text:
      Court of Common Pleas, Dauphin County,

      May 29th, 1858.
    Benedict v. Hickok et al.
    A judgment cannot be taken by default when the constable does not swear that he has served the summons on-the defendant. When the latter resides out of the county, a summons, returnable five days after it is issued, is void.
   By the Court.

There are two assignments of error in this case worthy of consideration. 1. It does not appear that the service of the summons was sworn to by the constable, and the judgment is for default of appearance. 2. The summons issued on the 15th, returnable on the 20 th of March, and it is conceded that the defendant resided out of the county at the time of service.

The 6th section of the act of 1810 provides “if the defendant does not appear upon summons on the day appointed, the justice may, on due proof by oath or affirmation of the service of the summons as aforementioned, proceed to give judgment by default publicly, etc.” This proof of service is necessary to give the justice jurisdiction over the parties, and it is entirely irregular to enter judgment by default without such proof. After the jurisdiction has attached, every presumption should be made in favor of the regularity of the proceeding. No such presumption can exist until the parties are properly before the tribunal, or until a default is shown after a regular service, of which there must be due proof. The want of an affidavit of a service of the writ, and where not personally served on the party a statement of how it was done, so as to come within the provisions of the statute, has always been held fatal on a certiorari.

The 26th section of the act of July 12, 1842, provides “when the defendant resides out of the county he shall be proceeded against by summons on attachment, returnable not less than two days nor more than four days from the date thereof, which shall be served at least two days before the time of appearance.”

In the present case the justice has pursued the act of 1810, which has been changed by the law cited. This is clearly erroneous, but at first I was disposed to doubt ivhether it was an error of which the defendant could complain, as it was giving him more time to prepare for trial. But on an examination of the whole law, I am satisfied that the legislature intended the shortened time for the defendant’s benefit, as he otherwise might be detained longer from his home in order to answer the complaint, might be delayed on a journey, or precluded from making his defence in person. The change in the statute must be observed and followed, by justices; its mandate is imperative, and may not be disregarded.

The judgment is reversed on the second and third errors


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
      Court of Common Pleas, Dauphin County,

      November 15th, 1858.
    Smuller et al. v. Wilson et al.
    AVhen property has been levied upon and extended at a fixed rental, this does not prevent a subsequent lien creditor without actual notice from issuing execution; but if the property is not condemned, he must pay the costs; if it is, it can be sold. The fact that the matter was pending in court is not a sufficient notice.
   By the Court.

. This case comes before the court on a motion to confirm an inquisition and condemnation of the defendants’ real estate held under a fieri facias issued by the plaintiff. From the record it appears that numerous judgments existed against the defendants in favor of various plaintiffs, one of whom issued a fi. fa. to April Term, 1858, levied on the same real estate taken in execution on the above stated fi. fa.; the property was extended at a fixed rental, and after notice retained by the defendants under the act of 1840. The plaintiffs’ judgment had previously been entered on the records of this county, and it is assumed by the defendants that no new inquisition can lawfully be held, but that the former extent is conclusive on the plaintiffs, who must proceed to collect their debt by receiving the half yearly rental fixed by the jury, according to the method prescribed by the act of the 26th of April, 1855, which provides in substance, that in all cases of inquisition and extent. of real estate, and acceptance thereof by the defendant under the act of the 13th of October, 1840, said act shall be construed not to permit any second or other inquisition and extent, pending the first, upon any writ issued upon a judgment entered in the court of the proper county at the date of the inquisition; but the plaintiff claiming to have a lien must proceed to collect the same in the manner provided under the fourth section of the former act, to wit: by receiving the half yearly rental at the time entitled, according to the priority of the liens. The case under consideration is not one of inquisition and extent, but a condemnation of the property by the sheriff’s jury; therefore it does not come within the letter of the act. Is it within the spirit and meaning ? As the law stood prior to the act of 1855, each judgment creditor might have an inquisition held on the property of his debtor, although the same had been previously extended, as he might, at his option, take the rental after a decree of distribution on the fi. fa. of another creditor. "Where many judgments existed, and each creditor caused an inquest to be held, and numerous extensions took place, the rentals would be as variant as the opinion of different juries as to the annual value of the properly, consequently great confusion would follow in distributing the proceeds. One would take according to the rental fixed by one jury, and others at a different rate, each being bound by the inquest caused to be held by himself, or in which he had participated. The courts held that no one was bound by a proceeding unless he was a party thereto, as the law had not required notice to be given of the time and place of holding the inquisition to any but the debtor. The legislature in passing the act under consideration doubtless had in view the avoidance of the confusion incident to extensions at different rentals, and probably also desired to prevent the increase of costs; at the same time we can scarcely believe that they designed to bind creditors by the action of others without requiring notice.

The plainest dictates of natural justice forbids that any man should be affected in his interest by any judicial decision without notice, and being authorized to participate therein. We must so construe this law as to do the least possible injury and prevent injustice; and this, in our opinion, is best effected by adhering to the letter — permitting a plaintiff who never participated in the former proceeding to hold a new inquest at his peril. If the property condemns, it does not come within the inhibition of the statute, and the inquisition is lawful. If it extends it is within the letter of the act, is unlawful, and the plaintiff must pay the costs of the experiment. We are aware that this course of reasoning makes the legality of the proceeding dependent on the result of the finding; but such apparent incongruities will sometimes arise in construing imperfectly framed statutes. _ Any other construction would enable a creditor friendly to the interest of his judgment debtor, without notice to other lien creditors, by a dishonest contrivance, to have the property extended at a rental, when it should have been sold for the payment of debts, and thus delay all other creditors then having liens, whose first notice of the proceeding might be in the form of an objection on the part of the debtor, to their holding any new inquisition on his estate. The evil is illustrated by the present case. Here it is conceded that a mortgage of considerable amount was, by neglect or oversight, omitted to be laid before the inquest, which was returned confirmed, and the annual rental ordered to be distributed; and it does not appear that the present plaintiff, or any other judgment creditor had notice of the proceeding, except so far as may be inferred by the principle of Us pendens, which has been held in most cases inapplicable to Pennsylvania, being for the most part constructive notice contrary to the fact.

The law did not, however, require that the lien creditors should be notified, as it presumes that every inquest will fix a fair rental, or if the rate is too high or low the variance from a proper sum must necessarily be small, and the maxim of de minimis will apply; a new “inquest and extent” is in such cases prohibited. But when it .is shown that the property should have been condemned and the creditor entitled to sell it for the realization of his debt, it becomes to him a matter of moment. If the legislature intended to bind him in such a case, we must believe that notice to all the lien creditors of the time and place of holding the inquisition would have been prescribed, and without that they ought not to be bound by the ex parte action of the jury. By the finding of the last inquest it clearly appears that the present plaintiffs were wronged by the action of the former jury, in which they had in no wise participated, and of whose decision they had good ground to complain, if binding on them. We are of the opinion that the inquisition can be lawfully confirmed, it having condemned the estate, and therefore grant the plaintiff’s application.

Alrielcs and Fisher, for plaintiff.

Alrielcs, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      July 3d, 1858.
    Hocker v. Baskins, Executor of Woods.
    When one of two guardians has been discharged by the Orphans’ Court, the other afterwards becomes insolvent, and the person who had gone bail for both of them pays the money due by the latter to his ward, the surety cannot demand the amount paid from the discharged guardian.
   By the Court.

From the facte submitted, it appears that Homy Woods and John Strasbaugh -were appointed guardians of Timothy Kirby’s minor children on the 21st of November, 1845, and gave bond in $7000 for the faithful performance of their duty, with Peter Hocker as security. On the 27th day of April? 1846, Henry Woods presented his petition to the Orphans’ Court setting forth that no money had come into his hands belonging to their wards, and asking to be discharged from his appointment as guardian. On the same day, Peter Hocker was appointed in his stead, and directed to give security in $7000, and Wood was discharged, and ordered to deliver over to the guardian then appointed all goods, moneys, effects, and papers belonging to his said wards, if any he has.” On the 2d of May, 1846, Peter Hocker declined accepting the appointment. In August, 1846, John Seales was appointed for one of the minors. Henry Woods died ■ on February 7th, 1847. In April, 1855, John Strasburgh died insolvent, and Peter Hocker took out letters of administration on his estate, settled an account as guardian of said minors, and a balance was found due them from John Strasbaugh of $1838.07, which sum was voluntarily paid by Hocker as bail of Strasbaugh. Three questions present themselves for our consideration. First, was the payment by Hocker voluntary, or could he have been obliged to pay, if sued on the bond ? Second, did the discharge of Woods as guardian, under the circumstances, release him from all liability, or did the same stand as security for the faithful performance of Strasbaugh ? And third, if the bond remains in full force against Wood’s estate, should he be treated as principal and obliged to indemnify Hocker, or as a co-surety and bound to contribute? The first point is one of some nicety, which we are relieved from deciding, as, in our opinion, the second is decisive of the case. It may be observed in regard to the first, that if it were a private transaction, there could be no doubt as to the effect of Ilcnry Yfoocls’ discharge. The release of one obligor discharges all, cr any interference with the parties designated to perform the duties, by which one is relieved and additional burdens thrown upon the other, discharges the surety. Peter Hocker might have been perfectly willing to stand as bail for Woods and Strasbaugh, knowing that the former was responsible, honest, and careful, yet entirely unwilling to be held for Strasbaugh alone. How far the action of a court, in the exercise of its legal discretion, may have that effect, is a point by no means clear, and so far as we have been able to discover, the decisions are contradictory. It is very certain that a surety cannot be rendered responsible beyond the letter of his obligation by the action of any court.

