
    
      Simon Verdier v. Henry Hyrne, Junr.
    "Where the wife was jointly entitled with others to certain slaves, and no parti- ^ tion was made in the wife’s lifetime, but they remained in the possession of the executor, who disputed the right of the wife, it was held, that the marital rights of the husband had not attached to his wife’s share of the estat3 at the time of her death; and that his claim was not aided by a decree of the Court of Equity made in her lifetime, settling the rights of the parties entitled to partition, one of whom was the executor.
    
      Before Evans, J. at Walterborough, Spring Term, 1846.
    By the will of Peter Sinkler, his sister, Mrs. Jane Glover, was entitled to certain negroes. Supposing herself the owner, she disposed of them by will, and appointed her son, Dr. Glover, her executor. The negroes went into his possession. A bill was filed by Lemacks and wife against him for partition, in February, 1843. In May, the Chancellor made a decree, settling the rights of the parties, which was never reversed. By this decree, Mrs. Hyrne, wife of the defendant, was entitled, with Dr. Glover and others, to a share of the estate. In August, Mrs. Hyrne died, and in December, 1843, the defendant, for six hundred dollars, sold his interest in “ Mrs. Jane Glover’s estate,” to Verdier. Mrs. Hyrne left no children ; and her husband and mother were her heirs at law. After the appeal in the case of Lemacks v. Glover was dismissed, the estate was divided, in 1845. Mrs. Hyrne’s share was two negroes. The negroes were delivered to the defendant, and by him, as administrator, sold. Verdier claimed them as the property which he had bought, as stated above; and this action was to recover their .value in trover. The main question was, whether the marital rights of Hyrne had attached. If they had, Verdier was entitled to recover the full value of the negroes. If not, he could recover only one half, as the other half belonged to Mrs. Hyrne’s mother; after the decree, settling the rights of the parties. The Circuit Judge considered Glover’s possession as the possession of all the joint owners; and on the authority of the case of Burgess v. Heape, decided that the marital rights of Hyrne had attached, and that Verdier was entitled to recover the whole value of the negroes. The verdict of the jury was in conformity with this opinion. The conveyance of Hyrne to Verdier, was of all his interest in the estate of Mrs. Jane Glover. It was contended this did not include the negroes sued for, as they were not the estate of Mrs. Glover. His Honor admitted parol evidence to shew that the estate, subject to division under Peter Sinkier’s will, was usually called Mrs. Glover’s estate; and that in fact she had no other estate. This was not explaining a written instrument by parol, but giving it effect, by shewing to what it applied. There was no doubt as to what was the subject of the sale to Verdier. This fully appeared from a bill in Chancery, filed by Hyrne against Ver-dier to set aside the sale.
    The defendant renewed his motion for a non-suit, at the next sitting.of the Court of Appeals, on the following grounds:
    1. Because there was no evidence that the negroes sued for in this case, belonged to the estate of Mrs. Jane Glover; whereas, the paper given by the defendant to the plaintiff, was an assignment of his interest in that estate.
    2. Because his Honor admitted parol proof to explain the written assignment given by defendant to the plaintiff.
    And the defendant .will move for a new trial, on the following grounds:
    1. Because his Honor erred, in charging the jury that the marital rights of defendant had attached on the property sued for, at the time of the death of his wife.
    2. Because the verdict was, in other respects, contrary to law and evidence.
    
      D. L. Henderson, for the motion.
    
      Ti'eville and Perry, contra.
   The Court of Appeals ordered the case up to the Court of Errors, for their adjudication of the question made by the first ground taken for a new trial, and that Court delivered the following opinion.

Curia, per Evans, J.

All the authorities concur that the marital rights of the, husband attach to all the wife’s personal estate in possession, sui juris. So, also, where the wife has an immediate right of possession in severalty to a chattel interest, it becomes the husband’s; on the principle that the right of property draws to it the possession. The same consequences follow where the wife’s title is undisputed, and the chattel is in possession of another, holding under and for her.

But this case requires us to go farther, and to say that where the wife is jointly entitled with another, there the marital right of the husband attached, although the right of the wife was disputed, and no partition was made in the wife’s life time, so as to vest in. actual possession every part of the joint estate in severalty. .

Can the affirmative of this proposition be maintained ? If it can, then Verdier is entitled to retain his verdict. I do no.t find any English authority bearing directly on the subject. The reason probably is, that at common law, there was no process whereby joint owners could be compelled- to make partition. The parties -must either continue to hold jointly, or voluntarily make partition. Nor have I found any American case, besides our own, hereafter to be noticed, unless the case of Griswold v. Pennyman, an abstract of which I find in the 5 American Common Law Reports, 552, referring to '2 Cowp. R. 564;■ in -that case it is said, the share of personal estate accruing to the wife during coverture, vests, even before distribution, in the husband, absolutely. If the share spoken of (as I should infer from -the words) be the wife’s share under the Statute of distributions, it is clear that it would not be law in this State, for until distribution, the legal estate is in the executor or administrator, and the wife is not entitled -to possession ; and without a right of possession, it is very clear the marital rights do not attach. The distributee has only an equity until partition is -made.-

