subject. How Black, as executor, became indi- | the amount of security, and it is entirely within vidually responsible for the note of his testator the discretion of the Court to fix this. we are not informed. As, however, there are various ways by which he might have made himself so responsible, we must assume that the auditor based his finding upon sufficient evidence. His finding upon this point was not excepted to in the Court below. In the absence of the evidence, we must presume the auditor and the Court were right. It is not sufficient for the appellant to allege error in the decree. He must show it. This has not been done. This appeal was taken by the accountant as assignee of H. W. Black. As such assignee he had no right to appeal. He has no standing to interfere between creditors. It is true the record shows that he was also a creditor; but he does not appeal in that capacity. We dismiss the appeal, however, upon other grounds. The decree is affirmed, and the appeal is dismissed, at the cost of the appellant. Opinion by PAXSON, J. SHARSWOOD, J., ab sent. Common Pleas—Law. C. P. No. I. June 22, 1878. Commonwealth to use of Dunn v. Chapman. Practice-Sheriff's inter pleader-Amount of claimant's bond-Security to be measured by value of goods taken in execution without reregard to amount of the judgment. Rule to show cause why the claimant should not be allowed to enter security in double the actual value of the goods taken in execution, instead of double the amount of the judgment. A petition for a citation to executors to file an account must show the interest of the petitioner in the estate-Other requisites of such petition Orphans' Court practice. Sur motion to strike off special replication. A petition was filed on July 1, 1870, by Anna V. McMurray and William McMurray her husband, setting forth that the said Anna was a daughter of the decedent; that decedent had. died in 1844, and by his will appointed his widow and John Yard executors; that in 1856 the executors filed a partial account, but that since that time, although much money ought to have come into their hands, they had filed no further account; and prayed that a citation might issue to the executors to show cause why an account should not be filed. The widow and executrix made answer, that the petitioner by an assignment dated November 9, 1866, joined with a sister, and "granted, bargained, conveyed, assigned, sold, and set over" unto the respondent all her "right, title, and interest, property, claim, demand, or expectancy of, under and out of the property or estate of the late Sargent Davis" for a consideration of one hundred dollars; that Sargent Davis, junior, son of the respondent, and brother of the petitioner, by a certain assignment in which his wife joined, assigned in like manner and form all of his interest, etc., in his father's estate to The form of the bond usually entered by the the respondent; that, therefore, the petitioner claimant in a sheriff's interpleader suit requires is forever debarred from any and all claims security in double the amount of the judgment; against the estate of the decedent, and that yet neither the statute nor rule of court specifies having no further interest in the estate the peti This was a sheriff's interpleader under the Act of 10 April, 1848. The amount of the judgment in execution was $31,739.69; while the actual value of the goods levied upon, as appeared from depositions taken in the case, was about $760.00. W. F. Johnson, for rule. tioner is not entitled to an account by the execu- | executrix was decreed fraudulent and void, and the executrix was directed and commanded to tors. John Yard, executor, made answer, that since execute a reconveyance to the petitioner of all the last account was filed he had been discharged by the Court. The replication of the petitioners set forth that, on March 26, 1870, a bill in equity was filed in the Supreme Court at Nisi Prius, praying that the deed of assignment referred to in the above answer might be declared fraudulent and void, and that the respondent might be decreed to execute a reconveyance to the repliant; that on December 30, 1874, a decree was made as prayed for, and that on February 28, 1878, the respondent made such reconveyance. F. C. Brewster (F. E. Brewster with him), for the motion. The replication is special and contravenes Rule IX, S. C. Eq. Rules, p. 44, § 47. The petition should have been amended upon motion of the Court. Ibid. § 48; Prax. Reg. 372. Junkin and R. R. Smith, contra. June 29, 1878. THE COURT. This proceeding is to compel the executor and executrix of the will of the decedent to file a further account. It appears from the answer of the executor that an account was filed in August, 1845, duly confirmed by the Court, and on February 17, 1860, upon his personal application he was discharged. He also alleges that no moneys of the estate have since been received by him, nor has he acted in any manner as such executor. and every interest and estate to which she may If These allegations are a sufficient reply to the petition, and as to the executor, cast the burden upon the petitioner of showing the receipt or collection of assets of the estate since the confirmation of the account. The executor, how-will or intestate law. So in this case facts should ever, was not alone in the administration of the be alleged, not suppositions or beliefs, and it estate. His colleague, the executrix, shows as a should be distinctly averred that the executors cause against the granting of the