text:
    Commonwealth versus Moore.
    1. In order to support an indictment for cheating by false pretences, the pretence in question must be the assertion of an existing fact^not a promise to perform some act in the future.
    2. An indictment against one A. contained two counts. The first charged that A., with intent to cheat and defraud B., had represented to B. that he would be unable to pay at maturity a certain note drawn by him to B:’s order, endorsed by B., and then in the hands of a third party, by which representation he induced B. to endorse another like promissory note and to deliver the same to him, pretending that he would use the same to take up the first named note, whereas he did then intend and afterwards did acLually use said last; named note for another purpose. The second count was similar, except that it averred the note, at the time of its delivery to A., to have been “ then and there the property of the said B.” Held, that neither count of the indictment set out an indictable false pretence under the statute. ¡
    3. Where, upon the trial of A. under the above indictment, a verdict of guilty was rendered, and subsequently judgment was arrested for insufficiency of the indictment, whereupon the Commonwealth took a writ of error on the ground that the court had erred in not holding that the facts set forth in the indictment and proved on the trial, showed that defendant had obtained the property in question in such manner as in law would amount to larceny, and in not rendering judgment accordingly, Held, that the Supreme Court could not, without having the evidence in the court below before it, reverse upon this ground.
    4. A general verdict of guilty, upon an indictment, is a finding only of the facts sufficiently pleaded. j
    5. Neither of the counts in the indictment above set forth, was sufficient to sustain a charge of larceny.
    February 7th 1882.
    Before Sharswood, C. J. Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Certiorari to the Court of .Quarter Sessions of Delaware county: Of January Term 1882] No. 71.
    Indictment of Robert M. Moore, for cheating by false pretences. Plea; not guilty. The first count of the indictment charged that the defendant, “ unlawfully and wickedly devising and intending to cheat and defraud Horace P. Green of his goods, moneys, &c. did, then and there represent to the said Horace P. Green, that he, tlie said Pobert M. Moore, would be unable to pay, at maturity, a certain promissory note, for the payment of three hundred and fifty dollars, drawn by the said Pobert M. Moore to the order of tlie said Horace P. Green, and by the said Horace P. Green endorsed,. . . . and which said note had passed into the hands of one Walker Y. Hoopes, and upon which the said Horace P. Green would be liable as endorser, aforesaid, at its maturity, the said note being then about to mature ; and unlawfully did, then and there, falsely and designedly pretend to the said Horace P. Green, that if .lie, the said Horace P. Green, would then and there put his signature as endorser upon a certain other promissory note, drawn by the said Pobert M. Moore to the order of the said Horace P. Green, for the payment of the sum of three hundred and fifty dollars, and deliver the same to him, he, the said Pobert M. Moore, would use the same to take up and cancel the liability of the said Horace P. Green, as endorser upon the promissory note first above mentioned, and which was then about to mature as aforesaid, and for no other purpose. Whereas, in truth and in fact, the said Pobert M. Moore did not then and there intend to use the said second herein described promissory note to take up and cancel tlie liability of the said Horace P. Green, as endorser as aforesaid, upon the said promissory note first herein described, and for no other purpose, as the said Pobert M. Moore then and there knew. And the said Pobert M. Moore then and there well knew the said pretence and pretences to be false, by color and means of which said pretence and pretences he, the said Pobert M. Moore, did then and there unlawfully obtain from the said Horace P. Green his signature as endorser upon the said herein second described promissory note, with intent to cheat and defraud the said Horace P. Green, and did not then and there use the said instrument of writing to take up and cancel the liability of him, the said Horace P. Green, upon said note first herein described, and for no other purpose, but then and there used the same for his own private purpose, whereby the said Horace P. Green afterwards became liable to pay, and did pay, a certain large sum of money, to wit&c.
    The second count, after setting forth the facts precisely as in the first count, charged that “ by color and means of which said false pretence and pretences he, the said Pobert M. Moore, did then and there unlawfully obtain from the said Horace P. Green the written instrument and valuable security second above described, commonly called a promissory note, drawn by the said Pobert M. Moore to the order of tire said Horace P. Green, and by the said Horace P. Green endorsed, for the payment of three hundred and fifty dollars, and being then unpaid, being then and! there the property of the said Horace P. Green, with intent to cheat and defraud the said Horace P. Green, to the great damage of the said Horace P. Green, contrary,” &c. j
    On the trial, before Claxton, P. J., the jury rendered a verdict of guilty. The defendant moved in arrest of judgment. After argument the court .sustained said motion, and discharged the defendant, ClaxÍton, P. J., saying, in an opinion filed :
    “To sustain an.indictment for cheating by false pretences, something more than a meré private fraud must be alleged. The allegations of this indictment undoubtedly develop a moral crime, but not one amenable to the criminal law. The false pretence, relied upon by the commonwealth, was merely a promise for future conduct, a. representation that the defendant could and would have the old note renewed by the new one. His representation as to what he could do was true — as to what he would do, it was false. All the authorities agree that the pretence must relate to a present state of things, and not to future acts. The pretence that the party would do an act that he did not mean to do, was holden by all the judges not to be a false pretence within the statute Geo. 2. (R. & R. 471 and 504), cited in Wharton’s Criminal Law.
    “The commonwealth’s counsel, however, contends, that while this indictment might ¿ot be sustained under the English statute, it is good under our Act of Assembly, which declares that £ if upon the trial of any person indicted for such a misdemeanor, it shall be proved'that he obtained the property in question in such a manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor.’ If the facts, as developed upon the trial, had made out a clear case of larcdny, it may be that the conviction, under the peculiar reading of our statute, might be sustai ned ; but I very much doubt it.....
    “ At common law, there; could be no larceny of a check or note, but by our statute it is ¡larceny to steal either. The rule as to when a case of this kind would be larceny, or only cheating by false pretences, is this : When the owner of the thing obtained is induced by trick, artifice or false pretence, to part with his property, intending to relinquish all further claim or dominion over it, the offence is the misdemeanor, of cheating by false pretences. When ljie is induced to simply part with his possession, but not with his dominion over his property, the offence is larceny. As where one borrows a horse on pretence of making a journey, and immediately sells him, this is larceny; but where he buys him upon a false show of wealth, this is cheating by false pretences.
    “ This distinction has a strong bearing on the case in hand. Did Mr. Green own the note upon which his indorsement was obtained % The indictment does not allege that he did. If he did not own it, how could it he the subject of larceny ? It is very difficult to conceive how one can possibly steal the indorsement of a note. The indorsement was all that was obtained from Mr. Green. Besides, it would be unfair to the defendant to permit the commonwealth, after a defective indictment for a misdemeanor, to sustain a conviction because the offence might he a felony. That plea belonged to the defendant, not to the commonwealth, and non constat, if the charge of felony had been directly made, the jury might have acquitted him of so grave a crime. The offence was cheating by false pretences, or nothing but a private fraud; and, as we have shown that it does not amount to the statutory crime, the motion in arrest of judgment must be sustained, and the defendant discharged.”
    Tiie commonwealth took this writ of certiorari, assigning for error the judgment sustaining the motion in arrest of judgment, and discharging the defendant; also the refusal of the court to hold that the facts set forth in the indictment, and proved on the trial, showed that the defendant obtained the property in question in such manner as, in law would amount to larceny, and in not giving judgment in favor of the commonwealth, under section 111 of Act of March 31,1860, Purd. Dig. 348, pi. 164.

      V. Gilpin Robinson, district-attorney, for the commonwealth.
    [Mercüe, J. By wliat authority is the commonwealth entitled to this writ of certiorari ?]
    We rely oh Commonwealth v. Capp, 12 Wright 53. See also Commonwealth v. Bartilson, 5 W. N. C. 177, 181.
    [Shaeswood, O. J. Can you, by a certiorari here, put the defendant again in jeopardy ?]
    That objection would be unanswerable if the prisoner had been acquitted by the jury; but he was convicted, and the court, on matter of law, arrested the judgment. We ask this court to review the action of the court below subsequent to the conviction. A reversal of such action will not put the defendant to a new trial, or put him again in jeopardy.
    The statute uuder which the indictment is drawn says “ any
      false pretence,” and the cornet will not be astute, in construing the Act, to hold that the grdss moral crime, by which the defendant cheated the prosecutor out of a large sum of money, is no offence under the laws off Pennsylvania; Commonwealth v. Burdick, 2 Barr. 164; Russell on Crimes (4th ed.), 200; Commonwealth v. Y erkes, 29 Leg. Intell. 60.

      K H. Hall, for defendapt in error. —
    The false pretence charged in the indictment was not of any existing fact, but a mere promise for future conduct, which is not within the terms or intendment of the Act deiining the offence. Nor can the defendant be held for larceny! under the second count.. If there was anything stolen, it was merely the credit of the prosecutor, which is not the subject of larceny. The criminal process of the court cannot be thus used to enforce the collection of a debt. :
   Mr. Justice Paxson

delivered the opinion of the court, February 27th 1882.

The only question presented by this record is, whether the indictment sets forth an indictable offence. ' It contains two counts, in each of which the ¡defendant below is charged with cheating by false pretences. The particular act alleged was the procuring of the prosecutor’s endorsement of the defendant’s promissory note, and the false pretence charged consisted in his representing to the prosecutor that he would use the note so endorsed to take up and cancel another note of the same amount then about maturing, and upon which the prosecutor was liable as endorser. In other words the note was given in renewal of another note of like amount, and the indictment charges that the defendant instead of using it for this purpose, as he promised to do, procured it to be discounted, and used a portion of the proceeds for other purposes.

