*375OPINION by

It seems to us tbe evidence of notice by Bennett to Heed, as executor of Gadwell, of the pending suit by Barnes, Lyman & Company against Bennett was insufficient. If the notice was not given until after judgment was obtained against Bennett, it was unavailing, as no opportunity to intervene and make defense could be then acquired. The only witness to prove the notice was Bennett himself. He was sworn and testified on his own behalf, and the best he could say was far short of an actual notice of a pending suit given before judgment was obtained. The whole of his testimony on his examination in chief is contained in the following:

Q. Now, before this scire facias, that was issued July 24, 18G8, and the judgment against you was entered three months and five days thereafter, now, between those two dates what, if any, conversation did you have with W. W. Heed, the executor of Henry Gadwell, as to the pendency of this action against you ?

A. I spoke to him about it and he referred me to Mr. Marshall. I don’t know all that was said.

Q. If there was more than one such conversation occurred, about how often, according to your recollection, did you have any conversation with him with regard to it — with Mr. Heed %

A. I couldn’s say. It was a good while ago. I couldn’t say where we were, or how many there was, but we often spoke of it.

Q. Gan you give the substance of those conversations ?

A. The substance was I wanted him to look after it and protect me, and he referred to the old gentleman, Mr. Marshall.

It will be perceived at once that the testimony was extremely vague and indefinite, and evidence upon such a subject ought not to be either vague or indefinite. He says: “I spoke to him about it,” but he does not say what he spoke. Bennett may infer from what he said that he gave express information of a fact that a suit had been brought against him by Barnes, Lyman & Company, for a debt for which Heed’s testator was liable; but he has no right to infer, — that is for the jury when they know what was said. But what was said is not stated, and therefore we cannot certainly knoAV whether there was proper ground for an inference of the particular notice which the occasion required, by the jury.

Nor is this deficiency supplied by the further statement: “The substance was I wanted him to look after it and protect me.” *376Look after what ? Protect him from what ? The witness does not say, and the jury is asked to infer the whole matter of the conversation and its meaning, when the party, who is his own witness, is unable or unwilling to tell it himself. The necessity for certainty is greatly increased by the fact that the defendant was only an executor of the real defendant, and is not presumed to know anything about the matter in question. lie should therefore be precisely informed, and the very matter of the information should be stated so that the jury and the court might judge, of its meaning and effect.

In addition to the foregoing, the witness, on cross examination, was quite unable to say whether the conversation, such as it was, occurred before or after judgment was obtained. Thus:

Q. You don’t recollect now of having testified before that you had conversation with Mr. Peed about this action now in suit ?

A. I don’t know whether about this one. I had several in regard to different suits> and he always referred me to Mr. Marshall.

Q. Do you mean to say now that you had these conversations with him before judgment was obtained against you in- that case ?

A. It was just before that conversation with Mr. Marshall; whether he had obtained the judgment then or not I don’t recollect.

Q. Wasn’t it when they were trying to open the judgment you had this conversation?

A. No, sir, I think not. Mr. Marshall says: “Let him crack away; he won’t make anything out of it.”

Q. That was after the judgment was had against you ?

A, I couldn’t say whether it was pending or whether a judgment had been obtained.

’Further on, having said: “Mr. Peed spoke to me and I to him,” he was asked:

Q. You can’t say whether that was before or after the judgment?

A. Which judgment?

Q. The judgment of Barnes, Lyman & Company, against you, on which the execution was issued against you alone on the scire facias in 1868; wasn’t all that talk with Mr. Peed about that after that judgment was obtained and after they were talking about having it, opened ?'.

A. I couldn’t say.

*377We are very clear that, in view of this aspect of the testimony, it was insufficient to go to the jury as evidence of express notice of a particular suit pending, and at a time when the party notified might have an opportunity to intervene and make defense. The evidence of Judge Vincent, as to what Bennett testified to on a former trial, was neither offered nor received as evidence of notice, but only to disprove a possible theory of the defense,— that the evidence was an afterthought, occurring subsequently to the previous trial. If it had been- offered as jnoof of the fact of notice, by proving that Bennett once swore to it positively, it would have been clearly incompetent, as Bennett was himself alive and an actual witness in the cause. He could not help out his own evidence by proving that he testified to the fact of notice on a previous trial. We sustain the fourth assignment, but not the others.

Judgment reversed.