— Lyon J.
By the Court.
delivering the opinion.
[1.] This agreement between the parties to submit the “ questions of law arising out of the will and codicil of Daniel White, as to the interest of Daniel G. White, under said will and codicil, and whether such interest be subject to executions against the said Daniel G. White,” was not one to submit all the questions of law and fact that might be involved in the issue formed, or .to be formed, in these claim cases; at least, such is not the letter of the agreement, and by that the Court must be governed,® although we have no doubt, but that such was the intention of the parties. Whether the executions were valid, subsistingjjand unpaid liens; whether the title to the property claimed is derived under the will, and others that might be mentioned, were all open questions that might have been involved [in the trial, and which had not been submitted, upon which the Court had not passed, and upon which the claimant was entitled to be heard, notwithstanding, that under the’will such title vested in the defendant in fi. fa., as made the property subject to the executions levied. We think, therefore, that the Court below erred in dismissing the claim cases.
[2.] The claims should have been submitted to the jury, [699]*699and if, on the trial, the claimant could show no other title to the property than such as was created in Daniel G. White by the will and codicil of Daniel White, or no other reason to defeat the liens of the execution than the question growing out of a construction of that will, in respect to this property, already decided by the Court, then the property is subject, and so the Court must direct the jury, and so they must find, for this is an adjudicated and settled question by the decision of the Court, on the submission of the same to him? from which no appeal was taken; and so the claimant is concluded by that decision; he cannot go behind it. Still the claimant having interposed the claim, has a right to go to the jury with them if he insists upon it, and will take the risk. This is the mode prescribed by law for the trial and disposition of all claims, and as claimant has not waived this right, that proceeding must be followed by the Court below, unless he voluntarily withdraws- the claim, which he has a right to do, if he chooses, but that is a question for him, and not the Court. If he willfully keeps the claims in Court, after he has been judicially informed as to what the law is, and he has no other excuse for doing so but that; the law has prescribed a penalty in the shape of damages for the delay, which this Court considers altogether ample. So the case must go back with instructions.
Judgment reversed.
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