she was the widow of the deceased, and praying that the letters granted to the defendant should be revoked, and administration granted to her. The defendant answered, denying that she was the widow of the deceased. The right to the letters depended upon this fact; as by an act of Assembly of Maryland, passed in 1798, and adopted by Congress when it assumed jurisdiction over this District, the widow 63*] is *entitled to letters of administration, in preference to any other person, where the husband dies intestate.

Mr. May, against the motion to dismiss: The widow in this case filed a petition praying for letters of administration to herself, and for a revocation of those previously granted to the brother. If she was the widow, she was entitled to letters in preference to anyone else. Act of 1798, chap. 101, subchap. 15, sec. 17; 2 Harris & Gill, 51.

After receiving the certificate from the Circuit Court, the Orphans' Court dismissed her petition. We took an appeal from this dismissal, but the Circuit Court affirmed it.

This act of Assembly, 1798, ch. 101, sub- It is evident that the appeal carried up chap. 8, sec. 20, and subchap. 15, sec. 16, 17, nothing but the mere certificate, and under it, it makes it the duty of the Orphans' Court, in a was impossible again to bring before the Circase like this, if required by either party, to di-cuit Court the instructions which had been rect an issue to be sent for trial to any court given at the previous trial. The Orphans' Court of law most convenient for trying it; and the never saw these exceptions. If we could have court to which it is sent is authorized to direct got them into the record which was transmitthe jury, and to grant a new trial if it thinks ted from the Circuit Court to the Orphans' proper, as if the issue were in a suit therein Court, then an appeal from the order of disinstituted; and upon a certifiate from such missal would have carried them again to the court, or a judge thereof, of the verdict or Circuit Court and from that court to this. But finding of the jury, under the seal of the court, we could not do it; and if this writ of error the Orphans' Court is directed to give judgment should be dismissed, it will follow that instrucupon such finding. It is unnecessary to give the tions were given by the court below which were words of the act. We state its provisions only decisive of the result, and yet there is no mode so far as they relate to the case before us. of having such instructions reviewed by this court. The certificate either established or destroyed the claim, because it was conclusive upon the Orphans' Court. It was, therefore, a final order. The Act of 1801 includes final orders. See 2 Statutes at Large, 106, sec. S.

When the answer of the defendant came in, the Orphans' Court, upon the motion of the plaintiff, ordered the following issue to be made up and sent to the Circuit Court for Washington County, to be there tried; that is to say, "whether the said Mary Ann Van Ness be the widow of the said John P. Van Ness or not." No depositions or other testimony were taken on either side in the Orphans' Court.

The Circuit Court proceeded to the trial of the issue, and in the course of the trial sundry directions were given to the jury, to which the plaintiff excepted; and finally, as appears by the eleventh exception, the court instructed the jury that there was no evidence from which they could find that the plaintiff was lawfully married to John P. Van Ness, the intestate. Under this direction, the jury found by their verdict that Mary A. Van Ness was not the widow of the late John P. Van Ness; and this finding was, by order of the court, certified under seal to the Orphans' Court.

This is the case before us, upon the record brought here by the writ of error; and the question to be decided is, whether this court can take cognizance of the case, and inquire whether error has or has not been committed by the Circuit Court in giving the instructions under which the verdict was found.

The cause was argued upon a motion to dismiss the writ of error for want of jurisdiction. Mr. Coxe and Mr. Bradley for the motion, and Mr. May and Mr. Brent against it.

Mr. Coxe, in support of the motion, explained the laws of Maryland upon the subject, and referred to the Act of 1798, in 1 Dorsey's Laws of Maryland, p. 414, subchap. 15, sec. 17, and also to p. 394, subchap. S, sec. 20.

The certificate directed to be transmitted to 64*] the Orphans' *Court is altogether different from chancery practice, where the verdict is merely to inform the Chancellor, who may set it aside and direct a new trial. Mr. Coxe referred also to the cases in 1 Peters, 562, 565; 2 Peters, 243; 5 Howard, 118; and 3 Howard, 681.

This court. in 6 Cranch, 235, decided that any final judgment, order, or decree might be brought up for review.

The Act of 1801 has been pronounced comprehensive. 4 Cranch, 396; 8 Cranch, 252. What are final orders? See 3 Dall. 404; 2 Peters, 464.

