author: Mr. Justice Gordon

text:
    City of Pittsburgh versus Knowlson.
    1. The provisions of the Act of January 6th 1864, with reference to the filing of municipal liens within six months from the completion of the work, are not merely directory but are material, and a failure to comply therewith will defeat the lien.
    2. The six months are to be computed from the time the contractor finished the work, and not from the time of their acceptance and approval by the city engineer.
    3. Kaiser v. Weise, 4 Norris 366, followed.
    November 11th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, Nos. 161, 162, 163 and 164.
    Scire facias sur municipal lien for grading, paving, &c., issued by the city of Pittsburgh against Richard Knowlson. In the court below this case and that of the same plaintiff against Watson’s Estate, Same against Coward, and Same against Moffatt, were all tried together. The same testimony was given in each, and the facts in each are identical. They were liens filed by the city of Pittsburgh for the grading, paving and curbing of Locust street, from Shingiss street to Miltenberger street.
    The Act of January 6th 1864, sect. 6, Pamph. L. 1131, authorized the councils of the city of Pittsburgh, whenever they deemed it expedient, to grade, pave and set with curbstones, “any public street, lane or alley, or any parts thereof, which is now, or which may hereafter be laid out and opened in said city.” The councils, in pursuance of this power, on July 28th 1873, authorized the grading, paving and curbing of said portion of Locust street. Accordingly, on February 6th 1874, a contract with Evan Jones was duly made by the city, through her engineer, for that work. This contract provided, inter alia:
    “ All the materials furnished, and all the work done, which, in the opinion of the engineer, shall not be in accordance with this specification shall be immediately removed and other materials furnished and work done that will, in the opinion of the engineer, be in accordance therewith.”
    Further on, in the contract, the contractor agrees to complete the work “ to the satisfaction of the engineer and again, it provides that if any ambiguity shall arise under the contract, “ the engineer’s instructions shall be considered explanatory, and shall be of binding force.”
    Jones did proceed with the work, and completed the same on October 25th 1876. The engineer then took the work off his hands, and at once made his assessments against the lots fronting on the street for the cost of the improvement. These he duly advertised, and, as required by law, handed the assessments over to the city treasurer for collection. The treasurer in turn gave notice, and after waiting the allotted time, on February 28th 1877, passed the assessments to the city attorney. As is usual in his office, to save the lot-owners costs, he waited for some time for them to pay, and on March 28th 1877, filed the liens in these different cases, for the assessment against each lot for its share of the cost of the improvement. After the introduction in evidence of the Act of 1864, above referred to, the city ordinance of July 28th 1873, and the liens filed, the city rested.
    The defendants, among other defences, claimed that the lien had not been filed within six months after the work was done. They alleged the work was finished on September 5th 1876; that the liens were not filed until March 28th 1877, and that therefore they were void, and there could be no recovery. They introduced witnesses to show that about September 1876, the street commissioners of the city inspected and approved the work; and they also called Mr. Jones, the contractor, and one or two workmen, to show when the last work was done. All of the witnesses, however, who were called, agreed that work was done on this street in October 1876; that when the street commissioners sent their written approval of the paving to the city engineer, he went out on the work; that he notified the contractor that the work was not satisfactory to him ; that the contractor must reset some curbing, a portion of it, near Cooper street, being out of line; that a certain portion of the pavement where there had been a fill, had sunk, and the contractor must fill up to grade at that point, and relay the pavement. The contractor accordingly did this work. Mr. Dempster, the engineer, says it was done in October 1876, and he accepted the work in October 1876. John Callahan who did the work, was also called, and he testified he did it in October 1876.
    There was no dispute that the work was done in October 1876, but the defendants claimed that the re-setting of the curb was rendered necessary by a mistake of the engineer, and that the sinking of the pavement was by a heavy rain, and therefore, they argued, the time of the completion of the work was not extended.
    The plaintiff claimed that the provisions of the Act of 1864, relating to the time of filing the liens for assessments, was, as between the city and the lot owner directory merely, not mandatory ; that an omission to file within six months after the completion of the improvement would not defeat the lien. That the act, when it says, in fixing the time -for the filing of the lien within six months “ after the completion of said improvements,” intended, in harmony with all the city laws, to mean within six months after the work was done and accepted by the engineer; that in this case, as in fact if work was required by the engineer to be done, and it was. done under the contract for grading the street, within six months preceding the filing of the liens, they were good, and it was immaterial whether this work was rendered necessary by mistake of the city engineer, or by rains.
    The court declined so to charge, but said that the six months for the filing of the liens ran from the day when the last of the original contract work was done on the street.
    The following points were submitted by plaintiff, all of which the court refused:
    1. That the provisions of the Act of Assembly, with reference to the filing of municipal liens within six months from the completion of the work, is directory only, and will not, as between the lot owner and the city, defeat the right of the city to file such a lien.

      2. That the time from which the six months runs is the “ completion of said improvements,” and under the contract in evidence, and the Acts of Assembly and ordinance, the said improvement is not completed until approved by the city engineer.
    3. That as under the laws and ordinances of the city, and the contract in this case in evidence, it is made the duty of the city engineer to finally approve and pass upon the 'work done by the contractor in the improvement of the street — the improvement is not completed until that officer is satisfied with the -work of the contractor, and makes a declaration to that effect by a final estimate or otherwise.
    4. That under the laws and ordinances of the city, and the contract in this case, the gradiug, paving and curbing of Locust street was not completed until the last work was done by the contractor, under the direction of the city engineer, as the officer of the city therein and thereby designated to pass upon the workmanship and quality of work done upon the street.
    In the general charge, the court, White, J., charged the jury:
    “ The lien must be filed within six months after the actual completion of the work. The acceptance of the work by the street committee or the city engineer, does not fix or determine the date from which the period of six months is to be counted. Such acceptance by the street committee, and a certificate by them to that effect .to the city engineer, is evidence that the work was then completed but not conclusive. The actual completion of the work by the contractor, under his contract — the day when he did the last work under his contract, fixes the date from which the period for filling the lien must be counted.
    “ Any imperfection in completing the work required by the contract, or any defect in the work, which has to. be remedied before the engineer will accept the work, or take it off the contractor’s hands, will extend the actual completion until that work is done, and the time must be counted from that date. [But repairs made necessary by heavy rains, or a change of a few feet of curbing, after the contractor had quit work and after the acceptance of the work by the street committee, would not have the effect of extending the time of the actual completion, unless the curbing thus changed had been improperly placed through the neglect or fault of the contractor.]
    “The question for you to determine upon all the evidence,'is this: When was the work of grading, paving and curbing on Locust street, under the contract with Evan Jones, actually completed ? The lien was filed March 28th 1877. Six months before that was September 28th 1876. If, therefore, the work was actually completed before September 28th 1876, the six months had expired before the filing of the,liens, and your verdict should be for the defendants, otherwise your verdict should be for the plaintiff.
    “'All the other questions in these cases, are questions of law and for the court.”
    Verdict for defendants, and after judgment plaintiff took this writ and alleged, that the court erred in refusing the above points, and in the portion of the foregoing charge included in brackets.

      T. S. Bigelow and D. T. Watson, for plaintiff in error.
    We submit, that whatever might be the questions arising as to third persons, these Acts, as between the city and the lot against which the lien is filed, and the owner thereof, are directory only, in so far as they. contain any requirement for liens to be filed in six months after completion of improvements. The reasons requiring the filing of mechanics’ liens within the six months do not apply here. The mechanics’ lien is an extraordinary and additional remedy for the collection of a debt. The creditor does not lose his common-law remedy by action, but the statute in certain cases gives him an unusual remedy, and therefore, this court has decided the act must receive a reasonably strict construction — and the party claiming its benefits must bring himself plainly within it.
    In the case at bar no such reasons exist. The lot-owner is not personally liable for the assessment. It is a lien solely against his lot. The work for which it is filed is a public one. Public notice is given of it. The lot-owner cannot be misled. Why should he be favored with a strict construction, which will relieve his lot of all liability, if the lien is not strictly filed within the six months.
    The provisions of the contract, in evidence, show that the contractor could receive no money until the engineer approved of his work ; and that his work under the contract, was not done until it was done in such manner as satisfied the city engineer. This being so, the improvement, was not completed until the city engineer accepted and approved the work.

      J. Slagle, 0. Magee and W. W. Thomson, for defendants in error.
    Where there is a proviso limiting the authority of anything directed to be done-before the jurisdiction vests, or before the power granted shall be exercised, such proviso or direction is mandatory: Commissioners of Kensington v. Keith, 2 Barr 218; Olds v. Erie, 29 P. F. Smith 380; Fell v. Philadelphia, 31 Id. 75; Reilly v. Philadelphia, 10 Id. 467; Pittsburgh v. Walter, 19 Id. 365; Philadelphia v. Edwards, 28 Id. 62.
    Under the authority of these cases, and of Pittsburgh v. Coursin, 24 P. F. Smith 401, the provisions contained in the seventh, eight and ninth sections of the act of 1864, might all be considered directory, because they all relate to the manner in which the poAver vested in the several city officers shall be exercised, but the 19th section could not be so considered. By it an entirely neAv power or authority is conferred. NoAvhere else in the act, are the assessments made liens on the abutting property. In the grant of this power there is a material proviso or limitation. The assessments are made liens from the commencement of the work, and shall continue liens for five years, if, or provided, they are filed Avithin six months after the completion of the work. To consider this qualification or proviso as directory merely, and not mandatory, is to strike it entirely out of the act.
    The plaintiff in error claims, that the six months fixed by the statute commences to run from the acceptance of the work by the city engineer, and not from the last Avork done. This, it is submitted, is ruled otherwise in Kaiser v. Weise, 4 Norris 366.
    It is argued, that from the terms of the contract betAveen the city and 'the contractor, the acceptance of the Avork is to be considered the completion of the improvement. The city, by its agreement Avith its contractor, cannot change the Act of Assembly or bind the defendant here, who was not in any manner a party to it.
   Mr. Justice Gordon

delivered the opinion of the court, November 24th 1879.

