source: Caselaw Access Project

author: Read, J. Agnew, J.

license: Public Domain

text:
    Schoeppe versus The Commonwealth.
    1. 'A writ of error in a criminal case with consent of the attorney-general, under the 33d sect, of the Act of March 31st 1860 (Criminal Procedure), applies only to common-law writs of error.
    2. At common law no bills of exception were permitted in criminal cases; nor did the evidence, rulings and opinion of the court form any part of the record.
    3. The 57th, 58th, 59th and 60th sections of the Criminal Procedure Act construed.
    4. The limitation in these sections to thirty days, is incompatible with the issuing of a writ of error with the consent of the attorney-general at any time afterwards.
    5. The Act of February 15th 1870, allowing writs of error in murder, &e., as in civil cases, applies only to future writs of error and those pending at the passage of the law.
    6. A writ of error was issued on a conviction for murder; the judgment was affirmed February 14th; this writ of error was not pending under the Act of February 15th, although the act had previously been passed by the legislature and passed over the governor’s veto on the 15th.
    7. A judgment of affirmance by the Supreme Court can be opened only where the court has committed a mistake, which justice requires should be rectified.'
    8. The Act of 1870 provides no means to take, preserve and bring up the evidence.
    9. Act of 1870 construed.
    10. Middleton v. Commonwealth, 2 Watts 285; Commonwealth v. Mayloy, 7 P. F. Smith, recognised.
    February 8th and 9th 1870, at Philadelphia.
    Before Bead, Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the Court of Oyer and Terminer of Cumberland county, from the Middle District: Of May Term 1869.
    At the Court of Oyer and Terminer, held May 24th 1869 (Graham, P. J.), Paul Schoeppe was indicted and tried for the murder of jVIaria M. Steinnecke by poison. During the trial, a number of bills of exceptions to the rulings of the court upon the evidence and also to the charge of the court were sealed. On the 3d of June the jury found the prisoner “guilty of murder in the first degree.” A motion for a new trial was made and argued. The motion was overruled, and the prisoner sentenced.
    On the 4th of September, within thirty days after the sentence, under the 57th and 59th sections of the Criminal Procedure Act (Pamph. L. 443, 444, Purd. 260, 261, pl. 57, 59), a special application was made by the prisoner to Chief Justice Thompson for the allowance of a writ of error. After a hearing by him, and upon consultation with Justices Read and Sharswood, the allocatur with concurrence of these judges was refused. Subsequently, with consent of the attorney-general, under the 33d section of the same code (Purd. 256, pl. 33), a writ of error was sued out.
    The prisoner assigned seven errors to the admission of evidence and twenty to the charge of the court. No errors were alleged to the record.
    The point on which the Supreme Court decided the case, makes any further statements in regard to it unnecessary.
    It was argued by S. Hepburn, Jr., and W. H. Miller (with whom were H. Newsham and S. Hepburn), for the plaintiff in error, and by C. E. Maglaughlin and F. C. Brewster, Attorney-General (with whom was W. J. Shearer), for the Commonwealth.
   The opinion of the court was delivered, February 14th 1870, by

Read, J.

Maria M. Steinnecke died at Carlisle on Thursday, 28th January 1869. Dr. Paul Sehoeppe, who had been her medical attendant during her last illness, was arrested upon the charge of having poisoned her, indicted, tried and convicted of murder in the first degree. The trial commenced before Judge Graham on Monday, 24th May 1869, and lasted eleven days, terminating on Thursday, the third day of June, in a verdict of guilty. A motion was made for a new trial, which was fully argued and refused by the court, who sentenced the prisoner.

On the 4th September 1869, within the thirty days prescribed by the Act of Assembly, a special application for the allowance of a writ of error was made to Chief Justice Thompson, and cause shown on behalf of the prisoner. On the 15th of the same month, after a careful examination of the exceptions and allegations of error presented, together with a report of the trial furnished by the counsel for the prisoner, participated in by Mr. Justice Read and Mr. Justice Sharswood, the three judges concurred in agreeing that they saw no grounds for the allowance of a writ of error, ¡and the allocatur prayed for was therefore refused.

Sincethen a writ of error has been sued out by the prisoner in the Middle District, with the consent of the attorney-general, in writing, and certified on the said writ, under the 33d section of the Act of 31st March 1860, relating to penal proceedings and pleadings, which is but a re-enactment of the 7th section of the Act of 13th April 1791, and of the 9th section of the Act of 16th June 1836, relative to the jurisdiction and powers of thécourts.

This section applies only to common-law writs of error in all criminal cases, and simply makes the consent of the attorney-general equal to an allowance of the Supreme Court, or one of the justices thereof, and in no manner changes or affects the writ of error itself, as to what it brings judicially before the court, or the power of the court itself under it.

It remains simply a writ of error at common law.

Upon an application made during the present session to fix a day for the hearing of this writ of error, we assigned the first Monday of February, and the argument was commenced on Tuesday and closed on Wednesday. The widest possible range was given to the counsel on both sides, under a distinct declaration from the court, that it was no pledge that the court should be in any manner bound or controlled by having heard any matters discussed which the court should eventually think either irrelevant or not within the scope of their powers as a court of error.

At common law, both in England and Pennsylvania, no bills of exceptions were permitted in criminal cases, nor did the evidence, nor the rulings and opinion of the court, form any part of the record, nor were they ever seen or noticed in a court of record. £, In Middleton v. Commonwealth, 2 Watts 285, where, upon the trial of an indictment for a libel, evidence was rejected, and the defendant’s counsel requested the court to seal a bill of exceptions to their opinion, which was done, Gibson, C. J., said: “ It is not pretended that the judges were bound to seal these bills of exceptions, but it is said, as they voluntarily did so, we are bound to inspect the matter supposed to be thus put upon the record.” After showing that the Statute of Westminster 2 did not extend to criminal trials, he said: “ These bills of exceptions, therefore, being destitute of the sanction of the statute, are not judicially before us. Nor is this a defect in our system; at least, whatever it may seem in theory, it is not a defect in practice; for the recollection of no lawyer can point to an instance of injustice suffered, or conviction procured, by straining the law against the accused.”

On the 6th of November 1856, an act was passed “ allowing bills of exception and writs of error in criminal cases.”

This act, with some alterations in form, and excluding its two last sections, is to be found in the 57th, 58th, 59th, 60th and 61st sections of the Revised Act of 31st March i860, relating to penal proceedings and pleadings. By these sections provision is made that upon the trial of any indictment for murder or voluntary manslaughter, the defendant may except to any decision of the court upon any point of evidence or law, which exception shall he noted by the court, and filed of record, as in civil cases, and a writ of error may be taken to the Supreme Court by the defendant after conviction and sentence.'

It is made the duty of the court upon any point submitted and stated in writing, to answer the same fully, and file the point and answer with the records of the case.

No writ shall be allowed unless special application be made therefor, and cause shown within thirty days after sentence, pronounced.

The application was made and .cause shown within the thirty days, and the writ was not allowed, but distinctly refused, and this closed the proceedings under the Act of. 1860.

This court, in Fife v. Commonwealth, 5 Casey 429, and in Hopkins v. Commonwealth, 14 Wright 9, held that under this act it was confined to exceptions taken on the trial to some question of law or evidence, or to the opinion of the court below, upon a written point, which, together with the decision, must be filed with the records of the case.

The revisers of the penal code say, “ These sections are taken from the 1st, 2d, 3d, 4th and 5th sections of the Act of the 6th November 1856 and they have wisely and deliberately omitted the 7th section, which gave the defendant the right “to assign errors to the charge of the court as fully and with the same effect as if exceptions were taken to such charge when delivered to the jury.”

The hearing, therefore, before us was upon a writ of error at common law, upon which no errors could be assigned but those which were apparent on the face of the record itself. We co.uld, therefore, not legally or in our judicial capacities look at the evidence, the bills of exceptions and the charge of the court, much less at the large mass of extraneous ,matter pressed upon our attention and notice.

We have nothing to do with the guilt or innocence of the prisoner, and all we can say is, that we discover no error in the record. Judgment affirmed, and record remitted.

On the 15th of February 1870 the following Act of Assembly was passed (Pamph. L. 15):—

“ Sect. 1. In all cases of murder and voluntary manslaughter, a writ of error from the Supreme Court to the court trying the same shall be of right, and may be sued out upon the oath of the defendants or defendant, as in civil cases.
“ Sect. 2. In all cases of murder in the first degree, removed into the Supreme Court under the provisions of the 1st section of this act, or now pending in the said court, it shall be the duty of the judges thereof to review both the law and. the evidence, and to determine whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist; and if not so proved, then to reverse the judgment and send the same back for a new trial, or to enter such judgment as the laws of this Commonwealth require.

S. Heplurn, Jr., and W. S. Miller, for plaintiff in error.

W. J. Shearer and C. E. Maglaughlin, District Attorney, for Commonwealth.

__ “ Sect. 3. All writs of error now pending in the Supreme Court, in any case of murder or voluntary manslaughter, shall be held regular and of force to remove such cases, and to authorize and require the Supreme Court to hear and determine the same with like effect as if sued out after the passage of this act.”
By virtue of this act the prisoner sued out a second writ of error from the Middle District, No. 75, to May Term 1870. With the writ were returned the charge of the court, the prisoner’s points and the answers, and the bills of exceptions to decisions on evidence and to the charge.

The cause came on for argument at Harrisburg, May 13th 1870, when C. E. Maglaughlin, district attorney, filed a plea of former judgment. The prisoner filed replications to the Commonwealth’s plea, to which the district attorney rejoined. The prisoner also moved, upon his petition filed, to open the judgment of affirmance of February 14th 1870.

The case was argued, May 26th 1870, at Harrisburg, before Thompson, C. J., Agnew and Sharswood, JJ.

The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

Upon the trial of an indictment for murder or voluntary manslaughter, the defendant may, under the Act of 31st March 1860, except to any decision of the court upon a point of evidence, or of law. He may also require the court to give an opinion upon any point submitted in writing, to reduce the answer to writing, and file it and the point of record. The act then allows a writ of error, but provides that no such writ shall be allowed, unless special application be made therefor, and cause shown within thirty days after sentence is pronounced, to the Supreme Court, if sitting in banc, or to a judge in vacation. This is a wise and salutary provision to guard the interests of the public against unfounded writs of error, and all the consequences of dilatory punishment, and, at the same time, to protect the defendant against unjust conviction.' The writ must, therefore, be specially allowed, and if the defendant fail to make his application within thirty days, or if the cause shown be insufficient, the case

is at an end, under the Act of 1860, the bills of exception fall, and the judgment stands for execution.

