author: Per Curiam.

text:
    Tyrone and Clearfield Railway Co. versus Jones.
    1. The plaintiff, a contractor, did work on a railroad in 1857,1858. Under authority granted in 1857 the company mortgaged their road, &c., in 1859; in 1860 the plaintiff brought suit; in 1866 the road was sold under the mortgage, and in 1867 conveyed to the purchasers, who in same year conveyed to defendants. In 1870 the plaintiff obtained judgment. On a scire facias on the judgment against the defendants under the Acts of January 21st 1843 and April 4th 1862, Held that the mortgage was invalid as against the plaintiff, and the defendants, as purchasers under the mortgage, were liable for the judgment.
    2. The Act of 1857, authorizing the original company to mortgage their road, &c., did not repeal the protection of the Act of 1843 as to debts for the construction of the road.
    3. The Act of 1862 provided a remedy to make the protection effectual.
    May 18th 1875.
    Before Agnbw, C. J., Sharswood, Meucur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Centre county: Of May Term 1875, No. 9.
    This was a scire facias, issued February 20th 1871, by John Jones against the Tyrone and Clearfield Railroad Company, with notice to the Tyrone and Clearfield Railway Company, claiming to own the real estate and franchises late of said defendants, and also with notice to the Pennsylvania. Railroad Company, claiming to hold and occupy the same by lease or otherwise. The writ was served on the terre-tenants, but not on the defendants.
    The writ recited, that on the 26th of January 1870, the plaintiff had recovered against the defendants a judgment for $3828.75, and commanded the sheriff to “ make known to the aforesaid Tyrone and Clearfield Railroad Company, with notice to the Tyrone and Clearfield Railway Company, claiming to own the real estate and franchises of the said defendant, and also with notice to the Pennsylvania Railroad Company, claiming to hold and occupy the same by lease or otherwise, that they be and appear, &c., * * * to show if anything for themselves they know or have to say, why the judgment aforesaid ought not to be recovered and the lien thereof continued, and why the aforesaid plaintiff ought not to have execution against them of said debt and damages aforesaid ?” * * * At the return of the writ the terre-tenants moved that the writ be quashed:—
    1. Because it was illegal and unauthorized against them.
    2. Because the writ was irregular and insensible, and did not make known to the parties served the facts required by law to be distinctly set forth in the writ.
    3. Because the writ guare ex. non is not proper under the Acts of Assembly, &c.
    The court denied the motion to quash the writ.
    The terre-tenants pleaded specially:—
    1. That at the time of issuing the scire facias, or before or since, they did not own, and had not in their possession, any real estate, &c., upon which the judgment recited in the scire facias was a lien.
    2. That on the 26th of January 1870, when the judgment on which the scire facias was issued was recovered,- there was no corporation in existence under the name of the Tyrone and Clearfield Railroad Company, against which the judgment was entered; that in pursuance of law that company had, on the 12th of May 1859, mortgaged all their property, &c., to J. Edgar Thomson, trustee, who, by power under the mortgage, sold out on the 11th of March 1867, and conveyed the Tyrone and Clearfield Railroad, and all the real estate, &c., and franchises of the company, to George B. Roberts and others; and that by reason of this sale and conveyance, the Tyrone and Clearfield Railroad Company ceased to exist as a corporation.
    3. Made the same averments as in the 2d, and further, that on the 1st of April 1867, Roberts and others, the purchasers, conveyed the railroad, and all the property and franchises, to the Tyrone and Clearfield Railway Company, a corporation of Pennsylvania.
    The case was tried April 30th 1872, before Mayer, P. J.
    The plaintiff gave in evidence the record in an action, Jones v. Clearfield Railroad Co., brought to April Term 1860. The cause of action, as shown by that record, was work done by plaintiff as a contractor in the construction of the road of the defendants; judgment was recovered against the defendants on the 26th of January 1870 for $3928.70 ; this is the judgment on which this scire facias is issued. They then gave in evidence the mortgage and the sales and conveyances set out in the special pleas, together with the several Acts of Assembly relating to the incorporation of the companies, authorizing the borrowing of money, &c.
    The defendants closed.
    The court charged that under the Acts of 21st of January 1843, sect. 1, Pamph. L. 368; April 4th 1862, sect. 1, Pamph. L. 235, 1 Br. Purd. 90, 91, pi. 1, 6, the plaintiff had a lien that was superior to the mortgage under which the railroad was sold, and instructed the jury to find for the.plaintiff against the Tyrone and Clearfield Railway Company only, as it did not appear that the Pennsylvania Railroad Company claimed to hold or own any of the real estate of the Tyrone and Clearfield Railroad Company.
    The verdict was for the plaintiff for $4460.08.
    The Act of 1843 made it unlawful “ for any company, incorporated by the laws of this Commonwealth, and empowered to construct, make and manage any railroad, while the debts and liabilities, or any part thereof, incurred by the said company to contractors, laborers and 'workmen, employed in the construction or repairs of said improvement, remain unpaid, to execute a general or partial assignment, conveyance, mortgage or other transfer of the real or personal estate of the said company, so as to defeat, postpone, endanger or delay their said creditors, without the written assent of the said creditors first had and obtained; and any such assignment, conveyance, mortgage or transfer shall be deemed fraudulent, null and void as against such contractors, laborers and workmen, creditors as aforesaid.” The Act of 1862, after reciting that corporations made assignments, &e., in contravention of the Act of 1843, enacted that whenever any corporation, subject to the provisions of that act, should “ divest themselves of their real or personal estate, contrary to the provisions of the said resolution, it shall and may he lawful for any contractor, laborer or workman, employed in the construction or repair of the improvements of said company, having obtained judgment against said company, to issue a scire facias upon said judgment, with notice to any person, or to any incorporated company claiming to hold or own said real or personal estate, to be served in the same manner as a summons upon the defendant, if it can be found in the county, and upon the person or the persons, or incorporated company claiming to hold or own such real estate; and if the defendant cannot be found, then upon the return of one nihil and service as aforesaid, on the person or persons, or company claiming to own as aforesaid, the case to proceed as in other cases of scire facias on judgment against terre tenants.”

      The railway company took a writ of error and assigned for error:—
    1. Not quashing the writ of scire facias.
    2. Deciding that the Act of April 4th 1862, authorized the issuing the writ of scire facias against the Tyrone and Clearfield Railway Company.
    3. Sustaining the judgment against the Tyrone and Clearfield Railroad Company, a corporation not then in existence.
    4-8. The charge of the court.

