years, the additional effect of a scire facias to revive and continue the lien, and authorizes the prothonotary, on the order of the plaintiff's attorney, to enter a judgment of revival for five years from the entry thereof, pending the determination of the issues raised in the case. The

purpose of this Act is to prevent the claim from being lost, by reason of the litigation upon it requiring more than five years for its determination, as happened in City v. Scott (supra). There has been no change in the law as to mechanics' claims, nor has the form of the writ of scire facias been changed in any of the several kinds of cases, but it remains the same—that is, a scire facias to show cause why the sum claimed should not be levied of the building. When the claim or debt has passed into a judgment, it may be revived for another space of five years, and so on indefinitely, until paid, under the Act of March 26, 1827. But the first proceeding must be by scire facias to levy the debt, and not to revive and continue the lien. The practice of writing in the printed writ a summons to show cause "why the lien should not be revived for another period of five years," is a bad practice, and should be abolished. The defendant is not liable to have his property subjected to a lien, kept alive without notice to him, or an opportunity given to make defence to it. A sci. fa. to show cause why the lien should not be revived, seems like a mockery, since the effect of the sci. fa. is to revive the lien of the claim pending the proceedings to levy it, and the defendant cannot prevent that effect, while he can show cause against the recovery of the debt.

These affidavits are sufficient to carry the cases to a jury.

Rule discharged in each case.
Per ARNOLD, J.

C. P. No. 3.

W. H. W.

Claim on bond after twenty-five years-Presumption of payment from lapse of time rebutted by evidence of the debtor's inability to pay. Sur exceptions to adjudication.

It appeared before the Auditing Judge (HANNA,: P. J.) that the decedent died October 22, 1881, leaving as his estate a fund amounting to $4280.52, the proceeds of a legacy bequeathed to decedent. A claim was made upon two bonds executed by the decedent to Jessie Griffiths, bearing date respectively July 1, 1856, for $4500, April, 1860, for $1160. The execution of the bonds was duly proved, and counsel for one of the creditors having objected to the claim, on account of the lapse of over twenty years, witnesses were called to prove the financial inability of the decedent to pay the bonds from the date thereof until his death.

The Auditing Judge found: "From the uncontradicted testimony it clearly appears that the decedent, some twenty-five years before his death, failed in business, and from that time down to his death was extremely poor, and unable to support himself and hopelessly insolvent, and during all that time it would have been useless to attempt the collection of any debt he contracted. view of these facts the Auditing Judge is of opinion that the presumption of payment of these bonds does not arise."

In

To this finding of the Auditing Judge exceptions were filed on behalf of a creditor. John T. Snare, for exceptant. John Shallcross, contra.

May 3, 1884. THE COURT. The presumption of payment arising from lapse of time may be more easily dispelled than that created by the Statute of Limitations. Nothing short of a promise, or an acknowledgment which involves a promise, can be interposed to the latter; whilst facts raising a counter-presumption of inability to pay may be successfully pleaded to the former. Why the bounds to litigation should be less stable when fixed by an unwritten rule than when prescribed by statute, is hard to say; but the distinction has been avowed. (Eby v. Eby, 5 Barr, 435; Foulk v. Brown, 2 W. 215; Reed v. Reed, 10 Wr. 239.) The inability to pay, however, must be shown with the force of a substantive fact. Mere insolvency will not establish it, because a man may pay one creditor, and be utterly unable to pay ten creditors. In this case the decedent, within a year after giving his bond, failed in business, and became, if he was not already, insolvent. The record debts which appear against

him, and which were kept alive, show that his insolvency continued until his death. His efforts to maintain himself during all this period did not secure him subsistence; he was forced to borrow, and even to beg. His mother and sister gave him a home, and a neighbor sometimes supplied him with clothes. The fund which now constitutes his estate accrued to him through a legacy, and was recovered by his administrator. These circumstances are the very opposite of those from which in Beale v. Kirk (3 Norris, 415) the fact of payment was implied, and they should justly lead to an opposite conclusion. The only point of agreement between the cases is the failure to ask payment; but there the creditor made no demand because he had been paid, and here he made none because he could not be paid. The legal inference which made against him in that case, is therefore in his favor in this. The present case differs, too, although by a narrower margin, from Willaume v. Gorges (1 Camp. 217), Taylor v. Megargee (2 Barr, 225), and Kline v. Kline (8 Har. 503). They held that the bare fact of poverty is not a bar to the presumption, because opportunity to pay might exist, and in Taylor v. Megargee was expressly found to have existed along with poverty. The proof here is, however, that the debtor, after his failure, followed a business from which he could not extract a livelihood; that other creditors, so vigilant that they revived their judgments, could obtain nothing, and that this claimant regarded the debt as so worthless, that he neither demanded payment nor issued process against the decedent. The acts of the creditors themselves, therefore, furnish affirmative proof, which was wanting in the authorities last cited, of an absolute inability to pay.

