text:
    LEHIGH COUNTY.
    January Term, 1881,
    No. 246.
    March 7th, 1882.
    Appeal of W. H. Ainey et al.

    1. The Orphans’ Court has not jurisdiction to entertain a claim by a partner of the decedent against the estate of the latter, arising out of unsettled partnership transactions.
    2. Quaere, as to the right of an administrator to except to the findings of an auditor upon claims against the estate.

      Before Sharswood, O. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and. Green, JJ.
    Appeal of W. H. Ainey and Milton Appel, assignees for tbe benefit of creditors of John L. Hoffman, from the decree of the Orphans’ Court of Lehigh County, sustaining exceptions to the report of the auditor appointed to distribute the estate of AY. H. Hoffman, deceased.
    W. H. Hoffman died intestate, and his estate was insolvent. His administrators, William H. Blumer and Susan Hoffman, filed an account, which the Court referred to John Eupp, as auditor, to resettle and distribute.
    Before the auditor, AY. H. Ainey and Milton Appel, assignees for the benefit of creditors of John L. Hoffman, presented a claim for a balance alleged to be due from the estate of the decedent, growing out of the partnership transactions of the firm of J. L. & W. H. Hoffman.
    Counsel for the administrators objected to the claim, on the ground of want of jurisdiction upon the part of the auditor to investigate it.
    The auditor reported, inter alia:

    About May, 1858, John L. Hoffman and William H. Hoffman became partners in the lumber business, under the firm-name of J. L. & William H. Hoffman, and continued such until about the year 1870, when the firm was dissolved, but no final settlement -was made of the firm’s accounts. In the sp'ringof 1873 AYilliam H. Hoffman died, and in the summer of 1877 John L. Hoffman died. No settlement was made, and balance struck of the affairs of the firm, during the lifetime of AYilliam H. Hoffman, nor was there a settlement made and balance struck between John L. Hoffman and the administrators or legal representatives of AYilliam H. Hoffman during the lifetime of the said John L. Hoffman. But it is now contended, on behalf of the estate of John L. Hoffman, that, on a final settlement of the affairs of the firm, there is a balance due the estate of John L. Hoffman, deceased. To prove this all the books of the firm, showing the dealings and transactions of the firm, and of the partners with each other, and with the firm from the formation of the partnership until its dissolution, are offered in evidence. And this is all the proof there is in the case on this subject. An examination of the accounts in these books, of the dealings of John L. Hoffman with the firm, and William H. Hoffman with the firm, and with each other, show an indebtedness of AYilliam H. Hoffman to John L. Hoffman, amounting to $5763.95, which, with interest added to date of filing this report, $1729.18, amounts to $7493.13. This conclusion the auditor has come to from ail examination of the books of the firm, aided by certain statements and abstracts made of the books by James Hausman, Esq., one of the most competent accountants in this community. The auditor attaches no copies of the entries in the books from which he arrives at this conclusion, because both parties interested in this controversy stated that they did not desire it.
    The auditor decided that he had jurisdiction, found the balance due, with interest, to be $7493.14, and allowed a pro rata distribution on the claim of $3053.22. He made, however, an alternative distribution, in case the Court should be of opinion that he had not jurisdiction.
    An exception was filed, inter alia, to this finding.
    The Court below, Sassaman, A. L. J., sustained the exception^'saying, inter alia:

    One thing is quite certain ; the Orphans’ Court is a creature of the statutes, and in them we must look for its power. The Common Pleas is our common-law Court, and has power in all matters of law not provided for by statute, in the State of Pennsylvania, so far as remedies in that Court have been developed, leaving to the equity side of it. such matters for which the law remedies are insufficient. This makes that Court a Court of general jurisdiction with us. The remedies known in that Court are always to be invoked when the statute provides no other. Whenever there is a statutory remedy, that must be followed, and whenever a statute is made in derogation of common-law rights, such statute must be strictly construed. Confronted with these principles, it is well known to us, as a matter of law, that the remedy at common law for account between partners is an action of account-render, or, by reason of its cumbersomeness, a bill in equity, on the equity side of the same Court, the latter being the more favored remedy,-by reason of the greater flexibleness of the processes used in such a proceeding, and the chances of more correct and reliable results. Such an action has always been considered rather too complicated in the necessary details for a jury.
    The principle is universally recognized that one partner cannot, on a claim before partnership settlement, maintain an action at law for the debt against another for anything received on partnership account, or for any! hing relating to partnership transactions while the partnership affairs remain unadjusted, on the ground that it would be impossible to determine whether anything be due the plaintiff, until an account of the partnership matters is taken : Ozeas v. Johnson, 4 Dallas, 434; Patton v. Ash, 7 S. & R., 116; McFadden ®. Hunt, 5 W. & S., 468 ; Andrews v. Allen, 9 S. & R., 241 ; Carlile v. Weber, 2 W. N. C., 506 ; Ferguson ®. Wright, 11 P. F. S., 258 ; Holmes v. Higgins, 1 B. & C., 76 ; Smith v. Allen, 18 Johnson, 245; Gomei’sall ®. Gomersall, 14 Allen, 60 ; Francisco ®. Fitch, 25 Barbour, 180 ; Smith ®. Smith, 33 Mo., 557 ; Burns ®. Nottingham, 60 111., 531.
    This is not so in matters not connected with and not arising out of the partnership transactions : Roberts ®. Fitler, 1 H., 265; Molony v. Davis, 12 Wr., 512 ; Crater®. Bininger, 45 N. Y., 545 ; Currier ®. Rowe, 46 N. H., 72; Collamer ®. Foster, 26 Vt., 751; Williams v. Henshaw, 11 Pickering, 84.
    And it has been held that, to entitle a party to recover for a balance, this should be for a balance found to be due after a dissolution, and of such a balance as to admit of no new balances in reference to the partnership transactions, and free from claims and adjustments, making the balance so ascertained a final balance of an account stated: Williams v. Henshaw, 11 Pickering, 81; Killam ®. Preston, 4 W. & S., Í4.
    And then there must be an express promise to pay, and this though the partnership has ceased to exist: Leidy ®.' Messinger, 21 P. F. S., 177.
    Balances struck preparatory to a settlement are not sufficient. They must be final, or the remedy is in equity: Burns v. Nottingham, 60 111., 531.
    Enough has been said to show that in a case like this there could be no recovery in an action at law, unless for an amount, and it remains for us now to see if this case is in such a shape that the powers of the Orphans’ Court can embrace it.
    The Orphans’ Court, as it now stands in its more enlarged jurisdiction, was established by the Acts of 29th March, 1882, § 2, P. L., p. 190, Purdon’s Digest, 1103, and by the Act of 14th April, 1834, § 52, P. L., p. 351, Purdon’s Digest, 1103, having its powers more specially defined by the 19th section of the Act of 16th June, 1836, P. L., p. 792, Purdon’s Digest, 1104, pi. 8, and by the 1st section of the Act 13th April, ‘1840, P. L., p. 319, Purdon’s Digest, 446, pi. 200. These acts declare that there shall be holden and kept in every county of this State, a court of record styled the Orphans’ Court, having all the qualities and incidents of a court of record at common la\y, and the jurisdiction of the several Orphans’ Courts shall extend to and embrace the distribution of the assets and surplusage of the estates of decedents, after the settlement of the proper amounts among the creditors and others interested, and it is made the duty of the said Court to appoint auditors on the application of any creditor, heir, legatee, or other person interested in the distribution, to make distribution to and among tbe persons entitled to the same. “ These general terms of the act, it is said, embrace creditors as well as heirs, next of kin, and legatees. The right to be heard by éach in support of his claim, and in opposition to every claimant who interferes with it, is necessarily involved in the right to demand payment out of the fund. The power to decide all questions necessary to a proper distribution of the fund follows the power of distribution, and rests in the Orphans’ Court as a necessary incident of the jurisdiction 5 Harris, 416, Xittera’s Estate; Bull’s Appeal, 12 Harris, 288 ; Dundas’s Estate, 23 P. P. tí., 474; Gochenauer’s Estate, 11 Harris, 460.
    In matters of distribution of decedents’ estates, the Orphans’ Court alone has power, and, although this Court is of limited jurisdiction, when it is once invoked its power is commensurate with its duties: Shollenberger’s Appeal, 9 Harris, 337 ; Whiteside v. Whiteside, 8 Harris, 473; Black v. Black, 10 C., 354; Mussleman’s Appeal, 15 P. E. S., 480.
    It thus appears that the powers of our Orphans’ Court are really large, and comprehend a remedy for very many and various subjects of dispute in the settlement and distribution of estates. Yet, with all these powers directly conferred and inferred by the construction put upon the acts of Assembly that the essentials for making distribution must follow the power contemplated, we fail to find anywhere that the Courts have assumed in the settlement of one estate to settle another estate.
    It seems to us that the separate estate of a firm, with its a-’sefs and liabilities, is just as much an independent estate as the estate of any individual. A firm is usually a partnership of individuals, who join together their capital for purposes of trade and manufacture to be used and carried on by a common management. All the parties entering in the enterprise must usually either contribute money, material, labor or skill for the conduct of the business. All that is contributed is liable for the debts or losses in the first instances, and, in case of the success of the joint adventure, • then they may share in the profits. If all the liabilities of the concern are satisfied, and when all the assets are collected, then the partners can make final settlement with the firm, and each may then draw from what is left. Before that, no one has anything to get from such firm but by common consent, and he becomes chargeable to the firm for what he thus gets. If the members have not contributed equally from their means, or ifithe said members have drawn in unequal amounts from the said firm, the members cannot claim to equalize the inequality directly from each other. Before anything in this way can be done, there must be an adjustment and settlement of the partnership matters — as we, for the purposes of this case, call it — a settlement of the estate of the firm. And just here is where the difficulty, raised by this exception, comes into its greatest pinch. For, although as we have seen the claims of partners inter sese caiinot be collected from each other by an ordinary suit at law until a balance is fixed, and that for this purpose bills in equity are preferred, and we have also ascertained that the jurisdiction of the Orphans’ Court has large and various powers for aiding in the distribution of a decedent’s estate, we are still driven to the conclusion that in order' to make settlement and distribution of one estate, it cannot, by its equitable powers, reach over into another estate, and make settlement of that estate so as to settle the accounts of a partnership firm and adjust rights and liabilities of partners inter sese.