The tendency of decisions is to enlarge the power of appeal. 3 Miss. Rep. 328; 1 Stewart & Porter, 171; 1 Martin, N. S. 75; 4 N. H. Rep. 220; 2 Mass. Rep. 142; 4 Mass. Rep. 107, 108; 5 Mass. Rep. 194; 11 Mass. Rep. 275. For the definition of a judgment see 3 Bl. Com. 296.

Mr. Brent, on the same side:

It is admitted by the other side, that she had a right to administer if she was the widow, and that this right was not lost by the fact that letters had been issued to the brother previous to her application. The power of the [*65 Orphans' Court to revoke letters cannot be questioned. The only point in issue was, whether she was or was not the widow. If the certificate of the Circuit Court had been that she was the widow, it might not have been a final order or judgment, because the Orphans' Court would still have to inquire whether she was competent in other respects to take out letters. For example, whether she was a resident, etc. But as the certificate was against her, it was conclusive of her rights. Mutuality is not necessary. Can there be any doubt of the certificate deciding the question as to her? The Orphans' Court are compelled to obey it. No case ever occurred in Maryland by which the opinion of her courts upon this point can be ascertained. A case did happen involving it; but before a certificate was sent to the Orphans' Court, a special act of the Legislature was applied for and obtained in 1834-1835.


Under this act, the case was carried to the | is the Orphans' Court to do with these two dif-
Court of Appeals, and is reported in 5 Gill & ferent verdicts? The difficulty is solved by re-
ferring to 10 Leigh, 572.

Mr. Brent then made the two following points:

1. The power of the Circuit Court over this case, sent to it from the Orphans' Court, was as absolute, respecting a control over the jury and granting a new trial, as over a case which originated within itself.

2. The Orphans' Court had no control whatever over the verdict and judgment of the Circuit Court.

What appeal had we? The Orphans' Court could not review the proceedings of the Circuit Court, and yet it was a case where the verdict either established or destroyed the claim. If the present remedy is not applicable, then there is a strange anomaly here in Washington—that | there is no mode of correcting errors where very important rights are involved. The Act of 1785, chap. 87, sec. 6, gave to a party aggrieved by any "judgment or determination" a right to appeal to the Court of Appeals. See Dorsey's Laws of Maryland. Can there now be, under our system, such a thing as a legalized error? See 5 Harris & Johns. 176. As to what is a final judgment in Maryland, see 2 Harris & Gill, 378; 12 Gill & Johns. 332.

The certificate was in effect a final order, and an appeal from a judgment opens all interlocutory orders. An instruction to a jury is a substitute for the whole demurrer to evidence. Peters, 37.


A writ of error must be upon a judgment which settles the whole matter. 11 Coke, 38; 21 Wendell, 658, 668; 1 Roll. Abr. 751. Pennsylvania decisions are, 3 Laws of Pennsylvania, 34; 1 Yates, 113; 2 Yates, 46, 51; 1 Binney, 444. Other cases respecting appeals, 7 Clark & Fin. 52.

66*] *The judgment in this case is final. 3 Binney, 276; Addison, 21, 121; 5 Howard, 214; 12 Wendell, 327; 2 Paige, 487; 19 Ves. 499; 2 Dan. Ch. Pr. 747, 1306, 1360; 1 Binney, 444; 5 Serg. & Rawle, 146; 6 Watts & Serg. 188.

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The act of Congress gives the same jurisdiction to this court in common law cases as in chancery. But in chancery an appeal will lie, although further proceedings may be necessary. 3 Barbour's Eq. Dig. 118, and cases there cited; 3 Cranch, 179.

[That part of Mr. Brent's argument relating to the amount in controversy is omitted, the decision of the court not involving that point.] Mr. Bradley, in reply, and in support of the motion to dismiss, maintained the following propositions.

1. That a writ of error can be issued from this court only in cases provided by statute. 2. That it can be issued only upon a final judgment, according to the common law. 3. There has been no judgment, final or otherwise, in the Circuit Court.

4. That the words "order and decree," in the Act of 1801, refer to proceedings in equity; not to orders in a court of common law.

*5. the statute of Maryland of 1798, [*67 chap. 101, gives to the courts of law a peculiar, special, and limited jurisdiction, and has not provided any mode for reviewing proceedings under that jurisdiction.