This is a scire facias upon a municipal claim for grading and paving on Locust street, in the city of Pittsburgh, filed in the proper lien docket, March 28th 1877, which was, as the jury found, more than six months after the completion by the contractor, of the work upon the street above named, but Avithin that period, counting from the date of the approval and acceptance of that work by the city engineer. Two points, the only ones we need mention, as those embrace all that is material in the case, were made by" the counsel for the city; they were, 1. “ That the provisions of the Act of Assembly, with reference to the filing of municipal liens within six months from the .completion of the work, is directory only, and Avill not, as betAveen the lot-owner and the city, defeat the right of the city to file such lien.”

2. “ That the time from which the six months run is the ‘completion of said improvements,’ and under the contract in evidence, and the Acts of Assembly and ordinance, the said improvement is not completed until approved by the city engineer.” Both these points were refused; the court holding that the provision of the act, in the first point mentioned, was not merely directory but material, and that a want of compliance with it would defeat the lien; and that the six months must be computed from the time when the contractor finished his work, and not from the time of its approval by the engineer.

In this, we think, the court was right. If we examine the act we shall find, “ that the lien authorized by this act shall be filed in the District Court of said county, in the same manner as mechanics liens are filed;” and further, that “the assessments authorized by this act shall be liens upon the properties assessed, from the commencement of the improvements for which they were made, and shall, if filed within six months after the completion of said improvements, continue liens for five years, and be revived by scire facias as other liens.”

Now it will be observed that there is here not merely a direction, as in the act considered in the case of Magee v. The Commonwealth, 10 Wright 358, to file the assessments -within a given time in order that they may become a lien, but the provision is that they shall be a lien from the commencement of the improvement, and shall, “ if filed within six months after the completion of said, improvements, continue liens for five years.” Here the lien is made to depend for its existence upon the compliance with the condition, for if not, it follows that the lien, without the filing of the assessments, continues for five years. For, of course, if this condition is not obligatory but directory then there would be a sufficient compliance if there were a filing of the assessments at any time within the last named period. It would, however, be an amazing stretch of the imagination to suppose the legislature intended a matter so contrary to all reason and precedent as the burthening of property by secret and uncertain liens for the period of five years. The proposition so to construe the act becomes all the more singular when we consider that the framer of the statute had the mechanics’ lien law, not only for his model, but, so far as applicable, made it part of his enactment. There is, therefore, nothing left for us but the conclusion, that as the six months limitation in the mechanics’ lien law is material, so it is in the act under consideration.

Then as to the second point: when may the improvement be said to be completed ? Here the statute may well be allowed to interpret itself. The lien is to commence with the commencement of the improvement. Now commencement is just as ambiguous a term as completion and not any less so; we presume, however, no one would pretend that the lien would reach back to the promulgation of the ordinance for the street paving, the approval of the contract or to anything preliminary to the actual beginning Of the work, for nothing is more obvious than if the actual work never begins neither does the lien. Not less obvious is it that the completion of the improvement means the finishing of the work on the ground, for the city engineer is not called upon to finish the work, but to approve and accept that which has already been finisued by the contractor, hence his approval pre-supposes a work previously finished.

This question has been already and in point decided by the case of Kaiser v. Weise, 4 Norris 366. In this case, Kaiser the vendee of Weise had executed a mortgage for the purchase-money of the premises conveyed to him. On a scire facias brought to enforce the mortgage, he proposed to set off the payment of a precedent municipal lien originating in a claim for the grading of Hazlewood avenue. This was resisted on the ground that his payment was that of a mere volunteer, having been made one day after the six months had expired from the completion of the work. The court sustained the objection, and in this court its ruling was affirmed. Yet there, as here, it was contended that as the limitation, counting from the time of the approval and acceptance of the work, had not expired, the lien was in force. This case then is directly in point, and settles any doubt that might otherwise arise in the determination of the contention in hand.

Complaint is also made of a part of the charge of the court, which is as follows : “ But repairs made necessary by heavy rains or a change of a few feet of curbing, after the contractor had quit work, and after the acceptance of the work by the street committee, would not have the effect of extending the time of the actual completion, unless the curbing thus changed had been improperly placed through the negligence of the contractor.”

We think this instruction quite as favorable to the plaintiff as it ought to have been. The limitation runs from the time when the work is finished and cannot be extended by repairs or alterations made afterwards. Eor these the property owner is not assessed but only for original work, and it is hence obvious that they can, for no purpose, be tacked to that work.

Judgment affirmed.

For reasons above stated judgments of affirmance are to be entered in the following named cases:

City of Pittsburgh v. Robert Watson’s Estate.

City of Pittsburgh v. Robert Coward.

