author: Thompson, C. J.

text:
    Ardery versus Rowles et al.

    1. By parol a vendor agreed to sell 90 aeres of land at $3.50 per aere, to begin on one line at a point named, “ and ¡go to the creek.” Held, that the creek was the boundary, whether there would thus be more than ninety acres or not, and the vendee would have to pay for the actual content at $3.50 per acre.
    2. Evidence in this case sufficient to establish a sale of land by parol.
    March — 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Olearfield county: No. 14, to January Term 1871.
    This was an action of ejectment commenced September 12th 1859, by Elisha Ardery against John Bowles and George Bowles, for 90 acres of land, bounded east by land of James Dougherty, west by lands of John Dougherty, north and south by lands of the plaintiff, “ the whole being west of Little Clearfield creek, and the south-east corner of said land coming to or very near said creek.”
    Both the defendants having died after the commencement of the suit, Taylor Bowles and others, their devisees and heirs, were substituted.
    The case was tried May 29th 1869, before Mayer, P. J.
    The plaintiff showed a complete paper title in himself for 397 acres of land, including the parts in controversy, and rested.
    The defendants defended on a parol sale in 1840 by the plaintiff to John Bowles of the land in dispute, the principal question being one boundary and the extent of land included in the sale.
    They gave evidence by John Dougherty that the plaintiff and John Rowles called witness into the plaintiff’s field “ to witness a bargain between them about 90 acres of land; they told me that Rowles had bought the 90 acres at $3.50 per acre. It was to start at the corner of James Dougherty’s buckwheat field and be laid off from that field to the creek; it was said in this conversation that the land was to go to the creek.” James Dougherty’s land would be on the east, plaintiff’s on the north and witness’s on the west. John and George Rowles went on the land that fall; cleared some land; built a house and barn, and lived there till their death; when in possession they claimed to the creek; most of the woodland of the 90 acres was on the creek. They used no timber along the creek.
    The defendants gave in evidence two judgments in plaintiff’s favor, entered May 10th 1843, against John and George Rowles; on two notes dated April 1st 1840, for $157.50 each, one payable April 1st 1841, on which $75 had been paid October 1st 1841, and the other payable April 1st 1842. On the last a fi. fa. had been issued and a levy made June 16th 1843, on personal property of the defendants, and “also on 90 acres of land in Lawrence township, bounded north by Elisha Ardery, west by John Dougherty, north-east by James Dougherty; supposed to extend to Little Clearfield Creek. The improvements are a log-house and 7 acres of cleared land thereon.”
    There was evidence of admissions by the plaintiff that defendants’ land extended to the creek, and that the plaintiff never occupied the land along the creek after they went into 'possession. There was evidence also of other payments by the defendants and generally in corroboration of the defendants’ claim.
    There was evidence for the plaintiff that the lines to which the defendants claimed would include 117 acres. There was no dispute about the east and west lines; the point of dispute was whether the land sold reached to the creek.
    The court after recapitulating the evidence charged:— * * *
    “ Does the evidence satisfy the jury, clearly and fully, what the contract was between Ardery and Rowles, its terms and conditions, what land was sold, what were the boundaries, the price paid or to be paid and when payable, that possession was delivered under the contract ? The boundaries of the land must be designated with sufficient clearness, so that it could be run off upon the ground with reasonable accuracy and certainty. Satisfactory proof must be furnished by the defendants of all the circumstances which we have mentioned, before a parol sale can be established, sufficient to authorize a court and jury to disregard the plain and imperative requirements of the statute.
    “ Eor, as we have already said, the burden of the proof being thrown on the defendants, if, after an examination of the evidence, you have any doubts as to any of the circumstances upon which they rely to establish their parol sale and take their case out of the Statute of Frauds and Perjuries, your verdict must be for the plaintiff. If, however, after a careful consideration of all the evidence in the cause, your minds are fully and clearly satisfied that the defendants have made out such a parol sale as the law requires, it will then be the duty of the jury to ascertain and determine where is the southern boundary of the land that was bought by John Rowles from the plaintiff. The plaintiff contends that the defendants must be limited in their claim to 90 acres of land out from the upper line extending towards the creek. The defendants claim that the creek was fixed by the parties as one of the boundaries when the bargain was made. [If, when the bargain was made between Ardery and Rowles, it was agreed and understood between them that the land bought was to extend to the creek and the creek to be the boundary, then defendants’ claim would extend to the creek, and if there was an excess over and above the 90 acres, the defendants must pay for the excess at the price agreed upon per acre.] But if the bargain was that defendants were to ¡start at the upper line and run towards the creek so as to make but 90 acres, then defendants cannot extend their claim further towards the creek than to make the 90 acres. As we have before said to you, the proof as to the boundaries must be clear, distinct and satisfactory, and if it is a doubtful question whether defendants’ southern boundary is the creek, it must be determined against them, and defendants must be limited in their claim to the 90 acres laid out from the upper line.” * * *
    The verdict was:—
    “ The jury say they find for the plaintiff the land described in the draft hereto annexed (as claimed by defendants), to be released on the payment by the defendants of the sum of $505.56 ; one-half in six months and the balance in one year from date with interest; and that plaintiff shall not have execution until he file in court a deed for said land and cause to be satisfied of record the two judgments entered on record Nos. 63 and 64, to May Term 1843.”
    The plaintiff took a writ of error, and assigned "the portion of the charge in brackets for error.

      J. B. McJEnally, for plaintiff in error.

      W. A. Wallace, for defendants in error.
    May 13th 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

In view of the testimony on part of the defendants, there was no room for a doubt that there was a contract of sale by parol of the land in controversy by the plaintiff below to the defendants’ intestate, and so far performed by the latter by entering into possession, making valuable improvements, with part payment of the purchase-money, as required the specific execution thereof by the plaintiff, on payment of the entire purchase-money. The testimony showed all this, and it. was in every way sufficient to justify the finding of the jury on this point.

The real question was in fact not this, but the southern boundary of the land. The jury found that that was Clearfield creek, and for this there was sufficient testimony if believed, as it was by the jury. But the plaintiff claimed to fix the boundary by the quantity of land in the strip sold. Having established an initial point and line, the plaintiff claimed ’that this should control the line at the other end of the strip or tract, at a point which would include 90 acres. So it would, if this had been the terms of the contract. But it was not; the land was to go to the creek as the jury have found; and whether from the initial line» or boundary there should be more than 90 acres, it mattered not, for the boundary would control the quantity. The boundaries being fixed, the quantity remained to be ascertained by them, and whatever that was, passed by the sale. The plaintiff was sdcure on these terms, for he was to 'be paid by the acre. Nothing could be more proper than the views expressed by the learned judge as to this matter. It constitutes the first assignment of error in the case, and is not sustained.

What we have already said is sufficient for the other two assignments of error. The whole charge and answers to the points were correct and satisfactory expositions of the law in every aspect of the case, and therefore the judgment is affirmed.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Barber versus Rodgers.
    1. B., arrested under Act of July 14th 1842, gave bond to apply to be discharged as an insolvent: he appeared and the hearing was continued from time to time, and whilst pending he was adjudged a bankrupt in United States court. Held, that the condition of his bond was discharged, and the sureties released.
    2. The adjudication suspended the operation of the state insolvent laws.
    8. Lex neminem cogit acl vana seu inutilia, applied.
    March — 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Warren county: No. 432, of January Term 1871.
    This was an action of debt commenced, March 18th 1869, by L. A. Rogers against Richard A. Barber, J. H. Mitchell and Myron Waters, on a bond, executed May 14th 1867, by Barber, with the other defendants as his sureties, to L. A. Rogers in the sum of $3000, with condition that Rogers should appear at the next Court of Common Pleas of the county of Warren, and present his petition for the benefit of the insolvent laws of the Commonwealth, or in default thereof and on failure to obtain his discharge, that he should surrender himself to the jail of the county.
    The defendant, Barber, was arrested on the 4th of May 1867, by virtue of warrant under the Act of July 12th 1842, Pamph. L. 339, 1 Bright. Purd. 50, pi. 52 et se'q., and, after having entered into the above bond, was discharged from custody. On the 4th of June, Barber presented his petition for discharge as an insolvent; the first Monday in September was fixed for a hearing. On that day the hearing was continued until the second Monday of December. ,

    On the 21st of November, Barber petitioned the District Court of the United States for his discharge as a bankrupt; he was adjudged a bankrupt November 23d.
    On the 7th of December the hearing on his insolvent petition was continued in the Common Pleas until January 1868, and then until March; his discharge was refused March 10th, and he was bound over to the Quarter Sessions.
    On the 8th of April an assignee in bankruptcy was appointed in the District Court of the United States.
    At the June Term of the Quarter Sessions a true bill for fraudulent insolvency was found against Barber.
    On the 9th of September he was found guilty in the Quarter Sessions, and on the 24th of December judgment was arrested.
    On the 8th of September 1869 he was discharged by the District- Court as a bankrupt; he was not discharged by the state court in accordance with the condition of his bond.
    These facts were given in evidence on the trial, March 16th 1871, at a special court before Williams, J., of the 4th district.
    The defendants requested the court to charge:—
    1. That the Act of Congress passed the 2d day of March 1867, suspended the insolvent laws of the state of Pennsylvania from the date of its passage.
    2. That the Bankrupt Act of 1867 took effect on the 1st day of June 1867, and from that date all proceedings in the state courts to effect any of the objects provided for in the Bankrupt Act were of no effect.
    3. That up to the time that Richard Barber applied for the Bankrupt Act, to wit: on the 27th day of November 1867, there was no breach of the bond shown, and that the jurisdiction then attached, and all further proceedings in the state court were suspended, and the plaintiffs cannot recover.
    4. That, on the 8th day of March 1869 there was no breach of the insolvent bond, even in the state court, shown, and therefore the plaintiffs cannot recover.
    The court instructed the jury pro forma “that plaintiff was entitled to their verdict, and the points submitted by the defendants’ counsel wer-e answered in the negative.
    The verdict was for the plaintiff for $2015.91.
    The defendants took a writ of error, and assigned for error, the denial of their points, and the instruction of the court.

