1814. et ux. υ. intervention of a trust, there is some reason for construing it a gift of the capital or stock; but where a trustee is inter- BRINGHURST posed to apply them, the cestuy que trust can never call for a transfer of the principal. The sale of the fund in this case is not material, because the question is whether the plaintiffs have title; and that must depend upon the will.. 2. As to the interest, the trustees merely wish the opinion of the Court; but in answer to the plaintiff's argument, it is to be remarked that the provision after Mrs. Brewster's death can only be for the maintenance and education of her children, both of which terms have in equity an ascertained reference to infancy or minority. TILGHMAN C. J. The intention of the testator is not as clearly expressed as could be wished, because he is not explicit as to the principal of the 8000 dollars stock of the United States. Yet considering the nature of that stock, I think it may be concluded that he did not mean that any part of it should return to the mass of the residue of his estate. The six per cent. stock is no more than an annuity for years, part of the principal being sunk annually. At no distant period then, the whole will be paid. It would be giving a construction too hard against the legatees, to say that the trust should cease when the mother should be dead and the children arrive at the age of twenty-one. It is true that their education is mentioned, but so also is their maintenance, which would be as expensive after the age of twenty-one as before. The words of the will may bear this construction, that the whole dividends paid by the government annually should be applied to Mrs. Brewster and her children. As to the time past then, the trustees may now pay the full amount of all the dividends which would have been received if the stock had not been sold, and the same rule may be adopted in future. This is going as far as can reasonably be done in favour of the legatees. The principal could not be paid to them without disregarding the will of the testator. YEATES J. and BRACKENRIDGE J. concurred. CUTHBERT, et al. VOL. VI. Judgment accordingly. END OF MARCH TERM, 1814. 2 F 1814. Lancaster, Thursday, May 19 appeals from an award in the Com CASES IN THE SUPREME COURT OF PENNSYLVANIA. Lancaster District, May Term, 1814. ILOENFRITZ against DOUGLASS. IN ERROR. If a defendant THIS action was commenced in the Common Pleas of Dauphin county after the one hundred dollar law, by mon Pleas for less which a party recovering less than a hundred dollars in the dollars, and the Common Pleas, is not entitled to costs, except in certain sum is recovered cases. than a hundred same or a greater is liable for the costs of the ap peal; but not for any costs before the appeal. on the appeal, heav ytuj ant jadi bagasig nót 2 gmbT [Ɔ ANHA The The cause was referred to arbitration by the defendant in December 1809, and in March following the arbitrators pe awarded to the plaintiff 80 dollars, without costs of suit. On the same day the defendant appealed, and entered into a recognizance, according to the 13th section of the arbitration law of 29th March 1809. The cause was tried in September 1811, and a verdict found in the plaintiff's favour for 86. dollars 70 cents, with six cents damages and six cents costs. The Court below were of opinion that the 13th section of the act of 29th March 1809, did not apply to a defendant in a suit commenced in the Common Pleas, but cognizable before a justice of the peace; and therefore directed the judgment to be entered without any costs. The only point submitted in this Court, was whether the defendant was not liable to the costs of the appeal. Hopkins for the plaintiff in error. Elder for the defendant in error. CASES IN THE SUPREME COURT, &c. PER CURIAM. The defendant below was subject to the payment of all costs subsequent to the appeal; but not of any costs prior to the appeal. 1814. 403 ILGENFRITZ v. Judgment reversed. DOUGLASS. The Commonwealth against IMMELL. HE defendant in this cause was convicted at the last Lancaster, catur for a writ of case, except son to think there THE Oyer and Terminer for Dauphin, of fornication and not grant an allobastardy, and judgment was given. He afterwards applied error in a criminal to Judge Teates for his allocatur to a writ of error, upon where it has reathe ground that the jury had been drawn by the sheriff and has been an error one county commissioner, instead of at least two, in confor- affecting the merits of the parmity with the act of assembly and the precept. His honour ticular case, or refused to allow the writ; and the same motion was now tant bearing upon having an impormade to this Court, by Godwin and Hopkins for the defendant. Duncan contra. TILGHMAN C. J. Taking it for granted that the jury was not properly drawn, the question will be, whether this Court ought to allow a writ of error for the purpose of reversing the judgment. By the act "to establish the judicial courts "of this Commonwealth, in conformity to the alterations " and amendments in the constitution," (13th April 1791) sect. 7. it is enacted that no writ of error shall issue, "unless "the same shall be specially allowed by the Supreme Court, "or one of the justices thereof, upon sufficient cause to it "or him shewn, or shall have been sued out with the con"sent of the attorney general, which special allowance or "consent shall be in writing and certified on the said writ." In considering the sufficiency of the cause shewn, the court must be governed by some fixed principle according with the intent of the act of assembly, and conducive to the public good. I have always supposed that it was not sufficient to shew a trifling error in form, but that the court or judge should be satisfied that there was reason to think there had been an error either affecting the merits of the case, or of a other cases. 