author: Mr. Justice Paxson

text:
    Appeal of Second National Bank of Titusville.
    1. In the distribution of a fund an auditor cannot inquire into the validity of a judgment regular on its face, but he may receive testimony to show that it has been paid or otherwise satisfied.
    2. Where a judgment has been fraudulently given by collusion between debtor and plaintiff in such judgment, for the purpose of defrauding creditors, it may be attacked collaterally by the creditors intended to be defrauded.
    3. The mere fact that the debtor has paid more than six per cent, is not enough to establish fraud upon creditors, and his refusal to contest the claim against him does not of itself amount to fraud.
    4. Neither under the Act of Congress in regard to usurious interest taken by national banks, nor under the Act of 1858 of this state, is the taking of more than six per cent, interest a fraud per se upon creditors: Greene v,' Tyler, 3 Wright 361, and Baehdell’s Appeal, 6 P. F. Smith 386, considered.
    5. City taxes are a claim upon the fund arising from a sheriff’s sale and are to be first paid.
    November 19th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the decree of the Court of Common Pleas of Crawford county: Of October and November Term 1876, No. 166.
    In November 1871, Z. Waid was the owner of three improved lots in Titusville; and while thus the owner, three judgments wore, obtained against him, and continued liens on the lots at the time of their sale. These were in the following order and amounts: Chase, for $200, November 6th 1871; appellants, $2515.40, May 20th 1873; Roberts & Co., $178.90; Henderson, $1769,12, November 6th 1873; Producers’ and Manufacturers’ Bank, $555.23, March 9th 1874. The judgments of Chase and Henderson were assigned to the appellants. The lots were sold on an execution issued upon the judgment of Henderson. Lot No. 1 was sold for $2005; No. 2 for $1865; No. 3 for $830, and No. 4 for $215, making a total of $4115. The appellants became the purchasers of lots No. 1, 2 and 4, for $3585, and gave the plaintiff a lien-creditor’s receipt, as follows: on the Chase judgment, $268.03; appellants’, $2156.12; Henderson’s, $1879.7'3. Appellants also received $748.80, the proceeds of the sale of No. 3. The Producers’ & Manufacturers’ Bank, the holders of judgment No. 5, claimed that the appellants’ judgment and that of Henderson should he reduced, on account of usury; and the auditor found that the firm of Shugert & Starr gave to the appellants a note for $2500, endorsed by Z. Waid. This was renewed at the rate of ten per cent, per annum, and finally this judgment obtained; and Shugert & Starr, having paid usurious interest in the sum of $203.13, brought suit to recover double tho amount as a penalty. This suit was settled. The auditor deducted the interest paid by Shugert & Starr before Waid became endorser, and reduced the judgment to $1262.17 ; that the attorney’s foe of five per cent, paid Waid should he applied as a payment; that certain notes given by Waid, amounting to $690, and unpaid, were a payment of usury, and to be deducted. He also allowed a claim of the city for paving, sewer and general tax, amounting to $394.34. The court, by decree below, confirmed the report, and dismissed appellants’ exceptions, from which they appealed, and assigned for error the entry of this decree.

      Roger Sherman, for appellant.
    — A lien creditor cannot enforce the forfeiture occasioned by usury. It can only take place when the debtor is sued, and then as a matter of defence: Lucas v. Gov’t. Nat. Bank, 28 P. F. Smith 228. Tho reclamation of usury is a personal privilege of the debtor: Miners’ Trust Co. Bank v. Roseberry, 3 W. N. C. 13. There can he no inference of fraud from excessive interest: Good v. Grant, 26 P. F. Smith 52. A creditor cannot impeach a judgment except for fraud: Dougherty’s Estate, 9 W. & S. 189; Thompson’s Appeal, 7 P. F. Smith 175.
    The claim for taxes was not a prior lien: Pittsburgh’s Appeal, 20 P. F. Smith 142; Pittsburgh’s Appeal, 4 Wright 455; Allegheny City’s Appeal, 5 Id. 60; Gormley’s Appeal, 3 Casey 49.

      Guthrie & Byles, for appellees.
    — A junior judgment creditor may attack a senior creditor’s judgment, where the latter contains usurious interest. A junior mortgagee is entitled to have his senior’s mortgage reduced on account of usury: Greene v. Tyler, 3 Wright 365; Primrose v. Anderson, 12 Harris 215. Usury as previous transaction may be defalked against a claim: Thomas v. Shoemaker, 6 W. & S. 179; Lucas v. Gov. Nat. Bank, 28 P. F. Smith 228. Taxes are first payable out of the funds: Larkin’s Appeal, 2 Wright 457; Allegheny City’s Appeal, 5 Wright 60; Pittsburgh’s Appeal, 20 P. F. Smith 142; City v. McGonigle, 4 Phila. 351; Philadelphia v. Cooke, 6 Casey 56; Smith v. Simpson, 10 P. F. Smith 168; Duffy v. Philadelphia, 6 Wright 192.
   Mr. Justice Paxson

delivered the opinion of the court, May 6th 1878.

This controversy has arisen in the distribution of the proceeds of a sheriff’s sale of the real estate of Zephaniah Waid. At the date of the sale,«.the Second National Bank of Titusville held a judgment amounting to $2156.12, and William M. Henderson was plaintiff in a judgment for the use of the same bank, amounting to $1879.73. Waid became the endorser of a note of Shugert & Starr to the bank for $2500, on the 18th of December 1872. In a suit subsequently brought on it, judgment was obtained on the 20th o.f May 1873. Before the note was given, interest at the rate of ten per cent, had been paid by Shugert & Starr on the debt it represented, to the amount of $125.68. When it was given, on the 18th of December 1872, a discount at the rate of twelve per cent., amounting to $77.50, was retained. It was the second renewal of a note originally given on the 30th of May, and first renewed on the 6th of September 1872. It was only at the date of the second renewal that Waid became endorser. Upon the proof that, usurious interest had been reserved, the auditor decided that “the interest-bearing power of the obligation had been destroyed,” and “ as there was no point of time in the history of such paper at which it could be freed from the taint of illegality, so it followed that there could be no point of time from which it would bear interest.” Under the view of the law thus taken in the report, the costs, the attorney’s commissions of five per cent., stipulated for in the note, charges for protests, and all interest accrued on the original note and its renewals, and on the judgment, were excluded from the allowance made to the bank. There were also deducted the interest, attorney’s fees, and costs accrued in a judgment on a note for $1700, made up in part of an independent note for $1500, previously discounted, and in part of interest and costs of the judgment obtained on the note of Shugert & Starr. On the same ground of usury, the sum of $111.99 was deducted from the Henderson judgment. These rulings of the auditor were affirmed by the court, upon exceptions. It has been settled by a line of authority that, in the distribution of a fund, an auditor cannot inquire into the validity of a judgment regular upon its -face : Dyott’s Estate, 2 W. & S. 557; Leeds v. Bender, 6 Id. 315; Ellmaker v. The Insurance Co., Id. 442; Thompson’s Appeal, 7 P. F. Smith 175. But he may receive testimony to show that since its rendition the judgment has been paid or otherwise satisfied : Borland’s Appeal, 16 P. F. Smith 470; and he may disregard a judgment void upon its face : Brunner’s Appeal, 11 Wright 67 ; but not because it is merely erroneous: Hauer’s Appeal, 5 W. & S. 473; or a fraud upon the debtor: Thompson’s Appeal, supra. All the cases say that the mere fact that the debtor has been overreached, and a fraud perpetrated upon him by the creditor, gives no right to other creditors to attack the judgment collaterally. So long as it stands as a valid judgment against the defendant, it is good against them. They have no right to complain of a fraud upon him. In such cases the only person who can impeach the judgment is the defendant himself, and this must be done by a motion in the proper court to open it. When a judgment is assailed in this way before an auditor, it is his duty, as was pointed out in Dyott’s Estate, and Leeds v. Bender, supra, to suspend his decision until its validity can be decided by the court in which it was entered. It would be an anomalous proceeding for an auditor to try the validity as between the parties of a solemn judgment of the court that appointed him ; yet more so of the judgment of the court of another county or another state. Where, however, a judgment has been fraudulently given by collusion between the debtor and the plaintiff in such judgment, for the purpose of hindering and delaying creditors, it may be attacked collaterally by the creditors intended to be defrauded : Dougherty’s Estate, 9 W. & S. 189; Lewis v. Rogers, 4 Harris 18, and Thompson’s Appeal, supra. As to them such judgment is void. But they can only have it set aside as to themselves. They cannot impair it as between the parties.

