text:
    Alsop’s Appeal. Riley’s Appeal.
    Though a will and the codicils form but one testament, and speak from the date of the last codicil, yet they constitute distinct instruments, and a bequest of the residue by the will “ to the legatees,” will be confined to such legatees as are therein named, and to such legatees as are substituted by codicil for some of them.
    Where testator republishes his will and the codicils, and in the attestation styles them codicils, they do not thereby become parts of the will, but remain codicils.
    Testator by his will gave certain pecuniary legacies, and directed the residue, if there was one, to be divided pro rata among the legatees in the proportion their legacies bore to the residue: by subsequent codicils, he gave legacies to other persons. Afterwards, he made a copy of the original will, and of the several codicils, retaining the original dates and separate executions, añd re-executed and republished the same with the several codicils. Held, that the codicil legatees, excepting those substituted for the legatees in the original will, were not entitled to share in the residue, but that it was to be divided exclusively among the legatees named in the will, and those substituted for some of them by codicils.
    Testator by a codicil bequeathed to various legatees certain amounts, “5 per cent. C. stock, now in my possession — likewise of said stock — of said stock — ■ of C. stock, and the balance, §4000, to A.,” which amounted to §69,000. At that time he held but §64,000 of C. stock. Subsequently, he parted with a portion of the stock: the legacies are pro tanto adeemed. Subsequently to the transfer of the stock by him, he recited that there were sundry memoranda of bequests to the families of A. (some of whose children were among the stock legatees) and of B., the particulars of which he confirmed and charged on his estate in the same manner as if therein stated: Held, that the adeemed legacies were not thereby revived; the codicil giving the stock legacies being the only memorandum which could be found.
    By a separate codicil of the same date, he recited that he believed he had made further provisions, in the memoranda referred to, for the family of A.; if not, he bequeathed to each of her children by name, §5,000. In his previous will, he had bequeathed to A. a legacy for life, remainder to her daughters. Held, that these legacies were conditional; that testator showed by provisions for “ the family of A.” he meant her children; and that only such of them as were not provided for in the codicil, not then before him, were entitled to the legacies.
    Testator having by his will given a legacy to A., by a codicil reciting the death of A. bequeathed the sum intended for A. to C.: C. is thereby substituted for A., and becomes entitled to share in the residue under a bequest to the legatees in the will. •
    Where a legacy is given in trust for A. for life, remainder over, A. is not entitled to the possession of the legacy.

      Dec. 13, 14. There were six cases argued together, involving the construction of the will of Richard Alsop.
    In 1829, testator, reciting that he was uncertain of the actual amount of his property, which w'as invested in mercantile operations, but assuming it as $168,000, bequeathed $50,000 to his wife, with a contingent bequest over.
    To his mother, Maria Dana, $25,000 absolutely, and $25,000 for life, remainder to his sister, Frances Alsop, for life, should she survive his mother, with power to dispose of it by will, and in the event of her not surviving his mother, to his mother absolutely.
    To the three children of his sister, Caroline Oliver, $25,000, equally to be divided.
    To his time-honoured aunt, Clara Pomeroy, $15,000, to be invested for her use for life, remainder to her daughters surviving her, Caroline, Mary, Clara, and Ann.
    To his aunt, Hannah Riley, $9,000, to be invested for her for life, remainder to her daughters according to the apportionment' of the eldest, surviving her mother.
    To his aunts, Fanny and Mary, should they survive him, $5,000. To his friends, Elizabeth Pomeroy and Eunice Bassett, $300. To his cousins Clara, Elizabeth, Mary, and Lucy, $1,500 each. To Greorge Shipman, $3,500; to Grustavus Cleemann, $3,500; to R. A. Eyre, $1500.
    Provided his property produced $168,000 — but the legacies to his wife and mother were to be first paid, and they were to share alike in any event, and if the property fell short of the other legacies after the payment of those to his wife and mother, then those given to his four aunts and the children of his sister Caroline should be paid in the proportion they bore the estate, i. e. “ suppose $20,000 remain after paying the legacies to my wife and mother, then say, if the collective sum $49,000 give $20,000, what will $15,000 give, being the proportion of my deceased sister’s children: answer, their proportion will be $6,122.44.” If a residue remained, though insufficient to pay all the legacies, they should be paid in full in the order they stood in the will. If the property exceeded $168,000, the same was to be “ divided pro rata amorig the different legatees; that is, in manner following: — suppose $20,000 remain over and above, then say 168,000 (:) 20,000 (::) 50,000 my wife’s proportion being first established, which would give her $5,952.32, or thereabouts, and so on with the others.”
    In 1840 the testator made a copy of the above will, and also of certain other testamentary papers in the following order (some immaterial codicils are omitted), each one being signed by him.
    1834. Declaring that certain real estate settled on his wife was not to be taken into the account Sf his estate, and that his bequests to her in “ this will are over and above that property.”
    1833. Reciting the death of R. A. Eyre, and bequeathing “ the sum intended for him to the youngest daughter of my friend and neighbour, J. Sergeant.”
    1833. Rescinding the bequest to G. P. Shipman, and “ desiring the amount intended for him to be added to my bequest to Gustavus Cleemann.”
    1839. “ In addition to the bequests already made in this my will to my wife,” he gave her his dwelling-house and all its contents, stables, carriages, horses, &c.
    1839. “In addition to the bequests herein made,” he gave to his cousin, Charles R. Alsop, $10,000, to be paid after the legacies to testator’s wife and mother, and $10,000 to his children; also $5,000 to his aunt Abigail, $5,000 to her daughter, and $2,500 to her son, together with any balance due from him to testator.
    1840. “In consideration of their fidelity,” he bequeathed to his housekeeper $500, to a maid servant $200, and to his coachman $100.
    Following these writings, under date New York, Nov. 10, 1840, testator wrote and signed the following: — “ The preceding is a copy of a will made by me in Philadelphia, on the 12th of October, 1829, together with copies of sundry codicils affixed to the margin of said will, which is now deposited, &c., all of which are confirmed by me. In addition to which there are, I believe, in one of the drawers of my secretary several memorandums of bequests bearing my signature, to the families or members of the families of my uncle Pomeroy, and of my aunt Hannah Riley, the particulars of which I do not now recollect, but all of which I do now confirm and charge upon my estate in the same manner as if they were herein stated.” He then disposed of a share in his mercantile house, and gave two legacies of $10,000 each.
    By a separately executed instrument without date, but which was evidently written on the same day as the preceding clause, he bequeathed a number of legacies, and then continued: — “I believe I have made further testamentary provisions on the memorandum^ referred to as being in my secretary, for the family of my aunt Hannah Riley, and should I not have done so, then I give and bequeath to each of her children,” naming them, ten in number, $5,000 each — declaring it to be his intention that none óf the “sundry” legacies were to be paid until those to his wife and mother were paid — then in the order they stood-in “ this writing.” On the 10th of November, 1840, he executed and published this testament in the following words: — “ Signed, &c., the foregoing four sheets of paper, together with all and several the separated memoranda and codicils therein referred to, as and for my last will and testament.”
    In the preceding June, by a separate codicil, he recited that he had intended to make a new will, and should have added a codicil to one he had made some years before; but not finding it, he desired to add thus much: he then gave “ to my aunt Clarissa Pomeroy, $10,000 Cincinnati five percent, stock, now in my possession;” to her two daughters $10,000 likewise of Cincinnati city stock, and various other legacies, specific in amount, to his cousins, the Rileys, by name, “ of said stock,” or “ of Cincinnati city stock,” or “ of said Cincinnati city stock,” “ and the balance, $4,000 Cincinnati city stock, to G-. Cleemann — this is a distinct legacy, to be paid without reference to any other bequests, after my debts shall have been paid.” By an undated codicil, ho again declared that his dwelling-house, &c., and a lot on Broad Street should go to his wife; and by another, dated July, 1840, he specifically bequeathed a mortgage to R. A. Riley, and a share in Ms mercantile house to his nephew, Theodore Riley, “ always providing for the payment in full in the first instance of the legacies devised to my mother.”
    These were all the testamentary papers which could be found, and they were all admitted to probate.
    There being a large personal surplus after paying all the pecuniary legacies, the questions argued were:
    1. On the legacies of the Cincinnati stock.
    It was proved that at the date of this codicil, the testator held sixty-four Cincinnati bonds for $1,000 each. The amount bequeathed by him in this codicil was $69,000. In November, following the date of the codicil, he made a settlement of certain partnership transactions with one Wetmore, who “took to himself” one-third of this stock, and afterwards purchased part of one of the remaining bonds, leaving in the possession of testator, at the time of his death, but forty-two of the bonds.
    The court below decreed these legacies should be made up to the amounts bequeathed out of the general residue.

      2. This arose on the last codicil, giving pecuniary legacies of $5,000 to each child of Mrs. Rileju
    The court decreed that so far as there had been previous provisions made for these legatees, these legacies failed, hut they took effect in favour of those children not otherwise provided for. Among these was T. W. Riley, whose legacy, by the codicil of July, 1840, had been adeemed by a sale of that share by testator.
    3. The question here was whether the codicil legatees and the devisee of the land were entitled to share in the distribution of the residue.
    The court decided that both of these classes and the specific legatees should share the residue pro rata.

    4. Whether Mrs. Pomeroy, Avhose husband, living at the date of the will, was since dead, was entitled to the possession of her legacy, or whether it should be held, as the court decreed, in trust for her.

