text:
    County of Lackawanna versus First National Bank of Scranton.
    1. The Act of March 31st 1870, providing that state and national banks, upon the payment of a tax of one per centum upon all their capital stock at its par value, shall be exempt from all other taxation upon their shares, capital and profits, is not a law exempting property from taxation, within the provision of sect. 2, art. 9, of the Constitution.
    2. The tax which is thereby imposed with the consent of a hank, is a commutation for all other taxes under the laws of the Commonwealth, upon a class of property entirely within the power of the legislature.
    3. The banking house of a hank is a part of the capital of the institution represented by its shares of stock, and a tax upon the par value of the shares was a tax upon it. The uses to which the building is applied, such as renting out a portion of it for other than the hank’s purposes, will not subject that portion of it to taxation for county purposes.
    March 31st 1880.
    Before Sharswóod, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Lackawanna county: Of January Term 1880, No. 240.
    The following case was stated for the opinion of the court in the nature of a special verdict.
    On the 19th day of January 1879, the First National Bank of Scranton, Pennsylvania (which is a banking association under the National Bank Act), paid into the state treasury a tax of one per centum upon the par value of all the shares of said bank,' having elected to collect the same from the shareholders of said bank, as provided in the Act of Assembly of 31st March 1870, paragraph 4.
    Part of its capital and profits is invested in its bank building, situated on Lackawanna avenue, in the city of Scranton, Lackawanna county. The said building is occupied as follows: The main or first floor by the bank as its banking-room ; in the rear of banking-room are two small offices for rent. The second floor is divided into five (5) offices, which are rented by the bank. The third floor is used as a Masonic hall. The basement of the same is occupied by the watchman of the bank and his family, except a small room in the front part of the basement, which is occupied,, under lease from the bank, as a shoe shop. The rents from the said offices and hall amount to eléven hundred dollars ($1100) per annum. The assessed valuation of the bank building is eight thousand ($8000) dollars. The county tax against the bank building for the year 1879 is forty-eight ($48) dollars.
    If the court shall be of opinion that the said building is liable to taxation for county purposes, then judgment for the plaintiff for forty-eight ($48) dollars, with costs; if not, then judgment for defendant, with costs. Either party to be at liberty to take out a writ of error.
    “If the court shall be of opinion that the part of the bank building rented is subject to the county tax, then judgment for the county of Lackawanna for twenty dollars, with costs.”
    The 4th section of the Act of 1870, Purd. Dig. 142, Pamph. L. 97, provides that, “ In case any bank or savings institution as aforesaid (the previous section having stated that ‘ all the shares of national banks located within this state, and of banks and savings institutions incorporated by this state shall be taxable ’) shall elect to collect annually from the shareholders thereof a tax of one per centum upon the par value of all the shares of said bank or savings institution, and pay the same into the state treasury on or before the 20th day of January in every year, the said shares, capital and profits shall be exempt from all other taxation under the laws of this Commonwealth.”
    The court, Handley, P. J., was of opinion “ that the property named is exempt under the law from the payment of any other tax than that already paid,” and entered judgment for the defendant, with costs.
    The plaintiff took this writ and assigned this action for error.

      Lemuel Amerman, for plaintiff in error.
    Section 2, article 9, of the Constitution, provides that “ all laws exempting property from taxation other than the property above enumerated (public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit, and institutions of purely public charity) shall be void.” It is, therefore, contended that if under this section of the Constitution, an exemption of all taxation over and above one per centum could be allowed, upon the same principle a mere nominal tax might be placed upon the property of any class of property holders, and thus virtually exempt them from taxation. But if this act is not repealed by the Constitution, we ask for it a strict construction.
    The power of taxation is an essential attribute of sovereignty, reaching to all property and persons belonging to the body politic. That this power might be exerted upon all alike, and that all might bear their just proportion of the common burdens of government, it has been ordained by the people that “ all taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax:” Const, of Penn., art. 9, sect. 1. If, then, the legislature grant an exemption from taxation, _ nothing should be left to implication, but the extent of the intended release must appear, and be clearly expressed in the legislative act.
    Thus the shares, capital and profits of the defendant are exempt from all taxation upon the payment of one per cent, upon the par value of'all her shares, while her neighbor pays upon the same class of property one per cent, as city tax, one per cent, as school tax, three-fifths of one per cent, as county tax, three-fifths of one per cent, as poor tax, and one per cent, as special tax; making four and one-fifth per cent, upon the assessed valuation of his property for tax. Why are the taxes not uniform upon the same class of subjects within the same territorial limits ? Because one property is owned by a national bank, while the other is owned by an individual. But this bank may hold as its capital and profits only “ such real estate as shall be necessary for its immediate accommodation in the transaction of its business:” Act 3d June 1864; Rev. Stat. U. S., 2 ed., sect. 5137, p. 993. It being exempt, then, from taxation only upon its shares, capital and profits, it is exempt only on such real estate as shall be necessary for its immediate accommodation in the transaction of its business.
    This court has uniformly held that the statutory provision exempting corporate property from taxation embraced only such property as was essential or necessary for the enjoyment of the franchise of the corporation. It must be used directly and exclusively for the corporate purposes: Lehigh Coal and Nav. Co. v. Northampton Co., 8 W. & S. 334; N. Y. & Erie Railroad Co. v. Sabin, 2 Casey 242; Carbon Iron Co. v. Carbon Co., 3 Wright 251; Lackawanna Iron and Coal Co. v. Luzerne County, 6 Id. 424; St. Mary’s College v. Crowel, 10 Kansas 442; Methodist Church v. Ellis, 38 Ind. 3; St. Peter’s Church v. Scott County, 12 Minn. 395; State v. Commissioners of Mansfield, 3 Zab. 510; State v. Hancock, 33 N. J. L. (4 Vroom) 315; Detroit Young Men’s Society v. Mayor, &c., 3 Mich. (Gibbs) 172; Cincinnati College v. State, 19 Ohio 110; Tucker v. Ferguson, 22 Wall. 527; Meeting House v. City of Lowell, 1 Metc. 538.

      I. J. Post, for defendant in error.
    A‘part of the capital and profits of the defendant ‘is invested in its bank building, against which a county tax for the year 1879 is assessed. This building is a part of the capital of the bank, and the defendant has paid for the year 1879 the sum fixed by the legislature as the full tax on all its capital and profits for that year. The legislature has decided what amount is equivalent to all the taxes that could be assessed under other laws, and that amount has been paid. This act is a contract between the state holding thé taxing power and the defendant, and all banks of the state can accept and become subject to the provisions of the contract; it is not special or exclusive. The act is express in its terms. Nothing is left to implication or to forced construction, and its intent, clearly expressed, is that the capital and profits of the defendant shall be liable to no further taxation. When the act was passed there was no provision of the Constitution of this state that can be claimed to qualify it, and the new Constitution does not affect it. But, even if the restrictions in the new Constitution applied to the act, yet similar legislation has been sustained in states where, in their Constitutions, like provisions as to uniformity of taxation and exemption exist. This is not properly a case of exemption from taxation. Here a sum has been fixed by the legislature as an equivalent for all taxes.
    May 3d 1880,
    Where -the legislature .has exercised the power by taxing all the property of a corporation in a specified manner, and has intimated no design to subject it to further burdens, its property will be exempt from taxes imposed by general laws: New York & Erie Railroad Co. v. Sabin, 2 Casey 242; Wayne County v. Del. & Hud. Canal Co., 3 Harris 351; Osborn v. New York & New Haven Railroad Co., 40 Conn. 497; State v. Berry, 2 Halst. 80; Camden & Amboy Railroad Co. v. Commissioners, 3 Harris 71; Douglass v. State, 34 Id. 485; Gordon v. Mayor of Baltimore, 5 Gill. 231; Farmers’ Bank v. Commonwealth, 6 Bush 127; Commissioners v. Citizens’ Nat. Bank, 23 Minn. 280.
    The power of the legislature to commute taxes is not restrained by the provisions (in the state Constitution) of equality hr uniformity. It is a practice very general in most of the states to require corporations, such as banks, &e., to pay annually into the treasury a certain amount, and to exempt them from the payment of all other state taxes, and sometimes from the payment of all other taxes: Burroughs on Taxation, p. 66; Cooley on Taxation, pp. 137, 172; Kneeland v. Milwaukee, 15 Wis. 454. The capital of a bank embraces all its property, real and personal: New Haven v. City Bank, 31 Conn. 106.
   The judgment of the Supreme Court was entered

Per Curiam.