Second. The decree of the court discharging Plenry Woods as guardian, and the appointment of Ilockcr, ordering new bail to be given in the sum of $7000, in our opinion not only releases him from performing any further duties as guardian, but absolves him from all liability for the acts of his co-guardian. It was not the intention to discharge him in part, but in whole. The court did not design to keep the promise to the ear, and break it to the hope ” of this old man, but to release him entirely, and have new bail entered in a like sum. Of course, the bail bond would stand as security for the faithful appropriation of all money which had then come into the hands of either of the guardians; but it was conceded on the argument, and made part of case stated, that they had not at that time received anything. It therefore ceased to be obligatory on Plenry Woods as to any money which Strasbaugh might receive afterwards.

If Peter Hoeker had not the means of relief against the obligation of his bond, we would feel ourselves constrained to say that Woods continued bound also. But to us it appears clear that he could have demanded as a matter of right, that he should be discharged from all future liability, and had he presented his petition to the Orphans’ Court, setting forth that the discharge of Woods increased his responsibility, and praying that he should be absolved from any future obligation, on account of the acts of Strasbaugh, the court would have been in duty bound so to decree, and require new bail to be given, or a new appointment made. Having the power thus to relieve himself, and failing to ask it, if he continued liable afterwards, it was from his own negligence, or because he volunteered his responsibility.

Plenry Woods seeing a new appointment made, and new bail ordered, had no reason to suppose that he would continue liable on his bond for the acts of others; from aught that appears, he never knew but what the new security was given. This is unlike the cases referred to in our own reports, where one administrator was held answerable on his bond for the delinquency of his co-administrator. It would have been like those cases, if Henry Woods had not been discharged, but merely ceased to act, and permitted his co-guardian to manage the estate. The case relied on in 2 Conn. Rep. 536, is entirely unlike the present, and those referred to in the 13th vol. U. S. Dig., p. 378, pl. 68 and 64, are not sustained by the cases when examined in 18 Alabama, 455, and 19 Idem, 277. When it shall be decided by our courts, that when letters of administration are granted to two persons, and they regularly settle up their accounts in the Orphans' Court, and pay over all the moneys in their hands, and one is entirely and unconditionally discharged, as administrator, that he is responsible for money afterwards received by the other administrator, I shall consider Henry Woods answerable for this debt. No such decision has yet been made, and I trust never will be. The decision on this point relieves the estate of Henry Woods from any portion of the loss, and therefore the question of contribution does not arise. Judgment is rendered in favor of the defendant on the case stated.

Affirmed by the Supreme Court. June 30th, 1859. Not reported.


text:
      Court of Common Pleas, Dauphin County,

      July 3d, 1858.
    May v. Espenshade et al.
    A man purchased land, and died, leaving a mother, brothers, and sisters of the half blood, and a widow, who "gave birth to a posthumous child, who died without issue. Held, that the mother of the first purchaser is entitled to the fee in preference to his widow; but the half-brothers and sisters inherit the fee in preference to the mother.
    In Pennsylvania, land will lineally ascend, and uncles and aunts of the half blood will inherit in preference to a mother, who is not of the blood of the first purchaser.
   By the Court.

From the case stated it appears that Frederick May was the owner by purchase of the piece of land in controversy, and died seized thereof in fee, having by will bequeathed it to his wife, the plaintiff. Subsequently the wife gave birth to a posthumous child, called Frederick May, Jr., and in consequence of his birth, the will became void. Frederick May, Jr., died in infancy, leaving to survive him his mother, the plaintiff, and grandmother on the side of his father, Catharine Espenshade, formerly May, and John May, Daniel May, and Catharine Baker, formerly May, half brothers and sisters of his father, the defendant. The question submitted is, which of these parties take the fee? There can be no doubt that the plaintiff is entitled to a life estate in the premises. The rights of the parties must depend on the proper construction of the act of April 8th, 1833, relative to the estate of intestates.

The plaintiff claims in the first place that she is entitled to the fee under the words of the 5th section of the act, which declares that in default of certain heirs therein enumerated, the real estate of the intestate “ shall go to and be vested in the father or mother, or if both be living at the time of his death, in the father or mother, for such estate as the intestate had therein,” or under the 7th section, which provides that “ in default of all persons hereinbefore described, the real and personal estate of the intestate shall descend to, and be distributed among the next of kin of such intestate.” It is manifest that none of the defendants are previously enumerated in the act, nor are they next of kin. The 9th section, however, says, “ that no person who is not of the blood of the ancestors, or other relations, from whom any real estate descended, or by whom it was given or devised to the intestate, shall, in any of the cases before mentioned, take any estate of inheritance therein, but such real estate, subject to such life estates, as may be in existence by virtue of this act, shall pass to and vest in such other persons as would be entitled to this act, if the person, not of the blood of such ancestor or other relation, had never existed, or were dead at the demise of the intestate.”

Frederick May, the elder, having acquired this land by purchase, must be taken as the perquisitor or person from whom the descent is to be computed. It is very clear that his widow (the mother of the person last dying seized) is hot of the blood of the first purchaser, and is, therefore, precluded from taking under either of the sections, they both being enumerated in the one last referred to. This principle is settled in Maffit v. Clark, 9 W. & S. 258; 1 Am. Law Register, 624; 10 Harris, 291. Besides the controlling provision already cited in the 9th section, it is questionable whether the plaintiff could claim under the 7th section for another reason; it declares the land shall descend to, and be distributed among the next of kin. To enable the mother to inherit as heir to her child, the estate must ascend.

It is not contended by the plaintiff that even if she is not entitled to inherit as heir of her son, under either of the sections already referred to, on account of not being of the blood of the first purchasers, she cannot take under the 11th section, which declares, “that in every case which may arise, not expressly provided for by this act, the real as well as the personal estate of the intestate shall pass to and be enjoyed by the next of kin of such intestate, without regard to the ancestor or other relation from whom such estate may have come.” It is very clear that Mrs. May is next of kin to her son, and will inherit this estate unless there is some relative who can take in preference to her under the 9th section, on account of being of the blood of the first purchaser. There is no one in existence so near of ldn. Catharine Espenshade contends that she is entitled in preference to the plaintiff, as she is of the blood of her son, the perquisitor. To her claim the objection is raised that it runs counter to a common-law canon of descent which declares that “inheritances shall lineally descend ad infinitum, but shall never lineally ascend.” This objection is well founded unless our acts of Assembly have in that particular changed the common law. Judge Yeates says in Ship-pen v. Izard, 1 S. & N. 226, that “in passing the acts for distributing the estates of decedents the legislature had two objects in view; to abolish the feudal principle that lands cannot lineally ascend; and that sisters shall inherit equally with their brothers,” to which he might have added, “ and also the more equal and general distribution of estates among all the heirs, in preference to bestowing the whole on the heir at common law, according to the rules of primogeniture.” These objects have heen kept still more emphatically in view by the subsequent legislation, as is manifested by the 11th section of the code which gives the estate to the 'next of kin, without taking into consideration the blood of the purchaser, rather than permit it to go exclusively to the heir at common law, or escheat to the commonwealth. The intestate law has in terms provided for inheritances lineally ascending to the father and mother. Does it by implication include still earlier ancestry? The 9th section drops the words of descent used in the 7th section, and declares that “the estate shall pass to and vest in such other persons as would be entitled by this act, if the persons not of the blood of such ancestor, or other relation has never existed, or were dead at the decease of the intestate.” We believe that the framers of the code intended that on the failure of issue, or other enumerated heirs, the estate should ascend in a direct line to a grandfather rather than to the brothers and sisters or more remote kindred of such grandfather, who can only claim through him, yet ask to take during his lifetime. The legislature seems strenuously to have kept in view the policy of retaining real estate in the blood of the first purchaser, and in giving effect to that intention we may sometimes find ourselves obliged to pass over the father or mother of an intestate, and give the property to a more distant relative; as in the present case, prefer the grandmother to the mother; but the rule is not to be disregarded because it may operate with occasional hardship. Catharine Espenshade cannot claim the .fee simple in the estate as nearest kin to Frederick May, Jr., but she is the blood of the first purchaser, which Susan May is not, and if there were no other kindred would be entitled to take “ as if the said Susan had never existed, or were dead at the decease of the intestate.” In coming to this conclusion wc have not been without difficulty, yet in our opinion it carries into effect two of the general objects of the legislature, the retention of the estate in the blood of the first purchaser, and the abolition of the canon which prevents estates from lineally ascending, and with' that abrogated and out of the way, the grandmother is entitled to the estate in preference to the mother of the decedent. That the mother did not take the fee is clearly settled in Bevan v. Taylor, 7 S. & R. 397, a case similar to the present in many of its features. William Forbes had acquired real property by purchase, was married and died, leaving his wife and issue, one son, Nathaniel Forbes. Subsequently Nathaniel died intestate, without issue, his mother surviving him many years. Yet it was held that she took but a life estate; and on her death the property went to the next of kin ex parte paterna, although N. Forbes left nearer relatives ex parte materna. Had the fee simple ascended to the mother, her kindred would have taken by descent from her, instead of the estate passing to the more remote relatives of her deceased husband. It is true that decision was made under the acts of 1794 and 1797, but in this particular we conceive there is no essential change in the law.

