(Browning v. M'Manus.) 1. In that it does not appear that the referees were ever qualified. 2. In that the proceedings, being ex parte, no notice to the defendant of any of the meetings of referees, appears to have been given. 3. In that the report is by referees, of whom two only appear to have been regularly appointed." Mr. Haly, for the plaintiff in error, contended: 1. That the court below had no power to substitute a referee for one who had declined to serve; without the concurrence of both parties, Shippen's Lessee v. Bush, (1 Dall. 251); and that the consent ought to appear upon the record. Russell v. Gray, (6 Serg. & R. 145.) 2. That the award was defective; because it did not appear that the referees had been sworn or affirmed. [KENNEDY, J.-This is not required by the act of 1705; and it is not usual in practice.] 3. That the award was bad; because the proceedings were ex parte, and no notice appears to have been given to the defendant or his attorney. The substitution having been made on the same day, that the meeting of the referees took place, notice ought not to be presumed. Mr. Zuntzinger and Mr. D. P. Brown, for the defendant in error, argued that the proceedings were regular, and that, at all events, the remedy of the party was by application to the court below. They cited Kyd on Awards, 34, (d) (Am. Ed.) Oppenheimer v. Comly, (3 Serg. & R. 3.) Nagley v. Stewart, (10 Serg. & R. 207.) PER CURIAM. The exceptions are such as might be proper in the court below, on a motion to set aside the award; which is put, by the act of 1705, on the footing of a verdict; but they are not in place here. We are incompetent, for instance, to enquire whether the arbitrators were sworn, or the opposite party had notice; but these, being extrinsic to the record, were open to examination in the court below, by affidavit. The exception to the substitution has colour of foundation, but no more. The substituted arbitrator appears to have been appointed precisely as the others were. The minutes are unusually short and unsatisfactory; but in a court of general jurisdiction, every thing is to be presumed in favour of the regularity of a proceeding. In the absence of contradiction by the record, then we are to presume that the defendant was present in person, or by counsel, and consented to the substitution. Judgment affirmed. [Philadelphia, JANUARY 26, 1836.] ROBINSON against WOELPPER. IN ERROR. Where one bequeathed the interest of a certain sum to his wife during her life; and his widow afterwards married again; it was held that the interest so accruing was not liable to a foreign attachment, at the suit of a creditor of the second husband. UPON a writ of error to the District Court for the City and County of Philadelphia, the case was thus: Robinson had issued a foreign attachment against Othniel Colescott; and having obtained judgment in due course, issued a scire facias against George Woelpper, the garnishee. Upon the trial of this scire facias, the jury found a special verdict, setting forth that Frederick Woelpper, the former husband of Rachel Colescott, now wife of Othniel Colescott, the defendant in the attachment, made his will, as follows: "Be it remembered, that I, Frederick Woelpper, of Moyamensing, in the County of Philadelphia, victualler, being of sound mind and memory, praised be the Lord for the same, have thought proper to make, and hereby do make, my last will and testament, in manner following, that is to say: First, I will that all iny just debts and funeral expenses be duly paid and satisfied. 1. Item. All the rest, residue, reversion, and remainder of my estate, real and personal, whatsoever and wheresoever, I give, devise and bequeath to my beloved daughter Margaret, and to such other child and children as shall be born unto me, her and their respective heirs and assigns forever, subject, nevertheless, to the payment of one-third part of the nett interest and income thereof, to my beloved wife Rachel, for, and during all the term of her natural life; which I give to my said wife in lieu and bar of dower. 