of law is outlawed, he who appears shall be charged with the 1819. whole, as appears in 40 Ed. 3. 36. 41 Ed. 3. 3. But where Philadelphia. one is sued alone, he might have pleaded in abatement of the DILLMAN writ, but cannot plead non est factum." and another v. It has been decided by this Court, in Douglass v. Beam, 2 SCHULTZ. Binn. 76, that a variance between the declaration and bond on which oyer is given, is matter of demurrer, but not of error. This was debt on bond; the plea payment. The Court say, the variance was waved by the plea; it was foreign to the issue. And in the Supreme Court of New York, (Garland v. Chattle & Clough, 12 Johns. Rep. 430.) it was held, that after plea pleaded, it is too late to take advantage of a variance between the declaration and the writ. In that case a writ issued against Chattle alone, but the declaration was against both. Chattle pleaded there non assumpsit, and the statute of limitations. The plaintiff proved on the trial, that the money was paid for the use of both, and had a verdict; and the Court held, that the variance between the declaration and the writ should have been taken advantage of at the proper time, but that after plea pleaded, the objection came too late. Where the party has his cause tried on a plea which goes to the merits, and on which he relies, and has put the plaintiff to the delay, trouble, and expense of a trial, it is not reasonable, after taking his chance for a verdict, that he shall turn the plaintiff round and avail himself of a formal exception, when he slipped the time when he ought to have made the objection, and when, if there was any thing in it, he could have availed himself of the informality. The law has wisely decided that such objections shall be made in limine, in the earliest stage of the cause an opportunity is given to the defendant. If he lies by, he shall not, at the last stage of it, be heard on such objections. Judgment affirmed. 1819. Philadelphia. SWIFT by his guardian BoUTCHER against DUFFIELD and another executors of SWIFT. Monday, January 4. A posthumous grandchild, en ventre sa mere at the time of making the will and death of CASE STATED. JOHN SWIFT, the grand-father of the plaintiff, made his last will on the 27th December, 1813, and died on the 29th of the same month, leaving both real and personal estate, and five grand-sons, and two grand-daughters, the chil dren of his son Edward, deceased, and one grand-daughter, the testator, is Elizabeth Vanbeuren the child of a deceased daughter. The grand-child's said Edward Swift, the only son of the testator, and father of devise and be- the plaintiff, died on the 26th December, 1813. At the period quest, to the of the death of John Swift the testator, the widow of his son "grand-chil- Edward, was enseint with a child, who was born in April, dren of his son 1814, and was the plaintiff in this suit. entitled to a share under a testator's dren, the chil A, deceased," of all the re residue of his estate, both real and personal, whatsoever and wheresoever to be found. The testator, after directing the payment of his debts and mainder and funeral expenses, and giving legacies to, and making provision for his wife, and giving legacies to several of his grand-children, proceeded as follows: "I will and devise unto my grand-children, the children of my son Edward, deceased, all the remainder and residue of my estate, both real and personal whatsoever, and wheresoever to be found; to be equally divided between them as tenants in common, and not as joint tenants; to be enjoyed by them severally and respectively, and their heirs and assigns, forever," subject to the before mentioned legacies and provision for his wife. The question for the opinion of the Court was, whether the plaintiff was entitled to a grand-child's share of the estate of John Swift, under the devise and bequest in his will. Ingraham, for the plaintiff, contended, that the plaintiff, though en ventre sa mere at the death of the testator, took as if then born; and cited Beale v. Beale.(a) Northey v. Strange.(b) Miller v. Turner.(c) 2 Ves. 84. Wallis v. Hodson.(a) Bassett v. Bassett.(b) Pemberton v. Park.(c) Wharton, for the defendant, answered, that to take under this will, it was necessary that the plaintiff should have been born at the time when the will was made, or, at all events, at the death of the testator; and referred to Ellison v. Airey.(d) Opinion of the Chief Justice, and YEATES J. 5 Binn. 601. Northey v. Burbage.(e) 2 Vern.653. Garbland v. Mayot.(f) Cook v. Cook.(g) Hodges v. Isaacs.(h) Baldwin v. Carver.(i) The opinion of the Court was delivered by DUNCAN J. Where the intention of a testator is ambiguously expressed, the time of making the will; the state of the property; and situation of the family, are often resorted to in aid of its construction. If it were necessary here to have such resort, all the circumstances conspire to shew, who were intended by the testator, under the denomination of "my grand-children, the children of my son Edward." Edward, the only son of the testator, died on the 26th September, 1813, leaving seven children then born, and his wife pregnant. The testator made his will on the 27th, and died on the 29th, of the same month. The plaintiff, the child of which the wife of Edward was pregnant, was born in April, 1814. The testator, when the will was made, had a granddaughter, Elizabeth Vanbeuren, for whom he makes certain provisions, and after the bequest to his wife, makes the devise in question. "I will and devise unto my grand-children, the children of my son Edward, deceased, all the remainder and residue of my estate both real and personal, to be enjoyed by them severally and respectively, and their heirs and assigns for ever." It is impossible to doubt of the real intention of the testator. Had Edward been living when the will was executed, it is evident that he would have been the object of the testator's bounty, and that to him the residue would have been devised. He died but two days before, v. and another SWIFT. 