text:
    January Term, 1882,
    No. 127.
    April 26th, 1882.
    Stover versus Cadwallader et al.

    1. Where a lease was created by parol for a term of four years, with the consideration a round sum, payable at the expiration of the term, it was, under the Statute of Frauds, March 21st, 1772, 1 Smith’s Laws, 389, a lease at will, determinable at any time by either party.
    2. In an action for use and occupation, the consideration named in such a lease ma.y be adopten as the measure of compensation.
    8. But when the lease has been determined during the term by an abandonment of possession on the part of the lessees, the statute of limitations begins to run from the time of such abandonment, and not from the expiration of the term.
    4. Semble, that where leases are created by parol, exceeding the term of three years from the making thereof, and reserving an annual rent, such leases should be construed to be leases from year to year.
    Before Sharswood, C.J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Clinton County.

    Assumpsit commenced March 29th, 1877, by Samuel R. Stover against Rash Cadwallader, Frank M. Welsh, and William C. Sanderson, late trading as Cadwallader, Welsh & Co., to recover for use and occupation.
    Cadwallader was not served, and the remaining defendants pleaded non assumpserunt, payment with leave, set-off, and the statute of limitations.
    Upon the trial in the Court below, before Mayer, P. J., the plaintiff, Stover, testified substantially as follows:
    “I owned the undivided one-fourth part of a grist-mill, plaster-mill, and woollen factory, from the 1st of March, 1863, to the 1st day of January, 1875. They (the defendants) occupied my interest in that factory for four years, 'from April 1st, 1867, until April 1st, 1871. They agreed to pay $400 for the four years. I don’t know that it was in writing. They were in possession there under another lease. Not a dollar of these $400 was paid to me. They were to have it four years for the $400.”
    Upon cross-examination he testified:
    “I cannot tell you anything about when Cadwallader, Welsh & Co. ceased to do business. There was nobody else there under my lease to my knowledge or with my consent. I leased to nobody else for that term. If Cadwallader, Welsh & Co. did not occupy it, somebody occupied it under them; they did not occupy it under me. Their things were in there. They closed up the Cadwallader, Welsh & Co. concern, but I don’t know if they closed up all of it or not. They occupied it as far as I know, because I am positive I leased it to no person else. The name of Reuben Wilt was in the firm, but I don’t know when he got in. My lease with Sanderson was that they should have the property four years and pay me $100 rent for it.”
    The defendants then called F. M. Welsh, who testified:
    “I was a member of Cadwallader, Welsh & Co. The firm was organized in the spring of 1863. It was dissolved in March, 1870. I have the articles of dissolution.”

      Irwin Shreffler, for the defendants, testified :
    “I went there in the latter part of 1865. The firm then consisted of Cadwallader, Welsh & Co. I suppose that firm ceased to do business in 1870, for I commenced to work for Welsh & Wilt on the 4th of April, 1870, if I recollect correctly. They carried on business in the same place Cadwallader, Welsh & Co. did. They used the same machinery. After the 4th of April, 1870, no other firm did business in the same building, except Welsh & Wilt. F. M. Welsh is the same man that was in partnership with Cadwallader, Welsh & Co.”

      F. M. Welsh, being recalled by defendants, testified:
    “ After the dissolution of March 4th, 1870, Welsh & Wilt occupied these premises. Cadwallader, Welsh & Co. did not occupy them after March 4th, 1870. I wound up their business under their articles of agreement I bought the interest of the other two in the concern.
    . “ I went to Mr. Stover in the latter part of February, 1870, and asked him what rent he would take for his one-fourth interest in that woollen factory. This I done before 1 ever closed the contract with Cadwallader, Welsh & Co.' He said he would not take one cent less than $100 a year, and, as I had made arrangements with the other members of the firm, I had to give it, and I paid him $100 a year rent.. I have the check with which I paid the rent of 1870 (check offered in evidence). I drew that check, and gave it to R. R. Wilt, and he gave it to S. R. Stover. The indorsement on it is in the handwriting of S. R. Stover. ‘ For rent for 1870’ was written in the body of the check. I gave that check to Mr. Wilt to give to Mr. Stover, and he handed it back to me, and said I had better state what it was for, so I wrote it that same day I drew the check.”
    There were other witnesses for the defendant, whose testimony was to the same effect.

      8. B. Stover, in rebuttal, testified:

      “ Welsh did business for Cadwallader, Welsh & Co. at the factory in 1870. The business he did was settling up the books. The books were kept there. F. M. Welsh gave me that check. The words ‘for rent for 1870 and 1871 ’ were not written in there at all. They were put in afterwards. I rented to Welsh & Wilt in 1871.”
    The agreement of dissolution of March 4th, 1870, offered in evidence, provided that “ the said H. P. Cadwallader and AVilliam C. Sanderson, in consideration of the sum of $5600, paid by the said F. M. Welsh, $2600 to the above-named H: P. Cadwallader, and $3000 to the above-named AY. C. Sanderson, doth consent to disconnect themselves from the said joint-trading and copartnership with the said F. M. Welsh, and doth hereby release, grant, assign and transfer unto the said F. M. Welsh all the right, property and interest whatsoever, which they, the said H. P. Cadwallader and W. C. Sanderson, hath, or should have, in and to, all and singular, the goods, machinery, wares, merchandise and debts mentioned above.”
    Counsel for plaintiff asked the Court to charge the jury inter alia :

      Second. That an agreement for a parol lease of lands for four years is not void, and where by the terms of a parol lease for such time, the rent is not payable till the end of the term, no rent for any occupation under such lease is playable before the end of such term.

      Third. That the statute, requiring leases for a term exceeding three years to be in writing, is net in the way of tl.é plaintiff recovering in this suit for the occupation of the leased premises by the defendants, and that the plaintiff, if his testimony, touching the terms of the lease for four years, to wit, the premises leased, the term of such lease, and the amount of rent to be paid, and when payable, is believed by the jury, is entitled to recover in this suit for all occupation of the leased premises by the defendants under the said parol lease.

      Fourth. That the plaintiff, if his testimony is believed, is entitled to recover in this suit for the occupation of the leased premises by the defendants, and by those claiming under them, the rate agreed to be paid for such occupancy, with interest from the 1st day of April, 1871, the time when rent under the parol lease, according to the plaintiff’s testimony, became due and payable.
    The Court charged the jury inter alia :

    “ Now, gentlemen of the jury, at the very threshold of this case, we are met with an act of Assembly, which was passed on the 21st day of March, 1772, and known as the Statute of Frauds and Perjuries. This law has been in force ever since, and it is regarded as a very wise and salutary law. This act of Assembly requires that all leases, estates, interest of freehold or term of years, or any uncertain interest of, in or out of any messuages, manors, lands, tenements, hereditaments, made or created by livery and seisin only, or by parol, and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not either in law or equity be deemed or taken to have any other or greater force or effect; any consideration for making any such parol leases or estates, or any former law or usage to the contrary notwithstanding ; except, nevertheless, all leases not exceeding the term of three years from the making thereof.’ So that all parol leases made for a term exceeding three years are within this Statute of Frauds and Perjuries. When Cadwallader, Welsh & Co. and S. R. Stover entered into th's, verbal contract, neither party could enforce the lease as against the other, although suit for damages might lie, yet neither party could enforce specifically the terms of the lease. [Mr. Stover cannot in this action (enforce) the terms of this verbal lease, because it would be in violation of the act of Assembly referred to. The only way that Mr. Stover can recover at all would be by showing that these defendants went into possession of the premises, and remained in possession during the time that the lease had to run ; if they did, then he would be entitled to recover the amount of rent they stipulated to pay; for, if Cadwallader, Welsh & Co. went into possession of these premises, and enjoyed the fruits of that possession until the end of four years, they could not turn around, and refuse to pay him for their use and occupancy. So that, gentlemen of the jury, the whole case depends upon the fact of the possession by the defendants of this property. If the defendants went into possession of that property under a lease for a term of four years, and used and occupied it during the entire term of four years, then the plaintiff would be entitled to recover the $400, which would have been due on the 1st day of April, 1871, according to the terms of the lease. But if the defendants were not in the possession of the property up to the 1st day of April, 1871, but were only in possession from the 1st of April, 1807, down to the 1st of April, 1870, then we are met with another act of Assembly known as the ■ statute of limitations, for this suit was not brought until some time in 1877, which would be more than six years after the defendants went out of possession of the property. If the testimony is correct, that the defendants went out of possession of the property in April, 1870, and this action of the plaintiff was brought more than six years thereafter to recover the rent due for the use and occupancy, the plaintiff would be barred from recovering by this statute of limitations, and, under this state of facts, your verdict must be for the defendants.]

      $Z $Z $Z ifc $Z

      “ [Then, we have, in addition to that, the testimony of Mr. Wilt, who was one of the firm of Welsh & Wilt — who stated that this firm commenced operation in March, 1870 ; that they bought out the 'firm of Cadwallader, Welsh & Co., or had bought out the interest of two of the members of that firm, Cadwallader’s and Sanderson’s], and Mr. Welsh, the other member of the old firm of Cadwallader, Welsh & Co., and himself formed a copartnership, and carried on a similar business, under the firm-name of Welsh & Wilt.

