UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY DENNIS & CO. INC Law Book Publishers 251 MAIN STREET BUFFALO 3. N Y. FOREWORD This volume is an exact photo-reproduction of an original copy of John W. Houston's DELAWARE REPORTS VOLUME 1 As a copy of the original is practically unobtainable, this volume is offered to enable law libraries to complete their collection of Dela- ware Reports. The edition has a limited printing. Buffalo, N. Y. DENNIS & CO.. INC. January 1955 REPORTS CASES DECIDED SUPERIOR COURT, and STATE OE DELAWARE. JOHN W. HOUSTON, ASSOCIATE JUDGE. VOL. I. PHIL A I) E I, P II I A : T. J. AV. JOIIXSOX ,t CO. 1866. !n, Hickman & Co. r. . 42'.l Budd r. The Union Bank, . 4;",:, Buroulow r. Trump, . . 303 Burton's Executor r. \Var- rington, . . . . 14>s Burton, Morris v. . . . 213 Burton, Indorsee, r. Uobinson, Burton, Kobinson r. . . Buttell and Wife, liawlin* i: 20<> 540 224 Callaway v. llearn, . . 007 Cann r. \Varren, . . . 1 KM ( 'ami' in r. Wmd-or, . . 14." Cannon's Administrator r. Ed- wards 427 Cannon r. II.>r.-ey. . . .4 In Cannon, Sydam & Reed c. . -\'.}\ Carpenter, Bishop v. Chase v. Jefl'erson, . Chase, Jefferson t. . Cleaver r. Ogle, Connoway v. Spicer's Admin- istratrix, . ' Cordrey r. Cordrey, Crawford r. Elliott, Currey v. Davis, ! Custis and Wife v. Potter's Administrator, . Davis et al. c. .Rogers, Davis v. Kogers, Davis r. White, Davis's Executor c. Rogers, . Davis ?. Bonnewell, Davis, Currey v. Day and Wife r. Me.-sick, Delaware Railroad Co. r. Tharp, . Dill. Doe d. Harrington r. Doe (/. Jirigiit c. Sti-jilifiis, " Jetl'er.-on r. Jl.iwell, . Bright c Steven.-. Ingram >-t al. >. (Jiranl et al Hall and \Vif.- t-t ai. v. Tunnell, . " Short et al. r. J'rrtty- man ct al.. Cooper c. Town-i'iid ri al Ilarrin^i. in r. 1 )ill, Davi.- r. Vincent, PAGE 520 257 219 453 274 209 405 598 382 IV TABLE OF CASES. E. Edwards, Bartholomew r. Edwards, Cannon's Adminis- tratoi v. Elliott, Crawford r. Elzey r. Elzey, P. Fairthorne r. Garden, Farmer.-' Bank, Logan r. Fleming, Tharp v. . Flinn r. Philadelphia, Wil- mington, and Baltimore Railroad Co., Frank r. Frank's Administ'r, Frank's Administrator, Wai- raven r. Fromberger r. Karsner, G. Gnrd>-n, Fairthorne v. Gemmill, Roe r. . Girard et al.. Doc d. Ingram et al. > Green. Hall r. ... (ireen Hill Cemetery Co.. Ste- phens r. II. Hail p. Green, Hall, (ireen r. Ha/.e].. Nicker-on r . Hearn. ( 'alia >vay r. Hiclxinan & Co. r. Branson. . Hiekman. McColleys use of NN alTell I 1 . Hir-ii-. State u-e of Day and Wife r 11 lichen-. Humphries ?-. . H.-I.-..TI'- Kxecutors, K.-nnard r H"lc"lllb. Tni>teesof Ne\V< 'a-- tl>' < '"iinty ' 'omm.in r. Hor-.-y and Wife ,-. Hnr-.-y'.- H'ir-'' v . ( 'al tioll r. H,..-, a r. Kinn.-v. PAOE 17 247 427 405 308 35 580 409 245 355 390 19 270 540 540 500 170 5(*7 4_".t PAOX Howell, Doo d. Jefferson v. . 178 Hudson's Administrators v. Messick, . . . .275 Humphries r. Hitchens, . . 526 Hutchinson v. Hutchinson's Executor, .... 613 J. Jofferson r. Chase, . . .219 Jefferson, Chase r. . . . 257 Jester, Adkins r. . . . 352 Journey, Smet hurst r. . . 196 Karsnor, Fromberger r. . . 290 Kennard v. Hobson's Ex'ors,. 36 Kearns & Pyle, Mayor and Council of Wilmington v. . 302 King P. Phillips, . . . 349 Kiniu-y, Hosea r. . . . 141 Kirby, Waters v. . . 304 L. Lcnderman r. Lenderman's Executor, .... 523 Lewis Spencer r. . . . 223 Logan, The Farmers' Bank r. 35 43* I 1" 1 tl M. Marshall, Vaughn r. Mayor and Council of Wil- mington r. Ki'urn- cV Pyle. McC..lley.- use ..f Warren r. Hickmati. .... McDowell r. Simp.-on and Wife M.'Kay. |{..n-:ill r. . MeKnn, Record.- r. . Mc>Mck. Hiul-iin'< Admini-- trator /..... Me>sick, Day and Wife r . " Sttite u-e .if Me-Mrk's Administrator r. Milman r. Sh.>ck]ey. .M.irri- r. 15urt'>n . . Mormw. Wait.-r.- r. 347 III 213 TABLE OF CASES. N. PAOI Neal, Obier v. 449 New Castle Common v. Ste- venson, .... 451 New Granada Canal Co., Vo- gle r ...... 294 Nickerson v. Hazel, . .170 O. Obier v. Neal, . . .449 Ogle, Cleaver v. . . 453 O'Neal v. Bacon, . . .215 P. Pettyjohn's Executor r. Petty- john, ..... Pettyjohn v. Bloxom, . . Philadelphia, Wilmington, and Baltimore Railroad Co., Flinn v ..... Phillips, King v. . Potter's Administrator, Custis and Wife v. Pretty man etal., Doe d. Shortu. R. Raughloy, Richardson v. . Rawlins r. Buttel and Wife, . Record* v. Melson, . . . Richard>on r. Raughlcy, . Robinson r. Burton, . . Robinson, Burt>n, Indorsee, r. Rodney et al., Burton r. . . Rogers, Davis el al. r. . . Davis r. . . . ' Davis's Executor i\ 332 594 469 349 382 334 Spencer v. Lewis, . . . Spicer's Administratrix, Con- naway v. Stapleford v. White, . . State use of Roe v. Gemmill, State ex rel. Wright v. Warren, State use of Day and Wife v. Hirons, . . . . State use of Messick's Admin- istrator i\ Messick, . . State use of Burton v. Rodney et al., ..... State use of Deputy v. Bloxom & Jones, .... State use of Richardson v. Raughley, . . . . State use of Davis's Executor r. Rogers, .... Stephens 's. Executor v. Green Hill Cemetery Co., . . Stephens, Doe d. Bright v. . T. Tharp r. The Delaware Rail- road Co., .... Tharp et al. v. Fleming,. . Thompson, Andrews r. . . Townsendetal., Doe dL Cooper r. Trump, Burcalow r. . . Tunnel, Doe d. Hall and Wife et al. 7-. 501 224 139 501 540 200 44 ~ U. 44 IB:! Union Bank, Budd et al. r 458 Union Church c. Sanders, PAOt 223 274 238 9 89 252 347 442 446 661 569 26 31 240 149 580 522 305 303 320 455 loo . 100 Vangea/.el '. Ilillyan . 510 Vaughn r. Mar-hall. Sander-. Union Church Seal '. Seal, . Sharp r. Arthurs, . . . 353 Shoeklev. Milman r. . . 444 Vatiu;han, Y<>unLcr. Simpsonand Wife, McDowell i\ 407 Vincent. Due-/. Davis?'. Siieiim r. The State, . . Iio4 Yogle r. New (Jranada Canal Sniethur.-t c. Journev, . . 190 Co., ..... 004 331 410 TABLE OF CASES. W. Wad man, Stockloy c. Walraven r. Frank's Admin- istrator, .... Walti-rs r Morrow, Warren, Cann r. . Warren, State ex re/. Wright r. Warrington, Burton's Execu- tor ! Waters v. Kirby et al., . Wat.-on r. Wat.-on's Executor, White, Davis r. . White, Stajileford r. PAOI Wiggins, Bailey i>. 35(1 Windsor r. Boyce, . Windsor, Cannon v. Woolrnan & Sullivan r. Zeb- le}- & Morris, 355 527 188 39 304 > 20! ' 22s 238 Y. Young v. Vaughan, Zebley & Morris, Woolman & Sullivan r. 299 605 143 459 331 459 THE following Judges composed the Courts from the Spring of 1855 to the Fall of 1858, the period -embraced in this vol- ume of Eeports : HON. KENSEY JOHNS, JR., Chancellor. HON. SAMUEL M. HARRINGTON, Chief Justice ; appointed April 3d, 1855. HON. JOHN J. MILLIGAN, Associate Judge. HON. EDWARD WOOTTEN, Associate Judge. HON. JOHN "VV. HOUSTON, Associate Judge; appointed May 4th, 1855. Hox. KENSEY JOHNS, JR., Chancellor, died March 28th, 1857. HON. SAMUEL M. HARRINGTON was appointed Chancellor, Mpy 4th, 1857. HON. EDWARD \V. GILPIN was appointed Chief Justice, May 6th, 1857. GKOKGE P. FISHER, ESQ., Attorney-General. SUPERIOR COURT. SPRING SESSIONS. 1855. STATE FOR THE USE OF DAVID ROE v. DAVID W. GEMMILL. The sheriff is bound to levy an execution with due diligence and without any delay prejudicial to the interests of the plaintiff. What is a rea- sonable time for this purpose is a question of fact for the jury to decide under the circumstances of the case and the direction of the court. He is also bound to levy on all the goods of the defendant in his baili- wick ; and the fact that the goods had all been levied on by virtue of prior executions, is no excuse for neglecting to levy it in proper time. Whether a subsequent levy on goods before taken in execution would be available, is a question which does not affect the duty of the sheriff in this respect. The execution being issued and delivered to the sheriff, no further orders are necessary to fix his liability, or that of his sureties, if he neglects to do'his duty and loss to the plaintiff is the consequence of such neglect. But, at the same time, though the writ is the mandate of" the State to the sheriff, it is the process of the plaintiff, and subject to his control ; and he may, by contrary order.-, stay the execution, and dispense with the use of diligence on the part of the sheriff; and, for this purpose, verbal orders are sufficient, and need not be in writing. Peaches on the trees are not such goods and chattels as may be taken in execution on a jio~i fucias ; but, after they are gathered, this may be done. Whether from thi'ir perishable nature, and the necessity of sperdily .-ending them to market, and the notice and delay necessarily preceding a sale by the sheriff, sueh a levy would avail the plaintiff in the execution anything, it will be for the jury to decide. Tins was an action of debt OH the ollicial recognizance of George I'latt, formerly slieritF of New Castle County, 10 SUPERIOR COURT. against the defendant, one of his sureties. Plea, perform- ance, and replication, assigning breaches, &c. The plaintiff, David Roe, had a judgment in the Superior Court for the County against Simon Spearman, payable by instalments : one-third on the 1st of April, 1846 ; one- third on the 1st of April, 1847; and the remainder on the 1st of April, 1848 ; upon which a fieri facias had been issued to Jacob Caulk, the preceding sheriff 1 , returnable to May Term, 184(3, and which had been levied on the goods of Spearman, and stayed by order of the plaintiff, on part payment of the judgment by Spearman, and his entering into bond to the plaintiff for the safe keeping and forth- coming of the property which continued in his possession. Afterwards a further writ of Jieii facias was issued upon the judgment to George Platt, sheriff, on the 14th of July, 1847; and on the same day a rendition! csponas was sued out and placed in his hands, commanding him to sell the goods levied on in the first execution ; to the first of which he made return at the November Term, 1847, " Goods levied on, October 16, 1847, as per inquisition, &c. ;" and to the latter he made return at the same term as follows : " Within goods advertised to be sold October 16, 1847, and on that day not to be found within my bailiwick.'' It was proved that Spearman had driven away from a farm of his in Xew Castle County to Philadelphia, in tin- latter part of September of that year, a large amount of live stock, consisting of cows, oxen, mules, and horses, to the value of seven hundred dollars; and had gathered and sold from his orchard on the farm between three and four thousand dollars' worth of peaches during the mouths of August and September, the same season. The plaintiff', it appeared, resided out of the State, and had no attorney or agent in it at the time to attend to his interests, or give directions to the sheriff' in regard to the matter. The third instalment of the judgment was not due when the last execution was issued, and the sum demanded in the action was the amount of the two first instalments with interest. ROE v. GEMMILL. 11 Rodney, for defendant, offered in evidence the former execution issued on the judgment to Sheriff Caulk. Objected to by J. A. Bayard, because it was not evidence in the case, unless it should be shown that there were instructions from the plaintiff to the sheriff' in regard to it and the property seized under it, which would have the effect to discharge the succeeding sheriff" from his liability on account of it in this case. Rodney : This was what he proposed to do, and to follow up the present evidence with further proof that the execu- tion was stayed in the hands of Sheriff' Caulk by the orders of the plaintiff, and that he took a bond from Spearman for the forthcoming of the goods levied on, and that the property remained by his consent with Spearman ; and that, afterwards, the second execution was issued to Platt, the succeeding sheriff'; and on the same day a writ of vcn- ditioni exponas came to his hands to sell these goods pre- viously taken in execution, and it had already been proved what had become of them. J. A. Bayard: Conceding, for the sake of argument, that Sheriff' Platt had been guilty of no laches, or neglect in regard to the venditioni, it by no means followed that he had been guilty of no negligence on the fieri facias which was issued to him. lie had been guilty, however, of neg- ligence on both writs. 6 By the Court: The evidence is admissible, subject to direction as to the legal effect and sufficiency of it. The defendant then offered in evidence the deposition of a witness taken out of the State, and who had been the deputy of Caulk whilst sheriff, to prove that the first exe- cution had been stayed by the directions of the plaintiff', contained in certain letters addressed by him to that officer, and for which diligent search had been made by 12 SUPERIOR COURT. the witness among the papers of the sheriff without finding them. Mr. Bayard objected to the admissibility of the deposi- tion. In order to excuse the sheriff for the non-execution of the writ, if he relied on instructions from the plaintiff for that purpose, it should be shown that they were in writing, and, if lost, the whole of the letters, or, at least, the entire substance of them, and not merely parts or por- tions of them, should be stated by the witness. Besides', the loss of the letters had not been sufficiently shown to admit secondary evidence of their contents; and, as the deponent had been the deputy of the sheriff at the time, he was an incompetent witness without a release. By tht- Court : It did not appear that the deputy was in any way chargeable with the negligence alleged in this case; and if there had been any negligence in the execu- tion of the first fieri facias by the preceding sheriff or his deputy, it was not the ground of action in the case before the court, which was for alleged negligence on the part of Platt, the succeeding sheriff, iu failing to execute the second jicri facias, lie was, therefore, a competent witness without release. As to verbal orders, or parol instructions from the plaintiff, in an execution to the sheriff directing him to stay it, they arc sufficient to exonerate him from the charge of negligence on that account, and need not be in writing. The search for the letters, and the proof of their loss (the deponent, stating that he had made diligent search for them among the sheriff's papers, but. could not find them), \va> sufficient to authorize the admission of his evidence as to the contents of them or their substance. The, further proof and tacts in the case, and the grounds on which the action was resisted bv the counsel for the defence, will sufficiently appear from the charge of the court. ROE v. GEMMILL. 13 The Court. Harrington, Chief Justice, charged the jury: This was an action against the surety of the late Sheriff Platt, for his negligence in executing a writ of Jieri facias, at the suit of David Roe, against Simon Spearman, which was issued and placed in the sheriff's hands for collection. It appeared, by the sheriff's recognizance, that the de- fendant, David W. Gemmill, became one of his sureties, and bound himself, by the condition of that recognizance, for the faithful execution by the sheriff of his official duties. One of the obligations of this recognizance is, that the sheriff shall duly execute process to him directed ; and what is the due execution of process was explained by the court in Janvier v. Vandeter, 3 Ilarr. Rep. 29. In that case on this subject the" court remarked, "In our view the question of diligence is for the jury to decide, under the direction of the court, upon the circumstances of each case. The writ of execution commands the sheriff to levy and make the money, and to have it at the court next ensuing. Ordinarily, if he does this he performs his duty, without reference to the time of sale; but if he does not produce the money at court, it becomes important to inquire whether he has performed his duty in the meantime ; whether he has executed the writ according to his duty and the terms of his recognizance, without ddKJ ; and it appeared in evidence, that the dam and pond which had been down for many years, laid uninclosed between the lands of the plaintiff and defendant ; but the 18 SUPERIOR COURT. plaintiff alone had pastured and mowed upon it, which was the only use made of it, except occasionally to cut ice on it, when flooded and frozen over, for sale ; a right which it was proved, both had claimed and exercised. The plain- tiff asserted his title and possession to the whole of the bed of the pond to the upland on either side, whilst the de- fendant claimed that the thread of the stream flowing through it was the division line between them, and proved that the alleged trespass was altogether on his side of it. In adducing the legal title of the plaintiff to the premises, much stress was laid on a lost deed, which was proved to have been in his possession some ten years previously by sundry witnesses, from one Grantham to Moore, an early grantor, under whom he claimed title, for the mill, mill- seat, and land covered by the water of the pond, and also on the fact that a subsequent deed offered in evidence on his behalf from Moore to one Caldwell, an intermediate owner of his estate, contained a recital of another deed, not produced, to Moore from one William Scott for four acres of the adjoining land in the following words: "to- gether with all and singular the mill, house, mill-dam, races, flood-gates, mill-wheels, stones, hoppers, bolting chests and cloths, water, water-courses, and other the ap- purtenances ;" but neither the contents of the lost deed, nor its formal execution, nor the names of the parties to it, were distinctly ascertained, or defined by the witnesses who had seen it. On behalf of the defendant it was proved in addition to the facts already stated, that he hud, at the November Term of the Court, 1845, obtained a commission under the provision of the statute, for marking and bounding his land according to its true original locution, on which the com- missioners hud duly ascertained and fixed the thread of the stream through the lied of the pond, us the true division line between him and the plaintiff, and that the sunie was afterwards duly certified, returned, approved and recorded at the ensuing term of the Court; and on which he relied to establish that us the true and lawful boundary between them. The present suit, however, had been instituted by BAETHOLOMEW v. EDWARDS. 19 the plaintiff within seven years after the return of the com- mission. J. A. Bayard: For defendant. Trespass will lie on an exclusive possession. But in this case, the alleged trespass was committed in 1852 ; and the locus in quo had been ad- judicated to the defendant prior to that time, by the commis- sioners to mark and bound his lands under the order of the Court, and the plaintiff was bouird under the act of Assembly to contest that adjudication by an action at law. That adjudication was to be considered conclusive as to the boundaries established under it, and of the holding of the parties according to them, and the plaintiff to avoid the effect of it, must show a legal title to the locus in quo, and could not rely on possession merely; because it was a ju- dicial decision by a competent tribunal upon the-immediate question in controversy between the parties, and when ap- proved and recorded, although not absolutely conclusive until after the lapse of seven years, yet as a judicial deci- sion on the question of boundary, and from the date of its approval by the Court, it would have the effect, and even a greater effect than a verdict in ejectment, and would change and transfer the possession and constitute the holding ac- cording to the division line as ascertained and fixed by the commissioners. That the boundary thus established must prevail against him, unless the plaintiff' had shown that the legal title was in him, either by the paper title which he had adduced, or by uninterrupted, adverse and exclu- sive possession for twenty years of the particular place in which the trespass complained of was committed. In the next place, was the recital in the deed from Moore to Cald- we.ll of the deed from Scott to Patterson and Moore, evi- dence of the contents of the deed recited, and can the plaintiff give the recital in evidence, since the recital states that the deed recited is on record, without producing that deed, or the record of it, which had not been done? And were the terms employed in that deed according to the recital, sufficient to convey the land formerly covered by 20 SUPERIOR COURT. the water of the pond, those words being" together with all and singular, the mill, house, mill-dam, races, flood-gates, mill-wheels, stones, hoppers, bolting ehests and cloths, waters, water-courses, and other the appurtenances?" None of the terms there used, could convey the land of the pond, or the soil covered by the waters of it ; and it could not pass simply as appurtenant to the mill. The water and water privileges might pass as appurtenant to the mill; but the land could Jiot. The evidence of the loss of the deed spoken of by sev- eral witnesses, was not sufficient, because there was no proof that a proper search had been made for it. Besides, the evidence of its existence as a deed prior to its loss, was altogether insufficient; because it should be shown that it was duly executed and was a valid and subsisting deed at the time of its loss ; the parties to it, the premises embraced in it, the estate conveyed by it, whether for a term of years, for life, in tail, or in fee : the date and contents of it gen- erally should be shown, In* fore the plaintiff could be al- lowed to make any use of it for the purpose of establishing his title to the land in dispute. J>ut on each and- all of these matters, the witnesses examined had disclosed noth- ing, absolutely nothing not even the names of the parties to the indenture with any certainty or precision, except that it was for land covered by water, and was executed previous to the year 100. "Where a party claims bv possession merely, he must prove an actual possession by metes and bounds, and of every part of the land claimed by him. Hut the possession of the land could not be acquired by the right to the use of tln> water, with which it was overflowed, because such a possession might be perfectly consistent with the right of the party having the legal title to the land. And, unless the plaintiff had shown that he had mowed and pastured on the particular spot on which the hydraulic ram was erected by the defendant, exclusively and uninterruptedly, for a period of twenty years before the commencement uf the action, he was not entitled to recover. BAETHOLOMEW v. EDWAEDS. 21 Rodney : For the plaintiff, in reply. The marking and bounding of the premises by the commissioners, was only an ex parte proceeding, and could conclude nothing until after the seven years had elapsed without action ; and be- sides, it could have no effect by the terms of the statute, as against an adverse claimant, so long as he continued in pos- session of the land in dispute. And even admitting that the plaintiff and those under whom he claimed, had origi- nally but an easement, or a right merely to flood the land with water for the use of the mill, still it had been proved that after the dam and pond had been suffered to go down, the defendant was in possession of the bed of the stream and the locus in quo under color and claim of title to it, the deed of Kay to Moore, and from Moore to Gross, the former executed in 1828 and the latter in 1831, from whom the plaintiff' derived his title of that date, being for " 146 acres of land and land covered with water ;" and it was therefore incumbent on the defendant to deduce a clear legal title to the premises to defeat the present action. As to what would pass under a deed as appurtenant to a mill, it had been held that the grant of a mill with the appurtenances, will pass both the water and the piece of land used in connection with the mill; also the water privileges and the use of a head of water and race-way connected with and necessary to the mill. The mill includes the site, dam and other things annexed to the freehold and necessary to its enjoy- ment. 2 Hill. Abr. 139,140. The words contained in the recited deed, which could not be produced, would convey the land covered by the water of the pond as appurtenant to the mill ; and the re- cital of those words in the deed from Moore to Caldwell is evidence of the deed recited, though now lost and inca- pable of being produced, and estopped the parry who made it and all claiming under him from denying it. 1 Sulk. 280; 4 Com. Dig. En. B. 5, !:}. Tic C""/'f. Harrington, Chit'f Justice, charged the. jury : The act which the plaintiff complained of in the case as 22 SUPERIOR COURT. the trespass alleged by him, and the place where he as- sumed it was committed, was the erection of an hydraulic rain on what had once been the bed of an ancient mill- pond, known as Grantham's, or Moore's mill. The plain- tiff alleges that he was in possession of the place at the time the trespass complained of was committed, and that the invasion of this possession by the defendant constituted him a trespasser, and entitled the plaintiff to a verdict without reference to his title, unless the defendant had shown on his part a good and valid legal title to it. The general principle of law in regard to the action was this, that the action of trespass, quare clause m frcgit, lies for a wrong done to the possession of real property; and a plain- tiff proving himself in-possession merely of such property, and an entry upon it by the defendant, it would constitute the latter a trespasser, unless he could prove on his part a title to the premises, or a right otherwise, as by license or permission, to make such entry. If, therefore, the plaintiff had proved that he was at the time in possession of the place where the ram was erected, as the erection of it by the defendant was admitted, he would be entitled to re- cover damages for the trespass without further proof of title, unless the defendant had proved a better title to the premises, or a possession in common with the plaintiff of them. In the latter case the parties were both put upon their proof of title, and that party must prevail who had proved the legal title to be in him. In a case of common possession of land by both parties to the suit, the law ad- judged the rightful possession to him who had the legal title, and no length of time of such holding could give a title by possession as against such legal titlv ; but an inde- pendent, separate, and adverse holding, under an exclusive claim, continuously asserted and maintained for twenty years, was itself a good title. The nature or kind of pos- session which would give title to real estate, must of course depend, in some degree, on the nature and condition of the property itself. An inclosnrc is one modi 1 of holding. Cutting wood or grass upon land was an act of asserted BARTHOLOMEW v. EDWARDS. 23 possession; and even the pasturing of cattle repeatedly, and as a matter of exclusive right, on uninclosed land, was evidence of possession ; yet these acts must be exclusive, in opposition to others, and continued adversely for twenty years, to confer an absolute title by possession merely. But no act that does not amount in itself to an assertion of right to the soil, could be evidence of possession of the soil. Thus the use of water in a mill-pond would not be evidence of title to the land which it covered, because such use of the water for mill privileges, or any other purpose connected with the water simply, and not with the land it covers, is not evidence of title to the land, or of that kind of possession which could give title to the land. In con- templation of law such a party could not own the water ; all he could claim would be the right to the use of it, and to the accumulation and flow of it for the purposes indi- cated ; and, not possessing the water which covered and occupied the land, he could not be said strictly to possess the soil covered by it; at all events, except for the special uses and purposes before stated. It was not an uncommon thing for the water privilege, and even the privilege of drowning land for mill purposes, to exist in one person, and the right to the land as a resulting or remaining right, subject to the privilege, to exist and reside in another; and in such a case the possession would not be adverse, but consistent with the right of the owner of the s,oil covered by the water. The main question, then, in the case is, which of the parties had shown title to the place formerly covered by the waters of the pond which had been aban- doned for the purpose of a mill stream, and which was now claimed by both parties as land, to be used and on- joyed as such without any reference to mill privileges. If such a possession as had boon before defined; that is to say, if an actual, exclusive, uninterrupted and adverse possession of the place in question for a period of twenty years since the mill-pond was abandoned and went down, had not been proved on the part of the plaintiff, then the parties would stand with regard to it on their respective 24 SUPERIOR COURT. legal rights as they were presented in the paper titles ex- hibited by them. The land in question at one time belonged, on the show of both parties, to the Granthams ; and the plaintiff derives his title from Grantham through sundry intermediate deeds to Moore, Caldwell, Hinsey, Fennister, Kay, Moore, Gross, and Mary Bartholomew. The defendant, on the other hand, claimed title under the will of Jacob to Isaac Grantham, and the will of the latter to Thomas and Isaac G. Jacquett, the sheriff's sale of their property to Mc- Dowell, and the sheriff's sale of the property of the latter to the defendant. All these title-papers had been exhi- bited in evidence, together with the plots and pretensions of the parties, and the lines of the de 4 eds as respectively claimed by them ; and it would be for the jury to say, from the proof before them, whether the lines of either or any of the deeds included the land in controversy ; and, if so, to which of the parties, the place where the trespass is alleged to have been committed, belonged, according to the deeds shown and the lines located on the plots. But the court was called on to remark upon the con- struction and effect of some of the deeds, the first of which was the one recited in the deed from Samuel Moore to James Caldwell, of the date of 1792, purporting to be from Isaac Grantham to Scott and Patterson, and which was supposed t<> refer to the place in dispute. That, however, was a question of fact to be decided by the jury. If it did not, of course the force and effect of it was of no conse- quence in the case. But, supposing the tour acres em- braced in that deed to include the premises in question, two objections hail been taken to it by the counsel for the defendant; the first of which wa-s that the deed itself being of record, as the recital states, the record should have been produced, or its absence accounted tor, before the recital, wbicli was only secondary evidence of it, could even be admitted to lie weighed or regarded by tin 1 jury: and in the .-econd place, admitting that the recital was evidence of the deed, the terms employed would not convey the BAKTHOLOMEW v. EDWARDS. 25 land formerly covered by the water of the pond. As to the non-production of the record itself, it is open and sub- ject to remark as a fact affecting the force and perhaps the correctness of the recital in this respect; but still the re- cital is in evidence, introduced by the regular admission of the deed which contained it, and it would be for the jury to give it whatever weight they might consider it entitled to under the circumstances. In regard to the other objection, the terms employed in the deed according to the recital were, " together with all and singular the mill, house, mill-dam, races, floodgates, mill-wheels, stones, hoppers, bolting chests and cloths, waters, water-courses, and others the appurtenances;" and it was the opinion of the Court that, under these recited words, the title to the bed of the pond, or the soil occupied by the water of it, would not pass. That might appear to some as a refined distinction ; it was sustained, however, not only on legal principles, but was vindicated by reason and common prac- tice. The conveyance of an estate in, or title to the land, and the grant of an easement or privilege connected with or in regard to land, are different things. The latter might possibly be said to be appurtenant to the former in some cases, but the land could never be said to be appur- tenant to the latter ; and unless the terms employed were proper and sufficient words to include and transfer the title to the land, it would not pass by the conveyance, whatever rights or privileges might otherwise be granted by it. There were no words employed in the recital which could operate to convey the ground covered by the pond. Another deed had been referred to in the testimony of several witnesses, upon which the Court had been asked to charge as matter of evidence. It was alleged by the plain- tiff that there was a lost deed from a person by the name of Grantham to a person by the name of Moore, relating to the premises in question, and which conveyed title in the land formerly covered by the pond to a party under whom he claimed. That deed had not been produced; but it was admissible to supply the loss of it, by proving 3 26 SUPERIOR COURT. first, its existence, secondly, its destruction, or loss, thirdly, its contents its whole contents in substance and effect. Had the plaintiff proved that any such deed ever existed a deed lawfully executed by the party of the former name, who once owned the land, conveying it to the Samuel Moore under whom he claimed that such deed had been lost and could not be produced, after diligent search for it wherever it might have reasonably been supposed to be, and if produced, that it would cover the place in regard to which the controversy existed? On that subject the jury would recur to the testimony of the several witnesses as to the deed, and to the declarations of parties interested in that question, and whose declarations, if made at a time when such interest existed in them and before they con- veyed away the land, would bind the parties claiming un- der them. The plaintiff had a verdict ; and at the same term the de- fendant obtained a rule to set it aside, on the ground of misdirection in the charge of the Court to the jury, which was afterwards heard, and a new trial granted. Vidf poxt. Jtwlney, for plaintiff. T. P. and J. A. Ucyard, for defendant. .!A.MI:> STKPHKN?, Executor of Alexander Stephens, de- ceased, r. THE (iui:i:x HILL CKMKTKKY COMPANY, of Chris- tiana Hundred. A hill "f particular- does not restrict the party furnishing it to di-tinr the hciietit or ini- STEPHENS v. GREEN HILL CEMETERY CO. 27 provement of the property of the association, before its incorporation by the Legislature, shall, after its incorporation, have a claim and a lien on the proceeds of the sale of such property belonging to the company, gives a legal remedy against the company, and not an equita- ble remedy against the proceeds of such sale merely, and an action of assumpsit may be maintained for the recovery of it, to be paid out of the proceeds of the sale of the property. Parol proof that a bond given to such a creditor for two thousand dollars was accepted by him in lieu of all other claims against the company, is admissible, and does not contradict, or vary, or add to the terms of the bond, but is consistent with it. Tins was an action of assumpsit to recover a balance due from the defendants to the plaintiff as executor, for work and labor done and materials furnished, by Alexander Stephens, in preparing and constructing the cemetery of the company. The company had originally consisted of trustees merely of the Green Hill Presbyterian Church, and as such, had purchased three acres of ground of Alex- ander Stephens and erected a church upon it, and had also prepared and laid out the ground for a public cemetery in connection with it. The deceased, it appeared, had been an active member and the treasurer of the association, and had furnished, as his executor alleged, six thousand dollars and collected subscriptions and voluntary contributions to the amount of three thousand and seven hundred dollars, for these purposes, and the action was brought to recover the excess of his expenditures over his receipts. After the erection of the church and the construction of the ceme- tery, and after the balance demanded had been contracted as before stated, the defendants applied for and obtained from the Legislature an act of incorporation, by the name of the Green Hill Cemetery Company, and the action was against them in their corporate character as such company. Alexander Stephens was constituted by the charter a trus- tee-, or manager of the company, the sixth section of which was as follows : " The trustees, or managers aforesaid, may contract debts, on their own responsibility, for the benefit of the cemetery ; and in order to enable the managers to pay the debts already contracted by them, or which may 28 SUPERIOR COURT. hereafter be contracted, or to reimburse to them any money which they, or either of them, shall advance in payment of such debts, or otherwise, for the use of the cemetery, they shall have a claim and lien upon the proceeds of the sales of burial lots in the cemetery ; and such proceeds shall be applied to the payment of such debts, or to the reimburse- ment of such advances, so as to fully indemnify the managers in the premises." It also appeared that the de- ceased afterwards submitted an account of the expenses incurred in building the church, and an agreement was en- tered into between him and the managers that the com- pany should execute to him a bond for two thousand dol- lars, which was done. On the trial a witness for the plaintiff was asked the ques- tion, what the church was worth, and how much it would cost to build such a church ? ./. A. -Bayard, for the defendants, objected to the admis- sibility of it. A bill of particulars of the plaintiff's claim h'as been furnished us in this case, on due notice served upon his counsel for that purpose, and I submit that it is not competent for him now to ask the question, and prove it in this vaue and eneral manner. The Court overruled the objection without hearing a re- ply. Bills of particulars are somewhat new in our prac- tice, and arise under the Revised Code. But as the object of them is to specify the plaintiff's claim, and to apprise the opposite party of the distinct grounds and several items of the demand, evidence of a new claim, or of a distinct matter not embraced in the hill of particulars, can- not be allowed, on the ground of surprise to the other side. That, however, would not preclude the proof of the aggre- gate of the bill of particulars and of the whole demand in the mode adopted with the witness. The plaintiff having dosed his evidence, the counsel for the defendants submitted a motion for a nonsuit. First, STEPHENS v. GREEN HILL CEMETERY CO. 29 because the plaintiff owned the land on which the church was built until some time after it was commenced, and he had not proved any indebtedness on the part of the de- fendants to him for the church ; and secondly, because he had no legal claim against the defendants in their corpo- rate capacity for the debts contracted by him on account of the cemetery, previous to their incorporation by the Legislature. The only remedy which he could have under the provisions of the charter was in equity, to enforce his claim and lien specifically against the proceeds of the sales of the lots of the cemetery. The counsel for the plaintiff denied that the only remedy was in equity, if there was any such relief at all in the ease, and argued that the remedy provided in the sixth section of the charter was cumulative merely, and did not impair the right of the plaintiff to maintain the present action against the company under the general clause, which secures to all persons w r ho have legal claims against it, the right to sue the corporation. By tJiC Court: The decision of the question presented by the motion for a nonsuit depends on the construction to be given to the sixth section of the charter. If the plaintiff has any claim against the company, under the provisions of the charter referred to, it must be a legal claim, for it is given by statute, with the effect and operation of a lien on the proceeds of the sales of the lots of the cemetery; and there is no provision in the act tor the recovery of the claim in ehancery, as there probably would have been had such been intended. We think one of the objects of the sixth section of the charter was to give a legal claim, and of course a remedy at law, against the company after its incorporation, to any one of the managers who had already contracted debts, or made pecuniary advances for the use and benefit of the cemetery, to be paid out of the proceeds of the sales of burial lots in it; and the company has ac- cepted the charter with this provision contained in it, and, 30 SUPERIOR COURT. by implication at least, has assented to it. We, therefore, think the present action may be maintained for any such debts contracted or advances made on account of the ceme- tery. But there is nothing in the charter of this com- pany that imposes any obligation upon it to reimburse to any one expenses incurred by him in the erection of the church, and there can be no recovery in this action for any such expenses. Motion for nonsuit refused. Mr. Bayard then called a witness to prove the execution and delivery of the deed by Alexander Stephens to the company for the ground on which the cemetery was laid out, and of the bond to him by the company for two thou- sand dollars, and that the bond was accepted by him at the time in lieu of all claims which he had against the com- pany. Mr. Rogers objected to the latter statement of the wit- ness, because it was inadmissible as evidence to add by parol proof to the agreement of the parties contained in the bond, which is not simply a bond for the payment of money, but which embodies and contains a special agree- ment also between the parties in regard to a portion of the subject-matter. Mr. Bayard : The proof offered does not vary or add to the meaning or terms of the bond, or anything contained in it. The Cnrt overruled the objection, and remarked that there was Nothing in the objection or in the bond to bring it within the rule of evidence referred to. So far as this case was concerned, it was simply a bond for the payment of two thousand dollars by the company to the plaintiff without any consideration expressed for whieh it was given. The evidence proposed does not contradict, vary, or add to the terms of the bond, but is entirely consistent DOE d. BRIGHT v. STEPHENS. 31 with it. Besides, such would be the presumption in law, in the absence of any proof to the contrary. The case then went to the jury, and the defendants had a verdict Wm. H. Rogers, for plaintiff. J. A. Bayard, for defendants. DOE d. WILLIAM BRIGHT u. REBECCA STEPHENS. Possession is not necessary to enable a party to convey by deed a title to land in this State. No inclosure necessary to constitute a holding by adverse possession. If a party, after suffering judgment by default in an action of ejectment, relinquishes or abandons the possession of the premises, no length of possession prior to it will avail him in a second action of ejectment against him for the same premises, although the plaintiff did not enter into possession on his abandonment of it. ACTION of ejectment for a vacant lot in the city of Wil- mington. The premises in question had "originally be- longed to a person by the name of Caleb Way, in 1802, and afterwards became the property of one Isaac Jones by purchase at sheriff's sale in 1803, to whom the plaintiff traced his title through sundry intermediate conveyances, produced by him in evidence, on which he relied to estab- lish his legal title; as also upon a former recovery, in 1846, in an action of ejectment, at the suit of Edward lYnnell and others, heirs-at-law of Deborah, a daughter of Isaac Jones, against the defendant, for an undivided third part of the lot; and 0:1 a further recovery by himself in an action of ejectment, in 184!>, against the defendant, for the whole of the lot, in which he obtained judgment by default against her; after which she voluntarily relin- 32 SUPERIOE COURT. quished and abandoned whatever possession she had had in the premises, until a short time previous to the commence- ment of the present action. The defendant, on the other hand, relied upon an ad- verse possession of the premises for twenty years; that the several grantors in the respective conveyances pro- duced in evidence on the part of the plaintiff, and through whom he had traced his legal title hack to Isaac Jones, in 1803, were all out of possession of the premises when their deeds were executed ; and upon the fact which appeared in evidence, that Isaac II. Jones, to whom one undivided third part of the lot had descended on the death of his father, Isaac Jones, had afterwards conveyed the same by deed to certain trustees, in trust for himself and his family; and although the trustees named in the deed had subse- quently been removed from their office of trustees under the deed, and Bright, the plaintiff, had been appointed trustee, instead of them, by the Court of Chancery, yet no deed had been exhibited, or had ever been executed by the removed trustees to Bright for the estate vested in them by the deed of Isaac II. Jones in the one-third of the premises; and that, consequently, the legal title to that undivided third part of the lot at least was still outstand- ing in those persons, and was not in the plaintiff'. Johnson, for the defendant : The defendant had been in the undisturbed possession of the premises for more than twenty years; and as the parties from whom the plaintiff derived his 'title, HO for as he had shown any, were all out of possession when their respective deeds were executed, they conveyed no legal title to him in the premises ; and cited, in support of the principle, Adams on Ejectment, 43 (note); 2 Kill's Abr. 411; 4 Kent's Com. 440, 447, 448; Wil/idin* v. J(irk$oit, 5 Johns. Hep. 489; Evcninl it eil with the intention of charging additionally lor them, and with the expectation of being paid lor them, without reference to the testamentarv dispositions of the testator, then the plaintiff would be entitled to recover such addi- THE STATE EX REL. WEIGHT v. WAEREN. 39 tional compensation for them as would be just and reason- able, according to the nature and amount of the services rendered. Verdict fop the plaintiff for $1029.36J. Gordon, for the plaintiff. Bradford, for the defendant. THE STATE ex relatione SAMUEL "WRIGHT v. CHARLES II. WARREN. Although no certificate or other formal mode of making known to a per- son his election to the office of road commissioner, or other public office, may be prescribed or required by law, the result of the election, when ascertained and announced at the close of it, is final and conclusive on the officers of the election, and cannot afterwards be reconsidered or altered by them. THIS case arose on a motion for a rule on Charles II. Warren, the respondent, to show cause wherefore a writ, in -the nature of a writ of quo warranto, should not issue against him for usurping the office of a road commissioner in Pencader Hundred, New Castle County. The affidavit of Samuel Wright, on which the motion was founded, alleged that, on the first Tuesday in October, 1854, an election was held at Glasgow, in said Hundred, for the election of an inspector, assessor, and two road commissioners for said Hundred, of which .Joseph Veach was the presiding officer, and Robert Cann and Wesley Clement were judges; and that, after the poll was closed, the presiding officer announced that Josiah Stanton was elected inspector and Adam Dyott assessor, and also de- clared that Samuel Kambo and Samuel Wright, the depo- nent, were elected road commissioners; that the presiding officer and judges of the election made and signed certi- 40 SUPERIOR COURT ficates of the election of the inspector and assessor, but refused to give a certificate of the election of road commis- sioners, because the law did not require them to do it. That, acting upon the official announcement of his election by the presiding officer, the deponent applied to Daniel McCallister, a justice of the peace, who was also a clerk of the said election, to be sworn as a road commissioner of the Hundred, but he refused to administer the oath to the deponent, on the ground that he had not been elected to the office ; and he then applied to the presiding officer and judges of the election for such a certificate, and was again refused by them, on the ground, as they alleged, that, after the election, an error had been discovered in counting the votes, and that the said Charles II. "Warren, who was also voted for as a road commissioner at the election, was the person elected, and not the deponent ; although there was no announcement of his election by the presiding officer on the day of the election, nor was the said Warren an- nounced by the presiding officer and judges on that day to have been elected, nor was any certificate given to him by them of his election ; and that the said Charles II. Warren had since been sworn, had usurped, and was then pretend- ing to exercise and perform, the powers and duties of the office of a road commissioner of the Hundred. To this, Warren, the respondent, filed a counter-affidavit, in which he stated that, during the reading and tallying of the votes cast at said election, one ballot was found to con- tain the name of a person voted for as assessor and the names of two voted for as road commissioners, but the name of no one for the office of inspector; and that another ballot was found to contain the name of a person for in- spector and the names of two persons for road commis- sioners, but the name of no one upon it for the office of assessor; and the judges of the election being in doubt at the time as to the sufficiency and legality of these two bal- lots, laid them aside for the purpose of examining the law more particularly in regard to their validity alter the reading out was finished. That, when the reading out STATE EX REL. WRIGHT v. WARREN. 41 was finished, it appeared, excluding the two ballots above mentioned, the said Samuel Wright had one vote more for the office of road commissioner than the deponent, but, counting and including those ballots, the deponent had one more for the office than the said Samuel "Wright, the deponent having been voted for as a road commissioner on both of the said ballots. That the judges of the said election did not decide upon the validity of those two bal- lots until the next morning after the election, when they determined that the same were legal votes ; and thereupon the deponent was informally notified of his election by David McCallister, one of the clerks of the election, who, being also a justice of the peace for the county, adminis- tered to the deponent the proper oath of office ; and that, since he was so qualified, he had exercised, and still exer- cises, the said office. The affidavit concluded with a denial that any certificate, or formal proclamation by the officers of the election, of the election of road commissioners, was either usual or necessary, according to custom or the law in such cases. llndney, for the State, was proceeding to call his witnesses to sustain the statement of facts contained in the affidavit of the relator, and on which the motion for the rule was founded, when the counsel for the respondent interrupted him. D. M. Bates, for respondent : "Were witnesses to be heard in the present stage of the case? There was nothing in the law in regard to the election of road commissioners that required any certificate, proclamation, or announce- ment by the officers of the election, that any one was elected : and there was nothing alleged in the affidavit of the relator which the court could inquire, into, for he did not even allege that he was elected a road commissioner. All he alleged merely was that the presiding officer of the election announced at the close 1 of it, after reading and counting the ballots, that he was elected. JJesidcs, the 4 42 SUPERIOR COURT. affidavits of the relator and respondent did not contradict each other ; and the affidavit of the latter showed that, in point of fact and according to the law of the case, which was for a time misapprehended by the judges, he was duly elected. Mr. Rodney: This was not a suit between the relator and respondent involving a question of right or title to the office between them as the parties to such suit, but the writ might issue on the affidavit of any one, for it was not to inquire if the relator was elected, but by what authority the respondent held and exercised the office. Road com- missioners are to be elected on a certain day appointed by law, and the election must be completed on that day. AVhat constituted an election ? The organization of the body to hold it, the casting of the ballots, the reading and counting of the same, and the determination of the result by the officers appointed by law for the purpose ; all of which must be done on that day, and none of which can be under the law adjourned or deferred to another day. In point of fact the relator was prepared to prove that the election of the respondent was not declared or deter- mined until two weeks afterwards. To what frauds upon the purity, honesty, and legality of elections, would not the sanction of such a course as that necessarily lead ! If the law did not require any certificate of election, what other or better evidence of an election like this could there be under the law than the official promulgation or public announcement by the judges of the election at the close of it ? Mr. Bates: The counsel on the other side had assumed a dangerous principle, that any private individual could come into court and institute such a proceeding as this, at the cost of the State, in the name of the Attorney-General. The true principle and distinction was this: Any private person in the case of a private office may, at his own discretion, become the relator, and institute such an in- STATE EX REL. WRIGHT v. WARREN. 43 quiry ; but, in the case of a public office, it could only l>e instituted by the Attorney-General himself. But the re- lator does not allege that Warren, the respondent, was not elected. He therefore did not state sufficient ground to induce the court to entertain the application. No one could move the court for an inquiry like this without alleging that the respondent, who is now invested with the office, and exercising the functions of it, did not re- ceive a majority of the legal votes for it polled at the elec- tion. After some conversation between the counsel it was then agreed, to save time and to accommodate the wit- nesses present, the examination of them should proceed, reserving all questions of law arising in the case for the consideration and decision of the court afterwards. Several witnesses were then examined, who testified that, after the election was closed and the votes were counted out, the judges and clerks and presiding officer ascertained the result, and announced that Mr. Wright and Mr. Rambo were elected road commissioners. The board had no meeting after that day. The two votes mentioned in the affidavit of the respondent were rejected by the officers of the election at the time they were read as illegal, and were not laid aside for further consideration. The presiding officer testified that it was not until he was on his way home from the election that night that he began to doubt whether he had done right in rejecting them ; and it was not until the next day, on looking into the "Digest," that he became satisfied that he had erred in -doing it ; and the respondent was not sworn into office until six weeks after- wards. 1\>I ffif Court : At this stage of the case the only question before us is on granting the rule to show cause, and with- out reference to the testimony of the witnesses who have been examined, and which properly and without consent could not have been heard at this stage of the proceeding, 44 SUPERIOR COURT. the court thinks there is sufficient ground disclosed, and grants the information on the affidavit filed, because the officers of the election passed judgment on the sufficiency and legality of the votes in question at the time of their rejection, or when they concluded not to count them, and it was not competent for them after the close of the elec- tion, and the result of it was ascertained and made known, to change or alter that result. Although no certificate, or other formal mode of making known to a person his elec- tion to the office of road commissioner, or any other public office, may be prescribed or required by law, the court considers that when the result of it is ascertained and an- nounced at the close of it, it is final and conclusive on the officers of the election, and cannot afterwards be recon- sidered or varied by them, as sucli a course might lead to gross abuses on the part of such officers ; and, if an error should be committed, it is not to be corrected by the method adopted in this instance. SALLY B. DAVIS ET AL. r. WILLIAM II. ROGERS, Executor of SAMUEL B. DAVIS, deceased. The propounder of a will on an issue of devisarit vel non is to prove the fiicfum or formal execution of it, and then the reviewers having the burden of invalidating it, have the opening and conclusion of the ar- gument. Proof of the factum is not confined to the subscribing witnesses of the will merely ; but any other witness called by the propounder in the first .-tage of the case; will be confined in his evidence to proof of the execution merely. An executor with or without compensation for his services as such pro- vided for in the will, is not a competent witne.-.> to support the will. Nei- ther is a trustee appointed by the will with a provision in it for a fair and liberal compensation to him for hi.-, services as trustee, a competent witness to sustain the will. Parol declarations of the testator as to his testamentary intentions, are admissible in evidence to invalidate an Instrument propounded as his will. DAVIS ET AL. v. ROGERS. 45 Generally, the animus testandi is the natural and primary inference from the act of signing and the formal publication of the instrument as a will ; but this inference may be rebutted by any attending circum- stances of sufficient force to repel it as by evidence of the weakness and incapacity of the testator to make a will, or of the absence of in- tention on his part actually to do what he seems to do by the act. Proof, therefore, satisfactorily made of instructions given for drawing the will of his declarations of intentions as to his testamentary dispo- sitions of his known affections, or dislikes of the position and quality of his estate of his previous testamentary intentions, instructions, or actual dispositions of the physical condition and infirmities of the tes- tator at the time of making the will, and especially of the organs called into action in making, or understanding it, all these are proper subjects of consideration on the important question whether the paper propounded as a will, does, or does not contain the real testamentary intentions and wishes of the party who signed it, and whether he had knowledge of its contents when he executed it. The party setting up the will, must prove that it was made as a will and with a will, by a party capable of making it, and that he knew its con- tents ; but it is not necessary to prove that the will was actually read over to, or by the testator, if there be other evidence sufficient to sa- tisfy the jury that he was acquainted with its contents. A blind man may make a will, and a valid will may be drawn by a person taking a beneficial interest under it ; but the blindness of the testator and the interest of the person drawing and attending to the execution of it, are circumstances which should admonish the jury to scrutinize tho evi- dence offered to prove the testator's knowledge of its contents. The Isiw presumes, in general, that the will was read by, or to the testator. But if evidence bo given that the testator was blind, or incapable from any cause of reading it, or if a reasonable ground be laid for believing that it was not read to him, or that there was fraud, or imposition of any kind practised upon the testator, it is incumbent on tho>e who would support the will, to meet such proof by evidence, and to satisfy the jury, either that the will was read, or that its contents were known to the testator. The strict meaning of the term onus probandi is this, that if no evidence i.s given by the party on whom the burden is cast, the issue must be found against him. In sill cases this onus is imposed on the party pro- pounding the will ; but it is in general discharged by proof of capacity and the, fact of execution; from which the law assumes, or infers knowledge of and assent to, the contents of the will on the part of the testator; and the simple fact that the party who prepared the will takes a beneficial interest under it, does not of itself create a contrary presumption, and call upon the Court to pronounce against the will, un- less additional evidence is produced to prove the knowledge of its con- tent.-, by the deceased. It i.s at best but a su-picious circumstance merely, of more or less weight according to the facts of cadi particu- 46 SUPERIOR COURT. lar case, but in no case amounting to more than a circumstance of sus- picion, demanding vigilant care and circumspection, and calling for full and entire satisfaction on the part of the Court that the instrument did express the real intentions of the deceased. Nor is it necessary in all such eases, even where the testator's capacity is doubtful, that the pre- cise species of evidence of the deceased's knowledge of the will, should be in the shape of instructions for, or reading over the instrument. Instructions for a will being generally but heads or suggestions, the proper amplification of them in the more formal instrument is right ; but if substantial variations are introduced, the jury must then judge from the evidence whether the deviations were made with the know- ledge and consent of the testator. If they were not made known to him if the will was not read over by or to him, or its contents and variations from the instructions were not otherwise explained to him, then it will not be his will ; but if he knew of the alterations, then he approved and adopted them by the execution of the will, and the same ought to be confirmed. The same remark will apply generally to all declarations made by a testator in relation to what was to be, or what had been inserted in his will. If the testator had knowledge of the contents of the will, such declarations cannot be allowed to controvert the more solemn expression of his intention contained in the will itself; but in the absence of such other evidence of knowledge of its contents, and considered solely with a view to the question whether the will was ever read or explained to him, declarations satisfactorily proved to have been deliberately made by him in good faith, of testamentary dis- positions altogether different from the dispositions in the will, will be evidence to disprove the testator's knowledge of its actual contents. Tins was an issue of derisai-it rel non, ordered by the Register of Wills for New Castle County, to try the va- lidity of the last will and testament of Samuel B. Davis, deceased. The instrument of writing purporting to he the last will and testament of the deceased, was as follows: I, Samuel B. Davis, of Delamore Place, in the County of New Castle, and State of Delaware, being well in body, and of sound and disposing' mind and memorv, but advanced in years and desirous of arranging my worldly affairs, do make and declare this to be my last will and testament in manner and form following: Premising, that as I have heretofore made in my estimation sufficient and fair pro- vision for my elder children, my testamentary intentions DAVIS ET AL. v. KOGEES. 47 are confined exclusively to my children by my present wife, and my said wife. First. My debts, should I leave any, and funeral ex- penses, suitable to my condition, are to be paid. I give and bequeath to my wife my household furniture : to my son Delaware, the sword presented to me by the Legisla- ture, the piece of statuary, "Lucretia," and the two pic- tures, the "Adoration" and the "Nativity;" to my son Sussex, my full-length portrait; and to my son Kent, the pair of silver pitchers ; and to my daughter Harriet, the residue of my plate, and in case of her death without issue, the said plate is to go to her sister Victoria Elizabeth. All my real estate, wherever situate, now in possession or hereafter to be acquired, and all the rest and residue of my personal property, bonds, mortgages, and other securi- ties and investments, I give, bequeath, and devise unto William H. Rogers, his heirs and assigns, forever, upon this special trust and confidence, to hold arid manage the same without liability, except for wilful neglect or default, for the purposes and according to the directions and pro- visions hereinafter contained ; that is to say To pay and retain such sum or sums as may be sufficient for taxes, re- pairs, insurance, and the costs, charges and expenses of the trust, including fair and liberal compensation to the trustee, for his care, trouble, and management. Farther. To pay to my wife out of the general income of my estate, or to permit her to receive out of any inter- est, income or rents, specifically to be appropriated to that purpose, by agreement between her and the trustee, the sum of six hundred dollars per annum, during her natural life; also, to H utter her to use, occupy and possess during her natural life, the dwelling-house and lot, situated in Market Street near Eleventh, which I purchased from Ben- jamin Webb. Further. To pay and apply for the maintenance, educa- tion and support of my sons, the annual sum or allowance of five hundred dollars each, until they respectively attain the age of twenty-one years. And to j>ay and apply lor 48 SUPERIOK COURT. the maintenance, education and support of my daughters, the annual sum or allowance of three hundred dollars each, until they respectively attain the age of sixteen years. After my said sons shall respectively and severally have attained the age of twenty-one years, and until the period when my youngest child shall have attained the said age of twenty-one years, the said trustee is to pay and allow to each the sum of seven hundred dollars per annum ; and to pay and apply for the maintenance and support of my daughters, after they shall severally and respectively have attained the age of sixteen years, and until the said period when my youngest child shall have attained the age of twenty-one years, the annual sum of four hundred dollars each. Farther. After my youngest child shall have attained the age of twenty-one years, all my estate, real and per- sonal, except the said house in Market Street, and such fund or invested sum as may be necessary and sufficient to produce the annual amount payable to my wife as afore- said ; and also, such amount as will be sufficient to defray the remaining expenses of the trust, should my wife be then living, is to be divided and distributed, as equally as may be among my children, and in case of the death of either, the issue of such child or children is to take the pa- rent's share. The division of the real estate is to be made by three judicious and impartial persons, to be appointed by the Orphans' Court of Xew Castle County, or should the said Court not make such appointment, by the trustee; upon their certificate of allotment, the trustee is to con- vey to each their several and respective shares; those of the daughters to be held for their sole and separate use. But should the real estate not be susceptible of division into the requisite number of shares without detriment to the parties, it is to be sold by the trustee, and the pro- ceeds, after deducting costs, charges, expenses and com- missions, to be divided as hereinbefore provided. The personal estate, except as before mentioned, is to be divided and distributed unionir mv children us afore- DAVIS ET AL. v. EOGERS. 49 said ; and in such division the differences arising from in- equality of annual allowances are to be taken into conside- ration, so that the principle of full and final equalization may apply in th$ ultimate distribution. The shares of the daughters are to be held or assigned to their sole and sepa- rate use. Further. Should my wife refuse the provision made for her, and elect to take her dower, then the division and dis- tribution of my estate is to be postponed until after her decease, and the trustee is to pay, apply, and distribute the income, rents, and profits of the residue of my estate, after deduction of such amount as may be sufficient for repairs, taxes, insurance, and the expenses of the trust as herein- before specified, among my children (and the issue of any deceased child), after they all shall have arrived at the age of twenty-one years, in equal shares. Should my wife elect to take the provision herein made for her, then, after her decease, unless it should happen before the period of divi- sion, as first before mentioned, the house in Market Street, set apart for her use, is to be sold by my trustee, and the proceeds, after deduction of expenses and commissions, to be equally divided among my children as aforesaid, to- gether with the sum or investment reserved as aforesaid, for the purpose of producing the annual sum to be paid my said wife as aforesaid. Farther. It is my desire that the mansion house and pro- perty on which I now reside should be leased or rented until the period of final division of my estate ; the personal property which may be then at the time of my decease not specifically bequeathed, will be sold by my executor. It is also my wish that my daughters, between the ages of nine and sixteen years, should be sent to some good board- ing school, to be selected by my trustee. Any surplus income which may be in the hands of the trustee in to be invested by him from time to time in such sums and upon security as he should deern expedient. And it is my will and meaning that my trustee shall not be liable to answer or make good any loss or losses that 50 SUPEEIOE COURT. may happen in the management of my estate, or in invest- ing or reinvesting any sum or sums of money, unless the same shall arise from wilful neglect or default. The provision herein made for my wife is intended to be in lieu of dower. In the term " children," I intend to include any child hereafter born. And lastly, I do hereby nominate, constitute, and ap- point the said William II. Rogers, to be the executor of this my last will and testament, hereby revoking and making void all former and other will or wills by me at any time made, and declaring this to be my last will and testament. In witness whereof I, the said Samuel B. Davis, have hereunto set my hand and seal, this twenty-fifth day of July, in the year of our Lord one thousand eight hundred and fifty-three, A.D. 1853. SAMUEL B. DAVIS. [Seal.] Signed, sealed, published, and declared by the above- named testator, Samuel B. Davis, as and for his last will and testament, in the presence of us, who, in his presence and at his request, and the presence of each other, have hereunto subscribed our names as witnesses thereto. A. S. READ, GEO. C. GORDON, GEO. HARRINGTON. The instructions from which the will was drawn, and which were afterwards offered in evidence, were as fol- lows : July 20, 1853. To Afrs. Davis the sum of six hundred dollars per an- num during her natural life, and the house in Market Street, between (purchased of Benjamin AVebb), during her life. This annual allow- ance to be paid in semi-annual payments, by trustee, out of general income of estate, or out of any interest, income, DAVIS ET AL. v. ROGERS. 51 or rents to be specifically appropriated, by agreement, between trustee and widow. All my estate, real and personal, to be distributed and divided equally among my children by my present wife, such division and distribution to be made when my youngest (living) child shall have arrived at the age of twenty-one years. The boys, in the meantime, until they successively arrive at the age of twenty-one, to have allowed and ex- pended for maintenance and education, the sum of five hundred dollars each; the girls, until the age of sixteen, for the same purposes, three hundred dollars each. After the boys respectively arrive at twenty-one, the annual allowance to each is to be increased to seven hundred dol- lars. The increase to the girls, as they respectively arrive at sixteen, to be one hundred dollars, making four hundred per annum to each. These annual allowances to be paid to each of my children directly after twenty-one, previous to that time to be expended for maintenance and educa- tion, and to be continued up to the time of final distribu- tion and division. The differences arising from irregu- larity of annual allowance to be taken into consideration at the period of final division, and an equalization to be made out of the personal estate, or in the division of the real property, as may be most expedient. The mansion house and property on which I now reside to be leased or rented until period of division. The division of the real estate to be made by three dis- interested and judicious persons, to be appointed by Or- phans' Court of New Castle County, or, if they decline, by trustee. Distribution of personal to be by trustee. The household furniture to be given to Mrs. Davis; the plate to be given to my youngest daughter, Harriet.* In ease of her deatli without issue, to her sister, Victoria Eli- zabeth. Pair of silver pitchers to Delaware; if lie die without issue, to be divided between his brothers. The two pictures of the ki Adoration" and the u Xati- vity," and the niece of statuary, " ," together with my full-length portrait, to be given to my son Dela- 52 SUPERIOR COURT. ware. All the rest of my personal property at mansion house and farm, stock, horses, farming utensils, &c., to be Sold. In case of the death of any child or children, his share or shares to be divided equally among survivors. The title of real and personal property to be vested in trustee, who is to convey to children, respectively, after division. The female children at or over nine years of age, and under sixteen, to be sent to some good boarding school, to be selected by trustee. The sword presented by State of Delaware, to be given to Delaware; my portrait, above mentioned, to Sussex; and the pitchers above mentioned, to Kent, not as above directed. William H. Rogers to be appointed executor and trustee. SAMUEL 13. DAVIS. In case my wife should refuse the provision made for her and elect to take her dower, then the division and dis- tribution of my estate is to be postponed until after her decease, and my trustee is in the meantime to apply and distribute the income of the residue of my estate, after deduction of such amount as may be necessary to cover expenses of the trust, taxes, repairs, and insurance, among my children, after they shall all have arrived at the age ot twenty-one years, in equal shares. Should my wife elect to take the provisions herein made for her, then, after her decease, the house in Market Street, set apart for her use, is to be sold by my trustee, and the proceeds, after deduction of expenses and commissions, to be equally divided among my children. The share or shares of real and personal estate coming to my daughters, are to be held or assigned for their sole and, separate; use, free from the control and debts of any husband. SAMUEL B. DAVIH. July 23, 1853. DAVIS ET AL. v. ROGERS. 53 Hon. George M. Dallas, for the executor, opened the case on his behalf to the jury and remarked : Colonel Samuel B. Davis died on the 6th day of September, 1854, at the very advanced age of eighty-eight years, at his resi- dence of Delamore Place, in the immediate vicinity of Wil- mington, leaving a widow, Sally B. Davis, and five children, of his last marriage, to survive him ; namely, New Castle Delaware, aged sixteen years ; Sussex, aged fifteen ; Kent, aged fourteen ; Victoria Elizabeth, aged ten ; ?nd Harriet, aged six years. Colonel Davis had been married before and left other children to survive him ; but they were not concerned in the present content. He had led an active, and, in some respects, a prosperous life, and had been dis- tinguished in the public service. The Legislature of Dela- ware had presented him a sword as a testimonial of the respect entertained for him. He was the owner of a valu- able real estate, and also of a considerable personal estate. Although an old man, he w T as possessed of unusual vigor both of body and mind, with the exception of his sight, which was impaired by disease as well as age, and his hearing, which was also affected. Still lie was able, with aid of glasses, to read and write; and the proof will show that he was wise and sagacious in matters of business to the lust. His will \vas executed on the 25th of July, 1853, about a year before his death, after making due and de- liberate preparation for it; for he left with his friend, Wil- liam H. Rogers, written instructions on two different days, the 20th and 23d days of July, for this purpose. Mr. Rogers wrote the will, and on that day took it to the house of Colo- nel Davis, taking with him Mr. George Gordon and Mr. Harrington to witness it. They found Colonel 'I )avis in the parlor with his children. Mr. Harrington, who was a stranger, was introduced, and, upon it being suggested that Mr. Harrington was not a residetit of the State, Colo- nel Davis sent his son Sussex for Mr. Alexander Read. He then intimated a wish to have a private interview with Mr. Rogers respecting the will. The other gentlemen withdrew and walked the porch, the door being open. The 54 SUPEEIOR COUKT. conference with Mr. Rogers was had ; Mr. Rogers read the will over to Colonel Davis distinctly and deliberately ; waited for any suggestion to be made ; one was made and carried out by the insertion of a word which now appears on the face of the w r ill. Mr. Read, for whom Sussex Davis had been sent, arrived about the time or just after this interview' took place, and the other witnesses had been called in. Colonel Davis requested Sussex to bring pen and ink, and then formally executed the paper and de- clared it to be his last will and testament. He then handed the will to Mr. Rogers, who put it in his pocket, and the next morning put it in an envelope with a proper indorse- ment, and deposited it in the Bank of Delaware. After he had executed the will, Colonel Davis jocularly asked some of the party if they would not examine as to his mental competency, and related certain anecdotes, and made other remarks, showing mental vigor and capacity. He then read the will in evidence, and proceeded to call the subscribing witnesses. George C. G'ordon, one of the subscribing witnesses, tes- tified that he was acquainted with Colonel Davis, but not intimately, and proved his signature as a witness to the will. On the day the will was executed, Mr. Rogers asked him to ride out with him to Colonel Davis's to witness the execution of it, and he did so with him and Mr. Harring- ton, a brother-in-law of Mr. Rogers, in a carriage, procured by him for the purpose. AVhen they reached the residence and entered it they found Colonel Davis seated, with some of his children about him, in the hall. The weather was warm and the doors were open. Mr. Harrington was in- troduced, and the object of the visit was referred to. Mr. Rogers suggested to Colonel Davis that, as Mr. Harrington resided out of the State, lie had better send for one of his neighbors also as a witness. Mr. Alexander S. Read, who lived near, was sent for, and the Colonel requested Mr. Harrington and himself to retire, as he desired to ha. p. 139, 10 L'tw lAbr. ; Green v. Winter, 1 Johns C. K. '27 ; State v. Plait, 4 llarr. 165. It matters not what you call the gift or bequest in this case, whether you call it a legacy, com- missions, or anything else, it is the same, and creates and confers a beneficial interest under the will. Fii the case of a simple or naked trustee without compensation, who merely holds for the use and benefit of another, and sub- 60 SUPERIOR COURT. ject to his order and disposition of the estate, he is compe- tent ; but a special trustee is not, because the first has no interest in the estate, whilst the latter has an interest in it. Will, on Trustees, 228 ; Allison v. Allison, 1 Hawks' JR. And thirdly, on the ground that the executor is a party to this cause, and, though not absolutely liable, may be- come liable for costs; and is therefore incompetent as a witness in the case. Dean v. Russell, 1 Eccl. JR. 411 ; Jack- son v. Whitehead, Idem, 478. If an executor can in any event be liable for costs (and we do not know what decision may be made on the ques- tion of costs in this case by the register), he has, it seems to us. such an interest in the result as will exclude him as a witness. He may become liable, aud be held personally responsible for a violation of his duty as such for a devas- tavit ; and he may be held liable even for attempting to prove a will that was not the will of the testator. Mr. Dallas : It has been well said that this is not a pro- ceeding inter paries, but a proceeding in rem. There are properly no parties no plaintiff, no defendant in the case. It is simply a question whether the instrument be- fore us is or is not the last will and testament of Samuel B. Davis. Now, we are in danger of being misled by losing sight of a fundamental principle. The interest which will exclude the witness is not a matter of feeling, or an interest which, as a friend or a man of hoifor, he may feel in the result. Were the witness proposed a brother of the deceased, or of the widow of the deceased, with every feeling embarked in the issue of the case, it would not disqualify him. An advocate in a cause is not for this reason disqualified. A consignee of goods, though deriving profit from the- consignment, may be a witness in regard to it. I admit that a direct and positive interest will disqualify a witness; but it must be a certain, fixed, and definite interest in the result of the cause, and not a contingent, prospective, or possible interest merely. 2 Stark EC. 745 ; 4 Harr. It. 206. But the interest of the DAVIS ET AL. v. EOGERS. 61 witness here offered is contingent, and depends upon others ; and in such a case it goes only to the credit, and not to the competency. Again, it is not a compensatory interest which disqualifies an executor or testamentary trustee, but an interest in the dispository part of the will, as a legacy, for instance. 2 Stark Ev. 1275; 1 Wm. Black's Rep. 365; 12 East, 250; 12 Mass. Rep. 360. A compensatory or remunerative interest, for services performed, is not what is termed a beneficial interest under the will. The decision in the case of Snyder v. Bulls, 17 Penna. Rep. 54, pronounced by Chief Justice Gibson, a man of lofty genius and rare judicial ability, fully sustains this principle. The law of this State, as well as of Penn- sylvania, regards the laborer as worthy of his hire, and his compensation as such is not such a beneficial interest as will exclude an executor from testifying. Unlike the legatee, he is not the testator's beneficiary, but is presumed to receive nothing which he has not earned by his services. Whatever interest, therefore, he may have in such a case, goes only to his credit, and not to his competency. There is and can be no liability for costs in this case on the part of the executor. It was so ruled in the case of Ross v. Hearn, 4 Harr. 101 ; 8 Conn. Rep. 254 ; 1 Gratt. Rep. 18. The executor, though a party defendant, and though entitled to commissions, is competent as a witness. So held in the case of John Randolph's will. Mod. Prob. of Wills, 4G9, 474. The case cited from 16 Barb., on the other side, does not support their position ; for in that case the executor was directly interested. On the second point made by the other side I will say, that the bequest is not gift; it is not a devise ; it is not a legacy ; but a remuneration for services rendered, and is honorary in its character. If the commissions would affect the propriety of his admission as a witness on the score of policy, the effect would be to destroy the right to the com- missions, and not to destroy the will by rendering the witness incompetent. 62 SUPERIOR COURT. Mr. Davis: The fact that this is a proceeding in rem, and not inter paries, cannot operate in favor of the admission of Mr. Rogers as a witness to support the will. The question is, has he such a direct and pecuniary interest in the result of this case as will exclude him as a witness? It is a pro- ceeding in rem to this extent ; it binds every one as to its effect on the instrument, which it either establishes or destroys ; it binds the heirs at law as well as the widow, though the proceeding here is only by the widow. Never- theless, because it is not a proceeding inter paries, the ar- gument of the other side is, that the heirs are competent witnesses to destroy it, which reduces the argument ad absurdum. In England no commissions are allowed an executor, and therefore the cases cited from that country do not apply in this ; and yet it is held there that an inte- rest, such as a legacy, will disqualify the executor to testify. We contend that the witness in this case is the testator's beneficiary, and more so than he would be as a mere legatee, because he takes the whole fund, paramount to debts and legacies, and every other disposition of them, so far as his commissions are concerned, although they may be compensatory in their character. AVe therefore main- tain that an interest as executor, entitled to commissions by law or usage here, is a disqualifying interest; that the addition of an express bequest of commissions magnifies this interest ; and the addition of a substantial bequest and devise of a large estate, real and personal, to him as a trustee, puts the interest beyond all question. To ordinary comprehension the question, whether Mr. Rogers is or is not interested in the establishment of this will, does not admit of a doubt; if it be otherwise in a judicial souse, it is for the other side to show some reason or authority for it. There is some conflict in the cases on this point, but the question arises in most of them in reference to the admissibility of attesting witnesses to the will under such circumstances, and in which the actual question was, whether the witness or the will was to be destroyed: but Mr. Roirers is not an attesting witness to the will in this DAVIS ET AL. v. ROGERS. 63 case, necessary to prove the factum of it, but is offered as a general witness to sustain it. The case cited and mainly relied on, of Snyder v. Bulls, from 17 Penna. Rep. 54, was the case of an attesting witness. The case, I admit, does assume the position (in which it stands alone, however, in the American courts), that the interest of an executor, en- titled by law to certain commissions, is not a disqualifying interest ; and on this point it is itself controverted by other Pennsylvania decisions. The argument that this is not a disqualifying interest because it is compensatory merely, necessarily resolves itself into this, that any one may prove himself entitled to an office though he derives fees, com- pensation, or salary under it; and any one may prove a contract under which he is to render service and receive compensation, because he performs the service for the compensation. Xow the commissions in this case must amount to several thousand dollars, and yet are we to be told that if the testator had bequeathed to the proffered witness a legacy of five hundred dollars, he would not have been competent ; but, given as a compensation in eight or ten times the amount, it is no objection to his compe- tency? But, beyond all these objections, the witness is furthermore incompetent and inadmissible, because he is directly interested as a party to the suit, the sole party, so far us we may judge from appearances, interested, or active in setting up the will. By the Court, Jlarri/iyton, C/t. J. : In expressing the opinion we have formed on the question which has been so fully and ably discussed at the bar, we shall not refer to the facts which arc supposed to present a disqualifying interest in the witness, further than is necessary to raise the question of evidence ; nor shall we refer to many of the points ruled in the numerous and somewhat conflicting cases cited. Tt will be enough to state our present view of the principles which govern the case without attempting to distinguish or reconcile the cases. The general principle is a common law maxim, that, no 64 SUPERIOR COURT. one who is interested in the event of a cause, can be heard as a witness in the trial of that cause. Applying that prin- ciple to the case of an executor called to support the will, we may assume that the English courts regard him as a competent witness, because, according to their system, the executor takes no interest under the will, being entitled as such to no compensation by way of commissions, or otherwise. He is regarded there as taking an onerous office rather than a desirable employment. But when he takes a beneficial interest under the will, as by a legacy or bequest, he has been held even there to be incompetent on the general principle of exclusion. But in the United States, in most, if not all of them, it is otherwise as to com- pensation. In them the executor is entitled to his com- missions by the statute law, and this interest has in most cases been held to exclude the executor from being a wit- ness to support the will. In others, as in the cases cited from Pennsylvania Reports, with the deserved weight of Chief Justice Gibson's opinion, the right to legal compen- sation, which attaches by force of the statute to the office of executor, does not disqualify him. Btit in this case, as indeed in most of the cases, when the effort has been to introduce the executor as a witness, his admissibility was essential to the probate of the will, he being one of the testamentary witnesses necessary to constitute the number required by the statute of wills. It therefore raised a question of public policy in reference to the construction of the statute, and the necessity of admitting the executor as a competent witness in that instance. The witness now offered is not an attesting, but is called as a general wit- ness to sustain the will. lie is named by it executor and trustee; entitled, in the former character, to legal compen- sation, and, in the latter, to compensation bequeathed by the will ; together with the estate, real and personal, of the deceased, of which lie is made the " master," as trustee for the widow and children. In this State there has been no adjudication of this pre- cise question. In the case of Button v. Mutton, 5 JIarr. Rep. DAVIS ET AL. v. ROGERS. 65 459, which was an issue of devisavit vel non, the contest was respecting the codicils of the will. One of the executors, who took an interest under the codicils, was called as a witness and rejected; the other executor, who took no interest under the codicils, was admitted ; they were both appointed executors by the will, and neither by the codi- cils. This case has been spoken of as ruling the principle that a mere executor, having no additional interest under the will, might be a witness to support it; but the case does not rule that point. The witness, supposing he had an interest as executor, was still an executor, whether the codicils were supported or not. He therefore had no in- terest whatever in the result of the case. But the other executor who took an interest under the codicils, was ex- cluded. So far, then, as the case is an authority on the point, it is against the admission of an executor with an interest. If the cases cited can be reconciled, it must be on the principle that a mere executor derives his interest under the law, which allows his commissions; whilst an executor with a legacy, derives his interest as to the latter solely from the will. We are not prepared, however, to rule this distinction. One of my brethren thinks it is not a sound distinction ; and if it were necessary to decide it, the inclination of all our minds is to regard the compensa- tion as a disqualifying interest, whether derived from ex- press provision in the will, or through the law allowing commissions to executors. It would seem like a refined distinction to say that an executor, with a compensation of one thousand dollars fixed by the will, lias an interest; whilst one who has commissions to the same amount, fixed by law, has no interest in the question whether it shall be sustained or not. But in this case the witness is not only an executor, en- titled to legal commissions, but he is also a trustee, to whom the legal estate is devised in trust, with an express provi- sion in the will for fair and liberal compensation as such. We think this constitutes a disqualifying interest, and we therefore rule out the evidence. 66 SUPEEIOE COUET. Mr. George Browne then opened the case on the part of the contestants of the will, to the jury. We do not deny that the parties contesting the validity of the instrument in question, are bound by the will of the decedent, on the contrary we wish you to carry out his intentions; but while we admit that this paper writing was signed and executed by him, we deny that he knew what it contained, or that it expresses his intentions. I will give you a brief account of Colonel Davis. He was born at Lewes in this State, September 25, 1770, and died September 6, 1854, in the 84th year of his age. In youth he was a sailor, and at an early period of his life he emigrated to Louisiana, prior to its cession to the United States, and purchased lands at a comparatively low price. In the course of time that cession followed, population flowed in, his plantations rose in value, he sold them and after the lapse of several years he returned to the State, a nlan of fortune. He married first a French lady in Lou- isiana, by whom he had one son, General Horatio Davis, now of Xew Orleans, and who is represented by his son now in Court, as one of the contestants. After the death of his first wife, Colonel Davis married again, and had by his second wife five children, whose names have already been stated, and who, with their mother, are also contest- ants of the will; so that all the family are against this will, and no one for it, except the executor and trustee ap- pointed in it. In 1837 Colonel Davis became afflicted with cataract in both his eyes, from which he became almost blind. After an operation he partially recovered his sight, so as to see how to make marks, but not to write. Prior to the month of June, 1850, lie made a will, in which lie appointed lion. Henry D. Gilpin trustee, and in which he made proper and handsome provision for his wife, retaining it, how- ever, in his own possession. After the birth of his daugh- ter Elizabeth, lie made two codicils to that will, and when his daughter Harriet was horn, it beeanie proper for him to make another change and to have another will drawn in DAVIS ET AL. v. ROGERS. 67 June, 1850. So things remained until July, 1853, when Colonel Davis was known to have called at Mr. Rogers' office, and nothing further was developed in this respect until after his death, when this paper writing is pro- duced. He then proceeded to state the grounds on which they resisted and denied the validity of this instrument in ques- tion, as the last will and testament of Colonel Davis. First, that the statute of the State of Delaware contains no provision for the execution of a will by a blind man ; it only relates to persons in the full possession of their facul- ties. Secondly, that when a will has been executed in conformity with the provisions of the statute, the law in general presumes knowledge of its contents and sufficient capacity to make it, on the part of the testator ; but the mere execution of a will by a blind man and its formal attestation by the subscribing witnesses, raises no pre- sumption in law that he knew the contents of it, and if there is evidence that the testator was blind, or from any other cause was unable to read the will, it is then incum- bent on the party propounding it, to prove that he knew the contents of it. Thirdly, we shall show by the evi- dence which we are about to offer, that in point of fact, Colonel Davis did not know the contents of this will, and that he was under a great misapprehension as to the pro- visions of it, both at the time and after he had executed it, lie told Mr. Read, one of the witnesses to it, after it was executed and before he left the room, that it contained a certain bequest, which we nowhere iind in it. He also told Mr. Sellars the same thing some time after he had made it, and he had always declared to his family, before he had made his will, that he intended to make such a pro- vision in it. .Besides, we shall be able to prove that he always designed Delamore Place for his son Delaware, and that he never was known to change that purpose, and re- fused not long before his death to lease it, from an appre- hension which he entertained that it might keep him out of the possession of it. He never intended to cut off his 68 SUPERIOE COURT. widow, as this paper cuts her off. His previous wills and instructions and his constant disposition to increase his real and diminish his personal estate, all disprove it. I would also remark that this will contains a falsehood, of which Colonel Davis was incapable, in regard to his son Horatio and the provision which it falsely alleges he had previously made for him. He never in his life pretended that he had provided for him ; he had fallen out with him and threatened to disinherit him, but he never pretended that he had provided for him. Superadded to all this, the will is subject to suspicion on its very face. The un- bounded confidence reposed in the executor and trustee, is a suspicious feature in it, and in connection with this the liberal bounty provided for him as such in the will, is likewise a suspicious circumstance. The insertion of the word liberal after the words fair and in the will, should be accounted for. Was the text prepared for such an inter- lineation, and if so, what was the meaning, or design of it ? Was the compensation which the executor and trustee is to receive, to be more or less than fair ? And finally, the writer and draughtsman of the will taking such a large and beneficial interest under it, with such an unlimited control and discretion over the estate of a blind testator, enhances the obligation of the propounder of the will, the executor and trustee in this case who drew it, to prove to the satisfaction of the jury, that Colonel Davis was fully apprised of, and correctly understood every provision con- tained in this paper writing at the time he executed it as his last will and testament. Dr. Lewis P. Bush : Was the family physician of Colonel Davis for eight or ten years past, and had heard him speak of having had an operation performed on one of his eyes for cataract. The effect of cataract is to exclude the light from the retina, as it produces opacity in the crystalline lens which covers the retina. That lens con- centrates the rays of light as they pass through and con- verges them upon the retina. In one operation for cata- DAVIS ET AL. v. ROGERS. 69 ract this lens is removed altogether; in another, it i de- pressed only. After this operation the light is admitted to the retina, but the eye cannot see without the aid of a glass lens, and then he sees only in a right line, and would read as though looking at the words through a spy glass. The head and not the eye would have to move until each succeeding word was brought within the line of his vision; and of course, such a person would read very slowly. He had never seen Colonel Davis read during the last three years of his life. He had frequently seen him with spec- tacles on and with a newspaper in his hands, but never saw him during that time actually reading. For the last two years or more of his life, his hearing was obtuse, and he could not hear an, ordinary tone of conversation; he could not understand a continuous reading in an ordinary tone of voice. Old persons were often sensitive on the score of age, and not willing to admit its infirmities, and Colonel Davis was peculiarly so ; he never knew him to admit any. Colonel Davis's spectacles were here exhib- ited to the witness, and he identified them as cataract glasses. William Huffington, Esquire: Became acquainted with Colonel Davis in 1838, and had been intimately so since 1845. In 1846 he employed him as his legal adviser. At first he generally came to his office, but afterwards he gen- erally sent for him, and he frequently visited him both so cially and professionally at his own house. During that year and for three or four years afterwards, he had fre- quently seen him read paragraphs in the newspapers and letters from Mrs. Myra Gaines and others; but in 1848 lie began to leave off reading, and since. 