author: Gibson, C. J.

text:
    Murphy v. Hubert.
    Under the Pennsylvania statute of frauds, an equitable estate cannot be conveyed without written evidence, or possession taken in part performance: but it may be created by verbal agreement of the grantee in an absolute deed.

    In error from the District Court of Philadelphia.

      March 16. Hubert, Butler and wife brought ejectment and showed title in Samuel Murray, and a deed from him, in 1819, to Delia Chase, who was the wife of Butler. Hubert had a deed for one-half the premises, from Butler and wife, in 1841.
    The defendant was in possession under a conveyance from the children of Samuel Murray, who was dead, and the question was, the admissibility of the parol testimony to prove a trust in the conveyance by Murray to Delia Chase. For this purpose, he proved the statements by Delia, which appeared to have been made in the presence of her husband, that her brother, (Samuel Murray,) had given her this property when in debt, and about to take the benefit of the insolvent laws ; that he thought she had a better right to it than his creditors. The same witness said — she said it was conveyed to her to secure it for himself and his children; and she had paid nothing for it. Another witness said that she stated : at the time her- brother conveyed it to her, on account of his difficulties, she had given him a bond to pay $800, in case any thing should happen to the property before it came to the children, and that she had made over the property to him and received the bond back ■ — it did not appear her husband was present at this time. Another witness said she had stated: she bought the property from her brother who was in debt, and after he was out of trouble, he had refunded the money. Another, that she said: it was her’s for her lifetime, and afterwards was to go to his children.
    Both plaintiff and defendant gave evidence of collection of rents, and payments of taxes and ground-rents, and both had occupied parts of the premises conveyed by the deed.
    His honour, Findlay, J., instructed the jury that the Statute of Frauds requires all trusts, interests, or estates in land, to be put in writing, except such as arose by operation of law. That the trust set up was not of that kind, since there was no evidence that the conveyance was made on her promise to hold it in trust. He, therefore, directed them to exclude from their consideration all oral declarations of trust.
    This was the only question material in the ease.

      JSirst, for plaintiff in error,
    argued that so much of the British statute as required trusts to be evidenced by writing, was not in force, but they might be proved as at common law by parol, and that the uncertainty of the evidence was not sufficient to withdraw the case from the jury.. He cited, Thompson v. White, 1 Dall. 427; Miller v. Pearce, 6 Watts & Serg. 97; Esbach v. Zimmerman, 2 Barr, 313; Baker v. Williamson, 4 Barr, 463; Stewart v. Brown, 2 Serg. & Rawle, 461; Mitchell v. Kintzer, 5 Barr, 217; Syler v. Eckhart, 1 Binn. 378; Miller v. Hower, 2 Rawle, 55; Billington v. Welsh, 5 Binn. 129; Clark v. Vankirk, 14 Serg & Rawle, 355; Hoge v. Hoge, 1 Watts, 213; Lewin on Trusts, 89; Sheriff v. Neal, 6 Watts, 540; Gaullaher v. Gaullaher, 5 Watts, 200; Peebles v. Reading, 8 Serg. & Rawle, 484.

      Zantzinger and ClarJcson, contó, made two points.
    1st. That the British statute was virtually in force under the decisions of the court, which refused to recognise a trust not proved by writing, without fraud, or the payment of the price by the alleged cestui que trust. 2d. That if a parol trust could be established against a formal conveyance, it must be by clear and certain evidence; 8 Serg. & Rawle, 492. That in this case,, the varying statements rendered it impossible to say what the trust was* or for whom, or whether there was some consideration which had been refunded. On the first point, they cited, Church v. Church, 4 Yeates, 280; Gregory’s Lessee v. Setter, 1 Dall. 193; German v. Gabbald, 3 Binn. 302; Wallace v. Duffield, 2 Serg. & Rawle, 521; Peebles v. Reading, 8 Serg. & Rawle, 492; Wither’s Appeal, 14 Serg. & Rawle, 185; 1 Johns. Ch. Reps. 582; Bottsford v. Burr, 2 Johns. C. Rep. 409; Gibblehouse v. Stong, 3 Rawle, 439; Kisler v. Kisler, 2 Watts, 323; Sidle v. Walters, 5 Watts, 389; Robertson v. Robertson, 9 Watts, 32; Leshey v. Gardner, 3 Watts & Serg. 314; Jackman v. Ringland, 4 Watts & Serg. 149; Sample v. Coulson, 9 Watts & Serg. 62.

      March 27.

       It seems that a verbal agreement by a grantee in a deed made with a third person to hold in trust for him, when the grantee himself has paid the purchase-money, cannot be enforced, This was decided in Jackman v. Ringland, 4 Watts & Serg. 149, and Sample v. Coulson, 9 Watts & Serg. 62. The distinction, between those cases and the present one is, that in the latter there was no direct evidence of payment of the purchase-money by the grantee, unless, perhaps, by the recital in tiro deed, and even that was not on the paper-book — and the agreement was also made with the grantor, which, though by parol, has always been held sufficient in Pennsylvania to turn a deed absolute on its face into a mortgage. ... '

   Gibson, C. J.

A careful examination of the cases in our reports has led me to nothing but a few loose dicta which could give colour to the doctrine that 'a parol declaration of trust is within our statutes of frauds. The principal one is in Wither’s Appeal, where Mr. Justice Duncan said, that though the seventh section of the English statute is omitted in our act, the substance of it is comprehended in our first section, which declares that no interest in land, “ whether in law or equity," shall pass by parol; and that no trusts, but those that result by implication of law, are within the exceptions to it: yet he had, in Peebles v. Reading, quoted, with approbation, the remark of Chief Justice Tilghman, in German v. Gabbald, that the provisions of our act apply rather to legal than to equitable estates; and he laid much stress on the omission of the seventh section of the English statute, which, he justly remarked, could not be imputed to accident. Iiis dicta in the two cases — for in neither was a decision of the point called for —cannot be reconciled. That the first three sections of the English statute, forming by consolidation the first in our act, are applicable exclusively to legal estates, is demonstrable by the fact, that trusts were specifically provided for in the omitted section, though these sections, like our own section, contain the clause, “ in law or equity,” on which the opposite hypothesis is founded. The obvious design of it was, to prevent an equitable estate from being transferred, and the design of the seventh section was to prevent a trust estate from being created by parol. To be convinced of this, it is necessary only to compare the first and seventh sections side by side. What,' then, do we gather from our own statute in which the seventh is omitted ? Beyond a doubt, an equitable estate in Pennsylvania, such as the interest of a vendee, by articles of agreement, eannot be conveyed by parol without part execution by delivery of possessionand this, by force of the statute in question; for the recording acts do not make registry essential to the validity of a conveyance: but it is a different thing to control the creation of a parol declaration of a trust. Now all this was known to the transcriber of the adopted sections of the English statute; for. it is evident from the masterly manner in which they were consolidated by him, that he was a lawyer of no little skill: and why was the seventh section, with several others, omitted ? Certainly, to prevent its provisions from becoming the law of the land; and -how can we make them the law of the land on the face of such a demonstration of legislative intention ? Our decisions in support of resulting trusts are founded on an assumption that we dare not; for as such trusts are excepted in England only by force of the eighth section, which is also omitted, it would follow that, if the creation of parol trusts is forbidden by our statute, there would be no exception at all to it, because we would look into it in vain for a sentence on the subject. No clause in it could b.e tortured into a provision for implied estates, but the concluding one which declares that, “no leases, estates, or interests, either of freehold or terms of years, or any uncertain interest of, in, to, or out of, any messuages, manors, lands, tenements, or hereditaments, shall, at any time, be assigned granted, or surrendered, unless by deed or note in writing, signed by the party so assigning, granting, or surrendering the same, and their agents thereto lawfully authorized by writing, or by act and operation of law.” But the last words relate not to the creation of trusts, but to leases, which may be surrendered by act and operation of law. As was intimated in Pugh v. Good, 3 Watts & Serg. 56, much misconception has arisen by looking into the English statute, and the decisions upon it, and not exclusively to our own. Perhaps no decision has declared in words that an express parol declaration of trust is valid in Pennsylvania; but all the decisions in support of implied trusts have gone on a principle which extends equally to them. Had the substance of the seventh section been adopted by the courts here, it might have been considered as a peculiar part of our common law; but the current of judicial decision has undoubtedly swept the other way. As to the point before us, there is neither difficulty nor doubt; but the direction as to the other points seems to have been unexceptionable.

Judgment reversed, and a venire de novo awarded.


source: Caselaw Access Project

author: Burnside, J.

license: Public Domain

text:
    Keil v. Wolf.
    A judgment confessed by an executor to A. & B.his wife, for the sole and separate use of B., is prima fade evidence that the debt was due to the feme covert, and hence within the saving clause of the act of 1797.
    Certificate from the Nisi Prius.

      March 18. The question in this case was, whether the judgment, under which the sheriff’s sale was made, was a lien on the land — the other points having, by the decision of that point, become immaterial. The plaintiff claimed in ejectment under John Miller as his admr. de bonis non. By his will in 1805, Miller had devised half of his estate to his brother and sisters, and the residue “ to my wife; if she shall marry again, to dispose thereof as she may think fit.” He further authorized his executors to sell the land at the death or intermarriage of his wife for the purposes of making partition, and appointed his wife, Catherine, and two others, executors. The testator died in 1813.
    The defendant claimed under a judgment in 1822, confessed in an amicable action, wherein the plaintiffs were “ John Ulrick and Mary his wife, for the sole and separate use of the said Mary,” against Catherine and another, surviving executors of John Miller, the testator. This judgment was revived by sci. fa. and the property sold to Wolf, the defendant, in 1825.
    : He proved that John and Mary Ulrick, then a widow, were married in 1800; and that, shortly before the death of John Miller, Mary Ulrick had lent him money, and was also the holder of a note endorsed by him for a loan to one Rinker. This evidence was objected to because it had not been shown that she had a separate estate.
    The purchase-money was shown to have been distributed by the court.
    His honour, Burnside, J., instructed the jury that, if this was the debt of Mary Ulrick, she being a feme covert, it was within the exception of the act of 1797. That the form of the action was some evidence of that fact, and, as her husband had so treated it on the record, in the absence of fraud and of all other evidence, they were bound to treat it as her debt.

