records therein referred to disclose no ground for
holding the defendant, Daniel Haddock, Jr.,
liable as a general partner.
Rule withdrawn.

Oral opinion by BIDDLE, J.

ALLISON, P. J., and PEIRCE, J., absent.

C. P. No. 1.

F. M. L.

September 27, 1884. Rowland v. Red Cross Packing Co. Foreign Attachment - Practice-Plaintiff may be required to file an affidavit of cause of action even though he has already filed his narr. and bill of particulars.

Rule to show cause of action.

This was a foreign attachment. The plaintiff having filed a narr. and bill of particulars, the defendant took this rule.

N. Dubois Miller, for the rule.

The Court will inquire into the cause of action on a foreign attachment, in the same manner as on a capias.

Troubat & Haly, 28 2271, 2272. Greenwald, contra.

Assumpsit, against the defendants, as partners, upon a guaranty by J. Bryan & Co. Josiah Bryan, one of the defendants, filed an affidavit of defence, averring "that the partnership, alleged on the record between the defendants, has no existence in relation to the subject matter of this action; that there is no such partnership; that at the date of the transaction involved in this

action deponent was trading alone under the name of J. Bryan & Co."

It was averred in the affidavit for the rule that

the officers of the plaintiff were informed a few months before the giving of the note, the payment of which was the subject of the guaranty in suit, that the firm of J. Bryan & Co., consisted of all the defendants, and that prior to the giving of the said guaranty they had received no information of any change in the firm.

Sharp & Alleman, for the rule.

This application is founded on §§ 2 and 52 of the Rules of Court. The defendant's affidavit complies with the strict letter of § 2, but gives us no information as to the facts. They are entirely in the knowledge of the defendants. The affidavit for the rule is uncontradicted, and satisfies

The narr. and bill of particulars are a sufficient the requirements of § 52. disclosure of the cause of action.

J. Q. Hunsicker, contra.

THE COURT. Rule absolute.

October 4, 1884. THE COURT. We think the rule cited by the defendant's counsel from Troubat & Haly's Practice is well founded. The plaintiff in a foreign attachment must furnish an affidavit of his cause of action if required. The C. P. No. 1. fact that he has already filed his narr. and bill of particulars makes no difference. The defendant whose property and rights of action form the subject of the attachment is certainly entitled to a sworn statement of the cause of action in order that the Court may determine whether there is ground for sustaining the attachment. Such an affidavit should be filed in this case.

F. M. L.

February 7, 1885.

Kennedy v. Fenton. Mortgage-Tender of payment-Forfeiture— Waiver A mortgagor is not in default who calls within the time specified for payment, and not finding the mortgagee at his usual place of business, explains his errand, and is told to call on a subsequent day, at which time he tenders the amount due.

Rule for judgment for want of a sufficient affiIdavit of defence.

Sci. fa. sur mortgage. The mortgage debt was payable in instalments; and there was in the mortgage the usual provision that if default should instalment or of interest or taxes, the whole prinbe made for thirty days in the payment of an cipal debt should, at the option of the mortgagee, become due and payable immediately. The writ contained an averment that such a default had

Partnership, suit against-Practice-Affidavit of
defendant that no partnership exists-If the
affidavit is merely in the words of the Rule of occurred.
Court the defendants may be cross-examined
by plaintiff under an order of Court-Suffi-
ciency of cause for making such an order.

Rule to show cause why defendants should not be examined in regard to the persons originally constituting their firm; the time of the retirement of any of said partners; and what notice, if any, was given of said retirement.

The affidavit of defence set forth that the

instalment alleged to be in default fell due October 1, 1884; that the terre-tenant called on October 31, 1884, at the plaintiff's place of business to pay it, and was told that the plaintiff was not in and would be out of town the next day (Saturday), and, having explained his business to the plaintiff's brother, was directed to call on the

following Monday; that on that day he called and to your deponent's firm, that he never purchased offered to pay the instalment but the plaintiff said potatoes or authorized any person or persons refused to receive it and demanded the entire to purchase said potatoes for and on his account principal and interest on the ground that the and in his behalf; that said potatoes, or any part whole had become due by reason of the non- thereof, nor the value or any part or portion of payment of the said instalment within thirty the value of said potatoes have never been redays after it fell due. turned to deponent's firm. All of which facts are true and correct.

