
    [Philadelphia, February 5, 1838.]
    JONES and Others against HARTLEY and Others.
    IN ERROR.
    1. Where a cause had been in the Supreme Court on a writ of error, and the judgment was reversed on the ground of error in the rejection of evidence, and the cause was again tried below, and a verdict and judgment passed for the same party, it was held, on a second writ of error, not to be sufficient ground of reversal, that it did not appear by the record, that any writ issued out of the Court below, under the signature of the prothonotary, and seal of the Court, and that the sheriff had made return of any writ between the parties; nor that the writ (if any) issued without a precipe signed by counsel or party ; nor that a declaration was filed after the verdict without the consent of or notice to the counsel of the defendants ; and that the cause was tried in the Court below without an issue joined between the parties.
    2. Where, in ejectment by persons claiming as heirs of the person last seized, the defendants pleaded jointly, and defended on the ground of a will, which, if substantiated, defeated the claim of the plaintiffs altogether, and the defendants showed no separate defence or title, nor asked for a separate trial, it was held, that they could not assign for error that the plaintiffs had joined in the action different persons, in possession of different properties, in different situations, and holding under different titles, and that a general verdict and judgment were entered against all the defendants.
    3. In ejectment by persons claiming as heirs, against others claiming as devisees under a will, which was revoked by a general conveyance of the testator’s land ; where the question was, whether there was a republication of the particular will, after the date of a reconveyance of the same land, and a great deal of conflicting testimony was given, and some evidence was given that another will was made after the reconveyance, it was held not to be error to charge the jury, “that it sometimes occurs, that a jury are obliged to cut a knot they cannot untie : this may be when the facts are nearly in equipoise; and there is no other mode of settling a controversy than by a verdict, &c.; that the burthen of proof of a republication was on the party asserting it; and ' that if the jury do not see their way clear, the intestate act may relieve them, by being allowed to go into operation;” and that “ it has been urged by the plaintiff’s counsel, that as it appears from the testimony of Mr. B., that the testator intended at one time to make a new will, so it be inferred from various matters in that he the ^reconveyance, &c., that the jury would decide for themselves, in regard to these matters as in to other that they were entitled to consideration; and that if the jury, adopted the views urged by the plaintiff’s counsel on this subject, there was an end to the cause;” the judge then calling the attention of the jury to the reply which the defendant’s counsel had made on this point and having recapitulated their argument, told the jury it was for them to determine between the
    Writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of ejectment, brought in that Court by David Hartley and Sarah Ann his wife, in her right, Jane Pennel and Edward Pennel, a minor, by Nathan R. Potts, his guardian, and John C. Jones, against Isaac H. Jones, Peter Weyant, Jacob Moore, and Isaac Rush, to recover divers messuages and lots of lands, situate in the city and county of Philadelphia.
    The facts upon which the controversy between the parties arose, were principally as follows:
    Isaac Jones died on the 29th day of December, 1829, seized of the premises in question, and leaving two sons, John C. Jones and Isaac H. Jones; and four grand-children, the children of a deceased daughter, viz. Isaac Rush, Edward Pennell, Sarah Ann Pennell, who married David Hartley, and Jane Pennell. In the year 1807 lie executed a will bearing date the 15th day of January, in that year, by which he devised the principal part of his estate to his son Isaac H. Jones and his children, and to his grandson Isaac Rush; and reciting that his son John C. Jones had already received from him a full share, or more, of his moneys and estate, and had squandered it away, he bequeathed to him the sum of five dollars, cash, &c.