City of Pittsburgh v. George Moffatt.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Bismark Building and Loan Association versus Bolster et al.
    1. As a general rale, a mortgage of personal property, like a sale, is void as against creditors if a corresponding change of possession does not accompany the same. But where a removal of the property is impracticable, when all has been done that reasonably can be to mark the change of ownership and possession, the law is satisfied.
    2. A long term of years, of very great value, is not such an interest in land as is subject to the lien of a judgment; it is a chattel, subject to seizure and sale, by a constable, on an execution issued by a justice of the peace.
    3. All kinds of property may be mortgaged to secure debts. A mortgage of personal property, in some respects, is like a pawn or pledge. Without delivery of possession to the mortgagee, it is a nullity as to creditors unless made under some statute; but if possession be given, the mortgagee may hold it till his debt is satisfied. At most, a creditor of the mortgagor can only sell it subject to the claim of the mortgagee, whose lien is not divested by the sale, and who is not entitled to share in the proceeds, and the purchaser at sheriff’s sale takes just the interest, if anything at all, which was left in the mortgagor.
    4. It is not the intendment of the Acts of September 23d 1783, March 28th 1820 and April 6th 1830, relating to mortgages, to include leaseholds in the words properly signifying freeholds. The Act of March 28th 1820 has no relation to mortgages of leaseholds, nor have any other acts which relate exclusively to mortgages of “real estate.”
    5. A mortgage of an estate for years may be recorded, any time within six months, where it does not come within the acts respecting collieries, mines and manufactories. If the mortgagee take and retain possession of the property it will be as free from liability to answer an execution against the mortgagor as would any other personal estate, and once free, because under his dominion, it would continue so. The mortgage is of such a nature that under no circumstances can it come into competition with the judgment for the proceeds of sale on the execution ; the claim is on a chattel, and notice to the purchaser supplies the place of recording.
    6. An adverse claimant of a chattel, sold on execution against another, cannot take the money made from the execution-creditor; his remedy is by an action for recovery of the property, or damages.
    November 11th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 305.
    This was an action of ejectment brought by Peter Bolster, Frederick Erk and Frederick Iieidenreich against the Bismark Building and Loan Association of Allegheny City, to try the title ' to a leasehold in a lot of ground on Middle street, in Allegheny city, on which are erected four small two-story brick dwelling-houses. The fee-simple title in the lot is vested in Mrs. Mary E. Schenley, who leased the same to Dr. A. Weinmann, some twelve or fifteen years ago, for a term of years, which expired April 1st 1877. Weinmann erected the four dwellings at his own expense, and by the terms of the lease he had the right to remove the same at the expiration of the lease. While Weinmann held this lease, he gave a mortgage thereon to the Bismark Building and Loan Association for money loaned. When this lease expired, a new one was granted to Weinmann for the term of twenty years from April 1st 1877, at the annual ground-r.ent of $69.75. Weinmann assigned this new lease to the Bismark Building and Loan Association on May 80th 1877, 41 as collateral for the payment of a debt.” The plaintiff in error claimed on the trial that this assignment was really intended as an absolute sale, but on this question the j ury found against it. This assignment was never recorded. From the time the houses were completed until after the sheriff’s sale, under which defendants in error claim title, the houses were occupied by tenants of Dr. Weinmann. On June 15th 1877, the Friendship Building and Loan Association of Allegheny City issued an execution on a judgment for $2605.68, which it had against Dr. Weinmann, entered at No. 581, January Term 1873, which execution was delivered to the sheriff of Allegheny county on the same day (June 15th 1877) by virtue of which the sheriff levied on the leasehold and dwelling in dispute, and sold the same to the defendants in error on July 23d 1877. The president of the Bismark Building and Loan Association of Allegheny City, plaintiff in error, John Born, and the secretary thereof, Anton Schmidt, were present at this sheriff’s sale, and gave notice that the association had a mortgage on the leasehold, and the secretary had a statement showing the amount which the association claimed, but they did not bid on the property. There were three prior executions in the sheriff’s hands in favor of two other associations against Dr. Weinmann, two of which were issued and delivered to the sheriff on June 8th 1877, for $754.15 and $708.75, respectively, and the third for over $1300, issued on June 12th Í877, and delivered to the sheriff on the same day, on which executions the same leasehold was levied upon, but before the sale rules to open these three judgments, and staying proceedings in the meantime, were obtained. Pending these rules, the sale was made on the execution of the Friendship Building and Loan Association. All the rules to open the judgments were afterwards discharged. Dr. Weinmann was a prominent stockholder in all the associations having executions against him, and his ownership of the property, and that the same was, and had been for years, in the occupation of his tenants, was well known to the said associations, and also to the defendants in error, the purchasers, all of whom lived in the immediate neighborhood of the property.
    The defendant proved, and it was not disputed, that it took possession and control of the property in dispute, on the 30th of May 1877, and proved that it got possession and control of this leasehold and improvements in the following manner: Dr. A. Wienmann leased under a prior lease the lot of ground in dispute for a term ending the 1st day of April 1877, and erected four two-story brick dwelling-houses thereon, and during the continuance of this prior lease, and about four years before the expiration thereof, he, Weinmann, borrowed of the plaintiff in error $5980, and gave a mortgage on the leasehold to secure that amount, which was duly recorded. When this prior lease expired, April 1st 1877, there was still due and unpaid o‘n this loan the sum of $8648, and at that time the property had become reduced in value, not being worth at most more than $2000. Dr. Weinmann had been unfortunate in business, had no money whatever and no means of raising any; indeed, was so reduced that he could not pay the ground-rent and taxes of this property then in arrears, which the Schenley estate required to. be done before it would again lease the property. On the 80th of May 1877, two months after the prior lease expired, it was agreed between the plaintiff in error and Dr. Weinmann that the plaintiff in error should pay the ground-rent and taxes then in arrears, and procure a lease of the property, to be made direct to it, the plaintiff in error, in discharge of the mortgage debt.
    The plaintiff in error paid the ground-rent and taxes in arrears, and sought to have the lease made in accordance with the agreement with Dr. Weinmann, but the agent for the Schenley estate demurred, and stated that the lease should be made to Dr. Weinmann, and then assigned by him to the plaintiff in error, which was then and there done, the assignment being in the following words endorsed upon the lease: “For and in consideration of a certain sum of money which I owe the Bismark Building and Loan Association, and for the better securing the pp^ment of the same to the said building and loan association, I hereby assign, sell, transfer and convey to said association, as collateral security for the payment of the same, all my right, title and interest in and to the foregoing lease and improvements.
    “ Witness my 'hand and seal this 30th day of May 1877.
    “Dr. A. Weinmann. [seal.]
    “Witness: Francis Torrance.”
    This lease, although it has a different date, was executed with the above assignment at the same time and place, and delivered directly from the Schenley agent to the defendants,
    Upon the trial in the court below the question submitted to the jury was as to the character of the assignment, whether it was intended by the parties to it to be absolute or merely as collateral for the payment of the money due and owing. On the part of the plaintiffs it was contended that the assignment was collateral, and if so it was void as to creditors, and plaintiffs should recover notwithstanding the possession by the defendant. On the part of the defendant, it was contended first, that the assignment ivas intended to be, and was in fact, absolute and in satisfaction of the mortgage debt, and that the insertion of the clause as to collateral security was a mistake; and second, that even if collateral, when accompanied immediately by the delivery of possession, both of the lease and property described therein, the assignment.was good and valid until the payment of the debt secured.
    The following were among the points of plaintiffs, all of which the court, Collier, J., affirmed:
    2. That a mortgage on a leasehold or term of years in land, must be recorded (see Act of May 28th 1715, sects. 8 and 9, 1 Bright. Purd. Dig. 477 and 480), in order to make it valid as to subsequent execution-creditors.
    3. That a mortgage, either on real estate or on a leasehold in land, is discharged by a sheriff’s sale under a judgment either before or after the mortgage, unless the lien of the mortgage is preserved by some statute, notwithstanding the sheriff’s sale.
    5. That a mortgage of leasehold dwelling-houses is not within the protection of the Act of April 6th 1330 (1 Bright. Purd. Dig. 478), nor is it within the Act of March 23d 1867, section 3 (1 Bright. Purd. Dig. 479), and the lien of such a mortgage is discharged by a sheriff’s sale under a subsequent execution, and a purchaser under such execution takes the property clear of the mortgage.
    6. That the lien of the mortgage of the defendants, being a mortgage on leasehold dwelling-houses, was discharged by the sheriff’s sale of the property to the plaintiffs, and the latter took the property clear of the defendants’ mortgage, and are therefore entitled to recover.
    “ Affirmed if the jury find that the assignment was taken as collateral security, not absolutely.”
    The following were among the points of the defendant, which the court refused:
    2. That if the jury believe Dr. Weinmann owed the building association $4000, or thereabouts, on the 30th of May 1877, and the assignment was made to them, which is in evidence of the same date, and that the building association took possession immediately under this assignment, and proceeded to collect rents, pay taxes, &c., in that case taking the assignment at -what it states on its face, the defendant being in possession was notice to all claimants upon Dr. Weinmann, and no writ of fieri facies issued after that time upon which the sheriff made a sale, could affect the rights of the defendant.
    3. The defendant being in possession at the time plaintiffs issued their writ of fieri facias upon which the sheriff sold this property, the defendant can retain possession of the property (aside from the evidence submitted) until it has been paid the money owed it.

      Verdict for plaintiffs, when defendant took this writ, and alleged, inter alia, that the court erred in their answers to the above points.

      J. S. Cook and R. B. Petty, for plaintiff in error.
    The lease in this case was for twenty years, and is expressly exempted from the operation of the recording acts by section 3 of March 18th 1775 (Purd. Dig. p. 473, sect. 78), which reads as follows: “Provided always, That this act shall not extend to any lease not exceeding twenty-one years, where the actual possession and occupation goeth along with the lease, anything in this act to the contrary notwithstanding.” In Williams v. Downing, 6 Harris 60, it is held that leases for years under twenty-one years, accompanied by possession, need not be recorded nor assignments of such. We hold that neither the lease nor the assignment were within the purview of the recording acts. It has never been the practice in this state to record leases of lands and tenements for years or their assignment. If the rules of law as to pledges of chattels apply to the case of a chattel real, there can be no question as to the right of the pledgee or mortgagee in possession as against creditors of the mortgagor. Fry v. Miller, 9 Wright 441.
    In Luckenback v. Brickenstein, 5 W. & S. 145, it was held that the mortgage of a leasehold was governed by the laws concerning chattels, and that such a mortgage, accompanied by delivery of possession, would be valid against execution-creditors.
    A term of years is a chattel which might always be sold on a common-law execution. Our statutes subjecting land to the payment of debts left the writ of fi. fa. as to chattels exactly where it found it: Dalzell v. Lynch, 4 W. & S. 256 ; Sterling v. Commonwealth, 2 Grant 162 ; Comyn’s Digest, vol. 4, p. 229.
    When goods or chattels are pawned, or demised for years, or they have been distrained or in any other way are subject to a lien in the hands of a third person, the sheriff can only seize and sell the right of the defendant in such goods, subject to the rights of such third person : Bouvier’s Inst., sec. 3391; Comyn’s Dig., vol. 4, p. 230; Brightly’s Purd. vol. 1, p. 635, sect. 13.
    A. P. Weger and John 3. Kerr, for defendants in error.
    The assignment of the lease as collateral security for a debt was, at most, only a mortgage: Russell’s Appeal, 3 Harris 319; Luch’s Appeal 8 Wright 519; Fry v. Miller, 9 Id. 441; Edwards v. Trumbull, 14 Id. 509. Leasehold mortgages were included in the Act of 1715, and must be recorded to make them valid as to subsequent judgment creditors. While the Act of 1775 excepts leases not exceeding twenty-one years, accompanied by actual possession, it does not except mortgages on leaseholds. The mortgage on the leasehold was discharged by the sheriff’s sale : Willard v. Norris, 2 Rawle 64; McLanahan v. Wyant, 1 P. & W. 112; Hoover v.
      Shields 2 Id. 135; Corporation v. Wallace, 3 Rawle 109; Hibberd v. Bouvier, 1 Grant 266; Strauss’s Appeal, 13 Wright 353 ; Dickinson v. Beyer, 6 Norris 274; Uhler v. Hutchinson, 11 Harris 110; Girard Ins. Co. v. Farmers’ Bank, 7 P. F. Smith 388; Wertz’s Appeal, 15 Id. 306.
    The possession of the plaintiff was neither actual nor constructive : Bowers v. Oyster, 3 P. & W. 239; Hulings v. Guthrie, 4 Barr 124 ; Wilson v. Schoenberger, 7 Casey 295 ; s. c. 10 Id. 121; Corpman v. Baccastow, 3 Norris 363.
    But even if the plaintiff in error had such possession as would amount to constructive notice, in ease its assignment had been an absolute sale, yet in the ease of an unrecorded mortgage the notice must be actual personal notice before the lien of subsequent creditors attach, for in the case of unrecorded mortgages, or judgments not entered on the judgment docket, the law has provided one kind of constructive notice only, to wit, by the record : Smith’s Appeal, 11 Wright 128 ; Edwards v. Trumbull, 14 Id. 512; York County Bank’s Appeal, 12 Casey 458; Lahr’s Appeal, Leg. Int., Oct. 17th, 1879, p. 403 ; Britton’s Appeal, 9 Wright 172; Peebles v. Reading, 8 S. & R. 495; Scott v. Gallagher, 14 Id. 333; Marshall v. Dunham, 66 Maine 539.
   Mr. Justice Trunkey

delivered the opinion of the court, November 17th 1879.