1841) he had not seen him read a line, or read any instrument prepared by him. Since that time in signing his name great care had to be taken in placing the paper before him. lie told him he had been totally blind from cataract, and that he had an operation performed on one of his eyes, which partially re- lieved it; but the surgeon refused to operate upon the 70 SUPERIOR COURT. other, saying that a man of his age might well be satisfied with one eye. In 1850 he sent for the witness to draw a will for him, which he said was necessary in consequence of the birth of a daughter. He told him he had a will drawn by Mr. Henry D. Gilpin of Philadelphia, with sev- eral codicils since added to it, which he produced and showed him, but he said it would be better to have another will written, which was done. He took his instructions for it in writing, prepared the will, and he executed it. In 1851 his hearing he perceived began to fail ; it was worse, however, at some times than at others, and increased as he advanced in age. Mr. Bales here propounded the following question to the witness: if he had ever heard Colonel Davis express any testamentary intentions before, or after the making of his will, and particularly with regard to a certain property which he owned, and which he intended to devise to his son Delaware. Mr. Dallas objected to the question. The learned counsel in opening the case had made no suggestion of fraud in reference to the execution of this will. Mr. Dai 'is : That is what we propose to prove, though expressed in the mildest form. Mr. Broiime : If that position was not expressly as- sumed and announced in the opening, it was sufficiently indicated, and was only suppressed from a sense of polite- ness. Mr. Rogers: No such delicacy is expected or desired by me. Mr. Dalits : I am happy now to have brought the other side to a full disclosure of their design. If the declara- tions proposed to be given in evidence were uttered at DAVIS ET AL. v. KOGERS. 71 the time of executing the will, so as to constitute a portion of the res gestce, they were admissible, but if they were not uttered at the time, the rule was otherwise. The word fraud, has a legal meaning, and nothing like it had hitherto been alleged on the other side. Such declarations are not admissible either to revoke or set aside a will, except on the ground of fraud, circumvention, deception, &c. Tes- tamentary declarations of an intention to make a will in a particular way, and even declarations of duress, are not admissible for this purpose. Smith v. Feriner, 1 Gallisori's Rep. 262 ; Jackson v. Kniffer, 2 Johns Rep. 31 ; Stevens v. Vancleve, 4 Wash. Rep. 262. In no case have such decla- rations been admitted, except to repel or disprove a charge of fraud, for which purpose they are admissible and for no other. Comstock v. Hedlymne, 8 Conn. Rep. 254; Provis v. Rowe, 5 Bingh. 435 (13 Cong. C. L. R. 490); Mod. Prob. of Wills, 444. This principle for which I have contended, is the principle of the common law courts here and in England ; but the ecclesiastical courts in that country have, I admit, established a principle in their practice at war with this. Mr. Bates : If this question is to be considered an open one in this State, it must be discussed at large, for it is a vital question in this case. But this court has decided it. In the case of Rash's will, Rash v. Purnell, 2 Harr. Rep. 457, the court ruled such evidence to be admissible. By the Court : But the question has never been decided by our highest court the Court of Errors and Appeals and we will therefore hear the question argued. Mr. Bates proceeded : The evidence is not offered for any purpose connected with the construction of a will, nor of attacking any bequest made in u will already proved, nor of setting up a parol revocation of a will, nor of proving a fact outside, but for the purpose of ascertaining whether this paper contains the testamentary intentions of the tes- 72 SUPERIOR COURT. tator. There is also a distinction between declarations which go to prove facts impeaching the will and duress and declarations showing testamentary intention. This dis- tinction rules out the cases cited. The admissibility of declarations as showing testamentary intention is necessary as a matter of policy to protect against fraud. Take a blind and a deaf man, and cut oft' all means of proving his intentions by proving his declarations, and he is liable to any kind of imposition, because it will be contended it is not necessary to prove he read or heard the will ; and per- haps that it was not the duty of the testamentary witness to ascertain whether he knew the contents of the will. The testimony is admissible by the strict rules of evidence. The fact that a paper was executed does not prevent us from going outside of it to show testamentary intentions. The very object of this proceeding is to ascertain if the will is the will, and to say that no evidence of will shall be given except through the will, is to assume that to be the will whose existence is the object of the suit. In case of blind- ness the inquiry into intention is more fully opened, and it is necessary to prove the intention aliunde. 1 Eccl. Rep. 290. The animus testandi is always open. 1 Bradford Rep. 364-5. Proof of intention is necessary to the ex- istence of the will to prove the factum ; and proof of the factum may always be by parol. Evidence of the testator's mind must always come from himself. His declarations are the best and most reliable evidence. This is not hearsay evidence, which is the testimony of a witness under oath to the sayings of another not under oath" as to a fact, but it is the declaration of a party as evidence of the mind with which he did an act. The f/uo animo is always to be proved by his declarations, and to rule them out would be to rule out writings, even in- structions, which are but evidence of intention. I have found no case in which the evidence of intention has been rejected, though it be by parol, but many to the contrary. 7 Vcsry Rep. 509; 40 -Kny. C. Law Rep. 92; 1 Eccles. Rep. 144; Johnson v. Johnson, Ibid. 390; 2 Vcr- DAVIS ET AL. v. EOGERS. 73 non R. 76 ; Nelson v. Oldfield, 1 Moody and Robinson, 525 ; Doe v. Hardy, 1 Hawks' Rep. ~248 ; Reel v. Reel, 3 Devc- reaux R. 442; 3 Phill. Evid., last ed. by Cowen and Hill, 267-9 ; 1 Ibid. 189 ; 3 Leigh Rep. 52. Fully reviewing all the cases, and opposing JacRson v. Niffen, which was but a minority decision. Mr. Davis : The case stands thus at present. The pro- pounders have proved the signing of a paper by Colonel Davis, according to the statutory formalities, and the de- claration that it was his will. They then rest, saying that the will is proved. We deny that it is the will ; first, be- cause the testator, being practically blind, it is not proved to be his will unless the propounder prove that it was read to him and explained. We go a step further, and offer to prove he did not know the contents of the will, by his de- clarations, made before and after, that it contained disposi- tions which it does not contain. This is objected to as incompetent to be proved by parol. Why ? The statute of wills says a will may be of real and per- sonal property. What is a will ? Originally any expression of the mind, verbal or written, was a will ; it is the mind that makes the will, though that mind must be evidenced by writing and signature. But suppose the writing and signature deceptive, how are we to get at the mind ? The declarations of the testator at any time are evidence of it, and the only mode of evidence. Fraud vitiates the will ; but how shall fraud be proved but by purol ? Insanity, duress, ignorance of the contents can be proved, but not otherwise than by parol. And why should not the decla- rations of the testator respecting his own disposition of hi* own property be evidence of such dispositions ? Who can complain of it ? Then as to authority. None of the cases cited by the other side are precisely in point. None say that in a case where the validity of the will is solely in question, paroJ evidence of declarations of the testator respecting his testa- mentary dispositions, is not evidence. 6 SUPERIOR COURT. Mr. Dallas: Rash v. Purnell was not argued, and is therefore not authoritative. There is a will here proved ; it was on that ruling of the court we rested. The contestants have undertaken to undermine a will proved ; but they say they have proved the testator a blind man. They have proved precisely the reverse ; for he was proved to be a man who could see by the aid of glasses, which he used on the occasion. The law on this question is contained in the Code of Delaware prescribing how a will shall be made. When made with all these solemnities, shall it be destroyed by the breath of the testator in any idle conversation? The law says it shall not be altered but with certain solemnities. Yet here it is attempted not only to alter but to destroy it by conversations. Is a will of less force than a deed ? Yet who ever heard of a deed duly executed being nullified by the declaration of the grantor that he had no intention to make it ? These declarations are made often with the intention of deceiving; shall they, then, be given in evidence to defeat a will made according to the testator's wishes? By the Court, Harrington, Ch, J. : We had supposed that the question now presented had been settled by repeated decisions in this Court, and concurred in and acted upon for a number of years past in cases similar to this. It was first practically decided in the case of D'.ijficld v. Morris's JSsecutor, 2 Harr. Jiep. 375, and followed in the case of Rath v. Pun) fil, 7(/cm y 448, in which it was expressly ruled that parol declarations of the testator, as to his testamen- tary intentions, were admissible in evidence for the purpose of invalidating an instrument propounded as his last will and testament. liut we were quite willing to hear it ar- gued, as we were aware there are contrary decisions, and were told that the question is one of great importance in this case. It has been fully discussed, and our opinion remains unchanged that the evidence is admissible. \\ r e cannot regard it as excluded by the statute of wills, which DAVIS ET AL. v. EOGERS. 75 requires certain formalities to be observed in order to con- stitute a valid will, which are absolutely essential to estab- lish its validity, and which cannot be supplied by any parol proof whatever. But it does not follow that these essen- tials may not be controverted and disproved and the vali- dity of the will be impeached by parol evidence ; because, to deny this, would be to give to these formalities and the mere execution of the will a conclusiveness which does not properly pertain to them. Knowledge, intention, purpose are necessary to a will ; and if the want or absence of these cannot be proved by parol, when the will is denied upon this ground, all proof to the contrary of the will itself, would in effect be excluded on these essential points ; and it is difficult, if not impossible, to conceive how this question of testamentary intention, which is the very point in controversy, is to be ascertained and determined, if the testamentary declarations of the testator outside of the will, are to be rejected as altogether inadmissible and en- tirely excluded from the consideration of the question. With regard to the sufficiency or insufficiency, the weak- ness or the strength of such evidence, to invalidate a will executed with all the solemnities and formalities required by the statute, that does not properly apply to the question of its admissibility, but is a matter for the consideration and decision of the jury under the charge and direction of the Court. It is the opinion of the- Court, therefore, that the inquiry proppunded to the \yitness may be answered. Mr. Hitjfingfon proceeded : When he was about to write Colonel Davis's will in 1850, we were making a valuation of his real and personal estate, which we made about 8130,000. I told him I thought he would be giving his son Delaware more than his share, lie said he wanted him to have the home place, to lie a gentleman and the head of the family, to marry young and live there, and he supposed it would be a home for his young sisters. I think the will now shown me is in the handwriting of Wil- liam II. Rogers, Esq., although it is not so good as his 76 SUPERIOR COURT. handwriting in general. He then identified and proved the will produced and shown him as the will drawn by the witness in 1850. The will drawn by Mr. Gilpin with the codicil drawn by Mr. Rogers, was put in my hands from which to draw the will of 1850, and my impression is, and to the best of my belief I so state the fact to be, that when I had drawn the will of 1850, he threw that will and codi- cil in the fire and burnt it. The trusts in the two wills were the same and the devise to his son Delaware were the same in both wills. Up to 1851, 1 saw him as often as once a month. After the early part of that year I had not so much business with him, and did not see him so often. The last time I saw him was at the execution of the deed of Mr. Bird in February, 1854. I had previously drawn the contract between him and Mr. Bird, and it was signed by Colonel Davis, at his house. He had two pairs of spec- tacles one pair to read with, and another pair to see dis- tances. I have seen him reading letters, newspapers, and instruments. I have not seen him read letters since 1848, nor newspapers since 1849, but had not seen him attempt to read anything since 1849. He did not attempt to read the will he wrote for him in 1850, and from his having to direct his hand, he did not believe he saw a letter he made, when he signed it. Ale.r Kean y 643. There was one thing, however, on which every one might rely in this country, whatever might be the charac- teristic passions and errors of the American people, and that was their sense of justice. What was there in the will in controversy to excite the feelings, or to justify the strong and vehement objections which had been urged against it? Was there anything in it inconsistent with the domestic duties or natural affec- tions of the testator, Colonel Davis ? On the contrary, throughout its provisions, his wife and children were up- permost in his thoughts, and his chief and only solicitude seemed to be to provide for the future welfare and happi- ness of his offspring. The aggregate amount of -3500 per annum, until the youngest child arrived to the age of twenty-one years, was provided by the will for the support and maintenance of the family, besides a convenient and comfortable residence in the city of Wilmington. And why, when the will was executed, was it handed over by the testator to Mr. Rogers, to have the charge and custody 86 SUPERIOR COURT. of it ? The reason and answer was plain and obvious. It was because he had appointed him his trustee and execu- tor, and he was the proper person to have it, as he was to administer his estate and execute its provisions. Now the real question presented to them was this, was Colonel Davis on that day capable of making a will ? It was said that he was old ; but he was proved to have re- tained up to that time unimpaired all the faculties of his mind, and no witness had pretended to say that he was unable to make a will ; nor was there an earthly doubt on the mind of any one of the testamentary witnesses that he perfectly knew and understood what he was doing, and the contents of the will which he had just executed. He said to these witnesses, Messrs. Gordon and Harrington, soon after their arrival at his house, and some casual con- versation had passed between them, " I will be obliged to you, gentlemen, if you will withdraw ; I desire to confer with my counsel," meaning Mr. Rogers, "on the subject of my will;" and, in accordance with this intimation, they retired from the room, and he and Mr. Rogers were left alone. Now, he maintained, and tlie authority of a case which he had already cited would sustain him in the posi- tion, that this of itself was sufficient to establish the will; for in that case the Chancellor held that if the testator might have known the contents of the will, or had an op- portunity of knowing them, hq would be presumed in law to have known them, and it would be sufficient to sustain the will. Blindness would constitute no legal disability, or inca- pacity to make a will ; but he did not contend that, the testator obtained his knowledge of the contents of the will through the medium of the eye, but through the medium of the ear, and they had such a mass of circumstantial and documentary evidence that Colonel Davis fully understood the contents of the instrument in question, as to make the conclusion and conviction that he did know the contents of it absolutely irresistible. In the iirst place, when a man puts his name to a piece DAVIS ET AL. v. ROGERS. of paper, the law presumes he knows its contents at the time of signing it; and in the present case this presump- tion was strengthened and confirmed by the deliberate manner in which the testator signed and executed the will in the presence of the subscribing witnesses. Besides, the will itself was full of intrinsic evidence that he knew its contents. He could show from written evidence that sub- stantially the same will had been made not less than six times by the testator, first, in the will of 1845; secondly, in the will of 1850, and the codicils to it; and, thirdly, in two sets of instructions for the will of 1853, with the will itself. These wills and instructions all bore the same impress, the same main features, and every one of them had the same precise trust provided for in it, and the same peculiarities, in regard to the provisions for his children, running through the whole of them. The same compen- sation to the trustee was to be found in all of them; and there was not a power conferred on the trustee by the will of 1853, that was not conferred by the will of 1850 ; nay, the powers conferred by the earlier wills were greater than those conferred by the latter. The will of 1845 devised Delamore Place to his son Alonzo, and contained the same provision to be found in the will of 1853 for leasing it ; there was the same direction in each of his wills that his daughters should bo sent, at a certain age, to boarding .school, and the specific bequests were very nearly the same in all of them. Now, when they traced up all these vari- ous provisions of the several wills, they would find that the finger of Colonel Davis had been and was visible in every one of them, and that but one man, and no one but Colonel Davis, could have conceived and dictated tin- whole of them; and if the will and instructions of 1853 were counterfeits and forgeries, then all the other wills and instructions were also counterfeits and forgeries. lie denied that there were any essential discrepancies between the will of 1853 and the written instructions from which it was drawn. The will but elaborated and ex- pressed more fully what was more concisely indicated in 88 SUPERIOR COURT. the instructions; and if there were any variations in the will from the instructions, he insisted upon the authority of Chandler v. Ferris, 1 Harr. Rep. 464, and Hearn v. Ross, 4 Ib. 46, that they were not only known and approved by the testator, but were not of sufficient substance and im- portance, even if unknown to him, to aftect the validity of the will. Mr. Davis to the Jury : After Messrs. Gordon, Harrington, and Rogers had taken their leave of Colonel Davis, on the day the will was executed, Mr. Read, who remained, fell into conversation with the latter, when he inquired of Colonel Davis why he had made another will, as he had witnessed a former will made about three years before by him; to which Colonel Davis replied, pointing to his little daughter, who was present, playing on the floor, or passing at the moment, that he wanted to make provision for that child ; that he had left her his lots on Fourth Street, in the city of Wilmington, and that they would be valuable by the time she was grown up. This was said by him within fifteen minutes after he had put his name to the will; but there was no such provision in the instrument. He then made this point to the Court, that if Colonel Davis signed tliis paper in the handwriting of Mr. Rogers, believing that it contained this devise to his daughter Harriet, it was null and void as his last will and testament. Again, his repeated declarations, and the serious and deliberate expressions of his intentions to leave Delamore Place to his son Delaware, and his refusal to lease it to Mr. Hall for a longer term than five years, because he knew that his son would be of age in that time, and pre- pared to take possession of it, and the accumulated evidence of all the other witnesses on that point, conclusively showed that Colonel Davis could not have known the contents of the will propounded, and that it was, therefore, not. his will. When a party was in possession of his natural faculties, the law presumed knowledge of the contents of his will from the fact of its execution by him ; but where he was DAVIS ET AL. v. ROGERS. 89 blind, paralytic, or deprived of the use of his faculties, so as to be unable to read, and the person who drew the will took a benefit under it, the law does not presume know- ledge of its contents from the fact of execution; but some positive proof must be produced, or some circumstantial evidence having the weight and character of positive proof, must be adduced to show that the testator actually knew the contents of the identical instrument which he sub- scribed as his will; because in such a case, and without such additional proof, the law did not presume that he had knowledge of its contents. But no such proof had i)een produced in this case, and, therefore, he should ask the Court to instruct the jury that they could not find this to be the will of Colonel Davis. It had been proved that, for three or four years before his death, he was never seen or known to read any paper; and it was proved that his eyesight was so much impaired, that he was not able to read this paper in the handwriting of his attorney, who drew it and took a benefit under it; and it was, therefore, imperatively incumbent on the other side to prove that it was read to him, or that its contents were otherwise explained and made known to him through the medium of his hearing. But there was no proof that, at the time of its execution, or at any time afterwards, Colonel Davis was made acquainted with its contents. The fact that the old man was hard of hearing, and that no note or sound of reading was heard by Mr. Gordon or Mr. Harrington, while they were walking the porch within a few feet of the room arid place where Colonel Davis and Mr. Rogers were together, was strong and conclusive evi- dence that the will was not road that day to him. He then proceeded to note and comment upon the dis- crepancies between the will and the instructions; the state- ment that he had provided for his former children, which was not in the instructions, and which was untrue, although inserted in the will; in the order to pay debts; in varying the compensation and legal responsibility of the trustee; in the payment of annuities; the transmission of the estate 7 90 SUPERIOR COURT. on the death of any of the children ; in the power given by the will to the trustee to sell the whole estate without bond or security, in case it would not divide; and in the estate given to the widow in lieu of dower. In all these material provisions there were marked and material dis- crepancies between the will and the instructions, which could not foil, on the authority of the cases cited on the other side, to invalidate the former in the absence of any proof that they were known and approved by the testator. The Court, Ho drawn from its execution, the burden of showing that it is not the will which these formalities make it seem to he. Testamentary power is an important attribute of the right of property, and a great stimulus to its acquisition, and to the industry and care-taking necessarv to its acqui- Htion. The absolute right, therefore, of disposing of it according to the will and pleasure of the possessor is to be recognized as a principle of justice and of sound policy. h lias not been denied or restricted in the argument of this t-ase, 1'iir it is conceded that Colonel Davis bad the right to dispose of the large estate which he possessed according DAVIS ET AL. v. ROGEES. 91 to his will and pleasure. It will be for you to decide whether he has done so. The paper which I hold in my hand is proposed to you as the evidence of the will of Colonel Davis. It is opposed and objected to by the widow and children, who deny that it contains the evidence of his testamentary purposes, and who affirm that it never was his will. The register, to whom it was offered for probate, has seen proper to take the advice of a jury on this question ; and has sent to us for trial the issue, which you have been qualified to an- swer, " whether the paper writing, purporting to be the last will and testament of Samuel B. Davis, deceased, and heretofore admitted to probate, is or is not the last will and testament of the said Samuel B. Davis, deceased?" This, gentlemen, is a question of fact. It is so purely a question of fact that formerly it was not the practice for the Court to charge the jury upon the trial of such issues, supposing that its duty was discharged by merely presiding at the trial, regulating the proceedings, and deciding ques- tions of evidence that might arise. Of late years the prac- tice has been for the Court to add a brief charge to the jury, with a view to direct attention to proper points for their consideration. "We have been asked to do so on this occasion ; and certain matters have been presented to us as legal propositions, upon which we are asked to charge you ; but after all, gentlemen, what law can there be ap- plicable to the solution of a mere question of fact, which is not the law of common sense, belonging no less to others than to the judicial mind, and very fully shared by the intelligent jury whose- duty it is to decide this case. A irill, what is it ? and how is it to be known ? Does it rest in the speech by which it is manifested, or the paper through which it is supposed to be communicated, or the act by which it is apparently indicated? All these are but mediums through which the purpose of the testator is to be understood by others. The will rests in his intention and purpose; the knowledge of which, though we may not in the nature of things ever reach it with demonstrative 92 SUPERIOR COURT. certainty, we satisfactorily attain to, just in proportion to the safety and reliability of the medium through which it is sought This is a common sense remark, appreciable by you as fully as by any one, and yet it contains the foun- dation and substance of all the law on this subject. Does a man, in the full possession of his faculties, indicate by word, or writing, or gesture, that it is his intention a cer- tain person shall have his property upon his decease ? That is his wiU, even though the policy of the law may riot allow it thus to be proved; and a man, who, from any defect, mental or physical, or from mistake or deception, should in all the forms of law dispose of his property as he did not in truth mean to dispose of it, would not thereby ex- press his intention, and the instrument would not be his will. The force and value of the act done as indicative of the intention, must depend on all the circumstances surround- ing it. If a man capable of reading a paper executes it with due formality, it is a reasonable inference that he knows its contents, and that it contains his intentions. So strong is this inference in case of the execution of deeds and other instruments, that it becomes a legal conclusion which, under ordinary circumstances, the party is not per- mitted to deny: and this lias, according to some of the crises which you have heard cited, been applied even to wills. You heard the question argued ou an objection which was made to our admitting parol declarations of the testator to contradict the conclusion thus drawn from the act of executing the paper, an argument which was based on the //"/ as well as the riso/i>tli!e inference from that act : but we considered, as it lias heretofore been adjudged by our courts, that there is no such legal conclusiveness to be given to the formal act of executing a paper tor a will, a.- to preclude proof arising from the declarations and acts of the te>tator, before, at the time, or after, and all the surrounding circumstances, that the paper is not his will. Generally the / t(*i wards, 3 Ibid. 167 ; Ingram v. Wyatt, 1 Ibid. 442 ; Barton v. Robbim, and 1 Wray's Executors, 16, 293.] In Barry v. Butler, 6 Eng. Eccl. Rep. 418-9, it is said, "The strict meaning of this term ' onus probandi' is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. In all cases this onus is imposed on the party propounding a will ; it is, in general, discharged by proof of capacity and the fact of execution ; from which the knowledge of, and assent to, the contents of the instrument are assumed ; and it cannot be that the simple fact of the party who pre- pared the will, being himself a legatee, is in every case and under all circumstances to create a contrary presump- tion, and to call upon the Court to pronounce against the will, unless additional evidence is produced to prove the knowledge of its contents by the deceased." "All that can be truly said is, that if a person, whether attorney or not, prepares a will with a legacy to himself, it is at most a suspicious circumstance, of more or less weight, according to the facts of each particular case ; in some of no weight at all, as in the case of a trifling bequest out of a large estate, but varying according to circumstances; for in- stance, the quantum of the legacy, and the proportion it bears to the property disposed of, and numerous other con- tingencies ; but in no case amounting to more than a cir- cumstance of suspicion, demanding the vigilant care and circumspection of the Court in investigating the case, and calling upon it not to grant probate without lull and entire satisfaction that the instrument did express the real inten- tions of the deceased. Nor can it be necessary that in. all suck catcs, even it' the testator's capacity is doubtful, the 96 SUPERIOR COURT. precise species of evidence of the deceased's knowledge of the will is to be in the shape of instructions for or reading over the instrument. They form, no doubt, the most satis- factory, but they are not the only satisfactory description of proof by which the cognizance of the contents of the will may be brought home to the deceased. The Court would naturally look for such evidence ; in some cases it might be impossible to establish a will without it, but it has no right in every case to require it." These quotations apply in principle to the case before you, and you must apply the facts of the case to them. Colonel Davis was more or less blind ; the draughtsman of the will, though not by name a legatee, took an interest under it as executor and trustee, the extent and force of which the jury must judge of, in estimating the amount of suspicion that this circumstance throws over the case, and the corresponding necessity it produces of evidence to be required, in addition to the act of formal execution, to natisfv the iurv that Colonel Davis had a knowledge of the ' V O contents of the will. The interest is such that we were obliged, under our view of the law of evidence, to exclude the executor and trustee from giving testimony in the cause; but we re- mark, also, that it is not the naked interest of a gratuitous legatee, but an interest with an obligation of service. AVe leave its force in this connection to your judgment; and as to the relation of attorney and client existing between the draughtsman and the supposed testator, it is not an ab- solutely disqualifying relation, but is to be considered solely with reference to its bearing upon the question what amount of evidence of knowledge of contents thejurv will require to be satisfactorily proved in order to establish the paper as a will. In most cases, an attonu-v drawing a client's will, would not be a circumstance of remark, even where he took an interest under it, as where proof of capa- city and of the fn^nin are both complete; in others, where capacity or knowledge of contents is the point of connde- ration, the circumstance mav attract more or le.-s attention DAVIS ET AL. v. EOGERS. 97 from the parties and the attending circumstances. As a general principle the law does not imply a controlling in- fluence of a lawyer over his client. The contestants ask us to charge that if the proof estab- lishes either inability of the testator from blindness to read the will for himself, or that an interest is shown in the draughtsman of the will and person managing its execution, the will fails, unless there be proof affirmative, beyond the act of execution, that it was read to the testator, or a know- ledge of its contents was otherwise communicated to him. We have answered this proposition affirmatively, in the quotations before made, and to which I have asked the jury to apply the facts in evidence. But if that state of things is made out, it is alleged, on the part of the executor, that knowledge of the contents of this will and proof of intention are made out, by the correspondence of its contents with previous wills made by Colonel Davis ; by the instructions given to Mr. Rogers to draw the will ; by the circumstances attending its exe- cution, other than the mere fact of signing and publication, which, they say, afford proof of actual reading, or at least the probability of it, in the absence of the testimony of the only person who knows the truth of that matter, but who cannot, by reason of his relations to the will, be heard. To this the contestants answer, denying the correspondence of this with previous wills; denying the instructions, or suggesting that the proof of the instructions is weaker than that of the paper they are' invoked to support; that there are many discrepancies between the supposed instructions and the instrument on trial sufficient in themselves, if not shown to have been explained to the testator, to render the will void; and that, in respect to any evidence of actual knowledge of the dispositions contained in this paper, it has been met by pi-oof of declarations made by the testa- tor, that it contained other and different dispositions. Gentlemen, we. do not think it proper to enter upon anything like an application of the evidence to these se- veral propositions; the case has been fully and ably argued 98 SUPERIOR COURT. on them all, and that argument must be fresh in your re- collection. "We only call your attention to the topics, and leave the consideration of them to you. As to instruc- tions, if they are satisfactorily proved to have emanated from the testator, with knowledge of their contents, they are evidence of great force in support of a will drawn in pursuance of them; and, being generally but heads or sug- gestions, the proper amplification of them in the more formal instrument is right and proper; but as to essential variations, this Court said in Chandler v. Ferris that if the jury were of opinion that these differences existed to such an extent as to make the will essentially different from the instructions, they must then judge from the evidence whether these deviations were made with the knowledge and consent of the testator. If they were not made known to him, if the will was not read over, or its contents and variations from the instructions otherwise explained to him, then it would not be his will ; but if he knew of and approved the alterations, he adopted them by the execu- tion of the will, and the same ought to be confirmed. [1 Harr. Hep. 404.] The same remark may be made, gene- rally, of all declarations made by the testator, in reference to what was to be, or what had been inserted in his will. AVe have admitted such declarations in evidence as bearing on the question whether Colonel Davis knew of the con- tents of this paper and approved of them, as to which, if there be satisfactory evidence derived from other sources that he had such knowledge, these declarations would not be allowed to controvert the more solemn expression of intention in the will itself. But, in the absence of such other evidence of knowledge of its contents, and considered solely with a view to the question whether the paper was ever read or explained to him, declarations satisfactorily proved to have been deliberately made by him, in good faith and credited by the jury, of testamentary bequests altogether different from the bequests of the will, would be evidence to disprove his knowledge of its actual contents. Tim* \ve have been specially asked to charge you, that if DAVIS ET AL. v. ROGERS. 99" you believe from the evidence that Colonel Davis actually thought the Fourth Street property was devised to his daughter Harriet, or that Delamore Place was devised to his son Delaware Davis, in his will, and they are not so devised, this would be evidence that the contents of this paper were never made known to kim so that he under- stood it, and the paper could not therefore be established as his will. The two things are inconsistent, and therefore could not exist together. A person having testamentary capacity could not believe he had devised important por- tions of his estate one way, while he had disposed of them to another, on the same day of the execution of his will, if he knew of the contents of the will. At the same time the declaration of such belief is open to any remark tend- ing to impeach its force, and subject, as all other testimony is, to be weighed by the jury. The verdict of the jury was against the will. COURT OF ERRORS AND APPEALS. JUNE TERM, 1855. UNION CHURCH OF AFRICANS, defendants below, plaintiff in error, v. ELLIS SANDERS, plaintiff below, defendant in error. A writ of error will lie to an order of the Superior Court awarding a pe- remptory writ of mandamus, though not a judgment at common law, under the provision of the Constitution which confers upon the Court of Errors and Appeals "jurisdiction to issue writs of error to the Su- perior Court, and to determine finally all matters in error in the judg- ments and proceedings of said court;'' which extends And applies to judgments and decisions in any proceedings in the latter court of a final character. Mandamus will not lie to admit or restore a minister who is wrongfully excluded from his pulpit and the exercise of his spiritual functions by the corporate trustees and congregation of the church, if there is no en- dowment or emolument other than voluntary contributions, annexed to the office and dependent on the exercise of its functions, or he has no temporal right involved in the matter and affected by the exclusion. Without some temporal right, such as an endowment, a fixed emolu- ment, stipend or salary, or other temporal advantage annexed to its functions, his office is merely a spiritual or ecclesiastical office ; and if wrongfully excluded from it there is no legal right involved in the case, and a court of law has no jurisdiction of it. If, however,' there is any such temporal right attached to the office and its functions, affected by his exclusion, and for which the law affords no specific remedy, man- damus will lie to restore him, to prevent a failure of justice in respect to such legal right. WRIT of error to the Superior Court for Xew Castle County, heard before Johns, Chancellor, Harrington, Chief Justice, and Milligan and Houston, Judges. The case below was on a writ of mandamus issued on the UNION CHURCH v. SANDERS. 101 petition and affidavit of Ellis Sanders, the plaintiff below, to the Union Church of Africans, in the city of Wilming- ton, to admit him as elder minister in the church, to preach in said Union Church of Africans, whenever he might see proper to do so, and to administer the ordinances and dis- cipline thereof, and to exercise a pastoral charge over the same, with all the liberties, privileges and advantages to the place and function of elder minister in said church be- longing and appertaining. The petition for the writ of mandamus set forth that : In the year 1813 certain free colored people residing in the then borough (now city) of Wilmington, associated themselves together as a religious society, or congregation, and on the 21st day of July, in said year, agreeably to the provisions of the act of the General Assembly of said State, entitled " An act to enable all the religious denominations in this State to appoint trustees, who shall be a body cor- porate for the purpose of taking care of the temporalities of their respective congregations," passed at Dover, Feb- ruary 3, 1787, the said religious society, after due notice given, proceeded to elect from their number seven persons to be trustees of said society, to wit : John Simmons, John Kelby, Peter Spencer, Scotland Hill, David Smith, Jacob March, and Benjamin Webb, which said trustees upon their election took upon themselves the name of " Union Church of Africans," and certified the same in due form, according to the act aforesaid, to the recorder of deeds of the county aforesaid, to be recorded in his office, and said certificate is duly recorded in said office in Book M, vol. 3, page 470, &c., by which said premises the said trustees and their successors became by virtue of said act a body politic and corporate, in deed, fact, name, and law, to have perpe- tual succession, and by their said name were authorized to take and hold property real and personal for the use of their said society or congregation. That on the said 21st day of July, 1813, the said reli- gious society entered into certain written articles of asso- ciation, signed by all the members thereof, and recorded 102 COUET OF ERRORS AND APPEALS. with the above-mentioned certificate of the trustees, the purport and object of which articles was chiefly to set forth the purposes of the organisation of said society, and one of which said articles of association is in the words following, to wit : " ARTICLE 2. The said corporation shall have, hold, pos- sess and enjoy the temporal property which they have at this time, or shall hereafter acquire, in trust for the reli- gious uses of the ministers and preachers of the said Union Church, for them and their African brethren and their de- scendants of the African race, and also for the ministers and teachers of the African brethren duly licensed and or- dained according to the discipline adopted by the corpor- ation." That the succession of the aforesaid trustees has been continued, by elections for that purpose duly had from time to time agreeably to the said act, and that William Brown, Peter Chippy, Henry Richardson, William Black, Spencer Williams, Isaac Parker and Levi Morris now hold and exercise the office of trustees aforesaid. That the trustees of said society with funds contributed by the members thereof, in the year 1813 purchased and received for the use of said society a certain lot of ground in Wilmington aforesaid, and caused to be erected thereon a church or place of religious worship, which church or place of religious worship has by the trustees of said society always hitherto been held, and is now held for the use of the members and the ministers of said church duly licensed and ordained according to the rules and discipline thereof. That the said society, after the election and incorpora- tion of trustees aforesaid, proceeded to complete their or- ganization as a religious society or church as follows, to wit: On or about the 7th September in the year afore- said, the members of said society elected live persons to hold the office of ruling elders among them, and autho- rized said elders to constitute other officers for the spiritual government of said society; that accordingly the persons so chosen as ruling elders, on or about the 14th September UNION CHUKCH v. SANDEKS. 103 aforesaid, chose and set apart William Anderson and Peter Spencer to be ministers of said Union Church, to have the pastoral charge thereof and to exercise all authority.per- taining to such office; that the said Anderson and Spencer prepared for the government of said society a system of rules and discipline, which was contained and set forth in a pamphlet entitled the " Discipline of the Union Church in Wilmington, State of Delaware," which said Discipline was by said society adopted, and until its revision, in 1841, hereinafter mentioned, was observed as its form of church government. That under the provisions of said Discipline there were to be in said church three orders of preachers, viz., li- censed preachers, deacons, and elder ministers ; that li- censed preachers were such as might from time to time be licensed to preach by the minister in charge, upon the re- commendation of a majority of the ruling elders; that such preachers were not invested with the charge of a society or with authority to administer ordinances, but were only allowed to preach to such as would hear them; that a deacon was a preacher chosen to that office by the ruling elders and ordained by the elder minister; that his office was to assist the elder minister and to preach to a society or congregation in the absence of the elder minister ; that he was not authorized to administer the sacrament of the Lord's Supper, nor to administer discipline, nor was he in- vested with the charge of any society, except for the pur- pose of preaching, baptizing and solemnizing marriages in the absence of an elder minister, and subordinately to him when present; that the elder minister under said Disci- pline was to be ordained to that office by the older minis- ter for the time being, with the approbation of the ruling elders and congregation, and the elder ministers were in- vested with the general superintendence of nil the societies composing the African Union Church: and that each elder minister is, under the usage and discipline of said church, by virtue of his office, the minister in charge of any society where he may be. 104 COURT OF ERRORS AND APPEALS. That by said Discipline it was provided that if other so- cieties should be organized in connection with the original society in Wilmington, additional elder ministers should be ordained, as in said Discipline is prescribed, to execute, in connection with the aforesaid Anderson and Spencer, the authority pertaining to such office. That, in process of time, other societies were and have been formed in the States of Delaware, New Jersey, Pennsylvania, New York, and Connecticut, in connection with the original societv in o v Wilmington, subject to the same rules and discipline, and forming a common organization, under the title of the "African Union Church;" and that, from time to time, elder ministers, in addition to said Anderson and Spencer, were duly chosen and ordained, according to the provisions of the aforesaid Discipline; to wit, James Hill, Isaac Bar- ney, Ralph Gilmore", and your petitioner. That the said Anderson, Spencfer, and Hill are deceased ; that the said Gilmore lias ceased to exercise the office of elder minister in said church ; and that, consequently, the said Barney and your petitioner are the only surviving and acting elder ministers of the said African Union Church. That, as the said religious society increased in numbers, a body, known as the Yearly Conference, came to be or- ganized, composed of the lay elders and preachers of the several societies. That, by settled usage, the said Yearly Conference became invested with, and has always exer- cised, a general superintendence over the said societies, with authority to adopt such measures as it might deem expedient for their common welfare. That, about the year 1841, for the purpose of adapting the form of government of said church to the increased number of societies in connection with it, the said Ander- son, Spencer, and Barney, then the elder ministers of said church, prepared for said church a revised form of govern- ment and system of rules, which are contained and set forth in a book entitled, "The Discipline of the African Union Church in Wilmington, Delaware; second edition, enlarged;" and that said last-mentioned Discipline was, UNION CHURCH v. SANDERS. 105 and ever since has been, received and observed by the Yearly Conference of said church, and by the societies in said church, as their form of church government. That, by said last-mentioned Discipline, no change whatever was made in respect to the offices or functions of deacons or elder minister in said church as the same are above set forth. That, by said Discipline, it was provided that there should be a Yearly Conference, as above mentioned, to sit in Wilmington aforesaid, in the last week in April, and also in the city of New York, in the third week in Sep- tember. Your petitioner further showeth that he duly became a member of one of the societies of said African Union Church ; to wit, a society formed at Christiana, in this State, in or about the year 1815 ; that, soon afterwards, he was duly licensed as a preacher in this church ; that, in the year 1835, he was chosen by the elders of his said so- ciety to the office of deacon, and was thereupon ordained to said office by Peter. Spencer, then elder minister in said church, agreeably to the provisions of the Discipline thereof; that he continued to preach as a deacon in the said African Union Church until the year 1846; in the month of April of which year he was nominated, accord- ing to the usage of said church in such cases, by a Yearly Conference, then sitting in Wilmington aforesaid, to the office of elder minister in said African Union Church, and with the approval of the ruling elders and of the said so- ciety in Wilmington, was, in due form, according to the discipline aforesaid, ordained to said office, on the 27th day of April aforesaid, by Isaac Barney, then elder minister in said church. That thenceforth he became, agreeably to the said Discipline, associated with the said Barney in the charge of the societies composing the said African Union Church. That the said Barney, residing in the city of Xew York, assumed more particularly the charge of the northern so- cieties in said church; and that the southern societies, including the said original society in Wilmington, fell 106 COURT OF ERRORS AND APPEALS. under the immediate charge and superintendence of your petitioner as elder minister as aforesaid. Your petitioner showeth that, by virtue of his office of elder minister as aforesaid, and according to the usages and discipline of said church, it is his duty and privilege to preach in said Union Church at Wilmington whenever he may see proper so to do, and to administer the ordi- nances and discipline thereof, and to exercise a pastoral charge over the same. Yet your petitioner humbly showeth that he has, by the present trustees of said church above named, been forcibly excluded from said church, and de- barred from performing the duties and exercising the rights above stated as pertaining to his said office, and that he is now so excluded and debarred. Wherefore, having no other legal remedy in the pre- mises, your petitioner humbly prays this Honorable Court to issue a writ, of the said State, of mandamus, directed to the said Union Church of Africans, commanding them to admit your petitioner to preach in the said Union Church at Wilmington whenever he may see proper so to do, and to administer the ordinances and discipline thereof, and to exercise a pastoral charge over the same, or to show cause to the contrary. On the foregoing petition, sustained by affidavit, a rule was obtained at the May Term, 1852, to show cause where- fore a writ of peremptory mandamus should not issue to restore the plaintiff in the rule to his office as elder minister in the church, in accordance with the prayer of his peti- tion ; and an alternative mandamus was issued, to which the defendant below made return that the plaint, allega- tions, and matters contained in the petition, were not the proper subject-matter of mandamus, because the office of a preacher or elder minister, or the right to exercise a pas- toral charge in said church, was not an office known to the law ; that there were no fees or salary attached to it ; and that the incorporation of said church was eontined to the temporal concerns of said societv or conr.s, 73 ; and the second is Pcndcr v. JIurl, 3 Ibid. 505. And it ought not To lie, because it is not a writ of right, but is prerogative in its character, and it is wholly discre- tionary with the Court, us much so as a nonsuit, and because the granting or refusing of it determines nothing between the parties. 3 It definitively no question of right as between the parties to it; but it merely restores a person ejected to the office from which he has been driven or excluded, and thus prevents the public inconvenience which miirht arise without it, and which would otherwise have a tendencv to UNION CHURCH v. SANDERS. 109 encourage disputes and litigation, and to keep it up until the term of office expired. Thus stood the law on the subject in England until the statute of Anne was enacted, which provided that the re- turn to the writ might be traversed, but before which time it could not be denied or controverted by a traverse. Afterward, when the proceeding was under that statute, the return was traversed, issue was joined, the facts alleged and disputed were tried and determined as in other suits, which assimilated it to an action at common law, and a judgment was rendered and costs were allowed. Tapp. on Mand. 58, note a, 397 (74 Law Libr. 435). Such is now the practice in England under that statute, and to such a judgment it is held that a writ of error will lie. But it does not follow from this that the same is the case here ; for it has been decided that the statute of Anne is not in force in this State. The State v. The Wilmington Bridge Company, 3 Ilarr. JRep. 540. The statute of Anne has been re-enacted in New York, and this question has been settled in that State as it has been in England ; and accordingly it has there been held and decided that when the proceedings in mandamus are under the statute a writ of error will lie, but not otherwise, as where the case was summarily dis- posed of by the Court on the return, without a traverse by the opposite party. People v. Brooklyn, 13 Wend. 130. I have found no case of mandamus in which it was held that a writ of error would lie, except where they have a statute similar to that of Anne on the subject. Our statute in regard to writs of error evidently contemplates and re- lates only to cases in which a ju, .vld School, 6 Conn. Rep. 533; Ana. and Arne^ <;>> C<>rp. 043. As to the application below for amendment of the re- UNION CHURCH v. SANDERS. 121 turn and answer, I have to say that all such applications are addressed to the discretion of the Court below, and under the act for amendment of pleadings, this Court can only sit in review of that discretion ; and to enable this Court to do so intelligibly, and to admit the amendment, there should have been some specific amendment proposed below, which was not done, and this Court consequently can order no amendment in the case. As to the other exception, taken on the ground that, after the Court below had discharged the rule, it reopened the case, and ordered it to be reargued before them, it is not a matter of error to be taken advantage of in this Court, as it was entirely within the discretion of the Court below. The record, though the rule had been discharged, was still before them, and subject to their order and dis- cretion. 18 C. L. Reps. 183; 1 Tidd's Prac. 505. Wales, in reply : In all cases whatsoever, the plaintiff, in order to entitle himself to a writ of mandamus, must satis- factorily show a clear and unquestionable legal right to the .interposition of the Court, and this must be done by other proof than his own affidavit. If the plaintiff in this case is an elder minister in this body, and has certain func- tions, this must be made appear by other proof than his own affidavit, as by the certificate of his appointment, or other legal evidence of it, and by a properly authenticated copy of the charter of the society, and by other affidavits than his own as to the articles and discipline of the body prescribing his duties and functions. Tapp. on Maud. 342. The discipline of a Church is no usage in contemplation of law, and, if it were, there is no usage or discipline proved in this case. In the complaint or affidavit there is a reference not only to the act of incorporation but also to the articles of association ; the sixth article of which is as follows : " No minister or teacher shall be privileged to preach or exhort in the I'liion Church, except with the consent of the trus- tees and a majority of the congregation." No one can fail 9 122 COURT OF ERRORS AND APPEALS. to perceive that this was intended to be an independent church. Th<3 Book of Discipline shows that this society was originally subject to the government of the Methodist Episcopal Church, and to its system of bishops and itine- rancy, and that it afterwards seceded from that govern- ment and established an independent church, subject to the government and control of the society and congrega- tion itself. The plaintiff does not show how he was debarred of the rights and privileges which he claimed. He does not say in his complaint that either the trustees or congregation prevented him from preaching in the church, or adminis- tering the ordinances of religion therein, or in what way, or by what moans he was debarred. Again, he does not say that he has been deprived of any office, ecclesiastical or civil, but simply alleges that he has been debarred of the rights and privileges pertaining to it. He does not show or allegro that it was an office having anv fees or r 1 > emoluments attached to it. In this case the Court below, instead of ordering a pe- remptory mandamus, ought to have ordered a further re- turn and answer. 9 Wend. Jteps. 429. A peremptory mandamus cannot issue for any defect or insufficiency in the return or answer. If the return is un- true in substance, an action for false return will lie upon- it, but it must be held to be an answer to the rule. Mate v. Wif. lirtdt/e Co., 3 Harr. lie p. 540; Amjil and Ames on Corp. 670. Hut the counsel for the defendant in error assumes an- other ground, that the trustees of this societv and corpora- tion hold this house, or church, in trust for the use of this elder minister. It' so, then this is a case of trust, and the trustees are abusing their trust, and the remedy is in chan- cery, and a writ of mandamus will not lie, for when there is anv other remedy mandamus will not lie: Ann. and Ames uii ('"//>. J~>2; and the Court will not issue a writ of ///'///'/- >/"/> in a. case where, from the nature of things, it cannot he enforced. UNION CHUECH v. SANDERS. 128 The Court below having discharged the rule and dis- missed the case, especially where a term has intervened, could not hear it again, or order it to be reargued before them, because the case was then out of Court. It must be an office known to the law or judicially known to the Court, or mandamus cannot issue. Tapp. on Mand. 223. The mere right to preach is a right conferred by ecclesi- astical authority, and is therefore an ecclesiastical right merely, and if the preacher is deprived of this right by the action of the ecclesiastical body there is no civil right in- vaded, unless there be fees, or some temporal emolument attached to the right, which is lost by the invasion of it ; and therefore the civil tribunals cannot and will not take cognizance of the wrong complained of. Johns, Chancellor : The preceding statement of the case, exhibited on the record certified and sent up, presents the questions which require our consideration and decision. The first and most important is that of jurisdiction. For the purpose of ascertaining correctly whether the Superior Court had authority to award the writ of peremptory man- damus, it is necessary to examine, and understand the cha- racter of the injury complained of by the petitioner, and the remedy which he has sought to obtain. If no legal right has been violated, there can be no application of a legal remedy. The writ of mandamus is a legal remedy for a legal right. The petitioner states the injury to be the refusal of the trustees of the Union Church of Africans in Wilmington to admit him to preach in the said church whenever he may see proper so to do, and to administer the ordinances and discipline thereof, and to exorcise a pastoral charge over the same, and asks the aid of the secular Court by writ of mandamus. The party thus seeking the interposition of the civil power derives his office of elder minister, and his authority to discharge its functions, exclusively from the Methodist Church, and alleges that, according to the discipline and usages of said church, it is 124 COURT OF ERRORS AND APPEALS. his duty and right to preach in the said Union Church in Wilmington whenever he may see proper so to do, and to administer the ordinances thereof, and to exercise a pas- toral charge over the same. The right to the office and its functions are both expressly stated to be derived from ecclesiastical authority, and cannot, under any aspect, be viewed as temporal rights. The petition does not state the loss of any temporal right, or allege any loss of pro- perty consequential upon his being refused to admission to preach in said church, or exercise the said spiritual functions. It does not appear, from any allegation contained in the petition, that any temporal legal right has been infringed, or that the petitioner has been deprived of any ecclesiastical or temporal office. The only matter of complaint is, that one of the religious societies, over which his ecclesiastical authority, derived from the Conference, existed, refused submission to its exercise. Ilis office and functions over all the other societies remains unaffected ; and no doubt the pecuniary compensation, derived from a common fund and incident to the office, remains unimpaired, for no loss or diminution is set forth. The present case, therefore, is only an application for admission to the exercise and dis- charge of ecclesiastical rights and duties in a particular church, exclusive of any and all temporal emoluments. It can only be regarded as asking the aid of a secular Court to enforce obedience to the authority of the Conference, a body exercising ecclesiastical and not a temporal power. If, then, I am correct in the view taken of the case made in the petition, the Superior Court has no jurisdiction, and erred in awarding the writ of mandamus. But it has been supposed that the act of incorporation, in connection with the second section of the articles of as- sociation, sustains the jurisdiction of the Court, and au- thorized the awarding of the writ. The answer to this is, that the petition, reciting and relying on the second sec- tion of the articles of association, made the whole thereof a part of the case, and rendered it incumbent on the Court UNION CHUKCH v. SANDERS. 125 to consider and respect all the sections. The return to the alternative mandamus sets forth and relies upon the sixth article, which excludes all ministers from admission to preach in the said "Union Church," unless with the assent of the trustees and a majority of the corporation; and further avers, that no such consent was given, but refused. The Superior Court, in awarding the writ of peremptory mandamus, were probably influenced 1 by the English deci- sions, but, after a full and thorough examination of them, I have not been able to discover a single instance in which relief was granted, unless some legal or temporal right was involved in the case. It is unnecessary here to review them ; but it may be useful to advert to an important dis- tinction, which cannot be disregarded when our attention is directed to such precedents. I allude to the judicial jurisdiction in Governments having an established church, whether constitutionally as a part of the organic law, or tolerated by law : in such it may be proper to regard the person entitled to the office as having a legal right; for, although conferred ecclesiastically, it is held under and by virtue of constitutional or legal authority. In England the Episcopal Church is a constituent part of the constitution, and has a legal existence. The ecclesiastical officers hold and are legally seized of the temporalities of the church, and need no act of incorporation for such purpose. The rector being legally entitled to the church and glebe, when deprived or dispossessed may be restored by a writ of mandamus, which is a legal remedy for a legal right. The same jurisdiction has been exercised under the Toleration Acts, by analogy, in favor of dissenting churches having an endowment by deed, through the intervention of trus- tees : when the ecclesiastical office entitled the occupant or holder of the office discharging the services and duties thereof to temporal emoluments, for the purpose of pro- tecting the temporal rights incident to the office, the secu- lar courts granted the writ of mandamus. The decision in the case of R5, sustains the view I have taken, as appears from the remarks of Mr. 126 COURT OF ERRORS AND APPEALS. Justice Foster: "Here is a legal right. Their ministers are tolerated and allowed; their right is .established as a legal right, and as much^as any other legal rights." In all countries where the church is established by law, it may be consistent with public policy that it should be subject to civil jurisdiction; for, when the law establishes Oi- tolerates, a state of dependence is the legitimate conse- quence. In Scotland we lately had an illustration of the operation of this principle in their system of an Established Church. I refer to the celebrated Shathbogre case, which resulted in the formation of the Free Church of Scotland; adopting as its basis the voluntary principle, for the ex- press purpose of being emancipated from the control of secular courts, derived from precedents consequent upon the connection of Church and State. But under our Constitution, which declares " that no power shall or ought to be vested in or assumed by. any magistrate, that shall in any case interfere with, or in any manner control, the rights of conscience in the free exer- cise- of religious worship/' it would seem a reasonable con- clusion that all ecclesiastical offices and their functions must necessarily be excluded from the jurisdiction of the secular courts. Regarding the whole ecclesiastical system, under our Constitution, as based upon the voluntary principle, it can have neither legal capacity nor existence, and therefore incapable, *ui jm'ix, of having legal rights or temporal pro- perty ; hence the necessity of obtaining acts of incorpora- tion to create a corporate body, or constituting by deed trustees tor the purpose of acquiring and holding property for the use and benefit of churches; but the church, in its, ecclesiastical order of functions and discipline, remains intact, and free from the civil and secular jurisdiction. It appears that, in 4 J/'irri* 8. Besides, the witness is not liable in this ease to Kinney on his return, it' he >liouluing a subscriber as such, but it authorizes the company to sue a stockholder for such a cause of action; and this provision followed the other provision in the charter, which required certificates of stock to be issued to the subscribers as the evidence DELAWARE RAILEOAD COMPANY v. THARP. 155 that they were stockholders in the company. Such was the construction which all the provisions of the charter when taken and considered together required in his opin- ion. The act seemed to distinguish between a subscriber and a stockholder, and to require that certificates of stock should at once be issued to constitute the latter character, and gave this remedy only against stockholders as such ; but the suit was against the defendant as a subscriber merely, without alleging any reason for withholding the certificates due to him under the seventh section of the charter, and therefore the plaintiff was not entitled to maintain the action. By the Court : We think there is no substantial distinc- tion in the charter between the meaning of the terms sub- scriber and stockholder as indifferently employed in it, and that a subscriber may be sued even under this charter for arrears due from him on his subscription without proof that certificates of stock had been issued or tendered to him. We do not consider that there is anything in the charter to require or warrant the refined distinction con- tended for by the counsel for the defendant. We, there- fore, refuse the motion for a nonsuit. N. B. timithers, for the plaintiff: In the year 1836, the Le- gislature, believing that such an improvement would be a great public benefit, incorporated the Delaware Railroad Company, to construct a railroad throughout the length of the State. But little more was done under it, however, than to make the preliminary surveys and an estimate of the cost of its construction, until the year 1849, when a supplement was passed to that act, reviving, but reducing the extent of the projected enterprise, by altering the ter- mini of the road from Dona River, in Kent County, to the Xanticoke River, at or near Seaford, in Sussex County, and authorizing subscriptions to the capital stock of the 'I'lnpany as thus modified. The commissioners tor open- ing books met, as prescribed in the art, and the defendant 156 SUPERIOR COURT. subscribed for forty shares in the capital stock of the com- pany ; and at the first meeting of the subscribers or stock- holders he was elected one of the directors in the company. A call for an instalment of three dollars on each share of stock subscribed for was made by the board of directors, on the 22d of August, 1852, payable on the first day of December following, which meeting of the board he at- tended, and of which call he received due and formal no- tice. Afterwards, at the ensuing session of the Legisla- ture, which commenced in January, 1853, the directors, with the sanction and consent of a majority of the stock- holders, applied for a further amendment and modification of the charter of the company, to authorize the abandon- ment of the terminus of the road at Dona River, and to project and extend it further up the State, so as to connect and unite it with the New Castle and Frenchtown Kail- road in New Castle County, which amendment and autho- rity was granted by the Legislature, and was adopted by a majority of the stockholders at a meeting afterwards con- vened for that purpose ; and the company has since accord- ingly abandoned the Dona terminus, and the construction of that part of the road which lies between that point and Dover, and is now engaged in constructing it from the New Castle and Frenchtown Railroad to Seaford, on the Nanticoke River. The defendant has since refused to pay the call for the instalment of throe dollars a share on the stock subscribed for by him, and insists that by reason of this change in the location and construction of the road, since he subscribed for the stock, he is discharged from the duty and legal liability which he then contracted to pay it. To determine the question thus presented it was neces- sary in the first place to consider the *lnij\, the change or variation autho- ri/ed, was but incidental to the original object contem- plated in the charter, and involved no departure from the main object, but was in fact subsidiary to it. The object was to improve the navigation of a stream, and the addi- tional power was to authori/.e the erection of a dam in it, without which the improvement could not be accomplished. It was there fore nothing more than the addition < f a neces- sary power to carry out and complete the original enter- DELAWARE RAILROAD COMPANY v. THARP. 161 prise. The same remark would apply to the case cited on the other side from 2 Jhiss. and Milne, 470 ; for the amend- ment of the charter in that case also involved no essential change in the original object of the incorporation, but might be fairly considered as merely incidental to it, in which respect both differed widely from the case before the Court. C. S. Lat/ton, on the same side : A corporation was, to a certain extent, a partnership, with this difference, that while private partners were individually liable for the (Jebts of the firm, corporations were created for specific objects, with limited liability as to the corporators. The chartered road to which the defendant subscribed was the road from Dona to Xanticoke River, and he con- tracted with the company for no other purpose, and situ- ated as he was, in the forest of Mispillion Hundred, remote from market and from navigation, it was not only impor- tant to him but an actual inducement with him, to have a railroad constructed on the line projected in the act of 1849, with its terminus at Dona River, as a convenient point of shipment of produce, for either Philadelphia or by the Delaware Bay and coastwise for Xuw York and Boston ; and he accordingly subscribed to the stock of the company to make that road. But, by the articles of agreement with the Xew Castle and Frenchtown Railroad Company, the Delaware Railroad Company had engaged to abandon and had abandoned Dona River as a terminus, and was now employed, by means of the changes since introduced in their charter, in constructing their railroad from Seaford, on the Xanticoke, to connect with the Xew Castle and Frenchtown Railroad, which has its eastern terminus at Xew Castle, on the Delaware River. This, it was manifest, was never contemplated by the defendant, for he did not imagine that such a railroad as this was to be constructed by the company when he subscribed for his forty shares of the capital stock in it, and it was equally clear that In never contracted with the company to contribute his sub- 162 SUPERIOR COURT. ecription for the construction of such a railroad as that which the company was now making. He would here remark that on the main point of the case there- was no conflict of decisions. He would, however, in the first place, ask this Court to charge the jury that the defendant was not a stockholder in the company until a certificate for each share of stock subscribed by him was delivered to him; that the certifi- cate of stock was essential to constitute him a stockholder, and that it was necessary that the company should either have delivered or tendered to him the certificates of stock, before they could maintain this action against him. Secondly, that the change in the terminus of the rail- road, from Dona River to the junction of the New Castle and Frenchtown Railroad, discharged, cancelled and an- nulled the contract between the defendant and the com- pany to pay for the forty shares of stock subscribed for by him under the charter of 1849. He did not maintain, however, that a change in the loca- tion of the road retaining the termini as originally de- signed, or that any change of charter by amendment, con- ferring additional powers upon the company merely to carry out in a more complete and ample manner the ori- ginal objects of the enterprise would have that effect; but when the deviation or change authorized was in the ter- mini of the road, it was a radical change, and would dis- charge the subscriber from his contract with the company, unless lie had afterwards assented to the change, and the proof of that assent was produced before the Court and jury. The carrying a railroad through a portion of a line marked out by its charter, is a nominal, not a real compli- ance with its charter. Wordsworth on Joint Mock Companies, 39 J^jw Lit>r. 68. In private articles of association, the arti- cles of association were the fundamental law of the body, and it could not change its articles in their material objects so as to bind its subscribers without their consent; and the same was the law in regard to corporations, particularly it' the change should be prejudicial to the interests of the . DELAWAEE RAILROAD COMPANY v. THARP. 163 stockholders. Aug. and Ames on Corp. 483. The change or alteration authorized by the Legislature may be so great an radical in the charter as to absolve the corporator from his contract with the company. Aug. and Ames on Corp. 485 ; The American Bank v. Baker el ai, 4 Metcalf R. 164. On the au- thority of that case he should contend, that as there was no proof before the jury that the defendant was present at the meeting which resolved to apply to the Legislature for the change of the charter, or at the meeting which resolved to change the route of the road from Dona River, and as there was no evidence that he subsequently assented to them, that the company could not sustain this action against him. 2 Conn. R. 579; Day's Dig. 108; 4 Henn. and Mumf. 315; 5 Hill, 8 Mass. R., and 13 Illinois R., cited by his colleague. On the strength of these cases, which had never been overruled, he would venture to assert that even if it were proved that the defendant was present at these meetings, and assented to all these changes, the plaintiffs still could not recover in this action. The case in 17 Barb. R.,ihe strongest against him cited on the other side, recognized and confirmed the decision in 5 Hill, on which they relied. In the case in 17 Barb. R., it was held that the change in the charter was but incidental to the original object of the incorporation, and was consequently an alteration to which the stockholder may be hold to have impliedly assented, and therefore he was considered not to be discharged from his contract with the company. Mr. Bayard, for the plaintiff, cited Mercer County v. Coo- rert, 6 Watts and Scry. 70, and gave the counsel on the other side an opportunity of replying to it if they desired to do so. Mr. I jay ton: A county was a Pk-k- er/nf/, 351. What was the contract of the corporator with the corporation, and what was the contract of the defendant with the corporation in this case? (Heads the subscription clause in the charter, w. 1), and asked if this was not an absolute contract to take the shares of stock subscribed, without any condition or stipulation whatever, whether as to any future application to the Legislature for an amend- DELAWARE RAILROAD COMPANY v. THARP. 167 ment of the charter, or that the railroad should be made as then projected in the charter? It was an absolute and unconditional contract to take forty shares in the stock of the company, and in consideration of those shares to pay for it. But the idea had somehow or other sprung up that there was involved in this transaction an implied pro- mise by the company to the subscriber that the work should be constructed.as contemplated and projected at \he time of the subscription-. There was no such contract, either express or implied, between the corporation and the cor- porator. The only contract in such a case was that which he had already stated. By the purchase of the shares the stockholder acquired a property in them, with the rights of property incident to it, and a right to vote upon them ; and the very existence of the corporation required that he should be governed by the vote of the majority. The stock which he held, or for which he had subscribed, had no such incident as the implied contract to which he had alluded. His obligation was to pay for the shares; the obligation of the corporation was to convey to him the shares of stock subscribed for, with all the rights of pro- perty incident to it, according to the charter. If this was not so, how would you get along in the case of an assign- ment of the stock, with an assignee refusing to pay the arrears of subscription due on the stock assigned him sub- sequent to a change authorized in the road? Could he plead such an implied contract ? But there was no sound- ness in this distinction, and there could be none in such a distinction as were found in some of the books, and recog- nized and admitted in others cited on the other side, if it be a contract between the corporation and the corporator at the time he subscribes, that the work shall be made as authorized and designed at that time, between large and small changes, or between what are called radical and less important changes in the line or mode of constructing the projected improvement; because, it' there was any legal foundation for- such an idea as that, it must be on the ground that such a change would impair the obligation of 168 SUPERIOR COURT. the contract, by attempting to vary or change it without the consent of the corporator. Now, it was manifest, if this was so, it was utterly immaterial whether the change was great or small. The Constitution of the United States made no distinction hetween such cases, between altering the contract or the impairing of the obligation of it, in a greater, or smaller degree, and authorized the Legislature to make no such discrimination. On the contrary, it was evident that, if the exemption of a corporator from his liability to pay for his stock, was based on the idea of a contract between him and the corporation, which could not be changed without his consent, any change whatever from the work as then chartered and projected would dis- charge him. It was contrary to the practice of the Legis- lature, and the settled views and received opinions of the profession in this State, in regard to the many and constant changes made by the Legislature in the rechartering of banks, and the modifications made in the charter of almost every corporation existing amongst us. AVhat would be the effect if such a principle had ever been understood to prevail in this State, and that any one dissenting stock- holder could have forbidden the renewal of the charter, and compelled the company to wind up, as he could have done if such was the law on the subject? The idea on the other side drawn from the similitude of a partnership was, that the contract between the corpora- tion and the subscriber was extended by implication, to prevent any radical change in the purposes of the incor- poration. This he denied, and had slu.tvn that the con- tract was that he was to pay the amount subscribed for his shares of stock, and the company was to grant him the stock, with all the rights of property incident to it, which incidents would depend on the nature of the regulations prescribed by the charter on the subject. This was the contract, and this Was the only contract which the corpo- ration, with the sanction of this Legislature, could not change without the consent of the subscriber. All other rights and interests which he had in the corporation were DEL AWAKE RAILROAD COMPANY v. THARP. 1G9 subject to the decision of a majority of the corporators the great and fundamental law of all corporations. 15 Pickering, 153. The decision in that case was, that the votes and acts of a majority of the corporators, while they may rule the interests of a corporator as a corporator, they could not affect his contracts with the corporation not as a corporator ; and this he admitted. The right of the com- pany to apply to' the Legislature for authority to enlarge and change their works, or totally to change their charter, as incident to such a corporation, notwithstanding the objection of a corporator, was clearly and expressly recog- nized and ruled in the case cited by his colleague, from 2 Rass. $ Milne, 470. It was a necessary incident of a cor- poration that it should have the right, with the approba- tion of a majority of the shareholders, to apply to the Legislature for a change of its charter ; and every one who came into it was bound by the votes of a majority, unless he had stipulated against it at the time of subscribing; for there was no implied engagement or contract pf the cor- poration to the contrary. The Pennsylvania cases were with us. The corporation could not do anything to de- prive the corporator of his share, or to make him pay more money on or for his share than he originally agreed to pay for it, without his consent, with or without the sanction of the Legislature ; because that would be to affect and pre- judice him, not as a corporator, but as an individual, out- side _of the corporation, and would be a violation of his contract. 2 Watts $ Scrg. 161; 6 Watts $ Serg. 71,72. In the case cited from 8 Mass. 2G2, the change authorized by the Legislature increased the amount which the sub- scriber engaged to pay at the time of subscribing. It had been previously decided in that State that, where the charter had given only the right of forfeiture for the non- payment of instalments due upon the shares, nn action at law might be maintained by the company for the amount of the share against the subscriber on his contract to pay for the share, as a collateral contract; and that, notwith- standing the charter, gave no action at law tor it, and the 12 170 SUPERIOR COURT. only remedy provided by the statute was by forfeiture; but the Court also decided that the action in that case being on the express contract by the subscriber to take and pay for the shares of stock subscribed, as a collateral promise made by him not as a corporator, but as an indi- vidual, it must be declared on as it was actually made, and it could not be changed by the corporation and the Legis- lature without his consent. 10 J/a^. It. 384. He referred to the case in 5 Hill, 383, and denied that the decision in that case was law, and that it was shaken by the case in 14 Barb. 559, and was in effect overruled by the case in 17 Barb. 607. The Illinois case holds the change to be bind- ing if it was designed to carry out the original under- taking. And if it were necessary to reconcile the present with the ruling in that case, it might be done by showing the tirst incorporation in 1836 and its objects; its change and reduction of capital in 1849; and its subsequent change to the present, which was more in accordance with the ori- ginal object of the charter than the amendment of 1849. But, after what he had said on the subject of greater and smaller variations in this respect, he hardly deemed it necessary to notice that case any further, or to say anything more in regard to if. The Court, Wootten,J., charged the jury : This case, which has been protracted to considerable length by a thorough investigation of the facts, and an elaborate argument of the law on both sides, has now been brought; to that stage of it when it becomes necessary for the Court to announce to you their opinion of the law, as applicable to it, and which must mainly govern the decision of it, as there appears to be but little controversy in regard to the facts which per- tain to it. It is. as you are already aware, an action commonly called an action of '/.*>'//, jy/sv'/, brought by the Delaware Railroad Company against Keiiiah Tharp to recover from him $120, the amount of a call made on him of three dol- lars per share on his subscription of forty shares of the DELAWARE RAILROAD COMPANY v. TIIARP. 171 capital stock of the company, with interest at the rate of two per cent, per month from thirty days after such call, which was on the 1st of December, 1852. To entitle the plaintiffs to recover it is necessary that they should prove first, the legal existence of the company as a corporation ; and this is done by showing that the Legislature passed the charter, and by showing that the company has been organized according to the terms and stipulations of the charter. Secondly, that Beniali Tharp, the defendant, subscribed to the capital stock of this company to the amount of forty shares, at $25 per share. Thirdly, that 5000 shares of stock were subscribed ; that the call w r as made for the amount claimed and notice there- of given as authorized and required by the charter, that is, by publication in two newspapers published in the city of Wilmington, at least thirty days previous to the first day of December, 1852, the time appointed for the payment of that portion or instalment of the stock called for, and that the defendant neglected to pay the same at the time and place appointed for that purpose. If these facts are all proved to your satisfaction the plain- tiffs are entitled to your verdict for the amount claimed by them, unless the defendant has set up and established some legal defence which absolves him from his liability. The defence set up and relied upon by the defendant is. that since the subscription by him to this stock, and since the organization of the company as originally chartered, a change lias been made in the charter and in the line and eastern terminus of the road without his assent, which, he alleges, releases and absolves him from his liability to pay the amount subscribed by him. That a change has been made by the Legislature, on the application of the com- pany, and has been approved and adopted by the stock- holders is true; but whether that change is of such a character as discharges the defendant from his liability to pay the amount of his subscription to the slock is the ques- tion upon which this ease turns, and which we are now 172 SUPEEIOR COURT. called upon to answer, by the announcement of our opinion to you of the law upon that subject. We must confess that we have been considerably em- barrassed by the contrariety of opinions and seeming con- flict of decisions cited, and we are not now entirely free from doubts; but we have given the subject all the atten- tion and the fullest consideration which our limited time and opportunity would allow, arid will announce the con- clusion to which it has conducted us. Upon examining the authorities cited on behalf of the defendant, in support of his position, most of them strike us as having and bearing but little analogy to the case now under consideration. The case of The Hartford and New Haven Railroad Com- pany v. Crosswell, 5 Hill, does go to the extent that such extensive and radical changes may be made in the road, or work of improvement, as will operate as a dissolution of the contract of a subscriber to stock ; but it also recog- nizes the principle that such alterations may be made, in the language of the learned judge who delivered the opinion of the Court, as are clearly enough beneficial, or at least not prejudicial to the interest of the party. So, too, in the case cited from 13 Illinois R., it is con- ceded that such changes or amendments may be made to the charter as may be considered by the Legislature useful to the public, and by the company beneficial to them, if they do not divert its property to new and different pur- poses, and where the work is still designed to accommo- date the same line of travel and transportation, and to pro- mote the same general good, without absolving the sub- scribers from their engagements. The case in 1 j\\'w Hampshire Reports, and those in 8 and 10 Massachusetts Report*, are also relied upon ; but those cases are essentially different from the one we are now considering; and although it is somewhat difficult to deter- mine what they really do decide, they were doubtless cases where the liability of the subscribers was increased. The case in Xew Hampshire was a subscription for one share DELAWARE RAILROAD COMPANY v. THARP. 173 of stock, and the contract was to pay all assessments a ma- jority of the company might think necessary to raise for improving the navigation of a river within certain limits, and for the purchase of six acres of land for the prosecu- tion of the improvement. The assessment on that share was for the purchase of one hundred acres of land, where- by the liability of the subscriber was increased. And so in the cases cited from 8 and 10 Massachusetts Reports, the undertaking was in the one case to pay assess- ments on one share of stock, to make a turnpike, the cost of whicli was estimated at $40,000, and that there should be 400 shares, being $100 per share. Two assessments were made, to the amount of $240. A change was made in the charter by the Legislature, on the application of the company, an the direction of the road was altered. The defendant supposed, and very naturally thought, he could not in any possible event be held liable for assessments amounting to more than $100 on each share, for that was the stipulated contract between him and the company when he subscribed, and he was therefore absolved from his liability by such a change as necessarily increased his liability from $200 to $240. The facts and rulings are the same, or very similar, in the case in 10 Massachusetts. On the part of the plaintiffs several authorities have been cited in support of the principle contended for by them ; that is to say, that a change made in the charter by the Legislature, without impairing the contract between the subscribers and the company, does not release subscribers to the stock. The first of these is the case cited from 2 Jtwll k. Chunc. Jfcp. 5o2. A decree on an appeal from an interlocutory order may be final in the case, ac- cording to the nature and incidents of the interlocutory order, and it had been expressly ruled that on appeal from such an order, awarding an issue, the court of appeal will proceed to hear and dispose of the case finally, on all the facts and merits involved in it. -] ])L ('/*'/;;<. Pr3 ; 1 John*. Ca. 4:36 ; 4 Jimim'* Pmn>on law. was simply designed to prevent a party, who had misconceived his form of action in either instance, from being defeated in maintaining it by ob- jections to the form of action merely, either on a motion for a non-uit. or by the direction of the Court to the jury, or in any other way, based on the technical distinctions existing between them at common law ; but was not intended to abolish all diminutions between the actions in their results and in all the legal incident.- and consequences attaching to them respectively at common law. Where, therefore, the action is on the ca-e, when at common law, and but for the provision of the sUitute, it should be in trespass, as where it i- tor a direct and immediate injury, or trespass to land in tho pos>es- -in of the plaintiff, although it mav be maintained, and no objection can be taken to it merely on account of the form of the action, it mu-t mill be regarded in eti'ect and in the application of the rules and prin- CANN v. WARREN. 189 ciples of law which must control and govern it in all other respects, as an action of trespass for the same injury at common law. The action on the case under the statute being therefore in effect an action of trespass for such an injury, it is incumbent upon the plaintiff to prove that he was in the actual possession of the land at the time when the injury or trespass was committed, in order to entitle him to recover for the injury in such action. But where the injury or trespass complained of is the erection and maintenance of 'a fence, and it appeals from the evidence that the defendant came into the possession of the place in question after the erection of the fence, peaceably by sale and convey- ance from the party who had previously disseized the plaintiff and erected it, neither case nor trespass will lie against him for maintaining and continuing it; but the plaintiff will be put to his action of eject- ment to recover the seizin and possession of the premises, and after- wards to his action to recover for the injury committed by the defendant in the mean time. The record of a verdict and judgment recovered in an action of trespass q. c. /., under the plea- of not guilty alone, by the plaintiff against a dis- seizor, for a trespass committed by him, is not admissible in evidence in an action by the plaintiff against the alienee of the disseizor who comes into possession peaceably under him, for continuing and main- taining the trespass. Ten days' notice of the time of laying down pre- tensions, including the day of serving the notice and the day of making the survey, is sufficient. THIS was an action of trespass on the case. The narr contained two counts ; the first of which was for a trespass upon real property by the defendant in maintaining a fence on the land of the plaintiff; and the second was for an assault and battery. Pleas, not guilty ; and to the second count, rnoiUtcr manus impossmt. The plaintiff, at a previous term of the Court, had ob- tained a verdict and judgment in an action of trespass f/uare clauscm frcgit against a former owner of the adjoining land by the name of Thompson, for erecting the fence, who had since sold and conveyed his land to the defendant, who had maintained the fence where he erected it. Booth, for the plaintiff, offered in evidence the record of the suit and recoverv in the former action of the plaintiff V against Thompson. Jj. I\L. /to/e.syfor defendant, objected to the admissibility 190 SUPERIOE COUET. of the record, because the suit was between different parties, and there was no privity of estate between trespassers. Mr. Booth : After the recovery in that case, and the sale of the premises by the defendant in that suit to the de- fendant in this, the plaintiff, as he had a right to do, went upon the ground on which the fence stood to remove it, and was resisted and prevented from doing so by the pre- sent defendant, and the record was admissible for the pur- pose of showing and proving that rig'ht. The defendant, having come into possession of the premises by conveyance under Thompson, was bound and concluded as a privy by the result of that suit, which turned on the title and seizin of the land in question. 37 Eng. C. L. R. 161; 1 Greenl. Ev., sees. 528, 531, 534; 1 Stark. Ev. 241; 3 East, 346; 5 Esp. Rep. 58; 4 Dallas, 120, 436; 2 Wash. Rep. 64; 2 Barn. Aid. 662. By the Court: A verdict and judgment in an action be- tween parties was evidence in another action between the same parties and their privies in law, or estate. All the cases cited were either between the same parties substan- tially, or they were cases in which the plea of liberwn tene- mentum was entered, and the linding of the jury wan di- rectly on the question of title involved in that plea. But in the case of the plaintiff against Thompson, the plea was simply not guilty, and the verdict for the plaintiff was on that issue. The question of title was not involved in that case; the only question involved in it, besides the fact of the alleged trespass, was the possession of the plaintiff at that time. How then could the fact of the trespass and the possession of the plaintiff, as found by the jury at that time in that suit, tend to prove or establish his possession at this time, in a subsequent action for a subsequent trespass al- leged against a different party? The verdict and judg- ment in that can have no such effect in this case. The doctrine of privity does not apply, because an action of trespass docs not lie against the alienee of a dissei/cor by a CANN v. WARREN. 191 disseizee. In this case the defendant comes into possession peaceably by conveyance from one in the actual possession of the land, and is therefore not liable to the plaintiff in an action of trespass, or in the present action, for the con- tinuation of a trespass originally committed by the dis- seizor before the plaintiff has recovered the possession of the premises from the defendant in another form of action. ISTone of the authorities cited shake or affect this principle. The plaintiff then proceeded and proved that, thirty or forty years before, a fence was put up by him and Thomp- son on the plaintiff's land to make a narrow lane between it and Thompson's fence for the convenience of the latter, and which had been used by him alone. The old fence was taken down and a new one was put up by Thompson without his consent. It was for this the suit was brought and the recovery was had against him. Afterwards he sold the land to the defendant, and that, when the plaintiff went out to remove the fence and began to saw upon it, the defendant drew a stick several times over the neck and shoulders of the plaintiff close to him, and told him if he did not desist he should knock him down, but did not strike ; although he hit the saw once in his hand and knocked it off the fence, when the plaintiff ceased his efforts to remove it. The plaintiff then closed his evi- dence. Mr. Batcf: submitted a motion for a nonsuit. There was no proof that the defendant had entered the close of the plaintiff. The entry must be an actual entry on the actual possession of the plaintiff; as there was, in contemplation of law, no constructive possession of real estate in tres- pass. Besides, the defendant came into possession of the land on which the fence stood as a purchaser, and there- fore could not be treated as a trespasser. Even if the plaintiff had re-entered on the premises in question after the purchase of them by the defendant, he could not have maintained an action of trespass against him ; for that 192 SUPERIOR COURT. remedy, after re-entry, would lie only where the re-entry was on the original trespasser or disseizor, and not against one who comes into possession by purchase or descent, or by color of right and title under him. 12 Johns. Rep. 185. The last count was for an assault and battery, but there was no proof of an assault even. The Court considered that there was sufficient proof on the second count to go to the jury, and refused to nonsuit the plaintiff. The counsel for the defendant then proceeded to adduce his title to the premises, and gave in evidence, among other proof of title, a commission to mark and bound the lands in question, issued on the petition of the defendant, and returned and confirmed at the November Term, 1854; also the plot and return of the pretensions laid in the pre- sent case on behalf of the defendant. Booth objected to the admission of the latter, on the ground of insufficient notice to the plaintiff of the time of laying down the pretensions. The rule of court required ten days' notice, which of course imported ten days exclu- sive of the day of serving the notice and the day of the survey for the pretensions. But in this case the notice was dated and served on the 5th, and the survey was made on the 15th of November. The Court held the notice to be sufficient. Mr. Booth, to the jury : It had been insisted, on the other side, that an action of trespass would not lie without an actual possession of the land by the plaintiff. But was this an action of trespass merely? It was an action on the case, and no objection had been made and no argument urged against it that was not a purely teehnical objection to trespass <{nn frrr/it. Trespass on the case, how- ever, would lie at common law, where the other form of CANN v. WARREN. 