author: Mr. Justice Woodward

text:
    Winton’s Appeal. Winton versus Morss et al.

    of the time bestowed, or the amount of expenses incurred by a party, in its preparation and trial'.
    2. While a reasonable discretion in chancery cases is permitted to Courts of Common Pleas in the allowance of costs, it must be exercised in view and with the aid of the analogies which the statutes relating to costs in actions at law afford, and all items in the nature of allowances, and which may not properly come within the denomination of costs, must be excluded.
    3. The court below made a decree that plaintiff could take out of court a deed for the “ Newton third” of certain land upon payment of costs, but in the same decree prescribed the conditions upon which another, the "Yosburg third,” was to be conveyed, among which was the direction that plaintiff should pay a certain sum found due by him. He paid the costs, but did not comply with the last direction. Subsequently the same court, in construing this decree, held that complete and contemporaneous and not partial performance of its conditions had been in their contemplation, and refused to allow the deed for the “ Newton third” to be taken out of court until the conditions as to the “Yosburg third” were complied with. Held, that this was not error.
    4. The decree above referred to was made on January 16th 1875. On January 30th 1878, and five days after this appeal to the Supreme Court was taken, the court below amended the decree as follows: “ And upon the plaintiff’s failure to make said payment for a period of thirty days, after the-filing of this order, and notice of the same to him that he, the said plaintiff, be for ever barred from all claim to and equity of redemption in the said 1 Yosburg third.’ ” Held, that this action was erroneous, as it was an attempt to bar a mortgagor’s equity of redemption, which in this state can only be extinguished by his own agreement, by some act done by himself that estops him, or by a judicial sale.
    March 15th 1878.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the Court of Common Pleas of Luzerne county : Of January Term 1878, No. 186., In equity.
    This was a bill in equity filed by W. W. Winton, against I). K. Morss, surviving- executor of James Mott, deceased, and others.
    The questions raised by the record in this case, grew out of previous orders and decrees made in the same cause.
    In 1870 the plaintiff filed his bill in equity, praying that the effect of a certain paper, executed between Barker, under whom plaintiff claimed, and defendants’ testator, might be decreed to be a mortgage. This paper embraced a tract of coal land in Luzerne county, and covered an undivided two-thirds claimed by plaintiff, the defendants claiming the other third. The whole tract had been under a lease to the Delaware and Hudson Canal Company, the tenant of both parties, by lease executed by both parties. The tract, for the purpose of mining coal, had been in the possession of the Delaware and Hudson Canal Company, since about the year 1859.
    Originally these two “thirds” of the tract had been included in the same agreement, but in the course of dealing between the parties had been differently treated, and for convenience came to be designated as the “Newton third” and the “Yosburg third.”
    The litigation was long and tedious and resulted in the following decree, entered in the court below on the 26th of January 1875.
    1. That upon payment, by the plaintiff, of the costs of this suit within sixty days after the filing of this decree, the said D. K. Morss, surviving executor of the last will and testament of James Mott, deceased, is authorized and directed to make, execute and deliver unto the said plaintiff, his heirs or assigns, a full and sufficient conveyance in fee simple of, in and to the undivided third interest in the tract of land situate in the township of Blakely, Luzerne county, Pennsylvania, known as the Calvin Barber tract, containing about fifty acres, being the same undivided interest therein which Henry W. Newton by indenture, dated the 29th day of April 1862, conveyed to Abel Barker, and which the said Abel Barker, by assignment written upon the back of said deed, conveyed to James Mott, deceased, under and in pursuance of a certain agreement between the said James Mott in his lifetime and the said Abel Barker, bearing date the 29th day of April 1862.
    The said conveyance to be made in pursuance of this decree may be made and executed by the defendants to the plaintiff in the manner and form provided in the aforesaid agreement, made as aforesaid, between the said James Mott; in his lifetime, and the said Abel Barker’, bearing date as aforesaid, the 29th day of April 1862.
    2. It is further ordered, decreed and adjudged that the plaintiff pay the costs of this suit.
    3. And it is further ordered, adjudged and decreed that upon the payment by the plaintiff to the said defendants of the sum of ten thousand nine hundred and forty-one dollars and fifty-two cents, together with lawful interest thereon, from the first day of December 1873, within sixty days from the filing of this decree, the said D. K. Morss, surviving executor as aforesaid, shall make, execute and deliver unto the . plaintiff an indenture of deed in fee-simple and clear of all encumbrances done or suffered by the said James Mott, or his legal representatives, except as hereinafter specifically expressed and excepted for another one undivided third part of and interest in and to the aforesaid Calvin Barber tract “Yosburg third,” described more particularly in the plaintiff’s bill and exhibits, making two-thirds thereof in all, to be conveyed under this decree, excepting and reserving out of the reassignment of said Newton third and the conveyance of said Vosburg third as herein decreed, the rights and privileges of the Delaware and Hudson Canal Company to mine and carry away coal from the said Calvin Barber tract, under and in pursuance of a certain indenture of lease, bearing date tbe twenty-eighth day of August 1858, made between the said James Mott, Henry W. Newton and Charles E. Vosburg, of the 'first part, and Abel Barker, Lewis Pughe and Edward Jones of the second part, which lease.is now assigned t the president, managers and company of the Delaware and Hudson Canal Company; also excepting and reserving the rights of said company under a lease, supplemental to said last-described lease between James Mott, Charles P. Wurts and Abel Barker of the first part, and Lewis Pughe, Abel Barker and Edward Jones of the second part, also assigned to said company, said lease and supplement being recorded in the recorder’s office of Luzerne county.
    The “costs,” as filed, were as follows:
    “Defendant’s bill,” including his personal “expenses and time” in conducting the litigation and counsel fees :
    The defendant’s bill filed, . . . $3,560 75
    Prothonotary, ...... 36 95
    Com., ........ 50
    Examiner, ..... 300 00
    Master, ...... 600 00
    Attorney, ..... 3 00
    $4,501 20
    From this decree both parties appealed, and in June 1876, the following decree was made by the Supreme Court:—
    “Decree of the court below affirmed and the appeal of each dismissed, the appellant in each case to pay the costs of this appeal; this decree is subject to this modification in Winton’s appeal, that it shall not be considered as affirming the bill of costs as filed, which is hereby directed to be examined and taxed by the court below, so as to allow only reasonable charges to D. K. Morss, for his time and expenses, and for counsel fees.”
    The cause was again referred by the court below to “ examine and tax the bill of costs as filed,” and decree entered that they be paid as taxed. This forms the subject of plaintiff’s assignments of error 1, 2, 3 and 4 herein.
    The plaintiff thereupon paid the costs and moved the court for permission to take the deed for the “Newton third” out of court. (Deeds for both thirds had been executed by defendants, and filed in court under the original decree.)
    No payments being made on the $10,941.52 due from plaintiff on the “Vosburg third,” the defendants asked the court for a decree “barring the plaintiffs’ right of redemption.”
    These motions were both refused by the court below in the decree as follows : “Nor do we deem it right, whilst that interest (the “Vosburg third”) is kept in suspense, through either the action or inaction of the plaintiff, to grant him permission to take the Newton deed out of court, and the motion is refused.” This order forms the plaintiff’s fifth assignment of error.
    The plaintiffs still failing and refusing to maké any compliance with the decree of 1875, requiring payment of $10,941.52, and interest due the defendant on the “Yosburg third,” the defendants undertook to secure the rents due and to become due from the Delaware and Hudson Canal Co., for coal mined on the premises. These premises were becoming exhausted of the coal, and it began to be doubtful if they were worth the $10,914.52. The Delaware and Hudson Canal Company had been notified by the defendants to retain their rents and they had remained unpaid for some years.
    To that end the defendant filed the following petition, setting forth the previous history of the litigation and concluding, inter alia,
    “And your petitioner further avers that he has been at all times ready and willing to carry out and comply with the decree of your honor as aforesaid; has tendered to the plaintiff and has filed the deeds to him for the said Newton and Yosburg thirds, to be received by him upon payment as aforesaid, which the plaintiff has refused to make, although so requested to do, and which your petitioner, from the protestations made by plaintiff in his bill, supposed he would do, and he still declines and refuses to pay said sum of $10,941.52 and interest, the amount to be paid on the Yosburg third; and your petitioner further shows that the value of the said Yosburg third has depreciated by reason of the taking out of coal by the Delaware and Hudson Canal Company, under the lease as aforesaid; that it is entirely insufficient for the payment of the amount so due upon it as aforesaid; that neither has the purchase-money been paid by the said Barker or his assignee for the Vosburg third, nor has the balance due upon the sale of the Pancoast and Price mortgage been paid; but the amount is still due upon the two as hereinbefore stated, and your petitioner further avers that the said coal rents have been held in abeyance by the Delaware and Hudson Canal Company, and that they are now in the hands of the said company; and notice has been given that they should not be paid over to the said Barker or his assignees, and they have been so held by the said company till the rights of the parties should be legally determined. Your petitioner therefore prays your honor to grant a rule upon the plaintiff, and also upon the Delaware and Hudson Canal Company, to appear on some day certain, to be fixed by your honor, and show cause, if any they have, why the question of rents shall not be referred to the master, to ascertain and determine the amount thereof still due and owing from said company for coal taken under the lease aforesaid from the Yosburg third, and also from the Newton third, and why an order shall not be made by your honor upon said company for the payment of said rents to your orator, to apply on the balance found to be due to the estate of James Mott, deceased, as hereinbefore stated, and also why an order shall not be made for the sale of the said Vosburg third for the payment of any balance that may be found to be due, after deducting the rents as aforesaid, and that the surplus, if any, shall be paid over to the said plaintiff, and to make such further order in the premises as to your honor shall seem meet and proper, and he will ever pray.
    D. K. Morss.”
    Upon this petition orders were made as follows: “ Noav, 13th April 1877, on petition of defendants, rule is granted by the court upon W. W. Winton, plaintiff, and upon the Delaware and Hudson Canal Company, to appear on the 28th day of May next, to show cause why the question of rents shall not be referred to the master, to ascertain and determine the amount thereof still due and owing from said company for coal taken under the lease in the petition referred to from the Vosburg third, and also from the Newton third, and why an order phall not be made on said company by the court for the payment of said rents to defendants, to apply on the balance found due the estate of James Mott, deceased, and also why an order shall not be made for the sale of said Vosburg third for the payment of any balance that may be found due after deducting the rents, and that the surplus, if any, shall be paid over to plaintiff.” And after-wards, 30th January 1878, the rule for an order on the Delaware and Hudson Canal Co. to pay said rents to defendants, and for an order for the sale of the Vosburg third is continued, and “ The decree of 16th January 1875, ordering the plaintiff to pay the said defendants the sum of $10,941.52, together with lawful interest thereon from 31st December 1873, within the time specified, being the amount ascertained to be due on the Vosburg third, is hereby amended by adding this clause, to wit: ‘ And upon the plaintiff’s failure to make said payment for a period of thirty days after the filing of this order and notice of the same to him that he, the said plaintiff, be for ever barred from all claim to and equity of redemption in the said Vosburg third.’
    Garrick M. Harding, President Judge.”
    From this plaintiff appealed and filed the following assignments of eri’or:
    1. The court erred in making the following decree in favor of the defendant, to wit: It is further ordered, decreed and adjudged that the plaintiff pay the costs of this suit.
    2. The court erred in decreeing costs to defendants for the personal expenses and time spent in the case by D. K. Morss; there being no fee-bill establishing such as costs or fees, and no Act of Assembly, or practice in equity, vesting such power in said court.
    3. The court erred in decreeing the payment of the sum of $2500 to the defendant’s counsel, by the plaintiff.
    4. That the fees allowed and decreed to be paid to defendant’s counsel, and the charges of defendant, D. K. Morss, for time and expenses, are excessive.
    5. The court erred in refusing the plaintiff’s motion, to take out of court the deed made by the defendant to the plaintiff, for the Newton third, after payment of costs by the plaintiff, in accordance with and in pursuance of the decree of the court, and after said decree had been affirmed by the Supreme Court, and in deciding that the plaintiff was bound to redeem the Vosburg third from the mortgage of 15th December 1860, or he could not have the reconveyance of the Newton third.
    6. The court erred in altering and changing the final decree in this case, and in adding to said decree as follows: “ And upon the plaintiff’s failure to make said payment for a period of thirty days, after the filing of this order, and notice of the same to him that he, the said plaintiff, be for ever barred from all claim to and equity of redemption in the said Yosburg third,” which alteration, changing and amending of said final decree was made the 30th January 1878, after the writ of error was filed in said court below.
    7. The court erred in assuming jurisdiction, by means of and under the petition of the defendant, filed the 13th April 1877, and in not dismissing the same, after answers filed, and in proceeding under the same, by the appointment of a master, to ascertain the rents unpaid upon the Yosburg and Newton thirds, by the Delaware and Hudson Canal Company, and in making said company a party to this case, by their decree and order of January 30th 1878, after the appeal and certiorari were filed in the court below.