A false pretence, to be within the statute, must be the assertion of an existing fact, not a promise to perform some act in the future. The man who assorts that he is the owner of a house, states a fact, and one that is calculated to give him a credit. But a mere failure to keep a promise, is another and very different affair. That occurs whenever a man fails to pay his note. It is true Chief Justice Gibson doubted in Commonwealth v. Burdick, 2 Barr, at page 164, whether every naked lie by which a credit has been gained is, not a false pretence within the statute. This doubt has run i'ts course, and has long since ceased to disturb the criminal law of the state. There was nothing in Commonwealth v. Burdick, to suggest such doubt, as the defendant had wilfully misrepresented that he had a capital of $S,000 in .right of his wife, while, in all the cases cited therein, there was a misrepresentation as to existing facts, by means whereof a credit was obtained. The decisions upon this subject are uniform, and it would be an affectation of learning to cite the cases. Mauy of them may be found in the foot-note to Pardon.

In the case in hand, there was no assertion of an existing fact. Nor was there anything done by which even a credit was given. Tire credit had been obtained when the original note was endorsed; the present note was endorsed in lieu of and for the purpose of taking up the original; the failure to use it for such purpose was certainly a dishonest act on the part of the defendant, but we do not think it punishable under the statute'defining false pretences.

It was nrged, however, that if it was not cheating by false pretences under the statute, it was constructive larceny, and therefore -within the proviso of section 111 of the Act of 31st March I860, P. L. 410, which is as follows: “Provided, always, that if, upon the trial of any person indicted for such a misdemeanor (false pretences), it shall be proved that he obtained the property in question in such manner as to amount in law to larceny, he shall not by reason thereof, be entitled to be acquitted of such misdemeanor ; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts.”

The fourth assignment of error avers that, “ The learned court erred in not holding that the facts set forth in the indictment, and proved on the trial, showed that the defendant obtained the property in question in such manner as in law would amount to larceny, and iu not giving judgment for the commonwealth,” &e.

We do not think it necessary to discuss the line of cases cited in the able and interesting argument of the learned district-attorney, defining the distinction between the offences of cheating by false pretences, and constructive larceny. While the distinction is a nice one, it is, nevertheless, clearly defined. The difficulty upon this head is not in the law, but in the application of the law to the facts of a particular case. We are not called npon to pursue this inquiry in the present instance. It requires but a moment’s reflection to see that we could not reverse the court below upon this ground. How can we, as an appellate court, say whether it was proved upon the trial below that the defendant obtained the property in question in such manner as to amount in law to larceny, when not one word of the evidence is before us ? But it is said, the jury having convicted the defendants of the offence of cheating by false pretences, we must assume that the facts proved amounted to larceny. This does not follow. A general verdict of guilty upon tbe indictment is a finding only of tbe facts sufficiently jfioaded, Neither of tbe counts would sustain a charge of larceny. Tbe first count contains no averment that Horace P. Green, the prosecutor, was, or ever bad been, the owner of tbe note in question and if never tbe owner, it could not have been stolen from him. The second count was evidently intended to cover both offences, but such criminal pleading is rarely a success, and certainly is not so in this case. It contains an averment at tbe close, that tbe said note was “ then and there tbe property of tbe said Horace P. Green.” Unfortunately for this averment, tbe prior portions of the same count show tbe fact distinctly that tbe note in question was tbe note of the defendant, drawn by him in favor of tbe prosecutor, and by tbe latter endorsed for tbe accommodation of tbe defendant and banded back to him. It was, therefore, tbe property of tbe defendant and not of the prosecutor. Tbe second count contradicts itself upon tbe facts, and the finding of the jury is wholly insufficient to enable us to say tbe facts proved upon tbe trial amounted to larceny.

We are, therefore, of opinion that tbe learned judge of the court below committed no error in arresting the judgment, and bis ruling must be

Affirmed.

Sharswood, O. J., concurs in tbe affirmance, but would quash tbe writ.


source: Caselaw Access Project

author: Mr. Justice Merour

license: Public Domain

text:
    Crawford versus Davis.
    1. As a general rule, a sale of personal property is not good against the creditors of the vendor, unless possession be delivered by the vendor in accordance with the sale. In determining the kind of possession necessary to be given, regard must be had not only to the character of the property, but also to the nature of the transaction, the position of the parties, and the intended use of the property. No such change of possession as will defeat the fair and honest object of the parties is required.
    2. A change in the location of the property is not always essential to protectt.be property against the creditors of the vendor. If the purchase was in good faith; and for a valuable consideration, followed by acts intended to transfer the possession as well as the title, and the vendee assumed such control of the property, as to reasonably indicate a change of ownership, the delivery of possession cauuot, as matter of law, be held insufficient. The case should under such circumstances, go to the jury to find whether the sale was in good faith or merely colorable.
    3. A., an old man, was indebted to his son B., with whom he resided on a farm, which he held under a parol lease. By reason of infirmities and poverty, A. was unable to carry on the farm. He therefore sold and transferred to his son B., all the property on the farm, including certain cattle, in consideration of the latter agreeing to support his father and mother, and to pay the rent. In pursuance of this agreement, B. took charge of the farm, bought and put additional stock on it, hired labor to care for it, paid the rent and supported his father and mother. Both A. and B. continued to live in the same house, but A. did no work about the farm. In a contest between execution creditors of A. and B. as to the ownership of the cattle sold by A. to B., — Held, that under the circumstances it was for the jury to find whether the sale was in good faith or merely colorable.
    February 7tb 1882.
    Before Siiaeswood, C. J., Meroub, Gordon, Paxson, Trtjnkby, Sterbett and Green, JJ*.
    Error to the Court of Common Pleas of Chester county : Of July Term 1882, No. 19.
    This was a feigned issue under the sheriffs interpleader Act, between William Crawford, plaintiff, and William II. Davis, defendant, to determine tbe title to certain cattle, which had been taken in execution as the property of Robert Crawford, under a judgment held by said Davis against Robert Crawford, and were claimed by William Crawford, son of Robert Crawford, tbe plaintiff in tbe issue.
    On tbe trial, before Futhey, P. J., it was shown that the cattle in question had belonged to Robert Crawford, who made an assignment for tbe benefit of creditors, and under a reservation therein of property to the value of $800, said cattle were appraised amd set aside to him. These cattle were subsequently levied on under tbe above-mentioned execution, as his property.
    Tbe evidence on behalf of tbe plaintiff was, that soon after the assignment and appraisement, and before the levy, Robert Crawford, father of the plaintiff, being 76 years of age and infirm, made an agreement with plaintiff, whereby in consideration of plaintiff maintaining him and bis wife, and paying tbe rent of the farm on which they all resided together, the said cattle and property, which had been set aside to Robert Crawford as aforesaid, were sold and transferred by him to plaintiff; that Robert Crawford at that time owed plaintiff about $1600; and that plaintiff accepted tlie proposition, and carried out tbe bargain, worked the farm as his own, bought stock, in his own name, employed labor, paid rent, and maintained his father until his death, and still maintains his mother.
    Plaintiff requested the court to charge, “ that if tbe jury believe that Robert Crawford sold the property .... to William Crawford, there is sufficient evidence of delivery.” The court refused so to charge and said: “ There was no change of possession of the property, as far as I remember the evidence. It remained upon the farm after tbe alleged transfer of title precisely as it did before, and I therefore say to you that there is not such evidence in the case of a change of possession as the law requires, in order to protect such property from being levied upon to pay the debt of the person who had owned the property before the alleged transfer of ownership mas made. . . . Tour verdict will be in favor of the defendant.”
    Yerdict, accordingly, for the defendant, and judgment thereon. The plaintiff took this writ of error, assigning for error the refusal of his point, the withdrawal of the case from the jury, and the direction to find for the defendant.

      Sidwell (Johnson with him), for plaintiff in error. —
    The delivery of possession was as complete as the subject of the transaction and the circumstances of the parties would admit of. This is all that the law requires to validate the transfer as against creditors of the vendor. The evidence of such transfer and delivery was ample to take the case to the jury on the question of delivery and good faith: Dunlap v. JBournonville, 2 Casey 72; Hugus v. Robinson, 12 Harris 9; Babb v. Clemson, 12 S. & R. 328; Chase v. Ralston, 6 Casey 539; MeYicker v. May, 3 Barr 227; Billingsley v. White, 9 P. E. Smith, 46é; McKibbin v. Martin, lé P. F. Smith, 352; Evans v. Scott, 8 Norris 136 ; Born v. Shaw, 5 Casey 288.

      Charles Tl. Pennypacker, for defendant in error. —
    The concurrent possession which existed before the alleged arrangement continued to exist in the same manner afterwards. There was no evidence of any change of possession, hence there was nothing to submit to the jury, and the authorities cited have no application.
   Mr. Justice Merour

delivered the opinion of the court, October 2nd 1882.

The general rule is, that a sale of personal property is not good against the creditors of the vendor, unless posssession be delivered by the vendor in accordance with the sale. In determining the kind of possession necessary to be given, regard must be had not only to the character of the property, but also to the nature of the transaction, the position of the parties, and the intended use of the property. No such change of possession as will defeat the fair and honest object of the parties, is required. Thus where two brothers engaged in the business of manufacturing coaches, became embarrassed, and sold their stock in trade to a third brother, who had been about the establishment before the sale, and who went into possession, continued the business at the same place, changed the sign to his own name, procured another bookkeeper and opened new books: but both tbe vendors remained in his employ, each of them superintending a particular department of the work at stipulated wages, it was held there was_not such a want of corresponding change of possession, as matter of law, to make the sale void against creditors of the vendor: Dunlap v. Bournonville, 2 Casey 72. The same principle is recognized in Born v. Shaw, 5 Id. 288; McKibbin v. Martin, 14 P. F. Smith 352; Evans v. Scott, 8 Norris 136; Pearson v. Carter, 13 Id. 156.