      A. Say and Bdrnmd Blanchard (with whom was Svan Blanchard), for plaintiffs in error.
    The writ of scire facias to revive and continue a lien and show why execution should not issue is interlocutory, and not on a footing with a sdire facias on a mortgage: Edwards’ Appeal, 16 P. F. Smith 90; Sinkett v. Wunder, 1 Miles 362. A scire facias to revive a judgment against a terre-tenant cannot be maintained on a judgment on a. scire facias against the original lien debtor, obtained after the terre-tenant’s title had accrued: Zerns v. Watson, 1 Jones 260; Little v. Smyser, 10 Barr 383. A terre-tenant must be a purchaser mediately or immediately, whilst the land is bound by the judgment: Dengler v. Kichner, 1 Harris 41; Cahoon v. Hollenback, 16 S. & R. 432; Dohner’s Assignees, 1 Barr 104. A scire facias cannot be sustained against a dead corporation: Mumma v. Potomac Co., 8 Peters 285; Farmers’ & Mech. Bank v. Little, 8 W. & S. 207. The Acts of 1843 and 1862 do not create liens expressly, and implied or latent liens are against the policy of our laws: Kauffelt v. Bower, 7 S. & R. 64; Commonwealth’s Appeal, 4 Barr 165; Hendrickson’s Appeal, 12 Harris 365; Patterson v. Forry, 2 Barr 456; Hepburn v. Snyder, 3 Id. 78; Hiester v. Green, 12 Wright 96 ; Mann’s Appeal, 1 Barr 24; York Bank’s Appeal, 12 Casey 458; Smith’s Appeal, 11 Wright 128. The Act of 1843 being in restraint of alienation, must be construed strictly: Dwarris on Statutes 750; Braddee v. Brownfield, 2 W. & S. 280. The power to mortgage, taken away by the Act of 1843, was restored by the Act of April 28th 1857, Pamph. L. 351, and its supplement April 11th 1859, Pamph. L. 494, authorizing the Tyrone and Clearfield Railroad Company to mortgage. When a subsequent affirmative statute introduces a new rule, it repeals a former statute on the same subject-matter by implication: Johnston’s Estate, 9 Casey 511; Somerset & S. Road, 24 P. F. Smith 61; Bartlet v. King, 12 Mass. 546; King v. Cater, 4 Burrows 202; Commonwealth v. Cromley, 1 Ashmead 181. Where there is a repugnancy in two statutes the latter repeals the former pro tanto: Opdyke’s Appeal, 13 Wright 379; Nusser v. Commonwealth, 1 Casey 126.

      J. A. Beaver and J. Maamanus, for defendant in error.
    A scire facias on a judgment is not strictly an action, but a demand for execution : Fries v. Watson, 5 S. & R. 220 ; Morton v. Croghan, 20 Johnson’s Rep. 106 ; Clippinger v. Miller, 1 Penna. R. 71. The plaintiffs in error appeared to the original suit and were bound by the judgment, and also by the scire facias on it, which was served on them ; they appeared and made defence: Himes v. Jacobs, 1 Penna. R. 152; Heller v. Jones, 4 Binney 61. The lien of the contractor is indefinite in duration: Knorr v. Elliot, 5 S. & R. 49; Amer. F. Ins. Co. v. Pringle, 2 S. & R. 138.
   Judgment was entered in the Supreme Court, May 24th 1875,

Per Curiam.

Under the resolution of 1843, the mortgage in this case was invalid to affect the debt of the plaintiff. The Act of 1857, authorizing the company to mortgage its road, franchises and property, conferred an authority upon the railroad 'Company to execute the mortgage, but was not a repeal of the protection the resolution of 1843 gave to debts for the construction of the road. The Act of 1862 furnished a remedy to make this protection effectual. The form of the scire facias is not .directed by the act. The form adopted was therefore not inappropriate. The opinion of Justice Strong in Fox, Ex’r of Fox, v. Seal, Workman .and Hug-hart, Trustees of the Hempfield Railroad Co., decided in the Supreme Court of the United States, is so full and satisfactory, and covers the ground of this case, it is referred to as iully vindicating the decision in this case. Judgment' affirmed.

