of cases, the effect of accident, depending on the term of expression habitual to the scrivener, who seldom knows anything of the technical difference between them. If the rule of the ecclesiastical courts were applicable to land, it would be easily evaded by using words of limitation instead of words of condition; and thus it would have no greater effect on devises in restraint of marriage, than the statute of uses had on trusts, which worked a change only in the words necessary to create them.

The difficulty in the application of the common-law rule to the case before us, is the want of an entry to determine the widow's estate for the condition broken, which is generally necessary to divest a freehold, though not to divest a term for years. Here, however, an entry was impossible, for the land was sold before the widow's marriage. Had the condition been broken before the decree, there might have been an actual entry, though perhaps even then it would not have been indispensable; but, since it has been converted, her right to the money substituted for the land, is extinguished by the simple adverse claim of it. Her administrator, therefore, is not entitled to recover.

Judgment reversed, and judgment rendered for the plaintiff for three hundred and thirty-four dollars and costs of suit.

CONDITIONS IN RESTRAINT OF MARRIAGE, ANNEXED TO LEGACIES OR DEVISES, WHEN VOID: See the subject discussed at length in note to Coppage v. Alex. ander's Heirs, 38 Am. Dec. 156.

MUSSELMAN v. ESHLEMAN.

[10 PENNSYLVANIA STATE, 394.]

PURCHASE BY ADMINISTRATOR AT HIS OWN SALE is voidable only by the beneficiaries or their heirs, who may elect, within a reasonable time after arriving at majority, whether to affirm or disaffirm such sale. Such purchase can not be disaffirmed by the beneficiaries twenty-one years after the sale, and ten years after the youngest child of the intestate has attained majority.

EJECTMENT. The land in question belonged to D. Eshleman in 1819. He died in that year. The defendant was appointed administrator, and upon a sale by order of the orphans' court purchased the land in 1824, and since then has been in possession. The plaintiff, the youngest child of the intestate, attained his majority in 1837. This action was brought in 1848. The further facts appear in the opinion.

Frazer and Parke, for the plaintiff in error.

Franklin and Stevens, for the defendant in error.

By Court, BURNSIDE, J. In the case of Painter v. Henderson, 7 Pa. St. 50, it is declared that the law has wisely forbidden a trustee, executor, or administrator to act in the double capacity of seller and buyer. Such a transaction is a legal fraud. But a deed in such a case is not absolutely void; and, therefore, no party to the deed, or others claiming under him, are allowed to repudiate it. Neither can strangers avail themselves of such an objection. It is voidable only by the cestui que trust and his heirs. Nor can the administrator purchase by a third person, with a view of having the conveyance afterwards made to himself. Where there is actual fraud, the deed is absolutely void. No actual fraud is alleged or pretended, or could be demonstrated in this case. It is true, that the land was sold at a time when lands in Lancaster county were depressed. Eshleman directed McCurdy to bid it up to sixty dollars per acre, and this was deemed by the neighborhood a full price at that time.

The guardian of the heir of Musselman, or the heirs themselves, as they came of age, had a right to elect whether they would have the land: whether they would affirm or disaffirm the sale. In what time, or on what terms, is not distinctly settled; but the election ought to be made in a reasonable time. This is not a fit case for settling that matter; it presents no question of doubt or difficulty. Here the defendant was more than twentyone years in the actual adverse possession, and the suit was not brought until more than ten years after the youngest child reached the age of maturity. Courts of equity act in obedience to the statute of limitations: Campbell v. Walker, 5 Ves. 678. The cases that require twenty-one years after the heirs come of age, are cases of actual fraud, where the deed is absolutely void, or cases of after-discovered fraud, where the statute will begin to run from the discovery. This sale was voidable by the policy of the law, but the action to recover the land was too late. Judgment affirmed.

RIGHT OF EXECUTOR OR ADMINISTRATOR TO PURCHASE AT HIS OWN SALE. Such sale is voidable at the instance of the heirs: Pearson v. Moreland, 45 Am. Dec. 319, and note; Bailey v. Robinsons, 42 Id. 540, and note citing prior cases in this series; Buckles v. Lafferty's Legatees, 40 Id. 752. The executor or administrator can not avoid such sale if it is ratified by the beneficiaries: Scott's Ex'x v. Gorton's Ex'r, 33 Id. 578, and note.

FITCH'S APPEAL.

[10 PENNSYLVANIA STATE, 461.]

SHERIFF CAN NOT APPROPRIATE MONEY REMAINING IN HIS HANDS, after payment to the execution creditor, in order to satisfy an individual debt due him by the execution debtor, as against the assignee of the latter.

APPEAL from the common pleas.

McCormick, for the appellant.

Kunkle, for the appellee.

The opinion states the facts.

