[Horton v. Cook.] Greenough, for plaintiff in error. Donnel and Jordan, for defendant in error. The opinion of the court was delivered by GIBSON, C. J.-If the grautor was personally bound for payment of the annuity, the promise to pay in consideration of forbearance to sue his executors, equally binds the defendant; and that is not controverted. It is urged, however, that what has been called an annuity, was no more than an assignment of a portion of the interest accruing on the bonds and mortgage. But the grant of an annuity in terms, out of whatever payable, prima facie binds the person; and the implication from it of a covenant to pay, can be rebutted only by a plain intent apparent on the face of the instrument, that the annuitant should resort only to a specific fund. An annuity is an annual duty charged upon the person of the grantor only; Co. Lit. 441, b.; but the grantee of a rent charge, which is not a pure annuity, may charge the land by a distress or an assise, or the person of the grantor by a writ of annuity at his election. Lit. sect. 219. Now the grant, in this case, is stronger to charge the person, than the grant of a rent charge; for the subject of it is designated as an annuity in terms, and ex vi termini, the word imports the grant of a sum in gross, "so that no freehold be charged therewith;" Terms de Ley 44: that is, as annuity; for it may certainly be charged on land in the shape of a rent. If it issue out of land, as by the modern practice it often does, the annuitant may make it personal or real, at his option; and though he may have a writ of annuity after a distress, he may do so only where he has not avowed in replevin, or brought an assise, which also is an election of record. But that the word annuity is the proper one to charge the person, is further manifest from the fact, that no writ of annuity lies for a rent created by reservation. It is said in the Law Dictionary, verbo Annuity, that there are few modern grants of annuities without a covenant for payment, express or implied; and that an action of covenant is usually brought instead of a writ of annuity, which is much out of use. What, then, is there to rebut the implication of such a covenant on the face of this instrument? The annuitant was not a beneficiary, but a purchaser; and the interpretation is to be as favourable to her as the words will bear. Payment was directed to be made out of the produce of purchasemoney, secured by bond and mortgage, an adequate portion of the principal being left in the mortgagor's hands, or agreed to be put out at interest by the grantor, should it be paid over to him. If the grant then were construed to be only an assignment of the fund, it is evident that the grantee's security would be proportionately decreased; and it follows not that the designation of a particular fund for payment, has the effect of discharging the grantor's responsibility. Such is the case of a rent charge, and such also was the case in 1 Roll. Abr. 227, of an annuity receivable out of a par [Horton v. Cook.] ticular bag of money, or out of the grantor's coffers, or from a stranger. Besides, it is difficult to say what remedy this annuitant could have had against the mortgagor; or how, in a suit on the bonds, she could have recovered in the name of the obligee, just so much. of the interest as would satisfy her annuity and no more; or how, in the event of the obligor's insolvency, which has since happened, she could have had repeated recourse to the land which has since been sold on the mortgage, and ceased to be a security for her demand. A construction that would expose her to the risk of such events, without recourse to any guaranty, would be plainly unreasonable and unjust. But that to find the means of satisfaction was to be the grantor's business, is evident from his covenant to put the principal at interest for her use, when it should be paid into his hands. His being the hand to receive and pay out, she could look to no other. He might have put the money out on merely personal security, and not even of her choosing; on which it is unreasonable to suppose that she consented to rely. The grantor, then, having used apt words to charge his person, and having used none else to restrain their natural and technical effect, we must take it that he consented to be personally bound; and, consequently, that there was a sufficient consideration for the defendant's promise. Judgment affirmed. Kocher against Bowman. It is proper that testimony should be rejected, when, if given, it would have no legal operation upon the rights of the parties. ERROR to the common pleas of Luzerne county. Francis L. Bowman against George Kocher, Jun. This was an action of assumpsit by the endorsee against the endorser of a negotiable note. The whole case is sufficiently stated in the opinion of the court. Wright, for plaintiff in error. The opinion of the court was delivered by HUSTON, J.-This was a suit by Bowman, as endorsee, against Kocher, as endorser of a note for 100 dollars, as follows: "$100. Ninety days after date, I promise to pay, at the Wyo [Kocher v. Bowman.] ダ ming Bank, to the order of George Kocher, Jun., one hundred dol lars, without defalcation-value received. "PHILIP JACKSON, JUN. "Credit the drawer, George Kocher, Jun. "Endorsed, George Kocher, Jun." The narr. was in the usual form, stating the making of the note by Jackson, the endorsement by Kocher, and delivery of the note by him to Bowman, the demand, notice, &c., &c. 66 This is all regular. Then the defendant called Edward Carr, who stated, "I understood from Bowman, at the time the arrangement with Jackson for the leather was made, that he would take in payment for the leather Philip Jackson's note, endorsed by Kocher, and would endorse it with him, and offer it in the bank for discount; I was present when the note was given; I was present when Jackson asked Kocher." He offered to prove by the same witness, in connection with the foregoing, "that Philip Jackson went with the note in question to Mr Kocher, and told him if he would endorse the same, before it was presented in bank, it should be endorsed by the plaintiff, as one of a similar kind had been previous to this, but which was not discounted, in consequence of some informality, by the directors of the bank, and he, Kocher, endorsed the note under this representation; that the note was afterwards offered for discount in bank without the name of Bowman; that the defendant then gave notice to the directors of the bank not to discount the same, because Bowman's name was not on it; that it was not discounted, and the plaintiff procured it from