author: Mr. Justice Paxson

text:
    Steiner, Administrator, etc., versus Erie Dime Savings and Loan Co.
    1. In a suit upon a promissory note against the administrator of a surety thereon, the principal in the note, being a party interested in the event of the suit, is not, under the provisions of the act of 1869, a competent witness for the defendant.
    3. The defendant in a suit can put in evidence, under the plea of payment, only such facts as tend to prove common law or actual payment either in money, or by the transfer of choses in action or other property which is accepted as money.
    8. In a suit by a bank against the surety upon a promissory note, the defendant pleaded payment, and on the trial offered in evidence the bankbook of the principal in the note showing deposits by him with the plaintiff after the maturity of the note, largely in excess of the amount thereof. Defendant’s contention was that the plaintiff was bound to appropriate said deposits in payment of the note, and that its failure to do so relieved the defendant from liability. Hdd, that this defence was equitable merely, and that therefore, the evidence offered was inadmissible under the plea of payment.
    4. Semble, that under the plea of payment with leave, etc., the defendant may offer any evidence which shows that ex aequo et bono, the plaintiff ought not to recover, provided that notice has been given of the special matter offered in evidence. If such notice, however, be not given, the door is closed upon every merely equitable consideration which falls short of technical payment.
    5. Where a special act of assembly is not furnished to the Supreme ■ Court, it, will presume that the construction put upon the act by the court below was right.
    October 18th 1881. Before Sharswood, O, J., Mecrur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Erie comity: Of October and November Term 1881, No. 141.
    Assumpsit by the Erie Dime Savings and Loan Company, against Frank F. Steinei’, administrator of Jolin G. Braun, deceased, upon two promissory notes given by one Henry Stalil as principal, and the said J. G. Braun as surety. The defendant pleaded non assumpsit, and payment with leave to give special matter in evidence. When the case was called for trial, before Brown, P. J., defendant’s counsel moved to withdraw the said pleas and enter the simple plea of “ payment.” This was allowed without objection.
    The plaintiff, having put in evidence the notes sued upon, rested. The defendant offered in evidence the deposition of Iienry Stalil, deceased, which had been taken under a rule to take depositions. Objected to, on the ground that Stabl, being the principal in the said notes, was interested in the result of the suit, and, the action being against an administrator, the act of 1869 was not operative to render bis testimony competent. Objection sustained; exception.
    The defendant then offered in evidence Heny Stabl’s bankbook, showing deposits made by him in the corporation plaintiff, after the notes in suit became due, of moneys largely iu excess of the amount of said notes. Objected to, as the offer does not show that any of the money deposited was appropriated to the payment of the notes, and because irrelevant under the plea of payment. Objection sustained ; exception.
    The court instructed the jury under the pleadings and evidence to find a verdict for the plaintiff. As to the amount of the verdict the court said:—
    “ The counsel have made a computation of the amount due, on the basis of ten per cent, interest, and five per cent, attorney’s fees, and under the evidence we say to you that under the special law having reference to the Dime Savings Bank, it may be unjust, but as to that we have nothing to do; the law gives them the right to charge ten per cent., and we instruct you that that, should be the measure of interest, together with the five per cent, added.”
    Verdict for the plaintiff for the full amount claimed ($2,416.74) and judgment thereon. The defendant took this writ of error, assigning for error the rejection of his offers of evidence, the direction to find a verdict for the plaintiff, and the portion of the charge relating to the assessment of damages above quoted.

      Benson (.Brainerd with him), for the plaintiff in error.

      Henry Souther and E. L. 'Whittelsey, for the defendant in error.
    October 24th 1881.
   Mr. Justice Paxson

delivered the opinion of the court

The deposition of Henry Stahl was properly rejected. He was liable in event of a recovery, for the costs, and to this extent at least was interested in defeating the action. Nor was he made competent by the Act of 1869, for the provisions of said Act do not apply to suits by or against administrators. This was a suit against an administrator.

The bank-book, the rejection of which forms the subject of the second specification of error, might possibly have been evidence had the pleadings stood as originally filed. But when the cause was called for trial below, the defendant withdrew the plea of non-assumpsit and went to trial upon the plea of payment alone. The bank-book did not even tend to support this plea. It merely showed the deposit of money by Stahl which was subject to his check. This, in the absence of any appropriation to the notes in suit, or direction to so appropriate it, was not payment. Indeed, the defendant did not allege that it was payment, his contention being that the bank was bound to appropriate the deposits to the notes, and that its failure to do so relieved Brown, who was Stahl’s surety. This was an equitable defence, and under all the authorities was not admissible under the plea of payment. It is sufficient to refer to Updegraff v. Spring, 11 S. & R. 188; Hamilton v. Moore, 4 W. & S. 570; Covely v. Fox, 1 Jones 171; Holt v. Bodey, 6 Harris 207. The plea of payment means common law payment — actual payment. It need not be in money; it may be by the transfer of dioses in action, or other property, but it must be something which is accepted as money. When payment is pleaded with leave to give the special matter in evidence, an equitable defence such as the one set up in this case may be introduced when the proper notice has been given. Such plea, with notice, operates substantially as a bill in equity praying an injunction ; admitting of any suggestion which shows, ex seqno et bono, the plaintiff ought'not to recover; without notice, the door is closed upon every merely equitable consideration, which falls short of technical payment: Hawk v. Geddis, 16 S. & R. 28.

We see no error in those portions of the charge referred to in the 3th and 4th specifications. We were not furnished with the special Act regulating the rate of interest which the corporation plaintiff might be allowed to charge, and in its absence must presume the court below construed it correctly.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Stekrett

license: Public Domain

text:
    Angier versus The Eaton, Cole & Burnham Company.
    1. Where the evidence in a case is all one way, and is so satisfactory that a court would not sustain a verdict that should find against it, the Supreme Court will not reverse the judgment because the court below declared the true effect of the evidence instead of submitting it to a jury.
    2. Eister v. Paul, 4 P. F. Smith, 196, followed.
    3. Where the licensee of a patent invalid by reason of a prior outstanding patent for the same invention, can show that the owner of the prior patent is asserting his exclusive right thereto, by supplying the market willr the patented article, and forbidding all interference on the part of others, whereby said licensee is deprived of the enjoyment of the monopoly for which he contracted, he may defend in an aetiou for royalties on the patented articles, on the ground of actual failure of consideration.

      4. Semite, however, that while the patent is apparently valid and the licensee is enjoying the benefit of the supposed validity, lie is bouud to pay the stipulated royalty, and cannot set up as a defence the actual invalidity of the patent.
    October 18th 1881. Before Sharswood, O. J., Meecur, Gordon, Paxson, Trunkby, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Venango eoimty : Of October and November Term 1881, No. 191.
    Assumpsit, by J. Dorsey Angier against The Eaton, Cole & Burnham Company, to recover the amount of certain royalties for tbe manufacture by the defendant of tbe “ Crocker Check Valve,” a patented article, under an agreement between tbe plaintiff and tbe defendant, the material portions of which were as follows : — ■

      “The said party of the first part [plaintiff], in consideration of the performance by the second party [defendant] of the agreement hereinafter stated, to be by it carried out., hereby grants to the said second party the exclusive right and privilege to manufacture and sell the ‘ Crocker check valve,’ a patented invention. The Eaton, Cole & Burnham Company hereby agree to manufacture said Crocker check valves in sufficient quantity to supply the demand therefor.
    “All valves manufactured by the raid second party are to be stamped with the patent mark and with the number.
    “ The said second party shall, on or before the fifteenth day of each month after the present, make and render to the first party a statement showing the sales of the previous month ending on the last day thereof. And the said second party (with said statement), shall send to the first party on or before the fifteenth day of each month as aforesaid, the money for each and every valve sold as aforesaid, at the rate of $2.50 for each net.”
    Prior to this agreement the plaintiff and the defendant were' joint owners of the said “ Crocker patent.”
    Pleas, payment with leave, and special pleas averring failure of consideration, in that owing to a prior patent issued to one James Old the patent under which the agreement was executed was invalid.
    The defendant admitted the manufacture and sale of 1201 check valves under the agreement.
    On the trial, before Taylor, P. J., the defendant presented the following point:
    9. “ The uncontradicted evidence is that the plaintiff and defendant entered into this contract on the day of its date ; that the plaintiff thereby granted to the defendant “ the exclusive right and privilege to'inannfacture and soli the ‘Crocker check valve,’ a patented invention.” That the patent for such invention was one issued to Frederick Crocker October lltli 1861, That the plaintiff, previous to the making of the contract, had been informed that there were prior letters patent which affected the question whether the said letters patent, to Frederick Crock-er were valid; that plaintiff did not. communicate this information to the defendant; that the defendant had no knowledge of the existence of the prior patent, but believed the letters patent to F. Crocker were valid ; the defendant manufactured and sold check valves and rendered accounts to the plaintiff and paid him the royalty agreed upon until information was given it that it infringed by such manufacture upon the letters patent granted February 18th 1862, to James Old ; that it notified the plaintiff and discontinued rendering accounts, and since has refused to pay any royalty; that the check valve patented by Frederick Crocker is shown and described in said letters patent issued to James Old, and also shown arxl described in certain other letters patent issued to James Thomas, Jr., September 13th 1864, both of which letters patent are prior in time to the let-t,ers patent issued to Frederick Crocker, October lltli 1864; that James Old granted a license, under his patent to J. B. Sheriff & Son to mannfactni’e and sell check valyes; that such licensees made and sold under such license the same identical check valve for the same purpose as that made and sold by the defendant under the contract sued on in this case ; that the monopoly of the defendant, granted it by this contract, was thereby destroyed; that neither the defendant nor the plaintiff had any power or legal right to prevent said J. B. Sheriff & Son from manufacturing such check valves ; that said J. B. Sheriff & Son seriously injured the trade of the defendant; that the competition of the said J. B. Sheriff & Son in the inarket requii’ed the defendant to reduce the price of the check valve, and thereby diminished its profits : that the defendant therefore received several thousand dollars less profits than it would have received had it in fact received the exclusive right and privilege.to manufacture and sell the Crocker check valves. These facts being proved by uncontradicted evidence you are directed to render a verdict for the defendant.”

