these questions, and are of opinion that it does not disclose sufficient grounds for awarding the issue prayed for.

In regard to the application to set aside the sheriff's sale, it appears from the evidence, that A. Kirk Lewis, who was a judgment creditor of McGilvray & Smitley, attended the sale with the intention of bidding the sum of $6000 on the coal property, and $2000 on another part of the property, advertised for sale, and that he authorized Mr. Reed, who was present, to bid that amount for him.

That when this property was put up for sale, Mr. Kuhn, on behalf of James Woods and James Woods & Company, gave notice that James Woods had a claim for purchase-money on the coal property offered for sale, secured by a conveyance to him of the legal title; at the same time exhibiting the deed, and stating the amount of purchase-money still due, and that it was the first lien on the said property. He also gave notice, as attorney of James Wood & Co., of a mortgage which they held against McGilvray & Smitley on certain household utensils; among other things being a portion of the property offered for sale, conditioned to secure them against endorsements for McGilvray & Smitley, stating the amount and where it was recorded, and the amount of the outstanding liabilities covered thereby. He then gave notice of another mortgage which they held against some lots and houses belonging to Smitley & McGilvray, which was also offered for sale, stating its amount and where recorded, but did not state whether the said mortgages were first liens, or whether or not they would be divested by the sheriff's sale. The effect of this notice as testified to by Mr. Reed, was to deter Mr. Lewis from bidding on the said property, and cause him to withdraw the instructions which he had previously given. And the property was then sold to Zug, Painter & Ross for the sum of $830.

The property is shown and admitted to be worth from $15,000 to $25,000; and Mr. Lewis now offers to bid the sum of $8000 therefor at another sale. It is manifest that the property was allowed to be knocked down at the price before stated, by reason of the surprise produced by the notice given by Mr. Kuhn.

Now it is true, as alleged by the counsel for the respondents,

that a careful examination of the records would have disclosed the true character of the liens on the property, by which it would have appeared that while the land would have remained charged with the balance of the purchase-money, the purchaser at sheriff's sale would have taken it discharged of the lien of the two mortgages. But conceding this to be true, where was the necessity for any notice to be given? Yet the fact that counsel appeared and gave such notice, was well calculated to create suspicion in the minds, even of those who might have examined the records; especially if they were not well acquainted with the law on the subject of liens. Because, it could hardly be supposed that parties would go to the trouble and expense of employing counsel to appear and give notice of a claim unless the purchaser was in some way to be affected by the sale without it.

The effect therefore, of this notice upon the sale, was the same as if the lien of the mortgages was not divested. Although it is difficult to conceive why this notice was given, if it were not designed to produce the result it did; yet, it is unnecessary to pass upon the motive for the act, where the effect produced is the same without regard to the design of the party.

This notice was not given until the property was put up for sale; when, under the new practice introduced into sheriff's sales, of not offering the property for sale until the fifth or sixth day from the return day of the writ, no adjournment could take place, and consequently no time allowed to examine the records to ascertain the true character of the liens, of which notice had been given. Those who wished to become purchasers must, therefore, bid in the dark, or not bid at all; and judgment creditors are exposed to the danger of losing their claims, from the uncertainty in regard to the state of the records created by the suddenness of the notice thus unexpectedly given.

This recent practice of not exposing property to sale until the last day allowed by law, has led to so much difficulty and litigation in regard to sheriff's sales that it shows the imperative necessity of an immediate return to the long settled practice of advertising the sales, either for the return day, or a day previous thereto; so that if any objections suddenly spring up when the property is first offered, the sale may be postponed to any time within six

days from (or after) the return day, to afford an opportunity to all parties interested to obtain the necessary information to enable them to act intelligently. We are satisfied that such a course would save much litigation and tend greatly to promote the interest of all parties concerned. If that had been done in this case no difficulty in all probability would have arisen in regard to this sale.

Now although the rule is well settled that a sheriff's sale, in all other respects free from exception, will not be set aside merely on the ground of inadequacy of price, yet it is equally true that when the inadequacy is so great as to produce the conviction that fraud, mistake or surprise must have intervened, the Court will lay hold of even slight irregularities to set aside the sale and prevent gross injustice from being done.

We have already shown that the notice in this case was abundantly sufficient to deter cautious and prudent men from risking large sums of money in the purchase of the property in question. That it did produce that result is clearly established by the evidence, independently of the gross inadequacy of price at which the property was bought in. But when in addition it is shown, that property worth at least $15,000 or $20,000, is knocked down for $830, the evidence is overwhelming that creditors and purchasers must have been deterred from bidding, by the notice complained of in this case.