1814. COMMONWEALTH V. IMMELL. nature so important with regard to its bearing on other cases, that it was necessary to correct it. As to the merits of the particular case before us, there is no reason to suppose they have been affected by the error complained of. In all probability the jury would have been the same, if both commissioners had attended. Then how stands the matter with respect to the public? There is no important principle of law to be settled; no suggestion that the court of Dauphin county made any mistake, or refused to consider any point brought before them by the defendant. No objection was made to the jury; but the defendant went on to trial, either with a view to reverse the judgment in case he should be convicted, or (which is more probable) not then knowing the error, which he has since discovered. In either case he ought to be bound by the judgment. If he knew of the defect, and took the chance of a verdict in his favour, with a secret intent to overturn it in case it should be against him, he acted uncandidly. But if he did not know of it, he has only himself to blame for ignorance of what appeared on the record. The consequence of allowing this writ of error will be very serious; for if we allow it, we must do the same in every case decided at the same court, so that we shall prostrate the whole proceedings of the court for no useful purpose, but barely to incur the expenses of new proceedings in cases which, for ought that appears, have already been fairly tried and justly decided. In my opinion this would be an exercise of discretion not conformable to the intention of the act on which the defendant founds his motion. I am therefore against the allowance of the writ of error. YEATES J. having previously refused, the allocatur, gave no opinion. BRACKENRIDGE J. concurred with the Chief Justice. Motion denied. HANTZ administrator cum test. annex. of SEALY against SEALY. IN ERROR. 1814. Lancaster, Monday, Marriage is a which may be words in the pre THIS HIS was an action of assumpsit in the Common Pleas of York county, brought to August Term 1807, by civil contract, Mary Sealy the plaintiff below, to recover the amount of the completed by any personal estate of Henry Sealy her late husband, bequeathed sent time without to her by his will. The Narr contained also a count for money had and received. The defendant pleaded; 1. assumpsit; 2. Payment; 3. That the plaintiff was his wife. Non regard to form: but if a man says to a woman, "I "wife," and the An executor is while the probate commenced dur In an action of Upon the trial of the cause, the plaintiff's counsel, in sup- "my husband, port of the first issue, offered in evidence the will of Henry "good enough,” referring to a past Sealy dated the 21st of March 1798, and certified by the illegal marriage Register of York county to have been duly proved by the this is no marand cohabitation, oaths of the subscribing witnesses, on the 12th of April riage. 1798. To this the defendant's counsel objected, and pro- not liable to an duced to the Court in support of their objection: 1. The action for a legacy record of an appeal by Henry Hull and another, made on of the will is suspended by appeal; the 25th of June 1799, to the Register's Court of York nor will an action county, from all acts and decrees of the Register relative to ing that period, the will in question: 2. An order of the Register's Court acquire validity by the subsequent on the 4th of December 1799, directing an issue of devisavit confirmation of vel non in the Common Pleas of York: 3. The record of the the will. trial, verdict, and judgment in favour of the will, in the debt or on the Circuit Court in May 1802: and 4. The record of an appeal executor for a from that judgment to the Supreme Court, and the final con- the testator, the firmation of the will in May 1810, more than two years plea of non est factum or non after this suit was commenced. The counsel for the plaintiff assumpsit is an then gave in evidence that on the 12th of April 1798, letters of which the deof administration with the will annexed pendente lite were fendant is execugranted to Boreas Fahnestock, who settled his account in the action is the Orphan's Court of York county on the 22d of September which the testator 1802, and obtained his discharge on paying over the balance was not liable, as for a legacy. of 4334/. 14s. 34d. remaining in his hands, part in cash and part in bonds and notes &c. to the defendant Hantz, who on the 24th of September, obtained letters of administration de bonis non cum testamento annexo, and received the balance accordingly. The plaintiff's counsel also gave in evi case against an debt due from admission of a will tor: secus, where for a demand on |