author: Mr. Justice Paxson

text:
    County of Crawford versus Nash.
    1. Article XIY., §5, of the Constitution, providingthat “ the compensation of county officers shall be regulated by law,” plainly means that such compensation shall be ascertained and defined by act of the Legislature.
    2. The Legislature having failed to enforce said provision of the Constitution by appropriate legislation, in so far as the regulation of the compensation of the treasurers of counties containing less than 150,000 inhabitants is concerned, the provisions of the Act of April 15th 1834, § 41, Pamph. L. 544, authorizing the county commissioners, with the consent of the county auditors, to fix, from time to time, the rate of compensation of said treasurers, are still in force in such counties.
    3. The provisions of Article III., § 13, of the Constitution, that “ no law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment,” apply only to laws passed by the General Assembly. Orders or agreements of county commissioners and county auditors are not within the prohibition of said section.
    4. County commissioners and county auditors, acting under the provisions of the act of April loth 1834, § 41, Pamph. L. 544, may, by resolution, may diminish the compensation of a county treasurer after his election or appointment to office.

      November 24th 1881.
    Before Sharswood, C. J., Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Mersur, J., absent.
    Error to the Court of Common Pleas of Orawford county : Of October and November Term 1881, No. 272.
    This was originally an appeal by "William Nash, treasurer of Crawford county, under the provisions of the Act of April 16th 1875, § 1, Pamph. L. 54, from the report of the auditors of. said county fixing the amount of appellant’s commissions as treasurer for the year ending January 1st 1882.
    The court directed an issue to be framed, wherein William Nash was plaintiff and the county of Crawford defendant, to determine the amount of said commissions due to the plaintiff.
    On the trial of this issue, before Church, P. J., the jury found a special verdict, setting forth the following facts : James G. Foster was county treasurer in an'd for the county of Orawford, for the three years prior to and ending on January 6th 1879, and the compensation of the county treasurer for and during his term of office was fixed by the county commissioners and the county auditors at two and one-fourth per cent, on all moneys received and paid out by him, and he received the same.
    The plaintiff, Wm. Nash, was elected county treasurer for the conuty of Crawford on November 5th 1878, and having duly qualified entered upon the duties of his office January 6th 1879.
    The county commissioners -and county auditors elected at the same time, viz., November 5th 1878, also duly qualified and entered upon their duties on January 6th 1879. At a meeting of said commissioners and auditors, held February 11th 1879, it was resolved that the compensation of William Nash, the plaintiff, as county treasurer, be .fixed at one and one-fourth per cent, on all moneys received, and to be received, and paid out by him during that year. During said year the plaintiff received and paid out altogether the sum of $Í23,543.55, upon which amount he was entitled to commissions, and per centage. The county auditors, in their report for 1879, allowed the plaintiff credit for commissions to the amount of $1,602, being at the rate of one and a fourth per cent, on the total amount received and paid by him in that year. If the court should be of opinion that plaintiff was entitled to commissions at that rate only, then judgment was to be entered for defendant. If, on the contrary, they should be of opinion that plaintiff was entitled to commissions at the rate of two and a quarter per cent., then judgment was to be entered for him in the sum of $1,235.46.
    The court subsequently entered judgment for the plaintiff on the special verdict, filing the following opinion :
    “ The forty-first section of the Act of Assembly of the 15th of April 1834, Pardon Dig. 308, enacts that, ‘Each county treasurer shall receive in full compensation for his services on behalf of the county a certain amount per cent, on all moneys received and paid .by him, which rate shall be settled from time to time by the county commissioners, with the approbation of the county auditors.’
    “ Pursuant to this law, the county commissioners of this county, with the approbation of the county auditors, settled the compensation of the county treasurer at the rate of two and one-quarter per cent., and such was the rate received by the incumbent of that office for the three years prior to and ending upon the 6th day of January 1879. This was, therefore, the law of the county of Crawford relative to the compensation of its county treasurer as it existed on the 5th day of November 1878.
    “On this last-named day, William Nash, this plaintiff, was duly elected county treasurer of Crawford county, and on the 6th day of January 1879, duly qualified and entered upon the duties of his office.
    “ On the 11th day of February 1879, the commissioners, with the approbation of the auditors, fixed the compensation of the' treasurer then in office, this plaintiff, at one and one-fourth per cent, on the county moneys to be received and paid out by him during the then ensuing year.
    “ The special verdict found in this case does not use the exact language of the Act of Assembly above quoted, but its legal intendment is in substantial eonsonancy with that Act.
    “ The question raised by the special verdict is whether the fixing of the treasurer’s compensation by the commissioners and auditors on the 11th February 1879, is binding upon and applicable to the county treasurer, who had already been duly elected and had already duly entered upon the duties of his office. In other words, whether this plaintiff is entitled to the compensation fixed and in existence at the time of his election and the devolution of his office upon him, or only entitled to a lesser compensation fixed afterwards.
    “ The 13th section of the 3d article of the Constitution of 1873, is as follows: ‘No law shall extend the term of any public officer, or increase or diminish his salary or emoluments after his election or appointment.’
    “ If the action of the commissioners of the 11th of February 1879, was a law, and such lawr diminished the salary or emoluments of this plaintiff as county treasurer after his election, it is of no validity as to him, because it infringes upon his constitutional rights. It is not a question of the invalidity of the law, but it is rather one of the inapplicability of the law to the special case, or to the particular person. Municipal law, or statute law, is a rule of conduct prescribed by th,e supreme power in the state. Por tlie county, as a municipal division of the state, the commissioners are entrusted with the prescribing, or the ordering, or the directing of a rule or order for the conduct of an officer of such municipality, to wit, the treasurer’s title to and right to receive a certain sum of money as compensation or emolument, which pertains to, is connected with, and grows out of his office, and is indeed an indissoluble part of that office.

      “ The commissioners are the law-making power q\ioad the office of treasurer, or at least the usufruct thereof.
    “ On and before the 5th of November 1878, this usufruct, or compensation, or emoluments of the office of the treasurer of the county, was fixed and settled at two and one-quarter per centum of the public or county moneys, which came into and went out of the treasurer’s hands.
    “ On the last-named day this plaintiff was elected county treasurer, and on the 6th of January 1879, he entered upon the functions of his office. Afterwards, to wit, on the 11th of February 1879, the law was enacted that the condensation or emoluments of his office was fixed and settled -at one and one-quarter per cent, of the public or county moneys, which were to come in and go out of his hands.

      “ This is certainly a diminishing of the emoluments of the county treasurer, and it was certainly a diminishing thereof after liis election.

      “ If we give any force at all to the constitutional enactment, it would certainly seem that this proscription by the commissioners of the rule, by which the conduct of the treasurer was to be guaged, was, so far as this present treasurer was concerned, of no force or validity, and hence he does not come under its provisions or within its meaning.
    “I do not discuss any question as to the county treasurer being a public officer, nor as to the term, salary, or emoluments (the latter especially), including the percentage or compensation fixed and annexed to the office. This matter is too plain for argument. The treasurer is assuredly a public officer, and his percentage of compensation is assuredly an emolument of his office.
    “ The section of the constitution under consideration is a new one, and it is by no means the least valuable or commendable of the novel provisions of that instrument.
    “A citizen derives his title to an office from the sovereign people, and in so receiving it he is, and should be, invested with every right and privilege appertaining to it at the time the office is so conferred, and these rights and privileges should be interfered with by no earthly power. If, after the people have invested a citizen with an office, having attached to it a certain salary or compensation, some law-making power can take away tliat salary or compensation, the right of investiture by the people is practically destroyed. Or if, on the other hand, some law-making power can increase that compensation, it gives every opportunity for an influential, selfish and intriguing office-holder to obtain that which the people have not given him; and, in either case, is the will of the people frustrated and defeated.
    “ The people who elect, and the person wrho is elected, have a right to know the exact measure of power and substance they are giving and receiving; and this can be effected in no other or better way than in construing this provision of the constitution in a simple and natural manner. Much more might be said upon the wisdom and expediency of this constitutional provision, and of its aptitude to the case in hand, but it is unnecessary, as, I think, the plaintiff’s office is clearly protected from the interference sought to be enforced against it.
    “ It follows, therefore, that the action of the commissioners and auditors, on February 11th 1879, however effectively it may act upon future treasurers, cannot affect this plaintiff in the emoluments of his office as they existed when he was elected, and hence, under the terms of the special verdict, as amended by the com-t (pro ut the same), judgment must be entered for the plaintiff in the sum of $1,235.46, together with costs of suit.”
    Defendant thereupon took this writ of error, assigning for error the entry of judgment for defendant on the special verdict.

