SINNICKSON V. GALE.

ded to give the sheriff or other officer, a commission for sales over and above the amount required to satisfy the execution. It is evident from the language of the proviso, as well in the act of 1823, as in the act of 1830, that the Legislature contemplated a commission, only on the amount raised for, or secured to the party in whose favor, the execution issued--such indeed I should hold to be the meaning of the act, even if there were no such proviso clause contained in it. The language of the fee bill, passed in 1799, (Rev. Laws 488,) is two cents on every dollar, to be computed on the amount of the debt or the damages, paid or secured to the plaintiff.". The object of the act of 1823, as indicated by its title, was "to reduce fees and costs of suit"-and the act of 1830, now in force, is a "supplement" to that act. But the effect of the construction contended for by the Sheriff, would be, in all cases, when there happens to be an excess of sales, greatly to enhance the costs. It is true, the sheriff must receive, and respond to the defendant in execution, for the surplus money, or bring the same into court, when required to do so; and this casts upon him, some burden and may expose him to some risk, but we cannot on that account, suppose, that the legislature meant to offer him a premium for selling more of a defendant's property, than was necessary to satisfy the claim. It may indeed, sometimes happen, as in this case, that the property is indivisible, and must be sold entire ; and when that is the case, and the sales exceed the sum required, we can only say to the sheriff, you took upon you the office cum onere.

Let commissions be allowed only on the sum raised for the plaintiff. FORD and RYERSON, Justices concurred.

ROSS v. WARD.

On Certiorari to a Justice of the peace.

A constable's return of service of a summons, that he read it to the defendant, but omitting to state the delivery of a copy, or that no copy was required, is defective, and cause for reversal.

A summons to appear "at 12 o'clock in the afternoon, to answer S. W. trespass on the case $100 in a plea of: Hereof fail not," is insufficient, and ground for reversal.

The time for appearance, and the sum demanded, should be in words at length. Per Ch. J. and Ford J.

J. W. Miller for plaintiff in Certiorari.

D. Haines for defendant.

The opinion of the court was delivered by,

HORNBLOWER, Ch. J. This was an action of trover brought by Ward, the defendant in Certiorari against Ross the plaintiff in Certiorari: Ross did not appear at the return of the summons, and the Justice proceeded to try the cause, and rendered judgment against him, for fifty-three dollars damages, with costs. The counsel for Ross moves to reverse this judgment, on several grounds and,

1st. Because, it does not appear by the constable's return, that the summons was legally served.

In support of this reason, the following cases were cited. Viz. Layton v. Cooper, Penn. R. 63. Rape v. Titus, 6 Halst. R. 314. and several others referred to in Halst. dig. 102. B.

The return of the constable in this case, is in these words: "I served this summons on defendant by reading it to him, September 20th 1836." (Signed) “J. S. Edsall constable," The only error (if it is one) that I can perceive, is that the constable has not stated that the defendant did not require a copy, and this I am inclined to think is fatal to the proceedings-The statute prescribes two modes of making a personal service of a summons; one is by reading it to the defendant, and the other by reading it to him and giving him a copy when required; and the constable is directed to endorse thereupon, the time and manner of service. (Rev. Laws 630. s. 6.)

Now if the officer read the summons to the defendant but refused or neglected to give him a copy, though requested to do so by the defendant, it was not a lawful service; and the defendant was not bound to appear-A Justice has no authority to proceed in the absence of a defendant, unless it appears to him, by the constable's, return that he has been duly summoned; (Layton v.

Ross v. WARD.

Cooper, Penn. R. 62) but how could the justice know in this case, that Ross had been lawfully summoned? How could he know that a copy of the summons had not been required? He could only infer or presume that it had not been, from the silence of the constable. But this he had no right to do. The justice must enter the return upon his docket, so that it may appear of record, that he had a right to proceed in the absence of the defendant, and nothing can be supplied by intendment.

Again, the return ought to be such, that if not true, an action for a false return may be brought against the constable. Suppose in this case the defendant did require a copy and it was refused to him; how can he maintain an action for a false return? The return is true, so far as it goes: but if the constable had gone further, and returned, that "no copy was required,” though it would have justified the justice in proceeding, yet the defendant might have sued the constable for a false return, if a copy had been demanded in fact. It is true, I do not find any case that goes so far, but I think the reasoning of the court in Layton v. Cooper Penn. R. 62, Steddiford v. Ferris 1 South. R. 108, Rape v. Titus. 6 Halst. R. 314, and Cobb v. Decker 1 South. R. 119, justify us in requiring that the constable state in his return, if such was the fact, that no copy was requested.