For the purpose of deciding the plaintiff’s claim, the case might stop here, as kindred have been found of the blood of the first purchaser entitled to take under the 9th section of the act before reaching the status of the plaintiff, who must come in, if at all, under the 11th section. But we are asked further to decide between the relative claims of the different defendants, the mother, brothers, and sisters of the half-blood perquisitor, and also between the last-named relatives of the plaintiff. It is said that there is no provision for relatives of the half-blood, except for brothers and sisters of the intestate; and the parties here named are not half-brothers and sisters, but half-uncles and aunts, being of the half-blood of his father, the first purchaser. If they were the half-brothers and sisters of the intestate, they would take in preference to his mother, as the gift to her, by the words of the 5th section, is qualified by the 9th section, which requires her to be of the blood of the first purchaser, and also by the 6th section, which gives the estate to the half-blood, unless there is a father or mother, competent by this act to take an estate of inheritance therein.

But to me it is very clear that they are of the blood of the first purchaser within the 9th section of the act, and therefore competent to take in preference to his widow. In construing a similar statute, Judge Story, in Gardner v. Collins, 2 Peters, 87, says: “We think that the phrase ‘of the blood’ in the statute includes the half-blood. This is the natural meaning of the word ‘blood’ standing alone and unexplained by the context. A half-brother or sister is of the blood of the intestate, for each of them has some of the blood of a common parent in his or her veins. A person is with the most strict propriety of language affirmed to be of the blood of another who has any, however small a portion, of the same blood derived from a common ancestor.” Chief Justice Gibson’s opinion, in Baker v. Chalfant, 5 Wh. 477, is marked by the same course of reasoning. Although the uncles and aunts of the intestate are not named, or in the language of the act expressly enumerated in any of the preceding sections, yet they are recognized as heirs under the 9th section in Parr v. Blankhart, 10 Harris, 291, because they are of the blood of the first purchaser, whilst uncles ex parte materna of equal propinquity to the estate are rejected, because they are not of that blood; see also as to half-blood, Hart’s Appeal, 8 Barr, 32, and as to remote kindred taking, 5 Barr, 164. I, therefore, have no doubt of the right of John May, Daniel May, and Catharine Baker to take the fee in preference to Susan May. The question is, are they to be preferred to Catharine Espenshade?

Alriclcs, for plaintiff.

Mvmma, for defendant.

These parties stand in the same degree of consanguinity to Frank May, the perquisitor; they are each but one degree removed, for although only of the half-blood, yet the degree of relationship is the same. I am disposed to think that when the half-blood are called in to inherit under the 9th section of the act, as being of the blood of the first purchaser, they stand in the same right, so far as regards other kindred, as the whole blood, although they would be postponed and not share equally with the whole brothers and sisters. If the perquisitor had left such relatives who survived the intestate, there can be no doubt but that they would inherit this estate in preference to his mother or the mother of the intestate. This would conform to the whole policy of the law. In our opinion brothers and sisters of the half-blood have the same rights under that section as against the mother of the first purchaser, and that, therefore, John May, Daniel May, and Catharine Baker take the fee-simple in this estate in preference to Catharine Espenshade. In coming to this conclusion we are by no means clear of doubt, not having any guide in the decisions and the act of Assembly being obscure, but it is our best judgment. We therefore determine that the fee-simple is in John May, Daniel May, and Catharine Baker, and enter judgment in their favor, subject to the life estate of Susan May.


text:
      Court of Common Pleas, Dauphin County,

      September 7th, 1858.
    In the matter of the Mandamus to the Commissioners of Dauphin County.
    When an act of Assembly directs a road to be opened, it means that it must be graded, smoothed ofij the proper bridges erected, and made ready for travel. A mandamus will be awarded to compel this.
   By the Court.

Pursuant to section 1 of the act of February 6th, 1850, the commissioners appointed to erect the State Lunatic Hospital were directed to lay out, and cause to be opened a State road of the width of fifty feet from a point on another road in front of the hospital grounds to the Susquehanna river, by a line designated in the statute. The road was so laid out but not opened. By section 18 of the act of April 14th, 1851, the road is directed to be laid out and opened at the expense and cost of Dauphin county, and to be kept in repair by Susquehanna township, through which it passes. Under the last-named statute the county commissioners, for the time being, caused the road to be opened; but it is said and not denied, that they have never put the same in a complete state of repair, or in such a condition as to justify the proper authorities of the township in taking charge of it; and it is complained that a bridge over the canal where it is crossed by the road is not such as the law requires and is unsafe for travellers. If we were now called on to direct the road to be opened and constructed, we should say that it must be done under the superintendence of the commissioners appointed to erect the hospital, and the expenses paid out of the county treasury; but it is conceded that from the beginning the county commissioners have taken complete charge of the work and caused all to be done heretofore ; and no question is raised as to their being the proper persons to do all that the law requires to be done on this road. It is probably for the interest of the county that the men intrusted by the people with the management of their finances should attend to this expenditure. The duly of the respondents in the premises turns mainly on the meaning given to the word “ opened” as used in the statute. It means something more than to merely cut out the road where it passes through the woods,, or the removal of fences, where it traverses farms. As we understand the expression, it embraces the entire construction and complete formation of the road. When so made, it must be kept in repair by the township; but before that charge is imposed, it must be first put in repair; consequently, the grading, building bridges, levelling, etc., ready for travel must be done at the expense of the county.

The legislature has used the word “open” in the same sense in other statutes. Section 6 of the General Road Law of 1836, makes it the duty of the supervisors of adjoining townships to open and keep in repair all roads laid out on dividing lines; and we may say generally that when a road is ordered to be “ opened” by any law, it means to be fully constructed to meet the requirements of the public. It is conceded in the present case that the bridge referred to is insufficient; and it is probable that the road has not been properly graded in all its parts. It is the duty of the county commissioners to have the road put in good order j and when so done it must be kept in repair at the expense of the, township. It is the interest of Dauphin county to have, this effected at the earliest day in order to be entirely relieved of the burden.

Shunlc and Alriehs, for plaintiff.1

Lamberton,for defendant.

We have been requested to give an opinion on this preliminary application, as the county commissioners express a wish to per-, form whatever this court shall declare to be their duty, without being required so to do by a writ of mandamus. If the bridge is not constructed, and the road otherwise completed in a reasonable time, a peremptory mandamus will be awarded..


text:
      Court of Common Pleas, Dauphin County,

      December 17th, 1858.
    Ogden v. Knepler.
    When a judgment is obtained against a man who has an interest in property, either by way of executory devise or contingent or vested remainder, it is a lien upon this property, and must be preferred' to those obtained' after the party has acquired a complete title.
   By the Court.

This case comes before us. on an exception to the report of an auditor, who awarded the largest portion of the money arising from the sale of John Knepler’s property to A. O. Hiester, the oldest judgment creditor.. No objection has been made to the reports giving part of the fund to Mary E. Knepler on account of her arrears of dower due at the time of the sale. If John Knepler had such an interest in the property sold at the time A. O. Hiester’s judgment was, obtained, as was the subject of a lien, the money is properly awarded. If it must be treated as after-acquired property, the money should have been awarded to the later judgment. This question depends- on the proper construction of the will of John Knepler, Sr., deceased.