    On the 13th day of March, 1826, Isaac Jones, the testator, executed a conveyance to Thomas R. Tunis in fee, for the consideration of $10,000, expressed in the deed, of all his real estate situate in the city and county of Philadelphia. This deed was absolute on its face.
    On the 19th day of May, 1828, Thomas R. Tunis and wife executed a reconveyance of the same property to Isaac Jones in fee.
    The will of 1807 was proved in the office of the register for the probate of wills for. the city and county of Philadelphia, on the 1st day of June, 1830. The executors therein named having renounced, letters of administration were granted to John C. Jones, and Isaac H. Jones. John C. -Jones appealed from the probate of the will; but the appeal appears to have been withdrawn in December, 1830.
    *This ejectment was brought in the District Court to September term, 1833. The sheriff returned “summoned,” as to Jones, Weyant and Moore, and nil habet as to Rush; and found twenty other persons in possession as terretenants, who, under the provisions of the act of assembly, were added as defendants. One of these terre-tenants was a Dr. Matthews.' On the trial of the case, before Judge Stroud, in January, 1836, the defendant’s counsel offered evidence to prove a republication by parol of the will of 1807, between the date of the reconveyance by Jones and the death of the testator; which evidence the learned judge refused to admit. The defendant’s counsel then offered to prove by parol, that the conveyance to Tunis was not absolute, but was in fact made in part to raise a certain sum of money to pay the debts of Isaac Jones, and after the accomplishment of that object, to reconvey to the grantor. This evidence also was overruled, and a verdict passed for the plaintiffs.
    A writ of error was taken out; and after argument, the Supreme Court decided that the republication of the will might be proved by parol; but that two witnesses were necessary to the proof, and that the identity of the instrument must be established ; but that it was not necessary that the will should be actually present at the time of replication, nor that the subscribing witnesses should prove the repuhlication; and that it was not necessary, that the declaration should be made at the same time to the witnesses. It was also held, that the parol evidence offered to prove that the conveyance to Tunis was in trust for the grantor, was not admissible. (See 2- Wharton’s Reports, 103.)
    A venire facias de novo having been awarded, the cause came on again for trial, before Pettit, president, on the 24th of February, 1837, when the plaintiff’s counsel gave in evidence the conveyance to Tunis, and the reconveyance, and proved that the plaintiffs were the descendants of Isaac Jones.
    The defendant’s counsel then gave in evidence the will executed in 1807, the renunciation of the executors, and the letters of administration granted to John C. Jones and Isaac II. Jones; and produced several witnesses to prove declarations of the testator relating, as was alleged, to the will of 1807, with the view of showing a republication of it after the reconveyance by Tunis.
    Witnesses were then produced on the part of the plaintiffs, to rebut this evidence, and to prove, among other things, that a new will was made by Isaac Jones, after the reconveyance by Tunis. It is not material to this report to state further the evidence of these witnesses, excepting the following testimony of one Nathan Bunker.
    “ I knew old Isaac Jones: some short time before his death I had *a conversation with him about making his will. It was between the loan of $20,000 from an insurance of which I was a director, and his death. • lie called on me, and stated that he had solicited Thomas R. Tunis to act as executor to a will he was about to- make; that Mr. Tunis consented, on condition that I should be with him; after some delay I consented to actwith Mr. Tunis as executor. I am unable to call to my recollection all that he said; he spoke much of his intentions; he said what disposition he intended to make; he said he was an old man, and desired to have his worldly affairs arranged, and consulted me about it. I recollect, too, his referring to a young man, a cooper, who was then working for us as a grandson. He spoke of him with sympathetic feeling, and perhaps made some inquiry as to his habits ; as far as I know it was favourable ; I think the young man was an apprentice, but am not certain. He spoke of his previous misfortunes, his paying large sums for his son John, the one at the salt business up town, a long while before. His general views consisted with my notions of equity.' I told him I would not act on any other will. He said he had consulted Thomas R.‘ Tunis, whose views corresponded with mine on that point. I never saw the old gentleman afterwards; he said then he would make his arrangements accordingly. When I heard of his death, I was under the impression he had made a will, and that I was an executor, but heard nothing of it; never was called to act.”