Evidence was given in the present case, tending to prove the vendor to have been an aged and infirm man, residing on a farm under a parol lease, and his son, the plaintiff, resided with him; by reason of infirmities and poverty the father was unable to carry on the farm, he therefore sold and transferred the property now in contention to his son, the plaintiff, in consideration of the latter agreeing to support his father and mother, and pay the rent of the farm : that in pursuance of the agreement, plaintiff took charge of the farm, bought and put additional stock on it, using the whole, paid the rent, put a man in the farm-house to work the farm for him, while he was at work on the railroad, but lie returned home nights; employed and paid for the labor on tbe farm, supported bis father and mother until the death of the former, and still supports his mother; that after his purchase his father gave no attention to the farm, but it was worked, managed and controlled exclusively by the plaintiff. As the father and son continued to live after the transfer of the property in the same house in which they had previously resided, and the property in question remained on the farm, the learned judge charged, as matter of law, that was not such a change of possession as the law required to protect the pi’operty from sale by a creditor of the vendor. In this he erred. A change of location of the property is not essentially necessary. If the purchase was in good faith, and for a valuable consideration, followed by acts intended to transfer the possession as well as the title, and the vendee assumed such control of the property as to reasonably indicate a change of ownership, the delivery of possession cannot, as matter of law, be held insufficient. The case should be Bent to the jury to find whether the sale was in good faith, or merely colorable.

In view of the language of the first point submitted by tbe plaintiff, we cannot say tbe learned judge erred in not affirming it. The remaining assignments are sustained.

Judgment reversed, and a venire facias do novo awarded.


author: Mr. Justice Sterbett

text:
    Lombaert’s Appeal.
    1. Where the land of a testator is sold or mortgaged in pursuance of a decree of the Orphans’ Court made under and by virtue of the provisions of the Act of April 18th, 185,3, Pamph. L. 503, the purchaser or mortgagee takes title clear of the lien of a legacy charged by testator on said land.
    2. Semble, that in such case the legatee can have recourse solely to the proceeds of,the sale or mortgage, and that, in the event of the legacy being contingent, the court may direct the investment of a sufficient part of such proceeds to pay the legacy at the time when, by the terms of the will, it can be demanded.
    February 8th. 1882.
    Before Shaeswood, C. J., Merque, Gobdon, Paxson, Tbunkey, Steeeett and Green, JJ.
    Appeal from a decree of the Court of Common Pleas of Delaware county: Of January Term 1882, No. 191.
    Bill in equity, wherein George Steel was complainant and George Junkin and A. Lewis Smith defendants. Subsequently, by amendment, Herman J. Lombaert and Sarah his wife, were also made parties defendant. The facts of the case, as they were alleged in the bill were as follows :
    Samuel Leedom, by his will, bearing date April 1th 1871, and duly admitted to probate on March 18th 1872, provided, inter alia, as follows:—

      Item,: “I give and bequeath to my grandson, George P. Steel, the sum of two thousand dollars, to be paid to him when he shall attain the age of twenty-one years, should he so long live; but should my said grandson, die before attaining the age of twenty-one years, then this bequest to him shall be null and void.”
    Testator further devised to his son, Augustus B. Leedom, a certain farm in Haverford township, in trust, for said son’s wife and children. He also devised to his son Emmor S. Leedom, a certain other farm in said township, in trust for his wife and children, conferring upon him a power of sale for the purposes of the trust. He further nominated his said two sons as his executors, and authorized, empowered and directed them to sell and convey a third tract of land.
    “ The proceeds of such sale or sales to be applied by my said executors, or so much thereof as may be necessary, to the payment of my just debts, funeral expenses, and expenses of settling my estate, not hereinbefore provided for ; and for the payment of the bequest to my grandson, George P. Steel.
    “ If any other moneys shall be needed for the payment of said debts and expenses, or satisfying said bequest to George P. Steel, I charge one-half thereof upon each of the said farms and properties devised to my said sons Augustus B. and Emmor S., as aforesaid, and direct each of my said sons to pay such half when needed out of the said trust estates.”
    Letters testamentary were issued to the executors named m the will, and the last named tract of land sold by them. The proceeds thereof, however, together with the personal property of decedent, proved insuffieent to pay his debts, or any part of Steel’s legacy. Steel wras, moreover, at that time, still under age.
    The executors thereupon presented a petition to the Ophans’ Court of Delaware county, praying for leave to mortgage the real estate of decedent for payment of his debts. A decree was entered, in accordance with the prayer of the petition, on June 3d 1872.
    In pursuance of said decree, said executors mortgaged the real estate devised to Augustus B. Leedom, on June 20th 1872, to Sabina S. Knox, et al., to secure the payment of §3,200. Said mortgage afterwards, by assignment, became vested in Sarah J. Lombaert. Said executors, on June 3d 1872, in pursuance of the same decree, mortgaged the premises devised to Emmor S. Leedom, for §3,800. The sums raised by both mortgages were, however, insufficient to pay the testator’s debts.
    Subsequently, Augustus B. Leedom, as trustee of the premises devised to him, presented a petition to the Orphans’ court, setting out that said premises were in a very ruinous state, and lacked repairs, and asking for leave to mortgage the same in order to raise a fund to effect said repairs. A decree was entered accordingly, and, in pursuance of said decree, said Augustus B. Leedom, on December 4th 1872, mortgaged the premises devised to him as aforesaid, for the sum of $5,500, to John F. Forrest. This mortgage also became subsequently vested, by assignment, in Sarah J. Lombaert, who thereby became the owner of both mortgages on the real estate devised by testator to Augustus B. Leedom.
    The interest upon both said mortgages being in arrear, Sarah J. Lombaert proceeded, to foreclose the same, and, having obtained judgment thereon, issued writs of levari facias, by virtue whereof the mortgaged premises were sold lit sheriff’s sale, f'S>r §10,700, to said Sarah J. Lombaert. The sheriff, after deducting costs and taxes, made a special return that he had exchanged receipts with Sarah J. Lombaert for the residue of the fund. George P. Steel filed exceptions to this report, on the ground that the sale under the first mortgage discharged the lien of his legacy, and that, therefore, he was entitled to one-half the amount thereof in preference to the second mortgage. An auditor was appointed to pass on the exceptions, and to report distribution of the fund. Sarah J. Lombaert, however, proposed, in lieu of paying the money into court, to make a deposit in trust to secure that portion of the proceeds claimed by Steel in right of his legacy. ' Her proposition was accepted, and the auditor dismissed. She thereupon deposited with George Junkin & A. Lewis Smith a bond of the Pennsylvania Railroad Co. for $1,000, and received her sheriff’s deed. Junkin and Smith executed a declaration of trust, wherein, after reciting the foregoing facts, they acknowledged that they held the said bond upon the following trusts, namely:
    L To permit the said Sarah Lombaert to receive the income therefrom, which shall accrue due before the said George P. Steel shall attain the age of twenty-one years.
    2. If it shall then or thereafter be legally ascertained that the said George P. Steel would have been entitled to receive the amount of said legacy out of the aforesaid proceeds of sale, the said trustees shall appropriate to the payment of said legacy the said bond, or so much of the proceeds thereof as shall be necessary for that purpose; provided, however, the said George P. Steel shall institute proceedings at law or in equity, within four months after attaining full age, for the purpose of having legally determined his right to such payment,
    3. In case the said determination shall be adverse to his claim to payment as aforesaid, or in case he shall fail to institute such proceedings for the purpose of establishing the same within the period aforesaid, or in case he shall not survive to the age of twenty-one years, the said trustee shall re-assign said bond to Sarah Lombaert, or her legal representatives.
    Steel, having arrived at the age of twenty-one years, filed the present bill, the prayers whereof were, that complainant be decreed to be entitled to be paid out of said bond that part of his legacy charged upon the premises devised to Augustus B. Leedom, and also that defendants, Junkin & Smith, be decreed to sell said bond and to, pay complainant from the proceeds thereof.
    The respective answers of the defendants admitted the facts alleged in the bill, but claimed, that the second mortgage was entitled to claim the fund in priority to complainant’s legacy. The case was referred to "V. G. Robinson, Esq., as examiner and master, who reported that the complainant was entitled to a decree, and should be paid from the proceeds of the bond the sum of $1,000, wdth interest, ffom the time when he attained his majority.
    Exceptions were filed by the defendants, which were dismissed by the court, a decree being entered in accordance with the master’s recommendations.; Sarah J. Lombaert thereupon took this appeal, assigning for error the decree of the court.

      W. B. Broomall (George Junicin with him), for the appellant. —
    The mortgage being under the Price Act, it is clear, under the terms of said act, that the vendee at the sheriff’s sale under the mortgage took clear of the legacy. The legatee was remitted to the proceeds of the mortgage.