      Price and Meredith, for the children of Mrs. Riley.
    These legatees are entitled to have the stock legacies, which are deficient by reason of a sale by the testator, made up. Had the codicil of June, 1840, stood alone, they would have been specific legacies, and hence adeemed; but on the 10th November, 1840, only seven days after this sale, he expressly confirms this codicil, and charges the legacies on his estate. It will be said the clause is to read as if he had merely incorporated the words of the codicil into his will, but then the charging them on his estate would be superfluous. It is unreasonable to suppose so absurd a design in a testator, who must have known that he had by the sale prevented the operation of his bequest. The inclination always is to make legacies general: 7 J. C. R. 263; and what will be specific, if testator retains the thing, may become general on his parting with it: 9 Price, 94. So if there is an independent intention to give: 2 Mad. 222. Here the charge on the estate is of. that nature, for at that time he had not the stock, and hence it must be purchased: 1 Rop. Leg. 158. Without this, those words are excluded, which is never to be done if it can be avoided: 2 Mer. 25; 19 Yes. 654; 3 Yeat. 187. It is, moreover, declared that he has left several memoranda of bequests, none of which are to be found but this; and he has declared that this is to be a distinct bequest. Nor do the words require an application to this stock; the five first legacies do not exhaust it; and those only refer to this. [Bell, J. — The concluding sentence, “the balance,” &e., makes all the previous words specific.] That is the balance of the sum he intended to give, wbicb exceeded tbe stock he held, especially when it is remembered at tbe time be bad but a partial interest with Wetmore. Tbe cases cited on tbe other side are where tbe legacies were clearly specific, and no charge or republication. In this respect tbe decree was right.
    2. Tbe $5,000 legacies to tbe Rileys, by tbe last clause of the will, are cumulative. Tbe only other provisions on tbe non-existence of wbicb they are said to be conditional, are the stock legacies, just considered. These are not to the same persons, but to some of them; nor of tbe same nature — one stock, tbe other money— tbe amounts do not correspond. The testator says there are “several memorandums,” but one only is found. Tbe stock legacies are to be “a distinct bequest,” while these are not to be paid until tbe wife’s and mother’s. Those are to tbe Pomeroys and Rileys; these refer to tbe latter only. He says he has made further provisions for tbe Riley family, but tbe stock legacies are a provision for that family and another. Tbe presumption is in favour of accumulation: 2 Rop. 20; wbicb is increased if tbe amounts differ: lb. 19-23; 2 Russ. 257-62.
    8. All tbe legatees share in tbe surplus, under tbe clause in tbe original will. For tbe codicil and will together make but one instrument: 11 Sim. 216; Amb. 556; 1 P.Wms. 423; 2 Cox. 35; 4 Met. 63; 4 Barr, 377; 2 Mar. 128.
    Tbe cases cited on tbe other side are where there were express words, confining tbe right to participate to tbe legatees named in tbe body of tbe will. But all doubt is removed by the express republication of tbe whole instrument, including previous codicils, as one will. The specific legatees are also entitled (7 Yes. 392), but not tbe devisees; for it is only “legatees” who are by tbe will to share, and the devisees are not described: Ward on Leg. 1; Bouv. Die. Devise. A lapse of their devise would not increase this residue: 3 Whart. 477; nor can the executors take it: 6 Barr, 435; 2 Yes. jun. 230.

      S. Lewis, for Mrs. Pomeroy and her children.
    Tbe death of her husband lias removed the disability, and heiice she may take absolutely: 3 Wh. 62. He also took tbe same positions as have been stated, with respect to her and her children’s rights to have the stock legacies, wbicb are deficient by reason of a sale by the testator, made up. •

      Gerhard, F. W. Subbell, and J. Sergeant, for tbe widow and legatees in the original will and tbe executors.
    Tbe executors only desire protection in paying oyer Mrs. Pomeroy’s legacy; it is not hers absolutely, but devised over.
    1. The stock legacies failed because the testator had it not, and because they were adeemed by a sale. The codicil of November merely confirms them, as if therein copied: it was not present to the testator; and can it be supposed that by these words he would make an exception to his otherwise uniform intent, and hazard the payment of the legacies to his wife and mother, by giving $69,000 absolutely ? Clearly the confirmation only makes it' a part of the will, and the charge is on so much of stock as shall remain; it is to have the same effect, he says, “ as if they were herein stated.”
    The words, “this is a distinct legacy,” only refer to that one given to Cleemann; if to the whole, it yet more strongly determines the specific nature of the legacy.
    2. The $5,000 legacies are clearly conditional, on his having omitted a provision for the family there provided for. Such a provision is found in the bequests to his aunt, the mother of the family, and to certain members of it, her children.
    3. The argument is based on the technical rule, that codicils form a part of the will; and this is true under certain circumstances, but does not apply where testator is speaking of legatees in the “will,” which is the instrument, and is distinguished from “testament,” which includes will and codicils: 2Yes. 242; Belt’s Sup. 333. In 13 Yes. 379, this was applied; and legacies by an unattested codicil were held not to be charged on the land, under a clause charging all legacies “hereby given.” So where the residue was divided among legatees “ in proportion to the legacies bequeathed by this my will:” IMer. 22; and where it was given among “ my before-mentioned legatees, in proportion to their legacies hereinbefore given:” 9 Sim. 515.
    The general rule contended for does not prevail where an opposite intent is manifest, but the will and codicils are treated as distinct instruments: 2 Beav. 95; 3 lb. 450; 2II. Bl. 213. Now the whole testament strongly indicates this intent. By the will, the estate was disposed of; as it increased, certain definite portions are taken out of the residue. Suppose there had been numerous lapsed legacies, the servants would have received large estates instead of small legacies as intended. It is clear then, that only the legatees named in the will, and those substituted for some of them, are entitled.
   Bell, J.

Was the court below right in decreeing that the codicil legatees are entitled to participate in the distribution of the testator’s residuary estate ? This was discussed as the leading question presented by these appeals, and I, therefore, propose first to consider it. In deciding it affirmatively, the auditor, whose reasoning appears to have been adopted by the Orphans’ Court, proceeded upon the ground that a codicil is in law considered as part of the will, and though an addition, yet forming-with it but one instrument. As a consequence of this principle, it is said the whole is to be regarded as having been published at the same moment of time, and, therefore, the provisions and general expressions of the will proper, are to be interpreted in connexion with, and as inclusive of the dispositions made by the codicil.

There can be no doubt that the making of a codicil operates as a new publication of the will to which it is attached, or has reference, and, as a general rule, the effect is to make the words of the will speak, in respect to the persons and things named in it, as from the date of the publication, just as though it had then been made for the first time. Thus it has been held in numerous cases, that a general charge of debts and legacies on the land of a testator, will include legacies given subsequently by codicil: Hannis v. Packer, Amb. 556 ; Brudenell v. Boughton, 2 Atk. 272; Cox v. Basset, 3 Ves. 163; Rooke v. Worrall, 11 Sim. 216; and a will discharging all debts operates to release a new debt incurred between the date of the will and the last codicil, though there be no reference to such debt, and no express words of republication: Coale v. Smith, 4 Barr, 377. This is a conclusion of law not to he contradicted by any supposed absence of intention on the part of the testator. But like every other general and artificial rule applied in the construction of wills, it gives way before an ascertained adverse intent. Where such actual intent appears, the will • and codicil will he treated as distinct instruments, in order to give it effect, though in legal contemplation they are regarded as one testament. This distinction is very clearly pointed out in Fuller v. Hooper, 2 Ves. sen.; Belt’s Supp. 333, where a testator gave legacies to all her nephews and nieces except those thereinafter named. She desired her executors to look upon all memoranda in her own hand, as parts, or a codicil to her will; and bequeathed the residue of. her estate to the children of her sister, E. J. By a codicil, she gave legacies to other nephews and nieces. It was held that the children of E. J., the residuary legatees under the will were excluded from the general legacies, but that the legatees under the codicil were not, and wore entitled to both. In deciding the case, Lord Hardwicke said — and his remarks are recommended by their good sense — “ A will is to be considered in two lights, as to the testament and the instrument. The testament is the result and effect in point of law, of what is the will; and that consists of all the parts, and a codicil is then a part of the will, all making but one testament: but it may be made at different times, and under different circumstances, and therefore there may be a different intention at making the one and the other. The instrument is that writing in which the will is contained : the testatrix here meant to refer to the instruinent, not to the testament, which takes in all the parts.”

