
    Taggart and another against Cooper, for the use of Semple and wife.
    In Error.
    THIS ivas a writ of error to the Common Pleas of Northumberland county.
    It was an action brought in the name of the defendant in error, the plaintiff below, as successor to Jacob Rush, president of the Orphan’s Court, for the use of Semple and wife, against the defendants, Taggart and Murray, upon a recognisance entered into in the Orphan’s Court of Northumberland county. The declaration was in debt for 22717. 14s. 6d. and stated, that “ whereas the said Robert Taggart and Wil- “ Ham Murray, on the twenty-ninth day of January, 1796, at “ the county aforesaid, before the judges of the Orphan’s “ Court, then held at Sunbury, in and for the county afore- “ said, did acknowledge to owe, and bound themselves unto, “ the said Jacob Rush, then president of the said court and his “ successors, to pay to him and his said successors, the sum of “ two thousand two hundred and seventy-seven pounds, four- “ teen shillings, and six pence, when thereunto they should “ be required; nevertheless, the said Robert and William, or “ either of them, although required, the said sum of money “ have not paid j but the same to pay to the said Jacob Rush, “ then president of the said court and to his successors, or the “ said Thomas Cooper, Esq. since, or to either of them have “ altogether refused, and still refuse, to the damage of the “ said president last aforesaid, one thousand pounds, and “ therefore-he brings suit.” The defendants prayed oyer of the recognisance, &c. and pleaded nul tiel record. Issue being joined, the court below, after a hearing, decided, that there was such a record; but no judgment was entered.
    This case was argued in June, 1814, but the court on examining the record that had been sent up, perceived that it did not contain the record of the Orphan’s Court, on which the Court of Common Pleas had decided, on the issue of ml 
      
      tiel record. They therefore directed a certiorari to be issued to certify it.
    
      A recognisance in which A and B jointly and severally acknowledge themselves to be held and firmly bound unto C, in a sum of money, which said sum the said A willeth and granteth to be levied of a tract of land and premises, upon the conditions above mentioned, is binding on B.
    Queiy,Whether if a recognisance for securing a distributive share, is taken by the Orphan’s Court in the name of the president of that court, an action can be maintained on it, in the name of his successor in office?
    
      jt now appeare(j? by the record of the Orphan’s Court, returned on the certiorari, that an inquisition had been held under an order of the Orphan’s Court for the purpose of making partition and appraisement of certain real estate among the heirs and representatives of Thomas Taggart, deceased. The jury in their inquisition appraised the property, and returned, that it could not be divided without injury to and spoiling the whole. The Orphan’s Court, on the prayer of Robert Taggart, the eldest son of the deceased, confirmed the inquisition and appraisement, and awarded the property to him according to the act of assembly: and directed the said Robert, together with a sufficient security, to enter into a recognisance to the president of that court, in double the sum of the valuation of the estate, conditioned for the payment of such shares, dividends, purparts, and sums of money as the court should awafd and distribute to, and amongst the heirs and legal representatives of the deceased. Then follows this entry: — “ And the said Robert Taggart “ and William, Murray do jointly and severally acknowledge “ themselves to be held, and firmly bound unto Jacob Rush, “ Esq., president of this court, and his successors in office, in “ the sum of two thousand three hundred and seventy-seven “■ pounds, fourteen shillings, and six pence, money aforesaid, “ which sum the said Robert willeth and granteth to be levied “ of the said tract of land and premises upon the conditions “ above mentioned.” The record went on to state that the court found the clear valuation money to be 11381. 17s. 3d. which they divided among the heirs, awarding to Christiana, wife of James. Semple, the sum of 126/. 10s. 9d. payable 28/. 2s. 4 \%d. in eight months, the like sum in sixteen months, the like sum in twenty-four months and at the widow’s death 42/. 3s. 71d. . '
    
      Hall and Watts, for the plaintiffs in error,
    took the following exceptions.
    1. The breach is not well assigned in the declaration. It only alleges that the defendants did not pay the amount of the recognisance. Regularly the condition should have been set forth and the breach, shown to consist in its nonperformance.
    
      2. There is no proferí of the recognisance.
    3. There are variances between the declaration and the recognisance. The narr. is for 2277l. 14s. 6d.: the recognisance is for 2377/. 14s. 6d. A further and most material variance is, that Murray is not bound to any thing: it is binding only on Taggart: for it expressly stipulates, that the sum is to be “ levied of the said tract of land and premises, " upon the condition above mentioned.”
    4. There is no averment that Cooper was the successor of Rush as president of the Orphan’s Court. This was a material fact which we might have traversed.
    5. The recognisance was null and void : there was no authority to take the recognisance in the name of the president of the Orphan’s Court. The words of the act of 19th April, 1794, sect. 22, require that the child shall pay or “ give good “ security for the payment thereof, in some reasonable time “ not exceeding twelve months, as the Orphan’s Court shall “ limit and appoint.” It was said by C. J. M'Kean in Walton v. Willis,
      
       that the court ought to take recognisances instead of bonds: but they cannot be taken in the name of the president of the court. The Orphan’s Court has no right to make him a trustee for the children, and perhaps subject him to costs in an action brought in his name. It does not appear that Judge Rush ever consented to this recognisance. They cited, 6 Com. Dig. 173. Record, (C) Chetly v. Wood.
      Rann v. Green.
      