      G. B. Gustis, for plaintiffs in error.
    When the state insolvent laws and the United States bankrupt laws act on the same case, the bankrupt laws are paramount: Martin v. Berry, 2 Bank. Reg. 188; Van Nostrand v. Carr, Id. 154. After the bankrupt laws took effect, all proceedings commenced under the state laws were void: Commonwealth v. O’Hara, 1 Bank. Reg. 19; Rany v. Langley, 1 Id. 155; Rump on Bankruptcy 273; Nesbit v. Greaves, 6 W. & S. 120.

      S. P. Johnson and B. Brown, for defendant in error.
    The state court could finish a proceeding commenced: Ogden v. Saunders, 12 Wheat. 213; Eames’s Case, 2 Story’s R. 325; Hilliard on Bankruptcy, sect. 27; Crabbe 493, 525; Ward v. Proctor, 7 Metc. 321; Judd v. Ives, 4 Id. 401; McGovern v. Hoesback, 3 P. F. Smith 179; Power v. Graydon, Id. 198.
    May 13th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

It is unnecessary to determine whether, from the time the Bankrupt Act of Congress of March 2d 1867 went into effect, the insolvent laws of the state were ipso facto suspended, because it is very clear that this result followed as soon as Barber was adjudged a bankrupt, November 23d 1867. The effect of that adjudication, followed up by the appointment of an assignee April 8th 1868, was to divest him of all his property by relation to the commencement of the proceedings. lie had given bond May 14th 1867, to appear at the next Court of Common Pleas, and make application for discharge as an insolvent. He did so appear, and his application was there pending when he was adjudged a bankrupt. Why, then, should the insolvent proceedings go on ? The bankrupt is already divested of all his property. He is now under the laws of the United States, which, by the 44tK section, provide the punishment of imprisonment upon conviction of fraudulent bankruptcy. He surely cannot be subject to a double punishment for the same offence — -'one under the laws of the United States and another under the laws of- the state. The laws of the United States being paramount in authority, of course supersede those of the state. When, therefore, Barber was adjudged a'bankrupt, the condition of his bond to take the benefit qf the state insolvent laws was discharged and his sureties released. Lex neminem eogit ad vana sen, inutilia.

Judgment reversed.


author: Williams, J.

text:
    McClintock’s Appeal. Strawbridge’s Estate.
    ]. S. conveyed land to M. “reserving timber for his own use and advantage : in case M. should want to clear the land, the owner of the timber to take it off by being notified thirty days previous.” Held, that the timber was personal property.
    2. In reservations of growing timber, whether it be personalty or realty depends on the nature of the contract and the intent of the parties.
    3. If an immediate severance is not contemplated, such reservation is an interest in land; if an immediate severance is in view, it is personalty.
    4. Costs of an audit charged to the accountant under the circumstances in this case.
    5. Pattison’s Appeal, 11 P. P. Smith 294, distinguished and approved.
    March —, 1872.
    Before Thompson, 0. J., Sharswood and Williams, JJ.. Agnew, J., at Nisi Prius.
    Appeal from the Orphans’ Court of Lycoming county: No.'82, to July Term 1872.
    In the matter of the account of Lafayette McClintock, administrator, &e., of John Strawbridge, deceased.
    On the 13th of May 1865, Strawbridge conveyed to McClintock a tract of 130 acres of land; in the conveyance was this reservation : “ The party of the first part doth hereby reserve all the pine and hemlock timber, also the mineral that may be found on said premises, to his own use and advantage. The said Lafayette McClintock, in case he should want to clear any part of the land, the owner of said timber is to take it off by being notified thirty days previous.”
    Strawbridge died October 5th 1866, and on the 12th of March 1867, administration of his estate was granted to McClintock; the inventory amounted to $150.72. In answer to a citation McClintock filed an administration account March 17th 1870. Pie charged himself with $262.50, which included the amount of the inventory; his credits amounted to $487.09, of which one item was $310 for funeral expenses and attendance of decedent in his last sickness, $6 costs of citation, and compensation as administrator $50.
    The distributees filed the following, amongst other exceptions to the account:—
    That the accountant had not charged himself with the timber reserved; that he should not be allowed credit for attendance on deced.ent and funeral expenses; for compensation or for costs of citation.
    The account and exceptions were referred to Charles K. Greddes, Esq., as auditor.
    The auditor charged the accountant with $1029.50 on account of the timber reserved under the deed; reduced his credits for attendance, &c., on deceased, costs of citation and compensation, making the whole amount of credits $336.09, and charged him with the costs of the audit, $92.64.*

      He decided that the reserved timber was personal estate.
    The Orphans’ Court (Gamble, P. J.) confirmed the auditor’s report.
    The administrator appealed to the Supreme Court and assigned for error:—
    1. Deciding that the growing timber reservation in deed from John Strawbridge to L. McClintock, was personal property, and in charging accountant with the money value thereof.
    2. Charging the administrator with the costs of the audit.

      S. Johnson, for appellant.
    The reservation not being to the grantor’s heirs was but for life: Lytle v. Lytle, 10 Watts 259. A right to growing timber is real estate: Yeakle v. Jacob, 9 Casey 376; Huff v. McCauley, 3 P. F. Smith 206; Pattison’s Appeal, 11 Id. 294; Caldwell v. Fulton, 7 Casey 484.

      J. Walbridge and Jí. P. Allen, for appellees.
    If the sale contemplates a severance of the trees from the land, it is a chattel interest only which passes: Whitmarsh v. Walker, 1 Met. 313; Nettleton v. Sikes, 8 Id. 34; 2 Parsons on Cont. 312, 313: Rogers v. Gilinger, 6 Casey 187; 3 Bacon’s Abr. 64, Executors and Administrators; 1 Williams on Executors 491, 492; Stukely v. Butler, Hob. 173; Wentworth on Executors 148; Herlakenden’s Case, 4 Rep. 63 b; Whitaker v. Brown, 10 Wright 197.
    As to charging accountant with costs they cited Sterrett’s Appeal, 2 Penna. R. 419.
    October 17th 1872,
   The opinion of the court was delivered, by

Williams, J.

The Orphans’ Court was clearly right in deciding that the pine and hemlock timber reserved by the decedent in his deed to the administrator was personal property, and in charging him with its value. In agreements for the reservation or sale of growing timber, whether the timber is to be regarded as personal property or an interest in real estate, depends on the nature of the contract and the intent of the parties.

If the agreement does not contemplate the immediate severance of the timber it is a contract for the sale or reservation of an interest in land, and until actual severance the timber in such case passes to the heir, and not to the personal representative. But when the agreement is made with a view to the immediate severance of the timber from the soil, it is regarded as personal property, and passes to the executor and administrator, and not to the heir. The earlier authorities, it is true, do not make any distinction between such contracts. Thus, it is said, if a tenant in fee simple grants away the trees, they are .absolutely passed away from the gfantor and his heirs, and vested in the grantee, and go to the executor or administrator, being in understanding of the law divided as chattels from the freehold, and the grantor hath power incident and implied to the grant to fell them when he will, without any other special license: Stukeley v. Butler, Hob. 173 a. So when a tenant in fee simple sells the land and reserves the trees from sale, the trees are in property divided from the land, although in fact they remain annexed to it, and will pass to the executors or administrators of the vendor: Harlakenden’s Case, 4 Rep. 63 b; Liford’s Case, 11 Id. 50; 4 Bac. Abr. tit. Executors and Administrators, H. 82; 1 Wms. Ex’rs 594.

But the distinction to which we have adverted between contracts made with a view to the immediate severance of the timber, and those which are not, is taken in the later authorities: Crosby v. Wadsworth, 6 East 602; Smith v. Surman, 9 B. & C. 561, 17 E. C. L. R. 253; Addis. Contr. 31; and recognised in our own decisions: Huff v. McCauly, 3 P. F. Smith 206; Pattison’s Appeal, 11 Id. 294. In the case last cited the present Chief Justice said: “We regard a contract for standing timber on a tract of land, to he taken off at discretion- as to time, as an interest in land, and within the Statute of Frauds and Perjuries, the transmission of which must be' by writing.” But in the case in hand it is manifest that the parties intended by their contract to divide the pine and hemlock timber from the freehold, and give to it the quality of a chattel. It was not to be taken off at discretion, as to the time. By the express terms of the deed the vendee of the land had the right to require the removal on giving, and the vendor was bound to take it off on receiving thirty days’ notice. The timber must, therefore, be regarded as a chattel, which passed to the' administrator. In so ruling we do not trench upon the doctrine laid down in Pattison’s Appeal, or qualify it in any respect whatever. That case was unlike this in one of its material elements, and was well decided on its facts, and the guarded language of the Chief Justice shows that he had in view the distinction which the law makes in regard to contracts for the reservation or sale of growing timber. If the reservation had been of a perpetual right to enter on the land and cut all the pine and hemlock timber growing thereon, or of a right-to cut and take it off at discretion as to time, then it would be within the rule laid down in Yeakle v. Jacob, 9 Casey 376, and Pattiso'n!s Appeal, and be regarded as an interest in land, which would pass to the heir and not to the administrator on the vendor’s death. But this element, as we have seen, is wanting, and therefore the Orphans’ Court rightly held under the authorities, that the timber in question was personal property, for the value of which the administrator was accountable. It needs no argument to show that the vendor reserved the whole property in the timber, and not merely a right to its use and advantage during his life. This is too apparent on the face of the deed to admit of doubt or question. We see nothing in the facts of this case to take it out of the rule laid down in Sterrett’s Appeal, 2 Penna. Rep. 419, and it follows that the administrator was properly charged with the costs of the audit.