      Elwood Wilson, Jr., and G. E. Barlmglon, for the appellee.
    —The legacy in question was vested, and not a mere executory bequest: Page’s Appeal, 21 P. F. Smith 402; Burd v. Burd, 4 Wright 182; McClure’s Appeal 22 P. F. Smith 414; Chess’ Appeal, 6 Norris 362. The testator has blended 1ns real and personal estate together in the devises to his sons in trust, and, “ it is a well-settled rule of law that when they are so blended by the testator, the laud is charged with the payment of legacies. The reason assigned is, that the whole may take effect and all the legacies be paid, which is justly supposed to be the intention of the testator when both funds are put into one Davis’ Appeal, 2 Norris 353; McLanahan v. Wyant, 1 P. & W. 96; Gallagher’s Appeal, 12 Wright 121 ; Becker v. Kehr, 13 Wright 228 ; Brisben’s Appeal, 20 P. F. Smith 405 ; Wertz’s Appeal, 19 P. F. Smith 173. The legacy to the appellee being vested and charged upon the real estate, it was an estate in the lands subject only to the payment of decedent’s debts, and it was beyond the power of the devisees of the lands to discharge it. Any sale or- mortgage by them would have been subject to it. Where the claim is an undoubted lien upon the fund in court, the creditor cannot be driven from it to other security he may never realize, or not in full: Taylor’s Appeal, 3 W. N C. 75; Selden’s Appeal, 24 P. F. S. 328. This doctrine is one of pure benevolence, and must not be so applied as to do injustice to the first lien creditor: Bruner’s Appeal, 7W, & S. 269.
   Mr. Justice Sterbett

delivered the opinion of the court, March 6th 1882.

The contingent legacy of $2,000 to the plaintiff below was to be paid to him, in the language of the will, when lie shall attain the age of twenty-one years, should he so long live; but should my grandson die before attaining the age of twenty-one years, then this bequest to him shall be null and void.” After devising to each of his two sons, Augustus B. Leedom and Emmor S. Leedom, a tract of land, together with certain personal property thereon, in trust as therein set forth, and making provision for the payment of his debts, expenses of administration and the legacy aforesaid, the testator says: “ If any other moneys shall be needed for the payment of said debts and expenses, or satisfying said bequest to George P. Steel, I charge one-half thereof i;pon each of said farms and properties devised to my said sons, Augustus B. and Emmor S., as aforesaid, and direct each of my said sons to pay such half when needed out of the said trust estates.” The legatee attained his majority in August 1879, and the legacy, theretofore contingent on that event, became absolute.

Shortly after the will was probated, in 1872, the two sons, executors therein named, obtained authority from the Orphans’ Court to mortgage the real estate above mentioned, for the purpose of paying debts of the testator; and, in pursuance thereof, on June 3d, they mortgaged the land devised to Emmor S. • Leedom, to secure the payment of $3,800, and on June 20th, they mortgaged the other part to secure the payment of $3,200. In December of the same year, Augustus B. Leedom, as trustee, under an order of the same court, authorizing a lean for the purpose of making improvements and repairs, borrowed $5,500, and secured the same by mortgage on the land devised to him in trust. The two last mentioned mortgages, on the same tract of land, were duly recorded, and afterwards assigned to appellant, who subsequently obtained judgments thereon, and sold the mortgaged premises in 1876. The net amount realized by the sheriffs sale to Mrs. Lombaert being insufficient to pay the mortgages in full, the sheriff, after deducting costs, took her receipt, as first lien creditor, for the residue. To this application of the purchase-money, the appellee, George P. Steel, objected, claiming that one-half of the legacy payable to him when he obtained his majority was a lien on the land sold, and should be paid out of the proceeds, in preference to the $5,500 mortgage. It was conceded that the sale upon the other mortgage for $3,200, given by the executors for money borrowed to pay debts, divested all liens, and that appellant took a clear title. The lien of the legacy, if any existed at the time of the sale, was undoubtedly divested, and the purchase money being substituted for the land, the legatee was remitted to that fund. Inasmuch as the contingency on which the legacy became absolute and payable had not yet happened, an arrangement was made whereby the $1,000 bond was placed in the hands of Messrs. Junkin and Smith, for the purposes expressed in their declaration of trust. In making this arrangement, it was manifestly the intention of the parties to substitute the bond for a corresponding amount of the purchase-money, and thus permit Mrs. Lombaert to take credit for the net proceeds of sale, and lift her deed, and at the same time protect the rights of the legatee, in case he had any, when the time for payment of his legacy should arrive. He was required, within four months after attaining his majority, to institute proceedings at law or in equity for the purpose of having his right to payment out of the fund legally determined. "Within the time named he accordingly filed the bill in this case against the trustees, and subsequently, by leave of court, make Mrs. Lombaert a party thereto.

As we have already seen, the testator, contingently at least, charged one half of the legacy upon the farm and property devised in trust, to his sou Augustus, and directed him to pay the same, when needed, out of the trust-estate. For present purposes, it may be assumed there was a lack of other assets wherewith to satisfy that part of the legacy, and that it was, therefore, a lien on the land afterwards mortgaged and sold by appellant on her writs of levari facias.

The main contention of appellant is, that the lien was divested by the Orphans’ Court proceeding, under which the land was mortgaged by the trustee, for the purpose of raising money with which to make necessary improvements and repairs. The proceeding was under the Act of 1853, known as the “ Price Act,” and appears to have been regularly and carefully conducted. That Act provides, inter alia, that where real estate shall have been acquired by descent or last will, the Orphans’ court shall have jurisdiction to decree the sale, mortgaging, etc., of the same, when the court “shall be of the opinion that it is for the interest and advantage of those interested therein, that the same should be sold, mortgaged,” etc. It declares that the title of purchasers under all such sales, mortgages or conveyances, shall be a fee-simple, indefeasible by any party or persons having a present or expectant interest in the premises, and be unprejudiced by any error in the proceedings of the court: that the purchase or mortgage money, as the case may be, shall, in all respects, be substituted for the real estate sold 'or mortgaged, as regards the enjoyment and ownership thereof, after the payment of liens, and shall be held for and applied to the use and benefit of the same persons, and for the same estate and interest, present or future, vested, contingent or executory, as was the real estate sold or mortgaged; that the money so raised shall be expended for no other purpose than the payment of liens upon, or the improvement of the same real estate; and it is made the duty of the court to decree the proper application of such purchase or mortgage money to the discharge of liens, and to parties interested, as and when they may be entitled.

In his application to the Orphans’ Court for authority to mortgage the property, the trustee brought himself clearly within the provisions of the Act, and there appears to be no error in the proceedings: but if there was, it is expressly provided, as we have seen, that purchasers under mortgages thus created shall not be prejudiced.

From those provisions of the Act under which the mortgage was executed, it is very clear that, as to any lien the legatee may have had before, the mortgage money was substituted for the land, and he was bound to look to that fund. The court doubtless had the power, and if application had been made it would have been its duty to have directed the investment of a sum sufficient to pay one half of the legacy, when by the terms of the will it could be demanded. It appears from the report of the master that there is yet in the hands of the successor to the original trustee, a portion of the fund raised on the mortgage, more than sufficient for that purpose.

The claim of the plaintiff below was resisted on other grounds, but ■ it is not necessary to refer to them specially. That covered by the second assignment is technical and without merit. Enough has been said to show that the legatee never could have had any right to the proceeds of the sheriff's sale, and consequently he has no claim on the bond in the hands of the trustees.

Decree reversed; and it is now ordered and decreed that the bill be dismissed, and that the costs, including the costs of this appeal, be paid by the appellee.

Merour, J., dissents.


author: Mr. Justice Gordon

text:
    McQuillen and Wife versus Singer Manufacturing Company.
    1. The provisions of the Act of February 29th 1872, Pamph. L. 21, do not enable a married woman to bind her husband’s estate for the price of a sewing machine purchased by her without his consent for her own use, unless said machine be a necessity of their joint household.
    2. Where such machine is not a necessity for the support of the family, the vendor can recover judgment for the price against the wife alone, and must look to the separate estate of said wife for the collection of said judgment.
    February 13th 1882.
    Before Sharswood, C. J., Merour, Gordon, Faxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court or Common Pleas of Centre county: Of January Term 1882, No. 171.
    Debt, by the Singer Manufacturing Company against Thomas McQuillen, and Mary E. McQuillen his wife. The nan-., as amended, contained a count for $40, for necessaries furnished to the said Mary, at her special instance and request, for the support and maintenance of herself and family, to wit, a sewing machine, the same being an article for which a married woman is authorized by Act of Assembly, approved February 29th 1872, to make a valid and binding contract, without the necessity of her said husband joining therein.
    The defendant Thomas McQuillen pleaded the general issue, and his wife pleaded coverture.
    On the trial, before Obvis, A. L. J., the following facts appeared : In June 1880, Mrs. McQuillen, who resided with her husband at Ilublersburg, wrote this note to J. B. Kinsley, agent of-the Singer Manufacturing Company, at Towanda: — •
    “ Sir : I have been wanting to purchase a Singer sewing machine ; please bring me one of your machines as soon as possible, as I want to purchase one and think the Singer the best.”
    In pursuance of this request, Kinsley took a Singer machine to Mrs. McQuillen, a,t her residence, and sold it to her for the sum of §10, one-lialf thereof payable in six months and the balance in one year, for which Mrs. McQuillen executed two judgment notes under seal. Thomas McQuillen was absent from home at the time of the sale and for some three months thereafter. Alter the non-payment of the notes at maturity, Kinsley demanded payment from Thomas McQuillen, which was refused, McQuillen saying that he knew nothing of the transaction'at the time, and he would not pay for the machine unless he was compelled to. He did not offer to return the machine. McQuillen’s family consisted of himself, his wife and two children, aged respectively seven and three years. Both the defendants testified that the machine was a convenience in the family, but was not a necessary.
    Counsel for defendants admitted the liability of Mrs. McQuillen, but denied that her husband was liable, and requested the court to charge : “ That there can be no recovery against one of the defendants, Thomas McQuillen, unless you find from the evidence, that the sewing machine purchased by Mrs. McQnillen was actually necessary for the support of herself and family.” Refused.