petition, have been in the receipt of moneys or other although the latter is singularly defective in not assets of the estate since confirmation of their averring the petitioner's interest in the estate, prior account, together with the sources whence leaving such to be inferred from her relationship the same have been derived as fully as within to the decedent, that petitioner sold and con- the knowledge of the petitioner, so that the veyed to the respondent all her right, title, and Court may be informed and the executors reinterest, property, claim, and demand, or ex-ceive notice of all they are required to answer. pectancy of, under and out of the estate of the decedent, by reason whereof she, the petitioner, had no further interest in said estate. While this allegation of the executrix was at the time of filing her answer technically true, yet subsequently, by virtue of proceedings instituted in the Supreme Court, the deed of assignment and conveyance from the petitioner to the As already stated, no further order can be made upon the executor; his answer being a complete denial, as to him the petition is dismissed. And as respects the executrix, the petition being so defective, we must decline at present to make any order, with leave, however, to the petitioner to amend the petition. WEEKLY NOTES OF CASES. VOL. VI.] THURSDAY, AUG. 22, 1878. Supreme Court. Oct. '74, 24. April 1, 1878. Siewers et al. v. Commonwealth to use of Hauseman. On Aug. 7 following, Beck and Anthony went together to the office of the prothonotary, Beck having the certificate of search, where the following conversation and incidents took place, as [No. 2. testified to by Beck, viz.: "I took this paper out of my pocket, and, said I, Mr. Siewers (I reached it to him in his own hand), is this correct? Yes, said he, it is correct. Now, said I, Mr. Siewers, I want it understood that everything should be correct. I want you to tell me whether I can depend upon it. Yes, he said, it is correct. Well, said I, I want you to look over it again. And he took the paper and walked back to his books again, and kind of searched-but a poor one, I thought —and walked up to me again. Said he, Mr. Beck, there is nothing against Mr. James Anthony in this office but $450; that is, the Peters judgment. Isaid, Mr. Siewers, are you sure of it? Oh yes, said he, I am. Now, said I, Mr. Siewers, if everything is correct, if the certificate is correct, I want you to draw up a note for $2500. Then he reached back this paper into my hand. I put it into my pocket, and have had it ever since. He drew up the note, a judgment note. Counted the money down for Anthony. He signed the paper and took the money, and I reached this judgment over to Siewers, and put it upon record." Prothonotary-Liability of, for mistake in search A public officer furnishing a search is not liable for a mistake in it, except to the person who employs him. But where a prothonotary made such a search for A., who, desiring to borrow money, took the search to B.'s agent for that purpose, and such agent, not relying upon it, went with A. to the officer, who reaffirmed its correctness, and at the agent's request made a new search of his in dex, and returned the certificate to the agent, again affirming its correctness: Held, to be such a republication of the original search as to render the officer liable to B. in damages for injury resulting from an omitted judgment. Held further, that the question of fact of such republication was properly left to the jury. I On the other hand, Siewers, the defendant, testified that no conversation such as sworn to by Beck took place: that he did not on that day see the certificate; and never saw it from the day that it was made until after the suit was com and Anthony came to his desk where one or both of them requested him to write the judgment note, which he did. Error to the Common Pleas of Carbon County. Debt, by the Commonwealth to the use of Hauseman upon the official bond of J. H. Siew-menced, and that all that occurred was that Beck ers, late Prothonotary of Carbon County. Upon the trial the following facts appeared in evidence. In 1868 the defendant, Joseph H. Siewers, was prothonotary of the Court of Common Pleas of Carbon County. On July 30, of that year, one James Anthony procured from him a judgment search against himself, the said Anthony, and paid for said certificate. The following is a copy of the certificate:- ย. Daniel Peters James Anthony, T. T. G. F. Anthony, Princ'l. I, J. H. Siewers, prothonotary of the Court of Common Pleas of Carbon County, do certify that the above judg; ment is the only one against the James Anthony entered here within five years. July 30, 1868. J. H. SIEWERS, The real estate of Anthony was subsequently sold by the sheriff, and realized a sufficient sum to pay Hauseman in full, had it not turned out that a judgment in favor of one D. H. Straub for $750 had been entered of record before, and was a prior lien to that of Hauseman, but which judgment of Straub had been omitted from Hauseman's search. This omission was not denied. The Court (DREHER, P. J.) charged, inter alia, as follows: The plaintiff, Mr. Hauseman, claims that he has suffered damage in the loss of money loaned to James Anthony, in consequence or by reason of a false certificate of search made by Mr. Siewers as prothonotary. The prothonotary is the custodian of the records of the court. Among the records are judgments entered either upon confession or by suit and proper proceedThis search was taken by Anthony to one ings. Among other duties of the prothonotary Thomas Beck, who was acting as agent for Alex- is that of making searches for judgments and givander Hauseman, plaintiff below, in loaning outing his certificate of the result of such search, for a certain sum of money, with a request for a any person who may choose to apply to him loan. therefor, and pay him his fee allowed by law.. J SEAL OF COURT OF 5 ct. U. S. VOL. VI.