But it is supposed that this question has -been decided the cases of the Ordinary v. Geiger, and in Burgess v. Heape, and in other cases which have followed. I am free •to admit, that there are dicta .in some of those cases, assume the doctrine here contended for. But the cases (at least the early ones, which the' subsequent cases profess-to follow,) I am entirely satisfied, were not decided on that principle ; at least it is very clear they might have been decided on other very clear and independent grounds. The case of the Ordinary v. Geiger arose under the following ciroum-•stances: A, by deed, gave certain negroes to four persons; one of them, Dorothy, married Geiger ; one of the negroes, oh, the marriage, went into Geiger’s’possession, but without any formal partition, — on his death the question arose, whether his wife’s share should have been put in the-inventory of his estate? and it was so decided. Now it does not appear with clearness, whether the contest reláted to the negro in his possession, or to his wife’s share in the whole of-the negroes; . but I think it is very clear that the -negro which had been ■ delivered up to Geiger, was alone in question. If it,related to all, and the Court decided, on the ground supposed, that the possession of one joint tenant would suffice to vest the share of another joint tenant in her husband, then it would have been wholly immaterial whether Geiger had had any possession, or there'had been an informal partition. All we know of this case is from Judge Brevard’s Reports.; it is found in a note in 2 Nott and McC. 151, but it is there copied from Bre-yard’s Reports then in manuscript. The reporter was one of the four Judges who decided the case. In a note by the reporter, there are two queries: 1st. whether it would have varied the case if it had been proved that the right of the donees to the negroes had been disputed? 2, Did the undivided fart of Dorothy pass to her husband by the marriage ? Why should this quere be put, if the Court had so decided? These notes show very clearly that the learned Judge did not cousider that that case had decided that Dorothy’s undivided interest passed to her husband ; and confirms what I think manifest, that the Court decided on the ground that a partial but informal division had been made, upon which the marital rights of Geiger had attached, because he had a possession in severalty. The first quere conclusively shows that he did not consider that case as deciding that the marital rights attached on any property where the wife’s title was disputed. The most that fian be said to have been decided in that case is, that-where the other joint owners recognize the right of the husband, and admit him into a participation, by giving up to him a part of the property, this was a reduction into actual possession, so as to vest the negro in him jure mariti. The next case was Burgess v. Heape. In that •case, by some legal process, "certain negroes, the property of .the defendant, Heape, and of his sister, Mrs. Burgess, had ■been recovered. The right was, then, clear and established. All that could be necessary to confirm the right of the husband, was a reduction into possession. The negroes were delivered up to Heape. The husband, alone, had a right to receive his wife’s share. A delivery to Heape of the whole, was a delivery to him and Burgess, and his possession was not as joint tenant with his sister, Mrs. Burgess, but as a joint tenant with her husband, who, alone, was entitled to receive her share. It is like (in most respects) a gift made to a wife during coverture,jointly with another. In such case the husband would be entitled, on the principle that a gift to the wife is a direct gift to the husband, and the receipt and possession -of the other joint tenant, would be the possession of himself and the husband. In Burgess v. Heape the Court refer to Geiger’s case as authority for the principle that the possession of Heape was such a possession of his sister, Mrs. Burgess, as to vest her share in the husband. But it was clear the. ■complainants were the only persons entitled to Mrs. Heape’s half of the negroes. Justice was on their side, and the Court was struggling to prevent the defendant from cheating his sister’s husband and child, as would have been the effect of dismissing the bill, because there had been no administration on Mrs. Burgess’s estate. In that case the Court discuss the question, and I am inclined to think the bill might be retained, although no administration had been granted, as all the parties in interest were before the Court. If it had been t clear that Geiger’s case had decided the principle supposed, it was wholly unnecessary to discuss the other question.

The same dictum is enunciated in Pickett v. Barber; but it was not a point in the case; so also in Verdier v. Verdier. There the question was, whether actual partition had been made by the executor, and that question is extensively dis-1 cussed, but it would have been wholly immaterial, if the possession of a co-tenant was alone sufficient to vest the wife’s undivided share in her husband. There are other cases in which, incidentally, the same doctrine is enunciated, as in Heath v. Heath. But the case in which the decision is put upon that ground alone by Chancellor Harper, who delivered the opinion of the court, is the case of Hill v. Hill. In that opinion, Dun'kin, C. concurred, but in his circuit decree he places the decision upon this, as well as another ground upon which it might just as well be maintained. Chancellor D. Johnson was absent, and Chancellor J. Johnston did not concur on this ground. He says, “ the doubt I entertain, is, whether the marital right of Jonathan M. Hill attached on the shares of the deeded property, which accrued to his wife by survivorship; at least to the extent to exclude her right to a settlement, (according to the practice of the court.) Those shares not having been partitioned and set off to her, and the husband having been obliged to establish her right by suit, and having joined her in 'the bill for that purpose. On this point, I am not, however, prepared to dissent.” Now, this, in effect, is precisely the question we are now to decide. The only difference is, that in the case of Hill v. Hill, the wife was a party complainant, in this case she was a defendant. That, I do not suppose, can make any difference. If a suit had been commenced at law, she must have been a plaintiff. In Equity, I understand the rule to be, that all parties in interest must be before the court, but as to the relief to be given, it is not material in what character they are there. In Story’s Com. on Equity, it is said, there is much good sense in disallowing any distinction founded on the mere consideration of who is plaintiff on the record. Her equity is precisely the same, whether she be plaintiff or defendant. If he (the husband) refuses, the court will withhold from him the possession, that it may survive to the wife.

