The opinion of the court was delivered by
Smith, J.— The appellant has assigned eight reasons for a new trial; but, in the view I have taken of the case, it will not be necessary to consider the second, third, fifth, seventh, and eighth reasons, further than to observe, that we do not consider them sufficient in law for this court to set aside the verdict and judgment of the Circuit Court, and award a new trial. The first, fourth, and sixth reasons assigned for a new trial merit a more particular notice. And, in order to understand them, it may be proper to observe, that, on the trial of this cause, which was an action of trover to recover the value of certain bonds which the defendant had given to the intestate for part of the consideration money of a tract of land, for which the intestate had agreed to give him “ a good deed or lawful conveyance,” the plaintiff, in his testimony in chief, was permitted to prove the declarations of the intestate, made to Philip Romig and Abraham Romig, the elder, in the absence of the defendant. The evidence of the first of these witnesses was, in substance, that the deceased, some years before his decease, whilst residing in the defendant’s house, left with the witness, for safe-keeping, some bonds, which were wrapped up in paper. He told the witness to take care of them, for he could not always carry them in his pocket. That the bundle of bonds remained in his possession about two years, when the intestate called on him for the bonds, *248saying, he wanted to see something in one of them. The witness delivered them to him. Witness never examined the bundle, nor did he know what it contained, except from what the deceased told him.
The testimony of the latter witness was, that the deceased complained to him that he had been sued, and that the defendant had refused to become his bail. That he asked the deceased if he had not bonds against Peter: the deceased said he had fifteen bonds, for two hundred dollars each, in his pocket. The witness advised him to transfer some of them to the creditor who had sued him, in satisfaction of the debt. That the deceased went away, and shortly afterwards returned, and said he had done so, and was now clear. This evidence was objected to, and its admission forms one of the grounds of the evidence of a new trial.
1 do not see any thing in this evidence, or in this case, to take it out of the general rule, that the declarations of one party, made in the absence of the other, are not evidence in favour of the party making them, although they are evidence against him, if his adversary chooses to use them as such. And that the general rule is so, I refer to 5 Serg. & Rawle, 190, 395, and 1 Peters’s Rep. 15. There is nothing in the argument, that the defendant was to be considered as claiming under the deceased, as it was alleged that the intestate had given up the bonds to him. Even as repelling testimony, after the defendant should have given evidence of a giving up of the bonds to him, it would not be admissible. The defendant could give in evidence the intestate’s acts and declarations against him, and the plaintiff could not affect them by any thing the intestate might have said or done at another time in the defendant’s absence. A man cannot make evidence for himself. The case of Scull v. Wallace’s Executors, 15 Serg. & Rawle, 231, is, in my opinion, decisive of this case; and so is 7 Johns. 95.
On the trial the defendant offered to prove that he had paid the expenses attendant on the funeral of the deceased. The evidence was objected to, and rejected. He then gave some evidence of his having worked for several years for his father, the plaintiff’s intestate, and that he had promised he should be paid for it. For these services, for sixteen years, the defendant alleged there was due him twelve hundred dollars. He also proved, that the lands, for which the bonds were given, were unpatented; and that since the suit brought, he had paid four hundred and forty-three dollars and seventy-six cents to obtain a patent for them. The judge who tried the cause was of opinion, that the evidence produced did not substantiate the defendant’s claim to compensation for services; nor did he think the defendant had proved that the intestate was bound to patent the lands; but, that, had he made out such proof, he could, not avail himself of it in this action, which was trover, founded on a tort, and that the true measure of damages was the amount which *249the bonds called for, adding interest on such as were due, and making a discount to ascertain the present worth of such as were not due.
It is true this is an action founded in tort, and that set-off is only allowable in actions arising ex contractu, and were these things matter of set-off they could not be received. 4 Burr. Rep. 2480, 2481. The claim for services, and for patenting the land, if established, went to destroy the consideration of the bonds; to show that they were given for more than was due; and was, therefore, evidence to defeat that consideration, and thus fix what was the true value of the bonds. The amount recoverable upon the bonds was the true measure of damages. Suppose a receipt indorsed on one of them for one hundred .and fifty dollars, the balance remaining due would form the measure of damages in relation to it. It mattered not that the money for patenting the land had been paid since suit brought. It was not the payment of the money which showed the defect of consideration; the mere payment of money since the suit brought might not, strictly, have been evidence: it was the fact, that so much money was required to remove the incumbrance, and it matters not .when he paid it. It was a satisfactory defence, when the action was commenced, and when discharged, was a payment in equity of so much money.
The agreement required the plaintiff’s intestate to give Peter Roig, the defendant, a. good deed or laioful conveyance for the lands. In Dearth v. Williamson, Administrator of Welsh, 2 Serg. & Rawle, 498, this court said, that by a lawful deed of conveyance in an agreement, might be fairly understood, a deed conveying a lawful or good title. The intestate was then to convey a lawful title., for which he was to receive the full value of the lands. He did not do so, for at the time of his deed to his son, Peter, the land was not patented; the legal title for it remained in the commonwealth, — .the purchase money due to them, charged as a debt on the land; and was so, whether taken up by location, warrant, or settlement. So this court laid down the law in 9 Serg. & Rawle, 71, and 13 Serg. & Rawle, 307, and it is, moreover, evidently so, from all the acts made to enforce the payment of unpaid purchase money, in which the land is looked to as the debtor. Peter Romig then paid the incumbrance which lay on the land, for which Jacob Romig had agreed to make a lawful and good title, and the payment thereof to the commonwealth, in whom the legal title was, formed a good defence to the bonds.
I consider the payment of the funeral expenses a direct payment, and as much a matter of defence pro tanto, as a sum indorsed up.ou one of the bonds would be. ■
For these causes, a new trial should be granted.
New trial granted.