       William v. Hoskins.
      
    
    
      Bellas and Duncan contra.
    1. Oyer was not prayed of the condition of the recognisance, but only of the obligatory part. Therefore no breach need be assigned, but non-payment of the money.
    2. Profert of a recognisance is not necessary. Even if it were, it is dispensed with when oyer is prayed and the record is produced.
    3. The variance alleged in the sum, arose entirely from the mistake of the clerk. The court ordered the recognisance to be in double the amount of the shares of the several children : and the mistake happened in doubling the amount. But this variance cannot now be taken adyantage of. The plea of nul tiel record goes to the record set forth on oyer, which then forms part of the narr. Hardin’s Rep. (Kentucky) 501. 504. 3 Cranch, 234. Such variance must be taken advantage of by demurrer, or pleading; it cannot be taken advantage of as error. 5 Bac. Ab. 438, (Wilson's ed.) Pleas, &c. J. 3 Cranch, 229. 2 Binn. 76. Hardin, 507. The words “ to be levied on the said tract of land and premises,” should be rejected as surplusage: there are other words sufficiently binding on both recognisances.
    4. It was not necessary to make a distinct averment that Thomas Cooper was successor to Jacob Rush: At any rate it was only cause of demurrer.
    5. The act does not designate any person in whose name the security shall be taken: and the practice has been different in different counties. The mode adopted in this case was constantly pursued in Northumberland county till the year 1811, when it was altered. It answers every purpose of security intended by the act. But even if not taken, as it was intended by the act, it is good at common law. 2 Str. 1137. A bond is good at common law, though taken by a court without authority. Addison, 72.
    
      
      а) 1 Dall. 265.
    
    
      
       2 Salk. 659.
    
    
      
      
        Cowp. 474.
    
    
      
       6 Mod. 310.
    
   Tilghman C. J.

This is an action of debt in the name of Thomas Cooper, president of the Orphan’s Court of Nor~ thumberland county, on a recognisance entered into by Taggart and Murray, by order of the Orphan’s Court. There are two questions; 1. Whether the recognisance is valid in law, so far as concerns Murray ? 2. Whether the judgment be not erroneous, even if the recognisance is valid ?

1. It appears, that an inquisition was held, by order of the Orphan’s Court, for the purpose of appraising and making partition of lands of Thomas Taggart deceased. The inquest made an appraisement, and found that the lands could not be divided without spoiling the whole; whereupon the court, at the request of Robert Taggart, the eldest son of the deceased, awarded the entire real estate to the said Robert, and directed that he, together with a sufficient surety, should enter into a recognisance to the president of the said court, in double the sum of the valuation of the estate, conditioned for the payment of such shares, dividends, purparts, and sums of money, as the court should award and distribute to, and amongst, the heirs and legal representatives of the said. deceased. Afterwards, and immediately following the above entry on the records of the Orphan’s Court, is written as" follows: “ And the said Robert Taggart and William Murray, do jointly and severally acknowledge themselves to “ be held and firmly bound unto Jacob Rush, Esq., president “ of this Court, and his successors, in the sum of 2,377/. 14s. “ 6d., money aforesaid, which sum the said Robert willeth “ and granteth to be levied on the said tract of land and pre- “ mises, upon the condition above-mentioned.” It is objected, that this recognisance should have been taken to the children of the deceased, and not to the president of the court. The act of assembly (19th April, 1794,) directs, that the child to whom the land is assigned, shall pay to the other children, their equal share of the value, “ or give good se< “ curity for the payment thereof, in some reasonable time M not exceeding twelve months, as the said Orphan’s Court “ shall limit and appoint.” It has been understood by the Orphan’s Courts, that they had power to limit and appoint, not only the time of payment, but the manner of taking the recognisance, and of course, the person to whom it is to be given. There is nothing violent in this construction, and as the validity of many recognisances depends upon it, I am for supporting it. The recognisors have no right to complain, for it is immaterial to them, to whom the money is payable; nor are the children of the deceased injured, because an action may be supported in the name of the. president for their use. The president is barely a trustee for the children, for the purpose of taking security; but he is not to receive the money, the condition being that payment shall be' made to the children, or their guardians, if infants. Neither is the president liable for costs in an action brought in his name, because the court will take notice, that the action is for the use of another person, who will be responsible for the costs. , Another objection to the recognisance, on the part of Murray, is, that by the express terms of it, it has no force except against the land of Thomtis- Taggart,- assigned by the court to his son Robert. This is an extraordinary objection. The act of assembly directs, that security shall be given as the court shall order. The court, ordered that Robert Taggart,, together xoith a sujjicient &urety, should enter .'into'.a recognisance,' and then Robert Taggart and' Murray -did .enter into a recognisance^ For what purpose, was Mur ray introduced, if he was not to be bound ? Besides, he is expressly bound for payment of 2,3///. 14s. 6d., and that is sufficienf;, without adding any words about levying on his goods and chattels, lands and tenements. The words in this . . ,, , , , . , ,, recognisance respecting the lands on which the money was to be levied, are confined to the lands assigned by the court to Robert Taggart, and I presume the intention was, that those lands, and no other, should be bound from the date of the recognisance. Whether any other lands were bound, is not now in question. The point is, whether Murray was so bound, that an action may be supported against him, and that he was, I have no doubt.

