author: Huston, J. Gibson, C. J.

text:
    HEGE and others, against HEGE and others.
    IN ERROR.
    A, leaving several children, devised to his son B. a tract of land, he paying-fifty dollars an acre therefor; to his son C, a tract of land, he paying sixty dollars per acre therefor; the amount of money so payable to be equally distributed among all his children. B. took under his father’s will, made several payments according to its direction, and died leaving children: his administrators having obtained from the Orphans’ Court an order to sell his real estate, for the payment of debts, sold the same subject to the payment of the balance of the money due under his father’s will. Held that the administrators sold, and purchaser took nothing but the land, and was not entitled to the interest which B. had in the land of his brother C. under his father’s will.
    When C. came of age, he refused to take the land devised to him, and an agreement was entered into between the guardian of B.’s children, and all the other children of A., that the land devised to C. should be sold, and the money equally divided between them: the land, in pursuance thereof having been sold by trustees appointed for the purpose, and the money in their hands, it was held that a suit would not lie against them in the names of the children of B., to recover their share, but must be brought in the name’s of B.’s administrators, there beingdebts'of B.’s estate yet unpaid.
    Writ of error to the court of common pleas of Franklin county, in an action for money had and received, brought by the plaintiffs in error, Polly Hege, Susan Hege, and Nancy Hege, by their guardian, Jacob Zent, against Peter Hege; Jacob Hege and Philip Tritt, the defendants in error.
    The record exhibited the following facts: — Christian Hege, the grandfather of the plaintiffs, and father of two of the defendants, was in his life time seized of two tracts of land, and died, having first made his last will and testament, the material part of which to this cause is as follows:
    “ To my son Henry, I give and bequeath two- hundred acres of land lying and situate on the north side of my mansion hotise and property, the beginning to be on my east line, and run a wésterly course, so as to be equally advantageous to both tracts, at present' undivided; this division, I will Jacob Hege, one of my sons and two discreet neighbours, to be chosen by Jacob Hege and Henry Hege, to determine. This two hundred acres I value to Henry Hege, at fifty dollars per acre, payable in instalments of three hundred dollars in each year, for five years; after five years I will that he pay the ■sum of four hundred dollars yearly, until the whole be discharged: if Henry Hege refuses to comply with these terms, it is my will that my executors sell and convey the same land to the highest bidder, at a fair and public sale; if he complies, I will the above described land to him, his heirs and assigns, forever. I will and bequeath to my son, Peter Hege, two hundred and thirty-six acres, and fifty-eight perches of land, and allowance, including my mansion house, barn, buildings and appurtenances thereto belonging. This land lies situate on the south side of. my properly, which I value to him at sixty dollars per acre, payable in instalments of five hundred dollars each year for five years; then the instalments shall be six hundred each year until the amount is paid. My will is that Jacob Hege act as guardian for Peter Hege, until he is twenty-one, and grant the privilege of selling fifty or sixty acres of the above described land, to be sold and conveyed by my executors. Jacob Hege shall choose out the part to be sold, where it will least injure the place. The above described mansion tract I will to Peter Hege, his heirs and assigns, forever, the amount being discharged.” “ I have made the foregoing valuation of my land, in order to leave my property as near equal as possible among my children.” “ Finally, I will that each of my children shall receive an equal share of my whole estate, of every description, except my smith tools, which I will to Henry and Peter Hege.”

    The testator appointed Jacob Plege, Samuel Zent and Peter Hege to be his executors, of whom Jacob Hege alone was the suryiving and acting executor, when this suit was brought.
    This will was proved 20th May, 1815. Henry Hege, the devisee, took possession of the land devised to him, and made four of the payments directed by his father’s will; and on the 16th July, 1820, died intestate, leaving three children, who are the plaintiffs in this suit. ;

      Henry liege's administrator petitioned the orphans’ court for an order to sell the land of his intestate, for the payment of debts, which was granted; and the administrator sold and conveyed the same land which had been devised to Henry Hege by his father, to Samuel Diehl, on the 12th June, 1821.
    On the 9th March, 1824, Henry liege's administrators settled their account in the orphans’ court, and there was found a balance in their favour of one hundred and twenty-three dollars and seventy-five cents, after which, and before the bringing of this suit, they were discharged from their office of administrators by the court. When Peter Hege came of age, he did not elect’to take the devise to him under Christian Hege, his father’s will: but on the 21st December, 1822, the following agreement was made and executed by and between all the heirs and legatees of Christian Hege and the children of Henry Hege, deceased, who are the plaintiffs in this suit by their guardian.

      “ Whereas Christian Hege of the county of Franklin, and state of Pennsylvania, by his last will and testament, did devise and bequeath unto his son Peter, his mansion tract of land at a certain valuation, and did distribute the money arising from the sale .amongst his children. Now be it known, that it is mutually agreed by and between said Peter Hege of the one part, and his brothers ■and sisters, legatees as aforesaid, of the other part, that his said lands so devised to said Peter, should be sold for the best price that •can be obtained for the same, and the money arising from said sale, shall be equally divided amongst the children of said Christian Hege, •deceased, or their representatives, so that the said Peter, out of the whole real and personal estate of the said Christian Hege shall receive an equal share with his brothers and sisters and no more. And it is further agreed, that said Peter Hege, Jacob Hege and Philip Tritt, for them.selves and the other legatees, do contract for the sale of the said tract of land to the purchaser, the said legatees getting their shares of the purchase money, in satisfaction of what they would annually have been entitled to, from Peter, under the said will, and will execute the necessary receipts and releases for the same to the said purchaser. And whereas said Peter has been charged by his guardian, ■Jacob Hege, and his agent in collecting rents, making sale of part of ¡the land, and making calculation and settlement, three hundred •and five dollars, it is considered as reasonable that said Peter is not to be charged with the whole of said sum, but he is to be exclusively charged with one third thereof, and the other two thirds .shall be taken off all the legatees, equally, in making the distribution.”
    In pursuance of this agreement, in April, 1824, Peter Hege, Jacob Hege and Philip Tritt, sold the land mentioned, and received the purchase money, which it was agreed should be considered in their hands, for the purpose of trying the several questions which arose out of the facts.
    In this court two questions were presented for argument and decision.
    1st. Is not Samuel Diehl, who purchased the land of Hewn] Hege, deceased, from his administrators, entitled to all the interest which Henry Hege had under the will of Christian Hege, deceased, and consequently to the money payable out of the land of Peter to Hmryl

    2d, Can this action be maintained in the names of the heirs of Henry Hege'l Should it not have been brought by the administrators?

      Dunlop, for the plaintiffs in error.
    First. The only interest which Henry Hege had under the will •of his father, which affected the land devised to Peter, was a legacy charged upon it; there was no application to the orphans’ court by the administrators of Henry to sell this interest; that court granted an order for the sale of two hundred apres of land described by metes and bounds, which could not embrace a legacy falling due in successive years, and payable out of another tract of land; nor would that court have power to grant such an order.
    Second, The yearly payments to be made by Peler out of the land devised to him, were in the nature of an annuity, and go to the heir, and not to the administrator. 1 Rop. on Leg. 153. 2 Vernon Rep. 133. Toll Law of Exec’rs. 178. And although an annuity is generally chargeable upon the person of the grantor, yet it may be chargeable upon a real or personal fund. 1 Com. Dig. 622. tii. Annuity. 1 Jac. Law Die. tit. Annuity, Doc. Sf Stu. 90. 10 Mod. Rep. 237. 2 Ves. Sr. 17. 1 Brown’s Chan. 377. 1 Rop. on Leg. 153.

    If a devisee refuses to take land charged with legacies, it descends to the heir subject to the payment of those legacies; and therefore, Henry, the father of the plaintiffs, being an heir, upon the refusal of Peter to take, the fee and the charge being both vested in him, the charge would be merged in the inheritance. 8 Com. Dig. 311, lit. Merger. If lands are devised to A. and he cannot be found, they descend to the heir: so if land be devised to the executors to sell, before they qualify themselves to sell, the land goes to the heir. Henderson v. Wilson, 13 Sergt. Sf Rawle, 330.
    The application of these legal principles to the facts of this case lead inevitably to the conclusion, that the claim which the children of Henry had upon the land of Peter, was a real interest, which descended to them, and for which they alone could sue.
    In another point of view. A proper construction of the agreement of the 21st of December, 1822, amounts to this, that the legatees agree not to take their legacies, and the devisee not to take the devise; whereby the will of Christian Hege was rendered inoperative as to this land, it therefore descended as realty to Henry Hege’s children, and therefore they alone could sue for the money-arising out of the sale of that inheritance, which was made as to their interest, by their agreement and authority.
    There was a valuable consideration which induced Peter Hege to enter into this agreement: for upon his refusal to take the real estate devised to him, subject to the legacies, he would take nothing. 2 Rop. on Leg. 447-450. And if he took the land, he would have been personally liable for the legacies, which amounted to more than its value. Gleim v. Fisher, 6 Johns. Chan. Rep. 33.
    If then Peter Hege, under the influence of this consideration, and the other defendants, thus agreed with the plaintiffs and the other heirs of Christian Hege, that this part of the estate should be considered as land, and should be sold as their inheritance, they ought not now to be permitted to sustain a defence against the legal operation of their-agreement.

      Crawford appears for Samuel Diehl, the purchaser of Henry Hege’s estate from the administrators.

      The defendants are mere stakeholders, having no interest in this cause.
    The administrators of Henry Hege applied to the orphans’ court for an order to sell the estate devised to Henry by his father’s will, subject to the payment of the legacies; and the conditions of sale made known by the administrators, stated that they would sell all the interest of Henry Hege, deceased, under his fathers will, “ which is herewith exhibited.” The interest which Henry had in Peter’s land, being part of the estate which he took under his father’s will, passed by the sale made by Henry’s administrators to Samuel Diehl; there was therefore nothing left in Henry’s heirs to sue for.
    It is Samuel Diehl who defends in this suit against the operation of an agreement, in the subject matter of which, he had an interest at the time of its execution, and to which he is not a party, and cannot therefore be affected by it.
    But the plaintiffs in this suit cannot recover at all; if there can be a recovery by any one but Samuel Diehl, it must be by the administrators of Henry Hege.