If, then, creditors may not impeach a judgment before an auditor for a fraud upon the debtor, it follows that, in order to sustain the auditor and the court below, we must go to the extent of holding that the usury complained of was a fraud upon the creditors — a collusive fraud to hinder and delay them. That there was fraud and collusion in fact is not pretended, which drives us to the yet narrower question whether an usurious contract is a fraud per se upon creditors. It w'as said in Good v. Grant, 26 P. F. Smith 52, that 44 to pay interest in excess of the legal rate is not necessarily, fraudulent as to creditors;” and in Miners’ Trust Company Bank v. Roseberry, 31 P. F. Smith 309, it was said by Merour, J.:

4 4 Whenever the usurious contract is intended to defraud creditors, or when the circumstances of the debtor are known to be such that it can reasonably be presumed that this will be the natural effect, the right of creditors to postpone the excess of interest must be conceded.” But in each of these cases the question whether any one but the borrower could go behind the judgment was left undecided, as it had been left undecided in Verner v. Carson, 16 P. F. Smith 440. In Greene v. Tyler, 3 Wright 361, it was held competent for a second mortgagee to question, in a distribution, a prior mortgage, on the ground of usury; and in Bachdell’s Appeal, 6 P. F. Smith. 386, the syllabus states the point of the case to be that “ an auditor reported that judgment creditors could question the validity of a prior judgment on the ground of usury, and reduced a usurious judgment accordingly. The court below, on exceptions, confirmed the report in this particular.” The decision of the auditor was rested wholly on the authority of Greene v. Tyler. This point was not alluded-to by Chief Justice Thompson, in delivering the opinion of the court, which consisted of nine lines devoted to reversing the decree because interest had been -allowed on a judgment after the day of sale. No paper-book was furnished on behalf of the appellee, and the point was manifestly overlooked by the Chief Justice, who delivered the opinion in the subsequent case of Edwards’s Appeal. Greene v. Tyler certainly decided that a usurious consideration could be inquired into by a subsequent mortgagee; and as before observed, Bachdell’s Appeal was ruled by the auditor solely on this authority. It will be seen, by an examination of the opinion in Greene v. Tyler, that considerable stress was laid upon the facts that the second mortgagee had a specific lien on the very-thing sold by the sheriff, and that his lien attached before the judgment was confessed upon the first mortgage, as to which the usury was charged. It also appeared that the mortgage was given for $>2000 more' than was actually received or loaned thereon. It is not essential, however, to question the soundness of either of these decisions. While the broad question whether usury was a fraud per se upon creditors ajjpears rather to have been assumed than discussed, we may concede those cases to have been rightly decided to the extent of their own facts. At that time the taking of more than six per cent, interest was unlawful, and subjected the lender to a penalty. It is not so now. The Act of 28th May 1858, Pamph. L. 622, has made a radical change in this respect. By the first section of said act, six per cent, is declared to be the legal rate of interest where no express contract has been made for a less rate. The second section recognises the right to reserve or contract for a higher rate, but provides that in such case the creditor shall not compel his ‘ debtor to pay more than six per cent.; authorizes the debtor to retain and deduct the amount of the excess from such debt, and where he has voluntarily paid such excess, to recover it back by an action to be commenced within six months after such payment. It is not therefore now unlawful for a debtor to pay and a creditor to receive more than six per cent. And where it is done in good faith, and in the usual course of business, it would shock the common sense of every intelligent man for any court to say that it was a collusive fraud between the creditor and his debtor to cheat and defraud the creditors of the.latter. It may be that such collusive scheme might be covered up under the guise of usury. When it exists it can be as readily detected under the cover of a usurious contract as of any of the other devices which are resorted to for such purpose. But the mere fact that the debtor pays more than six per cent, is not enough to establish a fraud upon creditors. Nor would his refusal to contest the claim against him, of itself amount to such fraud. A man who has, in good faith, contracted to pay more than six per cent., has committed no violation of any law, and is not bound to repudiate his contract. A very large class of honorable and upright men would regard it as dishonest to do so. I do not say that there might not be a case where, in a transaction out of the ordinary course of business and under circumstances tending to show collusion, a refusal by the debtor to set up such a defence might not be evidence, with other matters, of an intent to defraud creditors. Such cases must be disposed of when they arise. The recent legislation referred to has, to some extent, recognised the actual wants of business men, and evinces a growing tendency to regard money as an article the price of which must be regulated by the law of supply and demand. It has always been so, and it always will be so. No law can enable the thriftless man to borrow money as cheaply as the prosperous man, or to get money when it is scarce at the same rate as when it is abundant.

The appellant in this case is a National Bank. Section 5197 of the Revised Statutes allows such banks to charge and receive such rate of interest as is authorized by the laws of the state where the bank is located, and sect. 5198 provides that: “ Knowingly taking, receiving or charging a rate of interest greater than aforesaid, shall be held and adjudged a forfeiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon.” Thus it will be seen that under the Act of Congress no interest can be recovered upon a usurious contract, while by the law of this state the legal interest can be recovered, but no more. While the former uses the word “ forfeiture,” and is penal to the extent of the interest, it does not make the entire contract void or even voidable. If under our Act of 1858 it is not a fraud per se upon creditors for a debtor to pay more than the legal rate of interest, it would be straining the law to say that it is so under the Act of Congress. The whole question of interest is regulated by our own statute. The Act of Congress applies only to the national banks, and as to them the rate of interest conforms to the state law.

Where creditors allege that usury is a fraud upon them they must do more than show the payment in the usual course of business of interest in excess of the legal rate. That is a matter of which the debtor alone can complain. In the case in hand there was nothing to show collusion to defraud creditors. It follows that they had no standing before the auditor to set aside the appellant’s judgment.

Even in view of the record as it was made up by the auditor, the case did not justify the charging the costs of the distribution upon the appellants. The questions were, fit to be raised, and the position of the appellants entitled them to raise them.

The decree of the Common Pleas is reversed, and it is now adjudged and decreed that the fund in court be-applied first to the costs of the distribution; secondly, to the city’s claim for taxes, sewer and paving assessments: and, thirdly, to the judgments in their order for the amounts shown by the record to have been due upon them respectively at the date of the sheriff’s sale; the costs of this appeal to be paid by the appellees.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Prescott versus Otterstatter.
    1. A tenant in possession agreed to take a lease of the premises for another year, if the landlord would make certain repairs and additions, which he agreed to do. The tenant refused to pay rent because the landlord had not repaired and made the additions. The landlord distrained, and in an action of replevin it was held, that if the tenant held and enjoyed the demised premises, the covenants on the part of the landlord to repair and make additions were minor and subordinate and did not go to the essence of the contract so as to defeat the rent in toio, that he was not discharged from liability to pay the rent unless the building was worthless for the purpose for which it was rented without such additions and improvements, and if any damages had occurred to the tenant by reason of such non-performance on the part of the landlord the tenant is entitled to have them deducted from the rent due, and if in excess to a verdict.
    2. Although plaintiff had paid the fees of some of defendant’s witnesses, defendant notwithstanding was entitled to have them taxed as part of the costs of the suit.
    3. The Act of March 21st 1772, relating to double costs is penal, and should be strictly construed, and where the judgment is co-extensive with the avowry, that is the full amount claimed by the landlord, it carries double costs. The verdict in these cases being for less than the amount claimed and interest thereon defendant was not entitled to double costs.
    November 19th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1877, Nos. 116, 117, 118, 119, 120, 121, 122 and 123.
    These were actions of replevin. The plaintiff in error, who was the plaintiff below, occupied a three-story building in Meadville, known as the National Hotel. He declined to renew his lease for another year, unless the landlord, defendant in error, would build an additional story to extend fifty feet from the west end of it, and would tear down the old porches and make hall-ways. This he agreed to do, and a lease containing the agreement was executed. By the construction of the porches, more convenient access would have been made to the rooms, and by that of the addition, ten new bed-chambers would have been added to the house. Plaintiff below claimed that defendant below had failed to erect the additional story, as he agreed to do, and had simply erected a mansard roof; that the porches were not tom down but boarded in, permitting the rain and snow' to beat in as usual. That what the defendant did was done so carelessly as to deprive plaintiff of three months’ use of the house. The plaintiff paid two months’ rent, as it became due, and refused to pay any more until defendant complied with his agreement. The defendant issued several landlord warrants and seized goods of plaintiff, who issued the several replevins in these cases. The same evidence was given in each case, the same points presented to the court, and the same rulings.
    In taxing the costs, the court, on motion, doubled defendant’s bill of costs, under the Act of Assembly of March 21st 1772.
    The court below affirmed plaintiff’s first point, to wit: that “ as the consideration of the lease given in evidence is simple, the- contract is entire,” and said, “the covenant by first party to ‘erect an additional story on said building, with rooms, and to extend fifty feet, beginning at the west end of said hotel, the old porches to be taken down and converted into proper hall-ways,’ did not enter into the essence of the contract, and to the whole of the consideration so as to defeat the rent in toto, in case Prescott took possession of the demised premises and continued in the enjoyment of the same.”
    The court below' answered the following points of plaintiff below in the negative:—
    3. That if the jury believe Otterstatter failed and refused to perform his contract to erect the additional story with rooms, and to take down the old porches, and to convert them into proper hall-ways, he cannot recover in this case unless he satisfies the jury that performance upon his part was prevented or waived by Prescott, the plaintiff.
    4. That if the jury believe, from the evidence, that the work shown to have been done by Otterstatter’s direction was defective, negligent and a worthless performance, it is in law non-performance, and is to be treated as in fact it is, no performance or part performance whatever, and he cannot recover any portion of the rent claimed, unless performance was prevented or waived by Prescott.
    5. That as the contract in this case is entire, if the evidence shows that Otterstatter’s pretended performance of his covenants for improvements was utterly worthless and useless, Otterstatter cannot recover rent, and the verdict should be for plaintiff.
    The 7th point of the plaintiff below was as follows:
    That if the jury find, from the evidence, that the plaintiff’s consent to the lease of the 31st of March 1873, was obtained by defendant’s, Otterstatter’s, promise and undertaking, embodied and expressed in said lease, “to erect an additional story over the building, with rooms, to extend fifty feet, beginning at the west end of said hotel, and the old porches to be taken down and converted into proper hall-ways,” and that the defendant, Otterstatter, after the execution of the lease, failed and refused to make such additions and alteration, the plaintiff, Prescott, is entitled to »a verdict in this case.
    The court below answered this point in the negative, and said :—

      “ The fact as assumed authorized Prescott to rescind the contract. If he did not, and held the premises under his lease, he is not entitled to a verdict discharging him from all the rent, unless the premises, for the purpose for which leased, were worthless without such additions and alterations. Though damages may be deducted from the rent, and if equal to all the rent, or in excess thereof, Prescott is entitled to a verdict.”
    Verdict having been rendered for defendant below, the plaintiff below took this writ of error, and assigned for error the answers to the points above, and also the overruling plaintiff’s exceptions to prothonotary’s re-taxation of costs, and in granting defendant’s motion for double costs.