      James Ryon and A. H. Winton, for appellant.
    Counsel fees and a party’s expenses are not allowable as costs. A chancellor can tax as costs only such allowances as are prescribed by general rules of court or legislative authority. The Common Pleas of Luzerne County has no rule of court other than the general equity rules, and these do "not provide for any such allowances. While courts of equity are not governed by the same inflexible rules as other courts in the allowance of costs, they are, however, restricted by certain fixed principles, and they are not entirely at the discretion of the court: 3 Daniels’s Ch. Pract. 1; Brightly’s Equity, tit. Costs, 548; 2 Smith’s Ch. Prac. *637; Ins. Co. v. Corbin, 34 Leg. Int. 36; Marvine v. Drexel et al., 1 W. N. C. 323; Tenor v. Hutton, 1 Phila. R. 50 ; Neel v. Neel, 1 Grant 171; Porter v. English, 1 Phila. R. 85; Good v. Mylin, 8 Barr 51; Ryckman v. Parkins, 5 Paige 543; Fales v. Stone, 9 Metc. 320; Leavitt v. Curtis, 19 Barb. 543; Grubb’s Appeals, 1 Norris 23. The court had no power to impose the terms complained of in the fifth assignment of error: Dorrow v. Kelly, 1 Dall. 153.
    A chancellor cannot alter or modify a decree after such decree has been affirmed in the appellate court: Dennison v. Goehring, 6 Barr 402 ; Cox v. Breedlove, 2 Yerger 499 ; Haskell v. Raoul, 1 McCord Ch. Rep. 29; Calmes v. Ament, 1 A. K. Marsh. Rep. 342; Stafford v. Bryan, 2 Paige 46.
    Our courts have no power to foreclose the equity of redemption: Wharf v. Howell, 5 Binn. 504; Dorrow v. Kelly, 1 Dall. 142; 2 Tr. & H. Pract. (3d ed.) 307.
    The seventh error relates to the petition of the defendants, filed in this case on the 13th April 1877, over two years after the final decree was made. This proceeding is without name or precedent, is irregular every way, and should have been dismissed by the court. In that form and this case, the court had no jurisdiction, either of the parties, or the subject-matter ofi the dispute at that stage of the case.

      H. M. Hoyt, and Benjamin 3. Bentley, for appellees.
    All the cases referred to by appellant clearly recognise the power of the court, in proper cases, to make such allowances as were here made. And having the power, we contend, that under the circumstances of this case, the allowances were just. The master and court both understood the case, and the relations of counsel thereto, and the trouble and expense incurred in its prosecution, and the court properly ruled that reasonable fees of counsel and the expenses should be paid.
    The prayer in the plaintiff’s bill was that the whole amount due from plaintiff to the estate of James Mott should be ascertained, and that he was ready and willing to pay such amount as soon as ascertained. The amount was ascertained. The prayer was entire, and the decree was entire, and the court had no reason to suppose but that the plaintiff would act in good faith and pay a3 he had promised, till after the decree was made, when, for the first time it became apparent that he did not intend .to do it, but asked the court to sever the decree and give him the benefit of a part of it, without his performing the other part. This would have been against the spirit and the letter of the decree, against the allegations, promises and prayer of the plaintiff.
    The sixth assignment is in reference to the change of the original decree. We would have been satisfied with an order to sell after a refusal to pay. To this we were manifestly entitled. If the plaintiff refused to take the property and to pay for it as he agreed to do, it comes with a bad grace from him to dictate what shall be done with it or what order the court shall make in regard to it. He sought the aid of the court, not only that he might .have the right of redemption awarded to him, but also for specific execution of the contract by which he purchased. The court granted his prayers and the relief sought, and he then says “I ignore all that has been done,” and the court has no power to do anything more. This we deny. A court of equity has full power to exhaust all remedies for reaching a final and equitable result.
    The original and final decree made by the court, affirmed by the Supreme Court, was in no way to be affected by what the defendant asked to be done. He asked for no review. He needed no cross bill. All he asked or needed was that the decree should be enforced. His petition was remedial purely. If he could not have the decree enforced in some way it would be but a dead letter, and all the labor bestowed upon the case would be lost.
    May 6th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

All due consideration was given to the point presented by the first assignment of error when this cause was heard on the first appeal. The laborious investigation by the master and Judge Dana’s thorough review of the report, resulted in the imposition of costs on the plaintiff, and nothing appeared on the argument in 1876, to show that any such error had been committed as to require that the decision should be reversed.