      %z $Z 5|« • >K í{C %z >{£
    “ [Now, gentlemen of the jury, this whole case depends, according to our view of it, upon the question of fact, whether Welsh & Wilt were in possession of the factory from the 1st of April, 1870, to the 1st of April, 1871. If they were, then the plaintiff cannot recover in this case, and your verdict must be for the defendants, because his right to recover depends entirely upon the defendants being in possession of these premises from the 1st of April, 1867, to the 1st of April, 1871.] This lease can be used by Mr. Stover, for the purpose of determining the amount of compensation he would be entitled to receive for the use and occupancy of the premises by these defendants. We have been requested to answer some written points, presented by plaintiff’s counsel, which we will now read and answer.
    >|C ifc 5}í %Z %Z ' $Z

    “Answer to 2d Point: This point we refuse, because it would virtually be allowing the plaintiff to enforce specifically the terms of a verbal lease exceeding three years.
    “ Answer to 3d: Well, that would be so, gentlemen of the jury, if the evidence shows that Cadwallader, Welsh & Co. had been in possession of those premises for the entire term of four years.
    “ Answer to 4th: We do not know of any evidence, gentlemen of the jury, going to show that Welsh & Wilt went in there claiming possession under Cadwallader, Welsh & Co. There is no such evidence, so far as we recollect it, that they went into possession, and leased the premises from Cadwallader, Welsh & Co.; therefore, this point .is refused.

      “Now, gentlemen, it will be for you to determine, under all of the evidence, whether Cadwallader, Welsh & Co. were in possession of those premises for four years, from the 1st of April, 1867, to April 1st, 1871 ? If they were, then the plaintiff is entitled to recover, and your verdict should be for the plaintiff. But if, on the other hand, the evidence shows that Welsh & Wilt went into possession of the premises on or before the 1st of April, 1870, and continued in possession to the 1st of April, 1871, the plaintiff would not be entitled to recover, because his claim would be barred by the act of Assembly, known as the statute of limitations, and your verdict should be for the defendants.,?
    Counsel for plaintiff excepted to the charge and the answers to the points.
    May 12,1881. Verdict for defendants, on which judgment was afterward entered.
    The plaintiff then took out a writ of error, assigning as' errors the answers to the points as above and those portions of the charge within brackets.

      J. B. Youngman and O. G. Furst, for plaintiff in error.
    The possession, from April, 1870, to April, 1871, of the leased premises by F. M. Welsh himself, or with any one he might choose to have with him, as employb or partner, could not in any way affect the'plaintiff’, but was, as far as the plaintiff is concerned, the occupation of Cadwallader, Welsh & Co., the defendants. No notice, written or verbal, was at any time given to the plaintiff that the defendants had determined the parol lease: had ceased to hold as his tenants, or that they had ceased to occupy the leased-premises ; nor was he notified of a dissolution of the firm of Cadwallader, Welsh & Co. Under the foregoing circumstances it would be grossly .unjust, that the plaintiff should be prejudiced by any right that R. R. Wilt might have acquired in the last quarter of the term under F. M. Welsh, or Cadwallader, W elsh & Co.
    Where premises are let for a certain term, to three persons, and one holds over after the expiration of the term, with the consent of the others, all are liable for the rent for so long as the one continues actually to occupy: Christy v. Tancred, 9 Meeson & Welsby, 438. If the lessee of lands permits another to occupy them, the former is liable, and the rent may be recovered in an action against him for use and occupation : Bull v. Sibbs, 8 Term Reports, 327. In Grant ». • Gill, 2 Wharton, 44, Sergeant, J., says: It is not necessary in order to render the defendants liable in assumpsit for use and occupation, that they should actually hold the possession for the whole time. It is enough that the defendants became tenants by contract, and retained the control of the premises. If occupation for the whole time were necessary, the defendants could defeat a recovery by stepping out a few days before the end of the term: See McGunnagle v. Thornton, 10 S. & R , 253.
    Recourse may be had to the parol agreement under which the premises were occupied, to determine the amount of rent due, though the agreement be void under the statute of frauds: De Medina v. Poison, 1 Holt, 47. The statute of frauds is satisfied by restricting its effects to the avoidance of the lease as to the duration of the term, yet the contract will remain in all other respects: Smith on Contracts, 5 Ed., note 1, 129. A lessee occupying under a parol lease for more than three years, void by the statute of frauds, is nevertheless bound by his stipulation to repair, such undertaking being part of the void lease: Richardson v. Gifford, 3 Nevile & Manning, 325. In the action for use and occupation between strangers, the plaintiff must prove a contract either express or implied: If there be proof of an express contract the plaintiff may recover according to its terms : Henwood v. Cheeseman, 3 S. & R., 500. But between tenants in common there can be no recovery in this action, unless an express contract to pay rent be proven : Xline v. Jacobs, 18 P. F. S., 59. During the whole time of the occupancy by the defendants, under the said parol agreement with the plaintiff, whether that occupancy was for three quarters, or for the term of four years, their estate was but an estate at will, made so by the express provision of the statute of frauds, and on the determination of an estate at will, the law is careful that no sudden determination of the will by one party, shall tend to unforeseen prejudice of the other, and if the will be determined by the lessee, the current rent shall be paid up to the time the same becomes payable by the terms of the lease: 2 Blackstone, 146. By this doctrine governing the payment of rent where the lessee determines the estate at will, had there been here a determination of the estate by the defendants, the plaintiff would be entitled to recover for use and occupation to the end of the term, for the rent was accruing from the beginning of the term and not payable till the end.
    That the plaintiff’s action under the parol agreement did not occur before April 1st, 1871, is ruled in McDowell v. Simpson, 3 W. 137.

      C. S. McCormick, for defendants in error.

      How does the possession, of Welsh & Wilt after the firm Cadwallader, Welsh & Co. was dissolved — Sanderson, a member of the firm, had leased his'interest to the new firm, and Cadwallader had left the county — work a continuance of the possession of the latter firm ? There is clearly nothing in the written contract, by which Sanderson and Cadwallader sold to Welsh, indicating that they intended to continue the alleged verbal lease. The assumption of the liabilities of the concern by Welsh indicates the contrary. The retirement of Cadwallader and Sanderson from the firm, and its dissolution meant that the firm should create no new liabilities, and no person was authorized to create them.
    The action for use and occupation recovers not the rent but the reasonable damages. It does not enforce the contract but uses the agreed rent reserved to determine the amount of the damages. This being so, can the contract be used to show that the price of the use and occupation of the land is not due until the expiration of a whole year after the defendants had ceased to use and occupy the land? No case cited by counsel goes any such length. If the contract were valid, an action based upon the contract might recover the entire rent. But the action for use and occupation cannot be used to enforce a void contract. If the plaintiff may use this contract to fix the maturity of the payment more than one year after defendants ceased to occupy the premises, it is in effect specifically enforced. This the law will not permit: Kline v. Jacobs, 18 P. F. Smith, 59; Sausser v. Steinmetz, 7 Norris, 326. The jury have found that Cadwallader, Welsh & Co. ceased to occupy the premises in April, 1870.
    May 8th, 1882.
   — Per Curiam:

By the provisions of the statute of frauds, March 21st, 1772,1 Sm., L., 389, all'parol leases exceeding the term of three years from the making thereof, shall have the force and effect of leases or estates at will only, and shall not either in law or equity be deemed or taken to have any other or greater force or effect, any consideration for making any such parol leases or estates, or any former law or usage to the contrary notwithstanding. Where an annual rent is reserved, such leases are now construed to be leases from year to year. In this case there was a parol lease for four years, the consideration a round sum of four hundred dollars payable at the end of the four years. It was clearly only a lease at will. No doubt the consideration might have been adopted as the measure of compensation for the use and occupation. The will might have been determined at any time by either party.' Here it was determined at the end of the first three years, and the lessees abandoned the possession. So the jury have found. It is clear then that the case was submitted to the jury with proper instructions, and the assignments of error are not sustained.

Judgment affirmed.


source: Caselaw Access Project

author: — Per Curiam:

license: Public Domain

text:
    COLUMBIA COUNTY.
    January Term, 1882,
    No. 158.
    March 2d, 1882.
    Robins versus Beck.
    1. A sealed judgment-nr leprovided as follows: "One day after date I prom-' ise to pay to the order oí ¡á. B. eight hundred dollars, without defalcation, for value received, and I do hereby empower any attorney of any court of record . ... to appear for me and confess judgment against as of any term for above sum; with costs of suit and costs of attorney’s commission, and release of all errors.” Held, that the stipulation with respect to attorney’s commission did not expire with the death of the obligor.
    2. The maxim, Qtii hceret in litera lieeret in cortice applied.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunxey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Columbia County.

    Case stated by Samuel Beck, against John K. Robins, executor of the estate of Samuel Drum, deceased.
    For money loaned, Samuel Drum executed to the plaintiff the following judgment note:
    "$800.00. February Sd, 1879.
    “ One day after date, I promise to pay to the order of Samuel Beck eight hundred dollars, without defalcation, for ' value received, and I do hereby empower any attorney of any court of record within the United States, or elsewhere, to appear for me and confess judgment against as of any term for above sum ; with .costs of suit and costs of attorney’s commission, and release of all errors ; hereby waiving inquisition, and agreeing to condemnation of any property that may be levied .upon by any execution, which may issue forthwith, on failure to comply with the conditions hereof; also hereby waiving the benefit of exemption laws, or any Act of Assembly relative to executions now in force, or hereafter to be passed.
    “ Witness my hand and seal,
    “ Samuel Drum, [seal]
    “ Stephen Gearhart.”
    Drum died March 4th, 1880, and, the note not having been paid, suit was brought upon it against his executor. Arbitrators awarded to the plaintiff $992.96, being the amount of the debt, interest, and attorney’s commissions, alleged to be due. From this award the defendant appealed. On the 22d of October, 1881, the defendant paid $950.45, being the amount of the debt, interest, and costs up to that date, but not the attorney’s commission. He then filed a plea of nil debet.

