
    Reigart and another against Ellmaker.
    ERROR.
    
      Saturday, May 20.
    where the thebraeficlaf mterestm a on the record, recognise W' and'treauííem accordingly. uecVasáry to a judgment °f tiiatsuch pacpeav'upo» the record. If there be legal parties, it is sufficient.
    Where a scire facias was brought on a recognisance in the Orphans’ Court, against sor and ' amUhecoí’ nisor died before judgment, it was held to proceed to° nial against nanteaitme, mhdstratrbT1” «ponbeing ’ wi'h Tldre gtcctedto come in and be made a party on the record.
    The proper course is, where the personal representative of the defendant does not appear and take defence, to sign judgment by default, de bonis testatoris; and the terre-tenant will be permitted to plead and üzkwüy pro inter esse sz¿o; andón a verdict against him, the judgment will be de terris.
    Where the eognisor, or his representative, and the lerre-tenant, appear together, although each must defend for himself, the several issues may be tried together, provided separate verdicts are taken,, and the defence of each party kept distinct on the record.
    A SCIRE FACIAS was issued in the Court of Common Pleas of Dauphin county, in the name of Amos Ellmajier Esquire President of the Orphans’ Court of the said county, the successor of Walter Franklin, Esquire, who was the successor of John Joseph Henry, Esquire, late Presi^ent °f that Court, for the use of James Alricks. against John Kean, with notice to Daniel Reigart and Nicholas Swoyer, terre-tenants of a certain three story brick house and *ot ground, situate in the borough of Harrisburg, on a recognisance entered into by John Kean, on the 27th Octoher, 1801, by which he became bound to John Joseph Henry, Esquire, President of the Orphans’ Court of Dauphin x 1 1 county, and his successors in office, in the sum of 11,160/., conditioned for the payment, to the widow and children of John Hamilton, deceased, of their respective shares of the appraised value of certain lands, which were taken by Kean at the appraisement. Alricks assigned to one James Wil-Hatns, all his interest in the suit. The assignmentwas filed,and a memorandum to that effect entered on the docket, but the su't was not marked to the use of Williams. The defendants pleaded payment, with leave to give the special matter in eviOn the i2th July, 1819, the death of John Kean uence. was suggested, and a scire facias issued to his administratrix, cum testamento (innexo, for the purpose of making her a party to the suit, agreeably to the act of assembly of * ^h 1791. The administratrix, though duly served with the scire facias, did not appear, and the plaintiff, instead of proceeding to judgment against the administratrix, cause for trial, although she was a not party to the record. When it was called up for trial, the counsel for the defendants objected to the jury being sworn, on the ground that the administratrix of John Kean, had not been made a party to the suit. The Court however, overruled the objection, and ordered the jury to be sworn. The cause was tried, and a verdict found for the plaintiff for g 580 62 cents, on which judgment was given, and the cause removed by writ of error, to this Court, in which, the errors assigned were:
    1. That Williams, to whom the suit was assigned, ought to have been made a party to the record, before the jury was sworn.
    2. That the cause could not be legally tried, because the administratrix of John Kean was not made a party to the suit.
    3. That if the administratrix were a party, the jury should have been sworn, stating her as administratrix, to be the defendant, with notice to Reigart and' Swoyer.
    
    Some other errors were assigned, which were not insisted upon on the argument, and which therefore need not be stated.
    
      Ellmaker, for the plaintiffs in error.
    Elder, contra.
   The opinion of the Court was delivered by

Gibson J.

Alricks, the original party, assigned his interest to a certain James Williams, without having the suit marked for his use, and, although the assignment was filed with the papers in the cause, and a minute of it made among the docket entries, the title of the action was in no respect changed, but the jury were sworn without formally making Williams a party to the issue : and this is assigned as error. To sustain a judgment it is necessary, that there be legal parties ; but it is not absolutely necessary, that parties who are such only inequity should appear upon the record. Where, however, they do so appear, the Court will recognise them as the real parties to the cause, and treat them accordingly;

The other exception is better founded. The death of John Kean, the original defendant, being suggested, a scire facias, pursuant to the act of assembly, was issued to his administratrix, for the purpose of making her a party to the cause» to which, although it was served in due time, she did not appear, and the plaintiff, instead of taking judgment by default against.her, according to the provisions of the act of assembly7», accepted a plea from the ter re-tenants, who came in under notice, and the issue thus formed, was tried without the administratrix having been brought upon the record, or disposed of in any way. There was in truth, no party» for a terre-tenant, although he is permitted to intervene for the preservation of his own rights, is nevertheless not personally liable, but only in respect of the land» and, therefore, not the legal defendant, without whom the suit cannot be kept alive. In Kean et al. v. Franklin, 5 Serg. & Rawle, 147, it was held, that the suit must be brought against the..cogaisor, even where he is an insolvent debtor, because, there is no other means of coming at the land. On the death of the defendant, the plaintiff's course is a plain one. He issues a scire facias to the personal representative, against whom, where he does not appear and take defence, he signs judgment de bonis testatoris ; but the terretenant is afterwards permitted to plead, and defend pro interesse suo, and on the verdict, where it is against him, the judgment is de terris ; and thus, the goods of the decedent, or the lands bound by the proceedings in the Orphans’ Court —which after the judgment against them, are also to be considered his goods—may respectively be levied upon under the execution. Where, however, the cognisor, or his representatives, and the. terre-tenant, appear together, although each must necessarily defend for himself, I can see no reason why the several issues joined should not be tried together, provided separate verdicts be taken, and it dppear, that the defence of each, was kept distinct, and separately-disposed of on the record. The last assignment of error, has not been insisted on » but on the second, the judgment is reversed,' and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  