    The court charged, inter alia, as follows: — “ Under the common law, a married woman could make no valid contract without the assent of her husband, except for the actual necessaries of life, when her husband refused to supply them.....
    “In 1872, an Act was passed, which reads as follows: ‘All contracts made by married women, in the purchase of sewiug machines for their own use, shall be valid and binding, without the necessity of the husband joining in the same.’ (Act Feb. 29th 1872, P. L. 21.) Under this act, the plaintiff claims the right to recover upon the contract -made with Mrs. McQuillen, on July 10th 1880. The proper construction of this Act is a question of law for the court. We instruct you, that according to the plain and unambiguous reading of this Act, a married woman is authorized to make a valid contract to purchase a sewing machine for her own use, without consulting her husband, or obtaining his consent to such purchase; and that such contract is binding on the husbarld, and can be enforced against him. She may not buy sewing machines to sell again, nor to rent or hire them out for profit; nor for any other purpose than her own use. But if purchased for her own use, she is made the only judge of the necessity or propriety of such purchase. This law says to all married women there is one article, to wit, a sewing machine for your own use, which you may buy, either for cash or on credit, without the permission of your husband.

      “ If you find from the evidence in this case, which is undisputed, that Mary E. McQuillen, the wife of Thomas McQuillen, on the 10th of July, 1880, purchased from the agent of the plaintiff, a sewing machine for her own use, and agreed to pay therefor the sum of forty dollars with interest from the date of purchase, then we instruct you that the plaintiff has a right to recover the contract price, and that Thomas McQuillen, the husband, is properly joined as defendant in this suit.”
    Yerdict for the plaintiff, and judgment thereon. The defendants thereupon took this writ of error, assigning for error the construction put by the court on the Act of 1872, in holding that a contract by a married woman under said Act is “ binding upon and can be enforced against the husband;” the'refusal of the court to charge as requested by defendants; and the instruction “ that Thomas McQuillen, the husband, is properly joined as a defendant in this suit.”

      Devoid F. Fortney, for the plaintiffs in error. —
    The Act of 1872 is in derogation of the common law, and therefore to be strictly construed so as to embrace only the objects plainly expressed or necessarily implied. There is nothing in the Act which makes a contract by a married woman in the purchase of a sewing machine binding upon her husband, who was a stranger to it. The court erred in refusing to submit to the jury the question of fact whether the article was a necessary in the defendant’s family: Parke &Wife ®..Kleeber, 1 Wr. 251; Mohney v. Evans, 1P. E. S. 83 ; Husbands on Married Women, 50, § 47.
    Thomas McQuillen was improperly joined as a party defendant, and'the judgment was erroneously entered against him on the general verdict for the plaintiff. The judgment notes of the wife, under seal, were given and accepted in consummation of a contract made valid as to the wife alone by the Act of 1872, and the original contract of purchase was merged in the specialties.

      Angelo T. Freedley (with him D. 8. Kellei'), for the defendant in error. —
    The Act provides that the contract in this case “ shall he binding, without the necessity of the husband joining in the same.” We submit that the plain implication is, binding on the husband, though he does not actually join in the contract. The construction contended for by plaintiffs in error requires the insertion after the word “ binding ” of the words “as to said married women and their separate estates.” The effect of the Act is to make a sewing machine purchased by a married woman for her own use a “ necessary,” without the necessity of submitting that question to a jury. The separate estate of the wife is only liable after the husband’s estate has been exhausted. The act of 1872 does not make the wife a feme sole as to the purchase of a sewing machine, and she cannot he sued separately therefor. The act must be construed in harmony with the spirit of the long series of Acts relating to married women, beginning with that of 1848 : Berger v. Clark, 29 P. F. S. 340.
    Whenever the legislature has intended that married women shall be separately liable, and have individual rights of action independently of their husbands, it has invariably so declared in express terms. Thus •
    Act 22d February 1718, 1 Sin. 99, [feme sole trader], “ without naming their husbands in such suits.”
    Act 4th May 1855, P. L. 430 [feme sole traders], “ as if he were previously dead.”
    Act 11th April 1856, section 4, P. L. 315 [refunding bonds], “ as if she were sole and unmarried.”
    Act 2d June 1871, P. L. 283 [to transfer stock], “ as if she were unmarried.”
    Act 3d April 1872, section 1, P. L. 35 [separate earnings], “ as if she were a feme sole.”
    Act 1st May 1874, P. L. 49 [to transfer stock], “ as if she were unmarried.”
    Act 18th March 1875, P. L. 24 [to transfer stock], “ as if she were unmarried.”
    Act 25th May 1878, P. L. 152 [mortgages and judgments], “ as if she were unmarried.”
    Act 25th May 1878, P. L. 154 [to sell and mortgage when husband insane], “ as if a feme sole.”
    Act 28th Marcli 1879, P. L. 14 [to release dower when husband insane], “ as if a widow and not under coverture.”
    Act 9th April 1879, P. L. 16 [to act as corporate officers of charities], “free from disability on ground of coverture.”
    Act 11th June 1879, P. L. 126 [actions when deserted by husband], “ as if she were sole and unmarried.”
    Act 10th June 1881, P. L. 106 [refunding bonds], “ as if unmarried.”
   Mr. Justice Gordon

delivered the opinion of the court, February 27th, 1882.

It is a mistake to suppose that the Act of February 29th 1872, constitutes the wife an agent for the husband in the purchase of sewing machines. It clothes her with the power to buy as many such machines, for her own use,' as she may think proper, without consulting her husband, and without regard to his inclination, circumstances or the necessities of his family, but it gives her no power to bind his estate.

Nothing, indeed, would be more dangerous to domestic peace, than to confer upon the wife a power to bind her husband for that not inquired by the necessities of their joint household; and we are unwilling to introduce such an element of discord by a construction not required by the terms of the statute. A construction which would give the wife the right to bind the husband to a contract made, not only without his assent, express or implied, but perchance, in the very face of his most determined opposition. Necessity alone could justify such a violation of the husband’s rights, but in this case the question of necessity is not involved, for that hypothesis was excluded by the refusal of the court to instruct the jury that there could be no recovery against Thomas McQuillen, unless they should find that the machine, purchased by his wife, was actually necessary for the support of herself and family.

It follows, that this judgment must be reversed, and if, upon retrial, the jury find that the machine is not a necessity for the support of the family, their verdict must be against the wife alone, and, in that case, the plaintiff must look for the collection of its judgment to the separate estate of Mrs. McQuillen, and not to that of her husband.

The judgment is reversed, and a new venire ordered.


author: Mr. Justice Paxson

text:
    In re Brady Street.
    1. The Act of May 24th 1878, Pamph. L. 129, vesting jurisdiction in the Courts of Common Pleas to appoint viewers to assess damages whenever any borough may ‘‘ change the grade or linos of any street or alley, or in any way alter or enlarge the same,” was intended to afford a remedy to an abutting owner where his property was injured by a change of grade. It does not apply, however, in cases where it is desired to obtain damages for the opening or widening of a street or alley.
    2. In such case the proceedings must be instituted in the Court of Quarter Sessions under the provisions of the Act of April 22d 1850, Pamph. L. 525.
    3. The said Act of 1850 is not repealed by implication by the said Act • of 1878.
    4. Whether, in case a borough council should direct the grade of a street to be changed, a.nd, at the same time, alter the lines thereof, so as to widen it in whole or in part, the damages both for the taking of land and for the change of grade could bo assessed under the Act of 1878, not decided.
    February 13th 1882.
    Before Siiabswood, O. J., Meecub, Gordon, Paxson, Trunkey, Stebbett and Green, JJ.
    Certiorari to the Court of Common Pleas of Lycoming county: of January Term 1882, No. 130.
    On September 11th 1880, A. W. Tallman, burgess of the borough of Muncy, bled a petition in the said court reciting that the town council bad surveyed, laid out, enacted and ordained that a certain alley, known as Mrs. Petrikin’s alley, be widened to a street of the width of thirty-seven feet, and called Brady street. The petition further set out that the borough was unable to agree with the parties owning property abutting on said alley as to proper compensation; it, therefore, prayed the court to appoint five viewers to assess the said damages.
    On the same day the viewers were appointed, and on September 13th 1880, an order was issued to said viewers reciting the petition, and also the terms of the Act of May 24th 1878, Pamph. L. 129, under which the application was made to the court.
    On October 4th 1880, the report of the viewers was filed, awarding damages to the heirs of W illiam A. Petrikin, deceased, owners of property abutting on said Brady street, in the sum of $375, for “the opening of the said Brady street and the appropriation therefor of twenty-five by one hundred and eighty feet of the lot fronting on Main street, and twenty-two by one hundred and fifty of the lot fronting on Washington street.”
    On October 16tli 1880, this report was confirmed by the court absolutely, and judgment entered against the borough of Muncy accordingly. On March 9th 1881, E. Bruce Petrikin, executor of Willian A. Petrikin, deceased, filed a petition setting forth that the title to the real estate of the said testator was vested in him; that the town council of the borough of Muncy had taken certain of this real estate for the purposes of a street, without notice to him, or making a compensation, or giving security therefor ; and praying the court to strike off the judgment entered in this case and set • aside the proceedings, on the ground of want of jurisdiction.
    A rule was granted to show cause why the judgment shonld not be stricken off and the procepding set aside, which rule after argument was discharged by the court, in the following opinion by Cummin, P. J.
    “ I am of opinion that the proceedings in this case were properly entertained by the Court of Common Pleas, under the provisions of the Act of Assembly of 24th May 1878 (P. L. 129). Pursuant to this statute, the proceedings have been properly conducted to final judgment. The owners of lands abutting on this alley have had aljl the notice the law requires. The necessity of widening this alley, and the sufficiency of the damages awarded, are both established by the weight of evidence taken on this rule, and the petitioner, therefore, has no just ground of complaint. ,
    “But apart from the merits of the controversy, this application comes too late. On the first day of the October term of court, to wit, October 4th 1880, the report of the viewers in this matter was filed and confirmed nisi. Qn the 16th of October 1880, this report was confirmed absolutely and judgment entered thereon, pursuant to the Act of 24th May 1878, supra, wherein it is directed that such report shall be confirmed and judgment entered, &c., if no exceptions jbe filed within ten days. The next term of the court began the first Monday of January. The second term thereafter was' the March term, which began March 7. The petition for this rule was filed March 9th 1881. The term to which the original proceedings were returnable, and at.which the judgment was entered having elapsed, and another full term having expired before this petition was presented, I have now no power to strike off the judgment and grant the prayer of the petitioner.” j .
    E. Bruce Petrikin, executor, thereupon took this certiorari assigning for error, inter alia, the discharging of his rule.