This ejectment is to recover possession of an estate for years which had been granted to A. Weinmann. The lease was dated March 30th 1877, executed on the 30th of the following May, and Weinmann, at the time- of its delivery, assigned all his interest therein and the improvements thereon to the defendants below, as collateral security for a debt he owed them; and gave them a power of attorney to collect the rents, as collateral security, until all debts due them are paid in full. At the trial the defendants claimed that the assignment was intended to be an absolute payment of the debt, and gave evidence tending to prove a mistake in the writings, and that actually they were given and received in payment; but the jury found against them on this point. Hence, in the present hearing, their title rests upon the assignment and power of attorney as written, and they concede it is a mortgage.

The Friendship Building and Loan Association held a judgment against Weinmann for $3520, which was entered January 23d 1873; and June 19th 1877, by virtue of an execution issued to collect the same, the sheriff levied on the leasehold and improvements and sold them to the plaintiffs, to whom he delivered á bill of sale dated August 16th 1877.

As between Weinmann and the defendants the mortgage is valid. The sheriff’s sale having been on a judgment prior in date, the mortgage has no superior equity, and the purchasers can recover, unless the fact of possession in the mortgagees entitles them to hold the property till their debt shall be paid. If they were so entitled the defendants’ second point ought to have been affirmed, for there was sufficient evidence of possession, taken immediately under the -assignment, to warrant a finding of the fact. As a general rule, a mortgage of personal property, like a sale, is void as against creditors, if a corresponding change of possession does not accompany the same. But when a removal of the property is impracticable, when all has been done that reasonably can be to mark the change of ownership and possession, the law is satisfied. Here the property was occupied by tenants of Weinmann; and if the lease, at the time of its execution, was assigned and delivered to the mortgagees, with the knowledge of the lessor, and the lessee’s tenants were notified thereof, and that they should pay the rents accordingly, which they did, and the lessee, Weinmann, withdrew from the occupancy and control of the property, the transfer of possession was complete. Indeed, the learned judge of the Common Pleas deemed the evidence sufficient to submit, as shown by his instruction that if the defendants “took this property from Weinmann as absolute payment of what he owed them, and took possession of it,” the assignment would be good and they could hold it. He held, that if taken as collateral security — a mortgage —the plaintiffs could recover, even if the defendants had taken-possession.

Mere possession of an estate for years is akin to that of an estate for life in fee. The term of a tenant is as immovable from a specific tract of land as is the freehold. Estates for years are often of greater value than life-estates, and not infrequently have been mortgaged. Anciently they were of little importance, and then those rules were established which still pervade our laws, marking the distinction between freeholds and estates less than freehold. A long term of years of very great value is not such an-interest in land as is subject to the lien of a judgment, it is a chattel, subject to seizure and sale by a constable on an execution issued by a justice of the peace. All kinds of property may be mortgaged to secure debts. A mortgage of personal property, in some respects, is like a pawn or pledge. Without delivery of possession to the mortgagee, it is a nullity as to creditors, unless made under some statute; but if possession be given, the mortgagee may hold it till his debt is satisfied. At most a creditor of the mortgagor can only sell it subject to the claim of the mortgagee, whose lien is not divested by the sale, and who is not entitled to share in the proceeds. The purchaser at a sheriff’s sale takes just the interest, if anything at all, which was left in the mortgagor. Whether the mortgage of a leasehold is within these familiar principles is the pivotal question in this cause.

The Act of May 28th 1715, section 8, provides that, “ No deed or mortgage, or defeasible deed in the nature of mortgages, hereafter to be made, shall be good or sufficient to convey or pass any freehold or inheritance, or'to grant any estate therein for life or years, unless such deed be acknowledged or proved, and recorded within six months after the date thereof, where such lands lie, as hereinbefore directed for other deeds.” Section 9 of the same act provides for the entry of satisfaction by mortgagees “ of any real or personal estates.” It is observable that no personal estate is within that act save estates for years in lands. By Act of March 28th 1820, all mortgages for any lands, tenements or hereditaments, shall have priority according to the date of recording the same; “ and no mortgage or defeasible deed in the nature of a mortgage, shall be a lien until such mortgage or defeasible deed shall have been recorded or left for record as aforesaidexcept mortgages for purchase-money, which may be recorded within sixty days from their execution. The same terms — lands, tenements and hereditaments — omitting estates for years, were used in the Act of 1783, which provided for the validation of mortgages executed between January 1st 1776, and June 18th 1778. In the Act of 1830, and subsequent acts, providing, in case of judicial sale, for the preservation of the lien of a mortgage, when prior to all other liens on the same property, the subject of the mortgage is described as “real estate.” Section 8, of the Act of April 27th 1855, authorizes mortgages by the lessees of collieries, mines and manufactories ; and the Act of April 3d 1868, Pamph. L. 57, directs the remedy for collection in all cases of mortgages upon leasehold estates. The statutes relating to mortgages reveal, at a glance, that it is not their intendment to include leaseholds in the words properly signifying freeholds. A principal purpose of the Acts of 1783, of 1820 and of 1830, was to define liens of mortgages, their commencement, their preservation; and estates for years were omitted, for no judgment is a lien upon them. Had the various acts all used the words, “lands, tenements and hereditaments,” which technically do not embrace estates less than freehold, in stating the subjects of mortgages, then, for reasons given by Chancellor Kent in Johnson v. Stagg, 2 Johns. 510, we might adopt his conclusion that leaseholds are within their meaning. But the legislature having employed apt words for the different classes of estates, it would be a misinterpretation to confound one with the other. Therefore, the Act of 1820 has no relation to mortgages of leaseholds; nor have any other acts which relate exclusively to mortgages of real estate.”

Unrecorded mortgages are good between the parties, and against a purchaser with notice, as settled by numerous decisions. It is manifest, that the Act of 1820 was passed for security of liens by judgment: there was no such reason respecting chattels, and they were left under the terms of the Act of 1715. Consequently, it is unnecessary, for any purpose, to record a mortgage for an estate for yeai-s immediately; it may be done within six months, when it does not come within the Acts respecting collieries, mines and manufactories. If the mortgagee take and retain possession of the property, it will be as free from liability to answer an execution against the mortgagor, as would any other personal estate; and once free, because under his dominion, it would continue so. If levied on and sold, the claim of the mortgagee would be no more divested, than if the property were a horse and sold subject to the mortgage. The mortgage is of such a nature, that under no circumstances can it come into competition with the judgment for the proceeds of sale on the execution — the claim is on a chattel, and notice to the purchaser supplies the place of recording. An adverse claimant of a chattel, sold on execution against another, cannot take the money made, from the execution-creditor — his remedy is by action for recovery of the property or damages. It is so clear, that a mortgage of personalty must be accompanied by possession, to make it valid against an execution in favor of a creditor of the mortgagor, and that a sale on such execution is subject to the mortgage^ that it is perhaps, not singular that no case has been cited similar to this. Luckenback v. Brickenstein, 5 W. & S. 145, is not in point, though it seems to have been understood, by court and counsel, that possession of a mortgaged leasehold was an essential as against creditors, and, that existing, it was good.

Of course, what has been said of the necessity and effect of a change of possession, applies to an unrecorded mortgage. When recorded within six months, possession not changed, of the effect of a sale on execution, before the date of record, we say nothing. Whether a mortgage of a leasehold, duly recorded, not accompanied by possession, is good against execution-creditors, is not a question in this cause. Possibly such mortgage is valid under the Act of 1715, the record standing for possession.

The sheriff’s sale was less than six months after the execution of the mortgage, and neither creditors nor purchasers can complain because it was not then recorded. We are of opinion, that the fifth assignment of error must be sustained. It is unnecessary to specially remark upon the others, they follow the fifth, and what has already been said, gives our views on the various points they present. The jury should have been instructed, that if they found the facts, as assumed in the defendants’ second point, the verdict should be in their favor, otherwise for the plaintiffs.

Judgment reversed, and a venire facias de novo awarded


author: Chief Justice Sharswood

text:
    Hostetter's Appeal.
    By agreement of the parties, which was made an order of court, two cases were referred to three masters, “ to take testimony and report the facts, with the form of a decree, under and in pursuance of the agreement herewith filed.” The agreement also stipulated that the awards of the masters should be final, “without exception or appeal.” Held, that the awards of the masters were conclusive, and that appeals therefrom must be quashed.
    November 12th and 13th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trtjnkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, Nos. 1 and 2. In equity.
    Appeal of David Hostetter from the decision of the court in certain proceedings in equity. The case will be found stated in the opinion of this court. [See also Lewis’s Appeal, 10 Norris 359. — ■ Rep.]

      John Barton, A. E. .Clarice and Thomas M. Marshall, for appellant.

      Eampton Balzell and Robert Woods, for appellees.
   Chief Justice Sharswood

delivered the opinion of the court, January 5th 1880.

These are appeals from the decree of the Court of Common Pleas, No. 1, of Allegheny county, in two equity causes, in which the appellant was the complainant. The appellees have moved the court to quash these appeals on the ground that the appellant has precluded himself by his agreement from such appeal. The question is whether the agreement to that effect, which without dispute he entered into in the court below, is binding upon him. That agreement, though originally in the form of a submission to arbitration, was afterward, with the consent of all the parties, made an order of the court below in which the causes were pending, referring the cases to three masters, “ to take testimony and report the facts with the form of a decree, under and in pursuance of the agreement herewith filed.”- This agreement, adopted by the court and in effect- made a.part of its order, stipulated that the awards of the referees or masters should be final “ without exception or appeal.” It cannot be questioned that the court below, with the consent of all the parties, had power to make the order of April 9th 1875. The effect of it undoubtedly was very much to enlarge the jurisdiction and powers which the masters would have had under a simple reference to them as masters in chancery. They were no longer confined to the matters in issue in the bills and answers.