The fourth section of the act entitled “ An Act providing for the taxation of bank shares,” passed March 31st 1870, Pamph. L. 42, was not a law exempting property from taxation within the provision of art. 9, sect. 2 of the Constitution. The tax which was thereby imposed with the consent of the bank was a commutation for all other taxes under the laws of the Commonwealth upon a class of property entirely within the power of the legislature. It was in no sense a merely nominal tax, and we need not consider what would be the effect of such a tax amounting to an entire exemption. The banking house was a part of the capital of the institution represented by its shares of stock, and a tax on the par value of the shares was a tax upon it. We do not see that the use to which the building was applied in this case should subject any portion of it to taxation for county purposes.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Kellam versus Kellam.
    1. An execution had issued against K., and his personal property was about to be sold at sheriff’s sale. Being about to leave home, K. and his brother, W., entered into an agreement that the latter should bid off the property and return it to K., on being paid the amount he should bid for it, and for his trouble. W. bid off most of the property sold, but afterwards, for his own use and benefit, sold and disposed of the same, denied the agreement and refused to account. K. brought an action of assumpsit to recover damages to the extent of the value of the property bid in by W. The declaration contained the common counts and also a special count “ for the value and price of property which the defendant bid in at sheriffs sale as the property of plaintiff, for the use and benefit of plaintiff', the same under an arrangement and agreement with plaintiff, being held for the plaintiff, but which the defendant sold and appropriated to his own use, contrary to the understanding and agreement between the parties Held, that although the count was inartifieially drawn as it was not demurred to, nor any objection made to the admission of evidence thereunder, if the evidence showed a sufficient consideration to support the agreement of W., the omission to state it specifically in the declaration was not fatal to the right of K. to recover.
    2. W. having disposed of part of the property for which he rendered no account, he was presumed to have received a sum of money equal to its value, and an action for money had and received would lie therefor.
    3. The defendant requested the court to charge that there could not be a recovery on the special count, unless the property was bid in by W., under an. express agreement to do so, and if he did so agree, yet if K. furnished no money for that purpose, and W. bought with his own money, the agreement was nudum pactum and void, and that the count could not be sustained or helped, by evidence that W. dissuaded persons from bidding at the sheriff’s sale. The court substantially so charged, with the qualification unless the jury also found that W. made use of artifice in dissuading persons present from bidding at the sale, on the ground of his agreement, and purchased the property much below its value, and then refused to return the property to K. when so requested. Held, that this was not error.
    March 31st 1879.
    Before Sharswood, C. J., Meecur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Wayne county: Of July Term 1878, No. 21.
    Assumpsit by Peter Kellam against William T. Kellam, to recover damages to the extent of the value of certain personal property, upon an alleged agreement by the defendant to bid it in at a, sheriff’s sale for the plaintiff.
    Th.e declaration contained the common counts, with a special count for non-performance of contract. Defendant pleaded non assumpsit, payment, &c.

      The other material facts will be found in the opinion of this court.
    At the trial, before Waller, P. J., the defendant submitted, inter alia, the following points, to which are appended the answers of the court:
    1. That the plaintiff cannot recover on the common counts in assumpsit in this ease,, unless the jury are satisfied that at the time of bringing this suit defendant had converted into money property which, at the time of such conversion, belonged to the plaintiff, and then the measure of damages would be the amount received by the defendant for the property so converted less the amount of his (defendant’s) interest therein, if any, and the burden is on the plaintiff to prove the sale of such property and what it brought.
    Ans. “ We cannot affirm this point in the broad terms advanced in it. The defendant might have sold the property for much less than it was really worth, with a view to reduce his liability to plaintiff. Nor is it really necessary that it should be converted into money. Defendant might exchange or give away the property and avoid responsibility.”
    2. Plaintiff cannot recover on his special count except on the ground set forth in said count, viz:: That the property was bid in by the defendant for the plaintiff under an express agreement so to do. This count cannot be sustained or helped by evidence that defendant dissuaded persons from bidding at the sheriff’s sale.
    Ans. “ The first part of this point is affirmed as to recovery on an express agreement, but we think the second clause of the point cannot be affirmed. We have already instructed you that the plaintiff may recover if you find from the evidence an agreement on the part of defendant to bid in the property for plaintiff and that he then made use of artifice in dissuading parties present from bidding at the sale, on that ground, and then refused, after purchasing the property much below its value, to return the property to plaintiff when so requested.”
    3. If defendant did agree with plaintiff to buy the property for him, and plaintiff furnished no money for that purpose, but defendant bought the property with his own money, the agreement was nudum pactum and void.
    Ans. “ We affirm this point unless defendant made use of his agreement to dissuade persons to bid and so bought the property below its value. We think such an arrangement would constitute defendant trustee mala fide of plaintiff and defeat the point.”
    Verdict for plaintiff for $949.75, and after judgment thereon defendant took this writ, and, inter alia, assigned for error the answers to the foregoing points.

      H. M. Seely, for plaintiff in error.
    Under the most liberal construction which the courts have given to these common counts no recovery could be had on the count for goods sold and delivered. Such a claim would only ratify the sale by the sheriff for the price bid. But it may be argued, that the count for money had and received to the use of the' plaintiff would sustain a verdict. Passing over the fact that there is no such count properly stated in the declaration, the courts have held uniformly that this count relates to money and not goods, to price and not value: Lee v. Gibbons, 14 S. & R. 105, 112; Rush v. Good, Id. 226; Bethlehem Borough v. Perseverance Fire Co., 31 P. F. Smith 445. The court seem to have misapprehended the purpose of the defendant’s first point, and to have construed it as a denial of plaintiff’s right of action, whereas it was a denial simply of a right to recover under the common counts in assumpsit.
    In answer to the second point, while the court instructed the jury that plaintiff could only recover on an express agreement, still they refused to say that the count on an express agreement cannot be sustained or helped by evidence that defendant dissuaded persons from bidding at the sheriff’s sale.
    In answering the third point the court were correct: Dollar Savings Bank v. Bennett, 26 P. F. Smith 402; Carhart’s Appeal, 28 Id. 100; Barnet v. Dougherty, 8 Casey 371.
    But it was undisputed in this case, that plaintiff never paid or offered to pay defendant anything for the purposes of this sale, either before or after it occurred. Plaintiff and defendant both swear to this, so that under the ruling the agreement was void, if ever made, with this qualification, that if the “ defendant made use of his agreement to dissuade persons to bid, and so bought the property below its value,” the point would be defeated.
    Repeating the suggestion before made, that there is neither allegation nor evidence in the case that defendant made use of any such argument to dissuade persons from bidding, how could the conduct on the part of the defendant suggested by the court supply a want of consideration and give vitality to a lifeless agreement ? Defendant had no notice that he was to be charged as trustee ex maleficio. He was not prepared to meet such a charge.

      Gr. Gr. Waller and W. S. Dimmich, for defendant in error.—
    When a person tortiously in possession of the goods of another, converts them into money, or securities equivalent to money, assumpsit for money had and received may be maintained against him for the amount so received. But it is to be remarked that the count for money had and received has always.been looked upon as governed by equitable principles, and it lies only where the defendant ought, ex aequo et bono, to refund the money which he has received: Deysher v. Triebel, 14 P. F. Smith 383. This decision is quoted with approval in Bethlehem Borough v. Perseverance Fire Co., 31 P. F. Smith 432. Where one takes the personal property of another, the owner may waive the tort ana maintain assumpsit for its value: McCullough v. McCullough, 2 Harris 295; Gray v. Griffiths, 10 Watts 433.
    May 12th 1879.
    Where one about to bid upon property at a sheriff’s sale falsely represents that he is buying for the defendant in the execution, and by such false representations prevents competition, and becomes the purchaser at an under price, the sale is void for actual fraud, and may be set aside by the former owner or a subsequent purchaser, without first paying or offering to pay the price bid for the property at such fraudulent sale: Sharp v. Long, 4 Casey 439; Dick v. Cooper, 12 Harris 221; Abbey v. Dewey, 1 Casey 416.
   Mr. Justice Mercur

delivered the opinion of the court,

This was an action of assumpsit. The facts alleged by the defendant in error, and found by the jury, are substantially these. • An execution had issued against him, and his personal property was liable to be sold at sheriff’s sale. Being about to leave home •he and the plaintiff in error entered into an agreement that the latter should bid off the property, and return it to Peter on being paid the amount he should bid for it, and for his trouble. In pursuance of this agreement William did bid off most of the property sold: but afterwards, for his own use and benefit, sold, disposed of and consumed the same; denied the agreement and refused to account for the proceeds thereof.

The evidence of the alleged agreement was amply sufficient to submit to the jury. Peter swore to it in express and positive terms. His testimony was corroborated by evidence of the declarations of William before the sale, and at the time thereof. Thus Simpson testified that on the day first appointed for the sale, he started to attend it, with a view of buying some of the property. On the way he met William who told him the sale was postponed. Witness stated to him his purpose in going to the sale. William replied he was going to bid off the property for Peter, and did not think it would be of any use for witness to go. In consequence of this he did not attend'the adjourned sale. Legg testified that he went to the sale for the purpose of buying a span of horses. When he and Miller reached there some one stated that an arrangement had been made by which William Kellam was to bid in the property for his brother Peter. “ Miller asked William if it was the case that he was going to bid it in for Peter. He said it was.” Braman testified that he went to the sale to buy a cow; but William told him not to bid on the cows, that he was bidding them in for Peter; and this stopped his bidding on them. William’s intention to keep whatever he should bid off and return it to Peter when he came home, is further shown by the testimony of A. C. Kellam. It is true, much of this evidence was contradicted by William and his witnesses; but, nevertheless, it was for the jury to pass upon. The fact is, William did bid off most of the property, and at less than its value.

The declaration contained all the common counts, and also a special count “ for the value and price of property which the defendant bid in at sheriff’s sale as the property of the plaintiff, for the use and benefit of the plaintiff, the same, under an arrangement and agreement with plaintiff, being held for the plaintiff; but which the defendant sold and appropriated to his own use contrary to the understanding and agreement between the parties.” It may be conceded that this count is not drawn according to the most approved form of pleading, yet it was not demurred to, nor was any objection made to the admission of any of the evidence. If then the evidence showed a sufficient consideration to support the agreement of William, the omission to state it specifically in the declaration, was not fatal to the right of Peter to recover.

Before this suit was commenced William had disposed of or consumed substantially all of the property which he had purchased. So far as we are able to discover, one set of sleighs is all that remained. He had undoubtedly sold and converted property of much greater value than the amount which he had bid, and a just compensation for his trouble. He had thus put it out of his power to restore the identical property. This suit was not to enforce specific performance of the contract; but to recover damages for a breach thereof, and for money had and received. It was not necessary to prove the precise sum of money that William had received to sustain the action, or. to fix the measure of damages. Having disposed of much of the property for which he rendered no account, he is presumed to have received a sum of money equal to its value, and money had and received will lie therefor: Gray v. Griffith, 10 Watts 431; Bethlehem Borough v. Perseverance Fire Co., 31 P. F. Smith 445.