    The Court below, Elwell, P. J., entered judgment on the case stated for $65.12, the amount of the attorney’s commission.
    The defendant then took out a writ of error, assigning as error the enti’y of the above judgment.

      W. H. ffliawn, for plaintiff in error.
    The power to confess judgment, etc., contained in this note, although irrevocable by Drum himself, expired on his death (Panning v. Pawson, 2 Wright, 480 ; Hood et al. v. Harper et al., 8 Phila., 163; 2 Kent Com., 644 and 647), and the stipulation in reference to commissions being connected with the power (Hope v. Everhart, 20 P. E. Smith, 231; Comm. v. Conard, 1 Rawle, 253), the commissions fell with it. The learned judge below, upon the authority of Imler v. Imler, 9 W. N. C., 196, construed the stipulation “ and with costs of attorney’s commission,” to be the agreement of the debtor, and part of the note. The only question decided in Imler v. Imler was as to the proper amount of commissions; what was said outside of that was obiter dictum, and so far as it decides this stipulation to be the agreement of the debtor and part of the note, it is in conflict with Hope v. Everhart, and Comm. v. Conard. In the former case, Williams, J., in deciding the relations of the provisions of the note to those of the power, held them to be separate and distinct, and the stipulation “ and with costs of attorney’s commission” to be part of the power to confess judgment, etc. In Comm. v. Conard, it was held the stay of execution provided for in the power, contained in the bond, was no part of the bond, but part of the power. If, then, the stipulation was part of tlie power, the commissions, or properly the claim for which- Beck sues, could only result from the exercise of the power. That having been extinguished by the death of Brum, it is sufficient to refer to Hunt v. Nous manier, 8 Wheat., 174; Hartley and Minor's Appeal, 3 Smith, 212; Lightner’s Appeal, 1 Norris, 301, to. show that the right to commissions fell with it.

      Samuel Knorr and L. S. Wintersteen, for defendant in error.
    The true grammatical construction certainly is, that the promise to pay and the power authorizing the entry of judg ment, being connected by the conjunction “and,” are both modified by the clause “ with costs of suit and costs of attorney’s commission,” etc.
    The obvious intention was to indemnify the creditor for his reasonable expenses for counsel fees in collecting the money, and the plaintiff was entitled to the benefit of. this contract, whether payment of the debt is enforced by entering judgment, upon the warrant of attorney, in the lifetime of the obligor, or by means of a suit at law brought either in the lifetime of the obligor, or (as in this ease) after his death, and this is in accordance with the decisions of this Court: Imler-r. Imler, 9 W.N.C.,page 196. See, also, Robinson v. Loomis, 1 P. F. Smith, page 78; Baly v. Maitland, 7 W. N. 0., page 103.
    March 13th, 1882.
   — Per Curiam:

It is clear upon the face of the instrument sued on, that the parties agreed that the attorney’s commission should be included in the judgment. The fact that the agreement was contained in the power to confess the judgment, which power was revoked by the death of the defendant, is entirely too refined a point, and falls within the maxim, qui haeret in litera haeret in cortice.

Judgment affirmed.


text:
    ELK COUNTY.
    January Term, 1882,
    No. 259.
    February 14th, 1882.
    Glaub’s Appeal.
    Where judgment was entered under a warrant of attorney contained in a judgment-note, and subsequently a scire facias and alias scire facias to revive were both returned nihil, whereupon judgment was entered for default, an appeal does not lie to this Court, under the Act of April 4th, 1877, P. L., p. 53, upon a refusal of the Court below to open the judgment.
    Before Sharswoob, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, ’ and Green, JJ.

      Certiorari sur appeal of John Glaub from the decree of the Court of Common Pleas of Elk County, refusing an application for a rule to open judgment in a case of John M. Wagoner against Joseph Foster and John Glaub.
    Judgment was entered March 8th, 1862, for $1071, upon a single bill, dated September 13th-, 1861, containing a warrant of attorney to confess judgment. A scire facias to revive and continue the lien of the judgment was issued as of May term, 1881, No. 5, on the 12th of April, 1881, and was returned nihil. An alias writ was issued July 1st, 1881, and was also returned nihil, whereupon judgment was entered for want of an appearance and affidavit of defence, and the amount was liquidated at $2315.11.
    Glaub then presented a petition, setting forth that the note was given under the following circumstances: The defendant, Foster, owed Glaub about $950, part of the consideration for a farm sold him, and gave a judgment-note for this amount. Glaub sold the note to the plaintiff and took flour in pay for it. Subsequently, on September 13th, 1861, the plaintiff went with Glaub to the house of Foster, and there plaintiff filled up “a note for the amount of the note Wagoner got from Glaub, and the interest, which your petitioner, John Glaub, was finally asked to sign as the bail or security for the said Joseph Foster.” Glaub did not then know he was becoming liable for the note. Foster was then entirely solvent and worth much more than the amount of the note. When plaintiff entered the note, March 8th, 1862, it became a lien on real estate of Foster, largely in value in excess of the judgment, and continued a lien for five years. No writ to revive was issued until April 12th, 1881. He asked for a rule to open the judgment.
    The Court filed the following opinion:

      John M. Wagoner ' »• Joseph Foster and John Glaub.
    In the Court of Common Pleas of Elk County. No. 154. May Term, 1881.
    “We think the matters stated in the application to open the judgment are insufficient.
    “ Mere forbearance, however prejudicial to the surety, will not discharge him. It is his peculiar business to judge of the damage to be apprehended from delay and to quicken the creditor in some way known to the law, and in default of which the loss incurred is necessarily to be attributed to his own supineness.
    “ Had the plaintiff released the lien of the judgment on Foster's land, or given him time for payment on new considerations, or had he by other affirmative act prejudiced the surety, the case would be different. Glaub might at any time have paid to plaintiff the judgment, been subrogated to his rights, revived the judgment, continued the lien, and thus protected himself.
    “The application for rule to show cause why the judgment should not be opened is refused, but without prejudicing the right of the petitioner to make application on other ground if such exist.”
    Glaub then appealed, assigning as errors that the Court erred in refusing to grant the rule and in making the above order.

      George A. Raihburn and Wallace Krebs, for the appellant.
    The Court will not quash the writ in this case, because the appellant has never had a day in court. The writs of scire facias, as shown by the returns of the sheriff under oath, were not served upon him. He had no notice, and was not heard, and could not be heard because of want of notice.

      John G. Hall and G. H. M’Cauley, for the appellee.
    This case is not within the statutory jurisdiction conferred by Act of 4th April, 1877. The application is not to open a judgment “entered by virtue of a warrant of attorney or on a judgment-note,” but a judgment of revival entered upon two returns of nihil. To extend the act to this case would be judicial legislation. To this the Court is not inclined, for it refused to enlarge the scope of the act so as to include a judgment upon an amicable scire facias: Lamb’s Appeal, 8 Norris, 411.

      February 27th, 1882.
   — Per Curiam:

The order of the Court, refusing to open the judgment, is under the caption of the case, May term, 1881, which was the scire facias to revive the original judgment. Indeed, it could not be otherwise, as the matter of defence set up was all subsequent to the original judgment of January, 1862. It is clear, then, that this case is not within the Act of April 4th, 1877, giving an appeal to this court. The fact that the judgment in the scire facias was on two nihils does not help the appellant.

Appeal quashed.


author: Sterrett, J.

text:
    HUNTINGDON COUNTY.
    January Term, 1882,
    No. 390.
    May 22d, 1882.
    Collom’s Appeal.
    1. A debtor, who is not a resident of this Commonwealth, is not entitled to claim the benefit of the Exemption Act of April 9th, 1849.
    2. Semble, that the proviso of the 4th section of the Act of May 8th, 1874, which says, “ that, any exemption law of this Commonwealth shall not be construed to extend to any debtor not a resident thereof,” is not confined to cases of foreign attachment issued'by justices of the peace under the preceding sections.
    Before Sharswood, C. J.; and Mercur, Gordon, Trunkey, Sterrett, and Green, JJ. Paxson, J., absent.
    Appeal of Samuel W. Collom from the decree of the Court of Common Pleas of Huntingdon County, distributing the proceeds of the sheriff’s sale of the real estate of Aaron Dunsworth.
    The real estate of the defendant, Dunsworth, was sold by the sheriff, April 8th, 1881, for $750, and the fund in court was referred to an auditor for distribution. The auditor found the facts to be as follows:
    Dunsworth resided in Huntingdon, where the debts were contracted upon which the judgments claiming the fund were entered. In 1873, together with John L. Etter, he gave a judgment to Samuel W. Collom for $750. It was entered up and became a first lien. In 1874, Dunsworth gave a judgment to G. B. Armitage, trustee, for $357.50, and Collom entered into an agreement that this latter judgment should have priority. In 1879, Dunsworth went to Youngstown, in the State of Ohio. He took his family there in January or February, 1880, and has resided there ever since. The fund for distribution, after payment of costs, was $689.25. The auditor awarded $894.25 to the Armitage judgment; $30.95 to a municipal claim, and the balance of $264.05 he applied to “Aaron Dunsworth’s claim, under the exemption law of 9th April, 1849.”
    Collom filed exceptions to the distribution, upon the grounds, inter alia, that the auditor erred in applying any part of the fund to the claim for exemption, and in not appropriating the balance to the payment of his judgment.
    November 21st, 18811 The Court below overruled the exceptions and confirmed the report of the auditor.
    Collom then appealed, assigning as errors, inter alia, that the Court erred in not sustaining these exceptions and in entering its decree.