      J. B. Brawley, for plaintiff in error.
    — The contract was an entire contract: McClurg v. Price & Sims, 9 P. F. Smith 420; Leishman v. White, 1 Allen 489; Shumway v. Collins, 6 Gray 232; 1 Wash, on Real Property 345. If an entire contract, defendant below was not entitled to recover any rent, unless complete performance has been prevented or waived by plaintiff below: McClurg v. Price & Sims, 9 P. F. Smith 420; Shaw v. Turnpike Company, 2 P. & W. 454; Harris v. Ligget, 1 W. & S. 301; Martin v. Schoenberger, 8 Id. 367; Leishman v. White et al., 1 Allen 489; Shumway v. Collins, 6 Gray 232.
    The work was defectively done, and this was in law no performance : Miller v. Phillips, 7 Casey 223. The plaintiff paid the fees for certain witnesses. Defendant’s fees for the same witnesses should not have been included in defendant’s bill of costs: Batdorff v. Eckert, 3 Barr 268; Curtis v. Buzzard, 15 S & R. 22; Horner v. Harrington, 6 Watts 336. While under the strict letter of the Act of March 21st 1872, defendant was entitled to double costs, yet, under the true spirit and meaning of that act he would not be entitled to them; but if entitled, he can only claim for expenses actually incurred, and not for fees not paid and for which he was not liable: Musser v. Good, 11 S. & R. 248.

      Pearson Church and W. R. Bole, for defendants in error.
    — The questions raised in these cases were all ruled and settled in Prescott v. Otterstatter, 29 P. F. Smith 462: As to costs, the Act of March 21st 1772, sect. 10,1 Sm. Laws 372,2 Purd. Dig. 1265, is plain and was followed by the court. After providing that the defendant in a replevin may aver for rent in arrear and make conusance generally, &c., it then provides “ and if the plaintiff or plaintiffs in such action shall become nonsuit, discontinue his, her, or their action, or have judgment given against him, her, or them, the defendant or defendants in such replevin, shall recover double costs of suit.”
   Mr. Justice Sterrett

delivered the opinion of the court, January 7th 1878.

The first six assignments of error refer to the instructions given in the general charge, and in answer to points submitted in relation to the right of the landlord to recover rent without having completed the improvements he covenanted to make, according to the terms of the lease. It is unnecessary to consider them seriatim. Taking some of them singly and alone, they might perhaps be sustained, but when considered in connection with the general charge and the leading facts of the case as therein stated, we are satisfied that the learned judge was correct, and that the case was fairly and properly submitted to the jury. They were instructed, inter alia, that if the tenant held and enjoyed the demised premises, the covenants on the part of the landlord to repair and make additions were minor and subordinate, and did not go, to the essence of the contract so as to defeat the rent in toto ; that he was not entitled to a verdict discharging him from all the rent, unless the premises, for the purposes for which they were leased, were worthless without such additions and alterations; that whatever damages the tenant sustained by reason of the landlord failing to perform his covenants might be deducted from the rent, and if these were equal to the entire rent, or in excess thereof, the tenant was entitled to a verdict.

We have not been furnished with the testimony in full, but in view of the facts as we gather them from the charge of the court, these instructions were substantially correct. The principle recognised in Obermeyer v. Nichols, 6 Binn. 159, has never been departed from in this state. That was an action of covenant for rent due on a lease in which the landlord had covenanted to make improvements. The court below charged the jury that the covenants on the part of the landlord w'ere minor and subordinate, and that the damages for their non-performance could be defalked against the rent. Chief Justice Tilghmaít, in delivering the opinion of this court, said it was for the court to construe the lease and decide whether the covenants to be performed by the landlord were of such a nature that, without the performance of them, there was no obligation to pay the rent or any part of it, and that the ruling of the court below was right, for the reasons that the entry of the tenant was to precede the acts to be performed by the landlord, and it was evident that the former would enjoy a considerable benefit from the lease independent of those acts, and that full justice was done, therefore, to the tenant when it was left to the jury to take into consideration the non-performance of the covenants, and deduct from the rent the amount of the injury which the tenant had sustained. Recognising the authority of the case, the learned judge very appropriately said: “ Every man’s feelings would revolt at the doctrine that a tenant should be suffered to occupy and enjoy the demised premises for a whole, year without making any compensation to the owner, on the ground that he did not make some trifling repairs according to the contract. All that the tenant ought to be allowed in such a case, is such a sum out of the rent as would be full amends for the loss and inconvenience he had been subject to by reason of the failure to complete such repairs, but not-to be discharged absolutely from all liability to his landlord,”

The case, in its different phases, as presented by the testimony, was fairly submitted to the jury, and, considering the charge as a -whole, including the answer to points submitted, the plaintiff in error has no just ground of complaint.

We discover no error in the ruling of the court as to the taxation of costs. In settling with and paying some of the defendants witnesses the plaintiff was a mere volunteer. It was the business of the defendant to pay his own witnesses. He was responsible to them for their per diem fees and mileage, and he had a right to have these taxed as part of his costs in the case. If the practice were sanctioned for either party to settle with the witnesses of his adversary,' the latter as well as the court would be drawn into unnecessary controversy and trouble in the taxation of costs. If such payment of witnesses and the production of their receipts were permitted to defeat taxation the winning party might be defrauded of his rights when he, himself, has paid his witnesses, or when double or treble costs are given by law. Such difficulties can be best avoided by recognising and enforcing, as the court did in this case, the right of each party to attend to his own affairs. As remarked by the court, in a proper case, when receipts of witnesses are filed by the losing party the court would so control the execution that the fees so paid should not be collected. This would be quite as full a measure of relief as a mere volunteer is entitled to.

The only remaining question is as to double costs under the Act of March 21st 1772, which provides that the defendant in replevin may avow and make conusance generally that the plaintiff enjoyed the land under a grant or demise at a certain rent; that the rent distrained for had accrued and was then and still remains due, &c.; and if the plaintiff or plaintiffs, in such action, shall become non-suit, discontinue his, her or their action, or have judgment given against her, him or them, the defendant or defendants in such replevin shall recover double costs of suit. This act is penal in its nature and should be strictly construed. Its purpose was doubtless to prevent vexatious resistance to the collection of rent, but was it intended to give the landlord double costs in cases where he dis-trains for more rent than he is entitled to ? When the plaintiff suffers a nonsuit, or discontinues, he thereby virtually admits that his resistance has been vexatious. So too, when the jury find, in favor of the defendant, the full amount of rent, specified in the avowry, the verdict impliedly convicts the plaintiff of vexatious litigation; but, not so when they find less. The plaintiff is then partially successful, and the verdict establishes the fact that the distress was excessive, and to that extent, at least, resistance was justifiable. It is true the act, in general terms, gives double costs when judgment is given against the plaintiff; but, judgment for for what ? Does it mean judgment for a mere fraction of the amount claimed by the landlord; or, is it not rather to be understood a judgment for the sum specified in'the avowry ?

As vras said in Waltman v. Allison, 10 Parr 464, the rent duo at the time of the distress must, according to the requirement of the statute, be specifically set out in the avowry. And is it not reasonable to infer that, in speaking in the same connection of judgment against the plaintiff, it means judgment for the amount so specified — the same that it would bo in the case of a nonsuit ? Keeping in view the object of the act, its penal character, and construing it strictly, no violence is done to the language employed by holding that a judgment to carry double costs must be co-extensive with the avowry; in other words, for the full amount claimed by the landlord, defendant. It is stated in the plaintiff’s history of the case, that he obtained a verdict in one of, the first cases, and the defendant a verdict in each' of the others, although the rent allowed him was much less than he avowed for, the jury, in each case, allowing the plaintiff damages for the defendant’s breach of the covenants of his lease.” This statement appears to be sustained by the record, the verdict in each case being less than the amount claimed and interest thereon, though, in some of the cases, the difference is but little. In view of this, wo are of opinion that, under a proper construction of the act, the plaintiff' was not liable to double costs. He resisted successfully, in part at least, a distress which the verdict proves to have been excessive.

The order of the court directing the taxation of double costs to the defendant is reversed and set aside, and the judgment is affirmed with single costs.