      Thomas Toddy, for the plaintiff in error. —
    By the provisions of the Act of April 15th 1884, § 41, Pamph. L. 544, each “ county treasurer is to receive, in full compensation for his services, on behalf of the county, a certain amount per cent, on all moneys received and paid by him, which rate shall be settled from time to time by the county commissioners, with the approbation of the county auditors.”
    The foregoing was the law in force in this Commonwealth at the time of the election of plaintiff.
    Article XIV., § 5, of the Constitution, providing that the compensation of county officers shall .be regulated by law, does not in the least affect the operation of this Act. Said Act is the law now in force regulating the compensation of county treasurers. The commissioners and auditors, therefore, had power to fix plaintiff’s compensation at what rate they pleased.
    The fixing of this rate was not a diminishing of plaintiff’s emolument during his term of office within the prohibition of article III., § 13, of the Constitution. It is the duty of the commissioners and auditors to fix the rate for each incumbent in office. Until it is so fixed it has no existence. The plaintiff never had any right to compensation at the rate awarded to his predecessor in office.
    Moreover, the act of county officers, fixing the compensation of a county treasurer, is not a “ law ” within the meaning of said section of the Constitution: Baldwin v. City of Philadelphia, 10 W. N. C. 558 ; ante, p. 164; Rucker v. Supervisors, 7 W. Virginia 661; Purcell v. Parks, 82 111. 346.

      W. B. Bole, for the defendant in error. —
    The rate established as the compensation of the plaintiff’s predecessor in office continued to be the legal rate demandable by plaintiff. By virtue of article III., § 13, it was made impossible to reduce said rate after plaintiff had once entered upon his term of office. Plaintiff was undoubtedly a public officer within the meaning of the above section : Riddle v. County of Bedford, 7 S. & R. 391; Commonwealth v. Bacon, 6 S. & R. 322; JDixey v. City, 38 Leg. Int. 157; reversed, 10 W. N. C. 558; ante, p. 164.
   Mr. Justice Paxson

delivered the opinion of the court, January 3d 1882.

At the time the present Constitution was adopted the only provision for the compensation of county treasurers was contained in section 41 of the act of April 15th 1834, P. L. 544, as follows: 1 Each county treasurer shall receive, in full compensation for his services on behalf of the county, a certain amount per cent, on all moneys received and paid by him, which rate shall be settled from time to time by the county commissioners, with the approbation of the county auditors.” Since the passage of said act the compensation of the respective county treasurers has been fixed by the county commissioners and county auditors, as provided therein, except in counties having a population of over 150,000 inhabitants, as hereinafter stated.

The plaintiff below was elected treasurer of Crawford county at the November election 1878, and entered upon the duties of his office on January 6th 1879. The compensation of the outgoing treasurer, as fixed under the Act of 1834, was two and one-fourth per cent, upon all moneys received and paid out. Upon February 11th 1879 the commissioners and auditors of Crawford county met, and unanimously agreed that the compensation of plaintiff, as county treasurer, should be fixed at one and one-fourth per cent. The plaintiff contends that this action violates section 13 of article III. of the Constitution, which declares that “ No law shall extend the term of any public officer, or increase or diminish his salary or emoluments after his election or appointment.”

The act of 1834 has never been repealed. It may be assmned the convention regarded it with disfavor, from the fact, that section 5 of article XIV. of the Constitution provides, that “ The compensation of county officers shall be regulated -by law, and all county officers who are, or may be, salaried shall pay all fees which they may be authorized to receive into the treasury of the comity or state, as may be directed by law. In counties containing over 150,000 inhabitants, all county officers shall be paid by salary, and the salary of such officer and his clerks, heretofore paid by fees, shall not exceed the aggregate amount of fees earned during his term and collected by or for him.” The Act of March 31st 1876, P. L. 13, was passed, as its title imports, to carry into effect this section of the Constitution. It refers, however, only to counties having a population in excess of 150,000. As to them, specific salaries are fixed by said act for all county officers, including the treasurer. Then we have the act of June 12th 1878, P. L. 187, which ascertains and appoints the fees “ to be received by the sheriffs, coroners, prothonotaries, clerks of the several courts, registers of wills and recorders of deeds of this Commonwealth, except in counties containing more than 150,000 inhabitants or less than 10,000 inhabitants.” No provision is here made for county treasurers, nor is any reference made to their compensation in subsequent legislation, save the Act of April 30th 1879, P. L. 34, which allows them a fee of twenty-five cents for a certified copy of receipt for the payment of taxes on unseated lands, and section 6 of the Act of Juno 6tli 1879, P. L. 102, which allows county treasurers a commission of one per centum on the military fund received and paid out by them.

It will thus be seen that the General Assembly has neglected to enforce, by appropriate legislation, that portion of section 5 of article XIV., which declares that “ The compensation of county officers shall be regulated by law,” so far as the county treasurers are concerned, except in the few counties whose population exceeds 150,000. We have no doubt this omission was unintentional. What concerns us now is its effect upon the Act of 1884.

It may be conceded that, since the adoption of the Constitution, the General Assembly could not lawfully pass such an act as that of 1834, for the reason, that the section of that instrument referred to imposes upon that body the duty of regulating the compensation of county treasurers. It is too plain for argument that a duty thus imposed cannot be delegated to the county commissioners and county auditors. “ The compensation of county officers shall be regulated by law ” is the imperative command of the Constitution. This plainly means that it shall be ascertained and defined by the legislature. No such language is to be found in the Constitution of 1838. It does not follow from this, however, that the act of 1834 fell with the adoption of the Constitution. It has been repeatedly held, that the Constitution is not self-executing, except wherein it so expressly provides. This subject is discussed, and the authorities collected, in The County of Allegheny v. Gibson, 9 Norris 397. It was accordingly held, in Perot’s Appeal, 5 Norris 335, that section 18 of the above-recited act of March 31st 1876, relative to the salaries of county officers, which postpones the operation of the act until the expiration of the terms of the incumbents, was constitutional.

Under all the authorities the Act of 1834 must be regarded as still in force. If not preserved by section 2 of the schedule, it is apparent that since the adoption of the Constitution there has been no provision in counties containing less than 150,000 inhabitants for compensation of county treasurers, and all allowances to such officers have been without law.

It was urged, however, that conceding all this to be true, the compensation to county treasurers cannot be increased or diminished during the term for which they are elected, by reason of the 13th section of article III. In Baldwin v. City of Philadelphia, decided at the last term at Pittsburgh (ante, p. 164), it was held, that the word law ” in this section of the constitution did not extend to the ordinances of a municipal corporation; that it included only such laws as emanated from the supreme power, which in this Commonwealth is lodged in the General Assembly. In Rucker v. Supervisors, 7 W. Va. 661, which arose under section 9 of article III. of ’ the Constitution of West Virginia, which provides, that the compensation of public officers shall not be increased or diminished during their term of office, it was held, that this language in the Constitution applies only to such salaries or compensation, of public officers as have been definitely fixed or prescribed by law; either by the Constitution of the state or by some statute made in pursuance thereof. If the ordinances of a city are not laws within the meaning of this clause in the Constitution, much less so are the orders or agreements of the couhty commissioners and county auditors in regard to the treasurer’s salary. The obvious meaning of the Constitution is, that the General Assembly should regulate — that is, ascertain and establish — the compensation which should be paid to the respective county treasurers, and that thereafter “ no law ” — that is, no Act of Assembly, should increase or diminish their respective salaries during the term for which they were elected. The whole difficulty in the case in hand grows out of the omission of the legislature to perform this duty. We have no doubt it will be promptly attended to, now that attention has been called to it. In the meantime the Act of 1834 remains in force, and the salaries of county treasurers not otherwise provided for by law, will have to be ascertained as heretofore.

The judgment is reversed, and judgment is now entered in favor of the defendant below upon the special verdict.


source: Caselaw Access Project

author: Mr. Justice Steebett

license: Public Domain

text:
    Freeman and wife versus Apple et al.
    1. The fact that a levy has been made by his predecessor in office constitutes no justification or excuse to a sheriff for enforcing such levy by advertising and selling a wife’s property on an execution against her husband. Particularly is this the case, where the sheriff has received written notice of the wife’s title.
    2. Wherever a sheriff, disregarding a notice of title given to him, proceeds to advertise and sell the goods of a stranger to the execution, he so far invades the rights of the owner of such goods as to render himself liable to an action of trespass, and this, whether or not there has been a manual seizure or removal of the property by him.
    3. Where a sheriff, disregarding a notice of title given to him, proceeds to advertise and sell the goods of a stranger to the execution, his return to the writ, that he has effected such sale, is conclusive upon him, and neither manual taking, occupation or removal is necessary to render him liable in trespass to the owner of the goods.