In the second and third points submitted by the plaintiff in error, the court was requested to charge there could not be a recovery on the special count unless the property was bid in by him under an express agreement to do so, and if he did so agree, yet, if Peter furnished no money for that purpose, and he, William, bought with his own money, the agreement was nudum factum and void; and that the count could not be sustained or helped by evidence that he dissuaded persons from bidding at the sheriff’s sale. The court substantially affirmed these points, unless the jury also found that he made use of artifice in dissuading persons present from bidding at the sale on the ground of his agreement, purchased the property much below its value, and then refused to return the property to Peter when so requested. Thus the defendant in error was denied the right to recover on the contract alone; but was required to establish the artifice and mala fide of William in making the purchase. The verdict of the jury has established both the contract and the bad faith. It is contended by counsel for plaintiff in error, that inasmuch as there is no averment in the declaration of any fact which would make him a trustee ex maleficio, and Peter advanced no money, the agreement M as of no binding force. In support of this view, reference is made to Barnet v. Dougherty, 8 Casey 371; Dollar Savings Bank v. Bennett, 26 P. F. Smith 402; Carhart’s Appeal, 28 Id. 100. In all these cases the question was as to the evidence necessary, under the Statute of Erauds,.to establish a resulting trust in lands. It was held that such a trust could be raised only from fraud in obtaining the title or from payment of the purchase-money when the title was acquired.

Inasmuch as the Statute of Erauds applies only to an interest in lands, and a promise to pay the debt of another, the decisions thereon do not apply to the present case. This being a contract about personal property only, its vitality is not destroyed by the fact that Peter did not furnish any money with which to buy the property at sheriff’s sale. It follows that the answer of the court was more favorable to the plaintiff' in error than he was entitled to receive. Instead of permitting Peter to recover on the contract upon satisfactory proof of a consideration to support it, he nras required to also establish subsequent acts of had faith of "William sufficient to make him a trustee ex maleficio. The evidence of his acts and declarations at the sale tended to establish an agreement to bid in the property for Peter’s benefit. As he thus acquired it at much less than its value and afterwards denied the agreement, it was evidence of his bad faith in the purchase. The publicity, given at the sale, of William’s purpose to bid in the property for his brother, very reasonably and naturally operated to dissuade others from bidding on any article that he manifested a desire to purchase, and the court was justified in leaving to the jury so to find. The defendant in error was not permitted to recover damages for William’s omission to bid off any property, but for that only which he did buy. The fourth assignment relates to an action in which a third person was a party, and the offer fails to show the grounds on which it was decided, hence there was no error in the answer of the court relating thereto. We discover nothing in the record of which the plaintiff in error has a right to complain. ‘

Judgment "affirmed.


author: Mr. Justice Paxson

text:
    Williamson’s Appeal.
    1. The widow and administratrix of R. borrowed $600 of W. for the purpose of paying off a widow’s dower upon the estate of the decedent. She obtained it upon an express promise to sell out the real estate of R., and repay W. out of the proceeds, giving her own note as collateral. The money was applied by the administratrix to the object for which it was obtained, and the real estate bound by the dower was sold and the proceeds brought into the Orphans’ Court for distribution. W. claimed to be paid out of the fund, which claim the heirs resisted on the ground that the administratrix had no authority in law to borrow the money, and that the estate of R. was not liable therefor, and that W. could only look to the personal responsibility of the administratrix o'n her note. Held, that W. was entitled to the rights and remedies of the administratrix, and it was error to reject his claim.
    2. Where the jurisdiction of the Orphans' Court has attached over a fund it comprehends within its grasp all powers necessary to make a distribution.
    March 31st 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Orphans’ Court of Northampton comity: Of January Term 1880, No. 83.
    Appeal of Henry Williamson from the decree of the court dismissing the exceptions filed by the said Williamson to the report of P. C. Evans, Esq., auditor upon the account of Jacob H. Beck, administrator de bonis non, &c., of Stephen Remaly, deceased.
    From the testimony taken by the auditor he reported the following facts:
    “ That Stephen Remaly died prior to April 1st 1873; that at the time of his death there was a dower charged on his estate of more than $700 in favor of Mary Knecht; that about April 1st 1873, Mary Knecht died, and the dower became due; that Sarah Remaly had taken, out letters of administration on the estate of her deceased husband, and, being desirous of remaining in possession of the estate and thereby to keep her family together, undertook the paying off of the dower; that to do this she borrowed $600 of Henry Williamson, and gave therefor her individual judgment-note. Williamson appeared before the auditor, and asked to have distributed to him tire amount borrowed by Mrs. Remaly for the payment of the dower.”
    The auditor found that the money borrowed by Mrs. Remaly from Williamson went towards paying off the Knecht dower ; that when Mrs. Remaly borrowed the money she promised to repay it when she should sell the decedent’s real estate; that the administrator de bonis non included Williamson’s claim in his schedule of debts of the decedent when he petitioned the Orphans’ Court for an order of sale, but reported that Williamson had no standing as a claimant in the distribution of the fund derived from the sale of Stephen Remaly’s real estate under an order of the Orphans’ Court.

      Exceptions were filed to this report, which the court, Meyers, P. J., dismissed, in an opinion, inter alia, saying:
    “ The exceptions practically raise but two questions — 1. Is Henry Williamson a creditor of the estate of Stephen Remaly, deceased? 2. Is Henry Williamson entitled to be subrogated to the rights of Sarah Remaly, adminstratrix, by reason of her payment of the Knecht dower ?
    “ 1. It is not pretended that there was any contract relation between Williamson and the decedent in his lifetime. The loan was made after the death of the decedent to his administratrix on her personal obligation. It no doubt is true that the greater part, and probably the entire $600, was applied by the administratrix to the payment of a debt for which the estate was liable, and that Sarah Remaly, in her capacity as administratrix, induced Williamson to loan her the money upon the promise that it would be repaid out of the decedent’s real estate when sold. But these circumstances do not make the estate liable, even though the judgment-note had been executed by her as administratrix.
    “A declaration alleging that the defendant, as executor, was indebted to the plaintiff for so much money lent by the plaintiff to the defendant, as executor, and for money had and received by the defendant as executor, for the use of the plaintiff, and that in consideration thereof the defendant, as executor, promised to pay, charged him personally, and the only possible judgment is de bonis propriis: Rose v. Bowler, 1 H. Black. 108; Powell v. Graham, 7 Taunt. 223; Ashby v. Ashby, 7 B. & C. 444. And in this state it has been held that in all cases of promise, express or implied, made by an executor or administrator after the death of the testator or intestate, an action lies only against him personally: Grier v. Huston, 8 S. & R. 402; Beeson v. McNabb, 2 Barr 4221 Solliday v. Bissey, 2 Jones 347; Seip v. Drach, 2 Harris 352; Bogle v. Kreitzer, 10 Wright 465. In Seip v. Drach, supra, it was held that nothing is better settled than that an executor or administrator is answerable in his official character for no cause of action that was not created by the act of the decedent himself. In actions against the personal representative on his own contracts or engagements, though made for the benefit of the estate, the judgment is de bonis propriis, and he is, by every principle of legal analogy, to answer it with his personal property.
    “ The doctrine sanctioned in Collins v. Weiser, 12 S. & R. 97, is not applicable. There the declaration set forth an implied promise by an administratrix, as such, for money paid, laid out and expended by the plaintiff for her use as administratrix in consequence of the payment after, the death of the intestate of a debt for which he and the plaintiff were jointly liable in his lifetime, which was held good, and that a judgment de bonis testatoris founded upon it may be supported. In support of it, Gibson, J., says, ‘that an implied promise arises out of and follows the nature of the consideration, which in this case was the actual payment of money to the use of the administratrix, as such; and there is therefore no great technical absurdity in implying a promise by her in the character in relation to which the money was paid to her use. * * * While the debt did not arise until after his (the intestate’s) death, the liability which produced the payment, which is the consideration of the promise, existed in his lifetime.’ It is quite manifest that this case is an exception to the general rule, growing out of the fact that the plaintiff and the intestate were in the lifetime of the latter jointly liable for the debts paid by the plaintiff.

      u The farthest that the courts have gone in this state is that where a settlement of an account against an estate is made by executors, an obligation by them, under their hands and seals, to pay the balance out of the assets of the estate creates no personal responsibility on their part beyond the assets which came to their hands : Allen v. Griffin, 8 Wright 397. So, also, where a warrant of attorney to confess a judgment is given directly to a creditor of the estate by an administrator, who signed it as such, it does not impose any personal liability upon him: Dickey v. Trainer, 7 Wright 509.
    “ The only authority that an administrator has to encumber real estate of a decedent for the payment of debts is by the Act of March 29th 1882, and that only extends to mortgaging the same under an order of the Orphans’ Court. It was therefore held, in Barger v. Cassidy, 4 Phila. 324, by Judge Sharswood, of the District Court, that an order authorizing an administratrix to borrow money upon real estate was an authority to mortgage the estate and not to confess a general judgment. The administratrix borrowed the money on a judgment confessed by her as such, and in a collateral proceeding it was held that it did not bind the real estate of the decedent.
    “ The fact that in this case the claim of Williamson was included in the schedule of debts of decedent in the petition of the administrator de bonis non, &c., for an order of sale of the real estate, does not make the estate liable to Williamson when there was in fact no legal liability. Nor does the further fact that the parties to the judgment-note intended it to be only a collateral security to the parol promise made by the administratrix, as such, that the money loaned to her should be paid out of the estate have the effect of making the estate liable. It was not a promise to a creditor of the estate, but to a third party, the consideration. of which had its inception after the death of the intestate. For these reasons, he must look to Sarah Remaly for payment, who is the only person liable on her judgment-note.
    “2. It is unquestionably the law that when an executor, administrator or assignee for the benefit of creditors advances money to pay a lien on the trust estate he is subrogated to the rights of the creditor whose claim he has paid: McCurdy’s Appeal, 5 W. & S. 397; Wallace’s Appeal, 5 Barr 103; Robb’s Appeal, 5 Wright 46.
    “ This right of subrogation cannot, however, extend beyond the trustee who has paid the money. A third person who advances the money to the trustee to pay the same has no such equity. Even a payment by a third person' to the creditor would give the former no rights either legal or equitable against the estate of the debtor, on the ground that he is a mere volunteer, unless he took an assignment of the debt. Whatever may be the rights of Sarah Remaly as administratrix to be subrogated to the rights of the heirs of Leonard Knecht,. deceased, she makes no claim in that respect, and I know of no rule in equity that entitles her debtor, Williamson, to do so.
    “ We think the auditor was right in rejecting the claim on both grounds. Exceptions dismissed and report of the auditor confirmed absolutely.”
    From this decree this appeal was taken.