2. And in order the better to enable my executors to settle my estate, I authorize them to sell and dispose of all my real estate, whenever they shall deem proper; and grant and convey the same, or any part thereof, to the purchaser or purchasers thereof, in fee simple. And thirdly, I also give to my said wife, Rachel, all the furniture belonging to this room, and likewise all my kitchen furniture, &c. Item. I nominate and appoint my said wife executrix, and my brother, George Woelpper, executor of this, my last will and testa mrent. (Robinson v. Woelpper.) And I also appoint my said brother George, guardian of the person and estate of my said daughter, and of such child and children which shall, or hereafter may be born unto me. In witness whereof, I have hereunto set my hand and seal this twenty-first day of January, in the year of our Lord one thousand eight hundred and eighteen." That George Woelpper, the garnishee, was the executor named in the said will, and as such, had in his hands, at the settlement of his accounts, on the 21st of July, 1820, the sum of $7761 64; which was invested at an interest of about five per cent., yearly; and that the widow of the testator, and wife of the defendant, received from the said George Woelpper, half yearly, one-third of the interest on that sum, as the same from time to time fell due, viz. in the months of January and July: and that since the issuing of the foreign attachment in this case, the sum of $242 17 had accrued, and was in the hands of the garnishee, as executor of the said will. The court below rendered judgment upon this verdict in favour of the defendant; whereupon the plaintiff removed the record to this court. Mr. Wheeler, for the plaintiff in error. The estate of the decedent, as respects the sale of real estate, and payment of debts, had been settled for twelve years before the issuing of the attachment. The payments of interest which accrued during the coverture, as made to Mrs. Colescott, were, in law, payments to the husband: they had been received, and were held to his use. The duty which George Woelpper undertook to perform, is a bald, naked, trust; not clothed with any direction, as to her sole and separate use, upon her own receipt, &c. The point at which he is to be contemplated, is when dividends are received; immediately on which receipt, they are exposed to the implied assumpsit in law, which is in favour of the husband alone. In the case of Buckley v. Collier, (1 Salk. 114,) where the husband and wife declared for work done by the wife during coverture; the court in overruling the action say- -"here is no express promise laid to the wife; here is nothing but the promise in law, and that must be to the husband, who must have the fruits of the wife's labour. Also, the advantage of the wife's work shall not survive to the wife, but goes to the husband, for if the wife does, her debts fall upon him, and therefore so shall the profits of the trade to the husband's executors." So, also, is the recent case referred to in Clancey On the Rights of Married Women, at page 3; Glover v. The Proprietors of Drury Lane. The husband is entitled absolutely to all sums of money which have been received by a third person on her account, during the marriage; and if he join her with him in actions for such causes, it (Robinson v. Woelpper.) would be error. Abbott and Wife v. Blofield, (Croke James, 644.) Bridgood v. Way, (2 Black. 1236.) Coke Litt. 351, a. Fitch v. Ayer, (2 Conn. Rep. 143,) where the interest on a legacy given to the wife, was held recoverable by the husband alone. Griswold v. Penniman, (Idem. 564,) where the husband's creditors were held entitled to the wife's distributive share, which accrued during the coverture. A legacy given to a married women, must be paid to the husband. Toller's Executors, 320. Matthew's Guide to Executors, 79. In Evans and Wife v. Norton's Executors, (4 Rawle's Rep. 66,) the expression was, "I also give and bequeath unto the said George Knorr, the sum of one thousand dollars, in trust, for the use of her, the said Sarah Evans;" and it was held, that the husband was entitled to the legacy. The reasoning of the judge who pronounced the judgment of the court, is aside from the circumstance of the husband being joined in the suit. Yohe v. Barnet, (1 Binney, 358,) contrasted with Jamison v. Brady, (6 Serg. & R. 466,) is a notable illustration of the general principle, that money accruing during the coverture, is the husband's: there, money belonging to the wife was applied at once to the payment of his debt. Precisely the same thing was done in Krause, assignee of Moll v. Beitel, (3 Rawle's Rep. 199.) This interest wuold be attachable in Massachusetts, for the husband's debt. Shuttleworth v. Noy, (8 Mass. Rep. 229.) There, the