193 action would not ; and now, by a statutory provision con- tained in the Revised Code, which had abolished the com- mon law distinction between them, whenever one of the actions would lie, the other would likewise, and conse- quently the technical defence insisted on, which had rela- tion only to a trespass committed with actual or implied force, could not apply in the present case. lie therefore contended, upon the facts proved, that the plaintiff was entitled in this action to recover for the injuries he had sustained to his rights of property in the premises, not- withstanding he might not have been able to maintain an action of trespass quare clausem fregit for the same injuries at common law. Mr. Bates, for the defendant ; The question of title was not involved in the case, but the plaintiff was bound to show that he was in the actual possession of the premises at the time of the alleged trespass by the defendant. Under the conveyance from Thompson to the defendant as a pur- chaser, his entry and possession was lawful, and was to be so regarded in law until the plaintiff had resorted to his action of ejectment, if the legal title was in him, and re- covered the possession, by which he would be remitted to his legal title; and then, by the jus post liminii, he would be presumed in law to have been in possession the whole time, and he might then recover in an action of trespass for this or for any other trespass committed on the pre- mises in the mean time. As to the proof under the second count, the defendant had a right to use whatever force was necessary to prevent the plaintiff from sawing the rails and removing the fence. The. Court, Harrington, Ch. ./., charged the jury : The declaration in the case was in fact in trespass, though tin* action was in form an action on the case; and at common law, in the absence of any statutory provision on the sub- ject, the action, as well as the declaration, should have been in trespass, and not on the case. But our statute, 194 SUPEKIOR COUET. Revised Code, 379, had provided that, when the action was in case, it should be no objection to maintain it but for that provision, that it should haVe been in form.an action of trespass, and vice versa; the object of which, as we un- derstand it, was simply to prevent a plaintiff who brought his action in case, when, in point of form at common law, it should have been in trespass, or had brought it in tres- pass when it should have been in case, from being defeated in maintaining it, by objections to the form of the action merely, either on a motion for a nonsuit, or by the direc- tion of the Court to the jury, or in any other 'way; simply because he had, on certain technical distinctions existing, between them at common law, misconceived his form of action in the suit, or the direct or consequential nature of the injury in point of fact to be proved. These distinc- tions are not unfrequently subtile and refined, as well as technical, and are sometimes difficult of application in cer- tain cases. It was to avoid these difficulties, and to pre- vent the failure of suits, by reason of these nice distinc- tions in some cases, this provision was ipserted in the statute. But the Court did not consider that it had abol- ished, or was intended to abolish, all distinctions between the actions in their results, and in all the legal incidents and consequences attaching to them respectively at com- mon law, for such were not the terms of the statute. Where the action was on the case, as in the present instance, and where the action, according to the common law, and but for the statute, should have been trespass, although it might be maintained, and no objection could be taken to it, merely on account of the form of the action, yet it must still be regarded under the statute in effect and in the ap- plication of the rules and principles of law, which must control and govern it in all other respects, as an action of trespass brought for a direct and immediate injury, and subject in all respects, except as before stated, to the rules and principles which apply to and govern the action of trespass at common law. The action being, therefore, in this aspect of the matter, CANN v. WARREN. 195 an action of trespass in effect for a direct and immediate injury to the possession of the plaintiff, it was incumbent upon the plaintiff to prove that the land on which the alleged trespass was committed and maintained by the de- fendant was at that time in the actual possession of the plaintiff, and that the defendant entered on his land and maintained the fence upon it whilst he was so in the actual possession of it, in order to entitle him to recover for it in this suit. But if, on the contrary, it appeared, from the evidence, that James Thompson, or any other person be- fore that time, had ousted or disseized the plaintiff of the possession of the' locus in quo, or place in question, and erected the new fence thereon, and, whilst he was in the possession of it, had sold and conveyed it to the defendant, and he had come into possession of it peaceably under such sale and conveyance, then it was not a case in which either an action on the case or an action of trespass at common law would lie, because no one but a party entitled in re- mainder or reversion can recover in an action on the case at common law for a direct and immediate injury to his real property, which the plaintiff was not; and he could not recover in the other form of action, that was to say, in an action of trespass, for the reasons already stated by the Court on the motion for a nonsuit. In regard to the second count, for an assault and bat- tery, if the defendant was in possession of the place and the fence in question at the time when the plaintiff at- tempted to saw it and remove it, he had a right to repel force by force, provided he did no more than was neces- sary and proper to prevent the act. Verdict for the plaintiff. Booth, for plaintiff. D. M. Bates, for defendant. 196 SUPERIOR COURT. RICHARD SMETHURST v. MOSES JOURNEY. No description of the close necessary in an action on the case under the statute for trespass, and if alleged in the narr, it need not be proved. But it is otherwise in an action of trespass quart clausem fregit. ACTION on the case for taking away four cart-loads of gravel and feldspar from the land of the plaintiff. There was a public road, on both sides of which the plaintiff owned the land, and the material was taken from a bank alongside of the road, but whether within the limits of it as surveyed and laid out, did not appear from the evidence. The close was described in the narr by abuttals, but no proof was offered to sustain them. For the defendant it was objected, that as the narr set out the close by abuttalg, which the statute required, it was a material averment, and without some proof in sup- port of it the plaintiff could not recover. It was also ob- jected that an action on the case would not lie, but it should have been trespass q. c. /., notwithstanding the provision of the statute abolishing the distinction between them; also that no damage had been proved, and that none in point of fact had been sustained by the plaintiff. For the plaintiff it was replied, that the action was in case, which would lie under the statute, and that no allega- tion or proof of abuttals was required in the action. That no proof of actual damage was necessary, since every entry on the land of another, without authority or license, con- stituted a trespass, which imported an injury in law, and for which the owner was entitled, in the absence of any farther proof, to nominal damages at least. The Court charged the jury : That the action would lie by virtue of the statute, but no designation of the close by abuttals or by other description was necessary, under the provisions of it, except in an action of trespass y*/>//v C!v///r. 107; Xt'tfc M*.' nf (aa,^ : j \. Lojfoml, : 1 llarr. 343; Tnt-ll v. JkrM, 4 JIarr. 71. 230 SUPERIOR COURT. E. D. Cullen, for the defendant. When the sheriff, or his deputy, justifies the taking of goods under a Ji. /a., he is not bound to set forth the judgment, or plead anything more than the execution. Harr. Entries, 142; 3 Ch. PL 1135, 1132, new edition. Court overruled the objection and admitted the evi- dence. The sheriff was not bound to set forth the judg- ments, as the writs delivered to him were his authority for the levy; but if the plaintiff had had occasion to rely upon them in the action to maintain his right to recover, lie would have been obliged to set out the judgments. Andrew J. HcColley was then called as a witness for the defendant, to prove the interest and partnership of Xutter L. Davis in the goods, but he was objected to on the other side, and was excluded by the Court, on the ground that he was jointly bound with Xutter L. Davis in the judg- ments and the writs thereon, and as he might have the whole debt himself to pay, he had an interest to make out the available means of his co-debtor liable to the execu- tions as large as possible, and to establish the property of Xutter L. Davis in the goods, and was therefore to gain or lose by the event of the suit. The counsel for the plaintiff insisted, in the argument to the jury, that Xutter L. Davis had no interest or property in the goods, that the plaintiff was the sole owner of them, and that no partnership existed between them. That the existence of the partnership was alleged on the other side, and upon the defendant therefore devolved the duty of establishing it. As to what will constitute a partner>hip, he cited (r'dpin v. Temple ft /., 4 Ilxrr. 1!1; Ikeclcnn v. 1)>1<^ 3 llirr. 485 ; O,l i>n Partn., sees. 822, 82* ; and asked the Court to charge the jury, even if they should be satis- tied that there was a partnership, as alleged, that the sh'-riff had no right or authority, under the writs against one of the partners, to seixe and take the whole of the goods and DAVIS v. WHITE. 231 to turn the plaintiff out of the possession of his share of them, and that he was a trespasser as against him in doing so ; because there was a distinction between levying upon the undivided share and interest of an individual partner, and taking into his actual possession the whole partnership goods. 15 Mass. Rep. 82; Col. on Partn., see. 822. He could only sell the undivided interest of the partner bound by the execution, and, as the seizure under the writ was only a seizure in law, he could seize no more than he could sell, which was merely the undivided interest of that particular partner in the property. For the defendant it was contended that partnerships were usually formed by private articles of agreement be- tween the partners, which, for purposes of their own might be entirely confined to their breasts, in which case it could only be known to and inferred by others from facts and circumstances, such as their acting together as principals and conducting their business as partners ; and all the evi- dence in this case was of a character to sustain that infer- ence ; for every witness had stated that the one appeared to be as much a principal and an owner in the conduct and management of the business as the other. And if the plaintiff was a partner in the business with Xutter L. Davis, that the sheriff had not only the right, but it was his duty to seize and sell the whole stock of goods belong- ing to the partnership, and in which the latter as one of the defendants in the writs had any share or interest; for one part-owner or tenant in common could not maintain an action of replevin against another part-owner or tenant in common, or even against a third party for seizing and taking away their joint property. "2 llnrr. 120; 2 Max*. 407; 2 Wheat. Mir. \. P. 273;" 12 Wend. 131 : 14 John*. 84; Col. on J'vrtn. 709; 15 John*. 17l; 24 Wend. ;$8!. The sheriff was bound to seize the whole of the goods in execution, and to sell and deliver the interest of the part- ner in the whole of them. 4 Jli/l, 158. And being bound to seize the whole, if the plaintiff and his brother were 232 SUPERIOR COURT. partners, the defendant was entitled to a return of the goods, and if return could not be made, to a verdict for damages to the value of the whole goods. The Court, Harrington, Ch. ./., charged the jury : The main question before the jury was, whether Nutter L. Davis, one of the defendants in the writs of execution, was a copart- ner with Mark J. Davis, the plaintiff in the present action, in the stock of goods and merchandise seized by the de- fendant as sheriff. What will constitute a partnership is a matter of law, but whether it exists according to the legal definition, is a question of fact to be determined by the jury. Where the suit is between the partners them- selves, strict proof of the existence of the partnership, of the community of profits and losses, and of the contract of copartnership itself, is required, lint when the suit is by a third person against another who is alleged to be a part- ner, as in this case, the proof required was different. Tn such a case, all the facts and circumstances from which the existence of a partnership may be fairly and reasona- bly inferred are to be considered by the jury ; as, where the party sought to be charged in the action as a partner has admitted the alleged partnership, or has dealt with others as a member of the partnership, or has held him- self out in any way, or has represented himself, or obtained or sought to obtain credit for himself or the firm, as a part- ner, or has jointly participated in the profits of the firm, a partnership may be inferred, (lilpiii v. Temple, 4 Harr. 1!>2. Hut the public advertisements of the store; in the name of the plaintiff alone, or proof that the bills for goods purchased, or sold, and the receipts given and taken, that the books were kept and that the whole busi- ness was transacted and conducted in the name and upon the credit and responsibility of the plaintiff alone, it' done in good faith, would be sufficient to establish his sole right to the goods in question, and if there was no fact proved by the defendant to impeach or rebut the presumption arising from these circumstances, the plaintiff was en- DAVIS v. WHITE. 233 titled to recover. If, however, the jury should believe from the evidence before them, that Nutter L. Davis was a part- ner with the plaintiff in the store and the business, and had a share or interest as such in the goods seized in execution, the defendant would be entitled to a verdict for the return of the goods, or in case a return of the goods could not be had, to a verdict for damages to the value of such share and interest. If Nutter L. Davis was a partner with the plain- tiff in the goods, it was the right and duty of the defen- dant as sheriff to seize the whole of them on the execu- tions, and to sell his undivided share and interest in them, in which case the purchaser would become a part-owner or tenant in common with the plaintiff in them ; and for this purpose, he had a right, if he deemed it advisable to prevent their being wasted or carried away, to take the whole of them into his actual custody and possession, and the plaintiff being but a part-owner as a partner in them, and because they were liable to such seizure, could not maintain an action of replevin for them against him. The plaintiff had a verdict. C. S. Layton, for plaintiff. W. Saulsbury and E. D. Ciillcn, for defendant. NOTE. Houston, J., did not sit in this case, having been of counsel for the plaintiff. 16 234 SUPERIOR COURT. McCoLLEY & BROTHERS, for the use of MITCHELL WARREN, r. WILLIAM II. HICKMAN. In an action on the recognizance against a surety in an appehl from a justice of the peace, it is sufficient to aver in the declaration that the suit below being for debt, was for a cause of action within the jurisdic- tion of the justice of the peace. If the appeal be referred out of court under a rule of reference, it will not release the surety from his liability on the recognizance ; and it is not necessary to aver in the narr that he consented to the reference. Neither is it necessary to allege in the narr, that the justice of the peace had jurisdiction of the person of the defen- dant in the action before him. THIS was an action of debt on a recognizance entered into by William R. Hickman, the defendant, as the surety of William and Benjamin Collins (n.) on appeal from a judgment recovered by McColley & Brothers for the use of Mitchell Warren against them before a justice of the peace for sixty-eight dollars and costs. The declaration in the action set forth the recovery of the judgment before Lemuel B. Shockley, Esq., one of the justices of the peace for the county, for a cause of action within the jurisdiction of the said justice of the peace, from which the defendant appealed in due time, and that William K. Ilickman, the defendant in this action, thereupon became surety for them in the appeal. That after the appeal was entered in this Court, it was referred by the consent of parties on a rule of reference out of court, in which the referees made a report and return at the next term in favor of the plaintiffs against the defendants for eighty-eight dollars, on which this Court gave judgment for that amount and costs ; that an execution was afterwards issued on the judgment against the defendants, to which the sheriff made return of n>illmt. Rep. 108; 5 Hill, 285; 4 Mass. 641; 41 7%. (.'. L. R. 825; 3 Harr. 517 ; 4 Jlarr. 280. 236 SUPERIOR COURT. C. S. /x^/fott, for the plaintiffs : It is averred in the narr that the justice of the peace had jurisdiction of the cause of action and of the person of the defendant, for it is alleged that the plaintiffs recovered judgment against the defen- dant for their debt, fie. But it was neither necessary nor proper to incurnher the record in this case with the pro- ceedings in that case below, or to set out the facts which gave the jurisdiction. It was sufficient to allege simply that it was for a cause of action within the jurisdiction of the justice. 1 Ch. PL 356; 2 Ibid. 220; 1 Wll. 316; 1 Sy them in writing to the Court: "\Vill the FRANK v. FRANK'S ADMINISTRATOR. 245 Court inform the jury whether the judgment obtained by default, by Mr. Bright, the plaintiff, legally interfered with the right of possession of Mrs. Stevens, the defendant?" To this inquiry the Court replied that the judgment by de- fault in the former action of ejectment between the parties legally established the right of the plaintiff to the posses- sion of the premises, but unless it was followed by an entry into possession, either by a writ of possession or personally without writ, but with the consent or by the surrender or abandonment of the defendant, such judgment would have no effect on the defendant's possession, or upon the ques- tion of title founded upon her part on an actual and unin- terrupted adverse possession of twenty years' continuance. Verdict for defendant. HENRY FRANK v. GEORGE C. FRANK'S ADMINISTRATOR. The Court will not compel the production of a promissory note by a plain- tiff before trial for the inspection of the defendant, although he is an administrator, on an affidavit submitted by him, alleging grounds to suspect its genuineness, and tluit the plaintiff had refused to allow the defendant to see it. THIS was an action of asatonpsit on three promissory notes, purporting to be made by George C. Frank, payable to the order of Henry Frank, amounting, in the aggregate, to six thousand dollars. The case was at issue and on the list for trial; and, at an early day in the term, the defendant tiled an affidavit that he had been intimately acquainted with George C. Frank tor thirty years before his death, and, for the last five or six years of his life, had transacted much business for him, and was therefore conversant with the relations existing between him and the plaintiff. That he never knew or had heard of any indebtedness of the 246 SUPERIOR COURT. deceased to the plaintiff, or of the existence of the promis- sory notes declared on, until after the institution of this case ; and he was informed by the heirs at law of the de- ceased that they had never heard of them until the com- mencement of this suit. That the deceased, for several years preceding his death, was infirm of body and imbecile in mind; and that he made diligent inquiry, and, from the information which he had received, he was of opinion that a strong suspicion attached to the making and signature of the said promissory notes ; but he had not as yet been en- abled to obtain a view of them, as the plaintiff had refused, upon his request, to exhibit them to him; and that, to eu- able him to discharge his duty, and to protect and defend the estate of the deceased committed to his administra- tion, it was highly necessary and important that he should be allowed a reasonable opportunity for the examination and inspection of the said notes before the trial of the case. And on this affidavit he applied for and obtained a rule upon the plaintiff to show cause wherefore the said pro- missory notes should not be produced in Court and de- posited with the prothonotary, for the inspection of the defendant, a reasonable time before trial. Patterson, for the plaintiff in the rule : There is every reason to suspect the genuineness of these notes, and the refusal even to show them to an administrator of whom payment is demanded on them, is itself a pregnant circum- stance to justify that suspicion; and, although the applica- tion was a novel one in this court, it was in conformity with the practice of courts organized and constituted as this is elsewhere; and he had, therefore, no doubt of the power and authority of the Court to grant the application and to enforce the production of the notes under the cir- cumstances, and for the purposes stated in the affidavit. y^r/.W Co/A 1 , 817; 382 ; 3 JJ. ( '//. PL $ Pr. 2038, 2048, 2057, 2070; 1 llnpk. Cl<. Rep. 143; 4 Taunt. Io7; 8 En conducted, and as much bv the inadvertence of the eouns-el, as by the acquiescence of the Court, was irre- BARTHOLOMEW v. EDWARDS. 251 gularly introduced on the trial, and left in terms of too general import by the Court to the jury, considering the importance of the deed alleged to be lost in the case, and the loose nature of the proof in regard to it. The motion must, therefore, be granted, the verdict for the plaintiff must be set aside, and a new trial ordered; but we take occasion at the same time, w r ith this exception, to reaffirm the points ruled, and the law as stated in the charge to the jury on the trial in all other respects. The new trial afterwards proceeded; the evidence of the contents of the deed in question was excluded by the Court, for the want of sufficient proof as to its existence and identity and the parties to the deed; and the defendant had a verdict. COURT OF ERRORS AND APPEALS. J U N E T E 11 M , 1856. THE STATE, for the use of CHARLES II. B. DAY and MARY his wife, late MARY WARREN, r. WILLIAM HIUONS. Although the not concerning the real estates of intestates provides that on the appraisement and confirmation by the Orphans' Court of the real estate of intestates, the value of the lands, according to the said ap- praisement, shall be substituted in the place of said lauds, there is no conversion of the realty into personalty until acceptance at the ap- praised value and assignment by the Court, or sale of the same by the order and confirmation of the Court, by which alone the legal estate of the heirs in the real estate is divested and transferred, and converted into its equivalent in money, to be secured by the recognizance THIS case came up on a scire facias on a recognizance taken in the Orphans' Court for Kent County, upon a case stated in the Superior Court, and on a question of law re- served for a hearing hefore all the judges /'// linn];. The case stated was as follows: Samuel Warren, late of Murderkiln Hundred, Kent County, died intestate in 1X*J4, sei/ed in fee of two several tracts of land situate in said Hundred, and left to survive him a widow and tour chil- dren Eli/aheth, .John, Charles, and Mary Warren as his only heirs-at-law. Of these the two first named, I'lli/aheth and John, were the issue of a former wife, and Charles and Mary were the issue of his last wife. After the death of Ins widow, the said William Hirons, who had intermarried STATE, USE OF DAY AND WIFE, v. HIRONS. 253 with the said daughter Elizabeth, presented his petition to the Orphans' Court of said county for partition of said lands, and commissioners were appointed pursuant to the statute in such cases made and provided, to divide the same, who, at the ensuing March Term, 1831, of said court, made return that the lands would not divide into the pri- mary shares directed, without detriment, &c., but would divide into two parts, into which they had divided them, one of which allotments they had appraised at $1465, and the other at 81400, which return was thereupon ap- proved and confirmed by the Court, and the same day the first-mentioned allotment was accepted by and assigned to the said William Ilirons, and he entered into recognizance to pay the other parties entitled their respective shares of the appraised value thereof, and which have since been paid and satisfied by him ; the said John Warren, the brother of the whole blood of the said Elizabeth, the wife of the said William Ilirons, having in the meantime died intestate and without issue, leaving his said sister of the whole blood, the said Elizabeth Ilirons, and his brother and sister of the half blood, the said Charles and Mary Warren, to survive him as his heirs-at-law; having before his death, however, attained the age of twenty-one years, and become entitled to accept the other allotment of the land at the appraised value thereof. At the March Term, 1838, of the said Orphans' Court, the said William Ilirons presented a further petition, setting forth these facts, and that since his acceptance of the first allotment the said John Warren, who was then a minor and the eldest son of the said deceased, had attained his majority, and had since died intestate and without issue, and without having in any manner aliened his interest in said lands, and that the right of acceptance in the other allotment had thereby de- scended and devolved upon him in right of his wife, the sister of the whole blood, the said Charles and Mary War- ren still being under the age of twenty-one years: and praved the Court to assign the residue of the lands to him, which was done upon his entering into recognizance to _r>4 COURT OF ERRORS AND APPEALS. pay the other parties entitled their respective shares of the appraised value of the same. Charles IF. U. Pay had since married and was now the hushand of the said Mary War- ren, and it was admitted that the said "William llirons had paid to him, in right of his wife, and to the said Charles Warren, each, the one-fourth part of the said appraised value of the said second allotment, secured to be paid by the said last-mentioned recognizance. The question of law reserved was whether, upon the above-stated facts, the said Charles H. B. Day, in right of his wife, the said Mary, was entitled, under the said last- mentioned recognizance and the laws of this State, to re- ceive and recover any sum beyond the one-fourth part of the appraised value, secured to be paid by sahl recogni- zance, with interest therereon from the date of it, and if so, what sum beyond the one-fourth part thereof? Fisher, Attorney- General, for the plaintiffs: The plaintiffs must1>e entitled to the one-third instead of the one-fourth part of John Warren's share, if the same was real estate and was not converted into personalty by the proceedings for the division of the land in the Orphans' Court. Dig. of 1829, p. 3 lf>, sec. 1, and p. 319, sec. 2. The words of the act are : " Then the appraised value shall be substituted for the land; and if the valuation is to be substituted in the place of the land, it is to stand in the place of the land, and must be subject to all the rights, qualities and inci- dents which attach to the land itself:" PimL ])!m' /{':, rot. 1, X. 2, />. 121. A. P. Xnit'tlnr.i, for the defendant: The misapprehen- sion on the other side consists in regarding this share at this time, when this question arises, as still a part of the real estate of Samuel Warren, deceased, instead of con- templating it as the share belonging to .John Warren ab- solutely at the time when this question first presented STATE, USE OF DAY AND WIPE. v. Ill RONS. 255 itself. If ft was real estate at that time, then his sister of the whole hlood and his brother and sister of the half blood, would each take, under the provisions of our act, an equal third part of it ; but if it was personal property at that time, then his sister of the whole blood will take the whole of it. We rely upon the well-established rule of equitable constructions in relation to the conversion of realty into personalty, and ex converse. The Pennsylvania statute contains no such provision {is we find in our sta- tute, nor any such words as have been read on the other side from our act, and consequently this question could never have arisen in that State. J/. W. Bates, on the same side. I entertain the opinion that at the time of the death of John Warren, his interest in the lands of his father was not real in its nature, but had been converted, by the express terms and operation of our act of Assembly, into an interest in the appraised value of the land, on the return of the appraisement and confirmation by the Orphans' Court; because such is the language of the law, and the Court cannot alter it. The question, and the whole question is, did John Warren', at the time of his death, hold a share of this real estate, or a share or interest in the appraised value of it ? And that question is decided and settled by the law itself. ef/ys, for the plaintiffs : The word substitute used in the act referred to, is merely for the purpose of enabling the Orphans' Court to determine in what sum the recog- nizance shall be taken, and nothing more. The term cm- ployed is not that the land shall be converted into the appraised value in money, but that the latter shall In- sub- stituted for the former, which is a word of very different import. So long as the land remains unaccepted and nn- assigned in the Orphans 1 Court, it continues real estate, and descends as such in all cases, on the death of a partv entitled, to his heirs-at-law, not to his exeeutors or ad- ministrators, as is the case when the substitution has been 256 COURT OF ERRORS AND APPEALS. completed by acceptance and assignment, and his legal rep- resentatives claim his interest under or by virtue of the recognizance. Though there may be a substitution be- fore, there can be no conversion, no complete change of the realty into personalty, until there is an acceptance and recognizance with security, or a sale of the land by the order of the Court. Such is the decision cited from Penn- sylvania by my colleague. The rules of construction in courts of equity, referred to on the other side, have no- thing to do with the present case, because we are now in a court of law, where such rules do not apply. BJJ (he Court: Although the statute provides, that on the appraisement and confirmation by the Orphans' Court, the valuation shall be substituted in place of the land, there is no conversion of the realty into personalty until acceptance at th'e appraised value, and the assignment by the Court, or sale of the land by order and confirmation of the Court, by which alone the legal estate of the heirs in the real estate is divested and transferred, and con- verted into its equivalent in money, to be secured by the recognizance. The real plaiut'tts, Charles II. B. Day and Mary his wife, are therefore entitled to recover from the defendant, William Kirons, upon the recognizance in ques- tion, in addition to the amount already paid them, a sum of money equal to the one-third of the one-fourth of said recognizance, with interest from the date thereof, which will constitute the one equal third part of the said appraised value with interest; that being the share of it to which they were justly entitled under the act, on the death of John Warren, according to the facts stated. SUPERIOR COURT. FALL SESSIONS. 1856. JAMES 8. CHASE r. ROBERT W. JEFFERSON. The record of a suit between the same parties is admissible 'in evidence in a subsequent action between them, although it may not be final and conclusive ; as, where a new trial has been asked for, .and the rule granted, find the question upon it is still pending. In an action of trespass for breaking and entering the close of the plain- tiff, which trespass the defendant justifies because the plaintiff had taken his goods without his consent, and locked them up in his close, the Court will not entertain the question, nor inquire in which of the parties the rightful property in the goods at the time was vested, when the claim of the defendant rests on an alleged contract of purchase of the goods before that of the plaintiff, and it would be necessary to determine whether there was such a delivery of the goods as would complete the sale and vest the legal right to them in the defendant. The principle of law in regard to the recapture of goods wrongfully taken from the po.-ession of the owner, and the right of the owner BO dispossessed to speedily follow them up and retake them, does not ap- ply in such a case. Tins was an action of trespass qtiftrc fhuwm frcgit for breaking and entering the stable of the plaintiff, and en- deavoring to take a horse from it, which the plaintiff had locked up in it. The defendant claimed to own the horse, and resorted to force by removing several boards from the stable to regain the possession of him, which he had re- cently lost, by the plaintiff's taking him a short time before, and locking Vim up in his stable. It appeared in 258 SUPERIOR COURT. evidence that the plaintiff had formerly owned the horse and had sold him to the defendant on trial, to be paid for hy a certain time, which the latter failed to do, and the plaintiff thereupon retook the horse. The defendant in support of his title offered in evidence the record of an action of replevin at his suit against the plaintiff, tried at the preceding term of the Court, for the recovery of the horse, and which resulted in a verdict in his favor; hut which was objected to on the other side, upon the ground that there was no judgment in the case, the counsel for the defendant in that suit having moved within the four days and obtained a rule to set aside the verdict, and for a new trial, which was afterwards continued by the Court until the present term, and was still pending and undecided. By (lie Court: This is the record of a suit between the same parties, and this of course, makes it admissible in evidence, and we therefore overrule the objection, which applies to the effect and not to the admissibility of the record as evidence. For the plaintiff, it was insisted before the jury, that ad- mitting that the property in the horse was in the defen- dant, it could not justify his breaking and entering the close of the plaintiff, to take it out of his possession. It was not admitted, however, that the property in the horse was in the defendant. He had obtained the possession of him, in the tirst instance, by false and fraudulent represen- tations to the agent of the plaintiff in bis absence, and was not to have the horse at all until he paid the monev for him. Where goods are to be paid for on delivery, it was a condition precedent and must be performed, before the purchaser can acquire any right of property in them, and the vendor may resume the possession of' them. C/i/'f. mi. ('nnfr. SQ() ; 1:5 ./<>////*. 4:54. So it' a person obtains posses- sion of goods on a fictitious pretext of having purchased them on a credit, without intending to pay for them, this is such a fraud a< will vitiate the sale and prevent him CHASE v. JEFFERSON. 259 from acquiring any property in them. Mor. on Kept. 137 ; 15 Mass. 7iYy>. 156*; 4 JIarr. 327. The counsel for the defendant relied on the evidence ad- duced in the case, and on the record and verdict in the action of replevin tried between the parties at the last term, to establish the property of the defendant in the horse. The proof was that the plai'ntiff had sold and de- livered the lior.se to the defendant on a credit of thirty days, and if it was not paid for by that time, it gave the former no right to retake him from the possession of the latter, but his only remedy was by an action on the con- tract of sale. If therefore the horse belonged to the defen- dant, and the plaintiff took him and fastened him np in his own close, or stable, the defendant had a right to break and enter the close to retake it. But he would not have had the right to break and enter the close of any other person for this purpose, nor would any one but the defen- dant himself have had this right. 1 Archb. N. P. 410 ; 3 Black. Com. 4. In this case the property was wrongfully taken by the plaintiff from the possession of the defendant, who immediately followed it up to regain the possession of it, and under the circumstances he had a legal right to break and enter the close of the plaintiff for that purpose. The O>ttr(, Harrington, Ch. ./., cltan/cd the jur>/ : This is an action of trespass for breaking and entering the close of the plaintiff', and removing several boards from his stable and the inclosure around it. The alleged trespass is to real estate, and the damage complained of is that just stated, and which the defendant justifies on the ground that the plaintiff had taken a horse from his possession, which as he contends belonged to him, but which the plaintiff also claimed as his property, and had locked it up in said close; and the whole trial had turned upon the question, in which of the parties was the rightful property in the horse vested. Hut we cannot try two cases in one; much less, in an action of this nature, can we go outside of the issues joined, to in- quire and determine in which of the parties the rightful 260 SUPERIOR COURT. property in the horse was vested, umler the contract of sale and the facts proved in connection with it. We are there- fore of opinion that the principle of law in regard to the re- caption of goods wrongfully taken from the possession of another, and followed up by the person so dispossessed, does not apply in this case, where the claim of the defen- dant is based on a contract to purchase the horse, and in which it would be necessary to inquire whether there was such a delivery of the property as would complete the sale and vest the legal right and title to it in him. But it ap- pears from the record ottered in evidence that this very question is already pending in another action between the parties in this Court, and that it remains to be finally de- cided and disposed of in that action. We accordingly think the only question to be considered by the jury in this case, is the question of the alleged trespass in breaking and entering the close of the plaintiff by the defendant, in the declaration mentioned, and if you are satisfied from the evidence before you, that the defendant did break and enter it, then your verdict must be for the plaintiff, for the amount of the damage done him by such breaking and en- tering merely. Verdict for the plaintiff. Robinson and ('. S. L">/fon, for plaintiff. W. S/mlsbury and E. D. (fallen, for defendant. WOOLSKY BURTON", Indorsee of NATHANIEL INURAHAM, r. THOMAS ROBINSON. Nothing short of a direct acknowledgment, or a distinct admii-siou of the existence of the debt us u subsisting demand, is sufficient to take it out of tin- .ijier.ttion of the statute of limitations. A ijualitied and conditional acknowledgment of a debt barred l>y the statute will not revive it, unless the condition is performed. THIS was an action of affuuipsii on a promissory note BURTON. INDORSEE, v. KOBINSON. 201 made by Thomas Kobinson, the defendant, to the order of Xathaniel Ingraham, on the 8tli day of August, 1840, for $500, and indorsed by the latter to Woolsey Burton, the plaintiff. The action was eoninienced on the 5th day of September, 1854, and the only defence was the pica of the act of limitations. The plaintiff relied on a subsequent acknowledgment to take it out of the operation of the statute; and for this purpose he proved, by a witness who was present in the spring of 1852, after the death of In- graham, the indorsee, at a settlement between his adminis- trator and the defendant, and on the production of the book of accounts of the deceased, there appeared a credit on his account against the defendant for his note of $500, and the administrator seemed to entertain some doubt whether such a note ha-d ever been given to Ingraham by Kobinson, and wished to know where it was, as he could find no such note among Ingraham's papers, when Robin- son informed him that it was in the hands of Woolsey Bur- ton, and said that something had been paid on it; he did not say that it had been paid in full. The witness did not see the note, however, nor know the date of it, or that it was the same as the promissory note now produced and shown to him. The counsel for the plaintiff, for the same purpose, also offered in evidence an agreement in writing, bearing date September 4, 1854, entered into and signed by Woolsey Burton, administrator of Miers Burton and Thomas Robinson, pending a suit between the parties in that character, and which had been referred out of court, in which it was agreed between the parties that " a certain promissory note of the latter to Xathaniel Ingi-aham, dated August 8, 1X40, for $500, and by him indorsed to \Voolsey Burton in his own riirht, or anv payments thereon, should not tu- considered by the referees in the case then pending between the parties as aforesaid." Robinson, for the defendant, contended that no such ac- knowledgment of the note as a present subsisting demand against the defendant, had been proved by the evidence 262 SUPERIOR COURT. offered as would take the case out of the operation of the statute of limitations, for which lie relied on the authority of the two cases lately tried together in the Court of Errors and Appeals, before all the judges in bank, of Wa pies' s Ad- ministrator v. Morris's Administrator, and Burton v. Waples' s Administratrix.* * The cases of William E. Burton v. Mary A. Waples, Administratrix of Henry C. Wrtples, deceased, and of Mary A. Waples, Administratrix of Henry C. Waples, deceased, v. William E. Burton, Administrator c. t. a. of Ann C. Morris, deceased, above referred to by Mr. Robinson in his argument, were decided in the Court of Errors and Appeals, June Term, 1854, on ques- tions of law, reserved for hearing before all the judges in bank, but wore accidentally omitted in the publication of the last volume of Harrington's Reports. The learned reporter, however, has kindly furnished me with his manuscript report of the cases; and as it was cited and relied on by the learned counsel for the defendant, in Burton, indorsee, he -aid lauirli- imrlv. Mr. Burton >aid, if so, he must bring suit at once. Mrs. Waples replied, .-he would not plead the act if Mr. Burton would pay the claim airaini-t Mrs. Morri:-, or if he would agree not to plead the act of limita- ti<>n> airain-t it. Mr. Burton did not agree to either, hut .-aid he wa.- will- BURTON, INDORSEE, v. EOBINSON. 263 C. S. Lo.yton, for the plaintiff', insisted that there- was evidence of a Sufficient acknowledgment to avoid the plea ing to pay his half of it if his brother-in-law, Mr. Barnard, the son of Mrs. Morris, who got half of her estate, and was equally bound with him for it, would consent to pay his portion of the account." In the other case, of Mary A. Waples, Administratrix of Henry C. Waples, deceased, \. William E. Burton, Administrator c. t. a. of Ann C. Morris, deceased, the following was the special verdict returned by the same jury : " John D. Rodney was the agent of the plaintiff in the administration of the estate of the said Henry C. Waples, deceased, and with his principal, Mrs. Waples, the administratrix, met at her house William E. Burton, the administrator of Mrs. Morris, in January, 1849, for the purpose of settling the accounts between the estates of H. C. Waples and Mrs. Mor- ris, late Mrs. Barnard. The account against the latter, running from 1841 to 1845, was produced and examined by the parties, when William E. Burton said he had no doubt the account was correct and had not been settled. He admitted the propriety and justness of the account, and was willing to pay his part of it (he married the daughter and one of the heire- at-law of Mrs. Morris), if his brother-in-law, William D. W. Barnard, the son and other heir-at-law of Mrs. Morris, who lived in Missouri, would pay his part of it, and desired Mrs. Waples to write to him on the subject. In June or July, 1850, William E. Burton said again to Mrs. Waples's agent, Mr. Rodney, that he was willing and wished the account to be settled, and was willing to pay his part of it, if Mr. Barnard would pay his part of it. He admitted the account to be correct, and promised to pay his part of it, if Barnard would consent to pay his portion of it, and added, that he would be glad to hear from him, as he desired the matter to be settled, and then had sufficient rents in his hands from the real estate of Mrs. Morris to satisfy and pay it; that the administration of her estate hud been closed, and he wished to hear from Barnard on the subject, to save the necessity of passing another account upon it." The question was whether, on these facts, there was a sufficient ac- knowledgment in both or either of the cases to remove the bar of the statute of limitations ; and this question was directed by the Court to be reserved for a hearing before all the judges at the next term of the Court of Errors and Appeals. And now, at this term of the said court, the cases came up for hearing as directed. K. D. f'ullcn, for the plaintiff' in the first, and for the defendant in the second case, contended that any admission by a defendant, whether as an administrator or as the party originally bound, amounting to an acknow- ledgment of the existence of an unsatisfied debt, will take the case out of the operation of the statute of limitations. Because the promise to pay it i.-- implied from the acknowledgment of the existence of the debt. But Mich an acknowledgment must be absolute, and not conditional merely ; 264 SUPERIOR COURT. and take the case out of the operation of the statute of limitations. 1 Ch. PL 639 ; 2 Sound. PL and Ev. 648 ; Neto- for a conditional promise to pay is no promise, unless it is shown that the condition was performed. Waples v. Layton '$ Sipjdr., 3 llarr. 508; Black's Admr. v. Reybold, Ibid. 528; Neivlln v. Duncan, 1 Harr. 204; Chambers v. Fennimore's Admr. 4 Harr. 3(58; Rcnnington v. Parkins' Admr. 1 Harr. 128; ^4r^. on Zlim. 218; Blanch, on Lim. (Jl, 117; 1 Barn. sion was that the account was correct, but she added that it WHS larger than she supposed, and she would have in plead the statute of limitations against it, unle.-s he (Mr. Burton j would waive the plea of the statute as UL, r :un-t her claim. She well knew, as matters then stood, that t*>th accounts were barred, and she evidently intended to quality her admi.-.-ion .-o us t< expres^y negative the idea of her willingness or legal liability to pay the plaintiffs demand, except upon the condition that he would waive the BURTON, INDORSEE, v. ROBINSON. 265 lin v. Duncan, 1 Harr. 204 ; Black's Executors v. Reybold, 3 Harr. 528. bar of the statute, and be equally just and generous towards her in the claim or account which she held against him as the administrator of Mrs. Morris. Much is said, and loosely said, in the books and in the earlier decisions on the point, as to the ground on which rests this princi- ple of reviving a debt barred by the statute, by a subsequent acknow- ledgment of it; but the true ground on which it rests is this, the ad- mission is construed to be an implied waiver of the statute; but there can be no implied waiver against an express refusal to waive it. The de- cision of the Supreme Court, before referred to, has been so generally ap- proved, that the tribunals in the Slates hrfve been gradually conforming to it, until it is now ruled and recognized as the established principle on this point in atleast one-half of them. He cited 2 Wash. C. C. Rep. 514; 2 Pick. 368 : 3 Wend. 187 ; 15 Johns. 520; 7 Wend. 267, 535 ; 15 Wend. 284, 308; 9 Cow. 674; 21 Pick. 323; 22 Pick. 291; 4 Qreenl. Rep. 41, 159; 2 Shipl. Rep. 300, 349, 360: 3 Fiiirf. Rep. 470; 8 Conn. Rep. 185; 11 Ibid. 160; 9 Ibid. 496; 7 Ibid. 172; 4 N. Hamp. Rep. 315; 12 Verm. Rep. 263; 7 Ibid. 54 ; 9 Leigh's Rep. 45; 2 Dev. <$ Bat. Rep. 149, 336; 2 Bail. Rep. 278 ; 2 Hill, 326 ; 1 Bibb's Rep. 403 ; 4 Dana Rep. 505 ; 5 J. J. Marsh. Rep. 255; 7 Yearg. Rep. 534; Breeze's Rep. 171, 218; 4 Miss. Rep. 358; 6 Ibid. 20 ; 4 Porter's Rep. 226; 4 Kng. C. L. R. 478; 22 Eng. C. L. R. 385; Ang. on Lim. 245 ; Chambers v. Fennimore's Admr., 4 Harr. 368 ; Farmers' Bank v. Leonard, 4 Harr. 540. These cases establish at present a far different principle from that ruled in many of the earlier cases, which went to the absurd length of implying a promise to pay from declarations even to the contrary, and that not- withstanding an express promise to pay is not necessary to take the case out of the operation of the statute; but an unequivocal and unconditional acknowledgment of a present subsisting liability and willingness to pay, from which the law will imply a promise to pay, on the moral obligation which continues after the legal obligation is discharged by the statute, is necessary. And therefore the declaration in such cases, when the plain- till' reli<-s on a subsequent admission to remove the bar of the statute, is always on the original and not upon the new promise to pay; because -the law docs not proceed upon the principle that the new promise, either ex- press or implied, furnishes in such a case a new cause of action, but it simply proceeds upon the idea that the subsequent acknowledgment ope- rates us a waiver of the bar of the statute, and that being removed the plaintiff recovers on the original cause, of action, which survives as a suf- ficient obligation in jforo consrc'ewfjVr to support the new promise; and hence the necessity of such an acknowledgment or admission as imports a will- ingness, and will at least imply a new promise to pay the debt. I agree that a conditional promise will not avail to remove ihe bar of the statute, unless it is complied with; and both of the cases before the 18 266 SUPERIOR COURT. The Court, Harrington, Ch. J., charged the jury : In the opinion of the Court, nothing short of a direct acknow- Oourt involve a condition in connection with the admissions found. But if a distinction is to be made between the two cases in this respect, I con- fidently submit that the acknowledgment of Mr. Burton, the defendant in the latter case, is much the most direct, unequivocal, and positive, and is decidedly the strongest in favor of the plaintiff's right to recover. For he not only expressly admitted the existence of the debt as a subsisting demand against him as the administrator of Mrs. Morris, which he was liable to pay, but repeatedly declared his willingness to pay his part of it, if Mr. Barnard, the other heir-at-law, would consent to pay his portion of it. But this condition was one which did not apply to the case, or refer at all to his liability for the whole of the debt as the administrator of Mrs. Morris. As her administrator he was solely liable, and was the only party bound to pay the whole of it to the plaintiff. As between them, Mr. Barnard had nothing to do with the matter ; and his acknowledgment that the account was still due and ought to be settled, and that he desired to have it paid, was the only acknowledgment that could revive it. The admission or repudiation of it, by Mr. Barnard, had nothing to do with it, and in this connection, and for this purpose, could have no effect, one way or the other, upon it. An administrator is not bound to plead the statute of limitations, and Mr. Burton's admission would not only bind the estate of Mrs. Morris in his own, or in the hands of a succeeding ad- ministrator, but would bind Mr. Barnard, the other heir and distributee, also. In the attempt to settle these accounts between themselves in a spirit of friendship and accommodation, the plaintiff in the latter case was not dealing with him as a coheir with Mr. Barnard, but as the administrator and sole representative of Mrs. Morris in the- matter, and he was the only person who could charge the estate by any declarations or admissions that could be made in regard to it. I, therefore, contend that the acknowledgment is much stronger in the latter than in the former case, if any distinction in their legal effect is to be made between them; on which, however, I do not insist, as my opinion and advice have always been that both accounts are barred by lapse of time, and that the acknowledgment in neither case is sufficient to take; it out of the operation of the statute. As to the adjudged cases in our own State, it is difficult, if not impossi- ble, perhaps, to extract any precise uniformity of principle or ruling from them on this point, or to reconcile them altogether witli each other, on a critical examination of them. But the later and better considered case of Chambers v. Fcnnimore's Admr., 4 JInrr. .'372, recognizes the principle for which I have contended, and is in accordance with the ruling in the more recent cases in the other States, the lung list of which I have already cited. Tn that case the question was, whether an express promise to pay, in addition to the acknowledgment of the debt, was necessary to revive BURTON, INDORSEE, v. ROBINSON. 267 ledgment, or a distinct admission of the existence of the debt as a subsisting demand, is sufficient to take the case it &a against an administrator, to which Booth, Ch. J., in delivering the opinion of the Court, said : "An unqualified and unconditional acknow- ledgment of a present subsisting debt, and that the party is liable and willing to pay it, has always 1 been held in this State to take a case out of the act of limitations;" and " an express promise to pay is not necessary, either by the original party, or by his personal representative ;" and it is to be hoped that this case will hereafter be followed in our future decisions on this question. Jn the case of Newlin v. Duncan, 1 Harr. 208, T. Clay- ton, Ch. J., admits and regrets that the law on this subject is left in a confused and unsettled state, and he correctly argues to show that a sub- sequent acknowledgment operates as a waiver of the statute, and that the statute does not extinguish the debt. In some cases it has been held that the limitation of the act proceeds on the presumption that the debt has been paid. But this is not so ; for it is simply an arbitrary, though a wise rule, established by positive law, and proceeds on grounds of public policy alone that public policy which is expressed in the legal maxim, interest reipublica: sit finis fitiutn, and nothing more. That the subsequent admis- sion does not operate to revive a debt, or extinguish the obligation, but merely as a waiver of the bar of the statute, is further proved and illus- trated by the fact, that if the defendant does not specially plead the statute in bar of the demand, the plaintiff recovers as a matter of course, not- withstanding the lapse of time, which could not be the case if the law, which is explicit and positive in its provisions, presumed payment after the expiration of the time limited for the action, and the original obliga- tion was thereby discharged. Mr. Cullen, in reply, denied that anything more than a mere acknow- ledgment of a present subsisting debt was necessary to take a ease out of the operation of the act of limitations. Neither an express promise to pay, nor an admission of a present legal liability, or of the willingness of the party to pay the debt, is necessary for this purpose. Any admission that the debt exists is an admission of a legal liability to pay it; and from this liability the law implies a promise to pay it, whether the party is wil- ling or not. The force and effect of the admission does not depend on the will of the party, but on its extent and effect as a recognition of a sub- sisting demand at the time when it is made. But this has nothing to do with a qualified or conditional acknowledg- ment; and Mr. Burton's, in the second case, was clearly and conclusively of that character. He uniformly refused to pay or settle the account of Mrs. "NVaples, as the administratrix of her husband, H. C'. Waples, with- out the sanction and consent of Mr. Barnard to pay his purt of it ; and in every instance found or stilted in the special verdict it appears that ho expressly prescribed that as the sole condition on which he would admit 268 SUPERIOR COURT. out of the operation of the statute of limitations ; but if they were satisfied that the written agreement which had been given in evidence between the plaintiff, as the admin- istrator of Miers Burton, deceased, and the defendant, was signed by the latter, then the Court considered it such an acknowledgment of a subsisting demand on the promissory note in question, as would remove the bar of the statute. NOTE. Houston, J., did not sit in this case, having been of counsel for the defendant. the validity of it, now it was barred against the estate of Mrs. Morris. But, in the other case, the acknowledgment of Mrs. Waples was very dif- ferent. She admitted directly, and without qualification, that his account was right, although she afterwards said in a jocular manner, and with evident hesitation and mortification, that it was large, or larger than she supposed, and that she must plead the statute of limitations to it, unless he would waive that defence on his part to her claim against the estate of Mrs. Morris, which he at once declined to assent to. And here let me ask, what had this clairti to do, or what connection had it with his account in his own individual right against the estate of H. C. Waples, deceased? The one was no defence to the other, and they could not be set off against each other ; and this, we have reason to suppose, Mrs. Waples was too well informed not to know when she made that proposition. It was, therefore, a mere pretence or pretext on her part, after making the un- conditional admission that his account was correct, and still subsisting against the estate of her husband, to qualify it by an after thought, and by attaching a subsequent condition to it, which had no legal or necessary connection with it ; and in this respect her acknowledgment differs most materially from the conditional and qualified acknowledgment of Mr. Burton in the former case. The Court, without delivering any opinion, afterwards, at the same term, directed the following decision to be entered and certified to the Court below in each of the cases: The questions of law directed in this cause by the Superior Court of the State of Delaware, in and for Sussex County, to be heard before all the judges in the Court of Errors and Ap- peals, to wit, whether tho statute of limitations pleaded by the said de- fendant is a bar to the action of the said plaintiff' in this cause, having been heard before all the judges in the Court of Errors and Appeals, and the same having been debated by counsel, and duly considered by all tin- judges aforesaid, it is hereby considered and decided by the said judges in the said Court of Errors and Appeals, that the statute of limitations, pleaded by the said defendant, is a bar to the action of the said plaintiff in this cause; and it is hereby ordered that this decision be certified to the said Court below, &c. CORDREY v. CORDREY. 269 AARON CORDREY and others v. BETSEY CORDREY and another. The formal execution of a will being established, the presumption of law is in favor of the capacity of the testator to make it. Testable capacity in a testator amounts to nothing more than a know- ledge of what he was about and how he was disposing of his property and the purpose so to do it, when he made the will. The simple ques- tion therefore is, did the testator know and understand what he was about when he made the will ; that he had a family, and the relation in which he stood to it, and that he had property, and what it was, and a will, or desire to devise it as disposed of; if so v then it is his will. What degree of influence will vitiate a will. ISSUE of devisavit vel non, ordered by the Register of Sus- sex County, to try the question whether the paper writing purporting to be the last will and testament of Josiah Cor- drey, deceased, is, or is not, the last will and testament of Josiah Cordrey, deceased. The will in question bore date September 18th, 1850, and the deceased left to survive him a widow and five children, viz., Betsey Cordrey, and Aaron, William, John and Nancy Cordrey, and Grace the wife of Daniel Hast- ings. To William, Nancy and Grace he bequeathed a legacy of one hundred dollars each, and to Aaron fifty dollars. All the rest and residue of his estate, real and personal, he devised to his wife, Betsey Cordrey, for life, and after her death, to his son John Cordrey in fee. Cyrus C. Windsor was produced as a witness by the propounders of the will, and testified that he wrote it for Josiah Cordrey, by his request, as his last will and testa- ment, at his office in Laurel, and that he came alone to his office for that purpose, but could not say who came to town with him on that occasion. He had several times be- fore that told him that he wanted him to do some writing for him. The will was read to him after it was written, and he approved it and signed and executed it, and the witness, together with David K. Wolfe and John Moore, signed 270 SUPERIOK COUKT. it in his presence as subscribing witnesses. He was at that time of a sound and disposing mind and memory. On cross-examination the witness stated that he after- wards drew another will for him at his office by his re- quest, but he never executed it. He told John Cordrey, one day, he had better bring the old man down to execute it, as it was better for him than the other will, but the old man never came. He was sixty-five or seventy years of age, and was intemperate in his habits, and he never knew him to transact any business himself of importance. His eon John lived upon and carried on the old man's farm for him, and attended to most of his business. He (the witness) asked John to pay him for writing the will, which he did about two years afterwards, in the old man's life- time. His reason for asking John to do this was because the old man seldom came to town, and John generally at- tended to his business for him. The reason the old man assigned to him for making the will as he did, was because John had been a good and faithful son to him. David R. Wolfe testified, that he signed the will as a subscribing witness at the request and in the presence of the testator, and heard him say that it was. his last will and testament. Witness could not say that he ever had much mind, but he thought he had as much tluen as he had ever had since he knew him. If he hud been drinking any at that time he did not discover it. lie had known him twenty-five years, but had never known him to buy or sell anything, or to transact any business. John Moore testified, that lie also signed the will as a subscribing \\if- ness in the presence of the testator. He had as much mind then as he ever had, he thought. He never knew him to transact any business. When he first knew him, nearly thirty years ago, his son Elijah attended to his i'arrn, and his wife or some one else was generally with him when any business was to be done from home. He was always a weak-minded man, but he could not say whether he had sufficient strength of mind to make a will, because he did CORDREY v. CORDREY. 271 not know how much strength of mind the law required to make a will. He once went to his house to trade for a horse, and he traded with his wife and his son John. He had nothing to do with it or to say about it, and paid no attention to it. The will was then offered in evidence and read to the jury, and the parties setting it up here rested. W. Saulsbury, for the caveators : We shall prove that the old man Josiah Cordrey never had sufficient mind to make a will, and never had sufficient mental capacity to transact any business, and was never permitted by hie family to attempt such a thing for that reason. We shall also prove that he was entirely in the hands and under the control of his son John for many years before his death, and was worth eight or ten thousand dollars, all of which, with the exception of three hundred and fifty dol- lars bequeathed to his other four children, is devised to his widow for life, and after her decease to him in fee simple. The counsel then proceeded and called several witnesses, who testified that the testator was always possessed of a very weak mind, and never transacted any business him- self for many years before his death, either on his farm or away from home. They also proved that insanity had existed in his family, and that his mother was insane for several years before her decease ; that the testator was intemperate in his habits, and had still further enfeebled and impaired a mind naturally weak by frequent and ex- cessive indulgence in the use of intoxicating liquors, and that his children had all been dutiful, affectionate, and kind to him ; but they had all married and left him, except his HOII John, who had continued with him, by whose industry, care, and diligence, and that of his wife, he had accumu- lated a considerable portion of his property. For the caveators it was argued that the evidence clearly indicated that the testator was a man of extreme weakness and imbecility of mind, and that to make a valid will, the 272 SUPERIOR COURT. testator must be shown to possess a sound and disposing mind and memory, and to be able to clearly comprehend and fully understand what he is doing when he executes it ; it is not sufficient that he can answer familiar ques- tions intelligently and properly, or is able to converse rationally on ordinary matters. 1 Jarm. on Wills, 50; Duf- fidd v. Morris, 2 Harr. 375. Upon the other side it was contended, that the will had not been successfully impeached either upon the ground of imbecility of mind or undue influence. As to the degree of capacity necessary to make a valid will, 1 Wms. on Exrs. 16, 36 ; 2 Harr. 379 ; 1 Jarm. on Wills, 29, 53 ; Shelf, on Lunacy, 39, 275 ; 4 Mass. 593 ; and 1 Wms. on Exrs. 21, were cited. The property of a person might be committed by a court of chancery to a trustee, on the ground of the incapacity of the individual to manage and take care of his affairs, and yet a will of such a person made in that con- dition of mind may be sustained as a valid will. 26 Wend. 255; 1 Jarm. on Wills, 53; 21 Vcrn. 63. And if the jury should doubt as to the ability of the testator to make a will, the presumption of law was in favor of sanity and capacity, and therefore, they should find in favor of the validity of the will. 6 Greenl. Cruise, 14 ; 1 Jarm. on Wills, 31 ; 7 Pick. 94. The Court, Harrington, Ch. J., charged the jury : The ques- tion presented in this case has been frequently before this Court, and we have therefore but little more to say upon it than we have often had occasion heretofore to say in regard to it. The formal execution of the will being es- tablished in accordance with the provisions of the statute on the subject, the presumption of law is in favor of the capacity of the testator to make the will. But to speak more specifically as to the degree of capacity required for this purpose, when it has been assailed by rebutting testi- mony, the Court remarked in the case of ('/"i/K/fcr . And that the same bad been rendered by default, without the return of service having been first verilied by the affidavit of the constable in writing. 276 SUPERIOR COURT. But the Court held that as it was stated in the record that the action was on a proved account, it must be in- tended and presumed, in the absence of anything appear- ing 1 to the contrary, that the account was properly proved or probated; that it also appeared from the record that the justice had examined the account of the plaintiff before giving judgment, and that there may have been no book of accounts kept by the plaintiff, which is often the case, and which would dispense with the necessity of its pro- duction, and which examination by the justice the Court thought sufficient to meet the second exception. That no verification of the return of service of the summons by the constable was necessary in this case, as the exceptants had previously appeared to the suit, which hud always been held sufficient to dispense with the necessity of such veri- fication ; and that the judgment must therefore be affirmed. DOE d. THOMAS W. INV.RAM and CAROLINE his wife, late CAROLINE HEMPHILL, and VIRGINIA HEMPHILL, v. RICHARD ROE, casual ejector, and JOHN A. GIRARD and ELLEN his wife, lute ELLEN HEMPHILL, tenants in possession. When a devise cr bequest is to children, or to brothers and sisters gene- rally, as a class, without mentioning them individually by name, and the time appointed in the will for the possession or distribution of the property is deferred until after the death of the Ustator, or is depen- dent upon a future contingency which does not occur until after his decease, it will embrace all the children, or all the brothers and sisters, or, in other words, all the objects who compose rtie class in being when the contingency happens, or the appointed period for the enjoyment <>r distribution <(' the property arrives, whether born before or after the death of the testator. Hut this is only a rule of legal or judicial con- struction for the. interpretation of such devises, and is therefore subject to the intention of the testator to the contrary, when so indicated in the will itself; as where the devise is to the children, or to the brothers and .Msters then livir.g, or to nuch as may be born before the testator's death, or he has indicated bis intention, either by naming a part of DOE d. INGRAM ET AL. v. G1RARD ET AL. 277 them or in some other way, to limit and restrict the benefits of the de- vise to a portion of the general class only, the rule is otherwise, and such as are named or thus indicated will alone be included in the devise. The testator had devised certain portions of his real or personal estate in- dividually, and by name, to his several grandchildren living at the date of his will, and then added, " In case I should have any grandchildren or grandchild born between the date of this will and my death, I give and bequeath to every such grandchild so born, on attaining the age of twenty-one years, the sum of five hundred dollars," and in a subsequent item of the will he added : "In case any of my grandchildren herein- before named or referred to shall die before the age of twenty-one years without leaving issue, then the share or portion of the grand- ch'M so dying to go to his or her surviving brothers and sisters, to be equally divided between them." One of the grandchildren in being at the date of the will, and named in it, died without issue after the death of the testator. Held that such of his brothers and sisters only as were born before the death of the testator could take any share in the portion of the estate so devised to him by the testator. vvas an action of ejectment brought by the lessors of the plaintiff, Thomas W. Ingram and Caroline his wife, late Caroline Ilemphill, and Virginia Hemphill, to recover their undivided shares in a two-story brick messuage or tenement and lot of ground thereto belonging, situate on King Street, in the city of Wilmington, devised by William Ilejnphill, deceased, in his will to his grandson, William Hemphill, then in the possession of John A. Girard and Ellen his wife", late Ellen Ilemphill, the defendants. The facts were submitted for the decision of the Court upon a case stated, which was as follows : William Ilemphill in and by his last will and testament, duly made and published in his lifetime, and duly proved and allowed after his death, devised and bequeathed as follows, viz. : Item 2d. I give, devise and bequeath to my grandson, William Hemphill, his heirs, executors, administrators and assigns, on his attaining the age of twenty-one years, all my other two-story brick messuage or tenement and lot of ground thereto belonging, with the appurtenances, situate on King Street aforesaid, adjoining the last-mentioned mes- suage, and being the same which I bought of Michael 278 SUPERIOR COURT. Lavery, and also the sum of five hundred dollars in cash, and I do will and direct that the rent of said house and lot, after deducting therefrom the repairs and taxes, and the interest on said sum of five hundred dollars, from my de- cease, he applied to his maintenance and education during his minority, by my executors. Item 3d. I give and bequeath to my grandchildren, Ellen Ilemphill, Stephen Girard Ilemphill, Elizabeth Ilemphill, Sarah Ralston Jones, Maria Jones, and James Ilemphill Jones, on their respectively attaining the age of twenty-one years, the sum of five hundred dollars each; and I do will and direct that the interest of said sum of five hundred dollars, from my decease, be applied by my executors to the maintenance and education of my said grandchildren respectively during his or her minority. Item 4th. In case I should leave any grandchildren or grandchild born between the date of this will and my death, I give and bequeath to every such grandchild so born, on attaining the age of twenty-one years, the sum of five hundred dollars; and I do will and direct that the in- terest of said sum of five hundred dollars, from my decease, be applied by my executors to the maintenance and educa- tion of such grandchildren or grandchild respectively du- ring his or her minority. Item 5th. In case any of my grandchildren hereinbefore named or referred to shall die before attaining the age of twenty-one years, leaving issue, then I will and direct that such issue shall take the share of my estate which his or her or their parents would have taken tinder this will ; and in case such grandchild so dying shall not leave lawful issue, then I give, devise and bequeath the estate hereby given, devised and bequeathed to such grandchild, to the surviving brothers and sisters of such deceased grand- child, their heirs, executors, administrators and assigns, to be equally divided among them, share and share alike. And the parties for greater certainty refer to said last will and testament, of record in the oifice of the Register for the 1'robate of Wills in and for New Castle County, and agree DOE d. INGRAM ET AL. v. GIRARD ET AL. 279 that the same and all the provisions therein contained shall be taken as part of the case stated. The said will was dated November 9, A. D, 1821, and William Hemphill, the testator, died February 10, 1823. William Hemphill, Jr., the devisee named in the item first above set forth, was born November 12, 1817, and died during the year 1836 without issue, leaving to survive him, at the time of his decease, the following brothers and sis- ters, viz. : Ellen, wife of John A. Girard (who are the ten- ants in possession), Stephen Gr. Hemphill, Elizabeth Hemp- hill, Maria Antoinette Hemphill, Virginia llemphill, and Caroline, wife of Thomas R. Ingram; the said Virginia and Thomas 11. Ingram and wife being the lessors of the plaintiff. The surviving brothers a'nd sisters were born respectively at the dates following, viz. : Ellen, on the 19th of January, 1814; Stephen, on the llth of January, 1819; Elizabeth, on the 4th of February, 1821 ; Maria Antoinette, on the 26th of September, 1826 ; Virginia, on the 23d of August, 1828, and Caroline, on the 2d of June, 1831. The aforesaid testator was at the date of his will, and thence until and at his decease, seized in his demesne as of fee of the premises devised in the item first above set forth to William llemphill, Jr., which premises are the same for which the defendants defend tbe possession. It is agreed that upon the above statement of facts the Court shall consider whether the lessees of the plaintiff, at the time of the demise, or either of them, were seized of or entitled to any estate or share in or of the said premises, and that judgment shall be entered according to its opinion in the premises. J). M. 'Bates, for the plaintiff': Caroline, the wife of Thomas W. Ingram, and her sister, Virginia Hemphill, plaintiffs in the action, are granddaughters of William llemphill, the testator, and sisters of William llemphill, his grandson, the devisee named in the first item of the will as above stated. Thev were neither of them born, however, at the date of the will, or at the time of the death 280 SUPERIOR COURT. of their grandfather, William Hemphill, the testator; but they were both born* before the death of their brother, William Hemphill, the devisee; and the only question for the Court to decide is, whether, under these circumstances and the correct construction of the fourth and fifth items of the will, they are entitled to any portion or share of the premises devised to William Hemphill, their brother and the grandson of the testator, in the second item of the will, being the first item above stated, on his death without issue. I shall contend that they are. The words on which this question turns are to be found in the fifth item of the will, which are as follows : " In case any of my grandchildren, hereinbefore named or re- ferred to, shall die before attaining the age of tweutyone years, leaving issue, then I will and desire that suah, issue shall take the share of my estate, which his, or her, or their parents would have taken under this will ; and in case such grandchildren so dying shall not leave lawful issue, then I give, devise, and bequeath the estate hereby given, devised, and bequeathed to such grandchildren, to the surviving brothers and sisters of such deceased grandchildren, their heirs, executors, administrators, and assigns, to be equally divided among them, share and share alike." William Hemphill, the grandson and original devisee of the pre- mises in question, survived the testator several years, and died without issue; and in the meanwhile, that is to say, between the death of the testator and his death, his sisters, Virginia and Caroline, were born, and, as they claim under the latter clause of the item just read, of course the time when they were to take and enjoy their part of the estate devised, as surviving sisters of William Hemphill, the devisee, was on hi.s death without issue, which was the time appointed by the will when his surviving brothers and sisters were to take the estate to be equally divided between them. But the well established principle of con- struction on this point is, that when the limitation over is to "surviving brothers and sisters/' and the period of dis- tribution or enjoyment of the estate is postponed, or is DOE d. INGRAM KT AL. v. GIRARD ET AL. 281 appointed by the will to take effect after the testator'a death, all who answer to this description, at the time ap- pointed for the distribution or enjoyment, are included m the devise, and not such only as were born at the date of the will, or at the time of the death of the testator, as wag At one time held ; so that, surviving brothers and sisters, who were born in the meantime between the death of the testator and the death of the devisee for life, are let in to take equally with the surviving- brothers and sisters who were born before the death of the former. 2 Jarm. on Wills, 56, 58; 3 Brown's Ch. Ca. 404; Comp. 309; 5 Ves. Jr. 136; 15 Idem, 122; 1 Cox Rep. 327; 1 Brown's Ch. Ca. 536 ; 13 East, 526 ; 4 Paige's Ch. R. 47 ; 2 Atk. 329. Patterson, for the defendants : The rule of testamentary construction relied upon by the plaintiffs does not apply in this case, because the cases cited either relate exclusively to bequests of personal property, or, if they have reference to devises of real estate, they proceed upon some apparent intent of the testator, or some particular circumstance from which it was fair to infer that such was his intention. The case cited from 2 Atk. 329, was a case of this descrip- tion. It was a bequest of personal property to a son of the testator's daughter, and if he died before twenty-one, then to the other children of the testator's daughter ; and she had no other child or children born before the death of the testator; for which reason the Court held that he must have contemplated after-born children of his daugh- ter. And so all the otlicr cases cited were analogous cases, pertaining to personal bequests, or, if relating to real estate, were accompanied with words of qualification in the devise, such as " to issue begotten, or to be begotten,'' or some equivalent phrase or special provision in the, will, which clearly indicated an intention on the part of the testator to let in or provide for the after-born children. But, admitting the rule to be a sound one, it applies only to surviving children ; but in this case the devise over is to surviving brottars ami sixtcrx of the deceased grand- ly 282 SUPERIOR COURT. child. And there is reason for the distinction suggested, because the rule which enlarges a gift to children, so as to comprehend all who come into being before the period of distribution, is peculiar to those favored objects. For, ac- cording to the general rules of law in regard to the vesting of estates in other cases, and which have been applied to all other classes of relations and to other objects, the de- vise would clearly be confined to such children only as were living and in being at the death of the testator. 2 Jarm. on Wills, 52, 74, 78. But Mr. Jarman himself ad- mits, on the authority of several cases referred to by him, that we are forbidden to apply the rule in question to de- vises of real estate even to children : 2 Jarm. on Wills, 638, 640 ; although he afterwards a(Jds, that it is difficult to dis- cover any ground for the distinction, unless the reason is to be found in the greater tendency which the law has towards an immediate vesting of the estate and interest of the devisees in the one case than in the other. But let us recur again to the matter of special intent deducible from the context of the will to which I have before referred. Is there any such intent apparent upon the face of this will ? I think there is ; but it is against the admission of the surviving brothers and sisters born after the testator's death. At the time of making his will he had two sets of grandchildren, the children of his daughter, Mrs. Jones, and the children of his son, Mr. John llemphill. Of the former there were five, and of the latter there was the same number of grandchildren living at his death, William, Ellen, Stephen, and Elizabeth, and Maria Antoinette. The four first named were born before, and the latter after the making of his will, but before his decease. The other two, Virginia and Caroline, were born after his death, but before the decease of their brother William. And yet, with the four first named already born at the date of his will, and evidently anticipating that others might thereafter be born, he yet saw proper in the fourth item of his will to make provision for the living and his after-born grandchildren in these restricted terms : "In DOE d. INGRAM ET AL. v. GIRARD ET AL. 283 case I should leave any grandchildren or grandchild born between the date of this will and my death, I give and bequeath to every such grandchild so born, on attaining the age of twenty-one years, five hundred dollars," &c. And immediately afterwards, in the succeeding item of the will containing the devise in question, follow these words : " In case any of my grandchildren, above named or referred to, shall die," &c., that is to say, without lawful issue, then he gives and devises the estate devised to "such grandchild so dying, to the surviving brothers and sisters of such deceased grandchild." But the grandchildren above referred to were already expressly spoken of and referred to by him either as grandchildren already born at the date of his will, or such as might be born in addition to them, between that time and the period of his death ; and the limitation over, on the death of William without lawful issue, being expressly confined to this particular class of his grandchildren, there is no reason in principle for, and no adjudged cases to warrant, the enlargement of the objects of the devise by operation of the general words his " surviving brothers and sisters," so as to embrace the grandchildren born after the testator's death. On the con- trary, all the authorities are against such a construction. Nor does it weaken this view of the case that the devise over to the surviving brothers and sisters is in verbis de. present!, " I give, devise, and bequeath to the surviving brothers and sisters," &c., because a will speaks from the death of the testator, and words of present donation apply naturally to donees then in existence. There are other terms and provisions contained in the will which favor this view of the devise in question. In the introductory clause of it he confers certain powers upon his executors in regard to investing the proceeds of certain portions of his estate for the family, "or such of them," to use the language of the testator, " as are by this will to have the benefit thereof;" clearly indicating by this that he did not design to make a general provision for all his grandchildren without regard to the periods 284 SUPERIOR COURT. of their birth ; but only for such as were then born or might be born before his death. In the first item, he gives to his granddaughter Elizabeth II. Jones, one thou- sand dollars, and a house and lot; in the second item, he gives to his grandson William II. Jones, five hundred dollars, and a house and lot; in the third item, five hun- dred dollars, and a house and lot, to his grandson Wil- liam Ilemphill; and in the fourth item, to the following grandchildren by name, Ellen Ilemphill, Stephen Girard Ilemphill, Elizabeth Ilemphill, Sarah R. Jones, Maria Jones, and James II. Jones, five hundred dollars each ; from which it is evident that the testator did not intend to put all his grandchildren even then born, upon an equal footing in his testamentary dispositions towards them, and that he did not mean to provide even for these equally, as a class having equal claims upon his bounty, his favor and regards. And if he saw proper thus to dis- criminate even between these, who shall say, after reading the positive and explicit restriction contained in the fifth item of his will, that he had not the right and did not in- tend to limit and confine this discrimination of his subse- quent bounty and beneficence to such grandchildren as should afterwards be born between that time and his death ? Besides, such words of survivorship can never have the effect to enlarge the operation of the devise against the express provisions of the will, or the obvious intention of the testator apparent upon the face of it. D. M. Bates: Virginia and Caroline were born after the death of the testator, it is true, but before the death of their brother William Ilemphill, the devisee for life, as it turned out to be. The limitation over after his death was therefore, by the terms of the will, a contingent limit- ation. I do not know, however, that this is material in the case. Tt was a contingent limitation, because the de- vise over after his death without issue, was to his nun"it:ii>g brothers and sisters, which was' at the time uncertain. This being the case, I shall again state the general rule of DOE d. INGRAM ET AL. v. GIRAED ET AL. 285 construction on which the plaintiffs rely, and it is this : where a devise or bequest is made to a class of persons to vest on a future contingency, it takes in all who answer the description, or are comprehended within the class when the contingency occurs, even though they may have come in esse since the death of the testator. There are abundant authorities for this, both in devises of real and in bequests of personal estate, and I have already cited a number of them. The reason of the rule is a very simple and very sound one. It is because the objects of the tes- tator's bounty in such a case are not individuals, but con- sist of and comprehend a class, and the consideration on which it proceeds is the common and equal relation in which they all, as a class, stand to the testator, or some one else, and therefore all answering the general descrip- tion, or comprehended in the common relation when the contingency happens, are to take as equal objects of the testator's bounty. In addition to the cases before cited in the opening, I will refer the Court to the following au- thorities in support of this principle and rule of construc- tion. Ellison v. A irey, 1 Ves. *SV. Ill; Con gr eve v. Con-' grece, 3 Bro. Ch. Ca. 530; Leak v. Robinson, 2 Merh\ 362; Dearisne v. Mellon, 3 Bro. Ch. Ca. 537; Clark v. Clark, 11 Eng. Ch. Rep. 318; Western v. 'footer,! Mete. 299; 2 Jarm. on Wills, 74 ct seq. This rule, which has not been im- pugned in itself upon the other side, applies equally to devises of real estate and to bequests of personal property. The cases which I have cited from 3 Bro. Ch. Ca. 530 ; Comp. 309; 1 Cox, 326; and 2 Meriv. 362 ; were all cases of devises of real estate. And the rule is the same whether the limitation over is to children, or to brothers and sinter* ; because in the first instance, the objects are designated by their filial, and in the latter, by their fraternal relation, and are substantially the same. As to the aid which the other side imagine they have derived in discovering the inten- tion of the testator, which is to override this rule of con- struction ; from the context of the will and the verbal criticism and dissection of detached phrases and passages 286 SUPERIOE COURT. contained in it, one remark will suffice, I think, to dispose of the whole of it. They consider and interpret the lim- itation or provision contained in the fifth item of the will, and which is confined to grandchildren born after the date of the will and before the death of the testator, to apply to the premises in question devised to William Ilemphill, the grandson, whilst I understand and maintain that it was only intended to provide that if there should be any grandchildren so born, they should have a legacy of five hundred dollars each, the same as the grandchildren al- ready born at the date of the will ; and although the tes- tator refers in the succeeding clause of his will to this item, when speaking of his grandchildren, as "before named or referred to," yet there is nothing and can be no- thing in a mere reference like this, to indicate an inten- tion to exclude the grandchildren born after his death, from taking a share of the house and lot devised to his grandson William Ilemphill, on his death without issue, or to warrant a departure from the well-established rule for which I have contended, in the construction of this devise. Houston, J., delivered the opinion of the Court: This case has been argued twice before the Court; once before the present Chief Justice came upon the bench, and again at this term. The question involved in it has, therefore, been maturely considered and well discussed by the coun- sel on both sides, and I now proceed to announce the opinion of the Court upon it. There is no doubt about the general principle, or abstract rule of legal construction, in regard to the testamentary dispositions, stated and relied upon in this case by the counsel for the plaintiff. It is true, it was a f one time considered that only the children who were in being at the time of executing the will could take under such a devise, and that it was afterwards held, that as the will took effect from the death of the testator and not before, all who were born and in being at that time were equally DOE d. INGRAM ET AL. v. GIEARD ET AL. 287 entitled to the benefits of it. But later decisions have still further enlarged these devises in certain cases, both in relation to real and personal estate, and the general rule of construction, as stated and deduced from the authori- ties cited, is now too well established to be doubted or denied. Still, it is only a rule of legal or judicial con- struction, in the interpretation of such devises, and as there is nothing of a technical character in the force and operation of it, like other general rules of testamentary construction, it has always been held to be subject and subordinate to the intention of the testator to the contrary, when so indicated in the will itself. 2 Jarm. on Wills, 74; Annablcs v. Patch, 3 Pick. 364; Dingley v. Dingley, 5 Mass. 537. In the latter case, which was a devise similar to this, Parsons, Ch. J., remarks: "The expression in the will is general, ' to be divided between his, Abner's, sons,' which includes all his sons. If he had intended to confine his bounty to his grandchildren then living, he would have so limited it, either expressly, or by naming them, or in some other way." The general rule, which has been correctly stated, we understand to be this : When the devise or bequest is to children, or to brothers and sisters generally, as a class, without mentioning them individually by name, and the time appointed for the possession, or distribution of the property, is deferred until after the death of the testator, or is dependent upon a future contingency which does not occur until after his decease, it will embrace all the chil- dren, or all the brothers and Bisters; or, in other words, all the objects who compose the class in being when the con- tingency happens, or the appointed period for the distribu- tion or enjoyment of the property arrives, whether born before or after the death of the testator. But, as we have before observed, this is not the rule, for it has no applica- tion to the ease, when the testator has expressly limited his bounty to a portion of the class, us to the children, or the brothers and sisters then living, or such as may be born before his death, or he has indicated his intention, 288 SUPERIOR COURT. either by naming a part of them,. or in any other way so to limit or restrict the benefits of the devise to a portion of the general class only. And if such only is the extent and operation of the rule in question, is there no purpose or intention apparent in the several items and provisions of this will, in relation to his grandchildren, which indicates a design, on the part of the testator, to restrict every devise and bequest contained in it, so far as it relates to them, to a part of them only; that is to say, to such only as should be in existence at his death? We think -there is; for, in the first place, all of them who were born and in being at the date of the will, are respectively and individually named and referred to in eome item or other of it, and they are severally provided for by immediate gifts of real or personal estate, or both, as his grandchildren then living at the date of his will. But not content to stop here, he afterwards proceeds, in a sub- sequent provision of the will, to -say : " In case I should have any grandchildren, or grandchild, born between the date of this will and my death, I give and bequeath to every such grandchild so born, on attaining the age of twenty-one years, the sum of five hundred dollars," which was in amount just the same legacy which he had before bequeathed to several of his grandchildren respectively, who were then in being at the time of making his will. If he did not intend, so far as he has thus proceeded in the preparation and expression of his will witli regard to them, to limit and confine his bounty towards them to such as were then born, and might be born, between the date of his will and the time of his death, why should he have employed terms of such unequivocal and positive restric- tion in this, the only clause of his will which contains any express or necessary reference to his prospective and future grandchildren at all? And in the next succeeding item he adds : " In case any of my grandchildren, hereinbefore named or referred to. shall die before the age of twenty-one years, leaving issue," then the issue are to take the share or portion of his estate which the parent would have taken DOE d. INGRAM ET AL. v. GIRARD ET AL. 289 if living; but if any should die without issue, then the share or portion of the grandchild so dying is to go to his or her " surviving brothers and sisters," to be equally divided between them. The words, "grandchildren here- inbefore named, or referred to," seem not only to be sus- ceptible of a very simple explanation, but also to have a very plain atid appropriate meaning and relation to what has before preceded them in the will; for all his grand- children who were then born, and whom he could therein- before name, he had already severally named in his pre- ceding devises, or bequests, to them individually and respectively; and such as he could not name, from the fact that they were not yet in being, he had referred to as his grandchildren who might be born between the date of his will and the period of his death. And having thus indi- cated and expressed a clear and explicit intention, as we think, throughout the previous provisions of his will, to limit and restrict to such of his grandchildren as were then born, and those who should thereafter be born before his death, all the immediate and prospective, or vested and contingent limitations of his bounty, whether given to them presently and severally in the first instance, or col- lectively and in common, by way of remainder, afterwards, it seems to us it would be extremely unreasonable, if not absurd, to suppose that he would suddenly drop and depart from his original and well-defined intention, as thus exhi- bited and preserved throughout the preceding portions of it, almost in the last four words of his will, having any relation to these parties, when he comes to wind up and finally dispose of the remote and ultimate contingencies of these devises and bequests to the " surviving brothers and sisters" of his grandchildren, thereinbefore named, or re- ferred to, as then existent, or to be born before his death. But read in the connection in which these latter words stand with the foregoing provisions of the will, they have relation to the objects, or the grandchildren before named or referred to, and consist of the same class to which his bounty had been expressly limited and restricted in the 290 SUPERIOE COURT. preceding provisions of it, in regard to these grandchildren of the Hemphill stock; for the words, "surviving brothers and sisters," in this case, import and mean the same per- sons, as if the testator, instead of adopting this phrase, had used the words, "my surviving grandchildren above named and referred to, of that branch or stock;" but there being grandchildren of the name of Jones, as well as Ilernphill, who were only collaterally related, and between whom, of course, he intended to create no cross limitations over, in this or any of the other items of the will, it was more con- cise and convenient for him, in this passage of the will, to drop the relation in which they stood to himself as his grandchildren, and to speak of them as "surviving brothers and sisters," in their relation to each other. We are, there- fore, of the opinion that there is nothing in these words, in the present case, when taken in the connection and rela- tion in which they stand to the rest of the will, and when correctly interpreted and understood, which can have the effect to enlarge the operation of the devise in question, so as to include any of the surviving brothers and sisters of William Hemphill, the grandson and devisee; or (which is the same thing expressed in other words) any of the sur- viving grandchildren of the testator, born after his death. We must, therefore, give judgment for the defendants. JOHN II. FROMBERGER v. GEORGE W. KARSNER. No writ of capias ad satwfaciendum can issue on a joint judgment against several defendants, two of whom were free white citizens of the State, notwithstanding the other defendant in the judgment was a non-resi- dent, and the other two were not arrested under the writ and took no exceptions to it, without an affidavit of fraud filed. NARR in trespass for false imprisonment, to which the defendant pleaded a justification, that under a judgment FROMBERGER v. KARSNER. 