When this case came before me on the circuit, and my attention was called particularly, for the first time, to the case of Burgess v. Heape, I did not feel myself at liberty to depart from or overrule what seemed to be a decision on the point, although it was against all my pre-conceived opinions. When the case came before the Law Appeal Court, such se- • rious doubts were entertained ' about the correctness of the doctrine, that it was referred.to the Court of Errors. It has 'been twice argued in that court, where it has been decided ^ a maj0nty 0f the court, that the marital right of Hyrne, the defendant, did not attach on the share of his wife in the negroes, to which she,^with others, was entitled under the limitation in the will of'Peter Sinkler, So as to enable him, after the death of his wife, to assign it to Verdier, the defendant. In announcing that decision, the reasons which I shall assign are of course my own. Those who concur in the judgment of the court, do not necessarily concur in the reasoning. That is mere argument, and We see every day two minds coming to the same conclusion, by different processes of reasoning. This remark applies with much force to most of the cases which have been, quoted. I think I have shewn very conclusively, that none of the cases heretofore decided, was put distinctly on the ground involved in this case. There were other and much more satisfactory grounds j and on which the concurring Judges might have rested their Opinions. Take the case of Burgess v. Heape, for example. There the concurrence o'f the Judge who. signed the Opinion, might have been on the ground, that as all the parties in interest were before the court, no administration on Mrs. Burgess’ estate was necessary, as the same court had then recently decided in. Spann v. Jennings. The same may be said of Verdier v. Verdier. There the evidence 'was pretty clear, that the executor had made’ an .actual division, so that the. wife was not seized in joint tenancy, but in seve-ralty, at the time of the marriage. I have looked carefully through all the .cases, and I do not find that the affirmative of the question invol ved in this case can be said to have been decided by more than two Chancellors. At the hearing of the case of Burgess v. Heape, Judge O’Neal! was not present, and the case of Saucey v. Gardner shews very conclusively, from the use of the word “severalty,”' his opinion on the. question. I think, therefore,.there is nothing in the adjudged cases which puts this case on the footing of an adjudged case, and that we are not encumbered by any consideration arising out of the rule stare decisis. Considering it, therefore, as an original question, and haviiig no express authority to guide us, it will be necessary ,to bring jthe case to, and test it by, original and elementary principles. The first test which I will apply is this : could the husband sue alone? I know it is so affirmed in the case of Hill v. Hill, and assuming the doctrine of that case to be true, the consequence follows of course, that a» the law vests the legal estate jure mariti in him, the hu'sband may sue in his own name. But is it'so? There-are cases in which he may. sue alone, as if during the coverture, a promise be made-to the wife, or a. chattel be given to her, there he may sue alone, because the husband aud wife being but one person in law, a promise to^ the wife is a promise to the husband, and a gift to the wife is a gift to the husband. This is a consequence necessarily resulting from the identity of husband and wife, as well as from the manifest intention of the donor, that the husband should take. If he did not so intend, he would have interposed a trustee. But the reason does not apply where the promise was made before coverture, or the wife’s title is traced to something done before her marriage. The rule laid down in Roper, 213, 214, is, that for what has accrued to the wife during coverture, the husband may sue alone, but for such debts, &c. as were due to the wife before marriage, and continue unaltered, since the husband cannot disagree to the interest, and has only a qualified right to them, viz. by reducing them into possession during her life, he is unable to maintain an action for such property, without making his wife a party.- Observe- the reason'. If a gift be made to husband and wife, he may refuse, he may disaffirm ; but if the estate be casfon the wife otherwise he cannot disaffirm. If in a like case, the husband should neglect or refuse to assert her title, and it is likely to be barred by the Statute of Limitations,, could not the wife appoint an attorney, under the 16th sec. of the Limitation Act ? I apprehend there can be no doubt of it, for the obvious reason, that the hifeband . could not disaffirm her right, and that it would .survive to her in case of his death. The rule at law is,- that those should be plaintiffs who are entitled to the subject of the suit. If the husband’s title be derived through the wife, she must be joined in the action; and the rule in equity is, that all must be parties, either complainants or defendants, whose rights would be affected by the decree. If the subject of the suit be what is usually called a chose in action, which belonged to the wife by some title anterior to the marriage, it is clear the wife must be joined, and the debt or damages would not be the husband’s, without a reduction into possession, or something equivalent. If, in such case, the husband designs to destroy the wife’s right, in case of survivorship,'he must sue for, and get possession during coverture, in the only way he can, by action in the name of husband and wife. About these principles there is no doubt; but it is said they do not apply. The possession of Dr. Glover was the possession of his co-tenants, and that this sort of constructive possession, was enough to invest the husband with possession jure mariti.

There is no doubt that joint tenants are seized in land per my et per tout, and that for certain purposes, the possession of one is the possession of all. For this reason, one joint tenant cannot plead the Statute of Limitations. But lean see no good reason for engrafting upon that, a consequence , which is by no means a necessary one. One of the excellencies of the Common Law is, that its principles and its maxims are to be applied to the facts of every case, in harmony with other principles. It is a familiar principle, that one cannot dispute the title under which he enters, because having got possession under A’s title, he shall not be allowed to put , him to the proof of it; yet this is not an inflexible rule : the tenant may shew that his landlord’s title is ended, and that he has attorned to the true owner. So, also, we hear it said every day at the bar, that possession of a part is possession of the whole included in the tenant’s muniment of title; yet that is not true, when another is in the actual, or even constructive possession of the same land. As a general rule, a tenant cannot acquire a title against his landlord, by the Statute of Limitations; but if he give fair notice that he is holding in his. own right, and the landlord suffer him to hold ten years adversely, the statute will give him a title. One joint tenant cannot sue his co-tenant, at law, yet if he oust his co-tenant, trespass will lie against him, and I suppose ten years possossion, after ouster, might give a title in severalty. These illustrations shew that in the application of legal principles, we must look to other principles^and so apply them, that the whole may be in harmony an* consistency.

That the possession of one joint tenant is the possession of his co-tenants, is true in many cases; but it is not in every case. It is not so after ouster, nor am I able to perceive any reason for saying it is so, for the purpose of transferring the wife’s title to the husband, when the parties are in hostile attitude, and the tenant in possession has always repudiated • the title of those who claim as co-tenants. The common law set such little value on a mere chattel, that it provided no means for enforcing partition. In Co. Litt. sec. 323, p. 200, it is said, if one tenant in common of a chattel, excludes his co-tenant from possession and enjoyment, he has no remedy but, to take it back from his co-tenant whenever he can see the chance. Now, it may be, if the husband actúa1 ly seized the chattel and had it m possession, his marital rights may attach, especially if he retained possession ; or if, by the consent of the co-tenants, where the subject of the joint tenancy admitted of division, a part had been allotted to the husband and was in his actual possession, as was the fact in Geiger’s case, the marital rights might attach on what was in his possession; but that they should attach upon what he could possess himself of only by force or fraud, when he had a chance, and of which he might be dispossessed in the same way by his wife’s co-tenant the next term, I cannot understand. This mode of gaining and retaining possession is inconsistent with the good order and peace of society, and only to be tolerated when the law furnishes no other means of as-v setting a title. When the law has provided a process by which a joint tenant may be let into the quiet and peaceable enjoyment of his rights, that he is bound to pursue. That the law has provided such remedy, is very clear. On application to the Court of Equity, a partition will be ordered, and if the thing be incapable of partition so as to allot to each a part in severalty, it may be sold and the money divided. I conclude, therefore, that under our law, where the joint estate is in the possession of one joint tenant, and the husband has never had any possession, ho has only a right to be let into the possession o§his wife’s share in severalty by writ of partition, unless the parties can agree to a division. The interest of the wife in an undivided personal estate-is not strictly a chose in action, in'the ordinary sense of these words; nor can it, except in the cases which I have enumerated, be called a chose in possession. But it is more like the former than the latter. The right can only be enforced by a judicial proceeding; in which particular it is like a chose in action, and the same rules of law must be applied to ascertain the husband’s rights. When do they vest? Must he join the wife in the application for partition ? If the wife be entitled to a distributive share of an estate, or to a legacy, the marital rights do not attach until partition. The reason is, that until partition made, the wife has no right of possession. Nor has she any definite right of possession, where a joint estate is in her co-tenant, enforceable in any other way than by partition, .or his assent to a voluntary partition. In all these cases, when partition is actually made and the wife’s share set apart in severalty, then the title being in the wife, and she having a right of possession in severalty, the marital right attaches, as was said in Sausey v. Gardner. This makes a uniform and consistent rule by which to determine all cases of marital rights, acquired by the husband in the joint estate of. his wife. In common sense, there can be no difference whether the possession be in an administrator or a joint tenant. The husband’s remedy is a judicial process to compel partition, and in my judgment there is no legal distinction in this particular between the two cases. For these reasons, I think it very clear, that when a bill is filed for partition, the wife must be a party with the husband, and that his marital lights are not perfected until consummated by actual partition. This, I believe, is the general understanding of the profession. No lawyer would have thought of filing a bill against Dr. Glover, without making Mrs. Hyrne a party. In Hill v. Hill, and I believe in all the Cases where the wife was alive, she was made a party.. In thus deciding, I am well satisfied we are not unsettling any established rula of property; we are correcting one of those errors which has crept in little by little, which has never been recognized as established law, and which, although often enunciated, was never made the distinct and exclusive principle upon which any case was decided, until the recent case of Hill v. Hill, and there, only by two out of the four Chancellors.