      Answer. “All points but the last one having been withdrawn, it is affirmed. The plaintiff having contracted to sell the defendant an exclusive right, which was the sole consideration for the agreement to pay the sum claimed by the plaintiff; and the uncontradicted evidence showing that the plaintiff had no such right to convey, but that such right was vested in one James Old, by reason whereof the consideration for the promise to pay having entirely failed, the plaintiff ought not to recover.”
    The court instructed the jury, inter alia, as follows :
    “ These facts being proven and uncontradieted, you are in.strneted that the plaintiff cannot recover, and your verdict must be for the defendant.”
    Verdict accordingly for the defendant, and judgment thereon. The plaintiff took this writ of error, assigning for error, inter alia, the affirmance of the defendant’s point, and the instruction of the court to find for the defendant.

      Roger Sherman, for the plaintiff in error.
    There having been no fraud in making the agreement, and no warranty of the validity of the patent, and the defendant having in fact enjoyed the monopoly contracted for, the mere fact that a prior patent for a similar invention had been issued to another person, who might have interfered but did not, was no defence to the payment of royalties on the articles admitted to have been manufactored and sold by the defendants. The consideration of the agreement was the enjoyment of a monopoly, not the parting of the title to the plaintiff’s joint interest in the patent right. The defendant got what he contracted for, and we do not seek payment for more valves than lie made and sold without interference from, or liability to account to, the owner of the Old patent: Kinsman v. Parkhurst, 18 Howard 289 ; Lawes v. Purser, 88 E. C. L. Rep. 930; Hall v. Conder, 89 E. C. L. Rep. 22; Marston v. Swett, 66 N. Y. Rep. 206 ; Palmer’s Appeal, 28 Pitts. Leg. Jour. 299; Bellas v. Hays, 5 S. & R. 427.

      H. D. Hancock, for the defendant in error.
    By the plaintiff’s “-grant” of the exclusive right, etc., he warranted that he had title to convey not only the exclusive right to the valve described in this Orocker patent but to all valves of similar construction, which were known by the generic name of the “ Crocker check valve.” It being proved that ho had not such right, there was a clear failure of consideration, and the defendant, having been led into an infringement of the Old patent by the plaintiff’s concealment of its existence when the contract was entered into, has incurred liability to Old ; and he cannot be also held liable to the plaintiff for royalties on the invalid Orocker pateut: Marston v. Swett, 82 N. Y. 527; Holliday v. Rheem, 6 Harris 468; Bellas v. Hays, 5 S. & R. 427; Geiger v. Cook, 3 W. & S. 270; Fallis v. Griffith, Wright (Ohio) 303 ; Earl v. Page, 6 N. H. 480; McDowell v. Meredith, 4 Whart. 314.
    The construction of the agreement was for the court, and the uneontradicted evidence having established the defendant’s averment's, the court properly instructed the jury to find for the defendant.
    January 2d 1882.
   Mr. Justice Stekrett

delivered the opinion of the court,

The general inquiries, suggested by the assignments of error in this case, are, whether there was any question of fact that should have been submitted to the jury; and, if not, whether, upon the facts established by the uneontradicted evidence, the defendant was entitled to a verdict. Both of these questions will be more readily answered by briefly noticing some of the more prominent facts disclosed by the testimony.

By assignment from the patentee the parties to this suit became joint owners of certain letters patent, issued October 11th 1864 to Frederick Orocker for an “ Improvement in Lifting Pumps,” better known in the oil producing business as the Crocker check valve;” and, on March 11th 1876, they entered into a written agreement by which the plaintiff granted to the defendant company the exclusive right and privilege to manufacture and sell tlie ‘ Crocker check valve,’ a patented invention.” In consideration thereof the defendant agreed to manufacture the “■ valves in sufficient quantity to supply the demand therefor to render an account sales monthly and' pay the plaintiff $2.50 for each valve sold. The defendant accounted and paid for all valves manufactured and sold prior to September 1870, at which time it was formally notified that by the manufacture and sale of the valves it was infringing letters patent issued to James Old, February 18th 1862, more than two years prior to tlie date of the Crocker patent. Tlie plaintiff was thereupon informed of this fact and further payment of royalty was refused. In November 1870, a bill in equity was tiled by James Old, in the Circuit Court of the United States for the Western District of Pennsylvania, against the defendants, charging the infringement of his patent and praying for assessment of damages, &c. This suit was discontinued in January 1879, after the defendants had been subjected to great outlay in defending the same. The present action was brought on the contract, in July 1878, to recover the stipulated royalty on 1201 valves which the defendant manufactured and sold from September 1876 to date of suit.

The substance of the defence, as shown by the pleadings, was that tlie consideration, for which tlie company agreed to to pay the royalty in question, had wholly failed; that the supposed patent under and by virtue of which it was to have and enjoy “ the exclusive right and privilege to manufacture and sell the Crocker check valve,” was invalid by reason of the prior patent for a new invention precisely the same, in principle, in mode of operation and in tlie results produced, as that covered by the Crocker patent; that check valves, identically the same, and used for the same purposes as those made and sold 'by tlie defendant under the contract in suit, were manufactured and sold by licensees of James Old, tlie original patentee; that neither defendant nor plaintiff could prevent said licensees from manufacturing and selling the valves; that the competition thus existing in tlie market required defendant to reduce the price of the valves, and in consequence thereof its profits were several thousand dollars less than they would have been if it bad enjoyed the exclusive right and privilege contemplated by the contract. These and other allegations on which the defence was based were clearly proved by testimony that was neither contradicted nor in any manner impeached.

The learned judge, after reciting the facts thus established, instructed the jury to find for the defendant. In this it is claimed by the plaintiff that there was error.

It is very evident from an examination of the respective let- ' ters patent that in every essential particular the “ Crocker cheek valve” i'. the same mechanical device that is described in and covered by 1he patent previously granted to James Oid ; and hence the court was right in thus construing these instruments of evidence. There is nothing in the verbal testimony that conflicts therewith ; on the contrary, the testimony of the experts is in full accord with the views expressed by the court. Eor is there anything in the defendant’s answer in the equity suit that would justify any other conclusion. So far as the substantial identity of the valves is concerned, the evidence was all one way, and there was no question of fact for the jury to pass upon. There was really no dispute as to any of the material facts which the court treated as having been established by uncontradicted evidence. It is true the court might have submitted the testimony to tiie jury, but under the circumstances there was no error in not doing so. As was said by Woodward, C. J., in Eister v. Paul, 4 P. F. Smith 196, “where the evidence is all one way, and is so satisfactory that a court would not sustain a verdict that should find against it, we will not reverse the judgment because the judge declared the true effect of the evidence instead of submitting it to the jury.” There was no error therefore in practically ruling that there was no disputed question of fact for the jury to determine.

The next question is whether the court erred in holding, as matter of law, that upon the facts established by undisputed evidence the defendant was entitled to a verdict.

It cannot be doubted that the sole consideration for defendant’s agreement to pay $2.50 for each valve manufactured and sold, was “ the exclusive right and privilege to manufacture and sell.” That right was in the nature of a monopoly, and so long as it was enjoyed the defendant was bound to pay and did ¡jay the consideration therefor; but when, by reason of something beyond the company’s control, it was deprived of that exclusive right; in other words, when the consideration failed, without any fault of the defendant, why should it be compelled to pay the stipulated royalty ? When the agreement was executed the Crocker patent was no doubt regarded, at least by the company, as valid; and therefore sufficient to protect it in the enjoyment of the exclusive right intended to be secured by the contract. Whatever knowledge to the contrary the plaintiff may have had, he evidently assumed, in bargaining with the defendant, that the valve was a patented invention, covered and protected by the Crocker patent; and, in consideration of the royalty, he expressly granted the exclusive right therein specified. In its legal effect the agreement is a license to manufacture and sell the valves, but it is of such an exclusive character as practically to amount to a monopoly; and, while it was enjoyed as such, the invalidity of the patent, without more, was no defense to the payment of the royalty. The recognized principle applicable to such licenses is that while the patent is apparently valid and the licensee is enjoying the benefit of its supposed validity, he is bound to pay the stipulated royalty, and cannot set up as a defence the actual invalidity of the patent; but when, in addition to the invalidity of the patent, by reason of a prior outstanding patent for the same invention, it is shown that the owner of the prior patent is asserting his exclusive rights thereunder by supplying the market with the patented article, forbidding’ all interference on the part of others, &c., and the licensee under the invalid patent is deprived of the enjoymentof the monopoly for which he contracted and in consideration of which he agreed to pay the royalty, he may defend on the ground of the actual failure of the consideration : Marston v. Swett, 82 N. Y. Rep. 527. That was a suit by a patentee against his licensee to recover royalty, in which the defense was failure of consideration ; and the court say, “ the substantial consideration to uphold these royalties was the transfer to defendants of a monopoly, the right to an exclusive use, and we see at once that the evidence offered tended to show the total failure of that consideration.” . . . . “It is impossible not to see that if the plaintiff’s theory should prevail these defendants might be liable at one and the same time to pay royalties to the plaintiff, who had no patent, and to Goodfellow, who had. The injustice of such a result makes us slow to believe that any rule of law requires us to sustain it.” This observation applies with equal force to the case before us.

It follows from what has been said that there was no error in directing a verdict for the defendant.