291 in the Superior Court for New Castle County in favor of Rathmell Wilson for the use of the defendant, against Fromberger and two others, a writ of capias ad satisfacien- dum was issued to the sheriff of the county, by virtue of which Fromberger, one of the joint defendants in the judg- ment and writ, who was a non-resident, was arrested and detained as alleged in the narr. The replication to the plea was that at the time of the issuing of the ca. sa. Samuel Iliggins, one of the defendants against whom it issued, was a free white citizen of the State, resident therein, and that no affidavit was made before issuing the writ as required by law; to which the defendant entered a general de- murrer. Rodney, for the defendant : The plaintiff by his replica- tion assumes that a ca. sa. cannot issue against one of two persons in a joint judgment. But the question is, is the replication an answer to the plea of justification ? The fact of Fromberger's non-residence is admitted by the plead- ings in the case. The judgment is against several, and the ca. sa. issued against them all, following the judgment. The replication is in relation, however, to only one of them, and the first question to be determined is, does such a replication meet the plea of justification ? I submit that it does not. James A. BayaM, for the plaintiff: The defendant justi- fies the arrest of Fromberger under the judgment against the three joint defendants in it. Fromberger being a non- resident was arrested under the ca. sa. which issued against them all, and the question is, can a person under our sta- tute, who has a judgment against three persons, one of whom is a non-resident, issue a ca. so. upon it, which, of course, must follow the judgment and issue against them all, without an affidavit of fraud ? We maintain that he cannot; and such a writ is not only voidable, but abso- lutely void by the express terms of the statute, when issued against a citizen of the State without such affidavit. There 292 SUPERIOR COURT. is a distinction in this respect in pleading between a void- able and a void process, the latter constituting no legal justification for the arrest, while the former does. Rodney: The other two defendants in the judgment make no objection to the ca. sa. and have not been ar- rested under it. No one has been arrested but From- berger, who is a non-resident, and who cannot in his own right claim to be exempt from such a writ. Can he, then, avail himself of the exemption of the other defendants, when he has no claim to be exempt himself, and they take no exception to the process and have not been affected by it? By the Court: "We must give judgment for the plaintiff on the demurrer. Under the statute no writ of capias ad satis faciendum could issue on the judgment against the de- fendants, two of whom were free white citizens of the State, without an affidavit in conformity with its require- ments, notwithstanding Fromberger, the other defendant in the judgment, was a non-resident. The writ must pur- sue the judgment, and must include all the defendants when the judgment is against several jointly. 2 Tidd's Pr. 1027. And yet the statute enacts that no ca. ,w. shall issue against a free white citizen of the State without an allega- tion of fraud supported by affidavit. The process was therefore void from its inception, and being so, of course, it was void as to all and each of the defendants in the judg- ment. TRUSTEES, ETC., v. HOLCOMB. 293 TRUSTEES OF NEW CASTLE COUNTY COMMON, Plaintiff's be- low, Appellants, v. CHAUNCEY P. UOLCOMB, Defendant below, Respondent. An appeal from a justice of the peace, where the cause of action survives, will not abate by the death of the respondent after the appeal is taken and the transcript is filed in Court, but before citation is served upon him ; and, under such circumstances, a scire facias will lie to make hia executor a party to the appeal in Court. THIS was an appeal from a justice of the peace. The action was for rent. After the appeal was taken, and the transcript of the record below had been filed in this Court, and citation had been issued, but before it was served upon the defendant below, he died, and it was returned mortuus est. The appeal was entered to May Term, 1855, and the defendant died in the month of April preceding. An alias citation was issued to his executor in October, 185G, re- turnable to the present term. L. E. Wales, for respondent, now obtained a rule upon the appellants to show cause wherefore the appeal should not be dismissed. On the hearing the question arose whether the appeal had not abated by the death of the respondent before the service of the citation, or whether a sdir fuSlax could issue in the case, under the provision of the Constitution, to make his executor a party to the appeal. For the respondent, it was contended, that the appeal had abated by the death of the defendant below before the service of the citation, which was necessary to make him a party to the action in this Court; but if the Court should be of opinion that the appeal had not abated, and a sc ire f anas would lie, it was then too late to issue it, and the appeal should be dismissed lor the want of due dili- gence in the prosecution of it. 77(6' Court, however, discharged the rule, and held that 294 SUPERIOR COURT. the appeal had not abated under the circumstances, and that a scire facias would lie to make the executor a party respondent to it in this Court. Wolfe, for appellants. L. E. Wales, for respondent. JULIUS F. VOGLE v. THE NEW GRANADA CANAL AND STEAM NAVIGATION COMPANY OF NEW YORK. A foreign corporation is not liable to a foreign attachment under the statute in regard to such attachments. A corporation cannot put in special bail to the action, or be surrendered to bail when it appears, if its appearance could be compelled in this mode ; and the Legislature having made no provision by which this can be done, the remedy of the writ does not apply to a foreign corporation. THIS was a foreign attachment case against a corporation out of the State. The defendant obtained a rule upon the plaintift to show cause wherefore the attachment should not be stricken off, or otherwise should not be dissolved on the defendant's entering a common appearance to the action. They afterwards, at the same term, on an affidavit filed, alleging that they had reason to believe that Mr. Pat- terson, who had appeared as attorney and counsel for the defendants in the attachment, had no authority from the defendants to appear as such counsel, obtained a rule upon the counsel to show cause wherefore he should not produce his warrant and authority to appear as counsel in the cause for the defendants. Pattern m, for the defendants, now showed cause on the latter rule. Any creditor of the party attached, or attorney of this Court, as a miens curiw, may appear, and lias a right to be heard before the Court, to show that its process has VOGLE v. NEW GRANADA CANAL CO. 295 been abused, or has been irregularly or improperly issued, and should be set aside, and the Court will hear him for that purpose. Serg. on Attachm. 144, 147. It is not neces- sary, however, that I should shelter myself under this general principle of law and practice ; for, independent of this, I am prepared to prove that I have a good and valid authority for appearing as counsel and attorney in the case for the defendants. lie then called Daniel M. Bates, Esq., as a witness, by whom he proved his authority. D. M. Bates, for tlje defendants, now showed cause on the first rule. The first question to be considered is this : Can a foreign attachment be issued against a foreign cor- poration ? This is a new process, unknown to the common law, and a mere creature of the statute, and must therefore be in strict conformity with its provisions. 19 Wend. 49. But the question may arise in the argument and conside- ration of the case, whether such an attachment will lie by the custom of London ; and I maintain that it has never been so decided and that it will not. Serg. on Attachm. 61 : 1 Mod. 212; 2 Show. 372. But, whatever may be the cus- tom of London on this point, I shall contend that it is not material in this case, because it depends solely on our own statute in regard to attachments, which does not include foreign corporations ; for the word person, employed in the statute, does not and was not intended to embrace corpora- tions, or any other than natural persons. 4 Serg. $ Rawle, 563; Rev. Code, chap. 101. Domestic attachments, under our law, have no application to domestic corporations ; and, if so, there is no reason why foreign attachments under it should have any application to foreign corporations. That they are not within the letter of the law, will hardly be disputed; but it may be insisted that they come within the spirit and policy of it. On this point I shall refer to the well-settled rule of construction, to be found in Dtrar. on Stat., 10 IAIW IAbr. 703. Foreign corporations are not contemplated or embraced in the remedy provided by 296 SUPERIOR COURT. foreign attachment. Ang. Ames on Corp. 395; McQueen v. The Middldown Man. Co., 16 Johns. 4. On the second and alternative branch of the rule, in case the Court should be of opinion that the attachment will lie, the defendants have a right to enter a common appear- ance, and thereby dissolve it, because the object is merely to compel an appearance by a defendant who is out of the reach of the process of the Court. 1 Bac. Abr. 689; Serf/, on Attachm. 1, 6, 130; 2 Scrg. Rawle, 224. Why is it provided that foreign attachment in all cases may be dis- solved on entering special bail? It is because the only cases contemplated in our attachment law, and also by the custom of London, to which they shall apply, are cases of indebtedness, in which special bail could be required if the debtor was within the jurisdiction of the Court. It is true that our recent statute on the subject goes further than the former act, and seems to contemplate cases in which spe- cial bail could not be required, if the defendant was within the jurisdiction of the Court, and to include cases in which a capias ad respondendum could not issue, and in which a summons only would lie, and in which only an appearance by attorney could be compelled, as in the case of a corpo- ration. The Court cannot impose on this corporation any other or more stringent conditions of appearance than it can impose on its own citizens, without infringing that provision of the Federal Constitution which secures to the citizens of each State the privileges and immunities of the citizens of the several States. 3 tituryon the Con$f., sees. 17W, 1800; 2 H witness only wanted to humbug him, and that he cannot read or write. Charles Elzcy, another witness, states that he is the uncle of the petitioner, and has known him from his infancy, but never knew him to engage in or perform any busi- ness of aijy account, or his father to intrust any to him to do, or attend to. That he cannot read or write, and he thinks ho docs not know his letters. lie was sent to, and well tried at school, but could never learn. lie can count five, but not more ; he can count five cents, but no more ELZEY v. ELZEY. 313 money. He is very fond of intoxicating liquors, and will drink too much whenever he can get it. William G. Horsey testifies that he has known the peti- tioner twenty-five or thirty years, and that he will get drunk whenever he can get the liquor. That he saw him about noon on the day of his marriage, and that he was then very drunk <; but he saw him again about sundown, when he was not as much so ; he was then with Kendal B. Ilearn, who is a relation of his wife's; that they went to school together, and that he could never learn. Daniel Hearn also testifies that he went to school with the petitioner to two different teachers, and that he could not learn much, and that he is very fond of intoxicating liqiprs. That he has frequently known him to buy to- bacco and molasses at his father's store, and pay for it. Nathaniel Hcarn, a witness for the respondent, states that he has known the petitioner from his childhood; and that he has frequently driven his father's teams with loads of grain to town, and has dealt a good deal at his store, and bought things for the family, and for himself, usually in a small way. That he could not count money very well, but he could do it as correctly as many others he had known. That his wife was an industrious and economical woman, and would make him as good a wife as lie can get any- where ; and that he has often said, in his presence, he in- tended to get married. William W. Didaneu, another witness for the respondent, testified that he had known the petitioner twelve or fifteen years ; and that, after his father's death, lie once asked him to act as his friend, or " to stand at his back," as he termed it. Ifc suid his father had made provision for him in his will, but he did not get a sufficient support, and he wanted more money; that he- had counsel, and had been advised to get a next friend; and witness was surprised to 21 314 SUPERIOR COURT. hear him talk with so much intelligence on such a subject, for he knew him to be naturally of weak and imbecile mind. Kendal B. Hearn, a witness for respondent, stated that he knew the petitioner to visit his wife twice prior to his marriage, and that he never persuaded, urged, or threatened him, to induce him to marry her; but he seemed to be anxi- ous to marry her, and he believed he knew and understood what he was doing. That he had been to see her since his marriage, and he had heard him say that he wished to live with her, and would do so if other people would let him; by which lie understood him to refer to his relations. He had also heard him say that he wanted to go to house- keeping, but would never do it anywhere but on his father's home farm ; and if his uncle Charley did not give it up next Christmas, he would pitch him out of it. That he and his wife went home with the witness and his wife the morning after the marriage, and when they got to his house, the petitioner left his wife there and went away, and said lie would be back the next day, but lie did not come; and that he went with him twice to see his wife before the marriage, at the request of the petitioner. James Hasting, another witness on the same side, testifies that the petitioner wanted at one time to hire him to bring his wife to him, and said lie wanted to live with her, and would live with her, if it were not for his uncle, Charley Elzey. At another time he told the witness, that if he went to see his wife he should have no peace when ho came back. tiamucl Kinney also testified that lie heard him say, that he wanted to live with his wife, but other people would not let him. The witness further stated, that lie knows of nothing to prevent him from going to his wife's father's when he chooses; that he is treated kindly by his trustee, and ion of a constable so inventorying them under a writ of foreign attachment, it will have preference over executions afterwards coming to the hands of the sheriff on the same day. THIS was a case stated, between the sheriff and (-unsta- ble, the parties to it, as to tin- application of money in tin- hands of the latter, in which the opinion and judgment of the Court was asked on the following statement of tacts: The. constable had levied on certain iroods and chattels STOCKLEY v. WADMAN. 351 of Samuel G. Willey, a non-resident, four several execu- tions, issued at the suit of sundry parties against him, by 3 o'clock P. M., March 7, 1857, and took into his posses- sion, under the executions, a pair of mules, a wagon, and a horse, before 5 o'clock P. M. On the same day, between 3 and 4 o'clock, three several writs of foreign attachment came to the hands of the constable against the same party, under which he made inventories of the goods and chattels of the defendant at that time. Afterwards, at half-past 6 o'clock on the same day, sundry other writs of foreign attachment, at the suit of other creditors, came to the hands of the constable against the defendant, on which no inventories were made until after half-past 7 o'clock that evening. It was admitted that the constable did not take any of the goods and chattels of the defendant under or by virtue of any of the writs of foreign attachment which came to his hands, unless the making of the inventories under those writs amounted in law to a taking of the same by him, and that he never had them, or any part of them, in his actual possession under any of the said writs of foreign attachment. On the same day several writs of execution, at the suit of different parties against the same defendant, amounting in the aggregate to over seven hundred dollars, came to the hands of the sheriff, the first at 6 o'clock and the others at half-past 7 o'clock that evening. The plaintiffs in the writs of foreign attachment after- wards, on the 18th of March, obtained judgments against the defendant, and caused executions to be issued thereon respectively, upon which the constable sold the goods and chattels involved in the question, and after satisfying the executions first above mentioned, there was a balance of 507.48 remaining in his hands, arising from the sale; and the question for the Court was, whether this balance was applicable to the foreign attachments in the hands of the constable, and could bc'retained by him tor that purpose, or was applicable to the executions in the hands of the sheriff? 352 SUPERIOR COURT. The Court said that an execution is a lien upon and binds the goods of the defendant, from the time it comes to the hands of the sheriff; a writ of foreign attachment only from the taking of them by the officer uncjer it. But an actual taking into his exclusive possession, by the officer, was not necessary under either writ. The making of an inventory of the goods by the officer under the latter writ, with a view to the appraisement of them, as required by the act of Assembly on that subject, would constitute a taking of them in contemplation of law, and from that time the goods would be in the legal custody and posses- sion of the constable under the attachment, and he was responsible for the forthcoming of them, to be levred on and sold for the benefit of the plaintiff in the writ, when judgment should be obtained upon it. Rev. Code, 354. They were therefore of opinion that all of the attach- ments on which the constable had made his inventories of the goods and chattels in question, prior to the time of the executions coming to the hands of the sheriff, should have the preference over such executions, and must be paid before them, out of the proceeds of the sale; but the exe- cutions in the hands of the sheriff should have the pre- ference over all the other attachments in the hands of the constable, and should be first satisfied out of the balance, so far as it would go. "ROBERT ADKINS v. JAMES B. JESTER. In a trial before a justice of tho peace, if the plaintiff fails to attend, after the defendant has appeared and pleaded a st't-off, tlw 1 justice should enter a judgment of nonsuit against the plaintiff, and not a judgment by default in favor of the defendant, on his plea of set-off. CERTIORARI to Justice "Williamson. The record showed that the action was 011 account for $40. On the first day SHARP v. ARTHURS. 353 appointed for trial neither party appeared, and the case was adjourned to a future day, when the defendant appeared and pleaded a set-off for $9.50, and the case was again ad- journed to another day, when the plaintiff having again failed to attend, the justice, after hearing the allegations and proofs of the defendant, adjourned the trial to another day, and then rendered judgment by default, against the plaintiff and in favor of the defendant, for $5.47 and costs of suit. The error assigned was, that the justice should have en- tered a judgment of nonsuit against the plaintiff, without hearing the allegations and proof of the defendant on his plea of set-off. And of this opinion was the Court. Judgment reversed. JESSE SHARP v. WILLIAM ARTHURS. If a person buys goods and pays for them, but allows another to take them and sell them, retaining the entire profits over and above the original cost of them, for his own benefit, they are the property of the purchaser, and are not liable to execution process against the party re- ceiling and selling them. REPLEVIN for three carriages. The defendant pleaded and justified the taking of the property in the possession of S. M. Mongar, and as his property, as a constable, under certain writs of execution against him at the suit of P. B. Cooper. For the plaintiff, it was proved that it was his custom to buy carriages for Mongar to sell, and to allow him all the profit he could make on them, for the purpose of assisting him in the business, as his credit was insuf- ficient to enable him to procure them without the plain- tiff's aid and friendship, and that Mongar had made known to several persons the fact that he obtained the car- 354 SUPERIOR COURT. riages he was selling in this way and upon these terms, and that they belonged to the plaintiff. Their mode of conducting the business was for Mongar, who had been a carriage-maker, to go round and select from the carriage factories in Wilmington such vehicles as would suit his trade, and for the plaintiff then to order them to be deliv- ered to him, and to pay for them, which he sometimes did on the delivery of them to Mongar, and sometimes by giving his own note at sixty or ninety days for them ; the only object of the plaintiff being to befriend, and enable him to support his family by the profits arising from the sale of them, and to prevent his creditors from seizing them as his property. On the other hand, the defendant proved, by several persons who had purchased carriages of Mongar, or had other business transactions with him, that he had sold them as his own, and that they had never heard of the plaintiff's having any interest or property in them, and that on one occasion he had disposed of a sulky in payment of a debt due from him personally; and by another witness, that he had cashed notes for him to a considerable amount, which he had received in payment for carriages sold by him. The counsel for the plaintiff cited 9 Johns, 197; 4 Watts $ Serg. 197; 2 U. S. Dig. 1848; Mory on Agency, 291. The Court, Harrington, Ch. J., charged the jury : That the question involved in the case was solely a question of fact, to be determined by them from the evidence which they had heard. If, therefore, they wore satisfied from the evi- dence that the carriages in question were the property of the plaintiff, and that his money was actually paid for them, and that Mongar was merely to receive and sell them, and repay the plaintiff the original cost of them, re- taining the profit for his own benefit and the support of his family, the plaintiff was entitled to recover. But if they should believe, from the facts proved, that Mongar in fact paid for them, or was to pay for them with his own WALRAVEN v. FRANK'S ADMINISTRATOR. 355 money, or out of the money accruing from the sale of them, and the plaintiff's name was only used to obtain credit with the makers of whom they were purchased, and to prevent their seizure by Mongar's creditors, then their verdict should be for the defendant. Verdict for the plaintiff. Smithers, for plaintiff. Ridgdy, for defendant. MARY WALRAVEN v. THOMAS C. JONES, Administrator of GEORGE C. FRANK, deceased. If a woman enter into an express contract to cohabit and live in a state of fornication with a man, the immorality of the consideration will vitiate the contract, and no action will lie upon it ; and in an action for work and labor as a servant in his family, if it be proved that she lived and cohabited with him as his mistress and concubine, the law will imply no contract or promise to pay for her services. ASSUMPSIT for work and labor, with the usual pleas. The proved account of the plaintiff against the deceased was for work and labor, as a domestic servant in his house- hold, for a period of twenty-seven years, four months, and twenty days, commencing in 1828, and continuing up to the time of his death, at $3 per week, amounting to $4272, subject to a credit of $750 ; and she proved that she had performed service as such in his family during the whole of that period, and that the deceased had several times declared, and a short time before his deuth, that he had provided for her in his will, that he had left the farm on which he lived, worth ten or twelve thousand dollars, to her for her life, and after her death to her son (Jeorge in fee simple, and that it was not enough for her, so faith- ful and attentive had she been to his interests and his wants ; but no will of his could be produced after his death. 356 SUPEEIOR COURT. The evidence for the defendant was, that at the time when the plaintiff first entered the service of the deceased, if she ever was in his employment as a domestic servant, on wages, he was a married man, and had a wife and seve- ral children living with him in his family, and that an improper intimacy existed between him and the plaintiff, which resulted in the birth of a child by him, in his house, before his wife left it and went to reside with a married daughter in Philadelphia, and after she left, the plaintiff continued to live with him and to conduct his household affairs, giving birth to another son by him in 1830, both of whom the deceased always recognized as his children, and maintained and reared up as such on the farm with him on which they lived, and that she had continued to live and cohabit with him as his mistress and concubine ever since, up to the time of his death. McCaulley, for the plaintiff: The tenor of the evidence adduced on the part of the defendant sufficiently discloses the nature of the defence on which he relies, but he should insist, notwithstanding the character of that proof, that when one person performs work and labor for another, by his request, or with his consent, unless they were near relations, or it was understood between them that no com- pensation was to be demanded or paid for it, the law im- plied a contract and promise to pay for the work and labor; and the fact that the parties lived together in a state of illicit intercourse and cohabitation, did not in law preclude the right of the plaintiff to recover for such ser- vices upon the implied promise to pay for them. As to the plea of the statute of limitations, it was a settled rule in this State, that a slight acknowledgment of the exist- ence of the debt was sufficient to take the case out of the operation of the .statute. Patterson, for the defendant: It was the object of the law to protect persons in the enjoyment and recovery of their just rights, but it would not sanction or enforce an WALRAVEN v. FRANK'S ADMINISTRATOR. 357 immoral contract. Ex turpe causa, non oritur aclio, wae the maxim that applied in this instance, and if the jury were satisfied that the plaintiff and the deceased lived in a state of unlawful cohabitation, during the time of the alleged services for which she had sued his estate, the law would not permit her to recover for them, even if they were proved to have been performed to their entire satisfaction. James A. Bayard, on the same side : The facts proved clearly established an immoral relation subsisting be- tween the plaintiff and the deceased, George C. Frank, in his lifetime, and that she resided as his acknowledged mistress or concubine in his family during the whole time she lived with him, and during the whole period covered by her alleged services. But was the fact proved, that she had had a will drawn for him, by which he was to give all his property in Delaware to her children by him, which was equal to his property in Philadelphia, which was by the same will to go to his legitimate children, at all con- sistent or reconcilable with the idea that she was in his family as a servant merely, on wages, at any price what- ever ? As to the general principle in regard to services rendered by one to another, unless in the case of near re- lations, the law presumes that they were rendered in vir- tue of an agreement between them for that purpose, or in other words, the law implies a contract and promise to pay for them. But such was not the case, if the contract was vitiated or in any manner affected by an immoral consideration, and even if part of the contract was illegal; as, if it was a part of the condition of her service that she was to cohabit with him, it will taint the whole and defeat the action. 27 tiny. C. L. JL 534. If a woman expressly agrees to serve a man and cohabit with him, the contract is void, and no action will lie upon it : 20 -/-*"// ('. -/>. A*. 508 '> 41 Idem, 322 ; and, a fortiori, if the plaintiff relies on an im- plied contract to recover, and it is shown that, in addition to the service, the plaintiff cohabited as a concubine with the party sought to be charged for the service, the law 358 SUPERIOR COURT. will not imply any contract to pay for the service, because it is vitiated by the immoral relation subsisting between them. No acknowledgment of a subsisting demand, suc]i as had been uniformly required under the ruling in this State, had been proved, to take the case out of the opera- tion of the statute of limitations. McCaulley, in reply, would admit that an express con- tract for cohabitation was void; and would also admit that, where it was a part or one of the conditions of an express contract for service, the rule was the same. But such was not the proof in this case. In the absence of any express contract, however, either in relation to the cohabitation or the service, indebitatus assumpsit will lie for the work and labor performed, on the implied promise to pay for that; notwithstanding it may be shown that the plaintiff, in addition to the service, in point of fact did cohabit with the defendant, for which, however, no demand is made, and no cause of action is asserted in the case; for the cohabitation being no part of the contract, or of the consideration for it, will not taint or vitiate the implied contract to pay for the service merely. The Court, Woottm, J., charged the jury: You are already aware that this action, ordinarily called an action of as- sumpsit, was instituted by Mary Wai raven, the plaintiff, against Thomas C. Jones, the administrator of George C. Frank, deceased, with the view of recovering compensa- tion for services alleged to have been rendered by her, as a hired woman or servant to the deceased, in his lifetime, commencing on the 14th of January, 1828, and running down to the 4th of June, 1855, covering a period of twenty- seven years, four months, and twenty days, at $8 per week, amounting in the aggregate to the sum of $4272.66, subject to a credit of 750. To the plaintiff's claim, the defendant, through his counsel, sets up three several and distinct matters of de- fence. WALRAVEN v. FRANK'S ADMINISTRATOR. 359 1. That the plaintiff, Mary Walraven, stood in the rela- tion of a mistress to George C. Frank, and lived in a state of cohabitation with him, and is not, therefore, entitled to recover for services rendered during the continuance of such connection, because of the immorality and illegality of the relation in which they lived. 2. That the money which she acknowledges already to have received amounts to more than her services were worth. And, 3. The act of limitations. The first branch of the defence renders the relation in which these parties, Mary Walraven and George C. Frank, stood to each other, a very important fact to be determined by you in the consideration of this case. If she lived with him in the character and capacity of a hired woman or servant, for the purpose of performing the ordinary and legitimate duties and services of a house girl or servant, and did actually perform such services in and about his house, the law implied a contract, and raises a promise, on the part of George C. Frank, to pay her what her services were reasonably worth. In the absence of any express contract, the law presumes such a contract, and implies a promise to pay, from the fact that services were rendered. If the jury should be of opinion, therefore, from the evi- dence in the cause, that the plaintiff lived in and about the house of George C. Frank in the character and capacity of a hired woman or servant, and as such rendered services to him, she is entitled to recover a fair and reasonable compen- sation for them, to be ascertained by you from the evidence in the cause; but in estimating these services, you will consider the payment or credit of $750, which she acknow- ledges to have received ; having regard, however, to what I shall hereafter say to you in reference to the statute of limitations, which is relied on by the defendant as a dis- tinct branch of defence, and as a bar to this action. But if you should be of opinion that the plaintiff, Mary Walraven, did not live with George C. Frank in the char- 360 SUPERIOR COURT. acter and capacity of a hired woman or house servant, but that she lived there as his mistress, in a state of cohabita- tion with him, the law which discountenances immorality in all its forms and phases, and especially of such a charac- ter as that which is attributed to these parties refuses its sanction to any undertaking founded upon an immoral and illegal consideration, and will not, therefore, presume a contract in the absence of an express one; nor, indeed, would it enforce an express contract founded upon such an immoral and, consequently, illegal consideration. If, therefore, the plaintiff stood in the relation of a mis- tress to George C. Frank, and not as a hired woman or servant, she is not entitled to recover, although she may have rendered services in and about his house. Every contract, whether it be express or implied, must have a valuable and legal consideration; and the policy of the law, which holds all contracts, either express or im- plied, based upon immoral considerations, null and void, is founded in good sense and wisdom. Hence it is that services, rendered by a hired servant, constitute a good consideration to support an action for the value of the ser- vices, upon an implied contract, in the absence of an express one, upon proof of the service ; and that the con- sideration of a woman's living with a man as his mistress, in a state of cohabitation with him, is not a sufficient con- sideration to support an action for services. These are the principles of law applicable to the case, and it in now for you to apply the law, as we have an- nounced it to you, to the facts, and then determine in what relation the plaintiff lived with George C. Frank. If she lived with him in the character and capacity of a hired woman or servant, she is entitled to recover such compensation as her services were reasonably worth. But if she lived with him as his mistress, in a state of co- habitation with him, she is not entitled to recover any- thing, either upon an express or implied contract; for, as I have before said to you, the law does not recognize, but WALKAVEN v. FKANK'S ADMINISTKATOK. 361 makes absolutely null and void all contracts tending to promote fornication and prostitution. If, however, upon a proper application of the facts proved before you, to the law as already stated, in your judgment she is entitled to recover, then the next matter for you to consider will be, for what length of time, and the amount. The time is to be measured by the act of limitations, and the amount, by the evidence in the cause of the value of the services rendered, and not barred by the act. The statute of limitations applies to the whole period of time for which the services are claimed to have been ren- dered, except the three years immediately preceding the in- stitution of the suit. But for any services rendered with- in those three years, the statute would not operate as a bar, and she would be entitled to recover, so far as the act of limitations is concerned, or in other words, if she is entitled to recover at all, such sum as the services so rendered were worth, over and above the $750, which she has, according to her own admission, already received ; but if the amount which she has received is fully equal to, or more than the amount of the services rendered within the three years, then she is not entitled to recover anything. You will perceive now, gentlemen, that the plaintiff's right of recovery depends entirely upon the relation in which she stood to George C. Frank. If in that of a hired woman or servant, she would be entitled to recover something, provided she has not already received adequate remunera- tion, to be determined by the evidence and rules of law applicable to the case. But if she bore the relation of a mistress, and cohabited with him as such, she is not. en- titled to recover at all, and your verdict should be for the defendant. 24 362 SUPEEIOE COUKT. THE MAYOR AND COUNCIL OF WILMINGTON, for the use of KILIAM RUPP, r. JAMES KEARNS #ud JOSEPH PYLK. Judgment by default for want of appearance, and an inquisition held thereon set aside after the lapse of two terms, for want of a sufficient return to the summons by which the suit was commenced. But leave granted to amend the return on payment of costs and allowing the de- fendants to enter their appearance forthwith. THIS was a motion to set aside a judgment and an inqui- sition thereon, because it did not appear by the return of the sheriff that the defendants had been duly summoned, as the time and manner of the service of the writ were not stated in the return. The suit was instituted to May Term, 1856, by a writ of summons in debt, to which the sheriff made return of summoned merely, on which the plaintiffs filed their narr to that term, and obtained judgment by de- fault for want of appearance of the defendants, and after- wards sued out a writ of inquiry during vacation to ascer- tain the amount. Gordon, for the defendants, now moved to set aside the judgment and inquisition on the grounds above stated, and cited Ra\ Code, 368. Patterson, for the plaintiffs, objected, that after the lapse of two terms the motion to set aside the judgment was too late, and that it should have been made at or before the next term after it was rendered, and that the application should not be sustained without an affidavit of the defen- dants, denying notice of the suit and alleging a just and legal defence to the action. The Court, however, was of opinion, that the provisions of the statute in regard to affidavits of defence had relation only to cases in which the return of the sheriff to the Sum- mons was in conformity with the provisions of the act in regard to the service of the writ, which required the officer BUECALOW v. TRUMP. 363 to state whether it wa8 served personally on the defendants or by a copy left at their usual place of abode, in the pre- sence of some white adult person, six days before the return thereof. Rev. Code, 368. And without such a return, no judgment by default for want of an appearance of the de- fendants could properly be entered. Judgment and inquisition set aside. The counsel for the plaintiff then asked for leave to the sheriff to amend his return, which the Court grafted, on condition that the defendants should be allowed to enter their appearance on the amended return at this term, and on payment of costs. FARRINGTON BURCALOW v. ISAAC V. TRUMP. A foreign attachment will lie against a non-resident, notwithstanding he was temporarily in the State at the time when it was issued. FOREIGN attachment case and motion to quash the writ, because the defendant, although his residence was in New Jersey, was in this State at the time it was issued. Thq proof showed that the defendant resided in JS"ew Jersey, but was in New Castle County on the day, and for several days before and after, the writ was issued. Whitdy, in support of the motion, argued, that as the main object of a writ of foreign attachment is to compel the appearance of a foreign debtor, out of the jurisdiction of the court and beyond the limits of the State, it could not properly or lawfully issue against a non-resident, who was at the time in the State and within reach of the usual and ordinary process of the Court. Hut (he Court, Wootten, J., dissenting, were of a different opinion, and discharged the rule to show cause, &c. The 364 SUPBEIOK COUKT. whole question depends under the words of the act, upon the residence of the party at the time. If the party resides out of the State at the time when the foreign attachment is issued, he is amenable to the process, notwithstanding he may have been temporarily in the State at, before, and after that time. Such, we think, is the construction which the words of the act require, and we have no discretion over it. DANIEL WATERS, defendant below, Appellant, v. JAMES H. and ANDREW KIRBY, plaintiffs below, Respondents. An appeal from a justice of the peace will not be dismissed, because his certificate to the transcript states merely that "the foregoing is a true transcript in the above case copied from my docket;" but the same may be amended. ON appeal from a justice of the peace. The certificate of the justice appended to the copy of the docket entries sent up by him was as follows : " The foregoing is a true trans- cript in the above case duly copied from my docket," signed by the justice. Patterson, for the plaintiff below, moved to dismiss the appeal for the want of a proper certificate by the justice of " all the docket entries in the case before him," as the statute requires. Booth, for the defendant below : The motion to dismiss the appeal is too late, as the plaintiffs have appeared to the citation and filed their pronarr in the case. But, if I am wrong in this, it is not too late to amend the certificate, and ask leave for the justice to do so. Green v. Kinncy, 2 Harr. 160 ; Lewis v. Hazel, 4 Hair. 470. TJie Court refused to dismiss the appeal, and gave leave to the justice to amend his certificate, upon the ruling in the case of Green v. Kinney, 2 Harr. 160. COURT OF ERRORS AND APPEALS. JUNE TERM, 1857. DOE d. WILLIAM P. COOPER v. BRICKUS TOWNSEND and SAULSBURY DEAN, Tenants in possession, and IGNATIUS T. COOPER, real Defendant. The testator by his will devised to each of his five children by name, portions of his real estate in severally for life, remainder to the children of each in tail, in the parts so devised to his children, subject to the proviso, that if any one or more of his said children should die without leaving lawfully begotten child or children, then he gave and devised the lands and premises so devised to such child or children as should happen to die as aforesaid, unto the survivor or survivors of his said children, during their natural life, and after their decease, he gave and devised the lands and premises as aforesaid to the child or children of such survivor or survivors lawfully begotten of their bodies forever of any of his children who might be dead leaving such child or children, such child or children claiming such part or share as the parent or parents of such child or children would have claimed if living, to be equally divided between his surviving child or children as aforesaid, and the child or children of any that may be dead, claiming the right of their parent or parents as if living, share and share alike, as tenants in common, and not as joint tenants, and to the respective heirs as aforesaid forever ; and he further provided that it was his will, desire, and intention, that if the whole of his children should die without leaving lawful child or children, or legal descendants of such child or children, so that the whole of the lawful issue of his own body should become extinct, then and in such a case he devised the remainders and reversions of his whole estate over to other persons. The lessor of the plaintitf was the son and only child of Richard, a deceased son of the testator. William II., another son of the testator, died without leaving 366 COUET OF EREOES AND APPEALS. lawful issue, leaving his brother Ignatius T. to survive him, and who was now the sole survivor of the testator's five children and original devisees; and this action was brought by William T., the son of Richard, against Ignatius T., to recover his share of the lands and pre- mises devised by the testator to his son William H. Held, that the lands and premises devised to William H. by the testator, on his death without leaving children lawfully begotten of his body, under the limi- tations of the will, survived to Ignatius T., the sole surviving child of the testator, for the term of his life, and that the plaintiff could not re- cover. The words "survivor or survivors," do not mean other or others; and were not to be so construed in a devise of this nature. THIS was an action of ejectment, which came up from the Superior Court for Kent County, upon a case stated, by consent of counsel, and on questions of law reserved for hearing before the Court in bank, which were as follows : Richard Cooper, late of Kent County, deceased, was, at the time of making his last will and testament hereinafter mentioned, and at the time of his decease, seized of an es- tate in fee simple, in possession, in the lands and premises in his said last will and testament mentioned and devised, and possessed of the personal estate therein and thereby bequeathed. The said Richard Cooper, on the 23d day of January, A. D. 1816, duly made and executed his said will, and on the 22d day of July, 1816, duly made and executed the first codicil, and on the 27th day of October, 1817, duly made and executed the second codicil thereto, as by the said will and the several codicils thereto respectively ap- pears. The said Richard Cooper died on or about the 1st day of September, 1818, without having revoked or altered his said will, or either of the said codicils, and leaving to survive him his widow, Clarissa Cooper, and the five children, Ezekiel, Sarah, Richard J., Ignatius T., and William II., named in the said will, as liis only children and heirs-at-law; of whom Ezekiel and Sarah were the children by a former marriage, and were each married, and had issue then living. Richard J., Ignatius T., and William II., the children of the testator by Clarissa, the DOE d. COOPER v. TOWNSEND ET AL. 367 widow, were minors, then about the ages of nine, eleven, and thirteen years, respectively. After the death of the testator, the said original will and codicils were duly proven and allowed by the Register of Wills in and for Kent County ; which said will and codicils are made a part of this case stated, prout the same. Ezekiel Cooper, one of the children of the testator, died on the 21st day of Sep- tember, A. D. 1828, leaving issue Richard A., Ezekiel, Henrietta, and Andrew B., of whom Henrietta and Eze- kiel are since dead without issue. Sarah, another of the testator's children, who, at the time of the testator's death, was intermarried with Charles Buckmaster, died in the year 1830, leaving to survive her three children, to wit, Sarah Ann, Ezekiel, and Charles, her only heirs-at-law, who as far as is known are all still living. Richard J., another of the testator's children above named, died in the year 1835, leaving to survive him William P. Cooper, the plaintiff, his only child and heir-at-law. William H., another of the testator's children above named, died in August, 1847, without issue. Ignatius T., the only re- maining child of the testator, the real defendant in this case, is still living, having issue. The lands devised to the said William II. Cooper, in and by the sixth item of the said original will, and in which the plaintiff in this case claims an undivided interest in possession, were held by the said William II. during his life, and are now held by the tenants in possession under the said Ignatius T., the real defendant in this case. Whereupon, on the application of both parties by their counsel, the said Superior Court direct the following ques- tion of law to be hoard by the Court of Errors and Appeals, viz., whether the said William P. Cooper, the plaintiff, has any, and if any, what estate in possession in the lands and premises devised as above by the testator in the sixth item of the said original will, to hi* sou William II. , and held under said will by the said William II. during his life? If the Court of Errors and Appeals shall be of opinion, 368 COURT OF ERRORS AND APPEALS. on the above facts and the whole of said will and codicils, that the said William P. Cooper, the plaintiff, has any estate in possession in the lands and premises so as above devised to the said William H. Cooper, and by him, the said William H., held during his life, as above stated, then judgment shall be rendered by the said Superior Court in favor of the plaintiff, for such part thereof as the Court of Errors and Appeals shall be of opinion that the said plain- tiff is entitled to in possession. But if the said Court of Errors and Appeals shall be of opinion that the said Wil- liam P. Cooper is not entitled to any estate in possession in the said lands and premises, so as aforesaid devised to the said William H. Cooper, that then the said Superior Court shall render judgment for the defendant. The following clauses of the will were submitted as a part of the case stated: First. The testator devises, in the 6th item of his will, to each of his five children, by name, certain portions of his real estate, in severalty, for life only, remainder to the children of each, in tail, in the parts so devised. " Item 7th. Provided, nevertheless, in case any one or more of my said children should happen to die without leaving child or children, lawfully begotten of their bodies, that can take and hold my real estate, as my immediate devisees, agreeable to the true intent and meaning of this my will, then, in such case, I give and devise the lands and premises above devised to such child or children which may or shall happen to die as aforesaid, unto the survivor or survivors of my said children, during their natural life; and after their decease, I give and devise the lands and premises, as aforesaid, to the child or children, both males and females respectively, of such survivor or survivors, lawfully begotten of their bodies, forever, of any of my children, which may be dead, leaving such child or chil- dren, such child or children claiming such part or share as the parent or parents of such child or children would have claimed, if living, to be equally divided between my sur- viving child or children as aforesaid, and the child or chil- DOE d. COOPEK v. TOWNSEND ET AL. 369 dren, lawfully begotten, of any that may be dead, claim- ing the right of their parent or parents, as if living, share and share alike, as tenants in common, and not as joint tenants, and to the respective heirs, as aforesaid, forever. And it is further provided, and it is my will, and desire, and intention, that if the whole of my children should die without leaving lawful child or children, or legal descen- dants of such child or children, so that the whole of the lawful issue of my own body should become extinct, then and in such case, I give and devise the remainder and re- mainders, reversion and reversions, of my whole estate, in the manner and form following," &c. The testator then devises over ; and after the above de- vises over, the testator declares as follows : " Item 8th. Be it known, that it is my express intention, in this my will, to create and establish cross-remainders, on and in the aforesaid estates, lands, and premises, among my several and respective children, and their children lawfully begotten, so that my children and their children, as aforesaid, shall inherit so long as any of them remain." The testator then bequeaths certain personal estate spe- cifically, as follows : " Item. I give, and bequeath to my five children afore- said, Ezekiel, Sarah, Richard, Ignatius, and William, all my bank stock in the Farmers' Bank of Delaware; that is to say, twenty shares to each and every one of them. Also, my bank stock in the Bank of Caroline, in Caroline County and State of Maryland, from and after the marriage or death of my wife Clarissa ; that is to say, to each and to every one of them, severally, the number of ten shares, together with all the proceeds, dividends, and profits thereof. I also give and bequeath to each and every one of my aforesaid five children, severally and respectively, the sum of twelve hundred and fifty dollars as a K'gacy, on the following terms and conditions; that is to say: That each of them, for him and herself, severally, shall marry, and have child, or children, lawfully begotten, at the time of their death ; but in case any one or more of 370 COURT OF ERRORS AND APPEALS. my said children should die, leaving no child or children, or lawful descendants, at the time of their decease, that then and in such case, the bank stock and legacy be- queathed, as aforesaid, to such child or children so dying as aforesaid, shall go over and be equally divided to and amongst the survivor or survivors of my said children." Then follows the residuary clause : " Item. I hereby give, devise, and bequeath all the rest and residue of my real and personal estate whatsoever, to be equally divided to and among my five children, Ezekiel, Sarah, Richard, Ignatius, and William, share and share alike ; or if any one or more of my said children should happen to die without leaving children of their own bodies lawfully begotten, then in such case the share or shares of such child or children deceased, together with the afore- said legacies to such child or children deceased, shall go to the survivor or survivors of rny said children; to be equally divided, share and share alike; and if all my said children should happen to die, without leaving of their own bodies, as aforesaid, heirs, and in such case, I give and bequeath unto my beloved wife, Clarissa, five thousand dollars of the aforesaid residue," &c., &c., &c. Dated 23d January, 1816. Then occurs the following clause, contained in a codicil dated July 22d, 1816. " I do also declare, that it is my intention and will, that the whole of my estate, both real and personal, shall go to and l)e divided to and amongst my children and the lawful issue of their respective bodies, so long as any of them shall remain; and that no other person, in remainder, shall take or inherit any part thereof, so long as any of my children or their lawful issue shall survive." And the following, contained in codicil No. 2, dated October 27th, 1817: " I give and bequeath to my live children, one hundred and two shares of stock, in the Bunk of Caroline", which 1 purchased since the making of my original will, to he divided in the following manner, viz.: To Kzekiel, twenty shares; to Sarah, twenty shares; to Richard Jenifer, twenty- DOE d. COOPER v. TOWNSEND ET AL. 371 two shares; to Ignatius Taylor Cooper, twenty shares; to "William Hughlitt Cooper, twenty shares; and also to each and every of them, severally, an additional cash legacy, over and above the cash legacy left to each of them in my original will, the sum of seven hundred and fifty dollars, each, to be paid to them in good bonds, subject neverthe- less to the like limitations, restrictions, conditions, as are mentioned in my original will, in case of either of my said children dying and leaving no children, relative to bank stock and cash legacies, therein mentioned. Ridgely, for the plaintiff', read the sixth, seventh and eighth items of the will, and the clause extracted from the codicil of the 22d of July, 1816, and asked for the con- struction of the same. Of the five children and original devisees of the testator, severally named in the sixth item of his will, Ignatius T. Cooper, the real defendant, is now the sole survivor, and is by his tenants in possession of the premises in controversy, and asserts a claim to the whole of them under the limitations of the will, for the term of his life at least, as such survivor. These lands and pre- mises were that portion of the testator's real estate which were devised by the testator, in the sixth item of the will, to his son "William H. Cooper, in severalty for life, re- mainder to his children in tail, subject to the proviso con- tained in the seventh item of the will. William II. Cooper died without leaving children lawfully begotten, and the question which we are to consider is, what is the meaning of the words " survivor or survivors" occurring in the proviso, contained in the seventh item of the will, and who, by reasonable intendment and construction, are to be considered as properly embraced and included in them ; whether they embrace the child or children of. a deceased child of the testator, or include only the surviving children of the testator, named in the sixth item of the will. We shall contend that they include both, and that issue of deceased children must take, with the surviving children of the testator, the share or portion of any one of the 372 COUET OF ERRORS AND APPEALS. children named, who died without leaving lawful issue. By a liberal construction, and in order to accomplish the apparent general intention of the testator, in limitations over of this nature, among children and the issue of de- ceased children, the courts have frequently construed the words " survivor or survivors," as synonymous with the words " other or others," and have given them that sense. Thus giving, what we have no doubt the testator designed to do in this instance, the land devised to any one of the children, on his death without lawful issue, to the surviv- ing children of deceased children, the share which their parent would have taken if then living, as well as to his own surviving children ; meaning, of course, to include them among the survivor or survivors of them, though that can not be done by a strict construction of the words, but only by regarding them as equivalent to the words other or others, which has often been done, as I have before remarked. 2 Pow. on Devises, 723; 2 Fearne on Hem., sees. 264, 534,536; 1 Pr. Wins. 332; 2 Bro. Ch. Ecp. 51. And according to these decisions, whilst we must let in the issue of deceased children to take the share which their parent or parents would have taken if living, equally with the surviving children of the testator the portion of a de- ceased child without issue, the former would tdke estates tail, while the latter would take only estates for life. But this construction for which we contend does not depend simply on the words " survivor or survivors," employed in the proviso in the seventh item of the will, but it derives additional strength and support from the succeeding or eighth item of the will, wherein the testator says " that it is my express intention, in this my will, to create and es- tablish cross-remainders in the aforesaid estates, lands, and premise's, among my several and respective children, and their children lawfully begotten, so that my children mid their children, as aforesaid, shall inherit so long as any of them shall remain." Here then are cross-remainders ex- pressly limited between the several children of the testa- tor, and their children lawfully begotten, in the estates DOE d. COOPER v. TOWNSEND ET AL. 373 devised, and by referring to the case of Doe v. Wainwrigkt t which was a case similar to this, though the limitation was by deed instead of by devise, the Court will find that Lord Kenyon lays hold of, and lays particular stress on the fact, that there were cross-remainders limited in the deed among the issue of deceased children, to show that the intention of the grantor could only be effectuated by giving to the word " survivor" the same signification as the word other, and so construed it, holding that the les- sor of the plaintiff was thereby entitled to recover. 5 T. R. 427. Taking all the provisions of the will, therefore, and construing them together, so as to ascertain the in- tention of the testator, and applying to them the princi- ples adduced from the authorities cited, I think there can be no doubt as to the right of the plaintiff in this case to the decision of this Court in his favor. Fisher, Attorney- General, for the defendant: There is no doubt that the rule of construction contended for on the other side at one time very generally prevailed in Eng- land ; but later and better considered decisions have long since reversed it, even in that country, and restored the construction of the words " survivor or survivors," in de- vises of this character, to their natural and legitimate signification, repudiating altogether the idea at one time entertained, that they were in this connection synony- mous with the words other or others, and were to be eo construed. 2 Jarm. on Wills, 609 ; 6 Cow. 178 ; 3 Johns. Rep. 291. But this is not the first time the limitations of this will have been under consideration and adjudication in our courts. The counsel has referred to other provi- sions of it to support the construction for which he con- tends ; but in the case of Cooper v. Buchnastcr, it was be- fore the Court of Chancery, several years ago, and the decree of the Chancellor, as to the legacies under it, was in accordance with the rule of construction as I have stated it with regard to these words. o There are no terms of technical import employed in 374 COUET OF EEEOES AND APPEALS. this devise, and the only rule of construction applicable to it is the meaning and intention of the testator, to be collected from the language in its plain and literal sense, employed in the various provisions of the will ; and read- ing it in this light, it is difficult to understand how the issue of any deceased child can succeed to any part of these lands and premises, so long as there is a remaining child of the testator surviving, to take it for the term of his life at least. N. P. Smithers, on the same side : The devise is not to the " survivor or survivors" merely, which might possibly mean other or others, so as to let in the issue of deceased children, as contended for on the other side ; but the de- vise goes further, for it is in express terms, to the " sur- vivor or survivors of my said children," before severally and individually named in his will, which clearly ascer- tains the intention of the testator, and as clearly excludes the issue of deceased children from taking, so long as any of his said children survive to enjoy the said estates, lands, and premises. In no devise as clear and explicit as this is, on this particular point, can it be found that any question was ever raised as to who were comprehended within the true meaning and natural import of such words. It has only been in cases where some doubt was suggested from the context, or the careless use of the terms, whether the testator might not have employed them in a broader and more general sense, that the rule of construction referred to ever obtained ; although it has since been renounced even in that class of cases. But in no case where the words survivor or survivors have boon as carefully, and cau- tiously, and deliberately adopted and used by the testator, as they manifestly were in this instance, have they ever received any other than their strict and natural significa- tion and construction. 1 Ej'i'h. Hep. 674. Is it not there- fore evident, after carefully considering all the clauses and limitations of this will, that it was the intention of the tes- tator to give to his immediate children, life estates, and DOE d. COOPER v. TOWNSEND ET AL. 375 after the death of the last survivor of them, who was to have the whole for life, then, and not until then, that the estate was to pass to his grandchildren in tail? We ac- cordingly find throughout the provisions of the will, that wherever a child of the testator takes, he takes an estate for life, and whenever a grandchild takes, he takes an es- tate in tail ; and this clearly shows that he did not intend that the latter should take as survivors, on the death of any one of his said children without lawful issue, the share devised to him, so long as there was one of his immediate children surviving to take it for life, but that they should only take, and by a different estate, when all his children were no more ; for it is not to be supposed that it could have been his design that they should take equally in point of time with his immediate children, but unequally or dif- ferently in point of estates or as to the interest which they were to enjoy in the same property by virtue of the same devise. Comegys, for the plaintiff: Cross-remainders are never implied in a deed, but must be express; in a will, however, the rule is otherwise, and they may be and often are im- plied. But in this case they are expressly limited, and that, too, by a testator who well knew and perfectly un- derstood what he was about when he penned this will. For he says that it is his express intention to create cross- remainders in the aforesaid estates, lands, and premises, among his several and respective children and their chil- dren lawfully begotten, so that his children and their chil- dren, as aforesaid, should inherit so long as any of them shall remain ; and although lie lias done this in the usual method of limiting such interests, yet as he lias expressly and emphatically declared his intention to .fil, and the legacy of Edmond Upsher Potter was $1703.57; and cal- CUSTIS & WIFE v. POTTER'S ADMR. 387 culating upon the same basis the value of the whole of the legacies under the will and codicils (exclusive of the be- quest for the insane asylum, which was adjudged by the Chancellor to be void and of no effect) was by the said de- cree at that time to be the sum of $11,737.43. And that it further appeared to the Chancellor, after deducting the costs of the said suit, that there would remain in the hands of the said administrator the sum of $8186. 69 , ap- plicable to the said legacies, and that it was insufficient to pay the whole amount thereof, whereupon it was considered and decreed by him that all the legacies should abate pro raia, and what portion of the said last-mentioned sum should be paid, by the said administrator, to the several legatees respectively whose legacies were then payable, and what portion he should retain for those respectively whose legacies were not then due, but would be payable at future periods ; and from which appeared, among others, that the sum decreed to be paid to the said William S. Custis on account of the legacy of his wife, the said Virginia Custis, was $1571.83, and that the amount to be retained for the said Sarah T. Potter, was $988.42, and for the said Edmond Tlpsher Potter, $1188.38. That in and by the said last will and codicils, the testator had devised all the residue of his estate, real and personal, to Potter Griffith, George S. Adkins, and Martin "W. Bates, upon certain charitable uses and trusts in said, will and codicils particularly set forth, who after the death of the testator declined to take upon themselves the burden of the same, whereupon the said Charles T. Fleming was appointed by the Court trus- tee of such residuary estate ; and that all of the said lega- tees in said last will and codicils named, had afterwards exhibited in that Court their original bill of complaint against the said George S. Adkins, administrator, and the said Charles T. Fleming, trustee as aforesaid, praying that the residue of said legacies remaining unpaid might be raised by the sale of said real estate, or so much thereof as might be necessary, under the order of the Court, to which the defendants had duly appeared and put in their 388 COURT OF ERRORS AND APPEALS. answers, whereupon it was adjudged and decreed by the Chancellor, that the legacies in said will and codicils be- queathed, were by the terms and effect of the same charged upon the rents and profits accruing from the said residuary real estate, and that the residue of the said legacies should be raised by the gradual accumulation of the rents and profits thereof, but not that the same should be sold ; from which decree the complainants appealed, and on that ap- peal it was adjudged and decreed by the Court of Errors and Appeals, that the said legacies were charged by the terms and effect of the said will and codicils on the said residuary real estate, and that the same, or so much thereof as should be necessary, ought to be sold under the order of the Court of Chancery, to satisfy the residue of said lega- cies ; which was afterwards duly made at the March Term 1853, of the said last^mentioned Court, and so much of said real estate was thereupon sold by the order of the said Court as was necessary to raise the residue of the legacies remaining unpaid as aforesaid. But that the complainants in the present bill of review had been advised that the decree first above mentioned, made by the Chancellor on the 10th day of June, 1849, was erroneous, in so far as it had adjudged that in ascer- taining the value of the legacies in the aforesaid will and codicils to the present complainants, Virginia, Sarah T., and Edmond Upsher Potter, interest at the rate of six per centum per annum should be calculated upon the legacy of the said Virginia, from the day it became due and payable, to wit, the 14th day of August, 1845, and that a discount at the same rate should be deducted from the legacies of the said Sarah T. and Edmond Upsher Potter, from the date of said decree to the times at which they would respectively become payable, to wit, in the case of the former, on the 5th day of May, 1854, and in the case of the latter, on the 8th day of August, 1855; because by the terms and effect of the several bequests made to them in the said will and codicils, and agreeably to the rules of law and equity in that behalf, they were CUSTIS & WIFE Y. POTTER'S ADMR 389 severally entitled to receive lawful interest upon their respective legacies from the expiration of one year after the death of the said testator, to wit, from the 21st day of October, 1844, and not from the times when the same should become respectively payable as aforesaid ; and therefore, that it ought to have been in and by the said decree adjudged, that in ascertaining the value of the said legacies at that time, interest at the rate of six per centum per annum should be calculated upon them respectively from the said 21st day of October, 1844, as aforesaid. Wherefore the complainants in the bill of review prayed the Chancellor that the aforesaid decree, so far as the same was erroneous, might be reversed, and that the com- plainants should be adjudged by him to be entitled to in- terest on their respective legacies from the date last men- tioned ; and for other and further relief, &c. To this bill the defendants appeared and entered de- murrers, and upon the argument of the same before the Chancellor, the bill of complainants was dismissed with coste ; and from this decree the present appeal was taken. D. M. Bates, for the appellants : The appeal is from a decree of the Chancellor, on a bill of review filed in his Court, and the only question to be considered here is whether certain legacies payable infutwro, bequeathed by the testator, Benjamin Potter, to the children rwminatim of his nephew, John R. Potter, deceased, bore interest until they were payable, or not The case comes up here on the bill and demurrers filed in the Court below, and this is the only question presented by them. The legacies in question are vested legacies, payable at a future period, and are not contingent legacies. Aa a general rule, I admit that legacies payable at a future period do not bear interest until the time of payment. 2 Wins, on Exrs. 1024. But there are exceptions to this rule ; as, where the testa- tor stands in the relation of a parent, or in loco parentis, aa the hooks term it, to the legatee, in which case the legacy bears interest before the time of payment. Also, where 390 COURT OF ERRORS AND APPEALS. the legacy, by the terms or directions of the will, is to be severed from the bulk of the estate before the time of payment, and is to become a specific fund producing in- terest, the legatee takes the interest accruing from the death of the testator, unless it is otherwise disposed of by him ; because it is presumed in such a case, that the testa- tor intended that the legatee should have the interest. 2 Wms. on Exrs. 1021. Nor is it necessary that the bequest should be of a specific fund at the time, as of stock, for instance, in order to carry interest ; for it is sufficient if it is to become specific in its nature afterwards, as in the case of the bequest of a residue. Nicholls v. Osborne, 2 Pr. Wms. 420 ; Chauworth v. Hooper, 1 Bro. Ch. Cases, 82. The same is the rule when the legacy must be taken out of or severed from the residue, and thus becomes specific in its charac- ter, in order that the residue may be disposed of under the will before the legacy becomes payable. Because in this case, if the interest accruing in the meantime from the death of the testator is not otherwise disposed of by him, the fruit follows the principal, and the legatee will take, for it can belong to no one else. Ackerlcy v. Vernon, 1 Pr. Wms. 783. The case of Heath v. Perry, 3 Atk. 101, which will probably be cited on the other side, I am aware is in apparent conflict with this decision ; but in that case, it was held that the intermediate interest did not pass to the legatee, because there was an intention to the con- trary apparent on the face of the will, and was otherwise disposed of by the testator ; and besides that, it was not the duty of the executor to sever the legacy from the bulk of the estate in the meanwhile. I am also aware that the rule is, that no one in this connection can stand in loco pi rent is to any but a lawful child, or to one towards whom he has stood in that relation in his lifetime : not even a grandfather to a grandchild, a father to a natural child, or an uncle to a niece. Leslie v. Jstlic, 10 EIKJ. Clt. Rep. 386, in note. But the case of Scamcr and others \. Blngham and other*, 3 Alk. 54, and the case of tYu-kett v. Dolby, 3 Ve.s. 10, will show that judges have not always accurately CUSTIS & WIFE v. POTTER'S ADMR. 391 apprehended and appreciated the distinction involved in that point, or the true ground of the decision in the case of Ackerley v. Vemon, as that case did not turn at all on the relationship in which the testator stood to the legatee, hut was decided wholly irrespective of that relationship. That case is sustained, too, by the case of Terrell v. Tyr- rell, 4 Ves. 1. Another class of exceptions to the general rule that the legacy does not bear interest until it becomes payable, is where the bequest is to infants, in which case the post- ponement of the payment of it is on account of the infancy of the legatee, and not for the benefit of the estate ; and the legatee will therefore take the interest. Tyrrell v. Tyr- rell, 4 Ves. 1 ; 2 Wms. on Exrs. 1025; Mills v. Roberts, 5 Eng. Ch. Rep. 556; Branstrom v. Wilkenson, 7 Ves. 421. In^the two cases last cited, the Court inferred, from the fact that the testator had appointed a guardian or trustee for the infant in the meanwhile, that he intended the infant should have the benefit of the interest. Leslie v. Leslie, 10 Eng. Ch. Rep. 384 ; Boddy v. Dawes, 15 Ibid. 363. Now, I cite all these cases to show, that although in a bequest to an infant, infancy of itself would not suffice to take the case out of the operation of the general rule in regard to the interest, when the payment of the legacy is postponed to a future period, yet the Court will incline in such cases to lay hold of any indication of an intention on the part of the testator in the will, to give the interest accruing in the meanwhile to the infant ; and all the cases referred to will be found to sustain me in this position. And were there no such indications in the will and codicils before the Court? They were evident in almost every part of them. The complainants were his preferred legatees. They were the infant children of a preferred and deceased nephew, and were the objects of the peculiar affection and the peculiar bounty of an aged, wealthy, and childless uncle, and as they were then of tender age, it is but reasonable to pre- sume that be intended they should take the interest for their benefit during their minority; and the important fact 392 COURT OP ERRORS AND APPEALS. that the will clearly contemplates, although it does not positively direct, for it is in artificially expressed, that guar- dians shall in the meantime be appointed by the Orphans' Court for these legatees, but strengthens and confirms that presumption, and requires such a construction on the au- thority of the cases cited. Oomcgys, for the appellees : Had the testator stood in the relation of a parent, which he did not, to these legatees, there could be no controversy between the parties in this case as to the appropriation of the interest in dispute for their benefit. They were, however, but the children of a deceased nephew of the testator, and were never treated, or regarded by him in his lifetime, as standing in the rela- tion of children to him, and there is no allegation or pre- text contained in their bill of complaint, to warrant the Court in presuming for a moment that any such relation ever subsisted between them. The decision in the case of Acbarlfy v. VernotL, so much relied upon on the other side, was based alone upon this circumstance in the case, and not upon the ground that the legacies were to be severed from the residue of the estate before they became payable, as appears from the report of it in 3 Bro. ParL Cases^ 85. Where the legacy is to be carved out of a particular debt due the testator, or is to be taken out of a particular fund, there it is specific in its nature, and the consequence of the severance attaches and controls the disposition of the in- terest accruing in the meantime on the legacy, and gives it to the legatee. But where it is not so given, but is to be taken out of the great or general tree of estate, there is no ground to sever a branch from it in favor of a general legatee, and the principle does not apply. Heath, v. Perry, 3 Atk. 103. Where there is a general bequest, or of a sum of money payable at a future time, it bears no interest until that time, because it cannot be demanded before that time, aad as interest is awarded by way of compensation for the unlawful detention of the debt, until it can be de- manded, interest will not accrue to the legatee, unless it is CUSTIS A WIFE v. POTTER'S ADMR 393 given by the will in the meanwhile. There is bat one ex- ception to this rale in regard to a general legacy, and that is in the case before adverted to, where the testator stands in loco parotitis as to the legatee, and is presumed to have voluntarily assumed the obligations as well as the relation of a parent towards the child. The case before referred to, cited on the other side, has never been followed on any other ground than this. Crickett v. Dolby, 3 Ves. 10, 2 Wins. Exrs. 1024; Hurl v. Greenbank, 3 Aik. 679; Baddy v. Dawes, 15 Eng. Ch. Rep. 363. In the last case the interest was held to be payable to the legatee, on the ground that there was an intention apparent in the will that he should have it. Wbere the legacy is specific, as of stock, the legatee will take the interest as part of the fund, but not where the legacy is general. Where the interest is claimed for the legatee upon a general legacy payable m futuro, it will be found to have been allowed from an intention so expressed by the testator, or from terms employed in the will which indicated such an intention. Mills v. Roberts, 5 Eng. Ch. Rep. 556 ; J>*& v. Leslie, 10 Eng. Ch. Rep. 384. But there is no such intention apparent upon the will of the testator in this case, and there is not one word employed from which such a purpose on his part can be implied. The learned counsel for the appellants had maintained that they were the peculiar objects of his affection and the principal objects of his bounty ; but such was not the case ; on the contrary, the trust established in it for the benefit of the poor of Kent County was the great and paramount object of his will; and he never intended that these legatees, who stood merely in the relation of nieces and nephews in the second degree to him, should be maintained in the mean- time until their respective legacies had become payable, out of the interest accruing upon them. Neither is there any ground for the assumption, on the other side, that the will contemplates that guardians in the meanwhile should be appointed for them by the Orphans' Court. There is, therefore, no good ground for this appeal, and the decree of the Chancellor should be affirmed. 26 394 COUET OF ERRORS AND APPEALS. Bates, in reply : I do not contend that the bequest of a general legacy payable at a future time will necessarily constitute a severance of the legacy from the residue, and carry the interest in the meanwhile to the legatee. But I do maintain that where the residue in the meantime has to be disposed of pursuant to the terms of the will, then the legacy in point of fact has to be severed from the bulk of the estate, and it then assumes the character of a fund set apart for the specific purpose of paying the legacy; and then the question arises, where is the interest in the mean- while accruing on that fund to go ? It cannot go into the residue, for that has been already ascertained and disposed of pursuant to the directions of the will, and if it does not go to the legatee, it must be thrown away and cannot go to any one. And this is the extent and effect of the ruling in the case of Ackerley v. Vernon, both as reported 1 Pr. Wins, and ' in 3 Bro. Part. Cases. He also recited in sup- port of the principle the remarks of Lord Hardwicke, in re- gard to the governing circumstance in that case, in Heath v. Perry, 3 Atk. 103 ; and also what Lord Redesdale said of the same case in Ellis v. Ellis, 1 Sch. idered that they were in derogation merely of the preceding devise- in fee to the first takers, and only im- paired and abridged their estates jm> (unto, and on the expiration of the life estates limited over, the lands reverted in fee to the heirs at law of the first devisees ; on the contrary, the limitations over for life 400 COURT OF ERRORS AND APPEALS. TH 15 was an action of ejectment from the Superior Gout in Kent County, and came op on a case stated and ques- tions of law reserved for a hearing before all the judges at fcnJL Tbere was a series of actions and cases stated of tbe same nature, which were brought up with it on question*; of law, reserved at the same term and to be beard in like manner; all of which depended upon the will of Isaac Graham, deceased, and involved more particularly the construction of the devises to his sons Nathaniel and Robert, William, Isaac and Samuel and Henry Graham, contained in the tfard, jfacrtk, maJk and fewrt hems of it re- spectively, which were as follows : " Item third. I will and bequeath to my two sons Nathaniel and Robert, all that tract or parcel of land whereon there is a brick house, for- merly owned by Hinaon Graham, containing 283 acres more or less, with the improvements thereon, to be equally divided as to value, but Nathaniel to have the buildings, to them and their heirs forever; but if either or both of them should die, leaving no lawful heir of their body who shall arrive to the age of twenty-one years, then the part or parts of the aforesaid tract of land I will and bequeath to the remainder of my sons then living. Item fourth. I will and bequeath to my son William, the farm or tract of land where n.y son Samuel now lives, containing ninety- three acres, more or leas, with tbe improvements thereon, by his paying Edmund Graham, my grandson, two hundred and fifty dollars, without interest, when tbe said Edmund shall arrive at the age of twenty-one years, which the said farm shall be bound for. to him said William and his heirs forever: but if the said William should die leaving DO lawful beir of his body who shall arrive to the ag of twenty-one, then the farm with the aforesaid oomditkwi:- I will and bequeath to the remainder of my items then living. Item ninth, I will and bequeath to my son Isaac, a lot or DOB d. HARRINGTON T. DILL. 401 parrel of land, beginning at the road leading from Vernon to Greensrille, midwaj between the boose wbere Eli Pratt now fires and the boose where Nathaniel Graham now fires, at the beginning of the tot devised and described in hem second of this will, and running with said lot along the fence to the back of the garden, then with the fence along the back of that garden, and the garden where Ma- looey now fires, to the garden of the white boose, then running square to the left, and running down to the ditch to the road leading to Vernon to a bridge, then leaving said lot described in item second, and turning and running with the road from Vernon towards the brick boose men- tioned in item third, and running with the tract described in said hem to a bridge and small ditch near the barn, then turning and running down small ditch to a fence and larger ditch on the division line between my land and Emory Graham's, then leaving the tract described in item third, and running with said division fine into the road at Vernon, and then with said road to the place of beginning, containing thirty-five or forty acres, more or less, with the improvements thereon, to him my son Isaac, and his heirs forever ; bat if said Isaac should die leaving no lawful heir of his body who shall arrive to the age of twenty-one years, then the said lot or parcel of land I will and bequeath to the remainder of my sons then living. Item tenth. I will and bequeath to my two sons Samuel and Henry, all of my home farm where I now live, containing two hundred and forty acres, more or less, with the improvements thereon, to have possession of after the death of my beloved wife Ruth, their mother, and to be divided equal according to value. I also direct the aforesaid Samuel and Henry to pay my grandson Jacob Lewis five hundred dollars, without interest, when said Jacob shall arrive to the age of twenty-one years, for which the said farm shall be bound, to the said Samuel and Henry and their heirs for- ever; but if either or both of them should die leaving no lawful heir of their body who shall arrive to the age of twenty-one years, then the part or parts of the aforesaid 402 COUKT OF EEEORS AND APPEALS. farm I will and bequeath to the remainder of my sons then living." The residuary devise, or item twelfth of the will, was as follows : " I will and bequeath all the balance of my estate, after my just debts and liabilities are paid, to be divided among my heirs as the law directs." The series of cases involving the construction of the several devises above stated, were argued together on the following statement of facts agreed upon by the counsel of the respective parties. The testator died jn the month of February, 1845, leaving to survive him the following heirs- at-law : six sons, to wit, Henry, William, Isaac, Nathaniel, Robert, and Samuel, and two daughters, Letitia Harring- ton, widow of Henry Harrington, deceased, and Mary the wife of Benjamin Callaway, and two grandsons, Edmund Graham, the only child of his deceased ,son Jacob, and Jacob G. Lewis, the only child of a deceased daughter, Ann Lewis. Henry, the son and devisee of the testator named in the tenth Hern of his will, died in May, 1845, without issue. William, the son and devisee of the testa- tor named in the fourth item of the will, died in Decem- ber, 1845, without issue. Isaac, the son and devisee named in the ninth item of the will, died in May, 1849, without issue. Robert, the son and devisee named in the third item of the will, died in May, 1850, also without issue. Nathaniel, the son and devisee named in the same item of the will, died in November, 1846, leaving two children, George and Ann, of whom the latter is dead without issue, George still surviving; and Samuel, the son and devisee named in the tenth item of the will, and who was the last survivor of the six sons of the testator, died in July, 1854, leaving six children, of whom five are still living. Ed- mund Graham, the grandson of the testator, died in Feb- ruary, 1855, without issue, but leaving brothers and sisters of the half-blood as his heirs-at-law. Letitia Harrington, lessor of two of the plaintiffs, and Mary Callaway, wife of Benjamin Callaway, also lessors of two of the plaintiffs, and daughters of the testator, and Jacob G. Lewis, son of Ann Lewis, deceased, and grandson of the testator, are still DOE d. HARRINGTON v. DILL. 403 living. Since the death of Heury, the right, title and inte- rest of William, N/athauiel, Isaac, and Robert, in the undi- vided half of the premises devised to him as aforesaid, has become legally and duly vested in Samuel, by sundry con- veyances. Samuel also paid the legacy of live hundred dol- lars, bequeathed to Jacob Gr. Lewis to be paid by Samuel and Henry, on the 16th day of January, 1849. The defendants in the series of actions referred to, were tenants of distinct parts of the several premises devised in the aforesaid items of the will, and hold the same under the heirs-at-law of the said Samuel, who is now dead. All the heirs-at-law of the testator were not parties to the several actions above re- ferred to, the several cases stated embracing only the said Letitia Harrington, Jacob G. Lewis, and Benjamin Calla- way and Mary his wife, as the real party plaintiff in each of them respectively. The suits were consequently for the recovery of their several undivided shares as a portion of the heirs-at-law of the testator, in the several tracts of laud and premises devised as aforesaid. Fisher, for the plaintiffs : We consider the devises to the sons Robert and Isaac are substantially the same, and in- volve the same question, and contend that the devises over after the devises to them, being of an indefinite estate, are devises for life only ; as a devise of land without limitation is a devise for life merely, at common law, although the statute enacted since the death of the testator has modified and reversed this rule of construction. Gaskin \. Gaakin, Co'irp. 657; Bowcrs.v. IMackct, Ibid. 235; Connowayv. Piper, 3 Harr. 482. The four several clauses and devises con- tained in the will, as set forth in the case stated, being separate and distinct from each other, no other parts of the will can be called in to aid in the construction of them, according to an equally familiar and well-settled principle of testamentary interpretation; and this is all that it is necessary to say at present in regard to the devises to Robert and Isaac. The devises to the other two sons, William and Jlenrv, 404 COURT OF ERRORS AND APPEALS. are different, inasmuch as the land devised to the latter is charged with a legacy of five hundred dollars bequeathed to the grandson, Jacob Lewis; but this legacy is expressly charged by the terms of the will on the land devised, and a charge on the land simply does not enlarge a devise for life to an estate in fee. Saws v. Garlick, 14 Exch. Rep. 698. But it is otherwise, if the charge is personal, that is to say, upon the devisee. It is well settled, however, that if the charge upon the estate is contingent merely, it does not enlarge a devise for life to a devise in fee. Jackson d. Har- ris v. Harris, 8 Johns. 141. The farm devised to William is charged, in like terms, with a legacy of two hundred and fifty dollars bequeathed to the grandson, Edmund Gra- ham. But both of these legacies are contingent, being be- queathed to the respective legatees by the terms of the will, "when they should arrive to the age of twenty-one years;" and being of that character, they cannot, as I have before said, enlarge the devises for life to William and Henry, to devises in fee. Jackson v. Martin, 18 Johns. 83. It is true that the language of the fourth item of the will con- taining fhe devise to William is somewhat different from that in which the tenth item containing the devise to Samuel and Henry is worded; but supposing the charge in the fourth item, in the first instance, to be personal to William and not a charge on the land in his hands, it cer- tainly was not so as to the remaindermen, the remaining sons of the testator then living, to whom it was devised over after his death without lawful children; for the terms of the will in this respect are : " Then the farm, with the aforesaid conditions, I will and bequeath to the remainder of my sons then living;" which clearly charges the land, in their hands at least, with the legacy to the grandson, K<1- iiiuii(l Graham. I have already remarked that these several devises being contained in separate and distinct items of the will, their meaning and construction must be ascer- tained and determined without any reference to each other, and it is a rule equally established that the heirs-at-law are not to be disinherited unless by words of limitation, or DOE d. HARRINGTON v. DILL. 405 by expressions which directly or by inference beyond all doubt show an intention to give an estate in fee to the devisee. Right d. Compton v. Compton, 9 East, 267. There being no such words of limitation, or expressions which indicate an intention, in any of the items in question, to give an estate in fee to any of the devisees in remainder, and the sons named in the will, and living at the time it was drafted, not taking a fee under the devises to them, either by the limitations of the devises or the effect of the charges accompanying them, the plaintiffs claim their re- spective shares in the several tracts of land and premises in question, in fee, as heirs-at-law of the testator under the twelfth or residuary item of the will, which disposes of all the balance of his estate to be divided among his heirs as the law directs. Comegys, for the defendants: The devise in the third item of the will to the sons Nathaniel and Robert, and the de- vise in the tenth item to the sons Samuel and Henry, were devises in fee, with executory devises over in fee, on their death without lawful children, to the remaining sons of the testator then living; and on the death of Henry without issue during the lives of his five brothers, they took an estate in fee in the part so previously devised to him. Likewise, on the death of Robert without issue, leaving only his brother Samuel, the latter took an estate in fee in the part so devised to Robert. Peppercorn et al. v. Peacock, 42 Enrj. C. L. R. 192 ; Bebb et al. v. Penoyer et al,ll East, 100; Paris v. Miller, 5 M. 8. 409 ; Doe v. Bacon, 4 M. $ 8. 360 ; J)oe v. Fawcett et al., 54 Eng. C. L. R. 273 ; Knight ct al. v. SeJJby, 34 Ibid. 57; Jackson v. Merrill, 6 Johns. 185 ; Jackson v. Staats, 11 Johns. 337; Anderson v. Jackson, 16 Johns. 382. I have cited all these cases to show that the words part or jxirts, share or moiety, carry in a devise over the same estate and interest in the lands devised over which the first devisee took in them under the devise to him; such phrases in such limitations having been held, in all these eases, to have relation to the interest of the first devisee in the land 406 COURT OF ERRORS AND APPEALS. under the devise to him, as well as the land itself, and therefore to import the same as the word estate in the limi- tation over to the devisees in remainder. According to these decisions, if land is devised to A. in fee, and after his death, if he should die without leaving heirs of his body, his part to go to B., without words of limitation, B. will take an estate in fee by virtue of that term so employed. As to the legacies" charged on the parts devised to Wil- liam, and to Samuel and Henry, the former was a personal charge on William, and is also charged on the remainder- men to whom his share is limited over, and this enlarges the devise over to them to a fee; because the land is de- vised over to them upon the condition that they pay the legacy. 2 Jarm. on Wills, 171. But if the brothers who survived Henry took but estates for life in the part devised to him in the tenth item of the will, then the devise in fee to him in the preceding clause of that item, was only impaired and abridged pro tanto, and Henry, the original devisee, took whatever interest and estate in the part so devised to him, which the five sur- viving brothers were not entitled to under the executory devise over to them. 1 Jarm. on Wills, 782, 78G; Prcst. on Titles, 139; Jackson v. Noble, 2 Keen, 590; Hanbury v. Coekc- rell, I Rolls Abr. 835 ; Whittcll v. Dudin, 2 Jac. $ Walk. 279 ; Halmc v. Halme, 9 Sim. 644 ; Sturgls v. Pearson, 4 Madd. 411 ; Phipps v. Akers, 43 Eng. C. L. tt. 569. Joules A. Bayard, on the same side : The testator devises to his six sons, all in absolute fee, with executory devises over on certain contingencies. The third, fourth, ninth and tenth items of the will are the clauses in controversy. The language of the devises to Nathaniel and Robert and to Samuel and Henry is different from the language em- ployed in the devises to William and Isaac; and I do not think the devise to the latter in the ninth item of the will is in fee 1 , but will show that that is not material. Technical rules of construction in such cases have been much relaxed in modern times, and the courts will now lay hold of many DOE d. HARRINGTON v. DILL. 407 more words to effect the intention of the testator than formerlv; and hence the numerous decisions which had */ ' been cited by his colleague, in which the courts had held that the words part, share, or moiety carried the interest, or estate as well as the laud itself. If the devise over shows an intent to give the estate devised to the first taker wlndi was a fee, the Court will construe it to carry the fee, although there are no words of limitation in the devise over./ For, in this connection, what is the meaning of the word part, as referring to the substance, or subject-matter of the previous devise ? Does it not naturally and neces- sarily import the estate in the land as well as the land itself? It certainly should, because such is clearly the in- tention of the testator. Hob. 65. But there is another question, which arises as to the devise to William and the devise to Samuel and Ileury ; and that is -in reference to the legacies charged on the land, and bequeathed in those devises to the grandsons, Edmund Graham and Jacob Lewis. "Where the charge is in gross, it will enlarge a life estate to a fee. The distinction is, where the charge is on the land solely, it will not en- large the estate devised; but where the charge is on the person in relation to the land, and notwithstanding the land may also be bound for it, it will enlarge the estate devised; nor is there any truth or soundness in the dis- tinction suggested on the other side, that if the charge be contingent, and not absolute, it will not have that effect. 2 Jarni. on Wills, 171. The words, "with the aforesaid condition," in the devise over after the devise to William, is certainly personal to the devisees over in that item of the will; for the devise over to them is on condition that they pay the legacy before charged on the land. The same is the ease in the devise over of the parts given in the tenth item to Samuel and Henry, although the lan- guage is different, and the matter not so clear as in the former devise over just mentioned. The Court will ob- serve, that it matters not that the land is also bound; if the charge be personal to the devisee, it will enlarge the 408 COURT OF ERRORS AND APPEALS. estate. Peppercorn v. Peacock, 42 Eng. C. L. R. 192. But where the charge is on the land, and the land is devised over subject to the charge, such will not be its effect; yet the rule is altogether different when the charge is on the devisee with respect to the land, in which case it will enlarge the estate. In regard to the devise of the home farm, in the tenth item of the will, to Samuel and Henry, I would remark, that that being to take effect in possession on the death of the widow, and charged with the legacy of $500 to Jacob Lewis, to be paid at the age of twenty- one, it might have become payable during her lifetime, and as the land could not have been sold during her life- time to raise the legacy, it was necessarily in effect a per- sonal charge on Samuel and Henry and the devisees over, and, consequently, enlarged the estate of the latter to a fee. But we contend, that if the remainder of the sons, Robert and Samuel, who survived Isaac, the devisee in the ninth item, took but estates for life, under the devise over to the remaining sons then living, in the part devised to him, on the happening of the contingency which gave effect to the devise over in that item, then the devise in fee to Isaac, in the first clause of the item, was only im- paired or abridged pro tanto, and Isaac the first taker, and as such, took whatever interest the surviving sons, Robert and Samuel, were not entitled to under the devise over to the remaining sons then living. And the same is the case in regard to the devise to William, in the fourth item, with the devise over on the contingency mentioned. Isaac's estate, whatever it may have been, was sold at sheriff's sale. Because, if land is devised to one person in fee, and a chattel interest, or life estate, is carved out of it for the benefit of another on a certain contingency, it only affects the fee pro tnnto,; or, in other words, it only impairs or derogates from the fee previously given to that extent, and no further. And why should it ? For how can the chattel interest, or life estate carved out of it, cancel the larger estate, or abrogate the fee? In support of this position he cited the same authorities last cited by his colleague. DOB d. HARRINGTON v. DILL. 409 Fisher, in reply. None of the terms employed in any of the items of this will import, or can import, under the well-established rules of interpretation in such cases, a fee in the devises over. Nor is there the slightest ground even for the conjecture, that the testator intended merely to carve out of the estates, first given by name to his several sons in fee, life estates in the respective premises devised to them, for the benefit of the devisees over, his remaining sons then living, in case any of the first takers should die without issue, and to diminish or derogate from the fee first given to that extent, and no further. On the contrary, it was manifestly the design of the testator to give, in the first instance, a conditional and defeasible fee to his sons, which was to divest and cease altogether on the happen- ing of the contingencies mentioned in the several items ; and this was the only natural, or even plausible, method of determining his meaning, as well as legal method of con- struing his will. Harrington, Ch., announced the opinion of the Court. The testator died in 1845, leaving to survive him six sons, viz., Nathaniel, William, Isaac, Samuel, Robert, and Henry; and two daughters, Letitia Harrington and Mary Callaway ; and two grandchildren, Edmund, the only child of his son Jacob Graham, deceased, and Jacob G. Lewis, only child of his daughter, Ann Lewis, deceased. These are his heirs-at-law and residuary devisees, under the twelfth item of his will. Nathaniel died in 1846, leaving two children, George and Ann, the latter of whom has since died with- out issue. Henry died after his father in 1845, without issue. William also died in 1845, after the death of his father, and without issue. Isaac died in 1840, and Robert in 1850, both without issue. Samuel in 1854, leaving six children, live of whom are now living. Since the death of William Graham, his interest and title, as also that of Nathaniel, Isaac, Robert, and Samuel, have become vested in George W. Taylor, and the lessors of the plaintiffs claim in each case six-fortieth parts of the premises in 27 410 COURT OF ERRORS AND APPEALS. question. These several eases depend on the construction of the several items of the will set forth in the case stated, and the events afterwards occurring on which any legal contingency that the will interposes depends. In regard to the fourth item, containing the devise to William, there is no doubt that the farm devised to him, and upon a con- tingency to the remainder of the testator's sons then living, was a devise in fee, both in the first devisee and in the re- maindermen, because of the charge upon them, in respect of the farm, of a gross sum to be paid to the testator's grandson Edmund Graham. The general principle's ap- plicable to that, as well as the other devises, are as follows : A general devise without words of inheritance or limita- tion carries but a life estate to the devisee; but this rule, being one of technical restriction, is subject to the follow- ing exceptions. If there be no residuary devise, and the intention of the testator clearly appears to dispose of his whole estate by the will, a general devise will be enlarged to a fee to carry out that intent, if such intent can be applied to the devise in question. Cowp. 660. Where the testator uses terms which apply to his interest in the land, and not merely to the land itself, a general devise of such interest will carry a fee, if such was his interest in the premises; as when he devises his " estate" at such a place; his " right," or his "part," of an estate held with others, or his " share," referring to his interest, and not to the corpus of the property. But where the term employed applies more properly to the land itself than to his interest or estate in it, a general devise carries but a life estate: as in a devise of "my house" or " farm," at such a place, or "a part of my hou.se," " farm," or " plantation," at such a place. ll./oA/^-. 