      Simpson § Armitage and W. H. Woods, for the appellant.
    The Act of 1849, when it speaks of a debtor and his family, evidently means a debtor who is a resident of the State.
    Each State has its own exemption laws for the benefit of its own people. If Dunsworth can claim the benefit of the Act of 1849 and take away $300, and we should follow him to Ohio, and attempt to collect our claim there, he could claim the benefit of the exemption law of that State, — thus giving him a double exemption.
    It was not the intention of the legislature, in enacting the Exemption Act, to legislate against the interest of our own citizens who had honest claims, in favor of strangers and foreigners: Yelverton«.Burton,2 Casey,354; McCarthy’s Appeal, 18 P. F. Smith, 219.

      Brown ¿f Bailey, for Dunsworth, and John W. Mattern, for the borough of Huntingdon.
    If the legislature intended that the humane provisions of these laws should be enjoyed only by our citizens so long as they continued to reside in the State, it would have taken but very few additional words to have said so. It is not for this Court to make the law; it is its duty to construe it when made by the well-established rules of construction.
    An exemption law which allows the' citizens of Pennsylvania the privilege of exemption, and forbids it to citizens of Ohio, would be in violation of the Constitution of the United States: Ward v. Maryland, 12 Wallace, 418.
    October 4th, 1882.
   — The opinion of the Court was delivered by

Sterrett, J.

The only question in this case that requires any consideration, is that raised by the first, third, and fourth specifications of error, viz.: Whether a non-resident of this Commonwealth is entitled to claim the benefit of the Exemption Act of April 9th, 1849, which provides, “That in lieu of the property now exempt from levy and sale on execution, issued upon any judgment obtained upon contract and distress for rent, property to the value of $100, exclusive of all wearing apparel of the defendant and his family, and all Bibles and school-books in use in the family (which shall remain exempt as heretofore), and no more, owned by or in the possession of any debtor, shall be exempt from levy and sale on execution or distress for rent.”

The fact that the defendant in the execution, to whom part of the fund raised thereon was awarded under the claim of exemption, was a citizen of the State of Ohio, and had resided there with his family a considerable time before the execution was issued, was distinctly found by the auditor and is not now questioned. While non-resident debtors may perhaps be within the letter of the act, we do not think they are within its spirit. As was said by Álr. Justice Woodward in Yelverton v. Burton, 2 Casey, 351, and afterwards quoted approvingly by the present chief justice in McCarthy’s Appeal, 18 P. F. Smith, 217, we do uot legislate for men beyond our jurisdiction. The Act of 1849 was designed for our own citizens, for the families of the poor who are with us, that the rapacity of creditors might not strip them of every comfort and convenience.

These expressions were first used in a case differing in some of its features from the one now before us, but they aptly express what we conceive to be the true intent and meaning of our system of exemption, of which the Act of 1849 forms a part. That clause of the act, which specifically includes wearing apparel, “and all Bibles and schoolbooks in use in the family,” of the debtor, necessarily implies a domicil or family residence within the reach of State process. The Act of April 14th, 1851, Purd., 41B, pi. GO, expressly limits the benefit of the exemption provided therein to “the widow or the children of any decedent dying within this Commonwealth.” In like manner the exemption of sewing-machines, under the Act of 1869, exteuds only “to seamstresses residing in this Commonwealth.” In the case first above cited, it -was held that exemption cannot be claimed by defendants in foreign attachment. The Act of May 8th, 1874, entitled “ An Act to provide for the collection of debts against non-resident debtors,” provides, “That any exemption law of this Commonwealth shall not be construed to extend to any debtor not a resident thereof.”

It is contended that this proviso, contained in the fourth section of the act, applies only to eases of foreign attachment's issued by justices of the peace under the preceding sections. It is true the purpose of a proviso generally is to except something from the enacting clause, to qualify or restrain its generality, or to exclude some possible ground of misinterpretation; but this is not always the case. Taking into consideration the object of the act, as comprehensively expressed in its title, in connection with the phraseology of the proviso, we think the latter was not intended to be confined in its operation only to cases falling within the jurisdiction conferred by preceding sections of the act; but, on the contrary, it was intended to exclude all non-residents of the State from the benefit of any exemption law of this Commonwealth in any proceedings for the collection of debts due by them. But, whether this be so or not, we are satisfied the spirit of the Act of 1849, when properly construed, excludes the appellee. And it is right that it should be so. Each State has its own exemption laws for the benefit of its own citizens. If non-residents are permitted to participate in the benefit thus provided, they may claim it in every State in which they happen to own property. This would likely work great injury to creditors by withdrawing from their grasp money or property which should, in justice, be applied, to the payment of their claims.

Decree reversed at the costs of the appellee, Aaron Dunsworth; and it is now adjudged and decreéd that the sum of $264.05, erroneously appropriated to his claim, be paid to the appellant on account of judgment, No. 203, August term, 1878, S. W. Collum v. A. Dunsworth.


text:
    LACKAWANNA COUNTY.
    July Term, 1881,
    No. 30.
    February 22d, 1882.
    Hosie et al. versus McCann.
    1. The Act of April 17,1878, P. L., 17, providing for the division of counties, is not imperative in requiring all cases which may be removed into the court .of the new county to be removed, and the court of the county in which such case was originally brought may, upon a failure to reinove, continue to exercise jurisdiction.
    2. To a plea of another suit pending between the same parties for the same cause of action, the plaintiff replied that the defendants were not impleaded as alleged, nor were the parties in this and the former suit the same, nor is the former suit still depending; “but, after the said writ of summons was issued, the same was returned by the sheriff not served, and thereupon a second writ of summons, in the nature of an alias, was issued,” etc. Semble, that the replication was not double in the proper sense of the rule against duplicity.
    3. The court below, regarding some of the averments of the replication as stating matters of evidence and unnecessary, granted leave to the plaintiff to withdraw his replication and file an amended declaration tendering the single issue, “that the said former suit is no longer pending as by the records,” etc., and at the same time it entered judgment against the defendants on the demurrer that they answer over. Held, that it would be intended in the Court of Error that a day had been given to bring in the record pleaded in the Court below, and that the Court had it before them.
    4. The fact that one of several defendants, against whom a judgment was entered for want of a plea, had not been served, and had not appeared, is not ground for reversal, but is a mere formal error which can be remedied by entering a nonpros, as to him at any time.
    Before Sharswood, C. J.; Gordon, Paxson, Sterrett, and Green, JJ. Mercur and Trunkey, JJ., absent.
    Error to tbe Court of Common Pleas of Lackawanna County.