Merche, G-ordoet and Woodward, JJ., dissent from so much of this judgment as reverses the order for the taxation of double costs.


author: Mr. Justice Paxson Per Curiam.

text:
    Commonwealth ex rel. The Attorney-General versus Walter.
    1. In a suggestion for a writ of quo warranto an averment that money was paid by respondent to M., for other than the necessary and proper expenses expressly authorized by the Act of 1874, ‘‘ but for corrupt and illegal purposes in procuring his election/ sufficiently charges a violation of said act, and brings the respondent within the prohibition of sect. 9, art. 8, of the constitution.
    2. The respondent demurred to the whole of the suggestion. Held, that the demurrer was an admission of all the facts well pleaded in the suggestion, and judgment for the Commonwealth having been given upon the demurrer, judgment of ouster must follow.
    3. After the writ of error was sued out the President Judge of the court below filed a certificate to the effect that the demurrer while general in form was in fact confined to a special point. Per Paxson, J.: The certificate was no part of the record, although filed in the case, and it may well be questioned whether the unofficial declaration of the judge can be received to contradict his own record.
    November 16th 1877.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Butler eount-y. Of October and November Term 1877, No. 287.
    Quo warranto issued upon the suggestion of the Attorney-General against George Walter, requiring him to show by what authority he exercised the functions and received the emoluments of the office of high sheriff of Butler county.
    It was averred, in the suggestion, that said Walter had been returned as elected in November 1875; “ that while a candidate for said office he was wilfully and corruptly guilty of bribery, fraud- and the wilful violation of the election laws of the Commonwealth, in that he offered and promised one John McLure to make him his deputy, and furnish him money in his business for his vote and support for the said office of Sheriff, and did make him deputy after his election in pursuance of said promise; that while the said Walter was a candidate for said office, he furnished said McLure with money, and assisted him in procuring the same in pursuance of said promise, and paid the said McLure money to use in carrying the said election for him, for other purposes than for printing and travelling expenses, the dissemination of information to the public or for political meetings, demonstrations and conventions, or for any necessary and proper expenses expressly authorized by law, but for corrupt and illegal purposes in procuring his election; and the said Walter, while a candidate for said office, made other promises, and offered to give to the electors of said county of Butler, money, rewards and other valuable considerations for votes at his election; and did, wilfully and corruptly, use and pay money to a large amount, to wit: to the amount of five hundred dollars, to divers of the electors, whose names are unknown, of said county, for the purpose of securing and. controlling the votes of said electors at the election, at which he -was a candidate as aforesaid; and the said Walter, having taken the oath of office required by the constitution of the state of Pennsylvania, after he had been, declared elected to the said office of sheriff, did then and there commit and was guilty of wilful and corrupt perjury, having committed and been guilty of the acts and offences first above alleged and charged, which in said oath, taken as aforesaid, he denied; whereby the said Walter has become, and is disqualified from holding said office of sheriff of the county of Butler, and since the said first Monday in January 1876, he has usurped and does usurp on the Commonwealth therein, to the great damage and prejudice of the constitution and laws thereof.”
    To a rule to show cause why the writ of quo warranto should not issue the respondent filed a plea and answer, wherein the charges made in the suggestion were specifically denied.
    After hearing, the court was of opinion that defendant should be legally adjudged guilty of the crimes charged in the information before proceedings could be instituted to remove him from office, and therefore discharged the rule; but at the request of counsel for the Commonwealth, directed the writ to issue pro forma as of the date of the rule to show cause, and entered judgment quashing the writ.
    To this judgment a writ of error was sued out by the Commonwealth, and the Supreme Court reversed the court below and awarded a procedendo, holding that a writ of quo warranto may issue against a public officer for bribery, fraud or wilful violation of the election laws without a preliminary conviction for the offence, and that the question whether the offence had been committed may be tried in the proceeding under the quo warranto. See Commonwealth v. Walter, 2 Norris 105.
    The record having been returned to the court below an amended suggestion and specifications were filed, which set forth the names of the parties to whom it was alleged corrupt promises were made, and the nature of the promises, and the case was at length fixed for trial on the 1st day of October 1877. On that day the respondent filed a demurrer to the whole of the information, and denied that it was sufficient in law. to compel him to plead or answer thereto or join issue thereon for the following reasons :—
    1st. The charges of alleged promises to pay money, appoint to office, or some other valuable thing, are not an offence as 'charged.
    2d. The charges of payment of money or appointment to office, or of some other valuable thing, are not sufficient, because the person or persons are not charged, named or alleged to have been electors, qualified to vote at said election. He therefore prayed judgment on said demurrer.
    The plaintiff’s counsel moved for leave to file an additional amendment, which the court, McJunkin, P. J., disallowed and entered judgment on the demurrer for the defendant.
    . The Commonwealth then took this writ, assigning for error this entry of judgment. Subsequently to the taking out of the writ, the following certificate of-the president judge was filed:—
    “I, E. McJunkin, President Judge of the Court of Common Pleas of Butler county, in the OommonAvealth of Pennsylvania, do hereby certify that the demurrer of respondent in this case was sp-.'-cial to the question of whether the persons alleged to have been bribed, &c., were sufficiently charged as qualified electors of the county of Butler, or persons duly qualified to vote at that election, in the suggestion, and that the arguments of counsel on both sides related to this point exclusively, and that the judgment of the court was upon this point alone though seemingly general.”

      S. H. Peirsol, Thomas Robinson and Gteorge Lear, Attorney-General, for the Commonwealth.
    — Electors are those who have the right to vote, and it was not necessary, under the Act of 1860, to charge that they were ‘ ‘ qualified electors. ’ ’ But the respondent has clearly violated the provisions of the Act of 1874, Pamph. L. 64, and there is no term of “ electors” in that act. The charges relating to McLure aver that Walter made the promise to him for the purpose of securing his vote and influence. Does not this imply that he was a qualified elector ? It was also charged that respondent made other promises and offered to give to the electors of the county, money, rewards, and other valuable considerations for votes at his election, and the names of the parties, the character of the promises and the moneys paid were also specified. Were not these averments made with sufficient certainty ? This court should not only reverse the judgment of the court below, but should enter judgment of ouster against respondent with costs : Commonwealth v. Cross Cut Railroad, 3 P. F. Smith 62; Commonwealth v. Pittsburgh and Connellsville Railroad Co., 8 Id. 26. A demurrer admits the facts pleaded and merely refers the question of their legal sufficiency to the decision of the court: 1 Chitty on Pleading 692; Stephens on Pleading 82; Gould’s Pleading, c. 9, s. 1; Weidel v. Roseberry, 13 S. & R. 178; Cummings v. Boyd, 2 Norris 372. The demurrer was general and was not regarded as special by any of the parties to the cause.
    The progress of this case has been resisted by all the devices known to the law. Should it be sent back for further action, there is little probability that it would be reached until the office expired by lapse of time. A final judgment in favor of the Commonwealth, will go far to purify our political system, and to reassure citizens that whatever else may yield to evil influences the honest expression of the peoples’ will shall obtain in the election of public officers.

      John M. Thompson, Charles MeCandless and Lewis Z. Mitchell for respondent.
    — The fact that Walter promised to appoint McLure was not a violation of the Act of 1874. It was the intention of that act to reach parties who bought votes, not those who made promises to secure them. Nor was this promise within the constitutional prohibition. The only other act is that of 1860, which requires that the electors must be “qualified” electors, and this fact must be specially pleaded. It is a penal statute and must be strictly construed, and an offer therefore made to one who was not a “ qualified” elector, is not within the act, and there is no averment in the suggestion that McLure or, any other of the parties alleged to have been corruptly approached, had the right to vote. The charge that money was paid to be used in carrying the election is not- specific enough, and is insufficient in certainty of pleading. The suggestion utterly fails to charge any disqualifying act on the part of the respondent. In State v. Church, 5 Oregon 375, in a similar proceeding, and founded on a constitution and laws analogous to ours, it was charged that Church, while a candidate, offered, if elected, to pay $200 into the county treasury, and that by such offer he obtained seventy votes and thereby secured his election. The suggestion did not charge that any of the parties to whom the offers were made were taxpayers, and the court held that the suggestion was defective in that it did not state that they were taxpayers of the county.
    The request made by the Commonwealth that this court shall overrule the demurrer and enter judgment of ouster against the respondent is certainly without precedent. If within the power of the court, this power would not be exercised unless imperatively-demanded by the circumstances. In this case all the surroundings forbid its exercise. The information and amendments specifying charges are answered by the respondent, and every act alleged and charged therein is denied under oath, and the answer contains the allegation that the suggestion does not sufficiently charge any offence with the plea of not guilty added. There is no precedent where judgment of ouster has been entered on demurrer where answer and plea were on file, and not withdrawn or attempted to be withdrawn. The demurrer may'have been, and may now be, futile in fact, may, as a matter of law, never have had an existence ; but the plea and answer of respondent are good in law, and will afford him his constitutional right of trial by jury before his property, rights and reputation can be swept from him.
    Although the demurrer was general in form, it was special, and judgment of ouster should not, therefore, be entered.
    [Chief Justice Agnew. — Why did you not ask leave to make it special ? The record, as it appears here, shows the demurrer to be general.]
    A motion was made to quash the suggestion, which finally took the form of this special demurrer. It may have been too late to do this, the cause being at issue on the facts; but no objection was made, and the respondent's answer having set out that the suggestion was insufficient in law, the former demurrer, so called, was filed, and, though seemingly general, was special, and to this question alone, as certified by the learned judge of the Common Pleas, who presided at the trial. But if this court should be of opinion that we have made a technical mistake, will they not assume that to be done which ought to have been done, rather than render judgment of ouster of a inan against whom nothing has been proved ?
    November 22d 1877.
   Mr. Justice Paxson