      Brightly, for plaintiff in error.
    The act of 1797 declares that no debt due by a decedent shall be a lien on his land unless an action was commenced within seven years. The construction, as settled by the court, is, that the right of satisfaction is gone: Bailey v. Bowman, 6 Watts & Serg. 118; Seitzinger v. Fisher, 1 Watts & Serg. 293. It is true there is a reservation of debts due femes covert. But there was really no evidence of that fact here. The parol testimony proved she loaned the money; but it became a debt due to the husband. Her possession prior to the loan was his, and there is no pretence of a settlement. The mere form of naming the plaintiffs amounts to nothing, as that could not create a new right, and to hold it evidence of a prior right is to enable executors to defraud the estate at pleasure.

      Mann, contra.
    Fraud is not to be presumed, nor was there any occasion for it; for the settled rule at that day was, that the lien only was gone, not the right of satisfaction: Bruch v. Lantz 2 Rawle, 392. Besides, who was she defrauding ? .She had .a fee-simple in one-half of the estate, contingent, if not absolute, and a life-estate certainly.
    These facts are most material, and, taking them in connection with the proof of a loan by the wife and the action in her name, it is not too much, at this late day, to throw the burden of disproving the presumption from the record upon the party now seeking to avoid so ancient a sheriff’s sale.

      March 28.
   Burnside, J.

In this judgment, both parties claimed under John George Miller. His last will and testament was duly proved on the 20th of May, 1813. The material question in the case arises on bills of exceptions to evidence to shovr that Mrs. Ulrick, a feme covert, was the bona fide owner of the judgment on which the property was sold to the defendant; and on the plaintiff’s prayer for instructions to the jury that the sheriff’s sale was void, and did not pass the estate of Miller to Wolf, the defendant.

The amicable confession of judgment was on the 27th March, 1822, by Catherine Miller, surviving executrix, and John Adolph, surviving executor of John George Miller, to John Ulrick and Mary, his wife, for the sole and separate use of the said Mary in the sum of $1424 44. On this judgment, the property in question was levied and sold by the sheriff of the city and county of Philadelphia to Wolf, the defendant, on the 5th October, for $8155, and a deed duly acknowledged on the 18th of October, 1825. The money was ruled into court, an auditor appointed, and distribution duly made. There was some evidence that the heirs in Germany recovered the balance of the purchase-money after the satisfaction of the judgments against the estate; but that point is rendered immaterial, as the plaintiff rested his case in the Nisi Prius, on the point that the debt under which the land was sold had ceased to be a lien on the premises in the hands of the executors, by virtue of the fourth section of the act of the 5th April, 1797, 3 Smith’s Laws, 298, and relied on the case of Bailey v. Bowman, as conclusive in his favour.

The counsel of the defendant relied as well on the heirs in Germany recovering the proceeds of the sale as the proviso to the section before recited: that is, provided always “ That a debt due and owing to a person, who at the time of the decease of such debtor is a feme covert, shall remain a lien on the said lands and tenements, (notwithstanding the said term bo expired,) until four years, after discoverture. Evidence was given of the marriage of John Ulrick, widower, with Mary Warner, widow, on the 6th March, 1800. Ulrick was living w'hen the judgment was obtained,

Elizabeth Gladding gave evidence, to which exceptions were taken on the trial, that she knew7 Mary Warner — she had three husbands; that Mrs. Ulrick lent money to Mr. Miller when he was going to build; she was at Miller’s house the day he took sick; she deposited the money with him for safe-keeping, being afraid of robbers. Miller said he took the money and bought the ground-rent ; said he might as well pay the interest to her as the ground-rent to the landlord. The ground-rent was shown to be extinguished on the 8fch April, 1813. It was further offered to prove the declarations of the executrix, Catherine Miller, who was a devisee, as to her late husband borrowing the money from Mrs. Ulrich, to which the plaintiff excepted. The witness stated Mr. Miller had borrowed money from Mrs. Ulrich to build the house. She did not hnow the amount. When he, Miller, had made up the money to pay it, Captain Rutter wanted to borrow it; Mrs. Ulrich was not willing to lend him the money. Mrs. Miller said Captain Rutter gave his note to Mrs. Ulrich, and Miller endorsed it. These two debts were unpaid when Miller died, and the house was sold for them. Mrs. Miller lived in the house after her husband’s death.

These points were answered together, and the jury instructed that the proviso in the act of 1797 did not designate any particular hind of debt due to a feme covert. All debts and claims of a feme covert were protected from the limitation, as if the act had never been passed, until the exception in their favour ran out. That the husband, as well as the record, treated the proceeding as if it was her debt; the form of the action was some presumption of that fact. The court sees no error either in admitting the evidence of Mrs. Gladding, or in the’answers of the court to the points. ■

We must bear in mind that this was an old transaction; all the parties to it are dead. The creditors of John Ulrich are complaining. The evidence was clear that John Ulrich never reduced this money into possession, or the evidence of it. We recognise the principle in Pennsylvania that a married woman may acquire a separate property in money or chattels, either by the gift of a stranger or of her husband: Rogers v. Fales, 5 Barr, 157. Such gift must not be made at the expense of creditors. It has been held that, when a wife having real and personal property married, and some days after the marriage the husband gave her a certificate stating he had borrowed of her a certain sum, for which he promised to pay her interest annually, in a case between the wife and the representatives of the husband, this paper furnished sufficient evidence that he held the money as trustee for the wife, and not in his own right: 5 Whart. 138.

These points being decided against the plaintiff, he is left without a foot to stand upon.

The.judgment is affirmed.


author: Coulter, J.

text:
    Depue v. Place.
    To permit a signature to be shown to the jury, as a test paper, its genuineness must be directly proved. Hence a number of returns to writs signed by defendant as constable cannot be used for that purpose, where tho witness from whose office they issued was unable to identify any particular one which he had seen defendant sign, though he believed them all to be genuine, and had received them as such from the defendant or his messenger.
    On a question of the genuineness of a note, the plaintiff’s allegations that defendant had given it to him in payment of a particular kind of lumber having been proved by defendant, he may prove the falsity of such declarations.
    In error from the Common Pleas of Pike.

      March 20. Depue brought an action to the use of M. Depue, on a note alleged to have been signed by Place. The defendant alleged the signature was a forgery. The note at the time suit was brought belonged to the legal plaintiff, and his varying declarations of the consideration for the note and the mode he obtained it were proved, hut whether made after suit brought, and consequently after the transfer of the note, could not he ascertained from the paper hook, and the refusal to rule them out was the first exception. Among other things he said it was given for cherry and curled maple lumber purchased by the defendant. The defendant examined a witness to show he never did purchase so much of that kind of lumber at any one time; this was the second exception.
    The plaintiff called a justice of the peace, who stated Place had served as constable in his office. He then produced twenty returns to writs signed “William Place,” and said he had no doubt he had seen Place sign some of these; they were handed in and received as returns: but he was unable to specify any particular one which he had seen him sign. He believed there were none of them but were signed and returned by Place personally, or sent by him to the office.
    The plaintiff then offered the returns in evidence, but they were rejected, and this constitutes the third and only material error assigned.
    Reeder, for plaintiff in error.
    The rule does not require that the test-paper should have been written in the presence of the witness, but simply that there should be positive proof of its genuineness. Here the documents were official, believed to be genuine, many of them signed in the presence of the magistrate. There could be no doubt the jury would consider them genuine, and to them the question must be referred at last.
    Porter, contra.
    The test-paper was sufficiently proved to allow it to go to the jury, had the question been on that, but to furnish a comparison the party must have a paper admitted to be genuine, or produce one directly proved to have been signed by the defendant: Farmers v. Whitehill, 10 Serg. & Rawle, 112. In McCorkle v. Binns, 5 Binn. 349, a comparison of types of a paper of a different date was rejected, and it was held the newspaper must be proved to have been purchased at the office. The degree of proof must, it seems, be left to the discretion of the court: 1 Greenl. Ev. § 579, 582; Baker v. Haines, 6 Whart. 284.

      March 26.
   Coulter, J.

There are four bills of exception to evidence, which involve none of the arcana or mysteries of this profession, or any recondite principles of law, but on which quite a galaxy of cases have been brought to bear.

The proposition with which the plaintiff commences is true, unquestionably true, viz. that the declarations of the payee in a note are not evidence after he has parted with his interest so as to prejudice. But then it is.indispensable to establish that the declarations were made after the transfer. In the case before us, there was some evidence that the declarations in the bill of exceptions were made after the payee had parted with his interest, but there was much stronger evidence that they were made before the transfer. As a matter of course, therefore, these declarations were referred to the proper tribunal — the jury. The court would not have excluded them without falling into error. If the learned counsel had requested the court to instruct the jury, that if the declarations were made after the transfer of the note by the payee, of which they were the arbiters, such declarations could not legally prejudice the holder, the court would doubtless have done so.

The evidence covered by the second bill of exceptions, and which was excepted to by the plaintiff, was undoubtedly pertinent and relative; it was directly responsive to the allegations of plaintiff, and conduced to prove that the occasion of giving the'note and the alleged consideration for it, as averred by Benjamin Depue, were questionable and colourable fabrications. The testimony was properly admitted.

The third bill of exceptions has the most seeming in it. The allegation by the defendant was that the note was false and simulated. The plaintiff offered to prove by a justice of the peace that the defendant was a constable, who had done business at his office, and brought to the office returns on twenty executions and summonses, which he thought were signed by defendant. He saw him sign some of the returns; couldn’t say which, and believed they were all signed by him; that he had seen him write and knew his signature. The papers were then offered, to prove the signature to the note, by a comparison with the signature to the returns, and the court rejected the returns as evidence.