The exceptions are dismissed and the adjudi

cation is confirmed.

Opinion by Ashman, J.

E. F. H.

March 19, 1884.

Bunting's Estate. Attachment of legacy—Amendments-Cannot be made in derogation of other intervening rights. Sur exceptions to adjudication.

This was a contest between the assignee of the interest of a legatee and his attaching creditor, which arose under the following state of facts as they appeared before the Auditing Judge:

"Sarah Clark died in 1869, and gave by will a share in her residuary estate to her executors in trust to sell it and distribute the proceeds among the children of her sister, Elizabeth A. Bunting, and in further trust as to the portion of Elizabeth T. Bunting, one of said children to pay her the income, and, if necessary, part of the principal, for her use for life, the balance, at her death, to be divided among her brothers and

sisters then living and the issue of such then deceased.' Elizabeth A. Bunting, the sister of the testatrix, died in February, 1878, after making a will, the executors of which were the same as those under the will of Sarah Clark. Elizabeth T. Bunting, the life tenant, died June 3, 1883, leaving two brothers, of whom Samuel C. Bunting was one. On February 25, 1878, an attachment sur judgment issued against Samuel C. Bunting as defendant, and against the executors of Elizabeth A. Bunting as garnishees. The judgment was afterwards revived by sci. fa. On June 5, 1883, the defendant assigned for value all his interest in Sarah Clark's estate. It was not shown whether he took anything under the will of Elizabeth A. Bunting, nor whether, when the writ named the garnishees as executors of Elizabeth A. Bunting, it was really intended to summon them as executors of Sarah Clark. A mistake, however, is hardly presumable, because the writ was taken out a few days after the death of the former testatrix."

The Auditing Judge sustained the claim of the attaching creditor, and to this finding exceptions were filed.

A. S. Letchworth, for the exceptant. James P. Townsend and J. Cooke Longstreth, contra.

March 22, 1884. THE COURT. The task of determining between the claim of the attaching creditor and that of the assignee is not free from entanglements. The writ of attachment de

scribed the garnishees as executors and trustees under the will of Elizabeth A. Bunting, whereas they held the moneys of the debtor legatee under that of Sarah Clark. The liberal interpretation which the amending acts have received enables us to say, that any descriptive appellation applied by the writ to the garnishee may be regarded as surplusage. (Bentley v. Kaufman, 12 Ph. 439; Hoyt v. Christie, 51 Vert. 48.) The reason is apparent. The grasp of the creditor upon the money of his debtor ought not to be broken by a faulty description of the title of its custodians, concerning which the creditor cannot always be supposed to have accurate knowledge, and which the garnishees are bound to correct in their answers; and the Courts have even allowed the name of a new party to be added to the writ. (Sullivan v. Langley, 128 Mass. 235.) The doubt is whether the indulgence will be extended where the rights of third parties have supervened. To appreciate the importance of this question in its relations to both parties, a few facts must be recited. [Here the facts are recited ut supra.]

It is apparent from this recital that the plaintiff in the attachment must base his claim to a recovery over the head of the subsequent purchaser upon the ground of a mere coincidence

him through several conveyances it came to the plaintiff. The use of this land by the several persons who succeeded McClurg was simply that which concerned the water, and to which the plaintiff and his predecessors in the title had the

WEEKLY NOTES OF CASES.

Title by Statute of Limitations-Adverse entry and holding-Payment of taxes-Parol contract for sale of land-Statute of Frauds.

Brown. No improvements were made, except a fence erected in front of a part of the property by one of the holders of the opposite farm in 1866. The subsequent taxes were paid by such holder.

The defendant requested the Court to charge as follows:

vent the land from being turned into common.

Payment of taxes assessed upon real estate without the requisite possession cannot make title under the Statute.

Where title is claimed under a parol contract of sale, the evidence of such contract, and of performance there under, must be definite and unequivocal in order to take

the case out of the Statute of Frauds.

vation without residence. Affirmed. (2) The plaintiff has shown no residence upon or cultivation of the property in dispute, and no inclosure of the same, for a period of twenty-one years; and the verdict must be for the defendant. Affirmed.

Verdict for the defendant and judgment thereon. Whereupon plaintiff took this writ, assigning for error, inter alia, the action of the Court in affirming the above points.

tum.