Judgment affirmed.


author: Mr. Justice Trunkey

text:
    School District of the City of Erie versus Fuess.
    1. Where the owner of a building employs a contractor to execute certain improvements and repairs thereon, and the latter is guilty of negligence while carrying on the work, the contractor alone is liable for damages resulting from such negligence, and not the employer.
    3. A school district is a corporation having limited powers for cavrybig out tlle common school system within its limits, and cannot be held to the same measure of accountability forlhe wrongful acts and neglects of its officers, servants or agents, as a private corporation.
    3. A school district, employed a contractor to make certain repairs and improvements to the school-house, under the directions of a superintendent named by the district. It was expressly agreed that the contractor should not enter upon the work until the school was dismissed for the season. The superintendent chosen by the district was the architect of the contemplated improvements, and was authorized only to direct the contractor as to the manner in which the work was to be executed. The contractor, by permission of the superintendent, began the work before the school was dismissed, and performed it so negligently that one of the school children was injured in consequence. It appeared that two of (he members of the school board had visited the school-house after the work had been begun, but did not interfere or direct it to bo stopped. In an action by the injured child against the school district to recover damages for the injuries done him, — Held, that as the contractor was, at the time of the accident, exercising an independent employment, the school district was not liable for his negligence. Held, further, that as the superintendent had no power to alter the time when the work was to be performed, his permission to the contractor to enter thereon, before the dismissal of the school, did not bind the school district or render it liable for the contractor’s negligence. Held, further, that the mere fact that certain members of the school board had observed the fact that work had been begun, and did not interfere or stop the same, did notin any way render the school district liable for the contractor’s negligence. Held, therefore, that the said school district, defendant, was entitled to judgment.
    October 18th 1881. Before Sharswood, O. J., Mercub, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Erie comity: Of October and November Term 1881, No. 85.
    Case, by Frederick C. J. Fuess, by his next friend Joseph Fuess, against the School District of the City of Erie, to recover damages for personal injury caused by the alleged negligence of the defendant.
    On the trial before Galbraith, P. J., the following facts appeared :
    The plaintiff, a boy of about fifteen years of age, was a pupil in Public School No. 7, in the city of Erie. On May 13th 1875, the School Board, having determined to make some improvements to the building, entered into a contract with one John Hendry, a builder, the material provisions of which were as follows:
    “ 1. Party of the first part accepts the tender made by party of the second part, for the extraordinary repairs ordered upon public school building No. 7, at the sum of $7,460.
    “ 2. Second party agrees to furnish all the materials and perform all the work required for said public school building No. 7 in strict compliance with the plans and specifications prepared by Henry Sheuk, under the superintendence of said Henry Shenk or such other person as said first party may designate, for said sum of $7,460.
    “ 3. First party will deliver possession of said building to second party on the 3d day of July 1875, and said work must be fully completed, and the premises ready to be re-delivered to first party, on or before the 1st day of September 1875. First party may be able to deliver possession of premises to second party at an earlier date than July 3d 1875, but is not bound to do so.
    “i. Payments for said work will be made upon monthly estimates of the superintendent, and twenty per centum of all such estimates will be retained by first party until the final completion and acceptance of the work.”
    On the same day, the board entered into an agreement with Henry Slienk, whereby the said Sliink agreed “ to superintend the work proposed to be done under the contract this day signed between first party and John Hendry for extraordinary repairs to public school building No. 7,” and “to devote all the time to said work necessary to a careful and complete superintendence of the same.” Slienk was the architect, who had drawn the plans and specifications for said improvements. Both these contracts were formally approved by resolution of the Board of School Directors on May 15th 1875. Meetings of the school board were bold on the 3d and lltli days of June following, but no further action was taken concerning the giving of possession to the contractor at an earlier date than tliat named in the contract, viz.: July 3d. .
    About the 21st of June 1875, before the school bad adjourned for the summer vocation, Hepdry, with his workmen, commenced excavating tlie earth from under the building and around tlie pillars which supported the floor, to the depth of from two and a half to three feet, leaving mounds of gravel under the pillars. This work was begun by tlie direction or permission of Slienk. Slienk testified, liowever, that on the afternoon of the 22d of June he ordered tlie work stopped, because the men had taken out as much earth as it was safe to take from around the piers; that he went to the building on the next day about 11 a. m., and discovered tliat the men were still at work. He testified : “ I demanded to know why they were there at work ; I felt cross about it, and spoke crossly to them wlien I went in; I found that they had done that which was agreed they should not do; they had removed the pillars under two of the beams, and sliored them up with timbers, and were waiting for school to adjourn to dig out and remove the others; they said Hendry had been there that morning helping them to do it; this was contrary to my instructions, not that 1 had any authority to stop them, but did it as a matter of precaution ; I found fault about it, and said this work was to be stopped yesterday, and you were to do no work here to-day; they laughed at it, and said Hendry had been there, and they wore not going to kill anybody; I said a good deal to them about it; they said they would wait till school was oat, and then remove the other pier or piers ; I then went back to Mr. Wilkins’s house,. where Mr. Burton was waiting for me.” ....
    There was some evidence that two members of the school board visited the premises after the work had commenced and that they did not interfere or direct it to be stopped.
    Between 11 and 12 o’clock on the same day (June 23d), one. of the pillars in the basement, which had been undermined, sunk, thus taking away the support from an iron column supporting the floor of the second story, and causing the column to fall among the children in 'the school room on the first floor, whereby the plaintiff was seriously injured.
    The defendant presented, inter alia, the following points:
    3. The time for beginning the work of repairing school No. 7, having been fixed by the written contract with Hendry as July 3d 1875, no member or members of the school board had the power to change that contract so as to permit him to begin at an earlier daté, and having begun at an earlier date, he became a trespasser, and the school district cannot be h ¡Id liable for the damages arising from his unauthorized act, and therefore the plaintiff is not entitled to recover. Answer. No member of the school board had the power to change the terms of the written contract, but if the contractor, with the knowledge and assent of the superintendent appointed by the board, began the work before the time fixed in the agreement, and was permitted by him to carry on the work with the presence and knowledge of some of the members of the board, and the jury believe from the evidence that the plan and design of the work was in itself such as involved danger to the building, then the liability for injury resulting is not upon the contractor exclusively, but upon the school district. (Third assignment of error.)
    4. The time for beginning the repairs was a part of the contract with Hendry, and no authority from the defendant having been proven to change the time, and Shenk, the superintendent, having no authority to make any such change, the evidence that Shenk told him to begin work is not sufficient to relieve Hen-dry, or to charge and hold defendant answerable in this case. Answer. This point is refused for the reasons already fully given and explained. (Fourth assignment of error.)
    Yerdict for the plaintiff for $1,291.66 and judgment thereon. The defendant took this writ of error, assigning for error, inter alia, the answers to the above points.

      S. A. Davenport, for the plaintiff in error.
    A school district is a quasi corporation of limited powers and can be held liable only to the extent fixed by the G-eneral School Law of 1854. Such liability extends only to the official acts of the directors, acting collectively as a school board. The negligence complained of, not being that of the board, the plaintiff has no right of action against the school district: Small v. Danville, 51 Me. 350 ; Gray v. City of Brooklyn, 50 Barb. 365 ; 1 Dillon on Munie. Corp. 94, 96 ; 2 Addison on Torts, 1198; Wharton v. School Directors, 6 Wright 363; Kingsley v. School Directors, 2 Barr 28 ; Wachob v. School District, 8 Phila. 568. Even if the school district were liable to the extent that a municipal or other corporation is liable, the plaintiff would have no cause of action, lien dry was a contractor, exercising an independent employment, and not a servant or agent of the school district; consequently he, and not the school district was liable for damages arising from his negligence, or that of his employés : Allen v. Willard, 7 P. F. Smith 374; Reed v. Allegheny, 29 P. F. Smith 302 ; Erie v. Caulkins, 4 Norris 253. The fact that Hendry was acting under the direction of Slienk, the superintendent employed by the hoard, and thát individual members of the board saw Hendry’s men at work and did not stop them, does not change the above rule: Fair v. Philadelphia, 7 Norris 311; Reed v. Allegheny, supra; 16 Amer. L. Register, 56; Bank of Pittsburg v. Whitehead, 10 Watts 402; Bank of Northern Liberties v. Davis, 6 W. & S. 289; Kingsleys. School Directors, 2 Barr 28.

      Bravnerd (Benson with him), for the defendant in error.—
    The contract with Hendry provided that the hoard may deliver possession before July 3d; and Slienk, the superintendent, who represented the board, did deliver possession and direct the commencement of the work on the 21st of June. This rendered the school district liable. A school district is not exempt from any liability for negligence, to which a municipal corporation would be liable. It is in law a municipality of special statutory creation, similar to counties and townships: Commonwealth v. Morasey, 5 Norris 417; Wharton v. School Directors, 6 Wright 363.
    November 14th 1881.
   Mr. Justice Trunkey

delivered the opinion of the court

John Hendry contracted with the school district to furnish all the materials and perform all the work for the extraordinary repairs upon school building No. 7, instile!; compliance with the plans and specifications prepared by Henry Slienk, under the superintendence of said Slienk, or such other person as the district might designate. He undertook to do the work with reference to plans and specifications already' prepared, and agreed that he should not he entitled to pay for extra work or material, unless the same should be done or furnished on the written direction of the district indorsed on the contract. Possession was to be delivered to him for commencement of the work, on July 3d 1875, at which time the house would be unoccupied. It was contemplated that possession would be given at an earlier date, if the building should be previously vacated, but the district neither delivered possession nor agreed that the work should be commenced before the time named in the contract.