    Case by Martin McCann against J. P. Hosie, John Hosie, James Archbald, George H. Catlin, R. 'YV. Archbald, T. E. Archbald, and Mary W. Catlin, partners, trading as the Eairlawn Coal Company, Limited, for alleged damages caused by maintaining a coal-breaker adjoining the premises of the plaintiff.
    The summons was issued May 4th, 1877, in Luzerne County. It was returned non est inventus as to T. E. Arch-bald, and there was no appearance for him.
    A narr was filed on the same day that the summons issued, declaring against all of the defendants as partners.
    The defendants who had been served pleaded, June 11th, 1877, in abatement, “ that before the commencement of this suit, to wit, at the said Court of Common Pleas of Luzerne County, to January term, A.D. 1876, No. 626, the plaintiff issued a writ of summons and impleaded the said defendants in a plea of trespass on the case for the same causes of action in the declaration in this suit mentioned, as by the record and proceedings thereof remaining in the said court appears, and the parties in this and the said former suit are the same parties, and the said former suit is still depending in the said court, and this they are ready to verify.”
    The plaintiff replied “ that the said defendants were not impleaded in an action of trespass on the case brought by the said plaintiff to No. 626, January term, 1876, as alleged by the said defendants ,in their said plea, nor are the parties in this and the said former suit the same parties, nor is the said former suit still depending in the said court; but, after the said writ pf summons was issued, the same was returned by the sheriff not served, and thereupon a second writ of summons in the nature of an alias summons was issued, to which the defendants have pleaded as aforesaid in abatement.”
    The defendants demurred specially to this replication, setting forth as grounds of demurrer: (1) duplicity; (2) that the plaintiff had put in issue that the summons in the former action was returned by the sheriff not served, which was mere matter of evidence on the issue as to whether the former action was still depending ; (3) that the replication was multifarious, unintelligible and prolix.
    The Court of Luzerne County, Rice, P. J., made the following order on the demurrer:
    “ As we recollect the rule as to duplicity, it is that the plea may be double, but the replication cannot; but we do not understand that where there are several pleas, the plaintiff may not reply specially to each: see Commonwealth v. Connellsville Railroad, 8 P. F. 8., 26.
    “ The plea, however, in this case, is single, but the replication is clearly double, and tenders no one single issue.
    “ It is, therefore, bad. It replies, 1st, that the defendants were not impleaded to the number and term alleged; 2d, that the parties are not the same; 3d, that the former suit is not still depending. There are clearly here three distinct issues tendered.
    “ Again, if the replication be that the former suit is not still depending, it is complete when this is averred, but the replication goes on to show why the defendants were not formerly impleaded, and why the suit is not still depending, ,by averring that the former summonses were never served, and that thereupon the suit was discontinued, and a second writ issued. Of course, these are matters of evidence, and were unnecessarily included, and, therefore, against the rule on that subject.
    “Upon the argument of the case, however, the plaintiff asks leave to file an amended replication tendering the single issue that ‘ the said former suit is no longer pending as by the records,’ etc., concluding with an offer to verify. This is a good replication, and was conceded to be such by defendants’ counsel. Leave is, therefore, granted to withdraw his replication, and to file his amended replication, and thereupon judgment is entered against the defendants on their demurrer that they answer over.”
    On the same day the plaintiff filed an amended replication. February 17th, 1880, without a rule, the plaintiff’served notice upon the defendants to plead in bar to the declaration within ten days or judgment.
    Section 5 of Rule 25th of the Court of Luzerne County is as follows:
    “ Section 5. In every ease, where the defendant’s appearanee is recorded (and bail to the action entered, if it is a suit where bail is required), rules to state, declare and plead, and for other pleadings, may be entered at the prothonotary’s office, at any time after the first day of the term to which the process issued is returnable, and. on four weeks’ notice thereof, in writing to the adverse party, or his, or her, or their attorney on record, and upon failure to state, declare, plead, or enter other pleadings accordingly, a judgment in the nature of a judgment by default, or a non pros., may be entered, which judgment or non pros, may be opened, set aside, or taken off at the discretion of the Court, when deemed necessary for the purposes of justice : Provided, The above rule is not to preclude the plaintiff or defendant in special cases, or a single judge thereof, from enlarging the time to state, declare, or plead, having first given reasonable notice in writing to the opposite party, or attorney, of the intended application.”
    May 17th, 1880. Judgment was entered by the prothonotary against the defendants for want of a plea.
    The Act of April 17th, 1878, P. L., 17, entitled “An Act to provide for the division of the counties of this Commonwealth, etc.,” section 14, provides: “The lien of all mortgages, judgments, mechanics’ liens, verdicts, and all records which shall have been made and entered in the original county, up to and including the day of the organization of said courts, shall not be affected by the establishment of said new county, but to proceed thereon certified copies thereof shall be made by the prothonotary or other proper officer, which shall be entered by the like officer of the new county, and like proceedings had as in the original.”
    A supplement to this act, approved April 22d, 1879, P. L., 26, provides, Section 1: “ That, upon the erection of any new county, as provided in said act to which this is a supplement, all local actions, originally commenced in the county from which said new county shall have been taken, but which after the division appertain and belong to the territory embraced within the said new county, shall, upon application of any of the parties thereto, and the order of the Court of the original county, or of a law judge thereof, be removed to the said new county, and in such case the same shall forthwith be certified, so far as the docket entries of the same are concerned, and the files connected therewith shall also forthwith be delivered by the prothonotary or other proper officer of the original county, to the like officer of the new county, who shall enter the same of record and in file respectively, and like proceedings shall thereafter be had thereon as fully and completely as though the said actions had been commenced in the new county ; and the same shall be the case with all transitory actions, originally commenced as aforesaid, where the parties to the same reside within the said new county, and shall indicate by writing filed in the office of the prothonotary or other proper clerk of the original county their desire to have the same removed as aforesaid, etc.”
    Under the provisions of this act and its supplements, the county of Lackawanna was erected August 21st, 1878, and its courts were opened October 24th, 1878. On the 17th of May, 1880, on the application of the plaintiff, the case was ordered to be removed as a local action to Lackawanna County, and the records were there filed, August 31st, 1880.
    A writ of inquiry was issued September 1st, 1880, under which the jury assessed the damages against all of the defendants at $1400.
    Subsequently, the defendants took a rule to strike off the interlocutory judgment, and set aside the writ of inquiry and the inquisition under it.
    The Court below, Handley, P. J., discharged the rule, saying:
    “In these proceedings we are asked to strike off a judgment entered in the Court of Common Pleas of Luzerne County. We are under the impression that we have no authority to make sueh an order. Such an application must be made to the Court making the order for judgment.
    “ It was admitted on the argument of this rule, that the defendants were limited partners at the time the summons was served.
    “ The judgment was entered against all of the defendants. One of them, T. F. Archbald, was not served, and did not appear. It was contended that for this reason alone, if for no other, this rule must be made absolute.
    “But this point, in our opinion, is ruled by the case of Ganzer v. Fricke, 7 P. F. S., 316. In this case, Agnew, J., said: ‘ The 6th assignment of error is to the entry of the nolle prosequi as to John Carroll, who was served as a partner with Ganzer and Fisher.....There being no sufficient proof on the trial that Carroll was a partner, this fact was pressed upon a motion for a new trial, and the judge refused the motion on the condition of the plaintiffs entering a nolle prosequi as to him. This was merely equivalent to an amendment by striking off Carroll’s name. He could have done this before verdict, and we see no reason why it should not be done after verdict. Under the Act of 1846, amendments can be made in ‘ any stage of the proceedings.’ It was, therefore, not too late to strike out the name of Carroll before judgment:’ see, also, Shamburg ¶. Noble, 30 P. F. Smith, 160 ; Fidler v. Hershey, 9 Norris, 366. If the Court, that directed judgment to be entei’ed, will, at any time hereafter, order it to be stricken off on rule to show cause, then the plaintiff may enter a nolle prosequi, as to T. E. Archbald, the person not served and not appearing. Under the present showing, we cannot do otherwise than to discharge this rule.”
    The defendants then took out a writ of error, assigning that the Common Pleas of Luzerne County erred:
    1. In entering judgment against defendants on their demurrer to plaintiff’s replication, and ordering said defendants to answer over.
    2. In not giving defendants a day to try the issue of fact presented by the amended replication of the plaintiff’.
    3. The Common Pleas of Luzerne County had no authority over this action after the 24th day of October, A. D. 1878, when the courts of the new county of Lackawanna were organized, the land affected being within the teri’itory embraced by said new county, and the judgment signed for want of a plea in Luzerne County, on May 17th, 1880, was void.
    4. The judgment for want of a plea was irregular; plaintiff having declared against all of the defendants, as,partners, one of the defendants, T. F. Archbald, not having been served with summons, nor appearing.
    5. Plaintiff was not entitled to judgment for want of a plea, without a rule to plead, and notice pursuant thereto, and the judgment taken by default, for want of a plea, upon a simple notice to plead, without a rule was irregular and erroneous.
    6.'The judgment for want of a plea is erroneous, having been taken against the defendants generally, one of the defendants, T. F. Archbald, not being in court.
    7. 8,9 and 10. The Common Pleas of Lackawanna County erred in not striking off the judgment, and not setting aside the writ of inquiry.

      P. W. Archbald and 8. B. Price, for the plaintiffs in error.
    The demurrer to the replication presented an issue of law. The opinion of the Court shows that the grounds were well taken. The issue was, therefore, in favor of defendants, and the only consistent ruling was to sustain the demurrer, with leave to the plaintiff to amend: McElroy v. R. R. Company, 7 Phila., 206 ; Wood v. Flannigan, 2 W. N. C., 406: Martin v. Dearie, 1 W. N. C., 9.
    The amended declaration presented an issue of fact. It completed the issue on the plea of a former action pending, and should have been followed by a trial on the record on a day assigned : Stephens on Pleading, p. *239 ; Crutcher v. Commonwealth, 6 Wharton, 351; Ferrel v. City, 2 W. N. C., 187.
    The Court conceives the amendment as made, and the demurrer laid to the amended replication, and as though it were an issue at law on the demurrer instead of fact on the replication, overrules the demurrer, and enters judgment of respondeat ouster: Stoever v. Gloninger, 6 S. & R., 68 ; Insurance Company v. Whitney, 20 P. F. S., 248.
    The judgment being expressly on the demurrer is proof that no trial was had on the plea.
    Jurisdiction over the case in Luzerne County fell with the division of the county, and the judgment was ineffectual: Kelly v. Tate, 43 Ga., 535 ; Heath v. Gardner, 10 W. N. C., 497.
    The judgment for want of a plea was irregular, one of the defendants not being in court: Sherer v. Bank, 9 Casey, 138 ; Boaz v. Heister, 6 S. & R., 18.
    Plaintiff' could not demand a plea without a rule : Green v. Hallowell, 9 Barr, 53 ; Bisbing v. Albertson, 6 W. & S., 450.
    There is nothing in the rules of Court to warrant it: Bradley v. Dusenberry, 7 W. N. C., 146; Laird v. Potts, 6 W. N. C., 56.
    Being taken by default, and one of the defendants not in court, it is bad as to all: Boaz v. Heister, 6 S. & R., 18; Donnelly v. Graham, 27 P. F. Smith, 274; Jones v. Orum, 5 Rawle, 249.

      JD. II. M. Hannah, and Palmer, JDe Witt Fuller, for defendant in error.
    The original replication was not bad for duplicity. It contained a statement of some facts not strictly necessary to the'issue, but it raised no other issue : Stephens on Pleading, 250, 365; Gould’s Pleading, 394, 397; City v. Wister, 11 Norris, 404; Blair v. Singerly, 7 Phila., 230.
    The replication being, therefore, good, the demurrer should have been overruled, and judgment of respondeat ouster entered, without a trial by the record.
    It will be presumed that the issue raised was settled according to law: Gram’s Appeal, 4 Watts, 43 ; Cromelien v. Brink, 29 Penna. Stat., 522; Spring Brook Road, 64 Penna. Stat., 451; Morgan v. Neville, 74 Penna. Stat., 52.
    The division of the county did not per se oust the Court of Luzerne County of its jurisdiction.
    Section 14 of the Act of 1878 is a legislative curiosity. If construed strictly according to its language, the occupation of the officers of Luzerne County would have been gone indeed, and Lackawanna County would have enjoyed a monopoly of all proceedings for the two counties. To avoid a result so ridiculous and so repugnant to the purposes of the act and to all sane legislation, and, at the same time, to preserve both the language and the intent so far as possible, without a sacrifice of one to the other, the section is susceptible of but one construction. The words “ and all records ” must be referred to the words “ The lien of” in the opening part of the section. The section would then run : “ The lien of all mortgages, judgments, . . . and all records.” After the specification of particulars, the words “ all records ” were evidently added as a sweeping phrase to include anything that might have been omitted in the bill of particulars. This is very common, and has been a fruitful cause of legal debate for centuries past, both in England and this country. It was done in this case asan excess of precaution to avoid any possible injury to vested rights. It is certainly clear that the legislature did not intend to-remove all the things named in this section, and the subsequent Act of 1879 is a fair legislative admission that no adequate provision had been made for the removal of any. To-construe this section as covering all judicial proceedings affecting real estate within the new county is not construction, but legislation, and would be- preposterous if it were attempted by a competent power.
    The act does not require but permits removal of causes.
    If there is any difficulty of this kind, the defendants waived it.
    The error in taking the judgment against Archbald, who was not served, may be cured by amendment: Prevost v. Nicholls, 4 Yeates, 479; Riddle v. Eindlay, 6 S. & R., 227 ; Downing v. Lindsay, 2 Barr, 382.
    The rules of Court should have been construed below.
    March 6th, 1882.
   — Per Curiam:

We find no error on this record. The Court of Luzerne confessedly had jurisdiction when the action was commenced, and the act erecting Lackawanna is not imperative in requiring all cases to be removed. We think the replication to the plea was not double in the proper sense of the rule against duplicity. When judgment was given on the issue raised by the plea in abatement, it will be intended that a day had been given to bring in the record pleaded, and the Court had it before them. The fact that Archbald, one of the defendants, was not served, was a mere formal error, and could have been remedied by entering a non pros, as to him at any time.

Judgment affirmed.


author: — Per Curiam :

text:
    January Term, 1882,
    No. 317.
    February 22d, 1882.
    Tripp versus City of Scranton.
    In an action of debt for taxes, under the Act of May 23d, 1874, P. L., 230, see. 37, it is not necessary to show that the tax is a lien on any particular real estate. It is enough that the tax was duly assessed against the defendant.
    Before Sharswood, C. J.; Gordon, Paxson, Sterrett, and Green, JJ. Merour and Trunkey, JJ., absent.
    Error to the Court of Common Pleas of Lackawanna County.

    Debt, by the City of Scranton against Ira Tripp, to recover city tax, as registered in the city lien docket. The Act of May 23d, 1874, P. L., p. 230, provides, inter alia:

    “ Section 36. After the first day of January, in each and every year, the city treasurer shall place correct and detailed statements of taxes, respectively due on real estate, in the possession of the city solicitor, who shall cause the said taxes upon real estate remaining unpaid, to be registered in the name of the city, if city taxes, and in the name of the proper school district, if school taxes, and against the person or persons charged in the duplicates with the same; or, if any property has been transferred, upon which such tax has been assessed, against the person or persons who may have become the owner or owners of (the) property, in the office of the prothonotary of the proper county, who shall keep a separate book for that purpose, to be called city-lien docket; and all taxes so registered shall be and continue to be liens from the date of the levy thereof on the real estate upon which they have been assessed, for the term of five years. , . . . .
    “ Sec. 37. That recovery may be had on claims for said taxes.....registered in pursuance of this act, and the laws and ordinances of each of said cities, in the Court of Common Pleas for the proper county, by action of debt, to recover a general judgment against the debtor or debtors as now provided by law, or proceedings thereon may be had by scire facias, as in the case of mechanics’ claims; and the claims so registered shall be prima facie evidence of the amount thereof, and of the same being due and owing, and judgment shall be entered by default thereon, unless the defendant or defendants shall file his, her, or their affidavit of the nature of his, her, or their defence, as required in cases where the plaintiff has filed his copy of the cause of action in such court, and the judgment and process thereon shall be with like effect as in other cases: .... And provided,farther,
      That no such apportionment shall affect the personal liability of the owner at the time of the assessment or register for the whole amount of the tax, interest, and costs, including the per centum commission for delay of payment.”
    The city of Scranton is a city of the third class, and it accepted the provisions of the above act.
    The lien filed was as follows:
    “ City of Scranton v. Ira Tripp :
    “ Common Pleas of Lackawanna County. City tax, $244.28. Levied October 21, 1877, $244.28.
    “ Scranton School District v. Ira Tripp:
    “Common Pleas of Lackawanna County. City tax, $156.60. Levied January 2d, 1878, $156.60.”
    After the commencement of the present suit the plaintiff amended the record as follows :
    “ On motion, Court allows the tax lien in the above case to be amended by adding the following description:
    “ On real' estate, consisting of a lot and two-story brick building, used for a store, on the west corner of Penn Avenue and Spruce Street, and a similar building on the corner of Wyoming Avenue and Linden Street, Eighth Ward; also on real estate in the Eirst and Second Wards.”
    The defendant filed a special plea, setting forth “that there is no such lien filed as will support this action.”
    Upon the trial in the Court below, before Hand, A. L. J., the plaintiff offered in evidence the lien and lien-book. He then proved by the city clerk and his deputy, that the tax of Ira Tripp was assessed on real estate.
    The defendant presented no testimony, and asked the Court to charge the jury that, under the evidence in the case, the plaintiff was not entitled to recover.
    The Court charged the jury inter alia:

    “ The Act of Assembly makes the registry of the taxes evidence of the claim of the city. The plaintiff has shown a registry of the taxes in this case; the only question is whether it was a tax upon real estate. He has put in the duplicate of the city in the hands of the treasurer of the city, shows from the evidence that it is a tax upon a certain class of property which is only rated as real estate, as stated by the witness. He has also put in the assessment books in the different wards in which this tax is levied, showing an assessment against this defendant in these wards upon real estate. Upon this showing, we think, the plaintiff has made out a prima facie case, and is entitled to recover the amount of taxes shown, with interest upon the same from the time of the registry of the taxes down to the present day.
    “ [The defendant claims there is nothing to show where this property is, that it is not properly defined, properly described, and that there is nothing to show here that this tax is a lien upon any particular real estate, that the plaintiff' is obliged to pursue strictly in all respects the Act of Assembly which has been passed relating to city taxes, in a claim of this kind, where he sues personally against the defendant.] All these questions we hold against the defendant.
    “We hold as matter of law that the plaintiff' makes out her claim when she has shown an assessment upon real estate, and a registry of the taxes, and the production of that in evidence here. It is not a question of lien. If this was a scire facias upon this claim, by which they were pursuing any particular real estate, then the points made by the defendant might have some foundation ; but this is not an action of that kind, it is an action of debt against the defendant. The defendant would be entitled to show in this case as part of the defence that a mistake had been made, that he didn’t own real estate, or that it had been conveyed to other parties prior to the assessment. Of course it would relieve him of the taxes. But a conveyance subsequent to the assessment of the taxes would not show a release from liability. It is provided in this very act that no conveyance of real estate, dividing up of real estate and apportioning it among different owners, shall affect the personal liability of the owner from the time of the assessment for the whole amount of tax, and costs and commission for delayed payment. [Taking this whole act together, we think the plaintiff has made out her case and is entitled to recover. You will, therefore, render a verdict for the plaintiff for the sum of two hundred and forty-four dollars and twenty-eight cents, and the interest.] ”
    January 20th, 1882. Vei’dict for the plaintiff for $244.28, upon which judgment was afterward entered.
    The plaintiff then took a writ of error, assigning as errors those portions of the charge within brackets.

      1. J. Post, for plaintiff in error.
    There must be some certain and definite assessment and lien as a foundation for an action: Allentown v. Horwer, 9 W. N. C., 199; Pittsburgh v. Oluley, 16 P. F. Smith, 449.
    The assessment does not show the particular property against which the tax is assessed, and even the assessor was ■not called to show what land was assessed. The duplicate furnished the city treasurer does not show any particular real estate, and the so-called lien filed by the city-solicitor does not even show that the tax is on any real estate, but combines taxes, both school and city, for different years, and taxes for two different years, and in three different wards. The so-called amendment allowed by the Court is not filed as an amendment to the lien, but is filed in this suit, and the Court calls it an amended statement. But there is nothing to sustain it or to found it on, and it does not even state in what State or city the land is situated; yet the city solicitor, with nothing to base it on, assumes to say that the tax is on the real estate' designated by him, which, in his opinion, is the proper real estate to levy the tax on. This suit is an action of debt on a lien, and the foundation of the action must be in a proper and legal form before any action can be sus: tained on it.

      1. H. Burns, for defendant in error.
    The question of lien does not enter into the case at all, for we are not seeking to enforce a lien against any particular property, but simply to recover a debt owing by Ira Tripp to the city of Scranton; Matthews v. Scranton.
    March 6th, 1882.
   — Per Curiam :

The Act of May 23d, 1874, section 37, Pamph. L., 230, expressly provides that recovery may be had on claims for taxes, “ by action of debt to recover a general judgment, or proceedings may be had by scire facias, as in the case of mechanics’ claims.” In the former case it is clearly not necessary to show that the tax is a lien on any particular real estate.

It is enough that the tax was duly assessed against the defendant.

Judgment affirmed.


author: — -Per Curiam:

text:
    July Term, 1881,
    No. 96.
    February 20th, 1882.
    The Western Assurance Company of Toronto versus Ackerman et ux.