Decree affirmed, at the cost of the appellant.


text:
    Gray versus Henderson et al.

    1. A testator directed. Ms land to be sold as soon as “the times will warrant, either publicly or privately, so as. to make the best of it; should it be thought best by my executors to divide it into small lots and sell at public sale, my will is after the lots ai-e tried at public sale * * * the whole property be set up together and the sale made in the best manner.” He appointed three executors. By a codicil reciting the distant location of his executors, and difficulty of attention by them, he appointed M. “my acting executor, * * * desiring him if convenient to consult the 'above executors in the sale of the real estate.” Held, that a power of sale was expressly conferred on the executors.
    2. By the Act of February 24th 1834, sect. 12, it is enough if in any part of the will the intention be expressed to confer a power of sale on executors.
    3. The power is implied when the distribution and management of the fund arising from a sale is expressly confided to the executor, or when it is confounded by the testator in one common fund with the personalty, although there be no express direction to the executor to distribute it.
    March — 1872.
    Before Thompson, C. J., Sears wood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Clinton county: No. 6, to January Term 1872.
    This was an action of ejectment, brought September 12th 1868, by M. A. Henderson and Margaret his wife in her right, and S. S. Sheddon and Mary B. his wife in her right, against Hiram T. Gray,- for the undivided half of a lot of two acres of land in Allison township.
    The lot in controversy belonged to Alexander Boyd, who died about June 1845. Mrs. Henderson and Mrs. Sheddon are two of his four children.
    He left a will dated September 26th 1843, with a codicil, dated April 10th 1844.
    The will contained the following clauses :—
    “ Item: It is my will, and I hereby direct that the place on which I live be sold as soon after my decease as the times will warrant, either publicly or privately, so as to make the best of it. Should it be thought best by my executors to divide it into small lots and sell at public sale, my will is that after the lots are tried at public sale and the amount ascertained, that the whole property be set up together and sale made in the best possible manner.”
    “ Lastly: I do hereby constitute and appoint my son Reading B. Boyd, Rev. Samuel S. Sheddon and Dr. M. A. Henderson, my beloved children, to be the executors of this my last will and testament.”
    The following is the codicil:—
    “ Codicil — made this 10th day of April 1844. On reviewing the nominations of executors to my will, their distant location and consequent difficulty of attention to such duties, I do hereby constitute and appoint my beloved friend David McCormick, of Mill Hall, Clinton county, my acting executor to this my last will and testament, desiring him, if convenient, to consult with the above-named executors in the sale of the real estate.”
    The will was proved June 9th 1845, and letters testamentary issued to David McCormick.
    On the trial, November 9th 1870, at a special court before Williams, P. J., of Fourth District, the foregoing facts having been given in evidence by the respective parties, the defendant offered amongst other things to prove that David McCormick, after consultation with Messrs. Henderson and Sheddon, sold the real estate in question on the 30th of March 1846, to James T. Hale, Esq., for $2210.
    The court rejected the offer and sealed a bill of exceptions. The verdict was for the plaintiff.
    The defendant, on the removal of the case to the Supreme Court, besides other specifications, assigned the rejection of the foregoing offer for error.

      Q. S. McQormich and Gr. W. Woodward, for plaintiff in error.
    The will names a party to execute the will, and the power of sale is conferred on him as truly and as expressly as if he had been named in the very clause that directed the sale. A will directs a conversion of realty into personalty, and appoints an executor. That is our case. Swinburn says the executor stands in the shoes of the testator ; he is to execute all the will; he is to perform all the lawful acts his testator has enjoined, and it is quite immaterial that he is not named in each instance that a power is devolved or a duty enjoined: 1 Sug. on Powers 133; 1 Williams on Ex’rs. (5th Am. ed.) 580, 581 and notes; Lloyd v. Taylor, 2 Dall. 223; Boshart v. Evans, 5 Wharton 560; Myers’s Appeal, 12 P. F. Smith 104; 2 Washb. on Real Property 315.
    The reporter received no paper-books of defendant in error.
    May 13th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

It is undoubtedly true and has been so held by this court in Myers’s Appeal, 12 P. F. Smith 104, that no implication merely of a power in executors to sell will take a case out of the jurisdiction of the Orphans’ Court under the 12th section of the Act of February 24th 1834, Pamph. L. 73, which provides that “ all powers, authorities and directions relating to real estate contained in any last will and not given to any person by name or by description, shall be deemed to have been given to the executors thereof; but no such power or direction shall be exercised or carried into effect by them, except under the control and direction of the Orphans’ Court having jurisdiction of their accounts.” But this provision, neither by its letter or spirit, requires that there should be any form in the gift “ by name or description.” It is not necessary that the testator should say, “ I authorize my executors to sell,” or “I direct my land to be sold by A. B.” It is enough, if in any part of his will his intention is expressed as to who should sell either by name or description. Here we think there is such an intention clearly expressed in the will of Alexander Boyd, not merely implied. “ Should it be thought best by my executors to divide it into small lots and sell at public sale, &c.” Does not this language express, not merely imply, that his executors shall sell? We do not see how any other interpretation can be put upon it. The same expression of intention is contained in the codicil. In consequence, as he says, of the distant location of the executors named in the will and consequent difficulty of attention to such duties, he appoints an acting executor, desiring him, if convenient, to consult with the above-named executors in the sale of the real estate.” Does not this express, not merely imply, that the sale of the real estate was one of the duties which he had devolved on his executors ? Implied powers are where the distribution or management of the fund produced by a sale is expressly confided to the executor as stated in Boshart v. Evans, 5 Wharton 561, or where the produce of the sale of the realty is confounded by the testator in one common fund with the personalty, even though there is no express direction to the executors -to distribute it, as was the case in Myers’s Appeal, 12 P. F. Smith 107. But those are very different cases from that presented by the will before us, where the testator in two places expresses in words his intention that his executors should sell, and that the duty of the sale should devolve upon them.

The determination of this point in favor of the power exercised by the executor renders unnecessary the consideration of any other question raised upon this record.

Judgment reversed, and a venire facias de novo awarded.


text:
    Moreland Township versus Davidson Township.
    1. Under the Act of March 16th 1868, nothing is brought up by writs of error to orders for removal of paupers, but such matters of law and fact as have been excepted to in the court below.
    2. Where one who is not a relation and not an object of charity, but able to earn wages, is employed in the service of another for any period of time, the law implies a contract of hiring and a promise to pay.
    3. A pauper resided with her father in Davidson township; she left home and hired in Benton township; during many years afterwards she lived in different places without hiring or wages, and was afterwards living with friends in Moreland township, where she became a poor-charge: she was taken thence to Davidson, and by an order of removal taken to Moreland. On appeal from this order, Held, that as between Moreland and Davidson, Moreland was liable for her support.
    March — 1872.
    Before Thompson, 0. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Quarter Sessions of Sullivan county: No. 153, to January Term 1872.
    The proceedings commenced by an order of two justices of the peace of Sullivan county, issued in March 1870, directing the removal of Anna Sperry, a pauper, from Davidson township, Sullivan county, to Moreland township, Lycoming county ; Moreland township appealed from the order to the Quarter Sessions of Sullivan county.
    The facts in the case, as found by the court on the hearing, are contained in the opinion of Elwell, P. J., viz.:—
    “ The material facts are substantially as follows: On the 20th March 1868, Anna Sperry, the pauper, then aged about sixty-five years, came into the township of Moreland, with the family of Mahlon Taylor, in which she had lived in Muncy Creek township, Lycoming county, for nearly two years preceding. She continued to live in the family of Mr. Taylor, in Moreland township, doing housework until the 31st December 1868, when she slipped upon the ice and fell, injuring her knee and disabling her from doing work from that time to the present.
    “ On the 18th March 1869, upon complaint being made to two justices of the peace of Lycoming county, setting forth the fact that the said Anna Sperry was a poor and impotent person, and unable to provide for herself, and that she had not gained a settlement in that district, they made an order directed to the overseers of the poor of Moreland township, requiring them to receive her into their care, and to make suitable provision for her until she could he removed to the place of her last legal settlement.