After the most careful consideration of the auditor’s report, we are of the opinion that he has correctly solved the question, and his decision is fully supported by the authorities cited. If the reversion of this estate remained in John Knepler, Sr., it descended to his heirs at law, John Knepler, Jr., and Mary Roaks, immediately on his death. No part descended to David as a reversioner, for he was otherwise provided for by the will in relation to this property; he was to have it during life, after the widow’s interest ceased, with the remainder over to his lawful issue in fee simple, if he should have issue living at the time of his death. That such a reversionary interest may be bound by a judgment in this State is decided (Amelong v. Dorneyer, 16 S. & R. 323). It was not merely the reversionary interest of John Knepler, Jr., that was sold, but as David Knepler had died without issue, after the rendition of the judgment and before the sale, the entire fee simple would have passed by a sale on Hiester’s judgment. Although it is clearly settled in Pennsylvania, ever since the decision of Colhoun v. Snider, 6 Binn. 135, that after-acquired property is not bound by a judgment previously obtained, yet we consider it equally clear that where the debtor has any interest in it when the judgment is rendered, the lien attaches to the entire title when perfected, whether by deed, devise, or descent. In several subsequent cases the binding authority of the decision referred to has been recognized. Yet the court declares that it will not carry the principle one jot beyond the case there decided (Reichter v. Snyder, 8 S. & R. 440; Carkhuff v. Anderson, 3 Binn. 4; Morrison v. Wurtz, 7 Watts, 437; Stephen’s Appeal, 8 W. & S. 186). But supposing that the auditor and this court are both in error in regard to the estate or interest of John Knepler in the house and lot at the time the earliest judgment was rendered, the next question is, what was the extent of his interest at that time, and was it the subject of a lien ? To present this question in a manner most beneficial to the junior judgment creditors, we may assume ¡that the estate passed to John either by way of executory devise or .as a contingent remainder. For if the remainder was vested, it could be levied on and sold by the sheriff beyond any question. We are disposed to think that, if not an estate in reversion or remainder as determined by the auditor, it would have to be supported as an executory devise. To make a good contingent remainder by deed there must be an estate of freehold to support it, or if upheld by an estate for years, there must be livery of seisin; for the freehold must pass out of the grantor at the same moment that it vests in the remainderman.- The estate for life is not immediately given to David, but the testator first carves out of it an estate for his widow during her widowhood, not an estate of freehold, and subject to be defeated at any time on her marrying or refusing to take, which latter was the case here. After the estate to David for life, the fee simple is given to his lawful issue, if he shall leave any living at the time of his death; and if he shall not have such issue, “then to my nearest blood. relations and their heirs and assigns,” thus limiting a fee simple upon a fee, which can only be supported by way of executory devise. The legal objection existing against this estate as an ex-ecutory devise, and not a reversion in the grantor and his heirs, is that the nearest blood relations ” are not named, and therefore we cannot tell whether they are or are not lives in being. Piad the devisor named the son John and daughter Mary and their heirs as the parties to take, I should have clearly considered it an estate in them created by way of executory devise. It is our duty to construe this an estate in remainder, if the words used and the rules of law will permit, as being a more stable and worthy estate than an executory devise, and a vested rather than a contingent remainder. But even if the estate vested in John only by way of executory devise, the most uncertain of any other character of estate, still, according to adjudicated cases, his interest could be levied on and sold, even before the death of David, and consequently after his death; according to the principles already referred to, the judgment of Hiester bound the entire estate as descended (DeHaas v. Bunn, 2 Barr, 335). There the subject is fully examined and decided. There the sale was of the interest of him to whom the estate was limited before the particular estate was spent, yet it was held to be good and to pass the title. We have no doubt that a judgment will bind the interest of one who has only a contingent remainder in land, and that the estate may be sold by the sheriff before it comes into possession. If it can, the judgment acquired at that time binds the whole title when obtained. It has been held in England, that such a contingent interest or possibility in a bankrupt passes by his assignment (3 P. W. 132). Even an executory devise is held to be transmissible, assignable, descendable, and devisable (3 Term Pep. 93 to 98). In this State a judgment binds an equitable and even an inchoate interest, provided it be an estate in land (2 Pawle, 188). A person’s interest in a contingent remainder is an estate, and is so ranked and classified by all elementary writers. It was decided at a very early period in our judicial history, that all possible titles, contingent or otherwise, in land could be sold, but it must be a real interest, and not that of an heir apparent (Humphreys v. Humphreys, 1 Y. 427). The interest of a ground landlord may be sold, although the deed contains a covenant that the tenant may redeem at any time by paying a gross sum (2 Y. 24). So a purchaser at sheriff’s sale, before payment of the money or deed acknowledged, has an incipient interest, which may be bound by a judgment (Morrison v. Wurtz, 7 Watts, 437). In Carkhuff v. Anderson (3 Binn. 4) it was held that every kind of equitable interest in land is bound by a judgment, and that was applied to a claimant whose title was declared void, but who had a right to come in and have it confirmed, which was not done by him, but by bis assignee at sheriff’s sale. So it was held that when a man had conveyed property in fee for the purpose of building a schoolhouse and church, with the condition that if the building should be used for any other purpose it should revert to the grantor, there Avas, before violation of the contract, such an interest in the grantor as Avas bound by the judgment, and the purchaser at sheriff’s sale could take advantage of the breach of conditions, and claim the reverter (McKissick v. Pickle, 4 H. 140). So where property Avas purchased at auction, and a judgment was obtained before the money was paid or deed executed, held that the judgment creditor was entitled to the money in preference to one who obtained a judgment after the deed Avas delivered (Stephen’s Appeal, 8 W. & S. 186). So where a man leased- land from another, AAÚth a condition that if he made valuable improvements, he should have the property at a valuation to be fixed afterwards, it was held that the lessee had such an interest as could be bound by a judgment (5 S. & R. 124). The principle is reiterated that every kind of equitable interest in land is bound by a judgment (Lynch v. Dearth, 2 Penna. 111). It has been held that after an assignment according to law for the benefit of creditors, the assignor has still such an equity in the land as will be bound by a judgment, as he has the possibility of its reverting on the payment of his debts (9 H. 29). The interest of a tenant by the curtesy initiate, or a tenancy in dower is bound. In short,” says Judge Rogers, “ every interest of every description in land may be sold on execution” (Thomas v. Simpson, 3 Barr, 69; 12 S. & R. 12). So the interest of the vendee of land under a verbal contract in part performed ; and the judgment will attach to the title when made, or the purchaser at sheriff’s sale may comply with the unperformed conditions and claim the deed. Therefore avc consider it very clear that the inchoate title of John Knepler Avas bound by Hiester’s judgment, and the report of the auditor aAvarding to it that sum is correct and must be confirmed.


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      Court of Common Pleas, Dauphin County,

      February 14th, 1859.
    Dauphin and Susquehanna Coal Company v. Dasher et al.
    In an action on a bond for the faithful performance of a duty, no affidavit of defence is required, as it is not a bond for the payment of money.
   By the Court.

This suit is brought on three several bonds

fiven by the defendants in certain penalties, conditioned that lasher, one of the obligors, shall perform his duty as agent and clerk of the company during specified periods, and account for, and pay over to the plaintiff, at such times as shall be determined by its treasurer, all moneys received by him as agent and clerk of the company during the year. The penalty of the bonds amount to $4000; and it is averred in the narr that he did not well and faithfully perforin his duties as clerk; but received the sum of four thousand dollars, and did not pay it over. The first question to be determined is, whether these are bonds for the payment of money within the 5 2d rule of court? If they are, it is very clear that the affidavit is entirely insufficient. It must be conceded that many obligations come within the rule of court, where extraneous matter has to be averred in the narr; and which must be taken as true, unless denied in the affidavit. An action may be supported against the drawer or indorser of a bill or note on averring demand, notice, protest, etc. So on a bond guaranteeing the payment of rent by a tenant to his landlord, on averring that he enjoyed the premises during tire term. So on a promissory note payable on demand, by averring demand; and many other cases might be cited to the same effect. But in all these cases the bond, note, or other instrument is for the payment of a certain sum. It will scarcely be pretended that a bond given to perform the duties of the office of sheriff, justice of the peace, or constable comes within the rule, although part of the condition is to pay over all moneys collected, and it is averred that they have collected and failed t'o pay over certain sums. It is not a bond for the payment of money, but for the performance of a certain condition. It has been held that a forfeited replevin bond does not come within the rule, though assigned, and an averment that it is forfeited (7 Leg. Int. 39). So of a bail-bond (2 M. 405). So of an instrument payable at a future period, the consideration of which is executory (1 M. 324). But queere cle hoc. The bonds in suit are considered mere obligations conditioned to perform certain duties as an agent, and not bonds for the payment of money. It is true one condition is that the agent shall pay over all money which he shall collect; but the affidavit would be equally necessary if the plaintiff complained that he had neglected to keep his books in good order, to start cars at the designated times, to give and receive proper bills of lading, see that a parcel was carefully forwarded, or perform any other duty devolving on the clerk or agent of a railroad or coal company. We are clearly of the opinion that no affidavit of defence was necessary in this case; and consequently no judgment can be lawfully demanded for want of a sufficient one.

McCormick, for plaintiff.

JBet'ryhill and Eckels, for defendant.


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      Court of Common Pleas, Dauphin County,

      February 21st, 1859.
    McCulla v. Opple.
    The prothonotary must be requested to tax the 'costs when the party wishes to raise the question as to their validity. The fact that the officer was directed to keep the money in his hands, and not pay it over to the opposite party is not a sufficient reason to quash the appeal.
    A judgment fee cannot be taxed on an award of arbitration that is appealed from. (Butcher v. Scott, 2 Penna. Law Journal, 287, distinguished.)
   By the Court.

The motion to quash the appeal in the above case is predicated on the fact that after the costs were paid by the appellant, his counsel notified the prothonotary not to pay over the money, on the ground that he excepted to the bill of costs. The officer was not requested to tax the costs, as should have been done if it was desired to raise a question as to their validity, but a general order was given to retain the money in his hands. This order the officer need not regard, but should have paid out the costs the same as though it had not been given. The Supreme Court in Duffie v. Black (1 Barr, 388), decide that giving such an order is no . ground for quashing an appeal because the officer should not regard it; such direction is simply void, was in contemplation of law a nullity, which could have affected the rights of (neither party.” We are of the opinion that the only method to avoid payment of an improper bill of costs is to call on the officer to tax it under the rule of court. If the appellant is satisfied with the taxation he must pay the amount in full as taxed, and should the costs be incurred on appeal, the payment of the additional costs will be enforced by attachment, but the appeal cannot be quashed. If the appellant is not satisfied with the taxation by the officer, he can take his appeal to the court, but must pay the amount taxed under the penalty of having his appeal quashed if the decision of the officer is sustained. After appealing from the taxation he may lawfully notify the- officer to retain in his hands a sufficient sum to cover the items appealed from, and that notice the prothonotary should obey; but without these preliminary steps, regularly taken, the order to retain is of no avail and should be treated as a nullity.