    By the will of Christian Hege, deceased, his ten children were to share his real and personal estate equally, and executors of that will were appointed, through whose hands the estate must come to be distributed, and therefore, in the shape óf personal estate and not land.
    The balance overpaid by the administrators of Henry Hege, as appeared upon the settlement of their administration account, remained a debt against the estate, and being indebted, no one but his administrators could sustain an action to recover a legacy due to him.

      Chambers, for the defendants in error.
    This cause depends upon the construction of the will of Christian Hege, deceased.
    The interest of Henry, under his father’s will, was land. Henry could not have sued Peter, nor could Peter have sued Henry for their respective legacies. The land was devised in consideration of fifty ' dollars an acre to one, and sixty dollars an acre to the other; and which was not payable by Peter to his brothers and sisters, nor by - Henry to his brothers and sisters, but which was payable by Henry and Peter respectively to the executors of their father, Christian Hege, and therefore if Henry was alive, he could sustain no action against Peter, and therefore his administrators, much less his heirs, cannot sustain it.
    . If the will of Christian Hege had been executed, Peter would have to pay six hundred, and Henry four hundred dollars per annum, to the executors, and this was to be equally distributed between the ten children; out of which Henry’s share would be one hundred dollars per annum, leaving him a debtor to the estate to the amount of three hundred dollars per annum: and being thus indebted to the estate, he could not sustain an action to recover from it. Henry, having taken the lands devised to him by his father’s will, became personally liable for the payment of the legacies; and being thus a debtor to the fund ten dollars for every one he was to receive, neither he, his heirs nor administrators, can recover.

      Peter Hege had no election to make, either to take or not take the land devised to him, and take his share of the estate, as was the case with Henry; and the only effect which the agreement of the, 21st December, 1822, had upon the situation of the parties, was to give to Peter a share in the estate, upon his refusal to take the devise, which without the agreement he would not have been entitled to.

      Dunlop, in reply.

    Samuel Diehl being no party to this suit, cannot be affected by it in any way. It is not the true construction of Christian Hege’s will, that the whole estate was a general fund for the payment of the legacies; on the contrary, it is the manifest intention of the testator that the legacies should be paid by Henry and Peter directly to the legatees, and not to the executors.
    Because of Peter being liable to pay to Hem-y a certain legacy, and Henry being liable to pay to Peter a certain legacy, both of which being charged upon their respective devises, the law does not make an extinguishment of the one to the amount of the others if it did, the rule must necessarily be general, and take effect immediately upon the death of the testator; and the law would be the' same although the one or the other may have assigned his legacy, or the fund out of which it was payable, may have been assigned. Or suppose the land of one or the other should be sold for the debts of the testator? The consideration of these supposed cases, suggests difficulties which are unanswerable, and lead to the conclusion that the law is not on this point as contended for by the defendants.
   The opinion of the court was delivered by

Huston, J.

This was a case stated, for the opinion of the common pleas, on. the will of Christian Hege, deceased, and the facts-which have occurred since his death.

Christian Hege, by his last will, after directing his debts to be paid, and making provision for his wife, devised as follows: “To my son Henry I give and bequeath two hundred acres of land, lying and situate on the north side of my mansion house and property, the beginning to be on my east line and run a westerly course, so as to be equally advantageous to both tracts, at present undivided. This division I wish Jacob Hege, and two discreet neighbours to be chosen by Jacob Hege and Henry Hege, to determine. This two hundred acres I value to Henry Hege at fifty dollars per acre, payable in instalments of three hundred dollars each for five years; after five years,"I will that he pay the sum of four hundred dollars yearly, until the whole sum be discharged. If Henry Hege refuses to comply with these terms, it is my will that my executors sell the same land to the highest bidder, at fair and public sale; if he complies, I will the above described land to him and his heirs and assigns forever.

“ I will and bequeath to my son, Peter liege, two hundred and thirty-six acres fifty-eight pérches of land and allowance, including my mansion-house, barn, buildings and appurtenances thereto be- f longing, This land lies at the south side of my property, whi'ch I < value to him at sixty dollars per acre, payable in instalments of five hundred dollars per year, for five years; then the instalments shall be six hundred dollars per year until the amount is paid. My will is that Jacob Hege act as guardian of Peter Hege until he is twenty-one, and grant the privilege of selling off fifty or sixty acres of the above land, to be sold and conveyed by my executors. Jacob Hege shall choose out the part to be sold where it will least injure the property. The above mentioned properly I will and devise to Peter Hege, his heirs and assigns forever, the amount being discharged.”

He then proceeded to order a sale of his personal property, and of a tract of land in M‘Conncl’s cave, &c. “Finally, I will that each of mychildren receive an equal share of my whole estate,” &c. and appointed three executors. The will was proved 20th May, 1815.

Henry Hege took possession of the part 'devised to him, and made four payments, and died 16th July, 1820, leaving three children, the plaintiffs in this cause. After his death, the land devised to him was sold by order of the orphans’ court for the payment of debts. The petition, order and deed, describe it particularly, as two hundred acres by metes and bounds, being the same devised to him by his father, and it was asked to be sold, and was sold expressly subject to the payment of the remaining sums, to which it was subjected by the will of his father. Samuel Diehl was the purchaser. The guardian and executors sold fifty acres of the part • devised to Peter. After Peter came of age, he determined not to lake the land devised to him; and his brothers and sisters, and the guardian of Henry’s children entered into an agreement on the 20th of December, 1822, in which, after reciting the devise to him, it was “mutually agreed between Peter and his brothers and sisters, legatees as aforesaid, that the said land so devised to Peter Hege, should be sold for the best price that could be obtained for the same, and the money arising from the sale should be equally divided among the children of the said Christian Hege, or their, representatives, so that the said Peter Hege, out of the whole real estate of said Christian Hege, shall receive an equal share with his brothers and sisters, and no more:” and then persons are appointed to sell, and the legatees covenant to release to the purchaser.

The land was sold, and the price was, for the purposes of this decision, admitted to be in the hands of those who sold, who are defendants.

On the 9th of March, 1824, the administrators of Henry settled their account, and there was a balance in their favour of one hundred and twenty-four dollars, paid in discharge of debts beyond the amount of the personal estate and of the lands sold, and were discharged by the orphans’ court, before this suit brought. Jacob Hegc, one of the defendants, is the surviving executor of Christian liege, deceased.

Samuel Diehl, who purchased the land devised to Henry, claimed to be entitled to Henry’s share, of the land devised to Peter, subject to the payment of six hundred dollars per year, which was to be divided among the legatees, of whom Henry was one, in equal por- ■ lions; and contended that all the interest in lands devised to Henry by the will of his father, was sold and purchased by him, Diehl, On inspecting the sale on the records of the orphans’ court, it is not so. There is no room for dispute; it is the two hundred acres devised to Henry, by the will of his father, which is sold. It has been contested whether Henry’s interest in the land devised to Peter, was land or personal estate, in the event of Peter refusing to keep it, but it is entirely unnecessary to decide that; for whether it was one or the other, it was not embraced in the application for sale, in the order of the court, nor in the deed. Henry was dead, and liis land sold, and deed made, in June 1821, Peter did not refuse to take till 1822. It would be strange if the orphans’ court had ordered a debt amounting to one thousand dollars, and falling due in successive years, in instalments of sixty dollars per year, to be sold at auction. It would be still more strange if a claim of this kind, charged on Peter’s land, should be transferred by a sale of Henry’s interest in another and different tract; and that without its being once alluded to in the evidence of that sale. Diehl represents Henry entirely, as to his interest in the two hundred acres devised to him, because he purchased and paid for that interest, but he docs not represent ilc?iry as to any thing else devised to him by that will, for the same reason, to wit: that he has not bought or paid for any interest in any part of what was devised to Henry, except the two hundred acres of land.

Another point was made, and much discussed, whether this suit could be maintained by the children of Henry, or must be brought by his administrators, there being debts yet unpaid; for the administrators of Henny, having paid debts of his beyond the assets which came to their hands, stand in the place of the creditors to whom they paid. The debts are the debts of the deceased, as much .as if they yet belonged to the original creditor.

In England, lands of a deceased are not charged with the debts, unless of a particular description; here, all lands left by a deceased are liable for every debt of a deceased; there, lands descend generally to one heir; here, they go to several, if several stand In the same relation to the intestate. There, lands go in one direction, and personal estate is distributed differently. Here, in almost every case, the lands and personal estate go- to the same persons, and in the same proportions: all the cases cited in this cause to shew what in England goes to the heir, and what to the executor, are inapplicable to this case. Where debts are unpaid in this country, they are levied equally from lands or goods, stated to be, and actually for this purpose being, in point of law, in the hands of the administrators. Where the lands themselves are to be recovered, the suit is by the heirs. Where debts are to be recovered, or personal property, or damages for breach of contract with the deceased, the administrator must bring the suit. I shall, on this subject, only refer to the case of Lee v. Wright, in 1 Rawle, 149, decided by this court in December term last, in which every thing contended for in this case was considered.

The decision of the court was right on both points, and judgment is affirmed.

Gibson, C. J.