It is possible that some unguarded language in the opinion of this court in entering the former judgment, caused the misapprehension under which the rulings complained of in the second, third and fourth assignments of error were made. The bill of costs of the defendants had not been taxed. It was in the record exhibiting the items charged for counsel fees, and for the time spent and expenses incurred by Mr. Morss. ' No inquiry into the propriety of the charges was attempted. All that was meant to be said in referring the subject to the Common Pleas was, that legitimate demands should be sustained. It is of frequent occurrence in equity practice that compensation is given for professional services, and for the labor and expenditures of a party when they have been rendered, performed or paid for the protection or enhancement of a common fund, or for the common benefit of all the parties to the controversy. It could not be known, in the absence of all inquiry, that such services, labor and expenditures had not been charged for here. It is true the compensation is usually described as “allowances,” and not as “costs,” and is usually directed during the pendency of the litigation. But it was taken for granted that, although the claim of the defendants was made in the bill of costs after the suit was determined, it was still of the general character to justify the awarding of allowances as if they had been sought in the accustomed and proper form.

It does not appear from any facts now disclosed that any services were rendered, either by the counsel or by Mr. Morss, entitling them or him to compensation under the only rule by which a demand could be supported. The litigation was adversary throughout. There is no law in Pennsylvania- to warrant the payment as “ costs in tbe cause,” of tbe fees of counsel for professional services, or of tbe value of the time bestowed, or the amount of expenses incurred by a party in its preparation and trial. Without an. Act of Assembly empowering it, the courts cannot create a fee:bill," and it would be a usurpation of legislative functions to allow .as. between party and party, charges to which no statute has ever, given the character of costs. Since Wilt v. Vickers, 8 Watts 235, and Rogers v. Fales, 5 Barr 159, were overruled, compensation has never been recoverable for trouble and expenses in conducting a suit and establishing a right: Alexander v. Herr, 1 Jones 537. It was for the adjustment of costs, as such, that the record was sent back.' ’ There is no equity fee-bill in Luzerne, and while a reasonable discretion in chancery cases is permitted to the Common-.Pleas, it must be exercised in view and with the aid of the analogies which the statutes relating to costs in actions at law afford: Neel v. Neel, 1 Grant 171. In the re-taxation of the bill, all items in the nature of allowances, and which may not properly come within the denomination of costs must be excluded.

If the decree of the 26th of January 1875, had closed with the second paragraph, the plaintiff’s complaint in the fifth assignment would be well-founded. The delivery of the deed for the Newton purpart of the land in dispute, was directed on payment of the costs, and they were paid. But the residue of the decree prescribed the conditions on which the Vosburg - purpart was to be conveyed. Among them was the direction- in -the third paragraph that the plaintiff should pay the amount'found due by him $10,941.52, to Morss’s executor within sixty days. This direction was not complied with. Many obvious reasons -may.be conceived why the sum found due should be paid before partial execution by the defendants ought to be enforced. The plaintiff, in accepting the benefit bestoAved on him, was bound to assume the burden coupled with it that was imposed. The court were construing their OAvn decree, and when they held that complete and cotemporaneous, and not partial performance of its conditions had been in their contemplation, they affixed a meaning to it that was not inconsistent Avith its terms, and on grounds of original intention as to Avhich they of all the world were most fitted to decide. The order for the delivery of the deed of the Newton third of the land to the plaintiff was properly refused.

There was error in entering the amended decree of the 30th of January 1878. This was done five days after the certiorari to bring up this appeal had been filed in the Common Pleas. It is possible the irregularity Avould not be fatal to the amendment if that had been providently made. But it was wrong on other grounds. It undertook finally to debar all claim of the plaintiff to the Vosburg third of the land at the expiration of thirty days, if, meanAvhile, he should not pay the amount found due. The contract between Mott and the grantors of the plaintiff had been declared to be a mortgage. And in this state a mortgagor’s equity of redemption can be extinguished only by his own agreement, by some act done by himself that estops him, or by a judicial sale. Even after a recovery in ejectment, possession can only be retained by the mortgagee till the amount of the mortgage-debt is paid: Colwell v. Hamilton, 10 Watts 417. Our courts may acquire jurisdiction in equity against a mortgagor in a suit by the cestuis que trust of the mortgagees against them, and having thus assumed jurisdiction of the subject-matter, may proceed to decree a sale for the benefit of the plaintiffs; but they cannot do so at the suit of the mortgagees against the mortgagor: Ashhurst v. The Montour Iron Co., 11 Casey 30. The power of the court to amend the decree after three years had lapsed was discussed in the argument, but the question need not be considered now; as for other reasons the sixth assignment of error is sustained.

A final disposition of the rule upon the plaintiff and The Delaware and Hudson Canal Company, to show cause why an account should not be taken of the rents due from the company has not been made. The seventh assignment was argued, however, as if the rule had been decided. The proceeding is an anomaly. When it was begun, the decree had been entered two years. All controversies between the parties to the bill had been put at rest. The application was not founded on any condition the decree had prescribed. It was not a cross-bill, an interlocutory petition, or a bill of review. It was a claim for rents accrued during the contest, and had just the connection with that contest which a rule on a tenant, as an indifferent stakeholder, to show cause why mesne-profits should not be assessed, would have with an action of ejectment after the recovery of a verdict and the entry of a judgment against a former claimant of a tract of land. The rule is pending, and there may be rational and legal reasons why it should be made absolute. But if the question Avere here, no grounds can be now conceived for supporting the proceeding as a legitimate supplementary appendant to the original litigation.

The decree is reversed, and it is ordered that the record be remitted for further proceedings, in accordance with the conclusions of this opinion.


source: Caselaw Access Project

author: Chief Justice Agnew

license: Public Domain

text:
    Bletz versus The Columbia National Bank.
    1. The state courts have jurisdiction where a borrower in an action of debt seeks to recover back twice the amount of illegal interest received by a national bank, contrary to the provisions of the 30th section of the Act of Congress of J une 3d 1864. '
    2. ' The form of action is within the jurisdiction of the state court, and the right claimed in this form is private, belonging to the borrower alone. It is, therefore, immaterial whether the source of the right is a state or a federal law. In either case, it is a law binding upon the state, which has given birth to the right.
    3. The jurisdiction of the state courts is to be affirmed when it is not excluded by express provision or by incompatibility in its exercise, arising from the nature of the particular ease.
    May 7th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1877. No. 193.
    This was an action of debt brought by Frederick S. Bletz against the Columbia National Bank, to recover from it $6678.66, together with interest from December '3d 1873. This amount of $6678.66 was double the amount of interest or discount paid by Bletz to the bank on one hundred and sixty-five notes discounted for him within two years prior to the bringing of this suit, each and every of said discounts being at a higher rate per annum than six per cent, namely at the rate of from seven and a half to twelve per cent, per annum.
    This suit was based upon the provisions of the 30th section of “an act to provide a national currency, secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof approved June 3d 1864.” After bringing the suit a declaration was duly filed, plea of payment entered by the defendant, and the case being at issue it was for trial at several terms, and continued for various reasons, when, on the 24th day of January 1876, an additional plea “that this court have no jurisdiction” was entered. To this a replication was filed by the plaintiff, and the court below entered a judgment fro forma in favor of the defendant, in order that this court might decide the question of jurisdiction.
    Section 30 of the Act of June 3d 1864, reads as follows: “That every association may take, receive, reserve and charge on any loan or discount made, or upon any note, bill of exchange, or other evidence of debt, interest at the rate allowed by the laws of the state or territory where the bank is located, and no more, except that where by the laws of any state a different rate is limited for banks of issue oz-ganized under state laws, the rate so limited shall be allowed for associations organized in any such state under this act. And when no z’ate is fixed by the laws of the state or territory, the bank may take, receive, reserve or charge a rate not exceeding seven per centum, and such interest may be taken in advance, reckoning the days for which the note, bill or other evidence of debt has to run. And the knowingly taking, receiving, reserving or charging a rate of interest greater than aforesaid shall be held and adjudged a forfeiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon. And in case a greater rate of interest has been paid, the person or persons paying the same, or their legal representatives, may recover back, in an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same; Provided, That such action is commenced •within two years from the time the usurious transaction occurred. But the purchase, discount or sale of a bona fide bill of exchange, payable at another place than the place of purchase, discount or sale, at not more than the current rate of exchange of sight drafts in addition to the interest, shall not be considered as taking or receiving a greater z-ate of interest.”
    And section 57 z’eads as follows: “That suits, actions and proceedings, against any association under this act, may be had in any circuit, district or territorial court of the United States, held within the district in which such association may be established; or in any state, county or municipal court in the county or city in which said association is located, having jurisdiction in similar cases.”

