
    [Lancaster,
    May 19, 1823.]
    KING and another, Administrators of KING, against DIEHL and another.
    IN ERROR.
    Where judgment below is revised, and a venire de novo awarded, if, on another trial, the opinion of this court is read to the jury by one party, the other may read the charge of the court below, to explain the opinion, though notas evidence of law or fact.
    If a legacy be payable in instalments, and the date of the last instalment expire before the testator’s death, it is to be considered as a legacy payable generally, and carries interest from one year after the testator’s death.
    Where the defendant pleads payment to a bond, with leave to give want of consideration and special matters in evidence, he can only give such matters in evidence as show that the plaintiff has no right to recover; but when he pleads payment with leave to give defalcation in evidence, he may give in evidence matter entitling him to recover against the plaintiff' under the defalcation act.
    Where the defendant paid money to the plaintiff, which both parties thought the plaintiff' was entitled to, but it afterwards turned out that the plaintiff was not entitled to it, held that interest ought not to be paid by the plaintiff till the defendant explained the mistake and demanded repayment.
    Where, in this state, a legacy is granted to. one, and afterwards over on the happening of a contingent event, the executor ought not to pay to the first legatee without security, if required to take security by the legatees over; and on action brought by the first legatee, the court would require security before execution issued.
    But if such payment be made with the consent of all parties concerned, the executors would not be liable to the legatees over.
    If a guardian pay to his ward a legacy bequeathed to him, then to others on a contingency, if that contingency happen, the guardian cannot recover it back as trustee for the legatees over; though the legatees themselves might recover it.
    Debt by Philip J. King and Charles Ji. Barnitz, administrators of Henry King, deceased, against Daniel Diehlmd Nicholas Diehl, on a single bill, dated, the 9th June, 1814, executed by the defendants for the sum of 481 pounds, 11 shillings, and 6 pence; payable to Henry King, Jr., or order, on the 1st September, 1814, and assigned by Henry King, Jr., to his father Henry King, the intestate. The defendant’pleaded, “ payment- with leave to give mistake, want of consideration, and special matters in evidence.” ■
    On the trial in the court below, the defendants, who were the guardians of Henry King, Jr., alleged, that the consideration of the single bill was a legacy bequeathed to the said Henry King, Jr., by the will of his grandfather Peter Diehl, made the 6th January, 1801. The bequest of this legacy was as follows: “ I also give and bequeath unto Henry King my grandson, (the issue of my daughter Elizabeth, deceased, who was intermarried with . Henry King,) and to his heirs and assigns, the sum of 1000 pounds, in real gold and silver money current in Pennsylvania, to be paid to him in 200 pounds yearly payments, the first payment whereof to be made in 1808, and from thence 200 pounds successively until the whole shall be fully paid; nevertheless, if the said H. King 
      shall die unmarried ánd without issue, that then, and in such case, the sum aforesaid so bequeathed, shall be equally divided to and , amongst all my children, share and share alike.”
    The executors named in this will were Peter Diehl and Jacob Diehl, two of the testator’s sons. The testator died in 1812. Henry-King, Jr., the legatee, transferred all his right and interest in the single bill, by an assignment under seal, in the.presence of two witnesses, on the 19th September, 1815, to his father, Henry King, the intestate. He was 21 years o'f age in the year 1814, and died in the year 1816 unmarried and without issue. () The defendants had given another obligation to Henry King, Jr., at the s.ame time they gave the one now in suit, payable on the 1st May, 1815; and together they amounted to the legacy of 1000 pounds. The other obligation was also assigned by Henry King, Jr., to the intestate; and payments were made by the defendants to the intestate from time to time, on account of these obligations to the amount of upwards of 2000 dollars.
    On the same day on which the single bills were given, namely, the 9th June, 1814, certain other instruments of writing were executed. 1. An agreement bdtween Henry King, Jr., and Nicholas, Jacob, and Daniel Diehl, executed by the said H. King, Jr., reciting that the testator, Peter Diehl, had bequeathed all his lands and mills to his said sons, Nicholas, Jacob, and Daniel, the said H. King, Jr., in consideration of the payment to him of 1000 pounds by the said Nicholas, Jacob, and Daniel Diehl, released all his claim to and shares in all messuage’s, plantations, and tracts of land, devised to them by the said Peter Diehl. 2. An acknowledgment by H King, Jr., under seal, that he had received of Nicholas and Daniel Diehl, his guardians, duly appointed by the last will of Peter Diehl, 1000 pounds in full satisfaction of all legacies, and of his share of the estaté real and personal of his late grandfather, Peter Diehl: and *a release in full to them as guardians. 3. An agreement, under seal, executed by H. King, Jr., and Jacob Diehl, purporting- to be made between the said H. King, Jr., and Jacob and Peter Diehl, executors of Peter Diehl, sen., that the executors might sell a messuage, tenement, and saw mill in York county, to pay Peter Diehl’s just debts: they to account to the said H. King, Jr., for the proportionate part of the balance left after the debts were paid. '.
    By the will of Peter Diehl, deceased, the testator created a fund for the payment of his debts, &c. viz: all his outstanding debts, several sums of money to be paid by his sons, (to whom he had devised particular parts of his real estate,) the proceeds of certain lands and- houses, which he ordered- to be sold by his executors, and all his other personal property: and he directed that if any surplus should remain after payment of his debts, &c., it should be equally divided among his four sons, Peter, Nicholas, Jacob, and Daniel. ■ Of the sums thus directed to be paid by his sons, there was a surplus after paying debts, &c. of 900 pounds: and as the testator left four sons and one daughter, and the said H. King, Jr., the child of another daughter, who died in his life time, the plaintiffs contended that he was entitled to one sixth of this 900 pounds; and that it formed, in part, a consideration for the compromise under which these single bills were given by the defendants.
    The defendants alleged, that thebills were given without consideration: that the payments to the intestate had been made by mistake: and claimed a verdict for the amount they had paid with interest.
    The plaintiffs, in their opening, having read the opinion of this court delivered on the former writ of error reversing the judgment of the court below, the defendants afterwards offered to read the charge of the President- of the Court of Common Pleas delivered on the first trial, which was filed of record in the court below. The defendants objected, but the court below allowed it to be read and the plaintiffs excepted.
    The court charged the jury upon several points presented to them by the plaintiffs and defendants. The matters contained in the charge, so far as they are material, appear in the errors now-assigned in this court, which were as follows:
    1. The court erred in admitting in-evidence the charge delivered by them upon the former trial.
    2. The court erred in instructing the jury, that no interest could be legally charged on the legacy given to Henry King, Jr., until the expiration of one year after the testator’s death.
    3. In instructing the jury, that the defendants had a right to claim from the plaintiffs, any money they could show was paid to Henry King in his life time through mistake, and without consideration; and that if the jury believed, that the note now in suit; and the one given at the same time, and for thé same sum, which the defendants gave to Henry King in his life time, were given for the £1000, then, as the legacy was not a lawful consideration for the notes, the whole money paid on both of them with the interest, could' and ought to be recovered back in this suit, by the verdict of the jury in favour of the defendants, and that law and justice should require it to be so done.
    