As I concur on every point but that which regards the right of the plaintiffs to maintain the action in their own names, it is unnecessary to state more of the case than relates to the question. It is thus. A father devises a plantation to each of his sons, Henry and Peter, on terms of paying a specified price, to be distributed among all Ms children; and directs his executors to sell the plantation of Henry if he should refuse to accept on the terms prescribed, but gives no such direction with respect to the plantation of Peter. Henry accepts, pays part of the price, and, while Peter is a minor, dies, leaving the plaintiffs his children. The guardian of Peter enters on the plantation devised to him, and pays part of the price; but Peter himself on coming of age, agrees with his brothers, sisters, and the plaintiffs, by writing under seal, to have it sold, the said legatees,” as it is expressed, “ getting their share of the purchase money, in satisfaction of what they would have got from Peter, under the will.” The land is in fact so sold, the price received by the defendants, and the plaintiffs having sued for their share of it, are met by an objection that the action ought to be in the name of their father’s administrator.

It does not appear whether Peter, on coming of age, accepted or rejected the devise. That he was concluded by the election of his guardian will not be pretended. The doctrine is accurately stated in Brown v. Caldwell, (10 Serg. & Rawle, 114,) where it was held that the act of a guardian, in agreeing to what in this state is popularly called a consentable line, may be avoided by the ward immediately on his coming of age. Either, then, .he accepted, or he did not. If he accepted, the estate became absolute in him, and he became, personally indebted for the price of it to his father’s executors, £o whom alone’ recourse could be had by Henry, or, so far as might be ■necessary for the payment of his debts, by his administrator. If Peter became indebted to the executors, the money was demandable by them, for payment of his father’s debts, and distributable to the administrator of Henry, by them alone. But without an interest in the land, neither Henry nor his administrator could make pretence to an action for the proceeds of it. The utmost that the administrator could insist on, would be that no agreement of the plaintiffs with the other legatees should prevent him from recovering from the executors as much of Henry’s share of the money ■owing by Peter as would enable him to pay Hennfs debts; hut for all beyond, the defendants would he liable to the plaintifls by force of their agreement. If then the land vested in Peter, the administrator would not have a colour of title to demand any part of the price of it from the defendants.

But what if Henry., as he may have done, rejected the devise? The land, in that aspect of the case, fell hack into the estate of his father, who died intestate in respect of it, just as if it had not been devised; consequently it descended in the first place to Henry, and the other children as tenants in common, and afterwards as regards ■his estate in it, to the plaintifls. The interest of Henry while he lived, and of the plaintiffs after his death, was real estate; and it was their land which was sold by virtue of the agreement. ■ Neither 'Henry nor any one who represents him could claim an interest in the price of it under the will, for neither the land nor the price of it, passed by the will. We. have then the naked case of a debt ■owing, not to the intestate’s father, from whom the land descended, but to his children; and from agents who have received the price • of their land, in pursuance of an agreement to pay it over to them, notwithstanding which, it is said, the money can he reached only ■through the administrator of their father, because it may possibly be needed to pay his debts.

When the children of an intestate have sold that which descend•ed from him, I believe it has never beer, understood that either the administrator or the creditors can interpose a claim to the purchase money. The purchaser stands in the place of the children; and "the remedy of the creditors is by judgment against the administrator, and execution of the land as a fund into whose hands soever it -may have come; or where the administrator interferes by a sale of 'it under an order of the orphans’ court. In the case of a judicial sale, policy requires that a purchaser have a clear title; hut the principle has never before been applied to a private sale, which not being under the supervision of a superior power to make a proper application of the purchase money, would in every instance jeopard the security of lien creditors. In fact, a lien would be entirely worthless, if the land were discharged by the sale, and the lien shifted so -as to attach it to the purchase money. The present is the case of a ¡private sale, and as well might the widow,of Henry claim a share of the purchase money, although her interest is expressly charged on the land with a right to distrain. If then, by force of the intestate laws, the debts be charged on the land as a fund, it would be manifestly unjust to have them paid, in ease of the purchaser, out of the price coming to the children, who sold no more than their interest, and consequently only what might remain after the debts should be paid. On what ground then, could the administrator interpose? That he can have an action in a representative capacity, only for a debt which was owing to the decedent himself, is a common-place principle, for which it would look like affectation to cite an authority; and as the money, when recovered, would not be assets, I can perceive no good reason why he should maintain .the action.

Judgment affirmed.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    JOHN COBEAN, plaintiff in error against THOMAS THOMPSON.
    “Yeoman” is a sufficient designation of .the occupation of the owner of a slave, under the act of 1780.
    Error to Adams county.
    The only-question in this case is, whether “ Yeoman” is such a designation of the occupation of a master, as is required by the act ■of Assembly for the gradual abolition of slavery, to be returned to the clerk of the quarter sessions.

      'Stevens, for plaintiff in error
    Contends that in this country the name yeoman and farmer are synonymous terms, and if farmer is a sufficient designation under the act,' yeoman is. — Walker’s Dictionary, word “ Yeoman.”

      Miller, for defendant in error.
    The fifth section of the act of 1780, Purd. Dig. requires the occupation of the owner to be set ■out on the record, and yeoman, in this country, is not such a designation as will distinguish a' farmer from any other employment ■or occupation. Commonwealth v. Darker, 11 Serg. Rawle, 360. In ■this case it was proved that the master was a farmer, and It would ■'have been easy to have designated him as such. Wilson v. Belinda, . .3 Serg. Rawle, 401.
   By the Court.

The designation is sufficiently certain.

Judgment reversed.


author: Rogers, J.

text:
    JEREMIAH SNYDER against the COMMONWEALTH, for the use of CATHARINE STILLINGER.
    Iff ERROR..
    The neglect or refusal of a sheriff to commit a person convicted of fornication, until the sentence should be complied with, according to the decree of the court, makes him liable upon his official bond, to the mother of the child, for the amount which the person convicted was sentenced to pay to her for its maintenance.
    This was a writ of error to the common pleas of Franklin county, upon the return of which, the record exhibited an action of debt, brought by the defendant in error, Catharine Stillinger, against the plaintiff in error, Jeremiah Snyder, upon his official bond, given as sheriff of Franklin county — A declaration in debt was filed, and the following breach of the condition of the bond was assigned: “ That Simon Eckert, on the 18th April, 1820, in the court of quarter sessions of Franklin county, was convicted of fornication and bastardy, and sentenced to pay Catharine StiU linger, the mother of the illegitimate child, one dollar per week, until the child should arrive at the age of seven years, to be paid quarterly; to be bound, himself in one thousand dollars, and one good security in one thousand dollars, pay the costs, and stand committed till the sentence was complied with. Yet the said Jeremiah Snyder, then being high sheriff of said county, did not commit the said Simon, although he did not pay, or give security, as was commanded by the said court.”
    The facts being undisputed, the court below, (Thompson, president,) was of opinion that the plaintiff was entitled to recover; to which opinion exception was taken, and it was the only error assigned in this court, which was argued by Crawford, for the plaintiff in error.
    The act of-28th March, 1803, section 3, Purd Pig. 755, provides the form of the recognizance and bond of a sheriff and that bond binds the officer alone to the performance of duties in civil cases. Our act of assembly is assimilated ■ to the form of the oath of a sheriff in England; and although there are many cases of indictments against a sheriff there, for breaches of duty in criminal cases, yet no case can be found, where a civil suit was sustained against him for such breach of duty. 6 Bac. Ah. 146, tit. Sheriff. Hawk. Pleas of the Crown, Book 2, Sec. 22. 1 Hale’s Pleas of the Crown, 597.
    A court of quarter session s has all the power necessary to enforce its own sentence, and therefore, the court of common pleas can have no jurisdiction of this suit. A sheriff is liable upon his bond for fines collected on sentences of the criminal courts, but it was necessary to provide this remedy, by the acts of 1803, and 30th March, 1811. A recognizance taken in the court of quarter sessions, could not have been sued in the common pleas, if it had not been for the act of 1783, authorizing such suit.

      Chambers, for the defendant in error.
    The bond of the defendant below, contains a condition “ that he will execute all process to him directed, and faithfully perform all the duties and trusts appertaining to the office of the sheriff.” The written decree of the court might be termed its process, directed to the sheriff and which he was bound to execute, and upon his-neglect or refusal so to do, the condition of his bond was broken. The decree that Simon Eckert should pay to Catharine Stillinger, was a decree of the court, separate and distinct from the judgment. Duncan v. the Commonwealth, 4 Serg. Rawle, 449. But it was certainly a duty appertaining to the office of sheriff, to commit Eckert until the sentence was complied with, and this he neglected or refused to do; whereby his bond was forfeited.

      Crawford in reply.
    In the case of Duncan v. the Commonwealth, it is not decided, that that part of the sentence of the court which directs a certain sum of money to be paid to the mother, for the support of the child, is not part of the judgment: but on the contrary it is there said to be part'of the judgment, but a part which may be reversed without reversing the whole.
   The opinion of the court was delivered by

Rogers, J.

The defendant stipulates, that he will well and truly serve and execute all writs and process to him directed; and that he will well and faithfully execute and perform, all and every of the trusts and duties of the office of sheriff The plaintiff assigns for breach of the sheriff’s bond, the sentence of the court of quarter sessions, that Simon Eckert, convicted of being the father of an illegitimate child, should pay a sum of money to the plaintiff Catharine Stillinger, and give security for a performance of the order, and stand committed until the sentence should be complied with. And the plaintiff avers that the defendant, Jeremiah Snyder, being high sheriff of the county of Franklin, did not commit the said Simon, although he did not pay or give security, as was commanded.

This was an adjudication, which doubtless the court of quarter sessions was competent to make, arid which it is conceded, the sheriff might have been compelled to execute by attachment, or punished by indictment for not executing, and this on the ground, that it was a neglect or refusal, to perform a duty appertaining to his office. But these are not,- (as has been contended,) the only remedies, for it is manifest that an attachment or indictment, would, in many cases, leave the plaintiff without relief.

In. the order of the court, the money is awarded to the mother, for the. support of the child, and security is demanded for a compliance with the sentence, and an indemnification of the county, from the maintenance of the bastard. It therefore, although in -form an indictment, partakes of the nature of a civil action.