In this case, a special application for a writ of error was made within thirty days to Chief Justice Thompson, who, after conference with Read and Sharswood, JJ. (they concurring f with him), found no sufficient cause to allow the writ of error, and it was, therefore, refused. The prisoner’s counsel then applied to the attorney-general for his consent to a writ of error, under the 33d section of the Act of 1860. This section applies to writs of error in all cases of indictment in the Courts of Quarter Sessions and Oyer and Terminer, and does not embrace the cases of murder and voluntary manslaughter, specially provided for in the 57th, 58th and 59th sections of the same act, confining the allowance of the writ to the Supreme Court, as before stated, The Act of 1860 is a revision of all the criminal laws of the state by a learned commission, headed by that eminent criminal lawyer, Judge King. It cannot be supposed they intended the several parts of the act to conflict with each other. The limitation to thirty days, and to. cause shown to the court in bane, or one of its judges, is incompatible with the issuing of a writ of error upon the mere consent of the attorney-general, at any time afterward. The attorney-general, however, from motives of humanity, and the point not having before arisen in practice, gave his consent, and the writ of error was issued and heard before us, at Philadelphia. But the defendant having failed to bring up his bills of exceptions under the 59th section of the Act of 1860, it became evident that the writ of error then before us brought up nothing but the common-law record, in which it was not pretended there was any error. The judgment of the Court of Oyer and Terminer was of course affirmed. Thus the case passed into final judgment; for the affirmance being by the highest court in the state, there could be .no writ of error to it. This judgment being rendered, the record was remitted to the court below, on the 14th day of February 1870.

On the 15th of February 1870, a law was passed allowing writs of error in cases of murder and voluntary manslaughter, as a matter of right, without a special application under the Act of 1860. The case of Paul Schoeppe having been decided before the passage of the act, he has obtained a second writ of error from the prothonotary, claiming it as a matter of right under the late act, and this writ is now before us. The Commonwealth, relying on the judgment of affirmance under the former writ, has pleaded that judgment in bar of this writ. The Act of 1870 applies only to future writs of error, and to those pending in this court when the law was passed. Final judgment having been rendered, and the record remitted on the 14th of February, the case was not pending before us on the 15th, when the law was passed. The plea in bar must, therefore, prevail. The defendant’s counsel perceiving this unavoidable result, has moved us to open the judgment of affirmance, given in the former writ of error, in the hope that we may, on opening it, treat the case as a writ pending at the passage of the law, intending then to apply to it the provisions of the Act of 1870. This motion is also before us, and involves two questions, one upon the power of the court to open the former judgment after the term had expired, and the other upon the applicability of the Act of 1870 to the case, if the judgment should be opened.

It is not necessary to decide the question of power, but it is opposed by authority, and some strong reasons. The Commonwealth v. Mayloy, 7 P. F Smith 291, decided against the exercise of this power by the Courts of Quarter Sessions and Oyer and Terminer, after the expiration of the term, notwithstanding a rule had been entered to show cause against the sentence. The same reasons therein given would seem to apply as well to this court. The fact that we act as a court of review to correct the errors of lower courts, does not seem to justify a revision of our own final judgments. The law requires an end of litigation, and, admitting the power, litigation may never come to an end ; for the same power will enable us to review the judgment of review, and so on toties quoties. The English authorities are against the power, and there appear to be no good reasons for its exercise in this state, that do not exist elsewhere. The power being admitted after the first term has passed,.there is no limitation of time, and the doors of prisons and penitentiaries may be opened at any time before sentence is finally executed. This clearly would be an infringement of the pardoning power, in our ease, as much as it could be affirmed of the judges of the inferior courts. In times of high excitement, a change of judges would often be the signal for a change in judgments, upon cases exciting the popular mind. But, granting the existence of the power, for we do not decide it at this time, it is very clear it can be exercised by us only where we have made a mistake, or committed an error which justice requires us to rectify. Judicial discretion is not the pleasure of the court, nor the arbitrary result of our will, hut is governed by sound judgment founded on good reason and controlled by a conscientious conviction of right. In this case there has been no mistake made, no error which our sense of justice calls upon us to correct. It cannot be pretended that our judgment on the former writ of error was incorrect. We are now as firmly of opinion as then, that the defendant had his day under the Act of 1860, and no remedy remained to him under that act. We are now as firmly of the opinion as then, that the writ of error consented to by the attorney-general was improvidently issued, and brought up with it nothing but the common-law record. If, therefore, we should now open the judgment in that case, it would he an act of questionable power in the first place, and one of mere sympathy in the second; and not the exercise of a sound judicial discretion.

But, should we permit sympathy to override judgment, how is the defendant’s situation bettered ? The former writ of error was not pending at the passage of the Act of 1870, and therefore not then within its terms. If not then within the law, nothing but another law can place it there. Ours is not the power of legislation, and the moment we determine judicially, as we must, that the case was not within the law, no act of ours nor effort of ours, can bring it within the law. If not then pending, the fact of opening the judgment and making it a writ now pending, does not draw it within the folds of the law by any retro-operation of ours; but we are merely sent back to the case as it stood when final judgment was rendered before the passage of the law. We can have before us nothing but what we then had before us, and that was the common-law record. If we open it to consider it anew, we consider it not by force of the Act of 1870, for that did not embrace it, but by force only of our judicial discretion, which can remit us only to that which we passed upon before, in order to consider it again.

_ Having, then, no ground of error or mistake in our former judgment, the Act of 1870 having no application, and the defendant being in no better position by the opening of the judgment, we are compelled to decline opening it.

It is not improper, before closing, to say a few words in reference to the Act of 1870, to draw attention to some of its defects, and to the radical change in our criminal jurisprudence it will produce. It was passed for this case, but owing to the governor’s veto it came too late. It is another evidence that laws which are the offspring of feeling are seldom wisely framed. It commands this court to review the evidence, and to determine whether the ingredients to constitute murder in the first degree were proved to exist, and yet, in forgetfulness of the former law, it provides no means to take, preserve and bring up the evidence. This, the first attempt to act.under it, proves its inefficiency, the judge below returning to our certiorari that he was not able to make the return of the evidence. He is not bound by law to take the testimony, or to certify to it. A bill of exception brings up only so much of the evidence as may be required to explain the point of law contained in the bill.

The effect of this law seems not to have excited attention. It has changed the whole doctrine of the criminal law as to the speed and certainty of punishment, and left to the felon both the hope and a door of escape, not only from the law’s delay, but by prison breach, and all the various means of avoiding retributive justice. At this moment two cases occur to my memory of convictions of murder in Allegheny county, delayed by dilatory motions, where the prison-doors opened by unknown means, and the prisoners escaped for ever. Any murderer may, under this law — though, like Prohst, he may have murdered a whole family — take out his writ of error, without limitation of time or condition, whether in prison under sentence, or stepping upon the trap of the gallows, with cause or without it, and suspend- his case until the next term of the Supreme Court. No one could condemn him if, the death-warrant not preventing, he should wait till the term of the Supreme Court he passed, and then take out his writ of error to delay the execution of his sentence for a whole year. That only security to the public, the examination of the case and allowance of the writ for cause, is repealed. To us, as judges, it makes no difference, for to us it is immaterial whether we hear civil or criminal cases. Indeed, it is more easy to decide on the merits of the evidence in a criminal case, than upon a difficult and abstruse question of law in' a complicated civil case.

The motion to open the judgment in the former writ of error is refused, and on this writ of error judgment is given for the Commonwealth, on the plea of former judgment, and the record is ordered to be remitted.


author: Sharswood, J.

text:
    Hildeburn et al. versus Curran.
    1. If a witness be cross-examined to, a fact collateral and irrelevant and he answers without objection, he cannot be contradicted.
    2. The test, whether a fact inquired of in cross-examination is collateral is, would the cross-examining party be entitled to prove it as part of his case.
    3. In a suit by O. against II. on a note, there being a plea of set-off, if the note was given by mistake, nothing then being due to 0., the note was of no value in determining the amount due to the defendant.
    • 4. If there was in fact due to O. the amount of an entry in H.’s books, it was immaterial that the clerk of H. had made the entry without his knowledge or consent.
    February 14th 1870.
    Before Read, Agnew, Sharswood and. Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: To July Term 1869, No. 156.
    This was an action of assumpsit brought, November 2d 1867, by P. H. Curran against Joseph H. Hildeburn and Henry M. Hildeburn, trading as Hildeburn & Brother.
    The cause of action was the following note: — •

