1799. person dying intestate, without lawful issue, and leaving no father, or mother, brothers, or sisters. The descent of the real estate, in this specific case, was not, therefore, altered, or regulated, by any act of the general assembly, when the estate was vested in the person entitled to take, at the death of the intestate.

It is probable, that if the case had been stated to the legisla ture, they would have directed the same distribution in the year 1794, that they have since done by the act of the year 1797: and, it is urged, that as there is equal reason for making such a distribution, where no father survives, as where a father does survive, the intestate, the Court ought, upon the obvious principle and policy of the law, to supply the deficiency. But, it must be remembered, that the system of distributing real estates in cases of intestacy, is an encroachment on the common law; and wherever such an encroachment takes away a right, which would otherwise be vested in the heir at law, the operation of the statute should not be extended further, than it is carried by the very words of the legislature.

We are, upon the whole, unanimously, of opinion, that the judgment below should be reversed; and that judgment should be given for the plaintiff in error.

Ewing et Ux. Plaintiffs in Error, versus Houston et Ux.

IN

N error from the Supreme Court. A writ of summons in partition was issued by the plaintiff in error, in the Court of Common Pleas of York county, returnable to September term 1792, by which the defendant in error was summoned to show wherefore the following property, held by the parties as tenants in common, should not be divided: to wit; "one ferry at the "river Susquehanna in Hellam township in the county aforesaid, "six messuages, one barn, four stables, four gardens, one or"chard, 250 acres of arable land, and 371 acres of woodland, "and the usual allowance of six per cent. with the appurte(6 nances in the same township of Hellam, in the said county of "York." The writ being returned, "summoned," both the parties appeared by their attornies, the plaintiffs filed a declaration, setting forth their title, and demanding partition of the same estates that were specified in the writ; and judgment was rendered, by consent, in general terms, " that partition be made." A writ of partition, accordingly issued on this judgment, re

turnable

แ

1799. turnable to December term 1792, when "the sheriff returns the "writ, and that partition hath been made according to the com"mand thereof;" both the parties appeared by their attornies; and judgment was rendered, "that the partition so made be "confirmed, and be and remain firm and stable forever." The writ of partition recited the words of the writ of summons, except that in describing the place, where the several estates were situated, the recital added the township of Windsor to the township of Hellam, stating the premises to lie "with the appurte"nances in the same township of Hellam and Windsor, in the "county aforesaid." It then proceeded to recite the judgment, "whereupon it was considered by the said Court, that partition "thereof between the parties aforesaid be made:" and concluded with the mandatory clause to the sheriff: "Therefore we com"mand you that taking with you twelve honest and lawful men "of your bailiwick, &c. in your proper person you go to the said "ferry, &c. And there by the oaths or affirmations of the said "twelve men, in the presence of the parties aforesaid, by you for "that purpose to be warned (if upon being warned they will at"tend) and the said six messuages, &c. (specifying all the estates "mentioned in the writ except the ferry) with the appurtenances (having respect to the value thereof) into two equal parts you cause to be parted and divided, and one of the said "equal parts to the said plaintiffs, &c. and the other equal part "unto the defendants, &c. to hold to them in severalty you "assign and deliver, so that neither the said plaintiffs, &c. nor "the said defendants, &c. have more of the said ferry, six messuages, &c. with the appurtenances than to them of right "belong or appertain. And the said plaintiffs, &c. their equal "half part thereof to them allotted, and the said defendants, &c. "the other equal part thereof to them allotted, may hold in seve"ralty. And that the partition thereof so openly and distinctly "by you in form aforesaid made you have before our Judges, "&c." The inquisition held under this writ of partition, after naming the persons constituting the inquest, states "that they "were duly sworn and affirmed to divide and make partition of one "ferry, at the river Susquehanna in the township of Hellam and "county of York aforesaid, six messuages, &c. with the appur"tenances in the same township of Hellam and Windsor in the "county aforesaid, between the plaintiffs, &c. and the defend"ants, &c." And after dividing and parting the whole into two equal parts, the inquisition proceeds to a specification, that the inquest "have parted and divided the said ferry, messuages, "lands and premises with the appurtenances into two equal 66 parts, having regard to the true value thereof. And the lot "marked on the annexed draught No. 1. containing the said ferry "at the river Susquehanna, with all the flats, &c. thereunto be"longing; the lot marked in the said draught No. 2, &c.; and

"the

"the tract of land marked No. 3, &c., also a fishery on the 1799 "river Susquehanna, at or near the said ferry, together with each "and every of their rights, &c. they have allotted to the said "plaintiff's their heirs and assigns forever," &c.(1) A writ of error was brought by the plaintiff in the partition on the judg ment of the Common Pleas, but that judgment being affirmed by the Supreme Court, the cause was removed into this Court, by the same party.