There is another view of the case which may serve to illustrate : Could the Court of Equity have ordered Mrs. Hyrne’s share to be settled, had she been alive, at the time the partition was finally made ? The rule is, that Equity will not order the husband’s estate to be settled on the wife. If he has reduced his wife’s estate into possession, it is his, and a settlement will not be-^creed. If the husband, without the aid of the Court, can get possession, the Court will • not interfere. But if the husband or his assignee come into the Court in order to get possession from another who withholds it, the Court will compel the party so applying to do equity by a settlement on the wife; and if he refuse, will withhold the possession, that the estate may survive to the wife. I think it has been shewn clearly,' that Hyrne could not have got possession of his wife’s share without a bill for partition, to which she was a necessary party. His right was stoutly disputed by Dr. Glover, who claims the whole under Mrs. Glover’s will. And even when the right to partition was established, there remained another question still more doubtful, whether the partition was to be made per sierpes, .or per capita. The decree established the right of Mrs. Hyrne to partition ; -but, until partition was made, what right had her husband 7 None, except what I have before mentioned: the right to seize by force or fraud, and to keep possession if' he was the strongest. This, if recognized, would lead to all Sorts of violence; to prevent this, the law gives him the peaceable remedy of partition:

When thus before the Court, chancery would, on application, compel him to make a settlement, by withholding the possession in case' of his refusal. I lay no stress on the fact that Hyrne and wife were defendants; they could not be made complainants, because they claimed differently from the complainants, Lemacks and wife. Mrs. Lemacks was a daughter of Mrs. Glover, and she claimed that the negroes should be divided per sierpes; whilst Mrs. Hyrne, being a grand daughter, would come in per capita; whether plaintiff or defendant, we have seen, on the authority quoted, was immaterial.

But it was argued at the bar, that a decree having been pronounced, settling the rights of the parties in the life time of the wife, the husband is entitled as survivor. It is clear, that by the English law the question in this case could seldom arise. There the husband is entitled to administration, and by the 25th section of the Statute of Frauds, is not bound to make partition. In this State it is otherwise; can only take a share of the wife’s estate; her other distribu-tee, her mother, is entitled to come in equally. The only other case where survivorship has been recognized is, where there has been a joint judgment at law and execution awarded ; or, where there has been a joint decree in Equity, and an order for the payment of the money, as in Forbes v. Phepps. In this case of Forbes v. Phepps, there had been a decree that the wife’s share of a money fund should he paid to the husband and wife. Under such a decree, there is no doubt the husband was entitled to receive the money; but the wife died before the money was paid. The Court held the husband was entitled, without administration or liability to pay her debts out of the fund. The order for payment was of a definite sum of money, ascertained and ordered to be paid. It was like the suing out of execution. The case, so far as the judgment of the Court was concerned, was ended by a final decree. ■ Williams, in his Law of Executors, puts this case on this ground distinctly. But that is far from deciding this case. The circuit decree in the case of Lemacks and wife against Glover, after deciding the questions arising in the case, ordered a writ of partition to issue to divide the estate according to the principles decided by the decree. Hyrne’s name is not mentioned. In Muse ads. Ed-gerton it is said, that if there be a joint judgment in favor of husband and wife, and the husband dies, the judgment survives to the wife; and the same applies in Equity, unless there be an order for payment. If, in the case of Forbes v. Phepps, there had been a decree establishing only that the wife was entitled, and an order that the master state the account and ascertain the amount, but before there was any decree for payment, the husband died, can there be any doubt that the wife would be entitled, and not the executor of the husband ? The reason is, that there had been no final decree, the case was still in Court. But it was otherwise when an order was made for the payment of the money. That was a final decision. It is like the case of a gift of a chattel to the wife without a trustee. It vested in the husband as a gift to him. The Court might have made an order that the money should be settled on the wife. The omission to do so, in effect, was a decree, ordering the money to be paid to the husband. Has there been any such final decree in this case 1 A writ of partition merely directs partition to be made; it may be excepted .to at any time before confirmation. It is not unusual to set aside the return, and to order a new partition.

In the case of Speights v. Holliway, adm’r. of Meigs, the objection taken* at the return of the writ, was that the writ had ordered the partition to be made in a way different from the rights of the parties. I do not understand a writ of partition is conclusive of any thing, except that the parties are entitled to have the joint estate divided according to their rights as settled by the judgment of the Court. If pendente lite new rights accrue by the death of any of the parties, these rights are to be judged by the general law, and not by any interlocutory order. If the husband dies, the right survives to the wife, not by any right of survivor, but because the estate is her’s. The marital rights have not attached.— For the same reason if the wife dies, there must be administration and distribution among her heirs. Until final decree this Court may order a settlement, because the estate is still the wife's; and until the partition is confirmed, the same may be done for the same reason. Indeed it is the general if not the universal practice, to order the settlement of the specific property, allotted to the wife by the partition, when the order of confirmation is made. It was said in argument, that the right of the Court to order a settlement, had nothing to do with the question, as Mrs. Hyrne was dead. It is only important as argument, illustrating the rights of the parties. If the Court, under the circumstances, had a right to have ordered a settlement, that proves the marital rights had not attached, the estate was still the wife’s, and must go to her administrator. That was the view taken by the parties in this case Hyrne, after he sold to Yerdier, administered ; this was no doubt with the concurrence of Yerdier, for he was security to the administration bond. It was done,I presume, on legal advice, and the result shows that the advice was proper. I do not mention the circumstance as one calculated to affect theriahts of the parties, but asa further evidence of the general understanding of the profession, that the marital rights of Hyrne had not attached. If they had, administration was unnecessary.

