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*533

from the devise over in the contingency of her dying under age and without issue then living, thereby implying that her estate would not be terminated by her death after coming of age or leaving issue; as well as from the provision of the statute of Pennsylvania of April 8, 1833, that "all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation or otherwise in the will, that the testator intended to devise a less estate." 2 Jarm. Wills, (5th Amer. Ed.) 270, 271, 276, and note; Purd. Dig. (10th Ed.) 1475, § 10.

It is equally clear that, upon her death under age, and without issue then living, her estate in fee was defeated by the executory devise over. When, indeed, a devise is made to one person in fee, and, "in case of his death," to another in fee, the absurdity of speaking of the one event which is sure to occur to all living, as uncertain and contingent, has led the courts to interpret the devise over as referring only to death in the testator's life-time. 2 Jarm. Wills, c. 48; Briggs v. Shaw, 9 Allen, 516; Lord CAIRNS in O'Mahoney v. Burdett, L. R. 7 H. L. 388, 395. But when the death of the first taker is coupled with other circumstances which may or may not ever take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, upon death, under the circumstances indicated, at any time, whether before or after the death of the testator. O'Mahoney v. Burdett, above cited; 2 Jarm. Wills, c. 49.

We find nothing in this will to take the case out of the general rule, or to support the argument of the plaintiff in error that the testator intended that the devise over should not take effect if Eliza Ann survived him, or, at least, if she survived his son William. The phrase in the specific devise that, in the prescribed contingency, the land shall "revert and become part of the residue," is quite as consistent with the happening of the contingency after the estate has once vested in the devisee, as with its happening in the testator's life-time and before any estate has vested in her. The direction in the residuary clause that the residue shall be divided among all the testator's grandchildren when the oldest living grandchild shall attain the age of 21 years, or at the death of the testator's son William, whichever shall first occur, does not necessarily require a single and final division of the whole residue upon the death of William or the coming of age of a grandchild; for either of those events might happen before the termination of the widow's estate for life in that part of the property, real and personal, which, upon her death, must fall into the residue; and the coming of age of a grandchild might happen during the life of William, to whom also the testator had devised a life-estate in other land.

The provision that Eliza Ann, a natural daughter of the testator's son Nelson, shall be considered a grandchild and share as such in the residue, is coupled with a provision that the specific devise to her, according to an estimate to be made of its value, shall be charged to her as part of her share. The reasonable construction of this provision, as both parties agree, is that the estimate made for that purpose shall be of the value of the land devised to her, not of the value of her defeasible estate in the land. By estimating the land at its full value, she would take an equal share with each grandchild in the whole property, if her estate in the land became indefeasible; and she would lose no more than the land, if her estate was defeated by the contingency prescribed in the specific devise, of her dying in her minority and without issue then living. By the specific devise, it is only upon that contingency that the land devised to her is to "revert and become a part of the residue;" and, upon a view of the whole will, we are satisfied that the circuit court rightly held that she took nothing in this land under the residuary devise, and that her title under the specific devise was defeated by her dying under