       Mr. Justice Strong delivered the opinion of the court.
      We think there was error in the rejection of the evidence offered by the plaintiff. Some of it may have been immaterial to the issues pending, but the court directed that all the record and documentary evidence be embraced in one offer, and then rejected it all. In effect the objections urged by the defendants were treated as a demurrer, and the offer was overruled because the evidence was regarded as insufficient in law to sustain the action.
      If the rights of the plaintiff have not been lost by failure to prosecute them in the proper mode, and in due time, the joint resolution of 1843, in our opinion, protects him against the mortgage, and all persons claiming thereunder. * * That the plaintiff’s testator was a contractor with the Hemp-field Railroad Company, and that the debt due to him was incurred by the company for the construction of their railroad, it was the direct tendency of the evidence offered to prove, and these facts are uncontroverted now. That debt, therefore, was within the protection, whatever that may be, of the resolution. What, then, was the nature and extent of that protection ? It is unnecessary to assert that the company was rendered incapable of making a mortgage or any transfer of its property, so long as the debt due to its contractor remained unpaid. But the language of the resolution is too clear to admit of question that the legislature intended to give to an unpaid contractor a priority of claim to the company’s property, over every right that could be acquired by a mortgagee, or acquired under a mortgage, if the mortgage was made after the debt to the contractor was incurred. It was at least intended that the property, into whosoever hands it might come, should remain subject to a paramount claim of the contractor so long as the debt due to him remained unpaid. That this was substantially giving to him a lien of indefinite duration seems quite plain. It was not a “jus in re,” nor a “jus ad rem,” but it was a charge upon the property, a right to prevent any disposition of it, by which it could be withdrawn from the creditor’s reach, and therefore in a very legitimate sense an equitable lien. The resolution in effect'declared that while his claim against the company exists, a subsequent mortgage or transfer cannot be setup to defeat the contractor’s resort to the property and his superior right to have it applied to the payment of the debt duo him. It is true the mode of that resort is not prescribed. It can only be by suit, judgment and execution, but whenever judgment and execution are obtained, the lien is made to precede the lien of any mortgage or the effect of any conveyance ; more accurately, it has the effect it would have were there no mortgage or conveyance in existence. The property may be levied upon and sold, and the proceeds of the sale may be applied to the satisfaction of the debt due the contractor, without possible interference by the mortgagee, though the mortgage preceded the judgment in time. We cannot regard the resolution as no more than a partial re-enactment of the Statute of 13th Elizabeth invalidating mortgages and transfers only when there is an actual or constructive intent to hinder, delay or defraud creditors. If that was all the resolution intended it was unnecessary and unmeaning. But it declares null and yoid every mortgage the effect of which is to defeat, postpone, endanger or delay contractors, laborers and workmen. The mortgage may be good as against other creditors, but it is a nullity as to them.
      It has been argued that it is against the policy of Pennsylvania to allow secret liens, or liens not of record, or liens on land created by parol, and undoubtedly there are evils attendant upon the allowance of such encumbrances. But that is a matter for legislative consideration. The supposed policy of the state cannot, in a judicial tribunal, prevail over a plain statute. And notwithstanding the disinclination judges have manifested to sustain liens not of record, there are many such liens known to the statute laws of that state and upheld by the courts. A mechanic or material man, is given a lien, and he is not required to put his claim on record until within six months after his work has been done, or his materials have been furnished. Yet his lien has priority over every lien (other than a mechanic’s) which attached to the building or curtilage subsequent to the commencement of such building. So liens are given by statutes to laborers, miners and clerks, and they are valid against subsequent mortgages, though the liens do not appear upon any record: Act of March 30th 1859, P. L. 318. It is not, then, against the policy of the state to create a statutory lien-in favor of laborers or workmen.
      And if we have correctly interpreted the legislative resolution of 1843; if the debt due from the Hempfield Railroad Company to the plaintiff’s testator was a lien upon the property of the company from the time it was created, so far, at least, as to have priority over any subsequent mortgage or conveyance, it is plain the lien would have continued a prior encumbrance, so long as the debt it was given to secure remained, had there been no such subsequent mortgage. But the expressed declaration of the resolution is that the mortgage shall have no effect as against such a debt or claim. And this must mean that neither the mortgage itself nor any sale made under it, shall have the effect of defeating, postponing, endangering or delaying the contractor; for if the sale made under the mortgage discharges the contractor’s lien and removes the property from his reach, effect is given to the mortgage itself, and precisely the effect which the statute denied to it.
      We are thus brought to the question whether the lien or claim which the plaintiff’s testator had upon the property, real and personal, of the Hemp-field Railroad Company, as a security for the debt due him, and which was paramount to the mortgage made to the company, has been lost or extinguished. And we think it has not. The debt remains due and unpaid. In 1855, Richard Fox, the contractor, commenced a suit for its recovery, and he obtained a judgment in I860. That judgment did not extinguish the right which he had from the time the debt was incurred to have the property of his debtors first applied to the satisfaction of the debt. It did not cause to be merged in itself the original lien, any more than a judgment obtained upon a bond secured by a mortgage absorbs the lien of the mortgage. In whatever shape the debt was it had the benefit of the statutory privilege. It matters not then that more'than five years elapsed after the judgment was recovered before it was revived, for if it be conceded that the lien of the judgment expired, that of the debt remained.
      And if the lien of the judgment recovered in 1860 ceased at the end of five years from the time of its rendition, still it is undeniable that the revived judgment of 1867 gave a new lien which followed the property into whosoever hands it came, until the present scire facias was sued out in February 1871. The only possible answer to this is that before the revived judgment of 1867 was obtained, the property of the Ilempfield Railroad Company had passed from its ownership, had become vested in its mortgagees, and that the trustees of the mortgage were not notified of the scire facias, or made parties to it. To this there are two replications, each of which, in our opinion, is quite sufficient. The first is that the company was, by the resolution of 1843, deprived of the power to make a mortgage or any conveyance by which its property could be withdrawn from the reach of the plaintiff, and the mortgagees or trustees could acquire no rights which the mortgagors were unable to confer. The second replication is that the mortgage to Seal and others was not a grant of the ownership of the property described in it. It was but the creation of a lien for the security of the bonds issued under it. True, the trustees of the bondholders, pursuant to its provisions, took possession of the mortgaged property in 1857, and carried on the business of the company until, 1871; but even as against them the company remained the owners of the road, subject only to a lien to secure the payment of the mortgage-debt. The trustees were not terre-tenants, they wore mere occupants. Terre-tenants, against whom, by the laws of Pennsylvania, it is necessary that a scire facias to revive a judgment be sued out, in order to preserve its lien, are those who have seisin of the land, those who are owners, or claim to be owners by title derived from the defendant in the judgment. There can be no terre-tenanb, such as is intended by the Act of 1798 (3 Sm. Laws 331), who is not a purchaser, mediately or immediately, from the debtor while the land was bound by the judgment: Dengler v. Kichner, 13 Penn. St. R. 41 ; Chahoon v. Hollenback, 16 S. & R. 432; In re Doner’s Assignees, 1 Penn. St. R. 104. Such has always beenjheld to be the law in Pennsylvania, and such ai'e terre-tenants in. England: 2 Saund. 7, n. 9. A mortgagee has never been regarded as a terre-tenant entitled to notice of the revival of a judgment. There has therefore been no failure or neglect in this case to make the necessary parties to all the judicial proceedings commenced by the plaintiff or his testator. The law did not require notice of the scire facias sued out to revive the judgment of 1860, tobe given to the trustees of the mortgage, and if the lien of that judgment had expired, the revived judgment fastened a new lien upon the property. That lien was a security for the debt which, by the resolution of 1843, was made paramount to the mortgage, and against which, while it remains unpaid, the mortgage cannot be set up.
      This, however, relates to the ordinary judgment lien, but it is not essential to the plaintiff’s case, as exhibited by the evidence he offered, that the judgment which he now seeks to enforce is a lien upon the property claimed and held by the trustees of the mortgage and by the Wheeling, Pittsburg and Baltimore Railroad Company. It would be were it not for the legislative resolution of 1843 and for the enactment of April 4th 1862. But the first of these, as we have seen, made the debt due to the contractor, itself a lien without a judgment, and prescribed no limits to its duration. The second (the Act of April 4th 1862, sect. 1), manifestly recognised the existence of such a lien, and pointed out a mode for making it available to the creditor. * * *
      This act makes special provision for such cases as the present. Under it all that is necessary to enable a contractor, laborer or workman to proceed by scire facias against a person or company claiming to hold or own the real or personal estate of the debtor to such contractor, laborer or workman, by virtue of a mortgage made in contravention of a resolution of 1843, is that he has obtained a judgment against the indebted company which gave the mortgage. It is not required that his judgment shall be a lien on the'property. And plainly it was not intended that such a lien must exist. The resolution of 1843 prohibited transfers, assignments and mortgages of personalty as well as of realty, and a judgment creates no lien upon personalty. But the resolution recognises the right of a contractor to follow both into the hands of a claimant or owner holding under such an assignment, transfer or mortgage, without regard to the question whether the property is real or personal. It, therefore, recognises the existence of a lien in favor of those protected by it, independent of the lien of any judgment they may recover. This must be so, for if it is essential to a right to proceed by scire facias against the property in the hands of a grantee of the indebted company that the judgment of the creditor shall be a lien upon that property, what is to be said of the case where the indebted company has conveyed before the recovery of any judgment ? In such a case the judgment can be no lien. Yet it will not be claimed the property could not be followed by scire facias against the grantee. And if it could, it must be, not because of the lien of the judgment, but because of the lien of the debt, a lien which, as there is no statutory limitation to it, remains so long as the debt remains unsatisfied. Such being, in our opinion, the true meaning of the joint resolution of 1843, and of the Act of the Legislature of 1862, the evidence offered by the plaintiff and rejected by the court should have been received. It tended to prove, inter alia, that the plaintiff’s claim was within the protection of the joint resolution; that the mortgage under which the defendants hold was invalid as against him ; that his case was embraced in the remedial Act of 1862, and. that the defendants had bought under a decree of foreclosure of the mortgage, which expressly directed that the property should, notwithstanding the sale, remain subject to the claim of the plaintiff.
      It has been contended, however, in support of the ruling of the court below, that the sale which was made of the property in March 1871, under a decree of the Supreme Court of Pennsylvania in the suit to foreclose the mortgage, divested the plaintiff’s lien, and that thereafter his only remedy was a resort to the proceeds of that sale. This might be so if the only lien he had was that of his judgment. But, as we have endeavored to show, he had a lien independent of his judgment and prior to the mortgage. The decree of the Supreme Court ordered the property to be sold subject to that. The plaintiff petitioned to be allowed to intervene ‘‘ pro interesse suo” in the suit for foreclosure, or, if that was not allowed, that he might be paid out of the proceeds of the sale, but his petition was refused, and the court ordered that the purchaser at the sale should hold the whole of the estate property, real, personal and mixed, of the Ilempfield Railroad Company, “ subject to any lawful claims or rights which may exist prior or paramount to said mortgage.” The plaintiff’s lien, therefore, was undisturbed by the sale, and, hence, hp had no right to look to the proceeds of the sale for payment.
      This disposes of the ease. It is hardly necessary to add that the Act of the Legislature of April 12th 1851, empowering the Ilempfield Railroad Company to borrow money and pledge its property and income to secure the payment thereof, cannot be regarded as exempting that company from the operation of the resolution of 1843.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Lloyd et al. versus Thomas et al.

