The

intestate in 1829. The defendants claimed under an alleged will of the said Isaac Jones made in 1807, which was in 1830 admitted to probate in Philadelphia. A certified copy of the record of said will and probate from the register's office in Philadelphia was offered in evidence by the defendant, and, having been objected to, was ordered by the court to be read, subject to the objection. plaintiff's called a witness for the purpose of impeaching the will, which was objected to on the ground that a will admitted to probate in another state, and duly certified, could not be controverted in an action of ejectment here. After argument, Chief Justice John M. Clayton, delivering the opinion of the court, said: "The admitting a will to probate is a decree or sentence. It is by a judicial officer having exclusive jurisdiction, and, upon general principles, the court holds his sentence to be right until it is appealed from or reversed in the regular mode. But this is not a case where any register of our state has ever had this will sub judice. It is not doubted that the lex loci is to govern. These lands lie in Delaware. If the courts of Pennsylvania could make a decision setting up a will as to lands here, without any opportunity of reviewing that judgment, it would be violating a great general principle, and, for comity, surrendering the substantial requirements of our law. We hold, therefore, as at present advised: (2) That, as to immovable property, the law of the place where it is situated governs, both as to the capacity of the testator, and the requisites to the will's validity. (3) That the validity of a will of lands situated in Delaware, made by a nonresident, and not proved here, may be tried in ejectment, if the will be given in evidence by one claiming under it in an action by the heir. (4) And, where such will of lands here has been proved abroad, the foreign probate is not conclusive here, but may be controverted." If the probate in another state of a will devising lands here is not conclusive, it must also be true that the refusal of a court of another state to admit such a will to probate is not conclusive. In both cases the reason is the same, viz. that no court of another state has jurisdiction to determine the question of the validity of a will devising lands here.

Rice v. Jones, 4 Call, 89, decided by the court of appeals of Virginia in 1786, is almost identical with the present case. In May, 1784, a probate court of North Carolina admitted to probate the will of Dr. Savage, a resident of that state, and granted letters testamentary thereon to Edward Rice, the executor therein named. At the next November term of said court, upon an affidavit of fraud in procuring the execution of the will, a rule was granted upon the executors to show cause why the probate of said paper should not be set aside. On the return of the rule the executor appeared, and the court, having heard the allegations and proofs on behalf

of the executor and on behalf of the persons at whose instance the rule was obtained, and arguments by counsel on both sides, unanimously determined that the said Savage at the time of making and executing said paper, from the low state of his mind at that time, was incapable of making a last will and testament, and the court therefore ordered that said probate be revoked, and declared the said paper to be null and void. In April, 1785, the said Rice applied to the general court of Virginia for the probate of said paper, which was opposed, and a copy of the record of said proceedings in North Carolina was produced. The court adjourned the case to the court of appeals, which, after full hearing, adjudged "that the general court are not restricted from receiving any will by which lands lying in this state are devised, so far as the title of lands may be affected, although the same will may have been declared void by any court in any other of the United States for any cause whatever."

While the plaintiff's lessee concedes that the judgment of the Maryland probate court, that the said paper writing was not the last will and testament of the said Caroline C. Pritchard, nor entitled as such to probate, will not estop the defendant in this action from claiming that said paper writing is the valid last will and testament of the said Caroline C. Pritchard (as the Maryland courts had no jurisdiction to pronounce a judgment annulling a paper as a valid will, so far as affects lands in another state), he insists that the findings of fact in the Maryland court on which said judgment was based are conclusive in the action of ejectment here, and that the defendant is estopped from denying such findings. The grounds of this contention are that the said proceeding in the Maryland court should be regarded as a proceeding inter partes, and that the findings of fact there bind all parties to the proceeding; that, while the defendant was not a party of record in said proceeding, he was present and testified therein in support of the will; and that the executor, who propounded the will and maintained its validity, represented all persons claiming under the will as legatees or devisees, and thus the defendant became a party to the proceeding, and as such is bound by the findings of fact therein, and is estopped in said action of ejectment from denying the truth of the said findings. Outram v. More wood, 3 East, 346, and Priestman v. Thomas, 9 Prob. Div. 210, were relied upon with great confidence in the argument in support of the application of the doctrine of estoppel in this case. Outram v. Morewood was an action of trespass for injury to land claimed by the defendant in right of the wife. In a former action of trespass by the same plaintiff against the wife, then sole, for another injury to the same land, she had pleaded a certain title, on which issue was joined, and there had been a verdict adverse to her on that plea. The same title was pleaded by

