Numbers v. Shelly

Mr. Justice Gordon delivered the opinion of the court, May 24th 1875i Abraham E. Shelly, one of the defendants, made his deed of assignment to Benjamin McCutchen and Christian W. Brubaker, for the benefit of his creditors, reserving therein the amount ($300) exempted from levy and sale under the Act of 1849. Upon settlement of the account of the assignee, this amount was awarded to Shelly, but before it was paid over to him it was attached by the plaintiff in the hands of the assignee. In order to support this attachment, the plaintiff gave in evidence the narr., in which was recited, as the foundation of the suit, a note under seal, executed by the defendants, with waiver of exemption. The learned judge [429] of the Common Pleas held that the allegation of waiver of exemption contained in the narr. was not evidence of that fact, and so ruled the case against the plaintiff. In this we think there was error. The whole record was admissible, and the narr. was part of the record: Erb v. Scott, 2 Harris 20. As the judgment was evidence, so was also the declaration, for by it that upon which the judgment was founded would appear. We apprehend that as the record, as a whole, imports verity, so every part of it is admissible to prove that which it legitimately sets forth. It is no doubt true that where the narr. contains allegations not pertinent or material to the case, such allegations would not be admissible. Such, however, was not the case with the matter in hand. The waiver as set forth was not only pertinent and material, but it was part of the record: Hageman v. Salisberry, 24 P. F. Smith 280. The judgment is reversed, and a venire facias de novo is awarded.