    In pursuance of this order the overseers of the poor of More-land took charge of the pauper. In April 1869, one of the over seérs of the poor of Moreland applied to C. B. Sperry, a resident of Davidson township, and a brother of the pauper, to take and keep her. Mr. Sperry replied that he was not able to support her, but was willing to do what he could. The overseers replied that she belonged to the township of Davidson. On the 22d day of May 1869, at the time of the conversation last stated, the Overseers of Moreland had brought the pauper to the house of Mr. Sperry, in the night, when it was cold and raining. By reason of the exposure she took cold, and her injured limb became worse.
    “ She remained at the house of her brother, in Davidson, for nearly a year, when he informed the overseers of Moreland that he could keep her no longer, and that they must take her away. One of them promised that he would come up and see to it, but he did not. In May 1870, Mr. Sperry caused her to be taken to Moreland township ; the overseers of the poor refused to receive her, and she was brought back to his house. He then procured an order of relief from two justices of the peace, directed to the overseers of the poor of Davidson township, and thereupon the order of removal from Davidson to Moreland, which gives rise to the present controversy, was procured, the pauper was removed to Moreland, and this appeal therefrom was taken by the overseers of the poor of that township.
    “ On the 20.th May 1869, an order of removal was obtained, directing the overseers of Moreland township to remove Anna Sperry, the pauper, to Davidson township, but it was not executed by delivering the pauper to the overseers of the- poor of Davidson, nor does it appear that they had any notice thereof.
    “ There are other facts in the case, bearing upon the question of the settlement of the pauper, but before proceeding to settle or consider them, it is proper to dispose of the questions raised by those already stated. * * *
    “ I am of opinion, that as between Moreland and Davidson townships, the burden of proof is upon the former, to show that the latter is the last place of settlement of the pauper. * * *
    “ The command of an order of relief is in force until the pauper is removed to his last place of settlement. When that is done, even without an order of removal, and the overseers of the poor of that district have taken charge of the pauper under an order of relief,. there is no good reason why they should be allowed to discharge themselves for ever from his support by-an order of removal back to the district where the pauper had only a quasi settlement. If by legal proceedings, or otherwise, a pauper is brought where he is legally settled, and is there, by proper authority, placed in the hands of the overseer, an order to remove him thence would be contrary to the spirit and meaning of the Acts of Assembly. It is the duty of the district, where he is settled, to provide for him, and it is no answer to the obligation to say, that another district having her in charge before, failed to discharge its duty.
    “ This brings to the inquiry whether Anna Sperry’s last place of settlement is in Davidson township. In 1827 she came to that township with her father, and as one of his family, and lived there with him, on .a farm owned by him, for several years, when she went to Franklin township, Luzerne county, where she resided for a time in the family of John Flick.
    “ Up to this time Anna does not appear to have any other settlement than that derived from her father. While she remained with him as part of his family, her settlement followed his. But when she separated herself therefrom, she being of the age of twenty-two years, was emancipated, and could have no derivative settlement.
    “ Her father being the owner of a freehold estate in Davidson township, upon which he resided for more than one whole year while she was yet a member of his family, she had a settlement there which was then, and still is hers, unless she has in some of the modes mentioned in the statute, acquired one for herself.
    “ It is alleged that she has acquired such settlement by hiring and service for one year in four different townships, by as many different hirings and service, to wit: first in Franklin township, Luzerne county. It appears from her testimony that she went to hire with a Mr. Worthington, in that township, and remained until a year from the next fall. In regard to this she says: ‘ Mr. Worthington came after me to go to his house, to give me a home; he said his wife wished me to come and live with them. After I had been there awhile, I asked him if I should be sick, if they would be willing to take care of me. He replied that if I had a short sickness he would take care of me as well as they could, but if I had a long sickness they would put me on the township. After this conversation I went on and worked for them,.and they provided me with boarding and all that I needed. This conversation took place, I think, in the fall after I went there. I stayed there after, the same as I did before. I lived with them, and worked as one of the family.’
    “ Upon cross-examination in regard to this and other conversations testified to, the witness said: ‘ At none of the places that I worked did I expect any wages, except at Mess’s and Ash’s. At the other places they could give me anything or nothing, as they pleased.’ She explains, that by wages she meant money. On redirect examination she said: 11 expected to receive all they encouraged me to expect, and I did receive it. I expected that Mr. Worthington would support me a short time if I had been sick, because he was a gentleman and an honest man.’
    “Was the service at Worthington’s under a hiring within the meaning of the statute ? Clearly it was not. She was offered a home at his house, and she accepted the offer. She went to ‘ live with them,’ and she stayed and worked there as one of the family, both before and after the conversation in regard to taking care of her if she should be sick. The whole arrangement was gratuitous. She needed a home, and her services were undoubtedly equivalent for all that she required for her sustenance. The promise, if it may be so called, to take care of her ‘when sick for a short time,’ was nothing more than was implied in offering her a home. It does not appear that she was induced by this conversation to remain, nor that she intended to leave if it had not taken place. Without a hiring under a contract, express or implied, no settlement is gained; service for which board and clothing are given, without a bargain, is not sufficient: Lewiston v. Granville, 5 Barr 283. * * *
    “ The next hiring relied upon is that spoken of by Anna Sperry, when she says, ‘ I went to my sister’s in Fishing Creek toivnship, Columbia county. She had a cancer and wanted me to come and take care of her and do her work. She was not able to do her own work, and not able to hire a girl, and I went and worked for her. She said, ‘ I am not able to pay you for what you do, but I will give you all my clothes.’ I stayed with her until she died, which was about a year and a half.’ Again witness Rays, ‘ There was no bargain of any kind when I first went there Sometime after I first went there, to my sister’s, she spoke to me about giving me her clothes, and said she had no money. I never asked her for money or clothes.’
    “ Here again there was no bargain, no hiring. Anna knew her sister was not able to pay hired help; that she could not pay her wages, but prompted by sisterly affection she went to take care of her in time of her affliction and last illness. In such a case proof of an express contract ought to be required to establish a claim for wages. In the face of express proof that no bargain was made, and no wages expected, the law will not imply a contract or hiring.

    “It is incumbent on Davidson township to show affirmatively that Anna has gained an independent settlement from that of her father. The facts should be so clearly proved as not to leave the question doubtful. In the light of this rule it is impossible to conclude that she worked a year for her sister under a promise that her clothes should be given her (Anna) when she, the sister, was dead. This conversation took place at ‘ sometime’ after Anna went there; but whether she worked for her sister a year after that, does not appear. But if it did, a living was not thereby established. A dying woman tells her sister, who was ministering to her wants, probably while gratefully acknowledging the kindness received, that the only return she can make for it is to leave her her clothes when she is done with them. This was not said with the idea of a contract in mind, nor was it received in that manner.
    “ The evidence of the service in the family of her sister after her death, falls so far short of a living that no comment is necessary in regard to it. It is found in the testimony of Anna Sperry in these words: ‘ After my sister’s death I remained with the family in the neighborhood of three years b,y request of nephew and his wife, who said, £ we can do as well by you as any of your folks.’ I worked in his family as I had done.’ Here was no contract; the work was gratuitous and voluntary, and what should be done in return was of the same character.
    “ The allegation of hiring and service in the family of Mahlon Taylor, in Muncy Creek and Moreland townships, is not sustained by the depositions. Mrs. Taylor was the niece of Anna. In May 1866, Mrs. Taylor, out of kindness, requested her to come and live with them. That summer she came and remained with the family until she was injured by the fall before mentioned. Mr. Taylor swears expressly that he had no bargain with her, and that he did not pay her wages. And Anna herself testifies: £ I suppose Mahlon Taylor gave me the offer of a home through kindness. I was aunt to his wife, and she wanted to be kind to me, and it would be an advantage to them because I was well and able to work.’ The circumstances under which she came into and remained with the family, negative all idea of a hiring, and as service without a hiring will not gain a settlement, she acquired none in either of the last-named townships.
    ££ I now proceed to notice that which in my judgment clearly proves a settlement out of the township of Davidson.
    ££ It appears by the testimony of Asa Sperry [that about nineteen years ago Anna Sperry worked a year or two for a Mr. Doty, in Benton township, Columbia county; that Doty’s folks were no relation to her, and she was then strong and able to do a full woman’s work in the house, and that he understood from her that she was at work for wages.]

      “ Under this evidence it is not to be doubted that Anna Sperry could have recovered for her services, what they were reasonably worth. There is nothing in the whole testimony which rebuts the legal implication of a contract in this case. * * *
    “ I am therefore of opinion that Anna Sperry has acquired a settlement since she was emancipated from her father, being unmarried and having no child at the time, according to the uncontroverted testimony in this case, in Benton township, Columbia county, whereby her derivative settlement in Davidson was lost. The township of Moreland could not, by sending the pauper to Davidson, compel that township to search for the last place of settlement. By the happening of the accident to her in Moreland township the labor of doing that was cast upon it.
    ££ The order of removal from Davidson to Moreland merely returned the pauper to the place, for the time being at least, liable to her support. As between these townships Moreland is the place of settlement. * * *

      “ The order of removal is affirmed,” &c.
    Moreland township, by leave of the court, filed exceptions, September 31st 1870,- to the opinion of the court.

      1. The evidence admitted and found by the court (in the opinion in brackets), should not have been admitted, being hearsay.
    2. The evidence is insufficient to prove such a hiring in Benton township as would give the pauper a settlement, not being that required by the Act of Assembly.
    3. The court decided that there was such an implied contract of hiring between the pauper and Mr. Doty, as fulfilled the requirements of the law and gave her a settlement in Benton township.
    4. The court decided that an implied contract of hiring is sufficient to gain a settlement.
    5 and 6. The facts in evidence were insufficient to give a settlement in Benton township and to authorize the removal there; to change the pauper from Davidson to Moreland, no settlement having been proved since her settlement in Davidson.
    The exceptions were “ not sustained, and the judgment and order as made were affirmed.”
    Moreland township took a writ of error to the Supreme Court, and assigned for error: that the court erred as set forth in the several exceptions to the findings, &e.

      J. L. Grim and P. L. Bentley, for. the plaintiff in error.
    The admissions and declarations of a pauper are not evidence: West Buffaloe v. Walker, 7 Watts 173. The service to gain a settlement must be under a “hiring” for a year: Act of June 13th 1836, § 9, Pamph. L. 542, 2 Br. Purd. 1155, pl. 10. A contract must appear: Lewistown v. Granville, 5 Barr 284

      T. J. Ingham and B. M. Dunham, for defendant in error.
    The care of the pauper was on Moreland, and it could not be relieved by her removal to Davidson: Kelly Township v. Union Township, 5 W. & S. 536; Milton Township v. Williamsport, 9 Barr 46. As to the hiring they cited Heidleberg v. Lynn, 5 Wharton 433.
    May 13th 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

This ease is before us on a writ of error to the Quarter Sessions of Sullivan county, under the provisions of the Act of 16th March 1868, Pamph. L. 46, which provides that Upon the hearing and argument of all appeals, before any court of Quarter Sessions, from the order of removal of paupers from one district to another, it shall be lawful for either of the parties to the issue to except to any decision of the court upon any point of evidence or law, which exception shall be noted by the court and filed of record, as in civil cases ; and a writ of error to the Supreme Court may be taken by either party to the judgment of the court with like effect as in civil cases.”