For these reasons it is very clear to our minds that this sale ought to be set aside.

Feigned issue refused, and sheriff's sale set aside.

Kenderdine v. M'Clintock, 2 Phila. 224; Young's Appeal, 2 Penna. R. 380; and see cases cited in Tr. & H. Prac. 1008, 1011.

INDEX.

ACCOUNT.-See EXECUTOR AND ADMINISTRATOR; GUARDIAN and Ward.

ACTION.

1. A written promise by a third person to pay the balance due from one
party to another on a settlement between them, " on demand," was held
to negative the idea that it was in consideration of forbearance; and
there being no other consideration shown, the plaintiff had no right of
action against the guarantor. Conrad v. Kellog, 106.

2. An action of covenant against a lessee, in which there is only a
count for the breach of a covenant to leave the premises in good
repair, cannot be sustained during the continuance of the lease. Hos-
kinson v. Bradford, 165.

3. An action of debt on an award can only be sustained where the sub-
mission and award are at common law. Lockwood v. Deming, 212.

4. If parties, in making a contract under which disputes are contemplated
as possible, agree under seal to submit any such disputes to private
arbitration, as e. g., to the award of some third person, so that his deci-
sion shall be final and conclusive on them both, it is a bar to any action
on the contract that the plaintiff does not either aver and prove such
award or aver and prove such facts as excuse it. Fox v. Hempfield
Railroad, 372.

ACTION ON THE CASE.

In an action on the case for negligence against the owners of a tow-boat
for an injury done to a boat which she was towing, it is no defence
that the captain of the latter gave directions to the pilot of the tow-
boat, which he followed at the time of the accident. Hill v. Rogers,

163.

ACTS OF ASSEMBLY.

1830, April 3, Landlord and Tenant.
1842, July 12, Warrant of Arrest.

Bell, 180; Smith v. Duncan, 207.

Watts v. Hardy, 39,

M'Clurkan v. Simpson, 171; Wood v.

1834, April 15, Executions. Parke et al. v. Pittsburg, 218.

1836, June 16, Executions. Ibid.

1. The Court will not take notice of an Act of Assembly which by repeal-
ing a repealing clause revives a private act, unless it be specially
pleaded. Packer v. The Commissioners, 249.

ACTS OF ASSEMBLY.-continued.

2. Since the Act of 1848, the bond and warrant of a married woman are
valid if given for the purchase of real estate for her separate use.
Robinson v. Patterson, 63.

3. Where an Act of Assembly requires publication of notice in a certain
form, prior to the opening of a street, the opening of it without a strict
compliance with the act is unlawful, and subjects those engaged in it
entering upon private property to an action of trespass. Tyler v. Bowen,
225.

ACTS OF CONGRESS.

1. The title of an Act of Congress, when at variance with its provisions,
deserves no consideration, though it may sometimes serve to explain a
doubtful meaning of part of it. The United States v. Randolph, 24.
2. Defendant was indicted under the 13th section of the Act of Congress
of March 3d, 1813, for forging &c., a certificate of naturalization: held,
that the penalties provided in that section, applied to that indictment,
and that the District Court had jurisdiction. Ibid.

ADMINISTRATOR.-See EXECUTOR AND ADMINISTRATOR.

ADMIRALTY.-See COLLISION.

ADULTERY.

Adultery is committed by one who is married having sexual intercourse
with one who is unmarried; the latter is guilty of fornication only.
Commonwealth v. Kilwell, 255.

ADVERTISEMENT.-See SHERIFFS' SALE.

AFFIDAVIT OF DEFENCE.

1. Under the rule of Court requiring a specific affidavit of defence in a
certain class of actions, the facts disclosed must be such as if proved
before a jury would constitute a good primâ facie defence to the action.
Mellor v. Negley, 110.

2. An affidavit made by one of two partners, defendants in a suit on a
promissory note, that it was made by the other partner, after a dissolu-
tion of the firm, for his own benefit, without alleging that the plain-
tiff had notice of the dissolution, was held to be insufficient. Ibid.
3. Acts of Assembly requiring specific affidavits of defence in certain
cases where copies of the instrument sued on are filed, are constitu-
tional. Bishop v. Denormandie, 145.

4. A rule of Court authorizing judgment for want of a specific affidavit of
defence, is in such cases legal and proper. Ibid.

5. In a suit by the payee of a promissory note against a third person who
had irregularly endorsed it, the defendant is primâ facie liable for the