I have come, therefore, to the following conclusion, which I have endeavored to illustrate and enforce by the foregoing argument, viz :

1st. That the question is not res judicata.

2d. That the marital rights of Hyrne had not attached on his wife’s share of the estate, at the time of her death.

3d. That the husband’s claim is not aided by any decree of the Court, made in the life time of the wife. The result is, that there was error in the charge of the Circuit Court, and in the verdict found in confoimity with it. But as it is clear the plaintiff is entitled to the share of Hyrne, justice may be done without another trial, by his releasing one half the verdict. Upon his doing this, the motion for a new trial is refused, otherwise it is granted.

0:Neall, Wardlaw, Frost and Withers, JJ. and Johnston and Caldwell, CO. concurred.

Motion granted, nisi.

Dargan, Ch.

dissenting. — In this case I feel constrained to enter my protest against the decision of a majority of the court. I feel thus constrained by the importance of the principle therein adjudicated and the magnitude of the interests which, in all human probability,'are involved, and which will be affected and controlled by that decision. The decision in this case is understood by a majority of the Judges to be a reversal of the decisions in the Ordinary v. Geiger, (decided in 1805,) and Burgess v. Heape, (decided in 1833,) and consequently of what has been the acknowledged law of the land for at least 45 years. The principle of law therein supposed to be settled, and thus recognised by the highest tribunals of the State, has since been frequently cited, with approbation, by able and learned Judges; has been acquiesced in by the universal assent of the bench and bar, and has not till now been challenged or questioned, so far as I am informed. In the meantime, the whole justice of the country to which the principle applies, has been administered in accordance with the decisions in the cases which I have cited, and to reverse them now is to acknowledge that all the transfers of estates made by the court on this principle, have been altogether unauthorized by law. It would be difficult to conjecture the extent of the injury to the rights of parties that has resulted from the maladministration of the law in this particular, by the transfer of property to persons who, in fact, (as the law is hereafter to be understood,) had no title whatever. The amount of the illegal transfer of property by the court, as among its suiters, is doubtless vast in the last half century. Put the mischief is not limited to cases in court, for doubtless parties have, in a number of instances, adjusted their rights out of court by amicable settlements made in reference to what was understood to be the law that prevailed in court. If any one of these parties, who has been made the victim of this error, were to confront the court, and reproach it with the wrong which has been done, the reply could not be that of the conscience-stricken monarch to the ghost of the murdered Banquo, “thou canst not say I did it.’’

But the mischief does not terminate with the past. The present defendant has, I think, a just right to complain. He purchased property, under what any lawyer in South Carolina, predicating his opinion upon the decisions and practice of the court, would have pronounced a good title. And he is now, by the judgment of the court, divested of that title, on the ground that those decisions and the practice under it, were all wrong, and founded in error. He is to be told that the eminent judges, who made those desisions, and those who gave tpeni tlieir approbation, and administered the justice of the 'country under them, were all under illusion; that new light pas ^urst Upon their present successors ; and that it is necessary for the court to retrace its steps back to the right path from which it has so long wandered, at whatever cost and sacrifice it may be to those citizens who have acted upon the opinions and decisions of the court.

The interests of the defendant, as involved in this question, are, however, insignificant, compared with those of that large class whose titles will be disturbed, weakened, and destroyed by the promulgation of this decision. This is destined to be but the first of a series of cases on this subject. A great deal of property, within the limits of the State, must change hands or ownership; property that has been bought, bona fide, under the principles supposed, not without good reason, to be settled by the decisions of the court.

In the preceding remarks, I have endeavored to depict some of the mischiefs that must necessarily grow from the reversal of a principle of law which has long operated as a rule oí property. They are mischiefs with which a court should not suffer itself to be reproached, except upon grounds of strong necessity. The decisions of courts necessarily have, unlike legislative acts, a retro-active operation. Legislation that is intended to have a retrospective bearing and effect upon the rights and interests of the citizen, would not be tolerated for a moment. But a revolution in these principles, which have lor a half century prevailed in the court, as rules of property, is equally pernicious and objectionable. And if theie be a necessity for a change, it should be left to the legislative department of the government to apply the remedy. These remarks willnot be considered otherwise than pertinent, because a majority of the court, as I have already said, consider the decision in this case as overruling and reversing that of the Ordinary v. Geiger.

I will now address myself strictly to the questions at issue before the court.. Peter Sinltler, by his last will and testament, bequeathed the negroes in controversy, to his sister, Mrs. Jane Glover, for life, and after her death, by a limitation, which has been decided by the Court of Appeals in the last resort to be valid, he gave the said negroes to the issue of her body, to them, their heirs and assigns forever. Mrs. Glover, who supposed the negroes to belong to her absolutely, bequeathed them to her son, Dr. Glover. He, after her death, held and claimed them in his own right, until the decision which has been referred to in Lemacks v. Glover, by which all the issue of Mrs. Glover were held to be entitled to take under the limitation as purchasers. By this decree, Mrs. Hyrne, wife of the complainant, was entitled, with Dr. Glover and others, to a part of the estate. Mrs. Glover died previous to February, 1843, when the bill was filed for a partition. Mrs. Hyrne died in August, 1843, and in December of'' the same year, Henry Hyrne, her husband, sold his share of the individual estate to the defendant, Simon Verdier. There was a decree, as to the rights of the parties, under the will of Peter Sinkler, previous to the death of Mrs. Hyrne, but partition was not made of the estate until the year 1845, when the negroes, which are the subject matter -of this suit, were allotted and set apart as the share of Mrs. Hyrne in the common estate. They were placed in possession of the defendant, who, fro hac vice, had become the administrator of his wife. And this is an action of trover brought by Verdier against him, to recover the negroes under the sale before mentioned. If Hyrne’s marital rights had attached upon the estate of his wife, in the negroes, at the time of the sale to Verdier, he is entitled to recover.

1 think that a great deal of the difficulty with which the case has been supposed to be environed, has originated from the fact that endue importance has been attached' to the decree in Lemacks v. Glover, as affecting the rights of Hyrne to his wife’s estate. Her rights were pre-existent to and independent of that decree, and were derived under the will of Peter Sinkler, by which she took as the purchaser of a legal estate, in common with others. The decree was merely a judicial recognition of those rights against one claiming adversely. The decree gave her nothing which she did not before possess, except a separation of her rights from those of her co-tenants, which was effected by the subsequent partition.— If A executes a title ftir a negro to B, which negro comes into the possession of C, and B brings trover against 0 for the negro, and recovers, B derives no title under the judgment.— This only settles á controversy between him and an adverse claimant, and his title is to be referred to his bill-of sale.— Thus, in this case, in determining the question as to the marital rights of Hyrne, we are to leave out of view the decree and all the proceedings in Lemacks v. Glover, as if they had no existence.