her and her husband in this action. It was held that the defendants were estopped from controverting the finding in the former action, Lord Ellenborough saying that "the recovery, of itself, in an action of trespass, is only a bar to the future recovery of damages for the same injury; but the estoppel precludes parties and privies from contending to the contrary of that point or matter of fact which, having been once distinctly put in issue by them, or by those to whom they are privy in estate or law, has been, on such issue joined, solemnly found against them." Both of these actions were in reference to the title to land in England, as to which the English court had full jurisdiction; but if the first of these actions had been in reference to the title to land in Delaware, and a subsequent action had been brought in Delaware against the same defendants in reference to the same subject, they would not have been estopped from controverting the findings in the first action, as the English court would have had no jurisdiction to determine any questions as to the title to land in Delaware, so as to make such determination conclusive in the courts of Delaware. Priestman v. Thomas was an appeal from a decision of the probate division. In an action in the probate division, T. and G. propounded an earlier, and P. a later, will. The action was compromised, and by consent of all parties the earlier will was admitted to probate. Subsequently P. brought an action against T. and G. in the chancery division for the purpose of having the earlier will declared a forgery, and the compromise set aside. This action was tried by a judge of the queen's bench division before a jury, and a verdict was rendered that the compromise was obtained by fraud of T., that the will was a forgery, and that T. was a party or privy to the forgery; and thereupon the judge of the chancery division gave judgment that the compromise was invalid and should be set aside. A later action was brought in the probate division by P. against T. and G. for the revocation of the probate of the earlier will; and upon appeal it was held that, while the chancery division had no jurisdiction to revoke the probate of the will, it had full jurisdiction to decide that it was a forgery, and T. and G., having been parties to the action in the chancery division, were estopped from denying the forgery. While the chancery division had jurisdiction to decide that the will was a forgery, so as to make that decision conclusive upon the parties in any other English court, it does not follow that this decision would be held to be conclusive upon the parties in a court of another country in

an action relating to the title to land in that country. If said will had contained a devise to T. and G. of land in Delaware, they would not, in an action of ejectment in Delaware, brought to determine the title of said land, be estopped from denying that said will was a forgery, by reason of the finding of the English chancery court, because that court had no jurisdiction to decide the question of forgery, so far as it concerned the title of land in Delaware. All of the other cases cited in support of the claim of estoppel are subject to like criticism. In none of them is the estoppel held to apply where the finding was in respect to a matter not within the jurisdiction of the court. No case is known to us where the finding of a court that a deed or will purporting to pass real estate situate in another state was forged or procured by fraud, or that the maker was mentally incompetent, has been held to be conclusive in the courts of the state where such real estate was situate. In Rice v. Jones, above cited, the executor named in the alleged will, devising lands in Virginia, was not held to be estopped in the Virginia probate court from denying the finding of the North Carolina probate court, in proceedings to which he was a party, that the testator at the time of executing said paper was incapable of making a last will and testament. For the purposes of this case, it is wholly immaterial whether the defendant in said action of ejectment was or was not a party to the said proceedings in Maryland. While the Maryland court had full jurisdiction to find that the alleged will, so far as it related to the testator's personal property and her lands in Maryland, was procured by fraud and undue influence, and that she was not of sound and disposing mind and memory, it had no jurisdiction whatever to make a conclusive determination as to these facts, or any other facts touching the validity or invalidity of the paper, so far as the same relates to the title to the land in Delaware. The defendant, therefore, is not estopped from denying in said action any or all of said findings of the Maryland court. We are, therefore, of the opinion that the said defendant, Henry Henderson, is not estopped by the said probate proceedings in Maryland, or by anything therein contained, from claiming in said action of ejectment that said alleged will of said Caroline C. Pritchard is the valid last will and testament of the said Caroline C. Pritchard, as to the lands specified in the consent rule, situate in the state of Delaware. It is ordered that the prothonotary certify this opinion to the superior court for Newcastle county.

(2 Pen. 411) THOMAS et ux. v. PENNSYLVANIA R. CO. (Superior Court of Delaware. Newcastle. Dec. 15, 1899.) EVIDENCE-ACTION AGAINST CARRIER-BOOKS AND TELEGRAMS IN CARRIER'S POSSESSION-PRODUCTION.