      4. A sheriff levied upon and sold tho goods of a wife, under an execution directed against her husband. In trespass against him by said wife, Held, that the fact that the articles were not removed by the purchaser, but were leased by hinr to the plaintiff’s husband, constituted no defence.
    November 21th 1881.
    Before Siiarswood, O. J., Gordon, Parson, Trun key, Sterbett and Green, JJ'. Meeour, J., absent.
    Error to tho Court of Common Pleas of Orawford county: Of October and November Term 1881, No. 158.
    Trespass, by J. J. Freeman and Pamelia Freeman, liis wife, in right of said, wife, against Andrew G. Apple, sheriff, and L. II. Long, deputy sheriff, for taking into execution and selling certain household goods, the property of said Pamelia, under a writ of li. fa, issued upon a judgment obtained against said J. J. Freeman, her husband.
    On the trial, before Church, P. J., the following facts appeared: — In November 1878 F. W. Mitchell & Co. obtained a judgment against J. J. Freeman. A writ of fi. fa. was issued on said judgment, directed to one George P. Ryan, then sheriff of Crawford county. Ryan levied upon certain household property, which the evidence showed to be the property of Mrs. Freeman, having been given to her by her parents shortly after her marriage to Freeman in 1870. On January 6th 1879 Ryan’s term of office as sheriff terminated. He was succeeded by defendant Apple. Apple deputed defendant Long to execute the writ of fi. fa. Long caused the property levied upon to be duly advertised as the property of Freeman, and on January 16th 1879 the same was exposed to sale. Mrs. Freeman gave notice at the sale in writing, and verbally, that the property belonged to her. It was nevertheleless purchased by one S. Slocum, and the writ of fi. fa. was so returned by defendants. The property was not removed by Slocum after the sale, but was leased by him to J. J. Freeman, plaintiff’s husband, at $10 a year, and so remained leased up to the time of bringing the present suit.
    The plaintiffs requested the court to charge the jury, inter alia, “ That if they find the property in question belonged to Mrs. Freeman at the time of the sheriff’s sale, and that the sheriff sold the same to S. Slocum at said sale, and that said Slocum purchased said property on his own account and now owns the same, the sheriff is liable in trespass for the property sold by him.” Refused.
    “ That if the jury find that the purchaser at sheriff’s sale leased tlie property to the defendant in the execution and left the goods on the premises, this will not defeat the right of the plaintiffs to recover in this suit.” Refused.
    The court charged, inter alia, as follows: — “ The right to the occupancy and enjoyment of this property has not been interferred with by the sheriff, and was not so interfered with at the time of bringing this suit, and your verdict will be for the defendants.”
    Yerdiet and judgment for the defendants. Plaintiffs thereupon took this writ of error, assigning for error, inter alia, the answers to plaintiffs’ points and the portion of the charge above cited.

      W. B. Bole (with whom were Borronee ds Hallock), for the plaintiffs in error. —
    Trespass against a sheriff is maintained by proof that he unlawfully exercised an authority over the chattels against the will, and to the exclusion of the owner, though there were no manual taking or removal when he took them under process of law and by virtue of his office : Paxton v. Steckel, 2 Barr 93 ; Miller v. Baker, 1 Metcalf 27; Gibbs v. Chase, 10 Mass. 128.
    The return by the sheriff, that he has sold the property, is conclusive upon him, and manual touching, occupation or removal is not essential to render him liable : Paxton v. Steckel, 2 Barr 93.

      IT. L. Richmond, Jr. and John J. Henderson, for tlie defendants in error. —
    Tlie seizure of the property in question in this case was made by Gfeo. P. Ryan, who was sheriff at that time.
    If any trespass was committed it was when Sheriff Ryan made the levy. The property was not actually taken by him, and no “forthcoming” bond was required.
    A sale not having taken place before the expiration of his term of office, Sheriff Ryan delivered the writ to Andrew Gr. Apple, his successor. The property was not levied upon by Sheriff Apple nor taken into his custody.
    It was not delivered to the purchasers by the defendants, but remained after the sale, as it was before, in the possession and control of the plaintiff.
    There is no evidence that the plaintiff was in any way interfered with, in, or excluded from, the possession of her property by the defendants.
    The sale gave the purchaser no title; he never got the property. The plaintiff, therefore, has suffered no damage.
   Mr. Justice Steebett

delivered the opinion of the court, January 2d 1882.

In taking the case from the jury, and directing a verdict for the defendants, the court below virtually ruled that the sheriff was not liable in trespass for advertising and selling the separate personal property of the beneficial plaintiff on an execution against her husband, after being duly notified, in writing, of her title thereto. It is contended there was error in this.

The uneontradicted testimony is, that the property which was the subject of the alleged trespass, was given to Mrs. Freeman by her parents, shortly after her marriage in 1870, and continued to be her separate property until it was advertised and sold by the defendant, Sheriff Apple, on the execution against her husband, in disregard of the notice that it was owned and claimed by her as a parental gift. If the case had been submitted to the jury it would have been impossible for them to have found otherwise, without disregarding the evidence. So cleai'ly and conclusively were these facts proved that the learned judge, in his charge, assumed Mrs. Freeman’s ownership of the property in question as an established fact; but, notwithstanding all this, he refused to affirm plaintiff’s first point and thereby instruct the jury that the sheriff was liable in trespass, if they believed the property belonged to her at the time of the sale, and was purchased by Mr. Slocum, on his own account, and is still owned by him. On the contrary, he withdrew the case from the jury by charging that “ the right to the occupancy and enjoyment of the property has not been interfered with by the sheriff, nor was it so interfered with at the time of bringing this suit, and your verdict will be for the defendants.” In this, we think, there was error. If the allegations of fact embodied in plaintiff’s points had been found in their favor they would clearly have been entitled to a verdict; and, for present purposes, it must be assumed they would have been so found. As has already been suggested, there was no testimony on which a contrary finding, as to the main facts, could have been based. The fact that the levy was made by his predecessor in office furnished no justification or excuse to the sheriff for enforcing the levy by advertising and selling the wife’s property on the execution against her husband, especially after having received written notice of her title; nor was the trespass in anywise condoned by the arrangement made with the purchaser, by which he permitted the property to remain in the possession of the plaintiffs in consideration of a certain rental for the use thereof. While it is true the maxim, caveat emptor, was applicable to the purchaser, and he took such title only as the defendant in the execution had in the property, it may have been both prudent and economical to recognize his title and make an amicable arrangement as to the retention and use of the property, rather than 'embark in a controversy that might have involved both inconvenience and expense. But, it is claimed that, inasmuch as there was no manual seizure or removal of the property by the sheriff, no trespass was committed. We cannot regard this position as tenable. There was, at least, a constructive seizure and delivery to the purchaser. By disregarding the notice of title that was given, and proceeding to advertise and sell the goods of a stranger to the execution, he unlawfully exercised an authority over them against the will of the owner, and so far invaded her right of property as to subject himself to an action of trespass: Paxton v. Steckel, 2 Barr 93, and cases there cited. In that case the court say, “ It is not necessary, to constitute trespass by an officer who executes a writ of attachment on chattels, to prove any manual handling of the property, or taking them into possession. The levying of the attachment may be done without these acts and the property be fully bound by it.....Trespass de bonis asportatis against a sheriff is maintained by proof that he unlawfully exercised an authority over the chattels, against the will and to the exclusion of the owner, though there was no manual taking or removal when he took them under process of law and by virtue of his office.” In the case before us, the sheriff returned that after having given due and legal notice he did, on the 16th day of January 1819, sdll the property, etc. According to the authorities, the return is conclusive upon him, and neither manual taking, occupation or removal was essential to render him liable to the beneficial plaintiff. The first and fourth assignments of error are therefore sustained.

It follows also from what has been said that the plaintiffs’ second point should have been affirmed. The wife’s right of action against the sheriff for illegally advertising and selling her property could not be defeated by the act of her husband in recognizing the right of the purchaser at sheriff’s sale and agreeing to pay him a stipulated sum for the use of the property. It would be a novel doctrine indeed to hold that her right of action against the sheriff could bo preserved only. by permitting the pui'ehaser to remove the property, and thus deprive her of household furniture, beds, bedding and other articles necessary to the comfort of herself and family. No such unreasonable technicality as that can be invoiced for the protection of a wrongdoer.

Judgment reversed and a venire facias de novo awarded.


author: Chief Justice Sharswood

text:
    Montague versus McDowell.
    1. Where judgment is entered upon a judgment note, including usurious interest, and some time afterwards a new judgment note is given in settlement of the former judgment, which is thereupon marked satisfied, the defendant cannot, upon the judgment on the new note being opened, set up as a defence pro tanto the usurious interest included in the former judgment.
    2. Semble, that if the satisfying of the old and the giving of the new judgment had been simultaneous or nearly so, the court might have considered it a mere device fraudulently to conclude the debtor, and might on that ground have struck off the satisfaction and opened both judgments.
    3. Since the passage of the Act of May 28th 1858, Pamph. L. 622, the taking of usury is not unlawful in this Commonwealth. The creditor may lawfully charge and receive excess of interest, though he cannot coerce its payment by suit or process, and the debtor may recover it back if the action is brought within six months after payment.
    November 24tli 1881.
    Before Sjiarswood, C. J., Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Mercur, J., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1881, No. 144.
    On June 28th 1878 the plaintiff, E. J. Montague, entered judgment to April Term 1878, No. 706, against the defendant, G. A. McDowell, upon a promisssory note for $843.80 with warrant of attorney, including a five j>er cent, attorney’s fee, making the amount $886.
    Subsequently, on petition of the defendant, averring that said judgment included a large amount of usurious interest, the court made absolute a rule to open the judgment and let the defendant into a defence as to all except the sum of $423.30 admitted to be due. This amount was paid by defendant, and a plea of non assumpsit and payment with leave entered as to the balance alleged to be due.
    On the trial, before Church, P. J., the defendant’s evidence showed, that the note of $843.80 had been given partly in settlement of a former judgment entered to August Term 1877, No. 800, for $631.31, which was thereupon satisfied; and that this last mentioned judgment had in like manner been given in settlement of prior loans, for which a series of judgment notes had been given. The defendant testified, under objection and exception, that on the entire series of loans, interest in excess of six per cent, per annum had been charged and included in said notes, and that the said prior satisfied judgment (August Term 1877, No. 800) included a large amount of interest in excess of six per cent, per annum. Further, that the unpaid principal of all the loans since the inception of the series, together with interest at six per cent., amounted only to the said sum of $423.30, which the defendant had now paid to the plaintiff, and that the balance of the judgment in controversy ($420.50) represents excessive interest.
    The plaintiff insisted that the defendant cannot, in this collateral proceeding, attack or go back of the former judgment to inquire into its consideration, whether usurious or not, and presented, inter alia, the following point:
    “ That under the evidence in this case the plaintiff is entitled to recover the amount of the judgment No. 800, August Term 1877, for $630.31, with interest and costs on said judgment, together whatever other consideration the jury may find was given by the plaintiff to the defendant'at tlie time of the execution of the note in question and interest thereon, less the admitted credit of $423.31.” Refused.