The agreement, after reciting that the parties were desirous of compromising and finally settling all differences between them, either as firm or individuals, in the premises,witnessed, “that the parties, in compromise and settlement of all matters in dispute or at variance between them have agreed, and by this agreement, do agree to and with each other to refer unto J. H. Miller, F. M. Magee and J. F. Slagle, as arbitrators and referees, for their joint arbitrament and decision, all controversies of whatsoever kind or nature which have arisen or which may arise by reason of the premises, as well as all collateral controversies between said parties or any of them, the decision of which may be necessary for the full and final settlement of the matters in issue in said cases, or in any manner connected therewith ; and said parties- hereby further agree to submit to the award of said arbitrators or a majority of them, without exception or appeal, hereby respectively binding themselves, their heirs, executors and administrators, each to the other, for the faithful observance of the terms of this agreement.”

In submitting this agreement to the court and procuring the order of April 9th 1875, the parties acted in strict accordance with the decision of this court in Cotton v. Babcock, 14 P. F. Smith 462. It was there held that a suit in equity could not be referred under any section of the Act of June 16th 1836, but it was also said: “ Parties to a proceeding upon the equity side of the court, no doubt may refer the case to persons mutually chosen to find and report facts to the court, whether called referees or masters is immaterial. There is nothing in the name. But on coming in of the report, it is the duty of the court, giving to it all the effect to which it is justly entitled, to proceed to make a final decree in the cause.”

Courts ought certainly to encourage the settlement of law-suits by amicable reference, and enforce all agreements to make the decisions of such referees final and without appeal. It is the interest of the Commonwealth that there should be an end of litigation, and certainly this is true of controversies of the character of that now in question. It was not proper for the determination of a court. To examine and decide it intelligently they would have to devote as much time to it as did these masters, to the manifest denial of justice to all other suitors. It would take an entire term to hear and decide it as it ought to be heard and decided. The most liberal construction should be given to the terms of such agreements, in order to effectuate the intention of the parties to end their strife. They would be deprived of all their advantages, if after a full hearing before judges of their own choosing, the case must be reheard in court.

The great contention on the part of the appellant has been, that the masters exceeded their powers, and did not, in the mode of their decision, conform to the terms of the submission. The widest range was taken in the oral and written argument. When we examine the broad terms in which the agreement is couched, it ia not easy to comprehend how any matter, which was at any time in dispute, then or thereafter, would be beyond their reach. Undoubtedly the order of April 9th 1875, in some respects modified the agreement. It was no longer a simple arbitrament. It was no longer necessary or indeed proper, for the masters to file different decrees or awards in the several suits at law or in equity. The order, by the consent of the parties by necessary implication, consolidated the proceedings, so that one decree could finally determine all disputes. It is the favorite policy of courts of equity to do this. It follows, that every amendment necessary to give effect to the order was also necessarily implied. The learned court by reserving to itself, as it properly did, the entry of the final decree at the same time, reserved to itself the power of approving or modifying the decree, the form of which, they directed to be reported by the masters. Accordingly, both masters and parties so understood it. Exceptions were filed before the masters and in court — were heard and disposed of.

The stipulation, however, that there should be no appeal, remained unaffected by the order. An appeal could only be to this court. Under the original agreement, there was no appeal from the award— under the order converting it into a reference to the masters — there was no appeal to the chancellor. The only appeal that could be had, was from the final decree to this court. That was expressly waived. The court below heard all the exceptions to the proceedings of the masters,-and the final decree of that court is without appeal. It is unnecessary, therefore, to examine the grounds or reasons of the appeal.

Appeals quashed.


author: Per Curiam.

text:
    Burrill versus The Dollar Savings Bank.
    Among the rules of a savings bank was the following: “ If any person shall present a deposit book at the office of this corporation, and allege himself or herself, untruly, to he the depositor named therein, and shall thereby obtain from the officers of this corporation the amount deposited, or any part thereof, and the actual depositor shall not have given previous notice at the office of his or her book having been lost or taken from him or her, this corporation will not be responsible for the loss so sustained by any depositor, neither will this institution be liable to make good the same. Provided, that such payment has been entered in the book of the depositor at the time when made.” The book of a depositor was temporarily abstracted from his trunk and certain moneys drawn from the bank without the knowledge of the depositor. He afterwards brought suit for the amount, and it was alleged that the above rule relieved the bank from liability. Held, that the rulé' of the bank was reasonable and necessary for its safety, and that plaintiff could not recover. Held, further, that the fact that plaintiff was illiterate and could not read the rules in the bank book delivered to him, made no difference.

      November 13th 1879.
    Before Sharswood, 0. J., Mercuu, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas No. 2, of Allegheny . county: Of October and November Term 1879, No. 323.
    Assumpsit by Samuel Burrill against the Dollar Savings Bank, to recover the amount of a deposit.
    Plaintiff was a colored man, who, at the time he opened his account with the bank in 1868, could neither read nor write. When he opened the account, he made his mark on the signature book of the bank; but subsequently having learned to read and write he, in 1876, signed the book with his own hand. The rules and regulations of the bank were printed on the back of the bank book, which was received by plaintiff, the first of which was as follows:
    “ SecT. 1. Every person desirous of becoming a depositor shall, at the time of making the first deposit, receive a Deposit Book containing the following Rules and Regulations printed therein; and, by receiving the book, the depositor will be considered as agreeing to be bound by the By-Laws of the Dollar Savings Bank. One Book only will be given out in the same name.”
    In addition to this, the following notice and rules were printed on the page fronting the title page of the bank book:
    “ TAKE CARE OE THIS BOOK.
    If you lose or mislay it, give immediate notice to the Bank ; as, if it gets into improper hands, you may be defrauded. Read the rules in the back of the book.
    By-laws.
    Sect. 10. — If any person shall present a deposit book at the office of this corporation, and allege himself or herself, untruly, to be the depositor named therein, and shall thereby obtain from the officers of this corporation the amount deposited, or any part thereof, and the actual depositor shall not have given previous noticce at the office, of his or her book having been lost or taken from him or her, this corporation will not be responsible for the loss so sustained by any depositor, neither will this institution be liable to make good the same. Provided, That such payment has been entered in the book of the depositor at the time when made.”
    On the 7th of December 1876, the treasurer of the bank, Mr. Colton, received a letter, evidently written by a person of meagre education, signed “ Samuel Burrill, No. 926 Locust street, Philadelphia,’’informing him that he wished to draw $195, and asking him how he would go about it. Mr. Colton replied by sending him a blank check, directing him to fill up and sign it, and take it to any banker in Philadelphia, who would forward it for collection. He also directed him to send his bank book with the check, or by mail, as the check would not be paid unless the book was in the bank. On the 14th of December the book was received, together .with a letter directing its return by mail after payment of the check, and the entry of the same in the book. On the 30th, the check was presented by the messenger of the First National Bank of Pittsburgh and was paid. An entry to that effect was made in the depositor’s bank book, which was returned by mail the same day to the address indicated in the letters.
    The following is a copy of the check, with its endorsements:
    Open daily from 9 o’clock A. M. to 3 o’clock P. M. No Money paid without notice. Notice dates from the time the Book is left at the Bank.

      No. of Booh, 20,366. 1195.00.

      Philadelphia, Pa.

    [Stamp.] Pittsburgh, December 14, 1876.
    DOLLAR SAVINGS BANK.

      Two Weeks after date,

      Pay to order of Samuel Burrell,.....or Bearer,

      One Hundred and Ninety-Jive, .... Tj}g- Dollars.

    Witness: Sign here, First Name in Full.
    John S. Bailey. Samuel Burrill.
    is¡ E> S3 % M EH Ph O pq o ¡Z¡
    Endorsed.
    Pay to P. W. Elder & Co., or order.
    Samuel Burrell.
    Pay to J. D. Scully, Cashier, or order, for collection,
    P. W. Elder & Co.
    J. D. Scully, Cashier,
    Blair.
    Burrill had left Pittsburgh,-and was employed in Philadelphia as a waiter. His bank book had been abstracted temporarily from his trunk by some unknown person, and the money-secured by personating him, and using the book as above set forth. Plaintiff did not know that his book had been taken, until he applied for the money, when he was informed that the above amount had been drawn. When he was notified of the charge by the clerk at the bank he disputed it, denied all knowledge of it, and demanded payment of the amount so charged, together with what the bank admitted was due to him. This the bank refused to pay, claiming that, even if the check for the $195 was a forgery, it was relieved from payment of that sum under the provisions of sect. 10 of-its by-laws above quoted. Suit was therefore brought, and a verdict rendered by the jury for the full amount of plaintiff’s claim,- subject however, to the question of law reserved, which was substantially whether or not plaintiff is concluded by the terms of sect. 10 of the by-laws, which were printed in his book.
    In an opinion on this question the court, White, J., said :
    “ Sections 1 and 10 of article 11, of the rules and regulations of the defendant company, are reasonable and proper for the protection of the defendant company, and not unreasonable or too strict upon depositors. It is not requiring too much of them to keep their deposit books safely, and it is expressly so stipulated in the contract with them. The depositor must be presumed to know what the printed rules and regulations of his book require. If he cannot read he should inquire what they are. Common sense tells him they are there for some purpose; and common prudence would dictate that he should inquire of some one what they are, and how they may affect him. Besides, section 10 .was printed by itself, in larger type on the front page, making it very prominent to the eye.
    “ We are, therefore, of the opinion, that the credit $195 should be allowed. Judgment is ordered to be entered for the plaintiff for $194.57 oh the verdict, on payment of the verdict fee.”
    This action of the court was assigned for error by plaintiff, who took this writ.