      “$1000.00 Philadelphia, March 1st 1867.
    “ Ninety days after date we promise to pay to the order of P. H. Curran one thousand dollars without defalcation value received.
    “ Hildeburn & Bao.
    “Endorsed, P. H. Curran.”
    The pleas were non assumpsit and set-off, of which notice was given.
    The case was tried, April 20th 1869, before Stroud, J.
    The plaintiff gave the note in evidence and rested.
    The defendants called David Smith, their book-keeper, who testified that Curran had been in the employ of the defendants as travel-ling salesman for five years before 1866; the salaries of all persons in defendants’ employ had been reduced about 1862, the plaintiff’s was reduced to $400; it was afterwards raised to $800 and, after 1864, to $1000; his salary was always paid at the end of the year within a small amount, which was-paid shortly after-wards. At January 1st 1866 there were due him $85.50; he returned in February from travelling and in making his returns retained $300 or $400. He asked about July 1866 for a note for $1500; he did not say whether or not it was for salary; witness said that he kmjw from plaintiff’s relations to defendants he could get a note for double the amount. J. Hildeburn was not in. town; witness said he would get H. Hildeburn to sign the note; who the plaintiff knew, was not in the habit of signing firm notes; it was so signed and given to Curran who said, “ that squares my salary.” He left for Europe on the 20th of July, and returned early in December: at his request witness gave him a check for $500 and another note for $1000 without consultation with any one; after that note had been due, witness got the note in suit to renew it. Afterwards witness found that plaintiff had charged himself with other merchandise; the charges were after all his salary had been paid; J. Hildeburn’s attention had not been called to the state of the accounts until after the note in suit had become due. At an interview between them Curran claimed that his salary was to be paid in gold, which Hildeburn denied. On the 1st of January 1867 the balance due by plaintiff to defendants was $1350.44. Witness also testified that the plaintiff did not travel half the time. The defendants gave evidence by their accounts, notes and oral testimony, for the purpose of showing that the plaintiff had not been in their employ during the time he alleged, and that he was largely indebted to them; that his salary was not so much as he claimed; that he had gone to Europe without their permission.
    The plaintiff in rebuttal testified himself, that the defendants agreed to give him the salary which he claimed, and to other matters in answer to the defence. Bernard Owens testified as to the time the plaintiff left, and also to the question of salary.
    On cross-examination he testified: “ I did not receive any letter from Mr. Curran, stating that he was not coming back from Europe; I did not tell Mr. Hiideburn that Curran was not coming back; I did not say to Mr. Dubosq that I had received a letter stating that Mr. Curran was not coming back.” The plaintiff then closed his case.
    The defendants offered to prove by Philip L. Dubosq, that Bernard Owens had said to Mr. Dubosq in the fall of 1866, that he had a letter from the plaintiff, to the effect that Curran was not coming back to this country; that he had not informed Mr. Hiideburn of Mr. Curran’s intention as yet, but that if he (Mr. Dubsoq) would bring his nephew up to-morrow, he would tell Mr. Hiideburn to-day; and that in consequence of this conversation he did take his nephew to Mr. Hildeburn’s store the next day, and his nephew was employed in Mr. Curran’s place.
    The plaintiff objected to the offer; it was rejected by the court, and a bill of exceptions sealed.
    The defendants submitted these points:—
    1. If the jury believe the testimony that .Patrick H. Curran, the plaintiff, was in the employ of the defendants as their travel-ling clerk and salesman, and that he left their employment in July 1866, and never afterwards acted in that capacity, there would be 'nothing due to plaintiff for salary after that date.
    2. If plaintiff was employed by defendants at a salary by the year, and left defendants’ employ without the knowledge or consent of defendants, he thereby forfeited all claim to salary from and after the beginning of that year in which he left.
    3. If he left with the knowledge and consent of the defendants, the amount due him at that time was only his proportion of the year’s salary to the date of his leaving, whatever that might be.
    4. If the jury believe that there was nothing due to the plaintiff by the defendants, at the time the note sued on was given, the plaintiff cannot recover in this action.
    5. If the jury find from the testimony that there was nothing due to the plaintiff by the defendants at the time the first note for $1500 was given, and that the note sued on was given in renewal of the same under a mistake of fact on the part of defendants, as to the state of the accounts between the parties, the jury should not allow anything to the plaintiff for the note sued on, in determining what amount may be due to the defendants.
    6. If the jury believe that the plaintiff has been overpaid by the defendants, they must find and certify in their verdict for the defendants what amount is due to the defendants by the plaintiff.
    7. If the jury believe that the plaintiff had constant access to the books of the defendants, and from time to time made entries upon the same, charging himself with several items in his own account, they have a right to infer and presume that the salary with which he was credited for the years preceding 1866, was his proper salary for those years, and that the same salary was continued, unless a larger salary was actually agreed upon.
    8. If the jury believe that subsequent to the giving of the note sued on, the accounts of P. H. Curran were balanced by the bookkeeper, without any direction on the part of the defendants so to do, and without their knowledge or consent, they should disregard the item of credit in the account of $1277.59 altogether.
    The court affirmed the 1st, 2d, 3d, 6th and 7th points, and refused the 4th, 5th and 8th points.
    The verdict was for the plaintiff for $1113.33.
    The defendants took out a writ of error, and assigned for error—
    1. The ruling as to the evidence.
    2. The answer to their 4th point.
    3. The answer to their 5th point, and the answer to their 8th point.

      G. W. Biddle (with whom was A. M. Burton), for plaintiff in error.
    One was the of time the was out of defendants’ employ. The testimony of Owens was introduced by plaintiff to show at what time he left — what he had previously said connected with that was pertinent and not collateral: Gaines v. Commonwealth, 14 Wright 327; Gregg Tp. v. Jamison, 5 P. F. Smith 468; 1 Greenl. Ev. § 462 and notes; Attorney-General v. Hitchcock, 1 Exch. 91; 2 Phillips 970. The contest on the note being between the original parties, the consideration might be inquired into: Clement v. Reppard, 3 Harris 113; Barnet v. Offerman, 7 Watts 130; Hill v. Buckminster, 5 Pick. 391; Geiger v. Cook, 3 W. & S. 266; Lenheim v. Wilmarding, 5 P. F. Smith 73; Wood v. Downes, 18 Ves. 123; Crowe v. Ballard, 3 Br. Ch. Rep. 120; Murray v. Palmer, 2 Sch. & Lef. 486; Dunbar v. Tredennick, 2 B & B. 317. The giving of the note in mistake might be corrected, as payments made in mistake may be recovered back: Whitcomb v. Williams, 4 Pick. 228; Waite v. Leggett, 8 Cowen 195; Chitty on Cont. 543 and note 544; Snyder v. Findley, Coxe 48; Lancaster Co. Bank v. Albright, 9 Harris 228; White v. Heylman, 10 Casey 142; 2 Greenl. Ev. § 121; Miles v. Stevens, 3 Barr 21; Thomas v. Brady, 10 Barr 168; Balt, and Ohio Railroad v. Hoge, 10 Casey 214.

      J. P. O’Neil (with whom was P. E. Carroll), for defendant in error.
    No harm was done by rejecting the evidence: Lothrop v. Wightman, 5 Wright 305; Scott v. Baker, 1 Id. 330; Wright v. Cumpsty, 5 Id. 102.
   The opinion of the court was delivered, February 28th 1870, by

Sharswood, J.

The first assignment of error is, that the court below erred in rejecting evidence offered for tbe purpose of contradicting a witness examined on behalf of tbe plaintiff below. Tbe declaration was on a note given, as was alleged, for services due tbe plaintiff, as tbe salesman of tbe defendants, with tbe common counts. One of tbe questions involved in tbe controversy appears to bave been tbe period of time tbe plaintiff bad been in tbe service of tbe defendants. He bad been absent abroad and returned. Tbe witness bad been asked in cross-examination whether be bad not said to Mr. -Dubosq that be bad received a letter stating that Mr. Curran was not coming back ? Tbis be denied. Mr. Dubosq was produced by tbe defendants, and they offered to prove by him that tbe witness bad said to him in the fall of 1866 that be bad a letter from tbe plaintiff to tbe' effect that be was not coming back to tbis country; that be bad not informed Mr. Hildeburn of Mr. Curran’s intention as yet, but that if be (Mr. Dubosq) would bring bis nephew up to-morrow, be would tell Mr. Hildeburn to-day; and that in consequence of tbis conversation be did take bis nephew to Mr. Hildeburn’s store tbe next day, and bis nephew was employed in Mr. Curran’s 'place. Tbe rule is well settled, that if a witness is cross-examined to a fact purely collateral and irrelevant to tbe issue, and answers it without objection, be cannot be contradicted. Tbe reason is obvious. Tbe investigation might thus branch out into any number of immaterial issues upon tbe mere question of tbe credibility of a witness: 1 Greenl. on Ev., § 448; Griffith v. Eshelman, 4 Watts 51; Elliott v. Boyles, 7 Casey 65. Was then tbe fact that tbe plaintiff bad written from abroad that be did not intend to return, and in consequence of it another salesman bad been employed' in bis place, material ? Clearly not. If tbe plaintiff bad returned in point of fact, and with tbe knowledge and consent of tbe defendants resumed bis position in their 'store, be made out bis claim for services subsequent to bis return, otherwise not. It mattered not what bis intention may bave been, nor whether tbe defendants bad employed another to supply bis place in the interim. Tbe test of whether a fact inquired of in cross-examination is collateral is tbis, Would tbe cross-examining party be entitled to prove it as a part of bis case, tending to establish bis plea ? Applying tbis test, it is evident that tbe learned judge below committed no error in rejecting tbis offer.

Tbe second assignment of error is to tbe refusal of tbe court to charge as requested in tbe defendants’ fourth point, which was, that “ if the jury believe that there was nothing due to tbe plaintiff by tbe defendants at tbe time tbe note süed on was given, tbe plaintiff cannot recover in tbis action.” The plaintiff had given in evidence tbe note and there rested; but tbe subsequent evidence, both on the part of tbe defendants, and in rebuttal on tbe part of tbe plaintiff, placed before the jury tbe whole question, of what, if anything, was due to the plaintiff under the common counts. That evidence was received without objection on either side. Had the defendants simply shown that there was nothing due at the time the note was given, an offer by the plaintiff to prove á claim for subsequent services, if objected to, would have Been inadmissible. It would have been a new case not in rebuttal. But the evidence having been received without objection, if upon the whole it appeared that anything was due to the plaintiff at the time the action was brought, he was entitled to recover that on the common counts, whether there was anything due at the time the note was given or not. It would, therefore, have been a manifest error for the court to have charged as requested.

But we are of opinion that the learned judge below fell into an error in declining to charge as he was asked in the fifth point of the defendants, which forms the subject of the third assignment. That point was in effect, that if nothing was due on the note at the time it was given, the jury ought to allow nothing upon it in determining what amount may be due to the defendants. This point was evidently framed in reference to the claim of the defendants to a verdict in their favor under the plea of set-off, and so as not to appear to admit that anything was due to the plaintiff. But as far as the law was concerned, it mattered not whether the balance finally ascertained should be found in favor of the plaintiff or the defendant. The note was primá. facie evidence between the parties, but that was all. If it was without consideration, it]!,was unavailable as evidence of indebtedness. If, therefore, the defendants had proved to the satisfaction of the jury, that at the time the note was given nothing was due, they were bound to dismiss it from their consideration, and confine their attention to the question, whether any, and what amount, either party was entitled to upon a just settlement of the account, without regard to the note. This assignment of error is therefore sustained.