      George W. Geiser and Richard Brodhead, for appellant.
    The proceeding is in equity for distribution, and the Orphans’ Court has ample powers to enforce equitable rights. The only question is, whether the heirs shall take appellant’s money which increased the fund for distribution. The transaction is the same as though the appellant had purchased the Knecht recognisance, and at the same time taken an assignment, which would have given him a clear legal right fro tanto: Lithcap v. Wilt, 4 Phil. R. 64; McCormick, Adm’r, v. Irwin, 11 Casey 111, and Cottrell’s Appeal, 11 Harris 294, rule directly that payment by a stranger does not extinguish the debt. The evidence establishes in law an actual purchase, and secondly, we have the right of subrogation to the Knecht recognisance, and thirdly, to the right of Sarah Remaly whether she claims for herself or not, and she is estopped to refuse to claim.
    Jurisdiction having attached over the fund, equity comprehends within its grasp all incidental matters necessary to enable it to make a full and final distribution and therefore terminate litigation while it affords a perfect remedy. The doctrine is precisely the same in regard to distribution among creditors and others in the Orphans’ Court: Souder’s Appeal, 7 P. F. Smith 502; Bull’s Appeal, 12 Harris 288; Kittera’s Estate, 5 Id. 416; Dundas’s Appeal, 23 P. F. Smith 474. The court admit that Sarah Remaly is unquestionably entitled to subrogation, but that unless she makes her claim Williamson can not do it because he is a mere volunteer. We deny that this is the law : Webster’s & Goldsmith’s Appeal, 5 Norris 409; Cottrell’s Appeal, 11 Harris 294. Subrogation can be decreed in favor of any one, whether a mere volunteer or not, so long as there are no subsequent rights affected: Hosier's Appeal, 6 P. F. Smith 81; Baily v. Brownfield, 8 Harris 41; McKerrahan v. Crawford’s Exr’s, 9 P. F. Smith 390; Kelchner v. Forney, 5 Casey 47; Wilkins’s Estate, 9 Watts 132. An administrator who pays debts with his own money is entitled to subrogation:- Wallace’s Appeal, 5 Barr 103; Robb’s Appeal, 5 Wright 49. But at all events Sarah Remaly stands in the relation of a surety to Williamson for the amount advanced, first, because the law implies this as the estate got all the benefit of the money, and second, this was her express agreement: Rice’s Appeal, 29 P. F. Smith 206; Kramer & Rahm’s Appeal, 1 Wright 71.
    May 3d 1880.

      Calvin Cf. Beitel, for appellee.
    In a suit to recover back this money the judgment would be de bonis propriis, not de bonis testatoris. This was so decided in Greer v. Huston, 8 S. & R. 402; Beeson v. McNabb, 2 Barr 422; Bogle v. Kreitzer, 10 Wright 465; Seip v. Drach, 2 Harris 352. An administrator cannot - bind his decedent’s real estate for any contracts made by himself, except in the way provided by the Act of Assembly of March 29th 1832: Barger v. Cassidy, 4 Phila. R. 324; Blank’s Appeal, 3 Grant 292. The doctrine that the Orphans’ Court is a court of equity means that in the exercise of its limited jurisdiction, conferred entirely by statute, it applies the rules and principles of equity. - It is a special tribunal for special cases: Willard’s Appeal, 15 P. F. Smith 265. We rely upon the opinion of the auditor and the court below.
   Mr. Justice Paxson

delivered the opinion of the court,

Sarah Remaly, widow and administratrix of Stephen Remaly, deceased, borrowed six hundred dollars of the appellant for the , purpose of' paying off a widow’s dower upon the estate of the decedent. She obtained it upon an express promise to sell the real estate and repay the appellant out of the proceeds, giving her own note as collateral. That the money was applied by the administratrix to the object for which it was obtained is not denied. The auditor finds “that the money borrowed by Mrs. Remaly from Williamson went towards paying off the Knecht dower; that when Mrs. Remaly borrowed the money she promised to pay it when she could sell the decedent’s real estate ; that the administrator de bonis non included Williamson’s claim in his schedule of debts of the decedent when he petitioned your honorable court for an orderof sale.”

The real estate bound by the dower, and to relieve which the money of the appellant was advanced, has been sold, and the proceeds brought into court for distribution. The appellant claims to be paid his $600 out of said fund. This claim is resisted by the heirs upon the ground that the administratrix had no authority in law to borrow money in this manner; that the estate of Stephen R.emaly is not liable therefor, and that the appellant can only look to the personal responsibility of the administratrix upon her' note. We may concede the soundness of this as a general proposition, and if the appellant were in a court of law seeking to enforce a general liability against the estate, he Avould be likely to encounter serious difficulty. A judgment recovered upon the note would be de bonis propriis, and not de bonis testatoris, for the reason that it was her contract, and not the contract of the decedent; Grier v. Huston, 8 S. & R. 402; Seip v. Drach, 2 Harris 352. But this is a proceeding in the Orphans’ Court, which for many purposes is clothed with equity powers. When the jurisdiction of the Orphans’ Court has attached over a fun-d, it comprehends within its grasp all powers necessary to make distribution. In Dundas’s Appeal, 23 P. F. Smith 474, the Orphans’ Court denied its jurisdiction on the ground that it was necessary for the parties to go into a court of equity to obtain a decree to have a. deed cancelled. This ruling was reversed upon appeal to this court. See Bull’s Appeal, 12 Harris 286, and Kittera’s Estate, 5 Id. 416.

In the case in hand, the heirs who have had their estate increased by the amount of the sum loaned by the appellant, deny the right of the administratrix to bind the estate, and yet seek to retain the proceeds. This is not equity, but iniquity. If the administratrix bad advanced her own money to pay the dower, she would clearly have been entitled to subrogation : Wilkins’s Estate, 9 Watts 132; Ketchner v. Forney, 5 Casey 47; McKerrahan v. Crawford’s Ex’rs, 9 P. F. Smith 390. The administratrix did not claim subrogation for the benefit of the appellant, as she might have done, and as good faith to him would seem to require, and being personally irresponsible, it is clear that unless the appellant’s claim can be sustained he must lose his $600, and that just that amount will go into the pockets of the appellees. Is the appellant entitled to subrogation? It was said in Mosier’s Appeal, 6 P. F. Smith 76, that privity of contract is not necessary in subrogation; it rests on principles of mere equity and benevolence. The principles of subrogation do not, however, apply in favor of volunteers. They can only obtain the right to substitution by contract. In this case the appellant was a volunteer. He had no interests to protect in paying this money. Is he entitled to substitution by contract ? It requires no strain to hold that the transaction between the appellant and the administratrix was a purchase of the dower claim. It is true, it was not so in form, but it was so in substance. It is not pretended that the administratrix intended .to extinguish the claim when she paid off the dower. Neither the claim of the Knecht heirs nor the bond has ever been marked satisfied. Neither the administratrix nor the administrator de bonis non has ever claimed a credit for tbe payment of the dower. In the orders of sale applied for by them respectively this dower is returned in the schedule of debts as amounting, with interest, to $619.22. The administratrix expressly agreed with the appellant to sell the land and repay him out of the proceeds. This was an informal assignment of the claim t-o him. But it was without authority, say the heirs. This is true, and if they had not received the proceeds of the loan, would have been a sufficient answer. But in Jones v. The Building Association, ants, p. 215, we held, as this court has often held before, that where a person, assuming to act as agent for another, acts without authority, or exceeds his authority, the party benefited cannot repudiate the agency or the authority, and yet retain the fruits of his act. Here the administratrix, without authority, borrowed money for the benefit of the estate. The money went into the estate, and before the heirs can repudiate her act they must return the money.

Again, the appellant loaned his money upon the credit of the estate. Mrs. Remaly says she had no property of her own. The appellant refused to loan the money to her as she could not give security. Then it was she said she wanted it for the estate. He so loaned it and took her individual note as collateral security. The effect of this was to make her a surety for the estate to the amount of the loan; at least, if not so technically, she stood in the position of a surety. It is a familiar rule that where a surety, or a person standing in the situation of a surety for the payment of a debt, receives a security for his indemnity and to discharge such indebtedness, the principal creditor is in equity entitled to the full benefit of that security, and it makes no difference that such principal creditor did not act upon the credit of such security in the first instance, or even know of its existence: Kramer’s Appeal, 1 Wright 71; Rice’s Appeal, 29 P. F. Smith 168. It is to be observed that there are no intervening rights here which interfere with our doing justice between the parties.

We are of opinion, that the appellant was entitled to the rights and remedies of the administratrix, who had actually advanced the money to pay off the dower, and it was error to reject his claim.

