of these methods was followed, and hence we conclude; first, that the admission of the defendant, implied from his claim of the exemption, could not conclude, nor alone warrant judgment against the garnishee; second, that such judgment was not warranted by the failure of the garnishee to state specifically for whom the defendant was agent, the interrogatories, as served upon him, not requiring such answer; third, that his verbal statement, made after his answers had been delivered to the magistrate, and when not under oath, and which were not in themselves irreconcilable with his former answers, did not authorize the alderman to disregard his former answers, and to enter judgment against him. The judgment is

King v. King and Miller.

In the absence of actual notice of a judgment; the defec

real estate as the property of John Miller, and that a creditor whose judgment was entered against John T. Miller had no standing in the distribution without showing that both judgments were in fact entered against the same party, which would amount to a parol variation of the record.

Testimony was offered on behalf of Buckwalter, under objection by King, to show that John T. Miller is the same party whose land was sold under the execution from which this fund is produced.— The auditor found the facts as follows: "There are a number of John Millers in the neighborhood of the defendant. For the purpose of preventing his mail matter from falling into the hands of another John Miller, he assumed the name of John T. Miller. There was no other John T. Miller in the neighborhood. Generally, in signing his name to obligations, he signed 'John Miller.' In the case of the

letter is not recorded notice, and a judgment thus defectively entered will be postponed to a judgment properly entered.

B. held a judgment, entered against J. T. M. in 1871; K recovered a judgment against J. M. in 1872, both. in fact, against the same defendant. The defendant's name was J. M. He took his title in this name, and so signed all legal papers, excepting the bond to B. K. had no knowledge of B's judgment. In a distribution of the fund produced by the sale of the real estate of J. M., HELD, that the judgment of K. is entitled to the proceeds to the exclusion of that of K.

or inserted the "T" immediately after he had signed 'John Miller,' and before the delivery of the bond, because in the body of the bond it was written 'John T Miller.' His name on the books of several business men in Springville, was John T. Mil

ment by B. he would have been postponed.

Exceptions to the report of the auditor to distribute money in court produced upon a sale under Vend. Ex. No. 64 to Aug. T. 1872, against Jesse King and John Miller.

The fund in court for distribution amounted to $1,968.82. After an appropriation of a part of the fund to prior lien creditors, the balance was claimed on the following judgments: Wm. Buckwalter v. John T. Miller, of Springville, entered August 14, 1871, for $300; and Albert F. King v. John Miller, by default, obtained Jan. 30, 1872, for $205.60, the latter being the judgment through which the sale was made.

On behalf of King, it was contended that the fund was produced on a sale of

in the village by the latter name. The property is assessed to John T. Miller.The records show the deed for the property to be to John Miller. All the various suits upon notes, &c., show his signature as John Miller, except in the judgment bond to Buckwalter. That bond is entered against John T. Miller, of Springville. The property was sold as the property of John Miller.

The auditor awarded the balance of the fund to the judgment of Albert T. King. Exceptions thereto were filed by Buckwalter.

A. P. Reid, for exceptions.

Testimony is admissible to show who are entitled to the fund, and to identify

right thus to contract his Christian name;" and as no one was mislead by his so do

ment was given :

Wood v. Reynolds, 7 W. & S. 406.

Ridgeway, Budd & Co.'s Appeal, 3 Har. 177.
Jones' Estate, 3 Cas. 336.

The York Bank's Appeal. 12 Cas. 458.
Wm. B. Waddell, contra

Creditors are entitled to rely on the record, and parol evidence cannot be introduced to make such an amendment of the record as would prejudice a creditor who has relied thereon. A judgment entered against John T. Miller is no notice to the creditor of John Miller :

Zimmerman v. Briggans. 5 Watts 186.
Crutcher v. Com., 6 Wh. 340.

July 3, 1873. BUTLER, P. J.-The name of the defendant was John Miller.He took the title to his real estate in this name, and so signed himself to all legal papers, saving the bond to Mr. Buckwalt

er.

To avoid miscarriage of his mail matter he added a "T" to his name, and was known generally in his neighborhood as John T. Miller. He had no authority to make this addition, and it did not change his name. Had Mr. King been aware of the judgment held by Mr. Buckwalter, he would have been postponed. But at the important moment when called upon to act with a view to save himself, he knew nothing of it. He was guided by the record, and it did not exhibit this judgment. He had no knowledge even of Mr. Miller's use of a middle letter; but had he known all the circumstances connected with this, it would not have put him on his guard; because, as we have seen, Mr. Miller excluded the letter in the execution of legal papers. He added it to Mr. Buckwalter's bond after signing, simply because the scrivener had so designed it.