This distinction, showing that though, for some purposes, a will and codicil are to be regarded as making but one testament, they will not be considered as a single instrument where a manifest intention requires otherwise, is observable in most, if not all, the cases. Of this, Bonner v. Bonner, 18 Ves. 879, may be regarded as a signal instance. It was the devise of the trust of a term to pay the several legacies “hereby given,” and “the several other legacies hereinafter bequeathed.” In a subsequent part of the will, a few small legacies were bequeathed, and afterwards, by a codicil unattested, reciting that the legacies given by the will to the testator’s daughters were not an adequate provision for them, he gave each of them a further legacy of 8007, “in addition to the said legacies given them, respectively, by his said will,” and ordered that the codicil should be taken as part of his will. The bill was to have the additional codicil legacies charged on the term, the personal estate being insufficient. For the daughters it was urged that in the construction of the trust of the term, the “ legacies hereinafter bequeathed” must be taken to mean in the whole will taken together, including the codicil, which is part of the will, and making it to speak at the subsequent date, the intention being to incorporate the legacies of 8007 with the former legacies, as the latter were given in addition, &c. For the defendants it was insisted the legacies given by the codicil were not charged; that the charge of the legacies “ hereby given,” must be understood already given, and the subsequent words “ hereinafter bequeathed,” must be intended bequeathed by the same instrument, by which were given some other legacies. And of this opinion was the lord chancellor, who regretted the construction he was obliged to adopt, as very unfortunate for the daughters; but he could not declare the codicil legacies to be charged on the land, saying, “ Here is not a general charge of legacies.” This was but following in the track of Masters v. Masters, 1 P. Wms. 422, where it was held that though a general charge of debts and legacies on land, in aid of the personal estate, will carry codicil legacies, though unattested, the rule is otherwise where the land is only particularly charged, as with legacies “hereby” or “ hereinafter given,” or “ above mentioned,” because the intention of the testator is otherwise. To the same effect, in principle, and for the same reason, is Henwood v. Overend, 1 Mer. 22 ; and Hall v. Severne, 9 Sim. 515. In the first of these, after several legacies, there was a gift of the residue “ to be divided among my legatees, in proportion to the legacies bequeathed by this my will." This was restricted to the general pecuniary legatees named in the will, in exclusion of legacies payable out of a specific fund in future; and of legacies given by codicil, though there was a direction that the codicil should be taken as part of the will. Sir William Grant, who ruled the case, thought it was governed by Bonner v. Bonner, saying, the words “ by this my will,” were full as strong as “ hereby” and “ hereafter,” as a restrictive phrase. In the last case I have adverted to, after pecuniary legacies to several persons, the testator directed his residue to be divided amongst “ my before-mentioned legatees in the proportion of their several legacies, heretofore given and bequeathed to them.” Afterwards, by a codicil, which he directed to be taken as part of his will, he gave pecuniary legacies to several persons, some of whom were legatees under the will, and declared that the several legacies mentioned in the codicil were given to the therein mentioned legatees, in addition to what he had given any of them by his will. It was held that none of the legatees under the codicil were entitled to share in the residue, in respect of their legacies under the codicil.

These adjudications, and others of a like character, show that questions like ours are questions of intention, as indicated by the language used. We are thus narrowed down to the inquiry, whether from the face of the will alone, or taken in connexion with the several codicils, an intent can be gathered to confine the distribution of the residue among the legatees named in the will proper ? It will scarce be denied, that on the 22d of October, 1829, the date of the original will, none others were contemplated by the testator. By the directions then penned, if the whole property to be left should exceed the sum of $168,000, the surplus was to be distributed among the different legatees then ascertained. This was a clear and undoubted bequest of the residue to them,, though conceived in terms somewdiat different from those usually employed to express residuary gifts. To these were given, in ascertained sums, what the testator conjectured to be the then value of his whole property as nearly as he could approximate it, and among them was also given, by a pro rata distribution, any excess of value he might die possessed of. Of this, each was to take in exact proportion to the sum specifically given, until the whole excess should be exhausted. Thus, Mrs. Alsop’s ascertained legacy was $50,000, and she was to have of the residue in the proportion this fixed sum bears to the supposed value of the whole property, and to the possible surplus, “ and so on with the others.” What others ? Those to whom pecuniary legacies had before been given, and in the same ascertained proportion. These, and these only, the testator had in his mind when providing for the distribution, and the exact sum given to each is the only standard furnished whereby to measure the several unequal divisions of the surplus. Now, surely, this is as plainly restrictive of the gift to those particular legatees as are the words “ hereby given,” and “ hereinafter bequeathed,” used in Bonner v. Bonner; “hereinafter named,” in Fuller v. Hopper; “ before-mentioned legatees,” in Hall v. Severne; “hereby bequeathed,” in Radburn v. Jarvis, 3 Beav. 450; and “ to be divided among my legatees in proportion to the legacies bequeathed by this my will,” in Henwood v. Overend. In all these cases, the decisions proceeded upon the ground that the residuary provision pointed to the legatees ascertained by the will; and there is certainly nothing in any of them to denote this more unerringly than the language of our will, properly understood. Indeed, the last cited differs from this but by the words “ by this my will;” and this difference, it seems to me, is more than supplied by the peculiarity of the directions used here. Of the residuary legatees, Mrs. Alsop is specially named, under the appellation “my wife.” Had the other legatees of the will proper been also specifically named, or otherwise specially pointed out as those who were to take the residue, there would have been no room for cavil. And yet this would have been no stronger evidence of intent than we have in the sentence, “my wife’s proportion being first to be established, which would give her $5,952.32, or thereabouts, and so on with the others. “My wife,” and “the others” form a class of persons just as certainly ascertainable as if the words, “ named in this my will,” had been added to the sentence. It is as restrictive and exclusive without as it would be with them.

Nor do I see anything in the codicils at all inconsistent with this view. With the exception of the substitution of Miss Sergeant and Mr. Cleemann for two of the primary legatees, which worked no alteration in the proportional distribution of the residue, the will remained untouched, in fact, until January, 1839, when specific things were devised and bequeathed to testator’s wife; and December, 1839, at which time a codicil was executed, giving to Charles it. Alsop f>10,000, “to be paid after the legacies to the testator’s wife and mother were paid.” The first of these gifts is expressed as “ in addition to the bequests already made in this my will to my wife Aimee,” and the second is said to be “in addition to the bequests herein made.” This language is easily accounted for from the fact that these codicils were endorsed on, or written in the margin of the original will; and it cannot fairly be taken as evidencing any desire felt by the testator to treat the codicils as being incorporated with and forming an integral part of the will, considered as an original instrument. But it is thought the preference, as to the time of payment, extended to the last-mentioned legacy: the direction to pay the stock legacies, without reference to the other bequests, immediately after' the discharge of debts, and ranking the legacies afresh by the codicil of November, 1840, indicates an intent to obliterate all distinction between the will and codicils, as distinct instruments. I cannot perceive how such an inference is legitimately to be deduced from these facts. The stock legacies are specific, and of course payable without reference to any other. The preference given to Charles B. Alsop is confined to him and to his particular bequest. It extends to nothing else"; and its only effect is pro tanto to disturb the order of payment prescribed for the ascertained legacies. It in nowise interferes with the residue. This is not distributable until all the other legacies are satisfied. We have here, as I think I have shown, a general intent manifested, that the first-named legatees should take the residue. To this is subsequently added a particular intent, in favour of the legatee Alsop. This particular intent must be so construed as, if possible, to reconcile it to the general intent; and in this I see not the least difficulty, in the absence of every adverse expression on the part of the testator. The words of the codicil give to the legatee $10,000. This is to be paid to him at a particular time, or in a particular order. But why should this increase the amount bequeathed to him ? The testator has not said it shall work such an effect, and it is not necessarily to be implied from anything that is said. Give to this legatee what the codicil says he shall have, and you leave the provisions of the will undisturbed. Ascribe to the codicil the occult addition claimed for it by the appellants, and you at once interfere with the primary intent evidenced by almost every line of the original instrument. I find no warrant for this in any rule of construction with wbicb I am acquainted. On the contrary, a codicil, which is but an addition to a will, is no revocation of it, except where it is inconsistent with it, or there be words of revocation, or a necessary implication: 4 Kent’s Com. 531. These remarks are applicable to all the addenda made to this will. The propriety of the conclusion to which they tend is vividly shown by the fact, that if the pretension of the codicil legatees be sustained, they would, as the codicils originally stood, take of the residue in the proportion which $359,850 bears to:$173,000. Such a result can scarcely be thought as within the contemplation of the testator. The certainty that it was not, is almost, if not altogether, established by a reference to the codicil of January, 1840, immediately preceding the final dispositions. By it, certain small gifts are made to three of his servants. Did he contemplate that these, too, should take a proportionate share of the residue — at that time greatly augmented, as he must have known ? It seems impossible to give credence to such a proposition. It is clear his only object, as to them, was to reward faithful service by the donation of a fixed sum of money, and nothing beyond. And yet, so far as language is expressive of design, they are put in the same category with the other codicil legatees, in respect of the residuum.

We are unable to discern anything in the codicil of November, 1840,- competent to shake our convictions upon this point. That part of it referred to for this purpose, is employed but to marshal the order of payment, beginning with the will, in which, in this respect, it makes no material alteration, and thence progressing through the codicils. But this is confined to the ascertained legacies. It professes not to intermeddle with the residue, and therefore contains nothing inconsistent with its primary disposition. Indeed, I think it perfectly apparent he had not this in his mind when this codicil was penned. His sole object was to give to certain persons certain sums, and to prescribe the order in which those sums should be paid. This he accomplished, but in doing so went not beyond a clear expression of the particular intent. In this there is no incongruity — nothing to mar the symmetry of the original scheme. It therefore falls within the principle already adverted to.

The general view I have taken is greatly strengthened by the fact that so late as 1840, the testator caused his will and all the codicils then at hand to be copied and republished; but not, as the counsel of Mrs. Riley argues, as a single, uncompounded instrument. On the contrary, he expressly declares the paper then published to be a copy of a will made by him in Philadelphia, on the 12th of October, 1829, “together with copies of sundry codicils affixed to the margin of said will, and perhaps on separate pieces of paper enclosed with said will,” and refers to certain other memoranda of bequests, not at the moment in his immediate possession. Now what is this but a solemn reiteration, in 1840, of his will, exactly as it stood in 1829, subject to all the legal consequences that then attached upon it, and of the various codicils, merely as addenda ? Nor is there anything in the formal words of republication contradictory of this. • They aver the whole to constitute the last will and testament, but expressly treat the different portions as distinct instruments. In this, it is but in accordance with the numerous eases in which is found an express direction to take the codicil as part of the will, but which, as we have seen, of itself works no alteration in its legal effect.

