McKEGG verʃus CRAWFORD.
I
N this caufe there was a rule to try next term, or non pros ; the term being clapfed, Levy, at the fettlement of the dockets, figned the non pros in the Prothonotary's office; an not Armʃtrong moved to fet it afide.
SHIPPEN,Preʃident :– This is not like a rule to plead, or declare ; for, at rial is a thing that muft be in the face of the country. A non pros of this kind, ought, therefore, to be moved for in Court, when the Plaintiff may affign reafons for the delay of trial.
the court feemed fatisfied that the non pros ought to be fet afide, but at the requeft of Levy, who thought he could produce fome authorities on the fubject, they only granted a rule to fhew caufe &c. The rule, however, was afterwards made abfolute.
GEYER verʃus SMITH.
T
HE referees appointed in this caufe, applied to the Court for inftructions on a point of law, in order to guide them in making their report.
But, by the court :–The referees muft firft exercife their judgment upon the lights they have received ; and the queftion, being afterwards brought regularly before us, we will determine, whether they have acted right, or not. It would not only be an inconvenient practice, but, in a great degree deftructive of the principle and ufes of a reference, if fuch applications were to be complied with ; and, therefore, we think it is proper to avoid eftablifhing a precedent.[♦]
[♦]Afterwards, in July Term 1789, the point of law was argued on the report of the referrees. The action was brought againft the Defendant as adminiftrator of Robert Smith on a bond taken by Geyer from the adminiftrator for the interftate's debt, naming himfelf adminiftrator. The queftion was, whether the Plaintiff, or the judgment againft the adminiftrator on this bond, could take the eftate of the interftate in execution?
It was argued by Sergeant, Fiʃher, and Wilson, that he could not; it being the proper debt of the Defendant himfelf, and they cited feveral authorities.
Ingersol, on the part of the Plaintiff, faid, that on confidering the law, he had an encouragement to argue it.
SHIPPEN, Preʃident. The cafe having been broke at the laft Court, I have looked into the point, and find other cafes than thofe cited at the bar, which fhew, that a credito taking a bond from the executor or adminiftrator, difcharge the old debt; that the calling himfelf executor, or adminiftrator, in the bond, is furplufage, and that he is chargeable only in his own right. 1 Mod. 225. 10 Mod. 254. Cro. El. 406. 9 Cro. 93. Vin. Ex. 304.