    In order -to entitle the estate of John L. Hoffman to have distribution out of the estate of William H. Hoffman, it is first necessary to establish and fix the claim of the former. This cannot be done until the partnership is settled and adjusted. The debts must be paid, the assets of the firm must be ascertained, the profits and losses must be balanced. Until all these things are done, it is not known how the firm stood. The auditor does not say he did this, and until it is shown that this was done, no one can say what the indebtedness of William to John was. All that the auditor says .about it is that he finds the balance due with interest to be $7498.13, without presenting an account of the dealings of the firm ; without finding that all firm-debts were paid ; without finding what assets were left of the firm ; without finding what each of the members of the firm had put in or drawn out; without stating whether there was profit or loss in the business. All these are certainly matters of great importance, to be ascertained before the auditor could come to any satisfactory conclusion in ascertaining a final and fixed balance due from one partner to his fellow-partner. In our estimation, the auditor attempted too much, and we could not sustain this part of his report. We think that this part of his report went beyond the powers of his appointment, and beyond the powers and jurisdiction of the Court, which appointed him, and which, in this particular, could not assume a concurrent jurisdiction of an action of an account-render or a bill in equity, with the Court of Common Pleas. The burden of settling such an account should also not be put upon the estate of any one of the partners of a firm, but it should be borne by the firm itself before the true balance for or against any one of such partners can be properly and finally determined.
    The assignees then appealed, assigning as error, inter alia, that the Court erred in sustaining the exception.

      R. E. Wright tip Son, for the appellant.
    The Act of April 13th, 1840, giving to the Orphans’ Court power to appoint auditors, gives it jurisdiction to hear and determine every claim against the fund. Though the amount of a partnership account be not ascertained, it is just as much a debt of the decedent as any other: Dundas’s Appeal, 23 P. E. Smith, 481'; Whiteside v. Whiteside, 8 Harris, 473 ; Kittera’s Estate, 5 Harris, 422; Bull’s Appeal, 12 Harris, 288 ; Shollenberger’s Appeal, 9 Harris, 337 ; Black v. Black, 10 Casey, 354; Ashford v. Ewing, 1 Casey, 213 ; Mussleman’s Appeal, 15 P. E. Smith, 480 ; Otterson v. Gallagher, 6 W. N. C., 555.
    The appellee had no standing to except to the distribution.
    An administrator or trustee, being a mere stakeholder, cannot appeal on questions of distribution, even though he be a creditor, unless he appeals asa creditor: Stineman’s Appeal, 10 Casey, 394 ; Mellon’s Appeal, 8 Casey, 121; Gallagher’s Appeal, 8 Norris, 29 ; Singmaster’s Appeal, 6 Weekly Notes, 14; Craig’s Appeal, 2 Wright, 330.

      Edward Harvey, for the appellees.
    The cases cited by the appellants have no bearing. It is assumed that the claimant here is a creditor, which is the very matter in dispute. • Until the balance is found, there is no relation of debtor and creditor between the partners. Even if the firm is, in fact, indebted to a partner his only right against the other is that of compelling an account.
    One partner cannot maintain assumpsit against the other for the proceeds of a partnership adventure, unless they have settled their accounts, and struck a balance: Ozeas v. Johnson, 4 D., 434; Patton v. Ash, 7 S. & R., 116 ; McEadden v. Hunt, 5 W. & S., 468.
    It is not gnough that a balance may be deduced from the books of a firm: Andrews v. Allen, 9 S. & R., 241; Carlile®. Weber, 2 W. N. C., 506.
    A partner cannot sue another for his share while their partnership accounts are unsettled: Dewit v. Stamford, 1 Root, 270 ; Murray v. Bogert, 14 Johns., 318 ; Robinson v. Green, 5 Harr., 115 ; Ives v. Miller, 19 Barb., 196 ; Killarn v. Preston, 4 W. & S., 14; Eerguson’s Admrs. v. Wright’s Admrs., 11 P. E. Smith, 258.
    Partnership accounts must be settled in a proceeding by account-render or bill in equity; until there has been a settlement of partnership accounts, assumpsit will not lie for advances, unless there has been an express promise to pay. This rule applies whether the property of the partnership has ceased to exist or not: Leidy v. Messinger, 21 P. F. Smith, 177.
    The position taken by us is that the relation of debtor and creditor does not exist between partners until a settlement is made and balance struck. Before that is done, the liability of each partner is to account and not to pay: Ferguson’s Admrs. v. Wright’s Admrs., 11 P. F. Smith, 262; Singizer’s Appeal, 4 Casey, 524 ; Brown’s Appeal, 8 Norris, 142; Knerr v. Hoffman, 15 P. F. Smith, 126.
    Although it is true that an administrator is not “ a party aggrieved ” by an order of distribution, he is, nevertheless, a trustee for the parties beneficially interested, and as such represents those who may be aggrieved: Koch’s Estate, 4 Kawle, 268.
    It has been held that they may appeal from the valuation for collateral inheritance tax on the personal estate of a decedent: Comm v. Coleman’s Admrs., 2 P. F. Smith, 468.
    The cases cited by the appellants have no bearing on the question presented in this record. We have not appealed. We do not dispute the distribution ordered by the Court below. As administrators, we appeared in that Court and excepted to certain findings. When we did this, there was no objection made to our right to do so. The Court then corrected the errors complained of, and it is only the correctness of the decree, and not the mode in which it was reached, that is now the subject of review.
    March 20th, 1882.
   — Per Curiam :

We affirm this decree upon the opinion of the learned judge in the Court below.

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


source: Caselaw Access Project

author: — Per Curiam:

license: Public Domain

text:
    January Term, 1881,
    No. 149.
    March 6th, 1882.
    Appeal of Paul Faust.
    1. Where a dining-room and kitchen were erected as an addition to a house, and a door and window opened from the old structure into the new, a mechanics’ lien, filed under the Act of May 1st, 1861, P. L., 550, need not be confined to the new structure.
    2. The fact that the words “L or wing” are used in the lien instead of the word “ addition,” contained in the act of Assembly, does not invalidate the lien.

      3. A lien filed under this act, for materials furnished “ for and about the erection, construction, alterations, and repairs of the said building/' may be valid, though the evidence shows that they were mainly used in building an “ addition ” to the house.
    Before Sharswood, C.J.; Mercur, Gordon, Paxson, Trunicey, Sterrett, and Green, JJ.
    Appeal of Paul Faust from the decree of the Court of Common Pleas of Lehigh County, confirming the report of an auditor appointed to make distribution of the fund in court arising from a sheriff’s sale of real estate.
    The fund in court, amounting to $492.87, arose from the sale of the real estate of Joseph Hunter, and James B. Deshler was appointed commissioner to make distribution. Erom his report and the testimony taken before him the following facts appeared:
    January 11th, 1877, Ferdinand W. Wint, Owen W. Eatzinger, and James P. Wint, trading as E. W. Wint & Co., filed a mechanics’ lien, No. 3475, for $222.11; and February 2d, 1877, Charles Corwin and Henry B. Corwin, trading as Charles Corwin & Bro., filed a lien, No. 3481, for $69.77, against Joseph Hunter, owner and contractor. These liens were identical in form, and were entered “ against all that certain two-story brick dwelling house, with one-half a story for garret, more fully described, as follows: The main building, 20 feet front on Second Street, and in depth 30 feet 6 inches, and an addition, used as a dining-room and kitchen, also two stories high, 20 feet wide and 35 feet 2 inches deep; also, this building, however, consists of the one-half a block of two dwelling-houses; the adjoining house in said block is owned by Chai’les W. Chapman. This lien being filed in accordance with the acts of Assembly in such case made and provided, but more particularly in accordance with act of Assembly, approved April 4th, 1870, relating to Lehigh County, granting the right of filing liens for alterations and repairs, the said materials furnished being more particularly to the building, alterations and repairs of the ‘ L ’ or wing, more fully and particularly described as follows: It adjoins the main building, and has a depth of 35 feet 2 inches, and a width of 20 feet, and is two stories high, with tin roof. On the southeasterly side, nearest the main building, is a porch, two stories high, inclosed in front, which is 17 feet 7 inches in length, about 6 feet in width; and on lower side, nearest the back end, is a bay-window, two stories high, and about 11 X 4t2 feet. The other side of this wing is bounded by wing of Charles W. Chapman’s house. On the rear end of said wing, next to said Chapman’s line, is a water-closet, 4J X 41- feet, and two stories high. The whole building, including the wing, is 20 feet front by 65 feet 8 inches in depth, situate on a lot or piece of ground in said borough of Catasauqua (describing it), and the lot or piece of ground and curtilage appurtenant to said building. The said sum of . . . being a debt contracted for materials and work done and furnished by the said . . . within six months, for and about the erection, construction, alterations, and repairs of the said building, of which the said Joseph Hunter was or is the owner or reputed owner, architect, contractor, and ' builder thereof; . . . and the said . . . claim to have a lien for the aforesaid sum ... on the said building and lot or piece of ground and curtilage appurtenant thereto, from the commencement of said alterations and repairs, according to the acts of Assembly in such case made and provided.”
    Wint & Co. also filed a mechanics’ lien, No. 3474, January 11th, 1877, for $49.09, against Hunter, owner or reputed owner, “ against all that certain ice-house, with slate roof, situate on an alley, between Second and Third streets, and Bridge and Pine streets, in the borough of Catasauqua, in the county of Lehigh; said building having a front of 18 feet and 11 feet in width, and one story high, covered with slate roof, and is situate on a lot or piece of ground in the said borough of Catasauqua, bounded and described as follows (describing the same lot). The said sum of $49.09 being a debt contracted for materials furnished by the said F. W. Wint & Co., within six months last past, for and about the erection and construction of the said ice-house, of which Joseph Hunter was or is the owner or reputed owner, and the architect, constructor, and builder thereof, at whose instance and request the said materials and work were done, furnished, and delivered, as aforesaid; and the said F. W. Wint & Co. claim to have a lien for the aforesaid sum of $49.09 on the said building and lot of ground and curtilage appurtenant thereto, from the commencement of said construction, according to the acts of Assembly made and provided.”
    No alterations or repairs were made to the old or main building except such as were incidental to the addition or L building, consisting of a door and window from the old into the new.
    December 15th, 1876, Paul Faust entered up a judgment against Hunter for $4000.