The neglect or refusal to carry into effect the judgment of the court, is a failure on the part of the sheriff, to execute a process, (in the nature of an execution,) of a court of competent jurisdiction, and is not a faithful performance of his duty, which brings the case within the words and spirit, of the condition of his bond. The court therefore believe that the breach has been well assigned, that the plaintiff has sustained injury from the conduct of the sheriff, and the judgment should be affirmed.

Judgment affirmed.


text:
    JOHN M'LANAHAN and MICHAEL M'LANAHAN, surviving Executors of JOHN M'LANAHAN, with notice to JACOB ICKUS, terre-tenant, against JOHN WYANT, Administrator of MARTHA M'LANAHAN.
    IN ERROR.
    Judicial sales of land, divest all liens, whether general or specific'.
    When a legacy is charged upon land, the sheriff’s vendee takes the land, discharged from the lien of the legacy. And a purchaser of land, sold by an administrator, by an order of the Orphans’ Court, takes the land discharged of the lien of a legacy.
    To recover a legacy charged upon land, the most approved form, is to bring the suit against the executors and the terre-tenants of the land generally by name.
    If the terre-tenants have not all been summoned, the plaintiff may pray a writ to summon the person alleged to be terre-tenant; and sby this- means he'may be made a party in the same manner as if he had been summoned or-returned by the sheriff, as terre-tenant of the land.
    When a testator, by his will, blends his real and personal estate, he thereby charges his land with the payment of legacies.
    The record of this case, returned on a writ of error to the court of common pleas of Franklin county, showed, that it Was an action brought by the defendant in error, who was plaintiff below, against the plaintiffs in error, defendants below, to recover a legacy due to-Martha MLanahan, under the will of her husband, John M‘Lanahan. The material part of the will is as follows;
    “ First, I give and' bequeath unto my beloved wife Martha, the i sum of six hundred pounds, specie, Pennsylvania currency — one hundred pounds thereof is to be paid unto her one year after my decease, by my executors, and the residue in gales of twenty-five pounds a year, yearly and every year, until the whole sum of six hundred pounds is fully paid unto her, her heirs or assigns; and also is to have a room to herself in the mansion house, and a comfortable living; and also to have one mare and two cows to herself, to be kept and fothered on the plantation for her use, with stable room for the same, during her widowhood. To my sons, John Thorhas, and Michael, I give and bequeath all my real and personal estate, with all the appurtenances thereto belonging, excepting such part as hereafter reserved for the remaining legatees, subjecting my land, nevertheless, to be liable to the several payments hereafter mentioned. To the legatees of said estate the land is to be equally divided in quantity and quality, having due regard to the real value of the same, to be divided by themselves, and in case of disagreement, to choose men for the same, allowing my eldest son, John, the mansion house, and that part which will be most suitable for the same, allowing him, likewise, two hundred pounds advantage in said division, on account of his mother’s maintenance. To my son Samuel, I give and bequeath the sum of one hundred pounds, which he has already received. To my son Josiah, I give and bequeath the sum of four hundred pounds, together with what he has already received, to be paid to him in manner following: fifty pounds three years after my decease, and then fifty pounds a year until the whole sum is fully paid. To my daughter Martha, I will and bequeath the sum of twenty shillings, and furthermore allow my beloved wife Martha, and my son John, to pay her one hundred pounds, or to her children, to which either they please. To my daughters, Jane, Rebecca, Lethis and Elizabeth, 1 will and bequeath the sum of two hundred and fifty pounds each, together with good bed and bed clothing to each, .deducting from Jean the value of what she has already received in stock and furniture, and then to be paid in the following manner, that is to say, to my daughter Rebecca, the sum of fifty pounds one year after my decease, and two years after my decease, fifty pounds unto my daughter Jane, and so on yearly and alternatively, until the aforesaid legacy is fully paid unto them, their heirs or assigns; and then is to pay fifty pounds to my daughter Lethis in one year following; and then fifty pounds the year after unto my daughter Elizabeth, and so on alternatively, fifty pounds yearly, until their aforesaid legacies is paid unto them, their heirs and assigns; and to my daughter Elenor, I will and bequeath the sum of four hundred pounds, out of which she is to get sufficient schooling, and the remainder to be paid in the following manner, fifty pounds to be paid to her again she will be eighteen years of age, and then fifty pounds yearly until the aforesaid sum is fully paid unto her, and for the purpose aforesaid. I nominate, ordain and appoint my three sons, John, Thomas and Michael, to be my lawful executors of'this my last will and testament, to pay and recover all just debts, and discharge the legacies within mentioned.”
    On the 16th of December, 1824, the following declaration was filed.
    “John M'Lanahan and Michael M'Lanahan, both of the county aforesaid, yeomen, surviving executors of the last will of John M'Lanahan, of said county, deceased, were attached to answer John Wyant, administrator of the goods and chattels and of Martha M'Lanahan deceased, of a plea of tresspass on the case, &c. and whereupon the said John Wyant, by George Chambers and Joseph Chambers, his attornics complains, That whereas John M'Lanahan in his life time, to wit, the seventh day of July, seventeen hundred and niqety-seven, at the county aforesaid, by his last will and testament in writing, duly executed, did, among other things, bequeath unto his wife, Martha M'Lanahan, the sum of six hundred pounds; to be paid as follows to wit: one hundred pounds to be paid the said Martha, one year after the decease of the said testator, and the remainder thereof in gales of twenty-five pounds per year, yearly, and every year thereafter, until the whole sum of six hundred pounds was fully paid to the said Martha, her heirs and assigns. And that the said testator, by his same will, did further devise and bequeath to his said wife Martha, a room in his mansion house and a comfortable living, and also one mare and two cows to be kept on the plantation of the said testator during the widowhood of the said Martha: and the said testator, John M'Lariahan, did, by his same will, devise to his three sons, John', Thomas and Michael, all his real and personal estate, excepting such portion of his personal estate as was by his will otherwise disposed of; and by his last will and testament, did therein appoint his three sons, John, Thomas and Michael, executors, to pay and receive all just debts, and discharge the legacies mentioned in said will, and the said John Wyant in fact saith, That after the making of said will, to wit, the first day of March, seventeen hundred and ninety-eight, the said John M'Lanahan, deceased, and the aforesaid sons, John, Thomas and Michael M'Lanahan, did duly prove the said will on the day and year last aforesaid, and took upon themselves the burden of the execution thereof, and did then and there possess themselves of all the real and personal estate whereof the said testator died seized and possessed; and the said John Wyant further in fact saith, that the estate of the said testator, to a great amount beyond all debts, and funeral expenses, and legacies mentioned in said will, came into the hands and possession of the said executors, to wit,' at the county aforesaid; and the said John Wyant doth further, in fact, say, that the said,executors, John, Thomas and Michael did, as devisees of the real estate of the said testator, immediately after the decease .of the said testator, enter on the lands which were of the said deceased,' in the said county of Franklin, and possess and enjoy the same, as devised to them in said last will and testament: and that afterwards, to wit, the third day of May, eighteen hundred and seventeen, Thomas M'Lanahan, one of the said executors and devisees, died, by reason whereof the said John and Michael M'Lanahan became the surviving executors of said testator, and of the said lands and tenements so devised, and of a value more than sufficient to pay all debts and legacies, the said John and Michael M'Lanahan, devisees as aforesaid, were at the impretation of this writ, possessed, together with Jacob Ickus, named in the same writ, as terre-tenant, and which said Ickus doth hold and enjoy the .possession of said premises, as the tenant of the heirs and representatives of the said Thomas M'Lanahan, deceased. By reason whereof the said executors and devisees became liable to pay to the said Martha, in her life time, the said sum of six hundred pounds: nevertheless the said John, Thomas and Michael, the said sum of six hundred pounds, or any part thereof, to the said Martha, in her life time, or to the said John Wyant, after the death of said Martha, (who died, to wit, the fifteenth day of June, in the year one thousand eight hundred and nineteen, and to which said John Wyant, after the death of the said Martha, to wit, the twentieth day of September, eighteen hundred and twenty-one, administrator of the goods and chattels, rights and credits which were of the said Martha, was committed by the register of the said county of Franklin, in due form of law,) yet hath not paid, although to do the same, the said John, Thomas and Michael, executors and devisees as aforesaid, by the said Martha in her life time, to wit, the first day of January, one thousand eight hundred and seventeen, and at other days and times before and after said day, and the said John and Michael, surviving executors and devisees since the death of the said Thomas by the said John Wyant since the death of the said Martha, were requested; but the said legacy to the said Martha in her life time, and to the said John Wyant, since the death of the said Martha the said John M'Lanahan, and Michael M'Lanahan to pay have refused, and the same to pay to the said John Wyant, the said John and Michael’ M'Lanahan, surviving exécutors and devisees as aforesaid, still do refuse, to the damage of the said John Wyant one thousand pounds, &c. &c.”
    28th March, 1826, defendants, John and Michael, pleaded in abatement as follows:
    “And now the said John and Michael by James Dunlop, their attorney, come and defend the force and injury when, &c. and say, that the said plaintiffs ought not to have and maintain his aforesaid action thereof against the said John and Michael, because they are not chargeable as executors of the said John M‘Lanahan, deceased, with the payment of the said legacy of two hundred and fifty pounds, but that the lands and tenements of the said John M‘Lanahan, deceased were, by the last will and testament of said John, subjected' to the payment of the said two hundred and fifty pounds, and so charged and encumbered were by the said last will and testament devised to the said John and Michael, and Thomas, another son of the said John,“deceased.
    “And the said defendants further say, that the said Thomas so being jointly seized with the said John and Michael, afterwards, to wit, January term, one thousand eight hundred and nine, out of the court of common pleas in and for said county of Franklin, sued and prosecuted a writ of partition against the said John and Michael, and that after the return thereof, viz, on the fifth day of March, one thousand eight hundred and eleven, the said Thomas, John and Michael, parties thereto by consent, submitted the matters thereof to certain referees, mutually chosen, who divided the said lands so devised to and amongst the said John, Michael and Thomas, and made report to the said court to January term, one thousand eight hundred and eleven, agreeably to the said submission, which said report was then confirmed by the said court, and fully acquiesced in by the said parties continually thereafter.
    “ And the said John and Michael further say that afterwards, and in pursuance thereof, the said John, Michael and Thomas took possession of their several purparts so laid off and divided, and became severally seized of their separate and distinct purparts, according to the said report and judgment of said court, each one in his own demesne as of fee and being so seized of their distinct and separíe purparts; the said Thomas afterwards, viz, on the day of April, one thousand eight hundred and eleven, died, leaving three children, viz, Alexander, Amelia and Catharine, who, at the time of the impetration of the writ in this cause, were and still are, in full life and residing within the jurisdiction of this court.
    “ And the said John and Michael further say, that John Flanagan, Esq. who was duly appointed administrator of all and singular, the goods and chattels, rights and credits which were of the said Thomas, by the register of the said county of Franklin, afterwards, to wit, on the twenty-first day of May, one thousand eight hundred and eighteen, sold and conveyed of the said purpart of said Thomas, in pursuance of a decree of the orphans5 court of said county, nine acres and three perches to John M‘ Gee; twenty-one acres and eighty-seven perches, to Richard Hayden-, thirty-five acres and ninety-eight perches to Doctor John Oelig; fourteen acres one hundred and thirty-two perches to James Gettys, and that two hundred acres of the said purpart of the said Thomas, was purchased at sheriff’s sale, from Archibald Flemming, Esq. high sheriff of said county, by Samuel Hughes, Esq. which said two hundred acres were sold by the said sheriff, under a fieri facias and venditioni ex-ponas, issued out of said court of common pleas of said county, of which said two hundred acres the said Samuel is now seized in his demesne as of fee, all which several tracts or parcels thus sold and conveyed, were parts of the said purpart of which the said Thomas so died seized. And the said John and Michael further say, that the said John Oelig, after the said sale so made to him by the said administrator, sold and conveyed, by deed, the said thirty-five acres to James Bums, and Isaac Moorehead, as an insolvent debtor, under the laws of this commonwealth, in trust, for the use of his creditors; and that the said John M‘Gee, after the 21st day of March, 1818, died, leaving Barnard M‘Gee, his brother, his sole heir at law, all which said several persons, viz: Barnard M‘Gee, Richard Hayden, James Burns, Isaac Moorehead, Martin Funk, Samuel Hughes, and James Gettys, at the impetration of the said writ issued in this cause, were and still are tenants of the said several purparts, according to their said respective titles, of which the said Thomas M‘L(inahan died seized as aforesaid, and that the said Catharine, Alexander and Amelia, since the death of their father, the said 'Thomas, continually have been, and still are, in full life and seized in their demesnes as of fee in the remaining part of said purpart, of which the said Thomas died seized, and that no writ hath issued against either of the said tenants or children, and heirs of said Thomas, nor against the said James Burns, Isaac Moorehead, Richard Hayden, Martin Funk, Samuel Hughes, and James Gettys, or either •of them, and this they, the said John and Michael, are ready to verify, and, therefore, inasmuch as no writ hath issued out of the common pleas of said county, against them, the said Catharine, Alexander and Amelia, and against James Burns, Isaac Moorehead, Barnard M‘ Gee, Richard Hayden, Martin Funk and James Gettys, to the said sheriff of the county directed, they, the said John and Michael, pray judgment, if they ought to be compelled to answer the said writ returned.”
    The plaintiff demurred to this plea, and after argument the court ■of common pleas made the following order.