      R. P. Allen and O. A. Bowers, for the plaintiff in error.
    —The act of May 24th 1878, Pamph. L. 129, was only intended to provide a remedy for abutting property owners in case of change of grade. It was intended to reestablish the doctrine of Allegheny County v. Eowley, 4i Clark 379, and to override O’Connor ®. Pittsburgh, 6 Harris, 187, and In re Ridge avenue, 5 Casey 391. The Burgess should have filed his petition in the Quarter Sessions under the Act of April 22d 1856, Paraph. L. 525, which provides expressly a remedy in case of the widening of streets or alleys. The Act of 1878 does not repeal the Act of 1856, either expressly or by implication. To establish a repeal by implication there must be a clear and strong inconsistency'between the Acts: Street ®. Commonwealth, (if. & S. 209 ; Cohen®. Commonwealth, 6 Barr 111: Commonwealth ®. Easton Bank, 10 Barr 442: Egypt Street, 2 Grant 455; Commonwealth ®. Gregory, 2 Pars. 241. If two statutes can stand together the latter does not abrogate the former; the whole course of legislation is to be construed in pari materia, that every part and word shall have its effect, if it consistently can, and the will of the legislature be completely executed: Erie®. Bootz, 22 P. F. Smith 196; Maloney ®. McNeish, 6 Luz. Log. Reg. 155. The proceedings were, therefore, coram non judice.

      J. A. Baeber and A. I). Bower, for the defendant in error.—
    It is clear that the Act of 1878 was intended to repeal the Act of 1856. Its title reads thus: “ An Act to provide for appointing viewers to assess damages where streets and alleys are changed in grade or location in the several boroughs of this Commonwealth.” The use of the word “location” shows that the legislative intent was to supplant the former Act. You can change the location of a street without changing the grade, and you can change the grade without changing location. When you widen a street, you change its location ; not so when you fill it up or cut it down — then you change the grade. Further, if we take the Act in that part where it prescribes the duties of the viewers, it is provided, that they “ shall view the said street or alley and premises affected by the change or enlargement thereof.” Does not this mean a widening or spreading out, not a change of grade ? The title to an Act need not be a complete index of its contents: Commonwealth®. Green, 8 P. F. S. 226; Yeager ®. Weaver, 14 P. F. S. 425. All that is required is that the title fairly give notice of the subject of the Act, so as reasonably to lead to an inquiry into its body: Allegheny Home’s case, 27 P. F. Smith 77; Mauch Chunk ®. McGee, 31 P. F. Smith 433. Then if this Act means what we contend it does, it is plain that it repeals so much of the Act of 1856 as relates to the widening of streets or alleys and assessing the damages caused thereby. A subsequent affirmative statute is a repeal, by implication, of a former one made concerning the same matter, if it introduce a new rule upon the subject, although it contains no express words repealing it: Ledlie V. Mon. Nav. Co., 6 Barr 392; Com. v. Oromley, 1 Ash. 181; Johnston’s Estate, 9 Casey 511, 515. Acts which, although in pari materia, grant a right conditioned on different things, are inconsistent; and the inconsistency operates as a repeal: Gwinner v. The Lehigh and Delaware Gap R. R. Co., 5 P. F. Smith 126. It is well settled that if the court below had jurisdiction and proceeded in conformity of law, the Supreme Court will not reverse: In re Kensington and Oxford Turnpike Co., 10 W. N. C. 177. But further than this, the court at the time the pétition of plaintiff in error was filed had not the power to set aside the judgment, for the reason that the term of court at which the judgment was entered had elapsed and another full term ha,d expired : White v. Leeds, 1 P. F. Smith 189 : King v. Brooks, 22 P. F. Smith 363; Commonwealth v. Mayloy, 7 P. F. Smith 291; In re Kensington and Oxford Turnpike Co., 10 W. N. C. 177, 181.
   Mr. Justice Paxson

delivered the opinion of the court, February 27th 1882.

If this case can be sustained under the Act of 21th May 1878, P. L. 129, the court had jurisdiction, the proceedings are regular, and the judgment must be affirmed. The said Act provides, That in all cases where the proper authorities of any borough within this Commonwealth have, or may hereafter change the grade or lines of any street or alley, or in any way alter or enlarge the same, thereby causing damage to the owner or owners of property abutting thereon, without the consent of such owner, or in case they fail to agree with the owner thereof for the proper compensation, &c., .... the Court of Common Pleas of the proper county,” on application thereto by petition, shall appoint Viewers to assess the damages.

This was a petition to the Court of Common Pleas by the burgess of the borough of Muncy, for himself and the town council thereof, setting forth that said town council had by ordinance widened Petrikin’s alley to a street of thirty-seven feet in width, to be called Brady street, and praying for the appointment of five disinterested citizens to assess the damages for the widening of said alley.

It will thus be seen that we have no question of a change of grade before us. It was a proceeding to widen an alley — nothing more.

The first section of the Act of 22d April 1856, P. L. 525, provides expressly for the widening of streets and alleys in the respective boroughs of the Commonwealth. It says : “ Whenever the burgesses and town council of any borough shall open, ■or be about to open any streets or alleys therein, or to widen and extend the same,” the said burgesses and council may apply by petition to the Court of Quarter Sessions for the appointment of seven disinterested freeholders to assess the damages. The sa-id Act further provides for the assessment for contribution upon the properties benefited, and for the collection of all such damages and assessments for contribution, in the same manner as other debts due such boroughs are by law collectible.

The Act of 1878 contains no express repeal of the above recited Act of 1856, nor do we think it was repealed by implication. .Such mode of repeal is not favored, and will not be presumed unless there is a clear and strong inconsistency between the Acts: Street v. Commonwealth, 6 W. & S. 209; Cohen v. Commonwealth, 6 Barr 111; Commonwealth v. Easton Bank, 10 Barr 442.

We are unable to see such inconsistency between the two Acts as w'ould justify the inference that the legislature intended the repeal of the earlier one. On the contrary, we think it clear no such repeal was intended. The provision for the assessment of benefits is omitted in the Act of 1878, which would not probably have been the case if it was intended to supply the Act of 1856. The Acts of 1878 and 1856 must be construed in pari materia. They are part of a system. As before observed, the Act of 1856 expressly provides for assessment of the damages where a street is opened or widened by the authorities of a borough. What then was the object of the Act of 1878 ? If we apply the familiar rule of interpretation, the old law, the mischief, and the remedy, the solution of this problem is not difficult. The mischief was that while the old law provided a remedy for assessing the damages to the property owner for taking his land in the opening or widening of a street, it afforded him no remedy where his property was injured by a change of grade. This principle was settled by the decision in O’Connor v. Pittsburgh, 6 Harris, 187; In re Ridge street, 5 Casey, 391. The Act of 1856 furnishes a remedy for this hardship, and was undoubtedly passed for that purpose and no other. It speaks of a change of the “ grade or lines” of any street or alley, and while the succeeding words, “ or in any way alter or enlarge the same,” might seem to apply to widening a street, yet, looking at the manifest object of the Act, we must read these general words in connection with such object. Tested by this familiar rule, it is manifest the general words referred to are qualified by the preceding special words, and that the Act has no application where there is no change of grade. It may be, although we do not decide the point, that where the town council of a borough direct the change of the grade of a street, and at the same time alter the lines thereof so as to widen it in whole or in part, whereby the land of a property owner may be taken, his damages, both for the taking of his land and the change of grade, could be assessed under the Act of 1878. Otherwise two juries might be required to assess the damages sustained by the same owner, one for the change of grade and the other for the land taken. 'This proceeding was for the opening and widening of a street, without any reference to its grade, and is directly within the Act of 1856. The petition should have been filed in the Quarter Sessions. The Common Pleas had no jurisdiction.

Under these circumstances, the objection that the petition of E. Bruce Petrikin to set aside the proceedings was filed too late, is without merit. It is a well settled principle that the want of jurisdiction may be taken advantage of in any stage of the proceedings.

The order of the court below confirming the report of the reviewers is reversed and set aside, and the petition of A., W. Tallman, burgess of the borough of Muncy, is dismissed at the costs of the petitioner.

