1814. ν. THOMAS. out, there was no action depending. That is begging the question. The same paper which contained the agreement to refer, contained also an agreement to enter an amicable action. Each must go in its order. The action is entered first, then follows the reference. This is so simple, so natural, so agreeable to the intent of the parties and the intent of the law, that I cannot consider it as at all doubtful. If the agreement had not been carried to the prothonotary till after the making of the award, the case would have been different, and would have fallen within the first section of the act. In that case it would have been necessary to prove the agreement by a subscribing witness; but it was carried by the parties themselves, and delivered to the prothonotary as the foundation of the proceedings. Having ascertained the act under which the proceedings were had, I will consider the objections to the proceedings themselves. · 11/ It is said, first that the action could not be instituted without a writ in the form prescribed by the twelfth section of the same act, 21st March 1806, by which it is declared, that "all writs of ejectment shall be in the form following "&c." But this is to be understood as applicable only to cases in which the suit is commenced by writ, and by no means as impairing the force of the first and second sections, by which all persons are permitted to enter suits without writs. The objects of this act are very different; one relates to arbitrations, the other to proceedings in court without arbitration, and it is the manifest intent of the act to encourage arbitrations. The second objection is that there is no declaration or description of the property demanded by the plaintiff. It has been more than once determined by this Court, that when the proceeding is by way of arbitration, neither declaration nor pleadings are necessary. We see the inconvenience very plainly. But such is the system establishsd by the legislature, and such it must remain until altered by a competent authority. The last and most serious objection is, that the award is so uncertain that no judgment can be entered upon it. It is in these words, "we find for the plaintiff by running a line "beginning &c." The line is well described, but the difficulty is, that one line comprehends no space. It is the duty of the Court to support the award, if they can, because the 1 case has been decided on its merits, and the objection is to form. From the agreement of the parties and the award itself, we understand that the plaintiff and defendant held adjoining lands. Then the dividing boundary being fixed, the meaning of the award is, that the plaintiff is to have the land up to the dividing line and adjoining his other land. Certum est quod certum reddi potest. The quantity may be ascertained by measurement. The plaintiff must take possession at his peril. If he takes land not included in the award, the Court will do justice on a summary enquiry. In very few declarations in ejectment is there any actual certainty. The plaintiff demands so many acres of land, so much pasture, so much wood, and situate in a certain county. But until it is shewn, no person could discover it from this description; and when it is shewn, it is of no manner of consequence whether the quantity accords with the declaration or not, provided it does not exceed it. Yet that is held good enough. In fact it is so uncertain, that the sheriff has a right to de[mand an indemnity before he delivers the possession; for he trusts to the plaintiff's shewing, not being able to make any thing out of the record. I am therefore induced to support the judgment entered on this award. If the defendant should think himself injured by the possession taken by the plaintiff, he may apply to the Court for speedy redress. YEATES J. It cannot be denied that it was the intention of the parties to settle a disputed line by judges of their own choosing. The meaning of their agreement plainly was, that an amicable action should be entered in ejectment, and f their respective rights be decided by the persons they had nominated. It does not plainly appear that the parties intended this reference should take place under the act of 21st March 1806, although the referees seem to have so considered it, by being qualified and returning their report under seal. But if it be necessary in order to effectuate the agreement, that it should be considered as having taken place under the practice which has obtained under the old defalcation act of 1705, the Court will so consider it, ut res magis valeat quam pereat... The entry of an action of ejectment presupposes a claim of lands by the plaintiff in the possession of defendant. The 11 VOL. VI. 2 U 1814. MASSEY υ. THOMAS. 