    The learned judge, in his charge to the jury, after mentioning the circumstances attending the conveyance, and the reconveyance, stated, that by the conveyance of 1826, the will of 1807 was revoked, and that to give it validity again, it was necessary to prove that it was republished by the testator between the 19th of May, 1828, and the day of his death. He then stated the law as it was laid down by Judge Sergeant on the writ of error in this case as reported in 2d Wharton’s Rep. 110. He then remarked in substance “ that it sometimes occurs that a jury are obliged to cut a knot which they cannot untie. This may be, when the facts are nearly in equipoise, and there is no other mode of settling a controversy. But perhaps a contest about the republication of a revoked will does not present such a case. The burthen of proof is upon the party asserting the republication. If the evidence be of an inconclusive character; if the truth be involved in doubt and obscurity; if the jury do not see their way clearly and satisfactorily, the law of the land furnishes a rule for the government of all who are interested: the intestate act, which has been deemed by experienced judges, (see 16 Serg. & Rawle, 87,) as making, in ordinary cases, an equal and just distribution of estates of deceased persons, may then relieve the jury by being allowed to go into operation. The language of the Supreme Court is as follows: £ The evidence to establish a republieation ought *to be clear and satisfactory to establish the intention to republish, as well as the identity of the writing referred to.’ ”
    The judge then summed ujd the evidence, and recapitulated some of the main arguments of the counsel on both sides.
    In the course of his remarks on this part of the case, he said in substance as follows: “It has been argued by the plaintiff’s counsel, that as it appears from Mr. Bunker’s testimony, that Isaac Jones intended at one time to make a new will, so it may be inferred from various matters in evidence that he did so after the reconveyance by Mr. Tunis; and that it was destroyed or lost without the consent or agency of the maker of it, and that he, therefore, died under the impression that such a new will existed, and that the will of 1807 was fraudulently preserved and produced on the part of the defendants. The judge referred to several parts of the testimony on which an effort had been made to sustain the argument. He told the jury that they would decide for themselves in these matters, as in regard to the other facts of the case ;• he- said he thought they were entitled to consideration; -and if the jury adopted the views urged by the plaintiff’s counsel upon this subject, there was an end of the cause.”
    The judge then called the attention of the jury to the reply which the defendant’s counsel had made on this point; recapitulated their argument, and told -the jury it was for them to determine between the parties.
    The judge also said that changes in the estate of Mr. Jones’s property and of his family from 1807 till the period of his death, had been commented on by the counsel on both sides, in aid of their causes respectively. The judge thought them as the counsel had alleged them to- be, proper for the consideration of the jury, in connection with the rest of the cause, and that it was for the jury to decide in relation to them.
    Whereupon, the counsel for the defendant excepted to the charge of the judge.
    The judge remarked, that as he was- not aware he had charged upon the law, except in exact obedience to the directions of the Supreme Court, whose opinion he had read to the jury, he requested the exception or exceptions to be stated:
    Whereupon, the counsel for the defendant stated two exceptions.
    