It may be well for the profession to notice this provision, for it changes the practice in pauper cases to be brought up for review, materially. Formerly the practice was to bring the whole case up on appeal; the evidence and opinion of the court with the record. Now only such matters of law and fact as are excepted to .on the hearing can come up. The matters of fact mean such, we presume, as are not properly evidence, or if, evidence from which an erroneous conclusion is thought to have been deduced. The case in hand is sufficiently before the court under the act.

The law of the learned court is not excepted to, and we have only to deal with exceptions to certain facts received in evidence and the deductions from them.

The first exception has reference to the evidence and finding of the learned judge of a hiring and performance of service by Anna Sperry, in Benton township, Columbia county, at one Doty’s for a year. The proof was by a brother of Anna, who testified that he visited her while she worked there; that she was strong and capable of doing full work as a house servant; that she worked there one or two years, and that he thinks she worked for wages; that he always understood it so, and that Doty’s family were no relations of hers. It was earnestly contended that this was not a hiring, and the performance of service for a whole year under which a settlement could be gained. It would not be, under the English rule, but we think it was under our more liberal rule. If one who is no relative, and not an object of charity but able to earn wages, is proved to have been employed in the service of another for a year, or any other period of time, the law implies a promise to pay, on the implication of a contract. Certainly this presumption of a contract will stand until rebutted by facts to the contrary. But we are not without authority on the point. In Heidleberg v. Lyon, 5 Whart. 430, Chief Justice Gibson, in treating of the point, said, Our law seems to consider service alone as the meritorious cause, and to require that there should have been a contract for it, only as proof that it was valuable, and distinguished in that respect from those feeble and trifling acts whieh are sometimes performed in requital of a gratuitous maintenance;” in other words, to show that the hireling had been a benefit to the township and a producer, and not a pauper from the beginning. “ It is therefore,” he says, “ enough for the purpose that the pauper has been in uninterrupted employment, whether under one contract or any number of contracts.” The proof was certainly to this effect. It is sufficient for a party to an action, primfi facie, to show labor performed to raise an implied assumpsit to pay for it: Swires v. Parsons, 5 W. & S. 357. Cases are not necessary to prove this. The proof was primá facie here sufficient to raise a presumption of hiring and conclusive on the hearing, not being disproved or repelled. Of course, the judgment of the court was not conclusive on Benton township, but only on Moreland township, in the contest with Davidson township. This being so, the decree of the court affirming the order of removal from Davidson to Moreland, together with expenses and costs, was altogether proper and right. It will be for the latter to take charge of the pauper until it finds her place of last legal settlement. I will not speculate on what might be the condition of affairs, if it should turn out eventually that she had no residence in Benton or any other township, excepting at her derivative settlement, which it seems was .Davidson township; we leave this until it occurs. One thing we regret to notice in this case, which we ought not to omit, that one at least of the overseers of Moreland township, acted like anything but the good Samaritan, in surreptitiously removing this poor lame woman in the wet and cold from the place of her injury, and in the nighttime, to the house of a very indigent brother, for the evident purpose of getting rid of the maintenance the township owed her until her true place of settlement could be ascertained. It was uncharitable, and I might add, unchristian conduct, to say the least of it.

We have thus noticed all that the exceptions in the case call for notice. We think the case was well and ably decided, and that the law involved follows the decisions so accurately that it left no room for complaint by the plaintiff in error, or for remark by us.

Judgment affirmed.


text:
    Reed’s Appeal.
    1. In an issue directed to try a question of fact in the distribution of the proceeds of a sheriff’s sale, a writ of error does not lie till after final decree.
    2. Whenever it is alleged that there were errors on the trial of the issue, the proper practice is after the decree of distribution, to bring up the whole record by writ of error.
    3. If parties take an appeal without accompanying it with a writ of error, the judgment on the feigned issue cannot be reversed on the appeal from the decree, and the finding of the jury is conclusive.
    4. A judgment-creditor, subsequent to a foreign attachment laid, has a standing to contest the facts of the non-residence of the defendant and that the plaintiff in the attachment gained a lien by his writ.
    5. A debtor does not become a non-resident so as to subject him to a foreign attachment by leaving his residence and going into another state to seek a new one, until he has obtained another place of abode, with intention of remaining in it.
    6. A domicil remains until a new one be obtained in fact and intention : except that the domicil of birth reverts, as soon as one who had acquired a new domicil removes from it, with the purpose to resume his native domicil.
    7. The Act of June 16th 1836, as to issues in distribution of proceeds of sheriffs’ sales, construed.
    8. Brown’s Appeal, 2 Casey 490, criticised and limited.

      March — 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew^J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Warren county:' Of January Term 1872, No. 287.
    In the matter of the distribution of the proceeds of the sheriff’s sale of the real estate of William L. Tamblyn.
    On the 2d of August 1869, Boon Mead issued a foreign attachment out of the Court of Common Pleas of Warren county, against Tamblyn, under which his real estate was attached on the 4th of the same month.
    On the 9th of the same August a judgment was entered in the same court against Tamblyn for $4320, in favor of Dwight Reed.
    On the 14th of March 1870, judgment was obtained, in the foreign attachment against Tamblyn for $880.26. Subsequently to March Term 1870, the real estate attached in the foreign attachment was sold under Reed’s judgment at sheriff’s sale for $1200, and that sum brought into court for distribution.
    Mead then presented a petition setting forth the foregoing facts and averring that on the 2d of August, when the attachment was issued, Tamblyn was not a resident within the state of Pennsylvania, and praying that his judgment should be first paid out of the fund in court.
    Reed answered the petition denying that when the attachment issued Tamblyn was a non-resident of Pennsylvania, and averring that he was a resident and an absconding debtor, and his property not the subject of a foreign attachment. On this petition a feigned issue was directed, in which Boon Mead was made plaintiff and Dwight F. Reed defendant, “ to try the question whether the real estate attached by foreign attachment (Boon Mead v. William L. Tamblyn), was liable to process of foreign attachment at the time said writ was issued and served.”
    The issue was tried December 15th 1871, before Williams, P. J., of the Fourth District.
    There was evidence for the plaintiff that Tamblyn had been a resident of Wayne county for some years, and left there with his family on the 28th of July 1869, for the purpose of going to San Francisco, but stopped in Chicago, and after having remained a week there, boarding at a hotel, still with the purpose of going further, his wife refused to go further; he then determined to stay in Chicago, rented a house and in about three weeks after-wards went into business in that city. He had no intention to make Chicago his residence until he arrived there.
    There was evidence for the defendants that Tamblyn had left Wayne county clandestinely for the purpose of avoiding his creditors.
    • The plaintiff’s points were :—
    1. If William L. Tamblyn left the state of Pennsylvania with his family with the intention of making a residence elsewhere and of not returning into the state for the purpose of resuming it here, he ceased to be a resident of Pennsylvania when he left it for that purpose, and his estate was subject to the process of foreign attachment as between an attachment and a subsequent judgment creditor ; although he may not have determined at what particular place he would fix his residence outside the state when he left.
    2. As between the parties to this issue the fact as to whether said Tamblyn was or was not heavily indebted is irrelevant, and the defendant not being a domestic attaching-creditor is not in a position to raise the question as to whether the said Tamblyn is an absconding debtor.
    The court charged :—
    “We affirm the 1st and 2d points submitted by the plaintiff’s counsel.
    “We instruct you that if Tamblyn was actually a non-resident at the date of issuing the attachment, i. e., had left the state with the intention to remain away, having his family with him and' not being in the county when the writ issued, it was properly issued so far as the defendant is concerned. The defendant in this issue being a judgment-creditor of Tamblyn stands in the same position. If Tamblyn could not be heard to deny his non-residence under the circumstances disclosed in this case, this judgment-creditor cannot. Residence or non-residence is to be determined not by following the debtor to ascertain if he has actually settled in business elsewhere, but by ascertaining with what intent he leaves his dwelling-place within the Commonwealth, and passes with his family outside her boundaries. If such removal is with the intent to defraud, &c., a domestic attachment would take priority over the foreign attachment, but the presence of the fraudulent intent gives no rights to any one who does base his proceedings upon it.
    “ To the foregoing instructions defendant’s counsel excepted before verdict and at their request the said instructions were written out and filed.”
    The verdict on the issue was for plaintiff, and the court decreed “ that the amount of judgment and costs in case of Boon Mead v. W. L. Tamblyn, together with the costs made in this issue, be paid out of money in court.”
    Reed appealed to the Supreme Court.
    The errors assigned were to the charge, and the answers of the court to the points ; and to the decree ordering the judgment and costs in Mead v. Tamblyn to be paid out of the money in court.

      W. D. Brown, for appellant.
    Tamblyn had not lost his residence ; he was the subject not of a foreign but a domestic attachment: Barnet’s Case, 1 Dallas 152; White v. Brown, 1 Wallace C. C. R. 217; Pfoutz v. Comford, 12 Casey 420.