delivered the opinion of the court,

This was a writ of quo warranto, issued upon a suggestion filed by the Attorney-General of the Commonwealth, against George Walter, requiring him to show by what authority he holds and exercises the office, franchises, rights and privileges, and enjoys the emoluments of the office of high sheriff of the county of Butler. The suggestion avei’s that the said Walter, while a candidate for said office, “ paid one John McLure money to use in carrying said election for him, for other purposes than for printing and travelling expenses, the dissemination of information to the public, or for political meetings, demonstrations and conventions, or for any necessary and proper expenses expressly authorized by law, but for corrupt and illegal purposes in procuring Ms election.” The suggestion then avers specific acts of corruption, and proceeds to charge that “ the said George Walter, having taken the oath of office required by the Constitution of the state of Pennsylvania after he had been declared elected to the said office of sheriff, did then 'and there commit and was guilty of wilful and corrupt perjury, having committed and been guilty of the acts and offences first above alleged and charged, which in said oath, taken as aforesaid, he denied; whereby the said George Walter has become and is disqualified from holding the said office of sheriff of the county of Butler, and since the first Monday of January, in the year of our Lord one thousand eight hundred and seventy-six, he has usurped and does usurp on the Commonwealth therein, to the great damage and prejudice of the constitution and laws thereof.” An amended suggestion, and amended specifications were filed by leave of court, a reference to the details of which is unnecessary under the view we take of the case. Nor need we now allude to any of the subsequent proceedings in the cause until we come to the demurrer filed by the defendant on the first day of October 1877. Under the well-settled rules of law this demurrer was an admission of all the facts sufficiently pleaded. The demurrer was general. An attempt was made to show that it was special by a certificate of the learned judge of the court below, that it was only taken to a single point. The certificate was no part of the record, although filed in the cause, and it may well be questioned whether the unofficial declaration of the judge can be received to contradict his own record. It is, however, wholly immaterial, as we are unable to perceive any- difference between a general and a special demurrer as to the admission of the facts. Both alike admit the facts well pleaded. We are, therefore, brought to a consideration of the sufficiency of the suggestion.

The law of the case will be found in section 9 of article 8 of the constitution, and thé Act of 18th of April 1874, Pamph. L. 64. The constitutional provision is as follows: “Any person who shall, while a candidate for office, be guilty of bribery, fraud, or wilful violation of any election law, shall be for ever disqualified from holding an office of trust or profit in this Commonwealth; and any person convicted of wilful violation of the election laws, shall, in addition to any penalties provided by law, be deprived of the right of suffrage absolutely for a term of ^our years.” The act of 1874, after defining, in the first section, what shall be considered legal election expenses, provides that “nothing contained in this act shall be so construed as to authorize the payment of money or other valuable thing for the vote or influence of any elector, either directly or indirectly, at [Drimary, township, general or special elections, nominating conventions, or for any corrupt purposes whatever incident to an election; and all judicial, state, county and municipal officers hereafter elected shall, before entering upon the duties of their respective offices, take and subscribe the oath prescribed by section first, of article seven of. the constitution of this Commonwealth.” The averment in the suggestion that the defendant paid money to John McLure other than for the legal expenses provided for in the Act of 1874, but “ for corrupt and illegal purposes in procuring his election,” sufficiently charges a violation of said act. The only expenses recognised by law are, 1st, printing and travelling expenses; 2d, for dissemination of information to the public; and 3d, for political meetings, demonstrations and conventions. Beyond these authorized expenditures a candidate for office may not go. The Act of 1874 declares that a candidate for either a nomination or an election shall not pay or contribute, either directly or indirectly, any money or valuable thing, or knowingly allow it to be done by others for him, either for the nomination, election or appointment, except for the three purposes above specified. We think, therefore, that the averment in the suggestion that money was paid, not for the legal objects designated, but for corrupt and illegal purposes in procuring his election, brought the defendant within the prohibition of the constitution and the penalties of the Atít of 1874. It follows that the court below erred in sustaining the demurrer.

It remains to consider whether wm ought to enter final judgment. If the defendant had demurred promptly there would have been much force in the suggestion pressed upon us at the argument that we should give judgment of respondeat ouster. But the Commonwealth has been greatly delayed. This case was -here a year ago upon another point. We then heard no word of any defect in the suggestion. The judgment was reversed November 24th 1876, and a procedendo ordered. It was not until October 1st 1877, the day upon which the case was ordered for trial, that the demurrer was put in. This delay was calculated to baffle the Commonwealth and seriously protract the proceedings. If we now allow the defendant to withdraw his demurrer it is not probable the case will be disposed of during his term of office. We cannot permit him to practically defeat this inquiry in this manner. He has had an ample opportunity of having his case passed upon by a jury if he desired it. Having, after great delay, interposed a demurrer, he must be held to all its legal consequences. The Commonwealth is entitled to final judgment.

What judgment is it our duty to give ? The section of the constitution above cited provides, as we have seen, that any person who shall, while a candidate for office, be guilty of a wilful violation of any election law, “shall be for ever disqualified from holding an office of trust or profit in this Commonwealth.” The entry of judgment for the Commonwealth upon the demurrer is conclusive upon the defendant that he has wilfully violated the election law of 18th of April 1874. It follows that the disqualification of the constitution attaches, and that he is “ for ever disqualified from holding an office of trust or profit in this Commonwealth.” He, therefore, fills an office lie is disqualified from holding by the very terms of the constitution, and he must be ousted therefrom. This may seem severe, but it is just. The constitutional provision and the Act of 1874 were intended to preserve the purity of the ballot, and must'be sternly enforced.

The judgment is reversed, and judgment is now entered here for the Commonwealth upon the demurrer; and it is further ordered and adjudged by the court that the defendant, George Walter, be, and he hereby is, ousted from the office of high sheriff of Butler county, and from the franchises, rights, privileges and emoluments thereof.

Subsequently, a motion was made for a re-argument, which was refused; the following opinion being delivered on the 10th day of January 1878:

Per Curiam.

— A rule for a re-argument of this case would do the defendant no good. We are of the same opinion as we were when judgment of ouster was given. The real purpose in this application is to open the judgment and obtain an order of this court remanding the record to the Court of Common Pleas of Butler county for a trial by jury. This, however, it would be improper to do. Such a practice would lead to great delay, and would encourage men in desperate or doubtful cases to appear to stand aloof from their counsel, plead ignorance of law, take the chance of a decision in their favor in this court, and failing in that, to have the record remitted for a trial of the facts. If, as the defendant swears, the demurrer was against his judgment and protest, he ought to have controlled his counsel, in a matter so important to his interests. Not doing this he certainly ought to have applied to this court to permit him to take back the record for a trial of the facts, before arguing his case upon the demurrer and taking his chance of this decision in his favor. If counsel make a fatal mistake, the remedy of the client is an appeal to the discretion and sense of justice of the court for relief, and not to persist in the error by argument.

The decision in this case is a warning of vast importance to the electors and people of this state, and we feel that it should be sustained by us, instead of impairing its force, by an apparent retrograde movement on our part.

Motion for a re-argument refused, and record ordered to be remitted to the court below.


author: Mr. Justice Woodward

text:
    Township of Girard versus Borough of Girard.
    1. Where parol evidence has been given by a plaintiff to show what were the claim made and the points contested in another action, it is not error to admit in evidence the record of said suit to elucidate the character and subject-matter of the action.
    2. The burgess and one of the members of council of the borough of Girard, as the agents of the borough, with their own means procured as volunteers, seven men, at §300 each to fill the quota of the borough in the draft of the United States in 1864. Without the authority of the borough they transferred the credit of these men to the township of Girard, receiving §500 for each man. The borough brought an action on the case against them for violating their duty as its officers, in thus wrongfully transferring the credit of the seven men to the township, and recovered a judgment equivalent to the difference between the amount paid for the men and that received. The township then brought an action of assumpsit for this amount. Held, that the action of assumpsit would not lie.
    3. Held further, that the suit could not have been maintained, even if the action of the borough against the burgess and councilmen had been an action ex contractu.