      F. W. Wint testified, inter alia :

    “ The main part of the lumber furnished by us was used for building this addition. I can’t say what repair was made at the old house. The old building was left standing, and- this addition was put to it, and no repairs were made to the old building except such as were necessary by reason of putting this addition.”

      Charles Corwin testified, inter alia:

    “ These goods were not for the main house, but for the wing or addition, described in the lien.”
    Counsel for Faust objected to the liens, Nos. 3475 and 3481, because they did not specify the amount of material furnished for repairs, nor the amount for alteration, as the act requires, and because the testimony shows that the greater part of the lumber and material was furnished for the erection and construction of an addition.
    The auditor reported, inter alia :

    “The Act of May 1st, 1861, allowed mechanics’ liens to be filed for alterations, repair, or addition to any house, etc. This act was extended to Lehigh County by Act of April 4th, 1870.
    “ The Supreme Court has said in MeClintock et al. v. Rush, 13 P. F. Smith, 203, that it is not necessary that the description in a mechanics’ lien should be either full or precise. Certainty to a common intent is the rule, as a lien in á case of this kind attaches to the whole building, and so much of the ground of the owner adjoining as is necessary for the use and enjoyment of the building for the purpose for which it was designed. The liens in question fully describe the L or wing, which is the addition or new building. There can be no difficulty in determining what building is meant. The fact that the word L or wing is used instead of the word contained in the act (addition) does not invalidate the lien. Tour commissioner, in allowing the lien, does so with the knowledge that the Supreme Court has held, in "Wharton v. Douglas, that where work is done on or about the erection of an addition to an old building, the lien, to be valid, must be filed expressly against the new building, and describe it. We think this has been done in this case. True, the whole building is also described. That cannot matter; in fact, it is necessary to describe the old building in order to give a proper description of the new portion. And that is done in the lien under discussion. It describes the old building, to which the new is joined, but says the lien is more particularly against the L or wing. In the case of Harman v. Cummings and Wife, 7 Wright, 322, Lowrie, J., says: ‘In strict propriety, the claim ought not to have averred that the work was done in the erection of the whole house, but only the new part. But we do not now see that this is material, for only the work pertaining to the new wing, and that which connects it with the old building can be allowed a lien, though the lien when established will extend to the whole.’
    “The lien, No. 3474, against the ice-house, is objected to because not valid, and because it is filed against the ice-house, which was a part and one of the buildings on a lot of ground owned by J. Hunter; that the lien does not contain in its description any space of ground appurtenant thereto; that the ground it is built upon-was part of the curtilage of the main building or erection on said lot, as appears by inspection of the lien. It is described as fronting upon an alley 18 feet front and 11 feet wide, with a lot of ground fully described in the lien, said building being one story high, slate roof. The objections to the liens are not sustained, and the three liens are allowed and paid in full, as per annexed statement, and the balance to the Faust judgment.”
    Faust filed six exceptions to this distribution, which the Court below, Albright, P. J., dismissed, confirming the report in the following opinion:
    “ The distribution made by the auditor is confirmed upon his opinion. The conclusion arrived at is not contrary to the decision in Wharton v. Douglas, 37 Leg. Intel., 494, ■ which has been referred to. There the lien was against a large rolling-mill and a boiler-house, for materials furnished ‘ in and about the construction of said building.’ The evidence showed that the materials were for the erection of the boiler-house only. It was about 30 feet from the mill proper, upon a lot of ground purchased many years after the mill had been erected and in operation, and was connected with the latter only by steam-pipes running overhead., (Before the erection of the boiler-house the boilers had been in the mill proper, under the same roof, with the engines and machinery.) Hei’e, however, there was attached a dining-room and kitchen at the rear end of and against a dwelling-house, built upon a 40-feet-wide town lot, bounded on both sides by lots owned' by other parties. The new and old structures were connected by doors, and together constitute one house. To say that in a case like this the claim must be confined to the new portion, is in effect denying any practical benefits under the Act of 1861, so far as additions are concerned, and in many cases would be almost equivalent to a destruction of the property to which the addition has been built. The right to a lien implies the right to enforce it by a sheriff’s sale of the building and curtilage. If a party having a claim for the construction of a bay-window,- a library or dining-room, or a kitchen, erected against and necessarily connected with a dwelling-house, could sell that off at sheriff’s sale, it would be sure to bring not a tithe of what'it cost. No one would buy it for any purpose except to annoy or drive to terms the owner or lien creditor of the depreciated old building.”
    Faust then appealed, assigning that the Court erred in dismissing the exceptions.

      John Rupp, R. G. Hamersley, and Thomas B. Metzger, for -the appellant..
    The Act of May 1st, 1861, extended to Lehigh County, does not permit a mechanic to file claims for repairs, alterations, and additions all in one lien. His lien must set forth the distinctive subject-matter. The requirements of the act must be strictly complied with. He cannot file a claim for one purpose when the proof is that the materials were furnished for another kind of work. Here the materials were not for “repairs or alterations,” but for the erection and construction of an addition: Pittsburgh’s Appeal, 20 P. F. Smith, 146 ;■ Rynd v. JBakewell, 6 Norris, 460 ; Wetmore’s Appeal, 27 Pitts. L. J., 49.
    There was- no evidence submitted on the part of the claimants in the lien against the ice-house to show what the proportionate value of this ice-house was compared with the value of the main building, nor did the claimants make any attempt before or after the sheriff’s sale, under the Act of June 16th, 1836, to have a curtilage set out by metes and bounds necessary to the use and enjoyment of tire ice-house. The ice-house being built on the same lot or curtilage on which the main building is erected, the claimants must, by competent testimony, show its proportionate value to the whole. There was no attempt of this kind made by them.

      Winslow Wood and John I). Stiles Son, for the appellees.
    The defence is purely technical. There is nothing in the acts themselves forbidding liens of this character, and there are no decisions laying down the rule stated by appellant: Harman v. Cummings, 7 Wright, 322; Nelson v. Campbell, 4 Casey, 156; Lightfoot v. Krug, 11 Casey, 348; Pretz’s Appeal, 11 Casey, 349.
    To require separate liens for an addition, for alterations and for repairs, would lead to multiplicity of suits, and is practically impossible.
    The fact that the word “L” is used instead of the word “addition” does not invalidate the lien: McClintock v. Rush, 13 P. F. Smith, 203.

      March 20th, 1882.
   — Per Curiam:

We affirm this decree upon the opinion of the learned judge of the Court below.

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


author: Sterrett, J.

text:
    July Term, 1882,
    No. 84.
    March 8th, 1882.
    Henninger versus Woodring.
    1. Upon a certiorari to the judgment of an alderman, the transcript showed a cause of action within the jurisdiction, process regularly issued and served, the appearance of tiie parties, the examination of witnesses, the entry of judgment on the same, day, that no appeal was taken, and that the certiorari was issued eight months afterward. It also contained the following unsigned entry, “ February 10,1880, I acknowledge to have received full satisfaction.”
    It appeared from depositions that after the testimony was taken, and before the decision, counsel for defendant proposed to the counsel for plaintiff; in the presence of the plaintiff, to compromise the suit by the surrender of the note in dispute within ten days or a fortnight, which offer was accepted. Notice of the judgment was given to the defendant the day of its entry. The counsel for defendant subsequently surrendered the note to the counsel for plaintiff and paid him the costs and fees, and the latter promised to satisfy the judgment. The unsigned entry on the docket was made at his instance.

      Held, that there was no ground upon which to base a charge of improper conduct or fraud against the alderman, and that the judgment was properly affirmed.
    2. Qucere as to whether a wrikof error lay in such a case, and whether the parol testimony was properly before the court for consideration.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterreit, and Green, JJ.
    • Error to the Court of Common Pleas of Lehigh County.

    Certiorari, issued September 8th, 1880, to the judgment of an alderman, W. L. Jones, in an action of trover and conversion brought by H. J. Woodring against Josiah Henninger.
    The transcript of the alderman was as follows:
    “Trover and conversion. Capias issued January 10th, 1880. Daniel Weaver, constable.
    January 12th, defendant brought up. Plaintiff also appears and claims $300 damages in trover and conversion, for the retaining by defendant of a certain promissory note, drawn to the order of Moses Heberle., by Dr. Samuel Guth, of the sum and value of $300, which said note is the property of and belongs to the plaintiff; which said promissory note the defendant has converted to his own use, and which the defendant refuseth to return to the plaintiff, although requested. Plaintiff’ sworn. W. P. Snyder sworn on behalf of the plaintiff. Defendant sworn, and after hearing the full proofs of the parties on oath and their allegations, judgment publicly in favor of the plaintiff and against the defendant for three hundred dollars and costs of suit. Execution issued February 3d, 1880. D. Weaver, Constable. Returnable February 23d, 1880. Execution returned by order of plaintiff’s attorney, Februai’y 6th, 1880. February 10th, 1880, I acknowledge to have received full satisfaction for the above judgment. Alias execution issued August 30th, 1880. Daniel "Weaver, Constable. Returnable September 19th, 1880. Certiorari received from the Court of Common Pleas, September 8th, A.D. ’80.”
    Depositions were taken on behalf of the defendant Henninger, under objection as to their competency and relevancy.

      Thomas B. Metzger testified in substance: I was attorney for the defendant, and at about the hour fixed for the hearing appeared at Mr. Jones’s office with the defendant, and there met William P. Snyder, Robert Hausman, and Henry J. Woodring. Mr. Snyder then testified that as attorney in fact for Moses Heberle he had transferred the note in suit to Woodring, subject to its indorsement over by Heberle to Henninger as collateral security for a claim, and that his power of attorney had been lost or mislaid, but was recorded. I then, in the presence of these parties, said, “ If Snyder’s power of attorney is recorded we will soon make an end of this;” to which the alderman responded, “ Oh yes. I knew if you got together and talked the matter over, you could come to some understanding.” I proposed to Mr. Snyder that he and I proceed to my office, and arrange the matter. I handed him two of the notes held by Henninger as collateral security. We agreed that the Guth note should be handed to him by me after the lapse of ten days or a fortnight. February 10th, 1880, I received notice of an execution. The alderman informed me that he had been requested by Robert Hausman to enter judgment at noon of the day when we had met. I saw Mr. Snyder, who said he would remedy it; that it was all wrong. I saw Mr. Hausman, and after some conversation said, “ I’ll give you the note as I had promised, and you go and enter satisfaction on this judgment.” I think the costs amounted to six dollars and something, which I paid him, at the same time handing him the Guth note. I paid him his fees of twenty dollars, and he left me with the promise that he would pay over the costs and satisfy the judgment. I heard nothing more about it until this second execution was issued. The hearing was not completed when Mr. Snyder and I left the alderman’s office. What I said, in relation to the compromise of the case in the alderman’s office, was said in the hearing and presence of Woodring. He took part in the conversation.

