In the matter of John King's Will. May I ask of you the favor of your earliest attention to this matter? I make no apology for troubling you other than what may be found in your own feelings on the subject. A bond, on appeal from a decree of the surrogate, admitting a will to probate, must be signed by the appellant as well as his sureties. Such a bond is amendable, but only on application to the surrogate or circuit judge, and even then is not good unless the sureties are approved. THIS was an appeal from a decree of the surrogate of New York refusing to admit to probate a paper, propounded as the last will and testament of John King, deceased. P. Reynolds, for respondents, moved to dismiss the appeal for irregularity. The decree of the surrogate was entered as of the 12th of September, 1845. And, on the 10th of December following, the appellants filed with the surrogate a notice of appeal and a bond not signed by themselves, but executed only by their sureties, which were duly approved on that day by the surrogate. In the matter of John King's Will. C. B. Moore, for appellants, read an affidavit claiming that though the decree bore date the 12th of September, yet that it was not made till after that day, and was not entered until some time after the 17th of September, though he had not been able to ascertain the precise time of making or entering, and setting forth that on the 10th of December the appellants filed with the surrogate another bond, executed by themselves and the same sureties, and he insisted 1. That the first bond was good, though not executed by the appellants. 2. That the second bond was filed in due season. 3. That the bond was amendable, and had been, in fact, amended. He cited 2 R. S. 459, §§ 33, 34; Potter v. Baker, 4 Paige, 290; Van Slyck v. Schenck, 10 id. 302; Whitney v. Belville, 4 id. 140; 2 R. S. 261, § 204; Ex parte Chester, 4 Cow. 80; Ex parte Van Hoesen, id. 507; Tompkins v. Curtiss, 3 id. 281; People v. Dutchess, 5 id. 34. D. D. Field, contra, insisted 1. That the appeal was invalid, because a bond executed by the appellants had not been filed within three months. 2. That the bond was not amendable, and if it was it had not been amended agreeably to the statute, as no amendment had been allowed either by the surrogate or applied for by the obligors. He cited 2 R. S. 10, § 56; id. 504, § 90; Eldridge v. Howell, 4 Paige, 457; N. A. Coal Co. v. Dyett, id. 273; 2 R. S. 605, § 18; Laws of 1824, 295, § 36; Ex parte Brooks, 7 Cow. 428; Bartles v. Brown, 7 Paige, 245; Caldwell v. Albany, 9 id. 572. The Circuit Judge: In order to render such an appeal valid, the statute requires that a bond shall be executed by the appellants with sureties, to be approved by the surrogate and be filed with him within three months of the time of making and entering the decree appealed from. (2 R. S. 10, $56; id. 504, § 90.) The first bond is defective because not executed by the In the matter of John King's Will. appellants. The second bond does not mend the matter, because not filed within the required time. I must regard the decree as evidence of the time when it was made and entered, not conclusive, perhaps, for the appellants might be allowed to show a mistake in that regard, and when it was actually entered. But that is not shown in this case; the affidavit merely discloses a probability that it may have been made and entered a few days later than its date, but that probability is not enough to overcome the explicit evidence derived from the decree itself. A more important question is, has the bond been amended, or, can it be? If it can be amended, it can only be so on the application of the obligors and by the direction of the surrogate or circuit judge. No such application has been made, nor have either of those officers been called upon to pass upon such an application. To allow the second bond to be regarded as such amendment would be to give the parties the right to amend at pleasure, without the consent of the obligors and without the interposition of the proper tribunal. This power has not been given by the statute, and it will not do so to construe it as to take away from this matter the salutary supervision which the statute has itself provided. Besides, the second bond has not been approved, and to regard that as the true one given on this appeal would be to remove another safeguard to the rights of parties which the statute has provided, namely, the supervision of the surrogate over the sufficiency of a bond taken in the absence of the party for whose benefit it is executed. But I am inclined to think that the bond may be amended. I will not, however, now pass upon that question, because the appellants are not in a situation to present it to me. I will, therefore, reserve my decission on this motion to dismiss the appeal, until they can have an opportunity of making a proper application to me or to the surrogate, as they shall be advised, for leave to amend the bond. Chesterman v. McCatline. NEW YORK CIRCUIT. Before EDMONDS, Circuit Judge. CHESTERMAN v. MCCATLINE. Where there is no question of fact to be submitted to the jury, it is error for the court to refuse to nonsuit, but such refusal is not error where there is any fact for the jury to pass upon. An exception to the whole charge of the judge is unavailing if there is any part of the charge that is correct. In an action for work, labor and services, it is erroneous to allow interest from the time the service is rendered. Interest accrues only from the time of demand of payment. THIS was an action for work done under an agreement, which it was claimed was collateral to another, and, not being in writing, was void. A motion for a nonsuit on that ground was denied, the court holding that the agreement was original and leaving it to the jury to determine under which agreement the work was done, and charging the jury to allow interest from the time of performing the service. On bill of exceptions there was a motion for a new trial. The Circuit Judge: One of the objections to this judg ment is, that the agreement between these parties is collateral to that between plaintiff and Lockwood, and therefore void, because not in writing. "This is not well taken. The agreement was original and the case was properly left to the jury to say whether the work was done under that, or under the one with Lockwood. They found, the former. The next objection is, that the court below refused to nonsuit. A refusal to nonsuit is never a ground of exception, where there is any evidence to submit to the jury. It is only Chestermay v. McCatline. where there is no dispute about the facts and the question is solely one of law, that it becomes the right of the party to demand that the court nonsuit. In this case, if the agreement had been collateral, it would have been the duty of the court to have granted the nonsuit, because the plaintiff had no right to recover. But, as it was properly held to be original, there was a question to be submitted to the jury, viz., whether the work was done under that agreement or under another, and, of course, it was proper to refuse the nonsuit. The next objection is, the admission of evidence of what the witness Lockwood had formerly testified. This is unfounded. L. was defendant's witness, and plaintiff had not made him his, and what he had testified before was competent to impeach him. The exception to the charge of the judge was too general. It went to the whole charge, while it is manifest that portions of it were correct. If a party wishes to avail himself of the benefit of any error in the charge, he must point his exception directly to it at the time, so as to enable the opposite party to obviate the objection, or the judge to correct any hasty or careless expression, and if he omits to do so, and contents himself with resting on a general exception, he runs the hazard of having his exception disregarded, if any part of the ruling be correct. Thus far there is nothing in the case to warrant us in disturbing the judgment below. But there is another point in regard to which the court below erred, and that was, in charging that on an account for work and labor interest was chargeable from the rendition of the services. For this error, the judgment must be reversed and A venire de nevo awarded. |