his official bond without recourse to him in the first instance: Commonwealth v. Wenrick, 8 Watts, 159. In Smith v. Lambert, 30 Me. 137, and Williams v. Cushing, 34 Id. 370, it is held to be an exception to the rule requiring a judgment ascertaining the amount due where an action is brought on an executor's bond by a residuary legatee.

A decree in the probate court ascertaining the share of a distributee is sufficient for the maintenance of an action on the bond, where such share is unpaid, without any other judgment against the administrator: Judge of Probate v. Fillmore, 1 D. Chip. 420. And where the decree of the ordinary is of a gross sum due from the administrator to the estate, without ascertaining the shares of the distributees, it is held, in Ordinary v. Mortimer, 4 Rich. 271, sufficient to maintain an action on the bond by the ordinary for the benefit of those interested. A judgment or decree against the executor, without more, is held sufficient to support an action on the bond by a legatee: Commonwealth v. Wenrick, 8 Watts, 159, 161. The Maryland statute, requir ing a return of nulla bona or non est inventus upon a judgment and execution against an administrator before suit on the administration bond, does not apply to a suit by an heir for his distributive share: United States v. King, 1 McArth. 499.

An action will not lie on an executor's or administrator's bond, as a general rule, for not paying over a balance of assets in his hands to his successor without a settlement and a decree for such balance: County Court v. Price, 6 Ala. 36; People v. Corlies, 1 Sandf. 228; Davant v. Pope, 6 Rich. 247; Mackey v. Coxe, 18 How. 100; Beall v. New Mexico, 16 Wall. 535, reversing Beall v. Territory, 1 N. M. 507. So in case of a public administrator, where an administrator for the estate is afterwards appointed: Baker v. State, 21 Ark. 405. But in Texas it is held, that to enable an administrator de bonis non to sue on his predecessor's bond, it is not necessary that the amount of the indebtedness should have been previously established: Francis v. Northcote, 6 Tex. 185. So in Ohio: Douglas v. Day, 28 Ohio St. 175. Certainly if the account of an administrator who has been removed has been settled by the probate court, and the balance ascertained, no further judgment is necessary to enable his successor to sue on his bond: Treasurer v. McElvain, 5 Ohio, 200. In State v. Johnson, 7 Blackf. 529, under a statute expressly authorizing the successor of a removed administrator to sue on his bond for waste, fraud, or negligence, a previous judgment for waste was held unnecessary to maintain such action. Where an administrator dies insolvent before a decree of the surrogate against him, so that compliance with the requirements of the statute before suing on his bond becomes impossible, an administrator de bonis non may sue in equity without such compliance: Haines v. Meyer, 25 Hun, 414.

Generally, an administrator and his sureties are not liable on the administration bond for a non-performance of the conditions expressed therein, without an order of the probate court requiring performance: Ordinary v. Martin, 1 Brev. 552. And it is equally true, that where a non-compliance with any requirement of the statute is impossible, a party aggrieved by a breach of the bond may sue therefor without compliance; as where an alleged decedent is in fact alive and sues on the administration bond for a conversion of assets. by the administrator, and the requirements of the statute before suit are such as to be inapplicable to a case of that kind: Williams v. Kiernan, 25 Hun, 355. JUDGMENT AGAINST ADMINISTRATOR OR EXECUTOR, effect of, against sureties on administration bond: See the note to Heard v. Lodge, 32 Am. Dec. 202.

In the case of guardians, the general rule is, that no suit can be maintained against them or their sureties until such guardians have been called to account before some appropriate tribunal, and the account there adjusted and the amount due determined: O'Brien v. Strang, 42 Iowa, 644; Stilwell v. Mills, 19 Johns. 304; Critchett v. Hall, 56 N. H. 324; Hailey v. Boyd, 64 Ala 400; Harrison v. Heflin, 54 Id. 557; Allen v. Tiffany, 53 Cal. 16. While the guardian is alive, the proper tribunal is the one by which he is appointed, to wit, the probate, surrogate, or orphans' court. But upon his death, these courts have not jurisdiction to compel his administrator to render an account to them. Resort must, therefore, be had to courts of equity, which have jurisdiction to compel the administrator of a deceased guardian to account before them, and to render a decree settling such account, both as against the administrator and sureties of the deceased guardian: Bush v. Lindsey, 44 Cal. 124; Wetzlar v. Fitch, 52 Id. 638; Chaquette v. Ortet, 9 Pac. C. L. J. 602; S. C., 60 Cal. 594.

READING V. COMMONWEALTH.