      B. Brown, for appellee.
    A removal from a state with an intention at the time to change the domicil is sufficient to change the residence: Burch v. Taylor, 1 Phila. R. 224; Reed v. Ketch, Id. 105; Serg. on Attachments 63.
    May 13th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

It was settled in Brown’s Appeal, 2 Casey 490, that where there has been a feigned issue and a verdict and judgment, in the case of the distribution of the proceeds of a sheriff’s sale, the proper course is to bring up the whole record by appeal. I cannot reconcile that decision with the express provisions of the Act of June 16th 1836, Pamph. L. 777, which after enacting, sect. 87, that if any fact connected with the distribution shall be in dispute, the court shall, at the request in writing of any person interested, direct an issue to try the same, and that the judgment upon such issue shall 'be subject to a writ of error in like manner as other cases wherein writs of error now lie, it declares, sect. 88, that upon a writ of error issued as aforesaid, the whole record shall be returned, and it shall be competent for any person aggrieved by the decree of distribution to take exceptions thereto if the judgment upon such issue should be affirmed. It is clear that the writ of error does not lie until after final decree, and that it is only in the event of the affirmance of the judgment upon the feigned issue that the decree of distribution is to be reviewed in this court. It was meant that as the trial by jury on the disputed facts was given to the parties as a constitutional right, so the verdict and judgment unreversed should be conclusive; if reversed, the cause must be remitted for another trial. Upon an appeal from the decree simply, how can it be reversed if it conform as to the facts to the verdict and judgment upon the feigned issue; in other words, upon such an appeal without a writ of error, must not the parties be held to have acquiesced in the judgment? This view seems to be confirmed by the 89th section, which provides that any person aggrieved by the decree of the court in any case of distribution made, without the intervention of a jury, may, at any time within twenty days thereafter, appeal from the same to the Supreme Court. The act may be held not to take away the right of appeal even from the parties to the feigned issue, if it be assumed that there is some general right' to appeal not founded upon express statutory provisions, and that is the extent of the determination in Brown’s Appeal, and with the judgment in that case, so far as it goes, we do not mean to interfere. No question arose in that case on any bill of exceptions on the trial of the feigned issue. The verdict of the jury was special, and was acquiesced in, and the judgment of the Supreme Court was that, assuming it to be true, the decree below was wrong, and it was accordingly reversed. We hold the proper practice to be as to the parties to the feigned issue, whenever errors are alleged to have occurred on the trial, after the decree of distribution, by a writ of error to bring up the whole record. If they appeal without accompanying their appeal with such writ, no judgment of reversal of the judgment on the feigned issue can be regularly entered here on the appeal from the final decree, and as a consequence the finding of the jury upon the feigned issue must be regarded as conclusive. We are aware that this court has in some cases expressed its disapprobation of writs of error on feigned issues, as in Christophers v. Selden, 4 Casey 165; hut that was a case in which the writ of error was issued before the final decree, a practice contrary both to the letter and spirit of the act, and in such a case the writ ought undoubtedly to be quashed. The only tendency of such writs is to procrastinate. It is true that the proper practice under the provisions of the act should be understood, and we think it ought to be as indicated in this opinion.

Assuming the verdict of the jury below as settling the question of fact that Tamblyn was, at the time of the issuing of the foreign attachment, a non-resident of the Commonwealth, the decree of the court below was entirely right. Upon the main position assumed that the subsequent judgment-creditor had no standing in court to question the prior lien of the attaching creditor, we consider it as settled by Pfoutz v. Comford, 12 Casey 420. In that case upon a foreign attachment laid upon personal property, a subsequent execution-creditor was allowed to intervene and contest the question whether the defendant in the attachment was a nonresident. It would be an anomaly if a man, by issuing a foreign attachment against a resident, could thereby obtain an immediate lien, either upon land or goods, which would take precedence of subsequent judgments or executions. Reed, the appellant and judgment-creditor, had a clear right to show that Tamblyn was not a non-resident within the meaning of the Act of 13.th June 1836, § 44, Pamph. L. 580, and that he acquired no lien by the writ. Were the bills of exceptions properly before us, we would be compelled to hold that the learned judge erred on the trial of the feigned issue in affirming the plaintiff’s 1st point; but it was an error which has done the appellant no injury, for it clearly appears in the evidence, and was admitted in the argument at bar, that at the time the writ of foreign attachment issued, Tamblyn had actually taken up his abode with his family in Chicago, with the intention of making it the place of his permanent residence. It was decided by this court in Pfoutz v. Comford, supra, that a debtor does not become a non-resident, so as to subject him to a foreign attachment, by leaving his place of abode in this state, and going to another state to seek a new residence, but continues a resident of the state until he has obtained another place of abode with the intention of remaining in it. This decision accords entirely with all the authorities. Mr. Justice Grier expressed it clearly and tersely in White v. Brown, 1 Wall. C. C. R. 264: “A man cannot he considered as a vagabond or a person without any domicil; for the domicil of origin is not abandoned until a new one has been intentionally and actually acquired.” A domicil once acquired remains until a new one is acquired actually, facto et animo ; the fact and intention must concur: Story on Confl. § 47. There is one recognised exception to this rule, which is that the domicil of birth easily reverts, and therefore if a man has acquired a new domicil different from that of his birth, and he removes from it with an intention to resume his native domicil, the latter is reacquired, even while he is on his way, in itinere; for the native domicil reverts the moment the acquired domicil is given up with the intention of resuming the former: Story on Confl. § 47. In this as in other cases, exceptio probat regidam.

Decree affirmed.


author: Agnew, J.

text:
    Coe versus Vogdes.
    1. A surety became bound for a tenant’s performance of a contract of lease for one year, the rent payable monthly, and if tenant continued after the term, the contract to continue for another year. Held, if the tenant held over the year, the surety was responsible for the subsequent rent.
    2. That the premises were in an untenantable condition was no defence to the surety, the tenant having continued in possession.
    3. The surety being informed by the landlord that the tenant was in arrears, gave him notice that he would not be further liable : the tenant paid the arrears to that time ; this did not discharge the surety from the subsequent rent.
    4. A mere notice by surety that he would not be liable was no defence; he could not dissolve the contract at his pleasure.
    January — 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Certificate from Nisi Prius: No. 33, to January Term 1871.
    On the 29th of January 1870, Hannah E. Vogdes, devisee of John R. Vogdes, commenced an action of covenant against Benjamin Scott, Jr., and John E. Coe, on an agreement by defendants to be responsible for the performance by- Louisa F. Wyman of the stipulations in a lease to her from John R. Vogdes, dated November 15th 1865. Coe only was served.
    The lease was for a house for one year from November 15th 1865, at the annual rent of $1800, payable “ in monthly portions when due,” with the further stipulations:—
    “ That all the personal property on the premises shall be liable to distress, and also all personal property if removed therefrom, shall, for thirty days after such removal, be liable to distress, and may be distrained and sold for rent in arrear; the said L. F. Wyman hereby waiving all right to the benefit of any laws now made, or hereafter to be made, exempting personal property from levy and sale for arrears of rent. * * * That if the above-named L. E. Wyman should continue on the above-described premises after the termination of the above contract, then this contract is to continue in full force for another year, and so on from year to year, until legal notice is given for a removal.”
    The covenant of the defendants of the same date was :—
    “We, B. Scott, Jr., and J. E. Coe do hereby agree to be responsible to J. R. Yogdes or his assigns for the true and faithful performance of the above-named contract on the part of Mrs. L. E. Wyman.”
    Coe filed an affidavit of defence:—
    “ That Mrs. Wyman took possession, and moved into the said premises, furniture to the value of over $2000. By the waiving of all legal exemption, the whole amount was fully subjected to seizure by the plaintiff for rent, in case the rent should not be paid to plaintiff by the tenant, as agreed upon. That the said furniture remained on said premises, liable to be taken in distress for rent during all the period of said tenancy and during all the time when the rent accrued for which this said suit was brought. That the said Yogdes, knowing that the said rent was due, wilfully and intentionally allowed the said Mrs. Wyman to remove from the said premises all the said furniture, with the intent, your deponent believes, of collecting the said rent from her sureties. That after the said removal and before any notice of these proceedings was given to the deponent, Mrs. Wyman, the tenant, became insolvent. That the said Yogdes allowed the furniture in question to be sold by other subsequent creditors without any prosecution of his claim, and that only after the said insolvency of Mrs. Wyman did he notify the deponent of these proceedings. That in so acting, the plaintiff was guilty of gross laches, and that it amounted to a fraud upon the deponent. That the said contract on which he was security required that the rent should be paid in monthly portions when due, and that he only became surety for said monthly payments. That if liable at all on said contract he is liable only for one monthly portion.” -
    The defendant, Coe, afterwards filed a supplemental act of defence “ That the above suit is brought for rent that accrued in the spring of 1870, and that he was guaranty for the rent of Mrs. Wyman only for one year, from November 15th 1865, and further that no attempt has been made by the plaintiff to collect said rent of Mrs. Wyman. That more than one year ago he received a note from Mr. Yogdes informing him that Mrs. Wyman was then in arrear for rent, and that he replied that on account of the untenantable condition of the house, he would not be liable for the rent, but that Mrs. Wyman would nevertheless try to pay him. That the said sum then demanded has been paid by her, and that the sum now sued for accrued since said notice.”
    The court, on the 13th of October, entered judgment for the plaintiff for want of a sufficient affidavit of defence.
    The defendant had the record certified to the court in banc, and assigned for error, the-entry of judgment for the plaintiff.

      L. Wain Smith, for plaintiff in error.
    If a surety pays all due at the time by the principal, and gives notice that he will no longer be liable, he will be discharged: Gardner v. Ferree, 15 S. & R. 28. Vogdes allowed the tenant’s goods to be removed, thus releasing the security which he had, and thereby discharged her surety: Neff’s Appeal, 9 W. & S. 36; Pitman on Principal and Surety 113, 114; 40 Law Lib. 86; Theobald on Principal and Surety 84, &c.; Commonwealth v. Miller, 8 S. & R. 452.

      J. II. Grendell and H. S. Miller, for defendants in error.
    A surety is not released by the mere neglect of the creditor: United States v. Simpson, 3 Penna. R. 437; Mundorff v. Singer, 5 Watts 172; Richards v. Commonwealth, 4 Wright 146.
    January 29th 1872,
   The opinion of the court was delivered, by

Agnew, J.