the bank and brought suit on it, of all of which the plaintiff had notice." This was objected to, rejected, and exception taken by defendant. The evidence given was, in substance, that Jackson got leather from Bowman, and was to pay in a note by Jackson, endorsed by Kocher. There was no evidence offered to prove that any part of the money, expected to be raised on the note, was for the use of any other person than Bowman. The note was drawn to Kocher alone, and endorsed by him, and if Bowman had subsequently endorsed it, and got the money from bank, and Jackson failed to pay, this would not have rendered Bowman and Kocher jointly liable to the bank; it might have sued either. If the first resort had been to Bowman, and he had been compelled to pay, he would have had recourse to Kocher, the previous endorser, precisely as he has now, and would have recovered the whole from him. There is no evidence that Bowman ever agreed to endorse a note for the accommodation of Jackson, or to become jointly liable with Kocher for the amount. He never spoke to Kocher on the subject, nor did he draw the note, or even see it until brought to him endorsed by Kocher; it was to be a payment to Bowman for leather sold to Jackson, and Bowman supposed he would get cash for it by endorsing it and presenting it to the bank. After this was rejected, the defendant offered the deposition of [Kocher v. Bowman.] Philip Jackson, taken on commission to Ohio. This testimony was, that the first note, in lieu of which this was given, was not, as he thought, endorsed by Bowman, (which was left uncertain by the above offer); it was substantially the same as the above offer, with this difference, that Bowman requested him (Jackson) to get a good endorser on the note, for he, Bowman, could not get the money from bank on his own endorsement alone. This also was objected to, and rejected and exception taken. As it is an offer of the same testimony in substance, we must suppose it was rejected for the same reason, viz. that it had no tendency to discharge the defendant from the liability for the money; indeed, his answer to the last question went to show that Bowman understood, and intended the note to be a payment to himself, and wished the note to be such, that by endorsing it he could make it a payment in cash. The allegation that the defendant understood it otherwise, is not to be attributed to Bowman, with whom he had no communication. The testimony rejected was rightly overruled as being such as could not possibly affect the result. It was argued here as if the objection to this testimony had been, that Philip Jackson was not a competent witness, being a party on the note. It does not appear what the objection was; whether the objection was to the matter contained in the deposition, or to the competency of the witness; but as it came just after the rejection of the previous offer, and was in substance an offer to prove by another witness what had already been decided to be inadmissible, we take it, it was rejected for the same reason, and shall not go into the question of the competency or incompetency of the witness. There would, in this view of the matter, be sufficient reason for rejecting the testimony, though no objection to the competency of the witness. Judgment affirmed. Camp against Bank of Owego. The endorsee of a promissory note may maintain an action of debt against the maker, and recover upon a statement of his cause of action. But the statement must contain an averment of the endorsement of the note by the payee to the plaintiff: without such averment, a judgment upon it would be erroneous, The entry of a rule of arbitration, does not take the cause out of court, or deprive it of its jurisdiction. This effect cannot be produced, except by the appointment of the arbitrators, and the commitment of the case to them. A mere rule, not acted on, may be treated as a nullity by either party. Sed secus as to a rule of reference. ERROR to the common pleas of Luzerne county. Bank of Owego, endorsee of James Pompelly and others, against [Camp v. Bank of Owego.] Henry W. Camp. This was an action of debt, in which the plain, tiff filed the following statement: The plaintiff's demand in this case is founded on a promissory note, dated March 30, 1838, for the sum of 669 dollars and 83 cents, with interest from June 30, 1838, in the words and figures following, to wit: "Three months after date, I promise to pay to the order of James Pompelly, Latham A. Burrows, Jonathan Platt, William A. Ely, George J. Pompelly, and Thomas Forrington, 669 dollars and 83 cents, at the bank of Owego, for value received. Dated March 30, 1838. "$669 83. (Signed) HENRY W. CAMP." And the plaintiff by her attorney avers, that there has been no payment made on the said note. The plaintiff's demand, therefore, in this action, is for the sum of 669 dollars and 83 cents, with interest from the 30th day of June 1838. All of which the said plaintiff, by her attorney, avers, as she believes, to be justly due from the defendant to her." On November 4, 1839, the defendant entered a rule to arbitrate, upon which no action was had. On January 13, 1840, judgment was entered in open court, for want of an affidavit of defence: to reverse which, this writ of error was sued out, and the following errors were assigned: 1. An endorsee cannot-maintain an action of debt against the maker. 2. The statement contains no averment of the plaintiff's title. 3. The judgment was entered after a rule to arbitrate was entered. Wurtz and M'Clintock, for plaintiff in error, cited 1 Chit. Pl. 94; 1 Rawle 347; Str. Purd. Dig. 226. Woodward, for defendant in error, cited Chit. on Bills. The opinion of the court was delivered by ROGERS, J.-It was for some time doubted whether, in respect of the want of privity between the parties, an endorsee could support an action of debt against the drawer of a bill, or maker of a note. It has been ruled, that the action may be supported by the payee of a promissory note against the maker, when expressed to be for value received, or by the drawer against the acceptor of a bill, expressed to be for value received in goods, and by the payee of a foreign or inland bill of exchange, expressed to be for value received, against the drawer, and by the first endorsee against the first endorser, who was also the drawer of a bill payable to his own order. 2 Bos. & Pul. 78; 1 B. & C. 674; 3 Serg. & Rawle 165; 3 Price 251. But in Bishop v. Young, 2 Bos. & Pul. 81, the court intimated a doubt, whether debt would lie where the action was brought by any other person than him to whom the note was originally given, |