a day. for hearing and inquiring.“into the matters and things set forth in said. petition,” and gave directions for summoning the witnesses to the paper exhibited, and such other witnesses as the petitioners might desire. On the day set the hearing was had upon the testimony of wit— nesses produced at the instance of the petitioners; and the court, upon hearing the evidence, then and there passed the order of the fourth of February. 1885, whereby it is recited that the court having heard the testimony of witnesses “concerning the paper purporting to be the last: will. and. testamentof the. said ElizaStouft'er, and the court being satisfied that at the time the said. paper was executed by her she was not. capable of making a valid 'deed or contract, and that the said paper writing. is not her last will and testament,” thereupon itwas adjudged, or-' dered, and decreed by the court that the said Eliza Stouffer died intestate, and that letters of administration upon her estate be granted to Daniel B. Stouffer.

Now, with such a state of proceedings as this disclosed by the record before us, it is rather difficult, I think, to say that the paper was not before the orphans’ court, and that the sons and heirs at law of the deceased did not invoke and obtain the judgment of that court against the validity of the paper asa will, and so procured probate to be refused. The court was one Of competent jurisdiction, and the subject-matter was plainly Within the jurisdiction; and, though the proceeding may not have been formal and regular, still there was a judgment evoked that binds and concludes the parties to the proceeding. Those parties could never be heard to contend, in the face of the proceedings had at their instance, that the paper should ever thereafter be admitted to probate. The judgment of the orphans’ court, therefore, is not a mere nullity, and without any effect upon the validity of the paper. It was necessary to adjudicate the paper invalid as a will, and to refuse probate thereof, before the orphans’ court could proceed to declare, as it did, that the deceased had died. intestate, and to grant letters of administration as upon an intestate’s estate- Both the orphans’ court, and the parties invoking its action, clearly understood that the paper exhibited had been finally refused admission to probate.

But the question here is Whether the refusal of probate to this paper, under the circumstances of the case, will finally bind and conclude the parties entitled inremainder; those parties beingnon-residents, and some of them infants, and; who were in no manner represented in the proceedings that took place in the orphans’ court in regard to the paper exhibited by the two sons named as executors therein, those proceedings being en— tirely ex parte. The two sons named as executors repudiated the appointment, and opposed the admission of the paper to probate. It was their personal interest to do so, and it was their strict right also. But their assuming such position left the will of the deceased without a friend to vindicate it before the court. It was produced and exhibited to the court vby its enemies simply and solelyfor the purpose of having its va-lidity pronounced against; and, of course, in the absence of any representative of the deceased, or her estate, there was but small chance for

the support of the paper as a valid will. Where, as in this case, thereis no party before the court who has an interest in supporting a testamentary paper produced, the general principle is that the court, before it proceeds to act, will require the appearance of such a party, or some one to represent him, (Redmill v. Redmill, 3 Phillim. 410;) and that course Would seem to be dictated by the first principles of justice. But with respect to the paper in question no such course was pursued.

But, as the parties in interest were non-residents, and therefore beyond the reach of process from the court, and were without legal notice of the proceedings, what course could have been pursued in order to make binding upon those parties the order of the orphans’ court declaring against the validity of the paper, and refusing probate thereof? In such case, according to my opinion, there ought to have been appointed an administrator pcndente lite, charged with the special duty of defending the integrity of the paper produced, and securing for it admission to probate, if that was attainable upon full and fair investigation. That there was an inherent power in the orphans’ court, as a court of probate, to make such an appointment, and for such a purpose, I think there can be no doubt. Walker v. Woollaston, 2 P. Wms. 576, 589; Davis v. Chavnter, 2 Phil. 545, 550. Such a power would seem to exist from the necessities of the jurisdiction, and for the general purposes of justice; and such has been the opinion of courts of the highest authority. '

In the very.recent case of McArthur v. Scott, 113 U. S. 340, S. C. 5 Sup. Ct. Rep. 652, a question very analogous to the present was largely considered. That was a case where a will was admitted to probate in: common form, but afterwards the executors withdrew, and proceedings were taken to contest the validity of the will, and the result of the proceeding was that the probate was annulled, and the will declared void. A question subsequently arose as to the effect of this proceeding upon the rights of unborn grandchildren entitled in remainder; and it was held that because the estate, and the rights of the unborn grandchildren, were left unrepresented in the contest against the probate, the decree annulling the probate was absolutely void as against such grandchildren, and that their rights were in no manner affected by the proceeding. And the supreme court in that case, speaking of the power of a probate court to appoint an administrator pende-nte lite to defend a will or probate, say:

“Nor can we doubt that the court, in the exercise of the appropriate branch of its jurisdiction, [probate jurisdiction,] might, in its discretion, have granted administration limited to the single object of defending the will and the probate against the bill in equity of the heirs. Courts vested with the jurisdiction of granting letters testamentary and of administration have the inherent power of granting a limited administration whenever it is necessary for the purpose of justice.”