As, then, there is nothing in the various vhemoranda or codicils inconsistent with the primal disposition of the residue, and, certainly, nothing either expressly or by necessary implication repealing it, but, on the contrary, much to uphold and sustain it; we cannot concur with the decree below, letting in on the surplus fund all the codicil legatees. Our objection, however, is inapplicable to Miss Sergeant and Mr. Cleemann, so far as they are substituted for two of the original legatees. This substitution operates to subrogate them to all the rights of the partios first named.

It is, secondly, objected to the decree made by the Orphans Court, that it directs so much of the Cincinnati City stock bequeathed to Clarissa Pomeroy and others, as was adeemed or otherwise not in the possession of the testator at the time of his death, to be replaced for the benefit of the legatees. We think this objection is well founded. It is properly admitted, that, as originally given, these bequests wore specific, and so liable to a pro rata abatement in the event of a deficiency. This is conclusively shown by the cases cited on the argument, among which is our own determination in Blackstone v. Blackstone, 3 W. 335. But it is thought the codicil of November, 1840, confers upon these bequests a new quality, which protects them from the blighting influence of the ademption.

It is unquestionable that the republication of a will, either formally, or by annexing a codicil, will not restore specific legacies before adeemed, or otherwise not held by the testator. The power of restoration, is, however, sought to be attributed to the codicil of November, because of its confirmation of the imperfectly recollected memoranda of bequests made to the Pomeroy and Riley families, and the charge thereof on the testator’s estate. It is said this is a general and unrestricted charge, which invests these bequests with the character of general pecuniary legacies. But this position is founded in a misapprehension of the terms employed. The charge is not a general one. It is obvious that at the time this codicil was written, the testator’s memory on the subject of these bequests was vague and shadowy. He did not recollect the particulars. He was, therefore, unable to repeat them, as he had the other codicil legacies. Yet he rvas anxious to exclude the conclusion that his omission to do so was intended to wipe thorn entirely out. To prevent this, he makes reference to them, and confirms them in the same manner as if they were herein stated.” By this, nothing more was meant than that,they were to be regarded as if repeated in their original terms, in the same manner the other prior codicils were republished. This left them precisely where they stood before — specific legacies. To determine otherwise, might involve a gross violation of the preference so often and so emphatically given to the legacies bequeathed to the. wife and mother; for, by treating them as general pecuniary bequests, payment of their whole amount might be successfully claimed, at the expense of those who were evidently the first object of the testator’s bounty.

The remaining inquiry is, whether the respective legacies of $5,000, given to the members of the Riley family by the codicil of November, 1840, are cumulative, and not merely a repetition of the stock legacies just mentioned ? Not being able to refresh his memory by an inspection of the separate pieces-of paper upon which the codicils were written, the testator begins by stating he believed he had made further testamentary provisions in the memoranda before referred to, as being in his fire-proof or secretary, in Philadelphia, for the family of his aunt, Hannah Riley. He then proceeds, “ Should I not have done so, then I give and bequeath to each of her children (naming them) the sum of $5,000.” By the will proper, he had before bequeathed to Mrs. Riley the income of $9,000, and directed the principal sum to be apportioned, after her death, among her married and unmarried daughters. This must have been the antecedent referred to by the word “ further,” as used in the codicil; for, though not a provision for every member of Mrs. Riley’s family, it was the only testamentary gift to any of the family then before him. In speaking, therefore, of the other supposed bequest, of which he had not the memorandum, he necessarily had reference to the bequest in the will proper, in respect of which the other was a further provision. This proves, that in his apprehension a provision for the family did not necessarily include every of its members. Consequently, the omission of three of them in the bequest of the stock legacy, furnishes no sufficient reason for shutting it out as the “further provision” spoken of. If it be so — and notwithstanding the verbal criticisms to which it has been subjected, I see not how it can be successfully questioned — the condition upon which a legacy of §5,000 was to go to each of the Rileys, fails. It matters not that there is a diversity between the two latter provisions, in the sums to be paid, the mode and time of payment, and the number of persons to be benefited. It is sufficient to defeat the legacy of 1840, that a prior, further provision had been made, though admitted to be less advantageous to all the members of the family, than the later one.

In view of the partial failure of the stock bequests, the result of this construction may operate harshly. But the language is too plain to admit an alternative; and however we may regret it, we cannot help it.

But the last codicil sufficiently indicates an intent to give to each member of Mrs. Riley’s family; an intention "which, wo think, may be carried into effect without doing violence to the will, considered as a whole, or being driven to conjecture. By the stock bequest, no “ further provision” was made for Caroline Riley, Theodore Riley, and Mrs. Greenleaf; and they may, therefore, fairly be said to stand within the contingency contemplated by the testator, as giving title to §5,000 each. This is, perhaps, not literally the language of the will, but we think it is within its spirit. Properly interpreted, it may be taken to mean, “to those of the family for whom no further provision has been made, I give §5',000 each.” As I gather from the report of the auditors, the half-share in the house of Alsop & Co., bequeathed to Theodore Riley, by the codicil of July, 1840, was adeemed before the codicil of November, 1840, was made. Consequently, at that time, he was no further provided for; and from this it follows, there exists nothing to exclude him from participation in the last gift.

The legacies of §25,000, of which Mrs. Dana is to have the income during her life; of §15,000 for the use of Mrs. Clara Pomeroy; of §9,000 for the benefit of Mrs. Hannah Riley; and of $10,000 to be settled on tbe wife and children of C. R. Alsop, are directed to be securely invested for the uses of the respective trusts thus Created. This duty devolves upon the executors; and consequently that portion of the decree complained of in the sixth exception of Mrs. Aimee E. Alsop and others, is ill founded. • That exception is therefore overruled.

Decreed accordingly.


source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    The American Insurance Company v. Francia.
    To entitle the insured to recover for a total loss of a vessel, where the object insured continued to exist in specie, there must be an abandonment: Hence, where the jury found that the costs of repairing would so far exceed the value of the vessel when repaired, that no prudent man could doubt as to the propriety of selling the vessel under the circumstances, and that the sale was made under circumstances which rendered it legal, the insured are not entitled to recover for a total loss without an abandonment.
    In determining whether there has been a technical total loss of a vessel, her value in the port of necessity is the standard.
    The protest is admissible as part of the preliminary proof, though not made within twenty-four hours after reaching a port of safety: the rule in Fleming v. The Marine only excluding it in such case as evidence to the jury.
    The master is not bound to sacrifice his deck load before deviating from stress of weather to seek a port of refuge, unless the vessel was suffering from over-lading. And then, Query.

    In determining the master’s right to sell, it seems that the rule two-thirds new for old is not applied in ascertaining whether the vessel has been damaged to more than half her value.
    The omission in the declaration to aver a refusal by the underwriters to pay, cannot be taken advantage of after verdict — and so of the omission to aver that thirty days had elapsed after proof of loss before suit brought, where the policy provided for payment at such time.
    Surveys, when proved by the parties making them, are admissible as evidence, though made at the instance of the captain and by persons nominated by him.
    The objection that a commission issued on a shorter notice than is required by the rules of court, is waived by filing cross interrogatories.
    In error from the District Court of Philadelphia.

      Dec. 15, 16. This was an action on a policy on a vessel valued at $2,500, to recover for a total loss.
    The vessel was insured from Spain to the United States. The deck load consisted of certain quarter casks of wine stowed in the long boat amidships. On her voyage, having encountered storms by which her mainmast was sprung and other injuries suffered, the captain bore away for ■ St. Thomas. It was proved that on his arrival there surveys were made, and the estimated cost of repairs was $1,390, while the value of the vessel when repaired, was estimated at 1,000. The probable cost of repairs and value of the vessel were proved according to these estimates by the surveyors, examined under a commission. Pursuant to the advice of the surveyors, the captain sold the vessel for $460.
    Upon receiving information of these facts, notice was given to the underwriters, but no abandonment was made in due time (as was ruled in the court below).
    His honour, Sharswood, Á, instructed the jury, that if the vessel had received an injury, the master was not bound to throw over his deck load before making for a port of safety, unless the vessel was suffering from no other cause but overlading. That where there was an actual total loss, there was no necessity for an abandonment; and the same rule prevailed where the sale was made by the master in a port of necessity under such circumstances as rendered it legal. There was no spes recuperandi in such ease, but a total loss, with a salvage of some portion of the subject insured. If, therefore, the cost' of repairs would certainly so far exceed her value when repaired that no reasonable man could doubt as to the propriety of selling under the circumstances, it was a total loss without the necessity of abandonment. That the value of the ship was her general value at the time and place where estimated, since the master and those he consulted had no means of judging of her value elsewhere; and the cost of repairs should be estimated at their actual amount, without deducting one-third new for old. If the jury thought under the instructions there was no necessity for a sale, then the plaintiff could recover only for a partial loss, viz: the cost of repairs, allowing one-third new for old.
    The exceptions to evidence .were: A commission was admitted which had issued on ten days’ notice — the rule of court requiring fifteen — but the defendant had filed cross interrogatories. The admission of the surveys by persons nominated by the captain. These were however proved by the surveyors under a commission, and referred to in their answers. The learned judge told the jury these would not have been admissible but for such proof.
    In admitting evidence that the protest had been presented as part of the preliminary proofs: the objection was that it had not been made within twenty-four hours after reaching St. Thomas.
    Beside the errors assigned in the charge, the exceptions to the pleadings were: 1. There was no allegation of a refusal to pay on the part of the defendant. 2. There was no averment that preliminary proof was made, and that thirty days had elapsed before suit brought. By the terms of the policy the loss was payable thirty days after proof and adjustment.