      “ First. To so much of the charge as related to- the doubt and *obscurity, and the intestate law, and to all that the judge said as to the duty and power of the jury on that head.
    Second. So much of the charge as related to the argument ■ of the plaintiff’s counsel concerning the making by Isaac Jones of a new will after his conversation with Mr. Bunker, and the destruction or loss of such will; and to the judge’s stating to the jury that he thought that the parts of the testimony on which an effort had been made to sustain this argument were entitled to consideration; and that if the jury adopt the views urged by the plaintiff’s counsel upon this subject, there would be an end to the cause.”
    The counsel also said, that while they stated th.ese two exceptions under the request of the judge, they claimed and reserved the right to make any other and further exception to the whole or any part of the said charge.
    The jury found for the plaintiffs, and the defendant took a writ of error, and filed the following assignments of error.
    “ 1. That it does not appear that any writ issued out of the Court below, under the signature of the prothonotary and seal of - said Court.
    2. That it does not appear (except by certain docket entries returned with the record) that the sheriff df*the said city and county made a return of any writ between said parties.
    3. That the writ (if any) issued in the Court below without a precipe, signed by the counsel or party.
    4. That a declaration was filed after the verdict in the above case without the consent of or notice to, the counsel of the said plaintiffs in error.
    5. That the cause was tried in the Court below without an issue joined between the parties.
    6. That a verdict was had and a judgment thereon entered, against Caleb B. Matthews, although he never appeared in the said Court, or joined issue with the said plaintiffs below.
    7. That the said action is improperly brought — in this that the said defendants in error have joined therein different persons, in possession of different properties, in -different situations, and holding under different titles, in the same writ.
    8. That the verdict and -judgment thereon are irregular and illegal — in this that a general verdict and judgment were entered in the above suit against different persons, in possession of different properties, in different situations, and holding under different titles.
    *9. That the learned judge erred in charging the jury that ‘It sometimes occurs that a jury are obliged to cut' a knot they cannot untie; this may be, when the facts are nearly in equipoise, and there is no other mode of settling a controversy than by a verdict; but perhaps a contest about the republication of a revoked will does not present such a case. The burthen of proof is upon the party asserting the republication. If the evidence is of an inconclusive character; if the truth be involved in doubt and obscurity; if the jury do not see their way clearly and satisfactorily, the law of the land furnishes a rule for the government of all who are interested. The intestate act, which has been deemed by experienced judges (16 Serg. & Rawle, 87,) as making in ordinary cases an equal and just distribution of the estate of deceased persons may then relieve the jury, by being allowred to go into operation.’
    10. The learned judge erred in charging the jury: ‘It has been argued by the plaintiffs’ counsel that as it appears by Mr. Bunker’s testimony, that Isaac Jones intended at one time to make a new will so it may be inferred from various matters in evidence that he did so after the reconveyance by Mr. Tunis, and that was destroyed or lost without the consent or agency of the maker of it, and that he therefore died under the impression that such a new will existed, and that the will of 1807 was fraudulently preserved and produced. That the jury would - decide for themselves in regard to these matters, as in regard to the other facts of the cause. That they were entitled to consideration; and that if the jury adopted the views urged by the plaintiffs’ counsel upon this subject, there was an end of the cause.”
    Mr. St. Gr. Campbell, for the plaintiffs in error, did not insist on the first five assignments of error.
    On the 6th error he argued, that the record did not show an appearance by or for Dr. Matthews; and therefore, that there was a mistrial.
    The 7th error was given up.
    On the 8th error, he contended, that the verdict and judgment should have been entered against the several defendants according to their respective interests; and upon this point cited Duer v. Boyd, (1 Serg. & Rawle, 211); White v. Pickering, (12 Serg. & Rawle, 435); Jackson v. Hazen, (2 Johns. Rep. 438); Jackson v. Woods, (5 Johns. Rep. 278); Jackson v. Scovill, (5 Wendell, 96); Jackson v. Andrews, (7 Wendell, 157); Jackson v. Lyons, (18 Johns. 398); Bayard v. Colefax, (4 Wash. C. C. R. 38); Seward v. Jackson, (8 Cowen, 426); Doe v. Butler, (3 Wendell, 149).
    On the 10th error, he cited, Whitehill v. Wilson, (3 Penn. Rep. *405); that it is erroneous to leave a fact to the jury, without some evidence of it.
    Mr. Rawle, on the same side,
    cited Denton v. Noyes, (6 Johns. Rep. 296); Campbell v. Kent, (3 Penn. Rep. 72); Compher v. Anawalt, (2 Watts, 493); Lyon v. Waldron, (13 Serg. & Rawle, 164,) in reference to the 6th error.
    Mr. C. Ingersoll,
    