By agreement of same date, the district employed Shenk to superintend the work to be done by Iiendry, and devote all the time necessary to a careful and complete superintendence'of the same. His business was to see that Iiendry faithfully performed his agreement as the work progressed. He was not authorized to change or modify the contract in any particular. Nothing was committed to him other than-to superintend the work which was to be done ; he had made the plans and specifications which constituted a part of Hendry’s coutract; and -the allegation that “ Shenk was made the agent and superintendent of the school board, with full power to make the plans and specifications, and to begin and control the execution of the work for the board in all its details,” is gratuitous.

The plan of the work was such as involved danger to the building. Ileudry commenced before he was authorized, and the result proved the prudence of the school board in fixing the date for commencement after the vacation of the schools. The testimony shows that the injury to the plaintiff was caused by gross, if not culpable negligence. Shenk was superintending the work, and some of the members of the board knew the work was being done, before the accident.

In the instructions to the jury the court said : “ If the contractor, with the knowledge and assent of the superintendent appointed by the board, began the work before the time fixed in the agreement, and was permitted by him to carry on the work with the presence and knowledge of some of the members of the board, and the jury believe from the evidence that the plan and design of the work was in itself such as involved danger to the building, then the liability for injury resulting is not upon the contractor exclusively, but upon the school district.” That, we think, was error.

Where the purpose of the contractor is lawful and the owner of the property may lawfully commit its improvement to others, if the owner employs a contractor to do the work and the latter is guilty of negligence in doing it, the contractor and not the employer is liable. A person is not liable for the acts of another, unless the relation of master and servant or principal and agent exists between them. When an injury is done by a party exercising an independent employment, the party employing him is not responsible to the person injured. This principle applies to municipal corporations : Painter v. The City of Pitts-burg, 10 Wr. 213. If the contractor is to perform according to the plans and under the direction of an architect he is nowise relieved from his positive covenants to do the work; he continues to have control over the men lie employs and of the mode of performing his contract, and is liable for injuries caused by his neglect: Allen v. Willard, 7 P. F. Smith 371. In a contract with a city for the construction of a sewer, it was stipulated that the work should be commenced and carried on at such times and in such places and in such a manner as the engineer of the city should direct; and that was not such a reservation of power as made the city liable for an injury occasioned by the negligence of the contractor: City of Erie v. Caulkins, 1 Nor. 217. A contractor for the grading and paving of a street in a city, the work to be done “ under tlie directions and to the satisfaction of the city engineer and the committee on streets,” is responsible for an injury he does to property abutting on the street, and the city is not liable: Reed v. Allegheny City, 29 P. F. Smith 300.

If the school district is to be treated as strictly a municipal corporation, the authorities settle that the employment of Shenk did not operate as a relief to the contractor, nor did it make the district liable as a master or principal for Hendry’s trespass or carelessness. But school districts are corporations of lower grade and less power than a city, have less the characteristics of private corporations and more of a mere agent of the state. They are territorial divisions for the purposes of the common school laws, and their officers have no powers except by express statutory grant and necessary implication ; and these are for the establishment and maintenance of the public schools. The common ' school system partakes much of the nature of a public charity, extends over tlie whole state, is sustained by the public moneys, and the directors, who devote much time and labor for the public benefit, receive no compensation for their services. Unless exempted by the act of incorporation, or by law, a private corporation is liable for the wrongful acts and neglects of its officers done in the course and within the scope of their employment, tlie same as a natural person is for the acts and neglects of his servant or agent. A less stringent rule applies to public corporations, and least stringent of all should be applied to school districts, whose officers have limited and defined powers in a system exclusively for the free education of the children in the Commonwealth.

Tlie directors as a board must exercise their powers — tlie board may make contracts, may authorize a committee to make a contract, and may appoint an agent for a proper and specific purpose. One or more of the directora, without authority from the board, can make no contract binding upon the district, cannot change a contract, can do no act fixing the district for a liability. He may be personally responsible to those who suffer from his unauthorized acts, as any other citizen would be.

If some of the directors were present ?„nd knew that Hendry commenced the work before the time named in the agreement, whether they assented or objected, the district was not bound. They could.not give him the right to begin at that time. If he began with the knowledge and assent of Shenk, the superintendent appointed by the board, he knew or ought to have known that tíllenle had no power to assent for the district. Hendry’s contract and Shenk’s contract with the .board contained no such authority. Shenk’s sole employment was to superintend the work. In absence-of a contract and without authority from the board, had those directors, who knew what Hendry was doing, made the excavation themselves, they would have been individually liable for an injury resulting to any person - by reason of their negligence — -the district would not have been bound to answer for the consequences of their trespass.

The school board stipulated that possession of the building would be delivered at a date after the vacation of the schools. Before the schools had been closed some of the directors discovered that persons were making a dangerous excavation, and it would have buen humane in them to have endeavored to stop it. The board' might have been convened, and, if necessary, the schools suspended until the progress of the work could have been eujoined by legal process. But the directors omitted such action, and it is claimed that the district is liable in damages for the injmy done to the plaintiff by the act of a trespasser, or the unauthorized act of a contractor. Although the board of directors took no measures to prevent the excavation, we are of opinion that the persons who caused the injury are liable, and not the school district.

The third and fourth assignments of error are sustained.

Judgment reversed.


author: Mr. Justice Green

text:
    Commonwealth, ex rel. Butterfield versus McCarter.
    1. A., a police constable of a municipality, commissioned for a period of one year, was dismissed during Iiis term of office by the mayor of the city for unfaithful performance of hi3 duties. He thereupon presented a petition fora writ of quo warranto directed to said mayor to show cause why he occupied his office, alleging that though respondent had taken toe oath of office customary in the municipalty he had failed to take that prescribed by Article VII. of the Constitution. Held, that the petitioner, having no claim to or interest in the office of mayor, and no absolute title to be restored to his position in the event of the ouster of the respondent, was not entitled to the writ by virtue of the provisions of tile Act of June 14fch 1836, section 2, Pamph. L. 623.
    2. A writ of quo warranto is not a writ of right and the courts are not bound to issue it except in the exercise of a sound discretion.
    3. The facts of the present case made it perfectly manifest that a mere spirit of personal revenge was the animating cause of the application for the writ. Hence, on this account alone, such application should have have been refused.
    4. Article VII. of the Constitution does not require municipal officers to take the oath of office prescribed thereby. The Act of April 18ih, 1S74, sect. 1, Pamph. L. 64, does require them to take such oath. It does not, however, impose any penalty of forfeiture of office for a violation of its provisions, but, on the contrary, imposes a specific penalty of fine and imprisonment. Hence, semble, that the respondent having taken the oath customary in the municipality, it was extremely doubtful wheLher there was any merit whatever in the application.
    October 19th 1881. Before Sharswood, C. J., Mebcur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Coima on Pleas of Erie county: Of October and November Term, 1881, No. 298.
    This was a petition by the Commonwealth of Pennsylvania ex relatione Francis Healey and Richard M. Butterfield, citizens of the city of Erie, for a writ of quo warranto directed to Joseph McCarter, requiring him to show by what authority lie holds and exercises the office of mayor of the city of Erie. The petitioner, Healey, afterwards, by leave of the court, withd rew from the proceeding, and Butterfield remained the sole relator. A rule was granted to sliow cause why the writ should not issue, and the defendant filed an answer.
    The facts as set forth in the petition and answer wore as follows : Butterfield was, on February 25th 1871, duly commissioned a police constable of the city of Erie, for the term of twelve months from January 31st 1871, and served as such until July 9th 1881, when he was discharged by the respondent, acting as mayor of said city. The respondent was duly elected mayor at a municipal election held the third Tuesday in February 1881, for the term commencing on the first Monday of April 1881, on which day he appeared at the Common Council room, when an oath was administered to him by his retiring predecessor in office, in the following form :
    “ I do swear that I will support the Constitution and laws of the United States, and of the Commonwealth of Pennsylvania, and that I will well and truly discharge my duties as mayor of the city of Erie, Pennsylvania, for the term for which I am elected, to the best of my knowledge and ability.
    “ Joseph McCarter.