    4. In instructing the jury, that the sum of money charged by the will of Peter Diehl, on the lands thereby devised to his sons, and to be paid by them, was part of the testator’s personal estate, and, so far as not otherwise disposed of by his will, was bequeathed to his four sons by the will; after the debts were paid; and that his grandson, Henry King, Jr., would not be -entitled to any part thereof.
    
      5. The court also erred in instructing the jury, 'that, if money 1)6 paid by one-man to another, through a plain mistake, the person so paying it had a right by law to recover it back, whether the person receiving it did or did not know of the mistake, and although he thought he had a right to receive it.
    6. In instructing the jury, that the payment made by Nicholas and Daniel Diehl to Henry King, Jr’s., assignees after his decease, and with full knowledge of that fact, are not such acts as would prevent them from setting up the limitation over of the legacy as a defence against the notes in the assignee’s hands.
    7. In instructing the jury in the following terms, to wit: The answer of the plaintiff to the defence set up in this case is, that the notes were not given for the legacy alone, but the defendants, aware that Henry.-King, Jr’s., legacy would absolutely vest in. him on his marriage, and presuming on the probability of his marriage, knowing that he was entitled to a share of the estate of which Peter Diehl died intestate, and perceiving a controversy likely to arise with him on account of it, for the purpose of preventing all controversies which might arise, and to obtain his consent to a sale of the mill property for the payment of the debts of his grandfather, entered into agreement with him to accomplish those objects, gave these notes in full of all his claims upon the estate, and obtained his release of all demands. If you are satisfied, from the evidence in this cause, that this was the case, then your verdict ought to be in favour of the plaintiff, for the amount of this note, with the interest from the time it became due. If you are not satisfied, fronr the evidence, that this was the case, then your verdict ought to be in favour of the defendants, for such sum as is equal to the amount which has been overpaid to the intestate.
    8. And the court erred in instructing the jury, in answer to the second proposition of the plaintiff, in this particular; that the jury were not informed, that the circumstances relied upon by the plaintiff precluded the defendants from setting up as a defence against the payment of the notes, an alleged mistake, concerning a matter which appeared on the face of the will of Peter Diehl; but they were inforjned that such circumstances did not preclude the defendants from showing any mistake, if they could do it.
    