The following were the facts as they appeared at the trial before FUTHEY, J.: The defendant claimed title by virtue of a devise from his father. The plaintiff claimed through one Dr. McClurg, to whom, he alleged, the defendant had made a parol sale of the land in dispute in 1853. The land was a small piece of ground without any improvements, fenced on two sides, but lying open to the public road; it had several springs of water on it. Dr. McClurg, through whom the plaintiff claims, was the owner of a farm on the opposite side of the road from this piece, and in the year 1850 entered into an agreement with Thomas Brown, father of the defendant, by which he acquired the right to conduct the water from these springs to and across the road to his own property. It was alleged by the plaintiff that in the autumn of 1853, the defendant, who had then come into possession of the property, made a parol sale of it to Dr. McClurg, but the evidence of this sale was "very vague and unsatisfactory." Dr. McClurg afterwards made an assignment for the benefit of creditors, and the assignee conveyed this land to Yeatman; from

McClurg, which motion was dismissed because more than one term of Court had elapsed since it was made, and the writ of error had ousted the jurisdiction.

Sidwell & Johnson (William B. Waddell and William H. Staake with them), for plaintiff in error.

The case was decided against the plaintiff, simply on the question of possession, which should have been submitted to the jury as a question of fact.

De Haven v. Landell, 7 Cas. 120.
Groft v. Weakland, 10 Cas. 304.
Potts v. Everhart, 2 Cas. 493.

useful or could be enjoyed, which was all the law The land was used in every way in which it was requires to constitute possession.

Criswell v. Altemus, 7 Watts, 566.
Alden v. Grove, 6 Har. 377.
Baker v. Findley, 8 Har. 169.

The open, notorious possession for over thirty years was sufficient of itself to give a good title. Read v. Goodyear, 17 S. & R. 350.

McCall v. Neely, 3 Watts, 70.

A possession under a contract relation, continued until the statute bars the remedy on the

contract, or until law or equity presumes that the duty owed by the person in possession has been released, is sufficient.

Harris v. Bell, 10 S. & R. 39.
Dixon v. Oliver, 5 Watts, 509.

pipes with the assent or license of Brown. There is here, then, in the outstart, the absence of an essential constituent of title by the statute: adverse entry. When, then, did the notoriously adverse possession, on which the plaintiff professes to claim, commence? Not certainly during McClurg's time, for he did nothing that was not con

Gallup v. Reynolds, 8 Watts, 425. Kellogg v. Krauser, 14 S. & R. 143. Huston v. Mitchell, 14 S. & R. 307. Dickerson's Appeal, 7. Barr, 257. Alfred P. Reid, for defendant in error. This Court cannot take cognizance of the afterdiscovered evidence. The equitable jurisdiction by bill in this State is exclusively created by

statute.

Dohnert's Appeal, 14 Smith, 313.

Bakewell v. Keller, 11 WEEKLY NOTES, 300.

This Court has no general original jurisdiction in equity between private parties.

Hottenstein v. Clement, 3 Grant, 316. Constitution of 1874, Art. 5, 8 3. Wheeler v. Philadelphia, 27 Smith, 344. This Court is confined to an adjudication upon the errors of law which appear on the record. Cathcart v. Commonwealth, 1 Wright, 108. Jewell v. Commonwealth, 10 Harris, 99. Jamison v. Collins, 2 Norris, 359. Lee v. Keys, 7 Norris, 175.

The parol contract upon which title was claimed was not unequivocally established as required by

law.

He neither cleared nor cultivated the land; he commenced to build a fence along the road, but abandoned the job before it was finished, and contented himself with driving in some stakes around the springs in order to preserve them from the cattle, which were wont to stray over the lot at pleasure. It also appears from the testimony of Benjamin Thompson, who resided on this property from 1859 to 1864, that there was no fence during that period along the public road, and that the lot lay open and uncared for. And though John Fisher says he thinks there was a worm fence there in 1854, yet that the property lay open for a long while, and that the fence was not there when Weiler came into possession. This then seems to have been its condition until about the year 1866, when Charles Weiler inclosed it with a post and rail fence. But as he did not clear or cultivate the property, it might be doubtful whether this act could be regarded as an assertion of title in the soil, rather than as a means If, however, we treat this as the beginning of a used to guard the springs from trespassing cattle. notoriously adverse possession, and that possession was continued down to the bringing of this suit, yet as it extends over a period of but seventeen years, it must be linked to some other preceding acts of possession to make it effective under the statute. But there are no such precedent acts he found but the remains of an old worm fence of a continuing character. When Weiler entered a few panels standing and a few down. I preon the road side, of which he says, "There were sumed that they had been carried away." This then, aside from the use of the water, is all that we have to sustain the plaintiff's claim under the statute. But a possession so uncertain and so wanting of continuity would amount to nothing even had the original entry been adverse.

As it was said by GIBSON, J., in Stephens v. Leach (7 Har. 262), when the adverse possession is by inclosure, it behooves the tenant to keep up the fences and prevent the place from becoming vacant, or the ground from being turned into a common.

Nor does the payment of taxes help the plaintiff's case in the least; payment of taxes without the requisite possession cannot make title under the statute, and at best it is evidence only of the extent of the claim. (Sorber v. Willing, 10 Watts 141.) Here, however, there was no controversy over the extent of the plaintiff's claim, and if