      J. F. Frueauff, Samuel Reynolds and George M. Kline, for plaintiff in error.
    There is no doubt that the court below has jurisdiction in an action of debt, whether for penalties or otherwise, and the question is, can it entertain jurisdiction in a case where the right of action arises under the laws of the United States ? The right of action given by the statute is a private and personal one, which can only be asserted by the party aggrieved. The government or the public is not concerned with it. It is a private right pursued by a private civil action, and the section of the act upon which the action is founded is remedial as well as penal, and is to be liberally construed: Farmers’ National Bank v. Dearing, 1 Otto 29. Congress may give exclusive jurisdiction to the federal courts, but if an Act of Congress gives a private right, and does not either expressly or by implication give exclusive jurisdiction to the federal courts to enforce it, the state courts having jurisdiction in like causes may enforce such right. It was manifestly the design of Congress that the state courts should take cognisance of actions like the present as well as any other civil actions against banking associations; and that if it had been the design to exclude the state courts in such cases, appropriate terms would have been employed to express such intention, as in other Acts of Congress, when conferring jurisdiction. Without an express provision to the contrary, the state courts will have a concurrent jurisdiction. It is true Congress cannot create a jurisdiction in the state courts, but it does not follow that the state courts, authorized by state laws to try actions of debt, are precluded from trying such actions merely because the right to bring them arises under the laws of Congress: The Federalist, No. 82; Jordan v. Downey, 40 Md. 410 ; Chesapeake Bank v. First National Bank, Id. 269 ; Cook v. State National Bank, 52 N. Y. 96 ; Farmers’ and Mechanics’ Bank v. Dearing, supra; Tiffany v. National Bank of Missouri, 18 Wallace 412; Cooke v. Whipple, 55 N. Y. 150; Stevens v. Mechanics’ Bank, 101 Mass. 109; Ward v. Jenkins, 10 Metc. 583; Buckwalter v. United States, 11 S. & R. 193; Ordway v. The Central National Bank of Baltimore, 47 Md. 217. But the question is raised whether the court must take jurisdiction in a case brought before it. It is urged that while the state courts might take jurisdiction they are not obliged to do it. We contend that where they may take jurisdiction, they must take it unless prohibited by their own laws ; it is not a matter within the discretion of the court. An action which gives a remedy only to a party aggrieved is not to be considered a penal act. State courts have jurisdiction of actions brought by informers against collectors for the charge of the money received under the United States statutes: Lapham v. Almy, 13 Allen 301. And the same principle has been held in Morrell v. Fuller, 8 Johns. 218; Hitchcock v. Munger, 15 N. H. 97; White v. Comstock, 6 Vt. 405 ; Webster v. The People, 14 Ills. 365. There is a distinction between an action given by statute to the party aggrieved and an action given to any one who will sue, the former being remedial and the latter penal: Moore v. Jones, 23 Vt. 739. This principle has been sustained in our own courts: Commonwealth v. Bennett, 16 S. & R. 243 ; Mevay v. Edmiston, 1 Rawle 457 ; Spicer v. Rees. 5 Id. 122; Commonwealth v. Betts, 26 P. F. Smith 465.

      H. M. North, for defendant in error.
    That the exaction of twice the amount of interest which has been received is a penalty seems too clear to be questioned. The Act of Congress in terms declares the interest if unpaid shall be adjudged a forfeiture. The recovery back of twice the amount of interest when it has been paid is still more a penal infliction: Burrell’s Law Dictionary, Penalty ; Curtis’s Com., sect. 247; First National Bank of Plymouth v. Price, 33 Md. 487. The Supreme Court of the United States, interpreting this section, have declared that an action of this kind under it is brought to recover what is substantially a statutory penalty ; and that therefore the statute must receive a strict construction: Tiffany v. National Bank of Missouri, 18 Wall. 410.
    The proposition for which we contend is, that the Congress of the United States cannot constitutionally give to state courts jurisdiction over cases of penalties inflicted solely by the laws of the United States. To confer such jurisdiction requires at least the concurrent legislation of the United States and the state : Jackson v. Rose, Gen. Court of Va., 9 Niles Reg., sup. 173; 2 Va. Cas. 34; Commonwealth v. Feely, 1 Id. 321; United States v. Campbell, Tappan, J., in Ohio, 10 Niles Reg. 405 ; Tappan 29; State v. Rutter (Almeida’s case), Balt. Co. Court, 12 Niles Reg. 115, 231; United States v. Lathrop, 17 Johns. 4; Teall v. Felton, 1 Comst. 537 (aff’d 12 How. S. C. 284); Ely v. Peck, 7 Conn. 239 ; Davison v. Champlin, 7 Id. 244; State v. Tuller, 34 Id. 280; Haney v. Sharp, 1 Dana (Ky.) 442; Ward v. Jenkins, 10 Metc. 587; Martin v. Hunter’s Less., 1 Wheat. 337 ; Gelston v. Hoyt, 3 Id. 312, 328, 334; State v. McBride, Rice S. C. 400; Priggs v. Pennsylvania, 16 Pet. 617, 618, 664; Sims’s Case, 7 Cush. 302, 303, 308; Moore v. People of Illinois, 14 How. 20, 22 ; 3 Story Const., sect. 1750; 1 Kent’s Com. 403-404; Miss. Tel. Co. v. First National Bank, S. C. of Illinois 1875; 7 Chicago Leg. News 158; and see 8 Id. 293; 1 Kent’s Com. 403; 3 Story’s Com. on Constitution, sect. 1750.
    It is not in the power of Congress to confer upon a tribunal, which is exclusively of state creation, jurisdiction to try offences against the United States. Notwithstanding the decision in Buckwalter v. The United States, 11 S. & R. 193, which was an action for penalties declared to be recoverable as other debts, the doctrine seems a plain one that Congress cannot vest any of the judicial power of the United States in the courts of any other government or sovereignty : Martin v. Hunter, 1 Wheat. 304, 330; Ely v. Peck, 7 Conn. 242; Scoville v. Canfield, 14 Johns. 338. It is a fundamental principle of the common law that the courts of the state do not take cognisance of any case of penalty or forfeiture, unless such penalty or forfeiture be inflicted by its own statute law: Scoville v. Canfield, supra; United States v. Lathrop, 17 Johns. 9.
    May 20th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

The question before us is, whether a state court has jurisdiction in “ an action of debt” (in the language of the National Bank Act) “ to recover back twice the amount of the interest thus paid, from the association taking or receiving the same;” that is to say, when illegal interest is taken contrary to its provisions. The 30th section of the Act of Congress of June 3d 1864, allows national banks to charge and take interest at the rate allowed by the laws of the state where they are located, and no more, and then proceeds: “ And the knowingly taking, receiving, reserving or charging a rate of interest greater than aforesaid, shall be held and adjudged a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. And in case a greater rate of interest has been paid, the person or persons paying the same, or their legal representatives, may recover back in an action of debt twice the amount of the interest thus paid, from the'association taking or receiving the same.”