2d. Because the summons itself was defectivc and void;-and I think it was so. If the defendant understood it, when it was read to him, the constable must have supplied many words that are not in it; and if he read it verbatim et literatim, it must have been unmeaning and unintelligible to the listener, The summons is as follows; "summon Isaac Ross to appear before me at Ward's Hotel in the township of Hardyston on the 30th day of September inst. at 12 o'clock in the afternoon to answer Stephen Ward trespass on the case $100 in a plea of; Hereof fail not." Now I do not think that the defendant was bound to understand hieroglyphics, nor even such abbreviations as are found in this paper. Nor is he bound to transpose words in order to make sense of them. The process of a court, requiring the personal appearance of a party, onght to be in words at length, especially as to the time when he is required to appear and the sum demanded of him, and not in doubtful and equivocal contractions. (Cole v. Petty Penn. R. 60.

Ross v. Ward.

3d, A third ground of reversal insisted upon, is that the defendant was misled, by a promise of the justice that he would adjourn the cause. But this reason is not sustained by the affidavits which have been read. From what passed between the defendant and the justice, the defendant probably expected an adjournment, but he has failed to shew any such promise by the justice, as would subject him to the imputation of practicing a deception on the defendant, or as justified the defendant in expecting an adjournment. For the reason first assigned let the judgment be reversed.

FORD, J. concurred.

RYERSON, J. gave no opinion.

DEN ex dem. SHARP, v. HUMPHREYS, and THIBAULT.

In ejectment for lands in Salem,

A devise of land &c. "to E. S. during his natural life, and after his death. to go to his male heirs, equally to be divided, after sale of the same, by order of the Orphan's Court ;" and a coadicil giving "full and ample power to the Orphan's court to make order for the sale of part of the same property, on application of any of the heirs, for that purpose, and notice given to the other heirs, of the application to said court, which is thereby authorized to make deeds for the same, which shall be good and effectual in law and equity; and the money arising thereon to be paid to the male heirs of E. S. equally to be divided, share and share equally," is a devise of the land to such heirs, liable to be sold only on application of an heir, to the Orphan's court: and the land will go to the surviving male heir, the others having died intestate and without issue.

The Orphan's court have no power to make such deed of conveyance.

A devise to a man with power to sell the premises in fee-simple, for his own use, is in reality equivalent to a devise to him to authorize a third person to make such sale, and in either case, it by construction and inevitable implication, invests him with the whole estate,

Per HORNBLOWER, Ch. J.

16 25 54e 618

Den ex dem, SHARP V. HUMPHREYS and al.

A sheriff's sale of the devised property, by virtue of an execution issued against testator and others, two years after testator's death, is irregular, and the sheriff's deed to the purchaser at such sale, conveys no title to the estate. Per Ch. J. and RYERSON J.

By the devise in the will, the whole of the property is vested in the male heir's of E. S. immediately after his death, subject to a sale on a certain contingency. Per FORD, J. Whether the devise is to be considered a devise of the land itself to the male heir's of E. S. or only a power to sell, and to distribute the proceeds, RYERSON J. dubitatur,

Jeffers and Southard for plaintiff,

Kinsey and I. H. Williamson for defendant.

HORNBLOWER, C. J. This cause comes before the court on a case made at the Salem Circuit-the premises in question, belonged to Samuel Sharp who died seized thereof. By his will, bearing date the 16th May 1805, he devised the premises, in the words following: "I give and bequeath to my brother Edward Sharp, the Grist Mill and lands annexed, in Sharptown, and joining doctor Hunt's, and the Cedar Swamp on Reed's Branch; all the above items, I give and bequeath unto him, during his natural life, and after his death to go to his male heirs, equally to be divided, after sale of the same, by an order of the Orphans' court." The testator afterwards made a codicil, without date, the only part of which, that has any relation to the matter in question, is in the following words. "Item, I do hereby give full and ample powers, to the Orphans' court, to make order for the sale of the Mills above described, on application of any of the heirs for that purpose, aud notice given to the other heirs, of the application to said court; and that said court are hereby duly authorised to make deed or deeds for the same; which shall be good and effectual in law and equity; and the money arising thereon, to be paid to the male heirs of Edward Sharp, equally to be divided, share and share equally" The testator, then by a residuary clause, gives all his real estate, not disposed of by his will, to his brother Edward Sharp, in fee. Samuel Sharp, the testator, died in July 1805, without issue; whereupon his brother Edward Sharp, the devisee for life, entered upon and took possession of the premises in question, and continued in possession thereof until the 27 December 1816, when he conveyed. the same as herein after mentioned-On the 30th April 1834,