The fourth assignment is, that the court erred in declining to charge as requested in the defendants’ eighth point. This was in substance, that if the jury believed that a certain item in the defendants’ book to the credit of the plaintiff had been entered by their book-keeper without their knowledge or consent, they should disregard it altogether. The fact may have been very important as a question of evidence, to rebut the presumption arising from the entry, that the defendants had not known of it or consented to it; but if, notwithstanding there was proof that the item objected to was a proper entry to the plaintiff’s credit, it was entirely immaterial whether it had been made with the knowledge or consent of the defendants or not. The learned judge below therefore committed no error in declining to charge as requested in this point.

Judgment: reversed, and venire facias de novo awarded.


text:
    Tatham versus Lewis.
    1. Tatham and Waite executed a lease of Waite’s land, it was left with .Waite for his wife’s acknowledgment which she declined. Held, that Tatham was not bound to accept nor Waite to deliver it.
    2. When his wife refused, Waite had a right to destroy the lease.
    3. Lewis and Tatham had been in negotiation to embark together in the purchase of mining rights; Lewis afterwards bought the land for which Waite had executed the lease to Tatham; the master found that it was not the understanding that Lewis’s operations should be for the joint interest of himself and Tatham. Held, there being no confidential relation between them, Lewis, by notice of the inoperative lease of Waite, could not be affected with an equity for Tatham.
    4. Waite after the sale to Lewis destroyed the lease; that would not have destroyed the term had the lease been valid.
    5. Tatham could have compelled Waite to execute another, and if Lewis had been affected with notice of its existence, he could have been compelled to confirm it.
    6. Wilson was attorney for Tathams and knew of the lease; he was afterwards attorney for Lewis in the purchase of the land, but gave him no notice of the lease. The extent of Wilson’s liability to Tathams would have been the cost of a proceeding to establish the lease.
    7. If Tathams had sustained any injury through the negligence of Wilson, a bill in equity could not be sustained ; they had. a remedy at law.
    8. Tathams filed a bill against Lewis and Wilson which was dismissed, but there being some warrant for the bill, there were no costs.
    February 17th, 18th and 19th 1870.
    Before Read, Agnew, Sharswood and Williams, JJ. Thompson, O. J., at Nisi Prius.
    ■ Appeal from Nisi Prius: In Equity: No. 30, to January Term 1865.
    The bill in this ease was filed, December 80th 1864, by George N. Tatham, Henry B. Tatham and William P. Tatham, against George T. Lewis and Andrew P. Wilson, and Andrew M. Jones and others, administrators, &e., of William J. Taylor, deceased.
    The bill alleged that in 1859 Taylor, w’ho was a professor of mineralogy, gave the plaintiffs information of a deposit of zinc on a farm in Blair county, Pennsylvania, called the Dickson or Waite farm, in consideration of which Taylor was to participate in any profit received by the plaintiffs. Early in 1860 the plaintiffs, having retained Wilson, who was a lawyer residing in Huntingdon, as their counsel, visited Sinking Valley, in which the farm was situated, and as a result, determined to purchase mining leases in the Valley. In the fall of the same-year Henry B. Tatham, Wilson and Taylor again visited the Valley, and obtained several mining leases in the names of Henry B. Tatham (representing the plaintiffs) and Taylor. Under Wilson’s instructions the wives of the lessors joined in the leases, and a number of blank leases,, signed by Taylor and Tatham, were left with Wilson, with instructions to him to secure as many as he could. In 1862 Taylor, finding it inconvenient to bear the expense, requested H. B., Tatham to procure a purchaser for his interest, and negotiations were entered into with one Manning in New York, which were not successful. In 1863 Gr. N. Tatham and Taylor, with Wilson as their counsel, again visited the Valley to procure a lease from Waite, as well as leases from other persons. Several leases were obtained, and after Wilson and Taylor had returned home, Tatham .obtained a lease in duplicate from Waite, duly executed and acknowledged by him; Waite took the lease to procure his wife’s signature, promising to send it to Wilson; it was not executed by the wife. The next day Tatham informed Wilson of these facts, and in June informed Taylor also, who repeated his wish to sell out his interest. At this point II. B. Tatham invited Lewis to purchase Taylor’s interest, telling him of the locality of zinc, having previously informed him of the discovery. At Lewis’s request H. B. Tatham procured him an interview with Taylor, when it was arranged that Lewis, Taylor and Dr. Mucklé, then in the employment of Lewis, should visit the Valley, Wilson to accompany them. Lewis had been informed of the incomplete lease from Waite, and it was agreed that the entire operation should be for the joint account of Taylor, Lewis and the plaintiffs. Lewis knew that Wilson had been retained as Tatham’s attorney. In July 1863 Lewis, Taylor and Wilson visited the Valley. In August, Wilson procured an agreement from Waite to sell his farm for $10,000, and afterwards obtained a deed for it to Lewis, representing that he was acting for the plaintiffs, Taylor and Lewis. Wilson then instructed Waite to destroy the lease to Tatham, that it had all been done away by the purchase; Waite accordingly burned the lease. The plaintiffs did not know of the sale to Lewis until October 1863, when they were informed of it by Wilson. H. B. Tatham tendered to Lewis $5000, his share of the purchase-money; Lewis said he had bought on his own account and had sold one-half of it. Gr. N. Tatham went to Huntingdon and saw Wilson, who told him that Mrs. Waite had refused to sign the lease, but not that it had been destroyed. The next day Waite informed Gr. N. Tatham of the transaction, and told him that he supposed. he had been selling to the plaintiffs, Taylor and Lewis, as being represented by Wilson. Lewis and Taylor afterwards sold to O. & H. Borie for $100,000.
    The prayer was: — ■
    1. That the purchase by Lewis be decreed to have been made in trust as to one-half thereof, for the benefit of plaintiffs.
    2. That Lewis may be decreed to account.
    3. That he be decreed to pay over one-half the net profits.
    4. That Lewis and Wilson may be decreed jointly and severally to pay over one-half part of the profits realized from the Waite farm.
    5. That defendant Wilson may be decreed to pay and make good to them the losses suffered in consequence of his fraudulent conduct in the premises.
    There was no prayer as against Taylor’s administrators.
    Lewis in his answer stated at large his connection with the transactions detailed in the bill. He denied the statements as to the influence of H. B. Tatham on him to purchase the property; denied that he ever agreed with any of the plaintiffs to visit Sinking Valley, averring that it was a matter between Taylor and himself; he denied that there was any arrangement that the purchase of the Waite farm was to be on joint account; denied that he knew that Wilson was the professional adviser of the plaintiffs, and, upon belief, denied that Wilson was their professional adviser; he averred that after visiting the Valley he declined to purchase Taylor’s interest in the leases, and that afterwards on Wilson’s advice he purchased the Waite farm, which was conveyed to him, August 15th 1863, having theretofore informed Taylor that he had determined to make the purchase, and that Taylor “ should not be a loser by it.”
    Andrew M. Jones, one of the administrators of Taylor, answered, partly on knowledge and partly on information, that Taylor having made the discovery as to the zinc, but having no capital to invest, agreed with H. B. Tatham, that he, Tatham, should furnish capital for developing the deposits as an equivalent for Taylor’s scientific knowledge; that Tatham having obtained the information, refused to allow Taylor an interest unless he would pay half the purchase-money of certain land and leases wUcli Tatham had obtained; that H. B. Tatham and Taylor visited the Valley in 1860, and were accompanied by Wilson as a friend (not as attorney) to introduce them to the residents of the Valley, and that several mining rights were purchased in the names of Tatham and Taylor; the answer averred that H. B. Tatham first suggested to Taylor to sell out his interest; the answer denied that the visit with Gr. N. Tatham had any reference to the Waite farm; and that Taylor had any knowledge that Tatham had leased the Waite farm; that Taylor became acquainted with Lewis in 1863 with reference to a sale of his interest; the answer denied that Lewis was first informed by Tatham of the zinc deposit, and that he, Lewis, purchased Taylor’s interest in the leases, and averred that he purchased the land, August 15th 1863, agreeing that Taylor should have one-half the profits, and upon that basis subsequently settled with Taylor’s representatives.
    Wilson, amongst other things, denied that he acted as counsel for Gr. N. Tatham, but went with him to visit the Valley through regard for Taylor; that Waite refused to lease on account of some stipulations in the leases, and Wilson asked him to sell. Wilson knew nothing as to Gr. N. Tatham obtaining a lease from Waite, and never undertook to procure leases for any of the plaintiffs; he did not know that Lewis intended to purchase Taylor’s interest; lie proposed to Lewis in the presence of Taylor to purchase Waite’s farm, saying that it was worth $40 per acre for farming purposes. After some .conversation Lewis agreed to buy the farm, Wilson having no' knowledge of the lease to Tatham. Wilson was to have no interest in the farm, and nothing was said about compensation to him, or that Taylor was to have an interest in the farm. He denied that he told Waite that he was acting for any of the complainants or for Taylor; ‘ he denied that he had any authority to act for them or for Taylor. On the 5th of August 1868, after some negotiation as attorney for Lewis, he closed an agreement for the purchase of the Waite farm for $10,000, and on the 15th a deed was executed to Lewis. Wilson denied that he directed Waite to destroy the lease to Tatham; that he made any representation to Waite that the purchase was for any other person than Lewis.
    A replication was filed, and C. H. T. Oollis, Esq., appointed examiner. Much testimony, written and oral, was taken by him. By the testimony it appeared that in March and May 1864 the plaintiffs sold to C. and H. Borie and the Keystone Zinc Company for $50,000 all their interest in thé mining leases which they had in Sinking Valley, including the Waite lease. Mr. Collis was afterwards appointed master.
    He reported that the relation between H. B. Tatham and Wilson was of the most confidential character in reference to obtaining leases in Sinking Valley, and Wilson’s understanding was that he was to be compensated; that H. B. Tatham depended almost entirely on the services of Wilson, who devoted a large portion of his time to the business in preparing and procuring leases; no fee had been received by him nor had he presented a bill for services, but he could sustain an action for professional services; the master found as a fact, that Wilson “ was present with the plaintiffs, and interesting himself on their behalf to secure a lease of the Waite farm in June 1863. He found that on the 18th of the same month, G-. N. Tatham obtained a mining lease from Waite, and left it with him to obtain the acknowledgment of his wife; and that Wilson in the same month knew that Gr. N. Tatham was in negotiation with Waite for mining privileges. He further found that when Taylor visited the Valley in July 1863, he did not know of the lease from Waite to Gr. N. Tatham; that the allegation of the plaintiff that the entire operations in the Valley were agreed to be on the joint account of Taylor, Lewis and H. B. Tatham is,not sustained by the evidence. He found that on the 1st of August 1863 Wilson commenced a negotiation on behalf of Lewis with Waite for the purchase of his farm, which was consummated on the 15th by a conveyance of the farm to Lewis for $10,000; that Wilson then advised Waite to destroy the lease, as being of no use to anybody after the conveyance, and in consequence the lease was afterwards destroyed. He found specifically as a fact, that at the time when Wilson negotiated for the sale of the Waite farm to Lewis, he knew of the existence of the lease executed by Waite to Gr. N. Tatham, but that he did not inform Lewis of it. The master further found that Lewis had no actual notice of the lease to Gr. N. Tatham; nor was he chargeable with constructive -notice by reason of Wilson being his attorney, and having knowledge of the lease. He further reported that if Lewis had purchased with such notice, the remedy of Tatham would have been to enforce the lease against the fee, but that after having sold the Waite lease to Borie for a valuable consideration, it was too late to follow it as against Lewis’s profit in the sale of the farm, having failed to show they were jointly interested in the profits. He therefore reported that there could be no decree against Taylor’s -representatives or Lewis.
    As to Wilson he reported:—
    “ It is ascertained to my entire satisfaction that Wilson knew of the existence of the incomplete lease to Greorge N. Tatham, and I am of opinion it was clearly his duty to have informed Mr. Lewis of its existence, and to have informed Mr. Tatham that Lewis intended to purchase. But there is no evidence in the case which would justify me in reporting that under any’circumstances the Tathams would have purchased the farm, and it is clearly established that Mrs. Waite would not sign the lease. What was there, then, of which Wilson’s conduct deprived the Tathams ? Simply of the benefit they might derive from the existence of a partly-executed undelivered mining lease, which of itself was of very questionable value, but for' which, together with seven other leases, they were paid by the Messrs. Borie fifty thousand dollars. I cannot, therefore, report a decree as against Wilson under this form of proceeding.”
    The master’s report was very elaborate, stating the facts very much at large, and examining and giving his opinion very fully on the questions of law. The pleadings and what is above given of the testimony and the report, in connection with the facts as condensed in Judge Sharswood’s opinion, will sufficiently present the case.
    The master recommended that the bill be dismissed; but as it appeared to him that plaintiffs were warranted in prosecuting an investigation, that the decree should he without costs.
    The plaintiffs filed exceptions to the master’s findings.
    The defendant also filed exceptions, especially that he did not find that the plaintiffs should be charged with the costs.
    The court at Nisi Prius dismissed all the exceptions, and made a decree in accordance with the master’s report. The plaintiffs appealed to the court in banc, assigning the decree for error.
    P. P. Morris and J. A. Clay (with whom was W. H. Rawle), for Tathams.