Jones' Estate, 3 Cas. 336, relied upon by the exceptor, bears very little resemblance to this case. There the name was not changed; it was the defendant's proper name, the first part of it expressed by the

Much more like the case in hand is Wood v. Reynolds, 7 W. & S. 406, where a judgment was postponed because the defendant's name was changed by the omission of the middle letter.

For these reasons the exceptions are dismissed, and the distribution reported by the auditor, confirmed.

SUPREME COURT.

Sprenkle's Appeal, No. 2. Administrators--Joint Account--Joint

Liability.

G. S. and S. G. jointly administered upon the estate of J. G., and under proceedings in partition sold the real estate upon which a charge had been created, which operated as a lien in the title, and which could not be discharged by an Orphan's Court sale. The purchasers, however, paid the amount charged upon the land to the administrators who filed a joint account, in which they took credit for the sum of money so received, and for the unexpended interest on the lien, due from the intestate. The interest passed into the hands of G. S., the principal into the hand of S. G.C. S. for whose benefit the charge had been created, was living at that time, and continued to live until 1861, five years after the filing of the account. In 1857, G. S. died, S. G. continued to administer the estate, and was the custodian of the principal sum received by him. He subsequently became insolvent, and died, without having paid over said principal to the heirs of C. S., who were entitled to it upon her death. When the account of the administrators d.b.n.c.t.a, of G. S. was filed, and before the Audicipal sum was claimed by the heirs aforesaid. tor appointed to distribute the balance thereon, the prinHELD, (affirming the Court below) That the estate of G. S. was liable for the said amount retained by S. G.

A second appeal by three of the parties in interest, after the failure of the first, is practically a motion for a reargument.

Appeal from the Decree of the Orphans' Court of York County; and Motion for re-argument.

The facts in this case are given in Sprenkle's Appeal, 3 YORK LEGAL RECORD 67. The grounds for the re-argument were that owing to the illness of one of the counsel the paper book was hurriedly prepared, and the case not clearly stated; that some of the parties in interest had been unable to join in the first appeal and that the decision of the Supreme Court in another case (and which was unpublished at the time of preparing the first paper book) ruled this case.

James Kell and Wm. Hay for Appel

lant.

In addition to the authorities cited in the first paper book the following were referred to;

The filing of a joint account is an admission of joint liability, but it by no means follows that such liability is a continuing obligation:

Young's Appeal, 39 Legal Intellingencer 238.

Where an administrator dies before the act of misappropriation by his co-administrator, his estate will not be held liable:

Williams on Exec. 1160. Perry on Trusts 421.

Nor will he be held any further than he is shown to have participated in the act of misappropriation:

McNair's Appeal, 4 Rawle 157.
Sterret's Appeal, 2 Penna. R. 419.

The Orphan's Court could not discharge the lien of the fund charged on the land: Dewalts's Appeal, 8 Harris 239.

The appellees were guilty of laches:

Hassler v. Bitting, 4 Wright 68.
Calhan's Appeal, 3 Wright 225.

E. W. Spangler and V. K. Keesey for appellees.

Young's Appeal had been decided but four weeks before the first argument of this case. It is fair to presume that the Supreme Court had not forgotten the principle there decided.

The appellees claim as creditors, not as legatees, and there are many cases where accountants would be discharged as against the latter, though not as against

the former :

McNair's Appeal, 4 Rawle 148.

Appellees then repeat the authorities given on the first argument.

May 23, 1883. PER CURIAM.-The alleged errors in this decree were fully argued, and the correctness of the decree affirmed when the case was here last year. That appeal was by two of the heirs. This appeal is by the remaining three. It is therefore now practically a re-argument. A review of the opinion of the learned judge, on which we then affirmed the decree, has failed to detect any error therein sufficient to induce us to change our conclusion.

Decree affirmed and appeal dismissed at the costs of the appellants.

Wagner v. Kline.

Affidavit of defence-Promissory note.

An affidavit of defence alleged that the promissory note on which suit was brought had been obtained from the defendant under misrepresentation, and that the consideration had failed; that the plaintiff was present in a conversation between defendant's attorney and the holder of the note, when the attorney said to the holder that the note was a fraud and would not be paid; and that the original payee of the note was a person engaged in dishonest practices, and whose character should have been sufficient to put the plaintiff on his guard. HELD, to be sufficient to send the case to the jury.

