Page:United States Reports, Volume 1.djvu/365

354 

1788.

ʃummoned nor preʃent. If he had been prefent, he might poffibly have urged fuch arguments, as would have induced the inqueft to have put a higher eftimate, or value, upon the premiffes, and an opportunity ought to have been given to him for that purpofe.

5. As to the ƒiƒth exception ; there does not appear to be fufficient certainty in the fentence of the Court ; inafmuch as the purparts of the valuation money are not fpecified, not the time of payment fixed. But this Court might reduced both thefe points to certainty, were there no other exceptions ; and, in the cafe, the whole cofts of the appeal would fall upon the Refpondent.

6. On the ƒixth exception, we muft obferve, that the practice in the Orphans Courts has been to direct the fame inqueft, which is appointed to make a partition of real eftate, if that cannot be done without prejudicing the whole, then to make the valuation. This Court, therefore, will not now undertake to alter this ling eftablifhed practice, though it is liable to fome exceptions. But we are of opinion, that the fee in the premifes cannot yet be vefted in Thomas Willis, as he neither paid, nor fecured the payment of the valuation money to thofe who are entitled to receive it.

Upon the whole, let the fentence and decree of the Orphans Court be reverfed. 

HIS was an inquifition of Forcible Entry &c. taken before two Juftices of Lancaʃter country. The proceedings being removed by certiorari into this Court, Bradƒord now moved that they might be quafhed; and fhewed for caufe, that the Defendant is ftated in the inqueft to have been poʃʃeʃʃed,  but no eftate, or term is laid ; which, he fail, was adjudged to be infufficient in a cafe of  Reʃpublica verʃus Scott, the Court there obferving that Hawkins was exprefs, that an inquifition of Forcible Entry &c  will not lie in the cafe of a tenant at will.


 * Let the proceedings be quafhed.

OREIGN attachment.–Clarke, the Defendant in this cafe, had obtained judgment upon a ʃcire ƒacias againft Roʃs, the Plaintiff, as fpecial bail of one Munro; and a flay of proceedings as entered until the enfuing term, when Roʃs was to pay the money recovered into Court, it before that time the original debtor has not fatisfied the debt. The ftay being elapfed, Roʃs paid the money, out, upon an apprehenfion that payment might have been made by Munro, though no accounts were received of it, he immediately iffued this ƒoreign attachment againft Clarke, and laid it in the hands of the Prothonotary. On