      G. W. Biddle (with whom was H. Wharton), for Lewis; Porter for Wilson.

      C. S. Pancoast, for Taylor’s representatives.
   The opinion of the court was delivered, March 3d 1870, by

Sharswood, J.

A careful examination of the evidence has satisfied us that the master is fully sustained in the conclusions at which he arrived. As the questions involved were mainly questions of fact, in regard to which the report has the effect of a verdict, it leaves very little to be said in affirming the decree below.

The facts as now ascertained may be briefly stated. The complainants were jointly interested with Taylor in the project of procuring mining leases in Sinking Valley. They engaged the services of the defendant, Wilson, as their attorney. Several leases were obtained by his assistance and intervention. As these leases were for a long term of years, by his advice the wives of the lessors were in all instances required to join with a separate acknowledgment in order to bar dower. Henry Waite, the owner of a farm, had executed a lease to George N. Tatham, one of the complainants, but it was in the names of himself and wife, and it was left in his possession to be executed and acknowledged by her. Wilson had nothing to do with this lease, but George N. Tatham informed him of what had been done. Taylor was entirely ignorant of it. He proposed to sell out his interest to Lewis, and accompanied him with Wilson on a tour of exploration through the Valley. In the course of it the Waite farm was visited. Neither Taylor nor Lewis were informed by Wilson of the existence of the lease. Lewis declined to buy out Taylor’s' interest, but authorized Wilson to purchase the Waite farm. There were no negotiations by the Tathams pending with that view;-they had distinctly declined to take it at the price at which it had been offered. Wilson did purchase the farm for Lewis, and by his advice the lease was subsequently destroyed as of no value. After all these transactions were fully known to the complainants, they sold out for a large sum of money all their interest in the leases in Blair county, including specially the alleged lease of the Waite farm. The master has reported that the evidence in the case does not support the allegation that it was understood that the result of Lewis’s operations in the Valley should be for the joint interest of himself and plaintiffs, or of himself, plaintiffs and Taylor.”

Assuming, as we must, this to be so, there is no principle of equity upon which'Lewis can be made to account to the complainants for any share of the profits subsequently realized by him from the sale of the farm. The lease was clearly not binding upon the lessee. He could not have been compelled to accept it without execution by the wife; neither could the lessor have been compelled to deliver it. It was evidently a condition of the bargain that the wife should agree. It must be mutually binding on both parties or neither. The lessor had a perfect right, when his wife refused, to cancel and destroy the instrument. How, then, can notice, actual or constructive, of such a paper affect Lewis with any equity, if there existed at the time of the purchase of the farm no confidential relation between him and the plaintiffs ?

The existence of such a confidential relation is evidently the turning-point, of the whole controversy. If the lease had been a valid subsisting lease, complete by delivery without the joinder of the wife, the destruction of it by the lessor could not destroy the estate or term. The plaintiffs could have compelled the execution and delivery of another by proceeding against the lessor, and if Lewis was affected with constructive notice by the knowledge of Wilson, his attorney, it could have been established as against him, and he could have been obliged to confirm it. His remedy would then have been against Wilson, his attorney, for not having communicated to him the knowledge he possessed of it. It is not easy to see how Wilson incurred any responsibility to the Tat-hams for not having given actual notice to Lewis, if he was equally well affected by constructive notice. The extent of his liability would have been the costs of a proceeding to establish the lease as an encumbrance. But the complainants did not take this course to enforce their rights, if they had any. Instead of this, they voluntarily parted with all their interest in their leases in Blair county, for a valuable consideration, to Messrs. C. and H. Borie, including specially this very lease of the Waite farm.

Had these gentlemen not been at the same time purchasers from Lewis, and had they not been fully cognisant of the facts, and stipulated for a transfer of the lease with the,.object, as Mr. O. L. Borie states in his testimony, that in addition to his desire to buy out their entire interest, and to get rid of any competition that might arise, “to get rid o'f any claim they might pretend to have against this farm, as also of any lawsuit or quarrel which they might have with George Lewis,” they would have been at the commencement of these proceedings the only parties injured, having a right of redress against Lewis or Wilson, or both. In equity they stand in the shoes of the plaintiffs, so far as regards any claims or demands based upon the transaction of this lease. It is plain, then, that the whole matter of this alleged lease of the Waite farm is as irrelevant to the true merits of the controversy, as was the question of the Earp lease of the Ueberoth farm in Lehigh county, in regard to which so much testimony was given before the examiner, with what object it is difficult to comprehend. Had the plaintiffs suffered any damage in not ob-taming tbe full value of the Waite lease on the transfer of it, in consequence of the negligence or misconduct of Wilson, as their attorney, upon which point, however, no evidence was given, no bill in equity could be maintained, as a full and adequate remedy existed at law in an action against him to recover such damages.

We think, however, from the peculiar circumstances of the case, that there was some warrant for the bill, and we agree, therefore, with the master, that there should be no costs.

Decree affirmed,' each party to pay their own costs.


text:
    Arna’s Appeal.
    1. The 9th section of Act of April 22d 1856 (Contribution between Liens), was intended to secure the legal rights of the plaintiff in a judgment as well as the equities of the terre-tenants under a common encumbrance.
    2. The plaintiff must be presented with the alternative, either to levy his execution in the succession prescribed by the court or to accept his debt, so that the terre-tenant claiming the equity, may stand in his shoes and be subrogated to his rights.
    3. Lindsay mortgaged his land and afterwards sold part to Arna; the mortgagee sued out the mortgage: Arna and Lindsay, without calling on the plaintiff to levy in the succession of the act, each applied to the court to have the part of the other sold first. The court having decided against Arna, Held, that not having complied with provisions of the act, she had no standing to appeal.
    4. The plaintiff cannot be obliged to wait till the terre-tenants have settled their equities.
    5. The terre-tenants have no equity against the plaintiff.
    6. If the plaintiff makes his money from one who has a superior equity, such one must indemnify himself by proceeding against the others.
    February 26th 1870.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Delaware county: To January Term 1870.
    Charles Taylor, assignee of George Cookman, holder of a mortgage for $10,000, executed’ by John W. Lindsay, dated April 3d 1858, recovered judgment, September 29th J869, upon a sci. fa. issued on said mortgage, in the Common Pleas of Delaware county, against Lindsay, with notice to terre-tenants. The realty mortgaged was a tract of land of 142 acres. After the execution and the • recording of the mortgage and before the recovery of the judgment thereon, Lindsay, by deed duly executed and recorded, aliened and conveyed part of the mortgaged property to Mrs. Arna. This deed made no reference to the mortgage or mention of it. .
    After the réndition of the judgment on the mortgage, both Mrs. Arna and Lindsay made application’ to the court in which, the judgment was recovered, asking the court to control the execution issued thereon, so as to protect their alleged equities— Mrs. Arna seeking to have the court order that the residue of the land left in Lindsay (after the parcel granted to her was taken out) should be first sold; Lindsay, and those concerned under him, seeking to have the part aliened to Mrs. Arna sold first, on the ground, as they averred, that there was a distinct understanding at the time of the conveyance to her, that she, in addition to the cash then paid, assumed the payment of the mortgage; and that out of the purchase-money stipulated to be paid by her, the amount of the mortgage was deducted, and left in her hands to be applied to the satisfaction of the mortgage.
    The court (Butler, J.), after a reference to an examiner, and a consideration of the testimony adduced on both sides, made an order that the part conveyed to Mrs. Arna should be first sold under the levari facias.
    From this order Mrs. Arna took an appeal to the Supreme Court. Taylor then applied to the Supreme Court, and proffering to take the amount due to him on the mortgage from either of the terre-tenants who would pay him, and to let his securities stand for the use of the one who should pay, for the enforcement of any equities the latter might claim against the other — moved to quash the appeal; and a rule was granted to show cause, and was argued before the court in banc.