38!> ; 11 Et, If 52; 54 Encj. C. L. R. 282. It', however, there be a charge on the devisee in respect of the land devised to him, and not merely a charge on the land itself, it will enlarge the general devise to a fee: for otherwise the devise might prove injurious to the devisee. IS MM. 3,">; 14 Kr.-l,. AY//. 6SM, TO."), 710 a. The devise to William with remainder o \verif he should DOE d. HARRINGTON v. DILL. 411 die leaving no lawful heir of his body who should arrive to the age of twenty-one, upon condition of their paying two hundred and fifty dollars to Edmund Graham, falls under this last exception v and makes the devise over a fee, and consequently an absolute defeat of the estate first given to William, whatever may have been the legal character of that estate. The lessors of the plaintiff there- fore cannot recover upon any claim founded on the fourth item of the will, which the Court construes as a devise to William in fee simple, defeasible on his death without lawful heir of his body who should attain full age, with an executory devise in fee to the remainder of the testa- tor's sons then living. In respect to this part of the case, therefore, it is the unanimous opinion of the Court that the plaintiffs are not entitled to recover. But on the next point of the case the opinion now about to be announced by me is that of a majority. The construction of the third, ninth and tenth items of the will, is equally governed by the principles before stated ; and they each contain a devise to the first devisee in fee conditional with an executory 'devise for life to the devisees over. And this limitation of the devises over to life estates, raises the question principally discussed in the argument, namely, what becomes of the ultimate interest after these life estates were determined. The plaintiffs contend that the first estate though in fee, but being a defeasible fee, as all agree it is under each of these de- vises, it was defeated by the happening of the contingen- cies provided for, namely, the taking effect of the devises over though but for life, and being once defeated it was destroyed, and that the ultimate interest passed under the twelfth iti'in of the will, as a residuary devise to the heirs generally of the. testator, and did not revert to the heirs of the first devisees in tee conditional. For the defendants, on the contrary, it was contended, that on the taking effect \> ' O of the devises over for life, the preceding devises in fee were not absolutely defeated or destroyed, but were only impaired or abridged, }>i'v (/)/<), and, on the determination 412 COURT OF ERRORS AND APPEALS. of the life estates, the premises reverted to those interested in the prior devises in fee simple, and passed to their heiro- at-law. This idea appears to have originated with Mr. Preston, unquestionably a learned text-writer on the Law of titles to real property, who claims credit for the discovery, say- ing, " That there is a sixth species of executory devise of real property may be concluded from general principles ; and it may be defined to be, where there is a devise of an estate of inheritance, or any other estate, and on some event a particular estate to a stranger is introduced to take place in derogation of the estate of inheritance, and to a particular though not total exclusion of the same :" 2 /Vest, on Estates, 140. Powell, another equally learned text-writer, approves of the principle suggested by Mr. Preston, but denies that it has any foundation in any ad- judged case, and admits that it introduces a new qualifi- cation to the position long before laid down by Mr. Fearne, a writer of the highest celebrity, which is, " That a con- dition or limitation must determine or avoid the whole of the estate to which it is annexed, and not determine it in part only and leave it good for the remainder :" Fearne 's Essay, 251, 530. The text of Powell is as follows : " To this important rule, namely, that an estate subject to an execu- tory devise, to arise on a given event, is, on the happening of that event, defeated only to the extent of the executory interest, the only possible objection that can be advanced is the total absence of direct authority for it; for the books do not furnish a single example of its application." The decision in Hanbury v. Cockrctt, cited by Mr. Preston, certainly involves no such doctrine, since it simply af- firms the validity of the executory limitation to the survi- vor for life, in the events that had happened, and leaves the question as to the destination of the ulterior interest quite untouched. It is merely, therefore, the instance of a limitation which might have raised the question, and of which the case of Doc. d. Sheers v. Jeff cry, 1 T. R. 589, affords another example. There also the decision of the DOE ((en, J., dissented from the opinion of the majority of the Court, as announced by the Chancel- lor on the last point in the ease, holding that the devises over of the life estates in the third, ninth, and tenth items of the will, on the happening of the contingencies therein mentioned, to the remainder of the testator's sons then living, were in derogation merely of the estates in tee de- DOE d. HARRINGTON v. DILL. 415 vised to the first or original devisees in those items of the will respectively named, and impaired and abridged them pro tanto only, and that on the determination of the life estates devised over, the premises in question reverted and passed to the heirs-at-law of the original devisees in fee, and not to the heirs-at-law generally of the testator under the residuary devise contained in the twelfth item of the will. SUPERIOR COURT. FALL SESSIONS. 1857. DOE, on the demise of GEORGE M. DAVIS, v. JAMES VINCENT, Tenant in possession. The testator, by his will, devised all his lands to his wife during widow- hood, with authority to cut timber, and use the land as she saw proper, and to sell and convey any part of them, excepting not less than four hundred acres to the farm whereon he lived, which he willed not to be sold during her widowhood, or the minority of their youngest child. HI- also, in a subsequent item of his will, empowered her, by her last will and testament, to "devise the estate, both real and personal, to their children or their proper heirs, as she might deem right and equal in her best judgment, which should be final." Held, that this did not confer power on the wife to devise the four hundred acres in the home farm to her executors to be rented during the minority of the young- est child, and then to be sold by them, and converted into money, to be invested for the benefit of the children. The intention to execute a delegated power must appear in the execution of it ; either by it reference to the power itself, or to the subject-mutter of it, in a way to leave no doubt of the intention to execute the power. 'Fins was an action of ejectment, brought by (Jeorirc M. Davis, tin 1 plaintiff, to recover the one undivided fourth part of four hundred acres of land, situate in Northwest Fork Hundred. .John (ioslin, bv his last will and testa- ment, devi.-ed the tract in question as follows : " I o;ive and bequeath to my beloved wife, He>ter (ioslin, all mv lands, diirino- the term of her widowhood and no longer, and I DOE d. DAVIS v. VINCENT. 417 further give to her the right and privilege of using the same as her own in every respect during said term, to cut and clear all or any of the lands within the present inclosure or elsewhere, as she may, in her judgment, deem proper, and to cut and get rails and bark or any other wood or timber, and to sell the same to defray expenses of improve- ment, or to pay debts due upon the estate until the estate is finally settled. And I further give to her the right and power, that at any time she may sell all or any part of my lands or rights of lands in or out of the State, that she may deem proper, and make a good and sufficient deed of title to the same fully and effectually, excepting not less than four hundred acres of land to the home farm where I now live, which I will not to be sold during her term, or the minority of our youngest child. I further give and be- queath to my beloved wife, Hester Goslin, all my personal estate of every kind, after the payment of all my just debts and burial expenses, during the term of her widowhood, and she may give off to any of the children at any time in case of need or marriage, any part of the estate she may deem proper, cither real or personal, and I devise to her the right that she may, in her last will and testament, de- vise the estate, both real and personal, to our children or their proper heirs, as she may deem right and equal in her best judgment, which shall be final." The testator, John Goslin, died, leaving to survive him his widow, Hester Goslin, and four children, the eldest of whom, Ann Kliza Goslin, afterwards intermarried with the plaintiff. Hester Goslin, the widow and devisee, continued in possession of the land, up to her death, in November, 1852, having made her last will and testament, wherein she devised among other things as follows: " Item fourth. It is my will and desire that my real estate, comprising about four hundred acres, shall, after my decease, he rented out by my execu- tors hereinafter named, to a good tenant or tenants, until my youngest daughter, Hester Lavinin, shall arrive at the age of t \vent v-one vears, and the net rents and profits be divided annually and equally between my tour children, 418 SUPEEIOR COURT. Ann Eliza, Mary Catharine, Sarah Emma, and Hester Lavinia, and paid over by my executors to them respec- tively. Item fifth. My will and desire is, that as soon as my dear daughter, Hester Lavinia, shall arrive at the age of twenty-one years, my executors hereinafter named shall advertise and sell at public sale all my real estate, on a cre- dit of one, two, three, and four years, in equal annual pay- ments, with interest on the whole unpaid sum annually, secured by bond and ample security, and payable as fol- lows: the first bond and interest to my daughter, Hester Lavinia ; the second bond and interest at two years to my daughter, Sarah Emma; the third bond and interest at three years to my daughter, Mary Catharine ; and the last and fourth bond and interest at four years to my executor hereinafter named, as trustee for my daughter, Ann Eliza, the interest of which to be paid over to her, independent of her husband, annually by the said trustee, and should the said bond mature, and be paid over to the said trustee in the lifetime of my said daughter Ann Eliza, then the said trustee shall, without delay, invest or loan out the same, in his name as trustee, on interest, and the sums accruing thereon to be paid over annually to her, independent of her husband, by said trustee ; but at the death of my said daughter Ann Eliza, the trusteeship shall cease, and the said bond, rights, or effects by this will arising out of the sale of my personal or real estate, whether in the hands of my said executors or in that of the trustee, shall pass to and belong to my said (laughters who shall survive her, them and their heirs, in equal proportions," &c. The exe- cutors named in the will took upon themselves the execu- tion of it, and executed a lease of the premises to the defendant, the tenant in possession. On the iWd of July, 1853, George M. Davis and Ann Kliza his wile, the plain- tiffs, by deed of bargain and sale, sold and conveyed all their undivided estate, right, title, and interest in the pre- mises, to John Redden, who shortly afterward, by his deed of bargain and sale, reconveyed the same to the plaintiff, who afterwards made a formal demand of the defendant to DOE d. DAVIS v. VINCENT. 419 be let into possession of the premises, and the defendant refusing to admit him, this action was instituted, A receipt from Davis and his wife to one of the executors, for her share of the rent of the premises for the year 1853, was produced, proved, and put in evidence on the trial. W. Saulsbury, for the plaintiff: Under the will of her husband, John Goslin, Hester Goslin, his widow, had no right to dispose of the land as she has attempted to do in this instance, and has manifestly exceeded the power and authority conferred upon her by it. By his will she had but an estate in the premises during her widowhood, with- out impeachment of waste, with authority to herself alone, during her widowhood, to sell and convey, by good and sufficient deed, any portion of his real estate she might deem proper, excepting not less than four hundred acres of land to the home farm belonging, and to give off during that period any part of it she might think proper in case of need or marriage, to any of the children, and with the right and power also to devise the same, by her last will and testament, to their children and their heirs, as she might deem right and equal according to her best judg- ment, which was to be final and conclusive as a disposition of the property. Under the will of her husband, Mrs. Goslin had no authority to sell these lands after the deter- mination of her widowhood, or to direct this real estate after her death to be either rented or sold and converted into personal property, by her executors, or any one else. It is true that she had the power conferred upon her by his will, to sell any of bis land during her widowhood, ex- cepting these four hundred acres, and with a special and limited authority (luring that time to give any part, even of this tract, to any of the childremin case of need or mar- riage, and also by her will at her death to devise it to their children and their heirs, as she might deem right and equal, that is to say, in such proportions as she might consider just and proper. Hut there was nothing in tin- will to warrant such a disposition of it by her after her 420 SUPERIOR COURT. death, as she has attempted by the devise in question nothing to warrant her in directing it to be rented out un- til the youngest child attained the age of twenty-one years, much less after that to warrant her executors in selling this real estate, which he was careful to preclude even her from selling in her lifetime, and converting it into money, to be secured and invested and unequally paid and distri- buted in the manner directed in her last will and testa- ment. Not having the power herself in her lifetime to sell this land, and not having the power by the will of her husband to direct, by her own will after her death, that it should either be sold or rented out as she has indicated, it is clear that she could not confer that power upon her ex- ecutors, or any other person ; for even if the power to sell this tract had been conferred on her, she could not have delegated it to another, because a delegated power cannot be delegated. The question then arises, has Mrs. Goslin by her last will and testament duly executed the powers delegated to her by the will of her husband ? On the contrary, is it not apparent from a comparison of the two instruments that she has clearly transcended in these respects the authority and powers conferred upon her for any purpose either ex- pressed or implied in it? If so, the devise in her will to her executors with directions to rent these four hundred acres until her youngest daughter, Hester Lavinia, should arrive at the age of twenty-one years, and then to sell the same at public sale to the highest purchaser, and to convert the whole of it into personalty, is clearly inoperative and void, and the lease of the executors under which the de- fendant claims to retain the possession of the premises is a nullity. There was another objection to her will iu this respect, to which he would advert in his opening. Ft is a maxim of law that if a partv possessing a power docs not attempt or indicate a purpose to pur-uc it, he must IK- held to re- pudiate and renounce the- power. Now in tins cast', it would lie observed in reading over the will of Mrs. (ioslin, DOE d. DAVIS v. VINCENT. 421 that she makes no allusion whatever to the will of her hus- band, or to the powers conferred upon her by it, but every- where speaks of these four hundred acres as " my land," without any reference to the source from whence she de- rived her limited title to them, or to her specially delegated power of devising them, but proceeds to dispose of them precisely as if they were her own absolute property ; thus manifesting an intention on the face of her will to pay no attention to the power delegated to her for this purpose, but to devise them as her own altogether independently of it. Robinson, for the defendant : Under the will of John Goslin, Hester Goslin, his widow, who did not marry again, took an estate for life in the four hundred acres of land in question, which was the only real estate of which he died seized, with a power to devise the same to be rented until the youngest child arrived at age, and after that to be sold, and to appoint the proceeds of the sale among the four children, as she might deem right and equal according to her own judgment and discretion ; and if such was the case, then her will was a good and valid ex- ecution of the powers conferred upon her by him. To as- certain the meaning of the testator, the whole will must be taken and construed together. Adopting this rule, we find the general intent of the testator to be, in the first place, to invest his wife after his death and during her widowhood with a large discretion over his real and per- sonal estate, even to the power of selling, during her widowhood, any or all of his real estate, " excepting not less than four hundred acres of land to the home farm, where he then lived, which he directed should not be sold during her term, or the minority of their youngest child." These are the words of the testator, excepting the particu- lar tract in question from the general operation of the de- vise and the power conferred fora time merely, and \vhich he directed "not to be sold" (luring the widowhood of his wife or the minoritv of their voun<^est child. And after 422 SUPERIOR COURT. prescribing this limitation of time within which this par- ticular tract should not be sold, he proceeds, in the second item of the will, to give Mrs. Goslin full power and autho- rity, during her widowhood, to bestow any part of his es- tate, either real or personal, in case of need or marriage, on any of their children, and at her death, to devise the estate, both real and personal, by her last will and testa- ment, to their children and their heirs, as she might deem proper. On this latter point the words of the will are, " And I devise to her the right, that she may in her last will and testament devise the estate, both real and personal, to our children or their proper heirs, as she may deem right and equal in her best judgment, which shall be final." AVell now, taking all these provisions together, and par- ticularly with the comprehensive power and general dis- cretion delegated in the last clause read, do they not indi- cate an evident intention on his part to authorize and em- power her, by her last will after her death, and when she had ceased to be their guardian and protector, to dispose of these premises in any manner which she might deem best for the future provision and welfare of their children, all of whom were daughters? It is manifest that Mrs. (ioslin so understood the will of her husband, and it was for this reason, construing the provisions of the will alto- gether, so as to preserve the particular as well as the gene- ral intent of it, that she directed in her own will that these four hundred acres should not be sold, but should be rented out during the minority of their youngest child. Hut she conceived that after that the limitation on the sale of it, prescribed by the will of her husband, would expire, and that she might then by her last will and testament direct it to be sold, if she deemed it best for the interest of their children, without violating the intention of her husband, or exceeding the ample power and discretion vested in her for that purpose. I'owei's are but modifications of estates in land, and are governed by the IT' i n era! intent of the testator. I)'i>i<]. ">7 : >: :] //"/r. 1446;-C'"H/>. I'fjfj ; 1 /V. Urn*. 141); :j 7w>7, 4-41; '1 DOE d DAVIS v. VINCENT. 423 Burr. 1146 ; 10 East, 436 ; 1 Sug. on Powers, 357 ; 1 Taunt. 289 ; Adams on Ejectm. 83. And uo particular form of words is necessary to create a power of sale, for it is suf- ficient if there be an apt instrument, a proper object of the power, and the intention is manifest. 1 tiug. on Powers, 117, 184, 415 ; 3 Ves. Jr. 513 ; 4 Kent's Com. 319. A power to appoint the land is well executed by a devise of the land to be sold, and an appointment of the proceeds of the sale. 6 Ves. 797; 2 Vern. 86; Eq. Cases, 68; 5 Ves. 445; 1 Kug. on Powers, 405. And a devise of the rents and profits or the proceeds of the sale of land, is a devise of the land itself. 22 Eng. C. L. R. 19; 4 Kent's Com. 536; 2 Ilarr. Hep. 19. If, then, the powers delegated to Mrs. Goslin by the will of her husband were not transcended, but were properly executed by her in her own will, within the mean- ing and intention of her husband, the devise to her execu- tors to rent the land during the minority of her youngest daughter and afterwards to sell the same is good, and the legal estate is vested in them as trustees for these purposes, and it was not competent for the plaintiff and his wife by their deed of bargain and sale to Kedden to divest that estate, but the same is. still in the trustees, and the lease is binding on all the ccstuis fjuc trust, and the possession of the defendant is entirely lawful, and must prevail in the present action. But there is another matter to which the attention of the Court should be directed, and that was the fact proved, that Davis and his wife had accepted and received, in 1853, their share of the rent of these premises accruing on the lease from the executors to the defendant, which was an acknowledgment on their part of the rightful and lawful tenancy of the defendant, which would entitle him to due and written notice before it could be determined, and with- out which the plaintiff was not entitled to ret-over. Mr. S.((*bttr>/ replied. And to afford the Court an op- portunity to consider of the question, a verdict was taken for the plaintiff, by the consent of counsel, subject to the 424 SUPERIOR COURT. opinion of the Court as to his right to recover, with leave to the defendant to move to set it aside, if the opinion should be in his favor. Houston, /., now announced the opinion of the Court. From the consideration which we have been enabled to give to the questions presented in this case, it is the opinion of the Court that the plaintiff is entitled to recover, and that the verdict should not be disturbed which has been returned in his favor. The receipt from Davis and his wife to Kinder, one of the executors of Mrs. Gosliii, for their share of the rent of the premises in 1853, paid over by the defendant to the executors under whom he leased the land, in the judgment of the Court is no bar to this action. For if Mrs. Goslin had no authority, under the will of her husband, John Gos- lin (which we think she had no't), to devise these lands by her last will and testament to her executors to be rented by them after her death, during the minority of the young- est child, and on her arrival at age to be sold by them, as directed in her will, then no receipt by the plaintiff, or plaintiff and wife, to the executors, on account of rent paid or delivered by the defendant to them as his landlords, can cure the defect or remedy the deficiency in her power for that purpose, or defeat the legal title and right of the plain- tiffs to recover in this suit. If Mrs. Goslin had not the power under the will of her husband to make such a de- vise of the premises in question, no admissions in pa is of the plaintiff could give her that authority, or enlarge the operation of the power conferred upon her, so as to bar him of his right to recover under the evidence adduced in this case; for that must depend upon the will of her hus- band when properly considered and construed, and not on the subsequent acts and acknowledgments of the parties interested, such as were put in evidence on the trial. We do not think, if Mrs. Goslin had possessed the power under the will of her husband to sell these lands during her widowhood (and which she had not), that she could DOE d. DAVIS v. VINCENT. 425 have delegated that power to her executors after her death, even if she could have delegated the power to another during widowhood, the general maxim on this subject being ddegatus non potest delegare. And although her hus- band expressly desires in his will that these lands shall not be sold during the widowhood of his wife, or the minority of their youngest child, and notwithstanding he gives in the succeeding item of his will, the right to his wife by her last will and testament to devise the estate, real and per- sonal, to their children or their lawful heirs, as she might deem equal and right in her best judgment, we do not con- sider that any power was delegated, by implication or other- wise, to Mrs. Goslin to devise these lands to her executors to be rented by them after her death and during the mi- nority of their youngest daughter, and on her arrival at age to be sold by them, and the proceeds of the sale to be secured and paid over by them to their four daughters, as directed in the fifth item of her will. In the disposition which she has thus attempted to make of the laud, we think she has transcended the limits of the power conferred upon her by the will of her husband, and this we regard as the main objection which has been taken to the appointment or execution of the power delegated to her. The will of her husband authorizes her to devise " the estate, both real and personal, to their children or their lawful heirs, as she might deem equal and right in her best judgment." But this she has not done ; for instead of devising the real estate to their children or their lawful heirs as real estate, she has devised it to other persons, first to be rented and afterwards to be sold by them and converted into person- alty, and to be secured for the benefit of the daughters in such manner as others may deem sufficient, to be paid at unequal times, and in reference to the portion to be secured for the wife of the plaintiff, not to go to her or her lawful heirs, but to another, to be held in trust for her, the interest to be paid to her during life, independent of her husband, and after her death the principal to be paid over to the heirs of her body, \ Co. 140; 2 An-lib. X. I\ 21!); IM. on -SV/-o//', 54; 2 Cram'h, 341; 8 Wcml. 530. And of this opinion was the Court. The testimony was excluded. K. U. (.'idlcn, for respondent. W. X'tidxhurij, for appellant. HICKMAN & CO. v. BRANSON. 429 GEORGE W. HICKMAN & Co., Assignees of WILLIAM E. TORBERT & Co., v. SAMUEL BRANSON. A joint judgment entered against the individual members of a late firm, on a bond and warrant of attorney executed for them by one of the members, but without their proper authority, is neither binding on them, nor on the member executing the bond and warrant of attorney. THIS was a rule, obtained by George W. Hickman & Co., assignees of William E. Torbert & Co., to show cause wherefore a judgment entered by confession, and an exe- cution issued thereon, at the suit of Samuel Branson against the late firm of William E. Torbert & Co., should not be set aside. It appeared by the affidavit and evidence for the plaintiffs in the rule, that the bond and warrant of attorney on which the judgment was entered, was executed in the name of the late firm of William E. Torbert and William L. Torbert by William, E. Torbert, but that lie had 710 autho- rity to sign and execute the same so as to bind. the firm, or William L. Torbert, the other member of it, as he had no authority from the latter to sign and execute the bond, or to confess the judgment against him individually, or against the late firm of William E. Torbert & Co., which had been previously dissolved on the 10th of March, 1857, and Wil- liam E. Torbert, as the duly constituted successor of the firm, having made a bona Jidc assignment of the debts due it, on the 26th of the same month, to the firm of George W. Ilickman & Co., the latter engaging to collect the debts due to and pay the debts due from the late firm of William E. Torbert & Co., of which they were also creditors at the time of the assignment made to them. For the defendant in the rule, it was proved that the assignment in <]uestion was made in consideration of the relinquishment of the claims of such of the creditors of the late firm of William E. Torbert & Co. as were then present, but that the defendant, who was a creditor of the firm, was not present at the meeting, and that William L. Torbert had stated, 430 SUPERIOR COURT. since the dissolution of the firm, that William E. Torhert had authority from him to sign the bond and warrant of attorney to the defendant, but without saying what was the nature of his authority. Also, that certain creditors of the firm were preferred, and had been paid in full, in conside- ration of which they had assented to the assignment, and others under it were to be paid unequal dividends, some amounting as high as to ninety per cent, of their demands. For the plaintiffs, it was argued that an individual mem- ber of a firm cannot bind it by deed, unless authorized to do so by deed, and as the successor of the firm of William E. Torbert & Co., William E. Torbert had full power and authority to make the assignment in question to the firm of George W. Ilickman & Co. Story on Partn.,scc. 122; 5 Hill, 107. For the defendant, it was denied that he had authority to make the assignment, but the same, it was contended, was fraudulent and void as to the defendant, who had not assented to it, because it preferred creditors, and debts not then due, as the claim of Ilickman & Co., to the defendant's debt, which was then due, and because it unjustly discri- minated between the claims of creditors, and made an t un- fair and unequal distribution among them. By the Court : It is not necessary to notice or pass upon the objections which have been raised against the validity of the assignment to Ilickman & Co., for it is proved that they are hnnn Ji09; 8 Harr. 17. To allege and plead, therefore, that the plaintiffs never indorsed, nor authorized their attorney to indorse, the judgment for his use, not only contradicts the record as certified under the proper seal and signatures in the State of Ohio, but would be wholly immaterial, even it' it were so; because they are still the only legal plaintiffs whom this Court can recognize, or know in the prosecu- tion of the present action, and the indorsement of this, or 434 SUPERIOR COURT. any other use, can have no effect to defeat their right to recover. The next or third pica in the series is still more peculiar and remarkable, and comes nearer home; for it is a pica to the right or authority of your humble servant, as an attorney of this Court, to bring this action on the judg- ment for the said plaintiffs. I might have joined an issue in fact upon that allegation by traversing the plea; but even admitting it to be true, it is not a matter to be pleaded in bar of the action, as a legal defence to the right of the plaintiff' to recover in it. 5 Halst. Hep. 257; 2 South. 817. C. 8. Lttyton, for the defendant : Whatever may be the weight of the technical objections urged against the first and second of these pleas, he had good reason to believe that the facts alleged in them were strictly true and sus- ceptible of proof, if the evidence could be admitted. But if not, then the hardship and injustice of the matter would be the greater, inasmuch as this judgment was obtained by warrant of attorney and confession, without any plea or defence in Ohio. Tenncnt was, as he had been informed and believed, a silent partner in the firm of C. T. Cannon & Co., and was jointly liable with him and Carpenter for the original debt for which this judgment was given; and when he paid the amount of it to the attorney of the plaintiffs, it was paid by him as such, in satisfaction of the judgment, and not with the view, or with the understanding on the part of the plaintiffs, that it was to be assigned to him, to be afterwards enforced and again collected in their name out of his copartners. The judgment lias been standing for more than ten years, perhaps, since he paid it; in the meantime Carpenter has died, and Cannon lias recently returned to this State, having succeeded to the inheritance of some property in this county by the death of his father, and the judgment is now indorsed by the- original attorney of the plaintiffs in Ohio, but without their knowledge or direction, as is believed, for the use of Tennent, who has since sent it on here for collection from him. The case is, therefore, not without substantial merits by way of a just SYDAM & EEED v. CANNON. 435 defence on the part of the defendant, and if the amount were larger, redress would be sought before another tribu- nal, if that defence should prove to be unavailable in this Court. On that point, however, he should not enlarge, but content himself with a brief reference to a few autho- rities, and cited 8 Johns. 361; 5 Harr. 344, and Jtoss. Civil Ev. 233. By the Court: The objections taken to these pleas by the plaintiffs on the demurrers are all good, and for the reasons which their counsel has assigned in his argument. This is an action upon a judgment recovered in Ohio, by Sydam & Reed, the plaintiffs, against Cornelius T. Can- non and Gabriel Carpenter, who are the only parties de- fendant upon the record of the suit, and as to which the record must be held to be final and conclusive, and can- not be contradicted, qualified, or impeached in an action here upon it, by endeavoring to show that there was an- other party, who should have been included in it. What- ever may have been the original liability of these parties for the debt when it was first contracted, that liability was discharged when Cannon and Carpenter gave and Sy- dam & Reed accepted their bond for it, and the nature of the debt was still further changed and extinguished and made exclusively their debt, by the subsequent re- covery of the judgment against them upon it, as it thereby became a new debt of a higher grade, a debt of record against them. There is therefore no reason now for say- ing that Tennent is jointly interested or liable with them in this judgment ; and it was no defence, even in Ohio, to say that lie was jointly interested with them in the original transaction, after the bond of Cannon and Carpenter had been taken in discharge of the debt. The other two pleas are also immaterial, and equally defective on general de- murrer; because they are both entirely addressed to the right of a third person to recover, who is not a le^al plain- tiff in the suit. The indorsement of the use mav at anv monieiit be stricken out without aHectinr the action. 436 SUPERIOR COURT. Every good pica in bar must go to the merits of the ac- tion, and must constitute a legal defence against the right of the plaintiff on the record to recover, which neither of these pleas can be said to do, as the person for whose use the judgment and suit arc indorsed, is no party in a legal sense to this action. Judgment must therefore be entered for the plaintiffs on the demurrers. The case afterwards came up for trial at the same term on the other pleas and issues joined upon the record, one of which was payment of the said judgment by the said John II. Tennent, one of the members of the said firm of C. T. Cannon & Co., when the counsel for the defendant submitted it to the jury on the charge of the Court as to the defence presented by this plea. It appeared from the evidence adduced on both sides that the amount of the judgment had been paid by Tennent to the plaintiffs, and the point which he wished to present was, that the plain- tiffs were not entitled to recover in this action, unless they could show that it was assigned by them to him at the time of the payment of it by him, and not afterwards. 1 U. & Dig. 329, sec. 84. The counsel for the plaintiffs replied, and cited 2 tiaund. Pi. 'ii'(~/cd the jury: That if the swine were trespassing on the premises of the defendant, and broke through his iuclosures, which had been found 29 442 SUPERIOR COURT. by the fence-viewers to be lawful and sufficient fences, he had a right to take them up, and it was no conversion on his part to impound them. But if while they were thus in his possession he killed any of them, or did any injury to them, by reason of which they died after he turned them out, it would, in the opinion of the Court, amount to such a destruction of the property as would constitute in law a conversion of it, and for which the present action would lie. If, however, the defendant killed them in the act of trespassing upon his corn, or shot them Avliile runnin'g at large, and when they were not so in his possession, in con- sequence of which they either then or afterwards died, he would not be liable in trover, but would be in trespass for the loss which the plaintiff had sustained by it. For the provision of the statute referred to had not abolished the distinction between the two actions, to the extent sug- gested by the counsel for the plaintiff. The object of that provision, as we have frequently had occasion before to rule, was simply to abolish the technical and often refined distinction, existing at common law, between actions of trespass on the case for consequential damages and actions of trespass r/ et armis for direct and immediate injuries, so far as the forms of the actions merely were concerned in such cases, and nothing more. Verdict for defendant. C. S. Lmjlon, for plaintiff. Robinson, for defendant. Tut; STATE, for the use of (TIDKOX BruTOX, v. Ffi;xiU' F, and HKXRY F. HALL. After a goinTal Iruve granted to amend the pleadings without qualitica- tion. thi- Court will ii"t, "ii motion, .-trike out a ju-'a of the statute of limitations entered under the leave. But if objected to at the time of BUETON v. RODNEY ET AL. 443 the application to amend, after issue joined, the Court will not permit it to be entered. In an action on an executor's bond, the party for whose use the suit was brought for a legacy, recovering judgment, was ordered to enter into bond to the executor to refund, to meet outstanding debts, &c., and ex- ecution stayed till the order should be complied with. THIS was an action of debt, against Henry F. Rodney and Henry F. Hall, on the testamentary bond of the former, as the executor of Robert Burton, deceased, for one-fourth of the residue of his personal estate, bequeathed to Gideon Burton. Charles M. Cullen, for the defendants, moved to strike out the replication of the statute of limitations to the plea of set-off, because it was entered by the plaintiff after the case was at issue on its merits, on leave granted by the Court to amend ; for the Court will not permit the plea of the statute of limitations, or any other than a plea to the merits, to be entered after the case is at issue, under leave to amend. 2 Harr. 444 ; 3 Harr. 75. By the Court : In the cases cited the counsel was required by the Court, at the time of making his application for leave to amend, to state the nature of the plea he desired to enter, and it appearing to be a plea not to the merits, but of the statute of limitations, the leave was refused. But in this case no such question was made at the time of the application, and a general leave was granted without qualification to amend, which authorized the plaintiff to reply de novo, if he saw proper, and it was therefore now too late to object to the replication, or to move to strike it from the record. On the trial the plaintiff recovered a verdict for 88SH.78, for which the Court rave judgment. But as it was alleged O *' O O and made to appear on the part of the executor that the es- tate was not yet settled, and that there were outstanding debts against it still unpaid, the Court made an order, requi- ring the party for whose benefit the suit was prosecuted, to 444 SUPEKIOK COUET. enter into bond with security to the executor to refund, &c., pursuant to the provisions of the statute. Rev. Code, 305, sec. 37 ; Fitchett v. Dolbee, 3 Harr. 368. The Court also directed stay of execution on the judgment to be entered, until the order should be complied with. C. S. Layton, for plaintiff. C. M. and E. D. Cullen, for defendants. JONATHAN MILMAN, JR., v. WILSON SHOCKLEY. A dog that kills, wounds, or worries sheep, may be killed by any person with impunity. ACTION of trespass for killing two dogs of the plaintiff, valued at thirty dollars. It was proved that the plaintiff was hunting at night with the dogs, which were hounds, and was near, but not on the premises of the defendant, when a gun was tired, and on coming up with his dogs, he found one of them shot in a public pass-way, and the other further on in the field of a neighbor of the defendant. The defendant soon afterwards came up with a gun in his hands, and admitted that he had shot them, but alleged that he heard his sheep running, and a bell jingling, as if they were pursued by them, though he could not say that the dogs were actually in pursuit of them, as it was dark, and he could not see them until they passed near him soon afterwards, when he fired at them, but he did not know whether lie had hit them; one thing, however, he knew, that his sheep had been frequently attacked by them. It was also proved that one of the dogs had before been seen to chase and worry sheep belonging to another person. MILMAJST v. SHOCKLEY. 445 On this evidence a question arose, and was argued by the counsel as to the meaning and extent of the act of As- sembly on the subject. Rev. Code, 142. C. S. Layton, for the plaintiff: It could not be the mean- ing of the act that it should be lawful for any one, at any time, without limitation of days, months, or years, to kill a dog upon the mere statement of another, that at some time or other he had seen him, in the language of the law, " kill, wound, or worry a sheep," without the sanction of an oath, or any regard to the credibility of the witness making the statement. And although the statute made it lawful for an} 7 person to kill such dog, did not the rights of property require that any one who assumed to exercise this summary power of killing the dog, should be at least prepared to prove, and to take the burden of proving, that either he saw the dog in. the guilty act, or by some good and reliable and sworn witness, that he had been guilty "of it beyond a doubt ; and furthermore, that he had exercised this high prerogative, vested in sheep-owners and every malignant dog-hater, within a reasonable time after the offence had been committed ? Did not the statute reason- ably imply that any one who took upon himself the respon- sibility of exercising this summary power of destroying another man's property, even of this nature, should him- self have seen the dog actually attacking sheep, and that he thereupon speedily despatched him, not six months, or a year, or, perhaps, six years afterwards? There was no proof in this case tliat the dogs were even pursuing the defendant's sheep, much less, that they had killed, wound- ed, or worried them. It was well known to be the natural propensity of every puppy or young dog to pursue any animal that would flee from it; and yet under such a con- struction of the act as had been stated, it would bo lawful for any one to slay such puppy for such an act, years after- wards notwithstanding lie mav have turned out in the o v mean time to bo a sedate and sagacious dog of the most useful and unexceptionable qualities. 446 SUPERIOR COURT. For the defendant, it was insisted that the Legislature, in its wisdom, had seen proper to place all sheep-killing dogs and sheep-worrying puppies in the category of public nuisances, which anybody might abate, and put out of th,e pale which the law had provided for the protection of the rights of property. That the Legislature had, so to speak, outlawed all such worthless animala; and if the jury were satisfied from the proof that the dogs of the plaintiff had at any time killed, wounded, or worried sheep, the defendant might kill them with impunity. And of this opinion was the Court, and so charged the jury- Verdict for the defendant. C. S. Layton, for plaintiff. Me Fee and W. Saulsbury, for defendant. THE STATE, for the use of ELIZABETH C. DEPUTY, by her guardian, LEVIN PETTYJOHN, v. DAVID BLOXOM and PHILIP C. JONES. In a suit by the State for the use of an heir-at-law on an administration bond for breaches of the condition, in not filing an inventory of the goods and chattels in six months, and not rendering his account in one year after his appointment, it is no defence to the action to plead that during the pendency of it, the administrator has been duly removed from office, and an administrator de /mnis non has been appointed. But without proof of special damage by reason of the breaches assigned, the plaintiff can only recover nominal damages. DEBT on administration bond for the use of Elizabeth C. Deputy against David Bloxom as the administrator of Nathaniel Deputy, deceased, and Philip C. Jones, his surety. There were sundry breaches assigned in the ?^/rr, as is usual in such cases, and among them that the adminis- trator had not filed an inventory and appraisement of the. STATE USE OF DEPUTY v. BLOXOM & JONES. 447 goods and chattels of the deceased and a list of the debts due him, in the Register's office, within six months after his decease ; and in the next place, that he had not rendered a just and true account of his administration within one year from the date of his appointment as such administra- tor. To all the breaches assigned the defendants filed sun- dry pleas, on which issues were joined ; but at the ensuing term they obtained leave to amend, arid the cause was con- tinued, after which they entered the following additional pleas generally to the breaches assigned : 1. That since the issues above joined, David Bloxom had been removed from the administration of the said estate by the Orphans' Court, and been ordered by the said Court without delay to pay and deliver all the unadministered goods and chat- tels, rights and credits, moneys, securities, books and pa- pers, belonging to the estate of said deceased, to William F. Jones, who was appointed receiver thereof by said Court ; and, 2. That since the above issues were joined, the said William F. Jones had been duly appointed by the Register of the county, and was now the administrator de bonis non of the said Nathaniel Deputy, deceased, and was duly en- titled to receive the same. To these latter pleas a general demurrer was entered by the plaintiff, and the only ques- tion for the Court to consider was, whether these pleas were any answer to the breaches above specially set forth, and whether the plaintiff was not entitled to a judgment thereon for nominal damages at least. By the Court: For the plaintiff, it is contended in tins case, that having instituted this suit for the breaches alleged and set forth of the condition of the administration bond, and the same being pending and at issue in this Court at the time of the removal of the administrator from the ad- ministration of the estate, and the fact of those breaches not being denied by the pleadings in the case, it is no defence to her right to recover on them, to allege that removal and the appointment of an administrator at case is concerned: But the question presented here did riot arise in that case. That was a suit by a suc- ceeding against a removed administrator and his sureties on his bond, to recover a residue remaining in his hands at the time of his removal, for distribution among the heirs-at-law, the debts against the estate having been set- tled. But here the action is by an heir-at-law against the removed administrator and surety, for not filing an inven- tory and rendering an account of his administration within the time appointed in the condition of his bond, and fixed by law. These are breaches for which the succeeding administrator could maintain no action on the bond, be- cause there is no stipulation or provision in the condition of the bond to give him that right, and lie is not affected by them, since lie is in no manner liable for these breaches himself, as they are no omissions of his. It appears from OBIER v. NEAL. 449 the record that administration on the estate was committed to Bloxom, August 20th, 1853, and that he was removed on the 4th of March, 1857. It was his duty to have filed his inventory in six months, and passed his account in one year after his appointment. But this, it is alleged in the breaches in question, he failed to do, and the allegation is not denied, but is in effect confessed in the pleas demurred to, which seek to avoid the breaches by a special plea, which is no defence to them, for the reasons which we have before stated. This is not a suit against Bloxom as admin- istrator, and never was, but is against him and his surety individually and personally. Therefore, there is no reason for saying that it has abated by his removal from the ad- ministration, and the appointment of another to succeed him in the office. Judgment must be rendered for the plaintiff on the demurrer; but as no special damage is shown by reason of the breaches complained of, it can only be for the nominal sum, besides her costs of suit. C. S. Layton, for the plaintiff. W. Saulsbury, for the defendants. JOSHUA OBIER v. JOSEPH KEAL, WILLIAM XEAL, and WILLIAM II. son cannot justify an assault and battery in defence of his father, if the latter was the aggressor and a trespasser from the beginning of the combat with another ; but if he was not, the son can then only justify such a degree of force as is necessary for the father's defence and se- curity from the attack of the other party. ACTION" for an assault and battery. Joseph Xeal as- saulted Obior with a large stick, uplifted with both hands, and drawn Lack in a threatening manner. Obier seized 450 SUPERIOR COURT. a small one, but which he did not raise, but held in his hand by his side, when Neal struck him a hard blow on the top of his head with his stick; and then Obier returned the blow with his stick, but with less violence, on the side of Neal' s head. They then dropped their sticks and closed with each other, when William Neal seized the plaintiff by the right arm, and while he thus held him, William II. Neal caught up the stick which Joseph Neal had dropped, and struck the plaintiff Obier a severe blow over the head with it, William II. Neal pleaded a justification of his assault and battery upon the plaintiff in defence of his father, Joseph Neal; and upon this evidence the counsel on both sides invoked the charge of the Court as to the sufficiency of his plea of justification under the circum- stances. The Court, Gilpin, Ch. J"., charged the jury: That to sus- tain the plea it must appear that the father was first assailed by the plaintiff, and was resisting his attack, when the son interfered to defend him. For if the father was the aggres- sor and committed the first assault, and was consequently a trespasser from the beginning of the combat, and was not himself justifiable in the assault and battery committed by him upon the plaintiff, then the plea of the son could not avail him, for he became a co-trespasser with his father, and was liable with him in the action. But if the father was not the aggressor, and a trespasser himself from the beginning of the fight, and was only repelling the attack of the plaintiff in his own defence, when the son inter- posed, as he might lawfully do in such a case in defence of his parent, then he would not be liable; provided he used only such force as the danger to which his father was exposed at the time rendered necessary for his defence, and security. If, however, he exceeded that degree of force, even under such circumstances, lie would still he liable. Verdict for the plaintiff. ('. S. IJ.S'S, 4 Harr. 104. WOOLMAN & SULLIVAN v. ZEBLEY & MOERIS. 459 D. M. Bates : The present case differed from the one cited. There the will was sustained, and the result justi- fied the executor in the expenses incurred in vindicating the validity of it. But in this case the result was other- wise ; for the will was set aside, and the executor conse- quently had not the justification and the same equitable claim upon the estate to be indemnified out of it, for his necessary expenses in defending it. The question had fre- quently been before our courts, but the practice would be found to be, that in every case where the costs had been allowed out of the estate to the executor, the will had been sustained. By the. Court : In the case of Hearn v. Ross, the Court after argument sustained the allowance of the register for the counsel fees paid by the executor in defending the will, and we only conform to the usual practice in such cases in sustaining the allowance of the register in the pre- sent instance. The order appealed from is therefore af- firmed. DANIEL WOOLMAN and JOHN W. SULLIVAN, trading as "\VOOLMAN & SULLIVAN, v. JONATHAN ZEBLEY and DANIEL MORRIS, trading as ZEBLEY & MORRIS. Leave to amend a replication will not be granted after the plaintiff has closed his testimony, and the defendant has proceeded to examine wit- nesses in support of his plea, to enable the plaintiff to take advantage of such proof, by the amendment asked for. DECLARATION in assumpsil. Plea, release. Replication that the release was obtained by fraud and misrepresenta- tion. After the jury had been sworn and the plaintiffs had closed their testimony, and the defendants were proceeding with the examination of their witnesses, and had proved the execution of the release from the plaintiffs to the dc- 460 SUPERIOR COURT. fendants, and its subsequent loss, but were unable to state from recollection the terms and conditions of it, the counsel for the plaintiffs asked the leave of the Court to withdraw and amend their replication to the plea of release, so as to traverse the plea generally, without replying per frau- dem, &c. By the Court : The application to amend the replication at this stage of the trial comes too late, after the plaintiffs have closed their testimony and the defendants have pro- ceeded to offer evidence on the very point which the plain- tiffs now propose to take advantage of by an amendment of their replication. Patterson, for the plaintiffs. Gordon, for the defendants. SAMUEL W. DAVIS v. WILLIAM M. BONNEWELL. If a machinist undertakes to construct a machine for the inventor, accord- ing to a model furnished by him, and to supply the materials for the purpose, and he constructs it so unskilfully as to be of no use for the purpose for which it was invented, he can recover no compensation for his work and labor, or the materials supplied by him. But it is other- wise, if the failure be owing to defects inherent in the model. Tins was an action of assumpsit, with the usual pleas, for work, and labor, and materials furnished by the plaintiff in the construction of a machine for cutting standing corn, invented by the defendant. The defendant, who resided at Camden, had there exhibited a model of the machine, then recently invented by him, to A. II. Harvey, a ma- chinist of Wilmington, and after some conversation be- O ? tween them in regard to the expense of making such a DAVIS v. BONNEWELL. 461 machine, requested him to construct one according to the model for him, which Harvey consented to do, or to have done for him ; but no special contract was entered into, and no price was agreed upon between them for the work. Harvey, as the defendant supposed, was to find such ma- terials as might be necessary, and was to construct the machine, or was to have it done at his establishment in Wilmington, and was to be paid for it by the defendant when it was finished. Harvey, however, on receiving the model after his return to Wilmington, not caring to under- take the work himself, spoke to Davis, the plaintiff, another machinist, to make the machine and find the materials, and passed the work entirely over to him, but without informing the defendant that he had done so. On the defendant's visiting Harvey afterwards, to ascertain what progress had been made in the construction of the machine, he took him to the shop of the plaintiff, and, after intro- ducing him to the latter, exhibited the work to him in his presence, and then left them, and afterwards paid no further attention to the matter, but still without informing the defendant that he had delivered the work entirely over to the plaintiff. The defendant then directed the plaintiff to make some alterations in the plan of the machine; and in all his subsequent visits to Wilmington, to see about the work, he always called at the shop of the plaintiff, and gave him directions in regard to it, and conferred with him in relation to it; and during the progress of it, vari- ous modifications and alterations were suggested by the plaintiff as improvements in the machine, and were acqui- esced in by the defendant. After considerable delay, the work was finally completed by the plaintiff, and the ma- chine was sent by him to the defendant, at Camden ; but proved, upon a full and practical test of it, to be of no value for the purpose for which it was invented. It varied in several important particulars from the model furnished for its construction, and among; other defects was much heavier than was necessary, or the design of the defendant required, and when put in motion would neither operate 462 SUPERIOE COUKT. successfully, nor hold together more than a few minutes. It was also proved, that the defendant afterwards con- structed a machine himself, according to the model fur- nished the plaintiff, which was much lighter, and which, on actual experiment, was found to answer the objects of its invention, and to operate very well. The defendant, without returning, or offering to return, the machine sent to him by the plaintiff, refused to pay for it; and this suit was brought to recover for the work and labor bestowed upon it, and the value of the materials used in the con- struction of it. Bradford, for the plaintiff, contended that the defendant was liable to the plaintiff for the work done upon the machine with his knowledge and consent, and that the facts proved would sustain the action, although the defence would be that the plaintiff was employed by and acted as the agent of Harvey solely in the construction of the ma- chine, and not by the employment or direction of the de- fendant himself. But his repeated visits to the shop of the plaintiff, and interviews and consultations with him during the progress of his labor upon it, and the changes and modifications in the plan of it, as originated and suggested by the plaintiff, with a view to render it more efficient and complete, and to which the defendant freely assented on his part, taken in connection with his knowledge of the fact that the plaintiff not only had the principal, but the entire and exclusive management of its construction, and that Harvey, after his first visit to Wilmington, had nothing further to do with it, and was never afterwards seen or consulted by him in regard to it, all concurred to prove, or at least to raise a strong presumption that the defendant must have been aware that Harvey had no further connec- tion with the business, but that the plaintiff had been, from the first, substituted in his place to do the work for the defendant, and that he fully approved of and assented to it ; and if such was the case, then the defendant was clearly liable to the plaintiff in the present action. As to the DAVIS v. BONNEWELL. 463 alleged failure of the machine, after its construction, if the jury should not be satisfied from the evidence that it arose from radical defects inherent in the invention, or model itself, but was owing to the alterations and variations from the plan suggested and introduced by the plaintiff, it fur- nished no defence to the action for his work and labor upon it, and the materials supplied by him for it; because every one of these changes were approved and assented to by the defendant, before they were introduced in the con- struction of the machine. But the defendant, in addition to this, had not only neglected and omitted, on receiving it and discovering its failure to operate as designed, to notify the plaintiff of that failure, which possibly he might easily have remedied, but he had also entirely neglected to return it upon the hands of the plaintiff, or to offer to return it to him ; on the contrary, he still retained it, with all the materials in it furnished by the plaintiff at his own cost and expense, whilst he r'efused to pay anything for it. Fisher, for the defendant, in the first place, argued that, on the facts proved, the plaintiff had no right to maintain this action against the defendant; and his only remedy was against Harvey, who employed him to do the work without the knowledge of the defendant, and who supposed all the time it was in progress, that the former was having it done for him by the plaintiff, according to the original under- standing between them in regard to it. That he knew Harvey to be a skilful machinist, and reposed confidence in him for that reason; but he had no previous knowledge of the plaintiff, and would, therefore, have never thought of employing him for any such purpose, and never con- sidered him in his employ at any time during the progress of his work upon the machine. The bill for it was an exorbitant one, and the machine had proved on trial to be a total failure, and was utterly worthless. Xor was this owing, in any degree, to defects inherent in the model, us had been clearly proved ; but it was entirely attributable to the imperfect manner in which it hud been constructed, 464 SUPEEIOR COURT. and the unwise and fatal alteration which he had advised the defendant to consent to allow him to introduce into the plan of it. Its failure, therefore, to answer the purpose for which it was designed, was entirely owing to the in- competency and misconduct of the plaintiff in his special line of business; and as no benefit whatever had been derived by the Defendant from it, the plaintiff was not en- titled to recover any compensation for it. Com. on Contr. 227; 2 Stark. Ev. 642; 1 Stark. Rep. 86; Hall v. Cannon, 4 Harr. 360. Bradford, for the plaintiff, replied. The Court, Houston, J., charged the jury : That if the con- tract or understanding between the defendant and Harvey was, that the latter should construct the machine or was to have it constructed for the defendant, the plaintiff could not maintain the action, unless it appeared from the evi- dence, to their satisfaction, that the work was passed over by him to the plaintiff, to be entirely devised, superinten- ded, and performed by him, and not by himself, or in his establishment, with the knowledge and consent of the de- fendant ; for in such a case the plaintiff might recover, if the jury were satisfied from the evidence that the defen- dant, with knowledge of the substitution of the plaintiff by Harvey in his place, assented to it, and afterwards looked to him and not to Harvey, as the machinist who was to do the work for him. But unless this appeared, the plaintiff could not maintain the action, and his only redress would be against Harvey who employed him to do it. As to the manner in which the work had been done, it seemed that this was a machine which had recently been invented by the defendant, and the object was to have a trial machine constructed according to a model submitted by him; and if the machine was skilfully made according to that model, or according to variations or modifications introduced into the plan of it with the approbation and concurrence of the defendant, and it failed of its object in CEAWFORD v. ELLIOTT. 465 consequence of deficiencies or defects inherent in the model itself, or in the plan of it as modified with the assent of the defendant, the plaintiff would be entitled to recover a fair and reasonable compensation for his labor and the mate- rials furnished by him in constructing it, to be determined by the jury; provided they should be satisfied that he was entitled to maintain the action on the point first adverted to and stated by him. If, on the contrary, it should appear from the evidence that the deficiency was not in the model, but was in the unskilful and defective manner in which it was constructed by the plaintiff, and in consequence of that fact it was of no use or value to the defendant as a machine for cutting corn, the plaintiff was not entitled to recover in this action. Verdict for defendant. ELIZABETH CRAWFORD v. JAMES ELLIOTT, Garnishee of WILLIAM B. CRAWFORD. The interest or share of an heir-at-law in a recognizance in the Orphans' Court is liable to attachment. If a person leave or disappear, the presumption iii favor of life continues until a period of seven years has elapsed without any tidings or intelli- gence of him ; but after that the rule is reversed, and the law presumes his death, unless the contrary be shown. THIS was a fi. fa. attachment case, at the suit of Eliza- beth Crawford against William B. Crawford, laid in the hands of James Elliott, garnishee. Plea nulla bona. The debt attached was the sum of $200, due the defen- dant in the writ from Elliott, the garnishee, on a recog- nizance in the Orphans' Court, entered into by him on the purchase of a portion of the intestate real estate of his father, James Crawford, deceased, who died March 3d, 1854; the recognizance was entered into September 2d, 1856, and the attachment was issued May IGtli, 1S5G. 466 SUPEEIOR COURT. It was in proof that William B. Crawford had left the State in 1842 or 1843, and had emigrated first to Ohio, and afterwards to Missouri, whence he removed in 1847 to California, since which time no tidings or intelligence had been had of him by any of his family or friends in this State. T. F. Bayard, for the garnishee, took the ground, first, that an attachment would not lie for the interest of an heir in a recognizance in the Orphans' Court. State v. Huxley, 4 Harr. 344. The condition of the recognizance, together with the remedy, which is by scire facias in the name of the State, and which can alone be sued out and prosecuted in the name of the State, and not in the name of the heir, as for a debt directly due to him, forbids in such a case the process of attachment by a creditor, because it was incon- sistent with that remedy. But there was another and per- haps a better ground of objection to the recovery of the plaintiff in the attachment. It was proved that William B. Crawford left the State fourteen or fifteen years ago, and in 1847 removed to California, since which time nothing had been heard of him, and as the legal presump- tion of his death arose after the lapse of seven years with- out any tidings of him, he must be presumed to have been dead at the time of the death of his father in 1854, and was consequently not an heir of his; or at all events, that he was dead at the time when the recognizance was en- tered into and when the attachment was issued ; and if so, then he had no interest in the recognizance, and the attach- ment must fail. Rev. Code, 263; 2 Wend. Black. Com. 177, in note; 27 Eng. C. L. 11. 42. Patterson, for the plaintiff, replied, and on the question of presumption as to the death of William IS. Crawford, insisted that it was incumbent upon the defendant, who al- leged the death, to prove it, which had not been done. Wilson v. Hodges, 2 East, 312. MCDOWELL v. SIMPSON & WIFE. 467 The Court, Gilpin, Ch. J., charged the jury : It is well settled that an attachment will lie against a recognizer in the Or- phans' Court, and it has been repeatedly so recognized and ruled by the courts in this State. It was also a well- settled rule of law in England, prior to the declaration of independence, and is now recognized as a well-settled principle of law in this and other States of the Union, that if no tidings or information be had of a person for a period of seven years, he is presumed to be dead, and the burden of proof is devolved upon the party who alleges the con- trary, to prove that he is living. The rule is, that if a per- son leaves or disappears, the presumption in favor of life continues until a period of seven years has elapsed without any intelligence of him ; but after the seven years have elapsed without any tidings of him, the rule is reversed, and the law presumes his death, unless the contrary be shown. 1 Greenl. Ev., sec. 41. THOMAS MCDOWELL, defendant below, Appellant, v. WIL- LIAM A. SIMPSON and Wife, plaintiffs below, Respondents. If the declaration in appeal from a justice of the peace fails to corres- pond with the transcript of the suit below, in the names and number of the parties, the character or right in which they sue, or in the cause or form of action, the proper mode to take advantage of it is by motion to set it aside for irregularity, and not by plea in abatement, on the ground of variance between the narr and the transcript. APPEAL from a justice of the peace. It appeared from the transcript that the suit below was instituted in the name of William A. Simpson by his wife, late Hannah A. Kobinson, against Thomas McDowell, and that the suit was entered and docketed in this Court in the same manner, but the declaration was tiled in the names of Wil- liam A. Simpson and Hannah A. Simpson, his wife, against 468 SUPERIOE COURT. Thomas McDowell. To this declaration the appellant pleaded in abatement the variance between the suit as instituted below and the declaration filed in this Court, and relied on the change of the parties in the pronarr to sustain the plea. The plea, however, on inspection did not appear to be either in form or substance a plea in abatement, but a special plea in bar to the action. Never- theless, it was considered and argued by counsel on both sides, as a plea in abatement merely. By the Court : This is not a plea in abatement either in form or substance, nor is the variance relied on properly the subject-matter of a plea in abatement; nor can it be properly pleaded in bar of the action. It is not a plea of the former description, because it neither, commences nor concludes as a plea in abatement, but as a plea in bar, nor does it pretend to furnish the plaintiif below with a better "writ or process for the institution of his suit in this Court, as every plea in abatement of the writ must do, and which in no case originating here by appeal, of course, could be done. Neither can it be treated as a plea in bar, although the matter relied on, that is to say, the inability of a hus- band to sue by his wife, would constitute a complete de- fence to the suit as instituted below, because a plea in bar is always addressed to the declaration, and the declaration here is all right and in proper form. We consider, however, the variance in this case between the transcript of the suit below and the pronarr filed in this Court, though not a proper ground for either a plea in abatement or a plea in bar, for the reasons stated, a fatal objection to the prosecution of the appeal ; for had the declaration conformed to the transcript, it would have been defective on general demurrer, and could not have been sustained. Instead therefore of seeking to take advantage of this objection by a plea in abatement, or in bar, the proper course in our opinion for the appellant to pursue would be, to move to set aside the declaration for irregularity; be- FLINN v. PHIL. WIL. & BALT. RAILKOAD CO. 469 cause at law, it is the first requisite of a declaration that it shall correspond with the process on which the action is founded, first, in the names of the parties, secondly, in the number of the parties, thirdly, in the character or right in which they sue or are sued, and fourthly, in the cause and form of the action ; and if it fails to correspond with the process in any of these particulars, the Court will, on motion, set it aside for irregularity. 1 Chit. PL 222, 223, 226, 254 ; 1 B. $ P. 383 ; I Saund. 318 ; 5 T. It. 722; Tidd's Pr. 426; 4 Johns, 485; 8 Cow. Ill; I P. $ Duer's Pr. 420; 6 T. R. 158; 8 T. E. 416 ; 3 WUs. 61. Patterson, for appellant. Gordon, for respondent. JOHN FLINN v. THE PHILADELPHIA, WILMINGTON, AND BAL- TIMORE RAILROAD COMPANY. Depositions taken on a commission out of the State may be read in evi- dence, notwithstanding the deponent is present in court arid ready to testify as a witness at the trial of the case. A master is not liable to his servant for injuries occasioned to him by a fellow-servant in the course of their common employment, provided the latter is a person of competent skill and care ; because when the former engages in the service of the master, he undertakes, as between himself and the master, to incur all the ordinary risks of the service, which includes the risks incurred from the negligence of his fellow- servants in the same employment. But a drover travelling in a freight train of a railroad company with live stock, for the purpose of taking care of his live stock in its transporta- tion over the road of the company in such train, although it may be the established usage of the company in such cases to grant to the owner of such live stock a drover's ticket, for the purpose of accompa- nying and taking care of his own stock in such train, on his releasing the company from any risk or liability to him for the safe transporta- tion of such stock, and paying the rate of freight charged for it, and without his paying any fare or compensation to the company for his 470 SUPEEIOR COURT. own passage in the train, other than what was included in the amount of freight charged and paid on his stock, which by the regulations and practice of the company was twenty-five per cent, higher in rate, when neither the owner nor any agent of his accompanied the stock on the train for the purpose of taking care of it, will not constitute in law the relation of employer and employee, or of master and servant, for the occasion, between the company and such drover and owner or agent so travelling under such circumstances and upon such terms and for such a purpose, on such a train. But, on the contrary, where it is the usage and practice of the company, in such cases, to issue to such a person a special ticket, called a drover's ticket, on his paying the freight on his stock, and executing a release to the company from any liability to him for the safety of its transportation, containing a notice that the comr pany will not be responsible for the personal safety of the holder of it in travelling over their road by such train, and restricting his right and privilege to travel under it to the freight trains of the company only, it was held that a drover travelling on such train with his live stock, and who had paid the usual freight chargeable under such cir- cumstances upon it, and released the company from its liability for the safe transportation of it, whether he had or had not such a ticket as a drover's ticket at the time, was rightfully and lawfully a passenger on such freight train ; and although he had paid no fare or compensation for his own passage, except such as may have been embraced in the freight paid on his stock, under the circumstances and in the Advan- tages and exemptions accruing to the company from his presence and personal attention to his own property on the train, and notwithstand- ing he was travelling, not in a passenger train, but in a freight train, in which the company never carried, or advertised, or held itself out as prepared to carry passengers, or any class of persons other than dro- vers, or their agents travelling with their live stock, and then only on the terms and conditions as to their personal safety before stated, still the company stood in the relation and sustained the obligations of a common carrier of passengers for hire towards him, and were liable as such to him for injuries suffered by him in a collision between such train and another freight train of the company, occasioned by the negligence or want of skill on the part of its servants in charge of either or both of such trains ; and that an action on the case would lie against the company by reason of its liability as a common carrier of passengers for hire under such circumstances, to recover damages for such injuries; because under such circumstances it would not be the case of a special undertaking by the company as ordinary bailees for hire, to carry the party over its road on an express contract that the company should not be liable for his personal safety, and if liable at all would only be liable as such ordinary bailees, or as a private carrier for compensation in another form of action, that is to say, in an action of assumpsit based specifically on such express contract. Common carriers consist of two classes, common carriers of goods, and FLINN v. PHIL. WIL. & BALT. KAILROAD CO. 471 common carriers of persons for hire; and railroad companies being in- corporated by law for the transportation of passengers as well as pro- perty, for hire, are common carriers of both descriptions. But if, as a general thing, they confine the transportation of goods to their freight trains, and the conveyance of passengers to their regular passenger trains, they are common carriers of goods as to the former, and of pas- sengers as to the latter ; nevertheless, if by the latter they are in the habit of carrying goods for hire, they may become common carriers of goods by such trains, and if by the former they are in the practice of carrying passengers for hire, such as emigrants, or drovers, or any other class of traders with their property, they may also become com- mon carriers of passengers as to such persons by such trains, as well as of property, and may thus assume the obligations and liabilities of common carriers indifferently both of persons and property by such trains. There is a wide distinction, however^, between the liability of common carriers of goods and a common carrier of persons for hire. The former are responsible for all injuries to the goods, except such as are caused by the act of God, or the public enemies, even in the ab- sence of negligence ; because the former are regarded in law in the light of insurers of the goods committed to their charge, against all other injuries ; whilst a common carrier of passengers is liable for in- juries to the latter only in case of negligence. But the law in its be- neficence will not allow of any trifling with the lives or personal safety of human beings, and therefore exacts great care, diligence, and skill from those to whom, as common carriers, they commit themselves. The degree of skill, care, and diligence required of common carriers of passengers and of their servants, and especially of railroad companies, employing as they do the powerful and dangerous agency of steam, in such cases, is none the less, but only the greater for this reason. If it was the practice of the company to receive and carry the owners of live stock with their stock on its freight trains, upon their paying the freight charged in such cases, and the plaintiff had paid the freight on his stock and was travelling in such a train in conformity with such usage, then he was there rightfully and lawfully, and the company and its servants were bound to exercise the same degree of care and dili- gence in conveying him over the road in the train in question as would be incumbent by law on common carriers of passengers for hire gene- rally ; and so far as this duty was concerned, they stood in a no loss re- sponsible relation to him. For it would be inconsistent with this rela- tion and utterly at variance with the duty which the law, on the ground of public policy and as the conservator of the lives and security of pas- sengers, imposes on common carriers of persons, to allow of an exemp- tion, or limitation of the responsibility of the company, siu-h us was contained in the notice indorsed on its drovers' tickets, for the personal safety of such passengers against injuries resulting from its own, or the negligence of its servants. On the contrary, if the injuries complained of by the plaintiff were the result of such negligence, tho company 472 SUPERIOR COURT. would be liable for them notwithstanding such notice and limitation of its liability in such cases. If, however, the injuries complained of by the plaintiff were occasioned by bis own fault or negligence, or if his own conduct or imprudence co- operated with the negligence or misconduct of the servants of the com- pany to produce them, he could not recover for them; because he could not hold others liable for the consequences of his own negligence or misconduct. But the detention of the train in which he took passage, by his request, beyond its usual time of starting, for the purpose of ac- commodating him in getting his live stock upon it, without which it was alleged and contended the collision in question would not have happened, was not a circumstance of this nature, or such as would throw upon him the responsibility for the disaster ; because the delay in the departure of the train was not his act, but the act of the com- pany, or its servants, and the original detention itself was altogether immaterial, if the accident was the result of subsequent negligence on the part of the latter, at any time after the train started, as it must have been, if it was the result of negligence at all on the part of the company, or its servants. THIS was an action on the case, tried before Wootten and Houston, Justices (Gilpin, Ch. J., not sitting, in conse- quence of bis being a stockholder in the company), brought by John Flinn against the Philadelphia, Wilmington, and Baltimore Railroad Company, to recover damages for per- sonal injuries sustained by him on the night of the 18th of March, 1856, in a collision between two freight trains of the company, while he was on his passage in one of them from Baltimore to Philadelphia. The plaintiff resided in Wilmington, and was a drover and butcher, and was engaged in the business of buying and transporting sheep and cattle over the road of the company, from Baltimore to Philadelphia. In the after- noon of the day mentioned he arrived at the depot of the company in Baltimore, with a flock of sheep, a short time before the hour of starting the regular freight train for Philadelphia, which was live o'clock; and as he was anx- ious to get on with them that night to Philadelphia, he applied to the proper ollicer of the company for that pur- pose, and obtained his consent to delay the departure of the train until he could get his sheep on board. After a detention of half an hour beyond the usual time of leav- FLINN v. PHIL. WIL. & BALT. RAILROAD CO. 473 ing, the sheep were got on board and the train started, the plaintiff taking passage in it with his stock for Phila- delphia, for which he paid $73 freight, the usual rate charged when the owner accompanied his stock on the trains of the company, but without paying any fare for his own passage ; as it was the custom and regulation of the company in such cases, to charge twenty-five per cent, less freight on the transportation of live stock when the owner or his agent went with them to take care of them, and in consideration of this fact, to ask no fare or additional pay for the passage of such owner, or his agent. It was also a further regulation and practice of the company in such cases, to require of the owners of live stock transported over the road, a release to the company from any liability for the safety of it, and to issue to the owner a special ticket, entitled a " drover's ticket," which stated on its face that it entitled the holder to pass from and to the points indicated in it, only on freight trains, for the pur- pose of taking care of his stock, and on the reverse of it was contained a printed notice to drovers, that no risk would be assumed by the company, nor would any damage be allowed, unless specially agreed to when the stock was taken for transportation, and an additional price of twenty- five per cent, on tariff rates paid; one driver free when accompanying the stock, to take care of it and paying the regular price, but in no case to be allowed to ride in pas- senger trains on such tickets; and no risk would be as- sumed by the company for the safety of such person. But whether the plaintiff had executed such a release, or had such a ticket on the occasion in question, did not appear from the evidence. It was proved, however, that he had executed such releases to the company on previous oc- casions, when transporting stock over their road, and that he was aware of the conditions contained in the notice to drovers, as above stated. It was not the practice, but contrary to the instructions and regulations of the company to carry passengers gene- 31 474 SUPERIOR COURT. rally, or any other persons than drovers, by their freight trains from Baltimore to Philadelphia, and without such a ticket, a drover would have no right, according to the re- gulation, to travel even on a freight train ; and even then, he was not considered by the company a passenger, but only as a person on the train to take care of his stock, for the, equal benefit of himself and the company. The train in which the plaintiff took passage with his stock was termed the regular or through freight train from Baltimore to Philadelphia, and consisted that even- ing entirely of stock and freight cars, with the exception of a common storage car, in which the men employed on the train sometimes rode when the weather was cold or inclement, and an emigrant car attached to the rear of the train on that occasion, for the purpose of being taken back to Philadelphia, and which was the only car in the train which had a stove or fire in it that evening. There were two other trains which left Baltimore the same evening for Philadelphia, after the departure of the regular freight train above mentioned. The mail train, which left at forty-five minutes after six o'clock, and an extra freight train, which left at half past seven o'clock; of the latter of which the conductor and engineer of the re- gular freight train had due notice before leaving Balti- more, and that it would follow them after the departure of the mail train, though the time of its starting wan not stated to them. The weather was threatening, and snow began to fall before the first train left Baltimore; it made, however, its usual time to the customary turn-out, where it halted, for the next succeeding or mail train to pass it, and which soon afterwards passed, displaying a signal light, denoting that there was still another, or extra train, to follow it that evening in the same direction over the road. After the passage of the mail train, the regular freight train resumed the- track and proceeded on its course, but owing to the increased fall of the snow and the force of the wind, which was ahead, it was retarded in its usual rate of speed, and FLINN v. PHIL. WIL. & BALT. RAILKOAD CO. 475 was unable to make more than eight miles an hour over the ascending grades of the road ; and whilst upon one of these grades it was overtaken and run into, thirty miles from Baltimore, by the extra freight train, which had fol- lowed it, but had not been impeded in its progress by the prevailing snow-storm, in about two hours after it had left that city. At the time of the collision, the foremost train had two lights set, one on the engine and another on the rear end of the hindmost car, but owing to the falling snow and the thickness of the atmosphere, the engineer of the extra train did not discover the regular train until he was within a hundred yards of it, when he immediately ordered down the brakes, but not in time to prevent the collision. The engineer of the forward train did not observe the other train, and had no intimation of its approach, until he felt the concussion produced by the collision. The plaintiff, together with the conductor and one of the brakesmen of the regular freight train, was at the time in the emigrant car attached to the rear of that train, which was badly stove and crushed by the engine of the extra train, and by which the conductor and brakesman were instantly killed, and the plaintiff was severely injured. lie was so severely scalded by the escape of steam from the engine of the rear train into the car in which he was seated, that he was now entirely blind, and was literally without eyes. In conse- quence of the intense scalding of his head and face, they had both been incurably injured internally, and in a short time the interior portions of them began to suppurate, and the entire balls had since flowed from their sockets. From the same cause the skin of his head had more than once sloughed off with both of his ears, and ho was permanently injured in other portions 6"f his body. He had also by the burning and scalding of his left hand been entirely bereft of the use of it for lite ; and it is perhaps allowable for the reporter to add, that it was still a marvel to all who even then beheld him that lie had survived such a catastrophe and the injuries whieh he had suffered from it. 476 SUPERIOR COURT. Evidence was also adduced on behalf of the plaintiff, to prove his circumstances ; his sober and industrious habits, the number and the expenses of his family, the profits of his business, and his strict attention to it, previous to the disability entailed upon him by this misfortune. During the examination of the testimony, the counsel for the plaintiff also offered in evidence the deposition of a witness taken out of the State on a commission issued for that purpose, which was objected to on the other side, be- cause the witness was then in court for the purpose of being sworn and examined, and was ready to testify in the case in the regular and usual method, if his testimony was desired. James A. Bayard, for the plaintiff: The commission, which was absolute in its terms, was duly executed in con- formity with the authority of the Court, and the party taking it had a right to have the deposition read in evi- dence, although the witness may have since come into the State, and may even now be present in court. It is distin- guishable under the provisions of the Constitution from a commission de bcnc etse, that is to say, a commission for taking the testimony of aged, infirm, or departing wit- nesses, as to which the Constitution provides that the de- position shall be read in the event of the death, departure out of the State, or inability of the witness to attend at the time of the trial. But there is no such provision in the case of a commission dvdmms potcslatcrn, or a commission to take depositions out of the State, which is absolute on its face and not subject to any such condition. When a deposition has thus been taken, the party is never bound to call the witness, even though he may be in Court, but may read his deposition in evidence ; the opposite part}*, however, may, if he chooses, have the witness called and sworn and may examine him on his side, notwithstanding he may have omitted to file cross-interrogatories on the issue of the commission. 4 Mil.. E>\ 1:50; 1'lnm.r v. />"/'/- triii, 14 HVw/. 02. FLINN v. PHIL. WIL. & BALT. EAILKOAD CO. 477 D. M. Sates, for the defendant : The taking of testimony on commission in any instance, is a departure from the common law method, and is regarded in courts of common law as an inferior mode of eliciting evidence, and is only to be resorted to from necessity, when the witness is beyond the reach of the process of the Court, and his testimony cannot be had in the usual and better method. But the very reason and necessity for its admission in the case just mentioned, will and ought to exclude it when the wit- ness is actually in Court and can be examined in its presence, in a much more complete and satisfactory man- ner. It is an invariable rule of law to require the best evidence which the nature of the case will admit of, and this mode of adducing testimony is acknowledged to be contrary to the course of the common law, and necessarily inferior in its nature ; and it must therefore be understood as an implied or necessary condition of the commission, that the deposition shall only be used as a substitute for the testimony of the witness in the usual and better method, when he cannot be produced and examined. By the Court: We recognize the distinction between a commission of this kind and a commission de benc esse to take the depositions of aged and infirm witnesses within the State, under the provisions of the Constitution, as the latter are only to be read in evidence in case the witnesses are unable to attend, while the former are without any such condition or qualification ; and as this is a document duly connected with the case, returned and filed under the rules and authority of the Court, we think, in accordance with the cases cited, that the party is entitled to road it in evidence to the jury. The counsel for the defence then proceeded to examine their witnesses, and the testimony being closed, the argu- ment commenced before the jury. JJrftdford , for the plaintiff: This is an action against a corporation, which is a common carrier for hire, made so 478 SUPERIOR COURT. by public statute and incorporated for that purpose, over whose road it is necessary for us all to pass, whenever we have occasion to travel to or from the great cities which it connects ; for by the great improvement which it has con- structed, and the superior facilities for travel which it affords, it has long since superseded all other modes of public conveyance, especially for the transportation of pas- sengers between those two points, as well as between all intermediate places on the line of this railroad ; and the consequence is, that it now enjoys almost the sole and exclusive benefits of that travel, and reaps the rich profits and rewards accruing to it from the large and lucrative business which it has thus established and secured to itself as common carriers of passengers, at least, between these various points. This suggestion, however, is made for no improper purpose, but simply to show, that if the general remark so often made at the present day be true, that the railroad has become a public necessity, this has proved to us a necessity in more senses than one ; and hence the duty enjoined upon those who own and have the management of such works and improvements as common carriers, to exercise the strictest vigilance to protect the lives of pas- sengers and to guard against accidents and injuries to their persons, while travelling by this dangerous mode of con- veyance, is all the greater and the more obligatory upon them, in consideration of the facts to which I have just adverted. Without intending, however, to disparage, or complain of the general management and conduct of this company, whose road, up to the time of the catastrophe in question, had been operated with more than ordinary safety and security, perhaps, to passengers, lie should contend that in the case now before them, and on the melancholy occasion when the plaintiff sustained the great and irre- parable injury, the damage of which they were to estimate, the servants of the company having the conduct and con- trol of the train in which he was travelling, were guilty of gross and culpable negligence, in consequence of which he sustained that injury; and that being at the time a pass.en- FLINN v. PHIL. WIL. & BALT. RAILEOAD CO. 479 ger on the train for hire, as he should insist, he is clearly entitled to maintain the suit, and to recover in this action. Every person who takes his seat in a train of railroad cars commits himself to the custody of the company and its servants for safe transit over the road, and in proportion, to the implied trust and confidence necessarily reposed in their prudence and Discretion, is the diligence and fore- sight which the law imperatively imposes as an obligation upon them; and such is the character of that obligation, that he should take the ground, that in order to exonerate the defendants from any liability on account of the injuries sustained by the plaintiff, it would be necessary for them to show that the accident was one which no human fore- sight could have prevented. But before he proceeded to the consideration of this point, he would inquire, what was the relation subsisting between the plaintiff and defendants at the -time of the accident? The defendants, as he had before said, w r ere common carriers of persons as well as goods, and the plaintiff stood in the relation to them of a passenger for hire. He was on the ill-fated train as a drover with his flock; that is to say, he was in a train particularly designed for the accommodation and transportation of that class of persons passing over the road with such property. By the regulation of the company he had a right to travel in that train without further compensation to the company, on paying the freight for his stock according to the rates charged under the circumstances; and having paid the freight according to the rate required, he could not justly be denominated a free passenger, as might be contended for on the other side, becau.se his passage was included and paid for in the price of the freight. Assume it as a fact, although it had not been proved, that he had executed no release to the company from liability for the safety of his stock, and that he had at the time no drover's ticket, as required by the custom and usage of the company, could that affect his right to recover in this action? And if he had not, whose fault was it? He had paid for his right in 480 SUPERIOR COURT. the manner stated, and in the mode required by the com- pany, to go in that train, and he had a right to be there and to travel in it, whether he had such a ticket or not; for the ticket, after all, was only evidence for the conductor that the passage had been paid for ; and if he permitted a passenger to remain in the train without demanding the production of his ticket, it was omission of duty on his part, but it could not make the passenger a trespasser, or exonerate the company and its agents from their obligation to carry him safely and securely, so far as human diligence and foresight, under the circumstances, would permit. As to the degree of diligence required of railroad com- panies under such circumstances, there was a difference between a contract to carry passengers and a contract to carry goods. For the safety of goods, a common carrier was absolutely bound at all hazards ; but for the safety of passengers, he was not liable, if the accident was one which human foresight could not have prevented. Christy v. Griggs, 2 Camp. Rep. 80 ; 2 Kent Com. 600 ; Aug. $ Ames on Corp. 492; Stokes v. Saltonstall, 13 Peters, 115. Common carriers of passengers were bound to the utmost care and diligence, and the slightest neglect, or accident against which human foresight could guard, would render them liable. Mcllroy Wife v. The Nat. Lowell R. R. Co., 1 Amcr. Railway Cases, 591; Laingv. Colder, 2 Ibid. 378. And when the accident occurred by a collision between trains belonging to the same company, it was primd facie the re- sult of negligence on the part of the company, or its ser- vants. Skinner v. The London Brighton R. Co., 2 Eng. Law $ E<[. Rep. 360 ; Carpean v. The same Co., 48 Eng. C. L. R. 751. Nor is it necessary, in such a case, that the person injured should have been a passenger on the road for hire, or in a passenger car, if he was lawfully on the road by the license or invitation of the company. 1 Amcr. Railway Cases, 109; 14 Howard, 468; 16 Howard, 4119. If the part}* was not a trespasser at the time on the train, he is entitled to recover for any injury resulting from tlu- neg- ligence of the agents of the company. 