There is no doubt but that comparsion of handwriting is one mode of authenticating a signature, but it is an uncertain, dangerous, and questionable mode, and only to be used or relied upon in aid and as ancillary to more direct evidence: 10 Serg. & Rawle, 110; 5 Bin. 349. When the identity of any thing is fully and certainly established, you may compare other things with it, which are doubtful, to ascertain whether they belong to the same class or not, but when both are doubtful and uncertain, comparison is not only useless as to any certain result, but clearly dangerous and more likely to bewilder than to instruct a jury. In Baker v. Haines, 6 Whart. 284, it was ruled by this court that the tost or standard paper must be established by evidence, that a person saw the party write the signature, or that the party had admitted the signature to be his. In the case at bar, the witness said he believed he had seen the party sign some of the returns, but which he could not say. If he could not tell, it would be asking rather too much from the court and jury to determine, upon their responsibility, which of them. The evidence offered was not within the rule, and was rightfully rejected.

The evidence covered by the next bill of exceptions was so clearly an offer to compromise and pay part, on account of the uncertainty, (as the party expressed it of the law,) and the vexation and trouble of mind incident to a lawsuit; was so clearly a proposition of compromise, and looks so little like an admission of any thing being due, that I am only surprised that it was brought up to this court for decision. The evidence was properly ruled out.

The last bill of exceptions embraces evidence similar to that .covered by the second bill of exceptions. There needs nothing to be said about it here, further than that there is nothing in it.

Judgment affirmed.


author: Per Curiam.

text:
    Richards v. Dutot.
    Under a judgment revived in Philadelphia county, in the Supreme Court, in 1827, a pi. vend. ex. issued to Northampton, to sell lands seised under a test. fi. fa. in 1806, and a sale was made to plaintiff’s agents; but the writs were not entered in the protlionotary’s office. Defendant moved to set aside the sale, and there the record ended. Defendant had given a mortgage between the date of the judgment and of the execution on which the sale was made, under which the tem-tcnants claimed as purchasers. The court refused to direct a deed to be acknowledged more than twenty years after the sale, there being no proof of payment of the purchase-money or perfection of the sale, and there being tem-tenmts purchasers for value, without notice of the proceedings.

      March 22. On the 17th April, at the last March Term, ¡Serrill, on behalf of the next of kin of Town, moved for a rule on the present sheriff of Northampton, to show cause why he should not acknowledge a deed to the heir at law of S. Richards, for the property sold to Richards, the plaintiff, under a pi. post pi. vend. ex. issued toDecember Term, 1827. Notice was directed to be given to the ter re-tenants. It appeared that in 1805 a judgment on an award was entered in favour of the administrators of Town, and in 1806 a test.fi. fa. issued to Northampton, on which the lands were condemned. In 1821, Richards was substituted as administrator. Various writs had been issued, and some sales made. In 1823 a sci. fa. to revive issued, and was tried; and a new trial having been refused, judgment was entered, March 30, 1827. A pi. post pi. ven. ex. then issued to December Term, 1827, to which the return was — sold (the property in question) to G. W. Esq., for plaintiff, S. Richards, for $600. In January, 1828, the counsel who had defended the case moved to set aside the sale on behalf of defendant. No further proceedings appeared on the record, and from the sheriff’s docket it did not appear that the costs had ever been settled; nor had any of the test. ex. been entered in the Common Pleas of Northampton.
    The terre-tenant also showed that in August, 1827, Dutot mort-. gaged the land to Biddle, to secure $1500. On the 5th December, 1827, he again mortgaged it for $2500. In 1832 there was a, sheriff’s sale of the land under the last mortgage; and there had been subsequent mortgages and sheriff’s sales. It was also shown that Biddle had procured searches in 1827, and the recorder’s certificate showed no lien existed but his first mortgage.

      Porter, for one of the terre-tenants, now showed cause.
    The undecided motion to set aside the sale -made twenty years ago, and the want of any proof of payment of the purchase-money, is a sufficient answer to this rule. He also argued that the lien of the executions was gone, and that Biddle’s mortgage was the first encumbrance, since the test. ex. were only liens from term to term, prior to the act of 1823; Cowden v. Brady, 8 Serg. & Rawle, 506; and that by'that act they were directed to be entered in the prothonotary’s offioe of the county where the lands lay. In consequence of that not being done, Biddle’s mortgage had the priority, and would have taken the purchase-money, since it was discharged by the sale: Willard v. Norris, 2 Rawle, 56. The probability therefore was, that the sale had not been complied with.

      P. Me Gall, eontrd.
    The court does not decide questions of title on these motions ; they must be tried hereafter in a regular manner : Field v. Earle, 4 Serg. & Rawle, 82. The motion to set aside the sale was abandoned, or must be so treated: Wilson’s Estate, 2 Barr, 327. As to the lien, it was perfected by the sale; and the proceedings until then were continuously prosecuted.
   Per Curiam.

The transactions in this case are too stale for the action of the court. Twenty years have elapsed since the last step was taken; and the matter would not have been suffered to rest, had it not been compromised by the parties. A venditioni had been issued, on which the sheriff had returned that he had sold the property to the attorney, for the use of his client, for the sum of six hundred dollars; whereupon the defendants moved to set aside the sale, and there all action on either side was suffered to stop. Now whether the money was actually paid, or whether the plaintiff abandoned his execution, which was more probable, as the money would have been taken by an older lien, we know not; but we do know that purchasers hav# intervened who had good cause to believe he had given the matter up; and as it would be unjust to disturb them, we decline to order the present sheriff to execute a deed.

Hule discharged.


author: Bell, J.

text:
    Schoneman v. Fegley.
    After appeal by defendants from an award in an action against them as endorsers, a count for goods sold, which was the consideration of the note, may be added. The testimony of a witness residing in another state, who is temporarily within this state, may be taken under a rule of court relating to going witnesses, and may be read, although his deposition has been subsequently taken under a commission.
    The promise of a partner, after the dissolution of the firm, to pay a note endorsed by the firm, of which no notice of dishonour had been given, does not bind the other partners.
    In a joint action, though one only is served with process, there can be no recovery unless a joint liability be shown.
    Foreign notary's protest, and certificate of notice to endorsers of a promissory note, is not by itself evidence of notice given.
    In error from the Common Pleas of Northampton.

      March 22. Assumpsit against Fegley and Goff, as endorsers of a note drawn by Vanhorn. After award for plaintiffs, 'defendants appealed. On the trial, plaintiffs, by leave, filed an additional count on a promise to pay the note; but the court rejected a new count for goods sold. The plaintiffs proved the sale of goods for which the note in question was given, and read a letter signed by Fegley, written after the maturity of the note, promising to pay it. But it appeared that at that time the firm of Fegley and Goff had been dissolved. It was said Fegley alone had been served with process. The court also rejected the depositions of A. Coryell,’ a notary of New Jersey, taken in Pennsylvania, under a rule of court as a going witness, which had been suppressed. The objection appeared to have been that the witness was a non-resident. They also rejected his notarial certificate of protest and notice to the endorsers. Plaintiffs then read his deposition, taken under a commission to New Jersey. The witness said he deposited the notice in a post-office, addressed to Fegley and Goff, but at what place he could not recollect; nor did it appear that any letter addressed to them at their place of business had gone through the post-office for two or three days after the protest.
    ' The court (Banks, P. J.) instructed the jury there was no evidence of notice to fix the defendants as endorsers, or to entitle plaintiffs to a recovery for goods sold.

      Jones and Porter, for plaintiffs in error.
    There was no new cause of action introduced by the proposed amendment, but merely a count on the original consideration: Caldwell v. Remington, 2 Whart. 132; Cunningham v. Day, 2 Serg. & Rawle, 1; Yohe v. Robertson, 2 Whart. 155; 4 Barr, 242; 5 Barr, 113; 6 Whart. 483. As to the protest, they cited Jenks v. Doylestown, 4 Watts & Serg. 510; Nichols v. Webb, 8 Wheat. 337; Stewart v. Allison, 6 Serg. & Rawle, 324; Etting v. Schuylkill Bank, 2 Barr, 357. The process being served on Fegley alone, his promise was sufficient to entitle us to a recovery: McLughan v. Bovard, 4 Watts, 308; Wells v. Masterman, 2 Esp. 731.

      Maxwell and Brown, contra.
    The original count was on an endorsement, and the change of action to the original consideration is entire: Tryon v. Miller, 1 Whart. 11; Reitzel v. Franklin, 5 Watts & Serg. 33; Winder v. Northampton, 2 Barr, 446. In 4 Barr, the original count was against the drawers: 3 Wash. C. C. R. 396. Coryell was a non-resident, and hence within the rule relating to commissions, and not that as to going witnesses. Besides, his testimony has been taken under a commission. The protest was not offered after Coryell’s testimony, but as independent evidence: Fitter v. Morris, 6 Whart. 406; Etting v. Schuylkill Bank, ut sup.; Mullen v. Morris, 2 Barr, 85. Notice of dishonour is absolutely necessary; and not having been given, the parties were discharged, and the promise after dissolution cannot affect the other partner’s rights: 8 Serg. & Rawle, 438; 16 Serg. & Rawle, 161; 8 Watts, 401; 16 Johns. 152; 11 Johns. 180; 12 Johns. 423; 1 Cow. 397.

      April 3.
   Bell, J.