Bearing in mind the words of the act, that a right of action, in debt, is given to the debtor and those who represent him only, and not to the government or the public, let us see what reason would prevent the action from being brought in a state court, to recover back money paid to the extent of twice the interest paid. The question is most important to the people who are citizens alike under both state and national governments, for if they are driven into the federal courts, the evil will be a monstrous one. ' The national banks are intended to do the business of the country in the midst of the people, just as others lending money and discounting paper do, whose places they have filled everywhere. They can sue and be sued in the state courts on all business done by them, secure themselves, and purchase under state laws for the sale of property, and enjoy the advantages of state laws as fully as our own citizens. Therefore, unless the federal jurisdiction is exclusive it is clear that even in a doubtful case our decision should be favorable to our own jurisdiction, leaving the doubt to be solved by the federal judiciary; for if our judgment be against it, the citizen has no appeal to the federal courts. If, however, the federal jurisdiction be clearly exclusive, it is our duty so to declare, for the laws of the United States are our laws, and are “ the supreme laws of the land, and the judges in every state shall be bound thereby.” The relations of the states and the United States are so clearly defined in two recent decisions, none others need be cited: Farmers’ and Mechanics’ Bank v. Deering, 1 Otto 29 ; Claflin v. Hauseman, 3 Id. 130. Justice Swayne says in' the former, “ that this law is as much a part of the law of each state, and as binding upon its authority and people as its own constitution and laws.” In the latter, Justice Bradley, quoting Alexander Hamilton, says: “ When in addition to this we consider the state governments and the national government, as they truly are, in the light of kindred systems, and as parts of one whole, the inference seems to be conclusive that the state courts would have concurrent jurisdiction in all cases arising under the laws of the Union where it was not expressly prohibited.” The learned justice then shows that the Judiciary Act of September 24th 1789 was framed in this view, giving exclusive jurisdiction to the federal courts in certain cases of national import, and concurrent in certain others of doubtful. A large mass of subjects was thereby left, which necessarily fell into the hands of the state courts having jurisdiction over similar subjects. Thus the rights and wrongs of individuals growing out of the laws of Congress were left to be enforced and redressed concurrently. This line of civil remedies for individua,Is is one clearly marked; but the courts of the United States have gone even beyond it. Thus in Houston v. Moore, 5 Wheat. 1, a Pennsylvania case, it was held that the state court had jurisdiction to enforce an Act of Congress upon a delinquent under the act for the organization and training of the militia; “ not (says Justice Bradley) but that these courts might exercise jurisdiction in cases authorized by the laws of the state and not prohibited by the exclusive jurisdiction of the federal courts.” So in a suit in a state court against a postmaster for neglect of duty to deliver a newspaper under the postal laws of the United States, the jurisdiction was affirmed: Teal v. Felton, 12 Howard 292. And indeed the. legislation of Congress for the removal of causes from the state court into the federal, is founded on the admitted jurisdiction of the former.

We may now refer to some of our own decisions and laws. Thus it was held that our courts had jurisdiction of a forgery of a power of attorney to obtain a pension under an Act of Congress: Commonwealth v. Shaffer, 4 Dall. 27. In White v. Commonwealth, 4 Binn. 418, this court decided that passing a counterfeit note of the Bank of the United States, was indictable under the Act of 22d April 1794, specially including the notes of that bank. Buckwalter v. United States, 11 S. & R. 193, was the case of a penalty under an Act of Congress, sued for in the name of the United States. Justice Duncan said: “On the matter of jurisdiction, it is sufficient to observe this court has often sustained actions on penal Acts of Congress, where the penalty is recoverable in the state courts, and though convenience is no justification for the usurpation of power, yet as the court does not see how this conflicts with the Constitution of the United States, the inconvenience may be considered, and it would be an intolerable inconvenience and grievance in an action for a penalty to drag a man from the most remote corner of the state to the seat of the federal judiciary.” The remark of Justice Strong in Huber v. Reily, 3 P. F. Smith 118, was not intended to overrule Buckwalter’s case, but to distinguish it, as shown by his own language, that the latter was an action for penalties declared to be recoverable as other debts; while he was treating of the disfranchisement of a deserter and the necessity of conviction by a court-martial, before the disability could be enforced. The case of Houston v. Moore has been already cited, where a penalty was inflicted under an Act of Congress by a state court-martial. The legislation of our state has run in the same direction. In 1829, Judge King, Thomas I. Wharton and Judge Shaler, reported the penal act of that year. The Act of 23d April 1829, provided for forging and uttering any gold or silver coin then or thereafter passing or in circulation in this state, and for forging, counterfeiting or uttering a counterfeit note of the Bank of the United States. In 1860, the same great criminal lawyer, Judge King, with Judge Knox and another, was upon a commission to codify the criminal law, and reported the new sections of the Act of 31st March 1860, from 156 to 163 inclusive, punishing offences relating to the coin; and in the report, referred to the laws of the United States and the case of Fox v. Ohio, 5 Howard 410, deciding upon an elaborate argument, that the clauses of the Constitution of the United States relating to the power to coin money and regulate its value, do not prevent the state from enacting a law to punish the offence of passing counterfeit coin of the United States. These laws have remained unquestioned; yet I do not assert that none of the provisions applied to the coin of the United States can be questioned. In view of Fox v. Ohio and other cases, there may be a doubt whether the provisions against making and debasing these coins can be sustained as to the question of jurisdiction. This, however, does not touch the present inquiry, which concerns only the civil jurisdiction of the state courts. In our sister states, the power to maintain an action in the name and behalf of the United States for a penalty has been denied. United States v. Lathrop, 17 Johns. 4, a case relied on by the defendant in error, may be taken as an example; but Justice Bradley, in Claflin v. Houseman, supra, comments on this case, and remarks that the state courts having declined the jurisdiction does not militate against the weight of the argument, referring, with apparent approbation, to the dissenting opinion of Justice Platt. The result of the discussion, in the language of the learned justice, is to affirm the jurisdiction when it is not excluded by express provision or by incompatibility in its exercise, arising from the nature of the particular case.

The question of jurisdiction may be resolved now by an examination of the precise nature of the case before us. We have seen that there are two provisions in the thirtieth section of the law. By the first, the taking, receiving or charging a rate of interest greater than is allowed, “ shall be held and adjudged a forfeiture of the entire interest.” It will be noticed that the word forfeiture is used, yet the uniform practice has treated this not as pure penalty, but as a defence which may be set up to the recovery of interest : Lucas v. Govt. Nat. Bank, 28 P. F. Smith 231; Overholt v. Nat. Bank of Mt. Pleasant, 1 Norris 490. The word forfeiture is viewed simply as conferring a right which may be asserted by the defendant.

The second clause on which this case rests, is, where “ a greater rate of interest has been paid, the person paying the same, or his legal representatives, may recover bach, in an action of debt, twice the amount of the interest thus paid, from the association talcing or receiving the same.” Here we find no declaration of a forfeiture as such, but a provision to recover back money paid in an action of debt. This vests a right in the borrower of reclamation in a common-law form of action, to be brought by himself and in his own right. It is not a penalty to be adjudged to the United States, or vested in the public, for which any citizen may sue. The form of action is within the jurisdiction of the state court, and the right claimed in this form is private, belonging to the borrower alone. It is therefore immaterial whether the source of the right is a state or federal law. In either case it is a law binding on the state, which has given birth to the right. On this point the language of the court in Claflin v. Houseman has marked pertinency. “Every citizen of a state is a subject of two distinct sovereignties having concurrent jurisdiction in the state — concurrent as to place and person, though distinct as to the subject-matter. Legal or equitable rights acquired under either system of laws may be enforced in any court of either sovereignty, competent to hear and determine such kind of rights and not restrained by its constitution in the exercise of such jurisdiction.” Again, the opinion says there is “ no reason why the state courts should not be open for the prosecution of rights growing out of the laws of the United States, to which their jurisdiction is competent and not denied.” Whatever doubts, therefore, have been expressed by some state courts as to penalties to be sued for by the United States, or some one in their behalf, in order to vindicate the federal law, they do not extend to the case before us of a private right sued for by the citizen for himself. The debtor having paid his debt, with usury, may “ recover back” twice the amount of the interest paid, in a state court. It is in this sense it was said in the Fanners’ and Mechanics’ Nat. Bank v. Dearing, 1 Otto 35, that .the thirtieth section of the law is remedial, and to be liberally construed to affect the object Congress had in view in enacting it. This view has been taken by the Maryland Court of Appeals, in the case of Ordway v. The Central Nat. Bank of Baltimore, Law Journal, July 27, 1877. The able opinion of Judge Alvey discusses the subject very fully.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice (Jordon