      F. W. Hubbell and .Bawle, for the plaintiff in error.
    The court has decided, in 3 W. & S. 144, that a protest is irregular and not evidence unless made within twenty-four hours after arrival; hence it was inadmissible to show compliance with the rule requiring it as part of the preliminary proof: 2 Phil, on Ins. 511.
    To admit a survey as evidence, it must have been by persons appointed by a court of admiralty or a public functionary having authority, or at the instance of the party against whom it is offered: 2 W. C. C. R. 375; 1 Phil. 405; 7 Wheat. 613; 10 Ib. 411.
    The master was not justified in deviating until every other means for prosecuting his voyage had failed; the obvious course was to try the effect of lightening the vessel of her deck load.
    The rule two-thirds new for old is inflexible in all cases of technical total loss: 2 Cain. Cas. 153; 15 Wend. 453; 11 Pick. 96; 11 Mass. 253: 12 Pick. 284; 16 Ib. 304-12; 7 Ib. 259; 14 Ib. 141; 2 Phil, on Ins. 277-8; 4 Cow. 245; 3 Wend. 658; 21 Pick. 456; 20 Wend. 300.' Taking then the valuation in the policy, which is the agreement of the parties, and applying this rule, there was not a technical total loss proved; that is, the cost would not have exceeded half the value. That this valuation is the standard is obviously necessary, for in many ports of refuge there is no market at all for vessels. It is assumed as the standard in 16 Pick. 312; 4 Wend. 55; 7 Cow. 564; 2 Cain. Ca. 153; 21 Pick. 482; 21 Ib. 456; 20 Wend. 287. But if this be not the standard, certainly the general market must be looked to; not any desert island or coast where she may have been driven.
    It was said there was no need of an abandonment if the sale was necessary. But the right to contest that sale with the purchaser is the very object of an abandonment. The true rule is, if the thing exists in specie — if it continues a ship — then an abandonment is necessary : 3 Kent, 320. The expense of repairs and the fact of sale make no difference: 15 East, 16 ; 2 Phil, on Ins. 234-39-40; Parke, 281; Ib. Hilly, ed. 400, n.; 5 M. & Sel. 47; 18 John. 212. This spes recuperandi must be ceded: 2 Phil. 231; 1 M. & Bob. 116; 14 East, 465; Holt, 423.
    The narr. should have averred that thirty days had elapsed after proof: 2 Phil. 643.

      Wain and Meredith, contra.
    The survey need not be ordered by a court of admiralty, it may be ordered by the consul, or by a person selected by the master; the effect of the report depends upon the competency of the surveyors, and their good faith in making it: 3 Sum. 42. The case in 2 W. C. O. 375, turned on the admissibility in evidence of a report of surveyors, and it was rejected because the surveyors were not examined. The competency of the surveyors, as depending upon the power authorizing them, was not touched in the case. 7 Wheat. 613 ; 10 Ib. 411, turned on “ the rotten clause,” and the only question in them, was, what kind of survey was a “regular survey” to satisfy this covenant in the policy.
    The protest was presented to the office with the other preliminary proof. It was not offered or admitted as evidence to the jury, but simply as one of the usual documents exhibited to the underwriters to inform them of the details of the loss, and one whose absence is suspicious: 2 Phil, on Ins. 511; 4 Mass. 88; 7 John. 315; 3 Binn. 826 ; 2 Dall. 284.
    The question as to the deviation is settled by the finding of the jury that the deviation was justified by necessity. But the law is since pronounced by this court in 7 Barr, 223, that it is no defence to an action on a marine risk, that the loss is occasioned by the negligence of the master.
    As to the rule two-thirds new for old, it is difficult to understand why, when the vessel does not, in her repaired condition, come to the possession of the assured, he should be charged with a benefit from which he can derive no advantage. The reason of the rule is, that the assured is to be charged with the one-third, because he is supposed to receive his vessel improved to that extent by the substitution of new materials for the half-worn old ones. But the reason ceases in a case of total loss, and where she goes from the control of the assured: 3 Mason, 73.
    The question as to the standard of value has been perplexed by inconsistent decisions, in some of our sister states. If treated as a rule of practical conduct, and tested by the principles of reason, there can be no difficulty. The value in the policy is a value agreed upon as fixing the amount of insurable interest of the assured at the beginning of the voyage. It is the sum which will, in case of loss, furnish him with indemnity. In it are included Beamen’s wages, outfits of the.voyage, premium of insurance, &c. It is thus fixed to furnish a standard of indemnity, and for none other. But to make this value, at the beginning of the voyage, the criterion for the roaster to decide by, whether he shall repair, when the voyage is half ended, and at a port of necessity, where the repairs exceed half her value there, is to apply a rule which, in the nature of things, is entirely inapplicable and intended for a different purpose. If the value of the vessel is to be ascertained by the market at one place, and the expense of repairing her by the price of labour and cost of materials at another, it is measuring values which are incommensurable. In some cases, such a rule will authorize an abandonment where the injury is less than 50 per cent., and in others will destroy the right where it is more: 2 Bur. 1169. It will involve the necessity of the master being influenced by the market for vessels and the cost of repairs at some neighbouring port, when he cannot get away from the port of necessity without repairs. The only question for the master to ascertain is, the amount of injury to his vessel; and that he must ascertain where he is, and his vessel is — the port of necessity. If he cannot get his vessel away from the port of necessity without repairing her, it is plain that he must repair there, or abandon; and being thus obliged, her value there, and the cost of repairs there, and there only, must regulate his conduct. She is deteriorated by a long voyage — in an India voyage, equal to one-third her value — ■ in hull and rigging; by wear and tear; by consumption of stores; and, finally, by the direct action of a peril insured against; is crippled and driven to a port of necessity, and reduced, by all these agencies, to half or one-fourth the value at the outset of the voyage! And at this period of her disasters, you are asked to say that her value in the policy — the value before she encountered any of the perils, or suffered any injury or deterioration, is to be the standard to estimate her losses. But suppose the policy is an open one; what is the master to decide by then ? or if, as was the fact in the case in hand, and is the fact in a great majority of insurances, the policy is effected while the vessel is at sea, when the master is necessarily ignorant of insurance having been effected. Any other rule than the one contended for, viz: the value at the port of necessity, must involve difficulties insurmountable, and set insurers and assured afloat upon a sea of troubles and speculation: 3 Mason, 68; 5 Pet. 604; 12 Ib. 398. Independently of the reason of the rule, it is of great moment, in a commercial nation, that there should be consistency of decision on all questions of commercial law (7 Barr, 230); which of itself strongly recommends the decisions of the Supreme Court of the United States to the adoption by this court.

      It is also alleged for error, that the judge charged that no abandonment was necessary. But the jury have found that the sale by the master was a legal sale, and justified by necessity: the title then of the wreck passed to the purchaser; there was no property left in the assured to abandon to the underwriter, and a cession would have been an idle formality. It is a total loss with salvage of part, to the value of the proceeds of the sale' of the brig, with which the jury have credited the underwriters in the verdict, and there can be nothing to abandon. To whatever use the purchaser may choose to apply the “ congeries of planks” composing the hull, can make no difference if the sale was legal. Subsequent application of the wreck cannot affect the question of abandonment. Whether for fire-wood or as a brig, she is still as much beyond the
    control of the assured as if she had gone down at sea: Roux v. Salvador, 3 Bing. N. C. 266, reversing the decision of the S. C.; same case in the C. P. 1 Bing. N. C. 526 ; 2 Pick. 261; 2 John. 155 ; 8 John. 246; 15 East. 15; 2 Dall. 284.
    The objections that there are errors in the declaration are unsound. Mr. Phillips, it is true, says, 2 Vol. 643, that “there are no decisions on the point of averment of compliance with these terms in the policy,” but it is submitted that 12 Wheat. 397, 5 Cra. 100, are to the point. If not, however, the omissions were cured by the second trial on the merits, if not by the first: 5 W. & S. 529; 4 Wh. 498; 7 Barr, 301.

      Jan. 8.
   Gibson, C. J.

The exceptions to evidence are unfounded. The objection to the commission to New York, that it issued on ten days’ notice, was obviated by the filing of cross interrogatories, which has always been held equivalent to appearance, and a waiver of time or notice. The objection that the commission to St. Thomas was executed by a court acting under authority from the Danish government, is unfounded in fact. Being joint and several, it was well executed by one of the commissioners named in it; and that the authority of the court here was recognised by the local authority there, neither impaired nor superseded it. The exception to Swift’s deposition is not better founded. The account of disbursements for the brig, and the account of sales of tíer apparel and hull, proved by his testimony, involved no hearsay or secondary evidence. The surveys might have been incompetent as independent documents; but as the facts contained in them were proved by the testimony of those who made them, they were admissible as parts of the res gestee. Had they not been produced, the defendant might have founded a troublesome argument on their absence. So, too, of the protest as one of the preliminary proofs of loss. In Fleming v. The Marine Insurance, we certainly laid a strong hand on protests, as proof, under the idiosyncrasy of our system, of facts before a jury; not, however, to affect them as preliminary proofs. The rule for the latter is so liberally expounded as to require only the best evidence in the possession o'f the assured as reasonable information to enable the underwriters to form an estimate of their liability for the loss. Were it not that the cause is to go to another jury, these exceptions would not be particularly noticed.