    The defendant presented, inter alia, the following point: “ That should the jury find that at the time of making the note on which this judgment was entered the consideration was the satisfaction of a judgment, and that the amount of such judgment was only the original with usury included, and that it was a continuance of the original lending, and that the debtor (the defendant), was still in the hands of the lender, then, in such case, the claim was still original, and the defendant can defalk the usury so included.” Affirmed.

    The court, in the general charge, said: — “ In 1877 the defendant had given a note with warrant of attorney to No. 800, August Term 1877. The plaintiff entered judgment upon it for six hundred and thirty dollars and thirty-one cents, and the plaintiff claims that is a part of the consideration of the note now in suit, and that, being a judgment and being a part consideration of the note, you cannot go back of that note to inquire its consideration, whether usurious or not. We decline so to say. You have the right to take the series of loans from the beginning made by the plaintiff to the defendant, and if you find any usury connected with it you have a right to abate it from the plaintiff’s claim in this suit. The precise question we now decide has not been decided in this Commonwealth to my knowledge. Some decisions have been made by the Supreme Court which tend to show, in so far as the causes were then before the court that you could not inquire into the consideration of a judgment of a court of record collaterally. Ye have no intention of negativing that theory or that decision.
    “We say to you that when a creditor lends money from time to time to an individual, vaho of course thereby becomes his debtor, adds usury, takes usury, and takes notes for interest and enters them up and renews them from time to time, and then satisfies the judgments, it does not prevent the defendant from giving in evidence the transaction from its inception. Otherwise the judgment of a court of record would be prostituted to the very basest of purposes. A man might loan an individual one hundred dollars for a year or a shorter time and take his judgment note for two hundred dollars, which would be enormous usury and enter the judgment up, the next day satisfy the judgment, and take a new note. For a court to hold that you could not reach the note, because the bearer had entered it up, and satisfied it himself, would be a prostitution of the courts for the very basest of purposes — the purpose of protecting usury and assisting in the violation of law. When it is suggested that it is contrary to the policy of the law to attack judgments or to attack the consideration of judgments, when they are not paid, but simply when new notes are given and lesser security taken, it does not seem to us to be any more contrary to the policy of the law than it would be to connive at taking usury for the loan of money, whether it be one per cent., one hundred per cent., or one thousand per cent.
    “We instruct you that this defendant can reach the very inception of these transactions.”
    Verdict for the plaintiff, for $93.76, and judgment thereon. The defendant took this writ of error, assigning for error the answers to the points above given, and the portions of the charge quoted.

      W. B. Bole {A. J, Harper with him), for the plaintiff in error. —
    A judgment, whether entered by confession on warrant of attorney or on a verdict, is conclusive in all collateral proceedings. It is settled that when an original judgment is revived after the payment of usurious interest tliereon, without allowing credit for such payment, the defendant cannot, upon an execution or in any other proceeding, avail himself of the defence of usury. The judgment of revival standing unopened is conclusive: Rutherford v. Boyer, 3 Norris 347; Federal Insurance Co. #. Robinson, 1 Norris 357; Hopkins v. West, 2 Norris 109. So where a bond was given for a debt and usurious interest thereon, it was held that a judgment obtained on amortgage given as security for the bond was conclusive, and that usurious interest paid by defendant in settlement could not be recovered back: Carlisle #. Bindley, 8 W. N. O. 69. The principle of those decisions rules this case.

      Thomas Boddy, for the defendant in error. —
    By the policy of the law and numerous decisions, the taint of usury in an original transaction of loan runs through a series of renewals, and the defendant can, in a suit upon the last note, defalk the entire usury : Campbell #. Sloan, 12 P. F. Smith 481; Miller v. Irwin, 4 Norris 376; Macungie Savings Bank#. Hottenstein, 8 Norris 328; Heath #. Page, 12 Wright 132. If the simple device of entering an office judgment by confession on any note in the series, and satisfying it on the giving of a new note, estops the defendant from setting up the usury in the satisfied judgment, it enables usurers to evade the above doctrine. We do not attack the conclusiveness of the 1877 judgment. We simply respond to the demand in the suit on the last note that it is made up of several usurious renewals.' The fact that on one of the former judgment notes the creditor had entered judgment and afterwards satisfied it, does not affect the case. That judgment was made up of the same loans that went into the making up of the last note, on which this judgment was entered and opened. When the former judgment was satisfied it was wiped out of existence. Its temporary existence does not change the continuing nature of the transaction.
   Chief Justice Sharswood

'delivered the opinion of the court, January 2d 1882.

A judgment confessed by warrant of attorney ,is as perfect a judgment as if rendered upon the verdict of a jury after a trial. The court will, however, in such a caáe, upon the defendant showing a good defence in law or equity, open it and allow him an opportunity to controvert the cause for which it was entered before a jury. In no other respect is there any difference, and a judgment confessed is conclusive, and cannot be attacked collaterally by the defendant: Braddee v. Brownfield, 4 Watts 474; Hageman v. Salisberry, 24 P. F. Smith 280. This rule has been expressly held to be applicable to a case where excessive interest was set up as an answer to the judgment collaterally: Rutherford v. Boyer, 3 Norris 347. In Hopkins v. West, 2 Norris 109, a judgment was confessed which included a greater rate of interest than six per cent., and on it the same rate continued to he paid. Afterwards the defendant paid the amount of the judgment and it was satisfied of record. He then brought an action to recover back the excess, and it was held by this court that while he could recover the money paid beyond six per cent, subsequent to the judgment, lie was precluded from going behind it and recovering that which was included in it.

That case, wo think, cannot he distinguished from the one presented on this record. Here the judgment confessed November 2d 1877 was paid and satisfaction entered June 28th 1878. It was not indeed paid in money, but it was paid in law. The notes upon which it was entered wore surrendered, additional notes for new debts taken, and a new judgment — the one in question —was entered for the whole amount. Satisfaction was entered on the old judgment, which, no doubt, was part of the arrangement. It cannot be doubted that in law the old judgment was paid. If there had been any fraud or mistake in the transaction the defendant might have taken a rule to strike off the satisfaction, open the judgment and let him into a defence. The new excess of interest entering into the new judgment was no doubt a defence after it had been opened, but as to the old judgment the defendant was precluded. He had full opportunity from November 1st 1877 to June 28th 1878 to have applied and had the old judgment opened, lie did not avail himself of it. If the satisfying of the old and the giving of the new judgment had been simultaneous or nearly so, the court might have considered it a mere device fraudulently to conclude the debtor, and on that ground have struck off the satisfaction and opened both judgments; but as long as the old judgment stood unopened and unreversed it was conclusive upon the defendant that he owed the debt, and it would be a dangerous precedent which would shake this rule on account of the hardness of a particular case.

It is to be remembered in all discussions upon the subject of interest, that what used to be and still is called usury, is not now unlawful in this state — as it was, prior to 1858. By the Act of 28th May of that year, Pamph. L. 622, the penalty previously imposed for taking more than the prescribed rate was repealed. The creditor may lawfully charge and receive the excess, though he cannot coerce its payment by suit or process, and the debtor may recover it back if the action is brought within six months after payment.