age and leaving no issue surviving her. This conclusion accords with that of the supreme court of Pennsylvania in an action of ejectment for the same land, brought in 1874 by John Russell Thornton, the present plaintiff, against Britton, one of the grantors of the present defendant Wilson, in which that court, as appears by opinions not officially reported, but copies of which have been submitted to us, held, and upon petition for reargument reaflirmed, that, "as to this particular tract of land, the estate of Eliza Ann became extinct, by the terms of the will itself, at the time of her death without issue." The other questions in the case depend upon the construction and effect of the statute of Pennsylvania of April 13, 1807, by which, "when two verdicts shall, in any writ of ejectment between the same parties, be given in succession for the plaintiff or defendant, and judgment be rendered thereon, no new ejectment shall be brought; but when there may be verdict against verdict between the same parties, and judgment thereon, a third ejectment in such case, and judgment thereon, shall be final and conclusive, and bar the right." Purd. Dig. 535, § 15. This statute, giving a conclusive effect to judgments in ejectment, which they did not have at common law, establishes a rule of property concerning the title in land within the state of Pennsylvania, and binds the courts of the United States as well as the courts of the state. Miles v. Caldwell, 2 Wall. 35; Blanchard v. Brown, 3 Wall. 245; Equator Co. v. Hall, 106 U. S. 86; S. C. 1 SUP. CT. REP. 128. By the clear intention of this statute, as by its uniform interpretation by the supreme court of Pennsylvania, it requires two concurring verdicts and judgments thereon in a common-law ejectment between the same parties, upon the same title, to conclude the right. The words "the same parties" of course include their heirs or assigns. Evans v. Patterson, 4 Wall. 224; Drexel v. Man, 2 Pa. St. 267. An award of referees has been made by the legislature, and a judgment, after full hearing upon general demurrer or case stated, has been deemed by the court equivalent to a verdict, (Ives v. Leet, 14 Serg. & R. 301; Mercer v. Watson, 1 Watts, 330;) but in Mercer v. Watson the court, after full consideration of the terms of the statute and of the reasons for its passage, concluded that "the legislature did not intend to bar the party from bringing a new action of ejectment for the same land, upon the same title, until after two decisions should be had against him upon a full view and consideration of the whole of his case, and all the circumstances connected with it which he might think material, either by two judgments of a court of competent jurisdiction rendered upon general verdicts, special verdicts, cases stated, or in cases of demurrer to the pleadings or the evidence," (1 Watts, 344;) and in Treaster v. Fleischer, 7 Watts & S. 137, it was adjudged that, although the statute did not expressly say so, the former verdicts and judgments must have been on the same title, because, in the words of Chief Justice GIBSON, "it certainly could not have been in tended that a title should be barred by adjudication without having been adjudicated.' 7 Watts & S. 138. To the same effect are Kinter v. Jenks, 43 Pa. St. 445; Chase v. Irvin, 87 Pa. St. 286; Barrows v. Kindred, 4 Wall. 399; and Merryman v. Bourne, 9 Wall. 592.

The special verdict in the former action in the circuit court had no greater effect than a general verdict, and could not, consistently with the statute, be held to be of itself conclusive upon the general question of title, or upon any question necessarily involved in the determination of that title. The verdict and judgment in the former action in the court of common pleas were incompetent evidence under the statute, because, as the bill of exceptions in the present case shows, they did not pass upon the question whether Eliza Ann had an indefeasible title in the land, but only upon the point that her husband had a title by the curtesy therein, whether her title was defeasible or indefeasible. In Pennsylvania, birth of issue is not necessary to create an estate by the curtesy. Purd. Dig. 806, § 4; Thornton v. Krepps, 37 Pa. St. 391. Judgment affirmed.

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(112 U. S. 604)

BOND and another v. DUSTIN.

(December 22, 1884.)

1. PRACTICE-WRIT OF ERROR-WAIVER OF JURY IN CIRCUIT COURT-BILL OF EXCEP

TIONS.

In an action at law, submitted to the decision of the circuit court by the parties, waiving a trial by jury, in which the record does not show the filing of the stipu lation in writing required by section 649 of the Revised Statutes, this court, upon bill of exceptions and writ of error, cannot review rulings upon the admission or rejection of testimony, or upon any other question of law growing out of the evidence, but may determine whether the declaration is sufficient to support the judg

ment.

2. SAME STIPULATION AS TO WAIVER OF JURY-REV. ST. § 649.

The filing of a stipulation in writing, waiving a jury, under section 649 of the Revised Statutes, is not sufficiently shown by a statement in the record or in the bill of exceptions, that "the issue joined by consent is tried by the court, a jury being waived," or that "the case came on for trial, by agreement of parties, by the court, without the intervention of a jury."

3. SAME-MOTION IN ARREST OF JUDGMENT.

A motion in arrest of judgment can only be maintained for a defect apparent upon the record, and the evidence is no part of the record for this purpose. 4. SAME-STATE STATUTE-PRACTICE IN FEDERAL COURT.

A statute of a state, providing that a verdict returned on several counts shall not be set aside or reversed if one count is sufficient, governs proceedings in cases tried in the federal courts within that state, and is applicable to judgments lawfully rendered without a verdict.

In Error to the Circuit Court of the United States for the Southern District of Illinois.