    October 20th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleds of JErie county: Of October and November Term 1875, No. 49.
    Assumpsit by the township of Girard against the borough of Girard. Defendant pleaded non assumpsit.
    In 1864 the United States made a draft for men to fill its armies; the quota of the borough of Girard being fourteen. To fill this quota the borough authorities sent agents south to procure volunteers. While these agents were absent, and their success unknown, Leffert Hart, burgess, and L. S. Wright, one of the council of said borough, learned that there were in said borough six men who were willing to volunteer for a bounty of $300 each. There were then present in the borough but two of its council, L. S. Wright and Henry Ballard, and its burgess. Hart and these three not constituting a quorum, the question was discussed, whether it was best to accept these volunteers, sundry of the citizens urging the acceptance, which Hart and Wright favored, but from which Ball dissented, on .the ground that they had better wait until the agents, who had been sent in search of volunteers, could be heard from. Under these circumstances Hart and Wright secured the seven men towards filling the quota of the borough, if it should want them, and paid to each $300 out of their own funds. After-wards, ascertaining that the agents of the borough had secured a sufficient number of men to fill its entire quota, without consultation with any of the other borough authorities, Hart and Wright transferred these seven men to the township of Girard, and caused them to be credited bn the quota of the township; receiving for each man so credited the sum of $500. It appeared that, at the time of the transfer, Hart, who was the active man in making the same, stated to the agents of the township that the borough had no claim to the men; that he and Wright had paid for them with their own money, and had the right to make the transfer. On June 5th 1865, the borough, claiming that Hart and Wright were its agents in this transaction, demanded that they should refund to the borough the money obtained from the township for the men thus transferred, and afterwards, on September 5th 1865, commenced an action on the case against them, declaring that they, as agents of the borough, had secured the seven men to fill pro tanto its quota for $300 each, and, in violation of their duty, for a consideration of $3500, had wrongfully procured the credit of the seven men to be transferred from the quota of the borough to that of the township, in which suit they recovered a verdict and judgment against Hart and Wright for $1757, and collected the money. This action was brought by the township to recover this amount from the borough. An arbitrator was chosen, before whom the plaintiff, having given its evidence and rested, the defendant offered a receipt of the attorney of the borough for the amount of the above judgment with interest, which the arbitrator, under objection,( admitted. First assignment of error.
    Defendant further offered the record in the above-mentioned suit, which was admitted under objection, the arbitrator ruling that as the plaintiff had given parol evidence to show what was the purpose of the suit and the real matters controverted therein, therefore the record should be admitted for a like purpose. Second assignment of error.
    Defendant also proposed to show by Henry Ball, the' secretary of the council of the borough, that there never was any authority given to Hart and Wright to transfer the seven men. Evidence admitted under objection. Third assignment of error.
    Also: to prove by same witness that the money received from Hart and Wright was not claimed as money received by them for the use of the borough, but as damages suffered by the borough in having to put men into the service of the United States in 1865, resulting from the official misconduct of Plart and Wright. Admitted, under objection, as rebutting plaintiff’s parol evidence of what was claimed in that suit. Fourth assignment-of error.
    The plaintiff -submitted the following points, to which are appended the answers of the arbitrator:—
    1. Where an agent pays the money of his principal without authority, and contrary to law, and this is known to the party receiving it, it may be recovered back from the party so receiving it by the principal.
    Answer. I affirm this point, but I do not perceive its applicability to the evidence in this case.
    2. The road commissioners of the township of Girard, in the transaction of buying and paying for these men, were ex offieio the agents of the township, and having paid to the defendant the sum of $200 per man without authority from the township, and against the express provisions of the Act of March 1864, which expressly forbids the payment of more than $300 each for volunteers, and this being known to the defendants, plaintiff is entitled to recover from the defendants the amount received over and above the sum of $300 each for' said seven men.
    Answer. The road commissioners of the township of Girard were, by virtue of their office and sundry Acts of Assembly, authorized to hire and pay volunteers to fill its quotas in the army of the United States. I find no evidence that they acted in this matter “ without authority from the township.” Their acts therein are to be considered as the acts of the township to the extent of their legal authority. If they exceeded their authority in paying more money for volunteers than authorized by Act of Assembly (I do not decide that they did), it was wrong; but I cannot perceive how such a wrong could confer a right upon the township, or how the .township, which received from the purchase all the benefits it expected to receive, can (particularly in the absence of all evidence of fraud or misrepresentation) recover back the money it voluntarily paid, after having received the whole benefits of the purchase.
    3. When the borough of Girard claimed the $1400 received by Hart and Wright over and above the $300 paid to each of the seven men, it was in law a ratification of the act of Hart and Wright in the transfer of the seven men, and equivalent to precedent authority.
    Answer. Whether the borough claimed for money had and received for its use by Hart and Wright, or claimed ex delicto in damage for violation of their duty, was a controverted question of fact. The record in evidence showed the claim to be in damages for tort. If it were ex contractu, for money had and received for the use of the borough, it would, as between the borough and Hart and Wright, be a ratification of the act of selling the credit of the men. But I cannot perceive how that would enable the plaintiff, who bought the men and got all it contracted for, to recover in this case.
    The arbitrator then made an award that the plaintiff had no cause of action. The court subsequently overruled the exceptions thereto, and entered judgment on the award. The plaintiff then took this writ; its assignments of error being those- heretofore noted, together with the answers to its points.

      Cutler & Hinds for plaintiff in error.
    — The arbitrator erred in admitting the record. The township was neither a party nor privy in that case, and could in no manner interfere or control its proceedings, which were essential to make the record evidence : Green-leaf’s Evidence, vol. 1, sects. 523, 525 ; Peterson v. Lothrop, 10 Casey 223. The arbitrator treated the case as though we were suing for money received by the borough of its agents, while our claim was for money received by the borough through its agents, which money was claimed by the borough on the sole ground that Hart and Wright were her agents. The course taken by the borough to recover the money received by its agents of the township cannot affect the rights of the plaintiff. The Act of March 25th 1864, Pamph. L. 87, did not authorize the road commissioners to pay a sum for volunteers in excess of $300 each, and all that was paid by the township above that sum, was without authority and contrary to law, and the corporation whose money is thus unlawfully paid may recover it.back from the party ayIao received it from its officer: Thomas v. Shoemaker, 6 W. & S. 183.

      S. JS. £ T. S. Woodruff, for defendant in error.
    — The facts as found set forth no cause of action. This was an action of assumpsit. No express promise was alleged or proved. The arbitrator decided that the facts found by him raised no implied promise. He found that the borough sued, in an action on the case, her officers for a violation of their official obligations, which consisted in selling the property of the borough Avithout its consent. But, if the action against Hart and Wright had been assumpsit for the identical money received by them from the township, this Avould constitute no such privity between the township and the borough as to Avarrant a recovery in this case: Stephens v. Badcock, 23 E. C. L. R. 160; Baron v. Husband, 24 Ibid. 123; Beach v. Morris, 12 S. & R. 16; Morrison v. Beckey 6 Watts 349; Guthrie v. Horner, 2 Jones 236; Finney v. Finney, 4 Harris 380; Campbell v. Lacock, 4 Wright 448.
    The Act of 1864 did not restrict the road commissioners to any particular amount to be paid to volunteers.
    October 1st 1877.
   Mr. Justice Woodward

delivered the opinion of the court,

The various items of evidence specified in the first, second and fourth assignments of error were made relevant by the parol testimony, Avhich had been given by the plaintiff, of the claim made and the points contested in the trial of the suit of the burgess and town council of the borough of Girard against Leffert Hart and S. L. Wright. The admission of the receipt for the amount of the judgment in that suit ay as certainly unobj ectionable, for it shoAved the money which it was the object of this action to recover in the defendant’s hands. Having made an issue in' regard to the character and subject-matter of the former suit, it is difficult to see how the issue could be better elucidated than by the production of the record. Henry Ball’s testimony was offered to meet the plaintiff’s evidence of what occurred Avhen the cause was tried. There Avas nothing in the testimony to contradict the record, or to vary the effect of any fact Avhich it disclosed. That explanatory evidence of the occurrences at a former trial is' admissible is well settled. It was held in Carmony v. Hoober, 5 Barr 310, that it might be shown by parol that the issue had not been tried upon its merits. In Stark v. Fuller, 6 Wright 320, parol testimony of facts, in aid of those shown by the record, that transpired in the argument and disposition of a motion for a new trial, was held to have been properly received.

Mr. Ball’s testimony in regard to the authority of Hart and Wright, to the reception of which the third error is assigned, could have had no other effect than to tend to prove the negative of a fact the affirmative of which it was incumbent on the plaintiff to establish. The witness had been secretary of the council of the borough of Girard from 1864 to the time of the trial, and the offer was to prove that Hart and Wright had never been authorized to transfer to the township of Girard the .seven men whom they had secured. Part of the offer was to show the result of an examination he had made of the minutes of the proceedings of the council. Undoubtedly the books containing the minutes would have been the best evidence, but objection was not made on that ground, and nothing appears to show that the books were not within the plaintiff’s reach. No error in this particular that was at all material, or could have produced wrong results, can be gathered from the record.

The remaining assignments present the essential question in dispute. This is an action of assumpsit for money had and received. Under the call for troops made by the president on the 18th of July 1864, the quota of the borough of Girard was fourteen men. Seven men were procured at home, and agents were sent south for the others. In the absence of these agents, Hart, then the bui’gess, and Wright, a member of the council, undertook to act for the borough, and raised seven men to whom they paid three hundred dollars each. The agents abroad having obtained volunteers to fill the quota, Hart and Wright transferred to the township of Girard the credit for the seven men whom they had obtained, for the consideration of five hundred dollars for each man. An action of trespass on the case was subsequently brought by the borough against Hart and Wright to recover the money they had received from the road-masters of the township with whom the transfer had been negotiated. The declaration charged the defendants with a tort in wrongfully transferring to the township credit for seven citizens of the borough while they were “ exercising the duties and responsibilities of burgess and member of the town council,” and while they were acting as. public servants and agents for the borough.” It appears by both reports of the case in 6 P. F. Smith 23 and 13 P. F. Smith 388, that the fact was established that by the action of the town council each member, as well as the burgess, was authorized tcact as agent for the borough in procuring volunteers to fill the quota. This element of fact has not been found by the arbitrator, but it appears adequately from the declaration, as well as the statements in the reports of the case, that the claim of the borough against Hart and Wright was for damages for a breach of duty while they were acting as its agents. That this was the character of the claim, indeed, the arbitrator has expressly found. A judgment was finally obtained for $1757, and having been paid to the borough, this action has been brought by the township to recover the amount.

