
    AT NISI PRIUS, AT HARRISBURGH,
    OCT. ASSIZES, 1796.
    coram abates and smith, justices.
    Jacob Rham against John North.
    A sale under an Orphan’s Court order may be proved by parol evidence, and a return of the sale may be made after the next Orphan’s Court. Administrator’s should begin the sale on the day appointed by the order, but may adjourn it.
    They cannot sell to themselves.
    Debt on articles of agreement, dated 10th June 1785, for the penalty.
    The plaintiff, together with Michael Rham his brother (since deceased) agreed to sell to the defendant certain lands, in consideration of 14007. It was stipulated, that the defendant should pay the sum of 707. on the 10th July following, and then possession should be delivered to him. That he should further pay 3307. on the 1st May 1786, and the remainder of the consideration money in annul payments of 1007. each. That a good deed should be made to the defendant under an order of Orphan’s Court, on the 1st May 1786, at which time he should give his obligations, with security for the instalments.
    An order of Orphan’s Court, made at Lancaster on the 24th March 1785, was produced, whereby Michael Rham and Jacob Rham, as administrators of Melchior Rham, their father, were impowered^ to sell the lands on the 26th April following, at 2 o’clock in the afternoon, to enable them to pay debts and maintain the children of the intestate.
    No return of the sale was directed by the order, nor had any return, been made to the Orphan’s Court; but it appeared in the close of the cause, that the premises were struck off to the administrators. Evidence was given of one advertisement being put up at a public house, but it was not ascertained by whom it had been subscribed.
    The defendant showed in evidence three receipts for monies paid by him from 28th June 1785, to 11th June 1786, for 1027. 15s. and contended, that it was necessary a return should be made under the order of Orphan’s Court, whereon to ground the deed to be made to the defendant, and that the sale by the administrators could be proved in no other mode, than by the medium of the return on record.
    He further insisted, that it was incumbent on the plaintiff to have executed the conveyance to the defendant and tendered it. If under the articles, this was not a condition precedent on the part of the plaintiff, it was at least a concurrent act, and the plaintiff must show his performance literally and substantially before he can entitle himself to the penalty. H. Black. 270, 274, 278, and 4 Term Rep. 761, were cited.
    To this it was answered, that the sale by the administrators was capable of proof by parol evidence, and that the stipulation to pay 330/. was an independant covenant; but if otherwise, the inability of the plaintiff to make the deed, arose from the non-performance of the defendant. Dougl. 665, and 1 Ld. Raym. 124, were cited.
    Messrs. Ingersoll and C. Smith, pro quer.
    
    Messrs. Duncan and Montgomery, pro def.
    
   Yeates, J.

had been retained in the cause, while at the bar.

Smith, J.

The proceedings of the Orphan’s Court are presumed to be regular. A return of sale under their order at the ensuing court is the general practice, but for some reasons, it has not been pursued in the present instance; and I find on inquiry, this is not a singular case in Lancaster county. The act of 4 Annas directs, that the administrator shall bring his proceedings to the next Orphan’s Court after the sale made. The words of the law appear only directory ; and I see no. reason why a regular fair sale may not be returned at another court. No injury is done thereby.

Parol evidence may be given of a sale under an order of Orphan’s Court without a return made thereon. Until the vendee has complied with his contract, it may be imprudent in many instances to have the sale confirmed. Writs o£ venditioni exponas are returnable on days certaiii, yet a sale of lands by virtue of a venditioni is good though the writ be not returned. Under an order of Orphan’s Court, impowering an administrator to sell lands, he should begin the sale on the day affixed by the court, and may afterwards adjourn it, but not be-: yond the day of the succeeding court.

i*. The objection made, that this was an independent covenant on the part of the plaintiff, does not seem to hold since the passing of the defalcation act. But the plaintiff ought to have proved, that he had put up proper advertisements, signed by the clerk of the Orphan’s Court. There is yet another incurable defect in his.case. The administrators could not sell to themselves ; it wras a mere nullity. They had a special authority which ought to be strictly pursued. The title could only be derived through the intervention of a third person.

The plaintiff suffered a nonsuit.  