in evidence, as superseding the notice or deducting for it, that The not offering in express terms the abandonment is waived by the silence, and the probability is that it was omitted from the ignorance of the insured. IN Judgment for the Plaintiffs. HUTCHESON against JOHNSON. 1803. WATSON and PAUL V. Ins. Co. N. A. Wednesday, September 14th. N this case S. Levy for the defendant obtained a rule upon A rule to the plaintiff to shew his cause of action, and why the defen- shew cause dant should not be discharged on common bail. The rule was well served of action is returnable to Friday the 9th, but was then enlarged to this day, upon the when Moylan the attorney of the plaintiff upon record, who had plaintiff's been unable to communicate with his client, objected to the service of the rule, which had been made personally upon him, and not upon the plaintiff. Per CURIAM. The practice of this court is that a rule to shew cause of action is well served upon the attorney in the suit. It is not necessary that service should be on the plaintiff personally; but if he lives out of the state, the court under proper circumstances will grant time. As such circumstances have been suggested here, the court make the rule absolute unless cause be shewn during the term. attorney. Lessee of the Trustees of the School in Lower Dublin Thursday, against PAUL. September 15th. to a report THIS ejectment was referred under a rule of court; and the Exceptions referees awarded that the plaintiffs should recover the of referees strip of land in controversy, with 6d. damages and 6d. costs. must point Exceptions to the report were filed by the defendant as follows: plain mis out some take in fact or in law, otherwise the court will not investigate the merits of the report. 1803. 1. Because it appeared before the referees that the defendant Lower and those under whom he claimed had been in possession of the Dublin premises in controversy, and had their fence around the same School from time beyond the memory of any person now living; and v. that the lines called for by the conveyance of Richard Thomas to Samuel Thomas on the 8th of January 1745, under whom the defendant claims, take in and include the premises in controversy. PAUL. 2. Because the referees in forming the award undertook without any evidence to shorten by six perches the last course but one of the defendant's land, and to lengthen by five perches. the last course thereof. 3. Because the referees had no evidence whereby to fix the lines and boundaries of the premises in controversy in favour of the plaintiff. The cause was now called on for argument upon the exceptions, when M. Levy for the defendant moved a postponement upon the ground that one of the referees, whose attendance he was unable to procure, was material to shew the truth of the exceptions. Rawle for the plaintiff objected, because from the very nature of the exceptions the referees could not be examined without opening the whole ground of controversy. The exceptions go to the whole matter in dispute, and they do not point out any circumstances which shew a plain mistake in fact or in law; without which the objections must be confined to the face of the report, which in this instance is unexceptionable. Levy in reply cited Pringle v. M'Clenachan, (a) where the court went out of the report to examine the merits. Evidence must be heard to ascertain whether there is a plain mistake or not. SHIPPEN C. J. A plain mistake must be stated in the first instance; and if evidence must be heard in order to prove it, the court will listen to it. But here no plain mistake is pointed out, and therefore we would not hear the referee if he were present. Per CURIAM. (a) 1 Dall. 486. Report confirmed. M'LAUGHLIN against ScoT. 1803. Thursday, September 15th. THIS HIS cause was referred under a rule of court, and the An award of referees awarded for the plaintiff the sum of ninety-one although the costs is good, dollars thirty cents, and costs of suit. The rule contained no principal provision that costs should abide the event of the suit, and the ed by the reprothonotary taxed the plaintiff his full costs. sum report ferees would not carry costs if found Levy for the defendant now insisted that the act of 25th by a jury. September 1786, which provides that if any plaintiff shall bring or commence any suit or action in the Supreme Court and shall not recover thereupon more than 50%. he shall not be allowed any costs, was fatal to the plaintiff's claim, in the present case; for the act extended to all modes of recovery, as well by award of referees as by verdict of a jury. Burd, contra. Per CURIAM. It has been over and over again decided that the party takes costs if the referees give them to him; provided their authority is not limited by a special agreement. (a) ROWLEY against BROWN, administrator of WEBB. Monday, IN December 19th. The sheriff N this case an execution was levied upon the real estate of Webb, consisting of three tenements and the lot of ground cannot make a lumping upon which they were erected. The lot was so divided in point sale of disof fact, that a portion of it was used with each tenement; but tinct parcels of property an entire ground rent was payable out of the lot by the deed which he has under which Webb held, and there had been no apportionment taken in exesubsequently agreed upon. The property being condemned, should sell the sheriff sold the whole in one body. Rawle for the defendant obtained a rule to shew cause why the sale should not be set aside upon the ground that the parcels of property taken in execution were distinct, and should have been sold separately. (a) Kyd on Awards 134. cution. He them distinctly. 1803. ROWLEY υ. Tod for the plaintiff now proceeded to shew cause; and after setting forth the facts as above stated, he argued that as there was an undivided ground rent issuing out of the proBROWN. perty, it was in fact but one parcel. That it was impossible for either sheriff or plaintiff to say in what manner the ground rent should be apportioned, without which there would be such an uncertainty as to the thing sold, that the defendant would rather lose than gain; and further, that the sheriff was not authorized to say even what portion of the lot should go with each tenement. Rawle in reply, said that it was every day's practice to sell distinctly tenements and lots on which there was an unapportioned ground rent; and to leave the apportionment to subsequent arrangement by the purchasers. The division of the lots in point of fact furnished sufficient boundaries to each portion; they should have been sold as they were then known and occupied. In every case where parcels of property can be sold distinctly, the law for the protection of the debtor prohibits a lumping sale. Per CURIAM. It is the rule of this court to disallow in every case a lumping sale by the sheriff where from the distinctness of the items of property he can make distinct sales. It is essential to justice and to the protection of unfortunate debtors that this should be the general rule; any other would lead to the most shameful sacrifices of property. There may be exceptions, but the purchaser must bring himself within them. The present case is not one; the tenements and lots were here sufficiently distinct both in law and fact, and there was no reason for deviating from the common practice. Rule absolute. 1803. M'CULLOUGH administrator of PARLAND against IN YOUNG. December N this case it was agreed by the counsel to submit a single Letters of question to the consideration of the court; namely, whether administration granted the plaintiff as administrator &c. could maintain his action under seal against the defendant by virtue of letters of administration granted to him in the state of Maryland. in a sister M. Levy for the plaintiff read the first section of the act of action in 1705, which among other things provides that all letters of ad- this state. ministration granted out of this province being produced here under the seals of the courts or offices granting the same, shall be as sufficient to enable the administrators by themselves or attornies to bring their actions in any court within this province, as if the same administrations were granted here, and produced under the seal of the register general's office of this province. 1 St. Laws 54. He said that the language of this act was too unequivocal to admit of an argument, and that to deny the plaintiff's authority to sue as administrator, was in fact to repeal the law. Hopkinson for the defendant referred to the case of Græme et al. v. Harris (a) decided in 1789, in which this court held that letters of administration granted by the Archbishop of York were not a sufficient authority to maintain an action in this state. He contended that this decision was an authority for asserting that the law of 1705 was in this particular obsolete. That it was impossible to understand the words out of this province in their literal sense without overthrowing Græme v. Harris, and there was no warrant in the law for understanding them in any other sense. It must therefore be presumed to have been the opinion of the court that inasmuch as the law was passed when this state was a very insignificant colony, and when convenience. may have justified the comity that was shewn to foreign letters. of administration, the reason of it ceased when we became an independent government, and the amount and variety of personal property had greatly increased. It is in opposition to the law of some of our sister states, and therefore wants recipro (a) 1 Da!!. 456. X & This has long suing reaxed to be law in this Commonwerthe" for new Haline 11 P.7. m. 299 |