A. Stirling, Jr., and Nicholas P. Bond, for plaintiffs in error. H. S. Greene, for defendant in error.

GRAY, J. This was a writ of error to reverse a judgment of the circuit court of the United States for the Southern district of Illinois, for the defendant in error, in an action of assumpsit brought by him against the plaintiffs in error, and tried by that court without a jury. The declaration contained two special counts on bills of exchange, the one for $2,500 and the other for $4,000, drawn upon the defendants by one Falconer, their agent, at their instance and for their benefit, and indorsed by the payees to the plaintiff; as well as common counts in the sum of $10,000 for money lent, money paid, money had and received, interest for the use of money due, and upon an account stated. The defendants pleaded non assumpsit, and denied the signatures of the instruments set forth in the first two counts. The record stated that the parties came by their attorneys, "and the issue joined by consent is tried by the court, a jury being waived;" and that the court, having heard the evidence and arguments, "finds the issue for the plaintiff, and assesses his damages at the sum of $7,173.42; whereupon the defendants enter their motion for a new trial and in arrest of judgment, which, being heard by the court, is overruled," and judgment rendered for the plaintiff for that sum and costs.

The court allowed a bill of exceptions, which began with the recital, "the above cause coming on for trial, by agreement of parties, by the court, without the intervention of a jury," and which stated all the evidence introduced by either party; the objections taken by the defendants to the admission of some of the evidence introduced by the plaintiff; the finding and judgment of the court; a motion of the defendants for a new trial because the court heard incompetent testimony against the defendants' objection, and because the judgment was against the law and the evidence; the overruling of that motion; the subsequent making and overruling of a motion in arrest of judg. ment; and that the defendants excepted to the admission of the evidence objected to, and to the overruling of the two motions. The errors assigned and

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209.

argued were to the admission of evidence at the trial; to the overruling of the motion in arrest of judgment; and to "giving judgment against the plaintiff in error upon the contracts alleged and proved, because, upon the pleadings and evidence, it did not appear that the court had jurisdiction to hear and determine an action brought by the defendant in error on said contracts, or any of the same."

The first question to be determined is how far this court upon this record has authority to consider the alleged errors. By the act of March 3, 1865, c. 86, § 4, re-enacted in the Revised Statutes, it is provided that issues of fact in civil cases may be tried and determined by the circuit court without the intervention of a jury, whenever the parties, or their attorneys of record, file a stipulation in writing with the clerk of the court waiving a jury; that the finding of the court upon the facts shall have the same effect as the verdict of a jury; and that its rulings in the progress of the trial, when excepted to at the time, and presented by bill of exceptions, may be reviewed by this court upon error or appeal. 13 St. 501; Rev. St. §§ 649, 700.

Before the passage of this statute, it had been settled by repeated decisions that in any action at law in which the parties waived a trial by jury and submitted the facts to the determination of the circuit court upon the evidence, its judgment was valid; but that this court had no authority to revise its opinion upon the admission or rejection of testimony, or upon any other question of law growing out of the evidence, and therefore, when no other error appeared on the record, must affirm the judgment. Guild v. Frontin, 18 How. 135; Kelsey v. Forsyth, 21 How. 85; Campbell v. Boyreau, Id. 223. The reason for this, as stated by Chief Justice TANEY in Campbell v. Boyreau, was that, "by the established and familiar rules and principles which govern common-law proceedings, no question of law can be reviewed and reexamined in an appellate court upon writ of error, (except only where it arises upon the process, pleadings, or judgment in the cause,) unless the facts are found by a jury, by a general or special verdict, or are admitted by the parties upon a case stated in the nature of a special verdict, stating the facts and referring the questions of law to the court." 21 How. 226. Even in actions duly referred by rule of court to an arbitrator, only rulings and decisions in matter of law after the return of the award were reviewable. Thornton v. Carson, 7 Cranch, 596, 601; Alexandria Canal Co. v. Swann, 5 How. 83; York & C. R. Co. v. Myers, 18 How. 246; Heckers v. Fowler, 2 Wall. 123. Since the passage of this statute, it is equally well settled by a series of decisions that this court cannot consider the correctness of rulings at the trial of an action by the circuit court without a jury, unless the record shows such a waiver of a jury-as the statute requires, by stipulation in writing, signed by the parties or their attorneys, and filed with the clerk. Flanders v. Tweed, 9 Wall. 425; Kearney v. Case, 12 Wall. 275; Gilman v. Illinois & M. T. Co. 91 U. S. 603, 614; Madison Co. v. Warren, 106 U. S. 622; S. C. 2 Sup. Ct. REP. 86; Alexander Co. v. Kimball, 106 U. S. 623; S. C. 2 Sup. CT. REP. 86, note. In Flanders v. Tweed, Mr. Justice NELSON quoted the passage just cited from the opinion of Chief Justice TANEY in Campbell v. Boyreau, and said that when a trial by jury had been waived, but there was no stipulation in writing, no finding of the facts, and no question upon the pleadings, the judgment must, according to the course of proceeding in previous cases, be affirmed, unless under very special circumstances this court otherwise ordered. 9 Wall. 429, 431.