26 Eng. L. J- E. FLLNN v. PHIL. WIL. & BALT. KAILROAD CO. 481 Rep. 444 ; 6 Eng. L. fr E. Rep. 305. Neither can common carriers limit their liability, or responsibility for negli- gence or misconduct, either by notice, or special contract to the contrary. Laing v. Colder, 2 Amer. Railway Cases, 378 ; 1 Amer. Railway Cases, 171, 358 ; Hollister v. Newlin, 19 Wend. 235 ; Cole v. Goodwin, 19 Wend. 251 ; Gould v. Hill, 2 Hill, 623 ; Coggs v. Bernard, 1 Smith's Lead. Cases, 279. And negligence, whether gross or slight, is a ques- tion of fact, under the circumstances of the case, to be determined by the jury. Idem, 289, note 3. Such being the principles of law which he considered applicable to this case, it only remained for the jury to inquire and determine whether the injuries sustained by the plaintiff on the occasion in question, were or were not attributable to the negligence, or the want of proper vigil- ance and foresight under the circumstances, on the part of the agents and servants of the company. He then pro- ceeded to review and comment at length on the facts proved in the case, and contended that the collision of the two trains, by which the plaintiff had been so seriously and se- verely injured that it was even still a wonder that he had sur- vived it, was entirely owing to the negligence and neglect of the servants of the company on the preceding, or gene- ral freight train, in failing to exercise the proper care and diligence, under the peculiar circumstances of the occasion, to avert the disaster and avoid the collision, by preventing the succeeding or extra freight train from overtaking and running into the former, duly apprised as they were be- fore leaving the depot at Baltimore, that they would be followed by the latter train that evening ; and admonished, as they should have been, by the snow-storm of that night, the violent head wind and the thick atmosphere, their di- latory time and the extraordinarily slow speed they were making, under the well-known impediments which opposed their progress, it was their duty to have kept the strictest lookout for the approach of the extra train, and to have left some notice for it on the route at some point where it would halt, of the obstructions and delav which it had 482 SUPERIOE COURT. encountered, and the unusually slow progress which it was making. Instead of which, and notwithstanding these ad- monitions, however, no notice or intimation whatever, wa.s left for the officers of the succeeding train, which was in the meanwhile, with fatal speed and unimpeded progress, making the usual time for such trains over the road, in swift pursuit of them, running two miles to their one, and so far from keeping a vigilant lookout for its coming, it was in proof that every employee on the first train was shut up under cover at the time of the contact, and even the engineer at his post on the foremost train, had no idea and no conception of the near approach of the other train until he felt the shock of the actual collision. Such acci- dents could not occur without gross and criminal negli- gence in some quarter ; and for his own part the responsi- bility for this sad disaster rested, he believed, under the circumstances, with those who had the control and running of the regular freight train on which the unfortunate plain- tiff was a passenger. But whether that responsibility waa justly imputable to them alone, or was in part, or on the whole, attributable to the misconduct, mismanagement, or want of care and foresight on the part of the officers of the other train, was altogether immaterial, as they were alike agents and servants of the same company, which was equally answerable for the injuries resulting from their neg- lect and negligence, viewed in either aspect; and in either case, the plaintiff was entitled to recover. D. M. Batc.fi, for the defendant : The question in this case was, whether the defendant in this action, which was an action on the case, and not atsirmpstt upon an implied contract, was liable to the plaintiff for the breach of a legal duty imposed on the defendant by law? lie should con- tend that the defendant had been guilty of no such delin- quency in this case; and he might go further and say, that it had never been guilty of any such delinquency in any other case. For it was a remarkable tact, that since this company went into operation, some twenty years since, no FLINN v. PHIL. WIL. & BALT RAILROAD CO. 483 passenger keeping his proper place, had ever suffered any injury on any part of its railroad. What were the legal obligations imposed upon railroad companies as common carriers of passengers? For the purposes of this case, and so far as their liability for perso- nal injuries was concerned, this question might be con- sidered in two aspects. First, as common carriers of pas- sengers for hire, as in the case of the conveyance of a passenger in a passenger train for a reward ; and secondly, in case of a special undertaking to convey the individual safely for a compensation, but not in the character of com- mon carriers ; in which case this action would not lie, the remedy being by assumpsit on the promise or special un- dertaking, and not for the breach of any general duty or obligation imposed by law. What then were common carriers ? For a general defini- tion he would refer to an unquestionable authority, 2 Kent's Com. 598. Now according to this definition a common carrier is one who holds himself out to the world generally to carry all persons indifferently for hire. But did the de- fendants do this by their freight trains ? Did they hold themselves out to the world to carry all person's indiffer- ently by their freight trains for hire, or without it ? All the proof in the case expressly negatived such an idea, and all the regulations of the company positively forbade such a thing. Xow, if the plaintiff had been on a passenger train at the time of the injury received by him, the relation of common carriers towards him would have attached to the defendants. But he was on a freight train with a passen- ger car attached, but not, as was clearly proved, for the conveyance of passengers at all from Baltimore to Phila- delphia, but only to be taken back to the latter city on that occasion ; and as to which train the defendants were common carriers merely for the transportation of freight or merchandise, and not for the conveyance of passengers. And he was not only on such a train, but he was there upon a condition which expressly exempted the company from an}' liability for his safe conveyance as a passenger 484 SUPEEIOR COURT. on that train. In a case like this, whatever obligations the company may have assumed in regard to him, they were not the obligations of common carriers. Railroad companies are not common carriers of goods by their pas- senger trains, and if they carry goods by such trains, it must be proved and will not be assumed. Pierce on Amer. Railr. Law, 408 ; 3 Foster's Rep. 75. So the occasional taking of passengers by freight trains, particularly when they do not open their office for the sale of -passenger tickets, or hold themselves out as common carriers of pas- sengers by such trains, will not render or constitute them common carriers of passengers by such trains, or subject them to the obligations and liabilities of common carriers of passengers by freight trains. Murch v. The Concord R. R. Co., 9 Foster's Rep. 41. But it may be said that the present defendants were common carriers of drovers for hire, and as to an individual of that class, they assumed and were bound by the obligations of common carriers. This, however, did not come within the definition before cited ; besides, the plaintiff in this case did not go as a passenger, but in charge of his stock, and in connection with an object subsidiary to the transportation of freight, and in the employ of the company for that purpose and upon terms which exempted the company from any lia- bility for his personal safety. He was not in that train as a passenger, or as a traveller, but he was simply there by the permission of the company for his own purposes, law- fully he would admit, but without paying any charge or fare for his passage, except what he paid for the transpor- tation of his live stock, in consideration of releasing the company from the obligation of taking care of it, and on the condition that the company should be at no risk for liis personal safety. Would it be pretended that he hud no actual notice of this condition ? Had it not been proved that he had no right to be there without a drover's ticket, which contained that express condition ? And if he had no such ticket, then he was there unlawfully, and if he was there lawfully, then he must have had such a ticket FLINX v. PHIL. WIL. & BALT. RAILKOAD CO. 485 and had actual notice, and the other side might take either horn of the dilemma at their option and pleasure, lie was there, as he had said before, to take charge of his own stock, and not as a passenger, not as a traveller, for another condition of the drover's ticket which he had, expressly excluded him from the passenger trains of the company upon that ticket. lie was there then that night by the permission of the company, not as a passenger or traveller, or for any purpose whatever, so far as the company was concerned, pertaining to his own passage from one place to another, but solely to take care of his own property and to relieve the company of that duty, which otherwise would have devolved upon it. But was it competent for the company to exempt them- selves from such a liability ; the liability, he meant, for his personal safety under such circumstances ? He had al- ready shown that the company in this transaction was not acting as a common carrier, and therefore it did not present or involve the nice and frequently-mooted ques- tion, whether a common carrier can exempt himself from his general duty and common-law liability, by notice or special agreement, as against public policy. On the con- trary, this was a case upon the facts proved, of a special undertaking by a private carrier, or ordinary bailee for hire, in relation to which it had been uniformly held, both in this country and in England, that such a carrier or bailee may exonerate himself from such a liability by no- tice, or agreement. Ang. $ Ames on Carriers, sec. 59; Alex- ander v. Green, 3 Hill, 9; Pierce, on Amcr. Railr. Law, 484. As to the other question, he would here take occasion to say, that he thought the rule which forbids, on grounds of public policy, common carriers to restrict or limit their legal responsibility for gross negligence, by notice or agree- ment, as recognized and established in the case of The N. J. Steam Nai:. Co. v. The Merchants' Hank, How. 344, was a wise rule and sound in principle. But to return to the point which lie was considering, he would go further and contend that even if the plaintiff did pass on the train that 486 SUPERIOR COURT. night, for the purpose before stated, under a usage or cus- tom of the company, not as a passenger, but for an object incident to the freighting business by that train, and with- out any condition or stipulation on the part of the com- pany, that it would not assume any risk for his personal safety, still he could not recover in this action ; because the company did not stand in the relation of a common carrier to him for his conveyance as a passenger, and there- fore it did not assume or become in law liable to the obli- gation to carry him safely. lie would not say that he was on the train as an employee of the company, although he was there, as he would maintain so far as the company was concerned, solely for the purpose of taking care of his stock which it had contracted to transport over the road ; and viewed in this light, he would say that he was pro hac vice, in the employment of the company, and was associated with the regular and ordinary servants in and about the business of the company in transporting his stock over the road ; and whether he was so employed gratuitously or for hire, he should hold that he had no cause of action, what- ever, against his employer, the company, for any injury sustained by him while so employed, in the absence of any proof that the injury resulted from a want of reasonable diligence on the part of the company in providing suitable cars, engines, road, and machinery for the business. Be- cause if he stood on this occasion, and for the purpose of this passage over the road, in the relation of a servant, or person in the employment of the company, and the acci- dent was the result of the negligence of the servants of the company while engaged in the same employment with him, then the company was not liable to him for the injury re- sulting to him from such negligence; for every servant is presumed to assume the risks necessarily incident to his service, and those arising from the negligence of his fellow- servants employed with him; at all events, his employer is not responsible to him for any injury so arising to him. Oi.n/:e(tv. The Bost. $ Woost. JL R. Co., 1 Amcr. Ji'f'In'. Cases, FLINN v. PHIL. WIL. & BALT. RAILROAD CO. 487 347 ; Hutchinson v. The Railway Company, 1 Exch. Rep. 351 ; Degg v. The Midland Railw. Co., 1 Exch. R. (N. S.) 779. But there was one important fact proved in the cause which had not been adverted to in the opening argument, to which he now wished to call the attention of the Court and jury. The fact to which he alluded was the detention of the regular freight train, at the instance and request of the plaintiff, on the occasion in question, till after the usual time of its departure from the depot in Baltimore. It would be remembered, for it was proved by several of the wit- nesses, that the plaintiff reached the depot with his sheep that afternoon, only a short time before the hour for the through freight train to start ; but being anxious to get on with them that evening, to Philadelphia, he applied to and obtained the consent of the proper officer to detain the train until his sheep could be placed in it, which was done for his especial accommodation. This delayed the train half an hour after its usual and appointed time of leaving, and which should not have been done for his or anybody else's benefit or convenience ; and had it not been done, this melancholy accident (more melancholy and fatal, how- ever, to some others than to this plaintiff, sad as it proved to him, for two others were instantly killed by it), never would have happened either to him or them, or to any other person. For it had been shown in the evidence, that but for this delay of half an hour at the starting, the regular or through freight train would have reached Havre de Gra'ce, or the Susquehamia River, before the extra freight train could have overtaken it. Indeed, it was proved that in a few more minutes, the former train, which at the time of the collision was moving with di- minished speed up an ascending grade in the road, would have been over it, and would then have been on a de- scending grade almost the entire way from there to the Susquehauna River; and once upon that grade, which it would have reached in five minutes more, the accidrnt would have been altogether avoided. Well, now, when viewed in this aspect, and when we consider all the facts 488 SUPERIOR COURT. and circumstances in connection with, and especially the primary cause of it, who was most accountable, the plain- tiff or the defendant, for this sad and accidental calamity ? So far as human agency was responsible for it, no one, he apprehended, who was cognizant of all the circumstances, and particularly the one which laid the foundation for it, even if he should be disposed to charge it in any measure to the mismanagement and misconduct of the servants of the company, would presume to say that the plaintiff was not equally accountable with them for it. But if the plain- tiff and the company, or their servants, were equally at fault, or the plaintiff contributed by his own act to produce the accident, he could not maintain an action for the in- jury which he had sustained by reason of it. Pierce on Railr. Law, 276 ; Murch v. The Concord R. R. Co., 9 Foster Rep. 41. Gordon, for the defendant, then addressed the jury, hold- ing in the main the same line of legal argument. James A. Bayard, for the plaintiff: The question in this case was, whether the defendants, on the facts proved, were bound to compensate the plaintiff in damages for the suf- fering, injury, expense, and loss sustained by him in a col- lision between two trains of the company, both managed and operated by the servants or agents of the company, and if so bound what those damages should be ? In our view of the case, the plaintiff's right to recover depended on three facts: First, was he lawfully on board of the cars of the defendants, to be transported over the road, or any part of it, at the time of the collision ? Or, in other words, was he a trespasser on the train of the company at that time? Secondly, was the injury which he received the result of the actionable negligence of the servants of the defendants? Thirdly, what damages were recoverable m consequence of the injury sustained by him ? Under" the first material fact, or point stated, several ques- tions of law had been raised on the other side, which lie should present as he understood them, and endeavor to FLINN v. PHIL. WIL. & BAXT. KAILROAD CO. 489 answer them. And, in the first place, he would remark, that if the plaintiff was on the train by the permission of the agent or servant of the company, who had the author- ity to control the admission of passengers, -to exclude and eject them when unlawfully there, and to collect their tickets and exact their fare, then, whether the plaintiff had or had not paid for his passage, or whether the per- mission to be there was gratuitous, or for hire, he was lawfully there; and if he was there in good faith, and not by collusion with the agent who had the authority to admit or exclude him, it was immaterial whether the officer had, or had not, disobeyed his particular orders in such a case; the defendants \vere liable, provided the injury was the result of the negligence of their servants. Phil. $ Heading E. R. Co. v. Derby, 20 Curt. C. S. C. Rep. 291. The plain- tiff was also there lawfully, if he was there as the owner of live stock, with such stock on the train, whether he had or had not released the company from risk on account of it, and with or without a drover's ticket, if the conductor per- mitted him to remain upon it ; and being lawfully there, it was immaterial what kind of a train it was, whether a passenger or freight train ; the company stood in the rela- tion of a common carrier of persons towards him, and was bound by law to carry him safely, and could not relieve itself of its liability for injuries to him resulting from the negli- gence of its servants, by any notice, condition, or limita- tion, which it might choose to adopt, as against public policy. Phil. Reading R. R. Co. v. Derby, 20 Curt. C. S. C. Rep. 291; Collet v. The Lond. Bright. R. Co., 6 Eng. Laic $ Eq. Rep. 306 ; 26 Eng. Law Eq. Rep. 421 ; Winner v. The Lond. Bright. R. Co., 2 Eng. Law $ Eq. Rep. 360; Northern Railway Co. v. Harrison, 26 Eng. Law ft Eq. Rep. 443. He had cited these cases for the purpose of .showing, that if the plaintiff was not a trespasser, but was lawfully on the train, in the cars of the company, it matters not what kind of a train or car it might have been; whether a freight or passenger train, a regular or an excursion train, or a president's car, used only to convey the officers and 32 490 SUPERIOR COURT. their guests over the road on special occasions, he was there as a passenger over the road, and the company was bound as common carriers of passengers as to him, and it was their duty and their engagement to carry him safely, and they were liable for any injury which befell him in consequence of the negligence of its servants, and the company could not relieve or divest itself of this responsi- bility. On the other side it had been contended, that though the defendants are general carriers both of persons and property, this was a freight train from Baltimore to Philadelphia, by which they were common carriers of goods only, and that the plaintiff had no right to be there, except by special authority and on terms agreed upon; and a distinction w r as taken between a freight and passenger train, that if they do not make a practice of carrying pas- sengers by the former, the occasional carriage of passen- gers by such trains does not make them liable as common carriers to such persons by such trains. But his answer to this was, that although the distinction may be sound to this extent, that the defendants were not bound to carry persons in a freight train, which, in general, was not pro- vided with accommodations for that purpose; yet, being general carriers of persons and goods by occupation, if they do carry a passenger, it is as common carriers; and if they undertake to carry, the obligation is to carry safely, so far as their own negligence, or that of their servants, is involved. The authorities which he had before cited would sustain him in this position. The cases cited from " Fos- ter's Reports," on the other side, were, in fact, but one and the same case, and no such doctrine could be found else- where. The analogy of the wagoner was unsound, when applied to a company which is a general carrier of persons as well as goods. It might be doubted even, whether a wagoner, who occasionally carries a passenger, is not liable, as a common currier, for his safety. 2 Kent Com. 598. But it was further argued on the other side, that by a freight train established for that purpose by the defen- dants, they might agree specially to transport a class of persons at their own risk, and without the responsibility FLINN v. PHIL. WIL. & BALT. RAILROAD CO. 491 of a common carrier as to persons, and that if the condition contained in the special agreement exempted them from liability for negligence, it was not invalid. Such a condi- tion, however, was utterly void; for, as he had before said, if they carry at all, they must carry safely, so far, at least, as due and proper diligence could insure it, and so carry- ing, they carry as common carriers, and are responsible for negligence. Such a condition, he would repeat, was utterly and absolutely void, as against public policy; and common carriers cannot contract against public policy, although they were often scheming and endeavoring to -do so. 1 Smith's Lead. Cases, Hare $ Wai. Notes, 279. And he would ask the Court to charge the jury, that the notices on the drover's tickets, that no risk would be assumed by the company for the personal safety of such persons, were void in law and no defence in this action. Also, that the defendants could make no valid contract for the transpor- tation of a person over their road, unless subject to their legal liability as common carriers, or to exempt themselves from their responsibility as such, for the negligence or want of skill of their agents, whether the person was to be trans- ported in a passenger or in a freight train; and if the pay- ment of the price for freight on his live stock, and the execution of the release by the plaintiff, gave him a right to a drover's ticket, by the practice and usage or regula- tions of the company, the notice indorsed on it, so far as regarded the exemption of the defendants from all risk to the person of the drover, could not, and would not, protect them from liability for a personal injury caused by the negligence of their servants. It had also been said that if the company did not hold itself out to the public as a common carrier of persons by its freight trains, it was not liable as such. But this was a question of fact for the jury; for although the company might make no publication and sell no tickets in Balti- more, it might nevertheless hold itself out as a common carrier of persons by its freight trains; and so far us this class of persons were concerned, it certainly did so. But 492 SUPERIOR COURT. these defendants were a corporation created by law and were limited to the objects of their charter, to construct a railroad and to transport either persons or goods, as com- mon carriers. By the law of their existence, they engaged in the business of transporting passengers, or goods, as common carriers alone, and unless an express authority was given to carry by special agreement, they do not possess it, for the settled rule of law is that corporations can claim no implied powers, except such as are essential to carry into effect the objects for which they are created. Where then did this corporation obtain the power to carry either persons or property, except as common carriers? The distinction suggested in the argument on the other side, that the plaintiff was on the freight train in question, for his own personal convenience and advantage, attending to his own business and to take care of his own stock, was both ingenious and unsound ; for the answer to it was, that the company, to increase their freighting business in this particular line and for their own benefit, and to re- lieve themselves from the necessity of employing, at their own expense, a person to take charge of the stock, trans- ported the owner or drover in the same train with it, to attend to the loading and unloading of it, which rendered a special agent necessary for that purpose ; and for this reason, they could well afford to carry him free, as it was termed, in consideration of the benefit which they derived from it and the liberal compensation which they received as freight for the transportation of himself and his stock. The two rates of charge in this respect, the larger of which one of the witnesses, an agent of the company, had testi- fied that he never knew to be paid, was but another con- trivance to get rid of their legal liability as common carriers. But the company, as common carriers of per- sons and goods, published that they would carry a class of persons, that was to say, drovers with their stock, on their freight trains. Could that be in any other mode than as common carriers? It was not a special agree- ment with an individual, but merely a general notice, and FLLNN v. PHIL. WIL. & BALT. RAILROAD CO. 493 that, too, against the policy of the law and the interests of the public. If they carry persons at all, they must carry them as men, as human beings, and it was the first time he had ever heard of the attempt to carry a class, and at the same time to claim exemption from their liability as common carriers for negligence. If this should be sanctioned, the next contrivance might be to obtain exemption from liability as to passengers gene- rally, by a similar system of two rates of charge. So far as the obligation rested on the company and its servants to exercise due skill, care, and diligence, he knew no dis- tinction in law between a freight train and a passenger train. It was true that a person lawfully travelling by a freight train, could not expect the same accommodations as by a passenger train, but he was entitled to the same care and diligence for the avoidance of collisions and in- juries on the one train as on the other. There was no- thing in the suggestion that the plaintiff went on the train in the service and as an employee, pro hac vice, of the defendants; and there was no reason, either m fact or in law, for assigning him such an impossible position in con- nection with the case, and therefore, the cases cited on the other side upon that point had no application to it. For the plaintiff stood in no relation of a servant to the defendants ; on the contrary, they were his servants for the time being, and undertook safely to convey him over their road with his stock for the liberal reward which they had already been paid for it. i^or was there anything more real or substantial in the further objection taken by them, that the plaintiff, by his own act in delaying the de- parture of the train from Baltimore, contributed to pro- duce the disaster. Because it was wholly the act, and the voluntary act of the company, or their servants, although it was done at the request of the plaintiff. But how could this have the effect to exonerate them from their liability for negligence occurring afterwards? Or from their ob- ligation to exercise due care and diligence after their de- parture? There was nothing therefore in this objection 494 SUPEKIOK COURT. and having glanced at, as he thought, and satisfactorily re- plied to them all, he should now address himself more particularly to the jury on the question of damages. The Court, Woottcn, J., charged the jury : As you are al- ready aware, this is an action brought by John Flinn against the Philadelphia, Wilmington and Baltimore Rail- road Company, for the purpose of recovering damages, which it is alleged he sustained on the night of the 18th of March, 1856, by reason of a collision between what is called the through freight train, which left Baltimore at half-past five o'clock of that day, and an extra freight train which left the same place at half-past seven o'clock of the same day, and followed the through freight train. The regular mail train having left at a quarter before seven. It appears that the mail train, at some one of the inter- mediate stations, passed the through freight train, and that the latter then proceeded towards its place of destination, and that about nine o'clock, when the train was in sight of Aberdeen, about four miles from Havre de Grace, the through freight train on which the plaintiff was, was run into by the extra freight train, which was following it, whereby the collision referred to in this case occurred, which resulted in the injury to the plaintiff for which he is now seeking redress. The plaintiff rests his right of recovery on the ground of the responsibility of the defendants the Railroad Com- pany to carry him over their road safely, as a passenger. But it is further contended for him, that whether he was on board as a passenger or otherwise, if he was rightfully and lawfully there, the defendants are equally liable for any injury he received, which resulted from the negligence of the defendants' servants. On these grounds, the plain- tiff asserts his right of recovery of damages commensurate with the injury received by him. The defendants resist his right of recovery on several distinct grounds. First. That the defendants were not and could not be FLINN v. PHIL. WIL. & BALT. RAILEOAD CO. 495 regarded as common carriers of persons, in respect to the plaintiff on that occasion. Second. That if the defendants are liahle at all, it is on a special contract or undertaking, and that he cannot re- cover in this form of action. Third. That the relation in which the plaintiff stood to the defendants on this occasion, was not that of a passen- ger or traveller over their road, as in ordinary cases, but that he was in the freight train before mentioned, rather in the character or capacity of an employee or servant, by the permission and agreement of the company, to take care of his live stock, and upon terms and conditions which exempted the company from any liability for the injury which he received. Fourth. That the injury complained of was occasioned, in part at least, by the fault of the plaintiff, and not by the negligence of the defendants, and therefore, he is not entitled to recover. They say the through freight train was detained at Bal- timore some twenty-five minutes beyond its usual time of departure, at the instance and request of the plaintiff, to enable him to get his stock on board, and that that delay was the cause of the collision, which resulted in the injury to the plaintiff, and without which he would not have re- ceived it. We will now proceed, gentlemen, to notice the several matters of defence, and endeavor to announce to you, as clearly as we can, the opinion of the Court, on the questions of law which have been presented to us for our considera- tion. They are new to us, at least some of them, and in- volve nice and intricate questions, and though they have been argued with much ability on both sides, much has been left for us in determining the true line of principles upon which this case turns. AV"e have, however, feeling the importance of the ease, given to it all the attention our opportunity would afford. That the ease is an impor- tant one, has not and we apprehend will not be denied. It is not only important to the unfortunate victim of the 496 SUPERIOK COURT. disaster, but it is so to the defendants, and beyond the present case, that they may know their responsibility ; and it is important to the community at large, that they may know the extent of their risk, and of their security and personal safety. The great advantages of this company, and the conve- nience it affords the travelling community, which all will admit, cannot be considered by you in your deliberations, nor should the fact of its existence as a corporation influ- ence your verdict in any respect. But you should give to them the same measure of justice, and hold them to the same accountability that you would an individual of the community. The first branch of the defence denies that the defen- dants stood, in respect to the plaintiff, in the relation of common carriers, and that, therefore, they are not liable to him for the injury complained of. The second branch is also based on the assumption that they were not, in reference to this particular transaction, within the legal definition of common carriers; but that the engagement with the plaintiff falls within the terms of a special contract or agreement, to carry the plaintiff safely, and that he cannot recover in this form of action, for a breach of it, but his remedy is in another form of action. These two branches of the defence resolve themselves into one and the same principle, and the decision of the first will dispose of the latter. We will, therefore, for the present, pass to the remaining portions of the defence, the first of which is : that the re- lation in which the plaintiff stood to the defendants, was not that of a passenger or traveller over their road, but that he was in the freight train, rather in the character or capacity of an employee or servant, to take care of his stock, and upon terms and conditions which exempted the defendants from any liability tor the injury which he re- ceived. It is true, as a general principle of law, that the master is not liable to his servant for injuries occasioned by the FLINN v. PHIL. WIL. & BALT. RAILROAD CO. 497 negligence of his fellow servants, in the course of their common employment, provided the latter be a person of competent care and skill; and it is on the principle that when he engages to serve a master, he undertakes, as be- tween him and his master, to run all the ordinary risks of the service ; and this includes the risk of negligence of his fellow servants, whenever he is acting in discharge of his duty as servant of him who is the common master of both. But we are of opinion, that the relation of master and ser- vant did not exist between the plaintiff and defendants in reference to this case. It appears that he was a drover, and that as such, was in the through freight train for the purpose of taking care of his stock, which the defendants had received on board for transportation in that train. It also appears that it was the established practice and usage of the company to grant to the owners of live stock, transported over their road, what is termed a drover's ticket, for the purpose of taking care of his stock and upon his releasing the com- pany from any risk on account of it, and paying the rate of freight charged under such circumstances, which ticket authorized such owner to travel or pass in that train with- out any further fare or compensation than what was in- cluded in the freight charged and paid for the stock ; and it also appears that the rate of freight charged by the com- pany on live stock, was twenty-five per cent higher when neither the owner nor any one on his behalf passed in the train for the purpose of taking care of the stock. It was under such circumstances, and in accordance with this practice and usage of the company, as is alleged in behalf of the plaintiff, that he was travelling on this occasion, and at the time when the collision happened and the injury complained of was sustained. If you are satisfied, gentle- men, that such was the case, we say to you, that in our opinion it did not constitute the relation of employer and employee, or muster and servant, between the company and the plaintiff, so as to bring it within the principle of law which we have before stated. On the contrary, if such 498 SUPERIOE COURT. was the case, we think, whether he had or had not a drover's ticket, but had paid the freight charged under such circumstances for his stock, he was rightfully and lawfully a passenger on the freight train from the city of Baltimore to his place of destination : for we do not con- sider it necessary under the circumstances that he should have had a ticket, and particularly if the conductor per- mitted him to remain in the train, to constitute him right- fully and lawfully a passenger in that freight train. But it is insisted that they did not stand in the relation, or sustain the obligations to the plaintiff of common car- riers of passengers for hire, because he was in a freight and not a passenger train. And if we correctly apprehend these grounds, they are as follows: that if the plaintiff was even rightfully and lawfully on board the through freight train at the time of the collision, he cannot recover in this action, because, as the defendants allege in the first instance, they did not stand in the relation or sustain the obliga- tions of common carriers of passengers for hire in regard to him, inasmuch as he was not on a passenger train, or train in which they commonly carried passengers ; and in the second place, because, as they assume, he was in the freight train before mentioned under a special undertaking by the defendants as private carriers or ordinary bailees for hire, to carry him over their road, on an express con- dition that they were not to be liable for his personal safety, and if liable at all, were only liable as private car- riers, under a special undertaking, in another form of action. In the solution of these questions, gentlemen, we are ne- cessarily led to the inquiry as to what are common car- riers. Without entering into a general description or definition of the term, it will be suihYient tor the purposes of this case to say that they consist of two classes: common carriers of goods, and common carriers of passengers for hire; and railroad companies Itciiiu' incorporated by la\v for the transportation of persons and property, over the line of their respective road> for hire, are common carrier.-, FL1NN v. PHIL. WIL. & BALT.. KAILROAD CO. 499 of both descriptions. These are the objects for which they are instituted by law ; it is their public employment, their principal and direct business, and not a casual or occasional occupation with them, and this beyond any doubt consti- tutes them common carriers of both descriptions. It may be proper to say, however, that if as a general thing they confine the transportation of goods to what is called the freight trains, and the conveyance of passengers to the re- gular passenger trains, they are common carriers of goods as to the former, and of passengers as to the latter ; but nevertheless, if by a passenger train they are in the prac- tice of also carrying goods for hire, they may become com- mon carriers of goods by that train ; and if by any freight train, they are in the habit of carrying passengers for hire, such as emigrants or drovers, or any other class of traders with their property, they may also, as to such persons, be- come common carriers of persons by that train, as well as of such property ; that is to say, by such practice they as- sume the obligations and liabilities- of common carriers, indifferently both of persons and property by such trains. There is a wide distinction, however, between the obli- gations which the law imposes upon common carriers of goods for hire, and common carriers of persons for hire. Common carriers of goods are responsible for all injuries thereto, except such as are caused by the act of God and the public enemies, even in the absence of negligence; because the law regards the former ut we have already informed you, that if you are satisfied, from the evidence in the cause, that it was the practice of the company to receive and carry the owners of live stock with their stock on such trains, upon their paying the FLINN v. PHIL. WIL. & BALT. EAILROAD CO. 501 freight charged under such circumstances, and that the plaintiff had paid his freight and was in the train in con- formity with that usage, then he was there rightfully and lawfully, and the defendants and their servants were bound to exercise the same degree of care and diligence in con- veying him over their road, in the train in question, as we have before described as incumbent by law on common carriers of passengers for hire generally, and that, so far as this duty was concerned, they stood in a no less responsi- ble relation to him. For in our opinion it was inconsistent with the relation in which they stood to him, or would have stood to any similar passenger under the like circum- stances, and utterly at variance with the duty which the law, on the ground of public policy, and as the conservator of the lives and the personal safety, as well as the property of individuals, imposes upon that, as well as upon other classes of common carriers of persons, to allow of such an exemption or limitation of their responsibility for the per- sonal safety of their passengers against injuries resulting from their own negligence, or the want of due care and diligence in carrying them. And here we would take occasion to remark that this point does not raise the ques- tion, which was discussed at no inconsiderable length during the argument, and which has so often perplexed judges, both in this country and in England, that is to say, whether it is competent for a common carrier of goods to limit his responsibility for their safety, and which is an extreme and extraordinary liability, as we have before re- marked, by a general or even a special notice brought home to the knowledge of the owner of them. For that question and the cases in which it has arisen, however much it may have been mooted and agitated, have never been held to apply to a common carrier of persons for hire; in regard to whom the common-law liability is not so extreme, it binding them only for such injuries as result from their own negligence. If, therefore, it is proved that the plaintiff was in this freight train of the defendants, as before stated, that is to say, in accordance with a regula- 502 SUPERIOR COURT. tion or practice of the company, specially applicable to such persons, and even if you should be satisfied that he had on that occasion a drover's ticket in his possession, of the description which has been offered and read in evi- dence, and consequently knew of the general condition which it contained, that no risk would be assumed by the company for his personal safety, it would not exempt the company from their legal liability for the injury which he sustained, provided you should be further satisfied, when you come to review and consider all the facts and circum- stances proved in the cause, that the injury complained of was directly attributable to any negligence or want of care and diligence on the part of the servants of the defendants on the occasion. Because it would be contrary ,to public policy to sanction such a limitation or exemption of the responsibility of the company for injuries to a person under such circumstances, resulting from the negligence of their servants. "We come now, gentlemen, to the consideration of that part of the defence which rests on the assumption that the injury complained of was the fault of the plaintiff, and not attributable to the negligence or fault of the defendants. It is true, as a general proposition, as stated by the de- fendants' cpunsel, that if the negligence of the plaintiff was the cause of the injury, or if it co-operated with the negli- gence and misconduct of the defendants to produce it, the plaintiff would not be entitled to recover, because he could not hold others liable for the consequences of his own ne- gligence. But this rule does not apply unless he could have avoided the injury by the exercise of due care on his own part. If he could not avoid it by such care, the want of it would not preclude his right, of recovery. This principle, however, is more properly applicable to another class of cases essentially different from the one we are now considering. In the case referred to by the defendants' counsel, the injured party was approaching the track and hud an unin- terrupted view of it in the direction from which the train FLINN v. PHIL. WIL. & BALT. EAILROAD CO. 503 was coming, so that he might have seen it, had he turned his eyes in that direction. It was considered that if the plaintiff saw the train, it was an act of madness for him voluntarily to place himself in its way, and if he did not see it, it was only because he unwisely allowed his atten- tion to be drawn in another direction. In this case, which we are now considering, the fault which is alleged to be due to the plaintiff, and to which the collision and conse- quent injury to the plaintiff are attributed, was in his re- questing the defendants to delay the departure of the train at Baltimore until he could get his stock on board. It did not necessarily follow that the detention of twenty-five minutes, whether it was for the purpose of taking the plaintiff's stock on board or for some other reason (and the evidence is somewhat conflicting on that point), that the injury resulted from it. But, gentlemen, assuming it to be true that the delay of twenty-five minutes at Balti- more was to enable the plaintiff to get his stock on board, whatever might be the consequences of the delay, they are not chargeable upon the plaintiff, for he had no power of controlling the action of the defendants' servants; it was entirely optional with them whether they detained the train or left at the regular and appointed time, and if they chose to wait till the plaintiff's stock was put on board it was their own voluntary act, and they cannot by reason of it exempt themselves from the liability which would have rested upon them had they made their departure at the regular and appointed time. We have now, gentlemen, submitted to you our views upon the several questions of law which are involved in this case, and it only remains for you to apply them to the facts as they have been proved before you. You cannot fail to perceive, however, that with the views which we have expressed in regard to the questions of law which have been raised in the trial of the case, that it turns in a great measure on a question of due diligence on the part of the officers and servants of the defendants having the management of the two freight trains on the evening 504 SUPEEIOK COUKT. of tlie collision. The fact of collision, and that the plain- tiff was injured by it, in the manner proved before you, are not disputed, we believe. It has been maintained, and cases have been cited to show, that where two railroad trains, running on the same road and belonging to or under the control of the same company, come in collision, the law imputes negligence to the officers having charge of one or both of the trains, as such accidents can rarely occur if due diligence be observed by such officers. This renders it therefore necessary for a railroad company to show, when a collision occurs between two of its trains, and a suit is instituted by a passenger injured by it, that it was not attributable to the negligence of its servants. But this is only a legal presumption, and is liable to be rebutted by evidence to the contrary ; and if any proof is adduced to the contrary, it is the province of the jury to determine it, as any other fact, from all the evidence before them. It will be your duty, therefore, gentlemen, upon a view of all the facts and circumstances of the case, properly ap- plied by you to the law as we have announced to you, to determine the question of liability on the part of the de- fendants to the plaintiff for the injury complained of. If he was on the train rightfully and lawfully, as before stated, and sustained the injury in consequence of the col- lision, and you are satisfied that the injury was the result of the negligence of the defendants' servants (and the ques- tion of negligence is one of fact for you to determine), the plaintiff is entitled to your verdict for such damages as you in your sound judgment and discretion may consider him to have sustained. But if, on the contrary, you should be of opinion that they were guilty of no negligence, or that he was not rightfully and lawfully there in such a re- lation to the defendants as renders them liable to him for the injury, on the principle before stated, your verdict should be for the defendants. The measure of damages, provided your verdict should be for the plaintiff, is purely a question for your conside- ration ; and we have no disposition, gentlemen, if we had FLINN v. PHIL. WIL. & BALT. RAILROAD CO. 505 the right, to invade your province in this or any other re- spect. The plaintiff had a verdict for thirteen thousand dollars damages. The case was afterwards taken to the Court of Errors and Appeals on a bill of exceptions tendered to the charge of the Court by the defendants, but the same was sustained and affirmed on all the points ruled by the court below. 33 SUPERIOR COURT. SPRING SESSIONS. 1858. GEORGE W. GREEN and others v. JOHN W. HALL. When a contract is entered into for an article not then in existence, but which is afterwards to be made or constructed, it does not become the property of the person for whom it is to be made, until it is completed and delivered to him, or is at least ready to be delivered to him , un- less it is otherwise specially provided in the contract. For notwith- standing this is the general principle of the common law in such cases, it is competent for the parties by express agreement to contract that the article shall become the property of the purchaser at any particu- lar stage of the work upon it ; but in the absence of any such stipula- tion between them in the contract, the general principle of the com- mon law, as before stated, must prevail in regard to the ownership of it. A contract to build the hull of a sloop at a stipulated price per ton, to be paid in three equal instalments at specific stages of the work as it pro- gressed, the builder to find all the materials and do all the work, and deliver her by a certain day to the purchaser in Philadelphia, subject to the inspection of two persons, if required by him, does not appropri- ate, or vest the property in the vessel during the progress of the work in the purchaser, although he has paid to the builder the two lirst in- stalments at the specific stages of the work agreed upon when about two-thirds built ; but the ownership of the vessel remains in the builder, and may be scixed in execution and sold in that condition as his property at the suit of his judgment creditors. If abandoned by the builder after the levy of the executions upon it, arid it i.> finished by the party for whom it was to be built, at his own ex- pense, the measure of damages, in an action by the purchasers at the sale of it upon the executions, to recover the value of it from him, will be the value of the vessel at the time of the levy of the executions upon it. THIS was an action of trover \>y the plaintiffs to recover GREEN v. HALL. 507 from the defendant the value of the unfinished hull of a sloop sold in the process of its construction under sundry executions levied upon it as the property of James IL Tubbs, the builder, and bought by the plaintiffs. The proof was, that Tubbs had entered into a contract with Hall, the defendant, on the 31st of August, 1854, to build the hull of the sloop for him, of certain dimensions, and find all materials, and deliver it complete in Philadel- phia, by the 1st day of March, 1855, to pass the inspection of two persons, if required by Hall, at the rate of twenty- eight dollars per ton, one-third to be paid by him when the keel, stem, sternpost and floors were laid, one-third when the deck-frame and decks were laid, and the other third when it should be delivered in Philadelphia, all complete and according to contract. Tubbs proceeded under the contract to procure the materials and to build the sloop at Concord, in Sussex County, and whilst en- gaged upon the work and when the hull was about two- thirds finished, several executions were sued out on judg- ments against him by various parties, some of whom had obtained judgment for timber and material furnished him for the purpose, and were levied upon it, and by virtue of which it was afterwards sold at public sale and was bought by the plaintiffs as his property. At the time of the levy of the executions, Hall had paid to Tubbs, upon the work in the aggregate, 3951.38, which exceeded the sum then due him by the contract one hundred dollars. On the levy of the executions upon the property as his, Tubbs noti- fied Hall of the fact, and at once abandoned the contract and his work upon the vessel and did no more upon it. Hall was present at the sale, and gave notice to the bid- ders that lie claimed the property at his own, by virtue of the contract and the payments he had made under it; and afterwards, on the formal demand of the plaintiffs as the purchasers, refused to deliver it to them, lie then pro- ceeded to procure materials and employ workmen, and to complete the hull at his own expense, and when finished had it taken to Philadelphia. 508 SUPERIOR COURT. C. M. Cullen, for the plaintiffs: When a person makes or constructs an article, he is in law the owner of it : this is the general principle; and when it is built under a contract, the property continues in him until it is finished and de- livered. Archb. N. P. 597. In this case the vessel, by the terms of the contract, was to be finished and taken to Philadelphia by Tubbs, the builder, where she was to pass an inspection, if required, by the defendant, before deli- very; and had not the contract been abandoned, and the hull, in its unfinished condition, been relinquished by Tubbs to him on the levying of the executions upon it, the property in it would have continued in the builder until the delivery there. As it was, it remained in him until he abandoned his contract and relinquished the work, after the levy of the executions, to the defendant. Muck- low v. Mangles, I Taunt. 319; Woods v. Russell, 7 Eng. C. L. R. 310; Bishop v. Cramshay, 10 Eng. C. L. R. 136; Atkinson v. Bell, 15 Eng. C. L. R. 216 ; Oldfteld v. Low, 17 Eng. C. L. R. 333 ; Maberley v. Shephard, 25 Eng. C. L. R. 43 ; Clark et al v. Spence, 31 Eng. C. L. R. 107. In the case last cited, the work and materials were to be inspected and approved by a superintendent, and the ship was to be paid for by instalments, at certain stages of the work, as it proceeded. But, in the present case, there was no su- perintendent provided for in the contract, in which respect it is stronger than that case. The principle on which we rely is also ruled in the case of Laidler v. Burlinson, 2 Mees. Welsby, 602, and in the case of Demerritt v. Johnson, 7 Johns, 472, which was almost identical in its circumstances with 'the case now before the Court, except it was not quite as strong against the defendant, as he furnished a part of the materials himself in that case; and yet it was held that the sloop continued the property of the builder until it was finished and delivered. I would also refer, in further support of the principle, to Johnson v. Hunt, 11 Wend. 137. W. Saulsbury, for the defendant : We do not mean to GEEEN v. HALL. 509 controvert the general principle of law relied upon by the plaintiffs, that an article contracted to be made and de- livered to another, does not become the property of the latter until it is finished and delivered. But the principle is otherwise in the case of a ship, when it is built under a special agreement, and is to be paid for by instalments, at specific stages of the work as it progresses; and this dis- tinction rests on the doctrine of special appropriation ; for in such a case the ship becomes the property of the person for whom it is to be built, from the time the keel is laid, on the ground of the special appropriation of it to him by the contract, which vests the property in him from that moment. Abb. on Ship. 5; Woods v. Russell, 1 Eng. C. L. E. 310 ; Clark et al v. Spence, 31 Eng. C. L. E. 107 ; Laid- ler v. Burlinson, 2 Me.es. $ Wels. 602. Now, had not Hall, the defendant, a right in this case to demand of Tubbs, the builder, the delivery of the specific vessel, on which the two first instalments and one hundred dollars of the last had been paid by him, although the work stipulated to be performed, that is to say, two-thirds of the work upon her, had not then been done by him? It is the payment of the instalment, under such a special contract, that appropriates and vests the property in the purchaser, as the work proceeds and the payments are made at the specified stages of it, pursuant to the contract. And is not this both just and reasonable to all concerned to the party paying, and to the builder, who receives his compensation for his work and materials at regular intervals, according as he progresses with it; and to his creditors, who should look rather to the fruits of his industry, and to the com- pensation thus received by him, than to the property of another, for the satisfaction of their demands against him? Has not the party who has progressively purchased and paid for the ship in this manner, whilst the builder is con- structing her, such an interest and property in her, at the stages paid for according to the contract, as the law will protect against all other claimants, and especially the cre- ditors of the builder, who may rest entirely easy until she 510 SUPERIOR COURT. is nearly finished and as nearly paid for, and then seize her in execution for the debts of the latter, as was done in this instance ? It is true that the property of the purchaser in the ship is not completed and perfected hy the actual de- livery of her to him, neither can it be under the contract, until she is finished. But the completion of each succes- sive stage of the work, and the receipt of payment for it, pursuant to the contract, may be considered, under the circumstances, as equivalent to a partial delivery, as far as practicable; or as a constructive delivery of the ship, as far as built, to be finally consummated by an actual delivery of the whole when finished; and this is the light in which the law regards it, when it denominates it an appropriation of the property by the builder to the purchaser under the circumstances, according to the authorities which I have cited. All the other cases cited by the counsel for the plaintiff, with the exception of Demerrit v. Johnson, from 7 Johns, 472, have nothing to do with, and do not even raise or involve this principle of appropriation; because the work, in those cases, was not to be paid for, at- stipu- lated stages, by instalments, as it proceeded, and only affirm the general principle of law, which is not disputed. And as to that case, he would remark that it was decided on the general principle referred to as early as the year 1811, without argument, and prior to the case of Woods v. Jtusscll, which was decided in England in 1822, and before the dis- tinction in that case was taken and ruled in that country, and which was afterwards recognized and affirmed in the cases of Clark et al. v. Spence, and Laidler v. Burlinson, which I have already cited, and upon the authority of which we contend that the plaintiffs in this case cannot recover. C. 8. Layton, on the same side : In this case, as my col- league has remarked, Hall had entered into a special agree- ment with Tubbs, to build this vessel for him, the latter to be paid by instalments, at specified stages of the work, as it proceeded to completion. In good faith Tubbs begun the work, procuring the materials for the purpose, and had GREEN v. HALL. 511 proceeded to nearly two-thirds of the entire construction of it; whilst Hall, acting in equal good faith, and relying upon his interest and property in her under their contract, had actually paid in the aggregate nearly a thousand dol- lars under it, and had overpaid the amount then due by the instalments, as stipulated to be paid in it, when certain judgment-creditors of Tubbs sue out sundry executions against him, levy them upon the unfinished article on which he is at the time busily engaged under the contract, and sell it at public sale to the highest bidder, notwith- standing the claims and remonstrances of Hall, and thus not only arrest the builder in his employment, and seize the vessel out of his hands, but claim the right to deprive the purchaser, Hall, of the benefit of every dollar which he has paid and advanced upon it. Is this just? Is it fair ? Is it law ? We say it is neither. The distinction is this : when the vessel contracted for is to be built under a special agreement, and to be paid for by instalments as the work proceeds, and they are promptly paid as they fall due in the progress of the work, the ves- sel becomes the property of the purchaser, or the party for whom she is to be built, as soon as the first instalment is paid, by what the books term appropriation and accession, and is vested in him. Bell on Contr. of Sale, 50 Law Lilrr. 13 ; Glover v. Austin, 6 Pick. 209; Sunmer v. Hamlet, 12 Pick. 76; Butencorth v. McKinley, 11 Humph. Hep. 206; 24 Eng. C. L. R. 220. But if such were not the law of the case, the defendant should then certainly have a lien on the specific article under the circumstances, for the amount of money which he has paid in good faith upon the work as it proceeded, under the contract. E. D. CW.len, for the plaintiffs: By the terms of the con- tract, the vessel was to be completed and delivered to the defendant in .Philadelphia; and until it was delivered to him pursuant to the terms of the agreement, he had, and could have, no property in her. In all the cases cited on 512 SUPERIOR COURT. the other side, it will be found that there was some special fact or circumstance, which the Court regarded as equiva* lent to an actual delivery of the article. In the case of Woods v. Russell, the Court expressly relies on the fact, that the builder had furnished the party for whom the ship was built with the necessary certificate to procure the en- rolment of her in his name as a finished vessel, which was regarded as a constructive delivery of her by him to the purchaser ; and in the case of Clark et al. v. Kpence, the Court rests the decision on the sole ground, that there was a superintendent, on the part of the purchaser, to inspect and approve of the materials and the work, in every stage of it, as- it progressed, and which was treated as a delivery to him, and through him to his principal, the purchaser. The case in 7 Johns, decided in 1811, is referred to and affirmed in the case of Johnson v. Hunt, 11 Wend. 137, which was decided as late as 1834. As to the cases cited on the other side from " Pickering's Reports," they do not proceed on the principle of appropriation, and have no bearing whatever on the question of law involved in the present action. The. Court, Gilpw, Ch. ,/., charged the jury : This is an ac- tion of trover, brought by the plaintiffs to recover from the defendant the value of the hull of a sloop, contracted to be built for the latter by James IL Tubbs, to be delivered to him when completed, by a certain time, in the city of Philadelphia, subject to inspection there, if the defendant should require it. By the terms of the contract, Hall, the defendant, was to pay Tubbs, the builder, for the work at specific stages of it by instalments, as it progressed, Tubbs to supply all materials, as well as to do all the work at the stipulated price of twenty-eight dollars per ton. It is in proof that, the defendant had paid to Tuhbs the two tirst instalments, and one hundred dollars over, amounting to 051.38, and to one hundred dollars- more than the two-thirds of the whole price agreed to be paid for it. Afterwards, and when the vessel had been about GREEN v. HALL. 513 two-thirds built, several executions were sued out by cer- tain judgment creditors of Tubbs, the builder, and were levied on the vessel aa his property ; upon which Tubbs at once abandoned his work upon it, and gave up the vessel in her unfinished condition to the defendant ; in which she was afterwards sold at public sale under these executions and levies, and was purchased by the plaintiffs. They then made a formal demand ,on the defendant for the vessel, but he refused to deliver her to them, claiming her as his own property ; and proceeding to have the work upon her completed at his own expense, he afterwards carried her away and converted her to his own use. Upon this state of facts it is contended on the part of the plaintiffs, that the vessel was the property of Tubbs, the builder, at the time when the executions were levied on it ; whilst on the contrary, it is insisted upon the other side, that she was at that time the property of Hall, the defendant, by virtue of the written contract which has been proved between them, and the instalments duly paid by Hall to Tubbs during the progress of the work upon her up to that time ; on the ground that these instalments having been paid pursuant to the agreement as the work proceeded, it constituted what is termed an appropriation of the vessel as the work upon it progressed, to the defen- dant as his property. And it is upon this point the de- cision of the case depends ; for if the principle of law ap- plicable to the case under the facts proved, is such as it has been stated to be by the counsel for the defendant, then the verdict should be in his favor; but if it is other- wise, then it should be for the plaintiffs. The general principle of the common law on this sub- ject has been correctly stated, and is admitted on both sides, and that principle is this : when a contract is entered into for an article not then in existence, but which is after- wards to be made, or constructed, it does not become the property of the person for whom it is to he made, until it is completed and delivered to him, or is, at least, ready to be delivered to him, unless it is otherwise specially pro- 514 SUPERIOR COURT. vidcd in the contract. Because, notwithstanding this is the general principle of the common law in such cases, it is competent for the parties to provide by express agree- ment in their contract, that the article shall become the property of the purchaser at any particular stage of the work upon it ; but in the absence of any such stipulation between them in the contract, the general principle of the common law, as before stated, must prevail in regard to the ownership of it. But as there is no such provision or stipulation in the contract proved in this case, on the con- trary, it is wholly silent on this point, and inasmuch as it expressly provides that the hull of the sloop was to be finished and delivered by Tubbs to the defendant on or before a certain day in Philadelphia, subject to the inspec- tion of two persons, if required by the latter, we consider and feel bound to say to you that the ownership of the vessel and the property in her was in contemplation of law in Tubbs, the builder, at the time when the execu- tions in question were sued out and levied upon her as his property, and that the subsequent sale of all his right, title and interest in her, upon these executions, conveyed the legal title and property in her to the plaintiffs as the purchasers, notwithstanding the instalments paid and the money advanced on account of the work up to that time by the defendant to the builder; and that the plaintiffs are therefore entitled to recover. Several adjudicated cases have been cited by the counsel for the defendant, to show what has been the. ruling of the courts in England on tin- doctrine of appropriation, as it is termed, in cases of this nature, or at all events, some- what similar to this. But without entering into a parti- cular examination of these cases, some of which appear to rest on no very satisfactory or well-established principle, suffice it to say that we know of no case in which that doctrine has been ruled, or recognized in the courts of this country. On the contrary, the decisions here have been the other way; and in the latest case which appears to have arisen in our courts, which was the case of An- VANGEAZEL v. HILL YARD. 515 drews d al. v. Durant et al., 1 Kern. 35, very recently de- cided in the Court of Appeals in New York, the principle of the cases as ruled in England on this question was ex- pressly repudiated and denied as law in this country. As the defendant was suffered, after the sale to the plain- tiffs, to proceed and finish and complete the construction of the hull of the sloop at his own cost and expense, should the jury find for the plaintiffs, the measure of the damages will be the value of it at the time of the levy of the executions upon it. Verdict for the plaintiffs. JOHN VANGEAZEL v. ROBERT HILLYARD. A judgment entered without stating for whom it was rendered, aided and sustained by reference to the report of the referees on which it was ren- dered, and to the usual docket entry of the names of the parties on the margin of the record. CERTIORARI. The record contained an entry of the names of the plaintiff and defendant in the usual form. It also contained, among others, the following entry : The re- ferees appeared and were sworn, and after hearing the allegations and proofs of the parties, report in writing that they find John Vangeazel, the defendant, indebted to Ro- bert Elillyard, the plaintiff, seventy-eight dollars and seven cents, whereupon I give judgment against John Vangeazel, the defendant, for $78.07 debt, and 1.90 costs of suit. The error assigned was that the judgment was a nullity, as the justice had not rendered judgment in favor of the plaintiff, nor entered the name of the party for whom it was given, as required by law. "But the Court held that the defect was aided and cured by reference to the report of the referees on which the 516 SUPERIOR COURT. judgment was rendered and the names of the parties en- tered on the margin of the record; and affirmed the judg- ment. RACHEL SEAL r. JOSHUA T. SEAL and JOSEPH SEAL, lately trading in the name and firm of J. T. SEAL & Co. THE SAME PLAINTIFF v. JOSHUA T. SEAL. Judgments confessed upon a bond and warrant of attorney executed by one member of a firm in the name of the firm, first, against the two members of the firm jointly, and afterwards severally against the mem- ber of the firm alone who executed the bond and warrant, vacated and set aside; the first judgment, because the warrant only authorized the entry of a joint judgment against the partners, and not binding both, it could not bind either; and as to the second judgment, because it was not entered pursuant to the warrant, which must be executed strictly. A joint and several bond entered jointly against two cannot afterwards be entered severally against either. RULE to show cause wherefore two judgments, each for the real debt of $1250, confessed in the Superior Court for Xew Castle County, at the suit of Rachel Seal, a lu- natic, by Mahlon Betts, her trustee, the one against Joshua T. Seal and Joseph Seal, lately trading in the name and firm of J. T. Seal & Co., and the other against Joshua T. Seal alone, should not be vacated and set aside. The bond and warrant of attorney on which the judgments were con- fessed, purported to have been executed by the firm to Rachel Seal, and was signed " J. T. Seal & Co." It was joint and several; but the warrant of attorney was joint only. Judgment was first confessed upon it at the- suit of the plaintiff by her trustee against Joshua T. Seal and Joseph Seal, lately trading in the name and firm of J. T. Seal & Co., and afterwards, at a subsequent term, judg- ment was entered thereon against Joshua T. Seal alone. SEAL v. SEAL. 517 James A. Bayard, for the plaintiffs in the rule : Both judgments must be set aside; because, in the first place, I take the ground that a judgment cannot be entered seve- rally against one of two obligors in a joint and several bond, if the warrant of attorney is joint only ; and if the judgment is not good against both, it is not good against either. Gee v. Lane, 15 East, 592; Parish v. Wilkinson, 8 T. R. 153 ; 7 Taunt. 453 ; 18 Eng. C. L. It. 93, 96 ; 52 Eng. C. L. R. 698. The bond and warrant were executed by Joshua T. Seal alone. Joseph Seal's name was not sub- scribed to it, and the signature is in the handwriting of Joshua T. Seal, who alone executed it; and yet the judg- ment first entered cannot be a valid judgment against him individually by reason of his signature to it, though it is genuine, because it does not pursue the tenor of the war- rant, viewed in that light on which it purports to have been entered, which was joint only, and not joint and several, and which, of course, did not authorize the con- fession of a judgment thereon against him singly. A war- rant of attorney is a power which must be executed stric- tisimi juris, and must be strictly followed. In regard to the second judgment, I have to say that if a warrant of attor- ney, which is a power, is once exercised, it iafimctus officio, and can never be exercised again. Besides, the objection which I have taken to the validity of the first judgment as a sole judgment against him, applies with equal force to the last judgment entered subsequently and severally against Joshua T. Seal alone. J). M. Bates, for the defendant in the rule : A deed exe- cuted by one partner in the name of the partnership, but without the consent of the other partner, is his deed, though not the deed of the firm. (\>l. n Par in. 425. And lie is estopped from denying that it is his deed. Kll.iult v. /A"'/x, 2 llos. y*/ ( ' v. Jfn^tini/, 2 llirr. 147; Green v. Utah*, 2 Caiiit'S Rip. 254. This principle does not rest so much on the intention of the partner who exe- cuted the deed as upon the ground that it is regarded as a 518 SUPERIOR COURT. fraud on the other partners, and therefore he shall be bound by it as his own deed. I can perceive no distinction in this respect, between a power, or warrant of attorney, and any other deed. In the next place, throwing out of view entirely the second judgment for the present, what is the effect of the objection as to the first or joint judgment? Although irregular and voidable as against the other member of the firm, is it not a good and valid judgment as against Joshua T. Seal alone, who executed and gave the bond ? A bond and judgment may be good as to one and bad as to an- other. In the case of Mottcaux v. St. Aubin and others, 2 Wm. Black. 1138, a judgment entered on a joint warrant of attorney against an infant aud another, was vacated and set aside as against the infant and sustained as to the other. The same thing has been done in the case of partners, where there was no objection on the score of infancy, but where it was the same as in the present case, that is to say, because the bond and warrant were executed by one part- ner in the name and without the knowledge and consent of the other partners. Girrard v. Vasse, 1 Dallas, 110; Green v. Beabs, 2 Caincs' Rep. 254. But if the first judgment must be entirely vacated as a nullity, then I maintain that the second judgment, entered against Joshua T. Seal alone, is good, and must stand. As to the execution of a power, I understand the principle to be this : if the power is once executed, it cannot be exer- cised or executed again ; but an attempt to execute the power has no such effect. I, therefore, do not agcce with the counsel on the other side, that a power defectively executed, can never be executed again. I find the con- trary maxim stated in /SV/. on Powers, 15 Ltnr I Mir. 871. But that is not the question in this case; for the question here is, could a power which never was executed at all (which, I insist, was the case in this instance, if the judg- ment first entered is an entire nullity), be properly and validly exercised and executed at the time when the second judgment was entered? I insist that it could; and, there- SEAL v. SEAL. 519 fore, if the first must be entirely vacated and set aside, the latter must be preserved and sustained. Jhmes A. Bayar$, in reply : The counsel on the other side has argued the motion, as if I were seeking to set aside the judgments on equitable grounds. But such is not the case. I seek to set them aside, because the war- rant was a power, and had to be executed strictly pursuant to the power conferred by it, and on the ground of irregu- larity. For if there is irregularity, the Court cannot cure it ; but the judgments must, for that cause, be set aside altogether. In the case cited on the other side from 2 Wm. Black. 1133, the motion was not ruSde on the ground of irregularity, nor was such the ground of the application in the cases cited from Dallas and Games' Reports, which were the only cases produced. In the first case, the appli- cation was to the Court to strike the name of an infant from the warrant, on the ground of imposition. The bond and warrant were perfectly regular, but the infant had been induced by imposition to execute them. When irre- gularity is the ground of objection, and the warrant has not been executed strictly, it cannot be corrected, but the judgment must be set aside absolutely. By the Court: Both judgments must be vacated and set aside. The first, because the joint judgment against Joshua T. and Joseph Seal cannot be sustained against the latter; because he neither executed the bond nor the warrant of attorney, and because it cannot be sustained as the judg- ment of the former, Joshua T. Seal, alone, as a judgment entered against him severally, by striking the name of Joseph Seal, his partner, from it ; since the warrant ot attorney, which must be executed strictly, only authorized the confession of a joint judgment against both partners. And this last objection applies with equal force to the second judgment, afterwards entered against Joshua T. Seal alone. As to the entry of this latter judgment, we think there is force in the objection, that having once eon- 520 SUPERIOR COURT. fessed judgment on the bond against them jointly, if the signature of the bond had authorized it to be done in this instance, the warrant of attorney would have then become functus qfficio. For if there had been no exception on the score that the bond and warrant were in fact executed by but one of the partners, then no subsequent confession could have been entered upon it against either of them ; because a party on a joint and several bond and warrant of attorney against two persons, cannot enter it jointly against them, and afterwards severally against both, or either of them. HENRY L. BONSALL r. JAMES McKAY. In a demise of lands or tenements, whether the renting be for a year or a less time, or at will, the landlord cannot determine it without giving the tenant three months' notice in writing to leave. If the unlawful eviction of the tenant from the demised premises by tho landlord, be attended on his part by circumstances of aggravation and the trespass be gross, the jury may award the plaintiff exemplary dam- ages. TRESPASS for breaking and enterine; the close of the o o plaintiff and turning him out of the possession of the premises. The plaintiff had rented a house of the defendant in the city of Wilmington in May, 1857, but whether for the residue of the year or for a shorter time, did not appear from the evidence ; and had moved his family and furni- ture into it. The defendant having afterwards found a purchaser for the house, and entered into a contract to sell it, which was to be executed by the middle of August en- suing, called upon the plaintiff in July, and expressing his surprise that he had not yet got out of the house, de- manded the payment of the rent in advance, or security for it; and on the failure of the plaintiff to comply with BONSALL v. McKAY. 521 the demand, he proceeded in a few da3*s afterwards to turn him forcibly out of possession, by removing his goods from the house to the pavement, and locking the front door against him in his absence. On the return of the plaintiff, he had some difficulty in obtaining admission into the house, but effecting an entrance, he ordered the defendant out of it, and on his refusal to go, he took hold of him to put him out, which he resisted, when a scuffle ensu'ed between them until they were separated by another person. The plaintiff shortly afterwards produced a roll of large notes in his hand, amounting to a hundred dollars, and offered to pay the defendant rent for the premises for a year in advance, which he refused to accept, saying that he did not want him to pay rent, but to get out of the house, and that he would never have got into it if he had not told him a falsehood ; which the plaintiff denied, but in reply alleged tha* he had been disappointed in getting another house which he preferred and had expected to ob- tain before that time. The. counsel submitted the case without argument to the jury, subject to the opinion of the Court on the points referred to in the charge. 6 The Court, Houston, ,/., charged the jury : That any con- tract or consent, by virtue of which one person enters into the possession of the lands or tenements of another, under an agreement to pay rent for the same, was a demise, and would establish the relation of landlord and tenant between them ; and where no term or time was expressly limited between them, the demise or renting would be construed to be for a year, except of bouses and lots usually let for a shorter term. But if in the present case there was a less time specified and agreed upon between the parties during which the renting of the premises in question was fo con- tinue, it would be a demise for that time. The jury might therefore find, if the tacts proved would warrant it, that the renting in this case was for the residue of the year from the time the plaintiff entered into possession under 34 522 SUPERIOR COURT. an agreement with the defendant to pay rent; or they might even find that it was only what is termed in law a tenancy at will, to endure so long only as it should suit the will and pleasure of the defendant to permit the plaintiff to continue in possession as his tenant ; provided the jury should be satisfied from the evidence, that such was the understanding and agreement between the parties, and the plaintiff was to pay rent for the property during the time he so occupied it. But whether, under the facts proved, it was a demise of the premises for a year, or a less time, or at will, it was not competent for the defendant to determine it without previously serving at least three months' notice in writing upon the tenant, the plaintiff, to leave and deliver up the possession of the premises to him at the expiration of such notice. For without such notice, no landlord can proceed, even by legal process, to recover the possession of the premises from the tenant ; much less, to turn him out of possession by force and violence, without process. As to the other point suggested, whether it is allowable for the jury in such a case, provided their verdict should be for the plaintiff, to award him damages beyond the damages actually sustained by him, we can only state the rule to be, that where there are circumstances of aggrava- tion attending the trespass on the part of the defendant, and the trespass itself is gross, the jury may in their dis- cretion award exemplary damages, if in their judgment the circumstances of aggravation are such as to require it; of the measure of which they were the sole judges. JOHN "VV. ANDREWS r. JAMES W. THOMPSON. lif attorney and counsel of one of the parties to a Fuit, is not a com- pi-tent witri'-h = for him, although he has since, by leave of the Court, withdrawn from the suit, and is no longer connected with the tii.su as LENDERMAN v. LENDERMAN'S EXECUTOR. 523 counsel for the party, as to any fact which came to hre knowledge during that connection. RULE to show cause, wherefore the report and award of referees in an action referred out of Court, wherein James W. Thompson was plaintiff and John W. Andrews was defendant, should not be set aside. On the hearing of the rule, the counsel for the plaintiff called as a witness, and proposed to examine for the pur- pose of invalidating the report, Leonard E. Wales, Esq., who had been of counsel and attorney for the plaintiff in the rule, at the time of the reference of the suit out of Court, and on the trial of it before the referees, but who had afterwards, by leave of t"he Court, withdrawn from the case. Objected to by the counsel for the defendant as an incompetent witness, upon the ground that he had pre- viously been of counsel and attorney for the party in the case on whose behalf he was now called. On the other side it was insisted, that the witness no longer having any connection with the case as counsel, there was nothing on the score of sound policy or in the practice of the Court to exclude his testimony. But the Court held otherwise, and on both grounds re- fused his testimony, as to any fact which came to his knowledge during his connection with the case as the attorney of one of the parties. SARAH LENDERMAN y. ELI B. TALLEY, Executor of CHRIS- TOPHER LENDERMAN, deceased. Promissory notes made to a married woman and not reduced to posses- sion by the husband, on his death survive to the wife, and not to his executor, if she is then living. And as to the rights of the wife by sur- vivorship, in such oases, there is no distinction between choses in action accruing to the wife before marriage and during her coverture. THIS was an amicable action docketed between the par- tics and submitted to the Court on a case stated. 524 SUPERIOR COURT. The defendant, Eli B. Talley, was the executor of Chris- topher Lenderman, deceased, who left to survive him his widow, Sarah Lenderman, the plaintiff. Before his death and during their marriage she was the holder of several promissory notes payable to her in the usual form of such instruments, for the following sums respectively : One for $50, by Thomas Metcalf, Jr.; one for $145, by Samuel M. Talley; one for $60, by Samuel M. Day; one for $22, by Jacob Martin, and one for $30 and another for $12, by Jolin Hand ; all of which were made and delivered to her in the lifetime of her husband and during her coverture, and were still held by her due and unpaid at the time of his death. After the death of the husband, the defendant, under the impression that he was entitled to them, in vir- tue of his office as his executor, requested the plaintiff to deliver the notes to him, which she did, and he thereupon proceeded to collect the respective sums due upon them, as the executor of the husband. The question submitted for the decision of the Court was, whether the plaintiff or the defendant was entitled to sue upon said promissory notes and to recover the amounts severally due upon them, on the facts above stated. Houston, J., delivered the opinion of the Court. Whatever doubts may have been at one time entertained in regard to the question presented' in this case, it may now be considered as well settled, by recent decisions both in this country and in England, that the plaintiff is entitled to recover. The general principle of the law on this sub- ject is, that choses in action due the wife, and which are not reduced to his possession by the husband during the coverture, on his death survive to the wife, if she is then living; and the fact that the chose in action accrued to the wife during the coverture, constitutes no exception to this general principle. The question here presented has been maturely con- sidered, and all the cases bearing upon it have been care- fully reviewed in an able opinion of the Supreme Court of LENDERMAN v. LENDERMAN'S EXECUTOR. 525 Massachusetts, by Dewey, J., in Hayward v. Hayward, 20 Pick. 517, in which it was held that a distributive share of an intestate's personal estate, which accrued to a married woman during her coverture, and the husband died with- out reducing it to possession, survived to her; and that there is no distinction as to the rights of the wife by sur- vivorship, between choses in action which accrue before marriage and such as accrue during her coverture ; but in either case, if the husband dies without reducing them to possession, they survive to her. In a case decided since that time, in England, it was rulexl that a promissory note, although negotiable and transferable according to the cus- tom of merchants, like a bill of exchange, yet it is still a chose in action, and that a promissory note given to a wife in the lifetime of her husband, and not collected by him, on his death survived to her. Getters v. Madeley, 6 Mees. Wels. 423. The principle established in these cases has also been recognized and affirmed, and perhaps extended still further in its effect and operation, by a recent decision of the Court of Errors and Appeals in our own State, in which it was decided that a distributive share of the per- sonal estate of an intestate, which accrued to a married woman during the lifetime of her husband, and which he had assigned to one of his creditors in payment of a debt which he owed him, but not under his seal and in the pre- sence of two subscribing witnesses, according to the statu- tory provision in regard to assignments, so as to enable and authorize the assignee to sue for it in his own name, on the death of the husband before the assignee had col- lected it, survived to the wife notwithstanding the assign- ment. TJic State, for the use of Vickcrs, \. Robertson . E. Wales, for the plaintiff: The contract of the parties was rescinded by the removal of the defendant. All the parties concerned resided in the city of Wilmington when the articles of agreement were entered into, and it was their expectation and intention that the covenants contained in them should be performed in the State. The language WALTERS v. MORROW. 531 employed and the acts of the parties show conclusively that such was their intention. In the first place, the cap- tion of the agreement, which recites that it is made between the parties of the first part, of the city of Wilmington, and the party of the second part of the same place, shows that they each had then a fixed residence there, and indicates that it was their understanding that the contract was to be. performed in the State. But further ; the boy was placed with the defendant to learn the trade of coachsmithing, after the manner of an apprentice that is to say, an in- dentured apprentice and was to serve the defendant faith- fully, after the manner of an apprentice; aud by another stipulation the defendant agreed to teach " the said appren- tice" the art, trade, &c. The boy was, therefore, considered in the light or character of an indentured apprentice, al- though not formally so according to the statute, in relation to the manner of his service, and the place where his ser- vices as such were to be rendered; and it is a rule of legal construction, that covenants shall be so expounded as to carry into effect the intention of the parties. Plait on Cov. 136. The agreement must also be construed with refer- ence to the provisions of the statute on the subject of masters and apprentices, otherwise the phrases, " after the manner of an apprentice," and the "said apprentice," can have no definite meaning. But the construction contended for on the other side, whilst it would give the defendant greater rights and privileges as a master than the law allows, it would abridge the legal rights of the boy as an apprentice; for the statute forbids and prohibits the master from taking a legally and formally indentured apprentice out of the State, except in the special cases and in the mode provided for in it. Jter. Code, 247. But if this is not the proper construction, then the articles of agreement are void, because it is a binding of an apprentice not in con- formity with the mode prescribed and required by the law, and because it is an evasion, or an attempt to contravene the provisions of a legislative enactment. Plait on Cor. 581. 532 SUPERIOR COURT. McCaulley, for the defendant: It is necessary for a cor- rect understanding of this ease, that the character and effect of the articles of agreement should be clearly ascer- tained. That this agreement effected a binding of the minor in conformity with the provisions of the statute, in regard to apprentices and servants, cannot be seriously maintained. It contains no stipulations for the education of the minor, nor for his direct support and clothing, nor for his freedom dues; nor does the approbation of a justice of the peace appear to have been obtained. It is, there- fore, deficient in almost every essential ingredient of a valid indenture of apprenticeship. One objection taken on the other side, however, is that it is void for this reason, and because by the terms of the agreement the minor was to serve the defendant after the manner of an apprentice; and the latter is to teach the said apprentice the art, trade, and mystery of coachsrnithing. For these clauses, it is contended, have no definite meaning without the aid of the statute, to which reference must be had. But to this it may be answered, that the term apprentice applied to the minor in the articles of agreement is susceptible of two meanings. Its derivative and literal signification imports any one learning, or gaining elementary knowledge in any science or art, whilst with us its most usual applica- tion is to a minor bound to service under the forms of law. In the present instance it may have been employed in the former sense, and not with the understanding that the relation in which he stood to the defendant was to impose upon him the labors and responsibilities, and what lias too often proved the galling servitude of an indentured ap- prentice. As to the terms, that he was to serve the defen- dant faithfully after the manner of an apprentice, they negative the idea that he was to be considered as his actual apprentice, since if such had been the intention of the parties, they would have made him such at once according to the forms of the statute, without resorting to this equi- vocal method of making him so substantially, although not so formal!}. But to show that the boy Richard Jackson WALTERS v. MORROW. 533 was not an apprentice in any such sense as has been con- tended for on the other side, it is only necessary to observe that he was not himself bound by any of the stipulations contained in the agreement, nor was he charged with the performance of any of its covenants. The contract, pro- prio vigore, conveyed to him no benefits, and imposed upon him no obligations ; and so far as he was individually con- cerned, his compliance with its terms and conditions was entirely optional and voluntary on his part. If such had been the understanding and design of the parties, instead of resorting to this method of accomplishing their pur- poses, they would have at once adopted the usual mode of binding the minor by a public and official act, instead of a private agreement between the parties ; that is to say, by a regular and authenticated indenture of apprenticeship, as prescribed by the statute. This agreement therefore is nothing more than a mere private contract between the parties to it, and is to be in- terpreted and construed like any other contract of that na- ture, according to the rules and principles of the common law applicable to such cases, and without any reference whatever to the provisions of the statute referred to. It was' made without reference to tb.e statute, and must be construed without any aid or qualification derived from it. Covenants are to be so expounded as to carry into effect the intention of the parties, and this intention is not to be collected from the language of a single clause, but the ex- position must be upon the whole instrument. Platt on Cor. 136. Applying this rule in the present case and carefully reviewing the articles of agreement, where do we find in any of its terms, taken either separately or collectively, any sanction or warrant for the objection raised on the other side, that the contract was rescinded by the removal of the defendant and the change of his place of business from Wilmington to Baltimore, notwithstanding his readiness and willingness to meet all the obligations imposed upon him by the agreement, is admitted. The argument on this point, however, proves too much ; for, if sound, it 534 SUPERIOR COURT. would more properly confine and restrict the entire per- formance of the contract on both sides to the city of Wil- mington than to the limits of the State. But what is there in the contract, either to warrant or require such a con- struction as this ? If such was the intention of the parties, why was it not so expressed in the articles of agreement ? It is general and not special, or limited as to the place of its performance, and if it was intended by the parties to be otherwise, it was clearly necessary and incumbent upon them that they should have so expressed and agreed upon it between themselves? As they have not done so, such a construction cannot be supplied by conjecture, or implica- tion merely ; for on this point the contract must speak for itself, and on this point it is wholly silent and says nothing. It will not do to say that the point was overlooked, for such an inadvertence would not exempt either party from their legal obligations and responsibilities under the express terms of the contract. Chit on Contr. 567 ; Atkinson v. Rit- chie, 10 East, 533 ; Hadley v. Clark, 8 T. It. 259. One is dis- charged from his own agreement by any act of the other party which renders it impossible for him to perform his engagement. Chit, on Contr. 570. It must be impossibility, not difficulty merely, that will exonerate such a party from performance on his part. Add. on Contr. 342 ; Plait on Cov. 594. There is nothing in the objection that the agreement is void under the statute in relation to apprentices and ser- vants. Because such a contract as this, made between par- ties competent and willing to contract about a matter which is neither discouraged nor prohibited by statute, is valid and binding on the parties everywhere. It does not con- travene any provision of the statute in question, and does not attempt to evade the law, for there is no secrecy, fraud, or vice in it, as evasion implies. It is therefore valid and must be so considered by the Court. L. E. Wales, in reply : It is admitted, by implication at least, on the other side, that if it was the intention of WALTERS v. MORROW. 535 the parties to the agreement that it should be executed here, it was rescinded by the removal of the defendant from the State. The question therefore is as to the inten- tion of the parties on this point, which I admit is to be gathered from the whole contract. But I contend that the usual meaning and common acceptation of the terms em- ployed, must be adopted in the interpretation of it, and when the expressions used such as to " stay with the said Walters until he arrives to the age of twenty-one years," and " to perve him after the manner of an apprentice," "as a good and dutiful apprentice ought to do," &c. have a relative signification, as in this case, to something else; they must be so understood and interpreted in the con- struction of the contract and in determining the meaning of the parties to it. And it was for this reason I contended in my opening that this contract could not be correctly ex- pounded, or any definite meaning assigned to several of the most important and significant phrases employed in it, without referring to the .statute before cited in regard to apprentices and servants. Such being the case, what then do these phrases import on the question now before the Court ? Do they not clearly signify that in this, as in all other respects, the said minor was to serve the said Wal- ters, and to be taught by him the trade referred to as an apprentice ? But what kind of an apprentice ? Why, clearly, a regularly indentured apprentice, according to the forms of the statute. For if it does not mean that, it means nothing; and it must have been well known to the parties that according to custom and usage, as well as by a positive provision of the statute thus referred to, the service of an apprentice is restricted to the State, and such must have been their understanding and intention, though not expressed, with reference to the service of this boy after the manner of an apprentice, or as an apprentice, in other words, when this agreement was entered into between them. It cannot be supposed that either of the parties at that time contemplated or designed that he was to be taken out of the State to a distant city, among entire strangers 536 SUPERIOR COURT. and far away from the home and residence of his parents ; and who, of course, were not bound to follow him, if in- deed they were able. On the contrary, the contract was made with reference, at the time, to the means, condition, position, and residence of the parties, by implication at least, as much so as if they had been expressly stated, and no just and reasonable construction can be given to it, without so understanding it. But according to the mean- ing contended for on the other side, it was competent for the defendant to take the boy anywhere and everywhere he chose, without any one to care for him, or to look after his conduct or morals, for, by the agreement, it will be ob- served, he assumes no such obligation upon himself. Be- cause it is manifest that his only object was to secure to himself the benefit of his work, labor, and services, with- out incurring any such responsibility, and which always devolves upon the master of a regularly-indentured appren- tice. Will the Court sanction such a pernicious example, and establish a precedent that may lead to such unfortu- nate results? Is not this agreement therefore void as con- travening both the letter and the policy of the statute, and as essentially and substantially a binding not in conformity with its requirements ? If it is not an evasion, or an at- tempt to evade its provisions, it would be difficult to con- ceive what would constitute an evasion of either the letter or the spirit of it. Houston, ./., announced the decision of the Court. The articles of agreement in this ease being nothing more than a private contract int. 207, in conformity with the uniform decisions and practice, that an acknowledgment of a debt as a subsist- ing demand will take it out of the act of limitations, without an express promise to pay it. There has been no vacilla- tion in the courts on this principle, but some conflict in its application to the tacts in cadi case. In Wajjlffi v. Iji>h , 3 Ilarr. /(V/>. f>09, where the defendant, Waples, neither denied nor admitted the debt in terms, but re- ROBINSON v. BURTON. 