And they say “that the powers exercised by the English courts in this respect appertain to the courts of like jurisdiction in this country, although not specified in the statutes under which they act.”

'A9sn'ming, then, that the orphans’ court had the power to make such an appointment, and that it was its duty to exercise the power for the

protection of the parties interested in remainder, but neglected or disregarded that duty, should the ex parte order pronounced against the paper, any more than the order passed in more solemn form in the case just referred to, be regarded as binding upon the rights of the absent and , undefended parties? The order or decree in the case of McA rthur v. Scott was passed in the exercise of mere probate jurisdiction expressly conferred by statute; and because the court had failed to place some person in a representative relation to the interests of the unborn grandchildren that decree or order revoking the probate, and setting aside the will, was held to be a nullity as against those parties. For the same reason the same result would seem to follow in this case.

It is true, the paper produced in the orphans’ court could never have any effect until admitted to probate as a valid will. But there is no limitation as to the time within which a paper shall be propounded for probate, nor will any lapse of time exclude the inquiry whether a certain paper constitutes the will of a party or not, (Clagett v. Hawkins, 11 Md. 381, 387;) and though the Code provides (article 93, § 321) that, where the orphans’ court adjudicates against the probate of a will or codicil, such paper “shall not be received for probate in any other county,” it by no means follows that parties not bound by the order refusing probate shall be excluded from thereafter propounding the paper for probate in the same county. That would seem to be allowable, if not by clear implication from the terms of the statute, certainly from the necessity of the case, and upon general principles of justice; and that, too,upon the same principle that the court may, at any time, be applied to to revoke or recall a probate previously improvidently granted, as in the case of Clagett v. Hawkins, supra.

With this view of the case, and the rights of the parties interested in remainder in having the paper admitted to probate, I quite agree that the purchaser of the property, the present appellant, ought not to be compelled to accept the property under the sale made by the heirs at law, and I therefore concur in the reversal of the decree.

COOLEY v. GILLAN and another. (Supreme Court of Errors of Connecticut. July 9, 1886.) 1. APls’EAL—QUESTIONS NOT RAIsEn BELOW—Sues. LAws CONN. 1882, PAGE 146,

Under Sess. Laws Conn. 1882, p. 146, 8, questions not raised and decided in the court below are not to be consi ered upon appeal, and the court ma refuse to consider such questions although no objection is interposed to their consideration.

2. SALE—CONDITIONAL—PROVISIONS IN LEAsE—CREDITORs 0F PURCHAsER.

Under an agreement in the form of a lease contemplating a sale, but providing that the title to the property shall remain in the vendor until paid for, the title remains in the vendor until the property is paid for, and meanwhile the property is not subject to attachment by creditors of the purchaser.1

‘ See. as to conditional sales and the rights of the parties thereunder, D er v. Thorstad, (Minn.) 29 N. W. Rep. 347, and note. See, as to the validity of suc 1 contracts, Marquette Manuf’g Co. v. Jefl'ery, 13 N. W. Rep. 592; Smith v. Lozo, (Mich.)'8 N. W. Rap. 227.

3. Gosrs—REPLEVIN FOR SUNDRY ARTICLES. If plaintiff in replevin fails to recover one of sund articles sued for, defendant is entitled to no more costs than the fees 0 his witnesses on that part of the case.

Appeal from court of common pleas, New Haven county.

Action of replevin for a pair of horses, a harness, a hack, a pair of blankets, and a whip. Plaintiff had judgment below for all except one of the horses. From that judgment defendant appealed.