6. That no writ of error could lie to such a court, because there is no judgment of that court, final or otherwise.

In support of these propositions he cited Wilson v. Daniel, 3 Dall. 401; Rutherford v. Fisher, 4 Dall. 22; Boyle v. Zacharie & Turner, 6 Pet. 656, 657; Toland v. Sprague, 12 Pet. 331; Evans v. Gee, 14 Pet. 1; Amis v. Smith, 16 Pet. 303; Smith v. Trabue's Heirs, 9 Pet. 4; United States v. Goodwin, 7 Cranch, 108; United States v. Gordon, 7 Cranch, 287; United States v. Tenbroek, 2 Wheat. 248; United States v. Barker, 2 Wheat. 395; Sarchet v. United States, 12 Pet. 143; Mayberry v. Thompson, 5 How. 121; Ches. & Ohio Canal Co. v. U. Bank of Georgetown, 8 Pet. 259; Brown v. U. Bank of Florida, 4 How. 465; Winston v. Bank of United States, 3 How. 771; Judiciary Act of 1789, ch. 20, sec. 22.

The statute of Pennsylvania is the only one in all the States like that of Maryland; and the courts of Pennsylvania have practically entertained appeals from such issues. If the sub- Mr. Chief Justice Taney delivered the opinstance appears in the record, this court will notion of the court. After stating the case as regard forms, because, if it did, its jurisdiction above recited, the opinion proceeded as folwould fluctuate, and it would be in the power lows: of the court below to oust it of its proper jurisdiction. The right of appeal must exist or not exist when the bill of exceptions is taken, and cannot depend upon the mode in which the judgment is rendered.

The act of Congress mentions a final order. But here an order was necessary to direct the certificate to be transmitted to the Orphans' Court, and that order was final. If there are two judgments, one for dower and the other for damages an appeal may lie from one, and not the other. Viner's Abr. tit. Judgments, letter P. T.

The Orphans' Court must dismiss our petition on the reception of the certificate. 2 Harris & Gill, 51.

But it is said on the other side, suppose we now succeed, and another trial takes place in the Circuit Court, with a different result, what

The appellate power of this court in relation to the Circuit Court for the District of Columbia is regulated by the Act of Congress of February 27, 1801. And it authorizes the writ of error to the Circuit Court in those cases only in which there has been a final judgment, order, or decree in that court. Whatever errors, therefore, may have been committed, and however apparent they may be in the record, yet we have not the power to correct them unless the Circuit Court has passed a final judgment, order, or decree in the case before it.

The argument on the part of the plaintiff is, that inasmuch as the verdict was found in obedience to the positive instructions of the court, and as the certificate of the finding of the jury was conclusive upon the Orphans' Court, the order of the Circuit Court to certify the verdict to the Orphans' Court ought to be

regarded as a final judgment or order within | versal of that judgment and a new *find- [*69 the meaning of the act of Congress.

It is true the Orphans' Court has no power to grant a new trial, and is bound to consider the fact to be as found by the jury; and consequently the judgment of that court must be against the plaintiff. But the matter in contest in the Orphans' Court is the right to the letters of administration. And it is the province of that court to apply the law upon that subject to the fact, as established by the verdict of the jury, and to make their decree accordingly; refusing to revoke the letters 68*] *granted to the defendant, and dismissing the petition of the plaintiff. The suit between the parties must remain still pending until that decree is pronounced. The certificate of the Circuit Court is nothing more than evidence of the finding of the jury upon the trial of the issue. It merely certifies a fact, that is to say, that the jury had so found. And the order of the Circuit Court directing a fact to be certified to another court to enable it to proceed to judgment, can hardly be regarded as a judgment, order, or decree, in the legal sense of these terms as used in the act of Congress. Certainly it is not a final judgment or order. For it does not put an end to the suit in the Orphans' Court, as that court alone can dismiss the petition of the plaintiff which is there pending; and no other court has the power to pass a judgment upon it. A verdict in any court of common law, if not set aside, is in all cases conclusive as to the fact found by the jury, and the judgment of the court must follow it; as the Orphans' Court must follow the verdict in this case. Yet a writ of error will not lie upon the verdict.

