Smith and Wife against Boyer, 2 Watts 173

The opinion of the Court was delivered by Sergeant, J. first error assigned, that the court below permitted the amended statement to be filed, and received evidence of the marriage of Jacob Smith with Eleanor Boyer, is not sustained. The proceeding before themagistrate, from which the appeal was taken, was a scire facias to have execution against the husband and wife of a former judgment rendered against the wife whilst sole. The first statement was defective, in not properly setting forth the parties and the cause of action.

The amended statement corresponded with the cause of action and the parties as they existed before the justice, and was therefore properly allowed to be filed. It must be considered as substituted for the erroneous one, and as that on which the issue was trying before the jury. The evidence went to substantiate it, and was therefore properly received. The settlement by the auditors of the administration account showed a balance in the plaintiffs’ hands for distribution, which was confirmed by the orphan’s court.

Mrs Smith was entitled to one-third of that sum, as the widow of the intestate, and it was a proper set-off against'the plaintiffs’ claim. The reason assigned for rejecting it was, the subsequent order of the orphan’s court of the 9th of February 1829, appointing three persons to apportion the assets in the plaintiffs’ hands, amongst the creditors of the intestate. But it appears, that not only has no report ever been made, but the order itself has never been taken out of the office.

Nearly five years had elapsed at the time of trial, without an effort that we know of on the part of the administrators to ascertain the claims of these creditors. It was the duty of the plaintiffs, by the fourteenth

section of the intestate act of 1794, to have this order carried intoexecution, and the legal rights of the widow ought not to be postponed, under such circumstances, upon a mere allegation that there are creditors. The plaintiffs may choose never to proceed, and thus keep her for ever at bay. Besides, the order directed the persons appointed to report by the 5th of May 1829, and it then expired by its own limitation.

So that, no decree of the orphan’s court was in existence, but that of the 11th of December 1828 confirming the report of the auditors, which found a balance of 337 dollars 5§cents, in the plaintiffs’ hands, for distribution. As the case will go back for trial, it will be in the power of the plaintiffs, and it will certainly be their duty if there are creditors, to cause their claims to be authenticated, and the assets to be appropriated to their payment without delay, and to give the defendants credit for their share of whatever may not be absorbed by creditors.

Judgment reversed, and venire facias ele novo awarded.