THE COURT. It was enough that in pursuance It is at the best but a mere belief founded upon of the request of the plaintiff's brother the terre-information which, so far as the Court knows, is tenant returned and tendered the money on the false, and not a positive assertion of the existence following Monday.

December 6, 1884. of the defendant.

Francis A. Lewis, for petitioner.

The alleged lunatic has about $1300. He may live several years, and must be provided for. The costs of an inquisition will be larger before a commissioner and a sheriff's jury, and the case would seem to be one contemplated by the Act. [YERKES, J. An inquisition in the usual way ought not to cost more than fifty dollars.] That is so, but as a matter of fact they always cost much more.

Eo die. THE COURT. We cannot grant this petition. The Act of 1836 was not intended to apply to a case of this kind. Proceedings must be taken in the usual form. We recently refused to entertain a similar petition where the alleged lunatic's estate was less than this. Oral opinion by YERKES, J.

Orphans' Court.

November 19, 1884.

Serrill's Estate.

"The principal was composed of municipal loans to the value of $16,737.76, and of State loans costing $1829.09, and cash $1365.82. The Auditing Judge is of opinion that interest upon the said securities should be apportioned to the date of death of the life tenant. As to the former class the rule was distinctly laid down in Truefitt's Estate (14 WEEKLY NOTES, 242), and its application to the State loan would seem to be justified by the fact that the gift was for the sole and separate use of the testator's daughter.

"On April 13, 1861, Samuel M. Wickersham by assignment duly executed and acknowledged Vested and contingent interests-What passes reciting the residuary clause of testator's will, under assignment for the benefit of creditors-assigned and conveyed to Morris S. and CadConstruction of written instruments-Legal walader Wickersham all the personal estate to maxims applicable thereto-Apportionment of which he was entitled under the said will, or as instrument-De minimis non curat lex. Sur exceptions to adjudication.

The facts, as stated in the adjudication of ASHMAN, J., upon the account of the Pennsylvania Company for Insurances on Lives and Granting Annuities, substituted trustee for Anna B. Serrill, deceased, under the will of Thomas Wickersham, deceased, were as follows:—

"The trust arose under the third clause of the testator's will by which he bequeathed to Morris C. Shallcross, M.D., $20,000 in trust to invest the same and pay over the income to testator's daughter, Anna B. Wickersham (afterwards Serrill), during life for her sole and separate use, and upon her death leaving a child or children then to hold the same for such children in such manner, etc., as his said daughter might by will, limit and appoint, and in the event of her dying without children, then he directed that the said sum of $20,000 should become part of his residuary estate.

"By the fourth clause he gave to his sons Morris S. Wickersham, Samuel M. Wickersham, and Cadwalader Wickersham, all his residuary estate as tenants in common in equal shares less the amounts charged against them respectively on his ledger. He appointed Morris S. Wickersham

heir of his father, the testator. The consideraation named was $15,500. On the same day he executed and delivered a release under seal to the said Morris S. and Cadwalader Wickersham of all claims against them arising out of the said estate as individuals and as executors.

"Morris S. Wickersham afterwards died. Cadwalader Wickersham on February 23, 1880, executed an assignment, which was duly recorded, to the Fidelity Trust Company of all his property for the benefit of creditors. The personal representatives of Morris S. Wickersham and the assignees of Cadwalader Wickersham claim each one-half of the distributive interest of Samuel M. Wickersham by virtue of his assignment of April 13, 1861.

"Both claims were resisted by the assignor, Samuel M. Wickersham, on the ground that his interest in the estate was a contingent interest, and as such did not pass under the deed to his brothers.