      A firm dissolved in May, giving notice by publication and authorizing one to use the firm name as liquidating partner. In August, without the knowledge of his fellows, he drew notes payable to the firm, endorsed them with the firm name, had them discounted by bankers with whom the firm had never had dealings; the proceeds of the notes passed to the individual credit of the partner making them; there was evidence that the proceeds were applied to the firm debts. Hdd, that if the notes were bonst fide for liquidation and the proceeds applied to payment of firm debts, the other partners would be liable.
    May 19th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Centre county: Of May Term 1875, No. 80.
    This was an action of assumpsit, brought December 22d 1871, by William M. Lloyd and David Caldwell, trading as Lloyd, Caldwell & Co., against Jacob Y. Thomas, Isaac Thomas and Joseph D. Thomas, trading as Jacob Y. Thomas & Go.

    The plaintiffs, who were bankers, were the holders of three promissory notes drawn by Jacob Y. Thomas to the order of the defendants, and"endorsed by them; the notes were all dated May 15th 1871; one was for $1250, payable in six months; another for $1500, also payable in six months; and the third for $1500, payable in seven months. These notes were discounted by the plaintiffs ; the first, August 22d 1871; the second, August 29th 1871; the third, September 8th 1871; and the proceeds of all of them passed to, the credit of Jacob Y. Thomas. The-notes were unpaid at maturity, notice of dishonor was given to Jacob V. Thomas, and the notes were duly protected.
    The defendants’ firm was dissolved May 15th 1871, and the following notice of the dissolution was published the same month in newspapers in Bellefonte, where they carried on their business:—

      “ Dissolution Notice. — Notice is hereby given that the partnership heretofore existing between Jacob Y. Thomas, Isaac Thomas and Joseph D. Thomas, under the firm name of Jacob Y. Thomas & Co., is this day (15th inst.), dissolved by mutual consent. The accounts of the firm will be settled by Jacob Y. Thomas (who will continue the business), and who is alone authorized to use the name of the firm in settlement of the business.
    Jacob Y. Thomas,
    Isaac Thomas,
    Joseph D. Thomas.”
    Jacob Y. Thomas made no defence to the suit. Prior to May 15th 1871, the date1 of the notes, the defendants never had any dealings with the plaintiffs. On the trial, December 2d 1874, before Mayer, P. J., the foregoing facts appeared from the evidence of both parties.
    Under objection and exception, the defendants further gave evidence by Jacob, that he endorsed the notes about the time they were discounted; he understood he had the right as liquidating partner, to use the name of the firm ; he got the proceeds put to his credit with the plaintiffs; he could not tell exactly for what purpose he used the money; “I used them indiscriminately as money ; I paid more of the firm’s debts than the amount of these notes.” He could not say whether any of the proceeds of these notes were applied to the firm’s debts.
    Isaac Thomas testified, that he had never seen the notes till the day before the trial; that he had no knowledge that they had been given; he never authorized their endorsement in the firm name, and had received no notice of protest. Jacob had authority in the dissolution to settle the old accounts of the firm; witness never took an active part in the business of the firm either before or after its dissolution; Jacob did all the business of the firm; when the firm dissolved Jacob got the property; Jacob did not pay any debts of the firm after dissolution; witness and Joseph made assignments for the benefit of creditors, to the same assignee, to pay the debts of the firm.
    Jacob again testified, that the last two notes were made about the time he sent them for discount, the other possibly some time before; the reason he dated them back was that he used them as the representative of property he had taken from the firm ; he did not draw as many notes at that time as he had taken property; he did not deliver them to Isaac and Joseph; he made them as he needed them; he paid debts after the dissolution till he failed— more than these notes amounted to; none of- the notes were dated till after the dissolution.
    Plaintiffs, in rebuttal, gave in evidence a letter dated August 28th 1871, from Jacob to plaintiffs, in which, amongst other things, he says:
    “I also enclose you another note for the old company, May 15th at 6 mos. for $1500, which, if done for them, please send $600 in notes per Haupt, and balance will check on another time.”
    Also, letter same to same, September 9th 1871, viz:—
    “ Yours of yesterday to hand, covering draft returned for nonacceptance. As you charged up the draft you should have given me credit with difference of interest. I would much rather you had not charged it up against the company note, but held it until due, when it will mo doubt be met by the party, and if not I shall certainly expect to do so myself. I return it to show difference of interest, and if you do not hold it till due, I will have to raise the money some other way for the company.”
    Also, letter same to same, September 13th 1871, viz :—

      “ Yours of 9th to hand on Monday; contents noted. If I had supposed you would consider the notes to J. Y. T. & Co. as accommodation paper for me, I should have had them kept in account by themselves, or had them done here for them. They are as regular business paper as can be made, I having given them for stock on hands at the works when I took myself, and they are used exclusively for paying their accounts, not mine. * * * Don’t you think you could do $1500 more for me this week with an endorser, or would you prefer doing another of mine for J. V. T. & Co. ?”
    Also, letter same to same, dated November 18th 1871, viz:—
    “ I have received no word or paper yet from the west, and am under the necessity of having you renew the two notes given J. Y. Thomas & Co., due to-day. I enclose two new notes as follows, both dated to-day, one at forty days for $1250, and the other at two months for $1500.” * * *
    The court charged:— * * *
    “ Jacob Y. Thomas, who drew the notes and endorsed the name of the firm upon them, admits his liability, and defence is only made by Isaac Thomas and Joseph D. Thomas, the other members of the firm. They allege, and it is shown by the evidence, that the firm of Jacob Y. Thomas & Co. was dissolved by mutual consent on the 15th day of May 1871, and that notice of dissolution of the partnership was given in the newspapers published in Bellefonte, where the business of the partnership was carried on: that although the notes bear date on the 15th day of May 1871, yet that they were antedated and were not drawn and endorsed until some time in August 1871, and at the time they were discounted by the plaintiffs. The evidence in the case does not show that the firm of Jacob Y. Thomas & Co., during the existence of the partnership, had any dealings with the plaintiffs, until these notes were discounted. The notice, therefore, published in the newspapers, of the dissolution of this partnership, would be sufficient notice to the plaintiffs, and the fact that these notes were issued by Jacob Y. Thomas and endorsed by him with the firm name, after the partnership was dissolved, is sufficient to exempt the other two members of the firm from being bound by the notes. The defence set up by Isaac Thomas and Joseph D. Thomas being, in our opinion, a. valid one, and there being no controversy in regard to the facts, we instruct the jury to find for the defendants.”
    The verdict was for the defendants, Isaac and Joseph D. Thomas.
    The plaintiffs took a writ of error, and, amongst others, assigned for error the charge of the court.

      J. A. Beaver (with whom was A. A. Stevens), for plaintiffs in error.

      A. O. Furst (with whom were Alexander Power and W. P. Wilson), for defendants in error.
    The notes, although dated back, in law bore date the day of delivery: Lansing v. Game, 2 Johns. R. 300. The power of a partner to bind the firm ceases with its existence: 1 Parsons on Bills 174. A note endorsed by a partner out of the course of the partnership concern does not bind his fellow: Mercein v. Andrews, 10 Wend. 463; Schoneman v. Fegly, 7 Barr 438; Whitehead v. Bank of Pittsburg, 2 W. & S. 172; Searight v. Craighead, 1 Penna. R. 138; Levy v. Cadet, 17 S. & R. 127; Brown v. Clark, 2 Harris 469. Where a partner endorses his separate accommodation note with the firm name, it not being shown that he is in the practice of endorsing, the party discounting is put upon inquiry as to the partner’s authority: Tanner v. Hall, 1 Barr 417.
   Mr. Justice Paxson

delivered the opinion of the court, May 31st 1875.