The narr. originally filed is framed on the pi’omissory note endorsed by the defendants to the plaintiffs, in payment of goods sold by the latter to the former. Under this declaration the cause was arbitrated, and an award made in favour of the plaintiffs, from which the defendants appealed. On the trial, the court below refused to permit the plaintiffs to amend by adding a count for goods sold and delivered. In this there was error committed. Under the act of 1806, the courts of this state have properly manifested great liberality in permitting amendments of the pleadings in order to reach the merits of the case, the only restriction imposed upon a plaintiff being, that he shall not introduce an entirely new cause of action. Thus, in Tryon v. Miller, 1 Whart. 11, where the plaintiff declared in trover for a bond, after arbitration and award for plaintiff, from which defendant appealed, it was held the original narr. could not be withdrawn and replaced by another, counting on the conversion of certain instruments not under seal, because this would be to charge the defendant upon a totally new ground. To the same effect, and for the same reason, is Reitzel v. Franklin, 5 Watts & Serg. 33, where the plaintiff recovered, before arbitrators, for work and labour; and it was deemed error to permit, after appeal, the addition of a new count on a promissory note drawn by the defendant in favour of the plaintiff and another. Of this class is, also, Winder v. The Northampton Bank, 2 Barr, 446, where the first declaration was for a deceit, and, after award and appeal, it was determined the count in trover could not be added, for this was to be sustained by different evidence and on different principles. But in Cunningham v. Day, 2 Serg. & Rawle, 1, which was assumpsit for money had and received, the plaintiff was permitted, on the trial, to introduce new counts upon an exchange of horses, that being the original transaction between the parties. The court said the plaintiff shall not be permitted to introduce an entirely new cause of action under pretence of amendment. Having declared for slander, he shall not afterwards count for trover, or malicious prosecution, or libel. But if he adheres to the original cause of action, he may add a count substantially different from the first declaration; and whether he so adheres, the court can always judge. I have quoted these remarks because, as will presently be seen, they are precisely applicable to the ease in hand. In Caldwell v. Remington, 2 Whart. 132, the plaintiff originally declared in indebitatus assumpsit, with the common money counts, and afterwards he was permitted to add four additional counts; the first being on an alleged guaranty of a check cashed by the plaintiff; and the second, third, and fourth, on the defendant’s endorsement of the same check. But the very point in controversy was decided in Yohe v. Robertson, 2 Whart. 155, where the first narr. was on a promissory note. On the trial, and after the counsel had concluded their addresses to the jury, the plaintiff had leave to amend by filing new counts for goods sold and delivered, and money lent, as these may tend to remove an objection of informality to the recovery of the plaintiff, and were thus introductive of a new cause of action. If it be objected that in that case there was not, as there is here, an award appealed from by the defendant; the answer is, that can make no difference so long as there is no attempt to introduce new matter altogether distinct from the transaction originally set forth. Thus, in an action quare clausum fregit, et de bonis, ¿•e., after award, the court below refused permission to introduce a count for taking and carrying away the goods; and for this error the judgment was reversed; for it was said that, though, in legal contemplation, the breach of the close was the principal injury, the asportation of the goods was, in truth, the substantial cause of action; Insurance Company v. Spang, 5 Barr, 113. Now, it is very certain that, if the promissory note in question was not received in absolute satisfaction, but only as a conditional discharge of the original demand for goods sold, the*plaintiffs may recur to the original contract which was the consideration of the endorsement, and in proof of it give the note and endorsement in evidence, (Chitty on Bills, 593 et seq.; Burdick v. Green, 18 Johns. 14; Forney v. Benedict, 5 Barr, 228,) unless, indeed, they have been guilty of such laches in respect of demand and notice of non-payment, as will, in law, discharge the original indebtedness, (McLughan v. Bovard, 4 Watts, 308; Smith v. Wilson, Andr. 187,) a state of things the court had no right to anticipate on a preliminary motion to amend the pleadings. This, of itself, is sufficient to show that the original transaction which caused the negotiation of the note is not to be viewed as a distinct and independent cause of action, but as the basis upon which the acceptance of the note rests, without, however, being merged by it, unless, as already intimated, the acceptance was in absolute satisfaction of the prior indebtedness. In this aspect a similar transaction was regarded by this court in Robinson v. Taylor & Co., 4 Barr, 242; and the ground is, that a recurrence to the consideration of a bill or note, by the introduction of the common counts, is not such a departure from the original narr. as violates the rule interdicting the allegation of new matter. In this connection, it may also be remarked, the court below were wrong in charging there was no proof of a sale of goods. There certainly was such proof in the testimony of Hunter and Ekfelt, taken in connection with the transfer of the note to the plaintiffs. As the pleadings stand, it would have been more correct to have said such proof could not avail the plaintiffs, as there was no count for goods sold.

The second specification of error, too, is well founded. The fact that Alexander Cor jell was a resident of the state of New Jersey constituted no valid objection to his deposition. It is the constant practice to take the testimony of persons residing without the Commonwealth, under rules granted for that purpose, in order to avoid the expense, delay, and difficulty attending the execution of a commission; and witnesses who come temporarily within the jurisdiction with a view of having their testimony put in the shape of a deposition, are to be regarded as going witnesses, within the meaning of the rule adopted on that subject by most of the courts of this state. Nor is any obstacle to the reception of the deposition rejected, afforded by the subsequent execution of the commission under which the testimony of the same witness was taken; Hoffman v. Kissinger, 1 Watts & Serg. 277. As is shown by this instance, the memory of the witness may become imperfect -as to the particular transaction in the interval between the first and second deposition, or he may be tampered with by the adversary, and it would not be fair to subject the party seeking to use the evidence to these contingencies, though their existence would certainly afford ground for legitimate remark before a jury.

Though, strictly speaking, the notarial certificate of protest might have been received on the faith of the seal of the notary, who is an officer said to be recognised by the whole commercial world, (Mullen v. Morris, 2 Barr, 85,) and in an action on foreign bills of exchange, ought to have been received to prove the essential fact of protest, yet, in this instance, its rejection was immaterial. Being the work of a foreign notary, it was no evidence of demand on the maker, or notice of non-payment to the endorsers; and as protest of a promissory note is superfluous, the introduction of the protest as proof of this would not have helped the plaintiff’s case; Fitler v. Morris, 6 Whart. 406; Etting v. Schuylkill Bank, 2 Barr, 357. Had the first deposition of the notary been received, his certificate, in accordance with it, might have been admissible as corroborative; but as the case stood, its rejection furnished no ground for reversing the judgment.

The remaining portions of the charge of the court in which error is assigned, not already noticed, may be considered together, and will be comprehended in a few general remarks. As the case was presented below, the court was right in saying there was no proof of such a demand of payment and notice of its failure as is required to fix the endorsers. Direct personal notice was not pretended, and the evidence given of the deposit of a written notice in some post-office, directed to some other unascertained post-office, was altogether too loose and unsatisfactory to satisfy the rule which requires great certainty and distinctness of proof to charge an endorser on the foot of a post-office notice; Wheakly v. Bell and Sterling, 9 Watts, 279. Nor do we think the deficiency is supplied by the letter of the 16th of February, 1848, written by Fegley, one of the defendants, to the plaintiffs. It is true that a distinct recognition of liability, by an endorser aware of his rights, and of all the facts, may supply a want of notice or amount to a waiver of it. Whether the letter relied on be such a recognition as would revive the liability of the firm of Fegley and Goff, had it still continued to exist at the time the letter was written, it is unnecessary to consider, as before that time this firm was dissolved. But the action is founded upon the joint liability of the partners, springing from their joint endorsement; and though it is said Goff was not brought into court upon the process — a fact which does not appear in the paper-book — still the plaintiff must establish a joint obligation resting on the defendants as endorsers, before he can recover under the declaration in this cause. In this his allegations and proofs must agree, and variance is fatal. But Goff is not to be affected by Fegley’s letter, for he was no party to it. As the proof now is, the firm of which he was a member was relieved of all accountability as endorsers, by the laches of the plaintiffs; and before the letter can be made to subserve the purposes of the latter, we must attribute to it the effect of renewing the accountability as it originally existed. Now it is settled that, after dissolution, the late partners are not agents for each other, except to make good outstanding engagements, or for the purpose of liquidating the affairs of the partnership. They cannot enter into 'a new contract or engagement for their former associates, nor bind them by a new promise; Est. of Davis Desauque, 5 Whart. 530; Levy v. Cadet, 17 Serg. & Rawle, 126. And if one acknowledges an account, it will not affect the other; 3 Johns. 536. Goff, therefore, stands absolved of any legal consequences flowing from the letter, however these may touch the writer of it in an action properly instituted. The result is, the plaintiffs have failed to establish the important allegation of a joint liability as endorsers, and resting their case here, must necessarily fail. It follows that the instruction of the court below on this point was correct.

As the second specification of error in the charge was properly-abandoned on the argument, what has been said disposes of all the controverted points presented by the record.

Judgment reversed, and a venire de novo awarded.


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    Moyer v. The Commonwealth.
    An indictment under the act of 1824 and 1833, (to prevent the destruction of timber,) requires no greater particularity in the description of the land than a narr. in actions of trespass, or ejectment at common law.
    Hence, where the indictment laid the cutting of the timber to have been at the township of P., county aforesaid, upon the lands of certain persons to the inquest unknown, defendants well knowing the trees to be growing on the lands of another person, and that the land did not belong to defendants, or any one by whom they were authorized, it was held to be a sufficient description of the lands, within the acts.
    In error from tbe Quarter Sessions of Carbon.

      March 22. Indictment for cutting timber under the acts of 1824 and 1883. The count on which the verdict was entered averred that defendants, on, &c., at the township of Penn Forrest, in the county aforesaid, did enter upon the lands of certain persons to the inquest aforesaid unknown, there situate, and then and there, without the consent of the owners of the said last-mentioned lands, did cut down and fell, and cause to be cut down and felled, &c., (describing the timber,) they, the said defendants, then and there well knowing that the said last-mentioned trees to be growing on the lands of another person, and that the land on which the same were growing did not belong to them, the said defendants, or either of them, or to any person by whom the said defendants, or either of them, was authorized, to the great damage, &c.
    The errors assigned were: Generality — all the lands in the township being embraced. The title should have been laid in persons named.