    (with whom was Mr. Budd,) was told by the Court, that he need not speak to any of the exceptions except the 10th; on which point he referred to certain passages of the testimony given on the trial to prove that there was sufficient evidence of a new will to go to the jury.
    Mr. Rawle in reply observed,
    that whatever might be his own opinion of the regularity of a judgment entered in a case, the record of which showed neither precipe nor writ under the seal of the Court, and did not account for their absence, defects which it appeared to him were not cured by appearance, or of sweeping into one ejectment nine distinct pieces of land, lying in different places, and held under different titles by different persons, a proceeding unprecedented even under the old form of ejectment, and which he thought in direct opposition both to the letter and the spirit of the act of the twenty-first of March, 1806 ; yet his reluctance to press points upon which the Court appeared to have formed a decided opinion, would prevent him from arguing the errors assigned on the record which relates to these matters.
    He contended, however, that if a joint action of ejectmentcould be maintained against several defendants holding several properties, by several possessions, the judgment must be entered against each, in respect of the land of which he is in possession, and that a joint judgment is erroneous. As to what was the nature of the possession in this case the record furnishes no light. The only evidence of a return, is to be found in the docket entries, from which the 'absurd inference must be drawn, that all the twenty-five defendants were jointly in possession of each and every piece of property for which the ejectment was brought. But that these separate properties were the subjects of separate possession, is proved by the agreement of counsel of the 18th of February, 1837. It is thus clear, that Ridgway and the other defendants named in the agreement, held by separate possessions, and if so, the other defendants must have held in the same manner ; at least their possessions must have been distinct from those of Ridgway and others. Nevertheless, a general judgment has been entered, which extends to all the property for which the ejectment.was brought, except that in possession of the commissioners of the public schools, a description of which was placed upon the record and judgment entered in their favour accordingly. It is true, that by the agreement of counsel, judgment is entered in favour *of Ridgway and others, “ and lands and tenements owned them or in their sion yet those lands and tenements are not described, nor in any manner discriminated from the general mass for which the ejectment is brought. The consequence is, that although these individuals are exempted from responsibility for mesne profits and for costs, the plaintiffs have recovered all the lands and tenements embraced by their writ, except those belonging to the public schools. The irregularity of such a judgment is conclusively proved by the cases of Jackson ex dem. Murray v. Haven, (2 Johns. R. 438); Jackson ex dem. Haines v. Woods, (5 Johns. R. 278); Lessee of Bayard v. Colefax, (4 Wash. C. C. R. 38).
    The judgment against Dr. Matthews is clearly wrong, for he never appeared; and when a defendant makes default in appearance the mode of obtaining judgment is that pointed out in the act of assembly, and not by verdict. If, as is alleged, Mr. Dallas appeared for him, and did so without authority, perhaps the remedy would be elsewhere; though the power of an attorney to bind Ins assumed client without authority, seems to have been a good deal limited by the cases of Denton v. Noyes, (6 Johns. R. 296); Campbell v. Kent, (3 Penn. Rep. 72); Compher v. Anawalt, (2 Watts, 493). It is said that in Pennsylvania, an appearance is effected by an attorney writing Ms name on the docket opposite that of the defendant. This practice, however', seems to have been in some degree restrained by the case of Lyon v. Waldron, (13 Serg. & Rawle, 164). But it never has been said or pretended, that an appearance is effected by even an attorney’s writing the name of the defendant on the margin of the docket. Now the record before the court shows nothing more than the single word “Matthews,” written on the margin of the docket. Who wrote it ? No one knows. Certainly not Mr. Dallas nor any one by Ms authority, nor the prothonotary, nor any of Ms clerks, so far as can be ascertained. For what purpose was it written ? If as an appearance, by whom ? Certainly not by Dr. Matthews in propria persona, for no one ever heard of such an appearance being so entered. It is not pretended that Ms name was written by Mmself; and if any one else wrote it, without his authority, it is not an appearance in propria persona. If it be said, it was an appearance by attorney, the question arises by what attorney ? The name is not connected with that of Mr. Dallas; it stands upon the docket independent and insolated, and has no more to do with that gentleman than it has with the other three attorneys whose names are on the record. If an attorney enters an appearance for a defendant without authority, he is liable in damages; but to which of the four attorneys is Dr. Matthews to look for redress ? Even under the loose practice of Pennsylvania, what appears on this record cannot be called an appearance for Dr. Matthews, in consequence of which he is to lose "the land for wMch he has paid, without an opportunity of showing that the plaintiffs who seek to deprive him of it, have already received the price of it.