We think the learned judge of the court below erred in instructing the jury that the mere fact that the notes in controversy were issued by Jacob V. Thomas, and endorsed by him with the firm name after the partnership was dissolved, exempted the other two members of the firm from being bound by the notes. Jacob was the liquidating partner; by the terms of the dissolution he was expressly authorized to use the firm name- in the settlement of its business. If the notes were made and issued in good faith for the purposes of liquidation, and the proceeds applied to the payment of the firm debts, of which there was some evidence, the other partners would be liable. The evidence upon this point should have been submitted to the jury, and it was error to instruct them to find for the defendants.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Mercur.

text:
    Bare versus Hoffman.
    1. The defendant, during the week of court in which a ease was fixed for trial, moved for a view. Held, that application was nothin time.
    2. In an action for damages for diverting water the jury might add interest from the date of the damage.
    3. The defendant and plaintiff were owners of tanneries on opposite sides of the same stream, the defendant being the lower; the plaintiff was owner of land on both sides of the stream below both tanneries. The plaintiff had a dam from which he conducted the water to his tannery; the defendant made a dam below into which the surplus water over plaintiff’s dam flowed; from this dam the defendant, by a pipe conducted the water to his tannery, by which the plaintiff lost the use of the water required to carry the offal from his tannery. Held, that evidence of permanent injury to the market value of plaintiff’s tannery was inadmissible.

      4. The injury was not of such a character as to assume that it would be permanent and to assess damages accordingly.
    5. As a general rule successive actions may be brought so long as the obstruction is continued.
    6. After the bringing of the suit, the defendant removed the pipe which conducted the water from his dam. Held, in an action for the diversion, evidence by the plaintiff of this removal was irrelevant.
    May 20th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Huntingdon county: Of May Term 1875, No. 16.
    This was an action on the case brought, June 16th 1870, by Jacob Hoffman against John Bare, for diverting the water of a water-course from the premises of the plaintiff.
    The parties each owned a tannery at Mt. Union, Huntingdon county; they were situate on opposite sides of a stream called Pollock’s run, and were about thirty-two yards distant from each other, both on the bank of the Pennsylvania canal, between that and the Pennsylvania railroad. The railroad and canal here were parallel, and ran east and west.
    Prior to 1860, the land for some distance south of the railroad to the Juniata river, which is north of the canal, belonged to Samuel Miller. The source of Pollock’s run was south of the railroad; it ran through Miller’s land, under the railroad and emptied into tbe canal.
    On the 2d of April 1860, Miller conveyed the land now owned by the plaintiff, and lying on the west side of the run, to the defendant; the deed contained the grant of the following privilege
    “ Also, the right to convey the waste water by means of covered drains or pipes by the old channel across the said property of the said Samuel Miller, across to the Juniata river; also the right to convey the said water out of the said run by means of a pipe from a small dam, of say eighteen inches high, on the south side of the Pennsylvania railroad.”
    The defendant erected a large tannery on the land, and after-wards, having obtained the privilege from Miller, he placed. the dam — referred to in Miller’s deed to him — higher up the run, from which he laid to the tannery the water-pipes authorized by the grant, and carried on the business of tanning until 1865. On the 7th of February 1865, Miller conveyed to defendant the land on the east side of the run. On the 2d of June 1865, the defendant — his deed of February not being then recorded — conveyed to the plaintiff the land purchased from Miller in 1860, the deed to plaintiff containing the privilege as granted by Miller. The plaintiff owned land on both sides of the run between the two tanneries, the defendant’s being the lowest on the run, and at a point below his tannery where he owned on both sides he had a dam, from which he constructed a sewer to the Juniata for the purpose of washing away the tan and other refuse matter from his tannery into the river. Defendant afterwards commenced the erection of the tannery, owned by him at the time of the injury alleged, on the eastern side of the run; it was completed in 1869. In April 1870, he put a dam in the run a short distance below the plaintiff’s dam — that before mentioned — and inserted into it a three-inch pipe to convey the water to his (defendant’s) tannery, the result being that no water passing over the plaintiff’s upper dam could pass into the natural current of the stream until after its use by the defendant through his three-inch pipe.
    The plaintiff alleged as his ground of injury, that the defendant by means of this diversion so exhausted the water before it reached the natural stream on plaintiff’s land, that it was insufficient for carrying away the tan, &c., and for other purposes to which he might apply it.
    At the April Term 1873, the case was on the list for trial, when it was continued until next term, under a peremptory order that it should be tried on Tuesday of the second week of that term in August. On the 18th of August, being in the second week of that term, the defendant moved for a view. The court overruled the motion.
    On the 19th of August 1873, the case was tried before Dean, P. J.
    The facts above stated appeared on the trial. The plaintiff was examined as a witness. Amongst other things, it was proposed to show by him “that after the institution of the suit, the defendant removed his pipe up the stream and put it into plaintiff’s dam, and continued to take the water out of the plaintiff’s dam through his pipe to his tannery, until some months ago, when he changed the pipe back again to his own dam, or near it.”
    This was objected to by defendant, admitted by the court, and a bill of exceptions sealed.
    Plaintiff testified that after this suit was brought, defendant took his pipe out of his own dam and put it into plaintiff’s dam, and afterwards took it out of plaintiff’s dam and put into his own dam.
    It was then proposed to ask: “ What was the value of your tannery before the diversion of the water by defendant, and what was its value at the institution of the suit as affected by that diversion?” for the purpose of eliciting from witness the fact that the market value of his realty has been seriously depreciated by the alleged wrongful act of defendant.
    This was objected to by defendant. 1st. Because the answer of defendant would be irrelevant. 2d. Because even if the alleged diversion of water by defendant be wrongful, any depreciation in value of plaintiff’s realty consequent thereupon, necessarily must be of a temporary character, existing only so long as the alleged wrong exists, and, therefore, should not be submitted to the jury.
    The question was admitted and a bill of exceptions sealed.
    Plaintiff testified that he asked $30,000 for his property before the diversion of the water, and that the damage done to the property in market value by the diversion was $6000.
    Under objection and exception, there was other testimony of the same character admitted by the court.
    The court, amongst other things, charged: * * * “But the plaintiff claims further, that in addition to the damage to the use and occupancy during these three months, the defendant by his wrongful act, caused a permanent damage to the freehold; that there was a permanent depreciation in the market value of the property. If the estate or freehold was permanently damaged b}r the defendant’s wrongful act, the plaintiff is entitled to recover such damage, but the damage must have been actual, not imaginary; must have been permanent, not temporary. * * *
    “ Does the evidence show any lasting depreciation of the property, or only a diminished value during the wrongful diversion ? Will the value of the property be restored when the rights of the parties are determined and the wrong ceases ? For mere temporary depreciation, damages for permanent injury should not be allowed. A number of reputable witnesses testify, that in their judgment the market value of the property has been permanently depreciated to the amount of from three to six thousand dollars. You will scrutinize their testimony, and determine, in view of the evidence bearing on the question, if what they call a permanent injury, is in fact so. You are not bound by their opinions, but must, from the evidence, make up your own opinions. When they speak of it as a permanent wrong or injury, were they mistaken ? * * *
    “If you find that plaintiff’s occupation of the premises was interrupted, and he thereby damaged, you will find in your verdict the amount of such damage; and if you find that the value of the property was permanently depreciated by the wrong of the defendant, the plaintiff would, in addition, be entitled to a verdict in that amount; these two items of damage would be the principal of your verdict. On that amount, if you think proper, you can allow interest from the date of the damage, in case you find for the plaintiff, but you are not bound to allow it. * * *