-2 In the accuracy and truthfulness of such search and certificate the prothonotary is responsible to the person for whom it is made. He is not responsible to anybody else. A person, desiring to have the personal pecuniary responsibility of the prothonotary or his sureties, must himself apply for and have the search and certificate made. He need not apply in person. It is sufficient if the application is made and the search and certificate procured by his agent for him. After stating the facts, and reciting the testimony of Beck and Siewers as above given, he further charged: [This is briefly what Mr. Beck testified to as to what occurred in the prothonotary's office. Now we have to say to you that if you should find the facts to be as just stated, in regard to what occurred in the prothonotary's office, then the plaintiff will be entitled to recover, and your verdict should be in his favor.] The defendant presented the following points:(1) That as the evidence is uncontradicted that the defendant, Siewers, made out a certificate of judgments at the request of James Anthony, and delivered the same to James Anthony on July 30, 1868, who paid him therefor at that time, the plaintiff cannot recover. Refused. (2) That as James Anthony, at the time he ordered the search, and received and paid for the search, was not the agent of Hauseman for that purpose, there was no breach of the condition of the bond, and the plaintiff cannot recover. Refused. (3) That if the jury believe that, at the time James Anthony ordered the search and received and paid for the search, he was not authorized by Hauseman to procure the search and certificate, then there was no breach of the condition of the bond, and the plaintiff cannot recover. Refused. Verdict for the plaintiff for $673.20, and judgment thereon. The defendants took this writ, assigning for error, the admission of the certificate of search, that portion of the charge within the brackets, and the refusal to charge as requested. E. J. Fox (with whom were Charles Albright and Allen Craig), for plaintiff in error. As to what occurred on August 7, even admitting Beck's evidence to be uncontradicted and true, it is submitted that it is not sufficient in law to allow the defective certificate to bind the prothonotary and his sureties; because, first, the certificate was never issued to or made out for either Beck or Hauseman. If either of them desired the personal and official responsibility of the prothonotary, he should have obtained a new search, and paid for it. This is the rule laid down in Commonwealth v. Harmer and Houseman v. Girard M. B. & L. Ass'n (supra). But a new search was not obtained. Secondly, the parol affirmance by the prothonotary of the correctness of the old certificate, was not the obtaining of such a new search as legally bound the officer to Beck or his principal. There was no privity between Beck and Siewers, no memorandum, no consideration, nothing upon which Beck or his principal could hold the officer or his sureties liable. Edward Harvey (with whom were James S. Loose and Jno. D. Bertolette), for defendant in error. The only question here is, was the certificate issued to the plaintiff below? We claim that it was, and do not claim as assignee or alienee of Anthony. The evidence shows that a new certificate of search was virtually issued to Beck on August 7. The interview on that day between Beck and the prothonotary was a republication of the search of July 30. What took place then was certainly between Beck and the officer, and whatever privity there was certainly existed between them. The cases cited by the plaintiff in error have no bearing upon this case, for in them recovery was sought as assignee or alienee of the party for whom the search was made. May 6, 1878. THE COURT. The learned Judge below followed closely the current of decisions in this State. He held that for the accuracy and truthfulness of his search and certificate, the prothonotary is responsible to the person for whom it was made and not to others. (Commonwealth v. Harmer, 5 Amer. Law Reg. 214, N. S.; also 6 Phila. 90; Houseman v. Girard L. & B. Ass'n, 31 P. F. Smith, 256.) The reasons given in Commonwealth v. Harmer appear to be satisfactory. The officer owes a single duty, which is to him who employs him to search and certify. If a new duty to another rises, it must be because of a new demand and a new privity. If without this new privity, successive liabilities can arise to others, the cause of action necessarily changes, both as to the time of its origin and the measure of the loss, and thus the statutory limitation as to official bonds will be postHouseman. Girard M. B. & L. Ass'n, 31 Sm. 256; poned from time to time, and a variable standard It is not denied that the prothonotary is liable in damages for a false certificate of search delivered to the party who asks and pays for it; but we do deny that such liability extends to any other person. The duty of the prothonotary under the law is specific and precise, and no one has a right to hold him officially responsible for the accuracy of a certificate of search unless he has himself, or through his agent, asked and paid for it. This is the doctrine of all the cases. Commonwealth v. Harmer, 6 Phila. 