A question has been presented in this case said to be of some moment on account of its constant recurrence in practice. Is the judgment fee of three dollars to be taxed for the attorney on entering the appeal? We are clearly of the opinion that it is not. The award when appealed from is not a judgment, nor can it become one unless the party against whom it is made fail to appeal within the time prescribed by law. The fee is only given where judgment is rendered, or nonsuit or discontinuance obtained. The appeal is taken to prevent a judgment.’ If the fee is paid it belongs to the attorney and not to the client (4 W. & S. 52; 7 W. 186; 8 W. 156). Suppose after the appeal, on a trial in court, the verdict is rendered in favor of the opposite party, who is to refund, the attorney who received the fee, or the client? It would be scarcely fair to oblige the client who never received the money to refund, and the law gives no process against the attorney. There can be but one attorney fee lawfully taxed in one case. Therefore there can be no new fee given to opposite attorney, who gained the final and only judgment. Suppose the appellee entirely unable to pay, can the attorney be compelled to do it? The fee of one dollar and fifty cents for issuing the prsecipe for the commencement of the action cannot be taxed, as Avho shall pay that depends on the result of the suit. We may fairly infer that the legislature intended in case of appeal to place the plaintiff and defendant on an equality, yet if the fee of one dollar and fifty cents was required to be paid, it could only be the plaintiff’s attorney, as the defendant’s attorney gave no prsecipe to commence the action, therefore one dollar and fifty cents more costs would be taxed against defendant (appellant) than against the plaintiff. There is a case reported' in 2 Penna. Law Journal, p. 287, Butcher v. Scott, which has been cited, showing the right to tax the attorney fee in such cases. On examination we find the case decides nothing of the kind. It was an appeal from the taxation of a bill of costs, and the court decided that by the practice for a long time an attorney’s fee was taxable on awards.” We take it to mean on an award unappealed from, which it must be borne in mind is not a judgment, but is to have the effect of a judgment to bind real estate, or to sustain an execution, and no formal judgment need be entered after the twenty days expire. It might therefore be well questioned whether an award without judgment would carry a-fee given in the fee bill only after judgment, discontinuance, or non pros was obtained. If the case means that it could be properly taxed where an appeal was taken agreeably to law, and would have to be paid as part of the costs on appeal, it would be taxed and collected before judgment, and in cases in which the party claiming the fee might never have a judgment, and is therefore not, in our opinion, a correct exposition of the law. If that view of the case is "attempted to be supported as a general practice, we can only say that it has not-been the general practice throughout the State to tax it; on the contrary, so often as the question was brought before the courts in the western part of the State, the taxation was corrected and fee disallowed. We are of the opinion that no judgment fee can be allowed in any case until the cause is ended by judgment, discontinuance, or non pros, and therefore cannot be taxed on an award which is appealed from, but is lawfully taxable after the award has the effect of a judgment so as to support an execution.

Hawn, for plaintiff.

Iierr and Bishop, for defendant.


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      Court of Common Pleas, Dauphin County,

      March 7th, 1859.
    State Fire and Marine Insurance Company v. The Oglesby.
    An attachment execution should not be served upon the agent of a corporation, because it has funds in its possession belonging to the original debtor, unless the money is actually in the hands of such agent; it should be served upon the president, treasurer or other officer having possession of such funds.
   By the Court.

A motion has been made to set aside the service of the attachment in the case on account of irregularity. The agent of an insurance company or other corporation not being subject thereto, and the funds, if any, belonging to the defendant in the hands of the Delaware Safety Insurance Company not being bound by such service. If Mr. Buehler, as agent of the Delaware Insurance Company, has funds in his hands belonging to the defendant in the attachment, the service is good. That can only be told on his answer being put in on a scire facias issued. If it is expected by such service to find effects belongiug to the defendant in the possession of the Delaware Company, the service is insufficient, and will not have the effect desired by the plaintiff. The goods or effects of a non-resident may be attached in the hands of any person, natural or artificial, and the person in the possession of the goods or effects attached must be summoned as garnishee. If a corporation is debtor to a non-resident, who is subject to attachment, or through its officers or agents holds his goods, the service, in order to secure the debt, must be made on the proper officer of the company, the president, treasurer or other officer holding the funds; or if in the hands of an agent, he may be made garnishee. But if the agent has no corporal possession, or control, over the effects, such service is invalid. The 6th section of the act of April 8th, 1851, which provides for the service of process on the agent of a corporation, is pointing out a method of commencing suit against the corporation for its own proper debt, and not a garnishing or warning it to appear to answer for the debt of another person. The same may be said of the service prescribed by the 1st section of the act of April 17th, 1856. There is no act of Assembly, that we are aware of, which provides for serving a foreign attachment on the mere agent of a corporation, and thereby binding it to retain money in its treasury on a debt due by the institution to a non-resident debtor. We cannot set aside the service on Mr. Buehler in the present case, but should it appear that he has no funds of the defendant in his hands, or under his control, the plaintiff will take nothing by his writ, even though the insurance company, for which Mr. Buehler is agent, may owe the defendant money. Motion denied for the present; this not to prejudice the rights of any of the parties or the garnishees. ~

Kunhel and Simonton, for plaintiff.

Miller and Lawrence, for defendant.]


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      Court of Common Pleas, Dauphin County,

      May 2d, 1859.
    Ryan v. Casey.
    It is no cause for setting aside a judgment that tliere is a variance between the property described in the mortgage and the scire facias issued thereon. A sale on a levari facias by the sheriff on the Wednesday following the Monday on which the writ was returnable, is not irregular. A mortgagor may set off a judgment held by him against a mortgagee, and a general judgment may be set off against a special judgment in rem, but not vice versó.

   By the Court.

This was a motion to set aside a judgment, levari facias, etc. Also, the sheriff’s sale, and to set off a judgment held by defendant against that of plaintiff.

The defendant complains that the judgment and all process founded thereon in this case is irregular, because the scire fcuñas did not pursue the mortgage in the description of the property, and it is also erroneously described in the advertisement of the sheriff. The levari facias pursues the judgment, and the advertisement accords with the levari. The whole is, therefore, regular. We have no power to vacate or set aside the judgment on account of a variance between the property described in the mortgage and the scire facias. If the defendant believed such variance injurious to his interests, he should have set it up as a defence at the time of trial, when the scire facias could have been amended; it is too late now. Even, if the levari varied from the judgment in the particular indicated, it could be amended, and would do the defendant no possible injury if not done. The judgment is conclusive on the parties, and all the subsequent proceedings correctly follow it. The purchasers at sheriff’s sale must take all they can buy, and can get no more than the defendant owns, and a mistake in quantity will be no ground for disturbing a sale.

The sheriff advertised this property for sale on Wednesday of the court week, his writ being returnable the previous Monday. The practice had been long sanctioned in this State of selling after the return day of the writ, and such sales have been supported by the Supreme Court (2 Binn. 80; 1 S. & R. 92); and in Blythe v. Richards (10 S. & R. 265), Chief Justice Tilghman not only ratifies the previous decisions, but also says there is no substantial distinction between advertising on or before the return day and adjourning until afterwards, and advertising to sell afterwards. From that time forward we are inclined to believe that the practice has been to advertise a sale any time during the court week.

The commissioners to revise the civil code, in their report, say, that it was not their intention to change the law relative to advertising, but to pursue the act of 1705, which they have done substantially. They, however, provide in terms for selling on the fi. fa. when the inquisition is waived, which could not be done previously, and in so providing they direct the sale to be made before the return day. I am disposed to believe that it was their intention merely to require the sheriff to sell on the writ, without waiting for a venditioni; but in Cash v. Tozer (1 W. & S. 526), the Supreme Court gave the act a literal construction, which was probably correct, and refused to support a sale at an after-day. But they do not pretend to touch the case of sales on venditionies or levarles, consequently they remain as before; The act of 1845 Avas passed to cure defects in sales, and requires that the same shall be made during the court week. Whether this applies to sales under mortgages, Ave are not required to decide at present. The advertisement in this case is regular, and sanctioned by a long practice throughout the State, therefore the motion to set aside the proceedings is overruled.

• The defendant applies to set-off judgment of April Term, 1858, No. 168, which he obtained against the plaintiff against the judgment on which his property is now advertised as above. The plaintiff objects to this on the ground that he holds two other judgments against the defendants for a much larger sum, against either of which he is willing that the set-off shall be made. That they are both general judgments whilst this is specific, in the nature of a judgment in rem. There is no doubt that if the plaintiff was now pursuing his mortgage to obtain a judgment, the defendant’s claim would be a proper subject of set-off, whether in its present form of a debt of record, or a mere book account. In Carmalt v. Post (8 Watts, 416), the right of set-off against a mortgagée was fully recognized, our court pursuing the decisions in Matthews v. Wolmyer (4 Wes. 118), and Williams v. Sorrel (Id. 389); The only doubt arises from the principle that this is not a legal set-off under the statute, but one that is merely equitable, under the principle that the court will not suffer its process to be used for the collection of a debt where the creditor owes his debtor' a like, greater or less sum, evidenced also by a record; and that in the present case there is the want of mutuality. It is very certain that the plaintiff would not be permitted to set off his judgment in rem against the general judgment of the defendant, but it may be well doubted whether the plaintiff can lawfully object to the defendant bringing in his general judgment against one which is more special. The defendant can renounce a benefit, and waive a superiority in its claim, and asks to do it here, and after the most careful search I am unable to discover any case which precludes him. The plaintiff further insists that he can only ask to set off on offering to pay the difference. Although most of the English cases contain such an offer, yet it is nowhere said, that I have discovered, that it is indispensable, or even essential; and where the set-off has been divested by our courts, no such terms are exacted. It is essential by the rules of the civil law (Pothier on Obligations, 372), but not in the English courts of equity. The debts must all be due and ready for execution at the time, which appears to be the equality required, and it will not be allowed where other equitable rights would be injuriously affected. These are the requisites required by the American decisions. • I am, therefore, of the opinion that the set-off must be allowed, and direct it accordingly. The other motions of the defendant are overruled.