      Barnitz, for the plaintiffs in error.
    1. It was improper that the court below, should permit their former charge to be read to-the jury, when the judgment had been set aside by this court, for the errors in that very charge. It could have been read with no other view .than to influence the jury : and could only mislead them. It contained the judge’s statement of facts, as well as his opinion on matters of law. A verdict of a former jury, cannot be read in evidence, if the judgment has been arrested or reversed. In Shaeffer v. Kreitzer, 6 Binn. 430, it was determined, that upon an appeal from an award of arbitrators, the award cannot be read to the jury.
    
      2. .The court erred .in saying that interest was not due on the legacy till one year after the death of the testator. The act of 21st March, 1792, provides, that where no time is limited in any last will or testament,, for the payment of legacies, that then the executors shall have.the space of one-year to discharge them. But the act does not apply in this instance, because there is a time limited: and therefore the executor is not entitled to the delay of one year.
    S.The defendants were not entitled to recover of the- plaintiffs, any money paid by mistake, or without consideration, as the case stood at the trial, because this was not pleaded, nor had any notice been given by the defendants of such claim. The defalcation act of 1705, 1 Smith’s Laws, 49, sect. 1.,.authorises the’1 defendant “ to plead payment of all or. any part of the sum demanded,” and “ if it shall appear, that the plaintiff is overpaid, then they shall give in their verdict for-the defendant, and withal certify to the court how much;” but by the 10th section of the act of the 14th February, 1729 — 30, 1 Sm. Laws, 185, where there are mutual' debts there cannot be a set-off, unless on pleading the general issue notice be given of the particular sum or debt intended to be insisted on, and upon what account it became due. And in Boyd’s Executors v. Thompson’s Executors, 1 Sm. Laws, 42, it was decided, that the demand of the defendant, not having been pleaded nor notice given, it could not be admitted in consequence of the provisions oj the.act of 14th February, 1729 — 30. But interest was not recoverable by the defendants, under any plea or notice. Interest is not due on recovery of money paid by mistake, w.here neither fraud nor surprise can be imputed to either party. This was expressly decided in Jacobs y. Adams 1 Dali. 52, where money was recovered back from executors, who had received it under the authority of a will, afterwards set aside. So in Brown v. Campbell, 1 Serg. & Bawle, 176, it was held, that if the plaintiff’s money be improperly applied to the defendant’s use, the defendant is in no default till informed of this fact, and therefore, ought not to pay interest.
    5. The court erred in saying that H. King, Jun. was not entitled to his share of 90.0 pounds, being the amount of money chárg-ed on the lands beyond the debts and legacies, and not particularly disposed of.
    5. The court laid down the law too broadly. They should have stated the exceptions. Money voluntarily paid with full knowledge of all circumstances, or with the means of obtaining such knowledge, cannot be recovered back. 1 Esp.N.P. [Gould’s) part. 1. pa. 5. Money paid with a knowledge of facts but through ignorance of law, cannot be recovered back. lb. 192. 2 Com. Cont. 40. Chitt. on Bills, 250.
    6. This error was relinquished for the present.
    7. The court in their answer objected to in the assignment of this error, confused the jury by throwing the plaintiff’s reply, which consisted of many parts, into one, and telling the jury, that if they were satisfied of the whole, they would find for the plaintiffs; whereas if any of the grounds taken by the plaintiffs, were true, the verdict ought to have been for the plaintiffs. In Bailey v. Fair-play, 6 Binn. 455, this court held the charge of the court below to be, upon the whole, incorrect, though so far as the judge went, he was correct: because he stated only part of the law, and the jury were thus suffered to fall into an error, by which the defendants were injured. The instructions ought not to be given in such a manner as to mislead the jury.
    S. The jury ought to have been informed that the instruments executed pn the 9th June, 1814, showed a final settlement and compromise between the parties, of .all controversies, and precluded any allegation of mistake of right. In Bullen v. Ready, 2 Jltk. 607, Hardwicke, Lord Chancellor says, that if parties are entering into an agreement, and the very will, out of which the forfeiture arose, is lying before them and their counsel, while the draughts are preparing, the parties shall be supposed to be acquainted with the consequence of law as to this point, and shall not -be relieved, under a pretence of being surprised, with such strong circumstances attending it. So in Perkins v.. Gay, 3 Serg. & Rawle, 327, it was held, that where parties treat on the basis that the fact which is the subject of agreement is doubtful,- and the consequent risk each is to encounter, is taken into consideration, in the stipulations assented to, the contract will be valid, notwithstanding any mistake of one of the parties; provided theré be no concealment or unfair dealing by the opposite party, that would affect the other. There does not appear to have been any concealment or fraud in the arrangements of the 9th Juñe, 1814, -and, being a family settlement, for the purpose of terminating all disputes, the parties to it are concluded, and cannot now aver mistake or misapprehension.
    