The defendants, as sureties, made themselves responsible to J. R. Vogdes for the true and faithful performance of the terms of the lease on part of Mrs. L. E. Wyman. The lease, by its own terms, provided for its continuance from year to year, until legal notice was given for a removal. It is evident, therefore, that if a new year’s tenancy took place by Mrs. Wyman’s holding over without a notice of removal, the sureties became responsible for the rent by the very terms of their contract. Neither the affidavit nor the supplemental affidavit avers a termination of the lease by notice or otherwise; but the supplemental affidavit merely avers that Coe, the deponent, received a note from Mr. Vogdes informing him that Mrs. Wyman was then in arrear for rent, and that he replied that on account of the untenantable condition of the house he would .not he liable for the rent, but that Mrs. Wyman would try to pay him. It then avers that the sum then demanded has been paid by her, and that the rent now sued for has accrued since that notice.

But this was clearly insufficient, for by the continuance of Mrs. Wyman in possession, and the renewal of the lease by its own terms, Mrs. Wyman became liable to pay the rent. This was,her contract, and by the terms of the contract of suretyship, the sureties became liable for her faithful performance. Whatever, therefore, might be the power of the sureties, as contended in the argument, to limit their future liability by notice against the renewal of the lease, the affidavit sets forth no such notice, and no termination of the lease in fact. A mere notice by the sureties that they will not be liable, is no defence to their covenant, for it is not in their power to dissolve their contract at their own pleasure. The untenantable condition of the premises is not stated in the affidavit to have been set up by Mrs. Wyman in discharge of the lease, and as the cause of bringing it to an end in fact. If she did not abandon the possession and bring the lease to an end for this cause, the sureties can certainly make no such defence. Whether it would be in her power even to abandon after the commencement of a new term, for this cause, we cannot determine, and it would not be proper for us to do so. The affidavit is therefore insufficient, and the judgment must be affirmed.

Affirmed.


text:
    Robinson versus Buck.
    1. A witness if competent for any purpose, although not for others, is admissible on a general objection to his competency.
    2. If testimony from him offered after his admission be incompetent it should then be specially objected to, or the court asked to direct the jury to disregard it.
    3. A wife on the day of her marriage conveyed her real estate without consideration: Held, that this was primS, facie in fraud of her husband’s marital rights, and the burden was upon the grantee to show that it had been communicated to him.
    4. The grantee bequeathed the residue of her estate to the wife, who received it from the executor with the assent of the husband: this did not estop him from recovering the land after his wife’s death as tenant by the curtesy.
    5. The wife and her children claiming through her were bound by her election to take under the grantee's will; the children therefore could not recover the land.
    6. The ejectment for the land was in the name of husband “ on behalf of himself” and the children, u as their next friendthe verdict was generally for the plaintiff; being error as to the children the record was amended in the Supreme Court by striking out “ on behalf of himself,” &c., and the judgment then affirmed.
    7. In an ejectment to set aside a deed on the ground of fraud; the judge sits as a chancellor and the jury are his assessors to assist him on the credibility of witnesses and reconciling conflicting testimony.
    8. Belt v. Ferguson, 3 Grant 259 ; Duncan’s Appeal, 7 Wright 67, recognised.
    February 20th 1872.
    Before Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 169, to July Term 1871.
    This was an amicable action of ejectment, in which Frederick J. Buck “ on behalf of himself and Fanny S. Buck and Lizzie T. .Buck, minors, as their next friend,” was plaintiff, and John Robinson and William Woódside, “executors and trustees under the last will and testament of Ann Buck, deceased, Mary Shields Dalton and Ellis P. Dalton her husband were defendants.”
    The case was tried May 16th 1871, before Hare, P. J.
    The plaintiffs gave evidence that the premises in dispute had belonged to James Buck; and that on the 30th of October 1857, he with his wife had conveyed them to Ann Eliza Shields.
    The plaintiff, Frederick J. Buck, was then offered as a witness; he was objected to as being a party interested and not within the Act of April 15th 1869 ; he was admitted to testify, and a bill of exceptions was sealed. He testified that he had married Ann E. Shields, the above-named grantee, on the 22d of May 1861, about 9 o’clock p. m. ; that she was dead, leaving two children, the above-named Fanny S. and Lizzie T. Buck, both being minors.
    The defendants then gave in evidence a deed, dated May 22d 1861, from Ann Eliza Shields to Ann Buck, recorded July 13th 1861. They gave in evidence the will of Ann Buck, proved October 23d 1862, devising the premises to the above-named executors in trust, to permit Ann E. Buck (Shields) to take the rents, &c., and after deducting ground-rent, tax, &c., to apply the balance to her sole and separate use for life, and upon her death the trustees to hold the premises for the sole and separate use of Mary Dalton, defendant. The whole of, the residue was bequeathed to the said Ann E. Buck.
    The defendants rested, and the plaintiffs in rebuttal called Lewis Stover, Esq., who testified that the deed of May 22d 1861 had been prepared under his directions. Miss Shields desired to know how soon the deed could be prepared; it was prepared, executed and acknowledged between 12 and 3 o’clock in the day. It seems to me she did say she was going to be married; she told me to keep it at that time. Some time after she told me to record it. “ I had the deed ever since, except when it was left for record; she had nothing at the time; she lived with her aunt, and attended to business for her aunt; no consideration was paid.”
    The plaintiff was again offered and objected to on the same ground as in the first instance; he was admitted and a bill of exceptions sealed. He testified that he knew nothing of the conveyance after his marriage; never knew Miss Shields had conveyed to Mrs. Buck; did not know before the marriage that his wife owned property; he knew it during her life ; he did not object to his wife taking under Mrs. Buck’s will.
    The defendant gave in evidence the report of the auditor in the Orphans’ Court distributing the estate of Mrs. Ann Buck, and showing a balance of $2046.19, which was received by Mrs. Ann Eliza Buck. They gave evidence that from 1857 to 1861 Ann Eliza Shields collected the rents from the premises in the name of Mrs. Ann Buck and her husband, and signed the receipts “Ann Eliza Shields for James Buck,” and “A. E. Shields for Ann Buck.” They gave in evidence a mortgage on premises from James Buck, which was paid by him, and satisfied October 19th 1858. Also deed from Charles J. Allen to Ann Buck, dated July 26th 1859, assigning a ground-rent of the premises of $60.62; also evidence that in 1857 the premises were worth $7000; also, that Ann Eliza Shields was the niece of Mrs. Ann Buck, lived with her, and was adopted by her and her husband. Mr. Stover called again; testified that the premises had belonged to David Thompson, the first husband of Mrs. Ann Buck; after Thompson’s death, James Buck bought the premises at sheriff’s sale for $500, “ a trifle.” James Buck built on it; between him and his wife it was claimed that she owned the land and he the building. Witness “received the impression that the deed to Ann Eliza Shields was made to quiet any disputes between Mr. and Mrs. James Buck. She was to be their heir ; they concluded to give the title to her by executing the deed of 1857.”
    The plaintiff then gave evidence that he and Miss Shields were married about 9 o’clock at night; she was then about twenty-five years old.
    The defendants asked the court to charge:—
    1. That a deed made by an unmarried woman immediately before marriage, is not necessarily fraudulent and void, but that whether or not such a deed is fraudulent, must depend upon the surrounding circumstances.
    2. That a moral obligation is such a consideration as to support a deed made by an unmarried woman on the eve of marriage.
    3. That a parol trust is such a moral obligation as to support a deed by an unmarried female, though made on the eve of marriage.
    4. That to avoid a deed made by an unmarried female on the eve of marriage as fraudulent, it must be proved to have been without the husband’s knowledge and pending a treaty of marriage.
    5. That the husband alone can avoid such a deed made By his wife on the eve of marriage, and that it is only void so far as his interest is concerned, and against him so far as void at all.
    6. That the circumstances of the poverty of the husband and of his making no settlement on the wife and bringing no property to the marriage union, go to rebut any presumption of fraud in an ante-nuptial deed by the wife.
    7. That the receipt of Ann Eliza Shields as agent for Ann Buck, of rent of the property in question, between 1857 and 1861, is such evidence in writing as to take the case out of the Statute of Frauds and entitle the jury to find whether or not there was a trust for Ann Buck.
    8. That the deed from Ann Eliza Shields to Ann Buck may also be considered by the jury in the light of a written declaration, which, if they believe a trust existed, will take it out of the Statute of Frauds.
    9. That a party cannot claim under and against a will.
    10. That the receipt of Dr. Buck and Ann Eliza, his wife, of distributive share under Ann Buck’s will, is such an equitable election as, unless refunded, to estop them, or parties claiming under them, from disputing that Ann Buck owned the premises in question.
    11. That the auditor’s report and settlement of the account of estate of Ann Buck, is evidence to show the receipt of the personal property bequeathed to them by Dr. Buck and wife.
    12. That a treaty of marriage must be conclusively proved to have existed at the time of the conveyance by the intended wife, and an agreement to become the wife in order to declare the conveyance fraudulent.
    13. In the absence of any representation as to specific property, there is no implied contract on the part of the lady that her property shall not be diminished before marriage.
    All the points were denied and the court reserved the question whether or not there was sufficient evidence to establish a trust in Ann Eliza Shields for Ann Buck, and further charged: “If the jury believe, from the testimony of Dr. Buck and the other evidence in the case, that all knowledge of the conveyance to Mrs. Ann Buck was withheld from him, and that he was ignorant of it at the marriage, the deed was under such circumstances, a fraud on his marital rights, and your verdict should be for plaintiffs.”
    The verdict was for the plaintiff, and judgment was afterwards entered on the verdict for the plaintiff.
    The defendants on a writ of error assigned for error: admitting the plaintiff to testify, the answers to the points and the charge of the court.