[11 PENNSYLVANIA STATE, 196.]

MANDAMUS DOES NOT LIE WHERE OTHER EFFECTUAL REMEDY exists, but is to be invoked only in cases of the last necessity.

MANDAMUS TO MUNICIPAL CORPORATION TO REMOVE OBSTRUCTIONS and

keep open a public street will not lie where no special injury to the relators is alleged, because an indictment for nuisance is an effectual remedy.

ACT LEGALIZING EXISTING NUISANCE IN STREET of a city is a mere license for its continuance, and is revocable at pleasure where there is no consideration for it.

MANDAMUS applied for by the relators to compel the councils of Reading to keep open a certain street, it being alleged that they had neglected to do so, and had allowed certain persons to encroach with their houses upon the sidewalk of said street, to the obstruction of public travel. An alternative writ was granted, to which the defendants made return, setting forth that the alleged obstructions were legalized and suffered to continue by the act of September 12, 1783, they having been in existence long before that act; that the defendants were not legally bound to open said street, because the steps prescribed by an act of 1825-6 as to opening streets in the borough of Reading had not been complied with; and that mandamus would not lie in this case, because there was another adequate remedy. The plaintiffs pleaded to this return that the statute of 1783 had been repealed, and that the other matters were not sufficient in law to prevent a peremptory mandamus. They also demurred to the return, and the defendants joined in the demurrer. Peremptory mandamus awarded, and the defendants brought error. The points relied on sufficiently appear from the opinion.

Barclay, for the plaintiffs in error.

J. Glancy Jones, for the defendants in error.

By Court, GIBSON, C. J. As there is one conclusive point in the cause, it might be unnecessary to consider any other. A mandamus, though a prerogative writ and demandable of right in a proper case, is justly said to be grantable at discretion. Hence it is that it is to be invoked only in cases of the last necessity: not where there is another effectual remedy. The principle is a clear one, and abundantly sustained, not only by the English authorities, but by the decisions of this court. Is there not then a specific remedy equally potent to which these relators might resort? True, it was said arguendo, and sanctioned by the court in The King v. The Commissioners of Dean Inclosure, 2 Mau. & Sel. 83, that an "indictment is only a proceeding in pœnam, and not a remedy for the future." That was a prosecution for disobedience of an order of the sessions to set out a public road: but it was held in Rex v. Pappineau, 1 Stra. 686, that a part of the proper sentence for a continuing nuisance, is that the defendant stand committed till he abate it at his proper costs; and such was the sentence in The King v. Incledon, 13 East, 164, and The Commonwealth v. McDonald, 16 Serg. & R. 402. The offense might indeed be pardoned, and the remedial part of the sentence frustrated; but that done, it would be a question whether a mandamus ought not then to be allowed. It is not to be presumed, in the first instance, however, that more than the fine and imprisonment would be remitted, or that the nuisance would be suffered to stand to the injury of the public. The nuisance, in this case, is a public one, and it does not appear, from the statement of the relators, that they have received any special injury from it to entitle them to any civil remedy whatever. The obstruction of the sidewalk is not more injurious to them than it is to the inhabitants at large; and it would consequently seem that an indictment is exclusively the means to abate it. It is proper to add that the act of 1783, legalizing, for the time being, erections in that borough -these among the rest-which were then nuisances, was no more than a license for their continuance, dependent on the will of the legislature, and consequently revocable at its pleasure. Nothing was done or suffered as a consideration of the license which, as it did not partake of the nature of a contract in any respect, it was competent for the legislature to withdraw. Judgment reversed.

MANDAMUS WILL LIE WHERE THERE IS CLEAR LEGAL RIGHT, and no other remedy to enforce it: Moody v. Fleming, 48 Am. Dec. 210. And see the citations in the note to that case. See also Board of Police v. Grant, 47 Id. 102, and cases cited in the note thereto. The writ of mandamus, though a prerogative writ, and demandable of right in a proper case, lies only in extraordinary cases, where there would otherwise be a failure of justice. Hence it will not lie to compel a transfer of stock where an adequate remedy exists by an action at law for damages: Birmingham etc. Ins. Co. v. Commonwealth, 92 Pa. St. 72, 77. Nor will it lie to compel the performance of a public duty where the relator has no special and peculiar interest independent of that of the public. Hence it can not be maintained to compel the opening of an alley by a municipal corporation which it is required by statute to open, at the suit of a property holder on such alley: Heffner v. Commonwealth, 28 Id. 114, both citing the principal case.