      Cassa't and Hopkins, contra,
    premised, that Peter Diehl had four sons, and two daughters, one of whom, Elizabeth, was the mother of H. King, Jun., and died in her father’s life time: the other daughter, Catharine, survived the testator. The defendants, who were the guardians of H King, Jun., were in nature, of securities for him, that in case of his death unmarried, the money should he paid to the legatees over, namely the five children of Peter Diehl. Two fifths of this legacy, in that event, belonged to the defendants. When the defendants executed these single bills, they intended to pay H. King, Jr. only the interest, until he was married: and then he would have been entitled to them absolutely. But they were drawn payable absolutely, by a blunder of the scrivener. They then considered the errors assigned.
    1. The charge of the court below was not read by the defendants until the opinion of the Supreme Court reversing the judgment, had been read by the plaintiffs. The charge was in favour of the plaintiffs who recovered on the former trial. But we offered it in order to explain the opinion of the Supreme Court, when they reversed the first judgment, and the court admitted it with a direction to the jury, that the charge was not to be considered as establishing any fact. Suppose the whole case had been reported, could not the charge of the court be read, as well as the part containing the opinion of the Supreme Court?
    2. As to the time when the interest on the legacy should commence, the court charged too strongly in favour of the plaintiffs, because the interest of the testator was that the legacy of 1000 pounds should be paid at five equal annual instalments, without interest on any until the time of payment had-elapsed: whereas the charge was that the whole legacy bore interest from the end of one year after the testator’s death. But as the time’s of payment had all passed before the death of the testator, let it- be considered as a legacy payable at no fixed time, and then it is governed by the act of assembly, and is payable at the end of oue^year after the testator’s death. This is not a legacy to be paid out of’funds to be raised by the executors by the sale of land, and from personal property , and is not a legacy charged on land. % Johns. Cas. 300. Another objection under this head is, that the court charged that the money paid by mistake with the interest due thereon should be recovered back by the defendants. On the subject of interest our courts adopt a more liberal rule than the English. This action was commenced within two or three months after the money paid: and if the jury have allowed interest, it was a matter within their discretion. ■ The court will support a ver.dict, by any intendment it can be supported. 2 TVils. 2. In 4 Dali, 279, it is held, that interest should be allowed where one retains money of another against his will.
    
      3. Under our plea of payment, we were entitled to give in evidence monies overpaid, and to recover a verdict for that amount. Theaet for defalcation, passed in the year 1805, expressly authorises this course, and requires nothing more of the defendant than the plea of payment. Under the 23d rule of the court below, notice or specification is necessary, only where it is demanded by the plaintiff. This rule is that, “ where leave is given to alter a plea, or, under a general plea, to give the special matter, fraud, want of consideration, particular payments, or defalcation, in evidence, the alteration of tbe plea shall be made, and a specification-of the special matter, fraud, want of consideration, payment, or defalcation shall, if demanded, be furnished to the opposite party, or attorney, in one month after issue joined, or in some term preceding that in which the trial shall be: otherwise, no alteration shall be allowed, nor any evidence admitted of the special matter required to be specified.” It not only does not appear that any demand was made, but it does not appear that on the trial any objection was made' to the special matters offered by the defendants. As to the act of 1729 — 30, it is confined altogether to insolvent debtors: and it is plain from the rule of court, that it was not considered to embrace any other cases.
    