It is found in the verdict that the deviation to seek a port of safety was justified by necessity; and primé facie that would dispose of the exceptions to the charge that there was no deviation, if the master acted from the best of his judgment and from good motives. But it is argued that he was bound, before seeking a port of necessity, to sacrifice his deck load to save the rest; and that had he done so, the vessel might have reached her port of destination. The weight of authority is, that the jettison of the deck load gives the owner of it no title to contribution, and no action against the master for bad stowage if it were the usage of the trade thus to carry such articles; but I know of no rule which requires the master to sacrifice them in the first instance. Where they pay their proportion of the premium and freight, and the custom of the trade is not to stow them below, it is hard to see why they do not stand on the footing of every other part of the cargo. When the crew have left a sinking ship, it is certainly not the law that the steerage ¡passengers are the first to be cast into the sea when it is necessary to lighten the boats. As to contribution, however, the-American cases establish a different principle, and we are bound by it; but the argument of Yalin for it — that a deck load impedes the navigation of the ship — though it might be a reason for getting rid of it in a case of necessity, is no reason, because it is peculiarly conducive to the general safety to disencumber the ship of it, that it should not be proportionately paid for. In this instance the loss would not have been compensated; and for that very reason the master was not bound to sacrifice an unprotected property, in ease of those whose property was protected by the right of contribution. But there is no reason to think the brig would have survived the perils of the sea even without her deck load; and if there was room for apprehension, it was not the duty of the master to make the experiment. As the matter rested on his discretion, the assured would not be affected by a mistake in the exercise of it, unless it were so gross as to be evidence of incapacity or mala fides.

It is assigned for error that the jury were instructed “ that one-third, new for old, was not to be deducted from the estimated amount of repairs, in computing whether the needed repairs would have exceeded half the vessel’s value when repaired.” It is difficult to see what that had to do with the master’s right to sell. In the case of a partial loss, the damage is calculated on the expense of repairs where the owner chooses to repair; where he does not, it is calculated on the best data that can be had. But where the ship has been actually repaired, her value being greater than it was before the disaster, by the replacement of old timbers and materials with new, the owner must contribute to the expense in proportion to the benefit, and, according to the usage, as one to two. But even if the rule were applicable to a technical total loss, it would be unnecessary to apply it here; for, independent of all other considerations, it seems to be settled by authority that the plaintiff can recover for no more than an average loss for want of seasonable notice of abandonment.

It is not pretended that the notice was in time; but there is plausibility in the argument that it was not necessary. It is said, that if the sale by the master was no more than a wholesome exercise of his discretion under the circumstances, there was a total loss of the title ; and that though the brig afterwards existed as a vessel gone from the control.of the assured, there was nothing to abandon. On the other hand, it is asserted that the right to contest the validity of the sale with the master or his vendee, ought to have been ceded as a thing of appreciable value, like the spes recuperandi between capture and condemnation. But, replies the assured, even that is extinguished by sentence of condemnation, which passes the title; and as the validity of the sale must be maintained by the assured, the fact can as well be tried in an action on the policy, as it can he tried in an action against the master and his vendee. Whatever force there may he in these arguments, it seems to be settled by^jlecisiv,e_w.eight of authority, that in every case of insurance -on the ship or cargo, though perhaps not on freight, when the master has sold the thing insured, there must be an abandonment, to avoid the conclusion that the assured has elected to go for a partial loss. It is said, that if any part of the property survive the peril, as in ease of shipwreck, without a total destruction of it; or that, if any claims springing from the ownership of it remain to the assured, they must not bo retained, but ceded as a foundation to recover the whole. Most of the English authorities have been collected by Chief Justice Tindal, in the comparatively modern case of Roux v. Salvador; and from their express bearing, in opposition to Cambridge v. Anderton, 2 B. & C. 691, he concluded that an abandonment was necessary in that case, which was in principle identical with the case before us. The hides, when sold, were rapidly becoming a loathsome mass of putrefaction; and' if ever the master’s right to sell was incontestable, it was in that case. If contestable, it could have been tried in the action on the policy there as well as it could be tried in the action on the policy here; but Chief Justice Tindal introduced a new element into the discussion, which seems to be of commanding influence. “For as the assured,” said he, “in no case is bound to consider the loss a total loss, but may always take to what is saved, and recover for an average loss; if it is to be held that abandonment is unnecessary where there has been a sale, the underwriter can have no certainty as to his rights or liabilities before the assured determines his election by bringing the action for a total loss. This uncertainty of itself, and if no other consequence follows, is highly prejudicial to the underwriter. It may be further prejudicial in its direct consequences; agents may fail, in whose hands the proceeds are left; and, still further, the right of the underwriters to dispute the validity of the sale, with the purchaser of the ship or cargo, upon the ground of fraud, might, by the intervention of time, be impaired or entirely defeated.” I am at a loss to see how'this argument can be refuted. In reversing the judgment, in ■ the Exchequer Chamber, Lord Abinger, who delivered the opinion of the court, did not attempt to refute it; and we are at liberty to.give more weight, on.principle, to the judgment of the Common Pleas, accordant as it is with the judgments of the state courts of our Union, and the general course of the British courts, than to the judgment of the Superior Court in England. He assumed what cannot be maintained, that the underwriters cannot be prejudiced by a protracted ignorance of the responsibility they have to meet, or of the course they have to pursue. The conclusion drawn by Chief Justice Tindal, is sustained by Martin v. Crokatt, 14 East, 465, and Bell v. Nixon, 1 Holt, 423— cases posterior or not cited by him. Idle v. The Royal Exchange Insurance has been thought to bear the other way; but the insurance was on freight which was entirely lost by the breaking up of the voyage; and there was consequently nothing to abandon. The American cases generally fall in with the current. The authorities were examined by Chief Justice Shaw, in Smith v. The Manufacturers’ Insurance Company (7 Met. 449), who laid down the rule that in every case like the present, an abandonment is necessary. Such, too, is the rule of Pierce v. The Ocean Insurance Company, 18 Pick. 91; Cohen v. The Insurance Company, Dudley, S. C. 147, and The American Insurance Company v. Ogden, 15 Wend. 532; while we have to the contrary, only Gordon v. The Insurance Company (2 Pick. 249), said to have been recognised by Mr. Justice Thompson, 5 Pet. 604. It was said, in the American Insurance v. Ogden, that the right to abandon does not in all cases depend upon the amount of damage, hut exists in all cases where the ship is gone from the.control of the assured; where the voyage is broken up, and where a sale of the ship has become necessary for the benefit of all concerned.” The master had sold the vessel at auction because she was without indispensable repairs, which he had not means to procure; and it was held, that the assured might abandon and recover for a total loss; which certainly implies that he could else have recovered only for a partial loss. In Watson v. The North American Insurance, 1 Binn. 47, our own court held that the assured might recover, without abandonment, for an average loss after sentence of condemnation, leaving the jury to estimate and deduct the value of the chance of reversal and restoration of the property; but in Brown v. The Phoenix, 4 Binn. 445, the Chief Justice and Mr. Justice Bracken-ridge seem to have been disposed to carry the necessity of abandonment as far as it is at present proposed to do.

The exceptions to the declaration are unfounded, and every point not particularly noticed, was properly disposed of.

Judgment reversed, and a venire de novo awarded.


author: Rogers, J.

text:
    Mott v. Clark.
    The assignee of a mortgagee takes subject to the equities of the mortgagor, but not as to latent equities of cestuis que trust of the mortgagor or other persons.
    Where one holding under a secret trust had conveyed to his cestui que trust, and then mortgaged to one having notice of that conveyance, an assignee of a bond fide assignee of the mortgage whose assignment was not registered, is not affected by the registry of the conveyance to the cestui que trust after the date of the first assignment and before the second; nor is he affected with notice to the mortgagee of the trust and conveyance.
    The assignee of a bond or other chose in action is only liable to secret equities of the obligor or debtor. The assignee of a mortgage is not bound, under the recording acts, to register Ms assignment.
    In ejectment by an assignee of a, mortgagee against a stranger, the mortgagor is a competent witness for defendant to prove notice to the mortgagor that part of the land did not belong to him, and was by mistake included in the mortgage.
    The value of the property purchased at sheriff’s sale cannot be proved in an ejectment by the purchaser to affect his title.
    If a mortgagee purchasing at a sheriff’s sale, which does not divest the mortgage, retain the price; so much as is payable to prior liens cannot be considered as applied to the payment of the mortgage, even though six years have elapsed since the sale.

      Dec. 18. This was an ejectment to recover a moiety of two pieces of land, one moiety of which plaintiff was in possession of.
    The main question arose out of the following facts: — In 1820 John Clark obtained the title by a sheriff’s deed to the whole property ; but in fact he was trustee for his father, Yinson Clark, for a moiety. In 1821 John conveyed this moiety to Yinson Clark, the defendant, hut the deed was not registered until 1836.
    In 1831, John Clark mortgaged the whole property to Broad-head, the mortgage being registered in November. But according to the verdict Broadhead had notice, at and before the date of this mortgage, of the real extent of John Clark’s title, and of the deed to Y. Clark.
    In 1832, Broadhead, by deed which was never registered, assigned the bond and mortgage to Johnson, who had no notice of V. Clark’s title.
    In 1835, there was a judgment recovered by Johnson’on another cause of action against John Clark, under which the whole of the property in question was, in 1837, sold and conveyed by the sheriff to Johnson. But at this sale notice was given of Yinson Clark’s title to the moiety.
    In 1844, Johnson conveyed to the plaintiff, who, it was assumed, had notice of Y. Clark’s title, and in 1845 he assigned him the mortgage. On the accompanying bond judgment had been entered in 1832. Whether this was assigned or not, could not he gathered from the hill of exceptions.
    Under these circumstances the defendant contended that the sheriff’s sale having passed hut a moiety, on account of the notice given by Y. Clark, the plaintiff’s right under the mortgage was postponed: 1. Because of the notice to the mortgagee of the state of the title. 2. Because the assignment was not registered before Yinson Clark’s deed was. 8. Because the mortgage merged in plaintiff’s title under the sheriff’s deed.