Judgment reversed and venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    McCafferty versus Griswold.
    1. In an action to recover damages for the breach of a parol contract to lease or sell land, the measure of damages is the money paid or expenses incurred on the faith of the contract ; if no money has been paid or expense incurred the damages are merely nominal.
    2. A., being the owner of a farm in the oil regions, agreed, verbally, to lease ten acres thereof to B. for twenty years, in order that the latter, a practical driller, might test the same for oil. B. entered upon the land and began the drilling of an oil well. Subsequently, upon coming to execute the lease, B. discovered that it had been prepared by A.’s instructions for five acres instead of ten. He at first declined to accept it. A., however, stated that he preferred to sign a lease first for the five acres upon which the well had been begun, and that if that well paid he would execute a lease for the other five acres. B. consented to this arrangement, and executed and accepted the lease. He then proceeded with his well, expended about §10,000 thereon, and finally struck oil in paying quantities. He then demanded from A. a lease of the other five acres, which was refused. Subsequently B. sold his interest in the five-acre lot on which the well he had sunk was situate, for §18,000. In an action by B. against A. to recover damages for the breach of his parol contract to lease the other five acres, the court instructed tlje jury that plaintiff was entitled to recover as his damages one-half the expense of sinking the well on the tract actually leased to him with interest from the time of the breach. Held, that this was error. Plaintiff had incurred no expense on account of the land as to which the breach had taken place, other than that involved in sinking the well on the first tract, which sinking he had effected upon the faith that, on its successfnl completion, the defendant would lease to him the land in question. This expense, however, had been paid and overpaid by the profit which plaintiff realized from the sale of his interest in the tract whereon said well was sunk. He was, therefore, entitled to recover nominal damages only.
    November 24th 1881.
    Before Sharswood, C. J., Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Merour, J., absent.
    Error to the Court of Common Pleas of Mercer county: Of October and November Term Í881, No. 45.
    Assumpsit by Orr Griswold, et al., against William McCafferty, to recover damages for the breach of an alleged parol agreement, whereby defendant agreed to lease to the plaintiffs for the term of twenty years a tract of land for the purpose of drilling oil wells thereon. Pleas, non assumpsit, payment with leave. The defendant, William McOafferty, died before trial, and his administrator, Howard McOafferty, was substituted.
    On the trial before MoBermitt, P. J., the evidence on behalf of the plaintiff was to the following effect:
    In 1872 William McOafferty, who owned a farm in Butler county containing three hundred acres, entered into negotiation with the plaintiffs, who were practical drillers, with the view of testing a portion of his laud for oil. He at first proposed to give them a lease of five acres on certain conditions. The plaintiffs declined to take a lease of less than ten acres. After some negotiation, the parties agreed verbally that the lease should be for a square ten acres of land out of the south-east corner of McCafferty’s farm, for the term of twenty years, the lessee to bore for oil, and prosecute the work to success or abandonment, and in case of success, the lessor to be entitled to a royalty of one-fourth (afterwards reduced to one-sixth) of the oil obtained; and in case any well should produce more than forty barrels per day, the lessees should pay, in addition, to the lessor the sum of $200 per acre. The plaintiffs immediately took possession, built a rig, etc., at a cost of about $600, and commenced drilling. On August Blst 1872, after the commencement of the work, the parties met at the office of M. S. Bay, a justice of the peace, to execute the lease. A lease was produced, which had been prepared by Justice Bay under the instructions of McOafferty, for five acres of land instead of ten. The plaintiffs at first refused to accept this lease. McOafferty stated that he would prefer to sign first a written lease for the five acres on which the well was begun, and if that well should prove to be a paying one, he would then give a written lease for the other five acres. Griswold objected at first, but afterwards consented to the proposed arrangement, and the lease for the five acres was duly executed.
    Griswold then proceeded with the work, and after ten months’ labor and an expenditure of $10,000, the well produced oil at the rate of 170 barrels per day. Within a few days after its completion, Griswold demanded from McOafferty a written lease for the other five acres, which he refused to give; and for the breach of this alleged verbal agreement, Griswold brought this suit. It appeared that the plantiffs had sold their interest in the well and five-acre lease for the sum of $18,000 ; also, that McOafferty, within a month after the completion of the well, had sold his farm for $90,000, and that two wells, producing each about 250 barrels a day, were afterwards sunk on the five acres which were the subject of the alleged parol agreement.
    The plaintiffs averred that the labor and cost which they expended in putting down the said well, were so expended in consideration of the parol agreement to lease the additional five acres, as well as in consideration of the written lease.
    The defendant claimed that all the prior negotiations were merged in the written lease for five acres, and denied the alleged contemporaneous verbal contract, and that the plaintiffs had expended any money or labor on the faith thereof.
    The plaintiffs presented the following points: — 1. “ If the jury find from the evidence that McCafferty agreed to lease to the plaintiffs a square of ten acres of land, out of the south-east corner of his farm, for the consideration of the plaintiffs’ putting down the test well on said farm, the lease for five acres of said land to be executed before the well was put down, and the lease for the other five acres to be executed after the well was down, as testified to by plaintiffs, then the plaintiffs are entitled to recover, for the breach of the McCafferty agreement to execute the second five-acre lease, one-half of what it cost them to put down said well, with interest from the time of breach.”

      Answer. “ The general law of this point is affirmed, and as we know of no more equitable rule for the measure of damages then as herein stated, the j>oint is affirmed generally.”
    2. “ That if the original parol contract for ten acres, as testified to by plaintiff, was not changed or modified at the time the written lease for five acres was made (except as shown by the evidence of Orr Griswold), then the execution of said written lease would not prevent plaintiffs’ recovery in this suit.”

      Answer. “ Affirmed; but what the original parol contract was is for you.”
    The defendant presented the following points : — “ 1. That all the conversations and negotiations between the parties prior to the execution of the written contract are merged in such written contract, and that the law presumes such written contract to be the consummation of the previous negotiations, and to be the actual agreement of the parties.”
    “ Answered affirmatively, but this is a presumption of law which may be overthrown by parol proof of what occurred between the parties when they executed their written agreement.”
    “ 2. That if the jury believe from the evidence that the plaintiffs accepted the written contract of August 31st 1872, and in pursuance of said contract went on and expended their time and money in putting down the well on said lease, then all the labor and expenditure so made on said lease would be referable to said written lease or contract, and none of the same could be referred to their verbal contract.”

      Answer. “If the weight of the evidence shows you that the plaintiffs accepted the written lease or contract in evidence, and in pursuance of it and solely upon the faith of it expended tlieir money in putting clown tbe well, then this point is affirmed ; but if you find as a fact from the evidence that the plaintiff refused to accept the five-acre lease as a consideration for sinking the well, and that the agreement between the parties, entered into at the same time the five-acre lease was executed, was that they should receive a written lease for the other five acres as soon as a paying well was struck, and if the plaintiffs expended their money on the faith of such agreement that they were to receive a lease for the other five acres, then this point is refused.”
    “ 3. That if the jury believe from the testimony of the plaintiffs that one of the conditions of their getting the additional five-acre lease was, that they should get a paying well on the five acres for which they had a written contract, then all the time and money so expended was expended on and under said written contract in putting down the well, the quality of which, when finished, was a condition precedent to any additional lease, then none of the expenditures so made could be referred to the promise of an additional lease.”

      Answer. “ If you find, the contract was that plaintiffs should put the well down under the lease executed for the five acres alone, this point is affirmed ; but, if the contract was, that they were to receive a lease of the ten acres therefor, and if the plaintiffs expended their money on the faith of so receiving a lease for the other five acres in addition when a paying well was struck, then this point is refused.”
    “4. That from all the evidence in the case the plaintiffs have not shown, that they have paid any money to the defendant, or made any expenditures of moi’e time and labor exclusively upon the faith of the verbal lease for five acres in addition to the five acres in the written lease, and therefore they cannot recover.”

      Answer. “Whether they have or not is a question of fact for the jury under all the evidence. Thus answered, this point is refused.”
    Verdict for the plaintiffs for $4,345.50, and judgment thereon. The defendant took this writ of error, assigning for error, inter alia, the answers to plaintiffs’ and defendant’s points as above.

      Griffith dé Sons and William Maxwell, for the plaintiff in error. —
    Although an action will lie for a breach of a parol contract to lease for more' than three years, the rule as to the measure of damages recoverable, as now well settled in Pennsylvania, is that in the absence of fraud only such damages as result directly from the breach can be recovered— nothing for the loss of the bargain: Sausser v. Steinmetz, 8 W. N. C. 100 ; Thompson v. Slieplar, 22 P. F. Smith 160 ; Harris v. Harris, 20 P. F. Smith 170 ; Dumars®. Miller, 10 Casey 319. The former doctrine, as held in Jack ro. McKee, 9 Barr 235, was distinctly overruled in Hertzog v. Hertzog, 10 Casey 418, which has been followed in all the subsequent cases. The evidence in this case was insufficient to establish the alleged parol contract: Frederick v. Campbell, 13 S. & R 136; Poorman v. Kilgore, 1 "Wright 309: or, that the plaintiffs performed any labor or expended any money exclusively on the faith of their alleged parol contract. What they did expend was necessary under the written lease, and is referable solely to that. The plaintiffs suffered no damage on the whole transaction; but, on the contrary, made a clear profit of $8,000. The court, therefore, erred in its answers to the points with respect to the measure of damages.

      Q. A. Gordon (S. H. Miller with him), for the defendants in error. —
    We do not claim that we can recover for the “loss of our bargain.” We do claim, however, that the labor and money expended by us on the test well, was so expended equally on the faith of the parol contract to lease an additional five acres, as on the written lease. This was shown by the facts that we refused McCafferty’s first offer of five acres, and upon his acceding to our proposition for a lease of ten acres, we began work and expended several hundred dollars on the faith of that parol contract for ten acres before the production by McCafferty of the written lease for five acres. This was a surprise to us, and we only accepted it, at his request, on the faith of his contemporaneous agreement that he would sign the lease for the other five acres upon a successful completion of the well. The written lease for a part, and the parol agreement that accompanied it and upon the faith of which it was accepted, effected no change in the original contract, except that the time for signing the lease of one-half the land was postponed until the completion of the well already begun on the other half. The consideration for the whole was the sinking of one test well. By accomplishing this, we have paid the consideration for the whole; but have received only one-half. Why then can we not recover back the consideration we paid in advance for the second half, viz., the amount we spent on the faith of McOafferty’s promise to give it ? The court below in their instruction to the jury equitably measured this amount as one-half of what we expended on the well, although the jury did not give us so much. If McCafferty had agreed, in consideration of our sinking the test well, to sell us ten acres, the deed for five acres to be made on commencement of the work afid the deed for the other five acres to be made on its completion, he could not, after its completion, have refused with, impunity to execute the second deed. There is no difference, in principle, between a sale and a lease. The fact, that we sold our live-acre lease for more than we spent upon it, is immaterial. Our right to recover, in this action, is the same as if we had sold it for less or had retained it.
   Mr. Justice Gordon

delivered the opinion of the court, January 2d 1882.