    4. As to the interest of-II King, Jr., in the surplus paid by the devisees of the- lands, beyond what would satisfy the debts and legacies, this is,a question of intention, arising on the will. .The testator intended to give his grandson, H King, Jr., 1000pounds, and no more.- All the residue of the perso.nal property was given to the testator’s four sons. The money which he ordered his sons to pay was made part of his personal property, and, therefore, all t.he surplus, whatever it might be, being personal property, passed to the four sons.
    5. The charge of the court-is-complained of, because it stated, that money paid by mistake could be recovered back, although the party to whom it was paid, thought he had a right to receive it. -Nothing can be more correct than this proposition. It is objected, that a mistake in law is no ground for recovering money back: this, however, is unreasonable, because a mistake in law has the same effect in misleading an innocent person, as a mistake in fact. Besides, the maxim ignorantia juris nemenem excusat, is applicable only to criminal Cases. In Farmer v. Jlrundel, 2 Bl. Rep. 825, De Gkev, C. J. says, when money is paid by one man to another, on a. mistake either of fact or of law, or by deceit, assump-sit for money had and received, will certainly lie: though an action will not lie to recover back money paid by one who wasbound in point of honour or conscience to pay another. To the same point are the following authorities: 2 Com. Cont. 35. 1 Salk. 22. 2 L. Ray. 1217. 2 B'l. Rep. 825. 3 Burr. 1354; Doug. 637. 2 Johns. 157. In this case the mistake of law-was an excusable one: for the court of Common Pleas decided that H. King, Jr. had an absolute property in this legacy,- though the Supreme Court after-terwards determined the contrary.
    ■ 6. Payments made to the assignee, after the. death of the assignor, cannot operate to deprive us of our redress. The assignee is in no better condition than the assignor. The plaintiff was no more than the donee of his son. It is alleged, that it was the duty of the de-fendánts to pay the assignee of II. King, Jr., and then resort to the administrators of H. King, Jr. But this is a circuity of action, to which it would be oppressive to compel the defendants to resort.
    7. It is not deni'ed that the opinion. of the court was right. If a more detailed charge were wished by the plaintiffs, it should have been asked for. As it was delivered, however, it presented the case of the plaintiffs in a strong point of view'. There was no consideration for this note if II. King, Jr. was entitled to this legacy only for life. The consideration was the payment of the legacy: but only 400 pounds of the 1000 was due. The legatee was not entitled to payment without giving.security to the legatees over.
    8. Then as to the alleged compromise, and the effect of the instruments executed on the 9th June, 1814, these were all left to the jury to decide upon, and they were told, that if they were satisfied on the subject, they should find for the plaintiffs.
    