      B. B. Watson, B. L. Ashhurst and A. Thompson, for plaintiffs in error.
    The plaintiff was not competent under the Act of April 15th 1869, sect. 1: P. L. 1869, p. 30; 1 Br. Purd. 624, pl. 16; Snyder v. Snyder, 6 Binney 488; Hay v. Hay, 3 Rich. Eq. 393; Hasbrouck v. Vanderoork, 5 Selden 153; Alcock v. Alcock, 12 Eng. L. and Eq. R. 354; Hitner’s Appeal, 4 P. F. Smith 117; Cornell v. Vanartsdalen, 4 Barr 365; Stein v. Bowman, 13 Peters 209; Wells v. Tucker, 3 Binney 366; Diehl v. Emig, 15 P. F. Smith 320; Newlin v. Newlin, 1 S. & R. 278.
    The deed itself from Ann Eliza Shields to her aunt, though made just before marriage, is primá. facie good, and has not been sufficiently assailed: St. George v. Wake, 1 Mylne & Keene 610; England v. Downes, 2 Beavan 522; 2 De Manneville & Compton, 1 Ves. & Beames 354; Adams on Eq. 406; Wrigley v. Swainson, 3 De Gex & Smale 458; 4 Cruise Dig. 410; King v. Cotton, 2 P. Wms. 674.

      There was no direct evidence of a positive treaty of marriage as a definite binding betrothal at the time of the deed; this was necessary to invalidate the deed: Taylor v. Pugh, 1 Hare 608; Strathmore v. Bowes, 1 Ves. Jr. 22. The question whether the deed was or was not fraudulent, should have been left to the jury.
    The husband’s right in wife’s estate before marriage, is inchoate a mere equity, not an estate: Crane v. Morris, 6 Peters 598.
    There was some evidence of a resulting trust from payment of money in the satisfaction of the mortgage and purchase of ground-rent, which should have gone to the jury, although there might be contradictory evidence: Harrold v. Lane, 3 P. F. Smith 268; Hill on Trustees 56-61. The receipts as agents were a distinct admission that her title was only a trust: Williard v. Williard, 6 P. F. Smith 119; Williams v. Potts, L. R. 12 Eq. 148; Raybold v. Raybold, 8 Harris 311; Forster v. Hale, 3 Ves. 707.
    A moral obligation will support an antenuptial deed, although the husband be ignorant of it: Blithe’s Case, 2 Freeman 91; Hunt v. Matthews, 1 Vernon 408; Blanchett v. Foster, 2 Ves. 264.
    The acceptance of a benefit under a will estops legatees from denying right of testator in anything he has bequeathed or devised, and operates as a conveyance of the legatee’s right to the party claiming under the will: Redfield on Wills 743; Ward on Legacies 187; 1 Jarman on Wills 385; 1 Roper’s Husband and Wife, Jacob’s note, p. 566; Preston v. Jones, 9 Barr 456; Stump v. Findlay, 2 Rawle 174; Fulton v. Moore, 1 Casey 468; Gable’s Executors v. Daub, 4 Wright 230. Ann Eliza’s being a feme covert will not destroy the effect of her election: 1 Jarman on Wills 385, note; Redfield on Wills 743; Grattan v. Haywood, 1 Swanst. 409, note; Dillon v. Parker, Id. 407; Macnamara v. Jones, 1 Bro. C. C. 481; Robertson v. Stephens, 1 Iredell’s Eq. 247; Wilson v. Townshend, 2 Ves. Jr. 693; Barron v. Barron, 4 Kay & Johnson 409; Ardesoif v. Burnet, 2 Dickens 463; Shredd v. Casey, 11 B. Monr. 181; Cord’s Legal & Eq. Rights, § 246; Winter v. Walter, 1 Wright 160; M’Cullough v. Wilson, 9 Harris 436; Tiernan v. Rowland, 3 Id. 429; Wall v. Wall, 15 Simmons 521; Lady Cavan v. Pulteney, 2 Ves. Jr. 560. The husband here admits he acquiesced in wife’s election, and certainly made no attempt to restrain it. An election once made is binding: Buist v. Dawes, 3 Rich. Eq. R. 281; Maple v. Kussart, 3 P. F. Smith 348; Blake v. Bunbury, 1 Ves. Jr. 523; Lewis v. Lewis, 1 Harris 80; Holmes v. Coghill, 7 Ves. Jr. 499; Penna. Life Ins. Co. v. Stokes, 11 P. F. Smith 136.
    The plaintiffs should have offered to refund: Cord’s Legal & Eq. Rights, pp. 332-3; Green v. Green, 2 Meriv. 86; Thellusson v. Woodford, 13 Ves. Jr. 220; Moore v. Butler, 2 Sch. & Lef. 267; Cheeves’ Eq. 37, 42; Leonard v. Crommelin, 1 Edw. Ch. 206, 210. The husband has lost any right he might have had by his laches, in not proceeding in his wife’s lifetime: Loader v. Clarke, 2 MacNaghton & Gordon 382; Pringle v. Pringle, 9 P. F. Smith 281.

      F. Wolfe and A. Briggs, for defendants in error,
    as to the admission of plaintiff to testify cited: Cawley v. Wilson, Legal Intel. 8th April 1870, p. 109; Acts of April 15th 1869, April 9th 1870, sect. 1, Pamph. L. 44; 1 Br. Purd. 625, pl. 20; Cornell v. Vanartsdalen, 4 Barr 365; Diehl v. Emig, 15 P. F. Smith 320. The deed was primfl facie bad: Linker v. Smith, 4 W. C. C. R. 324; Duncan’s Appeal, 7 Wright 67. Presumption of delivery may be rebutted by the deed remaining in the possession of the counsel: Critchfield v. Critchfield, 12 Harris 100. Being without notice to the husband the deed for that reason was void: Strathmore v. Bowes, 1 Ves. Jr. 22. So the secrecy and urgency of making the deed: England v. Downes, 2 Beav. 528; Goddard v. Snow, 2 Russ. 485; Logan v. Simmons, 3 Iredell’s Eq. 487; Terry Adm. v. Hopkins, 1 Hill’s Chancery 15; Ramsey v. Joyce, 1 McMullin’s Eq. 237; Manes v. Durant, 2 Richardson’s Eq. 404.
    February 26th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

It is not necessary to consider whether the plaintiff below was a competent witness to prove that to which he testified, and that for two sufficient reasons: First, that when he 'was offered as a witness and objected to — both at first and when the objection was repeated — the objection was a general one to his competency, and it is not disputed that he would have been a competent witness for some purpose. If the testimony which he gave after his admission was such as he was incompetent to give, it should have been then specially objected to, or the judge after-wards asked to direct the jury to disregard it. It would -be very unfair if this rule of practice was not rigidly adhered to ; for in this very ease, as we shall see presently, if the particular evidence had been excepted to when offered, the plaintiff might safely have withdrawn it. The second reason for not considering the question of the plaintiff’s competency, is that his testimony might all be stricken out without affecting the merits of the controversy. It must be borne in mind that this was an equitable ejectment brought to set aside a deed on the ground of legal fraud. The legal title was in the defendant. The plaintiff claimed to recover upon an equity, that under the circumstances a chancellor would set aside the deed of May 22d 1862, 'as a legal fraud upon him and declare a trust in his favor. The judge was sitting as a chancellor, and the jury merely his assessors to assist him upon the credibility of witnesses and in reconciling conflicting testimony. It was not necessary under the other uncontradicted evidence that the plaintiff should prove that he did not know of the deed in question before or at the time of its execution. Enough had been shown to throw upon the defendants the burthen of proving that he had knowledge of it. It was proved by Mr. Stover, without contradiction, that on the very day of her marriage, Ann Eliza Shields had called on him, requested him to draw the deed, and about an hour after executed it. Apart altogether from the fact that he stated, “ It seems to me she did say she was going to be married” — the execution of a deed without consideration on the morning of the day of her marriage, was primá facie in fraud of the marital rights of the intended husband, and devolved upon those claiming under the deed the onus of showing that it was communicated to him. It is unnecessary to pass in review the English authorities upon the subject of deeds of this character. We must consider the law in this state as settled, and well settled in Duncan’s Appeal, 7 Wright 67; and Belt v. Ferguson, 3 Grant’s Cases 259. The cases show conclusively that it is not a question of actual fraud. “Common candor,” says Mr. Chief Justice Lowrie, “forbids that so important a change in his intended wife’s circumstances and in the power over her estate, should be made without his consent, and equity sternly condemns it as a fraud upon his just expectations. This principle of equity has stood the test of experience too long to be open to dispute now.” We are very clearly of opinion that independently of the Statute of Frauds there was no evidence that Ann Eliza Shields held the property in trust, which would justify the conveyance as the fulfilment of a moral or equitable obligation.

Whether the deed itself by Ann Eliza Shields, being found to have been in fraud of the marriage, would have been a bar to a recovery by the children of the marriage, we do not deem it necessary to discuss and decide. While we entirely agree with the learned judge below that the acceptance by Mrs. Buck of the legacy bequeathed to her by the will of Ann Buck did not, under the circumstances, preclude the plaintiff, her husband, from his interest or curtesy in the property, because under the Married Woman’s Act of 1848, it was the separate property of his wife, and he could not prevent her acceptance of it, so that so far as he was concerned it was no case of election; yet the wife herself was bound; her coverture was no disability in this respect according to our own decision in Tiernan v. Roland, 3 Harris 429, supported as it is by the whole current of authorities. If she were bound, so were her children claiming by descent through her, and it follows that the verdict and judgment in their favor are erroneous. It is not necessary, however, that the judgment should be reversed on that account. The action was brought in the name of Frederick J. Buck, “ on behalf of himself and Fannie S. Buck and Lizzie T. Buck, minors, as their next friend.” They were not technically plaintiffs, and these words are clearly surplusage. They can be stricken out now, and we accordingly allow the record to be so amended.

The record is directed to be amended in the style of the action, and wherever else the words occur, by striking out after the name of the plaintiff these words, “ on behalf of himself and Fannie S. Buck and Lizzie T. Buck, minors, as their next friend,” and thereupon judgment affirmed.