      H. H. McCormick, for plaintiff in error.
    The plaintiff was guilty of no negligence. He kept his book as securely as it was possible for him to keep it. It was admitted he could not read, and his attention was not called to the provisions of the rule. Plaintiff knew nothing about these by-laws, and never assented to them, nor agreed, either expressly or impliedly, to be bound by them. It is well settled that to make a limitation binding knowledge must be brought home to the depositor: Camden & Amboy Railroad Co. v. Baldauf, 4 Harris 67; Verner v. Sweitzer, 8 Casey 208. The case of Baxendale v. Bennett, Law Rep., 3 Q. B. Div. 575, is cited on the question of negligence. As plaintiff did not know that his bank book was stolen, and could not therefore give notice to the bank, as required by rule 10, its terms cannot be held to apply to'his case. The rule must be construed reasonably, and ought not to be held to require impossible things.

      Rodgers & Oliver, for defendant in error.
    This bank is what is known as a provident savings institution. It has no capital stock, and the profits are divided among the depositors. In 1879 it had over 12,000 depositors, and $5,000,000 of deposits. In such an institution it is impossible to recognise the face and signature of each depositor, and some rule is therefore necessary to limit the liability of the bank in case of an attempt to defraud it. In Massachusetts it has been ruled that a depositor in a savings bank, by accepting a deposit book, assented to the by-laws, and it thus became a contract between the parties, though the depositor could neither read nor write : Goldrick v. Bristol Co. Savings Bank, 123 Mass. 320 ; Levy v. Franklin Savings Bank, 117 Id. 448.
    - The right of savings banks to make reasonable rules with reference to depositors was upheld by implication in the recent case of Cupps v. The Peoples’ Savings Bank, 10 Norris 315, though it was rightly added that they must be held to a strict compliance with their own rules. The rules under consideration in that case were almost identical with rules 8 and 10. The court there says : “It cannot be pretended that Mrs. Cupps’s money was paid out in conformity with any one of these by-laws. It was paid out on forged orders, and these orders were not ‘properly witnessed,’ as the by-laws required orders 'of absent depositors to be.”
    In this case the order was properly witnessed, and the bank officers acted in strict conformity with its by-laws.
   The judgment of the Supreme Court was entered November 24th 1879,

Per Curiam.

Savings banks like the defendant in error are really charities for the benefit of the poor. With many thousands of depositors they can only save themselves from imposition and loss by rules strictly enforced. The rule under which the defendants claim protection is a very reasonable one, and necessary for their safety. The fact that the plaintiff was illiterate, and could not read the rules in the bank book delivered to him, made no difference. He ought to have requested it to be read to him. Common prudence required this precaution. It is altogether unlike the cases of Camden and Amboy Railroad Company v. Baldauf, 4 Harris 67, and Verner v. Sweitzer, 8 Casey 208, relied on by the plaintiff in error.

Judgment affirmed.


text:
    In re Contested Election of E. C. Mathews.
    1. Where a motion to quash a petition in a contested election case was refused, every presumption is to be made in favor of the proceedings of the court below.
    2. Where an election for alderman is contested, the court should determine who has been duly elected.
    November 13th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Certiorari to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1879, No. 44.
    On the 2'7th of February 1878, a petition was presented to the Court of Quarter Sessions, signed by twenty-five persons, alleged to be qualified electors of the Seventh Ward of the city of Pittsburgh, contesting the election of Edwin C. Mathews, as alderman of said ward, and averring that the votes in the second precinct of said ward had not been properly counted.
    On the 16th of March 1878, Mathews filed his answer to said petition, denying the allegations therein, and alleging that fraudulent votes had been cast in the third precinct for Joseph A. Butler, and that a fraudulent count of the votes in said precinct had been made in Butler’s favor.
    A replication was filed to this answer, and a commissioner appointed to take testimony. On the 13th of April 1878, Mathews presented his petition to court, alleging therein that the petition to contest his election had not been signed by twenty-five qualified electors of said ward, and specifying the parties who signed the petition who were not such qualified electors, and prayed the court to quash the petition to contest the election. An answer was filed denying the averments in said petition, and counsel for Mathews then filed a motion to have a commissioner appointed to take testimony, which the court held under consideration, and eventually dismissed the petition to quash without hearing any evidence, which action of the court was assigned for error by Mathews, who took this writ.
    Considerable testimony was taken by the commissioner appointed on the petition to contest the election, and returned to court on the 7th of December 1878, and on the 4th of January 1879, the court filed an opinion finding that Joseph A. Butler had received the highest number of legal votes, and declaring him to be the duly elected alderman of the ward, which was also assigned for error.

      D. T. Watson and J. W. Over, for Mathews.
    The proceedings below should be reversed because the respondent, Mathews, filed a denial under oath that the petition had been signed by the proper number of authorized contestants; and the court refused to dismiss the proceedings, or to allow Mathews to prove that his allegations were true. The Act of 1874 absolutely requires that, in order to give the court below jurisdiction, a petition must be presented signed “ by at least twenty-five qualified electors who voted at the election contested.” If the contesting petition below was not so signed, clearly the court below had no jurisdiction, and if it had no jurisdiction the whole proceedings are void.
    The Act of 1874 provides for four classes of contested elections. In contests of the third class the court may determine who received the greatest number of votes and was legally elected. But in contests of the fourth class the specific power of determining who is elected is not given.
    It is true that by section 17, the ordinary powers necessary to a hearing of the case are given, and broad language is used, which it is apparent refers only to the ordinary powers of compelling attendance, &c. But the specific power to determine and declare who is legally elected was not given in the'fourth class of cases. The court, therefore, had no such power ; but if the court thought, under all the evidence, that Mathews had not been elected, it should have set aside the returns and ordered a new election.

      John S. Lamhie and Duff Alcorn, contra.

    This contest arises under the 16th section of the Act of 19th May 1874, and the 18th section of the same act. The 17th section, providing “ that cases of this class shall be tried and determined by the Court of Quarter Sessions of the peace of the county in which the election contested shall be held;” The language of this act certainly means the court shall determine the facts alleged in the petition, and the petition averred that Butler, and not Mathews, was duly elected alderman of the Seventh Ward.
    It has been held by this court In re Contested Election of Barber, 5 Norris 392, that the Act .of June 21st 1839, in relation to contested elections, so far as it has not been directly repealed by the Act of 1874, has yet all the controlling efficacy it would have if the Act of 1874 had not been passed. The latter act was passed simply to regulate the mode of trying and deciding election contests, and did not repeal the 3d section of the Act of June 21st 1839 (except by transferring the jurisdiction from the Common Pleas to the Quarter Sessions Court, and by changing the number of petitioners, &c.).
    It seems then clear that this court having held in Barber’s Case, supra, that this act was still in full force, the court below had full and abundant power to determine who was duly elected alderman of the Seventh Ward. The refusal to quash the petition in an election case is not ground of error: Election Cases, 15 P. F. Smith 20.
   The judgment of the Supreme Court was entered November 24th 1879,

Per Curiam.

This is a common-law certiorari, and brings up only what is strictly the record. We can not review the case as on appeal. Every presumption is to be made in favor of the proceedings of the court below: Election Cases, 15 P. F. Smith 20. An application was made to quash the proceedings in the court below, and an answer filed denying the allegations of the petition. No doubt the court had sufficient reasons for denying the motion. The refusal to appoint a commissioner to take testimony proves nothing. They may have heard the testimony in open court. ,

The remaining assignments of error are sufficiently answered by referring to the ease of In re Contested Election of Barber, 5 Norris 392. Proceedings affirmed.