text:
    Miller versus Hanover Junction and Susquehanna Railroad Company.
    1. A subscription to joint stock is not only an undertaking with the company but with all other subscribers, and a subscriber cannot be permitted to set up a secret parol ai-rangement with the agents of the company b^ which he may be released from his subscription whilst his fellow subscribers continue to be bound.
    2. M. subscribed for stock for the “building and equipping of the extension of the H. J. & S. Railroad, according to the survey made by the P. & R. Railroad Company.” The contract of subscription further stipulated that the money thus subscribed should be paid only when the subscriptions reached the sum of §100,000. That amount was subscribed, and M. refusing to pay his subscription, suit was brought therefor when he offered to prove that he was induced to subscribe by reason of certain representations made to him by officers of the company who declared that the road should be built, not as stated in the subscription book, but along defendant’s house and upon the east side of the river, and that he would not be obliged to pay until the road was built. Held, that the court properly refused to admit this evidence.
    May 7th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    'Error to the Court of Common Pleas of Lancaster county: Of May Term 1878, No. 80.
    Assumpsit by the Hanover Junction and Susquehanna Railroad Company against John Miller, to recover the amount of a subscription for stock. The company plaintiff was incorporated by Act of Assembly approved May 28th 1872, Pamph. L. 602. Miller subscribed for five shares of stock in a book which contained a form of subscription, which, after reciting the date of the Act of Assembly, &c., continued:—
    “And whereas, said act fixes the capital stock at $250,000, ten per centum of which must be subscribed, and one dollar per share paid thereon, before said company can receive its letters patent and a legal existence; and whereas, it is the desire of the undersigned subscribers to carry out in good faith and at the earliest possible moment all the provisions of said act, therefore, we, the undersigned subscribers, do promise, agree, bind and obligate ourselves and our heirs, severally, to and with the board of commissioners named in said act, or to any board or board of directors of said company, to pay them or their agents, duly authorized to receive the same, for the use of said company for each and every share of stock subscribed by us as found herein affixed to our names severally the sum of $50 lawful money of the United States, at such times and in such manner as the board of commissioners or directors of said company may, agreeable to the terms of said act, and the general railroad laws of the aforesaid Commonwealth, designate.
    “And it is further agreed, that we, the citizens of Marietta, and vicinity, do subscribe the amount opposite our respective names, on the following conditions, viz :—
    “ That the amount hereby subscribed shall be devoted to the building and equipping of the extension of the Hanover Junction and Susquehanna Railroad, according to the survey made by the Philadelphia and Reading Railroad Company, the same having been adopted at the last meeting of the Hanover Junction and Susquehanna Railroad Company, and it is further agreed that there shall be a first-class station erected in Marietta by said company- ... . ■
    ... . “ Further, the said subscription shall only be paid when the sum of $100,000 shall have been subscribed for this purpose, by the citizens residing at or near the line of said above extension in Lancaster county.”
    The $100,000 were subscribed, Miller being the forty-second on the list of subscribers. Calls on the stock subscribed were made, and all but a few subscribers paid, among whom was Miller, against whom this action was brought. At the trial before Patterson, A. L. J., to defeat a recovery on his subscription, Miller made the following offer of evidence:—
    That the subscription book of the plaintiff was brought to defendant at his residence north of Marietta, on the east side of the Susquehanna river, by the three persons named before (S. C. Heistand, J. S. Given, J. A. Wolfersberger); it was represented to witness by Samuel C. Heistand that this road would be built past his (witness’) place, and up the east side of the Susquehanna river and cross the river above witness’ place, and if it did not do so he needn’t pay; that that was understood between them to be a condition of this subscription, and that he needn’t pay until it was so built; that these statements, representations and agreements, so made by said Heistand, induced the witness (defendant), to subscribe for five shares of stock; that the company have built no road either through Marietta or above it, past defendant’s place, but have partly graded their road to a point below Marietta, near Chickies, and have partly graded their road on the west bank of the Susquehanna river from a point below Marietta to a point north of defendant’s place of residen ce.
    The court refused to admit this evidence, and the defendant having nothing further to offer, directed a verdict for plaintiff. Verdiet accordingly, when defendant took this writ, and assigned for error the action of the court.

      N. M. North and JE. I). North, for plaintiff in error.
    The court below seemed to be of the opinion that the written subscription signed by the defendant was the only evidence that could be received to show the terms, conditions and stipulations of the contract between him and the plaintiff; in this we think there was manifest error. The testimony offered was to establish a condition precedent unperformed by the plaintiff, and that the subscription is not due and payable, and was plainly admissible under the rule that parol evidence is admissible to show that at the execution of a written contract, a stipulation has been entered into, a condition annexed, or a promise made by word of mouth upon the faith of which the writing has been executed, although such evidence vary and materially change the terms of the written contract: Kostenbader v. Peters, 30 P. F. Smith 438; Lippincott v. Whitman, 2 Norris 244; Greenawalt v. Kaster, 5 Id 45.

      George Nauman and W. B. Given, for defendant in error.—
    We submit that the true rule is that a written contract can be varied only by showing a representation of a, fact or a collateral promise which induced the making of it, and without which the contract would not have been made, or else a representation of the meaning of particular words, but all this, however, only where there is the authority to make the statements or promises, or where the situation of the parties is such that the authority to make the statements or promises may be presumed. The case of Greenawalt v. Myers & Kohne, supra, does not go father than this.
    Representations as to an agreement to bind the corporation must be within the scope of the authority confided to the agent: Custer v. Titusville Gas and Water Co., 13 P. F. Smith 381. The payment of this sum of money was a condition precedent, to be performed by the subscribers before any work was done, because without money the road could not be built: Miller v. Railroad Co., 4 Wright 237; Railroad Co. v. Biggar, 10 Casey 459; Boom Co. v. Dubois, 8 P. F. Smith 185. A subscription to a joint stock is not only an undertaking to the company, but with, all other subscribers. Such contracts are trilateral, and even if fraudulent as between two of the parties, they are to be enforced for the benefit of the third: Graff v. Railroad Co., 7 Casey 498 ; Bavington v. Railroad Co., 10 Id. 362; Robinson v. Railroad Co., 8 Id. 339.
    May 27th 1878.
   Mr. Justice (Jordon

delivered the opinion of the court,

By the paper, which we have before us, it appears that the stock to which the defendant subscribed, was designed for a special purpose ; that is to say, for the “ building and equipping of the extension of the Hanover Junction & Susquehanna Railroad, according to the survey made by the Philadelphia & Reading Railroad Company.”

When, therefore, the defendant signed this paper, he was thoroughly informed of the intended route of the proposed road, and of the fact that his subscription, with the others made and to be made, was to be appropriated to the building of the branch designated, and to no other purpose. Again, the contract contained the further stipulation, that the money, thus subscribed, should be paid only when the subscriptions reached the sum of §100,000. It also appears, from the paper itself, that these subscriptions were made by the “ citizens of Marietta and its vicinity,” which means, as we take it, by persons who were interested, not so much in the stock as an article marketable and valuable, as in the proposed improvement as something that would promote their individual welfare. We have, then, some ninety-nine or one hundred persons, of the indicated vicinage, agreeing together, under certain conditions, proposed to them by the railroad company, to join in the promotion of a common enterprise intended, mediately if not immediately, for their mutual benefit, and, in effect, one says to another: for this purpose, here plainly set out in writing, I will give so much if you will give so much more, and so on until the requisite amount is made up.

Under these circumstances, on the trial of this case, the defendant offered to prove that the subscription-book was brought to him by three persons, who, as it appears from his evidence, were officers of „ the company, and who induced him to subscribe by representing ; that the road should be built, not as stated in that book, but past - the defendant’s house and up the east side of the river, and, further, that he would not be obliged to pay until the road was so built. The court below overruled this offer; and what we have now to consider is whether this ruling was right or wrong. Were we to view the matter from the stand-point of the company’s interest’alone, we might pronounce against the conclusion adopted by the court. For that this company was in a position to make a binding conditional contract is conclusively settled by the case of this same company against Haldeman, 1 Norris 36. So, that a corporation must consent to abide by the contracts of its agents if it would profit by them, is in like manner ruled in Caley v. The Railroad Co., 30 P. F. Smith 363. So, it matters not whether the condition were in writing or parol, or if parol, that it contradicted the writing, if, but for such condition, the defendant would not have subscribed. So late as the case of Lippincott v. Whitman, 2 Norris 244, this court held (per Paxson, J.), that wherever equity would reform or set aside a written instrument, on the ground of fraud, accident or mistake, parol evidence is admissible to contradict or deny the terms thereof. Now, as this doctrine has been iterated and reiterated, in every variety of phrase, and in almost every volume of our reports from 1 Binney to the present time, it may be taken as tolerably well settled. The reason of this rule is found in the desire of our courts to reach justice, however much the way thereto may be obstructed by mere technicalities. If one exhibits a written contract with his neighbor and it turns out, for any reason, that it does not contain the terms of the agreement, but rather the contrary, and if, through the interposition of some arbitrary rule, the truth of the matter cannot be shown, it is clear that injustice has been done, a result not tolerable in a well-arranged judicial system.