    “If the plaintiff sustained no appreciable damage, he would be entitled to a verdict for nominal damages in vindication of his right. * * * If between the middle of April and 16th of June, the production of his tannery was lessened, then he would be entitled to a verdict for the actual damage sustained by him in the use of his property; and if by the wrong of the defendant, the value of his real estate has been permanently diminished, he would be entitled to a verdict in an amount to the extent of the diminished market value, and the two added together would form the principal of your verdict, on which sum you may compute interest, if, in view of the facts, you think interest should be added. * * *
    “ If between the middle of April and 16th of June the production of his tannery was lessened then he would be entitled to a verdict for the actual damage sustained by him in the use of his property. * * * In assessing the actual damage sustained by plaintiff, if any, the jury should find for him the amount of the loss in his business, caused by the wrongful acts of defendant from the date of the diversion of the water until the commencement of the suit.” * * *
    The court, in answer to points of the parties, charged in substantially the same manner.
    The verdict was for the plaintiff, for $4442.32.
    After argument of a rule for a new trial, the plaintiff remitted all of the verdict in excess of $1160, and the rule was discharged. Judgment having been entered on the verdict for that sum, the defendant removed the record to the Supreme Court by writ of error.
    A non-pros, of this writ of error was entered in the Supreme Court; the record having been returned to the' court below, an execution was issued on the judgment, the defendant’s personal property levied on and the money made.
    The defendant issued another writ of error.
    He assigned for error:
    1. Overruling his motion for a jury of view.
    2-6. Admitting evidence to show the amount of permanent injury to the plaintiff’s property.
    7-14. The instruction of the court in the general charge, and in answer to points of the parties on the subject of permanent injury to plaintiff’s property.
    15. Instructing the jury that they might compute interest on the amount of damage found by them.
    16. Admitting evidence, that after the institution of this suit the defendant removed his pipe, &c.

      W. S. Woods and lí. B. Petriken, for plaintiff in error.
    A view is a matter of right: 2 Tidd’s Practice 730-733 ; 5 Bacon’s Abr. “Jury” 372, and cases cited; Kerr on Actions at Law 275. The damages must be the proximate consequence of the wrong— not remote or possible: Seely v. Alden, 11 P. F. Smith 304; Pittsburg Coal Co. v. Foster, 9 Id. 369; Tillotson v. Smith, 32 N. H. 90; Mason’s Appeal, 20 Id. 26; Smith’s Appeal, 19 Id. 424; Rogers v. Bemus, 19 P. F. Smith 432; McKnight v. Ratcliff, 8 Wright 169; Sedgwick on Damages 71, 72, 73, note 1; Griffith v. Colver, 17 N. Y. 489 ; Olmstead v. Barker, 25 Ill. 86; Shaw v. Wallace, 1 Dutcher (N. J.) 453; Pollitt v. Long, 58 Barb. 20. Interest is not allowable on unliquidated damages or contested claims sounding in damages: Gilpin v. Consequa, 1 Pet. C. C. R. 85; Willing v. Consequa, Id. 179; Sedgwick on Damages 377; Bank v. Fremont Ins. Co., 4 Metc. 1.
    The plaintiff in error moved the court on reversal of the judgment to order a restitution of the money made under the execution. They cited for the motion: Cassel v. Duncan, 2 S. & R. 57; Russell v. Gray, 6 Id. 145; Duncan v. Fitzpatrick, 13 Id. 292; Breading v. Blocher, 5 Casey 349.

      H. M. Spear, for defendant in error.
    A view is not a matter of right: Act of April 14th 1834, sect. 124, Pamph. L. 363; 1 Br. Purd. 837, pi. 76 ; it has to be obtained upon rule: Nesbit v. Kerr, 3 Yeates 194. Jurors of view cannot be peremptorily challenged: Schuylkill Nav. Co. v. Farr, 4 W. & S. 371; Schwenk v. Umsted, 6 S. & R. 351. Deprivation of the use of the water would have reduced the product from the tannery, and therefore would be an injury to the freehold: Ripka v. Sergeant, 7 W. & S. 14. For an encroachment under a claim of right, a reversioner may have his action, although the immediate injury is merely nominal: Schnable v. Koehler, 4 Casey 181; Williams v. Esling, 4 Barr 486; Delaware & Hudson Canal Co. v. Torrey, 9 Casey 143; Graver v. Sholl, 6 Wright 67 ; Pastorius v. Fisher, 1 Rawle 27; Sedgwick on Damages 147-8; Angell on Water-courses, sects. 135, 432; Harder v. Harder, 26 Barb. 409; Brown v. Bowen, 30 N. Y. 519, 38; Sumner v. Tileston, 7 Pick. 201; Starr v. Jackson, 11 Mass. 519; Baker v. Sanderson, 3 Pick. 352. The water-course was a permanent advantage to the inheritance, and the taking it away was an injui’y to the owner: Hart v. Evans, 8 Barr 13.
    The proprietor has a right to the reasonable use of the water running through his land, but cannot, by the mere act of opposition, diminish the quantity of water through his neighbor’s land, to the prejudice of his estate in point of value, although enough was still left to the neighbor for the purposes for which he had actually used the water: Miller v. Miller, 9 Barr 76. If the nuisance be of a permanent nature, and injurious to the inheritance, both the tenant in possession and the reversioner are respectively entitled to recover damages commensurate with the injury: Angell on Water-courses 585; Washburn on Easements 662; Sedgwick on Damages 149-50; Jesser v. Gifford, 4 Burrows 2141; Young v. Spencer, 10 B. & C. 145; Tucker v. Newman, 11 Ad. & Ellis 40; 2 Selwyn’s Nisi Prius 1129; Lienow v. Ritchie, 8 Pick. 235; Seely v. Alden, 11 P. F. Smith 302.
    In actions of tort, the allowance of interest is within the discretion of the jury: Sedgwick on Damages 441; Walrath v. Redfield, 18 N. Y. Rep. 457; St. Michael’s Church v. The County, Brightly’s R. 121; Weikel v. Long, 5 P. F. Smith 238; Perit v. Wallis, 2 Dallas 255. On the 16th error they cited: Duncan v. Lawrence, 12 Harris 154; Railroad Co. v. McElwee, 17 P. F. Smith 311; Railroad Co. v. Henderson, 1 Id. 315.
   Mr. Justice Mercur.

delivered the opinion of the court, October 12th 1875.

All the errors assigned, except the first and sixteenth, may be considered together. They relate to the measure of damages.

Each party owned and operated a tannery supplied with water from the same stream. Bare also, owned other lands situate on the same stream above the tanneries. On those lands he placed a pipe in the stream, thereby withdrawing a portion of the water from its accustomed channel, and conveying it to his tannery. Hoffman, under a previous grant from Bare, drew the water necessary to supply his tannery, through a pipe placed in the stream above the one put in by Bare. The specific complaint was that Bare took, and failed to return, the water that Hoffman had been accustomed to use, and which he required in carrying away the exhausted tan and offal that accumulated on his premises.

About two months after the water was thus diverted by Bare this action was brought to recover damages.