NUISANCE IN HIGHWAY, WHAT CONSTITUTES, AND REMEDIES FOR: See Stetson v. Faxon, 31 Am. Dec. 123, Thayer v. Boston, Id. 157; Martin v. Bliss, 32 Id. 52; Lexington etc. R. R. Co. v. Applegate, 33 Id. 497; Dygert v. Schenck, 35 Id. 575; Johnson v. Whitefield, 36 Id. 721; Linsley v. Bushnell, 38 Id. 79; French v. Brunswick, Id. 250; State v. Knotts, 42 Id. 395; People v. Cunningham, 43 Id. 709; Lancaster Turnpike Co. v. Rogers, 44 Id. 179; Vosburgh v. Moak, 48 Id. 613, and the notes thereto. As to nuisances in public rivers, see Martin v. Bliss, 32 Id. 52; Stump v. McNairy, 42 Id. 437; Commonwealth v. Church, 44 Id. 112; State v. Thompson, 47 Id. 588; People v. St. Louis, 48 Id. 339; Gold v. Carter, 49 Id. 712; Frink v. Lawrence, 50 Id. 274, and notes.

PRIVATE PERSON CAN NOT COMPEL PERFORMANCE OF PUBLIC DUTY, and, therefore, such a person can not maintain a bill to compel a navigation company to repair its dams: Buck Mountain Coal Co. v. Lehigh etc. Co., 50 Pa. St. 100, citing Reading v. Commonwealth.

INGERSOLL v. LEWIS.

[11 PENNSYLVANIA STATE, 212.]

OWNER'S ENTRY ON LAND AVOIDS STATUTE OF LIMITATIONS as against an adverse occupant, if accompanied by an explicit declaration or act of notorious dominion.

ENTRY BY OWNER'S AGENT TO SURVEY LAND AVOIDS STATUTE OF LIM ITATIONS as against an adverse occupant having knowledge thereof and assenting thereto.

ACKNOWLEDGMENT OF OWNER'S TITLE BY ADVERSE POSSESSOR of land interrupts the running of the statute of limitations.

AGREEMENT BY ADVERSE POSSESSOR TO PURCHASE PART of the tract in his occupancy from the true owner, recognizing the latter's title to a larger tract, of which the whole land is a part, tolls the statute as to all. EJECTMENT, by the trustees of William Bingham's estate, for a tract of land. Defense, the statute of limitations. The plaintiffs, to toll the statute, relied upon an entry in 1834, and an agreement by the defendant, with the attorney for the plaint

iffs, in 1823, for the purchase of part of the land described as "being a part of No. 1835." The land in controversy consisted of two adjoining lots, one called the "Baker lot," and the other the "Schoonover lot." The former, the defendant purchased of one Baker; the latter, he entered upon and began to clear about the same time, and afterwards permitted it to be occupied by one Schoonover. The other facts and the rulings of the court below sufficiently appear from the opinion. Verdict for the plaintiffs, under the instructions of the court, for all the land except the Schoonover lot, and judgment thereon, and the plaintiffs brought

error.

Elwell and Overton, for the plaintiffs in error.

Cone, contra.

By Court, ROGERS, J. This is an action of ejectment to recover possession of a tract of land, containing about two hundred acres, now in the possession of the defendant. The tract in controversy is part of a warrant in the name of Thomas Willing, containing by survey about one thousand and ninety-nine acres. To the whole tract, No. 1835, the plaintiffs have shown a clear and indisputable title.

The defendant admits the plaintiffs' title, and puts his defense exclusively on the act of limitation; proving, as he contends, a notorious adverse possession in himself, and those under whom he claims, of more than twenty-one years before the commencement of the action.

In avoidance of the defense, the plaintiffs insist that such an entry was made on the premises as bars the running of the act; and secondly, that the agreement of the twenty-second of November, 1823, signed by Lorentus Jackson, agent of Dr. Rose, who was the agent of the trustees, and the defendant, is such a recognition and admission of the plaintiffs' title as tolls the statute.

The first point is based on the uncontroverted testimony of Messrs. Goodspeed and Metcalf. This evidence admitting its truth, the court rule peremptorily not sufficient to destroy the effect of the defendant's adverse possession. From this direction we entirely dissent; for, granting the facts to be as stated, we think they toll the statute. An entry on land, as is ruled in Altemas v. Campbell, 9 Watts, 28 [34 Am. Dec. 494], avoids the operation of the act of limitation, if accompanied by an explicit declaration, oran act of notorious dominion, by which the claimant challenges the right of the occupant. So where a person