author: Mr. Justice Paxson

text:
    Hare versus Commonwealth, to use, &c.
    1. Since the passage of the Act of April 8th 1873, the interest of a partner in firm property cannot be levied upon under an ordinary fi. fa., and the mode prescribed by the act must be pursued.
    2. Per Paxson, J. A new writ is not needed. A fieri facias is the proper writ, and all that is required is to alter it so as to conform to the Act of 1873. The proper practice is to direct the prothonotary, by the praecipe, to issue a fieri facias, commanding the sheriff to levy upon the interest of the defendant in the particular partnership, as set forth in the act. The Act of Assembly has sufficiently designated the form of the writ.
    November 18th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 379.
    Case stated wherein the Commonwealth of Pennsylvania, to use of John Porterfield & Co., was plaintiff, and John H. Hare, sheriff, and James Kelly and M. B. Brown, his sureties, were defendants. The following was the case as stated:
    That on June 9th 1875, John Porterfield & Co. obtained a judgment against John L. Lloyd, William Gordon, James Collins and C. L. Brennan, owners of the steamboat “ Juniata,” at No. 1224 'June Term 1875, of this court, for $1229.90, and the same day issued upon said judgment a writ of fi. fa., No. 55 September Term 1875, returnable to the first Monday of September 1875, which execution was received by the sheriff, J. H. Hare, Esq., at 9 o’clock, A. m., of the 10th of June 1875, and so endorsed by said Hare upon the wmit. The counsel for the plaintiffs gave no instructions to the sheriff at the time of the delivery of said writ to him, or at any time thereafter, and did not know of any property belonging to the defendants in said writ, or any of them, to levy upon. I
    That on July 13th 1875, the Champion Coal and Tow-boat Company obtained judgment against the same defendants, Lloyd, Gordon, Collins and Brennan, owners of the steamboat “ Juniata,” at No. 897 July Term 1875, of the Court of Common Pleas, No. 2, of this county, for $2940.08, and on July 14th 1875, issued thereon a fi. fa., No. 88 October Term 1875, specially directing said sheriff to levy upon the interest of John L. Lloyd in and of any and all personal, real or mixed property, rights, claims and credits of the partnership styled J. G. De Huff & Co. (of which the said Lloyd was a member at the date of said fi. fa.), carrying on the druggist business in the borough of Sharpsburg, in Allegheny county, and having its chief place of business in said county; and of the interest of the said Lloyd in and of any and all property, rights, claims and credits of the partnership styled the ¿Etna and Sharpsburg Savings Bank (of which said Lloyd was a member at date of said fi. fa..), carrying on the business of banking, and having its principal place of business in said county. That said fi. fa., No. 88 October Term 1875, containing said special levy, was re.ceived by the said John H. Hare, sheriff, at 9 o’clock, A. m., of the said 14th day of July 1875, and that in pursuance thereof, he, the said sheriff, did, on the said 14th day of July 1875, at 9 o’clock, A. M., levy upon the interest of said John L. Lloyd in and of all personal and mixed property, rights, claims and credits of said partnership firms of J. 0. De Huff & Co., and “ The Sharpsburg and iEtna Savings Bank,” as in and by said writ he was directed and commanded to-do, and by virtue of said writ and levy, having first given due and legal notice of the time and place of sale, did, on the 23d day of July 1875, expose to public sale the interest of said John L. Lloyd in and of the personal and mixed property, rights, claims and credits of the said partnership firms, and sold the same for the sum of $>1320. That said fi. fa., No 55, September Term 1875, remained in the sheriff s hands from the time of its receipt by him as aforesaid, until after the sale above mentioned, without any levy having been made under the same upon the interests of said John L. Lloyd in said partnership firms. That after said sale of July 23d 1875, the said John H. Hare, sheriff, finding said fi. fa. No. 55 September Term 1875, to be in his hands and to be prior in order of time to said fi. fa., No. 88 October Term 1875, refused to appropriate the proceeds of said sale to either of said writs (they being claimed by the respective plaintiffs in each of said writs), but, after deducting the costs in both writs, to wit: the sum of $>34.03, by leave of court he paid the balance, ¡$1285.97, into court. That thereupon the court appointed an auditor to make distribution of said proceeds, before whom the plaintiffs in said writs appeared and made proof of the facts herein stated. That said auditor, on November 29th 1875, reported to this court a distribution appropriating the fund, paid into court as aforesaid, to said fi. fa., No. 88 October Term 1875. That exceptions having been taken by the plaintiffs in fi. fa., No. 55 September Term 1875, to the finding and distribution of said auditor, they came on for hearing before this court, and were overruled and the report of said auditor confirmed absolutely. That said exceptants thereupon took an appeal to the Supreme Court of this state, at No. 151 October and November Term 1876, assigning for error the rulings of this court in overruling said exceptions and confirming said report; at which term the said Supreme Court affirmed the rulings of this court. That upon said action of this court and of the said Supreme Court, the proceeds of said sale were paid out of court to said fi. fa., No. 88 October Term 1875, whereupon the said plaintiffs, being the plaintiffs in said fi. fa., No. 55 September Term 1875, brought this action.
    Now it is -agreed that if the court is of opinion that it was the duty of the sheriff, when informed by the special levy contained in said fi. fa.. No. 88 October Term 1875, of the partnership interests of said John L. Lloyd in said firms of J. G. De Huff & Co. and The Sharpsburg and iEtna Savings Bank, to have levied upon said interests under said fi. fa., No. 55 September Term 1875, at or prior to the sale thereof, and that a levy so made would, notwithstanding the levy made in pursuance of special directions under said fi. fa., No. 88 October Term 1875, have given to said fi. fa., No. 55 September Term 1875, priority in the distribution of the proceeds of said sale, then judgment to be entered for the plaintiffs against the defendants for the sum of $1285.97, with interest from the first Monday of September 1875.
    But if the court be of the opinion that said fi. fa., No. 88 October Term 1875, which specially directed the sheriff to levy upon said John L. Lloyd’s interests in said firms, would have had priority in the distribution of the proceeds of said sale, notwithstanding any levy the sheriff might, subsequently to the reception of said writ, have made thereon, by virtue of said fi. fa., No. 55 September Term 1875, then judgment to be entered for defendants.
    The court was of opinion that the law under the facts as stated was with the plaintiff, and directed judgment to be so entered for $1285.97, with interest from the first Monday of September 1875, and costs.
    The defendants took this writ, and assigned this action of the court for error.

      S. H. Geyer, for plaintiffs in error.
    Prior to the Act of April 8th 1873, Pamph. L. 65, a fi. fa. in the hands of the sheriff did not hind the interest of a defendant in a partnership before actual levy thereon. To hold that the interest of a defendant in a partnership is bound by a fi. fa., from the date of its delivery to the officer, might and would in many instances lead to very great injustice, and seriously interfere with and retard the dealings and transactions between the partners themselves, and would necessarily discourage the formation of such associations.
    Since the passage of the act, can a defendant’s interest in a partnership be levied on and sold otherwise than as directed in and by said act ? This act provides for the issuance of a special fi. fa. to levy and sell such interest, and directs how the sale shall be advertised, and defines the effect of it. We claim that the Act of April 8th 1873 is exclusive, and that the interest of a defendant in a partnership cannot be bound or levied on by an execution for his individual debt otherwise than as pointed out by said act.

      M. A. Woodward, for defendant in error.
    Under the acts of Assembly the fi. fa. binds all the “ personal estate of the defendant” from the hour of the day upon which the sheriff or coronor, receives the writ, and they are to endorse the hour, day, month and year upon the writ. Executions issued on the same day, and delivered to the sheriff at different periods of that day, must be paid out of the proceeds in the order as to time in which ’they came to the sheriff’s hands:" Ulrick v. Dreyer, 2 Watts 303. A fi. fa. binds all the defendant’s property in the bailiwick from the time it is put in the sheriff’s hands: Duncan v. McCumber, 10 Watts 212; Irons v. McQuewan, 3 Casey 196.
    The Act of 1873 does not change the law. The proceedings, notwithstanding this act, must be the same as the old practice to give it any sensible effect.
   Mr. Justice Paxson

delivered' the opinion of the court, November 28th 1879.

The Act of 8th April 1873, Pamph. L. 65, Purd. Dig. 1813, provides a special form of proceeding where it is sought to levy upon and sell the interest of a partner in the firm of which he is a member. Without entering into all the details of said act, it contains two features that are essentially different from the practice existing at the time of its passage. 1st. The judgment must be entered in the county where the chief office or place of business of the said partnership is or was last located; or if not entered in such county, then a testatum writ of fieri facias may issue upon such judgment, as in case of a fieri facias; and 2d, The fieri facias is required to be a special writ, “ which shall command the sheriff or other officer to levy the sum of said judgment, with interest and costs of suit, upon the interest of defendant or defendants in said writ, of any personal, mixed or real property, rights, claims and credits in such partnership, and thereupon proceed and sell the same,” &c. In most, if not in all other respects, the act is merely declaratory ; it being well settled, that prior to its passage, the interest of a. partner in a firm could be sold upon a fieri facias, issued upon a judgment recovered against him for his individual debt: Deal v. Bogue, 8 Harris 228; Vandike v. Rosskam, 17 P. F. Smith 330. But the provision requiring the sale to take place in the county where the chief place of business of the firm is located, is important, and cannot fail to prove beneficial. Prior to the act, the interest of a partner residing in Pittsburgh, in a firm located and doing business in the city of Philadelphia, could be sold by the sheriff of Allegheny county upon a writ of fieri facias, without notice to, or the knowledge of the firm. This was a serious evil, and liable to entail loss and inconvenience upon firms so situated. The Act of 1873 was evidently intended to remedy this defect, and it has certainly done so to a very great extent.

The legislature having provided a particular mode of procedure in such cases, it must be followed. The Act of 21st March 1806, Purd. 58, 4 Sm. Laws 332, provides that, “ In all cases where a remedy is provided, or duty enjoined, or anything directed to be done by any Act or Acts of Assembly of this Commonwealth, the directions of the said act shall be strictly pursued ; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act or acts into effect.” This act was formerly held to extend only to penal actions and indictable offences: Rees v. Emerick, 6 S. & R. 286. But later decisions have extended it both to civil and criminal proceedings : Wike v. Lightner, 1 Rawle 289. In Suydam v. North-Western Insurance Co., 1 P. F. Smith 394, it was said: “ These acts having thus provided a remedy and devised a system by which the rights and credits of a corporation, the debts due it, deposits belonging to it, all that is applicable to the payment of its debts, may be reached at the suit of a judgment-creditor, the mode pointed out is, by force of the Act of 1806, exclusive of all others.” We might multiply authorities, but it is not needed. The principle is well settled.

The first execution issued in this case, No. 55 of September term 1875, was an ordinary writ of fieri facias. It contained no command to the sheriff to levy upon the interest of John L. Lloyd, defendant therein, in the firms of De Huff & Co., and the iEtna and Sharpsburg Savings Bank ; nor was the sheriff or the plaintiffs in the execution aware that Lloyd was the owner of any such interests. Subsequently, and while this writ was in the hands of the sheriff in full force and unexecuted, the execution No. 88 October term, came into his hands. This was a special writ of fieri facias under the Act of 1873, commanding the sheriff to levy upon the interest of Lloyd in the partnerships referred to. The sheriff obeyed the command of the writ and made the levy, and the proceeds of the sale thereunder were afterwards awarded to the second execution, the one upon which the levy had been made.