For the plaintiff in error (who was also the plaintiff in the partition) Lewis made the following objections to the proceedings.

1st. That the original writ, declaration, and judgment, only call for a partition of lands in Hellam township; but the judicial writ recites the original writ to have been for lands in Hellam and Windsor townships, and commands a division of them; and the return and final judgment are for lands in Hellam and Windsor townships. The declaration, judgment, and execution, must pursue the writ; and if the execution does not pursue the judgment it is a nullity. Execution is obtaining the actual possession of the thing recovered by law; but the lands in Windsor township never were recovered. 1 Inst. 154. a. Ibid. 289. 2 Bạc. Abr. 329. It is evidently an error of the attorney; but can he correct his errors in this way? The authorities, both in criminal and civil cases, show the contrary; for, although it may not be necessary to name a township, town, street, &c. in the process and pleadings, if they are named, they must be proved. 2 Hawk. P. C. ch. 46. s. 34. Salk. 661. Bull. N. P. 89. Hob. 37, 8. 2 Inst. 513. Is it possible, however, to maintain, that an execution can issue for a greater quantity of lands, or for different lands, than what is recovered by the judgment upon which it is founded? The law is incontestably established, that the slightest variance in the recital of a record, as between the count and the writ, so between the judgment and the execution, is fatal. Cro. E. 185. 329, 330. 829. 2 Lutw. 1179. 1181. 2 Vent. 153. Gilb. C. B. 50. 3. 239. Besides, the statutes of jeoffaille do not extend to judicial writs, when the party has no day in Court: and under the authority of the present judicial writ, any other lands might as well have been divided, as those demanded in the declaration and recovered by the judgment.

2d. That the original writ, the declaration, and the judgment, are for a ferry, six messuages, &c. but the judicial writ omits

(1) Though there was no other description of the fishery, yet the defendant's counsel insisted, that both the ferry and the fishery were appurtenant to lot No. 1; and the assertion seemed to be supported, on an inspection of the draught to which the inquest referred. The ferry was kept on a part of lot No. 1; and the fishery, being located within the boundaries of the same lot, would be " at or near the ferry"

the

1799. the ferry in the mandatory clause; and yet the ferry is divided by the inquest, who could only act to the extent of the command and authority in the writ of partition. This, too, is a mistake; but the consequences would be ruinous, indeed, if it could be arbitrarily corrected by the sheriff or the inquest. The sheriff must execute the command of the Court, doing neither more, nor less; as he was not commanded to divide the ferry, he had no authority to do so; and, of course, the division is a nullity. Hob. 37, 8. Moore 19.

3d. That the inquest have assigned a fishery to the plaintiffs, which never was put in demand; and the defendants sweep the same water. 2 Bl. Com. 190, 191. 2 Keb. 413. 580.

4th. That it does not appear, on the sheriff's return, that the parties attended, or were warned to attend, the execution of the writ of partition; though this was commanded by the writ, is required by the law, and is recognised by all the precedents.

5th. That the return to the writ of partition does not state that the premises were assigned and delivered to the respective parties, as the writ directs; but merely that they were allotted.

These objections were answered by Ingersoll and Hopkins, for the defendant in error, substantially as follows:

1st. That every intendment will be made in favour of a judgment; 2 Keb. 413. and it is admitted, that all the proceedings are regular till the issuing of the judicial writ. In the execution of that writ, also, the Court will presume the sheriff has acted lawfully and faithfully till the contrary is shown. But it appears, on a connected view of the record, that the property demanded, is the same property that was divided, the words "same" and "thereof" applying relatively from the first to the last of the process, as designating the same specific property. It is true, that the name of Windsor township is first introduced in the judicial writ; but if the introduction is not tolerated as an amendment for the sake of greater certainty, it ought to be disregarded as surplusage. The writ of partition was issued by the plaintiffs, who cannot take advantage of their own error; Moore, 692. 5 Com. Dig. 301. 3 Bl. Com. 16. the judgment on the return, it will be presumed, was rendered at their instance, at least they appeared by an attorney on the record; and there has been a long acquiescence of the parties.

2d. That the ferry, though accidentally omitted in one clause of the judicial writ, is mentioned in other of its clauses, and is contemplated in every part of the record as an object of partition. It belongs to lot No. 1, and may be considered as appurtenant to it.

3d. That the fishery was appurtenant to lot No. 1. and was named in the inquest, merely as a matter of detail and specification