1814. MASSEY V. THOMAS. former recovers only such part as he can shew title to. By such entry of an amicable action, the defendant waives the necessity of issuing a writ, and of course every thing contained in it. I cannot suppose that the legislature meant to prevent parties appearing without previous process. An early determination of the controversy seems to have been a favourite object. A controversy respecting the boundary line between two persons necessarily implies that their lands adjoin; consequently when the true division line is fixed, the parties respectively must recede from their former possession, or advance in their possession up to such line. The juxta position of their other lands readily determines on which side of the line their several lands lie. I think the award therefore sufficiently certain in ascertaining the boundary according to the submission. If the plaintiff below should take possession of land not found for him, the Court will interpose in a summary way, and grant the defendant below relief. I am of opinion, the judgment of the Common Pleas should be affirmed. BRACKENRIDGE . concurred. Judgment affirmed. Philadelphia, July 25. An assignment executed by an insolvent debtor, with an understanding, that part of the pro perty assigned use of his family, pects the proper THIS M'ALLISTER against MARSHALL. HIS was an ejectment for a brick messuage and lot of ground, situated on the south side of Chesnut street in the city of Philadelphia. The cause was tried before the Chief Justice in Novemshall be conveyed ber last, when by consent a verdict was entered for the to trustees for the defendant, subject to the opinion of the Court upon the is so far as it res- evidence, which by the report of his honour was as follows: The plaintiff, who was a bona fide creditor of Charles Marshall the defendant and his son Charles Marshall jr. at the time of the assignment hereafter mentioned, instituted not assent to the a suit against them in this Court to September term 1805, arrangement; and obtained a judgment at March term 1806, issued his fi. fa. the non-assenting creditors may for 2904 dollars 50 cents in December following, by virtue ty conveyed in trust for the family, fraudulent and void as to all creditors who do take it in execu tion. OF PENNSYLVANIA. 1814. V. MARSHALL. of which the premises in question were levied on as the of the defendant, and on the 5th of April 1807, M·ALLISTER property became the purchaser at sheriff's sale for the sum of 5000 dollars. At the time of the sale the plaintiff had notice of a claim to the property by Thomas Parker and others, trusteos of the defendant's wife and children; and upon receiving his deed from the sheriff, he paid him only 140 dollars 59 cents the amount of the costs, and retained in his own hands the amount of the purchase money, to wait the event of this suit. possesThe title under which the defendant asserted his sion, stood as follows: Charles Marshall and Son having stopped payment, a general meeting of their creditors took place in the city of Philadelphia on the 8th of January 1805, when Henry Pratt, John Morrell and William Smith, were chosen assignees, and were directed to examine the books, accounts and affairs of the debtors, and to report to the creditors at another meeting, their opinion of measures best for the creditors, and also for Charles Marshall and Son. The number of creditors who attended this meeting, or the amount of debts due to them, did not appear; nor did it ap pear that any report was made. A power of attorney bearing date the 28th of January 1805, was executed to the persons above named as assignees, by fifty seven of the general creditors, authorizing them "to settle, compromise with, and receive from the said "Charles Marshall and Son jointly or separately, for our use ❝and on our accounts, such monies, goods, properties or "effects to be assigned to our use by the said Charles Mar"shall and Son jointly or separately, or any other person or persons on their account, as they the said attornies may 340 1814. υ. "the same, and all other money to be received under this "trust, equally and rateably among us, in proportion to our M'ALLISTER " several demands." The execution of this power by 37 MARSHALL. creditors was proved by a subscribing witness on the 5th of April 1805, by one other on the 6th, by 15 others on the 16th August following, and the execution by four others was not proved. A like power was given by five lien creditors, saving their respective liens, dated the 31st of January 1805, and executed on the 9th, 11th and 12th of February. The plaintiff never signed the power, nor assented to the proceedings. On the 14th of February 1805, Charles Marshall and Son, by their deed duly executed, reciting the two powers of attorney, in consideration thereof and of one dollar, transferred and conveyed to the said assignees all their property real personal and mixed, including the premises in the ejectment, which then belonged to the father, in trust, that they or the survivor should sell the real estate and collect the debts, and pay and distribute the money thence arising, in equal proportions to and among the joint and several creditors of the said Charles Marshall and Son, or either of them, (provided the sum to be paid to the separate creditors of Charles Marshall junior did not exceed 400 dollars) "who shall accept the same in full and absolute satisfaction "and discharge of their respective claims and demands, and "who have already executed, or shall, if resident in America, "within six months from the date hereof, or if resident in "Europe, within twelve months from the date, execute the "said power of attorney." The witnesses to this deed were Benjamin Marshall and Joseph Scott. By deed dated the next day, the assignees "by virtue and "in pursuance of powers vested in them by the creditors of "Charles Marshall and Son, and in consideration of one "dollar paid to them by the grantees, and for divers other "good considerations," conveyed to Thomas Parker, Joseph Morris, and Thomas Morris junior, the premises in the ejectment, a ground rent of 15l. 58. Od. per annum, and all the plate and household furniture in the house, “in "trust for the sole and separate use of Patience Marshall, "wife of the said Charles Marshall, for her life, and after "her death for the use of her daughters Elizabeth, Pa-. 3 |