of the deed, and payment of the purchase money, the matter was ended, and the court lost its grasp of the case. The parties and the subject _ matter were out of court. Moreover, there was no pretense that a fraud had been practiced upon the court. Under such circumstances, to bring a party into court by no other process than a rule to show cause, and, upon such a rule, to wrest from him histitle to real estate, seemed to us an unwarranted exercise of power.

It requires but a moment’s consideration to see that the facts of that , case bear but little analogy to the case in hand. In Evans v. Maury the proceeding was upon the common-law side of the court, and was completed. Neither the parties, the subject-matter, nor the fund were in court, which, without any fraud practiced upon it, had given final judgment, and in effect dismissed the parties without day. In the case in hand the proceeding was not in the form of a rule to show cause, but was a petition in the orphans’ court,—-—a court which, in its limited sphere, is a court of equity powers, and in all matters within its jurisdiction has as full authority to grant relief as any chancellor ever had. It was proceeded in precisely as if a bill had been filed on the equity side of the common pleas. There was the petition, which in the orphans’ court is the equivalent Of a bill in equity in the common pleas. There was an answer, and a reference to an auditor to find the facts; and, if desired, an issue might have been demanded, and sent to the common pleas for trial. SO that, so far as the form of proceeding is concerned, it differs in no essential degree from. a bill in equity filed in the common pleas. No one doubts that relief could have been given in such a. case in the latter form of proceeding. Moreover, the orphans’ court still retains its grasp over the guardian and the fund. Both are absolutely within its control. The purchase money for the land was paid to the former guardian, and is now held by the present guardian. If he cannot retain it in equity and good conscience, who is better fitted to say so than the court which controls both the guardian and the fund? It would be a lame conclusion to refer such a question to a common-law court, or to another court of equity, whose equity powers in this particular matter are no greater than those of the orphans’ court itself. We must not lose sight of the fact that it is the purchasers who invoke the action of the orphans’ court. They come into court and tender back the deed or a conveyance of the property, and ask to have a palpable error corrected, by which they have been obliged to pay a considerable sum of money, for which it is admitted they have received no consideration. Surely the guardian, who acts under the control of that court, has no standing to object to its jurisdiction in a matter which affects the execution of the trust and the disposition of the funds in his hands. \Ve are not embarrassed by the possible case of a purchaser who has paid his money and received his deed, and who objects to his property being wrested from him by that court.

The precise point involved has not been ruled in this state. Perhaps the nearest approach to it is George’s Appeal, 12 Pa. St. 260, where it was held that a bill of review to correct a clear mistake in fact, on which a decree in partition was made, will lie more than three years after the de

cree; purchasers not having become interested in the estate. It was said in that 6088, by Justice BELL:

“It must be admitted that a court of chancery would not, in a. case like this, entertain a bill of review; for here there is neither suggestion of new matter discovered since the decree published, nor the avernient of error apparent upon its face, one of which is said to be necessary to found such a prayer, (1 Madd. Ch. 537; Wilson v.Webb, 2 Cox, 3; O’Brien v. Connor, 2 Ball & B. 154 ;) nor can the decree complained of be regarded as wholly against 'the complainant,—a feature also essential to a review in equity, (Glover v. Portington., 2 Freem. 182; 1 Ch. Gas. 51.) But where it is shown that an injurious mistake exists, though in part ascribed to the party averring it, we do not think the orphans’ court ought to be deterred from its correction by the sole fact that it is not apparent in the unassisted record. * * * In regard to the subject-matter more immediately before us we have recently had occasion to observe more than once that the orphans’ court has, from the beginning, exercised the power of reviewing and modifying its proceedings and decrees, as an authority remaining inherent and essential to the right discharge of its duties. On this point no statutory direction was given till the act of October, 1840, which. however, is confined to reviews of alleged errors in the settled accounts of executors, administrators, and guardians. This limits the period within which a. review may be had, in such cases, to five years, but it leaves untouched pre-existing practice in all other instances. Being thus unrestrained by the written law, I see no objection to the liberal exercise of the right to rehear and redress for the correction of manifest mistake, involving injury, tempered,.ho,wever, by the application of a sound discretion, seeking to protect the rights of third persons, and which, in most cases, would dictate a refusal to interfere where the relative position of the original parties was materially changed, or the interests of third persons might be put to hazard.”