And further to disembarrass 'the case of all extraneous matter, we are to consider the fact, that there was a precedent life estate in Mrs. Glover, as not at all pertinent to the issue. She, according to the most familiar, principles, had received the estate for herself for life, and for the remainder men who were to come after her. When the executor of Peter Sinkler assented to and delivered the legacy to Mrs. Glover, his assent and delivery was as well for the remainder men as for the life tenant. No new assent and delivery was necessary to vest their rights. The life estate had expired at the time of the sale to Verdier. And on the death of Mrs. Glover, the legal estate vested in Mrs. Hyrne and her co-tenants by operation of law. And no further act was necessary to be "done, to cause it to vest. One of the co-tenants, (Dr. Glover) had actual possession of the negroes, which by a very plain principle of law applicable to common estates, was equally the possession of his co-tenants as of himself.

I have already said that the law on this subject is settled, and I am well warranted in this opinion, if the most solemn decisions and a long acquiessence and practice under them, can be considered as having that effect. The case, when stripped of the extraneous circumstances which attend it, and which have a tendency to mislead, presents the most perfect parallel to that of the Ordinary v. Geiger. Between them the most powerful analysis cannot detect a real difference, nor the most ingenious sophistry a plausible one. In Ordinary v. Geiger, as in this case, there was a tenancy in common, which was vested as to the right of possession. The negroes were fourteen in number, of which the husband only had possession of one. The others were in the possession of one of the co-tenants. It was solemnly decided that the marital rights attached to the wife’s undivided fourth of the entire estate, on the broad principle that the possession of one co-tenant was the possession of the whole, and that was a sufficieut possession for the marital rights to attach upon. There was no pre-tence of there having been a partition, nor was there stress laid on the fact that the husband had one of the negroes in possession, as his rights were not confined to that one, but were held to extend to an undivided fourth part of the whole, on the possession of his co-tenants. It is worthy of remark, that this case was decided unanimously by an able bench, and without hearing argument in favor of the marital rights; facts that tend to show that the principle on which the case was decided was considered as well understood and settled at that period, and that the doctrine had prevailed farther back in the past than the date of the decision. The case also possessed another strong feature, to wit: that the marital rights were held to have attached against the claim of the wife who survived.

The next leading case to which I will refer, is that of Burgess v. Heape, decided expressly upon the authority of the Ordinary v. Geiger, and in which the doctrine settled in the latter, obtained the unqualified approbation of the Court of Equity. In the case cited from Hill, there are the identical leading legal features that belong to the case now under judgment. The defendant, Burgess, and his sister, Eliza, had recovered the negroes by a decree of the Court of Equity. Pending the suit in which the recovery was had, Eliza Heape married Robert S. Burgess, the complainant. After a decree in their favour, and during the life of Mrs. Burgess, the defendant took possession of the slaves, and removed with them out of the State, and refused partition. Being found in the State, he rvas sued, and a ne exeat issued'' against him. Mrs. Burgess was dead previous to the commencement of the suit, and there was no administration on her estate. So that if the survivor’s husband was entitled to recover, it was upon the strength of his marital rights. By the decree of the Court, he was held entitled to recover one-half of the negroes, (although Mrs. Burgess had left a child, who was also a party before the Court.) The decision was predicated upon the principle, (and that alone) that Heape and his sister were joint tenants, and Heape being in possession, his possession was that of his co-tenant, and, therefore, the marital rights attached. This case possesses no contradistinctive features from the case in hand, and it is vain to attempt to weaken the similitude, by the fact that Heape had received the negroes for himself and sister. It is not reported, that he expressly so received them ; but if he had, it would have added no strength to his sister’s claim, either as to her right of property or her right of possession. Her rights would have been equally as perfect, though he had received them as an adverse claimant. Besides, as I have shewn in my preliminary remarks, the parallel holds good even in regard to the deliveryfor the original delivery to, and possession of, Mrs. Glover, under,the will of Peter Sinkler, operated equally for the benefit of all the remain-dermen, as for the life tenant, and could not afterwards be repudiated or qualified by the acts or claims of any of the parties in interest.

In Snowden v. Logan, there was an authoritative recognition of the principle. The case, as bearing on this question, is as follows. George J. Logan had married the widow of William J. Snowden, who died intestate, leaving his widow and an only child, who was the complainant in the cause. Mrs. Logan, on her first marriage, with Snowden, had received some negroes and furniture from her father, William Pope. On the death of Snowden, Mr. Pope had reclaimed the possession of the negroes, and held them until his daughter’s intermarriage with Logan. On this event, Mr. Pope, (according to his widow’s testimony) delivered the same negroes to Major Logan, as property which he had given to Mr. Snowden. Logan claimed the negroes in his own right, and the basis of his claim was, the assumed fact, that Mr. Pope had not given the negroes to his daughter in Snowden’s life, and had not parted with his right until they were delivered to him. But upon Mrs. Pope’s and other corroborative testimony, the Court decided that the negroes were of the estate of William J. Snowden. Logan also pleaded the statute of limitations against his step-daughter’s claim.

But the Court decided that, although the long possession of seventeen yeats might bar an action on the part of Snow-J den’s administrator, it would not bar that of a co-distributee. The Chancellor then proceeds to remark — “a ground has, however, been taken in argument, which was not made on the Circuit, nor embraced in those set down for argument. It was, that Mrs. Logan’s administrator was a necessary-party to the partition sought and decreed, Mrs. Logan being entitled, according to the bill, to one-third of the property to be partitioned.” “ But it is,” says Chancellor Johnston, “ the opinion of my brethren, that if the point was properly made now, it falls within the principle of Burgess v. Heape, and that Major Logan’s marital rights attached to his wife’s share in his hands.” Thus, the principle was authoritatively recognized and enforced in this case ; for although the point was not properly before the Court as a ground of appeal, if •the Court had not held that the marital rights of Logan had attached, it might, and probably would, in conformity with its practice, have suspended its decree and_prdered the proper parties to be made.