The decree is reversed at the costs of the appellees, and it is ordered, that the claim of the appellant be paid out of the fund in the hands of the administrator de bonis non.


author: Mr. Justice Trunkey

text:
    Pike County versus Rowland.
    1. Whei’e a board, such as the commissioners of a county, propose to do any deliberative act that will be binding on the absent members, it should be done at a regular stated meeting or a regular adjourned meeting, and if the meeting be special notice is necessary, and it must be personally served, if practicable, upon every member entitled to be present. This rule applies alike to public and private corporations.
    2. H., an administrator, signed a writing giving the assent of the stockholders of a bridge company to the sale of the bridge. Held, that as administrator he had the right to control or sell the stock, and his signing the assent was sufficient, as to third persons, whether he then held the stock as administrator or it had vested in him as owner.
    3. The true meaning of sect. 8, art. 9, of the Constitution is that no municipality shall create a new debt or increase an existing debt, of more than two per cent, of the assessed property valuation, unless authorized by a public vote. When the debt is less than seven per cent., it is not intended that public officers of municipalities should be deprived of power to make improvements and repairs.of public property'which may become necessary, provided they keep within the limit .of two -per cent, of the valuation.
    April 1st and 2d 1880.
    Before Mercur, Gordon, Paxson, Trunicey and Sterrett, JJ. Sharswood, O. J., and Green, J., absent.
    Error to tbe Court of Common Pleas of Monroe county: Of January Term 1880, No. 66.
    Covenant by Lafayette Rowland against Pike county to recover interest on several bonds issued by said county.
    The defendant pleaded non est factum; non infregit conventionem, and want of consideration, with leave, &c., and also filed the following special pleas:
    1. That on the 5th day of November 1875, when it is alleged the covenants set forth in the declaration were made, no meeting of the commissioners of the county of Pike was held at which said covenants could be lawfully made.
    2. That on said 5th day of November 1875, while one of said commissioners was by reason of intoxication entirely incapacitated for transacting business, he was induced with another of the commissioners to enter the commissioners’ office in the evening and cause the record of the adjournment of the board of commissioners to be falsely and fraudulently altered, and then and there, unlawfully and fraudulently if ever, said covenants were made by said two commissioners.
    3. That all the above stated matters were well known to the plaintiff, and that the intoxication of said commissioner and alteration of the minutes were procured by the plaintiff for the purpose of unlawfully and fraudulently obtaining said covenants.
    4. That on said 5th day of November 1875, the indebtedness of Pike county exceeded two per cent, of the last assessed valuation of taxable property in said county; and the assent of the electors of said county had not been obtained to the increase of said indebtedness.
    The special plea was subsequently amended to aver that two of the commissioners met during the day of the 5th of November 1815, and adjourned to the 9th of November, and that the meeting on the evening of the 5th of November, when it is alleged said bonds were issued, was not in pursuance of any adjournment, and without notice to Geyer, one of the commissioners.
    A change of venue was made to the county of Monroe.
    At the trial it appeared that by the Act of April 5th 1862, Pamph. L. of 1863, 652, George H. Rowland and others were incorporated under the name of the Lackawaxen Bridge Company •for the purpose of constructing a bridge across the Lackawaxen river in Pike county. The bridge was completed in 1863. In the winter of 1864, an act was passed authorizing the bridge company to sell the bridge to Pike county, and the county commissioners to purchase it and issue county bonds therefor. The act, provided, however, that before said sale could be made, the assent in writing of a majority in number of the stockholders should be given. From the testimony on behalf of plaintiff it appeared that a majority of the stockholders signed the assent to the sale, and that the approval of the court was then obtained. Rowland then had some bonds printed, and went to the commissioners to have them executed, but then ascertained that two of the commissioners, Drake and Geyer, were opposed to the purchase. Shortly thereafter, at the general election, on the 5th of November, new commissioners opposed to the purchase of the bridge were elected. It appeared that on the day of the election, Drake, who wms defeated at the election for re-election, met Rowland and told him that he had a notion to go in for buying the bridge. On the 4th of November Geyer, Drake and Rosecrans, the then old commissioners, were in regular session, and during its session Geyer asked when the next meeting would be held, and was told on the 9th, but that they would adjourn over to the 5th to finish business. Geyer then left before the close of the meeting. Rosecrans and Drake met on the 5th and Rowland went before them, and the two commissioners determined to purchase the bridge. The meeting adjourned until the evening to enable the counsel of the commissioners to prepare the necessary papers, when, the bonds were executed and issued. On the part of the defendant it was shown that A. Hanners, one of the assenting stockholders, claimed to be a stockholder by reason of the following facts: His father had recently died owning some of the stock. He took out letters of administration on his father’s estate, filed an inventory and appraisement of the personal property, including this stock, and in the evening of the same day agreed with his mother and three sisters (two of whom were minors without guardians) to take all the personal property at its appraised value. The stock was never transferred to him on the books of the company, and at the time of signing this assent, and of the subsequent action of the commissioners based upon it, he had filed no account as administrator nor in any public manner charged himself with the stock. He did not sign the assent as administrator but as an individual claiming personally to own the stock.
    'Geyer testified that when he left the meeting on November 4th, the understanding was that no further business was to be transacted except the appointment of an assessor, that this was to be done at the meeting of the 5th, and that the meeting of the 4th was to be adjourned to the 9th.
    The commissioners’ record showed 'that Rosecrans and Drake did meet on the 5th and transacted the particular business agreed upon, and that an adjournment to the 9th instant was then entered. The commissioners’ clerk testified, “ They adjourned to the 9th instant. The record of the adjournment to Tuesday, the 9th instant, was made at that time.”
    Drake was seen with Rowland several times during the afternoon and evening of the 5th — Drake being in a state of intoxication. He was then heard to declare that he w’as disposed to favor the purchase of the bridge. Later in the evening he, with Rosecrans, the other commissioner, went into the commissioners’ office, caused the record to be altered to show an adjournment to that evening instead of the 9th instant, adopted a resolution to purchase the bridge, executed and delivered $2100 county bonds therefor and adjourned. Geyer, as commissioner, filed his protest at once, and the new board of commissioners refused to recognise the transaction, when this suit was brought by Lafayette Rowland (who still held the bonds, having never distributed them to the stockholders of the bridge company) to recover two years’ interest.
    The defendant proposed to ask Thrall, one of the defendant’s witnesses:
    Had -you any conversation with Sol. Drake, one of the county commissioners, prior to night of November 5th 1875, during the day of the 5th, with reference to his (Drake’s) views as to the purchase of the Lackawaxen bridge, what he intended to do, and as to any inducements that had been held out to him by George Rowland or Lafayette Rowland ?
    “ Objected to and objection sustained.” (1st assignment of error.)
    Also, to prove by witness that on Friday, November 5th 1875, Sol. Drake said to the witness that he was offered by the plaintiff $500, and a trip to Niagara Falls ánd expenses paid, if he would assent as commissioner to the purchase of the bridge.
    “ Objected to and objection sustained.” (2d assignment.)
    The defendant also objected to the admission in evidence of the bonds, on the ground that plaintiff had not shown the assent in writing of a majority of the stockholders of the bridge company.
    “Objection overruled.” (3d assignment.)
    The defendant submitted the following points, all of which the court refused, constituting respectively, the 4th, 8th and 9th assignments of error:
    1. That if the jury believe from the evidence that, during the forenoon or afternoon of the 5th day of November 1875, the commissioners adjourned to meet on Tuesday, the 9th instant, and that the subsequent meeting on the evening of said 5th day of November, was without notice to Greorge Greyer, one of the commissioners, and without his knowledge, then under the law the commissioners, Rosecrans and Drake, had no power at such meeting to purchase the Lackawaxen bridge and issue bonds therefor, and that the county of Pike is not bound by said action.
    2. It appearing from the evidence that the indebtedness of Pike county, on the 5th day of November 1872, exceeded two per centum upon the assessed valuation of the taxable property therein, the commissioners were, by the Constitution and laws of this Commonwealth, at that time prohibited from incurring the additional indebtedness of $2100, and such attempted action of two of said commissioners, and the bonds alleged to have been issued by them could not and did not bind the county of Pike.
    3. Lafayette Rowland, the plaintiff, having been treasurer of the county of Pike on the 5th day of November 1875, and during the year 1875, is charged with knowledge of the fact that the indebtedness of the county exceeded two per centum upon the assessed valuation of taxable property in said county at that time, and he cannot recover upon the bonds upon which the suit is founded.
    The plain tiff ..submitted the following points:
    1. That the net amount of indebtedness of Pike county existing at the time of the adoption of the new Constitution and the issuing of the bonds in question, being less than three per centum on the assessed valuation of taxable property, and the n.ew indebtedness created by the purchase of the bridge not exceeding two per centum on such valuation, the issuing of said bonds is not in contravention of the 8th section of the 9th article of the Constitution, or of the Act of 20th April 1874.
    2. That the Act of 23d March 1865, providing for the sale of the Lackawaxen bridge, is not repealed by the 8th section of the 9th article of the Constitution, nor by the Act of the 20th of April 1874, nor is the right to carry out the provisions of said act suspended or controlled by the Constitution or the Act of April 20th 1874.
    4. That under the Act of March 20th 1874, the commissioners of Pike county had a right to increase the then existing debt, or create a new debt, not exceeding two per centum of the valuation.
    The court affirmed these points, pro forma (6th, 7th and 13th assignments), and reserved the questions involved therein.
    In the general charge, the court, inter alia, said: “We charge you that it was not necessary to notify Geyer, the other commissioner, of the meeting on the evening of the 5th, when the bonds were issued, if the other two commissioners were there according to adjournment, or in pursuance of notice to themselves without a previous adjournment.” (5th assignment.)
    May 31st 1879, verdict for the plaintiff in the sum of $252, subject to the opinion of the court, whether under the following facts, which they find, to wit: That at the time of the adoption of the .present Constitution of this state, and at the time of the purchase of the bridge by the commissioners of Pike county, and for the purchase-money of which the bonds described in the plaintiff’s declaration were given, the indebtedness of said county exceeded two per centum, but did not exceed three per centum upon the assessed valuation of taxable property therein, that the purchase or consideration-money for said bridge did not exceed 2J mills on the dollar of the assessed value of' such taxable property, and ■the commissioners of said county purchased said bridge and issued said bonds on the 5th day of November 1875, under the authority conferred upon them by the Act of Assembly, approved March 23d 1865, entitled “An act for a free bridge over the Lackawaxen river at Lock No. 10, on the Delaware and Hudson Canal,” the plaintiff is entitled to recover.
    If the court shall be of opinion that under these facts the plaintiff cannot recover, that then they find for the defendant, and judgment to be entered in their favor.
    The court, Dreher, P. J., entered judgment for the plaintiff on the special verdict (12th assignment), delivering the following opinion:—
    “ The questions raised upon the special verdict are:—
    “1. Whether, the indebtedness of a county, the debt of which at the adoption of the present Constitution, exceeded two per centum (but was less than three per centum) upon the assessed value of the taxable property therein, may be increased (the increase being less than two per centum upon such assessed valuation of property) -without the assent of the electors of the county ascertained by a public election.
    “ 2. Whether the 8th section of article 9, of the new Constitution, and the Act of the 20th of April 1874, Pamph. L. 65, repealed the special Act of Assembly of the 23d of March 1865, Pamph. L. 650, entitled, ‘ An act providing for a free bridge over the Lackawaxen river at Lock No. 10 on the Delaware & Hudson Canal.’