      William P. Snyder testified in substance:
    The suit was brought on the $300 note, the maker of which was Samuel Guth. There had been a payment of $100 on account before its assignment to Woodring. Mr. Metzger, in the presence and hearing of Woodring, made an offer of compromise. Neither Mr. Metzger nor his client on the day of suit was willing to deliver the notes. Mr. Metzger suggested to Woodring, whether if, within a reasonable time, he should deliver the notes to Mr. Hausman, that would settle the suit before the alderman. Woodring said, “ Yes, sir.”

      William L. Jones, the alderman, testified in substance:
    I gave Henninger notice of the entry of the judgment the same day it was entered, only a few minutes after it had been entered. When I heard the case, as near as I can recollect, I gave notice that the decision would be rendered right after dinner. I recollect nothing that was said about settling the matter. I did not say to Mr. Metzger that the judgment had been entered at the instance of Mr. Hausman. I think I entered, “ February 10th, 1880, I acknowledge to have received full satisfaction ” at the instance of Mr. Hausman.
    The defendant then filed exceptions: 1st. That the judgment was obtained by fraud; 2d. That there should be satisfaction entered on the judgment; and seven others, raising questions of fact. He also filed additional exceptions :
    1. The record of the alderman shows that on February 3d, 1880, execution was issued on the judgment, which on February 6th, 1880, was marked: “ Keturned by order of plaintiff’s attorney.”
    2. The record shows an acknowledgment of full satisfaction of the above judgment on February 10th, 1880.
    3. An alias execution was issued August 30th, 1880, after an acknowledgment of satisfaction in full of the judgment, and payment of costs by defendant.
    The Court, Albright, P. J., filed the following opinion :
    “ From the depositions and from what was said at the argument, it is apparent that if Mr. Henninger is required to pay this judgment, a gross wrong will have been committed.
    “ To set aside the execution, if the power to do so existed, would do the defendant no good (Mr. Henninger was defendant before the alderman). If the judgment must stand, another execution would be the consequence. The law provides, that no execution isued by a justice shall be set aside for informality, if it shall appear on the face of the same that it was issued in the name of the Commonwealth for the sum for which judgment had been entered, that a day has been mentioned for the return thereof, and that the cause of action was cognizable before a justice. (See Act of 1810, section 22d.) Under the Act of 1879, the justice had jurisdiction. None of the irregularities mentioned exists. The Court therefore cannot set aside the execution. Can the judgment be reversed ?
    “The21st section of the Act of 1810 says,that no judgment of a justice shall be set aside in pursuance of a writ of certiorari, unless the same be issued within twenty days after judgment was entered. It has been decided, that where the party complaining makes it appear that there was no jurisdiction, or that the summons was not served, and that he did not appear, the certiorari may be taken within twenty days from the time the party learns that a judgment had been entered against him. Here there was jurisdiction, and both a service and an appearance. If for any of the matters complained of the Court could relieve, the certiorari would be too late. The judgment was entered January 10th, 188(^; the certiorari was issued September 8th, 1880. The aider-man swears that he told the defendant, the day when judgment was entered, that he had entered it. Defendant’s counsel has testified that he learned of the first execution about the 10th of February, 1880. On certiorari the Court has only the power to affirm the justice’s judgment; the justice’s judgment cannot be corrected, nor can it be reversed for matters subsequent to the judgment: Pool v. Morgan, 10 W., 58. In that case the Court below erroneously awarded an issue to try the question whether there had been a payment in whole or in part.
    “That a gross outrage has been committed is only too apparent. The Court regrets that the law has not given it the power in this proceeding to relieve the victim, Iwtr. Henninger. We can only express the hope that he will be able, without serious loss, to extricate himself from the perplexing situation he is now in.
    “ Now, June 17th, 1881, the judgments and proceedings are affirmed.”
    Defendant then took out a writ of error, assigning nine errors, in substance: that the Court erred in affirming the judgment and proceedings before the alderman, in not setting aside the execution, and in mot sustaining the exceptions.

      John Rupp, for plaintiff in error.
    The judgment is re viewable in error.

      The last proviso to section 22 of the Act of March 20th, 1810, which says: “ Judgment of the Court of Common Pleas shall be final on all proceedings removed as aforesaid, by the said Court, and no writ of error shall issue thereon,” does not apply where the proceedings are not under that Act: Commonwealth v. Burkhart, 11 Harris, 521 ; Zimmerly v. Commissioners, 1 Casey, 134 ; Clark v. Yeat, 4 Binney, 185; Buckmy er v. Dubbs, 5 Binney, 29 ; Carpenter’s Case, 2 H., 486.
    The proviso to the 21st section of that act, which requires that a certiorari must issue within twenty days after judgment, is also confined to cases arising under that act: Cooke v. Reinhart, 1 Rawle, 321; Welker v. Welker, 3 P. & W., 24; Young’s Petition, 9 Barr, 215; Caughey v. The Mayor, 12 S. & R., 53; Graver v. Fehr, 8 Norris, 460.
    Where a judgment is obtained by fraud, it will be reversed on certiorari, though the "writ was not issued within the twenty days : Lacock v. White, 7 IL, 495.
    Parol testimony is admissible, where fraud on the part of the justice is alleged: Dunbar v. Jones, 1 Ash, 215; McMullen v. Orr, 28 Leg. Int., 45; Commissioners v, Fickinger, 1 P. F. Smith, 48 ; Buckmyer v. Dubs, 5 Binney, 29.
    • Parol evidence as to what occurred before the justice is admissible: Fisher v. Nyce, 10 P. F. Smith, 107; Lacock v. White, 7 H., 495.
    A gross outrage has been committed. The entering of the judgment was a fraud, and the judgment is void.

      A. B. Longaker, for defendant in error.
    The 4th section of the Act of 1814, which provides that every proceeding shall close under the Act of 1810, settles that, the judgment in certiorari is conclusive, and no writ of error lies: Borland v. Ealy, 7 Wright, 114.
    Assuming that the writ is maintainable, nothing is reviewable but the record : Lower Augusta v. Selinsgrove, 14 P. F. Smith, 166 ; Fisher ¶. Nyce, 10 P. F. Smith, 107 ; Aurentz v. Porter, 12 Wright, 335.
    Upon the facts of this case, there is no ground for reversal.
    No fraud is imputed to the justice, and that which is imputed to the alleged attorney of Woodring cannot affect the judgment: Campbell v. Penn District, 6 Phila., 270; Brook-field v. Hill, 1 Phila., 439; Dailey v. Bartholomew, 1 Ash., 135; Heft v. Hammill, 1 Phila., 394; Commissioners v. Fickinger, 51 Penna. State, 48.
    If Hausman had been proven to be the attorney of Wood-ring, his duties as to compromise ended after j udgment. He could take only cash in satisfaction: Chambers v. Miller, 7 Watts, 63; Bank v. Eobb, 4 Brewster, 106.
    On certiorari the Court cannot inquire whether the judgment has been paid.
    October 2d, 1882,
   The opinion of the Court was delivered by

Sterrett, J.

Eor reasons given by the learned president of the Common Pleas we think he was clearly right in affirming the judgment of the alderman. Conceding, for the sake of argument, that a writ of error lies in a case like the present, and that the testimony submitted to the Court below is properly before us for consideration, we find nothing in the record of the judgment and proceedings before the alderman, or in the testimony, to justify a reversal. The transcript contains everything that is essential to a regular and valid judgment. The cause of action as therein stated was clearly within the jurisdiction of the alderman; process was regularly issued and served; both parties appeared; witnesses on behalf of each were sworn and examined, and on the same day judgment was rendered in favor of the plaintiff. No appeal was taken, and nearly eight months elapsed before the writ of certiorari was issued. As a general rule the Court' of Common Pleas, in reviewing the judgment of a justice or alderman, will not look beyond the record of -his proceedings. To this rule, however, there are some well-recognized exceptions, but there is nothing in the present case to bring it within any of them. There is no ground on which to base a charge of improper conduct or fraud on the part of the alderman. The hearing was concluded in the forenoon, and notice having been given that the case would be decided in the afternoon, judgment was then entered in favor of the plaintiff, and on the same day notice thereof was given to defendant. These facts were clearly established by the testimony. If the defendant, relying on the promise of plaintiff’s counsel that the matter in controversy would be settled, neglected to appeal within the time allowed by law, the alderman is not in any manner responsible for the consequences.

Judgment affirmed.


text:
    January Term, 1882,
    No. 290.
    March 10th, 1882.
    Lieberman versus Hoffman.
    1. Proceedings under the Act of March 17th, 1869, P. L., 8, are to be regarded as a mere personal action.
    2. The attachment is to secure a lien, and depends upon the recovery of a final personal judgment.
    3. Brenner v. Moyer, 10 W. N. C., 565, followed.
    4. The recovery of a former judgment for the same cause of action is a bar to the proceedings, though the attachment was issued and served before the commencement of the suit in which judgment was obtained, and though the defendant in the attachment has filed no bond.
    5. The proper mode of procedure where under such an attachment there has been service upon the defendant and a garnishee, is first to establish the indebtedness of the defendant to the plaintiff, the issue between the plaintiff and the defendant being distinct and different from that between the plaintiff and the garnishee.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Lehigh County. ■

    Attachment under the Act of March 17th, 1869, by Joseph Lieberman against George W. Hoffman, defendant, and W. P. Huber, administrator of the estate of Peter Hoffman, deceased, and executor of the estate of Catharine Hoffman, deceased.
    The writ of attachment was issued and served May 24th, 1880, at which time there was in the hands of the garnishee money due to the defendant as his share of one estate $1866.34, and of the other estate $48.95. The record showed that interrogatories had been filed and had been answered by the garnishee, that judgment had been entered May 18th, 1881, in favor of plaintiff for $5096.01, but -was subsequently stricken off. No bond was filed by the defendant.
    The plea was “ former recovery.”
    Hpon the trial in the Court below before Albright, P. J., the plaintiff requested that the jury be sworn to try the issue between the plaintiff and George W. Hoffman, the defendant, as well as Walter P. Huber, garnishee.
    The Court held that the proper mode of proceeding was first to establish the indebtedness of the defendant to the plaintiff; that the issue between the plaintiff and defendant was distinct and different from that between the plaintiff and garnishee, and must be first determined, and, therefore, overruled the request of the plaintiff and directed the jury to be sworn between the plaintiff and George W. Hoffman, the defendant.
    The plaintiff excepted to this ruling.