By Court, BELL, J. It is not pretended the sheriff's claim is sanctioned by the fee-bill. Giving to his testimony, heard in. the court below, all he can possibly claim for it, we have the case of a private debt due to him individually, for services rendered to the defendant in the execution. We are thus presented with a novel attempt by a sheriff to appropriate the remaining avails of an execution in his hands, in satisfaction of his private debt, as against the assignee of the execution debtor. How the court below could have hesitated at once to dispose of such a claim, it is somewhat difficult to imagine. There is no pretense the sheriff had a lien upon the fund, and any supposed right to set off the debt due to him, as against the transferee of the defendant, or even against the defendant himself, is repudiated by all the authorities, as is shown by Miles v. Richwine, 2 Rawle, 199 [19 Am. Dec. 638], and Irwin v. Workman, 3 Watts, 357. After payment of the execution creditors, the residue of the money levied belongs to the defendant, just as the sum necessary to satisfy the execution belongs to the plaintiff. The last case is therefore directly in point, so far as the notion of set-off is involved. To permit a sheriff, or other executive officer, thus to intermingle his private affairs with his official duties, would be attended with the most monstrous results. The law, therefore, wisely forbids it. It gives him no grasp upon the money raised, further than is warranted by his writ. Beyond this, he has not a shadow of right to detain the avails of his sale, nor can he assume the character of debtor in respect to the fund, so as to invest himself with the right of one. If he has a claim against either the plaintiff or defendant in the execution, he is left to his remedy at law. But did this admit of the slightest doubt, it would vanish upon payment of the money into court. After this, any other simple contract creditor of the original defendant would come in, with the same show of reason, to demand an application of the sum in custody, in dis

charge of his debts. In this particular the sheriff stands on no higher or better ground than any other person stranger to the legal process. In directing the money to be paid to the sheriff, the common pleas committed an error. It clearly belonged to Barron's transferee, Fitch.

Were this otherwise, the court should not have ordered the money to the sheriff, irrespective of his right to it as a creditor. Being in gremio legis, by the payment into court, it was the duty of the court to determine which of the claimants was entitled to it. They could not shuffle off this duty by turning round the defendant or his assignee to a suit at law.

Decree reversed, and it is ordered the said money in court be paid over by the prothonotary of the said court to the said John W. Fitch, as assignee of the said Michael Barron.

SHERIFF CAN NOT APPROPRIATE MONEY OBTAINED UNDER AN EXECUTION to the satisfaction of his own claim, before payment of the demand of the execution creditor: Harwell v. Worsham, 37 Am. Dec. 572.

KRAUSE V. DORRANCE.

[10 PENNSYLVANIA STATE, 462.]

ATTORNEY AT LAW, IN THE ABSENCE OF FRAUD OR NEGLIGENCE, is not liable for failure to turn over money collected to his client, until demanded so to do.

ASSUMPSIT for money had and received against two attorneys. The lower court ruled that the client need not make a demand for the money collected before bringing suit. This was assigned The further facts appear in the opinion.

as error.

McCormick and Boas, for the plaintiffs in error.

Rawn, for the defendant in error.

By Court, ROGERS, J. An attorney is not liable to suit for money collected for another, till demand, or direction to remit. As is said in one of the cases, he is not considered in default until he receives orders from his principal. This principle seems to be well settled in several states, including New York, Virginia, Alabama, and Arkansas, as may be seen from the following cases: Taylor v. Bates, 5 Cow. 376; Ex parte Ferguson, 6 Id. 596; Rathbun v. Ingals, 7 Wend. 320; Taylor v. Armstead, 3 Call, 200; Cummins v. McLain, 2 Ark. 402; and Mardis v. Shackleford, 4 Ala. 493. In Maine it has been ruled by the same judge in both ways: Staples v. Staples, 4 Me. 532, and Coffin v. Coffin, 7 Id.

298. This is a case of the first impression in this state, but we feel disposed to follow the current of decisions, for we agree that for a client to sue his attorney for money collected, without notice, would be very harsh, if not reprehensible conduct; and for this reason it is, that this is the first time the point has arisen in this state, for no counsel would be so unconscientious to a brother as to sue him without demand. It is, perhaps, but an act of justice to the attorney to state, that, although not proved, yet he alleges notice was given before the commencement of the suit.

The point is not of much practical importance, as the case will seldom arise, and never unless there are some improper feelings to gratify. But, although the general rule be as stated, it is not without exception, for circumstances may exist which will dispense with the necessity of a demand; as, when the attorney has been guilty of fraud or malpractice, or of culpable negligence in not giving notice of the receipt of the money in a reasonable time; or when he puts in a sham plea for delay; or when he exhibits a manifest desire to baffle the plaintiff, and withhold from him his just demand.

Do such facts exist here as will dispense with the necessity of notice before suit brought? We think not. The defendants have been unfortunate in employing a dishonest agent, for whose fraud they are doubtless liable, but they are not culpable. They never received or pocketed one cent of their client's money, although the agent did; nor is there any evidence of any supineness on their part, or that they knew or concealed the fact of his dishonesty from their client. The most that can be laid to their charge is, that they did not immediately pay the money to their client on being informed their agent had collected it. They resisted payment under the erroneous belief that they were not liable for his acts. Nor do we think there is anything to take the case out of the operation of the rule that they plead the general issue, and put the plaintiff to the proof of a partnership.

Judgment reversed, and venire de novo awarded.

ATTORNEY'S LIABILITY FOR NEGLIGENCE AND WANT OF SKILL: See this subject discussed at length in note to Fitch v. Scott, 34 Am. Dec. 89. When liable for failure to proceed against all the parties to a note placed in his bands for collection: Cox v. Sullivan, 50 Id. 386.

AM. DEO. VOL. LI-82