In an action to recover for goods delivered to a carrier, who agreed to deliver them as plaintiff might order, but delivered them to the original consignee, though notified not to do so before their arrival at their destination, plaintiff may compel the defendant to either account for the nonproduction or produce its books by which to prove the dates of the receipt of the car, the notice, and delivery of the car, though such books are a part of the carrier's defense, and also the telegrams received giving notice not to deliver, though the originals of such telegrams are in possession of the telegraph companies.

Action by Frank H. Thomas and wife against the Pennsylvania Railroad Company to recover for certain goods. Application for an order to defendant to either produce certain books and telegrams or account for their nonproduction. Granted.

Mr. Higgins filed the following affidavit and application: "Be it remembered that on this 27th day of November, A. D. 1899, before me, Henry R. Draper, a notary public for said state and county, personally appears Frank H. Thomas and Mary H. Thomas, who, being by me first duly sworn according to law, do depose and say: That they are the plaintiffs in the above-entitled cause. That the said action is brought by the plaintiff to recover from the defendant the value of a certain car load of pears of the value of three hundred dollars, which the defendant as a common carrier received from the plaintiff Mary H. Thomas at Philadelphia, Pennsylvania, and agreed to deliver the same as the said plaintiff Mary H. Thomas might order. That said car load of pears was consigned to one M. J. Schabaker at Erie, Pennsylvania. That the said Mary H. Thomas, before the arrival of said car and its load of pears at Erie, aforesaid, notified and instructed the said defendant not to deliver the same to the said Schabaker, but that the said defendant, notwithstanding said notice and instructions from the plaintiff, and in violation thereof, negligently and willfully did deliver said car load of pears to the said Schabaker, by reason whereof the said car load of pears was lost to the said plaintiff Mary H. Thomas. That certain papers, instruments in writing, and books are in the possession and control of the said defendant, the contents of which are evidence for the plaintiff in this cause, and which will show-First, that the said car load of pears was received by the defendant for the purpose of carriage as aforesaid

from Philadelphia aforesaid to Erie aforesaid; second, the time that said car load of pears arrived at the freight station of the defendant at Erie, aforesaid, and the time when it was delivered by the defendant to the said Schabaker; third, that the defendant was notified by telegraph by the plaintiff Mary H. Thomas, and also by N. B. Buckmaster, then the station agent of the Philadelphia, Wilmington & Baltimore Railroad Company at Wyoming, Delaware, not to deliver said car load of pears to the said Schabaker; fourth, the time when the said telegrams of N. B. Buckmaster and Mary H. Thomas, respectively, were delivered to the defendant at Erie aforesaid. That the said evidence is contained-First, in the bill of lading, waybill, invoice, and manifest, respectively, which accompanied and were a part of the said shipment of the said car load of pears; second, in the books of the said defendant in which were entered memoranda of the facts as to said shipment set forth in the bill of lading, waybill, invoice, and manifest aforesaid; third, in the books of the said defendant in which were entered the time of the arrival of said car containing said pears at Erie, aforesaid, and the time when the said pears were delivered to the said Schabaker; fourth, in the said telegrams received as aforesaid by the defendant from the said N. B. Buckmaster and the said plaintiff Mary H. Thomas, respectively; fifth, in the books of the defendant showing the time when the said telegrams, respectively, were received, both in their written form and also by telephone. That the precise contents of the said papers, instruments in writing, and books are unknown to said deponents or their counsel, except as to the telegram sent the defendant by the said Mary H. Thomas. That said papers, instruments of writing, and books, and the contents thereof, contain evidence which is pertinent and material to the issues in this cause."

Argued before LORE, C. J., and SPRUANCE and GRUBB, JJ.

Anthony Higgins, for plaintiffs. Herbert H. Ward and Andrew C. Gray, for defendant.

LORE, C. J. In our opinion, all of these books and papers asked for should be produced, other than the bill of lading, which is abandoned. We make the order that the defendant file the same in the office of the prothonotary on January 3, 1900, or account for their nonproduction. We have not the slightest doubt as to the propriety of this order. What will be its effect probably will come up hereafter, but these papers are pertinent to the issue.