      The defendant opened, and offered in evidence the record of a case, No. 64, of June Terra, 1880, commenced May 27th, 1880, upon which judgment was obtained December 12th, 1880, for $5012, and it was admitted at bar that the present action was founded upon the same bond as the one set forth in that case.
    The plaintiff offered in evidence what purported to be an. endowment from George W. Hoffman to Emma Hoffman, during her lifetime, and after her death to the children of George W. Hoffman, dated the 20th day of April, 1878, for the purpose of showing that Mr. Hoffman attempted to dispose of his property for fraudulent purposes, to be followed by proof that there was no consideration. .
    Objected to by defendant as incompetent and irrelevant, and as res inter alios acta, and because it is not competent or relevant proof under the pleadings in the cause.
    The Court decided that in the issue now trying, the only question was as to whether or not there was an indebtedness at the time of the bringing of this attachment, and the evidence offered having no bearing upon that question, excluded it.
    The plaintiff excepted. He then called Oscar JE. Holman, and proposed to prove by the witness that George W. Hoffman, the defendant, testified before him, that he assigned this legacy to his wife for life, and afterwards to his children, for the purpose of defrauding his creditors.
    The offer was overruled under exception.
    He then proposed to offer in evidence the auditor’s reports upon the estate of Catharine Hoffman, deceased, and Peter Hoffman, deceased, for the purpose of showing what amount of money the garnishee had in his hands distributed to George W. Hoffman.
    The offer was overruled under exception.
    He further proposed to offer in evidence the reports of the auditor, filed August 3d, 1880, also for the further purpose of showing the original fraud.
    The offer was overruled under exception.
    The Court charged the jury:
    “This is an action brought by Joseph Lieberman against George W. Hoffman, under an act of Assembly of 1869, entitled ‘An act relating to fraudulent debtors.’ In this proceeding Water P. Huber was made garnishee, and certain property was attached in his hands, as alleged by the plaintiff, under the direction of the Court. The jury have been sworn to try the issue between the plaintiff and defendant as to whether there is an indebtedness. The plaintiff has offered in evidence a bond, which shows an indebtedness. The defendant has produced evidence from which it appears that there was a recovery of judgment in this Court in another action on the same bond, and the Court is of the opinion that the recovery of judgment in that case prevents a recovery of judgment in this case, and holding these views, the Court direct you to enter a verdict in favor of the defendant.”
    January 24th, 1882. Verdict for the defendant, upon which judgment was afterward entered.
    The plaintiff then took out a writ of error, assigning as errors the refusal of the Court to permit the jury to be sworn as to the garnishee, the overruling of the offersof testimony, and the charge.

      JButz § Schwartz and J. S. Dillinger, for plaintiff in error.
    This case is distinguished from Brenner v. Moyer, 10 W. N. C., 565, because (1), the attachment issued before the suit was commenced in which judgment was obtained ; (2), the property here is incapable of manucaption; (3), no bond has been filed; (4), this suit is against two persons.
    All that the Court decided in that case was, that after a bond has been filed by defendant the suit becomes an ordinary personal action: Jackson’s Appeal, 2 Grant, 407; Insurance Co. v. Whitney, 19 Pitts. L. J., 114.
    The inference is, that until a bond is filed it is not a personal action.

      Edward Harvey, for defendant in error.
    The lien is merely interlocutory, and the issue made up on the contract sued upon is the only matter for tidal: Sharp-less v. Ziegler, 11 Norris, 469 ; Cornman’s Appeal, 9 Norris, 256 ; Gould v. Walker, 2 W. N. C., 81; Brenner v. Moyer, 10 W. N. C., 565. The last case decides this controversy.
    It is immaterial which suit is commenced first. It is the first judgment for the same cause of action which constitutes an effective defence: Duffy v. Lytle, 5 W., 132 ; Jones v. Ellison, 10 W. N. C., 205.
    The former recovery is pleadable in bar, and is conclusive evidence: Outram v. Morewood, 3 East, 356; Kilheffer v. Herr, 17 S. & R., 319; Marsh v. Pier, 4 R., 273; Darlington v. Gray, 5 Wh., 487; Gilchrist v. Bale, 8 W., 355; Corbet v. Evans, 1 Casey, 310.
    March 20th, 1882.
   — Per Curiam:

This case is ruled by Brenner v. Moyer, 10 W. N. C., 565, in which it was decided that proceedings under the Act of March 17th; 1869, Pamph. L., 8, are to be regarded as a mere personal action. The attachment is to secure a lien, and depends upon the recovery of a final personal judgment. It follows that the rulings of the learned judge in the Court below were right, and that the prior judgment for the same cause of action was a bar.

Judgment affirmed.


text:
    January Term, 1882,
    No. 309.
    March 10th, 1882.
    Roth versus Barner.
    1. A. drew a note to the order of B., beginning, “We promise to pay,” and at the end C. wrote the words, “Creditthe drawer” which he signed, and he then indorsed the note. Afterwards C., upon condition of obtaining a confession of judgment from A., for a debt owed by the latter, made an absolute and unconditional promise to A. that he would pay the note to B. Held, that B. could recover against C. in a suit on the promise in her own name.
    2. The confession of judgment, and the possible liability of C. for the note, constituted a good consideration for the promise.
    3. C. was not so far a stranger to the note that he was not pecuniarily interested in making provision for its payment.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Lehigh County.

    Assumpsit by Elevina E. Barner against Jeremiah Roth, to recover the amount of a certain promissory note for $200, drawn by Solomon R. Kline to the order of the plaintiff, for which it was alleged the defendant was liable. The note was in the following form :
    “$200. Salisbury, March 31st, 1877.
    “One year after date we promise to pay to the order of Elevina E. Barner two hundred dollars, with interest from date, without defalcation, for value received.
    “Solomon B. Kline.
    “ Credit the drawer.
    “Jeremiah Both.”
    On it were indorsed, “Jeremiah Roth,” and “March 30th, 1878, paid interest on the within note, $12.” “ March 30th, 1878, paid on this note, $40.”
    The narr contained two counts. The first set forth the making of the note, and “ by reason whereof, and by force of the statute in such case made and provided, the said Solomon R. Kline-became chargeable to pay to the said Elevina E. Barner the aforesaid sum of money, according to the tenor of the same note;” and, being so chargeable, the aforesaid Solomon R. Kline afterwards “ promised the plaintiff’ to pay it.” The second count set forth that the said sum being unpaid, “ it was then and there agreed that, in consideration that he, the said Solomon R. Kline, should then and there confess a judgment to the said Jeremiah Roth in the sum of seven thousand dollars, the said Jeremiah Roth would pay and satisfy the debt due and owing as aforesaid by Solomon R. Kline to the said Elevina E. Barner out of the proceeds realized by the said Jeremiah Roth on the judgment aforesaid, and the said Solomon R. Kline, to' wit, afterwards, on the said eleventh day of September, Anno Domini one thousand eight hundred and seventy-seven, in pursuance of the aforesaid certain discourse then and there had with Jeremiah Roth, then and there did confess, sign, seal and deliver unto the said Jeremiah Roth a judgment-note for the sum of five thousand dollars, under the agreement and with the consideration that the said Jeremiah Roth pay and satisfy the debt aforesaid due and owing by the said Solomon R. Kline to the said Elevina E. Barner, and the payment of which said debt the said Jeremiah Roth then and there upon himself did assume.”
    The plea was non-assumpsit.

    At the trial in the Court below, before Albright, P. J., Kline, for the plaintiff, testified that he had given Roth, the defendant, a mortgage; that he met him again a few weeks before the judgment for $5000 was signed, and continued: “ I said I had given him the mortgage already, and that I also had some other debts ; then he said that, if I would sign him this judgment, he wmuld see that Mrs. Barner’s note would be made all right.” In a few weeks he saw Roth again.
    “A. I said I would sign him another judgment if he would see that this note would get all right.
    “ Q. What did he say to that ?
    “ A. He agreed to it.
    “ Q. Did you then give him a judgment?
    “A. Yes,sir.
    “ Q. What did he say about the note in question ?
    “ A. He did not say anything further than that he said if I would give him another judgment he would be satisfied.
    “ Q. Did you give him a judgment then ?
    “A. Yes, sir.”
    Upon cross-examination Kline testified that he owed Roth some' money for cattle, and gave the judgment for part of what he owed him.
    “ Q. In this conversation you had with Mr. Roth, he told you he wanted a judgment ?
    “ A. Yes. sir.

      “ Q. You talked at that time about some debts that you had, did you not ?
    “A. Yes, sir.
    “ Q. And among the debts that you spoke of you spoke of Mrs. Barner’s debt ?
    “A. Yes, sir.
    “ Q. What relation is Mrs. Barner to you ?
    “A. I am a cousin to her father.
    “ Q. Then, when you speak of these debts, it was said by Mr. Roth, that if you would give him a judgment for what you owed him, he would fix it with Mrs. Barner, if you could not pay it ?
    “A, Yes, sir.