      “ Sworn and subscribed this 4th ‘day of April, A. D. 1881. ' “ [l. s.] David T. Jones, Mayor.”
    The relator averred that said oath, not being the oath required by Art. VIL, section 1, of the Constitution, and by the act of April 18th 1874 (P. L. 64), the respondent has no right iin law to hold and exercise the office of mayor; that the said order discharging the relator was invalid, and that the relator was entitled, under his commission, to exercise the duties and receive the emoluments of police constable during the term for which he was commissioned.
    The respondent, in his affidavit, averred that at the time of taking said oath he was ignorant of the requirements of the Constitution and Act of 1874, as to the form of oath, that the oath taken by him was presented to him as the proper oath, and he believed it to be such, and that he did not intend to evade taking the legal oath. That he dismissed the relator because he was not performing his duties as they ought to be' performed, and that such action was in pursuance of the power and authority vested in him as mayor.
    The affidavit of D. T. Jones, the respondent, predecessor in office, wafe filed, which set forth that upon the expiration of his term and upon the inauguration of McCarter on April 4th 1881, he, Jones, administered the oath of office, taken by said McCarter, believing that it was the proper and legal oath and the only one required to be taken; that it was the same oath as had twice been administered to and taken by him, when he was inaugurated as mayor ; and that there was no intent nor understanding between himself and McCarter to evade the constitutional oath.
    The court entered a decree dismissing the petition and discharging the rule to show cause. Galbraith, P. J., filed the following opinion:
    “ The case for the relators rests upon the assumption, that the omission to take the oath prescribed by the law of 1874 works a forfeiture of the office in question. It is sufficient as to this that no such penalty is provided by the act, and if there were it would be indispensably requisite that there should first be a conviction before such forfeiture could be legally enforced.
    ® “ The constitution does not require municipal officers to take this oath. The term ‘ municipal officers ’ is in the Act of Assembly only. The complainants are here therefore not as attempting to enforce a right given or a duty prescribed by the Constitution, but to ask for the infliction of a penalty not mentioned in the act on which alone his complaint must rest.
    “ But it is not necessary to discuss this question of forfeiture. It is a sufficient and altogether fatal obstacle in the way that the relators have no such interest in the office in question as will require or justify the issuing of the writ of quo warranfo on their suggestion. It has been'repeatedly held by the Supreme Court of this state that the writ of quo warranto is not demand-able of right by a private relator. The act of 1836, it is true, provides “that in the case of municipal and corporate officers the writ may be issued upon the suggestion of the attorney-general or Ins deputy in the respective county or of any person or persons desiring to prosecute the same.” But the English statute of the 9th Anne in like manner, allowed information at the relation of any person desiring to sue or prosecute, and under that statute the rule always was, as shown by all the cases, that a private relator must have an interest. Our law, which substantially incorporates the provisions of the English statute, has been construed by our supreme court in the same way, and the words, “any person or persons desiring to prosecute the same,” held to mean airy person who has an interest to be affected, by which is meant an interest in the office itself and not an interest in some other office that may be indirectly affected or that has been interfered with by the removal of its incumbent, as is the alleged case here. That the language of the act does not give a private relator the writ of quo warranto in a case of public right involving no individual grievance was ruled in the Commonwealth v. Allegheny Bridge Company, 8 Harris 185 ; Murphy v. The Farmers’ Bank, 8 Harris 415; and Commonwealth v. Railroad, 8 Harris 518; and Judge Strong, in the case of Commonwealth v. Cluly, 6 P. F. S. 272, in commenting on these ciases and deciding the very question here presented, said: “ It is to be observed that the legislature has placed all the five classes of cases enumerated in the act on the same footing in this particular. If a private relator cannot sue to enforce a forfeiture without having an interest, the statute gives him no greater right when he complains of the usurpation of a county or township office. The right of a relator in each class of cases is defined by the same words.”
    “All the authorities show that in general the writ of quo warranto is issued at the suggestion of the attorney-general on behalf of the commonwealth, and that when the writ is allowed on the complaint of a private relator he must be shown to have an interest in the office in question / as for example when one has been lawfully elected and an incumbent bolds over and refuses to allow the officer elect to enter upon his duties. In such case a quo warranto will issue on complaint of the person entitled to the office because he has a direct legal interest entitling him to legal redress.
    “In the case of Commonwealth ex rel. Yard v. Meeser, 8 Wright 341, this well known rule was for once relaxed, but with evident reluctance — Chief Justice Lowrie, in delivering the opinion of the court, saying, “ It would be a vicious rule of law that would allow all public officers to be annoyed by a quo warranto at the pleasure of every intenneddler or malicious person, and therefore we have hesitated in granting this writ at the suit of a private person. But it is quite apparent that the relator here represents a large and respectable .political party and is not induced to act by mere personal motives.”
    “ The case of Commonwealth v. Jones, 2 Jones 365, cited and relied upon by the counsel for complainants, does not sustain his position or help his case in the least. It was there held that a quo warranto directed to one holding the office of mayor of a municipal corporation might be prosecuted by a private relator, but that it would not be granted in all cases, but only in the sound discretion of the court, even when the incumbent was ineligible and the relator a citizen of the corporation. That case was in its main features almost a precise parallel with the one now under consideration.
    “Without occupying further time it is sufficient to say that the relators have no such interest as would require or justify the issuing of the writ asked for by them. ■ This petition is therefore refused and the rule is discharged at the cost of the relators.”
    The relator thereupon took this writ of error, assigning for error the decision of the court that the relators have no such interest as will justify the issuing of the writ of quo warranto at their suggestion, and the decree discharging the rule and dismissing their petition.

      Henry Butterfield (William Benson with him), for the plaintiff in error.
    It being admitted that the defendant was not legally sworn, the court was forced to concede that he could have been prevented from assuming the office, but the court illogically held that having assuming the office, he cannot be ousted by quo warranto. The Constitution and Act of 1874 prescribed the oath, under penalty of forfeiture of the office, and the respondent, having neglected to be properly sworn, forfeited the office ab initio. Commonwealth v. Walter, 2 Norris 105; Commonwealth v. Allen, 20 P. F. Smith 472. The relator is entitled to the writ of quo warranto as a citizen and tax-payer, as well as by reason of his title to his office of policeman, from which he had been summarily dismissed. Commonwealth v. Jones, 2 Jones 365; Commonwealth v. Primrose, 2 W. & S. 407; Commonwealth v. Cleaver, 10 Cas. 283; Resp. v. Wray, 3 Dall. 490; Id. 2 Yeates, 429; Commonwealth v. Dallas, 3 Yeates, 300 ; Commonwealth v. McCloskey 2 Rawle 369.

      John P. Vincent (F. F. Marshall with him), for defendant in error.
    The respondent was de facto mayor, and his official acts are legal until he is lawfully ousted. The relator had no interest to entitle him to a writ of quo warranto. Commonwealth v. Cluley, 6 P. F. Smith 270; Commonwealth v. Allegheny fridge, 8 H. 185; Commonwealth v. Jones, 2 Jones 365. The Constitution only requires the oath to be taken by “ senators and representatives, and all judicial, state and county officers,” under penalty of disqualification, not forfeiture. Municipal officers are not mentioned. Moreover, the penalty is only operative in case of “willful violation” “of any election law.” There was no willful violation here, and the Act of 1874, as shown by its title, is not an “ election law.”
    November 7th 1881.
   Mr. Justice Green

delivered the opinion of the court,

Two persons, describing themselves as citizens of the city of Erie, in the county of Erie, in this state, presented their petition to the Court of Common Pleas of Erie county for ••a writ of quo warranto against the respondent as mayor of the city of Erie, to inquire by what authority he holds and exercises that office. Healey, one of the relators, subsequently presented a petition asking ieave to withdraw from the proceeding, and Butterfield, the remaining relator, filed an amended petition setting forth that he was a police officer of the city of Erie and Jhad been dismissed from his office by the respondent. It appears from Healey’s petition to withdraw that he also was a police officer who had been dismissed; that he had no desire to join in the proceeding, and only consented to do so in consequence of the importunity of Butterfield, and upon the promise of the latter that he should incur no cost, trouble or expense by joining with him in the petition. It thus appears that the relators are mere private citizens, having no interest in the office of mayor nor any absolute title to be restored to their positions as police officers, in the event of the ouster of the respondent. A rule to show cause was granted by the court below, which was subsequently discharged at the cost of the relators, who thereupon removed the case to this court by writ of error.

We are clearly of opinion that the action of the court below in refusing the writ of quo warranto and discharging the rule to show cause, was right, and for various reasons. The remedy by quo warranto has been much considered by this court, and the circumstances in which, and the persons by whom, it may be invoked, have been clearly defined. It was long ago held in the case of Commonwealth v. Burrell, 7 Barr 34, that the writ would not lie at the suggestion of an individual against one holding the office of judge of the Court of Common Pleas. Chief Justice Gibson, in the course of his very exhaustive opinion, carefully indicated that the clause in the second section of the act of 1836, which authorized the issuing of the writ on the suggestion of any person or persons desiring to prosecute the same,” was not intended for the redress of a public wrong. He distinctly held that these quoted words “ were judiciously added to provide, in imitation of the statute of Anne, for cases in which the public interest might not be involved, and in which the attorney-general might not be willing or bound to prosecute.” On p. 39 he said : “ But that there was no design to let a private citizen prosecute for a public wrong is plain from the third section, which commands the attorney-general to file the suggestion and prosecute the writ where an unchartered association shall have usurped the Commonwealth’s franchise by acting as a Corporation. On the usurpation of a municipal or corporate office, as I have said, no franchise or exclusive right of the Commonwealth is invaded ; and the intervention of a private prosecutor was extended to it, but not as a remedy for a public wrong.” This case presented the question of the right of a private prosecutor to invoke the writ as against the incumbent of a public office. In the cases of Commonwealth v. Allegheny Bridge Co., 8 Harr. 185 ; Murphy v. Farmers’ Bank of Schuylkill Co., 8 Harr. 415, and Commonwealth v. R. R. Co., 8 Harr. 518, the right of a private relator was denied, to demand the forfeiture of the franchises of a corporation. It was emphatically held that no mere private person, unless he had a private grievance to redress, could he heard on a writ of quo warranto, and in no circumstances could he be allowed to claim a forfeiture of the charter. On p. 190, Lowrie, J., said : “ We do not hear a private relator in this court'claiming to forfeit a charter, and he has no right to such action in any court where he stands as a mere informer without interest.”

On p. 518, Lewis, J., said: “It has been decided in the Commonwealth ex rel. Murphy v. Farmer’s Bank of Schuylkill County (see ante, 415), that a stranger who has no interest in a corporation except that which is common to every citizen, cannot demand a judgment of ouster in a writ of quo warranto. The words ‘ any person desiring to prosecute the same,’ are in that opinion construed to mean, any person having an interest to be affected, or suffering a wrong to be redressed.” . . . . “No mere stranger should be permitted to demand the forfeiture of a charter granted by the Commonwealth when the state herself does not demand it.” In the case of Murphy v. The Bank, supra, it was held that, “ In questions involving merely the administration of corporate functions, or duties which touch only individual rights, such as the election of officers, admission of a corporate officer or member and the like, the writ may issue at the suit of the attorney-general, or any person or persons desiring to prosecute the same.” It will be observed that the right of a private relator to question the election of officers, or the admission of a corporate officer, is restricted by this language, even in the case of corporations, to those instances in which individual rights are touched.