      “ The first section of that act authorizes the Lackawaxen Bridge Company to make a conveyance of all their right, title and interest in the bridge, with the contiguous land and all appurtenances and franchises held by them, to the county of Pike. The second section authorizes the commissioners of the county of Pike, with the written approval of the associate judges of the county, to purchase said bridge for cash, or bands bearing interest at the rate of six per centum to be paid annually.
    “ The 8th section of article 9 of the Constitution is as follows: ‘ The debt of any county, city, borough, township, school district or other municipality or incorporated district, except as herein provided, shall never exceed seven per centum upon the assessed value of the taxable property therein ; nor shall any such municipality or district incur any new debt or increase its indebtedness to an amount exceeding two per centum upon such assessed valuation of the property, without the assent of the electors thereof at a public election, in such manner as shall be provided by law ; but any city, the debt of which now exceeds seven per centum of such assessed valuation, may be authorized by law to increase the same three per centum in the aggregate at any one time upon such valuation.’
    “ It is contended by the defendant that the term ‘ new debt ’ has reference to counties not indebted, and that such counties may incur a debt amounting to two per centum upon the assessed valuation, without a vote of the electors assenting thereto, and that the phrase ‘ increase its indebtedness,’ has reference to counties having an existing indebtedness, and that such counties cannot make any increase of such indebtedness if the proposed increased and old indebtedness together exceed two per centum of the assessed valuation, without first obtaining the assent of the electors at an election held for that purpose.'
    “ I cannot see any such distinction between the- expressions ‘incur any new debt’ and ‘increase its indebtedness.” An existing indebtedness is certainly increased by contracting or incurring a new debt, and a new debt may be incurred by a county or an individual already in debt. Suppose a county with an indebtedness of ten thousand dollars should find it necessary to borrow ten thousand dollars to put up a public building and issue bonds therefor; this borrowed ten thousand dollars would certainly be a new debt. It is no part of the old debt. It might be said that the county had increased its indebtedness to the amount of ten thousand dollars, but certainly it would not be said she had increased her debt to the amount of twenty thousand dollars.
    “The second clause of the 8th section reads: ‘Nor shall any such municipality or district incur any new debt or increase its indebtedness to an amount exceeding two per centum upon such assessed valuation of property without the assent of the electors thereof at a public election in such manner as shall be provided by law.’
    “ Now, according to the argument of the defendant, this clause provides for two classes of counties:—
    “ 1st. Such as have no debt; and they may incur a debt not exceeding two per centum upon the assessed valuation, without a vote of the electors.
    “ 2d. Such counties as are in debt; and they may increase such ■ indebtedness if the existing debt with the increase does not exceed two per centum of such assessed valuation, without a vote of the electors.
    [“ According to the defendant’s theory, there is no place in the second clause of the 8th section for that class of counties having an indebtedness exceeding two per centum of the assessed value of property therein. It would be incorrect to say that a county having an indebtedness equal to or in excess of two per centum may increase that indebtedness, but the indebtedness when increased shall not exceed two per centum. We might as well say that a quantity equal to A. may be increased, but such a quantity when increased must not exceed A. It is not a sufficient answer to this to say that as the maximum limit fixed by the first clause is seven per centum, therefore any county not having reached that limit may increase its indebtedness by a vote of the people. The second clause provides for the vote of the taxpayers to be taken in the cases therein mentioned — that is to say, according to defendant’s argument, where a county has no debt, and .where there is a debt less than two per centum, and it is proposed to increase it so that the debt and the increase will exceed two per centum.] Tenth assignment.
    [“ I think the county of Pike had the power to purchase the bridge, and issue bonds in payment therefor notwithstanding her indebtedness was in excess of two per centum of the assessed value of taxable property therein, at the time these bonds were issued. Whether these bonds are viewed in the light of a ‘new debt,’ or an increase of an existing indebtedness, I think they are binding upon the county, and judgment is therefore entered upon the special verdict in favor of the plaintiff.] Eleventh assignment.
    “ In this opinion I have not referred to the Act of 20th April 1874, thinking it unnecessary to do so, as that act is certainly not more restrictive upon the power of a county to contract indebtedness than the Constitution.
    [If the defendant’s interpretation of the Constitution is correct, I think it very doubtful w'hether the power of the county commissioners to purchase the bridge and issue the bonds under the special act of 23d March 1865, was abrogated by the adoption of the new Constitution.”] Fourteenth assignment.

      The defendant took this writ and alleged that the court erred as set forth in the above assignments of error.

      H. M. Seely and John Eyce, for plaintiff in error.
    We thought we had evidence of collusion between Rowland and Drake sufficient to make Drake’s declarations competent evidence against Rowland; and we proposed by such declarations made just before the actual transaction, to show the corrupt inducement to the transaction. Only slight evidence of collusion was necessary far this purpose: McDowell v. Rissell, 1 Wright 168; Gibbs v. Neely, 7 Watts 307; Peterson v. Speer, 5 Casey 491.
    Hanners did not give his assent as administrator, and he could not give his assent in any other capacity : Lewis v. Ewing, 6 Harris 313. The board of commissioners were not properly convened. They did not meet in pursuance of - notice or according to adjournment, and the acts of the two commissioners were void: Act of April 15th 1834, sect. 19, Purd. Dig. 302, pl. 6. A notice when necessary must, if practicable, be given to every member of a body who has a right to vote: 1 Dillon on Municipal Corp. 320; 2 Kent’s Com. 464; McCready v. Guardians of the Poor, 9 S. & R. 99; Jefferson County v. Slagle, 16 P. F. Smith 202.
    The language of the 8th section of article 9 of the Constitution is clearly prohibitory. We contend that it fixes two per centum of the assessed valuation of taxable property as the limit, beyond which the indebtedness of the county cannot be carried without the assent of the electors first obtained. The court maintain that this limit is one of increase only, and not of indebtedness; that if the indebtedness of the county be one, two or five per centum of such valuation, not exceeding two per centum of such valuation may be added without requiring the assent of the electors.
    We insist that the words “incur any new debt,” have reference to a municipality not indebted, and the indebtedness which it can incur, without the assent of the electors, is limited to two per centum; the words “increase its indebtedness,” have reference to a municipality already indebted, and to such the same limit of indebtedness is fixed.
    The clause in the Constitution being prohibitory, the Act of 1865 could not be carried into effect, and its operation was suspended until the indebtedness of the county should be so reduced that the purchase of the bridge would not increase the indebtedness beyond two per centum, or until the assent of the electors to such increase had been obtained: Perkins v. Slack, 5 Norris 278.

      G. G. Waller and J. B. Storm, for defendant in error.—
    Whether the assent of Hanners was valid or not we contend is a question which cannot be raised here except by the heirs or stockholders, and neither of them are complaining.

      June 22d 1880.
    The declarations of Drake were not made in his official capacity or whilst acting in the business of the county. They were no more than the loose declarations of any other citizen: Green v. North Buffalo Twp., 6 P. F. Smith 110; Wharton’s Ev., 2 vol., sect. 1209. The fact that Geyer did not suppose that any business would come up, except certain things, in-the absence of a distinct agreement that nothing else should be done, did not affect the regularity of the meeting. The two commissioners were competent to transact any business for the county. Their session had not closed; no new meeting was held. Notice fo Geyer was not necessary, he having left the board in session. The fact that he was opposed to the purchase of the bridge made no difference so long as the other two favored it.
    The constitutional provision means that the aggregate of new debts, or of the increase of the indebtedness existing at the time the new Constitution went into effect, must not exceed two per centum. The prohibitions of the Constitution of 1874 are prospective only, and do not repeal local statutes in force at the time of its adoption, and whose provisions are inconsistent therewith: Indiana County v. Agricultural Society, 4 Norris 357; Wattson et al. v. The Chester & Delaware River Railroad Co., 2 Norris 254.
   Mr. Justice Trunkey

delivered the opinion of the court,

The Act of 1834 provides that the corporate powers of a county shall be exercised by the commissioners; that two of them shall form a board for the transaction of business, and when convened in pursuance of notice or according to adjournment shall he competent to perform all duties appertaining to the office. To these officers are intrusted the care and management of county business and property. The voice of the inhabitants is not directly heard in the levying of taxes, making of contracts or expenditure of money — their power is only felt at the election of commissioners. The question presented in the fourth and fifth assignments is, may two of the commissioners convene and lawfully transact business requiring deliberation, not according to adjournment, and without notice to or knowledge of the other ? This concerns every citizen of the county, as well as each member of the board.