Error to the court of Common Pleas of York County.

The action in the Court below was on a promissory note which matured on the 22nd of April, 1882. On the 13th of April, 1882, the plaintiff in error purchased said note from Granville Hartman, paying him therefor the sum of $495.— The note being unpaid at maturity was duly protested for non-payment, and remaining unpaid after protest, this action was instituted for the recovery of the money. The note was for $500, payable with interest six months after date. The plaintiff filed his declaration in the action, together with a copy of note and protest The defendant, within the time prescribed by law, filed his affidavit of defence.The plaintiff entered a rule for judgment for want of a sufficient affidavit of defence and the Court below, after argument, filed its opinion refusing to enter judgment in favor of the plaintiff. The opinion of the Court below was filed on the 16th of October, 1882, (see 3 YORK LEGAL RECORD 150,) and to the decision of the Court therein expressed, the plaintiff excepted.

Blackford and Stewart for plaintiff in

error.

Nothing, says this Court, but clear evidence of knowledge or notice, fraud or mala fides, can impeach the prima facie title of a holder of negotiable paper taken before maturity;

Morehead v. Gilmore, 27 Smi. 118-24.
Phelan v. Moses, 17 Smi. 59.
Battles v. Laudenslager, 3 Norris 446.

Nor is the rule less stringent although the holder may have taken the note under

circumstances which ought to excite the suspicions of a prudent man:

Phelan v. Moss, supra.

Heist et al. v. Hart, 23 Smi. 286.

This Court has also said, that when fraud is set up as a defence the affidavit must show in what it consisted :

Sterling v. The Mercantile, &c., Insurance Company, 8 Casey 75.

Matthews v. Long, 3 W. N. C. 512.

A general allegation of fraud is insufficient:

Matthews v. Long, supra.

Stett v. Garrett, 3 Whar. 281.

An affidavit of defence which fails to set forth such a state of facts as warrants the legal inference of a full defence to the plaintiff's cause of action is insufficient to prevent judgment for the plaintiff :

Bryan v. Harrison. 1 Wr. 233.
Blackburn v. Ormsby, 5 Wr. 97.
Anspach v. Bast, 2 Smi. 356.
Bright v. Hewitt, 2 W. N. C. 626.

Nothing should be left for inference:

Peck et al. v. Jones, 20 Smi. 83.
Dewey v. Dupay, 2 W. & S. 553.
Marsh v. Marshall, 2 Smi. 396.

In the case before this Court, the affidavit of defence we submit, discloses no such state of facts as would warrant the Court below in submitting the case to a jury:

Heist et al. v. Hart. 23 Smi. supra.
Reeser v. Wambaugh, 2 W. N. C. 145.
Lingg & Bro. v. Blummer, 7 Norris 518.

H. H. McClune for defendant in error. A mere general notice that there was some defence, and that the note would not be paid was enough to put Wagner on inquiry:

Hiest v. Hart, 23 Smith, 286.

Thompson v. Ward.

A devise to testator's son and son's wife for life, with "remainder in fee simple to his heirs at law in case he should have issue, but in case he should die without issue, then the said tract of land to revert to the heirs at law of my three daughters, A, B and C, in fee simple," gives only a joint life estate to the son and his wife. The failure of issue meant is not an indefinite failure of issue, and the rule in Shelly's Case does not apply. As soon as the son has a child, the remainder in fee vests in that child, opening to let in afterborn children. When once vested in such children the fee is absolute.

Error to Court of Common Pleas of Washington county.

Case stated in the court below by Ward et ux. against Thompson et al. in covenant, on contract to purchase realty.

The premises in question were devised to Ward et ux. by the will of D. Ward, viz:

"Item. I give devise and bequeath to my son, Henry Ward, and his wife, that portion of the farm known as the Mowl farm, which lies, &c., &c., to have and to hold the same during the term of their natural lives: remainder in fee simple to his heirs at law in case he should have issue, but in case he should die without issue, then the said tract of land to revert to the heirs at law of my three daughters, Catharine, Susannah and Virginia, in fee simple."

Thompson et al. contracted to purchase the same, and the question below was, whether, under this limitation, the plaintiffs could convey a title in fee simple.The court below held that they could, and entered judgment for the plaintiffs for the purchase money.