"The claim of the Fidelity, etc., Company as assignees for the benefit of the creditors of Cadwalader Wickersham (both of his interest under the will, and his interest under the deed of Samuel M. Wickersham) was resisted by the same company as administrator d. b. n. c. t. a.

of Eliza C. Wickersham, deceased, an attaching The $20,000 were paid to the trustee in 1859, creditor of Cadwalader Wickersham. The and subsequently the executors filed their account, attachment was founded upon a decree of the which was referred to an auditor for settlement Orphans' Court in favor of Eliza C. Wickersham and distribution. The auditor having reported in the sum of $40,799.67, and was served that the advancements to Samuel exceeded his August 25, 1884." share of the fund to be distributed by $18,312.34, Upon this state of facts, after considering the exceptions were filed by the latter to this finding. terms of the various instruments which passed Afterwards, on the 13th of April, 1861, Samuel, between the parties, above referred to, and in consideration of the sum of $15,500 paid to reviewing the authorities, the Auditing Judge him by Calwalader and Morris, executed to found that the question whether Samuel's interest them a deed for his interest in the residuary under the will was vested or contingent need not realty and an assignment of all his interest in the be determined. "In either aspect it certainly personal estate of the testator, executing, at the passed under a deed which conveyed all the per- same time, a release to the estate and the sonal estate to which the grantor was entitled executors of all accounts, claims, demands, etc. under the will. It was such an interest as could etc.; and a few days afterwards his exceptions be sold, and it was comprehended in the meaning were withdrawn, and a decree entered confirmof the word 'estate' which is broad enough to ing the report of the Auditor. The daughter cover any contingent interest or expectancy." died without leaving children or issue in July, As to whether the interest thus derived from 1884, and the present account, filed by the subSamuel by Cadwalader passed by his (Cadwala-stituted trustee, is of the $20,000 held in trust der's) assignment for the benefit of his creditors, during her lifetime, and now falling, under the the Judge held that the words of the assignment terms of the will, into the residuary estate of the "all and singular the lands, tenements, heredita- testator. ments, goods, chattels, wares, money, choses in action, rights, assets, securities, estates and property real, personal, and mixed, whatsoever and wheresoever of him the said Cadwalader Wickersham" were sufficiently broad to cover this interest and transfer it to the Fidelity Company, his assignees.

J. Cooke Longstreth, for Samuel

M.

It is claimed on behalf of Samuel, that his interest in this fund was a contingent one, and that it remained in him, notwithstanding the assignment and release; that the parties only intended to embrace in their settlement his interest in the fund then in the hands of the executors for distribution, and that the general words of assignment will be restrained accordingly.

The principle is undoubtedly a well-established

To these findings exceptions were filed by Samuel M. Wickersham and the Fidelity, etc., Company, administrators of Eliza C. Wicker-one that general words will be so restrained as sham, deceased. to conform to the manifest purpose of the instrument in which they are used; but it is never applied where, in order to accomplish what is assumed to have been the intention of the parties, words must be stricken out or deprived of their ordinary and obvious meaning. This would not only involve a petitio principii, but

Wickersham.

John Marshall Gest, for the Fidelity Insurance, Trust, and Safe Deposit Company, administrators d. b. n. c. t. a. of Eliza C. Wickersham, deceased.

Robert H. McGrath, for estate of Morris S. would violate the cardinal rule which forbids Wickersham.

William P. Gest, for the Fidelity, Insurance, Trust, and Safe Deposit Company, assignees of Cadwalader Wickersham.

December 13, 1884. THE COURT. By the third clause of his will, the testator gave $20,000 in trust for his daughter, then unmarried, for life, with remainder to her children, etc., as she should appoint by will, or, in the absence of appointment, to her children, etc., equally; directing that, in default of children, etc., the sum so given should fall into and become part of his residuary estate. By the fourth clause of the will, the residuary estate, real and personal, was given to his sons, Samuel, Morris, and Cadwalader, in equal shares, less advancements made to them, respectively, as shown by his ledger. Calwalader and Morris were appointed executors.

interpretation where the language is clear and free from ambiguity. Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est. (Dame's Appeal, 12 Smith, 417; Senhouse v. Christian, 1 Term Rep. 560). And even where the intention of the parties is not clear and plain, but in equilibrio, the words will receive their most natural and proper construction (Hannum v. West Chester, 20 Smith, 372); especially in Pennsylvania, where the doctrine of contra proferentem fortius [not now recognized as a canon of construction in England. Taylor v. St. Helens, 6 Chanc. Div. 264; Grey v. Pearson, 6 H. L. C. 61] is still adhered to as against a grantor. It is a maxim that “what is generally spoken shall be generally understood, generalia verba sunt generaliter intelligenda, unless it is qualified by some special subsequent words." (See, also, Buchanan v. Andrew, 2