The next and more advanced step taken in the construction of the Act of 1836, was in the case of Commonwealth v. Cluley, 6 P. F. Smith 270. There the relator was a rival candidate for the office of sheriff in the county of Allegheny, and the object of the proceeding was to impeach the title of the incumbent and establish that of the relator. Here it would seem was a sufficient personal interest in the very subject of the controversy to warrant the procedure. But it was held, that although the relator had received 12,925 votes for the same office, being the next largest in number to the respondent, yet inasmuch as if he succeeded in ousting the respondent he would not be entitled to the office himself, he could not be heard to question the right of the respondent by quo warranto, and the writ was denied. On p. 272, Strong, <!., says: This court has construed the words, any person or persons desiring to prosecute the same,’ to mean any person who has an interest to be affected. They do not give a private relator the writ in a case of public right involving no individual grievance.” . . . “ And it is to be observed that the legislature has placed all the five classes of cases enumerated in the act on the same footing in this particular. If a private relator cannot sue out a writ to enforce a forfeiture without having an interest, the statute gives him no greater right when he complains of usurpation of a county or township office. The right of a relator in each class of cases is defined by the same words.”

Of course, if the relator can show title to the office in himself he is entitled to the remedy. But here the relator does not pretend to claim the office for himself, nor that he has any interest in it. He was dismissed from service as a police officer by the respondent as mayor of the city, and apparently he seeks to punish the respondent for this act, by having him removed from his office. It is very clear the writ of quo warranto does not lie for such a person to accomplish such a purpose. It is true, perhaps, that the mayor of a city is not a county or a town ship officer, but he is a public officer elected by the people of the city over which he presides, and the character and functions of his office are of quite as much consequence as those of a poor-director, a road-supervisor, or any other township or county officer. He is certainly not to be regarded merely as the officer of a private corporation.

In addition to the foregoing considerations it has long been held that a writ of qno warranto is not a writ of right, and the courts are not bound to issue it except in the exercise of a sound discretion. This was held before the passage of the Act of 1886 as to granting informations in the nature of writs of qno warranto in the case of Commonwealth v. Reigart, 14 S. & R. 216, and since the Act, in the cases of Commonwealth v. Cluley, 6 P. F. S. 270 and Commonwealth v. Jones, 2 Jones 365. In the latter case the considerations which moved the court to refuse the writ were particularly apposite to whose which exist in the present case. They are so well expressed in the opinion of C. J. Gibson, that we sinqily quote his very forcible language.

“ What mischief then has been done in this instance by the choice of an ineligible mayor, if he be so? And who are they that come here to complain of it ? They do not pretend that he does not discharge the duties of the office with integrity and ability ; or that the interests of the corporation are jeoparded by an irregular or improper exercise of his functions. All the corporators but two are satisfied with him. A constituency of a hundred thousand souls are willing* to dispense with a provision in the charter for their benefit. The councils, the chartered guardians of their rights, have not moved ; the corporate functionaries have not moved and the unsuccessful candidate has not moved. Only two corporators demand a scrutiny ; and who are they ? It would be too much to say they are actuated by public spirit, or even by their own interest. They were dismissed from office, not for partisanship, but, as appears in the affidavits, for personal habits that unfitted them, and they could not expect to regain their places should the respondent be ousted. There is but one appetite to which the prosecution can be referred ; and to the gratification of it a court will never lend itself. It would waste its time and the public money, did it interfere for a defect of title so unproductive of consequences.”

It so happens that the facts and considerations here expressed are almost bodily applicable to the present case. The relators themselves aver their dismissal from office as policemen, and the respondent in his affidavit says this wras done for improper performance of their duties. It is perfectly manifest that a mere spirit of personal revenge is the animating cause of the application for the writ; but courts do not administer their functions for the gratification of such motives, and for that reason alone we should feel it our duty to sustain the learned judge of the court below in refusing the writ.

While it is not at all necessary to the determination of the case it is well enough to add that it is extremely doubtful, to say the least, that there is any merit whatever in the application. The respondent did take the customary oath, which was regularly adimnistered to him, as it had been to his predecessors in ■office. There was certainly no refusal to take the oath prescribed by the constitution-for the officers therein named. The- constitution imposes a penalty of forfeiture of office for refusing to take the oath, but it only names senators, representatives, judicial, state and county officers, as the persons who are required to take it. The act of 1874, which defines the kind of election expenses that may lawfully be paid by candidates for office, does enumerate municipal officers as among those who must take tbe constitutional oath, but it does not impose any penalty of forfeiture of office for a violation of its provisions. On the contrary it does impose a specific penalty of fine and imprisonment for violating the act, and therefore, so far as that law is concerned, no consequence of forfeiture results from a failure to obey its directions. Hence it would seem that the constitutional provision imposing the forfeiture is inapplicable, and the Act of 1874, which includes the respondent within its enumeration, does not impose the penalty sought to be enforced. j

Judgment affirmed. ;


author: Mr. Justice Mercur

text:
    Keck versus McKinley.
    1. In order to charge one person with the debt of another, the evidence of the assumption of the debt by the party sought to be charged should be clear and satisfactory.
    2. An offer to assume the debt of another must be accepted within- a reasonable time by the creditor, otherwise it is not binding upon the person making it.
    3. A. and B. entered into a contract with C., whereby tbe latter agreed to construct a house for a specified sum. C. then contracted with I>. for the materials required by him to erect said ho.use, agreeing to pay one-half the price of said materials when he sent for them, and the residue within ten days thereafter. A. and B., owing a certain sum to C. on account of their contract, wrote on February 23rd a letter to D., saying, “ If C. gives you an order on us for the bill of materials for our building we will accept it and pay it.” This letter they gave to 0., who delivered it the same day to D., carrying off at the same time his materials. No order was then asked for by I). A. and B. received no reply to their letter, and heard nothing further of the matter until March 10th, when D. wrote to them stating that O. had failed to pay for the material, and adding: ,l He sent a letter enclosing your willingness to accept an order; that was not the bargain, and therefore we did not ask for it......Something must be done, for we will and must have our pay.” On receipt of this letter A. and B. paid to C. the full amount of their indebtedness to him. About two months after, O. gave to JD. an order on A. and B. for the price of the material. Suit being brought by D. against A. and B. upon this order, Held, that the defendants were, under the circumstances, not liable thereon, and were entitled to judgment.

      October 19th 1881. Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, J J.
    Error to the Court of Common Pleas of Clarion county: Of October and November Term 1881, No. 143.
    Assumpsit, by McKinley & Bonnet against Keck & Brenemau.
    The evidence and facts in this case are fully set forth in the opinion of the court. The defendants below requested the court to direct a verdict in their favor. The court declined so to do, and submitted the case to the jury on the evidence. Verdict and judgment for the plaintiffs, whereupon the defendants took this writ of error. The principal assignment of error was the submission of the evidence to the jury.

      Jenlis (with him Wilson and J. W. Seed), for the plaintiffs in error.

      Boggs ( Weidner with him), for the defendants in error.
    November 14th 1881.
   Mr. Justice Mercur

delivered the opinion of the court

This is an attempt to compel the plaintiffs in error to pay a debt contracted by another. To charge them with an assumption of this obligation the evidence should be clear and satisfactory. On the 30th January 1877, they entered iuto a written agreement with one Metzler, by which he was to furnish all the materials and labor and erect a building, in consideration of which they were to pay him a sum specified. Metzler entered into an agreement with the defendants in error by which they were to sell him sash, doom, &c.; he agreeing to pay one half when he took the articles away, and the residue in ten days thereafter. When he was about to send for these materials, on the 23d February, Keck & Breneman gave him a letter, signed by themselves, and addressed to McKinley & Bonnet, in which it is said: “ If Mr. Metzler gives you an order on us for the bill of doors and windows, &e., for our building, we will accept the order and pay it.” On the same day, Metzler sent a teamster for the materials, together with this letter and one from himself, in which after stating, inter alia, that he would send an order if they were willing to accept it, he added, “ If you don’t want to accept an order on Keck & Breneman, I wilí call and settle the bill myself.” The teamster delivered both letters and the articles were procured by him. No order was then asked for. Previous to writing this letter, the plaintiffs in error had no contract or negotiation with McKinley & Bonnet. They were under no obligation, either absolute or conditional, to pay them for anything Metzler might get. They then had an undoubted right to propose on what terms, and in what form, they would assume a liability. They made the offer conditional: It was not to pay in case Metzler procured the sash and blinds of them ; but in case he gave them an order on'Keck & Breneman. On the part of the latter, it was a mere offer. To create an absolute liability, there must have been an acceptance of the offer within a reasonable time. On the contrary, Keck & Breneman heard nothing from tbein until the 10th of March. Then they received a letter from them in which they say: “ Mr. Metzler promised to pay one-lialf for windows, &c., when taken away from shop, and balance in ten days after that, but he has done neither. He sent a letter with teamster enclosing your willingness to accept an order; that was not the bargain, and therefore we did not ask for it.”

Thus this letter distinctly notifies them, that they did not deliver the property in acceptance of their offer; but on the contract which they had previously made with Metzler; and as that bargain was not to accept an order, they had not asked him for one. In language clear and unequivocal, they say they refused to accept the offer of payment by order. It does not help their case that tlieir letter proceeded to say, Something must be done; for we will and must Lave our pay.” Whether this was written under an impression that Keck & Breneman could influence Metzler to pay or with the intention of making some vague claim against them, is of no consequence. The letter states facts which prove they had no legal claim against thorn. Having refused the offer, it was beyond their power to change its terms and then impose it on Keck & Breneman without their consent. Otherwise it would lack the reciprocal or mutual assent of the parties necessary to constitute an agreement. It is elementary law that to make a simple contract binding there must be a definite promise by the party charged, accepted by tbe person claiming the benefit of such promise: Chitty on Cont. 11.

