party to the original mortgage, whose authenticity it became necessary to establish. In 2 Ev. Poth. 266, a doubt is expressed whether the general rule, thus restricting a party who calls a witness, should extend to what are called instrumental witnesses; and the doubt is repeated by Professor Greenleaf in his treatise on evidence, sec. 443. In Gresley's Eq. Ev. 119, it is said that, even in collateral issues, the subscribing witness to a deed must be produced, if he can be produced, and is capable of being examined. He cites the language of Lord Ellenborough in Rex v. Herringworth, 4 Mau. & Sel. 350. "The party who would prove the execution of any instrument that is attested, must lay the ground-work by calling the subscribing witness to prove it." "His testimony indeed," he continues, "is not conclusive, for he may be of such a description as to be undeserving of credit, and then the party may go on to prove him such, and may call other witnesses to prove the execution." "The only question is," says he, "whether the parties, who seek to prove the execution of this indenture, must not make their way, to what may be called secondary proof, through the medium of those witnesses, who are the plighted witnesses to the transaction, by first disposing of their testimony." This, it appears to the court, is the true distinction, and that the complainant should, under the circumstances, have been permitted, in the language of Lord Ellenborough, "to show that the subscribing witness was undeserving of credit." But we regard the other testimony in the cause, independent of Matheney's, as entirely satisfactory to prove that the mortgage was antedated, and would not, therefore, on that ground, disturb the decree of the chancellor.

But the chancellor, understanding that the complainant's case was rested entirely on the solution of this question, examined no further, but dismissed the bill. It is insisted in this court, that even conceding the antedating of the mortgage from George to Allen Odum, the complainant had other equities on which he was entitled to be heard, and which, it is admitted, were not considered by the chancellor. The cause will be sent back for that purpose.

Some irregularity seems to prevail in regard to granting injunctions on interpleading suits, which it is thought a fit occasion to notice and correct. The complainant, in a bill of interpleader, should not only offer, by his bill, to pay the fund into court, but he should take care to have an order passed to that effect, if he desires to protect himself from the liability for in

1842. Matheney was the subs ant's solicitor stated to the cou Dess was such as not to entitle prove the deed by other testim defendant's solicitor, on the g was in court, and was the hig sustained by the court. Mat for the complainant, and tes cuted and delivered at a s thereof. The complainant th peach his general character. be inadmissible, on the groun mitted to repudiate his own Although the determinatio the question thus submitte some of the views entertaine subject. There is no doul propriety of it. But when a prove it, and his testimony te such testimony is necessaril In Howard v. Brathwaite, 11 Lord Mansfield to have "oft witnesses, but would give 1 Kenyon followed him in tha they were heard, their cred their testimony is to be r jealousy, necessarily, for the man who, upon his oath, asse by his solemn act, attested as in reference to the testimony who impeached the sanity of have been well assured, befor such testimony might or mig version when it relates to the But as a general rule, the duced. The inquiry is then compelled to produce the sub impeach his credit by proof familiar maxim, that where th plicable. No man should be p he has himself adduced to sust that under consideration, he of the law, rather than of the

The rule is very

terest on the fund while it is in his possession. explicit and well settled, that on a bill of interpleader, the plaintiff "must bring the money into court, before he takes any step in the cause:" 1 Smith's Ch. Pr. 476. And in Pauli v. Von Melle, 8 Sim. 327, an order for an injunction in an interpleading suit was declared to be irregular, "if it did not make the issuing of the injunction dependent on the payment of the money into court." From the proceedings before us, it does not appear that any order has been heretofore passed for the payment into court of the funds in the hands of the complainant in the bill of interpleader, and provision to that effect will be now made.

It is ordered and decreed, that the injunction heretofore granted, be continued until the hearing on the merits, or the further order of the court. It is further ordered, that the complainant in the bill of interpleader, pay into the court the money in his hands, according to the prayer of his bill, and that the commissioner report to the court, or one of the chancellors, a proper mode of investing the same pending the litigation.

JOHNSON and JOHNSTON, chancellors, concurred.

WHEN A PARTY MAY IMPEACH A WITNESS HE HAS HIMSELF CALLED: See Blue v. Kibby, 15 Am. Dec. 95, and note 96, where the subject is discussed at length.

THURSTON ET AL. v. DICKINSON ET AL.

[2 RICHARDSON'S EQUITY, 317.]

TENANT IN COMMON CAN NOT CHARGE EITHER LANDS OR CO-TENANTS for improvements on the common property.

TENANT FOR LIFE CAN NOT CHARGE EITHER THE REMAINDER-MAN or the estate for improvements on land in which he holds the life estate.

THE facts are stated in the opinion.

Bellinger, for the appellants.

Patterson, contra.

JOHNSON, Chancellor.

The case for the consideration of the court may be thus stated: The late Mrs. Thurston was, during her coverture, seised of a freehold estate of inheritance in fee in a certain tract of land, for the partition of which this bill is filed. Her husband survived her, and, whether before or after her death is not stated, nor is it material, he sold and conveyed all his interest in the land to a person not named in the brief, and he, the purchaser, sold and conveyed the same interest to

Josiah Dickinson, deceased, under whom the defendants claim as his heirs or distributees. The complainants are the children of Mrs. Thurston, and claim as her heirs or distributees.

There is no question about the relative rights of these parties. According to the act providing for the distribution of intestates' estates, on the death of Mrs. Thurston, two thirds of the land descended to the complainants, her children, and the remaining one third to her husband, to which the defendants, his alienees, are entitled. But the defendants, or those from whom they derive their title, have made improvements on the land, in the form of buildings, etc., and the question raised is, whether they are entitled to be paid for those improvements. The general rule clearly is, that if one of several tenants in common makes improvements on the common property, neither the property nor his co-tenants are chargeable with their value, or the expenses incurred in making them: Thompson v. Bostick, McMull. Eq. 75. In that case, the tenant in possession had erected a cotton gin on the premises, and it was held that his co-tenant was not chargeable with any portion of the value. The question was very fully considered in Dellet v. Whitner, Chev. Eq. 213, in which the rule is distinctly recognized. The case Ex parte Palmer, 2 Hill's Ch. (S. C.) 215, is referred to as conflicting with these decisions. There the testator devised the premises, an unimproved lot in the city of Charleston, to his wife for life, remainder over, after her death, and appointed Palmer his executor, who, after the death of the testator, married his widow, by which he became tenant during the joint lives of himself and wife. It was wholly unproductive in the condition it was when he entered, and he improved it by erecting buildings thereon at considerable expense, and the court held that he was entitled to the value of the buildings in the condition they were at the termination of the life estate; but the case is put expressly on the ground that the improvements were made before Palmer had any interest in the property, and that as executor he was justified in making such permanent improvements as would render the estate more valuable to all concerned, and therefore the expenses were chargeable on it. But the rule, that neither the estate nor the remainder-man is chargeable with the expenses of improvements made by a tenant for life, is distinctly recognized.

But it is said that the indiscriminate application of the rule would often operate as a hardship, and there may be some such cases, but it is impossible to frame a rule that would meet the particular justice of every case. Men will readily accommodate