      “ The court do adjudge that the defendants ought not now to be compelled to answer, and order that notice of this action be given to the several terre-tenants named by defendants (in their plea of abatement) returnable at next term, and that the person so named after service be added as terre-tenants. And the defendants now of record agree not to take any advantage of the mode of bringing in the other terre-tenants. The death of Isaac Moorehead and Richard Hayden, terre-tenants (in plea) suggested; exit notice to terre-tenants. 28th July, 1826, served personally upon James Burns, Martin Funk, Samuel Hughes, Catharine MLanahan, Amelia MLanahan, and Alexander MiLanahan, nihil as to Bernard M‘Gee and James Ge'ttys. 2d September, 1826, rule on terre tenants to plead in six weeks'or judgment. July 24th, 1827, John M‘Lanahan, and Michael M‘Lanahan plead payment with leave, &c. and setoff 2d August, 1827; exit notice to Henry Funk, served by copy. Washington appears for Samuel Hughes, Jacob Ickus, Barnard Ml Gee and Martin Funk, 17th September, 1827, rule on. Henry Funk, Samuel Hughes, Jacob Ickus and Martin Funk, to plead in thirty days or judgment'. 18th September, 1827, copy served. Washington appears for James Burns, James Geitys and Hemy Funk, and for all the terre-tenants for whom he has appeared, pleads payment with leave to give the special matter in evidence. Plaintiff replies non solvit, &c. issue, &c.
    The will of John MLanahan, Sen. having been read, the defendants offered in evidence the following receipt; it having been first admitted that John Smith was married to Jane M‘Lanahan, one of the heirs of Martha MiLanahan, and that the receipt was dated after the death of Martha M‘Lanahan.

    “ Received, October the 11th, A. D. 1819, of John MLanahan, executor of John M‘Lanahan, Sen. deceased, one hundred dollars, it being in part coming to John and Garrett Smith, heirs of Martha MLanahan, deceased, one hundred dollars, received per me,
    “ John- Smith.”

    Which evidence was objected to, and overruled by the court, and exception taken by the defendants.
    On behalf of the terre-tenants it was proved Itha t John Flanagan, administrator of Thomas M‘Lanchan, who was one of the executors of John M'Lanahan, deceased, in March, 1818, petitioned the orphans’ court for an order to sell the real estate of Thomas MLanahan, his intestate, for the payment of debts, to wit, two hundred and ninety acres of land, being the same estate which he took under his father’s will; upon which petition the court granted an order for the sale of ninety-eight acres, part thereof, which in May, 1818, in pursuance of that authority, the administrator sold in parcels, to wit: — nine acres to Bernard M‘Gee, for six hundred and thirteen dollars twenty-seven cents; twenty-one acres and eighty-seven perches to Richard Hayden, for fifteen hundred and eight dollars twenty-six cents; thirty-five acres and ninety-eight perches to John Oelig, for twenty-four hundred and ninety-two dollars eighty-seven cents; fourteen acres and one hundred and thirty-seven perches to Marlin Funk, for eleven hundred and eighty-nine dollars fifty cents; thirteen acres and one hundred and thirly-two perches to James Gettys, for sixteen hundred and twenty-nine dollars ninety-six cents; amounting, in the whole, to six thousand eight hundred and thirty-one dollars eighty-seven cents, which sales were confirmed by the court.
    Subsequently, to wit, in 1821, two judgments were obtained against Thomas M'Lanahan’s estate, upon simple contract debts, in favour of John II. Hughes and Samuel Hughes, Esq. and one judgment in favour of Riddle for the use of Calhoun, upon which a fi.fa. issued, the balance of Thomas M'Lanahan’'s estate, to wit, the two hundred acres, was levied, and it was afterwards sold by the sheriff, on the 12th April, 1824, to John H. Hughes, for his father, Samuel Hughes, Esq. for three thousand five hundred dollars, to whom the sheriff made a deed upon his executing receipts for so much of his judgments.
    It was admitted that Samuel Hughes and Jacob Ickus represent the same interest.
    It was also in evidence that John M'Lanahan, Sen. at the time of his death was possessed of a large stock of cattle, and considerable other personal estate.
    1. The counsel of the plaintiff requests the court to instruct the jury, That the sales of the land of Thomas M'Lanahan, one of the devisees under the decree' of the orphans’ court; does not discharge the said land from the lien of the legacy, devised to Martha, the widow,,
    2. That the sale made by Archibald Flemming, Esq. as sheriff, to John II. Hughes, for Samuel, and the receipt by Samuel Hughes of the whole of the purchase money on his judgments, given in evidence to the jury, was a sale, under the circumstances of the case, subject to the lien of the legacy of Martha, and that the lien of the same is not discharged by said sale.
    3. That if said lands, sold by the decree of orphans’ court, or at sheriff sale aforesaid, if discharged at all from said lien, cannot in law be discharged, under the circumstances in evidence, from more than one third of the same, being Thomas M'Lanahan’s proportion of the same.
    The counsel of Samuel Hughes, Bernard, M'Gee, James Geliys, James Burns, Martin Funk and Henry Funk, respectfully requests the court to instruct the jury:
    1. That the .legacy given to Martha M‘Lanahan, by the will of John M'Lanahan, deceased, is not charged by the will on the lands of the said John M'Lanahan, and that plaintiffs cannot recover in this action against the terre-tenants.
    2. That the sale of the lands of Thomas M'Lanahan to Samuel Hughes by the sheriff, by virtue of an execution against the administrator of Thomas M'Lanahan, divested the lien of the legacy, and that the plaintiff, therefore, is not entitled to recover from the said Samuel Hughes in this cause.
    3. That the sales made by John Flanagan, administrator of Thomas MLanahan, of the lands of said Thomas, under a decree of the orphans’ court, divested the lien of the legacy, and that the plaintiff is not entitled to recover in this cause against Bernard jWGee, James Gettys, James Burns, Martin Funk and Henry Funk.

