Page:United States Reports, Volume 1.djvu/467

456 

1789.

of infolvent debtors, for the affigning of bonds, and for defalcation: And the laft of thefe Acts fays, that “ if two or more, dealing together  “ (which words are not to be found in either of the Engliʃh ftatutes)  “ be indebted to each other upon bonds, &c.”  when an action is commenced, the Defendant may plead payment, and give his bond, &c. in evidence againft the Plaintiff's demand.

If then, the obligee could have defalked the bond in queftion, (of which, we think, no doubt can reafonably be entertained ) and he has legally affigned all his right and intereft in it to the Plaintiff in Error, why fhould not the affignee be entitled to the fame advantage, fince the Act for the affignment of bonds has placed him on the fame footing?

There is another claufe in the Defalcation Act, which provides, that where a Plaintiff and Defendant have accounts to produce one againft another, they may refer them, and the report of the referrees fhall have the effect of a verdict: Now, although the words are confined to the cafe of accounts, yet the conftruction of the Act has liberally extended the right and benefit of fuch a referrence, to every other caufe of action.

For the fake of Juftice, and to prevent an odious multiplication of fuits, we think, that the fame liberality fhould be exercifed in the cafe before us ; and are unanimoufly of opinion, that the Judgment of the Court below ought to be reverfed.

Judgment reverfed. 

HIS Caufe came before the Court on a cafe ftated, which was in fubftance, as follows:––The interftate, John Græme, in his life time, to wit, in December term 1772, obtained a Judgment againft the Defendant, in a plea of debt, in the County Court of Common Pleas of Philadelphia. He afterwards died, being refident at the time of his death in Great-Britain, of which kingdom he was a fubject. Upon his deceafe, the Plaintiffs obtained Letters of Adminiftration from the Archbifhop of York, in the faid kingdom, which bore date the 25th of June 1784 ; but to this action, which as a ʃcire ƒacias to revive the above-mentioned Judgment, the Defendant pleaded, that the Plaintiffs never were Adminiftrators: Iffue was thereupon joined ; and this queftion fubmitted to the opinion of the Court, whether under the authority of the Letters of Adminiftration granted by the Archbifhop of York, the Plaintiffs could maintain the prefent action?

The point was argued on the 26th of September, by Rawle, for the Plaintiffs, and by Sergeant and Swiƒt for the Defendant.

Rawle relied on the Act of Affembly, which declares, that Letters of Adminiftration granted out of the Province were fufficient for the purpofe