In the case of Pickett v. Barber, we have the following language of Chancellor Harper. “If,” says he, “there was a legacy to two, and the executor had assented to and delivered the legacy to one of the two legatees for himself and the other, here the possession of one would be the possession of both, and the marital rights would attach.”

Then comes the case of Verdier v. Verdier, in whtch the same point was ruled. On the question whether the marital rights had attached, the Chancellor states the proposition in this form. “ After the written acknowledgment of all the parties, on the 28th December, 1837, the Court is bound to conclude that, on that day, the negroes in lots No. 1 and No. 3, in the division, both of the negroes of Mrs. Powell and Mr. Jenkins, were assigned and delivered by Mr. Gervais, either to his son and daughter, respectively, or to his son, Dr. Gervais, for himself and his sister, the present complainant. If, in severalty, it is decided by Sausey v. Gardner, that the marital rights attached. But if they were held in common by Dr. Gervais, then the authority of Pickett v. Barber is no less decisive.” In the latter case, the language of the Court is to this effect. “ If there were a joint legacy to two, and the Executor deliver the subject of it to one, for himself and co-legatee, here, the possession of one, would be the possession of both, and the marital rights would attach.” The case of Verdier v. Verdier was an appeal unanimously affirmed, without question or cavil.

The case of Hill v. Hill is strongly in point. In this case, John P. Bond, by a deed, gave first, certain negroes, by name, to his soil, Felix; secondly;, certain other negroes, by name, to his daughter, Lucinda; thirdly, certain other ed negroes, to his son, Moses; and, fourthly, certain other named negroes, to his son, Theodore; with a valid limitation, in case any of them should die Avithout issue, to the survivors. Moses, Theodore and Felix, all died in the order in which I have named them, unmarried, without issue, and intestate. Lucinda, who had married the complainant, Jonathan M. Hill, was the sole survivor of the persons named in the deed, and was held by the Court as entitled to the property by survivorship, according to the terms of the deed, except such portions as had fallen to Theodore and Felix, by their own previous survivorship. The estates of the deceased were sold by their respective administrators, and at the sale, Jonathan M. Hill became a purchaser, and gave his bonds; and on the application that his interest, in right of his wife by survivorship, should be set off against his bonds given for his purchases at the sales, the question whether the marital rights had attached, came up for the judgment of the Court. I have said that the case was strongly in point. Let it be borne in mind, that Lucinda was not entitled to the whole of the property conveyed in the deed of John P. Bond. For the decision was, that so much thereof as had come to Theodore and Felix, as survivors of Moses, and so much thereof as had come to Felix as the survivor of Theodore, constituted, respectively, a part of their own absolute estates. So that Lucinda was a tenant in common with others ; she deriving title by survivorship, under the deed of John P. Bond, and they, by the rights of personal succession to the estates of her deceased brothers. There was no pre-tence of any possession by the husband, and the property had been sold by the administrators, and the proceeds were in their hands, subject to the order of Court.

The decision of the Court on the case thus made was, that the marital rights did attach upon the property that came to Lucinda Hill, by survivorship, under the deed, although it was not separated from that portion of the deeded property that was held to be the intestate estate of her deceased brothers. The language of that profound and illustrious jurist, my immediate predecessor, in delivering the judgment of the Court, is as follows. “ I say that the legal estate vested in Lucinda, and I am of opinion that the marital rights of her husband attached upon the property, so as to vest the legal title in him absolutely. The well known rule of the Court is, that the possession of one joint tenant is the possession of the Avhole, and this constitutes such a reduction into possession, as that the marital rights of the husband of a feme joint tenant will attach, though he has none of the property in his actual possession. Such are the cases of the Ordinary v. Geiger and Burgess v. Heape. The rule is weq known, that if there be a perfect legal title, and the right of possession, that is enough to vest the property jn the husband, though there be no manual possession. And the husband may sue alone for the property, being thus vested with the perfect title. There can be no question, in the present case, with respect to the slaves taken originally by Felix. But there is as little doubt as to the other slaves which he held in common.” A case can scarcely be more strictly in point, nor language more emphatic and explicit.

In Heath v. Heath, the court say, peruO’Neall, J. “ There is no doubt, that when the wife has a perfect legal estate in goods and chattels, whether it be in severalty, joint tenancy, coparcenary or in common, it will vest in the husband jure mariti.” This, it may be urged, rvas but a dictum, but it was one which emanated from high authority, and was well sustained by a long and strong current of very decisive authorities. And considering it in the light of a dictum, it may be fairly set off pro tanto against the dicta in Sausey v. Gardner, and Younge v. Moore, if dicta they can be called, against the doctrine for which I am contending. In both of those cases the legal estate was in the wife, in seve-ralty, though not reduced to the possession of the husband during the continuance of the marriage relation. It was ruled (properly of course) that the marital rights had attached. In both cases, the court uses precisely the same language which I quote. “ When the wife has a legal estate in chattels personal, and the right of immediate possession in seve-ralty, the marital rights of the husband will attach, and vest the property in him.” The proposition, as thus stated, is undeniably true. It avers the precise circumstances of those two cases, in each of which the estate of the wife upon which the marital rights had attached, was in severalty. There is no negative, however, of the principles, that in a case of joint tenancy, or tenancy in common, under the like circumstances, the same results would follow. But if, by the introduction of the word “severalty,” in the proposition, a negative pregnant is intended, and it is meant to exclude the idea, that where the wife has a clear legal title to chattels personal, in joint tenancy or tenancy in common, and a right to the immediate possession, the marital rights will not attach ; then I say, that the court travelled out of the record, to express opinions on points not before it, and the decisions are not authoritative. They should not be considered as having any weight in undermining and. overthrowing a rule of property so long established in the country. It may be as well to remark, that the cases of Heath v. Heath and Sausey v. Gardner occurred about the same time, and the opinion in both eases was delivered by the same Judge, (O’N.) and I can scarcely suppose that the more restricted form of expression in the latter case, was really intended to narrow, the principle as laid down in the former, more particularly as Heath v. Heath was the latest case.