Gordon, J., dissented.


author: Mr Justice Sterrett

text:
    Beeber’s Appeal.
    1. A. applied to a register of wills for letters of administration on the estate of B. The register accepted and approved A.’s official bond with sureties, and agreed to issue the letters. He marked the bond as filed, made an entry of the grant of letters in his docket, and requested A. to call later in the day for his certificate. A. left, but called the next morning, and then took the official oath and received his certificate. Held, that in the interim before the second visit to the register’s, A. was so far the duly constituted representative of B., that a writ of attachment directed against B.’s estate could be served upon him in that capacity.
    2. How far the record of a grant of letters of administration in the docket of a register of wills may bé impugned by parol evidence, not decided.
    February 13th 1883.
    Before Sharswood, O. J., Merour, Gordon, Paxson, Trunkey, Sterrett aud Green, JJ.
    Appeal from a decree of the Court of Common Pleas of Lycoming County: Of January Term 1882, No. 111.
    This was an appeal by William Beeber and Charles Beeber, from a decree of the said court distributing the proceeds of a sheriff’s sale of certain real estate of John Fox, deceased.
    Before the auditor appointed to report distribution of the fund the facts of the ease appeared to be as follows : Some time prior to 1876, John Fox executed a mortgage for $2,500, to Edward Lyon, upon certain real estate whereof he was seised. In 1876, the said Fox died intestate, and letters were after-wards, in March, 1878, issued to one Jeremiah Kelley as his administrator.
    On March 4th 1878, the First National Bank and the City National Bank, having obtained judgments in the United States Circuit Court against Lyon issned attachment executions thereon, wherein Kelley as administrator of Fox was summoned as garnishee. Such attachment was-served on Kelley the same day.
    On March oth 1878, 'William Beeber and Charles Beeber, having obtained judgments in the Common Pleas against Lyon, issued similar writs of attachment, which were served on Kelley the same day. Afterwards, the interest upon the mortgage being in arrear, a writ of levari facias was issued thereon, and the mortgaged premises sold for $2,500. After deducting costs, the balance of the proceeds, viz., $2,451.76, was paid into court, constituting the fund in dispute.
    Said fund was claimed by the First National Bank and the City National Bank by virtue of their prior attachments. This claim was disputed by the Beebers, upon the ground that at the time of the service of said attachment Kelley was not duly appointed as administrator of Fox.
    The material facts with reference to this contention were as follows : Kelley came up to Williamsport on the morning of March 4th 1878, at the request of Lyon to take out letters on Fox’s estate. He went to the register’s office taking with him as his sureties William Frantz and Daniel Stock. He applied for the letters and filed the necessary bond whereon Frantz and Stock were sureties. The register told him that it was all right, but that he had not time to make out the letters just then. He accordingly asked him to call again in the afternoon. After leaving the register’s office Kelley was served with the bank attachments. He afterwards met the counsel of the Beebers, and at their advice and request did not go to the register’s office until the next morning, viz., that of March 5th, when he took the official oath and received the letters. These had been made out- by the register as of March 1th, but before delivering them to Kelly, the deputy register erased the word “fourth’’and substituted the word “fifth.” A few minutes after the above transaction, the Beeber attachments were served upon Kelley.
    The boud filed by Kelley was indorsed by the register as being filed on March 1th. The register’s docket contained the following entries:

      Name. Date of Letters. Administrator or Executor. Amount of Bail. Names of Bail. Amount of Inventory. John Fox. Died Aug. 19, 1876. Mar. 4, 1878. Jeremiah Kelley. §200.00. Wm. Frantz. Daniel Steck. April 2,1878. No personal Property.
    Tbe Auditor reported upon the question raised, as follows: “The evidence produced before your auditor is not confined, however, to the letters of administration. The register’s docket produced in evidence shows as a record fact that letters of administration on the estate of John Fox, deceased, were issued to Jeremiah Kelley on the 4th day of March 1878. That on the same day a bond was accepted by the register, with William Frantz and Daniel Steck as sureties in the sum of two hundred dollars. It is claimed on the part of the Common Pleas creditors that the oath of administrator was not taken until March 5 th 1878, and that the date of the letters of administration was changed to correspond with the date of the taking of the oath. There is no record evidence of the time when the oath was taken, but there is undoubted record evidence of the time when the bail bond was given to and accepted by the register. That transaction was had upon the 4th of March; the record was made up on the 4th of March, the letters were originally dated upon the 4th of March, and as the law required the register to administer the oath to his appointee at that time, the presumption is very strong that the register performed his duty. What the register did as an officer the record shows: what was afterwards done the altered letters present. The oath was undoubtedly administered on the 5th of March, in pursuance of the altered letters before ydtness, but the presumption is that it was also administered upon the 4th of March, in compliance with the letters as first made out. Your Auditor is of opinion that the official record of the register controls this case, and cannot be contradicted by pairol evidence, and he, therefore, determines that the service of the attachment executions issued out of the United States Circuit Court at the suits of the First National Bank of Williamsport;, and the City National Bank, against Edward Lyon, having • been served upon Jeremiah Kelley, administrator of John Fox, deceased, garnishee, on the 4th day of March, a. d. 1878, the 'day of his appointment, was such a service as will bind th'e estate of John Fox, deceased, and he therefore makes distribution accordingly.”
    Exceptions were filed by the Beebers to this report, which were dismissed by the court, in the following opinion by Mayer, P. J.:
    “ While we might not agree with the reasons given by the Auditor upon which he based the conclusion, we think the conclusion at which he arrived is correct. The exceptions are therefore overruled, the report of the Auditor confirmed absolutely, and it is decreed that the fund for distribution be paid over to the respective claimants in accordance with the report of the Auditor.”
    The Beebers thereupon took this appeal, assigning for error the decree of the court.

      Clinton Lloyds (with whom was W. E. Crawford), for the appellants. —
    An administrator is not fully qualified to act as such until he is sworn: Miller v. Meotcli, 8 Barr 417; Bowman’s Appeal, 12 P. F. S. 166 ; Gardner v. Gantt, 19 Ala. 666; Echols 'o. Barrett, 6 Ga. 443; Cleveland v. Chandler, 3 Stew. (Ala.) 489; State -y. Price, 21 Mo. 434.
    The record is not such a record as cannot be contradicted: Fleming v. Parry, 12 Harris 47.
    It may be explained : Lowry v. McMillan, 8 Barr 157. The bond itself shows one date, the record another; clearly, the date in the former must prevail: Vincent v. Huff, 4 S. & R. 298.
    The register’s docket of Lycoming county is not a record of anything. The Act of April 29th Í844, Pamph. L. 527, is a special Act merely.

      W. If. Armstrong and J. A. Beéber, for tho appellees. —
    The right of administration was complete on March 4th. The record shows this. The parol evidence to contradict the record was inadmissible. The function of the register in granting letters is judicial: Lojv. Kenned}, 1 W. & S. 398; Heron’s Estate, 6 Phila. 86 ; Carpenter «. Cameron, 7 Watts 59 ; Holliday v. Ward, 7 Harris 489.
    The act of the register was complete when he granted administration. The record shows that this act was done on March 4th, and the record cannot be contradicted : Hagerman ¶. Salisberry, 24 P. F. S. 280 ; Boy v. Townsend, 28 P. F. S. 329 ; Eyster’s Appeal, 4 Harris 372; Selin v. Snyder, 7 S. & R. 171; Moorhead -y. Commonwealth, 1 Grant 214; Kennedy v. WachsmUth; 12 S. & R. 171 ; Kendig’s Appeal, 1 Norris 68; Miltimore v. Miltimore, 4 Wright 151.
    The general Acts of March 15th 1832, and June 17th 1839, .require registei’s to keep records.
    That Kelley became the administrator either on the 4th or oth is not disputed ; but even assuming, for the argument, that his functions were not fully vested until the 5th, still, when they became perfected, they relate back to the time when they were in fact granted, which, it is not disputed, was on the 4th: Leber v. Kauffelt, 5 W. & S. 446.
   Mr Justice Sterrett

delivered the opinion of the court, March 6th 1882.

The parties to this contention claimed the fund in court by virtue of attachments in execution issued on judgments which they had respectively obtained against Edward Uyon, a mortgage creditor of John Fox, then ¡deceased. After service of the attachments, the mortgaged premises were sold by the sheriff and tire proceeds brought into court for distribution. The fund was awarded pro rata to the judgments of the appellees, whose attachments were issued« March 4th 1878, and served same day on Jeremiah Kelley, administrator of John Fox. Appellants’ attachment was not served until the following day, and was therefore postponed to, the prior attachments, unless they were void for want of propdr service. It is contended by them that such was the case, because, they say, there was no personal representative of John Fox until after the fifth of March, and consequently no one on whom the writs could be legally served before that date.- If they are correct in this position, the assignments of error should be sustained.

The record, made by the register at the time, in the docket kept for that purpose, shows that on March 4th 1878, letters of administration on the estate of John Fox, deceased, were granted to Jeremiah Kelley, who on same day gave bond with William Frantz and Daniel Steck as sureties. From an inspection of the record and the bond bearing the indorsement, “ filed March 4th 1878,” no one could doubt that Mr. Kelley was the proper person on whom to serve attachments in execution. It is to such l’ecords as this that creditors and others interested must resort for information. They are not required to call upon the administrator for the purpose of verifying the register’s record of his official action. As was said in Miller v. Meetch, 8 Barr 421: “ The register of wills is a judicial officer, having an official seal, and required by usage, as well as the tenor of the statute regulating his proceedings, to keep a record of his acts and doings. These are public records importing verity, and as such receivable in evidence before other tribunals.” It is expressly made the duty of every register “ to keep a minute-book, duly indexed, in which shall be entered minutes showing what papers have been filed in his office,” &c. (Purdon 1252, pi. 24); and also, “,to make and certify under the seal of his office, true copies of all bonds, inventories, accounts, actings and proceedings whatsoever, remaining in his office,” &e.: Purdon 1254, pi. 8. This involves the duty as well as the necessity of keeping a record of his acts and proceedings.