      Buchanan, in reply.
    ' 1. We complain that the charge was read to the jury as evidence, and not by way of explaining the judgment of the Supreme Court. The opinion of the Supreme Court had not been read by the plaintiff as evidence, but to show the law. The object of the defendants in reading the charge was, to make an impression on the jury in respect to matters of fact, to induce them to believe that the sole consideration, of the single bills was the payment of the legacy. The cases cited from 6 Binney, are conclusive. As to reports of adjudged cases, they cannot be read to the jury as evidence.
    2. We contend, that the legacy was due immediately on the testator’s death. The-testator, supposing he should die in a short time, his grand son II. King, Jr. being then 8 years old, fixed for the payment of the first instalment the 1st May, 1808, when the" legatee would be between 15 and 16 years old, because money would then be peculiarly necessary for his education. The last payment would in that ease have become due just before the legatee came of age. But as the testator lived till H. King, Jr. was 21, the intent of the will would be best answered by the legacy’s becoming payable immediately on the testator’s death. At any rate, this legacy being charged on land, it carried interest.
    3. On this point there are five questions. 1. Can money paid under mistake of law be recovered back? 2. Can it be recovered under the pleadings in this cause ? 3. Can interest be recovered ? 4.Can money paid by mistake be recovered from the assignee of a bond? 5. If it can, are the defendants the proper persons to recover it?
    1. As to 400 pounds of the 1000 pounds legacy, the defendants were dealing in their own rights: because as two of the legatees over, they were entitled to two-fifths. There was no concealment or mistake of facts. The only question then is, whether a mistake in their legal rights can now be taken advantage of by them, to recover back the money paid. In this, ancient and modern authorities concur. Ignorance of the deed may excuse, but ignorance of the law excuseth not. Boot. & Stud. 79, 152j 251. If money be paid by one with full knowledge, (or with full means of knowledge in his power,) of all the circumstances, it cannot be recover-? ed back again on account of such payment having been made under an ignorance of the law. 2 Com. Cont. 39. The defendants, when they paid, were well aware of the fact that II. King, Jr. was dead: and if they mistook in the legal consequence, that his right to tbe legacy was then at an end, it is a mistake of which they took the risk, and from which they cannot now be relieved. 2. The real plaintiffs in this cause are the administrators, and the verdict and judgment are against them as administrators: they had therefore a right to reply plane administraverunt to an attempt to establish an overpayment, by which they would be rendered liable. If this judgment stands, the plaintiffs are estopped from alleging want of assets, without an opportunity to plead or show it. The rule of court supports our argument that we were entitled to notice: for the defendants should have informed the plaintiffs that they meant to give defalcation in evidence, and then it would have lain-on us to demand a specification of that defalcation. It is alleged that this defalcation was given in evidence without objection. But that is not the case. The payments which were the subjects of defalcation, were good evidence in another point of view. We gave them in evidence to support our demand, and then, without notice, the defendants in their address to the jury converted this evidence into a ground for recovering a sum of money against the plaintiffs. Besides, it was evidence for the defendants under their equitable defence. But an equitable defence under the plea of payment, is quite different from defalcation under the plea of payment. The former destroys the cause of action: the latter admits it. 3. Can interest be recovered back? The court charged that law and justice required the payment of interest, whereas this matter should have been left to the jury. In consequence of this charge, the jury gave interest from the time the money was paid. The most they could properly allow, was interest from the time when re-payment was demanded. 4. Can money paid by mistake to the assignee of a single bill be recovered? We contend that it cannot. It must be recollected, that it was a voluntary payment, and' one of the bills was given up. It is settled law, that if the obligor knowing of the assignment makes no objection, he is estopped from controverting the consideration of the bond. But the case of payment is much stronger. As the case stands before the court, the assignment is to be taken as made for a valuable consideration. 5. If the money be recoverable, are the defendants the proper persons to recover it ? The defendants were the guardians of IT. King, Jr., and had received this money from the executors of Peter Diehl. The money belongs to the five children of the testator:- what right then have the defendants to recover the whole of it, when their title extends only to two-fifths? But in truth, there was no right in any of the children. H. King, Jr. had a right to the possession of the principal during his life, and the bond to him was equal to payment. If a man accepts a bond for a legacy the legacy is extinct, 3 Bac. M. 106. Yelv. 38. Nay, H. King, Jr. had released the legacy on the 9th June, 1814, by an instrument under seal. Whether the executors might have demanded security before they made the payment is another question: they certainly were justified in making it voluntarily; and we apprehend they might have been compelled to pay it without security, because the testator did not not intend that security should be given.
    4. It was only the surplus of a certain fund, and not of the personal estate in general, which the testator gave to his four sons. The money charged on the lands devised to his sons was a different thing. There was no residuary bequest of the whole personal estate.
    5. The objection on this head is, that the charge is too general: but it is not necessary to examine it further, as the particular exception, which we say the court ought to have made, namely, that a mistake of the law does not excuse, has been already discussed.
    6. We say that the act of paying part to the assignee, is such an admission of the bond as estops the obligor from controverting it. It is full as strong as saying to the assignee, before the assignment, that the bond is good.
    7. Our reply consisted of several matters, either of which was decisive. But the court charged, that if the jury believed we had made good all those matters, they should find for us. This was error, because the jury were led to think they might find against us, though they were in our favour on some decisive point.
    8. H. King, Jr. was 21 in March, 1814. The settlement with his guardians was made on the 9th June, 1814. At that time he was entitled to one-sixth of 900 pounds, the surplus money before mentioned, if our construction of the will be right: and he was entitled to one-sixth of some land purchased by Peter Diehl, after the making of the will, of which he died intestate. Under these circumstances, he executed releases on thé 9th June, 1814, and received the single bills of his guardians for certain money, for part of which this .suit was brought The release was not only of the legacy, but of other rights. The whole transaction was manifestly a compromise and family settlement. It was evident that the legacy of 1000 pounds was not the sole consideration of the single bills given by the defendants: and there being other considerations moving to the settlement, the parties were concluded from unrav-elling it, and the court ought so to have charged.
    
      
      (a) The first thirteen sections of this act of 14th February, 1729 — 30, were repeated by the 20th> section of the Insolvent Act,- passed the 26th March, 1814. Famph-222.
    
   The opinion of the court was delivered by

Tilghman, C; J.