Knox, for plaintiff.

Boas, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      April 4th, 1859
    Hines v. Porter.
    When part of the set-off relied upon in an affidavit of defence is apparently barred by the statute of limitations, but is not separated from that part which is good, this is not a sufficient affidavit of defence.
   By the Court.

The affidavit filed' we should hold to be sufficient, if the set-off stated was not in part barred by the statute of limitations, so far as can be determined from the dates of the account. Although it might be more satisfactory and better accord with'the rule, if the defendant would append to his affidavit a copy of the account proposed to be set off, as thereby the nature and character of the defence would be more specially set forth, yet, according to adjudicated cases, it can be lawfully done, as here, where the whole account is within the time of legal limitation, but where a plaintiff's claim is apparently barred, he must state such special facts as will take the case out of the- effect of the statute, else the defendant may, instead of making an affidavit, merely file a suggestion that the claim as set forth is barred. In like manner, where the defendant avers a set-off, he must state, under oath, such facts as will make his claim apparently legal and valid. Such is the case here as to part of the set-off, but not as to the other part; and it is impossible for us to separate one portion from the other. The plaintiff has a right to have the defence so set forth that he can take judgment for all not primó, facie good as a set-off. Here no one can know how much was incurred after or before the six years, as some four years of the account is apparently to be excluded. The affidavit does not show that there wore mutual dealings; therefore, all over six years are barred.

Briggs, for plaintiff.

Boas and Fisher, for defendant.

The affidavit of defence is consequently insufficient, but we will permit an amended affidavit to be filed at any time on or before the 11th day of April inst.; and if not done judgment is directed to be entered for want of a sufficient affidavit of defence.


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      Court of Common Pleas, Dauphin County,

      May 12th, 1859.
    Fox v. Philadelphia and Reading Railroad Company.
    When there is an award of arbitrators under a verbal agreement to submit matters in dispute, judgment cannot be taken oh this award for want of a sufficient affidavit of defence.
   By the Court.

The plaintiff filed his cause of action with his narr in this case on the 27th day of October, 1858, and on the 17th day of December, 1858, entered judgment for want of an affidavit of defence. The defendant’s counsel moved to strike off the judgment on the ground that the claim does not come within the 52d rule of court requiring such affidavit. The action is founded on an award of arbitrators, made under a verbal submission entered into between the parties for the purpose of ascertaining the amount of damages done to the plaintiff’s property by the construction of the defendant’s road. Had the submission been in writing, signed by the parties, and the award made in the form set forth, I incline to think that the judgment could have been sustained, that it would have been “an instrument of writing for the payment of money” within the rule; and although not a direct obligation to pay a certain sum, yet it would be an agreement to pay so much as other persons would determine to be due, and that evidenced by the signature of the party to be charged. Such an agreement was held to come within the act of Assembly, from which our rulé is substantially framed, in Bayard v. Gillaspy (1 Miles, 256). It is true that case was decided by a divided court, and the opinion of the dissenting judge appears to be the best reasoned; but I would yield to it as an authority to support this judgment. Unfortunately for the plaintiff, he has no writing or agreement signed by the party proposed to be charged, which in our opinion is necessary to bring the case within the rule. Bayard v. Gillaspy fully recognizes the necessity of tlic party signing the agreement to refer, and of the narr being founded on the written agreement as well as on the award. It is very certain that where parties verbally submit their disputes to an arbitrator, the law implies a contract to pay according to his determination; but no affidavit of defence is required in suits brought on implied contracts. (Woodwell v. The Bluff Mining Company, 1 C. 365.) Our rule, after speaking of bills, notes, bonds, records, etc., mentions other instruments of writing for the payment of money. This we construe to mean other instruments of like character, signed by the person to be charged, for whom claims for “the loan or advance of money, whether the same be reduced to writing or not;” and when book debts are introduced the rule requires that an affidavit, setting forth the terms of the loan or advance when not in writing, with the dates and amount thereof, shall be filed, and also a copy of the book debt, with a statement, under oath, of the amount due, before the defendant could be called on to make an affidavit. - This subject was before us, and carefully considered in Karthaus v. The Insurance Company (1 Pearson, 104) a few years since, and our opinion filed setting aside a judgment entered on what the plaintiff considered an award, but which we decided to be an appraisement. But it is there said that had it been an award, the affidavit was unnecessary. For some years after the enactment of the law requiring the affidavit of defence in Philadelphia, the courts of that city held that no case came within its provisions which required the averment of extraneous facts to support the claim. The doctrine is now exploded by the decisions of the Supreme Court, and, therefore, where an obligation for the payment of money purports to be signed by an agent, such agency may be averred and must be met and denied by an affidavit of defence (7 Casey, 80). There are other cases to the same effect. But we hold that no claim comes within the law or our rule, except when authenticated by the signature of the party to be charged, purporting to be signed by himself or his authorized agent, on loans or advances of money, directly made to or for the party named, and such claims, when not signed, must be verified by the affidavit of the plaintiff in the case.

~We are of the opinion that the claim filed did not require an affidavit of defence, the judgment was consequently entered without authority, and must be set aside.


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      Court of Quarter Sessions, Dauphin County,

      May 16th, 1859.
    In the matter of the Report of Viewers to assess Damages sustained by D. R. Porter, by the widening of State Street in the Borough of Harrisburg.
    Viewers have no right to give damages for any injury not set forth in the petition of the party injured, nor for any done more than one year before the presenting of the petition. The general statute of limitation also applies to such claims.
   By the Court.

In the year 1858, an act of the legislature authorized State Street, in the borough of Harrisburg, to be widened sixty feet on the south side, so as to make a continuous street of the width of one hundred and twenty feet to the borough line on the east. Prior to that time State Street was of the width of one hundred and twenty feet to the canal, and some ten years since was continued on east to the present line of the borough, of the Avidth of sixty feet, by a continuous line on the north side of State Street. In extending that line the street of sixty feet in width passed through the land of'Governor Porter, but he never claimed damages therefor, at least never petitioned for or had them assessed. Widening the street on the south side infringed on his soil by cutting off a long strip near ten feet in width, but on the other hand giving a front to the same property on that street for about five hundred feet. This lot had been previously hemmed. in, having no front of any value. A petition was presented at August sessions, 1858, asking compensation for the injuries done on account of widening State Street under the act of 1858, and viewers were appointed, damages were assessed at $500, and reported to the court. It seems that when the vieAvers met, Governor Porter claimed damages on account of extending State Street some ten years since, as Avell as for that sustained recently, and from the evidence of the viewers, it appears that they considered the property uninjured, and rather benefited by the widening of State Street on the south, but injured by the former extensions and original opening on the street, for which the owner was entitled to damages, and for that injury they awarded him $500. Several insuperable legal objections exist to this report. First. The viewers have given damages for an injury not set forth or claimed in the petition. The petitioner asks to be compensated for injury done to his property by extending State Street on the south side, under the act of 1858, and the viewers have given damages for an entirely different injury. Second. They have aAvarded damages for an alleged injury, which has lain dormant for ten years, and the claim long since barred by the statute of limitations.; for whether demanded under the general road law, or that relating to laying out and opening streets in this borough, it is equally barred. The petition must be presented within one year after the road is opened through the land of the petitioner.

Even if no express limitations were fixed by law, the general statute would bar the claim. We decided in Foster v. The Cumberland Valley Bailroad Company, that the analogies of the statute extended to a case where there was no.limitation in terms. That neither trespass nor ease would lie after six years. Here the injury, if any, was done ten years since, had never been judicially claimed before, was not claimed now in the petition, and should have been rejected.

The report must be set aside.


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      Court of Common Pleas, Dauphin County,

      January 4th, 1859.
    George et al. v. Lawrence.
    When a sequestrator is appointed to take charge of all the real estate, goods, chattels, credits, rents, issues, profits, and ellects of a corporation, he is entitled to all the property of every description belonging to the company.
    When an insurance company takes some risks upon the principle of mutual insurance with premium notes, and others for cash, those of the latter class have no claim, in case of loss, upon the notes of the former.
   By the Court.

A judgment was obtained against the “State -Fire and Marine Insurance Company of Pennsylvania” in the District Court for the City of Philadelphia, on account of a marine loss sustained by the plaintiff in the action; and after a regular proceeding in court, the defendant in this bill was appointed a sequestrator to take charge of the real estate, and of all goods, chattels, credits, property, rents, issqes, profits, and effects of said corporation, and dispose of and manage the same according to law. Pursuant to the command of the writ, Mr. Lawrence took possession of all of the effects of tire company, including their books, dioses in action, etc., and this bill is brought to restrain him from interfering with what the plaintiffs say is a distinct class of property, having no connection wdth the claim under which he is acting.