      J. B. Townsend, in support of the rule.

      D. K. Mulvany, contrh.
   Sharswood, J.

Whether an order of the Court of Common Pleas controlling an execution under the 9th section of the Act of Assembly of April 22d 1856, Pamph. L. 584, which engrafts a statutory remedy on a common-law proceeding, can be reviewed on appeal is a question which need not be decided on this motion. See Commonwealth v. Beaumont, 4 Rawle 366; Harger v. Commissioners, 2 Jones 251; Hanover Turnpike Co. v. Craighead, 5 Barr 470; Springers. Springer, 7 Wright 518. We are of the opinion that on the face of this record the appellant has no standing in court to remove the case by certiorari or appeal.

The section of the act referred to was evidently intended to secure the legal rights of the plaintiff, in the judgment as well as the equities of the terre-tenants, under a common encumbrance which is a lien on their respective interests. It provides for “ a rule on the plaintiff to show cause why he should not levy upon and make sale of the real estate liable to execution for the payment of said judgment, in the proportion or in the succession in which the properties of the several owners shall in law or equity be liable to contribute towards the discharge of the common encumbrance, otherwise upon the payment of such judgment to assign the same for such uses as the court may direct,” and then “ if the plaintiff shall refuse to accept his debt and make such assignment of his judgment, the executions thereupon in the hands of the plaintiff shall be so controlled and directed by the court as to subserve said rights, and equities.”

Where a remedy is provided by Act of Assembly, the directions of the act must be strictly pursued: Act of 21st March 1806, § 13, 4 Smith’s L. 332. The intention of the Act of 1856 is very clear, it is scarcely open to any possible question. The plaintiff must be presented with the alternative either to levy his execution in the succession prescribed by the court or to accept his debt, so that the terre-tenant claiming the equity may stand in his shoes and be subrogated to his rights. If he refuses, then, and only then, is the terre-tenant in a position to ask the court to control the execution. Until he has placed himself properly on the record by a rule in the alternative, he has no standing in court, consequently no right to appeal. In no other way can the legal rights of the plaintiff be properly protected. He has an unquestionable judgment against all the lands of his debtor, the defendant. He has a right to proceed against any part. He cannot in law or equity be obliged to wait until the terre-tenants have settled their equities between themselves. They have no equity against him. If he makes his money from one, who has a superior equity, that one must indemnify himself by proceeding against the others. The act meant to do equal justice all around, but that cannot be accomplished by giving a terre-tenant an appeal, who has not complied with its provisions.

Appeal quashed and record remitted.


author: Agnew, J.

text:
    Seabrook versus Swarthmore College.
    ' 1. Under the 23d section of Act of June 16th 1836 (Mechanics’ Lien), the owner of the building is the actor, and is entitled to a trial to determine whether his property shall remain charged with the claim.
    2. An owner asked the court for an order on the claimant to proceed; the order was made, the claimant then moved to strike off his lien which was denied. Held, that the refusal was discretionary and that the case was still pending without a final judgment, and a certiorari from the Supreme Court was quashed.
    February 26th 1870.
    Before Thompson, C. J., Agnew, Shaeswood and Williams, JJ.
    Certiorari to the Court of Common Pleas of Delaware county: No. 298, to January Term 1870.
    Thomas Seabrook, on the 20th of October 1867, filed a Mechanics’ Lien against Swarthmore College, owner and Hugh Mcllvain, contractor. On the 24th of May 1869 the college petitioned the court for a rule to show cause why the claim should not be proceeded in, in accordance with the 23d section of the Act of June 16th 1836, Pamph. L. 701, Purd. 713, pl. 33. On the 27th of December 1869 the rule was made absolute. Same day the plaintiff moved to strike off the lien as filed by him, which was denied, and the court directed that the plaintiff shall, within twenty days, file a statement of his claim; the defendant in fifteen days thereafter shall plead, and the case go on the trial list at February Term 1870.
    The plaintiff, January 17th 1870, took a certiorari from the Supreme Court.
    On the 5th of February 1870, a rule was granted in the Supreme Court to show cause why the certiorari should not be quashed, and the record remanded for further proceedings.

      A. L. Smith, for rule.

      W. Ward, contra.
   The opinion of the court was delivered, March 10th 1870, by

Agnew, J.

The 23d section of the Act of 16th June 1836, relating to mechanics’ liens, was intended to furnish the owner of the building against which a claim has been filed the means of compelling the claimant to establish his lien or of blotting it from the record. So long as the claim remains of record for the sum which the claimant chooses to place there as an encumbrance on the owner’s title, it restrains alienation, and affects his credit. There may be no actual lien, or the debt may have been paid, or largely reduced; and yet the whole claim may be permitted to stand for an indefinite time, without a scire facias issued upon it. Therefore the 23d section provides that the owner may apply by petition to the court to compel the claimant to proceed on his claim, and on the return of the rule the case may proceed as if a scire facias had been issued, served and returned. The owner is evidently an actor in the proceeding and is entitled to a trial to determine whether his property shall remain charged with the claim. To permit the claimant to suffer a nonsuit, or to go out of court without the payment of the costs he has put upon the owner, would evidently defeat the purpose of the' 23d section in one case, and do injustice to the owner in the other.

In this case on the same day and after the claimant had been ordered to proceed on his claim according to the 23d section, the claimant moved to strike off the lien filed by him. At the same time the defendant’s attorney agreed that the plaintiff might amend his claim in any respect that he deemed it to be imperfect, and at any time within twenty days. The court then refused the motion to strike off, and this refusal is the subject of this certiorari. It does not appear that the plaintiff made any offer to pay the costs he had put upon the case. Whether this was the reason, or some other equally good, why the court refused leave to strike off the lien, we are not informed. It certainly was sufficient. -The matter was, under the circumstances, one of discretion. The consequence of this refusal to strike off is that the case is still pending in the court below without a final judgment, and the certiorari must be quashed.

Writ quashed.


author: Thompson, C. J.

text:
    The Commonwealth ex rel. The Attorney-General versus John Conyngham.
    1. The Act of April 23d 1866, establishing the Mayor’s Court of the city of Scranton, and making the President Judge of the Eleventh Judicial District recorder of the same, is unconstitutional.
    2. The office of recorder of the city of Scranton is within the meaning of the judiciary elective clause of the amended Constitution of 1850. The recorder is a judge of a court of record, and ought to be elected.
    3. The changing of the name of a judicial officer from that expressly mentioned in the Constitution cannot defeat the constitutional right of the electors to choose him in the manner provided by the judiciary clause of the Constitution.
    4. The office of recorder for the' Mayor’s Court is an office of profit under this Commonwealth, and the judges of other courts are prohibited from holding it by article 5, section 2 of the Constitution.
    5. The legislature, in creating a new court within part of the district or county occupied by an old court, cannot legislate upon the bench of the new court the judge of the old court. The judge of the new court must be chosen by the people of his district.
    6. The Mayor’s Court of Scranton, is a court of record, and of an independent judicial district.
    March 14th 1870.
    Before Thompson, C. J., Agnew and Shauswood, JJ. Read, J., at Nisi Prius.
    This was a quo warranto to the Hon. John N. Conyngham. The suggestion was filed, December 8d 1869, by the Attorney-General, setting forth that the respondent was exercising the office of Recorder of the Mayor’s Court of the city of Scranton, in the county of Luzerne, without lawful authority, and the writ was to show by what warrant he exercised the office. >¡
    The answer, admitting that the respondent exercised the office, set forth as follows: That he had been elected and duly commissioned, on the 21st of November 1861, president judge of the 11th Judicial District, composed of the county of Luzerne, for ten years, from the first Monday of December then next; that he then entered upon the duties of that office and has continued to exercise them since; and that the residents of Scranton, being citizens of Luzerne county, voted at the election for president judge in 1861; that by an Act of Assembly, passed April 23d 1866, the inhabitants of certain territorial limits in Luzerne county were constituted “ The City of Scranton,” which in June following was duly organized, and has since continued to be a municipal corporation; that by the said act, a mayor’s court was constituted, to be held by the mayor or recorder and aldermen of the city, for the trial of crimes, &c., and it was provided that the recorder should preside at all jury trials; that certain civil jurisdiction was also conferred upon the court, and proceedings on the civil side might be conducted by the recorder alone; that it was further provided by the act that the president judge of the 11th Judicial District should be recorder of said city. The answer averred that at the time of the organization of the city of Scranton the respondent was president judge of the 11th Judicial District, and was duly sworn to fulfil the duties of recorder of that city, entered upon the office, and has since continued to perform its duties, and claims the right to perform them.
    The Commonwealth craved oyer of the Act of April 23d 1866, which was granted.
    (The material parts of the act will be found in C. J. Thompson’s opinion.)
    The Attorney-General demurred to the answer. The causes of demurrer were:—
    1. Because the Act of April 23d 1866 is unconstitutional, being repugnant to that part of the 11th section of 5th Article of the Constitution of Pennsylvania, which provides that “ The judges of the Supreme Court, of the several Courts of Common Pleas, and of such other courts of record as are or shall be established by law, shall be elected by the qualified electors of the Commonwealth in the manner following, to wit: The judges of the Supreme Court by the qualified electors of the Commonwealth at large; the president judges of the several Courts of Common Pleas, and of such other courts of record as are or shall be established by law, and all other judges required to be learned in the law, by the qualified electors of the respective districts over which they are to preside or act as judges.”
    2. Because it is not averred that the said respondent was elected to the said .office of recorder of the Mayor’s Court of Scranton by the qualified electors of the city of Scranton.
    3. Because it is not averred that the- said respondent was, at the time of his said election to the office of president judge of the 11th Judicial District, or that he since hath been or- now is, a resident “within the.district” of the city of Scranton.
    The case was reargued at Harrisburg, May 5th 1870, before Thompson, C. J., Bead, Agnew and Sharswood, JJ.