December 30th, 1882. SHARSWOOD, C. J. It is undoubtedly one of the best settled rules of construction that when land is devised to a man for life with remainder over on his death without issue, such dying without issue means an indefinite failure of issue unless there is some

thing in the will which shows the intention to have been a definite failure as at the death of the life tenant. In case of an indefinite failure the rule in Shelly's Case enlarged the estate for life to an estatetail. But we do not think that this rule has any application to the case before us. It falls within the principle of Luddington v. Kene, Raym. 203, and the train of decisions which follow in the wake of that There Sir Michael Armyn, being seized in fee of the manor to Evers Armyn for life without impeachment of waste; and in case that he should have any issue male, then to such issue male and his heirs, then to Sir Thomas Barnardistor and his and if he should die without issue male, heirs forever. It was held that Evers Armyn took only an estate of life.

case.

Now,

the language of Daniel Ward's will means that Henry Ward and his wife should have a joint estate during their natural life; remainder to his children in fee if he should have any; but if he should die without issue, then remainder in fee to his three daughters. As soon as Henry should have a child, the remainder in fee would vest in that child, subject to open and let in other children, if any should afterwards be born, such fee would be absolute. After a limitation in fee once vests, no limitation over can take effect. The remainder to the daughters would fall to the ground, and if at any time afterwards the issue of Henry should fail, the daughters or their heirs could only take by descent from the children of Henry, and not by purchase, under the remainder limited in the will.It is the case of a devise in fee, with a proviso that if that fee fails to vest, another estate in fee shall be substituted for it :McCullough v. Fenton, 15 P.F.Smith 418.

C. P. of

COMMON PLEAS.

Firmin v. Firmin.

Philadelphia

A decree of divorce obtained by fraud and collusion will always be vacated if brought to the notice of the court

promptly, and before the rights of others have intervened; but when many years have been allowed to elapse, during which a second marriage had been contracted by the guilty party, and children have been born to him who would be bastardized by the annulling of the divorce, it will not be disturbed, unless the record shows that there was no cause of action.

Rule to show cause why decree of divorce should not be vacated and libel dismissed.

This rule was taken by the wife, who was the respondent, to obtain the vacation of a decree of divorce a .v.m. entered in 1871. The facts stated below are her own version of her case; they are partially disputed by the libelant, but the rule was discharged without calling upon him to argue.

The parties were married in London in 1847. In 1866 the wife began proceedings in an English court for the purpose of obtaining a separation on the ground of adultery; and, on April 22, 1869, after full hearing, the husband having notice and defending, the prayer of her petition was granted. During this suit no attempt was made by him to show that she had ever deserted him. He soon afterward left England and came to the United States. In 1871, his wife, upon default being made in payment of alimony, followed him, and found him in Philadel

phia, living with the woman with whom the alleged adultery had been committed. An agreement was then made between them that, in consideration of a sum of money to be paid to her, she should consent to a divorce. In pursuance of this arrangement, the money was paid and a libel filed by the husband, praying for a divorce on the ground of desertion. In the course of the depositions the husband swore that his wife had deserted him seven years before, to the great astonishment of the wife, who had understood that every thing was to be done by consent, and no charge made against her. She, however, made no attempt to rebut this testimony. A decree of divorce a vinculo matrimonii was entered in due course, and she soon after departed for England. In 1883 she came back, and on an affidavit embodying the above facts, obtained this rule. It appeared that after the divorce, the husband had married the woman who had come over with him, and had had by her three children. marriage took place in New York.

The

June 5, 1883. HARE, P. J. There is no question that this decree would have been vacated if application had been made promptly. The divorce was clearly collusive-a thing which public policy forbids, and the decision of Lord Penzance is conclusive upon this court upon the question of the husband's adultery. there is another public policy which forbids that this decree should be opened after so long a delay, and children have been born subsequently to the divorce, who have some rights, and who, indeed, might not have been born if there had been no divorce.

But

If this divorce was actually void, a different case would be presented, but the record shows that there was a valid cause of action, and hence it can be considered only a voidable decree.

The respondent has had the benefit of her agreement for nine years, and therefore cannot claim any favors of this kind from the court. As far as her own convenience or advantage is concerned, she has no case. The question then is simply whether public policy demands that this divorce should be vacated. Upon this point it is our opinion that, after such a lapse of time and the intervening rights. of children have arisen, the public interest would be best subserved by leaving the parties as they are.