The indictment was as follows: "The grand inquest for the state of Delaware and the body of Kent county, on their oath and affirmation, respectively, do present: That Mary Barrett, late of Little Creek hundred, in the county aforesaid, on the twenty-third day of May, in the year of our Lord one thousand eight hundred and ninety-nine, with force and arms, at the hundred aforesaid, in the county aforesaid, a certain dwelling house, the property of one John A. Nicholson, and then and there occupied and in the tenancy of one James A. Lafferty, there situate, which said dwelling house was then and there occupied by human beings, to wit, by Jackson Lafferty, Ida Lafferty, and Mary Lafferty, feloniously, willfully, and maliciously did set on fire; and the jurors aforesaid, on their oath and affirmation, respectively, aforesaid, do further present that by means of the premises the said Mary Barrett then and there was and is guilty of the crime of arson of the first degree and felony," etc.

At the trial Mr. Megee, on behalf of the prisoner, moved to quash the indictment, on the ground that under the statute (section 1, p. 933, Rev. Code) the indictment must allege the building to be the property of the occupier.

Argued before LORE, C. J., and PENNEWILL and BOYCE, JJ.

Robert C. White, Atty. Gen., and Peter L. Cooper, Jr., Dep. Atty. Gen., for the State. Arley B. Megee, for the prisoner.

LORE, C. J. The case of State v. Bradley, 1 Houst. Cr. Cas. 164, is an indictment for burning a barn, and there the tenant in possession is entitled to compensation money. The language of the court can only be applied to that case. As a matter of course, the property must be laid in the tenant in possession in a case of that kind, because he was the person who was entitled to whatever compensation there might be. That was the case of a variance, also, between the allegations in the indictment. It is laid down by Greenleaf that the ownership of the house must be laid in some other person than the person himself. This indictment distinctly sets out that this house, which was alleged to have been set on fire by the per

son, was in the possession of Lafferty, the prosecuting witness, as tenant, and we think there is enough in it to sustain the indictment. We refuse to quash the indictment.

(2 Pen, 504)

MAXWELL v. DE VALINGER. (Superior Court of Delaware. Newcastle. May 21, 1900.)

CONSTITUTIONAL LAW-OBLIGATION OF CONTRACTS-STATUTE OF FRAUDS-PERFORMANCE WITHIN YEAR-JUDGMENT-PAYMENT -PRESUMPTION PLEADING - BILL OF PARTICULARS.

1. The object of a bill of particulars is merely to give reasonable notice of the subject-matter and character of the claim involved in the action.

2. A vendor of land subject to an old judgment lien set up an agreement that the vendee should hold a certain sum as indemnity until the lien was extinguished by a statute to be enacted by the legislature then in session. The statute, when enacted, provided that it should take effect January 1, 1896. Held, that a bill of particulars reciting, "To balance of purchase money [on certain property], to-be paid January 1, 1896," was not objectionable for variance.

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3. Under the common law, a judgment on which no process has been issued or payment made for 20 years is presumed to be paid, in the absence of a contrary showing.

4. A vendor of land subject to an old judgment lien orally agreed that the vendee should retain a certain portion of the purchase money as indemnity until the lien was extinguished by a statute to be enacted by the legislature then in session. The statute, when enacted, provided that it should not take effect for several years. Held that, unless the parties knew that the statute was not to take effect for more than a year after the making of the contract, the contract was not void under the statute of frauds, since the contingency might have happened within the year.

5. 19 Laws Del. c. 778, § 3, enacted May 4, 1893, provided that after January 1, 1896, no real estate should be subject to execution on any judgment entered and wholly due prior to the latter date, and that thereafter the lien should be renewed in certain specified ways. Section 1 recited that judgments should not continue a lien on real estate for more than 10 years. Held, that as a reasonable time had been given creditors whose judgments attached before the enactment, in which to renew their liens, the statute did not impair the obligation of contracts, but merely affected the remedy, and hence was constitutional.

Action by Alexander Maxwell against Charles De Valinger to recover a balance due on the purchase price of land. Verdict for plaintiff.

Argued before GRUBB and BOYCE, JJ.