The Act of the 25th of March 1864, Pamph. L. 85, limited the amount of the bounty to be paid to each volunteer to a sum not exceeding $300. A previous act, passed on the 16th of March 1864, Pamph. L. 16,. authorizing the levy and collection of taxes to pay bounties to volunteers in the city of Erie and the boroughs and townships in the county of Erie, had fixed no limit to the amount that should be paid. It is insisted on behalf of the plaintiff that the transaction in question here was subject to the provisions of the general and not the special statute: and as the price paid by the road commissioners was $500 for each volunteer, it is contended that the contract was an illegal one, and that the amount paid in excess of that legally authorized is money had and received by the defendant for the plaintiff’s use. On the other hand, the ground is taken by the defendant that for the guidance of the municipal authorities of Erie county, the Act of the 16th of March remained in force, and reliance is had on the rule stated in 6 Rep. 19, and adopted in Brown v. The County Commissioners, 9 Harris 37, that a general statute, without negative words, cannot repeal a previous statute which is particular, even though the provisions of the two be different. In view of the circumstances under which the Act of the 25th of March was passed, of the confused mass of special legislation in relation to bounties applying to different sections of the Commonwealth that was in existence, and of the broad and unqualified terms in which it was drawn, it is believed that it was designed to establish a pervading and exclusive system, and to supply and repeal the whole body of special statutes regulating the subject of taxation for bounty purposes,

Can the claim of the plaintiff be sustained upon the facts shown by the record ? This is an action of assumpsit. The money demanded by the plaintiff was recovered in an action ex delicto, brought by the present defendant to recover damages from Hart and Wright for wrongfully transferring the credits for volunteers belonging to the borough over to the township. Whatever may have been the measure of damages applied by the jury in reaching their verdict, the fact still remains that the amount recovered was made up of damages and nothing else. The money paid out by the road commissioners, eo nomine, has mot been traced to the defendant’s hands. In the suit against Hart and Wright, it was solemnly decided, in the Common Pleas and by this court, .that the borough had been wronged by the act of its agents, and had a right to recover to the extent of the injury suffered. Is the plaintiff here entitled to take the money thus recovered under a claim utterly inconsistent with, and diverse from, any ground that was asserted in that suit ? Probably the road commissioners could have been made liable to the township for the wrongful exercise of their official functions. Possibly the township could have recovered from Hart and Wright the amount which they illegally received. Whether such an attempt to recover would have been a ratification of the act of the commissioners, and what would be the effect of a ratification that would have made the township a party to the contract, are questions which it is unnecessary now to discuss. But the borough cannot be reached. There was no privity of contract; there was no privity of.relation; there’was no community of participation in any act, between the borough and the township. Thé transaction on the part of the township was with Hart and Wright, and Hart and Wright were acting in violation of their duty to the borough. The existence of a tort committed by the defendant, which the plaintiff may waive .so as to maintain this action, must rest in pure invention. There was no act on the borough’s part to which the character "of a tort can be imputed. It was the victim of the wrong that was done, and it was for compensation in damages for that wrong that the verdict of the jury was rendered. Broad as is the scope which has been given to the action of assumpsit for money had and received, it has never yet been extended so as to permit a plaintiff to recover from a defendant with whom he had never dealt, for a subject-matter which he could not identify or trace, and where no undertaking to pay could possibly have been assumed. It was.not the plaintiff’s money of which the defendant obtained possession. The amount recovered was the amount of damages ascertained to have been caused by Hart and Wright’s fraudulent conduct. The claim asserted here could only be supported by remoulding the judgment in the former action, and by reading in the record of it material facts which it did not contain.

All authority supports this conclusion. Where there has been an express contract, the party injured may sustain an action of assumpsit, though the breach amount to a trespass, but unless there have been such contract, the plaintiff must resort to another form of action: 1 Ch. Pl. 95; Birch v. Wright, 1 Term Rep. 378. Henwood v. Cheeseman, 3 S. & R. 500, was an action for the use and occupation of land in New Jersey. Tilghman, C. J., said :— “ The plaintiff must prove a contract, or he fails; but this proof may be either direct or presumptive. If he prove that the defendant occupied the land by his permission, it is enough; it will be implied that the defendant promised to pay a reasonable rent, but if the defendant came on as a trespasser, the plaintiff cannot recover in an action for the use and occupation.” To sustain a count for money had and received it is necessary to prove that the money was actually received for the benefit of the plaintiff under such circumstances as to create a privity of contract between him and the defendant. Barlow v. Browne, 16 Meeson & Welsby 128. Where the purchaser of a ticket in the Derby lottery sold it to the plaintiff, and the horse named in the ticket proved to be the winner, whereby the holder became entitled to a prize in money, it was held that the plaintiff could not maintain an action for money had and received from the treasurer of the lottery, for, although he held the money for the benefit of the plaintiff, yet there was no privity between them : Jones v. Carter, 8 Q. B. 134. And so if money in litigation between two parties is paid over by mutual consent to a trustee or stakeholder for the party entitled, it can only be recovered by that party from the stakeholder, and not from the other party by whom it was claimed: Ker v. Osborne, 9 East 378. It is essential in this form of action also that the plaintiff should establish a claim to some particular or specific sum of money as having been received to his use: Scott v. Miller, 5 Scott 11; Harvey v. Archbold, 3 B. & C. 626. Here the elements of contract, privity and identification are all wanting.

Even if the borough had recovered from Hart and Wright the money paid them in an action ex contractu, still the suit of the township could not be maintained. The rights and liabilities of the borough would have been precisely those of the seven volunteers. Could the township have recovered the money from them if they had received it ? No law forbade them to demand all they could get for their services. So far as they were concerned, the transaction was obnoxious neither to any law nor any rule of policy. That the township officers paid more than they were authorized to pay was nothing to the volunteers, and is a matter with which the borough has no concern. The contract was fully executed. The township received and retained the consideration for the money paid in the services of the volunteers. 'They could not have been compelled to pay back the money if the contract had been made with them, and the borough stands in the position they would have occupied. The contract was not per se' unlawful. There was nothing in the Act of the 25th of March 1864, to prevent a payment of $500 or any other sum to any volunteer, if funds for the purpose could be raised by private contribution. That act merely limited the amount to be borrowed on the credit of the township and to be repaid from taxes. The law imposed no restraint on the generosity or patriotism of the citizen when it fixed the limit of the taxpayers’ liability. The right of the volunteers to receive and retain a bounty in excess of $300 cannot 'be doubted. The borough could be made liable only on principles that would apply to them. Whatever the rights and Remedies of the township of Girard may he, they cannot be enforced in this action.

Judgment affirmed.

Agnew, C. J.,.and Sharswood, J., dissent.


author: Mr. Justice Mercur

text:
    Gottman et al. versus Shoemaker et al.

    To entitle a plaintiff to judgment for want of a sufficient affidavit of defence, under a rule of court, he must have complied with all the requirements of the rule, and if it appears that he has not done so a judgment entered in his favor is erroneous.
    November 19th 1877.
    Before Agnew, G. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1877, No. 41.
    Covenant by D. O. Shoemaker and others, against Henry Gottman and others, .on a guarantee in a mortgage executed by' the defendants. The defendants having filed an affidavit of defence the court entered judgment against them because of its insufficiency when they took this writ, and alleged that the court erred in thus entering judgment, for the reason that the plaintiffs had not complied with the rule of court, which'required that either a copy of the mortgage should be filed or that a reference should be made either in the praecipe or declaration to the office, book or page where it was recorded.
    The rule of court is as follows :—
    “ In all actions founded on book accounts, bills, notes, bonds and other instruments of writing for the payment of money, and in all actions upon covenants or contracts for the payment of money, or for the performance of some other duty or thing of a specified cash value, whether under seal or. not; in all suits upon recognisances, judgments, mortgages, mechanics’ liens and other records, and in actions of debt upon foreign judgments, and the judgments of justices of other states, if the plaintiff shall have filed a copy of the' account or instrument of writing on which the suit is founded, on or before the return-day of the writ, he shall be entitled to a judgment by default for the amount so claimed, at any time after twenty days from and after the return-day of the writ, unless the defendant, or some one for him, knowing the facts, shall have filed an affidavit of defence, in which the nature and character of the defence shall be clearly and specifically stated.
    “ Provided, That in suits upon recognisances and instruments on record in any of the courts or offices in the county, a full copy thereof need not be filed, if the praecipe or narr. contain a full reference to the office, book and page where the same may be found.”

      Guthrie Byles, for plaintiffs in error.
    — To obtain the benefit of the rule the plaintiffs must have complied with all the conditions it imposes. The fact that the defendants filed their affidavit of defence does not exonerate the plaintiffs from the positive requirements of the rule.

      Thomas Roddy and Roe Reisinger, for defendants in error.—
    The declaration contained a sufficient statement of the claim against the defendants below to inform them of its character and to meet the requirements of the rule of court, and was considered by the court below a sufficient compliance with the rule, and this court will not interfere unless manifest injury or injustice would be the result. Each court is made the judge of its own rules of practice, and their construction of their rules is accepted as conclusive. It is only where wrong is manifest that their discretion will be interfered with or invaded: Kountz v. Citizens’ Oil Refinery Co., 22 P. F. Smith 396; Gannon v. Fritz, 29 Id. 307.
    January 7th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

This was an action of covenant on a mortgage. Judgment was taken for want of a sufficient affidavit of defence. The first assignment of error presents the question whether any affidavit of defence was required under the rule of court. In all actions founded, inter alia, on instruments of writing for the payment of money, or on mortgages, it declares the plaintiff shall be entitled to judgment by default unless an affidavit of defence be filed, if he shall have filed a copy of the instrument of writing on which the suit is' founded, on or before the return-day of the writ. It further provides, that in suits on instruments on record in any of the courts or offices in the county, a full copy thereof need not be filed' if the praecipe or narr. contain a full reference to the office, book and page where the same may be found.