This is an action on a single bill, dated the 9th June, 1814, given by the defendants, Darnel and Nicholas Diehl,for the sum of £ 4814 Is. 6d., payable to Henry King, Jr., or order, on the 1st September, 1814, with interest from the 1st May, 1814. Henry King, J.r. assigned this obligation to his father, Henry King, the intestate. It was alleged by the defendants that the consideration of the single bill, was, legacy bequeathed to the said H. King, Jr., by the will of his grandfather, Peter Diehl, dated the 6th January, 1801. The bequest of this legacy was in the words following: “I also give and bequeath unto Henry King, my grandson (the issue of my daughter Elizabeth, deceased, who was intermarried with Henry King,) and to his heirs and assigns, the sum of one thousand pounds, in real gold and silver money current in Pennsylvania, to be paid to him in two hundred pounds yearly payments, the first payment whereof to be made in 1808, and from thence two hundred pounds successively, until the whole shall be fully paid; nevertheless if the said H. King shall die unmarried and without issue, that then and in such, case, the sum aforesaid so bequeathed shall be equally divided to and among all my children, share and share alike.” Henry King, Jr., the legatee, died unmarried and without issue, after he had assigned the saidsingle bill to his father, without having received payment of any part of the said legacy. He was 21 years of age in the year 1814, and died in 1816. The testator died in 1812. The defendants gave other obligations to H. King, Jr., which he also assigned to his father, Henry, to whom considerable payments were made by the defendants after the death of his son. The bonds given by the defendants were to the amount of the said legacy, of 1000 pounds. On the trial of the cause in the court below, exceptions were taken by the counsel for the plaintiffs to the opinion of the court on several points, which I shall proceed to consider.

1. This cause was tried once before, and the judgment of the Court of Common Pleas was reversed by this court on a writ of error." On the last trial, the opinion of this court delivered on the reversal of the first judgment, was read to .the jury, after which the counsel for the plaintiff offered to read the charge of the President of the Court of Common Pleas, on the first trial, which was placed on the record. To this the counsel for the defendant objected, but the court permitted the charge to be read. I can perceive no error in the admission of this charge. As the judgment was reversed for error in the charge, there was no impropriety in permitting the jury to have a full understanding of it; especially as the court had the caution to tell the jury, that they were not to considerthe charge as evidence of any fact which was stated in it. This- is very different from the case eited by the plaintiff’s counsel, where it was decided by this court, that the report of referees which had been appealed from, could not be read in evidence to the jury by. the party in whose favour the report was, because, after the entry of the appeal, the cause was taken up anew, without any regard to the former proceedings, and therefore the judgment ought not to be influenced by the opinion of the referees. So likewise, this case is quite different from another cited by the plaintiff’s -counsel,in which it was decided, that a verdict which had been.set aside by the court, could not be read in evidence to the jury on the second trial. There would be a manifest absurdity in offering that as evidence which had been annulled by the court. These cases would have applied, if in the present instance, the charge of the court on the first trial, had been admitted as evidence of the law or fact. But, as I understand it, the opinion of this court which referred to the charge having been read, the charge itself was afterwards introduced merely as an appendage to the opinion, and in order to enable the jury more fully to comprehend it.

2. The second error assigned, is in the opinion of the court, that interest was not due on the legacy of H. King, Jr., until the end of one year from the death of the testator. This legacy was made payable in yearly instalments of 200 pounds each, the first of which was in the year 1808, so that the last would have been in 1812. But it so happened, that the testator survived all the periods of payment, so that it was impossible the legacy should be paid at the time appointed by the will. The most reasonable construction, under these circumstances, is, that it should be considered as a legacy payable generally, without appointing any time for payment; in which case it would have been payable at the end of a year from the death of the testator. Consequently it did not bear interest until that time, and the opinion of the Court of Common Pleas was right.

3. The third error assigned, is in the court’s opinion, that Henry King, Jr., was not entitled to any part of the surplus of the testator’s personal estate, which remained after paying all the debts and legacies. This is purely a question of intention. The testator created a fund for payment of his debts, &c. viz: all his outstanding debts, several sums of money to be paid by his sons, to whom he had devised particular parts of his real estate, the proceeds of certain lands and houses which he ordered .to be sold by his executors, and all his other personal properly; and he directed that if any surplus should remain after payment of his debts, &c. it should be equally divided among his four sons, Peter, Nicholas, Jacob, and Daniel. There is nothing given to his grandson, H. King, J., except the legacy of £1000; and his intention appears clear, that all his personal property of every kind which remained after payment of his debts, &c. should go to the four sons whom he made residuary legatees of his personal estate. I agree in opinion therefore, with the Court of Common Pleas, that H. King, Jr., was entitled to no more than his legacy of £1000.