The most appropriate evidence of a compliance with the statute is a copy of the stipulation in writing filed with the clerk. But the existence of the condition upon which a review is allowed is sufficiently shown by a statement, in the finding of facts by the court, or in the bill of exceptions, or in the record of the judgment entry, that such a stipulation was made in writing. Kearney v. Case, 12 Wall. 283, 284: Dickinson v. Planters' Bank, 16 Wall.

250. So it has been held that a written consent of the parties, after a trial by jury has begun, to withdraw a juror and refer the case to a referee, in accordance with a statute of the state authorizing this course, is a sufficient stipulation in writing waiving a jury; and that when the court has authority to refer a case upon consent in writing only, an order expressed to be made "by consent of parties," that the case be referred, necessarily implies that such consent was in writing. Boogher v. Insurance Co. 103 U. S. 90. See, also, U. S. v. Harris, 106 U. S. 629, 634, 635; S. C. 1 SUP. CT. REP. 601. And since the statute, as before, a judgment upon an agreed statement of facts or case stated, signed by the parties or their counsel, and entered of record, leaving no question of fact to be tried, and presenting nothing but a question of law, may be reviewed on error. Supervisors v. Kennicott, 103 U. S. 554; U. 8. v. Eliason, 16 Pet. 291; Burr v. Des Moines Co. 1 Wall. 99; Campbell v. Royreau, above cited.

*The record before us contains nothing to show that there was any stipulation in writing waiving a jury. The circuit court had authority to try and determine the case, whether the waiver was written or oral. In the finding of facts and in the judgment there is no statement upon the subject. The only evidence of a waiver of a jury is in the statement in the record that when the case came on for trial "the issue joined by consent is tried by the court, a jury being waived:" and in the recital at the beginning of the bill of exceptions, "the above cause coming on for trial, by agreement of parties, by the court, without the intervention of a jury." The case cannot be distinguished, in any particular favorable to the plaintiffs in error, from those of Madison Co. v. Warren, and Alexander Co. v. Kimball, above cited, the latest adjudications upon the subject, both of which came up from the same court as the present case. In one of those cases, the statement in the record was "the parties having stipulated to submit the case for trial by the court without the intervention of a jury;" and, in the bill of exceptions, "said cause being tried by the court without a jury, by agreement of parties.' In the other case, the statement in the record was in the very same words as in the case at bar; and in the bill of exceptions was in these words: "upon the trial of this cause before the Hon. S. H. TREAT, sitting as circuit judge, a jury being waived by both parties." The necessary conclusion is that this court has no authority to consider the exceptions to the admission of evidence at the trial. The attempt to sustain the motion in arrest of judgment, by an argument that the evidence was insufficient to warrant a recovery in this action, fails for the same reason, as well as because a motion in arrest of judgment can only be maintained for a defect apparent upon the face of the record, and the evidence is no part of the record for this purpose. Carter v. Bennett, 15 How. 354.

The plaintiffs in error further contend that neither of the special counts sets forth any cause of action, and that the finding and judgment, being general, and not limited to the common counts, should therefore be set aside. This objection, so far as it touches the sufficiency of the declaration to support the judgment, is fairly presented for the determination of this court, within the rule laid down by Chief Justice TANEY in Campbell v. Boyreau, and by Mr. Justice NELSON in Flanders v. Tweed, as already stated. But, by the law applicable to this case, the objection cannot be sustained. By the common law, indeed, a general verdict and judgment upon several counts in a civil action must be reversed on writ of error, if only one of the counts was bad. But Lord MANSFIELD "exceedingly lamented that ever so inconvenient and ill-founded a rule should have been established," and added, "what makes this rule appear more absurd is that it does not hold in the case of criminal prosecutions." Grant v. Astle, 2 Doug. 722, 730; Snyder v. U. S. 112 U. S. 216; S. C. 5 SUP. CT. REP. 118. In Illinois it has been changed by statute, providing that "whenever an entire verdict shall be given on sev.

809.

609*