“ The State Mutual Fire Insurance Company” was created by an act of Assembly, passed March 22d, 1850, and in its charter of incorporation are found some strange and anomalous provisions. It is in the first place authorized to make the ordinary contracts of insurance against losses by fire, as a mutual company. The act next provides that all persons insuring shall, during the continuance of the policy, be members of the company. The fourth section provides for giving premium notes and paying an additional sum in cash, and also for insuring property for money in lieu of a premium note. The tenth section says that the property insured may be divided by the directors into one or more distinct classes; in the first class may be insured the less hazardous descriptions of property, and in the second the more hazardous; the policy to designate the class of risk with which the insured is associated, and the deposit notes, cash premiums, and assessments on members, shall be hold and assessed to pay the class to which they belong, and no other; the general expenses to be apportioned to each class according to the amount insured in each. The next section provides that, if the stock deposited (as we understand it by each class) shall not be sufficient to pay all the losses by fire, the insured shall be paid their proportionate dividend of the whole stock, according to their respective losses, and the respective sums insured to them. That is, as we understand it, if their own class has not funds to pay their loss, they can come on the other class, the stockholders of which must pay according to their respective contracts of insurance ; for there is no other stock on which the insured can come, except the cash in the treasury and the premium notes, there being no stock subscription. The twelfth section makes every member of the coloration liable for the losses in proportion to the amount of his deposit notes; and in order to pay those losses, and the necessary expenses of the company, he may be sued by the corporation, and obliged to make personal contribution in that proportion. We are thus presented with these legislative contradictions : First. The persons insuring are all to be members. Second. Those not giving a premium note, but insuring for cash, are not to become members. Third. The notes of persons belonging to each class are to be liable, for the losses of their own class “ and none other.” Fourth. If any class loses more than it is able to pay, the loss must be paid by the other class; and, lastly, each individual is made responsible for all losses, in proportion to the amount of his premium note, or amount insured. Such was the situation of this corporation, and the liability of the corporators, when the act of the 15th of February, 1853, was passed. That gave the corporation a new name, “ The State Mutual Fire and Marine Insurance Company of Pennsylvania,” and authorized it “to insure all kinds of property against loss or damage by fire, or any cause of risk, to make all kinds of insurance against loss or damage of goods, merchandise, or other property, in the course of transportation by land, water, or otherwise, or on any vessel, boat, or other water craft.” A majority of the, board of directors can authorize the secretary of the company to take subscriptions of the stock to the amount of from one to three hundred thousand dollars; and the corporation may effect perpetual or other insurance “ under said capital stock,” without the parties so insured becoming members of the company, participating in the profits, or being liable for the losses; and the profits so made are to be divided among the stockholders. We thus have a stock company ingrafted on a mutual, by a new name, but under a supplement to the original law of incorporation, and the former kept in full force, whilst the members thereof are not necessarily members of the new company, and are not entitled to participate in the profits, or bound to bear the losses. Why a new company was not created we are unable to perceive, unless those who managed the affairs of the incorporation wished to procure such legislation as would, in addition to their former contradictions, render confusion worse confounded. The first question presented for our decision is, has the legislature created two corporations, or is the present a mere modification of the former ? That it is but one company appears pretty plain from the words of the supplement. True, it has a new name of baptism, is changed from a mutual to a stock company. The individual liability principle is destroyed, and it appears pretty clear that no person insured for a marine loss, “imder the capital stock,” can ever, in any event, interfere with the funds of the mutually insured, however carelessly the policy may be worded. Were it an insurance against fire, there might be great difficulty in determining whether it could or could not claim to be reimbursed out of the mutual notes, if the policy designated it as belonging to one of the classes adopted by the company, and there was nothing to show that it was given and accepted on the faith of the stock fund. This arises out of the provision in the fourth section of the original charter, which authorizes an insurance for cash, as well as on the mutual principle. No such difficulty can exist in relation to marine policies, as they are only provided for in connection with the stock subscription. ' To us it is, therefore, very clear that the gentlemen who recovered the judgment on which the writ of sequestration was issued, can have no claim on the notes given for mutual insurance; they must collect their debt out of the other funds of the company, arising out of their stock subscription. We are not called on in the present case to determine whether the notes given for the purpose of mutual insurance prior to February, 1853, can or cannot be collected by the present corporation, with its changed name and altered character; that may depend on the participation of the obligors in the acts of the company since its modification. Nor need we decide whether the sequestrator can or cannot collect any of those notes; that question will be settled when suits are commenced, and may turn on the character of the loss for which the money is required. All we have to decide is, whether the sequestrator can or cannot take into his custody all the assets of this corporation, for the purpose of distributing the avails thereof among the respective creditors, agreeably to law ?

After the most careful consideration we are of the opinion that under the act of Assembly he is entitled to seize all the effects of the company of every nature and kind, and dispose of them for the payment of the debts, as thq company itself would have been obliged to apply them. The act of the 16th of June, 1836, under which this proceeding took place, contemplates no second or subsequent sequestration. It does not design that the seizure of the effects of a corporation shall be limited, or partial, but when its insolvency is evidenced by a return of nulla bona, the whole must go into the hands of an officer of the law for distribution. The object of the legislature and effect of its enactment is to compel punctuality on the part of corporators in liquidating their debts, and give an effectual remedy tp their creditors in case of failure. The sequestrator is clothed with all the powers and is subject to all the duties of trustees appointed under the law relating to insolvent debtors. In the latter case, by the assignment of the debts and by operation of law on his discharge, all the estate of the insolvent, whether real, personal or mixed, in possession or in action, and wheresoever situated, is vested in trustees for the benefit of creditors. So, here, the sequestration of the estate and the appointment of the sequestrator operates as a statutable assignment of all the effects and estate of the corporation, in the same manner and to the same extent, with the limitations which the court may impose on it for the public good, as in the case of trustees of an insolvent debtor.” Such is the language of C. J. Gibson, in Turnpike Company v. Wallace (5 W. 318), and we find the principle reiterated in substance by Judge Rogers, in Bevans v. The Turnpike (10 Barr, 178).

It is strongly analogous to the case of an assignment by an insolvent in another particular: no priority is given to the acting creditor after sequestration, but the effects are seized by the officer of the law for the benefit of all (5 W. & S. 265). Hence the necessity of the sequestrator having the control of all the assets. It is very true that he must collect and distribute them according to the nature of the respective contracts and the terms of the charter; but his action in making distribution will be controlled by the judgment of the court before which he must settle his account.

The plaintiffs in this bill have no cause to complain. They ■cannot be obliged by the sequestrator to pay any money which could not have been collected by the corporation; nor can the fund, when collected, be diverted to any other object than was ■agreed by the original contract under which they gave their notes. 'The court which appointed the present sequestrator must have considered him both competent and responsible to take charge of the property confided :by the mandate of the writ to his care; and the act of Assembly does not contemplate that the officers of a corporation shall any longer be intrusted with its assets when they have, by either mismanagement or misfortune, so involved it as to render it insolvent and unable to pay its debts. This insolvency is conclusively evidenced by a return of the sheriff that there are no goods or lands belonging to the institution out of -which he can collect the amount of the creditor’s judgment.

Kunhel and Simonton, for plaintiff.

Lawrence, for defendant.

The special injunction in this case is refused. Should new points be presented on the coming in of the answer and proofs, the ultimate rights of the parties can then be finally determined.


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      Court of Common Pleas, Dauphin County,

      July 11th, 1859.
    Commonwealth v. Coovert.
    The accounts of a county treasurer were settled by the auditor-general of Pennsylvania, a balance found against him, and a transcript sent to the proper county to be filed; the prothonotary entered it up by mistake for a much smaller sum, and subsequently judgments were filed covering all the defendant’s real estate. Held, in a suit against the surety, that this was no defence for him. In a suit by the commonwealth upon a bond for the faithful performance of the duties of an office judgment can be taken for want of an affidavit of defence (Dauphin and Susquehanna Coal Company v. Dasher et al. {ante, 148) distinguished).
   By the Court.

This suit was brought, April 9th, 1859. A narr and copy of account were filed with the praecipe. On the 23d of the same month an appearance was entered by counsel. On June 6th, 1859, the attorney-general entered judgment for want of an affidavit of defence, being more than thirty days after the return of the writ on April 25th, 1859. On the 20th of June a rule was obtained to show cause why the judgment should not be opened and the defendant let into a defence. Upon the same day an affidavit of defence was filed. On July 5th the defendant’s counsel moved to strike off the judgment on the ground that it was irregularly entered, the claim not coming within the rule of court requiring an affidavit of defence. This last motion will be first considered. The copy of the claim filed shorn that the action was brought on a bond given by John 11. Bothrock, conditioned for the faithful performance of his duly as treasurer of Lycoming county, in which the defendant was one of the sureties. The narr assigns as a breach on the bond that the said Bothrock did not pay over the money received by him for the commonwealth, according to the terms of his bond and his duty as treasurer. "We have already decided that such instruments are not “bonds for tbe payment of money” within our rule of court, but are for the performance of a collateral condition. Dauphin and Susquehanna Coal Company v. Dasher et al. (1 Pearson, 148). But is not this a good judgment under section 4 of the act of April 21st, 1846, and the laws to which it is supplementary? The various acts provide for bringing suits on treasurers’ and other bonds given by public officers, who are delinquent in paying money into the State treasury, and direct the method of proceeding against them. If the attorney files his narr with the prascipe, it is provided that judgment may be entered in favor of the commonwealth, and the amount be liquidated by the prothonotary, “ unless before the expiration of thirty days from the return of the writ the defendant shall have filed an affidavit of defence, and shall have put the cause to issue.” This applies to all actions brought for the recovery of money due the commonwealth.