      Wheeler and Dimiek, for plaintiff in error.
    The locality is so uncertainly described that the party is called upon to defend for the whole county; 6 Serg. & Rawle, 5; 5 Barr, 65. The act of 1833 does not obviate the necessity of showing title in some one, and consequently of an averment of that fact; Rex v. Robinson, 1 Holt N. P. 595; 2 East Cr. Law, 651. There are also distinct offences laid, either of which are sufficient to authorize a conviction.

      J. M. Porter, contrá.
    The object of the act was to punish the cutting of timber on any lands known not to belong to the offenders. For this purpose, a description as full as is required in trespass or ejectment, is all that is needed. The place is in general immaterial.
   Per Curiam.

The legislature never intended that an indictment on the act for the preservation of timber trees, should be so special as to defeat the end proposed. The public at large has an interest in the prosecution ; for on no other ground could the destruction of timber be declared a public wrong. The committing magistrate is required to issue the warrant of arrest on complaint by the owner; but there was no design to prevent a prosecution by any one else, for no part of the fine is given to him. The design 'was to prevent trespasses on wild lands, which, by reason of their remoteness from the settlements, are peculiarly open to depredation. But it would be impossible for any one but the owner to individuate a particular tract. To describe it by natural marks would be impossible; and even the township could sometimes be ascertained only by running its lines, and the legislature certainly did-not intend to burden a prosecution with an expense that would utterly discourage it. It meant to exact no greater certainty of description than is required in an action of trespass, or in a declaration in ejectment at the common law; and, as the present description would be good in either, it is good in this indictment.

Judgment affirmed.


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    Frey v. Witman.
    A., the owner of a tract through which a creek ran, ami on which a mill was erected, purchased of tire supra^riparian owner the right of diverting the water of the creek by means of a dam of the height of any former dam. A. then sold part of his land on the creek below the point of diversion. As against his grantee, A, has the right to divert the whole of the stream for the use of his mill, and for that purpose to erect a dam higher than that stipulated for in the grant by the supm-niparian owner.
    In error from the Common Pleas of Lehigh.

      March 23. Case for diverting a water-course. The case was this : Frey was the owner of a large tract, through which a small creek ran, and on which a fulling-mill was erected as early as 1815. To supply this mill, a race had been dug through his land, to which the water of the creek was partially diverted by a small dam erected by the license of an adjoining proprietor. In 1837, Cooper, who owned the land adjoining Frey’s tract, through which the creek ran to Frey’s tract, by deed reciting that Frey was seised of a plantation and water-works contiguous, and that there had been a mill-dam erected on Cooper’s land for the benefit of Frey, conveyed him the right to raise and build said dam « as high, as it ever was or has been built heretofore at any time,” and by means thereof to lead the water of the creek into the land of Frey for the use of his mill, or for the purpose of watering his meadows. In 1843, Frey conveyed to Witman two pieces of land, the one lying on both sides of the creek some distance below the dam, and extending back to within a few feet of the race; the other extending back from within a short distance of the other side of the race, with the right of watering his cattle in the race running between the said two tracts, together with the use of the land along the said race, and whatever might grow thereon.
    In 1845, Frey erected a new dam on Cooper’s land in place of the old one, which had been composed of loose stones, and had permitted the water to leak through it. The new dam was two inches higher than the old one, and perfectly tight. The millwright stated his boy had put in the stone at the overfall two inches too high, and in a week or ten days, so soon as this was discovered, it was lowered to the former height. It was for the diversion, during this period, this action was brought. It was in evidence that, until the new dam was built, the creek was never entirely dry; but afterwards, in dry seasons, the whole of the water was diverted into the race, and then all the water was wanted for the use of the mill.
    His honour, Banks, P. J., instructed the jury that defendant had the right to mend his dam, or erect a new one at the same height he had it before his sale to Witman, and to keep it tight; but he had no right to raise it higher. If the diversion of the water was owing to the increase in the height of the dam, the plaintiff could recover. If not exclusively from that, he could not. The defendant sued out this writ of error.

      Porter, for plaintiff in error.
    The question is, can the owner of the mill, in case of necessity, take all the water of the creek, or is lie confined to so much as he could obtain by the old dam. It had been used for thirty years, and, when the plaintiff purchased, he saw it was used to turn the mill, and was at times essential to it. He, therefore, had notice that the defendant did not intend to convey any right to the water of the creek. This is shown in the grant of the right to water cattle in the race, which is an exclusion of any other right. ^

      King, contrá.
    We contended in the court below that Frey, in selling the land through which the creek runs, was bound by the situation in which he then had placed 'it, and could not stop more of the water than had been customary prior to the sale. But the court went as far in his favour as they could according to the law. By the sale of the land, the riparian ownership passed with it, subject to the rights of other owners.
    These had been affected to a certain extent only. The grant of the right of diverting the water was only valid against those whose lands lay between the point of diversion and the point of return, by reason of the ownership of that land by the grantee of the water-right. Subject to that grant, he conveyed all the riparian rights to Witman. Against him his right was limited by the extent of the prior grant. This was limited to a dam of a certain height. For the excess he was clearly liable, -as the court held. The defence on the ground of the reservation in his grant cannot avail. The object of that was to procure the means of watering cattle on his farm; and clearly the express provision for one right by no means implies the waiver of any other incident of ownership. In point of fact, the use of this creek for houáehold ¡purposes was a main inducement to his purchase, and an expensive house has been erected near the creek because of the excellence and convenience of the water.
   Per Curiam.

When the plaintiff below purchased the lots between the dam and the mill, including the old channel of the creek, it was apparent to his eye that the vendor had appropriated the whole stream to his mill, and that he did not intend to part with a drop of it. Why should he do so to the ruin of his property ? All the water that was suffered to escape into the old channel, leaked through the dam, which was old and defective ; but the vendor had no right to suppose that this was a natural, and therefore to be a permanent, state of things. He might as well suppose that a wash-gate, accidentally drawn at the lime, was never to be shut down. That he did not expect to derive his supply from the creek, is evident from his covenant-right to water his cattle at the race ; an easement that would have been unnecessary had the vendor precluded himself from turning the whole stream into it. He, however, built a new dam, and the complaint is that it is better than the old one, which let part of the water escape and decreased his power. But he never intended to relinquish what would render his mill useless in particular seasons. The principle adopted by the judge, therefore, was not the proper one, for the defendant was entitled to the exclusive use of the stream.

Judgment reversed,


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    Miller v. Lynn.
    Testator devised « as to such worldly estate wherewith it has pleased God to bless me, I give and devise to my son J., the lot whereon I now live, to hold the same to him during his natural life, and after his decease to his children lawfully begotten, share and share alike.55 J. takes an estate for life, and his children remainders in fee-simple.
    In error from the Common Pleas of Northampton.

      March 23. Debt on bond and case stated. The action was for the purchase-money of land sold by Jonathan Lynn, and the defence taken was that he had but an estate for life.
    In 1807, F. Lynn made his will, as follows: “ and as to suoh worldly estate wherewith it has pleased God to bless me in this life, I give and dispose of the same as followsafter making provision for his wife, and giving certain annuities and legacies; “ as to my plantation in, &c., I give and devise to my eldest son, George Felix, the lot, &c., containing one hundred and fifteen acres, as by a draft in his possession will appear; to hold the same to him during his life, and after his decease, to his children lawfully begotten, share and share alike.” He then made a devise to his son Peter, “ to hold the same to him, his heirs and assigns for ever; further, I give unto my son Jonathan, the middle lot whereon I now live, containing one hundred and nine acres,^as by a draft now in his possession will appear, to hold the same to him during his natural life, and after his decease, to his children laivfully begotten, share and share alilee.” As to the residue of his estate he gave two-thirds to Peter and Jonathan, and unto their heirs, and the,remaining third among his other son and his grandchildren.
    By a codicil, in the same year, he recited that he had devised his real estate to his sons George and Jonathan, for their lives, and to his son Peter, and to his heirs and assigns, with a proviso which he thereby revoked.
    In 1809, Jonathan executed a deed barring the supposed entail of his estate, and, in 1833, conveyed to Miller in fee-simple, who had paid the larger portion of the purchase-money, and the question was on his title to convey.
    The court below gave judgment for the plaintiff.

      Jones and Ihrie, for plaintiff in error.
    A plain intent is manifested that there should be an estate for life in Jonathan, and a remainder in fee to his children. Why should this be overruled ? To make children a word of limitation is but an exception to the general rule, to carry out-a clear general intent. There is no such construction required here. The intent to give the fee to the children is satisfied by the use of the word estate in the introductory clause, and the words share and share alike ; Clayton v. Clayton, 3 Binn. 489. The other intent — to provide for all his son’s children is satisfied by the rule that after-born children of the devisee for life will take by way of remainder; 6 Co. 17; Ginger v. White, Will. 348. There is then no possible reason for overturning both the declared intent and the rule of law, that children is a word of purchase; Dickinson v. Lee, 4 Watts, 83; Minnig v. Batdorff, 5 Barr, 503; Cru. Dig. Deed, c. 25, s. 30, Dev. c. 14, s. 33, 35.

      King, contra.
    The estate is in tail or in fee to the father or the children. We contend it to be in the father. The object was equal division of the plantation into three parts, and to settle it in the three lines of descent. The mode of carrying this out is by an estate-tail. Where this is the design, children is considered a word of limitation, including all lineal descendants; 2 Pow. Dev. 495, n.; Robinson v. Robinson, 1 Burr. 38; 3 Bro. Par. Ca. 180; Smith on Ex. Int. 224; James’s Claim, 1 Dall. 47.

      April 3.
   Coulter, J.

