The opinion of the Court was delivered by
Sergeant, J.The merits of this case were considered on the hearing of the former writ of error between the same parties, reported 5 Watts & Serg. 440. On the present trial, various exceptions to evidence and to the answers of the court were taken in the court below, and have been assigned for error, of which only a few have been relied upon in the argument, and therefore I shall confine my attention to them.
1. The first of these exceptions is to the admission of the ex parte affidavit of Zachariah Hengst, filed by him on the 19th March 1831, to prevent the entry of judgment. Had this affidavit, as the plaintiff in error alleges, been offered and read in evidence in this cause upon the merits, as going to prove that a portion of the land sold by Jacob Kauffelt to Leber lay in Springetsbury manor, it would not have been proper evidence. But it would rather seem that this affidavit was offered and received to show the ground of the defence taken by Hengst in the suit against him by Hoover; and if so, it was properly received for that purpose merely. If it was really offered by the plaintiff in the broad point of view asserted by the defendants, it was .their duty to require *97the purpose for which it was offered to be specially designated, and by not doing so they waived this objection. Besides, it would rather seem by the memorandum of the court which immediately follows on the record of the admission, viz., “ read stating the outstanding title,” &c., that it was in fact received merely to show the grounds of Ilengst’s defence.
2. The defendants offered the evidence contained in the offer C, which the court rejected. This we think the court below were right in rejecting, as, if proved, it led to no result. The defendants, in order to terminate a dispute in which the plaintiff’s intestate refused to accept the deed without a guaranty against a known incumbrance on the title, chose to give a bond of indemnity against the incumbrance in their individual capacities, and on the faith of it the plaintiff paid his money and received the deed. This was a good consideration for the bond. Whether the defendants were bound to give such bond was for themselves to decide at the time, and it is not necessary it should appear that they were, since if they voluntarily agreed to do so in order to compromise the controversy, and the administrator received the benefit of it, they would be held to their agreement, both at law and equity. In Lasere v. Johnson, (2 Str. 745), bail in error was given by an executor, and it was objected that it was not required by the statute, and was therefore taken without authority; but the court say, though they could not require the defendant to give bail, yet if he will submit to do it as other defendants do, the court may do it, and it will bind the parties. The defendant in the action might for some advantage agree to give bail on the writ of error; but be that as it will, here is a recognizance which is not fulfilled. The present case is still stronger, for it is the bond of the defendants as third persons in the nature of a collateral security voluntarily given, and to settle a dispute. I perceive nothing in this against the policy of the law, or that brings it within the class of cases cited on that point.
3. The record of the suit, No. 26, January Term 1839, brought by Jacob Leber against John and Jacob Kauffelt, was not evidence. That suit was brought by Jacob Leber in his capacity of son and heir at law of Nicholas Leber; the present in his character of administrator. The suits were not between the same parties, nor was the title the same in both. In the first the plaintiff must needs fail, because the right to recover on the bond being a personal right, did not pass to him as son and heir at law of Nicholas Leber. But a judgment in a suit brought on a different title which is bad, ought not to have any legitimate effect in a subsequent suit brought upon a good title.
4. The answers of the court to the 6th and 7th points are assigned as errors; but they appear to us to be correct, and as favourable to the defendant as he was entitled to. For, if the guaranty was proved by Hoover to have been expressly made at *98the time of the assignment of the bond by Nicholas Leber to Hoover, and omitted by mistake of the scrivener, Hoover having no interest in the result of the present contest, was a competent witness to prove it.
Judgment affirmed.