The defendant in error was permitted, under objection, to give evidence of the permanent injury done to the market value of his tannery by this diversion of the water; and the court charged the jury he was entitled to recover the permanent damages thus done to the freehold.

The whole damage of which the defendant in error complained, was caused by Bare’s placing a pipe in the stream on his own land. A severance of the connection of the pipe with the stream, would cause the water to run in its accustomed channel, and remove the whole cause of complaint. It is not the case of an entry on the land of the defendant in error, and a severance of any part of his freehold; nor of depositing a permanent nuisance thereon, as in Seely v. Alden, 11 P. F. Smith 302. Bare neither took anything off from Hoffman’s land, nor deposited anything thereon. The act he committed was not of such a permanent character as to assume it to continue through all coming time, and to justify the assessment of damages accordingly.

The general rule is that successive actions may be brought as as long as the obstruction is maintained. A recovery in the first action establishes the plaintiff’s right. Subsequent actions are to recover damages for a continuance of the • obstruction. Hoffman was both the owner and the occupier of his tannery. Hence the authorities cited, and the argument made, as to the separate remedies of a tenant and reversioner, do not apply. The whole right was in him. For a continued obstruction to the flow of water he could sustain successive actions. In each he could recover the damages he had sustained subsequently to the last preceding action.

We think, therefore, the learned judge erred in permitting evidence to be given of the permanent injury to the market value of the tannery, and in charging that the defendant in error was entitled to recover the permanent damage done to the freehold.

If the defendant in yrror was entitled to recover for damages which he had sustained prior to the commencement of the suit, he was entitled to them as of that date. We therefore see no error in permitting the jury to compute interest thereon down to the time of the verdict as a mode of arriving at a just compensation. The reason of this is fully sustained by Railroad Co. v. Gesner, 8 Harris 240; Penna. Railroad Co. v. Cooper, 8 P. F. Smith 408; and by D. L. and Western Railroad Co. v. Burson, 11 Id. 869.

The application for a jury to go upon and view the premises, was not made until the week on which the cause was set down for trial, and on the very day it was liable to be tried. It was actually tried on the next day. To have granted the application would therefore have delayed the trial of the cause. It wás not made in time. The court therefore committed no error in refusing it on that ground alone.

The sixteenth assignment is to the admission of evidence showing the plaintiff in error had twice, after suit brought, changed the place where his pipe entered the stream. The object of this evidence is not shown by the record. If those acts were wrongful another action would lie for them. On the argument it was contended that they showed knowledge of the plaintiff in error, that his former act in diverting the water, was wrongful. We are unable to see that they lead, or ought to lead, to any such conclusion. They were calculated to confuse and mislead the jury, and ought not to have been admitted. It is true in Railroad Co. v. McElwee, 17 P. F. Smith 311, where the action was for negligence, it was held that an act done after the injury, might be shown to prove knowledge of the previous unsafe condition of the structure; yet the reason on which it was sustained is inapplicable to the present case. The assignment is therefore sustained.

The defendant in error having collected the judgment by execution, the plaintiff is entitled to an order of restitution : Duncan v. Fitzpatrick, 13 S. & R. 292; Breading v. Blocher, 5 Casey 347.

Therefore, judgment reversed, restitution ordered, and a venire facias de novo awarded.


text:
    Heeter et al. versus Glasgow.
    1. The certificate by a magistrate of the acknowledgment of a deed or mortgage is a judicial act, and in the absence of fraud or duress is conclusive.
    2. A. purchaser bonS, fide and without notice of fraud is protected against it; as to all others, parol evidence is admissible to show fraud or duress connected with the acknowledgment.
    3. The certificate of the acknowledgment by a wife of a mortgage of her own property was in due form; at the time of the acknowledgment, she told the justice she had read the mortgage, but he did not make known its contents to her. This appeared by the testimony of the wife and the justice. The court below decided that this was conclusive against the validity of the mortgage. Held to be error; the whole was for the jury.
    May 21st 1875.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Huntingdon county: Of May Term 1875, No. 60.
    This was a scire facias sur mortgage, issued May 16th 1874, by Adam Heeter, A. L. Guss and J. F. Thompson, against Samuel L. Glasgow and Harriet N. Glasgow, his wife. The defendants pleaded payment, and Mrs. Glasgow pleaded beside, non est factum and coverture; she further pleaded, that she did not acknowledge said mortgage as required by the second section of the Act of February 28th 1770, and its supplements.
    The land covered by the mortgage was the property of Mrs. Glasgow ; it was dated and acknowledged June 4th 1872; was made by the defendants to the plaintiffs, and was to secure the payment of several notes of the husband to different persons, amounting in all to the sum of $3500, for which the plaintiffs were his sureties. The acknowledgment was taken by P. H. Bence, a justice of the peace, and the certificate was in the usual form; the part relating to the wife was as follows :—
    “ The said Harriet N., being of full age, and by me examined separate and apart from her said husband, and the contents of the foregoing indenture of mortgage being first made fully known to her, declared that she did voluntarily and of her own free will and accord seal, and as her act and deed, deliver the same without any coercion or compulsion of her said husband.”
    The case was tried November 17th 1874, before Dean, P. J.
    The plaintiffs gave the mortgage in evidence, and proved that they had paid the notes recited in it.
    The defendants gave evidence by Mrs. Glasgow, that prior to the execution of the mortgage Heeter informed her, in the presence of her husband, that he had been endorsing for her husband, and wished her to sign a paper securing him; she expressed an unwillingness to do so, and he told her it would never injure her in any way, &c.; she then consented. Some days afterwards her husband requested her to go before the justice and have the paper executed; they went; at the justice’s the husband produced the paper and both signed it. When the justice was about signing the certificate of acknowledgment, he said he had not read the paper, and did not know what it was, but supposed she did; she replied that she did — she had read it; the husband was present all the time; she was not asked whether she executed the paper voluntarily — that if she had been so asked she would have said “No.” The mortgage given in evidence was the paper, but at the time she read it it had no enumeration of notes in it; she did not know that' there was a mortgage on her property for a year afterwards ; she was not induced to sign by any threats or compulsion of her husband.
    The husband testified substantially as his wife had done, as to the occurrences at the justice’s office; also, that the clause about the notes was put in after she had executed it; that Heeter, plaintiff, had made the suggestion that he should do so.
    The plaintiffs, in rebuttal, gave evidence by P. H. Bence, the justice, that the husband executed the mortgage and left the room. He then asked Mrs. Glasgow if she knew the contents of the paper ; said it was his duty to make them known to her if she did not understand them. She said she was acquainted with them, and signed the paper; he asked her, if she did it of her own free will and accord, and wdthout any coercion on the part of her husband; she said that she did; the justice was a subscribing witness ; no persons but the parties and the subscribing witnesses were present at the justice’s; Laura Hampson, the other subscribing witness, testified substantially as the justice had done ; Heeter testified, contradicting Glasgow as to his suggesting that the mortgage'sbould be filled in by the insertion of the notes after it’s execution by Mrs. Glasgow.
    There was evidence by the defendants for the purpose of showing that Mrs. Glasgow had been deceived by Heeter and her husband into the execution of the mortgage; and evidence by the plaintiffs in contradiction of this.
    After referring to the testimony of Mrs. Glasgow and the justice, the court charged :—
    “ There is also some evidence of Mr. Glasgow and Laura Hampson on the same subject, but it does not differ materially from the ’evidence of these two witnesses, Mrs. Glasgow and Esquire Bence; and it does not seem from this evidence that the justice either read or otherwise made known to Mrs. Glasgow the contents of this instrument ; or, in other words, it seems clear from this evidence that he did not. He asked her whether she knew the contents, and she answered that she did; he having stated to her also at the time that it was his duty to make known the contents, and, substantially, this was all that occurred; she answered that she did, that she had read it; but that is the extent to which he made an effort to make known the contents to her. Was it sufficient ? Was it a substantial performance on his part of his duty as an officer, under such circumstances in view of the nature of the duty he was performing ?
    “ The object of the Act of Assembly plainly is- to place as a barrier for the protection of the married woman, between her and her husband, when he seeks against her will to alien or encumber her estate, the justice of the peace or judge who takes the acknowledgment. Eor this purpose the act prescribes a certain form of acknowledgment, and enjoins upon the officer that he shall certify certain duties plainly and imperatively. If the form be observed by the officer, she must have knowledge of the effect of her act to some extent, if she has the capacity to execute an instrument of this kind. If she has the intelligence which makes her competent to execute the instrument, she must, if the act be followed out, as it plainly indicates and enjoins, have knowledge.