« Further, I give and devise unto my son Jonathan, the middle lot whereon I now live, containing one hundred and nine acres, as by a draft now in his possession will appear, to hold the same to him during his natural life, and after his decease, to his children lawfully begotten, share and share alike.” These are the words of -the devise, in the will of Felix; Lynn, upon the resolution of which the questions submitted in the stated case mainly depend. By a rigid technical application of the rule in Shelly’s case, the first taker would have an estate in fee-simple or fee-tail, depending upon the construction to be given to the limitation to the children, if indeed it can be construed into a limitation. But the reason for the rule never existed in this state, and has long since passed away, even in England. There it yields to the intent of the testator, when that can be clearly ascertained. The case of Robinson v. Robinson, 1 Burr. 38—which is referred to because it concentrated the opinion of all the judges and the chancellor, and was finally affirmed on appeal to the House of Lords, and may therefore be considered as a guide-post in the long waste of decisions on the subject — affords an emphatic instance of the manifest general intent of the. testator, overcoming the technical, and even the popular meaning of words used in a will, and apparently showing a particular or secondary intent. So in Perrin v. Blake, 4 Burr. 2581, the King’s Bench ruled, that the manifest intent of the testator may control the legal or technical operation of the word heirs .as a limitation, and turn the words into a description of the person who is intended to take, and constitute him a purchaser. And this is the good sense of the doctrine on the subject; for it would be in vain to permit an individual, a grossum caput, who possessed only a glimmering of intellect, sufficient to know his family, and friends, and property, to make a will, if it was to be construed by technical rules of art, concerning which he was totally ignorant. In Pennsylvania, the manifest intent of the testator has always been the rule of construction, and where the intent is plain, if that intent is not against the policy of the law, it overbears and overcomes technical words and technical rules. But where words of art are used by a testator, it is fair to presume that he understood them in a technical sense, unless other parts of the will show that he used them in a popular sense, consistent with his general intent.

If then we can eliminate the general and primary intent of the testator from the words of the devise, in connection with the whole of the will, we sfyall get possession of the key that unfolds its legal construction. First, then, the testator gives the lot to his son Jonathan, to hold the same during his natural life; we infer, therefore, as a matter of course, that the testator meant what his wopds naturally import, that the son should have an estate in the land as long as he lived. • It is in vain to look through the will to find any other expression or implication to increase that estate, save only the limitation, if it can he construed into a limitation, to his children lawfully begotten, share and share alike. The rule in Shelly’s case, id est, “ where the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited, mediately or immediately, to his heirs in fee or in tail, the word heirs is a word of limitation of the estate, and not of purchase;” 1 Co. 94; or as Preston gives it, “if in any instrument, a freehold be limited to the ancestor for life, and the inheritance to his heirs either mediately or immediately, the first' taker takes the whole estate; if it be limited to the heirs of his body, a fee-tail; if to his heirs, a fee-simple” would undoubtedly vest a fee in the first taker, Jonathan. It is unnecessary to determine whether, under the rule, the gift to the children would make an estate-tail, in a will, or an estate in fee-simple, because we think the rule is amoved by the testator’s general intent, and does not apply.

' We are interdicted from an application of the rule to this case, by the manifest intent of the testator. Thus in the words of the devise, the testator throws it into the form used in a deed, the premises and habendum. He first gives the lot to his son Jonathan, which constitutes the premises, and passed an estate for life. By the habendum, he might have enlarged or abridged the estate, but he does neither; the habendum is to hold the same to him during his natural life, and after his decease, to his children, &c., passing the same estate for life given in the premises; thus clearly showing that the testator knew the office and power of the habendum. Other clauses of the will clearly corroborate this view of the testator’s intention. In the clause immediately preceding the one under consideration, he gives a part of his estate to his son Peter, to have and to hold, to him, his heirs and assigns, evincing that he knew what words created a fee, although he was probably profoundly ignorant of the rule in Shelly’s case.

The testator’s intent is further illustrated, and, as I think, placed beyond doubt, by a codicil. The will was made in 1807, and at the same date, and in the presence of the same witness, he makes the codicil, in which ho says, “ I have granted my real estate to my three sons; to Greorge and Jonathan, one lot each, during their lives, and the other lot to my son Peter, his heirs and assigns. A codicil is part of the will, and to be construed as such. Taking the whole will together, we are of opinion that there was a clear and manifest intention of the testator to give his son Jonathan an estate for life only; and ever since the case of Perrin v. Blake, followed by numerous cases, it is established that this intent must prevail, against the rule in Shelly’s ease.

. Jonathan, the first taker, having then an estate for life, the remainder was vested in his children living at the time of testator’s death, which opened to let in after-horn children; Doe v. Perryn, 3 Term Rep. 484; Fearne, 313, 314.

It remains to he resolved, what estate the children of Jonathan took under the devise to them. That they took an estate in fee-simple as purchasers, and not derivatively from their father, seems sufficiently clear. In the preamble to the will is, “as to such worldly estate as it hath pleased God to give me, I dispose of it in manner and form following;” making it apparent, from these words, that he intended to dispose of his whole estate. Although, therefore, there are no words of limitation or perpetuity added to the devise to the children, yet as there is no other disposition of the estate, no limitation over, we bring down the word estate in the preamble, and connect it with the devise, in order to effectuate the intent of the testator. Some judges lay little stress upon the words in the preamble, but none deny the propriety of taking them-into consideration, for the purpose of ascertaining the intent of the testator.

In a will, no technical words are necessary to convey a fee, and the intention of the testator, to be collected from the whole of the will, must govern; 12 Johns. 389. The word estate, in the preamble, may be so incorporated into a devise as to pass a foe; 3 Call. 306. A will had the following preamble, “ and as for such worldly estate as it hath pleased God to give me, I devise in the manner and form following,” and then devised as follows: “ I give and bequeath to my daughter, a tract of land called,” &c.; the court adjudged that the daughter took a fee-simple; 1 Har. & McHenry, .452. This court determine that Jonathan Lynn took an estate during his natural life, and no more; and that his children, in the language of the stated case, can recover by law, after his death, the premises sold by Jonathan S. Miller, the defendant-below.

The judgment, therefore, in favour of the plaintiff, for $1000, is erroneous, and is reversed; and judgment rendered on the stated case for defendant below.


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    Frankenfield v. Gruver.
    The personal estate of a son dying without issue, which passes to his father and mother absolutely, under the intestate law, like other dioses in action, survives to the mother, if not reduced into possession by the father.
    In error from the Common Pleas of Bucks.

      March 27. Case stated. — Isaac Gruver died intestate, without wife or children, leaving a father, mother, brother, and sisters. His father died nine days after, and his widow administered with the will annexed. Isaac left personal estate, now in the hands of his administrator, and the question submitted was, whether Susan-nah Gruver, his mother, was entitled to the fund in her own right or as administratrix of the father of the intestate.
    The court (Krause, P. J.) decided she was entitled in her own right.

      Dubois, for plaintiff in error.
    By the act of 1833, sec. 3, the estate vested in the father and mother absolutely. But the right of survivorship was destroyed by the act of 1812, which applies to personalty; Wintercast v. Smith, 4 Rawle, 182.

      Ross, contra.
    It vests jointly, under the act, and the act of 1812 docs not extend to husband and wife. Like a bond to husband and wife, or any other chose in action, if not reduced into possession, or if no act of ownership be exercised equivalent thereto, the right always survives to the wife: 8 Watts & Serg. 107; 1 Roll. Abr., Bar. & Fem. B. 2; Norton v. Glover, Noy, 149; 2 P. Wms. 497; Com. Dig., Bar. & Fem. F. 1; Lodge v. Hamilton, 2 Serg. & Rawle, 493; 1 Barr, 177. It is like a devise or bequest to husband and wife, which was held to survive in 9 Watts, 349; 6 Watts & Serg. 319.
   Per Curiam.

On the death of an intestate without issue, the third section of the revised act of 1833 gives his personal estate to his father and mother, if living, jointly and absolutely; and this, like any other joint chose in action or chattel, survives to the surviving wife. Had the husband received the assets in this instance, he would have made them his own, and his wife could have claimed them only as his administratrix; but as he died a few days after the death of his son, she is entitled in her own right.

Judgment affirmed.


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    Blakey’s Appeal, In re Jenks.
    Judgments confessed to secure creditors are not such preferences as are avoided by the act of 1843, although an assignment for creditors was intended, and was shortly afterwards executed.
    From the Common. Pleas of Bucks.

      March 27. On the 7th of Feb., 1846, judgments were entered against Jenks, on warrants of attorney, dated on the 4th. On the 17th, he made an assignment for his creditors, and the question was, whether the judgments were entitled to a preference out of the proceeds of the real estate. It was proved to have been the intention of the assignor, to prefer certain of his creditors, by means of these judgments. And it was admitted by him, that on the day of the making of the warrants, he had spoken to counsel about drawing an assignment. It was also proved that previously, he had said he would have to do this. He denied, however, that such was his intention at that time.
    The court awarded the fund to the judgment creditors.

      Dubois, for appellants.
    The spirit anc] object of the act is to be looked to, and that is to abolish preferences by persons in failing circumstances. It is merely, then; a question whether the assignor designed by this means to give such a preference — and that is proved. The intervention of a few days is immaterial, as the various acts were but means to distribute his property unequally among his creditors: 6 Whart. 214; 1 Bland, Ch. 425; 6 East, 257; 3 Watts, 230; 4 Halst. 121; 3 Met. 512; 8 Paige, 556.

      Ross, contra.
    The consequence would be, no failing debtor could pay a debt, or effect a compromise, or borrow money. The act is plain — preferences must, to be within it, be given by an assignment in trust, for the benefit of creditors. Preferences were never illegal: 16 Peters, 106; 7 Wheat. 556; 11 Wheat. 78. Nor has there been shown any connection between the judgment creditors and the assignment. Certainly a future act of the debtor, to which the creditors were not parties or privies, cannot affect their security, admitted to have been valid until that act.

      April 7.
   Coulter, J.