    4. If the jury believe that John MLanahan, deceased, left sufficient personal estate for the payment of his debts and legacies, and' that his executors are fully able to pay the legacy claimed in this-suit, their verdict ought then to be in favour of the terre-tenanls.
    5. That the plaintiff cannot recover in this form of aciion.
    The court delivered the following charge to the jury, on the points submitted.
    In answer to the first point on part of the tenants in possession, the court say, The testator John MLanahan, devised his whole estate both real and personal to his three sons, John, Thomas and Michael; he appointed them his executors, and ordered them to discharge the legacies in his will. If they paid them at all, it must be out of the fund bestowed on them in the will. There are no words in the will which in express terms make the legacy to his wife a lien on the land devised, but it was to be paid out of the fund placed in their hands, and by necessary implication become a charge on the land in the hands of the devisees and executors, as a part of that fund. There is no evidence before us to shew precisely what the amount of the personal estate of the deceased was. The executors have paid out, on this legacy, one hundred and fifty pounds, and on the other legacies in the will eleven hundred pounds. It is submitted to you to determine whether these two sums, amounting to twelve hundred and fifty pounds, amount to as much as the personal estate of the deceased'amounted to at'his death. It is even admitted that these funds, arising from the personal estate, ought first to have been applied to the legacy now in suit, yet I am of the opinion that the application of those funds to the payment of the other legacies, which are expressly charged on .the land, could not avail the terre-tenants, who claim under the sale made by virtue of the decree of the orphans’ court. They come in under Thomas MiLanahan. The payment of the legacies which have been paid, went in discharge of the lien on his land, and they must take it subject to this devise as it stood at the time of the sale. If a suit had been brought by the present plaintiff for the legacy at the time of the sale made by the administrator of Thomas MiLanahan, most clearly his representatives could not have set up as a defence that the funds which ought to have been applied to the payment of this legacy which is charged on this land, had been misapplied by appropriating them to the payment of other legacies in the same will, which were also a charge upon the land. If he cannot set up such a defence, the purchasers at the sale under the decree of the orphans’ court cannot Set it up. They come in under him, and must hold the estate under the will as he held it. There is no proof here that any part of the personal assets of the deceased were wasted by the executors. The court are, therefore, not called upon to say what the effect of such devastavit would be: I am therefore of opinion, that the legacy given to Martha M'Lanahan by the will of John MeLanahan, deceased, is so charged on the lands devised to his three sons, that the plaintiff can recover against the terre-tenants who have been brought on the record in this suit, and who defend their interests in it
    First point on part of plaintiff, and third on part of terre-tenants.
    That the sale made by John Flanagan, administrator of Thomas MlLanahan, deceased, by virtue of the decree of the orphans’ court for that purpose, did not divest the lien of the legacy bequeathed to Martha M‘Lanahan, in her husband’s last will, and made a charge on said land by his will, and that the plaintiff in this case may recover a judgment which may be levied on the said lands, and in possession of the several tenants in possession who have been brought on the record, and who have defended their interests in this suit.
    Second point on part of plaintiff and second on part of terretenants.
    It appears in evidence that a judgment was obtained at the suit of James Riddle, for the use of James and Andrew Colhoun, against John Flanagan, administrator of Thomas M‘Ijanahan, deceased, on which a Ji. fa. was issued, and two hundred acres of land levied on, which were afterwards sold on an alias venditioni exponas, returnable to April term, 1824, to John JrL Hughes, for three thousand five hundred dollars, who, it is admitted, purchased for his father, Samuel Hughes. At that time a suit was pending for this legacy, brought to August term, 1822, which was non-suited or abated at August term, 1824, that the money arising from the sale was all settled by the sheriff with Samuel Hughes on two judgments; one at the suit of Foreman, Lane Sf Co. against the administrator of Thomas MlLanahan, deceased, and marked on the record for the use of Holker Hughes; the other at the suit of Samuel Hughes, against the same defendant, by the sheriff taking Samuel Hughes' receipt for eleven , hundred and eighty-four dollars and fourteen cents on the first, and for two thousand nine hundred and eighty-four dollars and forty-nine cents on the second. Taking into view all these circumstances, and all the other circumstances in the cause, if there be any others which have any bearing on this point, if the jury shonld even be of opinion that Samuel Hughes was the owner of the two judgments on which the money arising from the sale was paid, yet the court is of opinion that the sale made by Archibald Flemming, sheriff) on the process given in evidence to John H. Haghes, and the receipts by. Samuel Hughes, of the whole of the purchase money, and the judgment given in evidence was not a sale subject to the lien of the' legacy of Martha M‘Lanahan, and, that therefore, the lien of the said legacy was discharged by the said sale so far as related to the land so sold, unless it was expressly understood and agreed at the time of the sale, that Hughes purchased it subject to the lien of the said legacy.' The circumstance of there being a suit brought for the legacy, or other notice of the existence of it to Hughes, at the time of the sale, would not subject the land in his hands to the payment of it.
    As soon as the sheriff’s deed was acknowledged, the title to the land vested in Hughes, discharged of the incumbrance of this legacy,, and the sheriff becomes liable to pay to the plaintiff the proportion of the legacy which the land sold bears to the whole amount of the land devised by John M‘Lanahan, deceased, to his three sons,, charged with it. The only evidence before us of fhe value of the. land devised, is that which is furnished by the .sale of that part, which by the division made among the three sons of the testator, fell to the share of Thomas M'Lanahan, deceased- The amount of the sales made by the administrator is six thousand eight hundred and thirty-one dollars and eighty-seven cents, the amount of the sale made by the sheriff, is three thousand five hundred dollars,, in all ten thousand three hundred and thirty-one dollars and eighty-seven cents; the lands were to be equally divided among them-We may suppose, therefore, that the other two shares were equal in value to the share of Thomas. The whole land charged with the legacy would be worth about thirty-one thousand dollars. The amount of the sheriff’s sale being three thousand five hundred dollars, the proportion that this sum bears to the whole amount of the value of the land charged, if that value is to be ascertained by supposing the other two shares to be worth the same sum that was raised by the sale of Thomas’ and no more, is as 7 is to 62, so that if the jury should be of opinion that the value of the land should be estimated according to this rate, 7-62, or about 1-9 of the legacy, would be the proportion which ought, to have been paid by the sheriff out of the proceeds of the sales made by him of the land to Samuel Hughes. That proportion of the legacy which was chargeable in equity on the land sold by the sheriff, is to be credited in this suit. The plaintiff is to look to the sheriff for that part, and for the residue thereof, the remaining lands, devised in the hands; ■of the executors of John MLanahan and Michael MLanahan, and the several tenants in possession, who are made parties to this cause, are responsible in this suit
    Third point on part of plaintiff -
    The court have, already, in substance, answered this point. The lands are not, in the opinion of the court, discharged of the lien of the legacy, by the sale made under the order of the orphans’ court. The lands in the hands of the executors of John M‘Lanahan, deceased, and of the tenants in possession made parties to this suit, are discharged from no more of said legacy than the proportion thereof which ought, as the court has said, to have been paid out of the sheriff’s sale.
    Fifth point on part of terre-tenants.
    That the action can be maintained in its present form, and the plaintiff may recover in it.
    Fourth point on part of terre-tenants.
    If John and Michael MLanahan, the surviving executors, received sufficient of the personal estate of the testator, to pay the debts and funeral expenses of the testator, the other legacies, and •the legacy in question in full, that would make them liable to the present plaintiff to pay the whole amount of Martha’s legacy. But that circumstance would not, however well able the executors may be to pay the legacy, exonerate the land devised to Thomas MLanahan in the hands of the tenants in possession made parties to this suit, until the legacy was actually paid, nor would it be a sufficient reason for rendering a verdict in their favour in this suit.
    The jury returned the following verdict “That they find for the •defendants Samuel Hughes and Jacob Ickus: and that they find for the plaintiff two thousand and forty-seven dollars and eight cents, against the other defendants:” upon which, judgment de terris, was entered.
    In this court the following errors were assigned, on behalf of John and Michael MLanahan.

    1st. The court erred in saying that the lands bought by Samuel Hughes, at sheriff’s sale wrere discharged of the legacy.
    2d. In saying that if they were discharged, that only one ninth of the legacy was discharged.
    8d. In saying that the action could be supported under the pleadings.
    4th. In rejecting the evidence mentioned in the bill of exceptions.
    And the following errors were assigned on behalf of all the terretenants against whom judgment was rendered.
    1st. The court erred in saying that the legacy given to Martha MLanahan, by the will of John MLanahan, deceased, was charged on the lands devised to his sons by said will.

      2d. In saying that the sale made by the administrator of Diurnas MLanaham,, in pursuance of the decree of the orphans’ court, did not discharge the lands so sold from the lien of the legacy.
    3d. In saying that one ninth part of the legacy would' be the proportion which ought to have been paid by the sheriff out of the proceeds of the sale made by him of the lands to Samuel Hughes.

    4th. In saying that the receipt by the executors of John M‘Lanahan of sufficient personal estate, for the payment of all debts, funeral expenses and legacies in full, together- with their present ability to pay the legacy, would not be a sufficient reason for rendering a verdict in favour of the terre-tenants.
    5th. In saying that the -action could be maintainéd in • its present form.