    *Two points remain to be noticed, both of which are in the charge. The will had been technically revoked by a conveyance and reconveyance of the lands devised (Hartley v. Jones, 2 Whart. 103), and the question was whether it had been republished. The fact of republication had been proved by several witnesses, and was not contradicted. The judge mingled this question with that of an alleged suppression of a subsequent will, and then charged as is stated in the ninth specification of error. The jury were in effect told that they were not bound to solve difficulties, but that where they arise, they may save themselves trouble by deciding against the will. Juries are sworn to render a true verdict according to the evidence; and ■ the judge who instructs them that they may relieve themselves from the trouble of weighing evidence, by adopting the notion that the intestate law makes a better will for a man than he can make for Mmself, errs as much as Tie who instructs them that they may toss up for their verdict.
    The tenth specification of error, he contended, could not be overruled without overturning all that had heretofore been considered as law. To leave it to a jury to infer a fact without any such evidence as the law recognises as competent to the establishment of such fact, is error. Whitehall v. Wilson, (8 Penn. Rep. 405). Such is the error now complained of. The theory of the counsel of the plaintiffs below (as he has appropriately termed it) which was submitted by the judge to the jury, consisted of two propositions. 1st. That Isaac Jones had actually made another will, after that of 1807. 2d That this subsequent will was lost or destroyed without the agency or consent of the maker, and the former will fraudulently preserved and set up, It ought to be conceded that a fraud of so atrocious a character, is not to be presumed. Still Jess should the existence of a will be first presumed in order to let in a presumption that it had been fraudulently suppressed. Spoliation of a will is never to be presumed. Clark v. Morton, (5 Rawle, 243). But before there is room even for a presumption of spoliation, the existence of a will must be proved by competent evidence. The defendants below set out with a will regularly executed in 1807, and duly proved, which is something. Miller v. Carothers, (6 Serg. & Rawle, 215). And not only this, but they have the solemn recognition of this instrument as the will of his father, by John C. Jones, the principal plaintiff. It is said that this will has been annulled by a subsequent one. None has been produced; and no witness has ever seen a subsequent will. What evidence does the law consider insufficient for this purpose ? A will cannot be revoked by parol. Boudinot v. Bradford, (2 Yeates, 170); Lawson v. Morrison, (2 Dall. 289). Nor is the change in the condition of the testator’s estate, a revocation. Wogan v. Small, (11 Serg. & Rawle, 141). Nor is the making a second will, when the first is found in the testator’s possession, and the second cannot he found, a revocation of the first. Lawson v. Morrison, (2 Dall. *286). Declarations by devisees tending to overthrow a will are not admissible; aliter when made by a sole devisee. Bovard v. Wallace, (4 Serg. & Rawle, 499). So where a man retains a will which he has had an opportunity to revoke, it is a strong presumption that he means it to stand ; even where originally obtained by fraud. Irish v. Smith, (8 Serg. & Rawle, 578). But in the case of Clark v. Morton, (5 Rawle, 235,) the whole law on this subject is laid down, and the doctrine contended for on behalf of the present plaintiffs in error, carried much further than the circumstances of this case require. A case analogous to this, is hypothetically put by the judge who delivered the opinion of the Court in page 243, and defined in strong colours to show the alarming consequences which might flow from permitting the declarations of a testator, that he had made a subsequent will, to revoke an earlier one which had been proved. The law being thus clear, that to establish the existence of an alleged will, revoking a former one, the declarations of the testator and of devisees are incompetent evidence in the absence of the corpus of the alleged will, or of evidence that it has been seen by witnesses, no matter what imputations of fraud may be cast on those who oppose it; the next inquiry is, what evidence does this record exhibit ? The only evidence on the subject consists of declarations of the loosest kind by Isaac Jones the testator, and Isaac H. Jones, one of the devisees in the will of 1807. The declarations of the former were to Nathan Bunker, that he intended to make another will; to John Nutt, that he had made a provision for his grand-children; and to Jane Pennell, that he had made a will in favour of the Pennells. The declarations of Isaac PI. Jones were to Peter Meyer and Adam Britz, that his father had made several wills. The soundness of the reasons given by Judge Kennedy in 5 Rawle, 242, referring to the opinion of Lord Erskine, why such declarations should have no effect upon a will which has been proved, is strongly exemplified in this case. It is of no importance that the evidence was not objected to on the trial. The question was not on its admissibility, but on the effects of it after it had been received. In Reynolds v. Reynolds, (16 Serg. & Rawle, 82,) there was positive proof by one witness, of the execution of the alleged will, and strong declarations of the supposed testator proved by several others, that he had made a will. There was no objection to the admission of the evidence, but the question was on its effect, and it was held that they amounted to nothing, unless they referred to the particular paper in question.
    If no second will is proved to have existed, none could have been carried off or destroyed. But the Court below permitted the jury first to presume the existence of a will, and then to presume that it had been fraudulently destroyed, in the absence of all evidence on the subject. The only evidence which can be supposed to bear upon this point, is, that of a single witness who swears that on the *night Isaac Jones died, he saw one of the defendants beloAV put into his pocket some papers wrapped up in a silk handkerchief, without the slightest proof of what these papers were.
   The opinion of the Court was delivered by