      On this point the court (Jessup, P. J.) instructed the jury, that if Broadhead had notice of Y. Clark’s deed, plaintiff was bound by it.
    The other exceptions were as follows: 1. The court permitted defendant to read the proceedings under the judgment on the bond whereby other property had been sold to Johnson subsequently to his pinchase of the property in question. 2. They permitted defendant to examine John Clark, to prove notice to Broadhead of the title and deed to Y. Clark, and that this moiety of the land was included by mistake. 3. They also permitted defendant to prove that Johnson at the sheriff’s sale gave but the value of a moiety of the premises. 4. The defendants had shown several judgments against J. Clark, prior to that under which plaintiff purchased — which were liens — and that no purchase-money was paid by him to the sheriff. The court told the jury that if plaintiff held under the mortgage only, then the amount of his bid, which was applicable to other creditors on their liens who had acquiesced, should be applied to the payment of the mortgage debt.
    The case w'as argued December 22-8, 1847, and now re-argued on the effect of the notice to Broadhead of Yinson Clarke’s title, by

      Reeder, for plaintiff in error.
    The evidence in the first bill was irrelevant. 2. Clark was interested to pay the mortgage debt, the verdict would be evidence for him as a privy. [Bell, J. — For privies in estate, but not as to his personal liability.] 3. Whether he made a good bargain, was irrelevant and dangerous, by producing a false sympathy. 4. The sheriff is liable to the other lien-creditors if he improperly permitted the purchaser to retain the bid. But the main question is on the effect of the notice and the recording- acts. If, in a contest between two assignees, the recording act can have no operation because the assignment is not “a conveyance of, and concerning lands, or whereby the same may in any way be affected,” as was- shown in 4 Raw. 257, the same reasoning will show that under this act a subsequent registered mortgage would not postpone a prior un-registered mortgage; and yet the same section of the act shows such a mortgage will postpone a prior unregistered deed. By the act, the instruments to be postponed are conveyances affecting lands, and the persons who are to postpone, are purchasers or mortgagees. If, therefore, the recording acts are to have any bearing, it must be by treating assignees as purchasers or mortgagees. But here there is no conflict. When the mortgage was registered, it created a distinct title, purchasers of ■which were not hound by the settled rule of this court (7' W. 382, 5 Raw. 51) to examine the registry for matters subsequent in date, except for conveyances under the mortgagee himself. ' As respects titles derived from the mortgagor, those conveyances which were duly registered to charge the mortgagee at that time need only be examined. Hence, Mott was not affected by the subsequent registry of defendant’s deed, though prior in date. And he is clearly entitled to the benefit of want of notice by Johnson: Sug. on,Yend. 729.
    To what extent is he then affected by the personal notice to the mortgagee ? The authorities are clear that he is bound by the equities of the mortgagor, but not by latent equities of third persons: 4 Ves. 118, and Am. n.; 1 Pow. on Mortg.; 3 Ib. 904; 2 Cow. 247; 2 J. C. R. 443; Ib. 479; 6 Ib. 417; 3 Yeat. 351.

      J. M. Porter, contra.
    1. The evidence was part of the record shown by plaintiff, and it also showed a partial payment of the instrument under which he claims. 3. Whether he was a bond fide purchaser is to be shown by the amount he paid: 5 W. 538. 4. The claim against the sheriff is barred by the act of limitations: 5 Barr, 285.
    It is settled by 5 W. & S. 49, and other cases, that under the act of 1775, the subsequent purchaser registering his deed is preferred before a prior purchaser of the fee: if he is within the registry acts, then he is postponed by these decisions; if he is not, then those acts afford him no protection. Unless, therefore, the assignee of a mortgagee is in a higher position, he will be postponed. But he is clearly not; on the contrary, the cases clearly show him to be but a lien-creditor, whose title or right passes with the bond. 17 S. & R. 400, 3 Pa. 379, 4 R. 257, show this, and hence it follows, that like the assignee of any other bond, he is in no better situation than his assignor. Lancaster v. Dolan merely decided he is a purchaser within the 27 Eliz. But supposing his mortgage to exist as a lien, then it merged in the fee purchased at the sheriff’s sale, and could not subsequently be revived. The furthest that the cases have gone, is to say it may depend on an intention not to merge; but by his conveyance to Mott, and the covenant from the words grant, bargain, and sell, there was an election by him to treat the mortgage as merged.

      Reply.

    If Johnson had acquired the estate by the sheriff’s sale this would apply; but this verdict has shown that he never did purchase defendant’s moiety. How then can this doctrine prevail ? Surely the mere acquisition of the legal title will not merge the trustees’ security or lien on the equitable title. It never yet has been decided that where the legal and equitable estates are in different persons, merger must take place, contrary to the interest of the trustee, or without a clear intent expressed by him. But here the title of Y. Clark being registered before'the sheriff’s sale, Johnson did not acquire any title thereto, but on the supposition that deed was fraudulent, which it was not, according to the verdict: as to that, the requisites to merger are therefore wanting.

      Jan. 3.
   Rogers, J.

(after stating the two titles under the mortgage and the sheriff’s sale.) — Either of the titles as above stated would entitle the plaintiff to a verdict. But the defendants contend the plaintiff cannot recover because Thomas Clark, on the 5th January, 18^1, conveyed an undivided half of the premises (being the property in dispute) to his father, Yinson Clark. That this deed was acknowledged on the day of its date, and was recorded May 1st, 182|. The deed being recorded before the sheriff’s sale, and moreover Y. Clark'having given notice at the sale, the court properly instructed the jury that the purchaser at the sheriff’s sale obtained no title unless the deed from John Clark to Y. Clark was fraudulent. The jury decided that it was a bond fide conveyance. There is therefore an end to the title grounded on the sheriff’s deed.

Has then the plaintiff, the assignee of Broadhead, a title under the mortgage ? — and this is a principal point in this case. The mortgage to Broadhead was recorded 28th November, 1831, but the deed from J. Clark to Y. Clark, although prior in date, was not recorded until May 1st, 1836. And this would be decisive of the case; but the defendant replies, that although his deed is recorded upwards of five years, after the entry of the mortgage, he is not to be postponed, because the mortgaged had actual notice of the conveyance of a moiety of the property by John Clark, to his father, Y. Clark. The fact of notice was properly left by the court to the jury, who found that the mortgagee had notice. But in answer, the plaintiff contends that admitting this to be so, he is an assignee without notice, and however it may be as between the mortgagee and third persons, he takes the property discharged of all equities of which he had no knowledge. The question, therefore, is (granting he had no notice, which is undoubted), does the assignee stand in the same or a better position than the mortgagee ? On this point the court instructed the jury, that the assignment of a mortgage is not so within the recording acts, as to give the assignee protection against an unrecorded deed, of which the mortgagee had full notice. That a mortgagee is a purchaser within the statute of frauds, is ruled in Lancaster v. Dolan, 1 Raw. 245, on the authority of Chapman v. Emery, Cowp. 278. Now it has been repeatedly ruled, that although a purchaser has notice of an equitable claim, by which his conscience is affected, yet a person purchasing from him bond fide, and without notice of the right, will not be bound by it. So a person having notice of an equitable claim may safely purchase of a person who bought bond fide, and without notice. These positions are elementary, and are fully sustained by the authorities cited. If, therefore, a mortgagee is to be considered on the footing of a purchaser, it would seem to follow that .an assignee without notice takes the property discharged of a latent equity, if any existed. These cases, although analogous, are not expressly in point, but the case of an assignee of a bond and mortgage is expressly ruled in Livingston v. Dean, 2 J. C. R. 479. He takes it subject to all the equity of the mortgagor, but not to the latent equity of a third person. To subject Mm to such an equity he must have express or constructive notice at the time of the assignment. It is a general and well settléd principle, says the chancellor,-in Murray v. Lylburn, 2 J. C. R. 443, that the assignee of a chose in action takes it subject to the same equity it was subject to in the hands of the assignee: 2 Vern. 691-765; 1 Pr. Wms. 497; 1 Ves. 122; 4 Ves. 118. But this rule is generally understood to mean the equity residing in the original obligor or debtor, and not an equity residing in some third person against the assignor. He takes it subject to all the equity of the obligor, say the judges in the very elaborately arguedcase of Morton v. Rose, 2 Wash. 283, on this very point, touching the rights of the assignee of a bond. The assignee can always go to the debtor and ascertain what claims he may have against the bond or other chose in action, which he is about purchasing from the obligor; but he may not be able, with the utmost diligence, to ascertain the latent equity of some third person against the obligee. He has not any object to which he can direct Ms inquiries, and for this reason the claim of the assignee, without notice of a chose in action, in the late case of Redfearn v. Ferrier, 1 Dow, 50, was preferred to that of a party setting up a secret equity against the assignor. Lord Eldon observed, in that ease, that if it were not to be so, no assignment could ever be taken with safety. It would be utterly impossible to guard against combination by the mortgagor and mortgagee, particularly with the aid of the owner of the latent equity. If Y. Clark, the owner as he alleges of the moiety, loses his property, it is his own laches, for it was his duty to put his deed on record as notice of his title. Having neglected his duty, he is postponed to the mortgagee, who is a purchaser within the statute of frauds. At law his title is available against the owner, who neglected to put his deed on record. The assignee stands in the position of the mortgagee so far as regards the legal title, but stands, as the authorities evidently show, unaffected with an equity of which he had no knowledge or possibility of knowledge, and against which it would be impossible for him, with the most careful diligence, to guard himself. If he had notice of the outstanding equity, he would be in the same position as the mortgagee, and equity in such case would relieve the owner of the estate, notwithstanding his neglect. The principle on which courts of equity act, is that actual notice is equivalent to constructive notice derived from the registry of the deed. The intention of the acts requiring deeds to be recorded, was to secure subsequent purchasers and mortgagees against prior secret conveyances and fraudulent encumbrances; and therefore when a person has notice of a prior conveyance, it is not a secret conveyance by which he can be prejudiced;, for he can be in no danger where he knows of another encumbrance, because then he might have stopped his hand from proceeding, and therefore is not the person whom the statute meant to relieve. The court of chancery affords relief, because it is against equity for him to protect himself by his legal title when he had express notice of a prior conveyance or encumbrance. But it is evident this must be personal to'the mortgagee, and cannot affect his innocent assignee. Why should an innocent assignee be deprived of the benefit of the legal title, in favour of a person who, by his neglect to put his deed on record, has put it in the power of the mortgagee to perpetrate a fraud ? It is an invariable principle of equity, that where one of two innocent persons must suffer, he who is the cause of the loss must bear it. But it is contended Jeromus Johnson is postponed, because he did not put his deed or assignment' on record until after Y. Clark’s deed was recorded. In Lightner v. Mooney, 10 W. 407; Ebner v. Goundie, 5 W. & S. 49; Goundie v. Water Co. 7 Barr, 233, it is ruled, under our statute, that where there are two deeds of conveyance of different dates, neither of which is recorded within six months, that which is first recorded will take priority. And this would be conclusive, but for the answer that the assignee is not hound to register his assignment, and is in no default, as is conclusively shown by Mr. Justice Kennedy in Craft v. Webster, 4 R. 254. The learned judge, after an able review of the point, comes to the following conclusion:— “ Having shown that an assignment of a mortgage is not a conveyance of and concerning land, whereby the same may be in any way affected in law or equity (which are the words of the recording act), it is not necessary that it should be recorded, as required by that act, to give it validity against a subsequent assignment made by the mortgagee to a third person for valuable consideration, without notice of the first. If the first assignment were in writing, proved and recorded, the recording would afford the assignee no additional protection against a claim under a subsequent assignment.”