    1. The fact that a policy of insurance was made out in the name of a married woman, and that she was in possession of the goods insured at the time of the fire, was, in a suit by her on the policy, prima facie evidence, as against the defendant, of her ownership.
    2. A policy of fire insurance provided that “ the assured should, if required, submit to an examination or examinations under oath, by any person appointed by the company, and subscribe thereto, when the same is reduced to writing.” An agent of the company testified that he met the husband and agent of the assured, and requested him to produce her. He further testified: “I said we desired to transact our business with her. He said he would do just as well, he was her husband; we could not see her, and, if we did,' she didn’t know anything about it, and wouldn’t give us any information.” Held, that this was not evidence that the assured had refused to submit herself to examination under oath.
    3. The Court charged the jury: The rule of law is that, when a company receives proofs of loss and makes objections to them, they are bound by the objéctions they make; and if these objections are met in the next proofs of loss, and the company then remain silent, they cannot afterwards raise new objections which existed at the time the first proofs were furnished. If, therefore, the 'Company did retain proofs of loss dated 22d of March, 1879, and remained silent in regard to the invoices alleged not to be furnished, and made no objections thereto, the company are to be considered as waiving the defects as to form. Held, not to be error.
    4. The defendant company offered to prove by its agent that the husband and agent of the assured “ gave him a list of the parties and their places of business, from whom he alleged he had purchased the goods insured, and said to him he did not believe these firms would give him the bills, and directed him to go to these firms and get the bills for the goods ; that the witness did take these names and places of business and go to them and ask them for bills, which they refused to give because no goods had been sold to A. (the agent) or the assured, and therefore they were unable to give such bills.” The Court admitted the evidence only so far as to show that the agent of the assured gave the names of the parties from whom he alleged he had purchased; that the witness went to them, and that they refused to give the bills of invoice. Held, that the excluded testimony was hearsay and incompetent, and that the assured was not bound by the answers.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Sterrett, and Green, JJ. Trunkey, J., absent.
    Error to tbe Court of Common Pleas of Lackawanna County.

    Debt, by David'Ackerman and Betty Ackerman, bis wife, in right of said wife, against tbe 'Western Assurance Company of Toronto, Canada, upon a policy of fire insurance.
    On the 3d of August, 1878, tbe defendant company issued to Betty A.ckerman a policy, amounting to $2500; $2000 upon stock of boots and shoes, manufactured and in process of manufacture, and $500 on machinery, tools, etc., in tbe second and third stories of a building in Scranton, Pa., occupied by the assured. $7500 additional insurance was permitted, which was equally divided between three other companies. Among the clauses of the policy were the following :
    “ The assured shall, if required, submit to an examination or examinations under oath, by any person appointed by the company, and subscribe thereto, when the same is reduced to writing; and shall also produce their books of account, bills, invoices, and other vouchers, and exhibit the same for examination at the office of the company, and permit extracts and copies thereof to be made. The assured shall also produce certified copies of all bills and invoices, the originals of which have been lost.
    “ Persons sustaining loss or damage by fire shall forthwith give notice of said loss to the company, and, as soon thereafter as possible, render a particular account of suck loss, signed and sworn to by them, stating whether any and what insurance has been made on the same‘property, giving copies of the written portion of all policies thereon; also the actual cost value of the property, and the interest thereon; for what purpose and by whom the building insured, or containing property insured, and the several parts thereof, were used at the time of the loss; when and how the fire originated ; and shall also produce a certificate of a magistrate or notary public, stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the. assured has without fault sustained loss on the property insured to the amount, which such magistrate or notary shall certify.”
    Upon the trial in the Court below, before Hand, J., the plaintiff offered the policy in evidence, and called David ■Ackerman, who testified, inter alia, substantially:
    “The property insured was destroyed. The fire occurred February 23d, 1879. The same morning I notified the agent, Smith. I got the policy in August, 1878. Smith issued them. I got it about the 10th of August for Mrs. Betty Ackerman, my wife. Smith was there when the policies were issued, and he looked over the stock and machinery. Ve had taken an inventory about August 1st, 1878. The value of the stock of goods at the time of the fire amounted to between $15,000 and $16,000. That includes machinery. Take about $2500 for machinery out of it, and that will tell the goods.”
    In rebuttal he testified:
    ■ “ Geiser bought in the property for Mrs. Ackerman. She •gave a check for it from her money. The property was in the factory and remained there. She was in possession of it. The goods Betty Ackerman bought were stored here in this building, $16,900 worth. They were moved back into the factory and went in there, and what were not sold were there at the time of the fire. What was left at the time of the fire can be seen by the inventory.”

      Jacob Geiser, for the plaintiff, testified:
    “I was bookkeeper and done the shipping, August 1st, 1878. Bookkeeper for Mrs. Ackerman.”
    In rebuttal he testified:
    “I think I know when Mrs. Ackerman’s jobbing goods were removed from this building to the storehouse. I assisted in removing them. I think it was in May or J une, 1877. I know about how much we moved back, and I know about how much was there. I think there was about $15,000 worth at the constable sale of Ackerman & Co., Limited. Mrs. Ackerman told me to buy tbe goods in for her and she would pay for them. I bought them in. She paid for them.”
    There was evidence that plaintiff' sent proofs of loss to the defendant four or five days after the fire. March 14th, 1879, the defendant wrote to the plaintiff’ as follows:
    “ Upon examination of the papers submitted to the office purporting to be proofs of loss in case of policy No. 301,874, issued to you through the Scranton agent of the company, I beg to give you notice that the same are imperfect, and cannot be admitted or received as proofs of loss owing to the' following defects, to wit: The papers are not sworn to by the party assured. Second. The papers allege that the actual cash value of the property destroyed, referred to in schedule A, to be $13,452.27. This schedule is defective, inasmuch as it does not set forth properly the'cost, present sound value and damages on each article therein enumerated, or otherwise support the statement made as to the actual damage, as is required by the terms and conditions of the policy. Third. The papers are defective, inasmuch as they do not set forth the names of the different parties occupying the premises previous to the fire. Fourth. The papers do not state that the interest of the assured was the sole and unconditional ownership of the property alleged to have been destroyed. The papers submitted being so imperfect and incomplete as that they do not comply with the terms and conditions of the policy, you are therefore notified .that the same are not accepted or received as proofs of loss by this company.”
    Further proofs were sent by the plaintiff March 22d, 1879.
    Counsel for defendant called J. R. Mulliken, one of the adjusters, who testified, inter alia:

    “Question. State whether or not you saw Ackerman at the St. Charles Hotel subsequently.
    “Answer. I did.
    “ Q. State if you made any requests from him, and, if so, what were they?
    “ A. I stated to Ackerman, in order to arrive at his loss, it would be necessary to have his books and papers of the evidence of amount of stock.
    ^ * * *
    “ Q. "We wish to know if you made any request of Ackerman at any time when Knowles was present.
    “A. Yes, sir.
    “ Q. State those requests.
    “A. Knowles and Goodrich were at the hotel in company with myself when. Ackerman arrived, and his counsel, MeKune, arrived there with those three books, — those two and another book, — and he proposed to go on at once with the examination of those books and ascertain his loss. I said to Ackerman that I understood his name was David Ackerman, and he was not the party .we wanted to see at all. Who was Betty Ackerman? He said Betty Ackerman was Mrs. Betty Ackerman, his wife. I said we desired to transact our business with her. He said he would do just as, well; he was her husband; we could not see her, and, if we did, she didn’t know anything about it and wouldn’t give us any information. Upon consultation with my colleagues, Knowles and Goodrich, we concluded to go on and examine these books.
    “Q. State whether you requested David Ackerman to pi’oduce Betty Ackerman.
    “A. I did, sir.” •
    By counsel for plaintiff:
    “Q,. Produce Betty?
    “A. Yes, sir.
    “ Q. What did he say ?
    “ A. I have repeated what he said.
    * *• * * * * • #
    “ Q. What books and papers did you ask him to produce, if any ?
    “A. I asked him to produce his stock book, his sales book, his cash book, his ledger, his previous inventory, and all the papers in support of that inventory. He said he could not produce the vouchers in support of the inventory, but would give the names of the parties from whom he purchased goods.
    “Q. Well, did he give you the names?
    “ A. I said: Ackerman, you will be required to produce the original bills or the duplicates thereof. He said he could not do it; I don’t know that they will furnish me the bills, but I will give you the names and you can go and see the parties and get the bills. I said it is not my business to get these bills, but inasmuch as they are in New York, and it will be easy for me to see these parties, I will, and I went in pursuance with this arrangement, with Ackerman, to see these parties; X have a list of the names of the parties ’he gave me.
    ^Q. Is this the list of names?
    A. That is the original list with my statement on it.”
    By counsel for plaintiff:
    “Q. Whose handwriting is it in?
    “A. Goodrich’s; Goodrich wrote this list,”
    Counsel for plaintiff objected to the list.

      Counsel for defendants propose to prove by the witness on the stand that Ackerman gave him a list of the parties and their places of business from whom he alleged he had purchased the goods inventoried in the inventory of 1st August, 1878, and said to him he did not believe these firms would give him the bills, and directed him to go to these firms and get the bills for the goods which are in the inventory of the 1st of August, 1878; that the witness on the stand did take these names and places of business and go to them and ask them for bills, which they refused to give, because no goods had been sold to Ackerman or the assured, and therefore they were unable to give such bills.
    Counsel for the plaintiff objected to the offer as irrelevant, incompetent, and not the best evidence.
    The Court: “ We will allow this evidence simply this far, that Ackerman gave the names from whom he alleged he had purchased; that this witness went to these parties, and these parties refused to give the bills of invoice. As to their reason it is no evidence. They cannot be bound by conversations given by them in New York. You may show as a fact that he did not buy of them.”
    An exception was noted for defendants, and at their request a bill was sealed.
    Counsel for defendants proposed to give to the witness a list of the names furnished by Ackerman in the handwriting of Ackerman.
    “ Q. I understand the Court has directed that all we may show is whether you went to any of these places, or whether you could get bills, not tb say anything that was said to you by these parties.”
    The Court: “The only object of this evidence is to account for the non-production of these bills.”
    “ Q. Who furnished this list ?
    “ A. This paper was handed me by Ackerman.
    “Q. The whole of it just as it is?
    “ A. The whole of it as it is ; there are some additional names he furnished subsequently.
    “ Q,. State whether you went to any of these firms.
    “ A. I went to every firm named on this list in the city of New York.
    “ Q,. You went there ; what did you ask for?
    “A. I want to state that the firm of Johns & Cromer never were in New York, never were found, nobody in New York knew them.
    “ Q. You could not get the bills ?
    “ A. No, sir.
    “ Q. To whom did you apply for the bills ?