90. 2 WEEKLY NOTES, 573. the Orphans' Court of Lancaster County, dismissAppeal of Lavinia Kuhns from the decree of ing her petition for a review of the account of John B. Stehman, her late guardian. of recovery arise with each successive claimant | tions of fraud were made out, to relief, notwithstanding the who holds the certificate. This is not only harsh lapse of time. and unjust to the officer, whose liability is thus made to continue onward without new compensation, or a fresh search. A fresh search may reveal the omitted incumbrance, and thus give the officer a locus penitentiæ, as well as an equivalent compensation for the new risk to be assumed. The plaintiff in error had the benefit of this view of the law in the charge. ness. The petition, presented January 6, 1877, set forth that the petitioner was the daughter of Isaac R. Kuhns, late of Lancaster County, who died inBut the facts of this case are wholly different was appointed her guardian August 24, 1805; testate in October, 1864; that John B. Stehman from those in the Commonwealth v. Harmer, and that her said father having died seized and postake it out of the rule therein stated. Hence sessed of considerable real and personal estate, the Court properly left it to the jury on the facts. his administrators sold his real estate by order The certificate was given, it is true, to Anthony, of the Orphans' Court, and filed their account, the borrower of the money from Hauseman, but which was duly confirmed June 18, 1866, whereby Beck, the agent, not relying on it went with An- it appeared that there remained in their hands for thony to the officer who reaffirmed its correct- distribution the sum of $19,075.03, of which the Not content with this, Beck requested a share of the petitioner was $5813.45, the whole new search, which he (the prothonotary) made, of which share was immediately thereafter paid and returned the certificate to him, saying again over by said administrators to the respondent; it was correct. Upon this, and at Beck's request, that the respondent did not at any time during the prothonotary drew up a judgment note, which the minority of the petitioner file any statement was signed and handed over to be entered, and or inventory of her property in his hands, or any the money then paid by Beck to Anthony. Cer- guardianship account. That the petitioner came tainly this was a republication of the certificate of age October 8, 1870, and that soon afterward, made directly to Beck, the agent of the plaintiff; it was a renewal and delivery of the certificate by the prothonotary himself directly to the plaintiff, and therefore there was not only privity, but liability to him on the part of the officer. He must then respond in damages for his omission, on the principles of Zeigler v. Commonwealth (2 Jones, 228); McCarahan v. Commonwealth (5 W. & S. 21), and Houseman v. Girard L. & B. Ass'n (supra). Judgment affirmed. May, '78, 122. to wit, April 10, 1871, the respondent filed his guardianship account, in which he charged himself as having received from the administrators of Isaac R. Kuhns, deceased, the sum of $4722.99, which sum, with interest, was the whole amount with which he charged himself therein; whereas in fact he had received $5813.45, as before stated, making a difference of $1090.46, for which he has never rendered any account; that said guardianship account was confirmed nisi June 19, 1871, and no exceptions were filed thereto. 66 The petitioner further represented that during her minority, in 1868, she removed to Ohio, and had ever since continued to reside there; that she was ignorant of the amount of her father's May 8, 1878. estate, and of her share therein; that she reKuhns's Appeal. ceived,no notice or knowledge of the filing of Guardian and ward-Petition of review-Limi- until the confirmation nisi had become absolute; said guardianship account, or of its confirmation, tation Fraudulent concealment of fact-Act that she was then assured by the respondent of 13 Oct. 1840. that the sum with which he had there charged himself was all he had received for her from said estate, and that, relying on his integrity and on the truth of his said assurance, she accepted the same and took no steps to investigate the truth thereof; that she had no reason to suspect the falsehood of said assurance until recently, and within the last two months, when she, for the first time, discovered the facts herein before set forth, and which he fraudulently concealed from her." She therefore prayed to have the decree confirmation opened and reviewed, and the Held (reversing the decree of the Court below), that the account corrected and surcharged, and that a petitioner was entitled to a rehearing, and, if the allega- | citation might issue, etc. Where there has been a fraudulent concealment of fact by a guardian, the limitation of the Act of 13th October, 1840, 1, begins to run not from the final decree of confirmation, but from the discovery of the fraud. After the lapse of five years from the date of the final decree of confirmation, a petition for a review of a guardian's account was presented by his former ward, making material allegations of fraud, and averring that the fraud had not been discovered until within two months before the filing of the petition. The allegations of fraud were denied by the guardian's answer, and the petition was dismissed by the Court below: of |