of credibility; and the fact of cross-examination precludes the idea of making him the witness of the party by whom he is called.

The reading of the testimony was not the equivalent of placing Ballentine on the stand. If his testimony before the master had not been preserved, it would then have been admissible to prove what he testified to by witnesses who were present and heard him. Wright *v.*Cumpsty, 41 Pa. 102; Cornell *v.*Green, 10 S'. & R. 14. Yet it will not be claimed that the introduction of such evidence would render him competent. Fahnestock was living when he was called. The Act of May 23,1887, § 7, P. L. 160, is not broader in its scope than the Act of 1869, and the decisions under it.

An affidavit of defence made in another case by the plaintiff in a suit, may be offered by the defendant for the purpose of contra-*338dieting the plaintiff, as evidence of a fact therein stated. Reineman *v.*Blair, 96 Pa. 155. Unless otherwise provided by statute, the fact that an answer was extorted from a witness when under examination in a court of justice, does not preclude its reception in evidence against hini in a civil issue. Williams *v.*Com., 29 Pa. 102; Grant *v.*Jackson, Peake, 203; Ashmore *v.*Hardy, 7 C. & P. 501. Even though a witness is prevented from explaining his testimony at the trial, such testimony can afterwards be used against him. Collet *v.*Keith, 4 Esp. 212; Millword *v.*Forbes, 4 Esp. 161; 2 Wharton, Ev. 1099,1120. The admission of a party, when examined as a witness in another case, may be used against him in a subsequent civil issue. Stock *v.*De Fastet, 4 Camp. 11; Robson *v.*Alexander, 1 C. & P. 448; Ashmore *v.*Hardy, 7 C. & P. 501; Carr *v.*Griffin, 44 N. H. 510; Tooker *v.*Gormer, 2 Hill, N. Y., 71; Backman *v.*Montgomery, 14 N. J. Eq. 106; Mitchell *v.*Napier, 22 Tex. 126. Nor is such evidence excluded by the fact that the party against whom his former evidence is produced is present at the trial. Lorenzanaz1. Camarillo, 45 Cal. 125.

The decree in the equity proceeding does not estop the defendant from raising the question of fraud here.

In considering a decree in equity, we may look to the opinion of the court for an explanation of the extent and operation of the decree. Third Ref. Dutch Church’s Ap., 88 Pa. 507. It is clear, from an examination of the opinion and decree, that the court did not intend to pass upon the merits of the case. The authorities are uniform that a decree dismissing a bill after a final hearing on the merits, estops the plaintiff from raising the same question in another suit, unless there be qualifying words, such as “ dismissed without prejudice,” which is equivalent to saying that if the decree provides that the dismissal is without prejudice, it is no estoppel. 2 Dan. Ch. PL & Pr., 4 Am. Ed., 993-4; Durant *v.*Essex Co., 7 Wal. 107; Story’s Eq. PL, 6th ed., 793 ; Mitford & Tyler’s Eq. PI. & Pr., 330; Kelsey *v.*Murphy, 26 Pa. 78; r Dan. Ch. Pr. 659,4th ed.; Perine *v.*Dunn, 4 Johns Ch. 142; Neafie *v.*Neafie, 7 Johns. Ch. x; Foot *v.*Gibbs, 1 Gray, 412.

If the defendants in the bill were not satisfied with the decree, they should have appealed from it. Having accepted the decree as made, they cannot now be permitted to attack it in a collateral proceeding.

As to the remaining assignments of error, they are sufficiently answered by a reference to the points themselves, with the authorities cited with each, as printed in the paper-book of the plaintiff in error. The authorities are not printed in the paper-book of the defendant in error, but are as follows: As to the first point: Thompson *v.*Dougherty, 12 S. & R. 449; Hack *v.*Stewart, 8 Pa. 213 ; Mullen *v.*Wilson, 44 Pa. 418. As to the second point: Clark *v.*Douglas, 62 Pa. 408; Bunn *v.*Ahl, 29 Pa. 387; Zerbe *v.*Miller, 16 Pa. 488. *339As to the third point: Bump, Fraud. Conv., 545 ; Deakers *v.*Temple, 41 Pa. 234; Evans *v.*Matson, 56 Pa. 54.

Oct. 18, 1888.

Per Curiam,

None of the assignments of error in this case can be sustained. The court committed no error; hence judgment must be sustained.

Judgment affirmed.