      “ A. To the firms.
    “ Q. And you say they didn’t give.you any bills ?
    u A. They didn’t give me any bills ; one firm wanted to kick me outdoors because I came from Ackerman.
    “ Q. State whether you required Ackerman to produce certified bills; did you ask Ackerman anything concerning certified copies of bills ?
    “A. I did; I demanded according to the terms of the policy.
    “ Q,. Did you waive it ?
    “ A. No, sir, I didn’t waive it.”
    There was much testimony produced by both plaintiff and defendant as to the value of the property destroyed.
    Counsel for plaintiff asked the Court to charge :
    “ That, by receiving and retaining, without objection, the proofs of loss dated 22d March, 1879, furnished to them by the plaintiff, the defendant has waived any objection he might have thereto, and said proofs are to be taken as received in form and substance.”
    The Court answered : “Ve answer this as follows: [The rule of law is that when a company receives proofs of loss and makes objection to them, they are bound by the objections they make, and if these objections are met in the next proofs of loss, and the company then remain silent, they cannot afterwards raise new objections, which existed at the time the first proofs were furnished ; if, therefore, the company did retain proofs of loss dated 22d March, 1879, and remained silent in regard to the invoices alleged not to be furnished,- and made no objections thereto, the company are to be considered as waiving the defects as to form.] We, therefore, affirm this point.”
    Counsel for defendant asked the Court to charge, inter alia :

    “ 6. If the jury believe from the evidence that the assured refused to present herself for examination under oath regarding the fire and loss and damage resulting therefrom, as required by the condition of the policy, there can be no recovery, and the verdict must be for the defendant.”
    Answer of the Court: “ As a general proposition, we affirm this point. It was obligatory upon the plaintiff to present herself for examination, if she was demanded, as required by the clause referred to in the policy which we have read to you. But, we say further: the plaintiff, Betty Ackerman, must have had distinct and actual notice that this clause of the policy is brought to bear upon her. She must have distinct notice that the company request her to submit to examination under oath by a person appointed by the company, and then she must have refused to appear. It is not enough that the agent should say,£ I wish to see Mrs. Ackerman,’ and for him to answer, ‘ He acted for her, and there was no necessity in sending for her,’ and the company did not by actual notice, apprising her of the demand, insist upon her appearance. That is not enough; they should say distinctly and give her notice distinctly of what they wanted her for. I do not think, gentlemen, that the evidence in this case is sufficient to bring the defendant or the plaintiff within this clause of the policy. If, however, you differ from us on the evidence in this regard, and the evidence shows you that the plaintiff had distinct notice that the company was demanding their rights under this clause of the policy ^ then you may find as this sixth point requests us to charge.”
    The Court further charged the jury, inter alia:

    “ On such a contract the plaintiff sued. She must, in order to recover, satisfy you first that she was, at the time of the fire, the sole and unconditional owner of all the property she seeks to recover for, and that it is covered by the description of the property mentioned in the policy.
    ££ In the first place, she must satisfy you that she has complied with all terms of the contract made obligatory upon her by the language thereof, or that, if she has failed in the compliance, the defendants have waived or excused, or the law has excused her therefrom.
    *******
    “ [Now, has the plaintiff shown a loss under this policy ? This is a question of fact for you. In the first place, has the plaintiff proved to your satisfaction that she owned this property? The testimony in this case before you is that which is produced by the policy itself, that which is produced by the witnesses, particularly Mr. Ackerman, Mr. Geiser, and by all the testimony in the case bearing upon the subjuct of ownership, whatever it may be. We say to you that possession is prima facie title, prima facie evidence of ownership.] This question is a question of fact for you.
    “ The next question is, if this plaintiff owned this property, what amount of loss has she sustained ?

      “ [The defendant claims that the goods were not there: the amount of the goods that the plaintiff claims; that the plaintiff has dealt unfairly with them by asserting the stock that did not exist. Have they sustained their case in this particular ?] It is all for you.
    “ The plaintiff took the policy for $2500 concurrent, with three others. The plaintiff swears to the amount of his goods; refers to his inventories, invoices, etc., which he says are correct. As we have said before, the defendant shows by persons, who were in the store shortly before the fire, that they did not consider there was such a stock there as the plaintiff has sworn to. They show by Mr. Neal, who had a conversation shortly before the fire with Mr. Ackerman, and he said he had a small stock, also by other witnesses that the stock appeared to be small.
    “ Now, gentlemen, around this point is the main controversy. It is alleged, on the part of one side, that this plaintiff is perpetrating a fraud upon this defendant; they claim to have shown to you enough to sustain it. Upon the part of the plaintiff, they claim to have shown conclusively to you the amount of goods that were there, as fully and as completely as it was possible to show the state and existence of the stock of goods that has been destroyed, or mainly destroyed by the fire. Now, all the circumstances surrounding this is for you. Use such judgment as men of common sense use in such a matter.”
    June 16th, 1881. Verdict for the plaintiff for $2471.32, on which judgment was subsequently entered.
    The defendant then took out a writ of error, assigning as errors the portions of the charge within brackets, the answer to defendant’s sixth point, the answer to plaintiff’s point, and the rejection of the evidence as above.

      Lemuel Amerman and Henry H. Hess, for plaintiff in error.
    1. No recovery can be had upon a policy against loss by fire, unless the insured has an interest in the subject insured at the time of the loss, and that interest must be averred and proved: Howard v. Albany Ins. Co., 3 Denio, 301; Murdock v. Chenango Ins. Co., 2 Comst., 210; Eowler v. New York Ins. Co., 26 N. Y., 422; Illinois Eire Ins. Co. v. Marseilles Mfg. Co., 1 Gilman, 236.
    A commission-merchant, a storekeeper, a wife may be in possession of property, and not be the owner.
    2. “ The defendant claims that the goods were not there, the amount of the goods that the plaintiff claims ; that the plaintiff has dealt unfairly with them by asserting the stock that did not exist. Have they sustained their case in this particular?” could but mislead the jury. It was equivalent to saying that the defendant must prove that the stock claimed for was not there. The defendant is liable for the full amount of the policy, unless they show you that the stock they insured in the policy was not in the fire, or not destroyed. The assured must not only prove that there has been a loss, but he must also prove its amount.
    3. The request to the agent of the assured to produce her was absolute and certain. The refusal was just as absolute and certain.
    4. Where a policy contains a clause requiring the assured to produce “ certified copies of all bills and invoices, the originals of which have been lost,” the condition must be complied with, or it must be shown that it was impossible for the assured to do so, or that its performance was waived: O’Brien v. Ins. Co., 68 N. Y., 111.
    These certified copies of bills and invoices the learned judge confused with the proofs of loss, and instructed the jury that if no objection was made to the proofs of loss, and having remained silent in regard to the invoices alleged not to be furnished, the company are to be considered as waiving the defects.
    5. The Court refused to admit the answers of the parties to Mullikin.
    It was the assured’s duty to furnish these bills and invoices. The company did not relieve her from this obligation, but expressly told her that it was not the business of the company. Mullikin acted for the assured in this matter. This was the only effort of the assured to obtain them. In this she failed. No goods having been sold to Ackerman or the assured made it impossible for her to obtain them. The reasons why bills and invoices could not be furnished by the parties from whom the assured alleged she had purchased through her agent in this matter, would have been the most conclusive evidence of the fraudulent claim of the assured.

      JE. N. 'Willard, for defendant in error.
    The effecting of a policy by the assured is prima fade evidence of interest: Phillips on Insurance, § 2123.
    Proof of an application for insurance and of a policy issuing thereon, both of which describe the property insured as the property of the plaintiff, is prima fade evidence of title, and of an insurable interest in the plaintiff in an action upon the policy: Nichols et al. v. Fayette Mutual Fire Ins. Co., 1 Allen, 63; Ins. Co. v. Staib, 4 Ins. Law Journal, 398; Robertson v. French, 4 last, 130; Thomas v. Foyle, 5 Espinasse, 88; Ins. Co. v. Chicago lee Co., 36 Md., 102; Ins. Co. v. Berry, 8 Kansas, 159 ; Fowler v. Ins. Co., 23 Barb., 150.
    The retention of the proofs, without making specific objections to them, is in law a waiver of all defects: Wood on Fire Insurance, 719.
    March 6th, 1882.
   — -Per Curiam:

Possession of personal’ property is prima facie evidence of ownership, and the policy being in the name of tbe wife, this with the possession was, as against the defendants, prima fade evidence that she was the owner. It was certainly a fact for the jury, and fairly submitted to them, whether the stock of goods insured did in fact exist. There was no evidence, as the learned judge rightly held, that Mrs. Ackerman had refused to submit herself to examination under oath. The answer to the plaintiff’s point, as to waiver, was undoubtedly right, as was the ruling of the learned judge in the rejection of the evidence. The agent, who inquired of the persons in New York, was the agent of the company, and there was nothing in the plaintiff ’s reference to them, which bound him by their answers. So far as the evidence was rejected, it was merely hearsay.

Judgment affirmed.