No copy of the claim is required to be filed; all that the law demands is the filing of a narr, which is considered and presumed to sufficiently state the cause of action; and the defendant must meet that by his affidavit of defence, and plead issuably instanter. The object manifestly is to give a summary remedy to collect the State dues, as such causes have precedence over all others on the trial list, and special courts are directed to be held for their disposition when necessary. I am of the opinion that the attorney-general has a right to pursue the act of Assembly, and in this case has pursued it; consequently, the judgment was regularly entered under the act and cannot be disturbed. No injustice will probably be done in any case by sustaining suit under this act of Assembly on office bonds, as different laws require a previous settlement of the officer’s accounts, and the balance due to be fixed, either by the county auditors or the accounting defendant, before any action can be sustained. Particularly it is unlike other claims pursued on bonds with a collateral condition, the amount ascertained by the settlement being conclusive, unless appealed from. Has any ground been laid for opening the judgment in this case? If the parties to the bond have a good defence, it is our duty to interpose the equitable power of the court to prevent injustice. From the affidavit filed and the averments exhibited, it appears that the account of Rothrock was settled in due form of law by the auditor-general and State treasurer January 26th, 1856. A copy of the account was made out, certified by the auditor-general January 30th, and transmitted to the prothonotary of Lycoming county, who, on the 4th of February, 1856, entered the same on the docket for the purpose of lien. In making the entry an error was committed by the prothonotary, who filed the whole account, showing a balance due the commonwealth of $18,374.60; but docketed the same as $455.34, both on the lien and appearance docket. After which judgments were entered against Rothrock amounting to 3373.32, covering, as is said, his whole real estate. The error was not corrected until November 26th, 1857, after the entry of the other judgments. Through this mistake it is urged that a loss will fall on the surety ; and had the lien been properly entered, the real estate of the principal would have been sufficient to pay the debt. No other defence is suggested. We consider that if all these facts were proved the defendant could obtain no relief. In the first place, there was no default on the part of the auditor-general, who transmitted a transcript of the balance due, as required by the acts of Assembly. If an error was committed, it was by the prothonotary of Lycoming county, who was not the officer or agent of the commonwealth. It was quite as much the duty, and much more to the interest of the surety to have this error in the record corrected than it was that of the State. They were as likely to know of its existence; and if they have suffered from a neglect of the prothonotary, they can look to that officer. It is a well-settled maxim of the law that the people shall not suffer from any neglect, oversight, or dereliction of duty on the part of public officers; and if no transcript of the balance due by the treasurer had been forwarded by the auditor-general to Lycoming county, it would have furnished no defence (4 W. C. C. Rep. 678; 9 Wheaton, 420; 11 Ibid. 184; 1 Peters, 318; 3 Penna. 437; 1 H. 617). The State had a lien on the property of the sureties by virtue of the balance struck at the department; and that lien could not be lost or affected by failing to enter the transcript against the principal.

Knox, for plaintiff.

Casey and Brown, for defendant.

Although the Supreme Court decided in 4 Barr, 164, that the lien could only be obtained against the property of the principal by pursuing section 4 of the act of April 16th, 1827, and that any “neglect” of the public officer caused the State to lose the lien, I am disposed to think differently. The lien was created by former laws, was general throughout the commonwealth, bound all of the property belonging to the debtor wherever situated, and none is created by the act of 1827. The case also runs counter to the settled principles securing the rights of the State, notwithstanding the neglect of her officers; and so I consider also the case in 10 Barr, 405, in regard to sureties. The point is unimportant in the matter under consideration, and is thrown out to exclude any conclusion that the sureties have suffered by a failure to file the transcript. No legal or equitable defence has been shown; both motions must be overruled and the rules discharged.


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      Court of Common Pleas, Dauphin County,

      August 11th, 1859.
    Cooper v. Maglauchlin et al.
    A formal defect in a summons is waived, if the party does not object to it at the earliest possible time when the court is in session.
   By the Court.

An application has been made to set aside the judgment and all the proceedings founded thereon, including theft, fa., inquisition and ven. ex., on the ground that the service of the summons, as appears by the sheriff’s return, was defective. The sheriff returns “served personally” (on each of the defendants, giving the days) “by giving each a true and attested copy of the within writ and a verbal notice thereof.” The act of 1836 requires a summons to be served “ by reading the same in the hearing of the defendant, or by giving him notice of its contents, and by giving him a true and attested copy thereof.” The attested copy was given, but it is said that notice of the contents was not, but only notice of the writ. We fully concur with what was said by Judge Pettit, in Weaver v. Springer (2 M. 42), as to the mode of service. That case is well supported by several others decided by the Supreme Court, but that a literal compliance with the act is not required we find settled in Wilson v. Hays (6 H. 354). The return there was, “served on defendant by reading and copy.” Reading what? The return does not say, but the within writ must be implied. In the present case, when the return was served personally by giving a true and attested copy of the within writ and verbal notice thereof, it may equally be implied “verbal notice of the within writ,” which must almost necessarily embrace the contents. Still it would be better and safer to say “and verbal notice of the contents thereof.” Whether the objection taken to this return is merely hypercritical or sound we are not now required to determine, as we are of the opinion that the defendants have waived it by their subsequent acquiescence. The return was made to April Term, 1858. Judgment entered on May 4th, 1858. Fi.fa. to January Term, 1859, placed in the sheriffs hands. The sheriff testifies that on November 17th, 1858, he called on the defendants with the ft. fa.; demanded payment; failed to get it; made a levy on real estate, and gave notice of the time and place of holding inquisition five days before it was held, on January 15th, 1859. After condemnation the April Term expired, and a ven. ex. issued to the August Term. This motion was not made until July 18th, 1859. It is the duty of the party, if dissatisfied with the manner in which an officer has performed his duty, to make his objection at the earliest day when the court is in session, especially when the objection, as in this case, is merely to matter of form. That actual notice of the pending suit was given by the attested copy cannot be denied. The exception might have been taken at April, August or November Term, 1858. Notice that a judgment and execution thereon existed was given by the sheriff, after which the January and April Terms transpired, besides several intermediate adjourned courts. After this delay and. acquiescence the parties came into court too late, and the objection cannot now be heard. Numerous analogous cases of waiver as to more important and fatal exceptions exist in our books; and all the cases agree that there must be no lying by and slumbering over the party’s rights. Even if this service were- defective, the defendants have sinned away their day of grace, and cannot at this late period have the whole proceeding vacated. Had the objection been taken at the outset the plaintiff could have brought a new suit, and long ere this have recovered a regular judgment. The motion is overruled.

Shell and Herr, for plaintiff.

Bishop, for defendant.


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      Court of Common Pleas, Dauphin County,

      September 10th, 1859.
    Ritzman’s Administrator v. Ritzman’s Executor
    When a testator directs the proceeds of his real estate, if sold, to be divided equally among his children, and one of them dies after the sale of the land, but before it -was paid for, his share goes to his personal representatives, not to his heirs.
   By the Court.

By the terms of Jacob Bitzman’s will he directs his real estate to be sold by his executors, giving them authority to sell on credit, if they see proper; and after giving his personal property to his children, and directing it to be divided equally among those who shall survive him, further orders “the proceeds of the real estate, if sold on credit, shall be divided in like manner as soon as it shall come into the hands of my executor, the heirs or representatives of any of my children, who shall have died between the time of my decease and the time of such division or distribution, to be entitled to such share or shares as. their respective ancestors would have been entitled to receive, if then living.” The plaintiff’s intestate died after the sale of the real estate and before the money fell due. Will the plaintiff take as his legal representative, or will the money go directly to Michael’s children? It is very clear that the money in this case was vested by the first part of the gift; there was no contingency annexed to it. Was it divested by the subsequent direction, or was any contingency created? It would rather appear to us that the testator feared that unless some provision was made for the contingency of the money not coming to the hands of the executors during the lifetime of some of his children, their share or interest in it would lapse, and, therefore, he provides for it going to the heirs or representatives of the deceased child, who is to take the same share his ancestor would have taken. The present plaintiff is the legal representative of Michael Ritzman, but he is not an heir, does not claim as such. According to the case of Plenderson’s Executor, v. Henderson (12 S. & R. 114), even where the gift is to his children or their heirs, without mentioning legal representatives, the legacy, if vested, would go to such person as would represent the legatee by the laws of the country, to wit, his administrator, and not the heirs at law. That case is sustained and sanctioned in King v. King (1 W. & S. 206); Reed v. Buckley (5 W. & S. 519). The rule in the present case in England would be different, as there the leaning is in favor of the heirs in preference to the administrator, who originally could claim all surplus as his own. In Pennsylvania the administrator takes the legacy for the use of the heirs or next of kin. In the case under consideration the only difference in the effect is on the interest of Michael Ritzman’s widow, who will be entitled to one-third part of the sum, should it go into the hands of the administrator, and would receive no portion if the heirs at law could take directly as devisees under their grandfather’s will. The only difficulty in the present case arises from these words, to be entitled to such share or shares as their respective ancestors would have been entitled to receive if then living.” Now, it is very clear that there can be no ancestor to an administrator as such. And here we were at first inclined to say that the testator intended the heirs alone to take, and that the legal representatives should not in any event, although named. But on reflection, when we come to consider that in our State the inclination of the courts is to treat personal property as vested, when the words will bear that construction, and to throw off all the clogs and fetters thrown around gifts of chattels, and permit the donee to receive them absolutely, we have been forced to a different conclusion. It is very clear that the words of gift caused this to be a vested legacy, and there is nothing'in the subsequent expression to show clearly that the donor, intended otherwise; and if vested, according to the settled rule in Pennsylvania, it must go to the legal representative for distribution. Therefore, we give judgment in favor of the plaintiff on the case stated.

Alricks, for plaintiff.

Mwmma, for defendant.