      “ Again, there must have been no compulsion on the part of her husband, and she must so declare to the officer; and that she be not coerced by his presence to make a false declaration of her voluntary action, her examination must be separate from her husband.
    “It is sufficient, as has been argued, and authorities cited to the point, if there be a substantial compliance with the form prescribed in the Act of Assembly. This brings us to the question, and it is a question for the court: What is a substantial compliance ? It is urged by the plaintiffs’ counsel that the evidence here shows that she knew the contents, and that when she so, said to the justice that was sufficient, and a substantial compliance on his part when he certified the acknowledgment.
    “ Leaving out of view the dispute here on the evidence, the plaintiffs alleging that she knew the contents, and the defendants that she did not know, or had been deceived by her husband, one thing seems-undisputed, and that is that the justice assumed from her answers that she had knowledge, and considered himself relieved from the duty of reading it to her, or otherwise making the contents known to her. In so doing he failed to perform an essential act under such circumstances imposed upon him by law, one which the law considers necessary for her protection. If the mode followed in this case had been considered sufficient, the legislature could easily have said, when enacting this form: ‘ or said justice shall otherwise satisfy himself that the said wife otherwise had knowledge of the contents.’ But the act does not so read. It specifies that he shall read or otherwise make known the contents to her.
    “ Whatever may be the ruling in the case of innocent purchasers, in this ease we say that the plaintiffs in this issue, being the mortgagees, the parties to a defectively executed instrument, they are affected by its irregularities, or a substantial want of conformance to the statute.
    “ The uncontradicted evidence shows that the justice in this case neither read nor made known the contents to her, and you must so find. This was a substantial failure‘to conform to the requirements of the act, and your verdict therefore as to Harriet N. Glasgow must be for her, and as to Samuel L. Glasgow, as he does not defend, your verdict must be for the plaintiffs, for the amount named in the mortgage, with interest.” * * *
    The verdict was for the plaintiffs against S. L. Glasgow for $3914.82, and for Mrs. Glasgow, the other defendant.
    The plaintiffs took a writ of error, and, amongst others, assigned for error the charge of the court.

      R. M. Speer and R. B. JPetriken (with whom was W. IT. Woods), for plaintiffs in error.
    The evidence as to the acknowledgment of the mortgage should have been submitted to the jury: McCandless v. Engle, 1 P. F. Smith 312. The acknowledgment was in legal form: Act 11th of April 1856, sect. 1, Pamph. L. 315, 1 Br. Purdon 475, pl. 90; Miner v. Graham, 12 Harris 491; Haffey v. Carey, 23 P. F. Smith 431; Shinn v. Holmes, 1 Casey 142. In taking an acknowledgment, a justice acts judicially, and his certificate that the required forms have been observed, in the absence of fraud or collusion, is entitled to full faith and credit: Jamison v. Jamison, 3 Wharton 469; Loudon v. Blythe, 4 Harris 541; Watson v. Bailey, 1 Binn. 470 ; Graham v. Anderson, 42 Ill. 514; Hill v. Bacon, 43 Id. 477. Knowledge of the fraud or duress ought to be brought home to the grantee, or at least knowledge of such circumstances as would put him on inquiry: Michener and Wife v. Cavender, 2 Wright 337; McCandless v. Engle, 1 P. F. Smith 313; Hall v. Patterson, Id. 289. If it appears from the whole certificate that the contents of the deed were known to the wife, it is as effectual as if the magistrate, had certified that he read or otherwise made'them known to her. If she knew, it is not material that the justice communicated the knowledge: McIntire v. Ward, 5 Binn. 296; Shaller v. Brand, 6 Id. 435, 438; Jamison v. Jamison, 3 Wharton 469; Barnet v. Barnet, 15 S. & R. 73; Battin v. Bigelow, Peters C. C. 453; Jones v. Maffet, 5 S. & R. 534; Talbot v. Simpson, Peters C. C. 188.

      J. Scott whom were S. J. Brown and J. M. Bailey), for defendant in error,
    eited Keen v. Coleman, 3 Wright 299; Glidden v. Strupler, 2 P. F. Smith 400; Moore v. Cornell, 18 Id. 320.
   Mr. Justice Paxson

delivered the opinion of the court, May 31st 1875.

The parol evidence offered to impeach the magistrate’s certificate appears to have been received without objection. The learned judge of the court below, however, fell into error when he assumed that it was conclusive, and withdrew the question of fact from the jury. Opposed to the parol evidence was the official certificate of the magistrate, showing upon its face that Mrs. Glasgow had executed and acknowledged the mortgage in the manner required by law. No matter what the magistrate may have sworn to upon the trial, the plaintiffs were entitled to have his official act go to the jury-

The certificate of a justice of the peace of the acknowledgment of a deed or mortgage is a judicial act. It is conclusive of the facts certified to in the absence of fraud or duress. This is the current of all the authorities in this state: Jamison v. Jamison, 3 Wharton 457 ; Hall v. Patterson, 1 P. F. Smith 289; McCandless v. Engle, Id. 309. In the case first cited, it was held that parol evidence of what passed at the time of the acknowledgment was not admissible for the purpose of contradicting the certificate, except in cases of fraud and imposition. In a number of cases parol evidence has been freely admitted to overthrow the certificate, as in Michener v. Cavender, 2 Wright 337; Louden v. Blythe, 4 Harris 541; and Schrader v. Decker, 9 Barr 14. But in all these cases gross fraud and imposition had been practised, affecting the acknowledgment itself. There is another class of cases in which parol evidence has been admitted to show facts de hors the certificate, as in Keen v. Coleman, 3 Wright 299, where a married woman fraudulently represented that she was a widow. The true rule deducible from the authorities is, that the certificate of the justice of the acknowledgment of a deed or mortgage is a judicial act, and in the absence of fraud or duress, conclusive as to the facts therein stated. A purchaser, bond, fide, and without notice of the fraud, is protected against it; but as to all other persons parol evidence has been admitted to show fraud or duress connected with the acknowledgment.

There was not a particle of evidence in this case to indicate either fraud or duress in anything that occurred at the magistrate’s office. That officer appears to have acted in entire good faith. If there was any fraud it was de hors the certificate, and the evidence leaves us in doubt as to whose door it should be laid.

Judgment reversed, and a venire facias de novo awarded.