And if this court should take jurisdiction, and should determine that the Circuit Court had erred in its directions to the jury, what judgment could be given here? Could we give a judgment reversing an order which does nothing more than direct a fact to be certified to another court? If we could do this, it would not reach the judgment in the Orphans' Court, nor exercise any control over it. And a writ of error can hardly be maintained where the judgment of the appellate court would be ineffectual and nugatory.

Neither could it make any difference as to the jurisdiction of this court, if there had been a feigned issue with formal pleadings, and the Circuit Court had entered a judgment upon the verdict. For the judgment would have had no effect upon the rights of either party to the administration in dispute, nor could it exercise any influence upon the decision of the Orphans' Court. And if this court could have regarded the feigned issue as an action regularly brought in the Circuit Court, and upon that ground have taken jurisdiction, the affirmance or reversal of the judgment would have had as little effect upon the proceedings in the Orphans' Court as the original judgment in the Circuit Court. It would indeed decide the right to the fictitious wager stated in the pleadings. But if the judgment of the Circuit Court was reversed, and a venire de novo awarded, it would not alter the decree in the Orphans' Court. That court is required by law to act upon the finding of the jury, and not upon the judgment of the Circuit Court. And the re

ing would not authorize the Orphans' Court to recall the judgment it had given, and was bound to give upon the original verdict certified by the Circuit Court.

The act of Assembly of Maryland appears to have received in practice in that State the same construction that we have given to it. There is, indeed, no judicial opinion on the subject; but there is no ground for supposing that a writ of error was ever sued out under that law. In 1832, an act was passed authorizing a writ of error in such cases, and staying proceedings in the inferior courts until a decision was had in the appellate court: and this law embraces cases which had been tried before its passage, as well as those which should afterwards take place. But from 1798 down to the passage of this act of Assembly, we can find no trace of a writ of error sued out in a case like this. The absence of any such proceeding for so many years is the strongest evidence of the construction put upon the law, and of the opinion entertained by the bar of the State, that the writ would not lie. For many issues from the orphans' courts must have been tried during that period of time which would have given rise to the writ of error if it had been supposed to be warranted by the law. The Act of 1832, also, embracing as it does prior as well as future cases, would have been altogether unnecessary, if a different construction had been given to the Act of 1798.

Upon the whole, therefore, this court is of opinion that there has been no final judgment, order, or decree in the Circuit Court, and the writ of error must be dismissed for want of jurisdiction.


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In February, 1820, Robert Marshall and Ann Berry, being about to be married, executed the following contract, which was duly recorded: "Whereas Robert Marshall and Ann Berry, both of Prince George's County, State of Maryland, are about to intermarry, its thereof agreed by the parties, before the marriage, that the said Ann Berry shall hold in herself, all her right, title and interest to the following funds of her own, viz.: one hundred and fifty shares of stock in the Patriotic Bank, of which ten dollars have been paid, which stock stands to the credit of Ann Berry; also, one hundred and thirty-s -seven shares of the stock in the Central Bank of Georgetown and Washington, upon which eleven dollars per share have been paid; and three thousand five hundred dollars in the bonds of Charles Glover.

"Given under our hands and seals, this 17th day of February, 1820.

"Robert Marshall, [seal.]
“Ann Berry.

"Witness: Jane H. T. Dorsett."
Soon after this, the marriage was solemnized.
On the 27th of August, 1823, Marshall and
wife executed a deed to Susan G. Beall, which |
appeared to be unsatisfactory, and to have no
influence upon the decision of the case.

On the 1st of May, 1824, Marshall and wife made another deed to Susan G. Beall, who was a sister of Mrs. Marshall, as follows:

HIS was an appeal from the Circuit Court, to the sole and separate use of the said Ann of the United States for the District of Berry, her heirs and assigns, free and clear Columbia, holden in and for the County of from any debts, control, demands, or incumWashington. brances of the said Robert Marshall; and whereas the said bank stock has been sold by the mutual consent and agreement of the said Robert Marshall and and Ann Marshall; and whereas judgment has been obtained against the said Charles Glover for two thousand dollars, part of the said three thousand five hundred dollars, with interest and costs, in the name of the said Robert Marshall, and on which execution hath been issued against the property of said Charles Glover, and one other judgment for fifteen hundred dollars, with interest and costs, being the remaining part of the said three thousand five hundred dollars, due by said Charles Glover; and whereas the said Robert Marshall and Ann Marshall have agreed further to dispose of and settle the judgments above mentioned, and the tract of land hereinafter mentioned, by a more full, complete, and formal instrument of writing than the marriage agreement above mentioned, according to the terms, stipulations, and conditions of the present instrument of writing. Now, this indenture witnesseth, that for and in consideration of the premises, and for the more fully, completely, and perfectly carrying into effect the marriage contract between said parties, and for the further consideration of five dollars, to them in hand paid by the said Susan G. Beall, the receipt whereof is hereby acknowledged, and for divers other good, *causes [*72 and considerations, them thereunto moving, the said Robert and Ann Marshall have given, granted, bargained, sold, released, and assigned, and by these presents do give, grant, bargain, sell, release, and assign, to the said Susan G. Beall, her heirs, executors, administrators. and assigns, the following tract, piece, or parcel of land, situate, lying, and being in Prince George's County aforesaid, on which the said Robert and Ann Marshall at present reside, being lot number four in the division of the estate of William D. Berry, and containing about fifty acres of land, more or less, for and during the joint lives of the said Robert and Ann Marshall, and the survivor of them; likewise the two judgments above particularly recited, against Charles Glover; to have and to hold the said tract of land above mentioned and described for and during the lives of the said Robert and Ann Marshall, and the survivor of them, and the said two judgments against the said Charles Glover, to the said Susan G. Beall, her heirs,, executors, administrators, and assigns; in trust, nevertheless, and to and for the following uses, intents, and purposes, to wit: in trust to hold the above mentioned and described tract of land for the use of the said Robert and Ann Marshall, during their joint lives; and if the said Robert Marshall shall survive the said Ann Marshall, for the use of the said Robert Marshall during his life and no longer, upon the express agreement and understanding that the said tract of land is not to be subject or liable for debts, contracts or engagements, of the said Robert Marshall, and in further trust that the said Robert Marshall shall have and receive the said judgment of two thousand dollars. with interest and costs, against the said Charles Glover,

"This indenture, made this first day of May, in the year of our Lord one thousand eight hundred and and twenty-four, between Robert Marshall and Ann Marshall, his wife, late Ann Berry, of Prince George's County, in the State of Maryland, of the first part, and Susan G. Beall, of Washington County, in the District of Columbia, of the other part. Whereas, by 71*] *an agreement entered into between Robert Marshall and Ann Marshall, late Ann Berry, dated the 17th day of February, in the year of our Lord one thousand eight hundred and twenty, and previous to the marriage of the said Robert Marshall and Ann Marshall, it was agreed by and between the said parties, that the said Ann Marshall should have and possess, in her own right, the following funds for her own property, to wit.: one hundred and fifty shares of stock in the Patriotic Bank, upon which ten dollars per share had been paid; also, one hundred and thirty-seven shares of stock in the Central Bank of Georgetown and Washington, upon which eleven dollars per share had been paid, and three thousand five hundred dollars due to the said Ann Marshall, then Ann Berry, by Charles Glover, and which was secured by a mortgage of a tract of land, formerly sold by the said Ann Berry to the said Charles Glover, all which stocks and debts belonged to the said Ann Berry previous to the said marriage, besides considerable other real and personal property; and whereas the said Robert Marshall did, at the same time, agree to make any other or further instrument of conveyance which might be considered necessary fully to assure and convey the said stock and debts above mentioned

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to his sole and separate use, free and clear of the marriage contract above mentioned, and of all separate claim of the said Ann Marshall, and his receipt shall be good and sufficient acquittance and discharge of said judgments; and in further trust, that the said Susan G. Beall shall hold the said judgment of fifteen hundred dollars, with interest and costs, for the sole and separate use of the said Ann Marshall, her executors, administrators, and assigns, free and clear from any control or demand of the said Robert Marshall, or of his creditors, debts, or engagements; and upon the payment of the said judgment, or any part thereof, to invest the said money in stock, or to loan the same on interest, with the approbation of the said Ann Marshall, for the like sole and separate use of the said Ann Marshall; and in further trust, that the said Ann Marshall, during the life of her husband, may dispose of said judgment, or the proceeds thereof, and of her right, interest, and estate in the said tract of land, after the death of the said Robert 73*] Marshall, *either by her last [will] and testament, or by any instrument of writing, under her hand and seal, in the presence of two witnesses, during her coverture, in the same manner as if she were single. It is further understood and agreed, that said Robert Marshall is to pay and satisfy the judgment of Hodges and Lee against them; and the claim | of Mr. McDaniel's estate, if judgment should be recovered; and all fees, costs, and expenses in prosecuting and recovering the two judgments against Charles Glover, and all legal expenses of the judgment assigned to him.