But, while this is so, we must take heed that the rule is not used as a means of fraud or wrongdoing. If, however, we permit the defendant to make that use of this rule which he desires, the deprecated result must follow. Had he expressed in writing, on the subscription-book, the condition proposed to be proved, it would have been fair notice, to his fellow-subscribers, that his subscription amounted to nothing; was, in fact, a mere sham, since the condition, opposed, as it was, not only to the expressed action of the company but to the condition involved in every other subscription, could not possibly be enforced. Now, as we have already shown, this subscription was specially designed to carry out a common adventure, in which the company was but a means used for its accomplishment, and the interests of which were but secondary; hence it follows, that if Miller succeeded in avoiding his obligation, he does so at the expense of his co-subscribers and in fraud of thoir rights. Every one who signed after' him did so on the faith of his signature, as he did upon-the faith of the signatures of those who preceded him, and to permit him now to set up a secret parol arrangement, by which he may be released whilst his fellows continue to be bound, would be anything but just. As was said in the case of Graff v. The Railroad Co., 7 Casey 489 (per Woodward, J.), “a subscription to a joint stock is not only-an undertaking to the company, but with all other subscribers. Such contracts are trilateral, and even if fraudulent as between two of the parties, they are to be enforced for the benefit of the third.” This quotation expresses a principle applicable to the case in hand, and aptly illustrates the reason why the defendant should be estopped from setting up the secret parol agreement between himself and the agents of the company.

Judgment affirmed.


author: Mr. Justice Trunkey

text:
    Kuhns’s Appeal.
    Where a guardian has perpetrated a fraud in the settlement of his account, the limitation in the Act of October 13th 1840, begins to run from its discovery by the injured party and not from the confirmation of the guardian’s account.
    May 8th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Appeal from the Orphans’ Court of Lancaster county: Of May Term 1878, No. 122.
    Appeal by Lavinia Kuhns from the decree of the court dismissing her petition to open and review the account of her late guardian John B. Stehman. The petition, which was presented on January 6th 1877, set forth that the petitioner was the daughter of Isaac R. Kuhns, of Lancaster county, who died intestate in October 1864; that on August 24th 1865, Stehman was appointed her guardian; that Isaac R. Kuhns died seised and possessed of considerable real and personal estate; that by order of court the real estate was sold, and the administrators having filed their accounts on May 14th 1866, it appeared that there remained in their hands, $19,076.03, of which the share of petitioner was $5813.45, the whole of which was paid over to her guardian; that during the minority of petitioner, said guardian never filed any statement or inventory of the property of petitioner, which he had received, or rendered any account of its management; that petitioner came of age, October 8th 1870, and that on April 10th 1871, said guardian filed his account in which he charged himself with having received from the administrators of Isaac R. Kuhns the sum of $4722.99, which amount, with interest was all with which he charged himself, whereas in fact he had received the amount heretofore stated, viz., $5813.45, making a difference of $1090.46, for which he has never rendered any account; that said account was confirmed nisi, June 1871, and that no exceptions were filed thereto. The petition further set forth that during her minority in 1868, the petitioner removed from Lancaster county, Pennsylvania, to Urbana, Ohio, where she had since resided, which residence was well-known to her guardian; that she was ignorant of the amount and value of her father’s estate, and of her share thereof; that she received no notice and had no knowledge of the filing of said guardianship account or of its confirmation until said confirmation nisi'had become absolute; that she was then assured by said guardian that the sum with which he had then charged himself was all that he had received for her from said estate, and that relying on his integrity, and on the truth of said assurance, she accepted the same and took no steps to investigate the truth thereof; that she had no reason to suspect the falsehood of said assurance until recently, and within the last two months when she for the first time discovered the facts as heretofore set forth, and which her guardian fraudulently concealed from her. She, therefore, prayed that the said decree of confirmation might be opened, reviewed and set aside, the account corrected by charging accountant with the additional amount not included in said account, and that a citation might issue, &e. The court granted a rule upon Stehman to show cause why the prayer of the petitioner should not be granted, and he filed an answer, February 13th 1877, which set forth that “He objects to and protest against this whole proceeding, as not sustainable either in law or equity, and denies the power of the court to grant the prayer of the petitioner. That respondent did file a guardianship account of the estate of said Lavinia Kuhns, on April 10th 1871, showing a balance in her favor of $4871.08, which was duly confirmed by said court at June Term 1871. That in said account he charged himself with all the money he received for said Lavinia Kuhns, and she having attained her lawful age early in October previous, a full settlement was made with her on said 10th April 1871, at Lancaster, Pa., in the presence of counsel for the administrators of her father’s estate, and who prepared the guardianship account, release and note then taken. That at her request, $4700 of said balance was left stand, said Stehman giving her his note therefor payable in one year with five and a half per cent, interest, and the residue of said balance paid her in cash. That said note, according to her wishes, remained unpaid until the spring of 1874, the interest in the meantime being paid; and at the time last mentioned she was in Lancaster county for some five or six weeks, and several days at the residence of your respondent. That she had every opportunity to examine his account, and the settlement made, and never raised any objection, to the knowledge of respondent, until the presentation of the petition, and by numerous letters to him, all showing the confidence in and entire satisfaction with what the said Stehman had done in her estate. That a release given by her to said Stehman, her guardian, dated April 10th 1871, was recorded in the recorder’s office at Lancaster, and the following is an extract therefrom :
    “£I have this day had and received from John B. Stehman, my guardian, the sum of four thousand eight hundred and seventy-one dollars and eight cents ($4871.08) in full satisfaction and payment of the full balance of the account filed by him as aforesaid, and of all moneys received by him for my use during said guardianship from any and all sources whatever, and all interest accrued thereon after deducting the payments by him made and credited in said account.’
    “That all the allegations contained in said petition, which in any way impute or insinuate that the respondent has neglected to account for the moneys due the petitioner are untrue, &c.”
    To this answer the petitioner filed a general replication and asked for the appointment of an auditor to ascertain and report the facts.

      The court, Patterson, A. L. J., discharged the rule and dismissed the petition, in an opinion, inter alia, saying:—
    “The decree of confirmation in this case by the Orphans’ Court having been made by a court of record, and such as cannot be avoided collaterally, but liable only to be reversed or modified by the Supreme Court on an appeal, if made within the time prescribed, and this review not having been asked for within five years after final settlement and confirmation, is it not final and conclusive ? We think it is. We are forced to this conclusion by the provision of the Act of Assembly of the 13th October 1840, and the judicial decisions construing that act, so far as we have been able to discover them. Groff’s Appeal, 9 Wright 379 ; Weiting v. Nissley, 6 Barr 141; Bunting’s Appeal, 4 W. & S. 469; and other authorities might be cited. The first section of that act clearly fixes a limitation to petitions of review. That limitation is that it must be done within five years after the final decree, confirming the original or supplementary account of the guardian. Not one of the cases cited on the argument in support of this petition of review questions that, or intimates that its provisions fixing that limitation can be disregarded. And this case not coming within the limitation fixed by the act referred to, cannot consequently come within either the letter or spirit of the proviso act of October 13th 1840. If it did come within the purview of that proviso, and though the balance found due in the account, already filed by the late guardian, “shall have been paid over,” this petition of review might probably not be denied. Yet as the confirmation of a guardian account can only be opened on equitable principles, and in view of all the facts made manifest by the pleadings in this case, it is very doubtful whether the court would come to the conclusion that “equity and justice” required the petition of complainant to be entertained. . We think the account filed by respondent April 10th 1871, and confirmed on the 19th day of June 1871, is clearly a bar to these proceedings, commenced January 6th 1877.
    “ We, therefore, discharge the rule and dismiss the petition.”
    From this decree this appeal was taken.