This was an action on the the case brought by the Griswolds, the plaintiffs below, against the administrator of William MeOafferty’s estate, to recover damages for the breach of a parol agreement, or rather promise, by William MeCafferty, in his lifetime, to execute to the plaintiffs a twenty years lease for five acres of land in the county of Butler. Ón the 31st of August 1872 MeCafferty made a written lease to the plaintiffs for five acres of land for the term of twenty years, in consideration of which the plaintiffs agreed to enter upon the land immediately and bore for oil, and, if they were successful, render to MeCafferty one-sixlh of the oil which might be produced. They were also to pay him one hundred dollars an acre for the land, if for ten successive days the well yielded twenty-five barrels of oil a day, and two hundred dollars an acre if the yield was forty barrels or over.

The plaintiffs entered upon the property and diligently prosecuted their work at a cost of ten thousand dollai’S, and at a depth of fourteen hundred feet they found oil in quantity sufficient to produce one hundred and seventy barrels a day. After-wards they sold this lease for the sum of eighteen thousand dollars. Now, according to the testimony of the plaintiffs, MeCafferty had, previously to the time of the execution of the lease above mentioned, promised orally that it should cover ten acres. It was further proved, that these plaintiffs refused to execute this paper or to proceed with the work except on the premise then made by MeCafferty that he would afterwards lease to them the additional five acres.

This, then, is a brief outline of the facts as found by the jury, and which, though denied by the defendants, we must take as true. For a breach of this promise to lease this action is brought. The court instructed the jury, that if they found the facts as above stated, the plaintiffs were entitled to recover, and that they might adopt, as a proper measure of damages, half of the cost of the well put down on the five-acre lease. The defendant complains of this instruction as improper and illegal, and we think his complaint must be sustained.

The case is one covered by the statute of frauds and perjuries. The promise was for a lease of more than three years, and hence, under the statute, it cannot be sustained. Nevertheless, an action for the breach of this parol agreement was well brought; but, what should be the measure of damage? Not the difference between the price to be paid and the actual value of the lease, in other words, the value of the bargain. For since the case of Hertzog v. Hertzog, 10 Casey 418, which overruled Jack v. McKee, 9 Barr 235, and the cases which followed it, no such rule can be applied. On the other hand, we have in Thompson v. Sheplar, 22 P. F. Smith 160, and Sausser v. Steinmetz, 8 W. N. C. 100, this rule stated as the proper measure of damages for the breach of parol leases and sales of lands; that is to say, the money paid and the expenses incurred on the faith of the contract; but, if no money has been paid or expenses incurred, the damages are nominal.

In the case in hand there was no money paid, neither was there any expense incurred, on account of the land proposed to be leased. But, it is urged that without this promise the plaintiffs would not have put down the well upon the five-acre lease. Let this be admitted; what then ? They would have lost, according to their own showing, a bargain of eight thousand dollars. What kind of damages are these: they put down a well at a cost of ten thousand dollars for which they got eighteen thousand ? What nonsense to talk about damages for the breach of an oral contract, which led to such a result as this! But let us suppose the well to have been put down on the faith of a parol lease, and the result had as above stated; on a breach of the contract by entry of the landlord and ouster of the tenants, what would be the damages recoverable by the lessees ? Nothing save the expenses they had incurred in the prosecution of the work; but, as these are paid and overpaid from the land itself, they can get nothing more, for they have suffered no loss. There seems, indeed, to be- a constant disposition on the part of courts to revert to the exploded doctrine of Jack v. McKee; to impinge upon the statute in giving to the plaintiff some compensation for the loss of a good bargain. But this must not be allowed. Injury enough has resulted from that doctrine to demonstrate the wisdom of a strict adherence to the statute, and, it is to be hoped, that the ruling of Jack v. McKee will never again find a place in the jurisprudence of Pennsylvania. Manifestly, here is an attempt to get back upon the forbidden ground; an attempt to compensate the plaintiffs, at least in part, for the loss of a good bargain; otherwise, how could the court have permitted the plaintiffs to recover when they had suffered no loss ?

But we cannot thus permit the force and vitality of a valuable statute to be frittered aAvay, and that upon equities and hardships which are purely factitious. The plaintiffs have suffered neither loss nor wrong. They not only made money by their contract, bnt, as to the parol agreement, they knew it was binding on neither party. Had their operation on the lease proved a failure, McCafEerty certainly could not have compelled them to sink a well on the other lot, neither could he have recovered damages for their refusal so to do.

There being thus a total want of mutuality in the alleged contract, and the plaintiffs having suffered no pecuniary loss, they had no standing, either in law or equity, to recover any but nominal damages.

The judgment is reversed, and a venire facias de novo is ordered.


author: Mr. Justice Meecub

text:
    Elizabeth B. Biddle’s Appeal.
    A testatrix bequeathed all her property to B., in trust to collect and receive the income and interest thereof for her own use during her life, directing the principal to be paid after B.’s death to certain charities. Among the assets were certain shares in an insurance company. Less than five months after the death of said testatrix said insurance company resolved to increase its capital one-third by offering to its stockholders the option to subscribe at par to the stock of the company, in the proportion of one share for every two shares held. Every person exercising this option was to pay to the company for each share taken, in addition to the par value thereof, another like sum, which was to bo added to the surplus fund of the company. B. sold the options in the market. The market value of the^ stock of the company was not shown to have varied between testatrix’s death and the issuing of the new stock, and but a very slight diminution in said value took place after said issue. The books of the company showed, however, a diminution in the value of each share as com-' puted by dividing the capital and surplus of the company by the number of existing shares before and after the issue of the new stock. B. contended that she was entitled to the proceeds of the options sold by her after deducttberefrom a sum sufficient to make up the depreciation in the old shares ingheld by her in trust. Held, thatB. was not so entitled, and that the whole proceeds of the options were to be accounted capital and not income.
    January 3d 1882.
    Before Sharswood, C. J., Mercub, Gordon, Paxson, Trunkey, Sterbett and Green, JJ.
    Appeal from the Orphans’ Court of Philadelphia county : Of July Term 1881, No. 58.

      Appeal of Elizabeth B. Biddle from a decree of the said court, dismissing her exceptions to and confirming the adjudication of the Auditing Judge upon the account of the executor of the estate of Mary Condy, deceased.
    The facts were as follows :• — Mary Condy died June 29th 18S0, having by her will devised and bequeathed all her estate real and personal to her cousin Elizabeth B. Biddle, in trust to collect and receive the income and interest thereof for her own use during her life and at her death the principal of her said estate to be divided equally between the Protestant Episcopal Hospital and Christ Church Hospital. Among the property of the testatrix at the time of her death was 108 shares of the capital stock of the Insurance Company of North America.
    On November loth 1880, a meeting of the stockholders of the said insurance company was held, at which it was resolved to increase the capital stock from $2,000,000 to $3,000,000 by issuing 100,000 shares at $10 per share in the proportion of one share for each two shares held by the stockholders, the latter to pay $10 per share for each share of the new stock, aud also $10 per share for the privilege of subscribing; the proceeds of which privilege to be added to the surplus fund of the company. Any shareholder not disposed to subscribe for such new stock on these terms had the right of selling his subscription privilege in the open market.
    This increase of the capital stock did not cause any serious diminution in the market value of the old stock, but resulted in a loss in the intrinsic or book value thereof of 75 cents per share.
    The executor, instead of exercising his privilege of subscribing for the new stock, sold the privilege and realized the sum of $533.25 therefor.
    The life tenant claimed that as the diminution in value of the 108 shares belonging to the trust estate caused by the transaction, was only 75 cents per share, she, the life tenant, was entitled to receive, as income, the proceeds of sale of the said privilege, $533.25, less 75 cents per share on the 108 shares, viz., the sum of $452.25.
    The Auditing Judge (Hanna, P. J.) refused to allow the claim, saying, in his adjudication
    “ There was no dividend declared, either in stock or a share of the surplus fund of the insurance company, but the stockholders agreed among themselves simply to increase the capital stock of the company, and also the surplus fund each to the extent of $1,000,000. Each stockholder was to pay $-20 for a new share. This was all he received, and no portion of the surplus fund. That these new shares which the decedent’s estate would be entitled to would be a part of the principal estate, seems clear. And if accountant liad elected to subscribe for the stock, he could only take ‘principal5 to pay for them, and not ‘ income,5 for the latter belonged to the legatee for life. If this be so, then it follows that the money realized by the sale of the option to subscribe belongs to the ‘ principal5 of the estate. We think that Moss’s Appeal, 2 Norris 264, determines the question in favor of the residuary legatees.”
    Exceptions filed by Elizabeth B. Biddle to this adjudication were dismissed by the court, and the adjudication was confirmed. (No opinion was filed.) Elizabeth B. Biddle thereupon took this appeal, assigning for error the decree of the court.