545 marked that there were other persons of his name in the county, the Court said there was nothing which they would leave to a jury. They would leave nothing to the jury, unless an acknowledgment of a subsisting debt might be fairly drawn from it. And yet, in Black's Exrs. v. Reybold, 3 Harr. Rep, 528, the jury was allowed to infer such an ac- knowledgment from a very equivocal letter of the defen- dant, speaking of the " claim," and expressing the hope that " when they should talk the matters over they would be able to settle the business satisfactory to both parties." These are extreme cases. Yet the principle seems to re- quire that the acknowledgment should be of a subsisting or existing debt, and recognizing an obligation to pay it a debt originally just and still due. 2 Greenl Ev., sec. 441. And to properly value the force of such admissions, the circumstances under which they are made may be con- sidered. The circumstances under which what is claimed to be an admission in this case was made are these : The parties were before referees in an amicable action with re- ference tq a claim by Woolsey Burton, in a representative character, against Thomas Robinson, and the object of the written agreement seems to have been to show that the note referred to was not in any way to be considered in this reference a precaution which was quite unnecessary, as it would not have been considered, and was not within the submission. But with reference to its force as an ad- mission of indebtedness, it was proper that it should have been left to the jury to say, not merely whether it referred to the note on which this action is brought, but whether : t -^cognized that note, or any portion of it, as yet due. In '.<.'. respect we think the ruling of the Court, as set out in i; exceptions, was too narrow, as they only left it to the jury to determine whether the agreement had riference to the -note, and not irhctlter it amounted to a recognition of the note as a subsisting or existing debt. We think this was error, and that for this reason the judgment should be reversed, and the case remanded to the court below. Judgment reversed. 546 COURT OF ERRORS AND APPEALS. JOHN W. HALL, defendant below, Plaintiff in error, v. GEORGE W. GREEN and others, plaintiffs below, Defen- dants ih error. A contract between a shipbuilder and another, to build for him the hull of a sloop of certain dimensions and quality, at a stipulated price per ton, to be paid in three equal instalments at specific stages of the work as it progressed, the former to find all the materials and do all the work and deliver her complete by a certain day in Philadelphia, subject to the inspection of two persons, if required by the latter, does not appro- priate or vest the property in the vessel during the progress of the work upon it and before completion and delivery as stipulated in the contract, in the latter ; notwithstanding he has paid to the builder the first instalment of the price at the specific stage of the work as provided for in the contract, and also the second instalment and a hundred dol- lars over, by way of advancement to him, when the hull is about two- thirds finished ; but the property in the vessel remains in the builder, until finished and delivered as stipulated in the con'tract, and it may be seized and sold on execution at the suit of his creditors, in its unfinished state, as his property. It is competent, however, for the parties to the contract to agree in express terms that the property in the unfinished vessel shall pass from the builder and vest in the purchaser, on the pay- ment of the first instalment of the price as stipulated in itj if such be their meaning and intention. The general rule is, when one contracts with another for the building of a vessel, or other thing not then in being, for a given price, that no property in it vests in the person for whom it is to be constructed, during the progress of the work upon it, nor indeed until it is fully completed and delivered, or at least, ready for delivery ; and the pay- ment of the first, or two first instalments of the price during the pro- gress of the work in this case, and as stipulated in the contract, is not sufficient to take the case out of the general rule and vest the property in the purchaser by appropriation. The doctrine of appropriation, in such cases, has never been recognized as the law in this country. If the contract is executory in its terms, and is for the building of a thing riot yet in being, in which nothing is said as to when the property shall vest in the person for whom it is to be built, the Court cannot say with any fair show of reason, because it contains a provision for payment of the price by instalments according to the progress of the work, that it was the intention of the parties the property in the unfinished sloop should vest in the party for whom she was to be built, upon payment of the first instalment; especially as he was not bound to accept the sloop until she had been completed and had passed inspection in Phila- delphia upon her delivery there, according to the terms of the con- tract. HALL v. GREEN. 547 WRIT of error to the Superior Court for Sussex County, before Harrington, Chancellor, Gilpin, Ch. J., and Woot- ten, J. The suit below was an action of trover, brought by the plaintiffs below, defendants in error, against the defendant below, plaintiff in error, to recover the value of an un- finished vessel, sold during the progress of its construction under sundry executions levied upon it as the property ot one James H. Tubbs, the builder, and purchased at the sale by the defendants in error. The case was that Tubbs, the builder, had entered into a written contract with John W. Hall, the plaintiff in error, on the 31st of August, 1854, to build for him the hull of a sloop of certain speci- fied dimensions and quality, and find all materials, and de- liver it complete in the city of Philadelphia by the first day of March ensuing, to pass the inspection of two per- sons, if required by Hall, at the rate of twenty-eight dol- lars per ton, one-third to be paid when the keel, stem, sternpost and floors were laid, one-third when the deck- frame ami decks were laid, and the remaining third when it should be delivered in Philadelphia, all complete and according to the contract. Tubbs proceeded under the contract to procure materials and to build the vessel, and when it was about two-thirds built, and whilst he was still at work upon it, sundry executions were sued out on judg- ments recovered against him, and were levied upon it, and under which it was afterwards sold at public sale and was bought by the defendants in error, as his property. At the time of the levy of the executions upon it, Hall had paid in the aggregate to Tubbs on the work the sum of $951.38, which exceeded the amount then due by the terms of the contract one hundred dollars. Upon the levy of the executions on the property as his, Tubbs notified Hall of the fact, and at once abandoned his contract and his work upon the vessel, and did no more upon it. Hall attended the sale of it under the executions, and notified all bidders that he claimed the property as his own, by virtue of his contract with Tubbs, the builder, and the 548 COURT OF EREORS AND APPEALS. payments arid advances he had made him during the pro- gress of the work pursuant to the contract ; and afterwards, on the formal demand of the defendants in error, as the purchasers at the sale of the property, refused to deliver it to them ; but proceeded to finish and complete the hull at his own expense, procuring materials and employing work- men for the purpose. Upon this contract arid the facts above stated, the Court below charged the jury, that when a contract is en- tered into for an article not then in existence, but which is afterwards to be constructed, it does not become the property of the person for whom it is to be made, until it is completed and delivered to him, or is at least ready to be delivered to him, unless it is otherwise specially pro- vided in the contract. For notwithstanding the general principle of law was as just stated, it was competent for the parties by express agreement to contract that the arti- cle should become the property of the purchaser at any particular stage of the work upon it ; but in the absence of any such stipulation in the contract between them, the principle of law before stated must prevail, and the owner- ship of the property would in the meanwhile continue in the maker. And that a contract to build the hull of a sloop at a stipulated price per ton, to be paid in three equal instalments at specific stages of the work as it pro- gressed, the builder to find all the materials and to com- plete her and deliver her by a certain day to the purchaser in Philadelphia, subject to the inspection of two persons, if required by him, did not appropriate or vest the pro- perty in the vessel during the progress of the work in the purchaser, notwithstanding he may have paid to the builder the two first instalments at the specific stages of the work agreed upon, when about two-thirds built; but the ownership of the vessel remains in the builder, and is liable to be taken in execution for his debts. To this opinion and charge of the Court the counsel for the defen- dant below tendered a bill of exceptions, and by writ of error removed the case to this Court. HALL v. GREEN. 549 W. Saulsbury, for the plaintiff in error : The doctrine or principle of the appropriation of ships, and which applies to no other species of property, in the course of construc- tion, to the purchaser as the work progresses, when built under a special contract to pay for it by instalments at specific stages as the work proceeds, is distinctly stated and approved by Lord Abbott, than whom there can be no higher authority on such a subject. Abb. bn Ship. 6. But the Court below, in their charge to the jury, laid great stress on the fact, to take it out of the operation of this well-established rule, that in this case the vessel was to be finished and then delivered in the port of Philadelphia, subject to inspection, if the purchaser should require it. I shall show, however, not only from the principle as an- nounced by Abbott, but from the adjudged cases in Eng- land on this point, that the matter of final delivery does not control or affect the principle, but is wholly immate- rial ; because, if it be true, as the cases which I shall here- after cite will show, that the ship, as the specific stages of the building proceeds and the stipulated payments of the purchase-money are made, becomes at the completion of each stage of the work, by appropriation, the property of the purchaser, no one can fail to perceive that it operates without any actual delivery, and is altogether independent of that condition or circumstance. But if the principle be true, it must necessarily involve a constructive delivery of the ship, upon the completion of each stage of the work an it proceeds, and the payment of the purchase-money pursuant to the terms of the contract. And this is the ruling in the cases of Wood v. Russell, 7 Eny. C. L. R. 310, and Clark v. Xpcnce, 31 En. R. 771 ; BeWs Principles of the Law of Scotland, 486. The case of Woodv. ItnsseH is the first in which the doc- trine of appropriation on payment of instalments has been announced in England; and as the question was not neces- HALL v. GREEN. 559 sarily involved in the decision, it is at most but an extra- judicial opinion. Chief Justice Abbott says, in express terms : " We are not called to decide how far that payment vests the property in the defendant, because, here Paton signed the certificate to enable the defendant to have the ship registered in his (the defendant's) name, and by that act consented, as it seems to us, that the general property in the ship should be considered from that time as being in the defendant." Again, he says : " In order to register the ship in the defendant's name, an oath would be requi- site that the 'defendant was the owner, and when Paton concurred in what he knew was to lead to that oath, must he not be taken to have consented that the ownership should really be as that oath described it to be ?" So that it is perfectly apparent, the judgment of the Court pro- ceeded upon a ground totally distinct from the doctrine of appropriation. And we may therefore, without any disre- spect, be permitted to consider what is said by the Chief Justice in regard to this doctrine as a mere dictum. This case was decided in the year 1822, and was followed, after the lapse of thirteen years, by the case of Clark v. tipeiwe, decided in the year 1835. In the meantime the doctrine had been acted on by persons engaged in shipbuilding, and had been recognized by the courts ; but it had not, in any instance, so far as we know, met with the cordial ap- proval of the English judges. Indeed, it seems evident that although recognized as authority, the principle had been viewed with suspicion and followed with doubt and hesitation. Mr. Justice AVilliams, who delivered the judgment of the Court in Clark \. Spence, seems to lay some stress upon the circumstance of there being, in that case, a superintendent appointed to inspect and approve of the materials, and the work as it progressed ; yet, after all, it is apparent the ease was finally decided mainly, if not solely, on the authority of \Yorxl v. Ituxfdl, and it can hardly, therefore, be con- sidered a;< an authority in itself. AV r e come now to UW/ v. Bdl, 5 Elli* ,f Blackburn, 77:> [85 Eny. C. L. R. 771]; which 560 COURT OF ERRORS AND APPEALS. was decided in the year 1856. This case is similar in most respects to Wood v. Russell and Clark v. Spence. There was an inspector appointed, to inspect and approve the work, and the ship was to be paid for by instalments, during the progress of the work. But Lord Chief Justice Campbell, who delivered the opinion of the Court, does not appear to have considered either of these circumstances, taken alone, as conclusive upon the question of property ; for he relies principally upon other facts, as indicating the intention of the parties, that the property in the unfinished ship, and the materials to be used in her construction,' should vest in the plaintiff", Wood. He says: "But two facts remain. Joyce, at the instance of the plaintiff', punches his name on the keel expressly for the purpose of securing her to the plaintiff ; and although he refuses, after this, to execute a formal assignment of her to the plaintiff', he at the same time admits her to be the plaintiff's property. Both these cir- cumstances occurred when Joyce was the master of his property, and appear to us of the greatest importance ; they throw a light on the preceding circumstances, and show they are to be understood in so far as they were in them- selves ambiguous." The doctrine of appropriation, announced in Wood v. Jtussell, and afterwards recognized and adopted in Clark v. Spencc, has never, we believe, been followed in this country. Mcrritt v. Johnson, 7 Johns. 47-3, and Andrews v. Durant, 1 Kcman, 35, are both cases of contracts for building vessels to be paid for by instalments as the work progressed, and in which there were superintendents appointed to inspect and approve the work, but they were both decided accord- ing to the general rule which we have stated. In the for- mer case, the doctrine of appropriation is entirely ignored ; and in the hitter, the judges of the Court of Appeals, after an elaborate and able review of the English decisions, re- pudiated it altogether. But, after all, the cases which have been cited are prin- cipally serviceable as lights to guide our judgment to a correct conclusion in respect to the true meaning or inten- RICHARDSON v. RAUGHLEY. 561 tion of the parties. In this case the contract is in writing under the hands and seals of the parties, and is executory in its terms. It is a contract for the building of a thing not yet in being ; in which nothing is said as to when the property should vest in Hall. Can we say, then, with any fair show of reason, because it contains a provision for payment of the price by instalments according to the pro- gress of the work, that it was the intention of the parties the property in the unfinished sloop should vest in Hall upon payment of the first instalment ? We cannot think this would be a fair or reasonable construction of the con- tract ; especially, as he was not bound to accept the sloop until she had been completed, and had passed inspection in Philadelphia upon her delivery there, according to the terms of the contract. We therefore consider that the judgment below should be affirmed. THE STATE, for the use of REBECCA A. RICHARDSON, v. SUAD- RACH RAUGHLEY and DAVID TAYLOR. In a will which contained the following residuary bequest, " And all the rest of my estate, after my just debts arc paid, to be equally divided among all my grandchildren of my five daughters, named J. V., wife of T. V., andE. K., wife of . I. R.,and A. T., wife of I). T.,and E. H.,wife of J. H., and N. "VV., wife of D. "VV., the money to be paid by my execu- tors when they arrive at lawful age." Held, that the grandchildren in being at the death of the testator only were entitled to the residue, and that a child of one of the daughters named, born after the death of the testator, could not be let in to participate in the benefits of the txv quest ; the period of distribution being fixed by import of the bequest at the time of his dt-ath, and the period of payment or enjoyment only being postponed until they should arrive at lawful age. Tins was an action of debt on a testamentary bond, for the use of Rebecca A. Richardson, against Shadrach Raugh- ley, who was the surviving executor of the last will and 562 COURT OF ERRORS AXV APPEALS. testament of Shadrach Raughley, deceased, and David Taylor, who was the surviving surety in the bond, in the Superior Court for Kent County, and came up on a case stated and question of law reserved, for a hearing before all the Judges in this Court. The Chancellor and Judges all sitting. The facts of the case were as follows : Shadrach Raugh- ley, deceased, late of Kent County, died on the 20th day of June, 1833, having on the llth day of the same month made his will, which was afterwards duly proved and al- lowed before the Register of Wills for the County, by the residuary clause of which, after devising his real estate and bequeathing certain general legacies, he disposed of the residue of his estate, consisting entirely of personalty, in the following bequest : " And all the rest of my es- tate, after my just debts are paid, to be equally divided amongst all my grandchildren of my five daughters, named, Jane Vickery, wife of Thomas Vickery, and Re- becca Richardson, wife of James Richardson, and Ann Taylor, wife of David Taylor, and Elizabeth Hopkins, wife of John Hopkins, and Xancy "\Vighett, wife of Daniel "Wighett, the money to be paid by my executors when they arrive at lawful age." Shadrach Raughley, one of the defendants, and John Raughley, since deceased, sons of the testator, were appointed executors, and duly took upon themselves the execution of the will. At the time of the death of the testator, his daughter Jane Vickery had five children born and then living, the *. o * eldest of whom and who was the oldest of the testator's grandchildren then in being, attained the age of twenty- one years on the loth of June, 1838; his daughter Re- becca Richardson had six children born and then living, and two children born after his death, of whom the party for whos<~' use the suit was brought, Rebecca A. Richard- son, was one, burr on the llth of November, 1834 ; his daughter Ann Taylor had at the time of his death five children born and then living; his daughter Elizabeth Hopkins had one child born and then living, whilst his EICHAEDSON v. RAUGHLEY. 563 daughter Mary Wighett had two children born and then living, and three others born after his decease and now living. On the settlement of the estate of the testator by his executors, there remained in their hands for distribu- tion under the residuary clause above mentioned, a resi- due of $4645. 21, and on the llth day of November, 1839, the year succeeding the arrival at age of the oldest of the testator's grandchildren in being at the time of his decease, they passed their distributive account of the said residue before the register, whereby they distributed the same among such only of the grandchildren as were in being at the time of his death, wholly omitting therein to notice, or take any account of the party for whose use the suit was brought, or any of the other grandchildren who were born after the testator's death, but all of whom were born before his eldest grandchild had attained the age of twenty-one years. That the said Rebecca A. Richardson had arrived at age on the llth day of November, 1855, and that the suit was brought for her use to recover her just and proportionable share of the said residue, as one of the testator's grandchildren, equally entitled thereto with the grandchildren in being at the time of his death. The question of law reserved was, whether the party for whose use the suit had been brought, was entitled to re- cover on the foregoing statem'eut of facts ? If so, judgment to be rendered in her favor for the one-twenty-third part of said residue with interest from the date of the distribu- tive account ; but if not, judgment to be rendered for the defendants. Comeyys, for the plaintiff: The principle of law and rule of construction in bequests of this kind on which the plain- tiff relies for a recovery in this case is this : where the be- quest is to a class of individuals generally, as to children or grandchildren generally, without naming them indi- vidually, payable at a future time, as after a life estate given therein to another, or at the age of twenty-one, or marriage, all those answering the general description, or 564 COURT OF ERRORS AND APPEALS. falling within the class born before the time the property is to vest in possession, are entitled to equal shares in the bequest with those in being at the time of the testator's death. And this rule of construction is not only reason- able, just and equitable in its application to such bequests, but it has long been favored by the Courts, as it enlarges the bounty of the testator, and lets in the younger, and perhaps more helpless and dependent offspring with the older children, to participate alike in its benefits, and for whom he is equally bound to provide. And notwithstand- ing the bequest is immediate and vests in interest on the death of the testator, yet, if the period of distribution and the time when it is to vest in possession is postponed, the principle is the same, for in that case also, the after-born children or grandchildren will take equally with those who were in existence at the time of his death. Roper on Leg. 48, 54; 2 Mad. Chanc. 21, 22; 2 Powel on J)ev. 306; 2 Jarm. on Wills, 73; 2 Wms. on Exrs. 797; Ally. Genl v. Crispin, 1 Bra. Ch. Cases, 386 ; Gilmore v. Severn, Ibid. 582 ; Andrews v. Partington, 3 Ibid. 401 ; Hughes v. Hughes, Ibid. 401 ; PtrxcoH v. Long, 2 Ves. Jun'r, 690 ; Hoste v. Pratt, 3 Ibid. 730 ; Middldon v. Messenger, 5 Ibid. 136 ; Barrmgton v. Tristram, Q Ibid. 344; Walker v. Shore, 15 J bid. 123; Crone, v. Odell, 1 Ball llr<>. Ch. C". 401; Ilinjlv'* v. Il'ii/ln'*, If>i>/. :}")2, 4:}4 ; />>trri/in v. 7V'V/-'////, I! Vt-fi. J"/i'r, 344; IT'///,-,/- v. ,s'Ao/v, 1 "> Vt*. Jun'r, !:>:*; //>< v. //>//,, cited in Mli*;,,. v. Afrry, 11 IY*. 11 -J ; ll'ifxlfij \. Cli, were thereupon granted by the Register of Xew Castle County twm. Rep. 584; Chamberlain's Admr. v. Baker, 2 Porter's Rep. 550 ; -Hay- Mrop v. Hook's Admr. 1 6r#? ^ Jo/ms, 271 ; $'6% v. TO- liams, 3 6r?'W ter's 578 COURT OF ERRORS AND APPEALS. Court, if they can be collaterally impeached in every suit which an executor may be obliged to institute against the debtors of the estate which he represents ? Who, under the laws of this State, has power to grant or revoke letters testamentary, or of administration ? To the register of wills, in the several counties, the sole power is granted for these purposes, and by the statute (Rev. Code, 300, sec. 15), an appeal is given to the Superior Court from his de- cision in such cases, and I utterly deny that it is competent for a debtor of the estate, in a suit against him by an ex- ecutor, to call in question, in this collateral way, the cor- rectness or validity of his decision" in such a matter; for it is final and conclusive, unless appealed from and reversed in the mode prescribed by the statute. The next question is, whether a removed executor can be sued on his official bond by any other than his imme- diate successor, there having been in this case the interpo- sition of an administrator pendente lite, after the removal of the defendant and before the appointment of the present executor, for whose use the suit is brought. The words embraced in that portion of the condition of the bond on which this question depends, do not even contain the word "successor," much less, immediate or remote successor; for its language is, " shall, without delay, deliver to the person or persons entitled to receive the same, all the unadminis- tered goods," &c. Now, wlio but the present executor was the person entitled to receive the balance demanded in this case, and which was not judicially ascertained and deter- mined until after his appointment to the office, and which was done upon exceptions filed by him to the account which wan passed and filed before the register during the temporary administration of Mr. Sparks? As to the ques- tion raised in regard to administered and unadministered goods, and the right of a succeeding administrator to main- tain an action on his bond against a removed executor or administrator, it is settled in the case of Burton's Adminis- trator v. Tunncll ct al,, before cited by me. But the amount claimed in this case was not administered goods, or money, STATE USE OF DAVIS' EXR. v. ROGERS. 579 because the estate of the testator is not yet settled ; there are still outstanding debts against it to be paid and satis- fied, and it is therefore not a residue remaining for distri- bution in the hands of the removed executor; although the Court refused to recognize even this distinction in favor of the sureties of the removed administrator in that case. By the Court it was held that the present executor, for whose use the action was brought, had been duly appointed executor under the provisions of the will of the testator, and as such was entitled to maintain this action on the official obligation of the defendant, as the removed execu- tor, notwithstanding there had been an intervening admin- istration pendente lite, subsequent to the removal of the defendant from the executorship and prior to the appoint- ment of the plaintiff to it; and the following decision was directed to be certified in the case to the court below : And now, to wit, June 18, 1858, this case having been duly heard and argued by counsel on both sides, at the present term of this Court, before all the judges thereof, upon all the points of law reserved and set forth in the above case stated, and the same having been duly con- sidered by the said Court, it is ordered, adjudged, and de- creed, that the plaintiff is entitled to recover the sum of eight hundred and ninety dollars and forty-eight cents, with interest thereon from the 9th day of August, 1855, and that judgment be entered in the court below in favor of the plaintiff for that sum, together with the costs accrued in this Court as well as in the court below, and that the fore- going decision be certified to the court below, and the record remanded. 580 COURT OF ERRORS AND APPEALS. WILLIAM THARP, HENRY B. FIDDEMAN and DANIEL CURRY, Appellants, v. CHARLES T. FLEMING, Trustee under the will of BENJAMIN POTTER, deceased, Appellee. The Legislature has no power to authorize or direct the sale and conver- sion of real estate into personalty, devised by a testator in perpetuity and trust to a charity ; although the act is conceived in a friendly spirit towards the object of the trust, and with a design to render the fund more productive and effectual for the purposes of the charity contem- plated by the testator. APPEAL from the Court of Chancery, Kent County. Before Harrington, Chancellor (the case below having been before his predecessor, Johns, Chancellor], Gilpin, Ch. J., Milliyan, Wootten, and Houston, Justices. The appeal was from an interlocutory decree or order made by the late Chancellor, Johns, upon the petition of Charles T. Fleming, trustee under the will of Benjamin Potter, deceased, praying a writ of injunction to enjoin and restrain William Tharp, Henry B. Fiddeman, and Daniel Curry, trustees, appointed and authorized by an act of the Legislature, to sell the real estate devised by the said Benjamin Potter to charity, from selling the same, in accordance with the prayer of the said petition. Benjamin Potter, the testator, had by his last will and testament, devised all the balance of his estate, real, per- sonal, and mixed, to Potter Griffith, George S. Adkins, and Levin II. Adams, with authority to sell the same at such time or times as they might deem most proper, and to pay over the proceeds thereof to the same persons as the exe- cutors of his will ; and particularly enjoining it on them, or the survivor or survivors of them, or agents appointed by them, or by the Chancellor of the State of Delaware, to invest the net proceeds as it should become due, in such stocks as thev or a majority of them might deem most proper; and to reinvest the dividends which might arise therefrom, for the term of live years from the date of the purchase of the stock ; and that all the net proceeds THAKP v. FLEMING. 581 or dividends afterwards arising therefrom should be dis- tributed by them in the following manner : one-third thereof to the trustees of the Methodist Episcopal Church in the town of Milford, Delaware, for the sole use of said church, one other third part thereof, to and for the sup- port of the aged and infirm portion of the mechanics re- siding, in the town of Milford, and to assist such young mechanics in setting up or commencing their respective trades, who should not be able to do so themselves of their own means, &c., and the remaining third part thereof, to be distributed among the poor white citizens of the town of Milford and Milford Hundred ; the distribution to be made by agents to be appointed by the Orphans' Court, or Levy Court of Kent County, as might be deemed most proper ; no part of the bequest, however, to be applied to the use or benefit of any person or persons residing within the walls of a poor-house, but to be distributed among such only of the poor who by timely assistance might be kept from being carried to the poor-house and becoming sub- jects thereof. But by a codicil afterwards executed and added to his will, he made the following alteration in the foregoing devise, by which he devised and directed that the real estate embraced in the devise, instead of being sold as therein directed, should be rented out by his exe- cutors and the proceeds arising from such rents should be applied by his executors to the same purposes and for the same uses as were mentioned in said devise. It being hi.s intention and meaning thereby to alter and amend said devise only so far as to enjoin it upon his executors afore- said, the renting, instead and in the place of the sale of his real estate. And by another codicil subsequently executed to his will, he still further modified the devise as it had thus been altered by the former codicil, by cancelling, an- nulling and making void every part of his will and codicil thereto, that gave and devised any portion of his estate to the trustees of the Methodist Kpiscopal Church in the town of Milford, and also every part thereof that gave and devised any part or portion of his estate for the support, 582 COURT OF ERRORS AND APPEALS. use aud benefit of the mechanics residing in the town of Milford, and instead of said distribution to the church aforesaid, and among the mechanics aforesaid, he gave and bequeathed that portion of his estate that was devised for those two purposes, and also that portion of his estate that was devised to the poor white citizens of the town of Mil- ford and Milford Hundred, to and for the support, mainte- nance and education of the poor white citizens of Kent County generally, the apportionment and distribution to be made in the same manner and under the same restric- tions and regulations as were mentioned and written in the aforesaid devise in his said will, &c. After the death of the testator and the probate of the will and codicils, the executors above named declined to take upon themselves the trusts of the will, and Charles T. Fleming was appointed by the Court of Chancery, trustee in their stead, of the real estate devised to charity as set forth in the will and codicils, consisting of several large tracts of land situate partly in Sussex, but mostly in Kent County. The act of the Legislature referred to in the petition of the trustee for the writ of injunction, was entitled" An act to authorize the sale of the real estate devised by Ben- jamin J 'otter, late of Kent County, deceased, to charity," Del. Laws, col. 10, p. 523, which, after reciting in the pre- amble that the lands so devised to be rented out, and the rents and proceeds to be applied as provided for in the will and codicils, consisted of several tracts, for the most part covered with wood, and all extremely poor, yielding a scanty revenue, a great portion of which, owing to the dilapidated condition of the buildings and improvements, and the class of tenants occupying them, was necessarily consumed in keeping up repairs, preserving the land itself from waste and destruction, and in the collection of the rents, and that the object of the testator's charitable dona- tion would be best effected by a sale of the same, the wood and timber on which were very valuable, and the invest- ment of the proceeds under the superintendence of the THARP v. FLEMING. 583 Court of Chancery, in such manner as would yield an in- terest of six per centum per annum, proceeded to appoint Charles T. Fleming, with the appellants, trustees, and to authorize them to sell at public sale all the lands so devised as aforesaid, in such parcels or divisions as would secure the highest price therefor, and to make return of their proceedings in the premises to the Court of Chancery for confirmation, and to provide for the payment of the money arising from the sales into Court and its investment, and for the application of the income accruing from the invest- ment, to the charitable object pointed out in the will and codicils, by the Chancellor, according to the practice in Chancery in England, &c. But Fleming, the trustee, re- fused to serve as a trustee under the act of the Legislature, and filed his petition in the Court of Chancery to enjoin and restrain the other trustees, the appellants, from pro- ceeding under it. o The causes of appeal assigned were : First. That the ap- pellants, together with the said Charles T. Fleming, were proceeding to sell the said real estate under and by virtue of the said act of the Legislature, and that the Chancellor erred in enjoining and restraining them from making said sale. Second. That the Chancellor issued the said injunc- tion on the ground that the said act was unconstitutional and void, whereas the said act was good and valid. Third. That the Chancellor issued the said injunction on the ground that the Legislature possessed no authority to pass such an act, and that the said act was consequently null and void; whereas the Legislature had full authority to pass the said act, and the same was obligatory and binding on all the people of the State. Fourth. That no citi/en of the State, or of the county, except the Chancellor, objected to the said act, or to the sale to be made under it ; but the petition for the injunction preferred by the said Charles T. Fleming, trustee as aforesaid, was so preferred by the order and direction of the Chancellor, and that he erred in requiring the said trustee to initiate the said proceeding for injunction by his own order, but he should have waited 584 COURT OP ERRORS AND APPEALS. until some one interested in said lands and premises, or the rents and profits thereof, had brought the case before him, if any such could be found to do it. Fifth. That the Chancellor ought to have dismissed the said petition, and consequently erred in granting the said injunction. D. M. Bates, for the appellants : The first question in this case which presents itself is this : Supposing the Legis- lature to have transcended its power and authority in en- acting such a law as this, was the Chancellor warranted, at this stage of the matter, in interposing with his extraor- dinary power of injunction, before the trustees or commis- sioners had proceeded to do anything under the law? But should he not have left the question of its constitutional validity to come up on the return of their proceedings under it, into his court, when the whole matter would have been judicially before him, and this question, with any others which he, or any one else might see proper to raise, and when he and the public might at least have had the satisfaction of discovering whether the truth of the pre- amble and the wisdom of the act had been vindicated by the result of the sale, and whether this devise and the noble charity to which it is dedicated, now utterly barren, worth- less and unprofitable for that purpose, as it lies, was not in fact of great intrinsic value, and a munificent donation for the object designed, if it could only be converted into a personal and productive fund ? That such would have been the result no one who has the slightest knowledge of the lands devised can for a moment doubt. They now yield scarcely a dollar of net income in the hands of the trustee, whilst, in the market, if put up and sold, they would readily command from thirty to forty thousand dol- lars in their present state. The act contemplates and commands two prominent things to be done. First, the sale and conversion of the real estate into money, and secondly, the investment and administration of the fund afterwards by the Chancellor. The injunction pertains to the first object only; for the THARP v. FLEMING. 585 second could only arise for consideration after the sale, and the money arising from it had been brought into the Court of Chancery for that purpose. As to the first of these objects, I have to say, in the first place, that it was essen- tially necessary for the purposes of the trust itself. If the Court could look into the history of this trust as developed in the Court of Chancery, it would be astonished to dis- cover that a fund so valuable in itself could have been, through the long lapse of years since the death of Mr. Potter, so utterly barren and unproductive. And this fact alone urgently and imperatively required, as a matter of good faith and pious regard for the design of the testator, and of justice to the beneficiaries of his benevolence and charity, that something should be done, if possible, to re- medy this long-existing evil. If the Legislature had con- stitutional power to act in the matter, it was the sole and exclusive judge of the necessity and propriety of its action in the premises. Under the devises in the will and codicils there is no power conferred on any one to sell the real estate devised to the trust, or on any body, legislative or judicial. The trustees appointed in the will are trustees and holders of the legal estate, with a naked power to rent, and had no power over, and had nothing to do with the administration of the fund itself. They therefore had no power to sell, even if it should be considered that the power to administer the fund includes the power to sell it, which is another question. Neither had the Court of Chancery any power or authority to direct the sale of this real estate. The general act of the Legislature, Dig. of 1829, p. 118, confers no such power on the Court of Chan- cery in this case. By the act of 1793, Del. Lairs, vol. 2, 1055, the general power of the Court of Chancery in Eng- land, was conferred upon the Court of Chancery in this State, to manage and control the estates of idiots and luna- tics ; and yet the Chancellor in this State, from that day to this, lias never directed the real estate of an idiot or lunatic to be sold and converted into money. And it' the power to direct the sale of this real estate was not in the 38 586 COURT OF ERROES AND APPEALS. Court of Chancery, it is quite unnecessary to add that it could not be in any other court or judicial body in this State. I need not say that the fund, as it now lies, is a public nuisance and a continual source of petty plunder and spo- liation by many who claim to be poor white citizens of Kent County, and to be taking only what was devised to them by the testator, and of perpetual vexation and an- noyance to the trustee who has the care of it. Under these circumstances I then say the power to sell and convert the fund into money, so as to effect the beneficial objects of the devise and trust, must ex necessitate, reside somewhere, and that it vests in the Legislature. Whenever the bene- ficiaries of the trust are incapable, from infancy, idiocy, or otherwise, of consenting to the sale and conversion of real into personal estate, the power to sell it is in the Legislature ; and this has always been done from the foundation of the government, without question, I be- lieve. The only true and reliable exposition of this power is to be found, not so much in treatises and authorities, as in the action and practice of the government on the subject; and this is called the remedial, and not strictly the legislative power of the government. It is a power which necessity requires to be exercised for the benefit and welfare of the parties concerned, and has frequently been exercised by the Legislature of this State. Of this charac- ter are the acts which authorize the Orphans' Court and the Court of Chancery to order the sale of real estate and its conversion into money, to effect partition among the parties entitled to it; and the principle on which it restH, as I have before remarked, is this : it must reside some- where and in some body possessing higher and more ample powers of discretion than courts of justice, and must there- fore vest in the Legislature. Clark v. Van Surlay, 15 Wend. 436 ; S'. C. 20 Wend. 365. The power is possessed by the sovereign as par ens pa trice, and is not judicial, but tutelary and parental in its character. The power must reside somewhere, and is in the Legislature and may be exercised THARP v. FLEMING. 587 in a special case as well as generally. Estep v. Hutchinson, 14 Serg. Rawle, 435 ; Rice v. Parkman, 16 Mass. 326 ; Da- vidson v. Johonnet, 7 Mete. 388, 392. It is not a judicial power; because it is not exercised between parties in conflicts in- volving any question of right, or redress between them, but is parental and tutorial in its nature ; the object of it being merely to convert real into personal property for the beneficial purposes of all the persons interested, and may be exercised in a special case by way of a private act, even though there be at the same time a public act of a general character on the subject. Wat kins v. Holeman, 16 Peters, 51. And if this power exists anywhere, this is certainly a case in which it is indispensably necessary that it should be ex- ercised. I am aware that it will be objected, on the other side, that the power resides in the Court of Chancery, in this State, if it exists anywhere, and npt in the Legislature. I shall now proceed to consider the question, does the power to administer the fund of a public charity exist in the Court of Chancery in this State ? But let me first inquire, what constitutes a public charity? I answer, the uncertainty of the beneficiaries and the permanency of the fund, constitute the two prominent characteristics of such a charity. The power originally inheres in the donor, as a visitorial power; but formerly it was more frequently vested in trustees appointed by him ; now, however, it is more frequently vested in a corporation. In the first, it is incident to the right of property; but when the superin- tendence is vested in the latter, that is to say, in trustees, or a corporation, the power is delegated to them; and when it is not vested in trustees or a corporation, or any other person or body appointed by him, as it is not a judicial, but a remedial power in its nature, it devolves upon the sovereign authority of the State, as the parens palria: and general guardian of the public interests. 2 Story E secs - 111H) - llf>1 < n<< *-- When the devise is to a charity generally, without the ap- pointment of trustees to administer it, then the king, as 590 COURT OF ERRORS AND APPEALS. the parens patrice, and the Chancellor as his agent, will as- sume the administration of it, as a public charity ; but when there are trustees appointed to administer it, it is not a public charity, for they alone are to administer it, and the sovereign power of the state, as the parens patrice, has nothing to do with it, and all the Chancellor can do is to see that the trustees administer it faithfully, by virtue of his general jurisdiction over the subject-matter, as a trust merely ; and this is what constitutes the true distinc- tion between a public and a private. charity. But this as- serted power of the Legislature must be referred to some principle. Here is a valid devise to a charity, trustees appointed, and the mode specified in which it is to be ad- ministered ; and if the Legislature has authority to lay its hand on the land dedicated to this purpose, and on the estate vested under the will in the trustees, and to defeat and destroy the will and to sell and alienate the estate to another, free and discharged forever from the trust, I should like to see a case produced or cited to sanction and sustain it. When there is a person clothed with the legal title and capable of administering the charity, the doctrine of parens patrice has no application to the case ; for the sovereign has no parental authority over it. It is not necessary for me to show that the power to order the sale and conversion of the real fund into per- sonalty, is in the Court of Chancery. Until recently, I was inclined to the opinion that this might be done by the Chancellor, but I am now well convinced that this cannot be done ; and were the case in England, it could not be done, with all the theoretical and boasted omnipo- tence of Parliament, even by an act of legislation there. Attorney- General v. Butter, 4 Eng. Ch. Rep. 408. Much has been said about the past and present unpro- ductive quality or character of this fund. But as soon as this case is decided, and the long-continued litigation over this will is terminated, I have no doubt a plan will be adopted to render this real fund more productive than it would be if sold and the proceeds were invested in per- THAEP v. FLEMING. 591 sonal securities paying six per cent. The Court is too fa- miliar with the history of this unfortunate will, and the long litigation and numerous lawsuits which have arisen in regard to it, to render it necessary for me to do more than simply to allude to them, in order to show why this plan has thus been delayed and postponed, and why the fund has been comparatively barren and unproductive up to the present time. But a better and brighter prospect for the future is now dawning upon it, and as this is likely to be the last of the long series of suits and controversies which have grown out of it, I think I can confidently as- sume that the time is near at hand, when the results of it will be quite different, and when it will annually become more and more valuable and productive than even the most sanguine has ever anticipated from it. But to return to the point from which I have digressed; here the machinery is prepared and appointed in the will for the distribution of the benefits of the charity among those who are to be the recipients of it, and there is there- fore no ground for the parental relation of the sovereigns in regard to it. The power of the Court of Chancery over the subject, so as to assist in the execution of the purposes of the charity, is derived from no such relation, but is a part of its original, inherent and equitable jurisdiction over trusts, as such ; and courts of chancery have always regarded charities as peculiarly sacred, because they are voluntarily made by good men for benevolent objects and for no selfish purpose. And as no case has been or can be produced, in which this or any other State has ever ordered the sale of real estate devised to charitable objects, by a valid and sufficient will, I cannot but feel confident that this tribunal will sustain and affirm the interlocutory decree or order of the court below in the premises. Mr. Bates, in reply : I am now apprised of the precise ground on which the validity of this act of the Legislature is denied, and I must say that I am surprised that the ground is now taken, that there is no power anywhere to 592 COURT OF ERRORS AND APPEALS. convert this real estate into a personal fund for the pur- poses of the charity, and that these lands are inexorably consigned to utter and perpetual unproductiveness. The ground, nevertheless, is now taken that the testamentary power of the testator is supreme over the subject, and su- perior to the sovereign power of the government, and to the remedial power of the Legislature for the benefit of the charity, if in its opinion the devise has become inadequate to the purposes of it, and an exigency should arise when the interposition of its remedial authority should become necessary to effectuate the objects of the testator. But the cases cited in my opening clearly establish the prin- ciple that the Legislature possesses this power. And where is the danger to be apprehended from the exercise of it ? If it has never been done before in this State, it is because no case has before arisen to require it. What constitutes a public or private charity, is imma- terial in regard to this question. But I cannot agree in the definition and distinction stated on the other side. The question does not depend upon the fact, whether the Chancellor is to assume the administration of the charity, or trustees are appointed for that purpose ; but rather upon the number of persons to be benefited by it. A private charity, strictly speaking^ is treated and regarded in England as a trust merely. By ike Court : The decree of the Chancellor was unani- mously affirmed ; the Court holding that inasmuch as it had already been decided in the Court of Errors and Ap- peals that the devise in trust of the real estate in question by the testator to be rented and not sold, or in perpetuity for the purposes of the charity mentioned, was a valid de- vise, it was not in the power of the Legislature to autho- rize and direct the sale and conversion of it into person- alty, even for the purposes of the trust; because it was such a devise as the testator had power to make of his real estate in perpetuity, for the purpose stated, it being it de- vise in trust to a charity, which the Legislature had not THARP v. FLEMING. 593 the power to repeal or modify, or to divest the title and estate given by it ; and because it would be in direct con- travention of the will of the testator, which in this respect, had been held by this Court, after solemn argument, to be valid and binding, and who had expressly directed in the devise in question that the land should not be sold, but should be rented, and the rents and profits arising from it should be applied to the objects of the charity. The act of the Legislature directing the sale and conversion of the real estate thus devised, into personal property or money, although conceived in a friendly spirit towards the object of the trust and charity, and was enacted with the design to render it more productive and effectual for the purposes contemplated by the testator, was therefore an act which the Legislature had no power over the subject-matter to pass, and was consequently inoperative and void, and con- ferred no power on the commissioners or trustees named in it, the appellants, to sell or dispose of the real estate in any manner whatever. SUPERIOR COURT. FALL SESSIONS. 1858. LEVIN PETTYJOHN v. DAVID BLOXOM, Administrator of NATHANIEL DEPUTY, deceased. Judgment was recovered in the Superior Court, on which an execution was issued to the sheriff and a levy made by him on the defendant's goods to the amount of the debt and costs. Afterwards, but before sale of the goods, the defendant sued out a writ of error and gave security, on which the judgment was affirmed in the Court of Errors and Ap- peals, and judgment of affirmance duly entered in the (Jourt below. Held, that the writ of error was a supersedeas of the fi. fa. and levy on the original judgment in the Court below, and that a subsequent^, fa. issued on the judgment of affirmance, and levy and sale, was regular. RULE to show cause, &c. The defendant in the rule had recovered a judgment in the Superior Court for Sussex County, against Pettyjohn, the plaintiff in the rule, on which a writ of fieri facias had been regularly issued and levied on the goods of Pettyjohn to the amount of the debt and costs. Afterwards, but before the sale of the goods by the sheriff, Pettyjohn sued out a writ of error on the judgment, and gave security for the due prosecution of it, on which the case was removed to* the Court of Errors and Appeals, and where the judgment in the Court below was afterwards affirmed and the record remanded. The judg- ment of affirmance in the Court above was duly certified and entered on the record of the case in the Court below, PETTYJOHN v. BLOXOM. 595 pursuant to the statute ; and on this judgment of affirm- ance entered in the Court below, the defendant in the rule, without proceeding any further with his previous exe- cution and levy under the original judgment, sued out a writ of fieri facias, which was levied on the goods of Petty- john, and after one or more writs of venditioni exponas issued thereon, the same were sold by the sheriff', and the money returned at the last term of the Court; at which term this rule was obtained to show cause wherefore this latter./?. /a., sued out upon the judgment of affirmance, and the writs of venditioni exponas and the sale of the goods thereon, should not be set aside for irregularity. C. S. Layton, for the plaintiff in the rule : In this case the second ^z. fa., sued out upon the judgment of affirmance certified from the Court above to this Court, and entered here pursuant to the statute, was irregular and must be set aside; because the goods seized and levied upon under the former fi. fa. on the original judgment, were in the custody of the law, and the levy thereon being to the full amount of the debt and costs, was prima facie a satisfac- tion of the execution, and should have been disposed of by venditioni exponas before any^z. fa. could or should have been issued on the judgment of affirmance. Under the constitution and laws of this State, a writ of error, even when security to prosecute it is given, is not a supersedeas of the proceedings in the Court below, but only a stay of such proceedings pending the writ of error. Const., art. 6, sec. 19; Revised Code, 379, sec. 17. A writ of error is no supersedeas of an execution issued on the judgment in the Court below and levied by the sheriff. J3lanchard v. Myers, 9 Johns, 66 ; Kinney v. Whitford, 17 Johns, 34. The gene- ral rule seems to be, that a writ of error operates as a supcr- sedeas from the time of allowance, and stays proceedings in the Court below only until the errors are disposed of, but does not vacate an execution and levy on land. 1 2 i 7 . & Dig. 177, sec. 501. 596 SUPERIOR COURT. W. Saulsbury, for the defendant in the rule : Under the constitutional and statutory provisions of this State on this subject (and this question must be decided solely with re- ference to them, and not by precedents cited from other States), a writ of error as soon as sued out and security is given for the prosecution of it, becomes a supersedeas of all executions and proceedings on the judgment in the Court below ; for although the word stay, instead of the more technical phrase supersedeas, is the term employed in the constitution, it means the same thing and nothing less. But the 8th and 9th sees, of chap. 110, Rev. Code, 390, 391, provide that the prothonotary of the Court below, to whom a record, remanded with a duly certified copy of the pro- ceedings and judgment of the Court of Errors and Appeals, is delivered, shall without delay file it, and enter upon the docket of the Court below, in connection with the entries of the cause in said Court, the said proceedings and judg- ment of the Court of Errors and Appeals, with the date of making such entry ; and the entry so made shall be a record, and the judgment so entered shall have the same force and effect as a judgment of the Court below, and shall be executed by the process of the said Court in like manner as judgments of said Court. Now, in this case the judgment of affirmance 'in the Court of Errors and Appeals was thus entered in this Court, with the addi- tional costs which had accrued in that Court, and thereby became in effect, under these provisions of the statute, a judgment of this Court, to be executed in like manner and by the same process as the original judgment; or in other words, it became a second and subsequent judgment on the records of this Court for one and the same debt, with an additional taxation of costs; and must it not therefore be held to be itself a supersedeas of the original judgment and all the proceedings upon it previous to the issuing of the writ of error, and would it be competent to treat it as a still subsisting judgment of this Court, ou which any further executions or proceedings whatever could be taken to enforce the collection of it, when the judgment of a PETTYJOHN v. BLOXOM. 597 higher court and of superior jurisdiction and of later re- covery stood beneath it on the record for the same iden- tical debt ? Not only was the writ of error a supersedeas of the execution and levy on the original judgment, but is not this judgment of affirmance necessarily a superscdeas of that judgment and of all the proceedings upon it prior to the removal of the case to the Court above? and as a once subsisting judgment for the recovery, enforcement and collection of the debt by any execution process whatever upon or by virtue of it, is it not practically engrossed and extinguished by the subsequent judgment of affirmance for that debt with the additional costs incurred in the Court above ? By the Court, Houston, J. : The rule must be discharged. At common law a writ of error was a supersedcas of all proceedings on the judgment in the Court below, from the time it was sued out and notice of it was served on the adverse party; and this, too, without security for the pro- secution of it. Afterwards, by Parliamentary enactments, security or bail for the due and faithful prosecution of it in the Court above, was required in order to render the writ of error a supersedeas of the proceedings on the judg- ment in the Court below. But after these enactments, when the bail or security was given, it had the same effect as a supersedeas^ which it originally had at common law without it; and the only object of our constitutional provision on the subject, was to change this common law rule, as it had before been changed by statutory provisions in England. The meaning and effect, therefore, of this provision of our State constitution is, that when sufficient security is given for the prosecution of it, the writ of error shall be a super- seded $ of all proceedings on the judgment in the Court below. It is true, that if an execution issued upon it is cj'foilt'd before the writ of error is sued out, it may be re- turned to the Court below afterwards ; but so long as it remains executable, but not executed, a writ of error with security for its prosecution is a superscdeas of it. 'J Tidd't 598 SUPERIOR COURT. Pr. 1072; Lane et al v. Bacchus, 2 T. R. 44. The term adopted in the constitution is stay instead of supersedtas, as was observed by the counsel for the plaintiff in the rule ; but the difference is only verbal, for it means the same thing. If the judgment below is reversed in the Court above on the writ of error, of course, there is an end of it as a judgment, with all unexecuted process depending upon it when the writ of error was issued and the security given ; but if it is affirmed, then the judgment of affirm- ance is entered as a judgment on the record of the case in the Court below, to be executed in like manner and by the same process as a judgment of that Court, and is to have the same lien and effect under the statute referred to, Rev. Code, 390, 391, sees. 8, 9 $ 10, as a judgment of that Court. But in the latter case the judgment of affirm- ance stands in lieu of and becomes the substitute, and not the duplicate, of the original judgment, and all the subse- quent proceedings and process must be had thereon for the collection of the debt, in which the costs accruing on the original judgment, with the interest, are added to the costs incurred on the writ of error in the Court above, and execution issued for the debt and costs as thus ascertained. DANIEL CURREY v. THOMAS J. DAVIS et al. A verbal agreement between the owner of premises and another, that the latter should till and cultivate a crop of wheat, corn and fodder on the premises, upon the following terms and conditions, the owner to fur- nish all the necessary teams, horses, mules, and oxen, and the food there- for, all the seed-wheat and corn for sowing and planting the crop, and all carts, wagons, ploughs, harrows and agricultural implements for the proper cultivation and securing the same, and a certain quantity of guano for manuring the crop, the other to do all the labor and well and faithfully cultivate the crop and save it in due season ; the owner to have two-thirds of the wheat and corn, and one-half of the fodder, and the latter to have all the rest and residue of the crop, does not con- CURKEY v. DAVIS. 599 stitute a demise of the premises, in contemplation of law, or the legal relation of landlord and tenant between them ; but they are owners or tenants, in common of the crop to be raised on shares, and the interest or property of the owner of the premises in it is liable to levy and sale on a writ of fieri facias issued against him. ACTION sine breve and case stated. The following were the facts of the case submitted to the Court. Samuel Brown, one of the defendants, was the owner and posses- sor of certain lands and premises in Cedar Creek Hun- dred, and in the fall of 1857, entered into a verbal agree- ment with James Pettyjohn, another of the defendants, that the latter should till and cultivate a crop of wheat, corn and fodder upon the premises on the following terms and conditions : Brown was to furnish all the necessary teams, horses, mules, and oxen, and food therefor, and all the seed-wheat and corn for sowing and planting the crop, and all the carts, ploughs, harrows and other agricultural implements for the proper cultivation and securing of the same, and also a certain quantity of guano, to be delivered by him on the premises, for manuring the crop; Pettyjohn to do all the labor, and to well and faithfully cultivate and tend the crops and save them in due season with the teams and implements so furnished, and Brown to have two- thirds of the crop of wheat and corn, and one-half of the fodder ; which contract was in all respects performed by the said Brown as agreed upon between them, and who also assisted Pettyjohn in sowing the wheat and ploughing the land for it, and furnished a machine for threshing it, and assisted in threshing it; all of which Pettyjohn was bound by the agreement on his part to do without such assistance. The wheat crop had been saved and disposed of, when Currey, the plaintiff, who had a judgment in this Court against Brown, sued out a writ of Jieri facias thereon, early in the month of September, in the present year, which the sheriff by his direction had levied upon the said crop of corn and fodder, then growing on the said premises, and all the right, title, property and share of Brown to and in the same ; and that after the levy of the said execution GOO SUPEEIOR COURT. as aforesaid, each of the said defendants, with the excep- tion of Brown and Pettyjohn, had sued out writs of attach- ment on judgments which they severally had against Brown, with clause to summon the garnishees of the lat- ter to answer, &c., and on which Pettyjohn was duly sum- moned as a garnishee, and to which he afterwards appeared and answered that he paid a yearly rent for the premises to Brown of two-thirds of a crop of corn and one-half of a crop of fodder, which he then had in his posession on the land. Previous to this, however, the sheriff had proceeded to sell the right and interest of Brown in the crop of corn and fodder under the/, fa. and levy, of which the plaintiff became the purchaser. It was also stated and admitted that Brown gave notice in writing to Pettyjohn, on the 30th day of September, 1858, to leave and deliver up the premises at the close of the year. The question was, whether Brown, on this statement of facts, had such an interest, right, title, or property in the crop of corn and fodder, as was subject to be seized in execution, levied upon and sold, under a writ of fieri facias ; or, on the contrary, was only liable as rent on the attach- ments ? E. D. Ctdlen, for the plaintiffs : There is nothing in this case, or in this agreement, to constitute the legal relation of landlord and tenant between Brown and Pettyjohn as to these premises, or the crop of corn and fodder grown upon them. It was not in contemplation of law a case of demise, or lease, or parol letting of the premises by the former to the latter, on a render or payment of rent as rent; but it was nothing more than an engagement for Pettyjohn to till and cultivate a single crop of wheat, corn, and fodder, on shares for Brown, on premises belonging to him; Brown to supply the seed grain, and all the teams, and carts, and ploughs, and other implements required for the purpose, and the guano to manure the land; and Petty- john to perform all the labor in cultivating and saving the crop, but to furnish nothing more on his part; for which CURREY v. DAVIS. 601 Brown was to have for his share, but not as rent, two- thirds of the wheat and corn, and one-half of the fodder, as an equivalent for what he contributed in stock, imple- ments, seed and manure, as well as land, in raising the crop ; and the tiller, Pettyjohn, to have the residue as a compensation for his work and labor in tilling and saving it. The latter was not a tenant of Brown's in the legal sense of the word, but was a mere cropper on shares for the season upon the land. This, therefore, constituted them nothing more than tenants, or owners in common, of the crop, while growing and when matured, until it was severed and divided between them; and which, of course, gave Brown such a property in common in the crop with Pettyjohn, as was subject in its undivided state to seizure in execution, and levy and sale on a writ of fieri facias against Brown, like any other goods and chattels of his held in common with others. State v. Frame, 4 Harr. 569; 3 Johns, 215; 8 Johns, 151; 8 Cow. 220; 15 Wend. 379; 10 Pick. 205; 1 Hill, 234; 3 Hill, 90. Lofland, for the defendants : The act of Assembly, Rec. Code, 421, provides that any contract or consent, pursuant to which a tenant shall enter, or continue in possession of land or tenements, under an agreement to pay rent, shall be a demise. In this case, the answer of Pettyjohn on the attachments, states expressly that lie was to pay Brown a yearly rent for the premises, payable in kind, that is to say, a portion of the crop, the usual mode of reserving rent for such premises when formally demised, or leased in this, if not in all other sections of the State; and this statement of Pettyjohn cannot now be controverted, for it is admitted in the case stated. It. was, therefore, nothing more nor less than a parol demise, or letting of the premises by P>rown to him lor a single year, two-thirds of the wheat and corn and one-half of the fodder to be paid as rent to Brown for the premises as his landlord, in consideration of the liberal terms on which the land was leased to him. There are many such demises in the lower >cctioii- of the 602 SUPERIOR COUET. State, and it was never before supposed that any other relation than that of landlord and tenant, in its legal as well as popular acceptation, subsisted between such par- ties, with all the rights and incidents, exemptions and liabilities, which attach in law to that relation. Gilpin, Ch. 7., delivered the opinion of the Court. We do not think that the facts in this case constitute, in contemplation of law, a demise of the premises in question by Brown to Pettyjohn on a render of rent, so as to estab- lish the technical or legal relation of landlord and tenant between them; but that it must be regarded and considered as nothing more than an agreement for raising, at their mutual expense and labor, a crop of wheat, corn and fod- der, on shares between them ; Brown, in consideration of his ownership of the premises, and the abundant means which he was to furnish under the agreement towards making the crop, which was all, and more than all, that a tenant usually furnishes, except the mere labor in planting and tilling the crop, to have two-thirds of the grain and one-half of the fodder, whilst Pettyjohn was to have the residue of each; which were the shares in which the crop, when thus raised, was to be divided between them. In the agreement itself, as stated, nothing is said about leas- ing, or letting the premises to Pettyjohn as the tenant of Brown; and nothing is said about rent, as rent, to be paid by him to Brown for them. But the agreement appears to have simply been, " that he should till a crop of wheat, corn and fodder," on certain premises belonging to Brown, on the terms and conditions stated; thfe latter to have two- thirds of the wheat and corn, and one-half of the fodder, and Pettyjohn to have all the rest and residue when the crop should be raised. There is nothing said in all this about paying anything as rent, or as a yearly rent, for the possession and enjoyment of the premises for that length of time; on the contrary, it is rather the language of an agreement merely to till a crop on shares, and to divide it between them, when raised, in the proportions mentioned. CURREY v. DAVIS. 603 And this would constitute them owners, or tenants in com- mon of the crop whilst growing and when matured, until it was severed and so apportioned between them; and which, of bourse, would give Brown such an undivided in- terest or property, in common with Pettyjohn, in the crop, as would be liable to levy and sale on aji.fa. against him. The case cited from 4 Harr. 569, State v. Frame, though on an indictment for larceny, proceeds on this ground; and all the cases cited by the counsel for the plaintiif re- cognize and establish this distinction. In the language of one of those cases, Pettyjohn must be regarded rather in the light of a mere cropper than as a tenant, under the facts stated. Had this agreement, however, constituted, in the opinion of the Court, a demise in law of the premises to him, on a reservation, or payment of rent as such, though by parol, the only process by which Brown's interest or claim of rent could have been reached by his creditors, would have been by writs of attachment laid in the hands of the tenant, under the provision of the statute. Rev. Code, 430, sec. 67; and in that case judgment would have been rendered for the defendants. There is nothing stated in the case inconsistent in the slightest degree with the view which we have taken of it, except the answer of Pettyjohn on the attachments, and the written notice from Brown to him to leave the premises at the close of the year. But these were declarations and acts of the parties themselves respectively, after the contract had been entered into, and had for the most part been performed by them; and neither is sufficient or admissible to control the legal construction of the agreement, as it was concluded between them, and has been submitted to us for our consideration and deci- sion, by other parties who have rights and interests depend- ing upon it. Judgment must, therefore, be entered for the plaintiff. 604 SUPEEIOR COURT. NATHANIEL VAUGHAN, defendant below, Appellant, v. AARON MARSHALL, plaintiff below, Respondent. A partial payment made within twenty years on a judgment of longer standing, will rebut the legal presumption of its payment ; but if the parties have subsequent dealings within that time and the plaintiff falls in debt to the defendant on book account, he cannot indorse the amount on the record as a credit to the judgment, so as to rebut the presump- tipn of its payment, unless it be further shown that they have had a settlement of their subsequent dealings, and it was so agreed between them. ON appeal from a justice of the peace. The action be- low was a scire facias, at the suit of Marshall, on a judgment recovered by him against Vaughan, before Peter Hall, for- merly a justice of the peace, on the 10th day of July, 1830, for $20.88 and costs. Marshall, the plaintiff below, gave in evidence the record of the original judgment; also his book of account against Vaughan, which showed subsequent dealings between them, in which he became a debtor to Vaughau within the last twenty years, in the sum of $9.27, and which he had after- wards entered as a credit on the record of the judgment, which he relied on to rebut the presumption of payment arising from the lapse of time since the recovery of it. The Court, Giipui, Ch. J., charged the jury : Payment of the original judgment below is pleaded, and the defendant below relies on the legal presumption that it is paid, re- sulting from the length of time, more than twenty years, which has elapsed since it was recovered, to sustain the pica. "But on the other side, it is proved that the parties have had subsequent dealings within the last twenty years, and that Marshall has fallen in debt to Vaughan, on book account, to the amount of SI*. 27, which was afterwards in- dorsed lv him on the docket of the justice as a credit to the judgment. This is an action of w'/v /'/f/V/x on that judgment coming up here on appeal, in which it would he WINDSOR v. BOYCE. 605 competent for the plaintiff in it, to prove a partial payment of the judgment within twenty years, to rebut the pre- sumption before referred to ; but it must be a payment on the judgment, not a mere matter of cross demand due the defendant below, but the plaintiff here, on book account; unless it is further shown and proved that the parties have had a settlement of their subsequent dealings, and it had been agreed between them that the balance due Vaughan, the plaintiff here, on the settlement, should be a credit on the judgment. But without such further proof, the mere act of the plaintiff below, in indorsing this credit on the judgment, cannot have the effect to repel the presumption of its payment. Verdict for defendant below. E, D. Cullen, for plaintiff. Robinson, for defendant. JOHN K. WINDSOR v. JAMES BOYCE. "When the plaintiff in an action of replevin relies only on a wrongful de- tention of the property, it is quite as necessary in general that he should prove a demand and refusal, in order to establish the wrongful de- tention, as it is to establish a conversion of the property in an action of trover. THIS was an action of replevin tor a negro slave by John K. Windsor against James Boyee. The pleas were nn ccpit, property in the defendant, property in one John Windsor, and the act of limitations. The slave was in the possession of the defendant, but the only matter in dispute, so far as it was exhibited in the testimony to the court and jury, was, whether the slave was the property of John K. Windsor, the plaintiff, or of John Windsor. When the counsel for the plaintiff had closed his evidence, 606 SUPERIOR COURT. W. Saulsbury, for the defendant, submitted a motion for a nonsuit. We have had a good deal of testimony as to the conflicting claims of John K. Windsor, the plain- tiff, and John Windsor, to the slave in question, but no proof whatever as to the wrongful taking, or the wrongful detention of him by the defendant. There is no evidence that he came into his possession wrongfully, and no de- mand by the plaintiff upon the defendant for him has been proved, to show a wrongful detention of him ; and without proof of one or the other, the plaintiff cannot recover. Besides, no evidence has been adduced to show where he was taken, neither as to the hundred, nor the county, which was necessary, as the action of replevin is local and not transitory. E. D. Cullen, for the plaintiff: The narr is in blank as to the place of the taking; but if the defendant designed to make the place or close in which the slave was taken material, he should have pleaded specially to that matter, that is to say, he 'should have pleaded cepit in alio loco, which he has not done. Furthermore, our act of Assem- bly provides, Rev. Code, 379, sec. 12, that it shall not be necessary in any declaration, or other pleading, to lay the venue in the county in which the action is brought, nor to set forth in any manner the place in which the act is alleged to have been done, unless when, from the nature of the case, the place may be material, or traversable. Proof of a demand and refusal is not necessary in an action of replevin, as it is in trover. The bringing of the action itself is often a sufficient demand. The defendant has resisted this suit, and pleaded property in himself and in John Windsor, and totally denies the right of the plain- tiff to this slave; and this of itself is sufficient to establish and show a wrongful detention at least. Mr. Saulsbury, in reply : The plea of non cepit in moJo c( forma puts in issue the place of the taking alleged in the , and though the close is omitted and left in blank in CALLAWAY v. HEARN. 607 the declaration, the hundred and county are alleged, and yet there is no evidence as to any taking in either. The statutory provisions referred to, have no such meaning as the counsel supposes, and were never intended to aholish the common law distinction between local and transitory actions. By the Court: Prior to our act of Assembly on the sub- ject, the action of replevin was limited to a wrongful taking of goods and chattels and such property as this in this State, as at common law, and a wrongful detention merely was not sufficient to sustain it. Now, however, the action will lie for a wrongful detention as well as for a wrongful taking of personal property. But in either case, the fact must be alleged and proved, according as the plain- tiff relies upon the one or the other; and where there is no wrongful taking, but only a wrongful detention is the basis of the action, it is quite as necessary, in general, to prove a demand and refusal, in order to establish it, as it is to establish or prove a conversion of the goods in an ac- tion of trover. But in this case there is no evidence of either a wrongful taking, or a wrongful detention by the defendant ; and the motion for nonsuit must therefore be granted. JOHN N. CALLAWAY r. KENDAL B. HE A UN. The usual acknowledgment of the receipt or payment of tho consideration or purchase-money contained in the body of a deed, is prinw facir, but not conclusive evidence of the payment of it, arid parol evidence is ad- missible in this State to show that it has not been paid. If, however, the grantor in the deed, after the date, execution and delivery of it, gives the grantee his judgment note for a sum of money, it will create a presumption that the consideration-money for the deed was paid at or prior to the date of the note, us it would imply a settlement between the parties at that time, and that all claims and demands be- tween them of inferior grade and dignity were included in it, and were 608 SUPERIOR COURT. extinguished by the security of a higher nature. It raises, however, at hest, but a presumption, and as all presumptions of this character may be rebutted, it is not necessarily conclusive. An action of debt for such a claim will be barred in three years from the delivery of the deed, the time when the cause of action accrues, unless some subsequent acknowledgment of it, as a subsisting demand by the defendant, is proved to the satisfaction of the jury. Tins was an action of debt to recover the sum of $400, the consideration-money mentioned in a deed of bargain and sale for a tract of land, sold and conveyed by the plaintiff 1 , John N. Callavvay, to Kendal B. Hearn, the de- fendant. The pleas were nil debet, payment, set off, ac- cord and satisfaction, act of limitations, and further, that after the sale of the said land and delivery of the deed, the plaintiff made and delivered to the defendant his judg- ment note for $212, with lawful interest from the date of it, and that the same still remained wholly unpaid and un- satisfied. The deed, dated, executed and acknowledged on the 25th of September, 1852, for the land, was offered in evi- dence, the consideration of which was $400, and contained in the body of it the usual acknowledgment of the pay- ment of the consideration-money, but no receipt for it from the plaintiff to the defendant indorsed on the back of it. No witness saw the deed delivered, but it was proved on the part of tke plaintiff* that the defendant had said, subsequent to the delivery of it, that he had not paid the plaintiff' for the land, and that he never would, until he got his brother, William Callaway's, right to it. Also, that his sole and exclusive title to the premises sold was good and unquestionable, and that his brother, William Callaway, had no share or interest whatever in them. For the defendant it was proved that the plaintiff had stated, some six or seven years previous to the ty\n\, that he owed the defendant four or five hundred dollars; and that in reply to an inquiry why he had sold the land to the de- fendant, he said he owed him between lour and five hun- dred dollars, he expected. It was also proved that after CALLAWAY v. HEARN. 609 the sale of the land and the delivery of the deed and the possession of the premises to the defendant, the plaintiff had a settlement with him of all debts and accounts be- tween them, and of their mutual demands against each other, when the $400, the consideration-money to be paid for the land, was brought forward by the plaintiff, and when, upon a full settlement, including this demand, lie fell in debt to the defendant in the sum of $212, for which he in a few days afterwards, on the 12th of September, 1854, gave his judgment note to the defendant, and which was duly proved and given in evidence ; and that afterwards, on the 24th of March, 1855, he gave the defendant a re- ceipt for SI. 07 in full of all accounts against him. Upon this evidence it was insisted for the defendant, 1. That the usual acknowledgment or receipt of the payment of the consideration-money incorporated in the body of the deed, being under seal, estopped the plaintiff from de- nying that the purchase-money for the land had been paid, and that parol proof was not admissible for that pur- pose. Dixon, for the use of Berry, v. Su-iygett, 1 Harr. J- Johns, 252; Steel v. Adams, 1 Grce.nl. Rep. 1 ; Skillengcr v. Me Cam, 6 Greenl. Rep. 364 ; Emory v. Chase, 5 Grecnl. Rep. 232; Darenport v. Mason, 15 Mass. 85, 6 T. R. 62, 9 Heps. 52 ; Spike v. United Mates, 9 Cranch, 28, 1 Gimpb.' 392, 2 Ibid. 561 ; Outten and wife v. Knoides, 4 Harr. 538 ; 1m- keip v. Shields, 4 Harr. 345, 2 Taunt. 141. 2. That the ex- ecution and delivery of the judgment note for $212, by the plaintiff to the defendant, after the execution of the deed and delivery of the possession of the land by the former to the latter, extinguished any indebtedness on the part of the defendant to the plaintiff, if any before that had existed on account of the purchase of the land, or for any cause whatever. Because if a party takes a higher security, having at the same time a lower security tor a debt, the law presumes the lower is included in the security of the higher nature, and that it was extinguished by it; and this principle of law proceeded on the presumption of a settle- ment, as had been proved in this ease, between the parties 610 SUPERIOR COURT. at the time the higher security was taken. 1 Ch. PL 100 ; Cro. Car. 415; 2 Bac. Abr. Debt. (G.) p. 290; 3 Bac. Abr. Exting. (D.) p. 106; 2 Johns, 213; 4 Pick. 442; 10 Pick. 522. 3. That the claim of the plain tift' was barred by the act of limitations, as the suit was not commenced until the 9th day of October, 1855, although the deed was executed, acknowledged and delivered on the 25th of September, 1852, at which time the cause of action accrued. The Court, Gilpin, Ch. /., charged the jury : The plaintiff by his deed, bearing date the 25th of September, 1852, con- veyed to the defendant certain lands for the consideration of $400, which sum it is alleged has never been paid, and for the recovery of which this suit has been instituted. In the body of the deed is contained the usual acknow- ledgment of the receipt or payment of the consideration- money. And it is insisted on the part of the defendant that the plaintiff, according to the rules of law, is estopped from denying the payment of the purchase-money. Such was formerly the doctrine held in England, and the same doctrine is held in some of the States of this country. But such has never, that we are aware of, been recognized as the law of this State. A receipt or acknowledgment, contained in the body of the deed, is undoubtedly prima facie evidence of payment of the consideration-money, but it is not conclusive. The fact of firtiml payment may be inquired into, and may be controverted, and it is competent for the plaintiff to show, by parol evidence, the non-payment of the consideration- money mentioned in the deed. The acknowledgment, however, is considered sufficient evidence of the payment, until rebutted by showing the contrary. The first question therefore to be considered and de- cided by you is, whether it satisfactorily appears, from the evidence before you, that the consideration-money was not paid at the time of the execution and delivery of the deed. If it was so paid, then there is an end of this case. But if it was not so paid, then it becomes neces- CALLAWAY v. HEARN. 611 Bary for you to inquire and determine whether it has been paid since the delivery of the deed, in the month of Sep- tember, 1852, or whether the plaintiff was at that time, or at any time since the delivery of the deed, and prior to the bringing of this suit, indebted to the defendant, to an amount equal to the consideration-money of the deed of $400, with its interest. These questions you will decide in view of all the evi- dence which has been submitted for your consideration. It has been shown by the evidence that on the 12th of September, 1854, the plaintiff gave to the defendant a judgment note for $212, and that on the 24th of March, 1855, he gave the defendant a receipt for $1.07, in full of all accounts. And it is insisted by the defendant that the giving of the judgment note creates a legal presumption that the consideration for the land has been paid at or prior to its date. This is certainly true as a general pro- position, and if this fact stood alone, without other circum- stances, it would be entitled to great weight; as it would imply a settlement between the parties at that time, and that all claims and demands between them of inferior grade and dignity were included in it, and were extin- guished by the security of a higher nature. It raises, how- ever, at best, but a presumption, and as all presumptions of this character may be rebutted, it is not necessarily con- clusive in this case. We say it is not necessarily conclusive, for this will very properly depend upon the view which the jury may take of other portions of the evidence, es- pecially that which has reference to the consideration for which the judgment note was given. It seems that the plaintiff had previously become indebted to the defendant in various sums, namely: a note for 15!>.85, a bill for 25, and another for 8.75, which sums, according to the evi- dence, were included in the judgment note of the 12th of September, 1854, for 212. It was contended on behalf of the plaintiff, that the judg- ment note was given for securing the sumsjust mentioned, together with, perhaps, some other small demands, without 612 SUPERIOR COURT. any reference whatever to the consideration-money men- tioned in the deed. If this be so, that is, if the sum of $400, with its interest, remains unpaid, then the plaintiff' will be entitled to recover whatever balance may be found to be due, after deducting the sum of $212, with the interest which may have accrued on that sum. But all these facts must be considered in connection with the testimony of William S. Ilearn, and the receipt of the 24th of March, 1855, for $1.07. This witness stated in substance, that a few days before the judgment note was given, the parties made "a full settlement;" that they "cast up their accounts" on a slate; that the plaintift' "brought forward his claim of $400," being the amount of consideration-money men- tioned in the deed, and that after deducting this sum from the claims of the defendant, there remained a balance of $212 due to the latter; and that for this sum the judgment note of the 12th of September, 1854, was given. He re- membered some of the items constituting the defendant's claim, such as the note for $159.85, and the bill for $25, and $8.75, but could not recollect other items which he said were taken into account in the settlement. His op- portunities of knowing what occurred and the accuracy of his recollection and statement, are matters proper for your consideration. But, gentlemen, if you believe the testimony of the wit- ness William S. Ilearn (and his credit for veracity has not been attempted to be impeached), there was a full settle- ment between the parties, in which the sum of $400, now in controversy, was taken into consideration, and in which a balance of $212 was found due to the defendant. If this be true, the plaintiff is not entitled to recover. On the other hand, if you should be of opinion from the evidence that the sum of $400 was not taken into con- sideration, and that the defendant is actually and justly indebted to the plaintiff, then you should find for the plaintiff for such balance as may remain after deducting the sum of 212, with its interest, unless you shall be satisfied that the receipt for $1.07 was a final settlement. HUTCHINSON v. HUTCHINSON'S EX'R. 613 The weight to which this receipt is entitled, is a matter for your decision. To this demand of the plaintiff the defendant has also pleaded the statute of limitations, as to which we have to say to you, that if the suit in this case was not commenced within Jhree years after the accruing of the cause of ac- tion, which was at the time of the execution and delivery of the deed to the defendant, the plaintiff cannot recover, unless some subsequent acknowledgment of the debt, or of some part of it, by the defendant, as a subsisting de- mand against him at the time, made within the three years next preceding the institution of the suit, had been proved to the satisfaction of the jury; in which event, such an ac- knowledgment made within that time would take the case out of the operation of the statute, and entitle the plain- tiff to recover to the extent of such admission. But if no such acknowledgment had been proved, then so far as the plea of the statute of limitations was concerned, it was an absolute bar to the action, if the suit was not com- menced within three years after the cause of action ac- crued ; and if such was the case, then your verdict should be fdr the defendant. Verdict for plaintiff for $293.75. Moore $ W. Saulsbury, for the plaintiff. C. 8. Layton and E. D. Cullen, for the defendant. WILLIAM HUTCHINSON, JR., ?\ HUTCHINSON'S EXKCUTOR. In a case at issue and ready for trial, the Court will not permit tin- plain- tiff and hi? attorney to proceed to trial and judgment, if an injunction in the usual form be issued by the Chancellor during the term, enjoin- ing any further prosecution of the suit until. &c., although the object 614 SUPERIOR COURT. of the plaintiff is merely to save delay and expense, and to proceed no further than to judgment in the case. SCIRE FACIAS on a judgment in this Court, at issue and ruled for trial this term. A writ of injunction from the Chancellor, however, had been issued during the term in the usual form, enjoining the plaintiff and his attorney from further prosecuting the aforesaid scire facias, &c., until, &c. T. F. Bayard, for the plaintiff, now applied to the Court to proceed to the trial of the case to verdict and judgment, notwithstanding the injunction, merely to save delay in the trial and recovery of judgment, in case the Chancellor, on the hearing of the case before him, should conclude to dissolve the injunction, as he had no doubt he would. lie did not consider the injunction could prevent him from proceeding to trial and judgment in this Court, at this stage of the case, although it would stay any proceeding on the judgment when recovered. The rule in Chancery on this subject is, that an injunction restrains the com- mencement of an action, if none is begun when it issues ; but if the action is actually commenced when it issues, the plaintiff may proceed to trial and judgment, and it only restrains execution on the judgment, or any other proceed- ing upon it afterwards. Franco v. Franco, 2 Cox Chan. Cases, 420; 3 Danl Chan. U'03. D. M. Bates, for the defendant: The rule in equity is as stated on the other side, in cases of common injunction, but it is not the rule in cases of special injunction. 3 Danl. Chan. 1811, 1818, 1833, 1844. The injunction in this case is a special injunction, as every injunction is here; for w r e have in our practice no such thing as a common injunction, as the same is known in the English Chanoery. And the distinction arises from the construction and effect which has been given to the clause which is always inserted at the end of the writ of common injunction which issues out IIUTCHINSON v. HUTCHINSON'S EX'R. G15 of the Court of Chancery there. " But nevertheless, the said defendant is at liberty to call for a plea and to proceed to trial thereon, and for want of a plea, to enter up judg- ment; but execution is hereby stayed." This is the con- clusion of every common injunction as it prevails in that country. But we have no such writ here, and the injunc- tion in this case contains no such saving no such words. And it is because of these words of the writ, that it has been held and settled there, that if the declaration has been filed when the writ issues, the plaintiff at law may call on the defendant to plead to it, and on the plea being entered may proceed to trial, or for want of a plea, may enter judgment against him. But if the declaration in the cause is not filed when the writ issues, then no declaration can be tiled, but it restrains all proceedings in the case from the date of its issue. But, as I have before remarked, this rule has no reference to a special injunction, or to any in- junction such as this ; for what will be considered a breach of a special injunction, must depend entirely upon the form of the injunction and the nature of the act to be pro- hibited. 3 Danl. Chan. 1903, 1904, 1907. By the Court: The injunction in this case enjoins the plaintiff in this suit " absolutely to desist from further pro- secuting the aforesaid scire facias," as well as from attempt- ing in any manner whatever, to enforce the payment of the judgment on which it issues. This is a special injunc- tion both in form and effect, and conforms, as is usual in our practice, to the prayer of the bill. It positively and specially prohibits, among other things, any further prose- cution of the action in this case, until further order by the Chancellor to the contrary; and it would undoubtedly be a breach of these terms of the injunction, on the part of the plaintiff and his attorney, if this Court were to permit them to proceed to trial and judgment now. Besides, if the injunction were less explicit on this point, it has always been the practice of this Court when informed that an in- 616 SUPERIOK COURT. junction has been issued by the Chancellor in any case pending here, to stay all proceedings in it, until the in- junction is disposed of in his Court; and we therefore direct all further proceedings in this case to be stayed. INDEX. ABANDONMENT. See EJECTMENT, 1, 4; DOWER, 1. ABATEMENT. See PLEADINGS, 1 ; APPEAL, 5. ABUTTALS. See CASE AND TRESPASS, 4. ACCEPTANCE. See ESTATES OF INTESTATES. ACKNOWLEDGMENT. See LIMITATIONS OF ACTIONS, 2, 3, 4, 5; DEED, 6. ADMINISTRATORS. See EXECUTORS AND ADMINISTRATORS. ADMISSIONS. See DEED, 1, 2; CHANCERY, 1. ADULTERY. See DOWER. ADVERSE POSSESSION. See POSSESSION, 3, 4, . AGENT. Sec PRINCIPAL AND AGENT. AGREEMENT. To till a crop on shares not a demise of the land. See DEMISE, 4. CONTRACTS. AMENDMENT. 1. A motion for leave to amend the declaration is too late after the Court has announced its opinion on a motion for a nonsuit. Morris v. Burton, 213. 2. A narr in the detinuit amended to a narr in the detinet on motion after the jury was sworn. Jefferson \. Chase, 219. 3. The declaration may be amended after the plaintiff has opened his case to the jury, on condition of paying the costs of the term, if the amendment is such as to require a continuance on the part of the defendant. But if it is not, no terms will be imposed. Doe. d. Short et al. v. Prettyman et al., 334. 4. Leave to amend will only be granted on payment of the costs of the term, if the amendment is such as to require a continuance of the case on the other side. King v. Phillips, 349. 5. An appeal from a justice of the peace will not be dismissed be- enusc his certificate to the transcript states merely that " the foregoing is a true transcript in the above case copied from my docket ;'' but the same may be amended. Waters v. Kirby et al., 304. 40 618 INDEX. AMENDMENT Continued. 6. After a general leave gramed to amend the pleadings without qualification, the Court will not, on motion, strike out a plea of the statute of limitations entered under the leave. But if objected to at the time of the application to amend, after issue joined, the Court will not permit it to ba entered. Burton v. Rodney and Wife, 442. 7. Leave to amend a replication will not be granted after the plain- tiff has closed his testimony, and the defendant has proceeded to examine witnesses in support of his plea, to enable the plaintiff to take advantage of such proof, by the amendment asked for. Woolman tj- Sullivan v. Zebley $ Morris, 459. APPEAL. 1. An appeal from the order of the Register directing an issue of devisavit vel non to be tried before a jury at the bar of the Court, is a supersedeas of all further proceedings thereon, until the appeal is determined. 2. On appeal from the order of the Register awarding a second issue of devisavit vel non, after trial and the verdict of a jury against the validity of the will on a former issue ordered by him, the Court will not enter a final decree against the will, or such final decree as the Register should have made under the circumstances ; but will reverse the order and remand the case to be further proceeded in by him. Davis v. Rogers, 183. 3. An appeal from a justice of the peace, referred out of Court under a rule of reference, will not release the surety in the appeal from his liability on the recognizance. McColleys ute of Warren, v. Hickman, 234. 4. An appeal from a justice of the peace, where the cause of action survives, will not abate by the death of the respondent after the appeal is taken and the transcript is filed in Court, but before citation is served upon him ; and, urtder such circumstances, a scire facias will lie to make his executor a party to the appeal in Court. Trustees, the terms of tlif bond, but is consistent with it. Stephen* v. Green Hill Cemetery Company } 27. 