W. E. Manson, for appellants.

W. B. Stoddard, (with whom was G. R. Cooley,) for appellee.

GRANGER, J. This is an action of replevin for two horses, 9. hack, a pair of harnesses, two blankets, and a whip, which were attached by the defendants as the property of one Phillips. The plaintiff claims to have been the owner of them at the time of the attachment. The court of common pleas decided that one of the horses, and the hack, harnesses, blankets, and whip, were the property of the plaintiff, and as to them rendered judgment in his favor. The other horse the court found to have been the property of Phillips at the time of the attachment, and as to that rendered judgment for the defendants. The defendants appealed from the judgment against them.

Some reasons of appeal that were assigned we shall not consider, as it does not appear that the questions were made and decided in the court below. Under the statute of 1882 (Sess. Laws 1882, p. 146, § 8) no errors are to be considered on an appeal “unless it appears on the record that the questions made were distinctly raised at the trial, and were decided adversely by the court.” This court will always hold itself at liberty to lay such questions out of consideration, even though no objection to their consideration is interposed by the opposing counsel upon the argument here.

The court below finds that for some time prior to February, 1885, Wales 0. Hotchkiss was the owner of the hack, harnesses, blankets, and whip, and of one of the horses, known as the gray horse; and that for about 18 months before that time this property had been in the possession of Phillips, who was a hack-driver, and who had received it from Hotchkiss under a written agreement, in the form of a lease, by which they were to remain the property of Hotchkiss until a certain agreed price was paid for them. This price was never paid. While this agreement was pending, Hotchkiss, at the request of Phillips, sold the property to Cooley, the plaintiff. It was then in the barn of Cooley, where it had been kept by Phillips during the 18 months preceding. Hotchkiss gave Cooley a bill of sale of it, acknowledging the receipt of the price, which was $200. Cooley at the same time agreed to sell it to Phillips for $200, the title to remain in Cooley till the $200 was paid, but Phillips to pay $5 a week, to be taken as rent for its use until it was paid for. Under this arrangement Phillips gave his note to Cooley for the $200. The property, after this, was kept in Cooley’s barn, as before. The note had not been paid when the defendants attached the property. The court found the property to have been, at the time of the attachment, the property of Cooley.

This finding leaves really no question Of law for us to consider. But it is contended, first, that under such a contract the title could not remain in Cooley, and, in the next place, that there was not a sufficient delivery of possession to Cooley to make the sale good against the creditors Of Phillips. But it has been settled by repeated decisions of this court, from Forbes v. Marsh, 15 Conn. 384, down to Appleton v. Norwalk Library Corp., 53 Conn. 4, that such a conditional sale is a valid one, and that the title remains in the vendor. And as to the question of the change of possession, if the title was in Hotchkiss and not in Phillips, at the time Of the sale by Hotchkiss to Cooley, then no change of possession was necessary as against the creditors Of Phillips; and, if a change would otherwise have been necessary, yet here the property was already in Cooley’s barn, and therefore visibly in his possession when he bought it.

As to the question of costs. The judgment of the court, as it appears upon the record, is as follows:

“The court, having heard the parties, finds the issue in part for the plaintiff. Whereupon it is adjudged that the plaintiff retain possession of the gray horse, hack, double harness, two blankets, and whip; the defendants to have return of the bay horse. The plaintifi? to have costs, taxed at $44.90, and defendants to have costs for two witnesses at $1.70, leaving a. balance of costs to be recovered by the plaintiff amounting to $43.20.”

We find no error in this ruling as to costs. There was really one issue; the plaintiff simply failing to make good his title to all that he claimed. An allowance to the defendants Of the cost of their witnesses upon that part Of the case that was decided in their favor is clearly all that they were entitled to if they were entitled to any costs.

There is no error in the judgment appealed from.

(The other judges concurred.)

PROMIssORY NOTES—PLEADING—SEVERAL NOTEs AND ONE COUNT. A number of notes given for the price of land sold may be sued upon in one count, alleging an indebtedness in an amount equal to the entire price, and that the obligation is evidenced by several promissory notes.

Appeal from superior court, New Haven county.

Action to recover price Of land sold. Demurrer to amended complaint, and motion to dismiss in part for want Of jurisdiction Of the court below. The demurrer and motion were overruled, and plaintifi' had judgment below. - One of the defendants appealed.

W. L. Bennett, for appellants.

J. B. Morse, for appellees.

PARDEE, J. In 1872 the defendants purchased a piece Of land upon time, and evidenced their Obligation to pay the price, namely, $5,100,