      Ed,ward Hoplcinson, for the appellant. —
    The proceeds of the right to subscribe for the new stock, in so far as the intrinsic value of the stock already belonging to the testatrix’s estate was not diminished, represented profit, or income, and not capital. It was well known, when the insurance company passed the resolution,-that the privilege to subscribe for new stock at $10 per share would sell at a premium in the market; and the transaction was equivalent to a declaration of a dividend in the amount of such premium. 'Such a dividend would of course go to to the life-tenant. That the fund realized from the sale of the option to subscribe is income and not capital was squarely decided in Wiltbank’s Appeal, 14 P. E. Smith 256, in which case the facts are precisely similar with the present case. The later case of Moss’s Appeal, 2 Norris 264, is not in conflict with Wiltbank’s Appeal, but introduced the qualification that if the issuing of the new stock is not based on actual profits, but impairs the intrinsic value of the old capital to the extent of the amount of the new issue, the value of the right to subscribe belongs to the remainder-man and not to the life-tenant. Paxson, J., in delivering the opinion of the court in Moss’s Appeal, says: “ It thus appears, that for each dollar gained by the sale of the options, a corresponding dollar was taken from the value of the original shares. If the company had gone into liquidation the day before the issue of the new stock, the 100 shares of original stock would have realized $24,000. If it had gone into liquidation the day after, the 140 shares [the increment being 40 shares] would have realized the same sum. Where, then, was the profit ?” The difference in this case is that the impairment of the intrinsic or liquidating value of the original capital by the new issue was only 75 cents per share, or on the 108 shares belonging to the trust estate, $81. The right of the remainder-men to have this loss made up out of the proceeds of the sale of the privileges is admitted ; but the balance ($533.25 — $81.00), $452.25, is clear profit in the hands o£ the trustee, and under 'Wiltbank’s Appeal and Moss’s Appeal must be awarded to the life-tenant as income.
    The argument of possible inconvenience in determining whether there may be profit or loss, should have no force to induce this court to destroy the principles adopted in Wilt-bank’s Appeal. In the present case, the amount of profits was judicially found. The questions of profit or loss in similar cases in’New Hampshire, New Jersey, and New York, were referred to masters : Lord v. Brooks, 52 N. II. 76 ; Van Horen v. Olden, 4 C. E. Green 176; Clarkson v. Clarkson, 18 Barb. 646 ; Simpson v. Moore, 30 Barb. 637.

      J. B. Townsend, for the appellees. —
    Wiltbank’s Appeal, 14 P. F. Smith, 256, is the only case which can be claimed to lend any show of support to appellant’s position here. But the more recent exposition of the law on this .subject will be found in Moss’s Appeal, 2 Norris, 264, which, if it does not amount to a reversal of Wiltbank’s Appeal, at least comes so near that result as to leave a very slender edge for it to stand upon.
    The necessity for holding the gain from the sale of options in this case to become part of the capital would seem to be imperative, for these reasons: — (1) That it is not shown to be profits at all. (2) It is certainly not profits earned since the death of the testatrix. (3) If the result of the increase of stock has been to depress in any degree the market price or value of the old stock, then this gain on the sale of options to subscribe ought to be held the measure of the extent to which such old stock has been diminished in value by the new issue; and to restore it to capital, simply puts the old shares in the same position in which they stood (as to value) before the increase.
    The decree of the court below, we submit, should be sustained for the sake of confirming a plain rule for which Moss’s Appeal is sufficient foundation. The uncertainty, doubt, and confusion which would result from adopting any other rule would require involved examinations into market prices at different dates, and into values, appearing by accounts or books, or estimates of assets, which are so often unreliable as data on which to base calculations of profits. The onus rested upon the appellant to establish by proof that the fund in contest was income accruing since the death of Mrs. Condy, and the proofs submitted did not establish that fact.
   Mr. Justice Meecub

delivered the opinion of the court, January 23d 1882.

This contention is between the tenant for life and the residuary legatee, under the will of Mary Condy, who died on the 29th June 1880. She gave and bequeathed all her estate to the appellant, in trust, to collect and receive the income thereof for her own use during her life, and at her death, the testatrix gave one-half the residue to the appellee. The property bequeathed was stock of the Insurance Company of North America. At a meeting of the stockholders of the company, held on the 15th November of the same year, it was resolved to increase the capital stock from $2,000,000 to $3,000,000 by issuing 100,000 shares at $10 per share, in the proportion of one share to each two shares held by the stockholders — they t° .pay $10 per share for each share of the new stock and also $Í0 per share for the privilege of' subscribing, the proceeds of which privilege to be added to the surplus fund of the company. Instead of subscribing for the new stock, the executor sold the privilege of subscribing therefor. The question is, whether the sum thus realized should be awarded to the appellant as income, or whether it belongs to the principal of the estate ? • .

The entire value of the stock, with all its incidents, at the death of the testatrix, constituted the principal of the estate. On this principal, the appellant Avas entitled to the income. Whatever value beyond par, the stock then had, by reason of the large surplus fund of the company or otherAvise, attached to the stock and formed a part of the principal. The appellant was not given any part of this aggregated value of the stock. The income therefrom Avas all she was entitled to receive. Whatever was capital, must remain capital. The executor could not take therefrom and give to the life-tenant, to the injury of the residuary legatee. The surplus of the company Avas large. This greatly increased the value of the stock. It is not shown that the stock was of greater value on the 15th November than on the day of the death of the testatrix, nor that the surplus fund had been increased in the mean time.

The right of a stockholder to subscribe for new stock, was a right to change the form of the investment; but that which existed as principal did not, by the exercise or sale of that right, become income. The appellant became entitled to the income on that principal in its changed from; but not to the principal itself.

The distinction between the surplus fund, existing at the time of the death of the testator, and a fund accumulated after-wards, is distinctly recognized in Earp’s Appeal, 4 Casey 368. That Avhich had accumulated before the death of the testator, was held to be part of the principal of the fund, and that which accumulated after his death, to be income. The correctness of the principle there ruled, is expressly affirmed in Wiltbank’s Appeal, 14 P. F. Smith 256, although, under the facts of the case, the profit on a sale of the newly subscribed stock was held to be income. Moss’s Appeal, 2 Norris 264, is in entire harmony with the conclusion at which we have arrived. There the trust fund consisted of stock, and each of the stockholders was given the privilege of subscribing, and paying, for as many shares of the new stock, as he held of the old. , The estate of the testator was entitled to subscribe for one hundred shares of the new stock. The executors, not having funds sufficient to pay the sum required for so much stock, sold the option to subscribe for sixty shares thereof, and with the money realized therefrom, subscribed, and paid, for the remaining forty shares. The life-tenant claimed these shares, thus acquired, to be income: but it was held, they formed a portion of the capital of the residuary estate. It was there said by our brother Paxson, there is no doubt about the law. The difficulty is in applying the law to the facts of the particular case. It is true, one reason given for the ruling was, that after the increase of stock, the value of each share decreased. Such must be the natural effect of an increase produced in part by putting an existing surplus fund into certificates of new stock. The additional sum paid in for each share being less than the actual value of a share of the old stock, necessarily lessens the value of the latter. In the present ease, the diminution in the value of the stock and in its market price is shown to be small. That, however, we think is not the only evidence of what constitutes principal or capital. In so far as the fund, which was a part of the residuary estate, was used to acquire the new stock, the latter took the place of the former. It was not income, but capital in a changed form. The appellant is not entitled to the corpus of the new stock, but to its income.

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

Sharswood, C. J., and Teunkey, J., dissented.


text:
    Timlow versus Philadelphia and Reading Railroad Company.
    1. The court will not take judicial notice of a private Act of Assembly upon the hearing of a rule for judgment for want of a sufficient affidavit of defence.
    2. An Act of Assembly authorizing a certain railroad company to guarantee the bonds of any incorporated company, individual or firm engaged in any manufacture in any county through which said railroad company’s line may pass, is a private and not a public act.
    January 3rd 1882.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunket, Sterrett and Green, JJ.
    Error to the Court of Common Pleas No. 2, of Philadelphia comity : of January Term 1882, No. 22.
    Debt, by Lydia B. Timlow, et al., executors, etc., against the Philadelphia and Reading Railroad Company. The plaintiffs filed copies of four bonds for $1,000 each, issued by the Philadelphia and Reading Coal and Iron Company, on each of which was an indorsement executed by the Phfadelpliia and Reading Railroad Company, guaranteeing the punctual payment of the principal and interest of said bonds. The copies were supplemented by an averment that certain payments of interest were due and unpaid.
    The president of the defendant company filed the following affidavit of defense : “ That he is advised by counsel and therefore suggests that the instruments of which copies have been filed in the case are not such as entitle plaintiffs to judgment against the defendants for want of an affidavit of defence; and that he is further advised by counsel, and therefore avers, that the contract of guaranty contained in the said instruments is one which the Philadelphia and Reading Railroad Company, under its charter, and under the laws of the Commonwealth of Pennsylvania, had no corporate power to make.”
    The plaintiffs took a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, which rule the court, after argument, discharged. Whereupon the plaintiffs took this writ of error, assigning for error the refusal of the court to enter judgment for plaintiffs.