      “ Q. And that was the way it was said?
    “ A. Yes, sir.
    “ Q,. That is, that he would help you fix it if you could not ?
    “A. Yes, sir.
    “ Q,. And that was said of the other small debts of yours?
    “ A. Yes, sir.
    “ Q. And that is the way in which it was said, just as I have asked you ?
    “A. Yes, sir.
    “ Q. And this conversation took place at the time the judgment was given ?
    “A. Yes, sir.”
    Roth denied that he had promised to pay or fix Mrs. Barner’s paper, and said that the conversation was as follows :
    “I just said I would try and help him fix up some of his papers, so that he would not get into trouble at the present time, and I fixed three or four of them.”
    Counsel for defendant presented, inter alia, the following points, all of which were negatived:
    “ Fourth. It having been shown by the plaintiff that Kline owed Roth more than the amount of the judgment, and that it was given to secure the debt of Roth, and there being no proof that Roth was to pay the claim of the plaintiff out of the proceeds, the verdict must be for the defendant.
    “ Fifth. No contract has been shown in this ease that can be enforced by the plaintiff, and the verdict must be for the defendant.
    “ Sixth. The plaintiff' cannot recover on the contract declared upon, because it is not averred that the consideration of the judgment was in part the debt of the plaintiff.
    “ Seventh. There is a fatal variance between the averments in this declaration and the proof, inasmuch as the contract declared upon is that the defendant would pay and satisfy’ the debt of the plaintiff", while the proof of the plaintiff is that the contract was to pay the claim of the plaintiff, if Kline, the principal debtor, could not pay;’ consequently the verdict must be for the defendant.
    “ Eighth, Under all the evidence, the verdict must be for the defendant.”
    The Court charged the jury, inter alia:

    “The plaintiff seeks to recover against Jeremiah Roth upon this ground : It appears that on September 11th, 1877, Solomon R. Kline signed and gave to Jeremiah Roth what is commonly called a judgment note. It is a promise to pay to Jeremiah Roth $5000, with a warrant of attorney authorizing confession of judgment, and upon that instrument judgment was entered in this Court; and [it is alleged by the plaintiff that, at the time this judgment was given, Jeremiah Roth promised and agreed to pay this debt, which Solomon R. Kline owed to Mrs. Barnér, and that the judgment was signed by Mr. Kline, on condition that he promised to pay said debt, and that the promise and agreement of Roth to pay Mrs. Barner was the inducement to give the judgment. If that is proved, then I say to you that the plaintiff is entitled to recover], and if it is not proved, your verdict must be in favor of the defendant, notwithstanding the fact that Kline may owe Mrs. Barner, or that Roth’s name appears upon the note, or that Roth may have said that he would pay Mrs. Barner.
    * * * * * =K *

      “ The burden is upon the plaintiff, who makes this allegation, to establish it. If the plaintiff satisfies you from the evidence in the case, that, when the judgment was givqn, it was agreed between Solomon R. Kline and Jeremiah Roth that Roth would pay the debt of Mrs. Barner, it being the amount owing on this note in suit, and that the judgment was confessed on condition that Roth would pay this claim of Mrs. Barner, and if it is proved that there was a promise or undertaking by Roth to pay the debt of Kline, which he owed to Mrs. Barner, and that that promise or undertaking induced Kline to confess judgment, the plaintiff can recover in this suit. If the plaintiff has not satisfied you that such a contract was made, and that the judgment was given upon that condition, your verdict must be in favor of the defendant. And I say to you here that there must be an absolute promise on the part of Mr. Roth. If he merely said that he would pay the note of Mrs. Barner, in case Kline could not or would not, it would not be enough to hold him ; it would not be such an undertaking as to bind Jeremiah Roth, and if you find that that was all that was said, your verdict must be in favor of the defendant.
    “If, after considering the testimony of these two witnesses upon this important and principal point in the ease, you find it is so equally balanced that you cannot say which you are to believe, whether there was a promise or not, the plaintiff has failed to make out his case, and your verdict must be in favor of the defendant. On the other hand, if you find that Kline owed the note to Mrs. Barner, which is really not in dispute, and if you find that, when the judgment was given, it was given on condition that Roth would pay this note to Mrs. Barner, — that he undertook and promised to pay it, and that Kline was induced by that promise to give the judgment, — you may find a verdict in favor of the plaintiff for the amount of the note, with interest, less the amount paid on account of it.”
    January 20th, 1882. Verdict for the plaintiff for $196.48, upon which judgment was afterward entered.
    The defendant then took a writ of error, assigning as errors, inter alia, the answers to the above points and that part of the charge within brackets.

      Kdwari Ilarvey and Marcus G. L. Kline, for plaintiff in error.
    The plaintiff is a stranger to the consideration of the contract, and cannot maintain an action on it in her own name: Robertson v. Reed, 11 Wright, 115 ; Torrens v. Campbell, 24 P. F. Smith, 475 ; Kountz v. Holthouse, 4 Norris, 235 ; Justice v. Tallman, 5 Norris, 147 ; Wynn v. Wood, 10 W. N. C., 345; Malone v. Keener, 8 Wright, 107; Maulé v. Bucknell, 14 Wright, 52; Shoemaker v. King, 4 Wright, 107; Miller v. Long, 9 Wright, 350 ; Townsend v. Long, 27 P. F. Smith, 143; Blymire v. Boistle, 6 Watts, 182.
    There was no contract in fact shown between Kline and Roth, and certainly no such legal contract as will entitle the plaintiff' to recover.
    There is a variance between the allegations and the proof: Umbehocker v. Rassel, 2 YeateS, 339.

      Henninger and JDewalt, for defendant in error.
    The promise was by parol. Mrs. Barner was not a stranger to the consideration, for the defendant had signed and indorsed the note which she held. She was beneficially interested in the promise. It created a trust: Merriman v. Moore et al., 7 W. N. C., 426; Hind v. Holdship, 2 Watts, 104; Beers v. Robinson, 9 Barr, 229 ; Vincent v. Watson, 6 Harris, 96 ; Bellas v. Fagely, 7 Harris, 273; Torrens v. Campbell, 24 P. F. Smith, 471; Townsend v. Long, 27 P. F. Smith, 143; Kountz v. Ilolthouse, 5 W. N. C., 463 ; Justice v. Tail-man, 5 W. N. C., 90.
    October 2d, 1882.
   — The opinion of the Court was delivered by

Sterrett, J.

The testimony, in relation to the parol agreement specially declared on, was somewhat conflicting, but, being clearly proper for the consideration of the jury, it was for them to say what the parties meant, what their contract was. After referring to the testimony, the learned judge said in-substance, if the jury was satisfied from the" evidence that, when the judgment was given, it was agreed between Kline and Roth that the latter would pay the debt due to Mrs. Barner, that the promise or understanding of Roth to pay the debt induced Kline to give the judgment, and it was confessed on that condition, then the plaintiff might recover ; but, on the other hand, if the plaintiff failed to satisfy them that such was the contract and condition on which the judgment was given, their verdict must be for the defendant. He also instructed them that there must be an absolute promise on the. part of Roth. “ If he merely said he would, pay the note, in case Kline could not or would not, it would not be enough to hold him.” In view of the explicit instructions thus given, the jury must have found that the plaintiff in error, in consideration of obtaining the confession of judgment, promised absolutely and unconditionally to pay the balance due on the note, and that the judgment for $5000 was given by Kline on the faith of that promise. Any doubt that may have existed as to the essential features of the agreement was thus settled by the verdict. That there was a good consideration for the promise found by the jury can scarcely be doubted. The plaintiff in error, by obtaining the confession of judgment when he did, was placed in a better position than he occupied before. He acquired a lien on the real estate of his debtor, then in failing circumstances, which gave him an advantage over Mrs. Barner and other unsecured creditors. "While he was thus benefited by the preference acquired, she was prejudiced to the extent that her chances for the security and ultimate collection of the note were impaired. Kline was not bound to prefer him to the exclusion of Mrs. Barner, or any of his other creditors, and if, for the purpose of protecting her, he gave the judgment on condition that plaintiff in error would pay her claim, coupled with an express promise to do so, it cannot be doubted there was sufficient consideration for the promise. While the promise was not made to her, it was undoubtedly intended for her benefit. In Hird v. Holdship, 2 Watts, 104, it is said: “ A consideration is sufficient, if it arise from any act of the plaintiff", from which the defendant or a stranger derives any benefit, however small, if such act is performed by the plaintiff, with the assent, express or implied, of the defendant; or, by reason of any damage or any suspension or forbearance of the plaintiff’s right at law or in equity ; or any possibility of loss occasioned to the plaintiff by the promiseof another, although no actual benefit accrues to the party undertaking.” It is not essential that the consideration should be adequate in point of actual value, for the reason that the law does not weigh the quantum of consideration. The presumption is that plaintiff in error could not have obtained a preference whereby Mrs. Barner’s security would be lessened, if he had not assumed the payment of her claim. Again, it is worthy of notice that plaintiff in error is not merely an irregular indorser of the note described in the declaration, and which he specially promised to pay in consideration of obtaining the judgment. The note to the order of Mrs. Barner, reads: “ One year after date, we promise to pay,” etc.; and is signed by both Kline and plaintiff in error ; by the former, in the usual place at the right, and by the latter on the left, under the words “ Credit the drawer.” The declaration is not against him as maker, but the manner in which the note is signed shows he is'not a mere stranger to the debt he promised to pay.' Moreover, the note could have been regularly negotiated by Mrs. Barner, and, in the hands of her indorsee, he might have been liable on his irregular indorsement. It cannot be said, therefore, that he was so far a stranger to the note, that he was not pecuniarily interested in making provision for its payment. These features of the case are sufficient to distinguish it from those that are mainly relied on by the plaintiff in error. From what has been said, it may safely be concluded that the parol promise declared on was founded on a good and sufficient consideration, and was made for the benefit of the defendant in error. If this be so, there appears to be no valid objection to her maintaining a suit in her own name.

The assignments of error are not sustained.

Judgment affirmed,


text:
    January Term, 1881,
    No. 245.
    March 6th, 1882.
    Zimmerman versus Eckert et al.

    1. A purchaser of real estate at a sheriff’s sale made a bid of $5500, subject to liens amounting to about $12,000. The conditions of the sale were that $200 were to be paid in cash, and the remainder on or before the first day of the next term; and, on failure, the purchaser “ must pay any sum that the property may be sold for less at any other sale, ” and costs. The purchaser refused to pay the purchase-money. No demand was made upon him, and no notice was given him of a resale. Subsequently the defendant in the execution having died, the property was sold under an order of the Orphans’ Court, clear of liens, upon the conditions that ten per cent, should be paid in cash,, and the balance about three and a half months later. This sale produced $11,510. Held, in an action by the sheriff against the purchaser at the sheriff’s sale for the difference, that the plaintiff was properly nonsuited.
    2. The second sale was made upon different and less favorable terms to bidders.
    3. It was not error to withdraw from the jury the question as to whether the terms of the second sale were more onerous and burdensome.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to tbe Court of Common Pleas of Lehigh County.