This is the principal point in the case; but as it goes down for another trial, it becomes necessary briefly to notice the other exceptions. We cannot see the relevancy of testimony as admitted in the first bill, because it was the sale of other property with no connexion that we can perceive with this case, unless it should appear to be for the same debt; in which case, the proceeds of sale would be applicable to the payment of the mortgage. 2d. We cannot see what interest J. Clarke has in the controversy. He is not directly interested in the event, nor would a verdict and judgment in this case be evidence in any suit to which he may be a party. There has been nothing exhibited to us to show that he has an interest to have the mortgage extinguished by the rents. So far as appears, if he has any interest, it is to prove that the mortgagor has been paid, as perhaps, in that event, it might render him liable to an action at the suit of the assignee. The evidence contained in the third bill was improperly admitted, for the value of the property in dispute has nothing to do with the issue, and is only calculated to perplex the minds of the jury, by exciting an impression that Johnson had made an advantageous bargain. That Johnson paid only the one-half of the value of the property, after the notice of V. Clark at the sheriff’s sale, cannot affect his title' to the property, and ought not to have the slightest weight in the determination of this case.

There is no error in proving that Johnson received the benefit of the whole proceeds of the sheriff’s sale, by retaining it on account of his mortgage. The effect of the evidence will depend on other circumstances. For if there was a surplus over and above the liens against the estate, the mortgagor would have the right to apply that surplus to the extinguishment of the mortgage. But if there was no surplus but money applicable to judgment-creditors, which has been misapplied, they are the persons who, having been injured, have alone the right to complain. The sheriff would be answerable to the creditors, and Johnson would be answerable to the sheriff, and nothing but an express contract or agreement would protect them. The court, therefore, did injustice to the plaintiff in charging the jury that this money having been received by Johnson for Clark’s property, and not accounted for by him to other creditors, and they having acquiesced therein, should now be applied by the jury, to cancel, so far as it goes, the indebtedness of John Clark to Johnson. Admitting the fact that Johnson received money which he has not accounted for to the other creditors, yet there is no evidence of any agreement by the creditors that the money should be misapplied. If so, they have their remedy against Johnson, and not the mortgagor; and the court had no right to expose Johnson to the risk of paying the money not only to the mortgagor, but to the creditors also.

I refrain from noticing the question of merger, because it forms no part of the case now before the court. It will be'time enough to decide when it properly arises.

Judgment reversed, and a venire de novo awarded.


text:
    Scott v. Horn.
    Where the plaintiff declares on a guaranty of a sealed internment, the seal must be proved, or there will be a variance.
    Evidence taken under a commission is inadmissible, unless there be a return by the commissioner showing the execution.
    In error from the Common Pleas of Carbon.

      Deo. 19. Assumpsit on a guaranty of a sealed post-note of the Northampton Bank. The plaintiff’s witnesses were unable to identify the seal, because of the faintness of the impression; but the court admitted the note in evidence, after proof of defendant’s guaranty endorsed thereon.
    The cashier of the bank, when examined by the defendant, testified to the regularity of the execution of the instrument, which on its face purported to be sealed with the corporate seal of the bank, and was signed by the president and cashier.
    The court also rejected evidence taken under a, commission to New York, offered by defendant. It appeared that the rule was taken by defendant, but tbe commission purported to issue on tbe part of the plaintiff. Nor was there any return by the commissioner further than his name signed at the end; the envelope also was lost, and there was no evidence when or how it came into the office.
    Brown, for plaintiff in error,
    contended that the seal of a corporation must be proved as laid, to avoid a variance, and that the presumption of regularity in favour of the acts of a public officer cured the defect in the commission; and cited Boseoe Ev. 19; 1 Stark Ev. 222; 1 Greenl. Ev. § 40.

      Boeder, contrd.

      Dec. 26.
   Rogers, J.

It is a rule of pleading and evidence, that the allegata and probata must agree. If, therefore, the plaintiff, as here, declares on a sealed instrument, alleging it to be sealed with the seal of the bank, he cannot give in evidence a note signed by the officers of the bank without any seal attached to it. This" is clear; and the doubt is, whether the instrument offered in evidence was of the former or latter description. Preliminary to offering testimony, the plaintiff proved the handwriting of the president and cashier of the bank. He then offered the note. [Here his honour stated it.] The payments and a guaranty by Horn are endorsed upon it. In addition, it appears on the back of the note there is a seal; but the impression is so faintly made, that without attending circumstances, it is difficult to say whether it is the seal of the bank. If there had been nothing more, it would have been error in the court to have withheld the evidefice from the jury; for there are facts tending at least to prove the due execution of the instrument, and from which a jury might very well presume it had been executed in proper form. Sigfried v. Levan, 6 S. & R. 308; Berks v. Myers, Ib. 12, are authorities on this point. In McCorkle v. Binns, 5 Binn. 348, and the Commissioners v. Ross, 3 Ib. 539, it is ruled that the court may of themselves decide whether a paper offered in evidence is sufficiently proved, or they may leave it to the jury to determine the sufficiency of proof, with a direction not to consider it of any validity unless satisfied that it is proved. But what removes all doubt on this point is the testimony of George Heck, the cashier. He says the plaintiff and defendant came into the Northampton Bank, with about |150 of the notes of the bank, which they wanted redeemed. The president of the bank then proposed giving a post-note, payable in four months, for the amount; which Scott agreed to take, being the note of the bank, with the corporate seal, for $750. The money was left with Horn until the board met, when the said note was duly executed, and sent to Horn by mail. This corresponds so exactly with the note offered in evidence, that there is no reasonable doubt it is the same instrument; and it certainly is proof, and, connected with the impression on the note, very strong proof, that the seal of the corporation was affixed to the note.

The second exception is, that the court erred in excluding the deposition of Rice, taken under a commission to New York. There are great irregularities in issuing and in the execution of the commission. The commission is to take evidence on hehalf of Scott, the interrogatories are to take evidence on behalf of Horn. The caption for the examination of all and every person. These blunders no doubt were made by the prothonotary, and are clerical; but whether these would be sufficient objections to receiving the deposition, we need not decide, as the exception is conclusive that there is no return of the execution of the commission of any kind. All we have is, that it was in the office of the prothonotary, but how it came there we are not informed. In Nussear v. Arnold, 13 S. & R. 323, it is ruled that it is a sufficient execution of a commission to take depositions, if the commissioners annex their names to the depositions, and the envelope is sealed. And that is a relaxation of the rule, and is going far enough. But it is taken for granted there must be some return by the commissioner. In Bailis v. Cochran, 2 John. 417, it is ruled that in a return to a commission issued to examine witnesses abroad, the commissioner ought to certify that the evidence was taken under oath upon the interrogatories annexed to the commission, and that they caused such examination to be reduced to writing. This decision was made on the statutes of New York, but the general principles asserted by the court are applicable here. There ought to be some other authentication of the depositions beyond the names of the commissioners at the bottom. They should return that the commission was executed, and the manner of executing it ought not to be left to conjecture. It might load to great abuse to admit a deposition on a loose return, or, as here, on no return at all.

Judgment affirmed.