Huston, J.

TMs was an ejectment for houses, lots, &c., in the city and county of Philadelphia; of which a particular description is not necessary. The writ was served on the present plaintiffs in error, who were the defendants named in the writ; and also on sundry other persons who occupied the houses, and whose names the sheriff returned as being in possession: this was under our act of assembly.

Clearly, if we are to judge from the testimony now brought before us, and from the argument of this case when formerly in this Court, the object of the plaintiffs and defendants was to try in this ejectment, whether Isaac Jones, through whom all parties claimed, either as children or grand-children and heirs or devisees, died having made a will, or died intestate. The persons in possession, and on whom, as such, the writ was served, all appeared by several counsel; and all joined in one plea of not guilty.

Since the record was returned, a certiorari was asked and obtained, among other things, to ascertain whether there was an appearance and plea for Dr. Matthews, one of the persons on whom the sheriff served the writ, as being in possession of one of the houses. The return shows that counsel appeared for him by name; this disposes of the sixth error assigned. We cannot go contrary to the record returned; nor look at the affidavits filed on that collateral point, which seems only to have been made since the judgment in the Court below.

The first five matters assigned as errors have not been insisted on, and ought not to have been assigned as errors. When the cause was in this Court last year, none of these matters were alleged; and we have great reason to believe that the writ in due form, with the return endorsed thereon, and the description of the property, here called a declaration, all formed a part of the record: when this writ of error was put into the lower Court, they were not to be found. The counsel filed a new description, before or after the verdict; and it matters not which. Unless where a special plea is drawn by counsel, and filed, the plea, as in this case, is entered on the docket; which docket is for many purposes the record in this state. See Black v. Dobson, (11 Serg. & Rawle, 94).

In some cases the precipe may be material: a mistake of the prothonotary made in drawing the writ may be amended by it; or the date of issuing the writ may in some cases be ascertained by the date of the precipe. It is not usually returned as part ^ie *reC01’d> and I doubt whether it is ever so, unless when brought up on certiorari; or where it has been referred to and read in the Common Pleas, for some purpose. It is not attached to half the records sent up to this Court.

As to there being no issue, after not guilty pleaded, which is the general issue; adding the similiter is merely form. It has, however, been decided in this Court, in New York, in Massachusetts, and in England, that if parties will go to trial on a declaration and plea, and I may add, in some cases, without a plea, neither party will be suffered to object to this on a writ of error; and especially after a former writ of error and a second trial in the Court below on a record in the same state; no objection having been then made. Where any writ or return is lost, the docket entry is the next proof of its former existence, and, as far as it goes, of its contents; and after a former writ of error, and decision on all points to which there was any objection, we will assuredly assume that the parts of the record to which no objection was then taken, were regular, and in every respect legal, and not reverse, now that they are lost, on a supposition that they were defective.

The seventh and eighth errors assigned are, that the writ and issues and verdict and judgment are jointly against different persons, holding under different titles, several properties situated not contiguous to each other.

One sufficient answer to this is, that we have no evidence that the facts are so. No evidence of title in the defendants appears, except by the paper called the will of Isaac Jones. If the jury, under the direction of the Court, had found that paper to be the will of Jones, the plaintiffs had no claim; if it was not his will, the right of the plaintiffs to their parts of each property, as heirs, could not be disputed. And from the evidence given, and from another part of the record, it appears, that the attention of the Court below was not called to the subject-matter of these exceptions. Perhaps I might say, that the exceptions were so few, and so entirely out of view, as that both Court and jury were told there was no other question than whether the paper of 1807 was republished after 1828.

Isaac Jones, on the 13th of March, 1826, had conveyed atll his lands and tenements in this state to Thomas R. Tunis in fee. Mr. Tunis sold certain of those lands and paid off the debts of Jones, and in 1828 reconveyed the residue to Jones. By mistake, it would seem, this ejectment was brought for the lands sold by Tunis, as well as the lands reconveyed to Jones, and of which Jones died seised. After the verdict, which was general, for the plaintiffs, the following agreement was put on the docket.

“ The verdict having been entered in the above case, by mistake, as far as relates to Jacob Ridgway, Thomas Coates, and seven others (naming them) and the lands and tenements owned or in *their possession, it is agreed, that the said verdict shall be' so altered and amended, and the judgments entered thereon, as to be entered for the defendants last named: this agreement not to prejudice the rights of any of the other parties, plaintiffs or defendants.” Signed by the counsel of both parties.

Taking then, this into view, together with the fact, that no evidence was given of any other title in the defendants, than the will, and the Court were not asked to charge on any other subject, so far as we can see, it would be most unreasonable in this Court to receive the statement of counsel as evidence that the defendants held different and distinct titles; and to reverse for what was never brought to the view of the District Court.