      J. Cooke longsi/reth, for the plaintiffs in error. —
    Defendant’s obligation was an absolute undertaking in writing to pay the debt of another on a day certain, and therefore within the affidavit of defence law: Korn v. Iiohl, 80 Penn. St. 333 ; Seltzer v. Greenawald, 2 W. N. C. 395 ; Sitgreaves 'o. Griffith, 2 Ibid. 705; Howell v. Herold, 6 Ibid. 431.
    The defendant company had express power to execute the guaranty under tbe Act of Assembly of March 20th 1872, Pamph. L. 472, which provides: “ It shall be lawful for the Philadelphia and Reading Railroad Company to guarantee the bonds of any incorporated company, individual, or firm that may now or hereafter be engaged or intend to be engaged in the manufacture of iron or any other manufacture, in any county into which any railroad or branch railroad operated by the said company may now or hereafter extend.”
    The decision of the court below was on the assumption that the Act cited was a private Act, on the authority of the District Court in the case of Handy v. Railroad Co., 1 Pliila. Rep. 31.
    Rut the act in question is not a private Act within Blackstone’s definition, and the decisions : 1 Rl. Com. 86 ; Unity v. Burrage, 13 Otto, 447. It authorizes the company defendant to guarantee any bonds issued by companies, individuals, or firms engaging in a certain business within certain defined limits. All persons may safely take such guaranties as valid. The act therefore has a general application, not only to the company guaranteeing and to the party guaranteed, but to any person who may buy such bonds.

      Richard C. Dale {John O. DulUtt with him), for the defendant in error. —
    The act of March 20th 1.872, by its title is limited in its application to the Philadelphia and Reading Railroad Company, and its subject-matter. If the act had purported to give authority to all manufacturing corporations in any county in which the Philadelphia and Reading Railroad might run to guarantee the bonds of the railroad company, it might be contended that it was a public act, but the power conferred is limited to the corporation mentioned in the title. The case of Unity v. Burrage, 13 Otto, 447, is distinguishable because the act then under consideration contained a section expressly providing that it should be regarded as a public and not private act.
    The act now in question being a private act, tbe court below could not take judicial notice of it upon the hearing of a rule for judgment for want of a sufficient affidavit of defence.
   Mr. Justice Gordon

delivered the opinion of the court, January 16th 1882.

In passing upon the legality of the action of the court below in refusing judgment for want of a sufficient affidavit of defence, we are disposed to consider only that point which involves the character of the act of the 20th of March 1872. The only authority for the guaranty of the bonds of the Philadelphia and Reading Coal and Iron Co. by the Philadelphia and Reading Railroad Co. is the statute above named. It is not pretended that any such power was embraced in the original charter of the company last named. If, however, this act was of a private character, then it was not such a one as the court was bound to take judicial notice of upon the hearing of the rule for judgment, and, in that event, we must approve the action of the court below.

But as both the companies above named were created primarily for the purposes of private gain, the public welfare being but an incident, or collateral consideration, they are private corporations: 1 Bou. L. Die. 361. But we cannot understand how an act, -which does nothing more than enable one private corporation to guarantee the paper of another, can be called public. It does seem to us that this comes within Blackstone’s definition of a private statute, since it operates only upon particular persons and private concerns, and has no reference to the general community. Admit that these bonds were intended to be put upon the market for sale to any and every person who might choose to buy. What then % They were, nevertheless, made for a strictly private purpose, and the purchaser of the one now in controversy, as well as all other purchasers, bought for a like personal and private purpose.

Therefore, as neither in the making and guaranty, nor sale of this paper, were the public interests or welfare involved in the slightest degree, we cannot but conclude that the judgment of the court below was correct.

The writ of error in this case is now dismissed at the costs of the plaintiff.


author: Mr. Justice Páxson

text:
    Fillman’s Appeal.

    1. No special authorization from the court of original jurisdiction is required to warrant the service of a subpeena in divorce by tire sheriff of another county than that in which the divorce proceedings have been instituted.
    2. Where such sheriff returns such subpeena, together with an-affidavit, setting out the fact of such service and the manner thereof, this constitutes a sufficient compliance with the terms of the Act of March 13th 1815, 0 Sm. L. 287.
    January 4th 1882.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterbett and Green, JJ.
    Certiorari to the Court of Common Pleas No. 3, of Philadelphia oovmiy: Of January Term 1882, No. 20.
    Appeal by Elizabeth Eillman from an order of said court, setting aside the service of a subpeena in divorce.

      Elizabeth Fillman, a resident of Philadelphia, by her next friend John F. Maclde, filed a libel in divorce, a. v. m., against her husband Jacob Fillman, who resided in Montgomery county. A subpoena in divorce issued and was served on the respondent by the sheriff of Montgomery ounty, who indorsed the following return and affidavit:
    “ Served Jacob Fillman, the within named respondent, by giving him, April 80th 3881, a true and attested copy of the within writ, and making known unto him the contents thereof.
    Joseph Frankenfield, being duly affirmed, according to law, deposes and says, that he served the within subpoena in manner and form set forth in the above return.
    “ J oseph Frankenfield, Sheriff.
    “Affirmed and subscribed,” &o.

    ^ The respondent thereupon obtained a rule to show cause why the service of the subpoena should not be set aside, which rule the court made absolute, Ludlow, P. J., saying:
    “ The practice has been, ever since the time of Judge King, to get an order from the court of original jurisdiction before the service can be made by the sheriff of another county.
    “Pule absolute,”
    Tbe libellant thereupon took this writ of certiorari, assigning for error the setting aside the service of the subpoena in divorce.

      Jfddvjard Jd. Worrell, for the appellant. —
    The county of Philadelphia, being the place of residence of the libellant, was the only place where the suit could he brought, as the Act of Assembly provides that the subpoena must issue from the Court of Common Pleas of the county where the injured party resides : Section 2, Act 18th March 1815, Purd. Dig. 510, pi. 12. This act provides the manner of service of a subpoena in divorce, and there is nothing in it which says either expressly or by inference that the service must be by the sheriff; on the contrary, the writ is directed to the respondent, and all that is required is that the respondent shall be served peronally, wherever found, within the State of Pennsylvania, and can be so served by anyone competent to make proof of service If the Act had contemplated a service by the sheriff only, there would have been no provision for the affidavit of proof, as the return of the writ on his official oath, as with other process, would have been sufficient. The writ was served by the sheriff of Montgomery county, because, although not required, service by the sheriff is always the best service, and the sheriff of Montgomery county was the only one who could serve the writ in that county as sheriff: Keen v. Keen, 2 "W. N. C. 492. The courts of Philadelphia county have no jurisdiction over the sheriff of Montgomery county, and could not grant a rule on him to leave his bailiwick and appear and show cause why he should not be ordered to serve the writ. The courts of Philadelphia county have no authoriey to order the sheriff of this county to deputize the sheriff of another county to serve its process. If any such practice has prevailed, it is a vicious one and should be abolished : Balston’s Appeal, 8 W. N. C. 393.
    Personal service by any one, accompanied by the proper affidavit, is all that the statute requires: Harvey v. Harvey, 2 W. N. C. 225; Keen v. Keen, 2 W. N. C. 492.; Buie of Court, XYI. § 52, Court Buies.
    (No counsel appeared for the appellee, and no paper book was presented.)
   Mr. Justice Páxson

delivered the opinion of the court, January 16th 1882.

The service of the subpoena in this case appears to have been in strict conformity to the Act of Assembly. The libellant was domiciled in the county of Philadelphia and the proceeding for divorce was commenced there. The respondent resided in Montgomery county, and the subpoena was served by the sheriff of that county, who made the following return: “ Served Jacob Fillman, the within named respondent, by giving him April 30th 1881, a true and attested copy of the within writ, and making known unto him the contents thereof.” Upon application to the court below the service was set aside, the learned judge saying: “ The practice has been, ever since the time of J udge King, to get an order from the court of original jurisdiction before the service can be made by the sheriff of another county.”

This practice appears to be peculiar to the county of Philadelphia ; at least the contrary prevails in many other counties. This is the first time, so far as I have been able to ascertain, that the question of its validity has been before this court. Undoubtedly a service in accordance therewith would be good. But is a previous order from the court of original jurisdiction essential ? If it is, many divorce proceedings throughout the State where the respondent has not appeared may be invalid.

The Act of March 13th 1815, Purdon 510, ph 12, 6 Smith’s Laws 287, prescribes the mode of serving a subposna in divorce. It requires, that it shall be served personally on the said party, wherever found, or that a copy shall be given to him or her fifteen days before the return of 'the same. There is nothing in the Act, either by its express terms or by necessary implication, which requires a service by the sheriff. The subpoena is not directed to him, but to the respondent; and it may be served by any one. A service by the sheriff is the better service, and this course is usually followed. In such case the return is more likely to be accurate. In either case due proof is required to be made of the service. Here the sheriff made an affidavit of the manner of service, which is the “ due proof ” referred to in the act. The said act does not require a special authorization from the court of original jurisdiction, nor has any reason been shown why such order should be obtained.

It has long been the practice in this state for a defendant to move to set aside a sheriff’s return, where he believes the writ to have been defectively served : Bujac v. Morgan, 3 Yeates 258; Kleckner v. County of Lehigh, 6 Wharton 66; Winrow v. Raymond, 4 Barr 501. The respondent was therefore entitled to take the rule, but it was error in the court below to make it absolute.

The order setting aside the service of the subpoena is reversed at the costs of the appellee.