Edwin R. Cochran, Jr., and Peter L. Cooper, Jr., for plaintiff. Harry Emmons, for defendant.

and sale for his hotel and premises situate in the town of Middletown, this county, to Charles De Valinger, the defendant, and that the consideration money mentioned in the deed of conveyance was the sum of $22,000. It is further admitted that the sum of $21,600, part of the consideration money, or all thereof except a balance of $400, was paid to the plaintiff by the defendant at the time of the delivery of the deed. The alleged facts involved in this case, and in dispute, are in substance as follows: Maxwell contends that by reason of an old judgment entered against him, in favor of Riddle, Pennock & Co., for the real sum or debt of $199.41, with interest from December 10, 1857, being No. 206 to the November term, 1857, of this court, and which remained open and unsatisfied upon the records of this court on March 7, 1893, at the time of the delivery of said deed, he (Maxwell) had stipulated with De Valinger, and that it was agreed by and between them, that he would accept from De Valinger the consideration money mentioned in the deed, less $400, which last-mentioned sum the latter should hold as indemnity against the incumbrances of said judgment, until the lien thereof should be discharged or extinguished by operation of the statute to be enacted by the general assembly of this state, then in biennial session at Dover, and that the said sum of $400, or the balance of the consideration money, was to be paid by the defendant when such law should go into effect. De Valinger, on the contrary, contends that, upon the discovery of the said old judgment, Maxwell agreed to deliver to him the said deed upon the payment of the said sum of $21,600, leaving him (the said De Valinger) to take the risk of the lien or incumbrance of said judgment, and that the sale of the hotel property was consummated upon these terms. Upon the issue of fact thus joined-that is, upon the testimony as we have it from the witnesses produced before you in this case-you are the sole judges. We are not permitted, if we would, to aid or try to aid you by a review of or comment upon the evidence. You are to weigh and to determine it with reference to our instructions under the law upon which we have been asked to charge you, as best you may, under the sanction of your oath, without favor or bias towards either party.

Now as to the law. First, as to the bill of particulars. The bill of particulars filed in this case is in the following words: "Charles De Valinger to Alexander Maxwell, Dr. January 1, 1896. To balance of purchase money of National Hotel property, Middletown, Delaware, promised to be paid January 1, 1896, $400.00. Interest on same from January 1, 1896." This court has never held to exactness of time between the proof and that contained in the bill of particulars. Its object is to give a reasonable notice of the subject-matter involved, and to reasonably inform the defendant as to the nature

and character of the claim, and the several items thereof, which he may be required to meet. Levy v. Gillis, 1 Pennewill, 121, 39 Atl. 785; Stephens v. Cemetery Co., 1 Houst. 28. The defendant claims that there is a variance between the bill of particulars and the contract actually proved. If you believe (that is, if you find from the evidence) that the claim of the plaintiff was that the $400 should be paid when the extinguishing act went into effect (which we tell you, from the act itself, being a public act, was January 1, 1896), then, as the contract, as shown by the bill of particulars, was to pay on that date (January 1, 1896), there was no variance or disagreement between the bill of particulars and the evidence. Of course, as to what the evidence is, it is for you to say.

We have been asked to charge you that the said old judgment was, at the time of delivery of said deed, presumed, in law, to be paid, by reason of the long lapse of time since the entry thereof. We may say to you that there is a presumption of payment of a judgment after 20 years or more from the recovery thereof, without any payment or process upon it, or recognition or acknowledgment of it, within 20 years, as a subsisting debt. And, where nothing is shown to the contrary, it is presumed to have been fully paid and discharged. But, while the legal presumption of payment may exist, it may not operate as an absolute bar to recovery upon such judgment. Such lapse of time (20 years or more) is presumptive or prima facie evidence of payment, which may be rebutted by competent, satisfactory evidence of some acknowledgment or other recognition. And a party taking title to real estate, with such stale judgment outstanding against the owner of such real estate, does so at the risk of having such judgment revived by proper proceedings taken for that purpose. I am speaking now with reference to the common law, and not with reference to the lien law of 1893, about which I shall have something to say later on. At common law the burden of removing the legal presumption of payment is upon the party seeking to rebut the presumption of payment. Robinson's Adm'r v. Tunnell, 2 Houst. 387; Bank v. Leonard, 4 Har. 536. We may say to you that, notwithstanding the presumption of payment as to the said old judgment, the parties to this action might have made a good and binding agreement between them in contemplation of either the extinguishment or possible continuance of said judgment.

So much for the common law of presumption. Now as to the statute of frauds. Section 7, c. 63, Rev. Code, known as the statute of frauds and perjuries in this state, provides, among other things, "that no action shall be brought upon any agreement that is not to be performed within the space of one year from the making thereof, unless the same shall be reduced to writing, or some memoranda or note thereof to be signed by