      Dunlop, for the plaintiffs in error.
    There are three distinct interests represented in this cause. ' First, the plaintiff who is interested to preserve the security or fund out of which the legacy to his intestate was payable, and therefore, to maintain the position, that neither the lands sold by the sheriff nor those sold by the order of the orphans’ court, arc thereby discharged from the lien of fhe legacy. Second, the defendants, who in this particular agree with the plaintiff for the purpose of producing this result, that all the lands which descended from John M^Lanahan, Sen. charged with the payment of legacies, in whose hands soever they’may be, shall justly contribute their proportion to the payment of those legacies, and that thereby the defendants, the surviving executors, shall not be called upon to pay more than their part in proportion to the lands which they hold. And third, the terre-tenants, whose interest it is, to hold the lands they purchased from the sheriff and administrator, discharged of all lien or incumbrance of those legacies, and to turn those legatees to the sheriff for their money out of the proceeds of sale.
    Upon the first error assigned he proceeded to say, that he would first endeavour to satisfy the court that the point had not arisen directly, nor had it been decided by this court, in any case which had been reported in our books; that although an intimation had been given in the case of Barnit v. Wasliebaugh, 16 Serg. fy Rawle, 410, yet, that was but the opinion of the judge who delivered the opinion of the court, for the point did not arise in that case: and that the authority of the case of Nichols v. Postleihwaite, 2 Dali. 131-. was not entitled to consideration, in consequence of the imperfect and erroneous report of the facts. And secondly, that there was neither legal principle, nor public policy, upon which such a decision could be predicated: that it would violate the spirit and letter of the act of assembly, which authorizes the sale of lands for the payment of debts, and provides, that “ the purchaser shall hold the land as fully and amply as the debtor had and held the same,”to sanction, by judicial decision, the doctrine that the sheriff could sell and convey a greater estate than the debtor had, or could himself sell and convey, and was about to cite authority on this point, when the chief justice said, that this point had been discussed at their last sitting in Sunbury, and the court considered the doctrine as settled against the plaintiff in error; and that, in all cases of judicial sales, the estate sold, passes to the purchaser discharged of liens.
    Second error. If the legatees are obliged to come in and claim their legacies out of the proceeds of the sale by the sheriff or administrator, they must claim the whole amount; they come in as judgments, as is said by Duncan, J. in the case of Game v. Wiley, 4 Serg. Sf Ramie, 522. There was, therefore, error in the opinion of the court, that only one ninth of the legacy was discharged.
    Third error. The terre-tenants should have been made defendants, by being included in the writ, and so summoned by the sheriff. This is an action on the case for a legacy, and the terre-tenants are brought in' after suit brought by a notice, and judgment rendered against them, although there is no claim made against them in the declaration.of the plaintiff
    Fourth error. In a court of law, a payment to the heir of Martha MiLanahan, would not be a good one; but this is an equitable action, and -the court ought to have received the evidence mentioned in the bill of exceptions as an equitable payment. Smith represented the heir of Martha M‘Lanahan, the plaintiff’s intestate, and a part of the legacy to her, under the will of her husband, was paid to him; the legacy was due, there were no debts due by the estate of the intestate, and he was therefore entitled to it, in right of his wife, and received it, and the money could not therefore be recovered back from .him, the evidence ought therefore to have been received to protect John MiLanahan from a loss of the amount. Share v. Anderson, 7 Serg. Sf Ramie, 62.

      Washington, for the terre-tenants.
    1st. Martha MiLanahan occupies a different relation to the testator from the other legatees, whose legacies are plainly charged upon the land: the legacy to her is not included among those, which by the will are expressly charged upon the-land. The inference, therefore, from this distinction made by the testator, is manifest that his intention was, the one should be a charge upon the land devised, but that to Martha should not: and the intention of a testator to charge his lands with the payment of legacies must be clear and manifest. Luptcm v. Lupton, 2 Johns. Chan. Rep. 614. Keeling, v. Brown, 5 Ves. Jr. 359.

      4th. Although lands are expressly charged with the payment of legacies, yet if there is sufficient personal estate to pay them, and the debts, they must be paid out of that fund. Commonwealth for use of Beelman, v. Shelby, 13 Serg. Rawle, 348.

      Chambers, for the defendants in error,
    In consequence of the intimation from the court, declined arguing the point, whether the sheriff’s sale discharged the lien of the legacy, but contended, that the sale by the administrator did not.
    An administrator derives his authority to sell land of his intestate from the act of assembly, which also points out all the duties, which, in the exercise of this authority,-he is bound to perform: that act does not require one who is entitled to a legacy payable out of the estate of John M‘Lanahan, to claim that legacy out of the proceeds of the sale of the real estate of Thomas MiLanahan; nor is the administrator authorized to pay such a claim, although the act does expressly authorize him to pay judgments. The estate is the interest which a tenant hath in lands, &c. It was the estate of Thomas RTLanahan which was sold by his administrator, and the proceeds of that sale was not the fund out of which this legacy was payable; nor is there any form of action known to the law by which the payment of it could have been enforced against the administrator of Thomas M Lanahan. Cause v. Wiley, 4 Sergt. ¿C Rawle, 522. The circumstance of there being no mode by which it could be ascertained what proportion of the legacy the administrator was bound to pay, ought to be a sufficient answer to the proposition to adopt this novel rule.
    This is a proceeding in the nature of a bill in equity, and convenient for the purpose of attaining the object; no harm can result to terre-tenants from this form of action, and it is the one pointed out in the case of Brown v. Purer, 4 Serg. Rawle, 213. But all objections on this point are removed by the agreement of the terre-tenants to appear and make defence.
    The evidence rejected by the court, must have been offered either in the character of a set-off, or of an equitable defence.
    It could not have been admitted as a set off because there was no mutuality of debt between the parties; nor as an equitable defence, because it could not be ascertained to what amount such evidence would be admissable: if there were no debts of Martha M‘Lanahan, there were costs of administration, which is sufficient to shew the illegality of a payment to an heir, instead of a personal representative: John Smith’s distributive share of Martha MLanahan’s estate could not be ascertained in this suit, and therefore the inconvenience and uncertainty of admitting the evidence nt all, under circumstances where there did not exist an absolute neccsdly for it.

      The same reason which rejects the evidence of the set-off of a debt, due by an intestate against a claim by the' administrator, rejects this evidence, because at the time the, evidence is offered, there is no means of knowing what portion of such set-off is payable. Wolfersberger v. Bucher, 10 Serg. 8$ Razóle, 10.
    Suppose that advancements had been made by Martha MlLanahan, in her life time, to her heirs, is the court to stop and try to what extent those advancements had been made, in order to know how far the set-off was admissable? If this is the law, it would apply to arcase where the trustee of an insolvent debtor brings suit to recover a debt due to the insolvent, the debtor might set-off a claim due to him by a creditor of the insolvent, who would be entitled to a distributive share of the insolvents property, when it would be divided by the trustee.
    The legacy is a charge upon the land. Hassencher v. Tucker, 2 Bin. 525. Witman v. Morton, 6 Bin. 395. Although the legacies to his daughters are expressly charged upon the land devised, this does not effect the legal implication that the legacy to his wife, Martha, was also a charge. 1 Rop. on Leg. 448-452: it cannot be presumed that it was the intention of' the testator to make the legacy to his wife, who was the primary object of his bounty, less securejthan those to his other legatees.
    If both funds, real and personal estate, are charged with the payment of this legacy, the legatee has a right to pursue either or both until he gets his money. The personal estate of an intestate must first be applied to the payment of his debts; but a creditor is never restrained in his pursuit of either real or personal estate, whichever he may elect, until he collects his debt.

      Washington, in reply.
    The cases in 2 Bin. 525, and 6 Bin. 395, cited for the defendant in error, strengthen the position which is taken for the terretenants, for in either of the cases the intention of the testator, to charge his land with the legacies is manifest, which is not the case with John MlLanahan.

      Dunlop, in reply for plaintiffs in error.
    If there was error in not making the terre-tenants parties to the action by including them in the body of the writ, their appearance and defence does not cure the error.
    It does not appear, in this case, thát there were any advancc- ' ments by Martha MLanahan to her heirs, or that there were any debts, these difficulties are therefore imaginary.
   The opinion of the court was delivered by

Rogers, J.

We think it clear that the legacy to the plaintiff's intestate, is a lien on the real estate devised to the sons, it is a principle of English jurisprudence, as well as the unquestioned law of Pennsylvania, that when the real estate is blended by the testator with the personal, the land is charged with the payment of legacies. And the reason assigned is, that the whole will may take effect, and all the legacies be paid, which is justly supposed to be the intention of the testator, when both funds are put into one. 1 Ves. Jr. 444, Kennedy v. Cousmaher. 2 Bin. 531, Hassenclever v. Tucker. 6 Bin. 396, Witman v. Norton. 2 Dall. 131, Nichols v. Postlethwaite, 2 Dall. 131. And this effectis produced by implication, and is not effected by an express charge in favour of other legatees, as has been ruled in Webb v. Webb, 1 Roper on Legacies 433, a case equally strong with the present, where, in answer to a similar objection the court said, “ The testator might use express words of charge in one part of his will, and create a charge by implication in another.” The testator, in the phraseology used, and in charging the lands devised, with the payment of the legacies hereafter mentioned, does not so unequivocally express a contrary intention, as to curtail, or in any way interfere with the implication arising from blending the real and personal fund into one.

When a legacy is charged on land, the sheriff’s vendee takes the land discharged from the lien of a legacy. And this is the principle of the case of Barnet v. Washebaugh, 16 Serg, & Rawle, 410, decided after great deliberation, and since repeatedly recognized. And a purchaser of land, sold by order of the orphans’ court, is in the same situation as a sheriff’s vendee. The 21st section of the act of the 19th April, 1794, enacts, that no lands, tenements and hereditaments, sold by order of the orphans’ court, shall be liable in the hands of the purchaser, for the debts of the intestate. The lands went into the possession of the devisee, charged with the payment of the legacies, and was therefore a debt of the intestate as tenant of the land.

Judicial sales, as appears from the whole current of the recent decisions, divests all liens whether general or specific, and the exceptions to the rule, are grounded on special and peculiar circumstances. The land sells better from passing into the possession of the purchaser unincumbered, and it is of no consequence to a creditor who sells it, provided it be sold fairly, and the proceeds faithfully applied. It is the duty of the court to see that no loss results from improper practices, or the want of adequate security, in a sale under their order, and particularly subject to their controuh The proceeds of the sale must, in the first instance, be applied to the payment of liens, which existed in the life time of the intestate, according to their respective priority. By the sale, the money is substituted for the land, to be distributed by the administrator among the creditors, in the order of the respective claims against the real fund, which by process, of law has been converted into personalty for that purpose. A uniform rule applied to all judicial sales, avoids confusion, and a distinction such as has been adopted by the common pleas, is, we think, contrary to the spirit of all the cases which have been recently decided.