But how is the principle ruled in the Ordinary v.. Geiger assailed Í The cases of Sausey v. Gardner and Young v. Moore, which I have just disposed of, are brought to bear against it. Then we are carried back to Byrne v. Stewart, Bunch v. Hurst, Elms v. Hughes and Speights v. Holloway,& for the purpose of shewing that partition was necessary cases of joint estates, to the vesting of the marital rights. If these cases were found to be in conflict with the Ordinary v. Geiger, I should think that the numerous decisions that have been subsequently made on the authority of the latter case, and the many titles that have vested under it, are sufficient, at this day, to give it an impregnable stability. But those cases are not in the slightest degree inconsistent with the Ordinary v. Geiger. I subscribe most cordially to the doctrine which they assert. They were all cases where there were legacies to the wife in the hands of the executor, or causes arising in reference to the distributive share of the wife in intestate estates. They were consequently cases where the question arose in regard to the equitable estate the wife, and not her legal estate, and where she had a present right of possession. The court very properly held, that partition was necessary to the vesting of the marital rights, in such cases as those last cited.

Then we are confronted with the case of Hood v. Archer. I see nothing to disapprove of in that case, and do not consider it as militating against my position. That was the case of a partition of real estate, in which the wife had a distributive share, and it arose in a court of law, under the Act of 1791. The . land was sold on a credit, and was paid in to the sheriff when the wife died. The surviving husband applied to the court for an order, that the whole of his wife’s share should be paid to him. This the court refused, on the ground that his marital rights had not attached. And they clearly had not; It was not a personal chattel, and was at best but a chose in action not reduced to possession, and which would have survived to the wife.

Thus I have, taken a hasly glance at all the cases bearing upon this question, which I have been able to find, and from 1805 to the present time, I find none in which the principle settled in the Ordinary v. Geiger has been seriously questioned or doubted, though there are many cases in which it has been broadly asserted in the form of abstract opinions, and others in which it has been rigorously and practically enforced against parties before the court. And there are cases where, in equity, it has been held to prevail in favor of the husband, against the equity of the wife for a settlement.

And why, I emphatically ask, and for what end or purpose, shall we, at this late day, reverse the decision of the Ordinary v. Geiger, at the expense of much mischief and much future litigation, as I have endeavored to show ? Shall it be for the purpose of .going back to the principles of the common law, from which we have departed, and conforming our decisions more perfectly with those of the English Courts? This, with me, could be no adequate motive, even, if it could be demonstratively shewn, that our own decisions on this question have been at variance with the principles of the common law. It has been in operation long enough with us to have become the common law of South Carolina. Surely, we are entitled to have a common law of our own. Our country has become great and matured, and our bench is able and learned enough to be released from the leading-strings of the English Judges. We have departed from the common law in numerous instances, and why not in this, if it be indeed a departure ? After this, what lapse of time will be deemed necessary to give permanency and stability to a principle -of law depending upon the decisions of our Courts ? — . From the manner in which the Ordinary v. Geiger was. decided, I have inferred that the principle must have existed and been recognized long prior to that'day. But if otherwise, is not half a century long enough to sanctify a departure from the corpmon law ? Should we now feel ourselves called upon to disturb and violate all the rights and interests that have grown up, and the titles that have vested under this principle as a rule of property, from a fantastic desire to conform strictly.with the principles of the English common law, that are undergoing Protean transformations every day in.Westminster Hall?

But I do not admit that the decision in the Ordinary v. Geiger is at variance with the common law. I 'have heard nothing in the argument, and have seen nothing in my examinations of the subject, which inclines me to adopt that opinion. I deem this part of the case as of but little moment, but as far as my information extends, it seems, to me, that our decisions have been strictly in harmony with the principles of the common law. , The case of Blount v. Bestland, which was cited as seemingly contrary, is not in point. It was the case of a pecuniary legacy, which, though assented to by the executor, had not been reduced to possession.— It was at best but a chose in action, and not a personal chattel. The case naturally falls into a category with our case of Hood v. Archer. If it had been the bequest of a personal chattel, and the executor had assented, the legal estate would have passed to-the wife’and vested in the husband, and the rights would have attached. It could, in that case, have been classed with our case of Rhaine v. Davis, where the possession of a guardian wits properly held to be such a possession as that the marital rights attached.

By our own decisions, none would doubt but that if a tel were delivered to an agent for a married woman, the marital rights would attach. But Bacon, in his Abridgement, says that “joint tenants and tenants in common are regarded as agents for each other.” This is a character which the law imposes upon them, and of which they cannot divest themselves. Whatever is delivered to one joint tenant, or what he takes possession of, in that character, he necessarily takes for his co-tenants as well as for himself.

Marriage, by the common law, confers a title upon the husband to all the wife’s goods in possession, and to which she has the right to the immediate possession, with a right to bring suit upon her choses in action. ' Bacon says, “ where the goods of a feme sole are in the possession of another by trover or bailment, and she marries, the property which continued in the wife is vested in the husband, and he alone, without the wife, may bring detinue for them.” See also 1 Chit. PI. 61, where it is said that in detinue the husband must sue alone without joining the wife, “ because the law transfers the property to him, and the wife has no interest.” The principle is thus laid down without the exception of cases of joint tenancies, <fcc. In trover, it is said the wife must join, because the conversion being before marriage, the right of action accrued to her. But I apprehend, that if the husband were to make a demand of the same chattel after marriage, he might maintain his action alone, upon the conversion as against himself.

Again, Chitty lays down the rule, that the actions of míe and trover may be maintained by any one who has the absolute or general property in the goods, with the right to the immediate possession. And now, I would ask, where one makes a gift to a feme covert in joint tenancy, or in common with another, without actual possession, but conferring the title with immediate right of possession, in whom do the rights of the wife vest ? The whole right arid title has gone .out oí the donor. It cannot be denied but that they have vested in the wife to fully as great an extent as they' have in her co-tenant, and whatever has vested in the wife, has ipso facto vested in the husband. And as a matter of course, the marital rights would attach.

In the case of Langham v. Nenory, the Master of Rolls, (Sir Richard Arden,) says, “ by marriage, the husband clearly acquires an absolute property in all the personal estate of his wife capable of immediate and tangible possession.” Is not her estate in common, if a chattel, capable of immediate and tangible possession? He can make manu-caption of the chattel wherever he may find it. If he were to take it from the possessiof! of .his co-tenant, it would be no trespass. He may bring an action at law without joining his J wife. And as Chancellor Harper said, in Hill v. Hill, he may go even into equity for its recovery without making his wife a party.

My conclusion is, without pursuing this research further in the English authorities, that the decision in the Ordinary v. Geiger is in perfect harmony with the principles of the common law; and if it was now a new question, my judgment would be in favor of the rule therein adjudged.

IIichaRDsoN, J. and Dunkin, C. concurred.  