It appeal’s the defendants in error put tliis claim in the hands of Boggs & Weidner, attorneys, to collect of Metzler. They wrote him threatening to sue him. He thereupon got Keck & Breneman to write them in his behalf, in answer thereto, on the 19th March. It was claimed that this last letter contains some evidence of their liability. We cannot discover any language therein, indicating sucb a conclusion. It was not written in reply to any letter addressed to them, nor to one in which any claim was made against them. It was in answer to a letter to Metzler making-a claim against him alone. The answer is for him and in his behalf, giving reasons why he has not paid, and stating what will probably be done unless costs are made by bringing- suit. Not one word is said indicating an admission that tliov owe the bill, or that they will pay it.

The uncontradicted evidence is that on the 23d February, Neck and Breneinan had money in their hands due to Metzlor. They retained it to meet any order he might give to the defendants in error until the receipt of the letter from the latter on the 10th of March. On the receipt of that notice that they had not accepted the proposition and had not obtained any order, the plaintiffs in error paid out all moneys in their hands going to Mitzler, on other orders drawn by him on them. He was released from a part of his contract, and never completed the residue. No settlement was ever had with him. They were under no obligation to accept an order drawn some two months thereafter, when they were probably not indebted to Metzer. The offer to accept conditionally was as favorable as the defendants had a right to ask, and this they refused. At no time did the minds of the parties meet and concur in any agreement. A careful examination of the whole evidence fails to disclose any to justify submitting the case to the jury. It is not a case of conflict of evidence, or weight of evidence, but of no evidence. The learned judge, therefore, erred in not affirming the last point submitted by the defendant below: Phila. & Read. R. R. Co. v. Yerger, 23 P. F. Smith 121. It is not necessary to consider the other assignments. The evidence covered thereby was irrelevant.

Judgment reversed.


text:
    McDonald versus Simcox.
    1. The regularity of a judgment rendered by a justice of the peace in a matter over which he had undoubted jurisdiction, cannot be questioned in a collateral proceeding. The only remedy is by certiorari.
    3. A. brought an action against B. & Co., whom he sued bythat name, before a justice of the peace, to recover the price of certain goods. Having filed an affidavit that defendants resided out of the county, and having given the necessary bond, he issued a writ, of attachment in accordance with the provisions of the Act of July 13th 1843. § 36, Pamph. L. 345, against the defendants’ goods, which writ was made returnable on the fourth day after its issue, and was, on the same day that it issued, duly returned “goods attached.” A. then issued a summons to defendants returnable the third day after its issue, which was accordingly returned on that day, “defendants not found in the county.” A. then obtained judgment against defendants, and issued execution against certain goods belonging to them which were levied upon and sold. A., became the purchaser and thereupon took the goods into his own possession. Trover being subsequently brought by B., O. aud D., being the individual members of the firm of B. & Co., against A. for the goods, II id, that the justice of the peace having acquired full jurisdiction to1 render a judgment in rem against the goods by virtue of the attachment and proceedings thereon, plaintiffs could not object to the validity of such judgment on the ground that the summons was, under the provisions of the Act of March 30th 1810, § 3, 5 Sm. L. 163, prematurely returned, this being an irregularity which could be corrected by certiorari only. Held, further, that plaintiffs could not object to the validity of such judgment on the ground that it had been rendered against the firm and not against the several partners by name. Held, further, that in any event, said judgment having been rendered against B. by name, all his interest in the goods in question passed under the execution, and that liehoe his joinder as a party plaintiff constituted an insuperable bay to plaintiffs’ right of recovery.
    8. In an action brought before a justice of the peace it is not expected nor required that strict rules of pleading should be observed. Hence, a judgment rendered in such action against copartners in the firm name, without stating the names of the persons composing the firm, will be held good:
    4. A joint action ex delicto cannot be maintained where it is shown that one or more of the plaintiffs are not entitled to recover.
    5. fíemble. that if in an action ex delicto, too many persons be joined as plaintiffs and that face appear upon the record, it may be taken advantage of by defendant either by demurrer, in arrest of judgment, or by writ of error. If the fact does not appear on the face of the pleadings, it will be ground of nonsuit on the trial.
    October 20th 1881. Before Sharswood, C. J"., Mercuh, Gordon, Paxson, Sterrett and Green, JJ. Trunkey, J., absent.
    Error to the Court of Common Pleas of Vena/ngo county : Of October and November Term 1881/ No. 226.
    Trover, by A. D. McDonald, Henry Stewart and A. D. McDowell, “surviving partners of E. G..Pluiner, in the Stewart & Plumer Oil Well, situate,” &e., against S. Simcox, H. O. Zeigler and Porter Phipps, to recover the value of certain machinery and oil-well fixtures.
    On the trial, before Taylor, P. J., the plaintiffs proved the title of the firm of Stewart & Co., to the goods prior to December, 1878. The defendants claimed under one Wm. King, and offered in evidence the transcript of a justice of the peace of said county, showing a suit by William King against Henry Stewart & Go., wherein the plaintiff’s affidavit showing-that the defendant was absent from the county, and the plaintiff filing bond, a writ of attachment was issued by the Justice October 31st 1878, returnable November 4th 1878; returned on that day, goods attached (as per schedule); whereupon, on the same day, defendants not appearing, summons issued, returnable November 7th 1878; November 5th, returned “defendants not

      found in the county”; November 7th. Judgment for plaintiff for $135.90. December 9th. Execution issued to constable; returned December 17th, “Levied and sold to ffm. King the above described property, for $50.”
    Objected to, on the ground that the transcript shows on ■. its face that the judgment was void, the summons not having * been made returnable “not more than eight nor less than five days from date,” as required by the Act of 1810, Purd. Dig. 850, pi. 40. Objection overruled; exception.
    The defendants presented the following point:
    “ That this action having been brought by A. McDonald & Co., as partners, and it appearing that H. Stewart is named as one of the firm, but has no interest in the partnership, all his interest having been sold prior to the bringing of this suit, the plaintiffs cannot recover.” Affirmed.

    The court charged the jury as follows;
    “It appearing in evidence by a record of the judgment before the justice of the peace, showing a judgment against Henry Stewart & Co., and a sale of the property in dispute under that judgment, as alleged, and the purchase of the property by the defendants’ vendor; we instruct you that judgment was a valid judgment against Henry Stewart, and that the sale by the constable (if you believe such sale to have taken place) divested all his interest in the copartnership property That being so, and the plaintiff declining to amend his pleadings and drop the name of Stewart, as we suggested, or mark for use of the other plaintiff in the action, Stewart has no right to recover in this action, as his interest was divested by the constable’s sale; but not the interest of the other copartners; therefore plaintiffs cannot recover in this action, if you believe there was a sale of this interest there; and that these defendants purchased from the constable’s vendee at that sale; . Stewart’s name is here as ' one of the plaintiffs, and he has no right to recover, for all his interest was divested by that sale; but the plaintiff declines to amend by dropping him, placing it on the grounds that that judgment was not a legal one as against Stewart. Mr. Stewart’s name is still in the papers, and it is not controverted that he is one of the parties now claiming, and as there is no controversy upon the facts, your verdict will be for the defendants.”
    Verdict, accordingly, for the defendants, and judgment thereon. The plaintiffs took this writ of error, assigning for error, the affirmance of the defendant’s point, and the charge of the court.

      Crosby & Crosby, and Osmer, Dale & Freeman, for the plaintiffs in error.
    The transcript showing but three days between the date and the return day of the summons, the judgment was coram non judice, and void: Camp v. Wood, 10 Watts 118.
    By the provisions of the Act of 1842, Pnrd. Dig. 857, pi. 76, two distinct modes of proceeding against persons residing out of the county are prescribed, to wit: By summons or attachment, either one of which must be made returnable not less than two nor more than four days from the date thereof; and must be served at least two days before the time of appearance mentioned therein. If the suit be commenced by attachment and shall have been personally served on the defendant at least two days before the return day thereof, the justice shall proceed to hear and determine the case without a further writ. But if (as in this case) the same shall not have been so served, this act provides that “a summons shall issue against the defendant, returnable as summonses issued by justices of the peace are now by law returnable.” Purd. Dig. 858, pi. 78, 80.
    The phrase, “returnable as summonses . . . are now by law returnable,” cannot but refer to the then existing statute prescribing the time within which a summons issued by a justice must be made returnable, which was the act of 1810, Purd. Dig. 850, pi. 40, and is in these words: “If on a summons commanding the defendant, &c., on a day certain therein to be expressed, not more than eight nor less them fioe days from the date of the summons.” That the words “are now bylaw returnable,” as used in the act of 1842, Purd. Dig. 858, pi. 80, were intended to refer to the act of 1810, supra, is manifest from the fact that that was then the only law upon the subject.
    The Act of 1810 has not been repealed. Under its provisions, by far the greater part of the litigation in justices’ conrts has been, and is conducted. • Its provisions, in respect to the time within which a summons shall be made returnable, are not in conflict with the provisions, in this respect, of the Act of 1842; but on the contrary, are consistent and harmonious therewith.
    The attachment, and the execution, moreover, were void, because directed generally against Stewart & Oo., and not against the partners’ interests in the partnership: Act of April 8th 1873, Purd. Dig. Suppl. 1813, pi. 1; Hare v. Commonwealth, 8 W. N. C. 121; Deal v. Bogue, 8 Har. 228; Durborrow’s Appeal, 3 Norris, 404. Stewart was properly joined as a coplaintiff in this action. The omission of his name would have been a good plea in abatement: Addison v. Overend, 6 Term Rep. 766.