The petition in this case is in the nature of a bill of review, a proceeding which it is believed the orphans’ court has ample power to entertain. As was observed by Justice BELL, in George’s Appeal, above cited, the power of reviewing its decrees had been exercised by the orphans’ court prior to the passage of the act of 1840. The object of said act was to limit the exercise of this power to five years in certain cases, but it leaves untouched the pre-existing practice in all other cases. See, also, Douming’s Estate, 5 Watts, 90; Briggs’ Appeal, Id. 91; Clauser’s Estate, 1 Watts & S. 215; Stoever’s Appeal, 3 Watts & S. 154; Banting’s Appeal, 4 Watts & S. 469; Pennypaclcer’s Appeal, 14 Pa. St. 430. _

In the recent case of Milne’s Appeal, 99 Pa. St. 483, it was said by our Brother GORDON that“we have no doubt about the power of the orphans’ court to revise and correct its former adjudications, if in those adjudications it discovered a palpable mistake, produced either by its own inadverten'ce, or by the blunder of the parties, if sense and fair dealing would be authority enough, in the absence of any other, for so holding. Nevertheless, other authority will be found, and that directly in point, in George’s Appeal, 12 Pa. St. 260, where the subject is so fully discussed that further argument from us is unnecessary.” This language is applicable here. It is no answer to this to say that Milne’s Appeal was a bill of review, under the act of 1840, to correct error in a previously confirmed administration account; for the act of 1840, as before observed, did not confer a new power upon the orphans’ court,—it merely gave a bill Of review as a matter of right in certain cases, and limited the time Within which it might be exercised in those cases.

\Ve are Of opinion that the orphans’ court had ample power to make the decree complained of. We also think it was not only justified upon the merits, but that it was required by the principles of common honesty. It would be a reproach to the law were it to fail to correct such a mistake as is disclosed by this record.

We desire tO say, also, in order to avoid misapprehension in the future, that it is at least doubtful whether the petition filed in this case, upon which the sale was had, sets out sufficient facts to give the court below jurisdiction. It is admitted that the petition was filed under the act of 1853. Indeed, I do not know of any other act which gives the orphans’ court the power to order a private sale of the real estate Of a minor. Said act provides:

“In all cases where real estate shall have been acquired by descent or last will, the orphans’ court, and in all other cases, the court of common pleas, Of

the respective counties Of this commonwealtn, shall have jurisdiction to decree the sale * * * Of such real estate.” etc.

The petition in this case is of the most informal character, and does not set out any explanation Of the title; nor is there even an averment that the title of the minors was derived by descent or last will, which is absolutely essential to give the orphans’ court jurisdiction. Such a loose way of dealing in matters affecting the title to real estate is not to be commended, and may lead to serious trouble hereafter.

The decree is affirmed, and the appeal dismissed, at the costs of the appellant.

4. SAME—COSTS or ADMINISTRATOR—CONFIRMATION 0F ACCOUNT.

When an administrator whose account has been confirmed, and who is not otherwise interested in the distribution of decedent’s estate, volunteers as a party in a contention as to the distribution, he may be required to pay the costs personally.

Appeal from orphans’ court, Mercer county.

The administrator of the estate of Robert J. Vaughan, deceased, intestate, filed his only and final account, which was confirmed, showing a balance due the estate of $704.12. At the time of filing the account there remained an unpaid debt of deceased’s for $25.52 due the appellant for professional services. At the administrator’s request appellant presented his claim, after the filing of the account. to the auditor appointed to distribute the balance due the estate, who allowed it, with interest. The administrator excepted to the allowance, and the court appointed another auditor. The administrator, who was a brother of the deceased, but not otherwise interested in the estate, after appellant’s claim was submitted to the second auditor, but before final adjudication thereon, brought an action against appellant before a justice Of the peace for an old claim for work done by the decedent in his life-time, and obtained judgment against appellant, both there and on appeal before arbitrators. Appellant then appealed to the court of common pleas, and obtained judgment. Appellant did not offset his claim, which was under adjudication by the auditor, in any of these suits. While his appeal was pending in the court of common pleas, the second auditor heard evidence upon appellant’s claim, and allowed it in full, and also certain charges and expenses claimed by appellant for service of subpoenas on his witnesses before the auditor and for their fees. The administrator excepted to the auditor’s report, and the orphans’ court reversed the auditor’s decision.