money due on a promissory note given to the wife, was attached by the creditor of the husband. It matters not that their process or remedies are different from ours; this circumstance does not affect the principle. The law is the same in reference to the rents of real estate, accruing during the coverture. Coke Litt. 162, b. 8. "A feme sole is seized of a rent in fee, &c., which is behind and unpaid, she taketh husband: the rent is behind again; the wife dieth; the husband, by the common law, should not have the arrearages grown due before the marriage; but for the arrearages become due during the coverture, the husband might have an action of debt by the common law." Ognel's case, (4 Coke's Rep. 61.) So also is the year book, 10 Henry, 6, 11; Chant, (counsel); "in the case where the wife, before the coverture, had made a lease to a man for term of life, rendering to her certain rent, and during the marriage the rent was in arrear, after the death of the wife, the husband shall not have action of this rent." BABINGTON, J.-"The baron shall have good action in this case that you have put." Rolle's Abr. Baron and feme, 352. To the same effect is Torbert v. Twining, (1 Yeates, 132.) The case is clear of the doctrine connected with that of the wife's choses in action, because the right to these dividends, in the hands of the garnishee, is in the husband. The law, on the subject of the wife's choses in action, is to be found in Clancey, from page 3 to 8. The dividends received and embraced in the special verdict, are credits of the husband, and are within the very words of (Robinson v. Woelpper.) our attachment law, viz.: "goods, chattels, moneys, effects, and credits of the defendant, in the custody, possession, and charge, or due and owing from any garnishee or garnishees." (2 Sm. L. 502.) The object of the foreign attachment law, is to make responsible the effects of the absent debtor, to the same extent as those of the present debtor. If Colescott should be compelled to take the benefit of our insolvent law, his assignment would embrace these credits. (Ingraham on Insolvency, 2d ed. 223, 321.) The attachment may be dissolved by the entering of special bail. (1 Smith's L. 45, s. 2.) This case is different from that in 2 Watts. Rep. 90, Dennison v. Nigh; because the estate there was not settled. A trust for selling real estate was to be executed. The cases cited by the court, in ruling the point, are not applicable to our case: the one in 2 Ventris, 341, was clearly a case of a wife's chose in action: that in 1 Rolle's Abr. 551, was not an interest coming up to the point of assignability, according to Sommer v. Wilt, (4 Serg. & R. 19.) It was an attempt to attach the interest of a dispossessed owner of goods, in the hands of a tort feasor. As to reduction into possession. The dividends, as received, had always been punctually paid to Mrs. Colescott, before her marriage, and after that event, till the time of the attachment, in a way satisfactory to the husband. There was as much reduction into possession as the nature of the thing admitted of. We are to be governed by our acts of assembly, and not by the customs of London. By the custom of London, it appears that a legacy is not the subject of foreign attachment; whilst this court holds it to be an open question under our law. Mr. Arundel, contra, cited Schuyler v. Hoyt, (5 Johns. Ch. Rep. 190.) Jamison v. Brady, (6 Serg. & R. 466.) Lodge v. Hamilton, (2 Serg. & R. 491.) Starret v. Wynn, (17 Serg. & R. 130.) Dennison v. Nigh, (2 Watts. 90.) 3 Atkyns, 399. 5 Vesey, 520. 3 Br. Ch. Rep. 181. 1 Russell Ch. Rep. 24. 1 Bac. Abr. 480. 2 Atkyns, 206. 2 Vernon, 202. Clancey, 321, 353. The opinion of the court was delivered by HUSTON, J.-There is scarcely any part of the law, in which the distinctions have gone on nicer grounds, than in that which relates to the rights of husband and wife. Nay, the decisions are not always to be reconciled; and, in more than one instance, what was held to be law at one time, has been subsequently expressly overruled. I shall confine my remarks to the case before us. The cases cited do not, all of them, apply to the case before us. This is not the case of money earned by the labour of the wife, and sued for on the implied promise to pay; nor is it the case of money or goods devised to a married woman, or of a bond or note given to a married woman-it is a legacy devised to a woman before |