"In testimony whereof, the said parties have hereunto set their hands and seals, the day and year first above written.

"Robert Marshall, [seal.]
"Ann Marshall, [seal.]

"Susan G. Beall. [seal.]" In November, 1825, there was paid to the trustee, on account of the judgment for $1,500 reserved as above for the separate use of Ann Marshall, the sum of $1,960.66.

In May, 1832, Ann T. Beall, the mother of Ann Marshall, died. By her will, she gave the following legacy to her daugher:

"I give and bequeath to my daughter, Ann Marshall, the sum of four hundred dollars, and hereby appoint my daughter, Susan G. Beall, her trustee, to hold and retain the whole amount in her hands, and let the said Ann Marshall, wife of Robert Marshall, have some part or parcel of the money occasionally, as she may stand in need, but to be paid out to her at the discretion of my trustee, Susan G. Beall."

During the lifetime o&f Ann Marshall, Susan G. Beall, the trustee, loaned the sum of $400 to Amelia T. Dorsett, a third sister, out of the trust fund.

In July, 1833, Ann Marshall, the wife, died, never having disposed of the trust property belonging to her and in the hands of the trustee, in the manner provided for in the deed carrying out the marriage articles.

After her death, her surviving husband, Robert Marshall, sued Amelia T. Dorsett, to recorver the four hundred dollars loaned to her by the trustee, as above recited, and obtained a judgment.

In April, 1835, Robert Marshall, also filed a bill on the equity side of the court against Susan G. Beall, the trustee, in which he recited the facts as above set forth, averred that the trust fund, with the profits and interest, became vested in him by the death of his wife, and prayed an account by the trustee, with an injunction, etc.

*In April, 1836, Susan G. Beall, the [*74 trustee, filed her answer, admitting the facts stated in the bill, but denying that the complainant had any right to the trust fund. To this answer the complainant filed a general replication.

In November, 1836, Amelia T. Dorsett filed a bill of interpleader, averring substantially the same facts and exhibiting the same documents as had been stated and produced by complainant; alleging that the provision in the deed referred to that the real estate was to be conveyed to complainant if he survived his wife— was null and void, and inoperative against the legal representatives or heirs of said Ann; averring that the said Ann died intestate in July, 1855, without children, and leaving the complainant and another sister, Susan G. Beall, living, and three children of a deceased sister; that they were the only heirs of said Ann, and entitled to the trust property.

That during the lifetime of said Ann, the complainant, with her consent, borrowed of the trustee $400, part of said trust fund, and gave her note therefor; that, since her death, Marshall had brought suit for the recovery of this money, as surviving husband of said Ann, and by the judgment of the court had obtained judgment for the same; but denied his right to the money, asserting that she, as next of kin of her deceased sister, was entitled to letters of administration on the estate, and if said Marshall had obtained any, they should be revoked.

The bill prayed that the children of her deceased sister may be made parties to the original suit, in which Marshall was complainant; that this bill of interpleader may be filed in said suit; that the said parties may be required to interplead; that the judgment against her may be enjoined, the trust property adjudged to the heirs of said Ann, and the said Marshall be perpetually enjoined, etc., etc. To this bill the defendants filed the following demurrer:

Demurrer to Bill of Interpleader. Whereupon the defendants, by their solicitors, Coxe & Carlisle, filed the following demurrer to the foregoing bill of interpleader: The demurrer of Robert Marshall and Richard H. Marshall, jointly and severally, to the bill of interpleader of Amelia T. Dorsett.

The defendants, by protestation, not confessing or acknowledging all or any of the matters and things in the said complainant's bill of interpleader contained to be true in such manner and form as the same are therein set forth and alleged, do demur to the said bill; and for cause of demurrer show, *that the said [*75 complainant hath not in her said bill of interpleader made such a case as entitles her, in a court of equity, to any relief against these defendants, or either of them, as to the matters contained in said bill of interpleader.

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