The judge of the orphans’ court based his decision overruling the auditor’s report principally upon the act of March 20, 1810, (5 Smith’s Laws Pa. 161,) which contains this enactment:

“A defendant who shall refuse to set off his demand against a. plaintiff, which shall not exceed one hundred dollars, before a justice of the peace, shall be, and is hereby, forever barred from recovering against the plaintiff by any after-suit. ”

The appellant appeals from this decision.

Stewart J: Cochran and Stranahan dc Bowser, for appellee.

Johnson Pearson, contra.

STERRETT, J. Appellant had a claim for medical services, $25.50, with interest from May, 1881, against the estate of Robert J. Vaughn, who died intestate in June of that year. In October, 1882, his administrator filed an account showing a balance of $704.12 in his hands. The account was duly confirmed, and, an auditor having been appointed to distribute the same, appellant appeared before him and presented his claim. Subsequently the administrator brought suit against appellant before a justice of the peace, and obtained judgment. Afterwards appellant’s claim was passed upon and allowed by the auditor to whom

v.6A.no.6—36

the report of the first auditor was referred “to take further testimony, and make specific report of the facts, and also distribute the fund.” Exceptions having been filed inter alia, to the allowance of appellant’s claim, the orphans’ court overruled the auditor, and rejected the claim, for reasons given in the opinion of the learned judge disposing of the exceptions. Referring to the claim of Dr. Axtell, the appellant, he says:

“After presentation of the claim before the first auditor, and before the second auditor had met the parties, the accountant brought suit before a justice of the peace 'to recover a balance claimed tO be due and owing the estate by Doctor Axtell. The administrator recovered judgment against Doctor Axtell, who appealed to the common pleas, and the suit was there pending and undetermined at the time the present auditor, against the protest of accountant, proceeded to hear the evidence and pass upon said claim. In so dOing we think the auditor made a mistake. It is true, he had, under his appointment, full power to pass upon all claims presented, and, incidentally, upon. offsets thereto, in order to determine the true amount owing the creditors by the estate; but he had no power to give judgment against the claimant, if, on settlement, the claimant proved a debtor to, instead Of a creditor of, theestate. It was necessary, therefore. for the estate to sue Doctor Axtell to recover judgment against him, and, having sued before a justice of the peace, Axtell was required by the statute to set Off his account, or be forever barred. ”

In this conclusion the learned judge was clearly wrong. The orphans’ court, the appropriate tribunal for adjudication of claims against estates of decedents, had rightly assumed jurisdiction of appellant’s claim long before the administrator brought suit before the justice against him. He never withdrew it from that forum, and there is nothing in the act referred to, or in anyOther act, that required him to do so, or that could, by any possibility, oust the jurisdiction of the tribunal established for the express purpose of adjudicating such claims. To hold otherwise might lead to almost interminable confusion and delay in the settlement of estates. The fact that the first auditor was superseded by the appointment of the second had no more effect on the status of the claim than would a succession to a j udgeship in the court. In contemplation of law it was pending in the proper court from the time it was first presented there for adjudication until it was removed here on this appeal. Further comment on the subject is unnecessary. It is too plain for discussion. The first assignment of error is sustained.

We are also of opinion that appellant is entitled to. the items of costs specified in the second and third assignments, aggregating, respectiVely, $6.93 and $6.78. The disposition that has been made of the first assignment virtually disposes of the fourth and fifth. The second to fifth: assignments, inclusive, are therefore sustained.

The appellee, who was a brother of the decedent, does not appear to have been interested, either as creditor or distributee, in the distribution of the fund; and yet he is the only person who excepted to the auditor’s report. In Gallagher’s Appeal, 89 Pa. St. 29, we said that an administrator whose account has been confirmed “has no interest, as such administrator, in any decree of distribution the court may make out of the fund. He is not so far a representative of creditors as to authorize