2. A bond with warrant of attorney to confess judgment, given to one creditor alone, to secure a debt due to him, and also debts due to 620 INDEX. BONDS Continued. other creditors not named in it, if given with their knowledge and consent, is valid and binding; and, when collected by him, the credi- tors not named in the bond may sue for and recover their respective claims from him. Nicholson v. Hazel, 176. CAPIAS AD SATISFACIENDUM. No writ of capias ad satisfaeiendum can issue on a joint judgment against several defendants, two of whom were free white citizens of the State, notwithstanding the other defendant in the judgment was a non-resident, and the other two were not arrested under the writ, and took no exceptions to it. Fromberger v. Karsner, 290. CASE AND TRESPASS. 1. The provisions of the Revised Code, p. 379, abolishing the distinc- tion between actions on the case and actions of trespass at common law, was simply designed to prevent a party who had misconceived his form of action in either instance from being defeated in maintain- ing it by objections to the form of action merely, either on a motion for a nonsuit or by the direction of the Court to the jury, or in any other way, based on the technical distinctions existing between them at common law ; but was not intended to abolish all distinctions between the actions in their results and in all the legal incidents and consequences attaching to them respectively at common law. 2. Where, therefore, the action is on the case, when at common law, and but for the provision of the statute, it should be in trespass, as where it is for a direct and immediate injury, or trespass to land in the possession of the plaintiff, although it may bo maintained, and no objection can be taken to it merely on account of the form of action, it must still be regarded in effect and in the application of the rules and principles of law which must control and govern it in all other respects, as an action of trespass for the same injury at common law. 3. The action on the case under the statute being therefore in effoct an action of trespass for such an injury, it is incumbent upon the plaintiff to prove that he was in the actual possession of the land at the time when the injurv or trespass was committed, in order to entitle him to recover tor the injury in such action. But where the injurv or trespass complained of is the erection and maintenance of a fence, and it appears from the evidence that the defendant came into the possession of the place in question after the erection of the fence, peaceably by sale and conveyance from the party who had previously disseized the plaintiff and erected it, neither case nor trespass will lie against him for maintaining and continuing it; but the plaintiff will be put to his action of ejectment to recover the seizin ami possession of the premises, and afterwards to his action to recover for the injury committed by the defendant in the mean time. Cann v. Warren, IKH. IH't. 4. No description of the close necessary in an action on the case INDEX. 621 CASE AND TRESPASS Continued. under the statute for trespass, and if alleged in the narr it need not be proved. ' But it is otherwise in an action of trespass quart clausem fregit. Smethhurst v. Journey, 1 96. 6. The statutory provision abolishing the common law distinction between an action of trespass and an action on the case, Revised Code, 379, was never intended to confound all the rules of pleading and evidence heretofore respectively applicable to these two actions, and to blend and convert them substantially into one and the same action. It was only designed to abolish the leading and characteristic dis- tinction between them at common law, depending on the question whether the injury complained of was immediate or consequential only. Bailey v. Wiggins, 299. 6. If a person impounds swine damagc-feasant, and kill them while so in his possession, or injure them, so that they afterwards die when set at large, it will be such a destruction as will constitute a conver- sion in law of the property, and trover will lie for it. But if the same is done while the swine are damage-feasant, or running at large, and not so in his possession, trespass, and not trover, is the proper remedy. 7. The provision of the statute in regard to case and trespass has not abolished the distinction between the two actions in such a case. Cannon v. Horsey, 440. CAVEAT. See VACANT LAND. CERTIORARI. 1. Section 2, chapter 52, of the Revised Code, p. 144, does not apply to non-resident free negroes, or mulattoes, who were residing in the State at the time when the Code went into effect; and, if such come into the State, they are not liable to the penalty proscribed in that section. 2. In a proceeding before a justice of the peace, under that section, it should affirmatively appear, both in the information and the adju- dication, that the defendant does not come within any of the exemp- tions or exceptions contained in the section. Socum ats. The State, 204. 3. A judgment entered upon a note for debt and interest included up to the time of its entry, by virtue of a warrant to a justice of the peace, authorizing judgment " to be entered'' for the above-mentioned sum, together with interest and costs of suit, is good, and will not bo reversed on rerti<>rari. Connoway v. Sjtirer, -74. 4. A writ of rtrtitirnri is barred after five years, and will not lie where there is no judgment : and upon these grounds will, on motion, be dismissed. Vaughn v. Marx/tall, P>48. 5. In a trial before a justice of the peace, if the plaintiff fails to attend, after the defendant has appi-an-d and pleaded a set-off, the justice should enter u judgment of nonsuit against the plaintiff, and 622 INDEX. CERTIORARI Continued. not a judgment by default in favor of the defendant, on his plea of set-off. Adkins v. Jester, 352. 6. A judgment entered without stating for whom it was rendered, aided and sustained by reference to the report of the referees on which it was rendered, and to the usual docket entry of the names of the parties on the margin of the record. Vangeazel v. HUlyard, 515. 7. When a summons is issued by a justice of the peace, returnable forthwith, on the representation of the plaintiff that he is in danger of losing the benefit of the process by delay, the representation should be supported by the oath or affirmation of the party ; but if the defen- dant appears and goes into trial without excepting to it, the objection is waived, and the defect cured. Bishop v. Carpenter, 626. CHANCERY. 1. The parties to a partition in Chancery are estopped from denying the title of another party to it, as the same was admitted by them in the proceedings, and was adjudged by the Chancellor in decreeing the partition ; which is final and conclusive upon the parties to the partition in all other courts, unless appealed from and reversed, even though they may differ with the Chancellor in the construction of the devise on which the partition was decreed and the title depended. And the decree is binding and conclusive, not only as to the rights which the parties had in the premises at the time of the partition, but also as to the rights which they had subsequently acquired from other heirs of the premises who were not parties to the partition, and were not bound by the admissions or the decree establishing it. The admissions and the decree will bind the rights of a married woman who was with her husband a party to the proceedings, as well as others ; but if the husband subsequently acquires, by purchase in his own right, shares in the premises of other heirs who were not parties to the proceeding, he will not be estopped, as to the shares so ac- quired, from denying the title admitted and decreed in the partition to which he was a party with his wife in her right. Doe d. Short et al. v. Prettyman et nl., 334. 2. In a case at issue and ready for trial the Court will not permit the plaintiff and his attorney to proceed to trial and judgment, if tin injunction in the usual form be issued by the Chancellor during the term, enjoining any further prosecution of the suit until, fcc., although the object of the plaintiff is merely to save delay and expense', and to proceed no further than to judgment in the case. Jlutchinsun v. Hutchinson's Executor, (313. CI VI LITER MORTUUS. The maxim of ciriliter mririutis, on a conviction for felony, doe? not apply in this St;ite. Even in England, the disability to maintain a ci\il action afVr a conviction for treason or felony, attaches only to INDEX. 623 CIVILTTER MORTUUS Continued, . a party plaintiff, and must either be pleaded in abatement or specially in bar to the action ; but any subject of the king there, convicted or attainted of treason or felony, may be sued as a party defendant in a civil action. Cannon v. Windsor, 143. CLOSE. See CASK AND TRESPASS, 4. COMMON CARRIERS. See RAILROAD COMPANIES. CONSIDERATION. 1. An agreement to board and lodge another implies an engage- ment to pay the usual and reasonable attentions to the health and comfort of the boarder to be expected under the circumstances; and such reasonable and customary attentions will furnish no ground for a distinct or additional charge against the boarder. 2. There is nothing, however, in this relation or agreement to entitle the boarder to expect or demand of the family boarding him the usual and often arduous attentions and services of a nurse, in a case of extreme or protracted illness, without paying additionally for such services ; but if such services are rendered by the wife or other member of the family through a series of years to an infirm and aged boarder, with the hope and expectation merely of being remembered in his will and rewarded for it, by devise or bequest, after his death, it will furnish no ground of action for such services against his executors. Kennard v. Hobson's Executors, 36. 3. If a woman enter into an express contract to cohabit and live in a state of fornication with a man, the immorality of the consideration will vitiate the contract, and no action will lie upon it; and in an action for work and labor as a servant in his family, if it be proved that she lived and cohabited with him as his mistress and concubine, the law will imply no contract or promise to pay for her services. Walraren v. Frank's Administrator, 355. See ASSUMPSIT, 1, 2. CONTRACTS. 1. A general warrant of attorney to confess judgment on a bond cannot be varied or restricted by a parol agreement not to enter it in this State, and no action will lie on such agreement. Logan v. The Farmer*' Bank, 35. 2. Although a son cannot recover in an action of assumpsit against the executor of his father, on the special counts upon iin express con- tract between them that if the son would remain with his father after lie attained his majority, and work for him as long as he lived, the latter would leave him in his will one-half of his land when he died, unless the contract is in writing, yet he may recover <>n the common counts for the value of the work and labor performed by him under the agreement, provided an actual or cxpre.-s promise is proved on the part of the father to pay or eoinpen.-atc him for his service. Hut on the common counts for work and labor lie can onlv recover the 624 INDEX. CON T R ACTS Continued. actual value of his services as proved, and not the value of tho land which the father agreed but failed to devise to him, the former and not the latter being the true measure of the damages in such recovery. Watson v. Watson, 209. 3. When a contract is entered into for an article not then in exist- ence, but which is afterwards to be made or constructed, it does not become the property of the person for whom it is to be made until it is completed and delivered to him, or is at least ready to be delivered to him, unless it is otherwise specially provided in the contract. For, notwithstanding this is the. general principle of the common law in such cases, it is competent for the parties by express agreement to contract that the article shall become the property of the purchaser at any particular stage of the work upon it ; but, in the absence of any such stipulation between them in the contract, the general prin- ciple of the common law, as before stated, must prevail in regard to the ownership of it. 4. A contract to build the hull of a sloop at a stipulated price per ton, to be paid in three equal instalments, at specific stages of the work as it progressed, the builder to find all the materials and do all the work, and deliver her by a certain day to the purchaser in Phila- delphia, subject to the inspection of two persons, if required by him, does not appropriate or vest the property in the vessel during the progress of the work in the purchaser, although he has paid to the builder the two first instalments at the specific stages of the work agreed upon when about two-thirds built; but the ownership of the vessel remains in the builder, and may be seized in execution and sold in that condition as his property at the suit of his judgment creditors. 5- If abandoned by the builder after the levy of the executions upon it, and it is* finished by tho party for whom it was to be built, at his own expense, the measure of damages, in an action by the pur- chasers at the sale of it upon the executions, to recover the value of it from him, will be the value of the vessel at the time of the levy of tin- executions upon it. Green v. Ha!!, 50(5 ; Hall v. Green, 54*5. f>. Articles of agreement under seal between the stepfather and mother of a minor and a coachsmith, by which the former placed the minor with the latter to learn the art, trade, and mystery of coach- smithing, after the manner of an apprentice, and covenanted that he should stay with the latter until he arrived at the age of twenty-one years, and serve him faithfully after the manner of an apprentice, and not absent himself from his employ without his consent, the latter covenanting on his part to use his best endeavors to teach, or cause the minor to be taught, the said art and trade of coachsmithing, and to pay the parents whilst the minor should remain with him thirty dollars per annum, quarterly, for his clothing, ami to allow them for his boarding, washing, and mending, the :-um of $2.1!") weekly, during INDEX. 625 CONTRACTS Continued. said term; the first year's boarding, amounting to $117, to remain in the hands of the latter until the end of the term ; when, if he served out his time faithfully, as a good and faithful apprentice ought to do, the same was to be paid to the parents or the survivor of them, if then living, but if not, then to the son himself; are not void as con- travening either the letter or policy of the statute in regard to in- dentures of apprenticeship. Such an agreement is but a private con- tract, inter partes, to be performed in the State. See DEMISE, 4. CORPORATIONS. See RAILROAD COMPANIES; FOREIGN CORPORA- TION. DAMAGE-PEASANT. See TROVER, 1. DEATH, PRESUMPTION OF. If a person leave or disappear, the presumption in favor of life con- tinues until a period of seven years has elapsed without any tidings or intelligence of him ; but after that the rule is reversed, and the law presumes his death, unless the contrary be shown. Crawford v. Elliott, 465. DEED. 1. If a deed admitted in evidence recites another deed as duly recorded, it will not be necessary to produce the original, nor the record of the recited deed, nor to account for the absence of it, to make the recital of it evidence, with whatever weight its connection with the other proof in the case may give it. Bartholomew v. Ed- wards, 17. 2. A recital in a deed that the grantor had taken, in the conveyance of the land to him, only fourteen acres, and no more, of the premises in dispute, is evidence in itself of the fact admitted in the recital, and, as such, concludes the parties to the deed, and all deriving title under it, from claiming any more of the land. Doe d. Jefferson v. Ho well, 178. 3. The existence, identity, and loss of a deed, are questions ad- dressed to the Court, and are first to be decided by it, and afterwards the evidence of its contents goes to the jury ; and if the evidence is irregularly introduced on these points, and is left in terms of too general import in the charge by the Court to the jury, the Court will, on motion, set aside the verdict and grant a new trial. Bartholomew v. Edward's, 247. 4. The validity of a deed, acknowledged and recorded, may bo impeached in a court of law, by proving that the grantor had not sufficient apprehension and understanding to make a deed. fj. The only consideration stated in a deed being that the grantee should comfortably clothe, board, and lodge the grantor during his life, held to be a sufficient consideration to sustain the deed, the con- 626 INDEX. DEED Continued. dition having been performed. Doe d. Short et al. v. Prettyman et al., 334, 335. 6. The usual acknowledgment of the receipt or payment of the consideration or purchase-money contained in the body of a deed is prima facie but not conclusive evidence of the payment of it, and parol evidence is admissible in this State to show that it has not been paid. 7. If, however, the grantor in the deed after the date, execution and delivery of it, gives the grantee his judgment note for a sum of money, it will create a presumption that the consideration-money for the deed was paid at or prior to the date of the note, as it would imply a settlement between the parties at that time; and that all claims and demands between them of inferior grade and dignity were in- cluded in it, and were extinguished by the security of a higher nature. It raises, however, at best but a presumption ; and, as all presump- tions of this character may be rebutted, it is not necessarily conclusive. 8. An action of debt for such a claim will be barred in three years from the delivery of the deed, the time when the cause of action accrues, unless some subsequent acknowledgment of it as a subsisting demand by the defendant is proved to the satisfaction of the jury. Callaway v. Hearn, 607, 608. DELIVERY. See PRINCIPAL AND AGENT. TRESPASS. CONTRACTS, 3, 4, 5. DEMAND AND REFUSAL. See REPLEVIN. DEMISE. 1. If, after a tenant has given three months' notice in writing of his intention to deliver up the demised premises to his landlord at the end of the year, another person in the meanwhile enters into posses- sion of them by the permission of his wife, the husband being present and having knowledge of the entry, though he refused his permission, he will be presumed to have permitted it and assented to it; and, if the sub-tenant holds over, he will be liable for double rent. Morris v. Burton, 213. 2. In a demise of lands or tenements, whether the renting be for a year or a less time, or at will, the landlord cannot determine it without giving the tenant three months' notice in writing to leave. 3. If the unlawful eviction of the tenant from the demised premises by the landlord be attended on his part by circumstances of aggra- vation, and the trespass be gross, the jury may award the plaintiff exemplary damages. Bonsall v. McKay, 520. 4. A verbal agreement between tho owner of promises and another that the latter should till and cultivate a crop of wheat, corn, and fodder on the premises, upon the following terms and conditions : tho owner to furnish all the necessary teams, horsos, mulos, and oxen, and the food therefor, all tho seed-wheat and corn for sowing and INDEX. 627 DEMISE Continued. planting the crop, and all carts, wagons, ploughs, harrows, and agri- cultural implements for the proper cultivation and securing the same, and a certain quantity of guano for manuring the crop, the other to do all the labor, and well and faithfully cultivate the crop and save it in due season, the owner to have two-thirds of the wheat and corn and one-half of the fodder, and the latter to have all the rest and residue of the crop, does not constitute a demise of the premises in contemplation of law, or the legal relation of landlord and tenant between them, but they are owners or tenants in common of the crop to be raised on shares ; and the interest or property of the owner of the premises in it is liable to levy and sale on a writ of fieri Judas issued against him. Carrey .v. Davis, 608. DEMURRER. 1. In an action on the recognizance against a surety in an appeal from a justice of the peace, it is sufficient to aver in the declaration that the suit below being for debt, was for a cause of action within the jurisdiction of the justice of the peace. If the appeal be referred out of Court under a rule of reference, it will not release the surety from his liability on the recognizance ; and it is not necessary to aver in the narr that he consented to the reference. Neither is it necessary to allege in the narr that the justice of the peace had jurisdiction of the person of the defendant in the action before him. McColleys use of Warren v. Hickman, 234. 2. In an action upon a judgment recovered in another State it is final and conclusive, not only as to the persons who were parties on the record to it there, but also as to all persons who should have been parties to it there. 3. A bond given by two members of a firm for debt and judgment confessed upon it by them will discharge the original joint liability of a third partner for it, because it changes and extinguishes Un- original nature of the debt, and thereby becomes a new debt of a higher grade of the partners giving the bond and confessing the judg- ment ; and if the other partner afterwards pays the amount of the judgment to the plaintiffs, and takes an indorsement of it to hi< own use and benefit, it cannot be pleaded as a payment or defence to an action on the judgment for the use of such partner against the defen- dants. 4. A person for whose use a judgment or suit is indorsed is no party to it in a legal sense, and no plea addressed to his right merely to maintain the action, is good. />. The payment of a judgment by a person not a party to it is not a satisfaction or extinguishment of the judgment, unless it was so intended to be by the person paying it ; and, if indorsed for his" use, it cannot be pleaded as a payment by the defendant in an action upon the judgment against him. Sin/rftim ,{ Rr?<{ \. Caruinn, 431. tJ. In a suit bv the State for the u>e of an heir-at-law on an ad- 628 INDEX. DEM U RRER Continued. ministration bond for breaches of the condition in not filing an inven- tory of the goods and chattels in six months, and not rendering his account in one year after his appointment, it is no defence to the action to plead that during the pendency of it the administrator has been duly removed from office, and an administrator de bonis non has been appointed. But without proof of special damage by reason of the breaches assigned, the plaintiff can only recover nominal damages. State use of Deputy v. Rloxom $ Jones, 446. 7. In declaring upon a general covenant or clause in a written instrument, with a qualification or exception occurring in a subse- quent and distinct clause or proviso of the covenant or instrument, it is not necessary for the plaintilf either to state or negative the qualification or exception in the declaration. New Cattle Common v. Stevenson, 451. DEPOSITIONS. 1. When the return to a commission to take testimony states that the depositions were taken before the commissioner at his office, with the usual jurat, "sworn and subscribed to before" him, the presump- tion is that they were taken by him, and are admissible as evidence. Bailey v. Wiggins, 300. 2. Depositions taken on a commission out of the State may be read in evidence, notwithstanding the deponent is present in court and ready to testify as a witness at the trial of the case. Flinn v. Phila- delphia, Wilmington, and Baltimore Railroad Company, 469. DEVISE. See WILLS, CONSTRUCTION OF. DILIGENCE. See EXECUTION, 1, 2, 3. RAILROAD COMPANIES, 8. DIVORCE. Imbecility of mind is not a sufficient ground of divorce, unless it amounts to idiocy or insanity. Nor will intoxication at the time of the marriage, accompanied with circumstances of fraud, combination, or circumvention on the part of the father and friends of the wife, to induce the petitioner to marry his daughter, give the Court jurisdic- tion to decree a divorce, unless the petitioner was insane, within the meaning of the act. Kizey v. Elzey, 308. DOGS. A dog that kills, wounds, or worries sheep, may be killed by any person with impunity. Milman v. Skockley, 444. DOWER. 1. A wife lived with an adulterer in a state of separation from her husband until his death, but he was profligate and intemperate, and frequently inflicted personal violence upon her, and finally abandoned her several years before his death and lived in adultery with another woman. Held that .-he did not thereby forfeit her dower. INDEX. 629 DO W E R Continued. 2. A demandant in dower out of lands in the bands of a purchaser is only entitled to the assignment of a third, according to the value of the land at the time of the purchase, and not according to the en- hanced value produced by improvements made at the expense of the purchaser upon them subsequent to the purchase. Rawlina v. Buttell and Wife, 224. DROVERS. A drover has a right to drive his herds over the public highways to market; and if, in so doing, the cattle of another person are run- ning at large upon the public road, which they have no right to do, and become accidentally mixed with the drove, and are drivea off with it without his knowledge, he is not liable in an action of trespass for taking and carrying them away. Young v. Vaughan, 331. See RAILROAD COMPANIES, 5. EJECTMENT. 1. If a party, after suffering judgment by default in an action of ejectment, relinquishes or abandons the possession of the premises, no length of possession prior to it will avail him in a second action of ejectment against him for the same premises, although the plaintiff did not enter into possession on his abandonment of it. Doe d. Bright v. Stevens, 31. 2. An action of ejectment cannot be maintained on possession alone short of twenty years against a mere trespasser, who enters without any color of title and ousts tiie party in possession. Doe d. Jefferson \. Howeli, 178. 3. The effect of a recovery in an action of ejectment is not conclu- sive as to title; but it is evidence of the right of possession in the party recovering, at the time of the recovery. 4. A judgment by default in a former action of ejectment between the same parties, legally establishes the right of the plaint' ff to the possession of the premises in a second action of ejectment between them for the same premises; but unless it is followed by an entry into possession, either by a writ of possession, or without writ, but with the consent, or by the surrender, or abandonment of the defen- dant, such judgment can have no effect on the defendant's possession, or upon the question of title, founded, upon his part, on an actual and uninterrupted adverse possession of twenty years' continuance. Doe d. Br'ujkt v. Stevens, 240. See POSSKSSION, 8. CIIANCKRY, 1. ELECTIONS. Although no certificate or other formal mode of making known to a person his election to the office of road commissioner, or other public office, may be prescribed or required by law, the result of tlie election, when a.-ccrtained and announced at the close of it, is final and conclusive on the officers of the election, and cannot afterwards 630 INDEX. EMBLEMENTS. be reconsidered or altered by them. State ex rel. Wright v. War- ren, 39. At common law every one who has an uncertain estate or interest in land, if his estate is determined by act of God before severance of the crop, is entitled to the whole as emblements, or it goes to his executor or administrator. If, therefore, the husband of a tenant for life is in possession and tills the land, and she dies before the crop is gathered, he takes the whole as emblements ; and it is not a case for apportionment under the statute, which only applies in cases of de- mise, as where the tenant for life has rented out the land, and his life estate determines during the tenancy. Spencer v. Lewis, 223. ERROR. See WRIT OF ERROR. ESTATES OF INTESTATES. Although the act concerning the real estates of intestates provides that on ihe appraisement and confirmation by the Orphans' Court of the real estate of intestates, the value of the lands, according to the said appraisement, shall be substituted in the place of said lands, there is no conversion of the realty into personalty until acceptance at the appraised value and assignment by the Court, or sale of the same by the order and confirmation of Court, by which alone the legal estate of the heirs in the real estate is divested and transferred, and converted into its equivalent in money, to be secured by the recognizance. State use of Day and Wife v. Hirons, 252. ESTOPPEL. See CHANCERY, 1. DKED, 2. EVIDENCE. 1. A recital in a deed that the grantor had taken, in the convey- ance of the land to him, only fourteen acres, and no more, of the premises in dispute, is evidence in itself of the fact admitted in the recital, and as such, concludes the parties to the deed, and all deriving title under it, from claiming any more of the land. Doe d. Jefferson v. Howell, 178. 2. The record' of a verdict and judgment recovered in an action of trespass 7. c. /. , under the ploa of not guilty alone, by the plaintiff against adisseizor, for a trespass committed by him, is not admissible in evidence in an action by the plaintiff against the alienee of thodis- seizor who comes into possession peaceably under him, for continuing and maintaining the trespass. Cann v. Warren, 189. 3. The existence, identity, and loss of a deed, are questions ad- dressed to the Court, and are first to be decided by it, ami afterwards the evidence of its contents goes to the jury; and if the evidence is irregularly introduced on these points, and is left in terms of too general import in the charge by the Court to the jurv, the Court will, on motion, set aside the verdict and grant a new trial. Bar- ttwlvmeiu v. Edwards, 247. 4. The record of a suit between the same parties is admissible in INDEX. 631 EVIDENCE Continued. evidence in a subsequent action between them, although it may not be final and conclusive; as where a new trial has been asked for, and the rule granted, and the question upon it is still pending. Cheat v. Jefferson, 257. 5. In an action of trespass for false imprisonment against a justice of the peace, or other judicial officer, evidence that it was without probable cause and from malicious motives, against the plaintiff, is irrelevant and inadmissible; because it is immaterial in such action, provided he did not exceed his jurisdiction. Bailey v. Wiggins, 299. 6. A receipt under seal is conclusive, and cannot be contradicted by parol evidence. State use of Messick's Administrator v. Mes- sick, 347. 7. Parol proof that a bond given to a creditor for two thousand dollars was accepted by him in lieu of all other claims against the company, is admissible and does not contradict, or vary, or add to the terms of the bond, but is consistent with it. Stephens v. Green Hill Cemetery Company, 27. See WITNESS. POSSESSION, 3,4. DEATH. BILL OF PARTICULARS. WILLS, PROBATE OF. PRINCIPAL AND AGENT. VACANT LAND. EXECUTION. 1. The sheriff is bound to levy an execution with due diligence and without any delay prejudicial to the interests of the plaintiff. What is a reasonable time for this purpose is a question of fact for the jury to decide, under the circumstances of the case and the direction of the Court. 2. He is also bound to levy on all the goods of the defendant in his bailiwick ; and the fact that the goods had all been levied on by vir- tue of prior executions, is no excuse for neglecting to levy it in proper time. Whether a subsequent levy on goods before taken in execution would be available, is a question which does not affect the duty of the sheriff in this respect. 3. The execution being issued and delivered to the sheriff, no fur- ther orders are necessary to fix his liability, or that of his sureties, if ho neglects to do his duty, and loss to the plaintiff is the consequence of such neglect. But, at the same time, though the writ is the man- date of the State to the sheriff, it is the process of the plaintiff, and subject to his control; and he may, by contrary orders, stay the exe- cution, and dispense with the use of diligence on the part of the sheriff; and, for this purpose, verbal orders are sufficient, and need not be in writing. 4. Peaches on the trees are not such goods and chattels as may be taken in execution <>n 11 fieri facias ; but, after they are gathered, this may be done. Whether from their perishable nature, and the neces- pitv of speedily sending them to market, and the notice and delnv necessarily preceding a sale by the sheriff, such a levy would avail 632 INDEX. EXECUTION Continued. the plaintiff in the execution anything, it will be for the jury to de- cide. State use of Roe v. Gemmill, 9. 6. On an execution against a, single partner it is the right and duty of the sheriff to seize in execution the whole of the partnership goods, and to sell the undivided share and interest of the partner in the goods, and if he deems it advisable, to prevent their being wasted or carried away, he has a right to take the goods into his actual custody and possession, and the other partner cannot maintain replevin for them. Davis v. White, 228. 6. An execution brnds the goods of the defendant from the time it comes to the hands of the sheriff, but a writ of foreign attachment only from the taking of them by the officer; an actual taking into his exclusive possession, however, is not necessary; the making of an in- ventory with a view to the appraisement of the goods under the latter writ will constitute a taking in law, and being then in the legal cus- tody and possession of a constable so inventorying them under a writ of foreign attachment, it will have preference over executions after- wards coming to the hands of the sheriff on the same day. Stockley v. Wadman, 350. See PARTNERS, 3. EXECUTORS AND ADMINISTRATORS. 1. An executor with or without compensation for his services as such provided for in the will, is not a competent witness to support the will. Davis et al. v. Rogers, 44. 2. A husband is not liable after the death of his wife for debts contracted by her before their marriage. Neither is he liable as her administrator for such debts, except to the extent of the choses in action due her at her death. Day and Wife v. Messick's Administra- tor, 328. 3. A balance due upon a note to an admioistrator, as administrator, given for goods, sold by him at public sale as the property of his in- testate, cannot be set off in an action, at the suit of the maker of the note, against the administrator for a sum due from his intestate to the maker of it. Cannon's Administrator v. Edwards, 427, 428. 4. In an action on an executor's bond, the party for whose use the suit was brought for a legacy, recovering judgment, was ordered to enter into bond to the executor to refund, to meet outstanding debts, &c., and execution stayed till the order should be complied with. Burton v. Rtxiney and Wife, 443. 5. The costs of the executor in defending the validity of the will allowed him out of the estate, although the will was set aside. Browne, Kxtcutor of Davit, v. Rogers, 458. 0. Ponding proceedings in review on an issue of devixavit vel non to set aside a will admitted to probate, the executor named in it wius re- moved and an administrator pendent e litewH* appointed, who filed his petition before the Chancellor and obtained an order on him to de- INDEX. 633 EXECUTORS AND ADMINISTRATORS Continued, liver all theunadministered effects of the deceased, &c., on which the executor proceeded to file his testamentary account before the Regis- ter, exhibiting a balance against him, which he paid over to the ad- ministrator pendente lite; the will under which he had been appointed executor was afterwards set aside under the issue, and a former will of the testator having been admitted to probate and letters testamen- tary granted thereon to another as executor, the latter filed exceptions to the account so passed by the removed executor and succeeded in surcharging it to a larger amount against him, whereupon he insti- tuted an action on the bond of the removed executor to recover the latter amount as unadministered money in the hands of the removed executor, payable to him as the succeeding executor. Held, that he was entitled as such, to recover it, notwithstanding the remedy re- sorted to in Chancery by the administrator pendente lite, and that the proceedings referred to, did not preclude it. Also, that an action on the bond may be maintained for such purpose by a remote as well as by an Immediate successor in the office, on the removal of the pre- ceding executor or administrator, where there has been an intervening administration on the est 7. A will made by a citizen of the State, in the State, contained the following provision: "If at any time my executor and trustee herein named shall find it necessary to relinquish this executorship and trust, and the management of the state herein intrusted to him, it is then my desire that the Orphans' Court of the City and County of Philadelphia shall name a suitable person as an executor and trusted in his place ; and I do hereby appoint the person so named to be in that event my executor and trustee." The executor and trustee named in the will renounced and refused the office ; upon which the Orphans' Court for the City and County of Philadelphia named another citizen of Philadelphia as a suitable person as an executor and trustee in his place, to whom letters testamentary were afterwards granted as the executor of the will by the Register for New Castle County. Held, that the grant of letters testamentary, thus made to him as executor of the will, was valid and legal, and that it was not necessary and proper that, instead of letters testamentary, letters of administration cum testamento annexo should have been issued to him by the Register. State, use of Davis' Executor, v. Rogers, 5b'9, 670. See DEMURRKR, 6. EXEMPLARY DAMAGES. See DEMISE, 3. FALSE IMPRISONMENT. See JUSTICE OF THE PEACE, 1. FOREIGN ATTACHMENT. 1. A foreign corporation is not liable to a foreign attachment under the statute in regard to such attachments. A corporation cannot put in special bail to the action, or be surrendered to bail when it appears, if its appearance could be compelled in this mode ; and the Legislature having made no provision by which this can be done, the remedy of 41 634 INDEX. FOREIGN ATTACHMENT Continued. the writ does not apply to a foreign corporation. Vogle v. New Granada Canal Company, 294. 2. A foreign attachment will lie against a non-resident, notwith- standing he was temporarily in the State at the time when it was issued. Burcalow v. Trump, 363. See EXECUTION, 6. FOREIGN CORPORATION. See FOREIGN ATTACHMENT, 1. FRAUD. 1. It is no defence to an action between the original parties on a promissory note given on the sale of goods, that the goods turned out to be of no value, without proof of an express and fraudulent war- ranty of them, or fraudulent representations as to their value by the plaintiff in the sale of them to the defendant. O'Neal T. Bacon, 215. 2. Neither imbecility of mind, nor intoxication at the time of the marriage, accompanied with circumstances of fraud, combination, or circumvention on the part of the friends of the wife to induce the husband to marry her, will give the Court jurisdiction to divorce the parties. Elzey v. Elzey, 308. GRATUITOUS SERVICES. See NEAR RELATIONS. HUSBAND AND WIFE. 1. A husband is not liable after the death of his wife for debts con- tracted by her before their marriage. Neither is he liable as her administrator for such debts, except to the extent of the choses in action due her at her death. Day and Wife v. Messick, 328. 2. A widow's interest in the one-third of the residue of her hus- band's personal estate, who dies intestate, is a vested interest, and her right attaches immediately on his death. Pettyjohn's Executor v. Pettyjohn, 332. 3. Promissory notes made to a married woman, and not reduced to possession by the husband, on his deatli survive to the wife, and not to his executor, if she is then living. And as to the rights of the wife by survivorship in such cases, there is no distinction between choses in action accruing to the wife before marriage and during her cover- ture. Lendcrman v. Lenderman's Executor, 523. See CHANCKRY, 1. DKMISK, 1. IMMORAL CONSIDERATION. Sec CONTRACT, 2. J N.I 1'NCTION. See CHANCERY, 2. INTEREST. Sec "WILL*, CONSTRUCTION OF, 3. "WITNESS, 2, 4, 5. JUDGMENTS. 1. It' a party, after suffering judgment by default in an action of ejectment, relinquishes or abandons the possession of the premises, no length <>f posse>-.-ion prior to it will avail him in a. second action of ejectment against him for the same premises, although the plaintiff did not enter into possession on his abandonment of them. Due d. Bright v. Stephens, 31. INDEX. 635 JUDGMENTS Continued. 2. A general warrant of attorney to confess judgment on a bond cannot be varied or restricted by a parol agreement not to enter it in this State ; and no action will lie on such agreement. Logan v. The Farmers' Bank, 35. 3. A judgment by default, in a former action of ejectment between the same parties, legally establishes the right of the plaintiff to the possession of the premises in a second action between them for the same premises ; but, unless it is followed by an entry into possession, either by a writ of possession or without it, but with the consent or by the surrender or abandonment of the defendant, such judgment can have no effect on the defendant's possession, or upon the question of title on his part, founded on an actual and uninterrupted adverse possession of twenty years' continuance. Doe d. Bright v. Stevens, 240. 4. Judgment by default for want of appearance and an inquisition held thereon, set aside after the lapse of two terms, for want of a suf- ficient return to the summons by which the suit was commenced. But leave granted to amend the return on payment of costs and allowing the defendants to enter their appearance forthwith. Wil- mington, use of Rupp, v. Kenms $ Pyle, 362. 5. A joint judgment entered against the individual members of a late firm, on a bond and warrant of attorney executed for them by one of the members, but without their proper authority, is neither binding on them nor on the member executing the bond and warrant of attorney. Hickman if Co. v. Branson, 429. 6. In an action upon a judgment recovered in another State, it is final and conclusive, not only as to the persons who were parties on the record to it there, but also as to all persons who should have been parties to it there. 7. A bond given by two members of a firm for debt and judgment confessed upon it by thorn will discharge the original joint liability of a third partner for it, because it changes and extinguishes the original nature of the debt, and thereby becomes a now debt of a higher grade of the partners giving the bond and confessing the judgment ; and if the other partner afterwards pays the amount of the judgment to the plaintiffs, and takos an indorsement of it to his own use and bom-fit, it cannot bo pleaded as 11 payment or defence to an action on the judgment for the use of such partner against the defendants. 8. A person for whoso use a judgment or >uit is, indorsed is no party to it in a legal sense, and no plea addressed to his right merely to maintain the action is good. 9. The payment of a judgment by a person not n party to it is not a satisfaction or extinguishment of the judgment, unless it was so intended to bo by the person paying it; and, if indorsed for his use. it cannot be pleaded as a payment by the defendant in an action upon tlu: judgment against him. Suijdam ,j- Reed v. Cannon. 431. 636 INDEX. JUDGMENTS Continued. 10. No rule can be laid to show cause wherefore a judgment should not be satisfied, or issue granted to ascertain the amount due upon it, except between the parties to the judgment. Buddv. The Union Bank, 466. 11. Judgments confessed upon a bond and warrant of attorney executed by one member of a firm in the name of the firm, first, against the two members of the firm jointly, and afterwards severally against the member of the firm alone who executed the bond and warrant, vacated and set aside ; the first judgment, because the war- rant only authorized the entry of a joint judgment against the part- ners, and not binding both, it could not bind either; and as to the second judgment, because it was not entered pursuant to the warrant, which must be executed strictly. A joint and several bond entered jointly against two cannot afterwards be entered severally against either. Seal v. Seal, 516. JUSTICE OF THE PEACE. 1. In an action of trespass for false imprisonment against a justice of the peace, or other judicial officer, evidence that it was without probable cause, and from malicious motives against the plaintiff, is irrelevant and inadmissible; because it is immaterial in such action, provided he did not exceed his jurisdiction. What constitutes probable cause, when supported by oath or affirmation, is a question for the decision of the magistrate ; and, however erroneously or maliciously he may act in determining it, he cannot be liable for it in this form of action. 2. The very question presented to the justice upon a complaint made on oath or affirmation as the constitution requires, whether there is probable cause for believing, from the nature of the com- plaint, that a criminal offence has been committed by the party com- plained against, gives the justice jurisdiction, and constitutes the preliminary inquiry lying at the very threshold of his jurisdiction, which he must consider, and which no one but he can decide ; .and whatever may be his decision upon it, it is a decision clearly within his jurisdiction, and whether right or wrong, he is not liable iii a civil action to any one for it. As a principle of law, it is clearly established, that where the committing magistrate has not exceeded his jurisdiction, he cannot be liable in any civil action, however erroneous may have been his decision, or even malicious may have been his motives. Bailey v. Wiggins, 299, 300. LANDLOKD AND TENANT. See DEMISE. LEGACY. See WILLS, CONSTRUCTION OF, 3, 6, 7. LIMITATIONS OF ACTIONS. 1. The general statute of 1843, Revised Code, 3, 4, which provides that twenty years' peaceable and uninterrupted possession of all vacant lands, with the exception of salt marshes, belonging to the State, shall INDEX. 637 LIMITATIONS OF ACTIONS Continued. bar any claim of title on the part of the State thereto, is not merely retroactive, but is prospective, also, in its operation and effect. Records v. Nelson, 139. 2. Nothing short of a direct acknowledgment, or a distinct admis- sion of the existence of the debt as a subsisting demand, is sufficient to take it out of the operation of the statute of limitations. 8. A qualified and conditional acknowledgment of a debt barred by the statute will not revive it, unless the condition is performed. Jtiurton, Indorsee, v. Robinson, 260. 4. The acknowledgment of a debt as a subsisting demand will take a case out of the operation of the statute of limitations, without an express promise to pay it. Yet the principle seems to require that the acknowledgment should be of a subsisting debt, and recognizing an obligation to pay it, as a debt originally just and still due. And, to properly value the force of such admissions, the circumstances under which they are made may be considered. 6. But where the acknowledgment or recognition of the debt relied on, was an agreement between the parties in writing, made at the time of entering into the trial, of an amicable action between the plaintiff in a different character, as an administrator, and the defen- dant, " that a certain note, bearing date, &c., from the defendant to another person, and by him indorsed to the plaintiff in the amicable action in his own right, or any payments or credits applicable thereto, should not be considered by the arbitrators," it is not sufficient for the Court, in charging the jury, to leave it to them simply to deter- mine whether the agreement merely referred to the note on which the action was brought, but it should also have left it to the jury to say whether the agreement recognized that note, or any part of it, as yet due. Robinson v. Burton, 540. See DEED, 6, 7, 8. MANDAMUS. 1. Mandamus will not lie to admit or restore a minister who is wrongfully excluded from his pulpit and the exercise of his spiritual functions by the corporate trustees and congregation of the Church, if there is no endowment or emolument other than voluntary contri- butions annexed to the office, and dependent on the exercise of its functions, or ho has no temporal right involved in the mutter and affected by the exclusion. 2. Without some temporal right, such as an endowment, a fixed emolument, stipend or salary, or other temporal advantage annexed to its functions, his office is merely a spiritual or ecclesiastical office; and if wrongfully excluded from it there is no legal right involved in the ease, and a court of law has no jurisdiction of it. If, however, there is any such temporal right attached to the office and its func- tions affected by his exclusion, and for which the law affords no specific remedy, mandamus will lie to restore him, to prevent a failure of justice in respect to such legal right. L'/iian Church v. Sunders. 10f the king there, con- 640 INDEX. PLEADING Continued. victed or attainted of treason or felony, may be sued as a party defendant in a civil action. Cannon v. Windsor, 143. 2. An action of indebitatus assumpsit will lie as between near rela- tions, for board and maintenance, on proof of an express promise, or an actual understanding between the parties that the same is to be charged and paid for, without a special count on the express promise. Ibid., 143. 3. Although a son cannot recover in an action of assumpsit against the executor of his father, on the special counts upon an express con- tract between them, that if the son would remain with his father after he attained his majority, and work for him as long as he lived, the latter would leave him in his will one-half of his land when he died, unless the contract is in writing, yet he may recover on the common counts for the value of the work and labor performed by him under the agreement, provided an actual and express promise is proved on the part of the father to compensate him for his services. But on the common counts for work and labor he can only recover the actual value of his services proved, and not the value of the land which the father agreed but failed to devise to him, the former and not the latter being the true measure of the damages in such recovery. Wat- son v. Watson, 209. 4. When a sheriff justifies taking goods under a fi. fa. he is not bound to set out the judgment in his plea, or to plead anything more than the execution under which he seized them. Duvia v. White,, 228. 6. In such an action, if the goods have been replevied, the sheriff is entitled to a verdict for the return of the goods, and if a return can- not be hud, to a verdict for damages to the value of the partner's share or interest in them. Ibid., 229. 6. In pleading upon statutes, the general rule is, that where the exception occurs in the enacting clause, or in the same or a preceding section, or in a preceding statute, the plaintiff must negative the exception ; but, where the exemption occurs in a subsequent section or statute, it is a matter of defence to come from the other side. Sociim v. The State, 204. 7. If the declaration in appeal from a justice of the peace fails to correspond with the transcript of the suit below, in the names and number of the parties, the character or right in which they sue, or in the cause or form of action, the proper mode to take advantage of it is by motion to set it aside for irregularity, and not by plea in abatement, on the ground of variance between the narr and the transcript. McDowell v. Simpson and Wife, 4H7. See DEMURRER. CASK AND TRESPASS. POSSESSION. 1. Exclusive possession is sufficient to maintain trespass q. r. /. against one entering without license, or a legal title. 2. In a case of common possession by two or more persons, the law adjudges the rightful possession to him who has the legal title; and INDEX. 641 POSSESSION Continued. no length of holding in such case can give title by possession against such legal title. 3. "What kind of possession will give title to real estate depends on the nature and condition of the property itself. An actual inclosure is the most obvious proof of possession, but it is not indispensably necessary for such purpose: cutting wood, or grass, or even the pas- turing of cattle repeatedly, and as a matter of exclusive right, upon uninclosed land, is evidence of possession ; and if exclusive and ad- verse in their character to the rights of all others, and continuous for twenty years, will confer an absolute title by possession merely. 4. No act, however, which does not amount in itself to an assertion of right to the soil, can be evidence of possession of the soil. Thus the use of water for a mill, or any other privilege connected with the use of the water simply, is not of itself alone evidence of title to the land covered with it ; because the right to use the water for such pur- poses may well be in one, while the title and possession of the land covered with the water, subject to that easement or privilege, may remain in another person. Bartholomew v. Edwards, 17. 6. Possession is not necessary to enable a party to convey by deed a title to land in this State. 6. No inclosure necessary to constitute a holding by adverse pos- session. 7. If a party, after suffering judgment by default in an action of ejectment, relinquishes or abandons the possession of the premises, no length of possession prior to it will avail him in a second action of ejectment against him for the same premises, although the plaintiff did not enter into possession on his abandonment of it. Bright v. Stephens, 31. 8. An action of ejectment cannot be maintained on possession alone short of twenty years against a mere trespasser, who enters without any color of title and ousts the party in po.sses.sion. Doe d. Jefferson v. Ilou'fll, 178. See CASE AXD TRESPASS, 2, 3. EJECTMENT, 4. MORTGAGE, 2, 3. POWERS. The intention to execute a delegated power must appear in the execution of it, either by a reference to the power itself, or to the subject-matter of it, in a way to leave no doubt of the intention to execute the power. Doc d. Davis v. Vincent, 410. PRACTICE. 1. The propounder of a will on an issue of drri.tarif re! unn is to prove the fuctum or formal execution of it, and then the reviewers having the burden of invalidating it have the opening and conclusion of the argument. Davis >( al. v. lingers, 44. 2. On the trial of a c.avcat tiled against proceedings to locate vacant land, under a private act of Assemblv. the defendant is entitled to the opening and conclusion to tUe jury. Records v. Mclson, lo'J. 642 INDEX. PRACTICE Continued. 8. The report of referees on a rule of reference sustained by the Court, on the party consenting in whose favor the report was made, to enter a credit upon it for a payment proved to have been made by the other party, but which the referees had disallowed. Burton's Executor v. Warrington, 148. 4. The Court will not compel the production of a promissory note by a plaintiff before trial for the inspection of the defendant, although he is an administrator, on an affidavit submitted by him, alleging grounds to suspect its genuineness, and that the plaintiff had refused to allow the defendant to see it. Frank v. Frank's Administrator, 246. 6. The existence, identity, and loss of a deed, are questions ad- dressed to the Court, and are first to be decided by it, and afterwards the evidence of its contents goes to the jury ; and if the evidence is irregularly introduced on these points, and is left in terms of too general import in the charge by the Court to the jury, the Court will on motion set aside the verdict and grant a new trial. Bartholomew v. Edwards, 247. 6. No writ of capias ad satisfaciendum can issue on a joint judgment against several defendants, two of whom were free white citizens of the State, notwithstanding the other defendant in the judgment was a non-resident, and the other two were not arrested under the writ and took no exceptions to it, without an affidavit of fraud filed. From- berger v. Karsner, 290. 7. Judgment by default for want of appearance, and an inquisition held thereon, set aside after the lapse of two terms, for want of a suf- ficient return to the summons by which the suit was commenced. But leave granted to amend the return on payment of costs and allowing the defendants to enter their appearance forthwith. Wil- mington, use of Rupp, v. Kearn $ Pyle, 362. 8. After a general leave granted to amend the pleadings without qualification, the Court will not, on motion, strike out a plea of the statute of limitations entered under the leave. But if objected to at the time of the application to amend, after issue joined, the Court will not permit it to be entered. 9. In an action on an executor's bond, the party for whose use the suit was brought for a legacy, recovering judgment, was ordered to enter into bond to the executor to refund, to meet outstanding debts, &c., and execution stayed till the order should bo complied with. Burton v. Rodney et al., 442, 443. Bee AMENDMENT. JUDGMENT, 5, 11. PRESUMPTION. 1. If ii person leave or disappear, the presumption in favor of life continue.- until a period of seven years has elapsed without any tidings or intelligence of him ; but after that the rule is reversed, and tho INDEX. 643 PRESUMPTION Continued. law presumes his death, unless the contrary be shown. Crawford v. Elliott, 465. 2. A partial payment made within twenty years on a judgment of longer standing will rebut the legal presumption of its payment; but if the parties have subsequent dealings within that time, and the plaintiff falls in debt to the defendant on book account, he cannot indorse the amount on the record as a credit to the judgment, so as to rebut the presumption of its payment, unless it be further shown that they have had a settlement of their subsequent dealings, and it was so agreed between them. Vaughan v. Marshall, 604. 3. If, however, the grantor in the deed, after the date, execution and delivery of it, gives the grantee his judgment-note for a sum of money, it will create a presumption that the consideration-money for the deed was paid at or prior to the date of the note, as it would im- ply a settlement between the parties at that time, and that all claims and demands between them of inferior grade and dignity were in- cluded in it, and were extinguished by the security of a higher nature. It raises, however, at best but a presumption ; and, as all presump- tions of this character may be rebutted, it is not necessarily conclusive. Callaicay \. Hearn, 607. PRETENSIONS. Ten days' notice of the time of laying down pretensions, including the day of serving the notice and the day of making the survey, is sufficient. Cann v. Warren, 189. PRINCIPAL AND AGENT. 1. If a principal contracts with his agent to do an illegal act for him, and by reason of the latter's negligence in the mode of perform- ing it another is damaged, for which the principal is sued and a judg- ment is recovered against him, he cannot maintain an action against the agent for the amount of it. But if the agent agreed, before pro- ceeding to do the work, to procure the proper license and authority for it, but proceeded without it, he will be liable to the principal in such action, unless the principal afterwards agreed that he should do the work without the license. In the action by the principal against the" agent for such negligence, the judgment recovered against him is evidence of the quantum of damage sustained by him, but not of the fact on which the judgment is founded; that is to say, that the damage was occasioned by the negligence or misconduct of the agent, for that must be proved by evidence aliunde. Baynard t j- Postlcs v. Horrify, 200. 2. If a principal in the sale of goods directs his agent riot to deliver them until they have been paid for, and the agent, without his know- ledge and authoritv, delivers them to the buyer on trial, to be paid for, or returned by a certain day, and it is not done, there is no change of property in the goods by such delivery of them, and the seller may retake them, notwithstanding he may have afterwards 644 INDEX. PRINCIPAL AND AGENT Continued. acquiesced in the delivery of the agent and declared in the mean time that he had sold them to the buyer. Jefferson v. Chase, 219. PROMISSORY NOTES. 1. The holder of a negotiable note may maintain an action against the maker of it, without showing how he obtained it, unless he is notified previous to the trial that the payment of it will be resisted for good and sufficient reasons in law. Fairthorne v. Garden, 197. 2. It is no defence to an action between the original parties on a promissory note given on> a sale of goods, that the goods turned out to be of no value, by reason of which the consideration wholly failed, without proof of an express and fraudulent warranty of the goods, or fraudulent representations as to their value by the plaintiff, in the sale of them to the defendant. 3. What will constitute an express warranty ? O'Neal v. Ba- con, 215. 4. The Court will not compel the production of a promissory note by a plaintiff before trial for the inspection of the defendant, although he is an administrator, on an affidavit submitted by him, alleging grounds to suspect its genuineness, and that the plaintiff had refused to allow the defendant to see it. Frank v. Frank's Administrator, 245. 5. Promissory notes made to a married woman and not reduced to possession by the husband, on his death survive to the wife, and not to his executor, if she is then living. And as to the rights of the wife by survivorship, in such cases, there is no distinction between choses in action accruing to the wife before marriage and during her coverture. Lender-man v. Lender-man's Executor, 523. PROPERTY. Right to pursue and recapture when wrongfully taken. See TRESPASS. RAILROAD COMPANIES. 1. The grant of an act of incorporation by the State is professedly for the public good generally, and there is an inherent right in the Legislature to amend, alter, and change it with the assent of the cor- poration, and those who become corporators in it do so with that contingency, and their engagements are therefore subject to it. 2. If a subscriber to stock enters generally into a corporation, with- out specific stipulations, he is bound and concluded by the action of a majority of thu corporation, and if the Legislature amends and changes the charter with the assent of the company, he will not bo thereby discharged from his liability for his subscription for stock made previous to the amendment and change of the charter. But if the subscription for stock is of such a character, and the change in the object of the charter is of such a nature as to increase the amount which he was originally bound to pay by virtue of his subscription to INDEX. 645 RAILROAD COMPANIES Continued. the stock, it will absolve him from his contract and liability to pay for it. 3. There is no substantial distinction between the terms subscriber and stockholder in the Delaware Railroad charter, and a subscriber may be sued for arrears of subscription for stock due from him, with- out proof that certificates of stock have been issued or tendered to him by the company. Delaware Railroad Company v. Tharp, 149, 150. 4. A master is not liable to his servant for injuries occasioned by the negligence of a fellow servant in the coarse of their common em- ployment, provided the latter is a person of competent skill and care. 6. But a drover travelling in a freight train of a railroad company with live stock, for the purpose of taking care of it in its transporta- tion over the road in such train, although it was the usage of the company in such cases to grant to the owner of such live stock a drover's ticket for that purpose, free of charge for his own passage in such train, on his releasing the company from all liability for the safety of such stock, and paying the freight charged for the trans- portation of it, which by the custom and regulations of the company was twenty-five per cent, higher when neither the owner or his agent accompanied it on the train for that purpose, will not constitute the relation of employer and employee, or of master and servant, for the time being, between the company and such drover on such train. On the contrary, and notwithstanding it was the usage and regulation of the company in such cases to issue to such a person a special ticket, termed a drover's ticket, on his paying the rate of freight charged on the stock under such circumstances, and executing a release to the company from any liability for the safety of it, which contained a printed notice on the back of it, that the company would not be re- sponsible for the personal safety of the holder of it in travelling over the road by such train, and which expressly restricted his right of passage under it to the freight trains, and prohibited his travelling under it in any passenger train of the company, it was held, that a drover travelling on such a train with his live stock, who had paid the usual freight chargeable upon it under such circumstances, and released the company as required, from liability for the. safety of the transportation of it over the road, whether he had or had not such a ticket at the time, was rightfully and lawfully a passenger on such a freight train; and although he had paid no fare or compensation to the company for his own passage as such, and was not in a passenger train, but a freight train, in which the company never carried passen- gers, or any persons other than drovers or their agents travelling with their live stock for the purpose of taking care of it, and then only on the terms and conditions before stated as to their personal safety and security, the company, nevertheless, stood in the relation of a common carrier of passengers for hire towards him, and as such were liable to him for injuries sustained in a collision between such 646 INDEX. RAILROAD COMPANIES Continued. freight train and another freight train of the company, occasioned by the negligence or want of skill on the part of the servants of the com- pany in charge of either, or of both of such trains. 6. Common carriers consist of two classes, common carriers of goods, and common carriers of persons for hire; and railroad com- panies being incorporated by law for the transportation of passengers as well as property, for hire, are common carriers of both descrip- tions. 7. But if, as a general thing, they confine the transportation of goods to their freight trains, and the conveyance of passengers to their regular passenger trains, they are common carriers of goods as to the former, and of passengers as to the latter; nevertheless, if they are in the habit of carrying goods for hire by the latter, they may become common carriers of goods by such trains, and if by the for- mer they are in the practice of carrying passengers for hjre, such as emigrants, or drovers, or any other class of traders with their pro- perty, they may also become common carriers of passengers as to such persons by such trains, as well as of property, and may thus as- sume the obligations and liabilities of common carriers indifferently both of persons and property by such trains. 8. There is a wide distinction, however, between the liability of common carriers of goods and common carriers of passengers or per- sons for hire. The former are responsible for all injuries to the goods, except such as are caused by the act of God, or the public enemies, even in the absence of negligence; because the former are regarded in law in the light of insurers of the goods committed to their charge, against all other injuries; whilst a common carrier of passengers is liable for injuries to the latter only in case of negligence. But the law in its beneficence will not allow of any trifling with the lives or personal safety of human beings, and therefore exacts great care, diligence, and skill, from those to whom, as common carriers, they commit themselves; common carriers of passengers are responsible for any negligence resulting in injury to them, and are required, in the preparation, conduct, and management of their means of conveyance, to exercise every degree of care, diligence, and skill which ft reason- able man would use under such circumstances. This obligation is imposed on them as a public duty, and by their contract to carry safely as far as care and foresight will reasonably admit. A railroad company, using as it does the powerful and dangerous agency of steam, is bound to provide skilful and careful servants, competent in every respect for the posts they are appointed to fill, and is responsi- ble not only for their possession of such qualities, but for their con- tinued application of them at all times. 9. If, however, the injuries complained of by the plaintiff were occasioned by his own fault or negligence, or if his own conduct or imprudence co-operated with the negligence or misconduct of the INDEX. 647 RAILROAD COMPANIES Continued. servants of the company to produce them, he could not recover for them ; because he could not hold others liable for the consequences of his own negligence or misconduct. Flinn v. Philadelphia, Wilming- ton, and Baltimore Railroad Company, 469, 470, 471, 472. RECEIPT. 1. A receipt under seal is conclusive, and cannot be contradicted by parol evidence. State use of Messick'a Administrator v. Mes- sick, 347. 2. The usual acknowledgment of the receipt or payment of the consideration or purchase-money contained in the body of a deed, is prima Jade but not conclusive evidence *of the payment of it, and parol evidence is admissible in this State to show that it has not been paid. Callaway v. Hearn, 607. RECITAL. See DEED, 1, 2. RECOGNIZANCE. The interest or share of an heir-at-law in a recognizance in the Orphans' Court is liable to attachment. Crawford v. Elliott, 465. See APPEAL, 3. ESTATES OF INTESTATES. RECORD. The record of a suit between the same parties is admissible in evi- dence in a subsequent action between them, although it may not be final and conclusive: as where a new trial has been asked for and the rule granted, and the question upon it is still pending. Chase v. Jef- ferson, 257. RENT. See DEMISE, 1, 2. EMBLEMENTS. REPLEVIN. 1. The remedy, by action of replevin, pursuant to the statute Rev. Code, 379, 380, does not extend to the case of a seizure by the sheriff, under execution, of goods in the possession of a third person, under a contract of renting or hiring them of the plaintitf at a certain price per year, to be returned on reasonable notice in good order, without notice from the plaintiff terminating the contract and requiring the return of the goods. Staplefvrd v. White, 238. 2. When the plaintiff in an action of replevin relies only on a wrongful detention of the property, it is quite as necepsary in general that he should prove a demand and refusal in order to establish the wrongful detention, as it is to establish a conversion of the property in an action of trover. Windsor v. JJoi/ce, 606. RESIDUARY BEQUEST. See WILLS, CONSTRUCTION OF, 6, 7. SALE. 1. If a person buys goods and pays for them, but allows another to take them and sell them, retaining the entire profits over and abovo the original cost of them, for his own benefit, they are the property of the purchaser, and are not liable to execution process against the party receiving and selling them. Sharp v. Arthurs, 353. 648 INDEX. SALE Continued. 2. A sale of corn in the ear in the seller's barn, afterwards to be got off ready for market by him, and to be taken away by the pur- chaser as soon as he could get ready to receive it, transfers the pro- perty to the purchaser from the time of the sale, and it cannot be taken on an execution against the seller levied before the delivery. Clearer v. Ogle, 463. See CONTRACTS, 8, 4, 6. PRINCIPAL AND AGENT, 2. TRESPASS. SET-OFF. A balance due upon a note to an administrator, as administrator, given for goods sold by him at public sale as the property of his in- testate, cannot be set-off in an action, at the suit of the maker of the note, against the administrator, for a debt due from his intestate to the maker of it. Cannon' 3 Administrator v. Edwards, 427. SHEEP. See DOGS. SHIPPING. See CONTRACTS, 8, 4, 5. STOCKHOLDER. There is no substantial distinction in the Delaware Railroad Char- ter, between the terms subscriber and stockholder, as indifferently employed in it. . There is nothing in it to warrant the refined dis- tinction that the defendant was not a stockholder in the company, because there waa no proof that any certificate of stock was ever de- livered or tendered to him for a share of stock subscribed for by him. Delaware Railroad Company v. Tharp, 155. SURETY. In an action on a recognizance against a surety in an appeal, if the same be referred out of Court under a rule of reference, it will not release the surety from his liability on the recognizance; and it is not necessary to aver in the narr that he consented to the reference. McColleys use of Warren v. Hickman, 234. TESTAMENTARY INTENTIONS. See WILLS, PROBATE OF. TRESPASS. In an action of trespass for breaking and entering the close of the plaintiffs, which trespass the defendant justifies, because the plaintiff had taken his goods without his consent and locked them up in his close, the Court will not entertain the question, nor inquire in which of the parties the rightful property in the goods at the time was vested, when the claim of the defendant rests on an alleged contract of purchase of the goods before that from the plaintiff, and it would be necessary to determine whether there was such a delivery of the goods as would complete the sale and vest the legal right to them in the defendant. The principle of law in regard to the recapture of goods wrongfully taken from the possession of the owner, and the INDEX. 649 TRESPASS Continued. right of the owner so dispossessed, to speedily follow them up and re- take them, does not apply in such a case. Chase v. Jefferson, 257. See POSSESSION, 1, 2, 8, 4. CASK AND TRESPASS. JUSTICE OF THE PEACE. DROVERS, 1. TROVER. TKOVER. 1. If a person impounds swine damagf-feaxant, and kill them while so in his possession, or injure them, so that they afterwards die when set at large, it will be such a destruction as will constitute a conver- sion in law of the property, and trover will lie for it. But if the same is done while the swine are damage-feasant, or running at large, and not so in his possession, trespass, and not trover, is the proper remedy. 2. The provision of the statute in regard to case and trespass has not abolished the distinction between the two actions in such a case. Cannon v. Horsey , 440. TRUST. The Legislature has no power to authorize or direct the sale and conversion of real estate into personalty, devised by a testator in per- petuity and trust to a charity; although the act is conceived in a friendly spirit towards the object of the trust and with a design to render the fund more productive and effectual for the purposes of the charity contemplated by the testator. Tharp v. Fleming, 580. TRUSTEE. See WITNESS, 2. VACANT LAND. On the trial of a caveat filvd against proceedings to locate vacant land, under a private act of Assembly, the defendant is entitled to the opening and conclusion to the jury. The survey and plot of the land proposed to be located, returned into the Recorder's office under the provisions of the act, is evidence on the trial to explain the limits and location of the land alleged to be vacant. But the receipt of the State Treasurer, for the caution- money paid him by the defendant, and the patent of the State for the land obtained while the caveat is still pending and undetermined, are not admissible in evidence. The general statute of 1843, 9 vol. Del. Laws, 454, and Rn\ Code, 15, 4, which provides that twenty years' peaceable and uninterrupted possession of all vacant hinds, with the exception of salt marshes, be- longing to the State, shall bur any claim of title on the p:irt >f the State thereto, is not merely retroactive but is prospective also in it> operation and effect. Jfrcords v. Xelson, 139. VESSEL. See CONTRACTS, 4. WARRANT OF ATTORNEY. A gi-iier:tl warrant of attorney to confess judgment on a ho in I. can- not be varied or restricted by a parol agreement not to enter it in 42 650 INDEX. WARRANT OF ATTORNEY Continued. this State, and no action will lie on such agreement. Logan v. The Farmers' Bank, 85. See BONDS, 2. JUDGMENTS, 2, 5, 7, 11. WARRANTY. What will constitute an express warranty. O'Neal v. Bacon, 215. WIDOW'S THIRDS. A widow's interest in the one-third of the residue of her husband's personal estate, who dies intestate, is a vested interest, and her right attaches immediately on his death. But in an action to recover it, it is not sufficient to establish her marriage, to prove that they were married by a person generally reputed to be a Methodist preacher. Better and stronger evidence than general reputation is necessary. A printed copy, without authentication, of the minutes of the Con- ference, on which his name appeared as a minister, is not admissible for this 'purpose; but further proof that he was received as such a minister, sent by the Methodist Conference on the circuit, and that he served upon it two years, administering the sacrament and other ordinances of the church, and then went to another circuit, in the absence of rebutting evidence, was held sufficient to establish his ministerial character and office. Pettyjohn's Executor v. Pettyjohn, 332. The testator by his will, "after his just debts and funeral expenses were paid, and his wife's thirds were taken out," bequeathed and de- vised certain portions of his real estate and certain pecuniary and specific legacies, and also the residue of his real and personal estate, to his two children. Held that the wife was entitled to one-third of the personal, as well as one-third of his real estate under his will, after the payment of his debts and funeral expenses, to be ascertained before deducting the amount of the legacies. Horsey and Wife v. Ilorsey's Executors, 438. WILLS, PROBATE OF. The propouruler of a will on an issue of dcvisavit vel non is to prove the factual or formal execution of it, and then the reviewers having the burden of invalidating it, have the opening and conclusion of the argument. Proof of the factum is not confined to tl*; subscribing witnesses of the will merely; but any other witness culled by the propounder in the first stage of the case, will be confined in his evidence to proof of the execution merely. An exeeutnr with or without compensation for his service? as such provided for in tin- will, is not u competent, witness to support the will. Neither is u trn.itce appointed by tin; will with a provision in it for it fair mid liberal compensation to him for his services as trustee, a competent witness to sustain the will. 1'arul declarations of the testator as to his testamentary intentions, INDEX. 651 WILLS, PROBATE OF Continued. are admissible in evidence to invalidate an instrument propounded as his will. Generally, the animus testandi is the natural and primary inference from the act of signing and the formal publication of the instrument as a will ; but this inference may be rebutted by any attending cir- cumstances of sufficient force to repel it as by evidence of the weak- ness and incapacity of the testator to make a will, or of the absence of intention on his part actually to do what he seems to do by the act. Proof therefore, satisfactorily made of instructions given for drawing the will of his declarations of intentions as to his testamentary dis- positions of his known affections, or dislikes of the position and quality of his estate of his previous testamentary intention?, in- structions, or actual dispositions of the physical condition and in- firmities of the testator at the time of making the will, and especially of the organs called into action in making, or understanding it, all these are proper subjects of consideration on the important question whether the paper propounded as a will, does, or does not contain the real testamentary intentions and wishes of the party who signed it, and whether he had knowledge of its contents when he executed it. The party setting up the will, must prove that it was made as a will and with a will, by a party capable of making ^t and that he knew its contents; but it is not necessary to prove that the will was actually read over to, or by the testator, if there be other evidence sufficient to satisfy the jury that he was acquainted with its contents. A blind man may make a will, and a valid will may be drawn by a person taking a beneficial interest under it; but the blindness of the testator and the interest of the person drawing and attending to the execution of it, are circumstances which should admonish the jury to scrutini/.e the evidence offered to prove the testator's knowledge of its content*. The law presumes, in general, that the will was read by, or to the testator. But if evidence be given that the testator was blind, or in- capable from any cause of reading it, or if a reasonable ground be laid for believing that it was not read to him, or that there was fraud, or imposition of any kind practised upon the testator, it is incumbent on those who would support the will, to meet such proof by evidence, and to satisfy the jury, either that the will was read, or. that its contents were known to the testator. The strict meaning of the term onus probandi is this, that if no evi- dence is given by the party on whom the burden is ca.hare or portion of the grandchild so dving to go t" his or her sur- viving brothers and sisters, to be equally divided between them." 654 INDEX. WILLS, CONSTRUCTION OF Continued. One of the grandchildren in being at the date of the will, and named in it, died without issue after the death of the testator. 1 It-Id, that such of his brothers and sisters only as were born before the death of the testator could take any share in the portion of the estate so devised to him by the testator. Doe d. Ingram et al. v. Oirard tt al., 276. 2. The testator, by his will, devised to each of his five children by name, portions of his real estate in severally for life, remainder to the children of each in tail, in the parts so devised to his children, subject to the proviso, that if any one or more of his said children should die without leaving lawfully begotten child or children, then he gave and devised the lands and premises so devised to such child or children as should happen to die as aforesaid, unto the survivor or survivors of his said children, during their natural life ; and, after their decease, he gave and devised the lands and premises as aforesaid to the child or children of such survivor or survivors lawfully begot- ten of their bodies forever, of any of his children who might be dead, leaving such child or children, such child or children claiming such part or share, as the parent or parents of such child or children would have claimed if living, to be equally divided between his surviving child or children as aforesaid and the child or children of any that may be dead, claiming the right of their parent or parents as if living, share and share alike, aa tenants in common, and not as joint- tenants, and to the respective heirs as aforesaid forever; and he further provided that it was his will, desire, v and intention, that if the whole of his children should die without leaving lawful child or child- ren, or legal descendants of such child or children, so that the whole of the lawful issue of his own body should become extinct, then and in such a case he devised the remainders and reversions of his whole estate over to other persons. The lessor of the plaintiff was the son and only child of Richard, a deceased son of the testator. William H., another son of the testator, died without leaving lawful issue, leaving his brother, Ignatius T., to survive him, and who was now the sole survivor of the testator's five children and original devisees ; and this action was brought by William T., the son of Richard, against Ignatius T., to recover his share of the lands and promises devised by the testator to his son, William II. Held, that the lands and premises devised to William II. by the testator, on his death without leaving children lawfully begotten of his body, under the limitations of the will, survived to Ignatius T., the sole surviving child of the testator, for the term of his life, and that tho plaintiff could not recover. The words "survivor or survivors" do not moan other or other a ; and were not to bo so construed in a devise of this nature. D<>e d. Cooper v. Town.iend et al., 3G5. 3. As a general rule a party is entitled to interest on account of dflay in tho payment <>f the principal sum or debt; and in respect to INDEX. 655 WILLS, CONSTRUCTION OF Continued. legacies it is well settled that interest is payable on them only from the time when they become actually due. Specific legacies, or bequests of a carpus, which in contemplation of law are considered as severed from the bulk of the testator's property by the will itself, carry their product or interest from the testator's death along with the principal, and go to the legatee, unless the will contains directions to the contrary. But general pecuniary lega- cies, where no time of payment is appointed by the testator, are not due and payable until one year after his death, and do not bear interest until after the expiration of that time. With respect to general pecuniary legacies, when the time of pay- ment is named by the testator, there is no general rule better settled than that such legacies do not carry interest before the arrival of the appointed time of payment, notwithstanding the legacies are vested. There are certain exceptions to this rule, however, to be found in cases where the legatee is a child of the testator, or one towards whom he has placed himself in loco parentis, or where from the terms of the will it is manifest the testator intended the legatee should have the interest accruing on the legacy before the time of payment. In the absence of such intention expressed in the will, or clearly implied from its terms, the legacy does not in the meantime bear interest. In the case of a child of the testator, or one towards whom he strands in the place of a parent, interest is given in the meanwhile upon the legacy by way of maintenance, where the child has no other provision ; for it is not to be presumed that the parent in such a case was so regardless of the moral obligations resting upon him as to leave the child in the meantime in a state of destitution. Cases of intention apparent in the will to give the intermediate interest from the death of the testator speak for themselves. Something must be said in the will that shows such intention ; otherwise such interest cannot be allowed. Bequests of the "residue" are also properly distinguishable from the ordinary cases of general pecuniary legacies payable, infuturo; for a bequest of the residue, although made payable infuturo, carries the interest in the meantime to the legatee. But the bequests in question present the ordinary case of vested legacies payable at a future day; namely, when the nephew should arrive at the age of twenty-one years, and the nieces at the age of eighteen ; who are not children of the testator, nor persons towards whom he stood in loco par ends in his lifetime, and not being residuary legatees, and there being no direction or provision in the will from which it can be reasonably inferred that the testator designed to give them the interest accruing thereon in the meantime, they cannot take it ; but the same would go to the residuary legatee. CV.v/ia tnut Wife v. Potter's Administrator, 382. 4. A devise to a son of the testator of u. farm or tract of land !>v his 656 INDEX. WILLS, CONSTRUCTION OF Continued. paying a grandson of the testator two hundred and fifty dollars with- out interest, when he shall arrive at the age of twenty-one years, which the said farm shall be bound for, to him the said son and his heirs forever, but if the said son should die leaving no lawful heir of his body who shall arrive to the age of twenty-one years, then the farm with the aforesaid condition, the testator willed and bequeathed to the remainder of his sons then living, without words of inheritance or limitation, is a devise in fee both to the first devisee and to the re- maindermen, because of the charge upon them in respect of the farm, of a gross sum to be paid to the testator's grandson. A general devise without words of inheritance, or limitation, car- ries but a life estate to the devisee; but this rule being one of techni- cal restriction, is subject to the following exceptions : If there be no residuary devise in the will, and the intention of the testator clearly appear? to dispose of the whole of his estate, a general devise will be enlarged to a fee to carry out that intent, if it can be applied to the devise in question. Where the testator uses terms which apply to his interest in the land, and not merely to the hind itself, a general de- vise of such interest will carry a fee, if such was his interest in the premises; as when he devises his "estate" at such a place; his "right,'' or his "part" of an estate held with others, or his '"share," referring to his interest and not to the corpus of the property. But where the term employed applies more properly to the land itself, than to his interest, or estate in it, a general devise carries but a life estate; as in a devise of "my house," or "farm," or "part of my house," " farm," or "plantation," at such a place. If, however, there be a charge on the devisee in respect of the land devised to him, and not merely a charge on the land itself, it will enlarge- the general de- vise to a fee; for otherwise, the devise might prove injurious to the devisee. The devise above stated, falls under this last exception, and makes the devise over on the happening of the contingency men- tioned, to the remaining sons of the testator then living, a devise in fee, and consequently is an absolute defeat of the estate first given to the son in the preceding devise, which the Court construed to be a devise to him in fee simple, defeasible on his death without lawful heir of his body who should attain full age, with an executory devise over in fee to the remainder of the .sons of the te.-tator then living. In another item of his will, the testator devised to his two sons, N. and K. a tract of land, to them and their heirs forever, but if either, or both of them >hould die leaving no lawful heir of their body who should arrive to the ago of twenty-one years, then the part or parts of the aforesaid tract of land, he willed and hec|ti, 'Milled to the re- mainder of his sons then living. In another item of his will he de- vised to his son J. a lot of ground containing thirty-live or forty acre-, to him and his heirs forever, but if the .-aid J. should die, leav- ing no lawful heir of his bodv who >li<>ultl arrive to the age of t went v- INDEX. 657 WILLS, CONSTRUCTION OF Continued. one years, he willed and bequeathed the said lot to the remainder of his sons then living; and in another item he devised to his sons S. and H. his home farm, to have possession after the death of their mother, to them and their heirs forever, and then added, "I also direct my said sons S. and H. to pay my grandson J. L. five hundred dollars without interest, when he shall arrive to the age of twenty- one years, for which the said farm shall be bound; but if either or both of them should die having no lawful heir of their body who shall arrive to the age of twenty-one years, then the part or parts of the aforesaid farm, I will and bequeath to the remainder of my sons then living." The residuary clause of the will was as follows: "I will and bequeath all the balance of my estate after my just debts are paid, to be divided among my heirs as the law directs." Held, that the construction of these three items of the will was equally governed by the principles before stated, and that they each contained a devise to the first devisees in fee conditional, with an executory devise for life to the devisees over. As to the question what became of the ultimate interest in the premises after these life estates were deter- mined, it was held by a majority of the Court that the limitations to the first devisees, being in fee conditional and defeasible, the execu- tory devises over for life on the happening of the contingencies upon which they were limited over to the remaining sons of the testator then living, absolutely defeated them and were in total and not par- tial exclusion of the same; that it could not be considered that they were in derogation merely of the preceding devises in fee to the first takers and only impaired and abridged their estates pro tanto, and on the expiration of the life estates limited over, the lands reverted in fee to the heirs at law of the first devisees; on the contrary, the limitations over for life on the contingencies specified, were in entire defeasance of the preceding devises in fee conditional, and on the determination of the life estates so limited over, the premises passed under the residuary devise in the will to the heirs at law of the testa- tor. Doe d. Harrington v. Dill, 398. 5. The testator, by his will, devised all his Jands to his wife during widowhood, with authority to cut timber, and use the land as she saw proper, and to sell and convey any part of them, excepting not less than four hundred acres to the farm whereon he lived, which he willed not to be sold during her widowhood, or the minority of their youngest child. He also, in a subsequent item of his will, empowered her, by her last will and testament, to "devise the estate, both real and personal, to their children or their proper heirs, as she might deem right and equal in her bust judgment, which should be final." JIfl Davis v. Vincent, 416. 6. The testator by his will, "after his just debts and funeral ex- penses were paid, and his wife's thirds were taken out," bequeathed and devised certain portions of his real estate and certain pecuniary and specific legacies, and also the residue of his real and personal estate, to his two children. Held, that the wife was entitled to one- third of the personal, as well as one-third of his real estate under his will, after the payment of his debts and funeral expenses, to be ascer- tained before deducting the amount of the legacies. Horsey and Wife v. Horsey's Executors, 438. 7. In a will which contained the following residuary bequest: "And all the rest of my estate after my just debts are paid, to be equally divided among all my grandchildren of my five daughters, named J. V., wife of T. V., and R. R., wife of J. R., and A. T., wife of D. T., and E. H., wife of J. H., and N. W., wife of D. W., the money to be paid by my executors when they arrive at lawful age." Held, that the grandchildren in being at the death of the testator, only were entitled to the residue, and that a child of one of the daughters named, born after the death of the testator, could not be let in to participate in the benefits of the bequest; the period of dis- tribution being fixed by import of the bequest at the time of his death, and the period of payment or enjoyment, only being postponed until they should arrive at lawful age. Richardson v. Raughley, 561. 8. A will made by a citizen of the State, in the State, contained the following provision: "If at any time my executor and trustee herein named shall find it necessary to relinquish this executorship and trust, and the management of the estate herein intrusted to him, it> is then my desire that the Orphans' Court of the City and County of Phila- delphia shall name a suitable person as an executor and trustee in his place; and I do hereby appoint the person so named to be in that event my executor and trustee." The executor and trustee named in the will renounced and refused the office; upon which the Orphans' Court for the City and County of Philadelphia named another citi/.en of Philadelphia as a suitable person as an executor and trustee in his place, to whom letters testamentary were afterwards granted as the executor of the will, by the Register for New Castle County. Held, that the grant of letters testamentary, thus made to him as executor of the will, was valid and legal, and that it was not necessary and proper that, instead of letters testamentary, letters of administration cum tcstnmcnto annexe should have been issued to him by the Register. State use of .Dam-' Executor v. Rogers, f>7i). 9. The Legislature has no power to authorize or direct the sale and conversion of real estate into personalty, devised by a testator in per- petuity and trust to a charity; although the; act is conceived in a friendly spirit towards the object of the trust, and with a design to INDEX. 659 WILLS, CONSTRUCTION OF Continued. render the fund more productive and effectual for the purpose* of the charity contemplated by the testator. Tharp v. Fleming, 680. WITNESS. 1. Proof of the facium is not confined to the subscribing witnesses of the will merely ; but any other witness called by the propounder in the first stage of the case, will be confined in his evidence to proof of the execution merely. 2. An executor with, or without compensation for his services as such provided for in the will, is not a competent witness to supr j ' the will. Neither is a trustee appointed by the will with a provision in it for a fair and liberal compensation to him for his services as trustee, a competent witness to sustain the will. Davis et al. v. Rogers, 44. 3. An officer, who had received money on an execution and de- livered it to another person to be paid to the plaintiff without his order, is not a competent witness to prove the delivery of the money to such person, in an action by the plaintiff against him for money had and received to his use. Hosea v. Kinney, 141. 4. In an action of replevin to recover goods taken in execution on a fi. fa. issued against two parties, lately trading together as partners, and levied on the goods of a third person as a partner with one of the defendants in the execution, the other defendant is not a competent witness to prove the interest and partnership of his co-defendant in the goods. Davis \. White, 228. 5. A widow's interest in the one-third of the residue of her hus- band's personal estate, who dies intestate, is a vested interest, and her right attaches immediately on his death. But in nn action to re- cover it, it is not sufficient to establish her marriage, to prove that they were married by a person generally reputed to be a Methodist preacher. Better and stronger evidence than general reputation is necessary. A printed copy, without authentication, of the minutes of the Conference, on which his name appeared as a minister, is not admissible for this purpose; but further proof that he was received as such a minister, sent by the Methodist Conference on the circuit, and that he served upon it two years, administering the sacrament and other ordinances of the church, and then went to another circuit, in the absence of rebutting evidence, was held sufficient to establish his ministerial character and office. Pettyjohn's Executor v. Pettyjohn, 332. G. A mere possibility that a witness may gain or lose by the result of the suit, will not affect his competency. Clearer v. Oyl>\ 453. 7. The attorney and counsel of one of the parties to a suit, is not a competent witii''.-s for him, although he has since, by leave of the. Court, withdrawn from the suit, and is no longer connected with the case as counsel for the party, as to any fact which came to his know- ledge during that connection. A/ulrors v. T/winpsun, o'-l. 660 INDEX. WRIT OF ERROR. A writ of error will lie to an order of the Superior Court awarding a peremptory writ of mandamus, though not a judgment at common law, under the provision of the Constitution which confers upon the Court of Errors and Appeals "jurisdiction to issue writs of error to the Superior Court, and to determine finally all matters in error in the judgments and proceedings of said Court;" which extends and applies to judgments and decisions in any proceedings in the latter Court of a final character. Union Church v. Sanders, 100. Judgment was recovered in the Superior Court, on which an exe- cution was issued to the sheriff and a levy made by him on the de- fendant's goods to the amount of the debt and costs. Afterwards, but before sale of the goods, the defendant sued out a writ of error and gave security, on which the judgment was affirmed in the Court of Errors and Appeals, and judgment of affirmance duly entered in the Court below. Held, that the writ of error was a superseded* of the fi. fa. and levy on the original judgment in the Court below, and that a subsequent fi. fa. issued on the judgment of affirmance, and levy and sale was regular. Pettyjohn v. Bloxom, 594. WRONGFUL DETENTION. When the plaintiff in an action of replevin relies only on a wrong- ful detention of the property, it is quite as necessary, in general, that he should prove a demand and refusal in order to establish the wrong- ful detention, as it is to establish a conversion of the property in an action of trover. Windsor v. Boyce, 605. A 001425610 1