An objection has been taken to the form of the suit; the' action is brought against the executor, with notice to the terre-tenant, who appears and pleads, without objection to the manner he was made a party. After .this, we are unwilling to reverse the cause on that ground alone.

The most approved form, as appears from the precedents, is to bring the suit against the executors and the terre-tenants, who are generally most interested in the cause; for it is on the failure of the personal funds that resort is had to real estate. 2 Saun. 7, (Jefferson v. Morton, et als.) The action may be brought either against the tenants of the land generally, without naming them, or against them by name; but the former is the best form, and in England is-constantly used; for if the plaintiff undertake to name them, he must name them all, and if he does not,- those who are not named may plead in abatement, (Chahoon v. Hollenbaugh,) 16 Serg. & R. 432, (Barresford v. Cole,) 2 Saun. 7, note 4. When suit is brought against the terre-tenants generally, the sheriff returns specially the tenants of the land, who come in, and either plead generally to the action, or specially, that another person, naming him, was and yet is tenant of the land, and that no process has been yet issued against him, &c. and pray judgment of the court, if they ought to be compelled to answer to the said writ, in form aforesaid returned. And the reason of this plea seems to be, because every tenant of the land is entitled to have contribution, that is, all the lands bound in the hands of the several purchasers, or owners thereof, must be equally charged; therefore, unless all the tenants be warned, the others are not obliged to answer. And if the tenant does not take advantage of the omission in the first instance, by a plea of this sort, which he may do, notwithstanding the sheriff’s return, it would seem he loses the benefit of contribution, or of relief by audita querela, in case execution is taken out against his land alone. Cro. Jas. 506, Mitchell v. Croft. Mun. 525, Clark v. Hardmiller. In England, he cannot plead it after a plea in bar. Sir Wm. Jones, 349, (Eyers v. Cowley,) 2 Saun. 7, note 10. On the plea, that all the terre-tenants have not been summoned, for the having speedier justice, the plaintiff may pray a writ to summon the person alleged to be terre-tenant, which is granted to him by the court; and by this means, when summoned by the sheriff, he is made a party in the same manner as if he had been summoned, or returned by-the sheriff as terre-tenant of the land.

Judgment reversed, and a venire de novo awarded.


text:
    LAUGHLIN, Assignee of LAUGHLIN, against ROBERT PEEBLES, Administrator of JOHN LAUGHLIN.
    IN ERROR.
    A party who has recovered a judgment in the court of Common Pleas, and . received the amount of it from the defendant, will not be permitted to reverse that judgment on a writ of error.
    Quere. — If a plaintiff in error withdraws his writ, and has an entry made upon the docket, “writ of error withdrawn,” whether it is not a retraxit, and will not bar another writ.
    This was a writ of error to the common pleas of Cumberland .county. The plaintiff in error was the plaintiff below.
    To October term, 1825, a writ of error issued at the instance of the plaintiff, to remove this same judgment; the record was not returned, but on the 12th of October, 1826, this entry was made upon the docket of the supreme court, “ writ of error withdrawn.” Another writ of error issued to October term, 1829, upon which the record was returned, and several errors assigned, which were now before the court.

      Alexander, for the defendant in error,
    moved to quash the writ on two grounds.
    1st. That the withdrawal of the writ of error,'on the 12th October, 1826, was a retraxit, and is a complete bar to the prosecution of another writ to remove the same judgment, Beecher v. Sherly, Cro. Jas. 211.
    2cL That an execution issued in the court below, at the instance of the plaintiff, upon his judgment, and . that he has .since received the amount from the defendant: and read a deposition made at the bar, to shew that the plaintiff had received the benefit'of his judgment, and also exhibited certain receipts, as further evidence of the same fact.
    Williamson, for the plaintiff in error.
    The withdrawal of a writ of errór by the attorney of a party is not a retraxit, which can only be done by the personal appearance of the party in court. 2 Sel~ Ion’s Brae. 338. Beecher’s case. 8 Coke’s Rep.. 58, An attorney of a party has no such power.. Jac. Law Die. 523.

      Carothers, on the same side. — A retraxit operates in the nature-of a release, and the powers of an attorney are not so comprehensive as to enable him to release the rights of his client.
    There were several judgments against the same defendant in favour of the same plaintiff and the receipts are not particularly applicable to the judgment which is removed by this writ of error.
    Alexander, in reply.
    It does not appear by whose direction the entry of “ writ of error withdrawn,” was made, whether by the party or his attorney: and while it remains upon the record of a court, competent to make the entry, even if erroneous, it is conclusive.
   The court being satisfied from the evidence exhibited that the plaintiff had received the benefit of his judgment, on this ground alone, quashed the writ of error.


author: Smith, J.

text:
    DANIEL GALLATIN, for the use of DANIEL GARBER, against LUDWICK CORNMAN and JOHN CORNMAN.
    IN ERROR.
    Where the defendant, under, the act of the 20th of March, 1810, regulating arbitrations, appeals from the award of arbitrators, and a general verdict passes for him, he is entitled to the costs which follow a final judgment: such case is not within the provisions of that act, as to costs, and' they are given by the law as it existed before the passage, of that act.
    Where a transcript of the judgment of a justice of the peace is filed in the office of the Prothonotary of the court of Common Pleas, and the judgment is opened, and the defendant let into a defence in that court, and a verdict is rendered for the defendant, the one hundred dollar act, regulating the payment of costs on appeal from the judgment of a justice, does not apply.
    Writ of error to the court of common pleas of Perry county.
    This case, the facts of which are fully stated by judge Smith, who delivered the opinion of the court, was argued by

      Creigh, for the plaintiff in error,
    who cited Dearth, et ais v. Laughlin, 16 Serg. Sf Rawle, 296. Landis v. Sheaffer, 4 Serg. fy Rawle, 196. Flick et al v. Boucher, 16 Serg. Sf Rawle, 373. Purdan, 20. and Lentz v. Strok, 6 Serg. Sf Rawle, 40. And by

      Alexander, contra,
    who referred to Flick, etal ,v. Boucher, 16 Serg. Sf Rawle, 373.
   The opinion of the court was delivered by

Smith, J.

A transcript of the judgment rendered by justice White, in the above stated action was filed in the court of common pleas of Perry county, and on a fire facias issued thereon, a levy was made on the real estate of John Cornman, one of the defendants. At the instance of John Cornman, this fi. fa. was afterwards quashed, the judgment opened, and upon the issue on the plea of payment, the sum due was to be ascertained, the lien of the judgment to remain in the mean time, and the costs to abide the final event of the suit The cause was then arbitrated, and a report made for the plaintiff for forty-four dollars twenty-three cents, with costs,’from which the defendants entered an appeal. At the trial, on the 7th of April, 1829, a verdict was returned by the jury for the defendants, upon which a motion was made to enter a judgment without costs, which the court overruled, and entered judgment generally for the defendants. Four errors have been assigned by the plaintiff on these proceedings.

1st. That the court erred in refusing to enter judgment without ■costs, since the- appeal.

2d. That the court erred in allowing the defendants the costs paid by them, at the time of appeal, and which embraced the costs on the original suit before the justice.

3d. That, the court erred in allowing the defendants, (who were the appellants,) the fees of their subpoenas, and serving them, their witnesses fees, and daily pay since the appeal, also the jury fee paid to the sheriff for the verdict.

4th. That the execution issued for costs against the plaintiff when no costs -were due to defendants.

The errors may all be considered together. It is to be observed in this case, that neither party appealed from the judgment of the justice; but after the transcript of his judgment had been tiled in’ the office of the prothonotary of the court of common pleas, the judgment was, by consent of the parties, opened, and the cause, after issue had been joined, was put to arbitrators, and when they had decided, the defendants, .by an appeal, carried it back to the court of common pleas; it was there tried in the usualform, by a ■jury, and a verdict and judgment rendered for the defendants. It is then a case to which the provisions of the one hundred dollar act, as to costs on an appeal from a justice’s judgment, are not strictly applicable. If, however, the provisions of that act can be considered applicable, the defendants would, beyond all doubt, be entitled to costs on the verdict and judgment, according to the decision of this court, in Flick et al v. Boucher, 16 Serg. & Rawle, 373. By the ene hundred dollar act, it is declared, that on the reversal or abatement of a judgment, the defendant, when he appeals, shall recover costs, if, on the trial, he has produced no other evidence than he exhibited before the justice: here, no other or new evidence was produced, and therefore, under this act, the defendants would be entitled to costs. But I take the proceedings to have been strictly under the act of ihe 20th March, 1810, regülating arbitrations, and how the costs of an appeal from the award of arbitratorsare to be paid. Thé 14th section <of that act, is the one which has :some bearing on the case before us, it provides, that if the defendant, (as here,) be the appellant, the condition of the recognizance shall be, that if the plaintiff in the event. of the suit, shall obtain a judgment for a sum equal to, or greater, or a-judgment as, or more favourable, than the report of arbitrators, the . said defendant shall pay all costs that may accrue in consequence of the appeal, together with the sum or value of the thing awarded by the arbitrators, with one dollar per day, for each and every day that shall be lost.by the plaintiff in attending to such appeal. This section does not provide for costs, where the plaintiff shall not obtain such a judgment as is mentioned in this section. In the case before us, the plaintiff had no cause of action, and did not recover any thing; nor does .that section ©f the act provide, that the defendant shall recover costs, in case he is successful c*n his appeal: such.a case, it would seem .to me, is not provided for by the act. I would then, in such case say, that the law, as' it stood before the one hundred dollar act, and the .arbitration act, is to govern; and therefore, that the costs in this case should follow the final judgment, which was for the defendants generally.

The judgment of the court below is therefore to be affirmed.

Judgment affirmed.