      Charles W. Maekey and Dodd dfr Lee, for defendants in error.
    November 21st, 1881.
   Mr. Justice Mercur

delivered the opinion of the court

This was an action of trover to recover for chattels for- ' merly the property of the plaintiffs, sold by a constable on an execution. It issued on a judgment recovered against them or some of them in favor of one King. He bought the property, and afterwards sold it to the defendants. The plaintiffs now question the effect of that judgment, and attack its validity.

It is settled law that the regularity of a judgment of a court having jurisdiction of the subject matter cannot be questioned in a collateral proceeding. Although a judgment recovered before a justice of the peace be irregular, yet if he has jurisdiction of the subject matter, the only redress of the defendants therein is by certiorari. If they acquiesce therein by taking .no steps to reverse it they thereby make it as good and valid as if all the prerequisites of the law had been observed. A title to property acquired under judgment and execution cannot be defeated by proving some defect in the original process. The judgment of every court pronounced on. a subject within its jurisdiction is conclusive and binding on all other courts, except' those only before which it comes by appeal, certiorari or writ of error: Tarbox v. Hays, 6 Watts 398; Hauer’s Appeal, 5 W. & S. 473; Sloan v. McKinstry, 6 Harris 120; Billings & May v. Russell, 11 Id. 189.

The judgment in question was obtained on proceedings commenced by attachment under the 26th section of the Act of July 12th 1842, P. L. 345, against H. Stewart & Cb. as nonresidents of the county, having personal property therein. This section provides in case no. capias can issue under section 24 of the act, ‘‘and the defendant shall reside out of the county he shall be proceeded against by summons or attachment, returnable not less than two nor more than four days from the date thereof, which shall be served at least two days before the time of appearance mentioned therein.” Thus this section authorizes either form of writ to issue, at the option of the plaintiff. The day of return and time of service is the same for each— whichever writ is issued that constitutes the original process. If it be summons, no valid judgment can be rendered without service or appearance by defendant. If it be by attachment, a valid judgment in rem may be obtained. King made the necessary affidavit, and executed the required bond. The claim was for goods sold and delivered. No fact was shown which authorized a capias to issue. The justice had undoubted jurisdiction of the cause of action. The 'attachment was made returnable and served according to the requirement of the statute. The property in question was attached, and due return thereof was made on the writ. Summons then issued, which was returned defendant not found in the county. On the return day, d .'fondants not appearing, after hearing the evidence of the plaintiff, the justice rendered judgment in his favor against defendants.

The writ of summons was made returnable on the third day after the date thereof, and, as the Act of 1810 requires a summons to be made returnable not less than five days after its date, it is contended that this judgment is therefore void. We have, however, shown that jurisdiction over the property was acquired by virtue of the attachment and proceedings thereon. If then there was error in the subsequent proceedings by making the summons returnable prematurely, it was an irregularity wliich could be corrected by certiorari only, and not in a collateral proceeding.

It is further urged, inasmuch as the individual names of all the persons composing the firm were not set forth in the attachment suit, that the rights of those whose names were omitted are not affected by the judgment. If the question was, whether an execution on that judgment would authorize a sale of their individual property, there would be force in this position. Such, however, is not this case. The sale was of the property attached only. That was the property of the firm. So the question is, whether, on a judgment against the firm, the property of the firm can be sold ? One partner may confess a judgment in the name of the firm of which he is a member, which will authorize a sale of the interest of all the partners in partnership property : Ross v. Howell, 3 Norris 129.

We cannot expect, and must not require, an observance of strict rules of pleading before a justice. In many cases judgments have been held good, when against copartners in the firm name, without stating the names of the persons composing the firm. Objections of this kind, after verdict or judgment, are not to be favored: Porter v. Cresson, 10 S. & R. 259; Morse v. Chase & Co., 1 Watts 156; Seitz & Co. v. Buffum & Co., 2 Harris 69. It must be conceded the judgment was against Stewart, one of the firm, and now one of the plaintiffs. It therefore follows, as to him, at least, his interest in the property was sold. His right in the property having been divested the other partners could not unite his name with theirs and recover in an action of trover. A joint action in tort cannot be maintained when some of the plaintiffs are shown to have no right to recover. It is elementary law in actions ex delicto, that if too many persons are made co-plaintiffs, the objection, if it appear on the record, may be taken advantage of either by demurrer, in arrest of judgment, or by writ of error; or if the objection do not appear on the face of the pleadings, it will be ground of nonsuit on the trial: 1 Ohitty Plead. 76. It follows the learned judge correctly held the plaintiffs could not recover. Judgment affirmed.


author: Mr. Justice Gordon

text:
    Porter versus Hitchcock.
    1. Where a scire facias to revive a judgment is issued against and is served upon the defendant therein only, within five years from the entry of said judgment, and judgment is obtained accordingly upon said scire facias against said defendant, the issuing of an alias scire facias and the service thereof on a terre-tenant within five years from the date of the issuing of the original scire facias will avail to revive and continue the lien of the judgment against such terre-tenant.
    2. The provisions of the Act of April 16th 1849, § 8, Pamph. L. 664, do not secure to a terre-tenant any other or further right of notice of the revival of a judgment than that possessed by such tenant under the Act of March 26th 1827, 9 Sin. L. 303. On the contrary, by the provisions of said Act, a terre tenant’s right of notice is limited so as to commence only from the time when he records his deed or enters into possession of the land.
    October 20th 1881. Before Sharswood, O. J., Meroor, Gordon, Paxson, Sterrett,' and Green, JJ. Trunket, J., absent.
    Error to the Court of Common Pleas of Erie county : Of October and November Term 1881, No. 221.
    Alias sci. fa. to revive judgment, by C. A. Hitchcock to use etc., against Philo Huntley, with notice to Sarah Porter, terre-tenant.
    From the records of the court and from the affidavit of defence filed by Sarah Porter, the following facts appeared:— On October 6th 1875, Philo Huntley, being the owner of a certain house and lot, gave a judgment note to C. A. Hitchcock for $400, on which judgment was entered on October 8th 1875. On March 14th 1876, Sarah Porter purchased from Huntley the said premises for a valuable consideration by deed recorded March 17th 1876, when she took possession of the premises, which she has since continued to occupy. She had no knowledge in fact of the existence of said judgment, but relied on the warranty in the deed against incumbrances! On November 23d 1877, Hitchcock issued a scire facias against Huntley alone to revive the judgment. The writ was served on him, without notice to Sarah Porter. On March 7th 1881 — within five years from the issuing of the sci. fa. against Huntley, and more than five years after Mrs. Porter’s purchase of the premises — the plaintiff Hitchcock issued an alias sci. fa. to revive judgment. against “ Philo Huntley, defendant, with notice to Sarah Porter and all other terre-tenants.” This writ was served on Sarah Porter April 9th 1881. In her affidavit of defence, she claimed that the alias sci. fa. not having been issued or served upon her until more than five years after the date of her purchase it was inoperative to continue the lien of the judgment as against her title to the said premises.
    The court (Galbraith, P. J.) made absolute a rule to show-cause why judgment should not be entered for want of a suffi»cient affidavit of defence, whereupon Sarah Porter took this writ of error, assigning for error the entry of said judgment.

      P. A. Walling and Davenport cfc Griffith, for the plaintiff in error, cited
    Act of April 4th 1798, §§ 2, 3, P. L. 331;, Act of March 29th 1827, P. L. 455 ; Act of April 16th 1849, P. L. 663; Clippinger v. Miller, 1 P. & W. 71 ; Lusk v. Davidson, 3 P. & W. 229 ; Bank v. Rainey, 1 Watts 33; Fursht v. Overdeer, 3 W. & S. 471; Armstrong’s Appeal, 5 W. & S. 355; Little v. Smyser, 10 Barr 381; Zerns v. Watson, 1 Jones 262.

      J. C. Brady, G. A. Allen and L. Rosenzweig for the defendant in error, cited
    Davidson v. Thornton, 7 Barr 128; Lichty v. Hochstetler, 10 Norris 444; Kirby v. Cash, 37 Leg. Intell. 254.
    November 7th 1881.
   Mr. Justice Gordon

delivered the opinion of the court

When Sarah Porter, the terre-tenant, bought the Huntley property, it was charged with the lien of the plaintiff’s judgment, which was entered on October 8th 1875. On November 23d 1877, a scire facias was issued on this judgment, which was served on Huntley but not on the terre-tenant. On this scire facias there was a judgment entered against Huntley on June 13th 1879, and was followed by an alias scire facias which was served on the defendant April 9th 1881, within five years from the date of the issuing of the original scire facias. The learned judge of the court below thought this was in time to charge the property of the ten’e-tenant, and so ruled. In this he is supported by the act of 1827, and by the cases of Meason’s Estate, 4 Watts 341; Silverthorn v. Townsend, 1 Wr. 263 ; Davidson v. Thornton, 7 Barr 128; Lichty v. Hochstetler, 10 Nor. 444, and Kirby v. Cash, 37 Leg. Int. 254.

Some reference has been made by the counsel for the defendant to the Act of 1849, but we think it singular that this Act should be cited as putting the terre-tenant in a position superior to that of the judgment debtor, or to that possessed by such tenant under the Act of 1827. The very contrary is the fact. The Act of 1849 was obviously passed to meet the case of Armstrong’s Ap., 5 W. & S. 352, wherein it was held that under the Act of 1827 the terre-tenant must be made a party to the revival of the judgment, though his deed was not on record. The Act of 1849 so far alters this rule that a revival of the judg^ ment against the original debtor wi&l bind the terre-tenant unless he has put his deed on record, or is in the actual possession of the land, and his right to notice now commences only from the date of such record, or time of such possession. In other words, by complying with the terms of this Act, he entitles himself to thé notice prescribed by the Act of 1827, otherwise he is entitled to no such notice, and his land continues to be bound by the lien of the original judgment as long as it is kept revived against the original debtor.

Judgment affirmed.