But is there any error, if the defendants held by different titles ? The plaintiffs are not bound to know how the defendants hold. We have been referred to the practice of other Courts. In all the cases referred to, the objections were made at the trial, and came up on a case stated. We have a practice on this subject, long and well settled by our predecessors at nisi prius and in bank. A defendant in ejectment may take defence for a part only of the land claimed by the plaintiff; but if he has taken a general defence, and entered into the common rule, he cannot, at the trial, confess lease, entry and ouster for part only of the tenements laid in the declaration, but must confess for the whole. Wilson v. Campbell, (1 Dall. 126). And if a defendant takes a special defence for part only, and another tenant who had taken defence for the residue gives it up on the trial, the first, who had excluded it will not be permitted to defend or show title as to it. 3 Yeates, 169. Both these cases decide principles calculated to produce a fair trial, and to prevent surprise.

Though a plaintiff cannot compel defendants having several interests in different property, to submit to a joint trial, yet defendants may conclude themselves by their own act in pleading jointly; yet each may show title to' all or part, and both or either may recover his costs in case of success. (4 Yeates, 134, &c.) It is expressly said in White v. Pickering, (12 Serg. & Rawle, 435,) that an ejectment may be brought against several defendants having separate titles, who may defend themselves separately, on their respective titles. In this case, the defendants pleaded jointly, and gave in evidence a paper purporting to be a will, which, if found to be a valid will, defeated the claim of the plaintiffs to all; and they showed no separate defence or title, nor asked for a separate trial.

Two objections are assigned to the charge. The first has not been much urged. This Court had decided, that the conveyance by Isaac Jones to Tunis in 1826, and reconveyance in 1828, were a revocation of the will of 1807. The judge remarked, that testimony be so equally poised, as to occasion difficulty: and he *read the opinion of this Court on the former writ of in which it is that the evidence to establish a republication ought to be clear and satisfactory to establish the intention to republish, as well as the identity of the writing referred to; and something was said of the law making an equal and just distribution of an estate, where there is no will. The paper book then says, “the judge then summed up the evidence and recapitulated some of the main arguments of the counsel on both sides. In the course of the remarks on this part of the case, he said, in substance, as follows: ‘It has been argued by the plaintiff’s counsel, that as it appears from Mr. Bunker’s testimony, that Isaac Jones intended at one time to make a new will, so it may be inferred from various matters in evidence, that he did so after the reconveyance by Tunis, and that it was destroyed or lost without the consent or agency of the maker of it; and that he died under the impression that such a new will existed; and that the will of 1807 was fraudulently preserved and produced on the part of the defendants. The judge referred to several parts of the testimony, on which an effort had been made to sustain this argument; and told the jury they would decide for themselves as to these matters, as in regard to the other facts of the case; for he said they were entitled to consideration ; and if the jury adopted the views of the plaintiffs’ counsel, upon this subject, there was an end of the cause.’ The judge then called the jury’s attention to the reply which the defendants’ counsel had made on this point, recapitulated their arguments, and told the jury it was for them to determine between the parties.” The objection is to that part of the charge which relates to the plaintiffs’ facts’ and arguments; and this is selected as error; but the last part, which states that he referred to the defendant’s facts and arguments, is not brought to our notice. Now if the first was objectionable alone, it is certainly not so when taken in connection with what immediately followed.

The counsel have cited and relied on what was said in Clark v. Morton, (5 Serg. & Rawle, 235). It will be seen, that the object of the party in that case was to prove, that a will was made; to prove the disposition of property made by it; and the names of the devisees; and all this by parol — no person having ever seen a written will. Very different is the object in the present case. The will of 1807 was not present when any of the declarations which are alleged as a republication were used: it is very questionable, whether some of those declarations could be referred with certainty to the paper before the Court. The plaintiffs offered evidence tending to show, that other wills had been made subsequent to that of 1807; to show that when, in his latter days, the testator mentioned his will and the disposition of his property, it was entirely different from that in the paper produced; and that with this paper in the power and possession of the defendants, two of them had sworn there was no will, and had taken letters of administration as in a case of intestacy; *all this, not to set up another will, and claim under it, but to the Court and jury, that ■ the relied on as a republication of the will of 1807, did not apply, and ought not to be applied to that paper, but to some other and subsequent will, which, somehow does not appear.

The judgment is affirmed.

Judgment affirmed.

Cited in note, 5 Wharton, 321.

Cited by the Court, 14 Wright, 474. 
      
       See 1 Harris, 435 ; 7 Wright, 525 ; 1 P. F. Smith, 218.
     