By law the affairs of the county are administered by three representatives. Absent members, equally with those who are present, are bound by whatever is lawfully done at a regular or stated meeting or any regular adjourned meeting. If the meeting be a special one, the general rule is that notice is necessary, and must be personally served, if practicable, upon every member entitled to be present, so that each one may be afforded an opportunity to participate and vote. Such notice is essential to the power of the board to do any deliberative act which shall bind the corporation. If all have notice, two shall form the board, and their acts bind the absent as if it were a stated or adjourned meeting. Notice may be dispensed with by the presence and consent of all; and if one has quit the municipality, and has no family or house within its limits, notice to him is unnecessary: Dillon on Mun. Oorp., sects. 200, 201, 223, 224. All authorities seem to agree as to the general rule, unless there is a modification in the charter or statute. It applies alike to public and private corporations. Our statute, which declares that a majority shall form a board when duly convened in pursuance of notice or adjournment, is an enactment of the well-settled rule without adding to or taking from.

Jefferson County v. Slagle, 16 P. F. Smith 202, does not support the position that two of the commissioners may meet, without the knowledge of the other, and bind the county by contract. This point was not raised nor discussed in the opinion. It was ruled that the board could transact business anywhere in the county. No proof was adduced that two acted Avithout consent of the other; and, in the absence of evidence, it is presumed the.officers did their duty: Downing v. Rugar, 21 Wend. 178.

In absence'of a different provision in the charter or by-laws of a corporation, a special meeting of the trustees must be' called by giving personal notice, to each member of the board. A provision that a majority s'hall form a board for the transaction of business does not change the rule : Harding v. Vandewater, 40 Cal. 77. A meeting of stockholders regularly warned is competent to do any act within their chartered powers by a baré majority; yet, if not thus warned, their act Avould be void. If no mode of Avarning be prescribed in their charter or by-laAvs, personal notice may be given: Stow v. Wyse, 7 Conn. 214. When the statute vested the election of treasurer for the county and city of Dublin in the “board of magistrates of the county of the said city,” and an election was held in the absence of one of the magistrates Avho had not been notified, it was held that the election was invalid: Smyth v. Darley, 2 H. L. Cas. 789. See The People v. Batchelor, 22 N. Y. 128.

If tAvo of the commissioners, without notice to or knowledge of the other, can form a board for transaction of business, the statutory direction for notice is futile. To say they have convened in pursuance of notice is nonsense, unless Ave speak of notice to the two by a person Avho desires business of interest to himself to be done in the other’s absence. Such meeting savors of conspiracy. A designing man could observe the superiority of an able and upright commissioner over his weaker fellows, and take care to convene the two Aveaker ones for consummation of his purpose, if notice to all is not essential. Superior numbers often yield to superior weight, and sometimes the corrupt quail in presence of an honest man. Just in proportion as a clandestine meeting of two commissioners for transaction of business would be dangerous, is it to the interest of the inhabitants of the county that all three should have notice and opportunity to be present at every special meeting of the board. The opinions, reasoning, perhaps protest, of the one may advantage the county. He may prevent hasty and inconsiderate action. Had Greyer been present on the evening the bonds were signed, he might have discussed the matter with Rosecrans till Drake’s pendulous mind had swung the other way, and thereby saved the county from the Rowland contract. Be this as it may, Greyer ought to have had opportunity to consult, advise, and, if need be, protest. The defendant’s first point should have been affirmed. It is scarcely necessary to remai'k that no question is raised in this record respecting the validity of bonds or securities, appearing on their face to have been properly issued by the county commissioners, which have passed into the hands of strangers to the original transaction who are innocent holders for value.

We think the learned judge of the Common Pleas rightly determined the questions raised by the special verdict. Sect. 8, art. 9, of the Constitution is as follows“ The debt of any county, city, borough, township, school district, or other municipality or incorporated district, except as herein provided, shall never exceed seven per centum upon the assessed value of the taxable property therein, nor shall any such municipality or district incur any new debt, or increase its indebtedness to an amount exceeding two per centum upon such assessed valuation of property, without the assent of the electors thereof at a public election in such manner as shall be provided by law; but any city, the debt of which now exceeds seven per centum of such assessed valuation, may- be authorized by law to increase the same three per centum, in the aggregate at any one time, upon such valuation.” In the constitutional convention the three divisions of this section were discussed, and the second was explained thus : “ The second division of the amendment provides that no new debt, or any increase of existing debt exceeding two per cent., shall ever be authorized by any municipality without the express assent of the electors of the municipality by a public vote.” This seems to have been the understanding of the convention : 6 Debates 143. The clause was doubtless so understood by the people at its adoption. In Wheeler v. Philadelphia, 27 P. F. Smith 338, a case soon after the’ adoption, where it was necessary to give a construction of the third clause of the section, relating to cities, it was remarked of the preceding : “ The municipal authorities may increase the debt from time to time until two per centum has been added, provided the original debt, with the increase, does not exceed seven per centum. After the two per centum has been added, there can be no further increase without the vote of the people.” Neither the debates, nor supposed views of the people, nor the dictum of this court, nor all combined, can set aside the plain meaning of a constitutional provision ; but if the sense of a clause be doubtful, the contemporaneous understanding is material. In strictness, -the words may mean as contended by defendant, but the context seems to make it clear that the true sense of the clause is a prohibition of a new debt, or increase of existing debt, exceeding two per centum of the assessed valuation, without a public vote. Where the debt is less than seven per centum, it was not intended that public officers of municipalities should be deprived of power to make immediate improvements and repairs of public property, which might become necessary, provided they keep within the limit of two per centum of the valuation.

The third assignment cannot be sustained. Hanners, as administrator, had right to control or sell the stock. He signed the writing giving assent of the stockholders, and that was sufficient, as respects third persons, whether he then held it as administrator, or it had vested in him as owner.

We discover no error in the rulings set forth in the remaining assignments.

Judgment reversed, and venire facias de novo awarded


text:
    Maloney et al. versus Bruce et al.
    1. If parties seek to have all the advantages of a partnership, and yet limit their liability to creditors, they must comply strictly with the Act" of June 2d 1874.
    2. The object of the Act of May 1st 1876, requiring a schedule of property contributed to such limited partnership, was to enable creditors to ascertain precisely of what the property consisted and to judge of its value.
    3. Where property has not been contributed, scheduled and valued, as the Act of 1876 directs, there is no payment of the capital. A general description of the extent of the property, or a lumping valuation is not such a schedule as the act requires.
    April 1st 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Lackawanna county: Of January Term 1880, No. 27.
    Assumpsit by John M. Bruce et al., trading as Bruce & Cook, against Martin Maloney et al., individual members of the Maloney Manufacturing and Gas Light Company, Limited.
    The facts were as follows :
    Martin Maloney, A M. Renshaw, C. W. McKinney, II. B. Phelps and W. F. Hallstead, by an agreement dated October 1st 1877, formed a limited partnership association as allowed by the Act of Assembly approved June 2d 1874, Pamph. L. 271, entitled “ An act authorizing the formation of partnership associations, in which the capital subscribed shall alone be responsible for the debts of the association, except under certain circumstances,’.’ and its supplements. The name adopted was “ The Maloney Manufacturing and Gas Light Company, Limited.” Business was begun by the association on or about October 2d 1877, in the city of Scranton. A statement in writing was made, signed by the. parties interested, and acknowledged by them before a proper officer. It was recorded before business began under the management of the association. The contributions to the capital were made in personal property, and set out in the statement recorded as follows : The amount of capital of said association subscribed for by each of said persons is as follows, to wit: “ Martin Maloney, $6500 ; A. Miner Renshaw, $4000; Carlos W. McKinney, $2500; H. B. Phelps,-$1000; W. E. Hallstead, $1000.” Making the total amount of the capital $15,000, which said amount of capital has been fully paid in at the time of signing and executing these articles of association, and has been paid in by the assets and property of Martin Maloney at a valuation which has been approved by all the members subscribing to the stock of said association, a description, of which property, and the said valuation and the names of the parties so contributing, are as follows:
    “ Contract with the Pennsylvania Globe Gas Light Company, at-a valuation $2500; merchandise, consisting of.iron, steel, tin and copper ware, gas pipes and gas fixtures, plumbing materials, .stoves, furnaces, pumps, house furnishing goods, mantels, grates, terra cotta pipes, lamps and lamp posts, safe, stove, furniture and fixtures, all the goods, tools and chattels now on the premises, 209 Lackawanna avenue, Scranton city, now leased by said Martin Maloney, valuation, $12,500. Making a total valuation of $15,000, which is contributed by the parties to this association in amount as subscribed for by each as above set forth.”
    The association continued business for about one year, when, being unable to meet their indebtedness, they made an assignment for the benefit of creditors. The plaintiffs below brought an action and obtained judgment against the association. They issued an execution, which was returned no goods.
    They then, by affidavit filed, alleging that the statement recorded did not comply with the statutes authorizing the formation of limited partnerships, obtained a rule to show cause why execution should not issue against the persons composing the association individually. The rule was made absolute, the court, Handley, P. J., delivering an opinion, and execution ordered as prayed for, on the ground that there was not such a description of the property contributed as the law required.
    The defendants then took this writ, and alleged that:

      May 3d 1880.
    1. The court below erred in saying, “ no such schedule as the Act of 1876 contemplates was filed by the members of this association, * * * and hence these parties have not complied with, the law.” 2. The court erred in allowing execution against the members of the association individually. 3. The court erred in allowing such execution without restricting it to the amount of capital stock of each member then unpaid.