      W. G. Ward, John Handley, and F. Carroll Brewster, Attorney-General, for Commonwealth.
    The Mayor’s Court of Scranton is a court of record. The 14th section of the charter (Pamph. L. 1041) provides: “ The said mayor, recorder and aldermen, &c., shall hold and keep a court of record within the said city, &c.”
    Sect. 2 of Art. 5 of the Constitution of Pennsylvania requires that “ the president judges of the several Courts of Common Pleas, and of such other courts of record as are or shall be established by law, and all other judges required to be learned in the law (shall be elected) by the qualified electors of the several districts, over which they are to preside or act as judges.”
    The recorder of the city of Scranton is such an officer as is designated by the term “judge” in the Constitution: Commonwealth v. Gamble, 12 P. F. Smith 348.
    In the election of president judge in 1861, the citizens of the territory afterwards composing the city of Scranton, could not have chosen a recorder for that city which was not chartered until 1866.
    The 4th section of Act of April 4th 1796 empowered the governor “ to appoint one recorder” for the city of Philadelphia. By section 1, of the schedule of 1838, that “ all laws of this Commonwealth * * * shall continue as if said alterations and amendments had not been made,” it was the intention of the convention to leave the appointing power in the governor, who at that period exercised under the Constitution of 1790, the right to fill such vacancies as might happen, in the several “mayors’ courts:” Art. 2 Const. 1790, § 8; John v. Nicholls, 1 Yeates 182; The Commonwealth v. Collins, 8 Watts 335; Id. 340. If the Constitution recognises the office of recorder, he is judge of a court of record, and ought to be elected in the same manner as the president judge: The People v. Warner, 7 Hill 82.
    The office of president judge and of recorder are two separate and distinct offices; both are judges. Changing the name of a judicial officer cannot defeat the constitutional right of choosing him in the manner provided by the judiciary clause: Reeves v. Brown, 4 Penna. L. J. 465; Graham on Jurisdiction 128, § 3; The Commonwealth v. McClurg, 5 Penna. L. J. 456; “Judges,” Jacob L. Dict., 1 Bouv. L. Dict. 675; 1 Bl. Com. 269; 4 Id. 84, 125; 1 Bac. Abr. 3; Bl. Com. in App. 3, 38-40; 4 Inst. 73, 23, 3; Cooke R. 20; 9 Id. 118; 1 H. Hist. P. C. 231; Gro. C. 146; 1 Bl. Com. 269; 1 Tidd 426; Min. of Conv. 81, 85, 138, 139, 194, 198. Justice is used instead of Judge: Art. V. § 5 Penna. Const. 6 Vin. Abr. 484; Wheat. Dig. 127; 3 Com. Dig. 300; Id. 386; 2 Bl. Com. Append, iii.; Id. 40; Id. 41; 4 Inst. 73; 1 St. Laws Append. 58; Constitution of 1790 (see art. 5, § 3; Id. § 9).

      By the Act of 13th April 1791, no judge of any court of record shall practise as an attorney or counsellor: Com. v. Pyle, 6 Harris 521; Com. v. Flanagan, 7 W. & S. 68; Com. v. Green, 8 P. F. Smith 232.
    By art. 5, sect. 11, Const., all officers empowered to hold court and act in a judicial capacity are styled judges. “ The Mayor’s Court of Scranton” is such a court of record as is required by the Constitution of Pennsylvania to have its chief judicial officer elected by the people of the district in which he is to act as judge, and in which he must reside: John v. Nicholls, 2 Dall. 184.
    By art. 5, sect. 11, amended Constitution of 1850, an elective judiciary was introduced into Pennsylvania; it did not mean to make a distinction in favor of an executive appointment, and against a proper election of all persons who acted in a judicial capacity: Chief Justice Lewis’s Case, 5 Casey 518. The Constitution should be interpreted so as to carry out the great principles of the government. It should receive no technical construction: Com. v. Zephon, 8 W. & S. 386; Lestapies v. Ingraham, 5 Barr 71. The recorder is empowered to examine, hear and punish, in a judicial manner, and is therefore a judge: Groenvelt v. Burwell, 1 Salk. 200; Respublica v. Dallas, 3 Yeates 314; 1 Bac. Abr. 657. The amended Constitution of 1850, art. 5, sect. 2, prevents judges from holding any other “ office of profit under this Commonwealth.” The office of recorder is an office of profit under this Commonwealth. See Pamph. L. 1866, p. 1046, s. 30, Purd. Dig. p. 1431, pl. 6; Pamph. L. 1866, p. 1046, s. 3. He may be impeached for misbehavior in office: Art. 4, s. 3; Com. v. Sutherland, 3 S. & R. 145; Com. v. Binns, 17 Id. 243; 2 Bouv. L. Dict. 259; 3 Kent Com. 598. The acceptance of two offices incompatible will vacate the first: Milward v. Thacher, 2 T. R. 81, 87; The People v. Carrique, 2 Hill 97; Com. v. Pyle, 6 Harris 520.
    The Supreme Court will take judicial notice of who are judges of the subordinate state courts: Hibbs v. Blair, 2 Harris 417; Kilpatrick v. Commonwealth, 7 Casey 198; Com. v. Collins, 8 Watts 331. A law passed intended to take away or unnecessarily postpone and embarrass the right of an election will be set aside as unconstitutional: Commonwealth v. Maxwell, 3 Casey 444.
    The schedule to the amendments of 1838 are not a part of the fundamental law of this Commonwealth: Chief Justice Lewis’s Case, 5 Casey 518; Com. v. Green, 8 P. F. Smith 231; Com. v. James Clark, 7 W. & S. 133; Com. A Collins, 8 Watts 348. The Mayor’s Court of Scranton is not recognised in the Constitution: In re Penna. Hall, 5 Barr 209.

      A. Hand and H. N. Willard, for respondent.
    The Commonwealth must make out a clear case of conflict with the Constitution: Com. v. Maxwell, 8 Casey 458; Com. v. Zephon, 8 W. & S. 387. The people of Scranton voted for a recorder by voting for him for president judge of the district. There is doubt about the recorder being a judge within the meaning of the Constitution.
    Definition of “judge:” Jacob’s Law Dic., Tomlin’s Dic., Burrell’s Dic., Bouvier’s Law Dic., Respublica v. Dallas, 3 Yeates 300. The recorder is not necessarily “ required' to be learned in the law.”
    The 30th section of the charter of Scranton is not in conflict with the clause of the Constitution requiring that judges shall not hold any other office of profit under this Commonwealth. The recordership is not another office distinct from judge: Com. v. Zephon, 8 W. & S. 386; Kilpatrick v. Com., 7 Casey 213; Com. v. Maxwell, 3 Id. 444; Respublica v. Dallas, 3 Yeates 300; Com. v. Bacon, 6 S. & R. 322; Shepherd v. Com., 1 Id. 1; Com. v. McCombs, 6 P. F. Smith 436; In re Pennsylvania Hall, 5 Barr '204. The 30th section of the city charter is not in conflict with the 8th section of the schedule to the amendments of 1838: 2 Smith’s Laws 467. Several recorder’s courts were in existence at the time the amendments of 1838 were adopted. There being no provision in the Constitution for the appointment of recorders, therefore the legislature may appoint them by act. A recorder is not a judicial officer within the meaning of sect. 8, art. 2, of the Constitution.
    The legislature may give a judge jurisdiction over people who have not elected him: Blood v. Mercelliott, 3 P. F. Smith 392; Acts of Assembly, Pamph. L. 1867, p. 1529; 1842, p. 166; 1864, p. 829; Moers v. The City of Reading, 9 Harris 188; Norris v. Clymer, 2 Barr 277; Stuart v. Laird, 1 Cranch 299; Com. v. Green, 8 P. F. Smith 226..
    July 7th 1870. Judgment was entered for the Commonwealth on the demurrer.
   The opinion of the court was delivered, October 20th 1870, by

Thompson, C. J.

The writ in this case was issued upon the relation of the attorney-general, to test the right of the respondent to exercise the office of the recorder of the Mayor’s Court of the city of Scranton, in Luzerne county, under the provisions of an'act incorporating said city, passed the 23d of April 1866, and the supplement thereto, of the 30th of March 1867. At our sitting in July last, in the Eastern District, having heard the arguments in the case previously, we entered judgment on the issue made in favor of the Commonwealth, and consequently of ouster against the respondent, and reserved to the present time the announcement of our reasons for the judgment So entered, some of which we propose now briefly to state.

By the first of the above-mentioned acts, “the inhabitants embraced and residing within the territorial limits of the township of Providence, the borough of Scranton, the borough of Hyde Park, and the borough of Providence, in the county of Luzerne,” is constituted a corporation, by the name and style of the “ City of Scranton,” and divided into twelve wards. In addition to the usual powers conferred on such municipal corporations, a Mayor’s Court, is established by this act, to be holden quarterly by the mayor, recorder and aldermen, or any three of them, the mayor or recorder being one, “ with full power,” says the act, “ to hold and keep a court of record within said city, four times in each year, to continue one week each,” and longer by adjournment, if necessary.

The criminal jurisdiction of this, court is, by the act, extended to “ all such offences committed or arising within the limits embraced by the city, as are triable in other Courts of Quarter Sessions in the Commonwealth,” with the power to forfeit and issue process for the recovery of all recognisances forfeited therein, and “generally,” says the act, “to do all such matters and things within the said city, as any Court of Quarter Sessions of the peace, of and for any county within this Commonwealth, may or can do within any such county.” Thus there is established, within the city, a Court of Quarter Sessions of general jurisdiction, as fully and clearly as any other court is or can be established within any county of the Commonwealth.

In addition to this general criminal jurisdiction, it is provided in the 15th section of the act as follows-

“ That the Mayor’s Court for the city of Scranton shall have original civil jurisdiction to the same extent as is conferred by law upon the Court of Common Pleas of Luzerne county, in all cases where the defendant shall reside within the limits of said city, and also, of all amicable actions where the parties shall, by writing, institute the same in said county, and the remedies, processes, pleadings and costs, shall be similar to like proceedings in the Court of Common Pleas in said county. And the said Mayor’s Court shall also have the same chancery powers and jurisdiction, within the said city, as is now by law invested in the Courts of Common Pleas, and shall also have the same power and jurisdiction within the said city, as is now conferred by law upon the Orphans’ Court of' Luzerne county.” Jurisdiction of divorce cases was afterwards conferred by the supplement to the act of incorporation. Power is also given to this court to issue writs of certiorari to judgments of the aldermen of said city, as other Courts of Common Pleas do.