Scotch Ap. 286; Alden's Appeal, 12 Norris, | $20,000, then in the hands of the trustee, could 182; R. R. Co. v. Pittsburgh, 30 Smith, 75; not, under any circumstances, exceed one-third Waugh v. Waugh, 3 Norris, 350; Broom's Leg. of that sum, and, if credited on the $18,312.34, Max. 619-20). would leave $11,645.67 to be charged against Nothing could be more explicit and compre-him in the distribution of the real estate. They hensive than the language used in this assignment: were settling a controversy which had been, "all the personal estate of any kind, quality, and apparently, a bitter and protracted one; and description whatsoever and wheresoever situate, this might be reopened, unless Samuel parted to, or in which I am entitled or in anywise with all possible interest in the estate. We interested by virtue of the said recited will and should expect, therefore, the settlement to be testament, or as one of the heirs of the said final and complete; and the language of the Thomas Wickersham, deceased," "together instruments which they have employed is prewith all the rights, incidents, and appurtenances cisely such as would be used to produce this thereunto belonging or in anywise appertaining, result. The assignment is of every "interest of and all the right, title, and interest of every nature every nature whatever," "of all the personal whatsoever of me, the said Samuel Wickersham property of any kind or quality to which he is therein." And unless we strike out entitled or in anywise interested by virtue of" as meaningless or redundant the expressions the will, and the release is not only of all claims, "anywise interested by virtue of said will," etc., which Samuel then had, but of such as his and "interest of every nature whatever," it is heirs, executors, or administrators might" have not easy to see how any possible interest could at any future time. remain in Samuel after the execution of this instrument.

But if a doubt should still exist under the assignment, it is completely removed by the release. It is to be observed that, so far as the residuary estate then in the hands of the executors was concerned, the release was without purpose, since distribution was about to be made under the decree of the Court. It is not to be presumed that the parties intended to do an idle act; and the only subject upon which a release could act was the personalty, then in the hands of the trustee, which, in the event of the daughter's death without issue, night come back to the executors, under the terms of the will, as part of the residuary estate. There was no privity between the residuary legatees and the trustee; they, of course, took through the executors, though for convenience of distribution, and because the debts of the testator have been fully paid, the award is now made directly to them; and a release to the trustee was unnecessary so far as the legatee was concerned. The release given included not only the executors, but in terms "all and singular the estate of the said Thomas Wickersham, deceased, real and personal;" and it was of all actions, dues, demands, accounts, etc., etc., which the releasor "ever had, now has," or which his heirs, executors, or administrators can, shall, or may have hereafter, for, upon, or by reason of the said devise, or by reason of any matter, cause, or thing whatsoever."

With an Auditor's report finding that Samuel had received advancements in excess of his share of the fund then distributed to the sum of over $18,000, it is scarcely likely that his brothers would have been willing to pay, additionally, $15,500, and have him still retain an interest in the estate. His share of the

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It is not important, in view of the comprehensive language of the assignment and release, whether the right of Samuel in the moneys held in trust was vested or contingent. It passed in either case to his grantees. We are of opinion, however, that the Auditing Judge was entirely right in holding that it was vested, subject to being divested by the death of the sister leaving issue. (Pennock v. Eagles, 6 Out. 290; Booth v. Booth, 4 Ves. 399; Doe v. Martin, 4 Term R. 39).

We are of opinion, also, that the assignment for the benefit of creditors made by Calwalader Wickersham passed his interest in the fund. The object of an assignment of this character is to prevent a preference from being obtained by a single creditor, through the instrumentality of an execution, and this object would not be accomplished if everything which could be levied upon was not embraced in it. It cannot be doubted that an attachment sur judgment might under our statute, have issued at any time against this interest of the assignor during the continuance of the trust; and the assignment, in express terms, includes all choses in action, rights, assets, securities, estates, and property, real and personal, whatsoever and wheresoever." That choses in action and rights of all sorts, whether vested or contingent, are the subject of assignment in Pennsylvania, is a matter not open to discussion.

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