4. 5, 6. The fourth, fifth, and sixth errors, will be most conveniently considered as one subject. After the death of Henry King, Jr., several payments were made by the defendants to his assignee, Henry King, amounting in the whole to upwards of @2000. The defendants pleaded payment, with leave to give mistake, want of consideration, and special matters in evidence. The plaintiffs did not call for a specification of the special matters, as they might have done by the rule of court, and in this manner the cause went to trial. On the trial, the defendants in the first place gave evidence of want of consideration, by showing that the single bill on which the action was founded, was given on account of the legacy of £1000 bequeathed to Henry King, Jr., by his grandfather, and that by the death of the legatee, the principal of the legacy went over to other persons. All this was right enough. But the defendants did not stop there. They gave evidence also, of all the payments made by them to II. King the father, after the death of the son, and contended that under our defalcation act, they were entitled to recover of the plaintiff the several sums which they had paid, with interest from the time of payment, and in this the court agreed with them. As this cause will go to another trial, I shall, in order to free it from all embarrassment, consider three questions which appear to be material. First, Under the pleadings in this case, could the defendants recover any thing of the plaintiffs under our defalcation act ? Secondly, Supposing they could, would they be entitled to interest on each of the payments made by them, from the time of payment ? Thirdly, Under all the circumstances of this case, are the defendants entitled to recover any thing of the plaintiffs? First, then, as to defalcation. When the defendant pleads payment, with leave to give want of consideration, and the special matters in evidence, he can only give such matters in evidence as show, that the plaintiff has no right to recover. He may defeat the plaintiff’s action, but there must stop. He can recover nothing against the plaintiff. But when he pleads payment, with leave to give defalcation in evidence, he may give evidence of matter which entitles him to a recovery against the plaintiff. The plaintiff, if he will, has a right under the rules of court, to call for a specification of the defalcation; but if he does not call for it in due time, the defendant is left at large to give evidence of any matter which may be defalked under our act of assembly. This I think is the fair construction of the rule of court which has been shown to us; and therefore the defendant had no right under the pleadings in this action, to go into evidence which might entitle him to a recovery against the plaintiff. But supposing he could have gone into such evidence, was the court right in charging that the defendants were entitled to interest from the time of payment? I think that matter should have been left to the jury. In liquidated debts, on bond, note, &c. interest may be said to be matter of law. But the present case, was very peculiar. The defendants made a voluntary payment to the plaintiffs, and both parties thought that the payment was proper. Both supposed, that the thousand pounds legacy was the absolute property of Henry King, Jr. In this they were mistaken. On the death of H. King, Jr., the legacy went over to the children of the testator. But the plaintiffs could not be blamed for receiving what they thought was their right, and what the defendants were willing to pay. Until the defendants explained the mistake and demanded repayment, it cannot be said that the plaintiffs unjustly withheld their money, and should therefore be subject to interest. In Brown v. Campbell, I Serg. & Rawle, 176, this court was of opinion, that where a man received the money of another, supposing it to be his own, interest should not be charged against him until the money were demanded and payment refused by him. The present is a case, which, under all its circumstances should have been left to the jury, and the court was wrong in charging as matter of law, that interest was recoverable from the time of payment. But were the defendants entitled to recover in any form of action, the money which they thus voluntarily paid to the plaintiffs. The legacy of -£1000 bequeathed to H. King, Jr., belonged to him, at all events, during his life. Perhaps the executors of the testator might have insisted, that he should give security for payment to the legatees over, in case of his death, unmarried, and without issue. But I do not know that they were obliged to do so. In such a case, chancery would see that security was given, on a bill filed by the legatees over, and with us, who have no chancery, perhaps, on notice from such legatees to the executor not to pay without security, it might be his duty to act accordingly. I think, that on receiving such notice, the executors ought to put the legatee for life to his action, and the court would take care that no execution should'issue till security given. But in the. present case, so far from giving notice, the parties concerned thought that H. King, Jr., had an absolute property in the legacy. The executors, therefore, who consented that the money should be paid to Henry King, Jr., would not be liable to an action by the children of Peter Diehl, whose remedy must be sought against II. King, Jr., or his assignee who received the money. I take for granted that II King, the father, received an assignment of this bond from his son, as a gift, without valuable consideration. But although the executors would not be liable to an action, I will not say whether they might not have supported an action to recover the money paid on account of the legacy as trustees for the children of Peter Diehl. That, however, is not the present case, for the defendants are not the executors of Peter Diehl, but the guardians of II King, Jr. Now, what right have they to this money? It belongs not to them, but to the children of Peter Diehl. The executors of Peter Diehl came to an agree.ment with Henry King, Jr., in consequence of which the defendants gave their bonds to King, and he gave the executors a release for his legacy of J21000. The defendants paid part of their bonds, in which they were justified. They are not responsible to the children of Peter Diehl for the money so paid, because it was never in their hands as trustees for those children. But the estate of Henry King, the father, is accountable, supposing that he received the assignment of the bonds as a gift from his son. There is no reason therefore, why the defendants should be permitted to recover back the money which they paid voluntarily and lawfully. Let it be recovered by the children of the testator, to whom it belongs. Upon the whole, I am of opinion that the judgment should be reversed, and a venire de novo awarded.  