      S. B. Brice and E. N. Willard, for plaintiffs in error.
    The stock was described fully, and the place and location of the storeroom where it was to be found given, and the value of the goods and amount contributed by each member. The person with whom the contract was made was given and its value. If the contract had been set forth in full and every article of the stock of goods described, the statement would not have furnished any better means of determining the financial standing of the company. It is sufficient in such cases to substantially comply with the words of the statute. Certainty to a common intent is all that is needed: Andrews v. Schott, 10 Barr 47; McClintock v. Rush, 18 P. F. Smith 203.
    The act allows the court to' order execution against the individuals for the amount of their subscriptions which are unpaid respectively by them. This authority is- given because the capital is unpaid, and for no other reason. It ought not to be exercised if there are disputed facts, but the issue should be submitted to a jury, because the authority, when properly used, is extraordinary, and it may be doubted whether in any case contemplated by the act it is constitutional: North Penna. Coal Co. v. Snowden, 6 Wright 488; Tillmes v. Marsh, 17 P. F. Smith 507; Haines’s Appeal, 23 Id. 169.

      R. W. Archbald, for defendants in error.
    The requisites of a schedule are adhered to in the act when it prescribes the formalities of a description and valuation. In a well-considered case (Bement v. Impact Brick Co., 5 W. N. C. 58) this clause is defined to mean a statement of “ the exact nature of the property contributed and a correct valuation thereof.”
    Limited partnership laws have always received a strict construction in favor of creditors : Andrews v. Schott, supra; Vandyke v. Rosskam, 17 P. F. Smith 330; Guillou v. Peterson, 8 Norris 163.
    The constitutional question is answered in In re Penna. Hall, 5 Barr 208; Dunmore’s Appeal, 2 P. F. Smith 374; Van Swartow v. Commonwealth, 12 Harris 131; Rhines v. Clark, 1 P. F. Smith 101; Paschall Street, 31 Id. 118; Wyncoop v. Cooch, 8 Norris 450; Simpson v. Neill, 7 W. N. C. 85.
   Mr. Justice Paxson

delivered the opinion of the court,

The Act of 2d June 1874, Pamph. L. 271, in regard to limited partnerships provides for a cash capital. The supplement to said act passed 1st May 1876, Pamph. L. 89, allows the members “to make contribution to the capital thereof in real or personal estate, mines or other property, at a valuation to be approved by all the members subscribing to the capital of such association. Provided, that in the- statement required to be recorded by the first section of said act, subscriptions to the capital, whether in cash or property, shall be certified in this respect according to the fact; and when property has been contributed as part of the capital, a schedule containing the names of the parties so contributing, with a description and valuation of the property so contributed, shall be inserted.”

“ The Maloney Manufacturing and Gaslight Company limited” was organized under the said Act of 1874. No capital was contributed in cash. The article of association fixes the amount of the capital at $15,000, and gives the names of the members, with the number of shares held by each, and recites that the whole amount of the capital has been paid in by the assets and property of Martin Maloney, one of the members, at a valuation approved by all the members. Then follows what purports to be a list of the property contributed in lieu of cash, the first item being a “ contract with the Pennsylvania Gaslight Company at a valuation of $2500,” after which comes merchandise under a general description, together with “ furniture, fixtures and all the goods, tools and chattels now on the premises 209 Lackawanna avenue, Scranton city, now leased by said Martin Maloney, valuation $12,500.”

This is not the kind of schedule contemplated by the Act of 1876. The description is too general to enable any one to form a correct estimate of the extent of the property, and a lumping valuation renders it equally difficult to judge of values. The property contributed was intended as the equivalent of a cash capital, and the plain object of the provision in the Act of 1876 requiring a schedule was to enable creditors to ascertain precisely of what the property consisted and to judge of its value. If parties seek to have all the advantages of a partnership and yet limit their liability as to creditors, they must comply strictly with the act. Where property has not been contributed, scheduled and valued as the Act of 1876 directs, there is no payment of the capital. It follows that the order of the court below allowing executions to go out against the individual members for the amount of unpaid stock subscribed by them was free from error, and the judgment must be

Affirmed.

Sharswood, C. J., and Trunkey, J., dissented.


author: Mr. Justice Sterrett

text:
    Allen versus Kellam.
    1. A recognisance of bail in error defective in form may derive validity from the consent, express or implied, of the parties intended to be affected thereby.
    2. The recognisance may be sustained as a voluntary personal contract based on sufficient consideration. It is tendered to defendant in error as security in consideration of the delay and risk to which he may be subjected, and if he elects to accept and treat it as valid, and for this reason forbears to proceed by execution, pending the writ of error, neither the principal nor the surety can evade liability on the ground of non-conformity to the requirements of the statute.
    3. Where, however, the defendant in error treats the recognisance as a nullity, issues execution, and proceeds as though no recognisance had been given, such conduct constitutes a good defence to an action upon it.
    April 1st 1880.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Trunkey and Stbrrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Wayne county: Of January Term 1880, No. 292.
    Scire facias sur recognisance of bail in error by Peter Keliam against Martin B. Allen.
    Allen filed the following affidavit of defence :—
    “ That at the time of giving the recognisance upon which the above action is brought, the deponent did so with the assurance upon the part of the defendant in the suit in which the recognisance was given, that deponent should be indemnified against loss by reason of signing such recognisance. That such indemnity was not furnished to deponent. p That the deponent was the only surety in said recognisance. That after said recognisance was filed, and pending the writ of error, the plaintiff in the said suit caused execution to issue against the property of the defendant, William T. Keliam, and treated the said recognisance as a nullity. That plaintiff in said suit in which the recognisance was given lost nothing by reason of the writ of error being taken, having treated the recognisance as a nullity, and proceeded with the execution. That there was an entire failure of consideration for which the said recognisance was given.”
    The court entered judgment for want of a sufficient affidavit of defence, when defendant took this writ and assigned this action for error.

      H. M. Seely, H. Wilson and Greorge S. Purdy, for plaintiff in error.
    The recognisance is simply a security furnished in consideration of the delay and risk occasioned by the stay of execution. If the recognisance complies with the terms of the Act of Assembly, the stay follows at once.
    It is not a voluntary contract between the parties, but a proceeding by which one party divests the other without his consent of a right or security by substituting a different one under the Act of Assembly. A recognisance which does not comply with the provisions of the act sufficiently to operate as a legislative injunction against execution, may still, by consent of the parties, be made to accomplish the same purpose, as a voluntary contract. A recognisance of bail in error with a single surety is not a supersedeas. The defendant in error may disregard it and proceed at once with his execution: Rheem v. Naugatuck Wheel Co., 9 Casey 357; Eichman v. Belvidere Bank, 3 Whart. 70; Stroop v. Gross, 1 W. & S. 141.
    May 3d 1880.

      George G. Waller, for defendant in error.
    By the rules of the Supreme Court, a method for defendant in error to except to the bail is provided, and if he does not do so within twenty days, he cannot do it thereafter, and the implication is, the bail is good, and that the defendant acquiesces in it. In the case at bar, the defendant did not except to the bail, but acquiesced in it, and the defendant had the benefit of the stay which he sought. The execution was not pressed, but stayed. If the recognisance bound Allen at any time, then the issuing of an execution on which there was no sale, did not release him. In Milliken et al. v. Brown, 10 S. & R. 188, it is held : “ If, after a recognisance entered into for a stay of execution, the plaintiff issue a fi. fa. against the defendants in the original suit, within the time of stay allowed by law, and obtain part of the debt from one of the original defendants, under the menace of levying the execution, this does not discharge the recognisance.”
   Mr. Justice Sterrett

delivered the opinion of the court,

The Act of 1836, relating to bail in error, provides that execution shall not be stayed unless the plaintiff in such writ, or some one on his behalf with sufficient sureties, shall become bound by recognisance with condition to prosecute the writ of error with effect, &c. A recognisance with a single surety is not a supersedeas by mere operation of law, and the party in whose favor judgment has been entered in the court below may disregard it and proceed with his execution as though no recognisance had been given: Rheem v. Naugatuck Wheel Co., 9 Casey 356. But a recognisance defective in form may derive validity from the consent, express or implied, of the parties intended to be affected by it. It is tendered to the defendant in error as security in consideration of the delay and risk to which he may be subjected, and if he elects to accept and treat it as valid, and for this reason forbears to proceed by execution pending the writ of error, neither the principal nor the surety can evade liability on the ground of non-conformity to the requirements of the statute. The recognisance may be sustained as a voluntary personal contract based on sufficient consideration. But such a state of facts is not presented in this case. The plaintiff in error in his affidavit of defence, which was adjudged insufficient by the court below, says, among other things, that he was -the only surety in the recognisance; that after it was filed, and pending the writ of error, the plaintiff below treated it as a nullity, issued execution, and proceeded as though no recognisance had been given; that having so proceeded he lost no right or security by reason of the writ of error. The facts thus alleged, if true, constitute a good defence; and for the purposes of the present inquiry we must assume that every allegation contained in the affidavit of defence is strictly true. It may be that on the trial of the case the plaintiff below will be able to show what he now alleges — that execution was stayed and by common consent the recognisance was treated as valid and binding. This may become a question of fact for the jury, but, in passing upon the sufficiency of the affidavit of defence, we cannot undertake to determine disputed questions of fact. The only pertinent inquiry in a case like this is whether the allegations of fact contained in the affidavit of defence, assuming them to be true, constitute a defence. The recognisance in this case was so defective in form that the defendant in error had a right to treat it as a nullity; and the allegation is that he did so treat it, “ issued execution, and proceeded therewith, pending the writ of error, as though no recognisance had been given.” This, if true, is a good defence to the scire facias on the recognisance.

Judgment reversed and a procedendo awarded.