    Case by Edwin Zimmerman against William H. Eckert, Walter J. Green, Charles Liehtenwallner, Edwin Kress, and Catharine Ludwig, to recover the difference between a bid alleged to have been made by the defendants for certain real estate at a sheriff’s sale, and the amount for which the property was afterward sold.
    Upon the trial in the Court below, before Albright, P. J., the following facts appeared:
    Under a venditioni exponas, upon a judgment against William Grim, issued to June Term, 1875, the real estate of Grim was offered for sale, June 4th, 1875. To this writ the sheriff’ made return:
    “ Exposed the premises within described to public sale or outcry on , 1875, and sold the same to S. A. Butz for $ , who failed to comply with the conditions of sale, and refused to pay the purchase-money, and therefore the same premises remain in my hands unsold for want of buyers, and I cannot have the money to render as commanded.”
    A rule was subsequently granted to show cause why the return should not be amended so as to read:
    “ Exposed the premises within described to public sale or outcry on June 4th, 1875, and sold the same to William H. Eckert, Walter J. Grim, Charles Liehtenwallner, Edwin Kress, and Catharine Ludwig for $5500, they being the highest and best bidders, and that the highest and best price bidden for the satire, who failed to comply with the conditions of sale, and refused to pay the purchase-money, and therefore the same remain in my hands unsold for want of buyers, and I cannot have the money to render as within commanded.”
    This rule was pending at the time of the trial', but was treated by the Court as if it had been made absolute.
    The sale was made subject to mortgages amounting to about $12,000.
    Among the conditions of the sale were the following:
    “ Second. The purchaser shall pay, as soon as the property is struck off, the sum of two hundred dollars on account of purchase-money, and sign an agreement for the payment of the remainder on or before the first day of the next term of Court.
    “ Third. Upon failure of complying with these conditions the purchaser must pay any sum that the property may be sold for less at any other sale, as well as all costs and damages arising out of such non-compliance, and other sale or sales.”
    Nothing was paid upon the bid, no demand was made upon the purchasers, and no notice was given them of a proposed resale. An alias writ was issued to November Term, 1875; but on the day fixed for the sale, Grim, the defendant in the execution, died, and the property was withdrawn. Upon petition of the administrators of Grim the Orphans’ Court, December 22d, 1875, ordered a sale of the property upon the conditions that the purchaser should pay ten per cent, in cash, and the balance upon the first of April following. The property was sold under this order for $11,510, ana the sale was confirmed. Under this sale, the lien of the mortgage was discharged, and consequently there was a difference of about $6000"between the amount realized and the bid of the defendants, to recover which difference the sheriff brought this suit.
    Upon this evidence the Court entered a judgment of non-suit, and subsequently refused to set the judgment aside, saying, inter alia :

    “ I am still of the opinion that, because the resale was upon different and more onerous conditions, the defendants cannot be held for the difference. To agree to pay at once $200, and pay $5000 on the first day of the succeeding term, while the bulk of the price remains a lien on the land created by a former owner, is one thing, while to become bound to pay down a sum exceeding $1000, and to pay exceeding $10,000 in a few months, is quite a different thing. That the latter is more onerous seems to me to be apparent from a mere statement of the case.
    “ Where there has been a change of the terms, and the conditions of the second sale are more onerous, the bidder at the first cannot be held for the difference: Paul v. Shall-cross, 2 B,., 326; Banes v. Gordon, 9 Barr, 426; Freeman v. Husband, 27 P. F. Smith, 389. The plaintiff asserts that this case falls within the ruling of Singerly v. Swain, 9 Casey, 102 ; that a change of terms made by the Court does not discharge the liability for the difference of the purchase at the first sale. That, however, was the case of an Orphans’ Court sale. The property had been twice sold, under the conditions requiring that $50 should be paid down ; at each sale Singerly had become the purchaser and failed to comply. He claimed to be a lien creditor, and claimed to retain the amount of his lien out of the purchase-money. Thereupon the Court directed that $1000 should be paid at the time of the third sale. Such change of terms by the Court, it was held, did not discharge Singerly from liability for the loss on a resale. But here it cannot be said that the terms fixed by the Orphans’ Court had any reference to the default made by the defendants at the sheriff’s sale.
    “If the creditors of Grim, or the administrators, had requested the Orphans’ Court to prescribe conditions which would not have operated to release the defendants, no doubt their request would have been granted.
    “ Entertaining these views, it is not necessary to pass upon the other matters which it is alleged stand in the way of a recovery. It seems to me, however, that the clause in the conditions that, ‘ upon failure of complying with these conditions, the purchaser must pay any sum that the property may be sold for less at any other sale, as well as all costs and damages arising out of such non-compliance and other sale or sales,’ must be construed to mean another sale made by the sheriff. I am also inclined to the opinion that a demand for performance of the contract, or some notice of an intention to hold the purchaser responsible, is necessary before proceeding to a resale. In Zantzinger v. Pole, 1 D., 419, the chief justice said that if the highest bidder was unable to pay, the sheriff might make an offer to the next highest, and that if the property was not paid for after a sale, the return should be that ‘ the premises were knocked down to A. B., for so much, and that said A. B. has not paid the purchase-money, and that therefore the premises remain unsold.’ From this Justice Huston said, in Holdship v. Doran, 2 P. & W., 16, he inferred that the Court meant a demand of the bidder must be made: how otherwise could it be ascertained that he was unable to pay ? In Gaskell v. Morris, 7 W. & S., 38, Justice Kennedy intimated a doubt whether notice was necessary; but then' a judgment against a purchaser for a loss od resale was sustained, although he had not notice of the time and place of the second sale, because it was shown that he had been notified by the sheriff to pay the purchase-money, otherwise the property would be resold at his risk: see also opinion of Judge Thayer in Girard Life Ins. Co. v. Young, 8 Phila., 16.”
    The plaintiff then took out a writ of error, assigning as error the refusal of the Court to set aside the judgment.

      John Pupp and Edward Harvey, for plaintiff in error.
    It is not necessary that there should be an actual demand made on the purchaser by the sheriff for the purchase-money before the purchaser can be held for the difference. The general rule is, that notice or demand is not necessary unless the party has stipulated for it: Vyse v. "Wakefield, 6 M. & "W., 442, affirmed in 7 M. & "W., 126; Gaskell v. Moms, 7 W. & S., 32.
    The fact that the second sale was made by an administrator instead of the sheriff, does not prejudice the right of creditors. The death of Grim ought not to prejudice them. The second sale may be any judicial sale. It is only where the terms and conditions of the second sale are more onei’ous and burdensome than at the first sale, and are of such a character as to depress the price of the property, that the purchasers at the first sale are discharged from liability: Paul v. Shallcross, 2 Rawle, 326 ; Banes et al. v. Gordon, 9 Barr, 426 ; Freeman v. Husband, 27 P. F. Smith, 389.
    The question whether the conditions at the second sale were more onerous was one of fact for the jury. Though the first sale was subject to the mortgages, they were overdue and could have been collected at any time. In the second sale, the balance of cash did not have to be paid so soon. The Court should have submitted it to the jury.
    But the terms and conditions of the second sale were prescribed by the Orphans’ Court, and the plaintiff’had nothing to do therewith. That Court has power, and it is its duty to prescribe the conditions of sale held by its officers, and that Court has the power to alter the terms of such sales, and such alteration will not discharge the liability of a defaulting bidder at a former sale: Singerly v. Swain’s Administrators, 9 Casey, 102.

      Stiles $ Son, JButz Schwartz, Thomas B. Metzger, and James 8. Biery, for defendants in error.

      The plaintiff was obliged to make demand of the purchaser to comply with his bid in order to hold him: Girard Life Ins. Co. v. Young, 8 Phila., 16; Leeds v. Seery, 2 W. N. C., 223 ; Hutchinson v. Allen, 1 W. N. C., 123; Zantzinger v. Pole, 1 Dol., 419; Holdship v. Horan, 2 P. & W., 16.
    In a proper and plain case the Court will refuse to submit the question to the jury, and will nonsuit the plaintiff: Lelar if. Holmes, 6 Harris, 281.
    “ The objection is not to the measure of damages, but to the action itself,” say the Court in Banes et al. v. Gordon, supra.

    The conditions, both at the sheriff’s sale as well as those fixed by the order of the Orphans’ Court, being in writing, and the amounts bid at the sheriff’s sale and Orphans’ Court sale, respectively, being undisputed, there was nothing for. the jury to pass upon. The conditions, therefore, and the undisputed bids at the two sales, according to the doctrine laid down in Freeman v. Husband, 27 P. F. Smith, 389, were equivalent to a written contract, without ambiguity, and written contracts of that character are always construed by the Court, and not by the jury: White v. Smith et al., 9 Casey, 186; Nelson v. Von Bonnhorst, 5 Casey, 352 ; Sergeant v. Ingersoll, 7 Barr, 347; Kline v. Gundrum, 1 Jones, 250-1; Lennig v. Kalston, 11 Harris, 137; Williams?;. Bently et al., 3 Casey, 294; Shreve et al. v. Brereton et al., 1 P. F. Smith, 175; Mathias v. Superior Iron Co., 20 P. F. Smith, 163.
    March 20th, 1882.
   — Per Curiam:

We may, perhaps, consider the return of the sheriff as having been amended according to his petition. Without such amendment the plaintiff would not have had a shadow of claim. Assuming that, we think it very clear that the second sale was made on different and Jess favorable terms to bidders, and the learned judge was therefore entirely right in entering the' nonsuit.

Judgment affirmed.


author: — Per Curiam :

text:
    January Term, 1882,
    No. 286.
    March 7th, 1882.
    Zimmerman versus Miller.
    1. The charter of a savings bank provided for the election of trustees, and that “ five of the said trustees shall form a quorum, and that the afiirmative vote of at least five shall be requisite to authorize the sale or transfer of securities.” Held, That a trustee of the bank to whom the cashier had transferred and delivered notes owned by the bank, in pursuance of an arrangement between them under which the trustee paid certain pressing debts of the bank, had no title to these notes.
    2. The same rules as to the power and authority of a cashier cannot be applied to the transactions of a savings bank as to banks of discount and circulation.
    Before Siiarswood, C. J.; Mercur, Gordon, Paxson, Trunkev, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Lehigh County.