The precise question for our determination under the case stated is, whether it was the, duty of the sheriff, when informed by the special levy contained in execution No. 88 October term 1875, of the interest of Lloyd in the firms referred to, to have levied upon said interest under the prior execution, No. 55 September term 1875; and if so, whether such a levy upon such prior writ, would have entitled the latter to priority of distribution.

Each of these propositions must be answered in the negative. Since the passage of the Act of 1873, the mode therein prescribed must be pursued. As writ No. 55 September term 1875 did not conform* to the act, the sheriff was under no duty to levy upon the partnership interests under it; and if he had done so, upon distribution it would have been postponed to the later writ.

It has been suggested, that if a-new writ was intended by the Act of 1873, this court should have established one under the third section of the Act of 16th June 1836, and that in the absence of such writ the old form could be used.

We do not regard this as a case for devising a new writ under the act referred to. A new writ is not needed. A fieri facias is the proper writ; and all that is required, is to alter it so as to conform to the Act of 1873. The proper practice is, to direct the prothonotary by the precipe, to issue a fieri facias commanding the sheriff to levjr upon the interest of the defendant in the particular partnership, as set forth in the act. The Act of Assembly has sufficiently designated the form of the writ.

The judgment is reversed, and judgment is now entered for the defendant upon the case stated.


text:
    Fahnestock et al. versus Speer et al.
    1. The proper mode of taking advantage of a defect appearing upon the face of a mechanic’s claim is by demurrer, or motion to strike off. After pleading to the scire facias such defect must be considered as waived.
    2. The first item of a claim was bad, and would have been stricken out on motion. No motion to strike out was made, but the defendant made it the subject of a special plea, which concluded to the court and was, in effect, a demurrer. The parties went to trial on the issue of fact, the court reserving the question raised by the issue of law, which they decided for plaintiff. Meld, that this was error, and that the issue should have been determined in. favor of defendant.
    November 13th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 166.
    Scire facias sur mechanics’ lien issued by John Speer and O. C. Morgan, partners as Speer & Morgan, against B. L. Fahnestock, owner, and A. J. Fair, contractor.
    On the 6th of October 1876, Speer & Morgan, sub-contractors, filed their elaim as partners against a house owned by Fahnestock, for the erection of which Fair was the contractor. The claim, which was expressed to be “for materials furnished and labor done,” referred to “ a bill of particulars of the amount of their said debt, showing the nature, kind and amount of materials furnished, and the respective prices charged by them for the same.” The bill of particulars referred to was annexed to the claim, and was as follows:

      B. L. Fahnestock. — Home, Wood Ave.
    Pittsburgh, Oct. 4th 1876.
    Mr. A. J. Fair :
    Bought of Speer & Morgan, dealers in stoves, tin, copper and sheet-iron ware, wooden and willow ware, Penn ave., East End, near station.
    Nov. 28th 1875. — Gutters, spouting and roofing . . . $309.26
    May 25th 1876. — Two feet galvanized pipe .... .80
    $310.06
    The defendants pleaded specially
    1. That plaintiffs ought not to recover the amount of the first item of their claim, viz.: “ Gutters, spouting and roofing, $309.26,” for that their contract was made with the contractor, and yet their said claim does not set forth the nature or kind of work done, the kind and amount of materials furnished, nor the prices of work and material, as it ought. This plea concludes to the court.
    2. The claim was not filed within the time required by law, and the items were not furnished continuously.
    3. The special matter in their affidavit of defence, which, inter alia, “ denies the item of eighty cents, under date 25th May 1876. Plaintiff’s work was finished in November 1875, and said last-named item was not furnished continuously with the remainder of the work under the original contract, but if furnished at all, was the subject of an independent contract. And affiants believe that it was not furnished in good faith, but was furnished, if at all, for the mere purpose of attempting to galvanize into life a claim which, without said item, would be bad on its face as to time.”
    The jury found a “verdict for plaintiffs in the sum of $337.74, subject to the opinion of the court on the question of law reserved, to wit: Whether upon the pleadings, and under all the evidence, the plaintiffs are entitled to recover the amount of the first item of the claim on which their writ issued — pro ut said claim, filed at No. 36 of December Term, 1876, in this court, and entered in the mechanics’ lien docket therein. If the court shall be of opinion that upon this point the law is with the plaintiffs, then judgment to be entered upon the verdict; but if the court shall decide that plaintiffs are not entitled to recover' said amount, then they are to have judgment that only the residue of their claim be levied of the building described in the writ, and so much of the owner’s land adjacent thereto, as may be necessary,” &c.
    On the question of law reserved the court, Collier, J., entered judgment for the plaintiffs.
    The defendants took this writ, and alleged, inter alia, that the court erred in entering judgment for the plaintiffs’ whole claim before the issues joined upon defendants’ first and third pleas were tried.

      Rodgers & Oliver, for plaintiffs in error.
    The first item in plaintiffs’ bill of particulars would have been stricken out on motion: Shields v. Garrett, 5 W. N. C. 120; Rush v. Abel, 9 Norris 153 ; Lee v. Burke, 16 P. F. Smith 336; Russell v. Bell, 8 Wright 47; Rehrer v. Zeigler, 3 W. & S. 258; Whitman v. Walker, 9 Id. 183; Lehman v. Thomas, 5 Id. 262.
    But it will be objected that we waived this defence by pleading to it instead of taking it by demurrer to the writ. A less certain and formal mode of allegation is properly allowed in these claims than is tolerated in declarations, or by the rules of the common law. It is much more convenient and conducive to precision and dispatch to have the defect insisted upon alleged concisely in the language of pleading and tried as a fact, by the production of the claim as the existence or legal import of a record is established. This course is justified by the practice of Allegheny county. We have set forth the defect formally and at length by a plea concluding to the court. See Lewis v. Morgan, 11 S. & R. 234; St. Clair Coal Co. v. Martz, 25 P. F. Smith 384; Howell v. Philadelphia, 2 Wright 471; Richabauch v. Dugan, 7 Barr 394. The truth is that no forms have been prescribed, and form has consequently been disregarded. Phillips, M. L., sec. 417. Formal objections at the trial are discountenanced on the ground of suz-prise, and also, perhaps to allow the claimant an opportunity to amend, though since Dearie v. Martin, 28 P. F. Smith 55, there is very little in the last z-eason. However, this may be, we were not in default. The exception was taken in our affidavit of defence the first moment of our appearance in court. In the present unsettled state of the practice, we submit that our plea should be treated as a demurrer. There is no substantial difference.

      Thomas C. Lazear, for defendants in error.
    The question as to the sufficiency of the claim can be raised on demurrer, or by moving to strike off the lien, but after pleading to the scire facias it must be considered as waived: St. Clair Coal Co. v. Martz, 25 P. F. Smith 384; Lee v. Burke, 16 Id. 336; McKelvy v. Jarvis, Halpin & Co., 6 Norris 414; Lybrandt v. Eberly, 12 Casey 347; Howell v. Philadelphia, 2 Wright 471; Lehman v. Thomas, 5 W. & S. 262. But in this case there was neither a demurrer nor motion to stz-ike off. The first plea, though it concluded in a novel and informal way to the court, was not treated as a substitute for either, for the court was not asked to pass upon it, either before or at the trial, and the same matters averred in it were made the subject of a separate plea to the scire facias.
    It was especially the duty of the plaintiff in error'in this case to have had this foz-mal objection to the lien disposed of in a pz’oper way before trial, for, if either on demzzrrer or motion, the lien had been held to be defective, the expense and trouble of a trial as to the other small item of eighty cents would probably have been 'deemed unnecessary.
   Mr. Justice Paxson

delivered the opinion of the court, November 28th 1879.

The court below erred in entering judgment for the plaintiff, upon the point reserved for the full amount of his claim. There were but two items in the claim, the first under date of November 28th 1875, was for “gutters, spouting and roofing, $309.26;” the other, under date of May 25th 1876, was for “ two feet of galvanized pipe, eighty cents.” The claim -was filed October 6th 1876, and but for the last item, would have been too late.

The first item is a lumping charge; and as the claim was filed by a sub-contractor against the owner and contractor, it was clearly bad and would have been stricken out on motion: Lee v. Burke, 16 P. F. Smith 336 ; Shields v. Garrett, 5 W. N. C. 120. No motion was made to strike it out, but the defendant made .it the subject of a special plea. This plea concludes to the court, and is in effect a demurrer. It called upon the court to determine, as a matter of law, the sufficiency of the item objected to. It is well settled, that the proper mode of taking advantage of a defect appearing upon the face of the claim, is by demurrer or motion to strike off. After pleading to the scire facias, such defect must be considered as wmived: Lee v. Burke, supra ; St. Clair Coal Co. v. Martz, 25 P. F. Smith 384. Here the demurrer was filed in time. The parties went- to trial upon the issue of fact, the court reserving the point raised by the issue of law. It is plain under the authorities, that this should have been determined in favor of the defendant.

The other item, of eighty cents, has a suspicious appearance, in view of the fact that without it, the lien was several months too late. It was fairly submitted to the jury, however, and there is nothing in the rulings of the learned judge, or in the points reserved, that would justify us in reversing this part of the case.

The judgment is reversed as to the first item in the claim, and judgment for the defendant on the reserved point as to said item.