2. Many exceptions have been taken by the plaintiff in error, and the cause has been argued on both sides, as if judgment had been entered in the Court of Common Pleas. But it does-not appear by the record, that judgment was entered. The court decided upon the issue of nul tiel record, and nothing further was done. In that situation, a writ of error ought not to have issued, because error does not lie until final judgment. I am therefore of opinion, that the writ should be quashed, having been issued improvidently.

Yeates J.

A recognisance is a debt of record, and a deduration on it, only sets out the obligatory part of it, as on an obligation. On oyer prayed, the condition is set out, and the defendant may avail himself thereof by pleading. It will thus appear, who is the party alleged to have been injured by the supposed breach. The want of proferí is cured by the statutes of jeofails, unless in the case of a special demurrer. But here there was no necessity, nor propriety in making aprofert- -The recognisance was a record of the Orphan’s Court, and not in the custody of the party. The defendant below might have taken advantage of the variance between the sums of 2,37//. 14s. 6¿/., in which the recognisance was taken, and 2,277/. 14s. 6d. mentioned in the declaration, either by pleading that variance, or by demurring to the- evidence after oyer had, according to the authorities cited. But I cannot see how this suit can be maintained in the name of Mr. Cooper, as successor of Mr. Rush, in his character of president of the Orphan’s Court, on any legal principle, no law having created the person who filled that office, a body politic or corporate; nor how the final judgment could be rendered for the penalty of the recognisance, which exceeds the sum contained in the writ and declaration. The precise sums due to the children of the .intestate, on the appraisement of his lands, should have been ascertained, on suggestions of breaches, or on writs of scire facias under the statute 8 William III. c. 11.

The important question on which the opinion of this Court is required by. the parties, is, whether the recognisance taken in the Orphan’s Court was binding on William Murray P On the part of the plaintiffs in error, it has been contended, that it was wholly unauthorised by law. That recognisances may legally be taken in the Orphan’s Court, will not admit of doubt. The 9th section of the old act of 27th March, 1713, gives an appeal to the persons aggrieved with any definitive sentence of the Orphan’s Court to the Supreme Court, upon security given, as is usual in such cases. The uniform practice has been, to give this security by recognisance in the Orphan’s Court. The acts of 23d March, 1764, and of 19th April, 1794, direct, that when the lands of an intestate cannot be divided amongst the children, without prejudice to, or spoiling of the whole, and the same shall be appraised, that the son or daughter taking the same at the appraisement, shall on paying to the other children their equal and proportionable part of the value of the same lands, or giving good security for the payment thereof, in some reasonable time, as the Orphan’s Court shall limit and appoint, hold the same freed and discharged, &c. The act of 1794, makes no other alteration in this particular, than that the time limited shall not exceed twelve months. The lands here were appraised, and William Murray was offered as surety for Robert Taggart, the eldest son, in the penalty of 2,3771. 14s. 6d. conditioned for the payment of the shares of the other children of and in the appraisement, tvhich sum the said Robert willeth atidgranteth, should be levied of the said tract of land and premises upon the condition abovementioned. Murray was unquestionably the . surety of Taggart, and offered-as such to the Orphan’s Court, and it would be a palpable mockery of justice to suppose, that he was accepted in any other light. We are bound to consider him in that point of view, and not as a mere man of straw. What he willed and granted is not expressed. As to him the stipulation is general and unlimited, and ought to have a general operation. The Orphan’s Court, exercised their discretion in the case before them. They might have directed the recognisance to be given to a stranger for the security of the family, and why not to the president of the court? The opinion of M‘Kean, Chief Justice, in Walton v. Willis (1 Dall. 265,) reprobated the’ practice of giving personal security in cases of this nature, and pointed out the propriety of giving recognisances. Hence it was, that a new system was introduced, which was pursued in many counties, to my knowledge. I do not scruple to assert, that a practice thus originating, merits every sanction this court can give it. I feel myself bound to give this recogni-i sanee a liberal construction, according to the true meaning of the tribunal who made the order, and therefore am clearly of opinion, that it was binding on Murray as the surety: At the same time I think, for the reasons I have before given, that the judgment of the Court of Common Pleas should be reversed: if it be considered as entered. Otherwise the writ of error would not lie, and must be quashed.

Bragkenridge J. delivered an opinion to the same effect,, which has been mislaid.

Writ of error quashed.  