    Replevin by Edwin Zimmerman against Daniel H. Miller, assignee of the Franklin Savings Bank, to recover possession of two promissory notes. Upon the trial in the Court below before Albri&ht, P. J., the following facts appeared:
    The Franklin Savings Bank was incorporated -by act of Assembly approved February 9th, 1870. The charter provided, inter alia :

    “ Section 4. That the persons named in the first section of this act, or any five of them, shall elect by ballot persons, either from those named in this act or others, to be first trustees of the said corporation ; no person to be considered elected unless he shall have received the affirmative vote of at least five of said corporators ; that vacancies by death, resignation or otherwise shall be filled by the board of trustees, as soon as practicable, by the affirmative vote of at least five of their number at any election held by ballot; that the said trustees shall elect, from among themselves, a president and vice- president, and shall appoint such other officers as they may deem necessaiy ; that five of the said trustees shall form a quorum; and that the affirmative vote of at least five shall be requisite to authorize the sale or transfer of securities or the appointment of any officer receiving compensation ; that the president and vice-president, or any trustees, or any officer or servant of the said corporation, shall not, directly or indirectly, borrow the funds of the said corporation, nor *any part thereof, nor use the same, nor any part thereof, in any other manner than that hereinbefore pi’ovided, except for the payment of the necessary expenses under the direction of the board of trustees; that the said trustees shall meet regularly, at least once a month, and that any trustee omitting to attend the said regular meeting for six successive months, may, by a vote of the board, be declared to have vacated his office ; that the said trustees shall have power to enact by-laws.”
    The plaintiff testified in substance, that in 1877 Jacob E. Zimmerman was cashier of the bank ; that the plaintiff’ was a director or trustee, and a depositor in the bank, which was indebted to him between nine and ten thousand dollars; that the bank was indebted to a number of people, and debts were becoming due that it could not pay ; and that at that time the bank held two notes of $2000 each, drawn by D» 0.Saylor, which were the notes in dispute.
    Plaintiff' then proposed to prove that in June, 1877, he met Jacob E. Zimmerman, the cashier of the Franklin Savings Bank, and with him made an arrangement that the two notes of David O. Saylor, which were produced by the defendant on call, were to be delivered over to the witness as his property, together with other notes and securities by the bank held, and that the witness was to pay in consideration therefor the debts of the bank to other parties due and pressing at the time; that in consequence of this arrangement the witness did so pay the sum of $4630, debts of the bank, and the notes in question, together with some other securities, were delivered over and transferred by the cashier of the bank to the witness.
    This was objected to by defendant:
    1. Because it is not shown that Jacob E. Zimmerman was a corporate officer, or an executive officer of the corporation known as the Franklin Savings Bank.
    2. Because the acts and declarations of Jacob E. Zimmerman, in the absence of affirmative proof of his relation to the corporation, were incompetent and irrelevant.
    3. Because by the charter of the Franklin Savings Bank there is no such officer as cashier, nor by the terms of the charter has any such officer any control or custody over the papers or assets of the bank.
    4. As incompetent and irrelevant.
    The Court said: “ By the charter of the bank it appears that the deposits of the bank shall be invested in stocks of this Commonwealth and of the United States, or in the stocks and bonds of any city, authorized to be issued by any act of this Commonwealth, or any stocks, bonds and mortgages, or other approved and valid securities, and that five of the trustees shall constitute a quorum, and that the affirmative vote of at least five shall be requisite to authorize the sale or transfer of securities, and that, the president, vice-president, or any trustee, or any officer or servant of the corporation, shall not directly or indirectly borrow the funds of said corporation, or any part thereof, nor use the same, nor any part thereof, nor in any other manner than that above referred to, except for the payment of the necessary expenses under the direction of the board of trustees. There is no offer to show that the cashier was authorized to make the disposition of the notes in suit, alleged to have been made in the offer, nor that the trustees afterwards ratified that arrangement, and there is by the charter no special power vested in the cashier, th.e charter, in fact, not providing for any such officer, excepting generally by providing that the trustees shall appoint such other officers as may be deemed necessary.”
    The objection was sustained, and the evidence was excluded, to which ruling plaintiff excepted.
    Plaintiff then reuewed the offer, to be followed by proof that at the time this arrangement was made, in June, 1877, suits had been brought against the Eranklin Savings Bank on some of the claims paid by the witness, and execution ■was issued; also that the notes of D. O. Saylor, produced at bar by the defendant on call, were in the possession of the witness, and that they afterwards, without the knowledge and consent of the witness, came into the possession.of the defendant, who on demand therefor made refused to deliver them up to the witness.
    The defendant objected to the offer as incompetent and irrelevant.
    The Court held: “ The question here raised is in substance ruled under the last preceding offer. It is necessary for the plaintiff' in this issue to show either general or special property, and right of possession in and to the articles claimed for, viz., the notes. The question in reality is as to whether the plaintiff, even if he at one time had the notes in possession,'had title thereto, and the Court has already decided that in its opinion the transfer by the cashier was not effective to vest the title in the plaintiff.”
    The objection was sustained and the testimony was excluded, and a bill was sealed for the plaintiff.
    January 25th, 1882. Verdict for the defendant, upon which judgment was subsequently entered.
    The plaintiff then took ■ out a writ of error, assigning as errors the overruling of the above offers, and the direction of the Court to the jury to render a verdict in favor of the defendant.

      John Rupp and G. J. Madman, for the plaintiff' in error.
    The cashier of an incorporated bank is the general executive officer to manage its concerns, and generally to transact the business of the bank. Though chosen by the board of directors, he is as much the statute agent of the bank as the.directors themselves: Bissell v. First National Bank of Franklin, 19 Smith, 415 ; Ziegler v. First National Bank of Allentown, 12 Norris, 393 ; Bank of Kentucky v. The Schuylkill Bank, 1 Parsons’ Reports, 180; Lloyd v. The Bank, 3 Harris, 172; R. R. E. v. Vandiver, 6 Wright, 365; Nippenose Man. Co. v. Stadon, 18 P. F. Smith, 256.
    It is conceded that a corporation has no powers except such as are given in the charter by plain words or by necessary implication: Commonwealth v. The Erie and Northeast R. R. Co., 3 Casey, 339; Pittsburgh and Steubenville R. R. Co. v. Allegheny County, 29 Smith, 210.
    But such charters must receive a reasonable construction. They must be so construed as not to destroy the manifest object and intent for which the corporation was created, but so as to further and subserve that object and intent: Cleveland, Painesville and Ashtabula R. R. Co. v. The City of Erie, 3 Casey, 380.
    Statutes are to be so construed as best to effectuate the intention of the legislature, though such construction seem contrary to the letter: The Commonwealth v. Fraim, 4 Harris, 163.
    Even if the cashier of the bank did not have the power to make the contract that he did make with the plaintiff, and did not have the authority to transfer these notes, and the contract was ultra vires, the bank cannot repudiate the contract and keep the notes after- receiving the benefits of the contract. The bank cannot hold the notes without repaying to the plaintiff the money paid by him for its benefit and at its special instance and request: Oil Creek and Allegheny River R. R. Co. v. Penna. Transportation Co., 2 Norris, 160.
    The familiar principle of the law of agency applies to this case, that where an agent enters into a contract for his principal, which is not within the scope of his authority, the principal may repudiate the contract altogether, but he cannot take the fruits of the contract and then refuse performance on his part: Story on Ag., § 253 ; Horter v. Silliman, 3 W. N. C., 405; Kelsey v. The National Bank of Crawford County, 19 Smith, 426.'
    The law is well settled that a principal who neglects promptly to disavow an act of his agent by which the latter has transcended his authority, makes the act his own, and the maxim which makes ratification equivalent to a precedent authority is as much predicable of a corporation as it is of ratification by any other principal, and is equally to be presumed from the absence of dissent: Bredin v. Dubarry, 14 S. & B., 27 ; Gordon v. Preston, 1 "Watts, 387.

      Edward Harvey and Thomas B. Metzger, for defendant in error.
    The bank was organized as a bank of deposit only. A bank owes its powers, as it owes its existence, to the terms of the charter: Morse on Banks, p. 35.
    Whenever the organic act restrains the manner of transferring securities or imposes an absolute or qualified restraint on alienation, it must be observed: Burton’s Appeal, 7 P. F. Smith, 218; Ardesco Oil Go v. North American Oil Co., 16 P. F. Smith, 382.
    It cannot be claimed that the cashier of this institution, merely because he is called cashier, can use and exercise all the inherent powers that belong to that officer as commercially understood. First, the Franklin Savings Bank is not a bank in the usual sense of that term, but is a depository or saving fund. Its charter provides for a board of management, whose control over the securities in which the deposits are clothed is exclusive. Their affirmative action is indispensable to a transfer of them. Second, the charter is silent as to the office of cashier. In the National Bank Act the cashier is expressly named as an officer of the association. In the Act of May 1st, 1861, P. L., 508, a cashier is provided for as an officer of banking companies organized in Pennsylvania. Where he is expressly named he is as much an officer as the director or president: Bank of Ky. v. Schuylkill Bank, 1 Pars. Eq. Cases, 240.
    We are asked, in the second place, if the bank can repudiate the contract and keep the notes. This is not the case where the act may have been ultra vires, jet the law implies a promise to pay because the consideration was received. We are trying an action of replevin, in which the plaintiff must establish ownership in himself in the notes declared upon. Do those notes belong to the plaintiff? They were not indorsed to him by any officer of the savings bank; they were not in his possession when suit was brought, but were in the possession of a voluntary assignee of the bank for the benefit of creditors; and if the notes even wmre in his possession, certainly they were not when the assignment was made. To show title he offers in evidence the charter and proposes to prove a contract in palpable violation of its provision. We do not set up the illegality; his proof shows it. By the proposed offer it does not appear that any money was paid to the bank. If the bank’s creditors were paid by the director, he became the equitable owner of their claims. They were not extinguished by payment.
    March 20th, 1882.
   — Per Curiam :

The same rules cannot be applied to the transactions of a savings bank as to banks of discount and circulation. The cashier had no authority according to the charter to transfer the securities, which must be made by an affirmative vote of at least five trustees. We entirely agree with the learned Court below, and think the instruction to the jury to find a verdict in favor of the defendant was right.

Judgment affirmed.