In this case the action was founded on an instrument of writing. No copy of it was filed. Neither the praecipe nor the narr. contained any reference to any office, book or page where the same could be found. The plaintiffs below had therefore clearly failed to perform an act which was essentially necessary to impose on the defendants the. duty of making an affidavit of defence. It is so manifest that the defendants in error were not in a condition to invoke the aid of the rule, we must infer that this fact was not brought to the attention of the court below. The necessity for an affidavit of defence must have been assumed, and its sufficiency only considered. An omission, however, to then state an objection so clearly shown by the record does not now preclude the plaintiffs in error from urging it as a ground of objection to the judgment. It was the duty of the defendants in error to show they had complied with all the requirements of' the rule necessary to entitle them to a judgment. They should have shown it then; they must show it now, or the judgment cannot he sustained.

It is unnecessary to elaborate this case.. No argument can make the error more clear than a simple statement of the facts. The defendants in error had no right to ask for an affidavit of defence; the other party was under no obligation to file one. As the case goes back for trial, it is not necessary to consider the facts averred in the affidavit, nor to review the other assignments.

Judgment reversed, and a venire facias denovo awarded.


author: Mr. Justice Gordon

text:
    Losee versus McFarland and Wife.
    1. Ejeetment is a possessory action, and the writ, therefore, should he served on the one in possession, rather than on the one claiming title. Service on a' tenant whose lease has expired, hut who still holds possession, is good.
    2. The possession of the tenant is the possession of the landlord, and while the ejectment may have no effect in determining the question of title as between the plaintiff and lessor, it does determine the right of possession.
    November 20th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Qrawford county: Of October and November Term 1877, No. 223.
    The proceedings in the court below were as follows :—
    Ejectment was brought by Jesse A. Losee against John D. McFarland and wife for a house and lot in the city of Titusville. The writ was served on both defendants, who were about to remove from the premises. Under a rule of court plaintiff filed a brief of title, which set forth that the property had been sold to him as the property of McFarland, under a judgment obtained against the latter. An order was made upon defendants to answer within twenty days, which they failed to do, but a sworn statement was filed by Milton Stewart, claiming title to the property by a conveyance prior to the judgment on ivhich it was sold to the plaintiff, and alleging that at the time of the service of the writ in ejectment the defendants were in possession of the property as his .tenants under a lease. Plaintiff moved to strike this statement from the record, which the
    court refused, and ordered defendants to answer to plaintiff’s brief of title, which they did in the terms of the statement made by Stewart. A rule of reference was entered by plaintiff, and an award madé in his favor on which judgment was entered. An habere facias issued, which Stewart on an ex parte affidavit procured an order to stay, said affidavit averring that Stewart’s two sisters, Eva and Lydia, were the owners of the property prior to the entering of plaintiff’s judgment against McFarland, and that at the service of the writ of ejectment McFarland and wife were living on the premises as their tenants. A rule was then granted by the court to show cause why. the writ of habere facias as to said Eva and Lydia Stewart should not be stayed, which the court subsequently made absolute, which action was assigned for error by the plaintiff, who took the writ.

      Roe Reisinger,' Thomas Roddy and W. R. Role, for plaintiff in error.
    — There is no precedent for staying a writ of habere facias where the landlord had notice of the ejectment: Johnson v. Fullerton, 8 Wright 468.

      Roger Sherman and Samuel Minor, for defendants in error.
    January 7th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

Ejectment is a possessory action; hence the writ is served upon the one found in possession, rather than upon the one who may chance to have title.

If the one in possession happens to be a tenant, his landlord may intervene and defend; if he does not choose so to do, and judgment be obtained against the tenant, the landlord cannot then intervene to prevent the plaintiff in the ejectment from taking possession. The possession of the tenant is the possession of the landlord; therefore the ejectment, whilst it may have no effect in determining the question of title as between the plaintiff and the lessor, does determine the right of possession : Johnsons. Fullerton, 8 Wright 466. . '

Now, it is not denied that McFarland was the tenant of Eva and Lydia Stewart; but it is said that, at the time when the writ was served, his lease had expired, and he was about to remove from the premises. To this, however, it is a sufficient answer that the sheriff, when he served the writ, found him still in possession, and of this, in the present controversy, the return is conclusive, and whether McFarland retained the property under the terms of the lease or merely at the sufferance of the Stewarts, nevertheless he was there under them, and hence the judgment in ejectment determined the right of possession against them and in favor of the plaintiff.

Were the rule otherwise it might be impossible to obtain possession, by ejectment, of land held by a tenant, for the landlord, neglecting or refusing to appear and defend, could always, by substituting a new tenant, defeat the plaintiff’s writ of possession.

The order of the Court of Common Pleas staying the writ of habere facias possessionem in this case is now reversed and set aside.


author: Chief Justice Agnew

text:
    Winternitz versus Porter.
    1. Where a married woman lives apart from her husband, and is an actual, and has been decreed, a feme sole trader, she is liable for an indebtedness incurred by herself in the repair and improvement of her separate real estate, and suit may be maintained therefor against her alone, without joining her husband.
    2. Cleaver v. Scheetz, 20 P. F. Smith 496, distinguished.
    November 21st 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Quarter Sessions,of Lawrence county: . Of October and November Term 1877, No. 90.
    Assumpsit by Austin Porter against Mrs. Elizabeth Winternitz for work done , and materials furnished'in the repair of her property. Mrs. Winternitz, a married woman, was engaged in the grocery and provision business in the city of New Castle, Lawrence county. She was living apart from her husband. In 1871 she obtained a decree from the Court of Common Pleas of said county, authorizing her to act as a feme sole trader. In 1873 she employed the plaintiff to paint and glaze two buildings owned by her, and Porter brought this suit to recover a balance alleged to be due for said work. The defendant, in addition to the usual pleas, pleaded her coverture.
    At the trial before McJunkin, P. J., the defendant submitted the following points, to which are appended the answers of the court:—
    1. Although the defendant, at the time of the creation of the alleged liability, was a duly decreed feme sole trader, as provided for by Act of Assembly, unless such liability accrued in the course of the trade or business engaged in by her for a livelihood, it is not within the purview of the act, and the plaintiff cannot recover.
    Ans. “ We refuse to instruct you as requested, but submit it to you to say whether or not the liability contracted in this case accrued in the course of the trade or business engaged in by defendant for a livelihood for herself and family. If the liability did not so accrue, then this suit cannot be maintained. If the liability did so accrue, then it can be maintained!”
    2. Even if the defendant is liable for debts contracted by her for the repair and improvement of her separate real estate, she being covert when sued, this suit cannot be maintained because her husband was not joined with her therein.
    Ans. “ We refuse to instruct you as requested, as we think the question raised by the point does not arise in the cause on trial, nor is it applicable to it.”
    Yerdict and judgment for the plaintiff, and defendant took this writ, assigning the foregoing answers of the court for error.

      B. A. Winternitz and JD. B. L. T. Kurtz, for plaintiff in error.
    — The extent of defendant’s individual liability is governed by the business engaged in by her, as limited by the Act of 1718 (I Sm. Laws 99) to shop-keeping or some other trade. Contracts made by her in respect to her real estate are not such business, and can be enforced only in an action against the husband and wife. If the liability acczmed in the course of her business as a feme sole trader she would be liable in this suit, but having been incurred for the repair and improvement of her separate real estate, she is not liable.
    ' J. M. Martin, for defendant in error.
    — The Act of 1718 is not particular as to the trade or business engaged in, so it is for the support of the feme sole trader and her family, and whether it is for this purpose is a question of fact for the jury under all the evidence of the case, and it was proper for the court to submit it: Burke v. Winkle, 2 S. & R. 180.
    January 7th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

This case does not fall within the principle of Cleaver v. Scheetz, 20 P. F. Smith 496. That was the case of a set-off for maintenance against a married woman, who never had acted or been declared a feme sole trader, and whose husband was residing in the same city and engaged in business. It was simply an attempt to make a married woman’s separate estate liable for her husband’s proper debt, contrary to the provisions of the Act of 1848. Here, however, Mrs. Winternitz was not only living apart, and an actual feme sole trader, but had been duly declared such by the couz-t. She was also the owner of real estate, and the debt was contracted by hez’self for repairs to her real estate. It was a debt for which her own estate was properly liable, and she had conducted herself toward it as one who is a feme sole. Being liable for the debt, and having at law the power to sue and be sued without joining her husband with her, it would be rather a fanciful distinction to hold that her husband must be joined with her in this suit — in other words, to hold that, as to all contracts concerning her grocery business, she could sue or be sued alone ; but that she cannot sue for the rent of her real estate, or be sued for its repairs without joining her husband. The case is cleaidy within the spirit of the Acts of 1718 and 1855 when taken together, and not against the Act of 1848. In the case of Cleaver v. Scheetz, the wife was neither liable for the debt, nor a feme sole trader; in fact or in law. That case does not refer to or in any manner speak of the exceptional liability of a married woman for necessary repairs and improvements to her sepai’ate real estate, which has been held to arise under the spirit of the Act of 1848. It therefore in no sense governs this case.

Judgment affirmed.