It is clear enough that Joseph Jenks, at the time he gave the judgments, had within his mind the apprehension that he would be compelled to assign his property for the benefit of creditors, under the statutes. He thought, however, that he could evade the storm, if they gave him indulgence. The question is, -whether the judgments confessed to certain creditors, who had befriended him without receiving any benefit, are void, under the provisions of the act of 17th April, 1843. The judgment bonds Were given on the 4th of Feb., 1846, and entered on the docket on the seventh of the same month; the assignment in trust for the general creditors was executedon the seventeenth of tha't month. It is true, that instruments of writing, executed at different times and on separate pieces of paper, are often construed as if they were the same, in order to effectuate what was the clear intent and understanding of the parties. Such, for instance, as an absolute deed, and a defeasance; both will be construed together so as to constitute a mortgage, where the intent of the deed was to secure a loan, or advance of money. And a small space of time is sometimes annihilated, so as to constitute two acts a unit; but that is where such was the intent of the parties, and it was not an actual fraud upon any other person. Such was the case of Love v. Jones, 4 Watts, 465. Cases of that class, however, are altogether different from the one under consideration, and give no warrant whatever for holding, that the judgments and assignment were one and the same transaction, as contended for by the appellants, because there was not present the design or understanding of the parties that they were to be so regarded, but on the contrary, the intent was, that each was to produce its own result, and regulate the rights of different parties; the parties to the judgments being different from the parties to the assignment. The other ground assumed by the counsel for the plaintiff in error, i. e., that the judgments were, in contemplation of law, a legal fraud on the act of 1843, and are, therefore, void, has more colour in it. But to make even this ground plausible, he must connect the judgments in identity and unity of act with the assignment; for the act of 1843 only makes the preferences, which are given in the assignment, of no effect. Before the act of 1843, preferences were given in the deed of assignment, and were good prior to the passage of the • act of June, 1836, by the judgments of our courts. And that act expressly recognised such preferences. For it related to, and provided for, assignments intrust for creditors, or some of them. Wemay safely assume, therefore, that the act of a debtor, in failing circumstances, giving preference to some of his creditors, is not in itself immoral or tainted with actual fraud.

When a positive statutory enactment forbids it, as against general policy, of course, its provisions will be observed by this court. But we cannot go farther, or beyond the statute. The act of 1843 provides that all assignments, in trust for the benefit of creditors thereafter to be made, which prefer one or more creditors, shall be construed to enure for the benefit of all in proportion to their demands. It is only when a man loses dominion over his property and transfers that dominion to another, that the right of the creditors to a fro rata dividend attaches. Whilst a man retains dominion of his property, he may encumber and convey it as he pleases, if not directly forbidden by law, and prefer such creditors by payment or transfer as he chooses. And if it were not so, an individual could not get along in his business. The statute of Elizabeth interposes its provisions for the protection of the creditor, where the debtor, for a fraudulent purpose, of hindering, delaying, or cheating his creditors, transfers his property; — nothing of that kind exists here. It is acknowledged that the transaction was bona fide and without the slightest tinge of fraud.

The bankrupt act of 1841 provided, 'that all payments, transfers, conveyances, &c., made by any person with design to prefer one or more creditors over the general creditors, should prevent the discharge of such person under the provisions of that act, and should be construed a fraud upon the act; but contained a proviso that all such payments, transfers, conveyances, &c., made more than two months before the application, should be good and valid. But that act passed away before the breath of the people, and this court cannot engraft one of its principal peculiarities by analogy upon our statute of 1843. Preferences in the deed of assignment itself are made inoperative by our statute, but there the provision ends; and there, perhaps, it ought to end. But when-the legislature, in their wisdom, see fit to adopt the principle of the bankrupt act, they will doubtless fix the period, anterior to the deed of assignment, when payments, transfers, &c., made bona fide, shall be valid. For any reason apparent to this court, under the existing state of things, ten days is as good as two months. But the bankrupt system, in order to be useful and acceptable, ought to carry all its distinctive features together. The feature of preventing payments to creditors for a period of two months, and thus crippling a man and making him paralytic for a time, would only be compensated by the other distinctive characteristic — a total discharge of the debtor from all future liability.

The decree of the court is affirmed. •


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    Solliday v. Gruver.
    Devise that devisee, his heirs or assignsshall pay certain legacies, creates a charge, and if the devisee die before testator, and there be no devise over, so that the land descends, it may be sold under decree of the Orphans5 Court.for payment of the legacies.
    And such sale should be subject to annual charges of legatee for life, and to legacies payable in future.
    Testator devised his lands to his two sons, their heirs and assigns, and also devised the use of part of a house and garden to his widow for life. He further directed that his two sons, their heirs and assigns, should deliver her certain articles yearly, and an annual sum of money. He then directed his two sons should pay his daughter H. a certain sum of money; and that they, or their heirs or assigns, should, after his wife’s death, pay H. a further sum, which with that already paid should be equal to $3000. Ono of the sons died before the testator. ,On petition of the husband of H. the court directed a sale by the administrator of the land devised to the deceased son, to be made subject to the widow’s interest under the will, and to the future legacies to the daughter, for the purpose of paying one-half of the legacy presently due; and their order was affirmed.
    Appeal from the Orphans’ Court of Bucks.

      March 27. J. Graver made his will in 1838, whereby he devised to his wife the use of part of his house where he then resided, or of that devised to his son William, with a garden, &c. He also directed his two sons, Isaac and William, in common, to furnish her with firewood and certain quantities of hay,; corn, beef, pork, &c., “ to be delivered by my two sons, their heirs and assigns, annually.” He then devised part of his farm, including the mansion-house, to his son Isaac, his heirs and assigns for ever: also, a lot in Northampton county. To his son William, his heirs and assigns for ever, he devised the residue of his farm, and another lot in the same county. The will then continued: “ They, the said Isaac and William, shall pay unto my two daughters, or to their heirs and assignsto Hannah, wife of appellant, a sum equal to the value of a lot given to his daughter Susan, which was directed to be appraised; « and the said Isaac and William shall take the same (the land above devised to them) in possession one year after my death, and shall pay unto my wife $100 yearly,” or an additional sum if necessary on account of infirmity; “ and after the decease of my wife, the said Isaac and William, or their heirs and assigns, shall pay to my two daughters, or to their heirs or assigns, a further sum, until it shall amount to' $3000, including the land and money already given, in four equal annual payments, the first thereof one year after the decease of my wife.” The residue “of his effects” he devised to his two sons equally. Isaac died before his father, unmarried and without issue. The widow of testator administered, and the land given to Sarah was appraised as directed by the will. Solliday, in right of his wife Hannah, one of the legatees, presented a petition setting forth these facts, and praying an order for payment of the amount presently due to his wife out of the real estate after notice to the executor, and devisees of the reql estate charged with payment. Notice was accordingly served on all the heirs of testator and upon his administratrix.
    In making the decree, his honour, Krause, P. J., said“The devise to Isaac lapsed by his death in the life of his father; but there being no residuary devisee, the question suggested as to the operation of the act of 1833, passing real estate by will, which has been acquired after the date of the instrument, needs not here be discussed. The testator’s heirs take the land at all events; but they take it subject to the provision in favour of the widow and daughters. The duty of satisfying them is imposed on the devisees and their assigns, as well as the heirs; consequently it accompanies the land, whether it passes from them to others by sale or descent, and thus the intention to make it the chief security for satisfaction of the legacies is clearly expressed. This being so, has the lapse the effect of disappointing this intention? It is possible that such might be the result of the law. "Under our intestate act the land might be treated as having fallen out of the will into a naked intestacy, and discharged therefore from any testamentary direction. In equity, however, the hold of the will on the land to enforce the obligations fastened on it, is maintained; and that rule was adopted by the Orphans’ Court of Philadelphia, in the case of Eleanor Newell’s will, 1 P. A. Bro. 311, dated in 1807, and made operative in 1809 by her death. She devised real and personal estate to her son D., his heirs, &c., he to pay to «another son, then from home, a certain sum. D. died in her lifetime, and it was ruled that the land descended to his issue subject to the sum given to the absent legatee. And that case is fortified by similar decisions in the English Chancery; being, as introduced by Roper, vol. 1, p. 474, a class of excepted cases out. of the general rule in regard to lapses. Thus in Wigg v. Wigg, 1 Atk. 382, the devise was of real estate to the testator’s son, on condition that he or his heirs pay <£90 to grandchildren in equal shares, with a clause of entry or distress. The son died before the devisor; still the charge of that sum was held to subsist on the land, and Lord Hardwicke ordered it to be sold to raise the' money, adding, that a man might make an equitable as well as a legal charge on his land, and chancery would maintain it against the heir; and saying, also, that the heir shall enter for breach of the condition, and in that court be trustee for the legatee. So in Oke v. Heath, cited by Roper, vol. 1, p. 495, from 1 Ves., sen. 135, where Mrs. Smith, empowered to appoint ¿64000 by deed or will, gave that sum to her nephew by will, he to pay an annuity for life out of it to his mother. The nephew dying before the testatrix, Lord Hardwicke also ruled that so much of the fund as went to him beneficially had lapsed, but not so the annuity granted out of it to the mother. Whether, therefore, the lapsed estate be real or personal, it is equally held in equity to the duty of satisfying the portion directed to be paid out of it by the testator’s will. And with these two examples, one of real and the other of personal property, the dictum in Downer v. Downer, 9 Watts, 62, that a recovery by the heirs is not for their exclusive benefit divested of the lien of the money ordered to be paid by the testator to his widow and daughters, is in unison — all of them co-operative to establish the case of Eleanor •Newell’s will as one resting on recognised authority; especially as the date of the will and death of the testatrix make it stand independent of. the act of 1810, relative to lapsed legacies and devisees. The provision of this will in favour of the testator’s widow and daughters must therefore be made available to them out of the land devised to Isaac and William, by the Orphans’ Court, under the 57th section of the act of 24th February, 1834, and as indicated in Craven v. Bleakney, 9 Watts, 19, and Downer v. Downer, by an exercise of its chancery jurisdiction. Having the powers of such jurisdiction, its decrees may be enforced for compelling payment of the daughters’ legacy, or specific execution in favour of the widow, as well by sale of the land as by attachment and sequestration. Here the widow has not applied for its interposition in her behalf, but her interests must necessarily be protected.”
    The court decreed one-half of the legacy presently payable to petitioner’s wife to be due, and directed a sale by the administratrix of the land in Bucks county devised to Isaac, subject to the annual provisions for the widow in money or otherwise, and subject to one-half of the legacy of $3000 due the two daughters of testator, on the death of the widow, as directed by the will.
    This sale was made and confirmed, and this appeal taken by the petitioner below, who assigned for error: — the sale subject to the annual provisions for the widow, and the legacies to the daughters; that the estate lapsed and descended discharged of the encumbrances.