Without going beyond the record itself, in this case, we have positive evidence that letters of administration were granted on the day the first attachments were served; but appellants seek to avoid the effect of this by resorting to testimony outside the official record for the purpose of showing what occurred and when the letters were actually delivered to the administrator. Mr. Kelley testified, in substance, that he appeared before the register on the fourth day of March 1878, with his bail, and applied for letters of administration on the estate; that the register said it was all right, the bond was accepted and filed, and, because the register was not prepared to make out the letters immediately, he was requested to call for them in the afternoon. He then went out, and shortly afterwards the attachments issued by the appellees were served on him. It was afterwards suggested to him by the appellants’ attorney that he should not lift the letters until the following day ; and accordingly he was sworn and received the letters on the fifth of March. They had been made out for him and dated the day before, but the deputy register before delivering them erased that dato and inserted the fifth, to correspond with the actual date of delivery.

Is there anything in this testimony that should be permitted to impeach the record or change its effect? We think not. The application for letters was made on the fourth of March; on that day the judicial act of granting them was performed, and the bond with approved security was then accepted and filed. A record of this proceeding was made, and all that remained to be done, was to administer the oath and hand the letters to the administrator. It will scarcely be claimed that the latter was essential, except for the purpose of furnishing him with convenient evidence of his authority, in case it should be questioned. As to the oath, it wras administered before the letters were delivered, and in that the directory clause of the Act of 1832 was complied with. The failure of an administrator, who has in other respects complied with the law, to take the required oath, will not per se make void the grant of letters. In that respect, the Act may be properly regarded as directory, while in others it is mandatory. No doubt persistent'neglect or refusal of an administrator to take the oath, would justify an order revoking the letters, and granting them to another. But, a failure to give the prescribed bond has a very different effect. The Act declares, in express terms, that letters granted without it shall be void : Purdon 109, pi. 21. Prior to taking the oath, the grant of letters in this case was perhaps voidable, but it was not void. Everything that was really essential to the judicial act of granting the letters having been done, and a record thereof made, on the fourth of March, we are of opinion that Mr. Kelley should thenceforth be recognized as the personal representative of the deceased, and that service of the attachments on that day was valid. The record of his appointment, and approval of his bond, was notice, to everybody, of his official character, and those who promptly acted upon it, should' not be deprived of the fruits of their vigilance, by the intentional delay of the administrator to fully comply with all the requirements of the law until the following day.

Decree affirmed, and appeal dismissed at the costs of appellants.


author: Mr. Jnstice Gordon

text:
    Pickersgill versus Myers and the Lycoming Fire Insurance Company.
    1. Where an attachment is issued against an insurance company, and subsequently said company dissolves under the provisions of the Act of May 1st 1876, Pamph. L. 66, a receiver being appointed, this circumstance does not afEord sufficient ground for dissolving the attachment. Although the corporation as a legal entity is extinguished, the receiver has, under the provisions of section 49 of the above Act, ample power to prosecute and defend suits.
    2. In such case, the proper course for the plaintiff is to have the receiver substituted and then to prosecute his suit.
    February 13th and 14th 1882.
    Before Sharswood, O. J., Merour, Gordon, Paxson, Trunkey, Sterrettand Green, JJ.
    Error to the Court of Common Pleas of Lycoming county : of January Term 1882, No. 316.
    On August 24th 1880, S. J. Myers gave to William Pickersgill, Jr., his judgment note for $329.05. Pickersgill entered up this note on September lltli 1880. The same day he issued a writ of attachment execution, wherein The Lycoming Fire Insurance Company was summoned as garnishee, it being alleged that said company was indebted to the defendant Myers for a certain loss sustained under a cash policy issued by said company. Said company, in response to interrogatories, answered that it was not indebted to Myers, and subsequently being ruled to plead, pleaded “ nulla bona.” The cause was continued by the court from time to time and was never tried.
    On October 8th 1881, The Lycoming Fire Insurance Company dissolved and its effects were ordered to be distributed in the manner provided by the Acts of April 4th 1873, Pamph. L. 20 and May 1st 1876;, Pamph. L. 66. J. A. Beeber, Esq., was appointed receiver. On December 31st 1881, the receiver presented a petition setting forth the foregoing facts and praying for a rule to show cause why the attachment should not be dissolved.

      The rule was granted and after argument, was made absolute by the court, in an opinion by Cummin, P. J. Plaintiff thereupon took this writ of error, assigning for error the action of the court in making the rule absolute.

      A. D. llcmer, for the plaintiff in error. —
    It is true that the corporation became by its dissolution civilly dead, nevertheless under the Act of May 1st 1876, Pampli. L. 66, the receiver is vested with ample powers to carry on or defend suits. It was therefore error to dissolve the attachment.

      H. W. Watson and II. C. McGormiok (with whom was J. J. Met,zger\ for the receiver.
    — Upon the dissolution of the corporation it became civilly dead and all suits against it abated as of course: National Bank v. Colby, 21 Wall. 609 ; Building Association v. Anderson, 7 Phila. 106 ; Ilenry v. Kishbach, 5 Luz. Log. Reg. 90 ; Dean & Son’s Appeal, 11 W. N. C. 26; Mumma v. The Potomac Co., 8 Peters 281; McCullough '». Norwood, 58 N. Y. 562.
    No suit can be proceeded with without making the receiver a party. But there is no provision in the Act of 1876, by which he can be compelled to become a party to any suit or proceeding existing prior to liis appointment; consequently, it is optional, with him, representing as he does both the dissolved corporation and its creditors, to ask the court to authorize him to proceed with the suit or defend.
    There was no application in this case to have the receiver made a party. Any such application must have at any rate failed. The possession of the receiver is the possession of the court: Robinson v. Atlantic & Gt. W. It. Co., 16 P. F. Smith 160. The court will take care of the interests of creditors: Wiswall v. Sampson, 14 Howard 52.
    It has been repeatedly decided that the receiver of a corporation cannot be made a party to any suit without the consent of the court appointing him, because he acts as an officer of the court, and is under its protection and control: Wray v. Ilazlett, 6 Phila. 155; Daniel’s Chancery Practice 1744; Kennedy v. it. R. Co., 3 Fed. Reporter, 97; In re Globe Fire Ins. Co., 6 Paige Cli. Rep. N. Y. 102.
    When a party claims title paramount to that of the receiver he must apply to the court for leave to proceed to assert his right, notwithstanding the appointment of a receiver: De Groot v. Jay, 30 Barb. 483.
   Mr. Jnstice Gordon

delivered the opinion of the Court, March 13th 1882.

As against the Lycoming Insurance Company, the effect of Pickersgill’s attachment was to substitute him to the rights of Myers. If at the time of the service of that writ, the company was indebted to Myers, by force of the operation of the attachment Act that debt was transferred to the plaintiff. Thus Pickersgill stood in the place of Myers; he had the undoubted right to come in upon the fund in the receiver’s hands for any distribution that might fall to the account of Myers.

But if he took the place of his debtor, he had a right to have, by some means, a legal settlement and liquidation of the debtor’s claim against the garnishee. Alii this is too obvious and plain for discussion. But the court has stepped in and disolved the attachment, and this, not because of any defect in the proceedings, or any want of light in the plaintiff, but because, since the date of the issuing of the writ, the garnishee has been dissolved and its effects put into thediands of a receiver. The result of this action has been, not only to bar the plaintiff’s right to pursue the company, but also to defeat his right of substitution to the place of his debtor. The dissolution of the company, if the doctrine of the court below be sound, has had the effect to re-transfer to Myers that which the statute had previously transferred to his creditor, Pickersgill, and he now finds himself repossessed of that of which he had been legally dispossessed. It must be obvious that in this there is something wrong. Shall the dissolution of the insurance company so operate as to exempt the property of Myers from seizure for the payinent of his debts? or shall the plaintiff thus be stripped of his lawful lien upon his debtor’s property? We cannot agree thus to construe the law.

But it is said, this corporation, as a legal entity, was utterly and forever extinguished by the decree for its dissolution. This is no doubt true: Dean’s Appeal, 2 Out. 101; and had the legislature made no provision for an emergency of this kind, the plaintiff’s case would be hopeless, as would be the case of every other creditor. But this difficulty is met by the 49th section of the Act of May 1st 1876, which creates for the dissolved corporation a representative fully competent to take its place. By the section cited it is provided, that the receiver to be appointed by the court, shall have power to prosecute and defend suits in the name of the corporation or otherwise, and to do all other acts which might be done by such corporation, if in being, that are necessary for the final settlement of the corporation.’’

It thus certainly appears that the receiver is clothed with ample power to close up all the unsettled business of the defunct company, and especially ;has he the power to prosecute and defend suits. '<

We cannot see, therefore, upon what principle the plaintiff was turned out of court. He had a suit pending against the company; the claim ho represented was unsettled, and both suit and claim were covered by the provisions of the statute. We think, then, that it conclusively follows, that there was nothing in the way of the substitution of the receiver and prosecution of the suit to judgment.

The order dissolving the attachment is now reversed and set aside, and it is ordered that the record in this case be remitted to the court below for further proceedings.