It possesses all the machinery and officers of other courts of record, viz.: a clerk, seal and records, and its judgments are revisable on appeal and writs of error from this court as are the judgments of other courts of general jurisdiction. It is, therefore, a court of record of general, civil and criminal jurisdiction within its territorial boundaries, beyond a question, and is so expressly declared. Even without this express declaration, it would, from its constitution and powers, be a court of record. Furthermore, the 19th section of the act provides for the removal of all actions, prosecutions and appeals, at the election of the parties, or either of them, from the judgments of justices of the peace pending in the Common Pleas and Quarter Sessions of Luzerne county, having arisen within the limits of the city of Scranton, into the Mayor’s Court for determination and the arbitration laws of the Commonwealth are extended to said court. These facts illustrate most clearly what we have already said, that the court in question is a court of record, of general jurisdiction, as well as a municipal court, and it follows that its judges are required by the Constitution of the Commonwealth, to be elected by the qualified electors included in the boundaries of the city, and cannot be designated and appointed by an- act of the legislature.

The respondent claimed to hold and exercise the office of recorder of the Mayor’s Court thus established, under and by virtue of the 80th section of the act, which provides “that the president judge of the 11th Judicial District of the Commonwealth, or of that district of which the county of Luzerne shall form a part, shall be the recorder of the said city,” and shall receive an annual salary of $500 for his services, payable one-half by the state and the other half by the city. This is the commission relied upon as the authority for exercising the office of recorder of the city by the respondent.

We have shown that the Mayor’s Court is not only a municipal court, but a court of general civil and criminal jurisdiction — is in fact a court of an independent judicial district. Now, in such a case, the Constitution expresses itself in no ambiguous terms. It says in sect. 2, art. 6 (Amendment of 1850):—

“ The judges of the Supreme Court, of the several Courts of Common Pleas, and of such other courts of record as are or shall be established by law, shall be elected by the qualified electors of the Commonwealth in the manner following, to wit, the judges of the Supreme Court by the qualified electors of the Commonwealth at large; the president judges of the several Courts of Common Pleas, and of such other courts of record as are or shall be established by law, and all other judges required to be learned in the law, by the qualified electors of the respective districts over which they are to preside or to actas judges.”

Here is a distinct mandate of the Constitution, requiring the election of the recorder of this court by the people of the district or city, and whatever the Constitution enjoins to be done, in a particular way, amounts to a prohibition of all other modes and methods of doing the same thing: Page v. Allen, 8 P; F. Smith 388. We have shown this Mayor’s Court of Scranton to be a court of record, not only from its nature and necessary inherent powers in view of its jurisdiction, but the express words of the act creating it. The Constitution requires the judges of “ such courts of record as are or shall be established by law, and all other judges required to be learned in. the law, to be elected by the qualified electors of the respective districts over which they are to preside or to act as judges.” That the recorder is a judge, all text-writers who speak of the office affirm. The reference in the argument of the Attorney-General clearly establishes this. In 1 Bac. Abr. 657, it is said that in the Court of Hustings, at Guild Hall, before the lord mayor and sheriffs, “ when any matter is to be argued and determined, the recorder sits as a judge, with the mayor and sheriffs, and gives rules and judgments therein.” In Respub. v. Dallas, 3 Yeates 300, Shippen, C. J., said: “In the strict legal sense of the word, the recorder is a judge; he is a justice of the peace, and he is a constituent and principal member of a court of record.” In a constitutional view, the name is nothing. If it be the recorder’s duty to act as a judge of a court, as it certainly is, under this act of incorporation, the Constitution requires that he be elected by the qualified citizens over whom he is to be the judge. In this state the recorders of the mayors’ courts have always been appointed from persons learned in the law, and have ever been recognised as judges, with fixed salaries and specified terms of office. The act in question, by indirection, recognises this as a necessary qualification. No one can be recorder, by its terms, who is not- the president judge of the Court of Common Pleas of the judicial district, for the time being, in which the county of Luzerne shall be. As such president judge-is required by the Constitution to be learned in the law, it follows, that the recorder’s office being filled by that incumbent, he will be learned in the law also.

Whether, therefore, we regard this Mayor’s Court as within the constitutional category of “such other courts of record as shall be established by law,” or that the recorder is to be regarded as a judge, or that he is required to be learned in the law, in either and all of these contingencies he, by the Constitution, must be elected. These requisites all co-exist in the constitution of this court. The provision, therefore, to confer the office of recorder upon the respondent, directly by Act of Assembly, was a clear violation of the constitutional mandate for an election. He could only fill that office by the choice of the people of the city at the polls. Nor would he have been eligible by election to have filled the office, holding, as he did, the office of president judge of the Common Pleas of Luzerne county. Section 2 of art. 5 of the Constitution prohibits judges holding “ any other office of profit under the Commonwealth” during their continuance in office, and we have seen that a salary is attached to the office of recorder in this case.

But it was contended in argument that the respondent, having been elected president judge of the Common Pleas of Luzerne county, by the electors of the territory embraced by the city of Scranton, in common with the other portions of the county, he was therefore an elected recorder in the sense of the Constitution. This argument concedes the necessity of an election. But how, by one election, he could hold two distinct and independent offices, such as president judge of the Common Pleas and recorder of the Mayor’s Court, is not so clear. We think the position totally inadmissible in its application to the question in hand, and needs no argument to refute it. By such a process every township in the county might be included in mayors’ courts, and the judicial business, diverted from its legal centre, come to be administered in isolated portions of the county. We should not fully protect and conserve the Constitution of our Commonwealth, as we are bound to do, were we capable of yielding to such suggestions. Nor ought we to be deterred from giving full scope to every of its provisions by appeals to consequences arising from its misinterpretation and consequent violation. Were such considerations to prevail, the instrument in time would disappear altogether by attrition of repeated encroachments, and its very existence become traditionary. But we by no means concede the consequences anticipated and deprecated in the argument of the respondent’s counsel. What they may be, is not before us. It is time enough to treat of them when they come before us. In nothing said in this opinion, is it in the least intended to refect on the learned and able president of the Common Pleas, who acted as recorder of the Mayor’s Court of Scranton. That he was mistaken in assuming the discharge- of those duties, we believe, but we fully accord to him the utmost conscientiousness in so doing. Thus have we given some of the reasons inducing the entry of judgment in this case in July last; more might be added, but we regard further elaboration unnecessary. We felt ourselves constrained to decide that the respondent was not legally the recorder of the Mayor’s Court of the city of Scranton, and entered judgment accordingly.


text:
    Robinson et al. versus Narber et al.

    1. Whether a defendant asking a stay of execution is a freeholder, is a fact not reviewable by the Supreme Court.
    2. The evidence heard on the question in the court below, forms no part of the record.
    3. In arrest of two upon process, if one is unprivileged, the plea of privilege in the other is not ground to discharge from arrest.
    4. Stay of execution is not on the ground of privilege, but security.
    5. Where there are several defendants in a judgment, a stay of execution will be allowed on sufficient security on the application of one only.
    6. The same rule applies where one has a sufficient freehold.
    March 15th 1870.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Tioga county: No. 372, to January Term 1870.
    In the court below, on the 11th of November 1869, C. & J. L. Robinson brought an action of assumpsit against Robert C. Cox, William F. Wiseman and William Narber. On the 6th of December 1869, the plaintiffs took judgment for want of an affidavit of defence for f 1012.37. An execution was issued December 28th. On the 4th of January 1870, Narber claimed a stay of execution as a freeholder, on which a rule to show cause was granted.
    The court (White, P. J.) heard evidence on the return of the rule, and, against the objection of the. plaintiffs, made the rule absolute 1st February 1870 and allowed the stay.'
    The plaintiffs took out a writ of error and assigned for error the order of the court allowing the stay.

      W. 3. Smith, for plaintiffs in error,
    cited Girard v. Heyl, 6 Binn. 253.
    There was no paper-book for the defendant in error.
   The opinion of the court was delivered, March 21st 1870, by

Sharswood, J.

Whether defendant William Narber was possessed of an estate in fee simple within the county of Tioga worth the amount of the judgment recovered, clear of all encumbrances, so as to entitle him to a stay of execution, under the 3d section of the Act of June 16th 1836, relating to executions (Pamph. L. 762), was a question of fact not reviewable in this court on a writ of error. It depended upon the opinion of the court upon evidence submitted to them, which forms no-part of the record which is brought here.

It is contended, however, that such a plea, by one of several defendants, is not a legal ground for allowing a stay of execution, upon the general principle that if a privileged person is joined with those who are unprivileged, he thereby loses his privilege. This is undoubtedly true in the case of arrest upon process, 1 Tidd’s Prac. 84, and was recognised and applied in Fife v. Keating, 2 P. A. Browne 135, where it was held that if a freeholder joins with one who is not exempted from arrest in the commission of a joint trespass, the court will not abate a writ of capias issued against them jointly.

But the stay of execution is not on the ground of a mere privilege in the defendant, as is the ease in the exemption of a freeholder from arrest under the Act of March 20th 1728, 1 Smith 164; the value of the freehold there has no relation to the amount demanded. But to secure a stay of execution it must appear that the lien of the judgment, prior to all other encumbrances, is sufficient security for the sum recovered. Where one of the defendants is able to show that he is possessed of an estate in fee simple worth, in the opinion of the court, the amount of the judgment, it is equal if not better than the security provided for ‘ in the 4th section. It cannot be questioned that, if such security be entered, the defendants will be entitled to a stay without regard to the fact that it was entered at the instance of one or all the defendants. In that case, there is nothing but the personal obligation of the bail; here, there is a first lien fastened on the land itself, and which is subject to the execution of the plaintiff as soon as the stay has expired, or if there should be a judicial sale in the mean time, it will give the plaintiff a right to payment from the proceeds in preference to all others.

Order affirmed.