      Dubois, for appellant.
    If the' legacy was not charged on the' land it could not be sold under this decree; but the devise lapsed and the land descended under the intestate law. There''are no words creating a charge, but a mere direction thaj; the devisees shall pay: 3 Watts & Serg. 370; 7 Watts & Serg. 407; Brant’s Appeal, 8 Watts, 202.

      Ross, contrá.
    A legacy payable by a devisee is not affected by the death of the devisee before testator, unless there be a limitation over: 3 Atk. 572; 2 Cox, 121; 1 Rop. Leg. 413.
    To determine the intent to charge the estate, the situation of the parties must be looked at, and the words of the will. The devisee, his heirs or assigns, are to pay, i. e. it is to run with the land; and this is essential, for the executor is not to-pay, nor has he the funds. To what, then, must we look, unless to the land, where there is no devisee under the will who is personally liable ? It is plain, then, both from the words of the will and the situation of the parties, that the land was to be a fund for paying legacies: Tower’s Appr., 9 Watts & Serg. 103; Kelsy v. Doe, 3 Cow. 133, 6 Cow. 333; Bank v. Donaldson, 7 Watts & Serg. 407; Oke v. Heath, 1 Ves. 141; 1 P. A. Bro. 311; Downer v. Downer, 9 Watts, 62.
   Per Curiam.

Let the decree be affirmed for the reason given ■ by the president of the court below.


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    Heister’s Appeal.
    Where auditors, to distribute a balance found due to an estate, charged interest annu- ’ ally on the legatees’ shares of the principal, from which was deducted payments . made during such years, and awarded the surplus of the interest and the share of the principal to each legatee, bringing the account down to the date of the reference for distribution, the executor cannot complain.
    Interest is payable on the gross balance found due an estate on a settlement by audit- ■' ors, and should not be calculated on the principal only. — Per Gibson, C. J.
    Counsel fees and expenses of an executor in attending a reference for distribution, where there is a contest with the legatees, not allowed as an item of credit.
    A note of the husband of a legatee dying before distribution, whose son administered ' to her estate, which note was held by the executor in his own right, not allowed as - a set-oif to die legacy of the wife.
    So of a debt due by a husband divorced before distribution.
    From the Orphans’ Court of Montgomery.

      March 31. In 1845, the auditors, to whom the accounts of Heister, executor of Heister, had been referred for settlement, reported a balance due to the estate of $7900 10 principal, and $8744 25 interest. The matter was referred in 1846 to the auditors to distribute. The auditors, in stating the account with the respective legatees, ■divided among them the amount of principal found due to the estate by the former report.' On this amount they calculated interest yearly. From the interest account they deducted payments made to the respective legatees in each year. This was continued until the date of the reference for distribution. The surplus of the annual interest, with the share of principal, was awarded to each legatee. The appellant contended no interest was chargeable from the date of the report on the settlement of the estate, and that that sum was to be divided, and from each legatee’s share, the payments to each legatee, with interest, was to be deducted. This was the main exception.
    The other exceptions were:. 1. Rejecting evidence of a payment, the receipt for which by the husband of one of the legatees was lost. The ground was want of proof of the genuineness of the lost-paper. 2. The rejection of a note of the husband of one of the legatees given to the appellant. It was offered by way of set-off, or as payment of so much at its date. But it was given to the appellant individually, and before distribution the legatee died and her son administered. It was also alleged by the husband, he had claims against the estate and a-defence to the note. 3. This was similar to the last; but this legatee had been divorced long before the distribution. 5. Disallowance of counsel fees and a claim for the executor’s attendance, trouble, and attention at this audit. The costs of the audit were all allowed
    Krause, P. J. — The court sees no error in the report, as to the principles on which the auditors rejected the accountant’s claim for payments to the distributees, and to which exception is taken. Their reasons for rejecting them are entirely satisfactory. The remaining question is, did the auditors hit the right rule for computing the interest on such payments as the accountant is allowed for, as having been made by him prior to the confirmation of his administration account in 1845 ? The amount settled to be in' his hands for distribution, is $16,644 35, as per decree on 20th November, 1845, in pursuance of an agreement by the parties. He was then debtor to that amount, and liable for interest on it, subject to prior payments ; which, on suits for the distributive shares, he would have been charged with on trial before the jury. Why not before the auditors ? But he is not liable for more; and the auditors have not charged him with more, computing the interest on the true rule stated in their report. For example, if one year’s interest be added to the balance found due on his account, the sum of $17,643 01 is produced; but the auditors, applying the rule of computation stated and settled by law in this state, produce but $16,722 51, making a difference in his favour of $920 50. If, therefore, no error occurred in the process of calculation, full justice is done him ; and of error we have, no evidence. On the contrary, wc believe the auditors are correct in this particular, on our examination of the account. Nor can the court see that injustice is done to the distributees, since the proper rule is. applied to them also, both as to the character of the payments and charges allowed to the accountant, and the calculation of interest. The exceptions on both sides are therefore dismissed, and the report of the auditors confirmed.
    From this decree, the executor appealed, and assigned the various points above stated as error — the question as to the calculation of interest being the 6th.

      Boyd and Mulvany, for appellant.
    There was evidence of a lost receipt, and it is always prima facie evidence in a settlement of estates: 4 Watts & Serg. 569; 1 Greenl. Ev. s. 147, n. 1, 2. Debts of the husband are always a defence to his wife’s legacy: 2 Watts, 209; 7 Watts & Serg. 102; 4 Barr, 32. 5. The counsel fees before the auditor are incidental, expenses, which are -always allowed : Wilson’s Estate, 2 Barr, 328, [Gibson, C. J.— Where there is a contest between himself and particular legatees, he pays his own bill of costs.] 6. The main question is the interest account. It is said by Mr. J. Huston that the rule is to divide the gross balance, and from each share deduct advances with interest. At all events, interest should have ceased in 1845, as he was then bound to have the shares ready to pay: 5 Barr, 87.

      Freedley, contra.
    The auditor should have charged interest on the gross balance due from the date of the confirmation of the settlement report. [Gibson, C. J. — There is no doubt the auditor did you wrong ; they should have charged interest on the balance of that account.] The court declined hearing argument in support of the mode of stating the interest account with each legatee; and they also declined hearing Tilghman, who was with Freedley.
   Per Curiam.

Decree affirmed for the reasons given by the court below.


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    Hoxworth v. Miller.
    Where a feigned issue has been framed to try the validity of a will and codicil, and there lias not been separate issues upon the two instruments, but the evidence raises separate questions upon them, the court will remit the record to have separate issues framed, though the ruling that on the issue both instruments must be found good or bad, was right.
    In error from, the Common Pleas of Montgomery.

      March 27. A precept issued from the Register’s Court to the Common Pleas, reciting the objection of the plaintiff in error, that certain writings presented for probate, averred to be the last will and testament, and codicil of Hoxworth, were not published as his last will and testament, or, if executed by him, were obtained by undue influence, and that he, on account of imbecility of mind, was incapable of making a will, and directing an issue to be formed on the merits of the controversy between the parties.
    In accordance with the writ, a feigned issue was framed, and a declaration as on a wager filed, averring the said instruments not to be the last will and testament of Hoxworth.
    The will was dated in 1843, and the codicil in 1845. On the trial, distinct evidence was given as to the validity of the two-papers.
    The court, Krause, P. J., instructed the jury, that as the issue was made up, both will and codicil must be treated by them as forming one entire question, and they must find both good or both bad.
    The jury having found in favour of the will, this writ of error was sued out.

      Sterigere and J. Sergeant, for plaintiff in error.
    The issue is but the creature of the court, and not the act of the parties. The two questions should have therefore been treated as distinct; 5 Barr, 110; 2 Watts & Serg. 411, 415; 8 Watts & Serg. 257; 3 Watts, 101; Irish v. Smith, 8 Serg. & Rawle, 578, 579.

      Romance, contra.
    The caveat was at the instance of the plaintiff in error, and the complaint was framed by him, as of course was the issue finally .settled. The question then is, whether an issue — the single point in controversy as it is defined — can be split by the parties at the trial, and half found one way and half another. How could the verdict be entered for both parties on one count ? The point is directly decided in 4 Yeates, 295, 440, 442.
   Per Curiam.

Common justice requires that this cause be put to another jury, on issues which may enable it to find the exact truth; but as the issue before us was framed, it is impossible to reverse the judgment, for the direction was right. Yet as the will might be good, and the codicil bad, separate issues ought to have been formed to try the validity of each, instead of coupling them in a single one, which did not admit of division. The record is therefore remitted, with direction to set aside the judgment and proceedings, and to direct the counsel to frame an issue to try' the validity of the will, and another to try the validity of the codicil, in separate counts of the declaration. In any other proceeding, perhaps, we would not feel ourselves at liberty to pursue a similar course; but as a feigned issue is merely a contrivance to take the verdict of a jury, the courts have an unlimited discretion in directing the use of it.

Record remitted.