1819. and the grand-father substituted the children of Edward in Philadelphia. the place of their deceased father; not nominatim; not as SWIFT persons described; not because being known to the grandby his guardian father, they had became the objects of his personal regard BOUTCHER and affection; but solely because they were the children of DUFFIELD his son. A division between the whole stock of Edward, executors of and not particular branches of that stock; the whole number, whatever they might be, and not any described portion of children, was intended by the testator, by the use of the words, "my grand-children, the children of my son Edward." The whole class of children, and not particular individuals of that class, is comprehended in these words. One would feel remorse of conscience in being bound, by any inflexible rule of property, to exclude this infant; for it would be against reason and nature, and contrary to the plain intention of the testator. However the law might formerly have stood, there is, at present, no such rule. For it is now settled, according to the dictates of common sense and humanity, that a child en ventre sa mere, for all purposes for his own benefit, is considered as absolutely born. He takes by descent-under the statute of distributions—is entitled to the benefit of a charge for raising portions for children-may be executor-have a guardian assigned-in executory devises is a life in being-may be vouched in a common recovery. In a devise to children or grand-children, the prima facie intention will include a child en ventre sa mere, unless it appears, by particular expressions in the will, that the testator intended the contrary, and confines it to children then born. There are no such expressions in this will. In Wallis v. Hodson, 2 Atk. 117, the true and just rule is laid down by Lord HARDWICKE, who observes, the principal reason he went on, in the question before him, was, that the plaintiff was en ventre sa mere at her brother's death, and consequently a person in rerum natura; that both by the rules of the common and civil law, she was, to all intents and purposes, a child, as much as if born in her father's life time. A child in the womb of the mother is under the protection of the law, and possesses all the privileges of a living being. He is considered as born from the time the will takes effect. Considering here the plaintiff as so born, (and natural justice requires that he should be so considered,) he is entitled, as a child of Ed SWIFT by his ward, to one-eighth part of the estate devised to the children. 1819. of Edward. No inconvenience as to vesting can arise Philadelphia. from this construction. It is postponed for a few months. The debt of nature which the father owed, (and the grandfather stood here in the place of a father to provide for all his children,) extends to posthumous ones. Let judgment be entered for the plaintiff on the case sta- executors of ted. Judgment for the plaintiff. guardian BOUTCHER V. DUFFIELD and another SWIFT. MOORE against The Philadelphia Bank. MOTION for a new trial. This motion was argued by E. S. Sergeant and F. R. Ingersoll, in its support, and Kittera, contra. J. The opinion of the Court was delivered by Monday, It is incumbent on the party who moves for a new trial, on the ground of newly-discovered evidence, to satisfy the Court, 1st. that it came to his knowledge trial; 2d. that of due dili did not come sooner; and new trial were ferent verdict TILGHMAN C. J. This is an action against the Philadel- since the phia Bank, for the sum of $500 offered by the directors, as a it was not reward to the person who should discover and secure the owing to want perpetrators of a robbery, committed in the month of October gence that it in the year 1816. The defendants may be considered in the light of stake-holders, who are willing to pay the money in 3d. that if a their hands, to the person entitled to the reward. The plain- granted, a diftiff claims it, and it is also claimed by a certain William would proba Elliott, who gave notice to the bank not to payjit to the plain- bly take place, tiff. So that the persons really interested in the suit are Sargeant & Moore, the plaintiff, and William Elliott, who stands in the place of the bank, the nominal defendant. The cause was tried at Nisi Prius, before Judge DUNCAN, and the only question was, whether Moore or Elliott was the person who caused the robber of the bank, (one Larned,) to be apprehended. This was submitted as a fact for the decision of the jury, who found for the plaintiff, to the Judge's entire satisfaction. A new trial has been moved for, on the ground VOL. V.-F Rawle 5 SR 202 41 242 |