      Thomas F. Franklin and Cfeo. Brubaker, for appellant.
    The Act of 1840 does not limit the granting of a rehearing on petition for review to five years, where there are specific allegations of fraud. The decree of the- Orphans’ Court may be impeached for fraud: Mitchell v. Kintzer, 5 Barr 216 ; Jackson v. Summerville,
    1 Harris 359 ; Reeside v. Reeside, 6 Phila. R. 514. Statutes are made to prevent, not to protect fraud, and where it is shown courts will set aside judgments and decrees: Fermor’s Case, 3 Coke 77 ; 2 Kent’s Com. 655, n. All we contend for is, that this case should be sent back, with directions for the appointment of an auditor to investigate the facts and report the same.

      N. Mlmaher and D. Gr. Ushleman, for appellee.
    No error in law is alleged as appearing in the decree, and no new matter has been discovered since, so that if this proceeding had been started within five years, no ground for opening the decree is shown: Russell’s Administrator’s Appeal, 10 Casey 258. The Act of 1840 is a bar to a review of a decree after a lapse of five years, although specific errors are pointed out: Weiting v. Nissley, 6 Barr 141; Bunting’s Appeal, 4 W. & S. 469; Kinter’s Appeal, 12 P. F. Smith 318. Fraud is not to be presumed and must be proved: Stine v. Sherk, 1 W. & S. 202; Bear’s Estate, 10 P. F. Smith 430. Under the Act of 1840, if the petition for review does not disclose such a case as equity would relieve, it may be dismissed without reference to an auditor.
    May 27th 1878.
   Mr. Justice Trunkey

delivered the opinion of the court

The guardian’s account was confirmed at June Term 1871. The petition for review was presented on January 6th 1877. The alleged error is, that the accountant did not charge himself with $1090.46, the difference between the sum he had received, as her share of her father’s estate, and the sum shown in the account. On the 10th day of April 1871, the balance on the face of the account was paid to the petitioner, whereupon she gave a formal receipt in full satisfaction.

Section 1 of the Act of October 13th 1840, Purd. Dig. 1109, gives a right to rehearing of so much of a guardian’s account as is specifically alleged to be error, within five years after the final decree of confirmation. It was not the intent of the proviso in that section, because of payment of the balance, to preclude re-examination when the accountant had failed to charge himself with money for which he was liable to account: Kinter’s Appeal, 12 P. F. Smith 318. The mere omission of the accountant to charge himself with money received by him, and for which he was liable, cannot be corrected on petition for review after the lapse of five years: Weiting v. Nissley, 6 Barr 141. It follows that unless the petitioner shows matter to take the case out of the limitation of the Act of 1840, she is without remedy. For this purpose she charges actual fraud by the accountant, and that she had no reason to suspect his falsehood and fraudulent concealment of facts until within two months before presenting her petition. The case now comes on petition and answer, and the sole question is, has the petitioner, if the fraud appear, a right to a rehearing ? The learned judge was of opinion that the Act of 1840 is conclusive against her. We cannot agree that it is the intendment of that statute to take from the Orphans’ Court, a court of equity, the power to relieve against fraud not discovered for five years from the decree. It had such power before the enactment. Though a remedial statute it is set up here as a limitation. “ In equity the Statute of Limitations begins to run from the discovery of the fraud, and not before Ferris v. Henderson, 2 Jones 49. So at law fraud is an answer to a plea of the Statute of Limitations: Bricker v. Lightner, 4 Wright 199. The authorities are numerous to like purport. With stronger emphasis it should be ruled that when an executor, administrator or guardian has perpetrated a fraud in the settlement of his account, the limitation in the Act of 1840 begins to run from its discovei’y by the injured party.

To grant a rehearing for “ such relief as justice and equity may require, by reference to auditors, or otherwise,” is not an adjudication that the guardian was guilty of the alleged fraud; but that the inculpatory evidence, and, if need be, the exculpatory, shall be heard and duly considered. No fact, affirmed by one party and denied by the other, will be presumed, at the rehearing, without satisfactory proof of its existence.

The alleged error is specifically charged. Do the facts as set forth, taken as true, show fraud ? The petitioner avers that in 1868, when in her minority, she removed to Ohio, where she has since resided, and her guardian knew of her change of residence; that she was ignorant of the amount and value of her father’s estate and of the share coming to her; that she was assured by him that the sum with which he had charged himself was all he had received for her from said estate; and that relying on his integrity and on the truth of his said assurance, she accepted the same and took no steps to investigate the truth thereof. She had arrived at age six months before. The answer states material things to consider on the question of fraud, to wit, that the guardian made a full settlement with her on said April 10th 1871, in presence of the respectable counsel of her father’s estate, who prepared his account and her release; that she had every opportunity to examine his account, and raised no objection; and numerous letters to him, the last dated May 25th 1874, “ all showing the confidence in and entire satisfaction with what the said Stehman had done in her estate.”

A guardian is bound to the utmost good faith in transactions with his ward. Settlements made soon after the ward comes of age are watched by the courts with strictest scrutiny; and, if it appear that the influence of the guardian continued at the time of settlement, unless he shows that it was fair, just and conscionable, It will be set aside for constructive fraud. The reason for this rule operates in a case like the present. What would be unworthy of serious attention between strangers, dealing with each other at arms length, would be conclusive of fraud against one seeking an unfair advantage from his undue influence arising in a confidential relation. Here a young woman made a final settlement with her guardian. She had full confidence in him, evidenced by her friendly visits and letters for years after. She had every opportunity to examine his account prepared by the counsel for the administrators of her father’s estate, and she made no objection; nor does she now object to what is on its face, for it is fair to look upon. The surroundings were persuasive to her mind that all was right. She was ignorant of the value of her father’s estate, and was assured by the guardian that he had charged himself with all he had received from said estate. The counsel wrote the release and she signed it without suspicion. The foulness was not on paper, it was in the assurances and concealments of him who was bound to disclose everything to his ward which she ought to know. If it be true that he had received $1090.46 more than charged in the account, can it be pretended the alleged facts do not disclose a fraud ? It is mockery to say she could have ascertained the truth, for her confidence in her guardian long continued. There was not a circumstance to shake it, or move her to inquiry.

Decree reversed, at costs of appellee, and the record ordered to be remitted to the Orphans’ Court for further proceedings.


text:
    Grebill’s Appeal.
    Where a husband, before the Act of 1848, never claimed his wife’s money as his own, the assertion of title to it by a bequest in his will did not make it a part of his estate which he could transfer to his son after his wife’s death.
    May 8th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Appeal from the Orphans’ Court of Lancaster county: Of May Term 1878, No. 27.
    Appeal of John B. Grebill, legatee under the will of John Grebill, Sr., deceased, from the decree of the court directing the payment of a certain sum named in the will of decedent.
    John Grebill, Sr., by his will proven the 19th of September 1840, among other things, directed as follows :—
    “4. I give and bequeath unto my beloved wife Susanna, the interest of a principal sum of $2000, which interest money at such rate as can be obtained by my executors, shall be paid to my said beloved wife annually, on the first day of April, during her continuing my widow and no longer; and in case my beloved wife Susanna should get married again, then and in such case I do hereby give and bequeath unto her the sum of $647.20, lawful money (being the amount she had when we got married), to be paid to her out of said principal sum of $2000, and the balance of said sum to be paid as hereinafter directed.”

      “ 5. I do give and bequeath unto my youngest son John (by my wife Susanna), the sum or legacy of $2000, which shall be retained by my executors out of my estate and placed at interest on good security for such percentage as can be obtained to and for the use of my said son John, until he arrives at the age of twenty-one years, when the same with all interest accrued shall be paid to him, his heirs or assigns; and in case the annual interest before given and bequeathed to my beloved wife during her widowhood, should prove insufficient for the maintenance and support of my said beloved wife and my said son John being with her, in such case I hereby order and direct my executors to pay unto my said beloved wife annually as much of the interest accruing on the said sum of $2000, bequeathed to my said son John, as will accomplish said object during the time my son John will live with my widow.”
    “And farther, I give and bequeath unto my said son John, his heirs and assigns, the aforesaid sum of $2000, whereof my beloved widow receives the interest during her widowhood, to be paid to my said son at the death of my said beloved wife, if she die my widow; but at the marriage of my said wife, then the balance of said sum, after paying thereout such part before bequeathed to my wife, shall only be paid to or for the use of my son John.”
    The executors of the will of said testator filed their account in the register’s office on the 30th day of October 1845, in which they took credit for the sum of $2000, which sum they retained to meet the provision in the 4th section of testator’s will.
    John, the son, was born on the 23d of May 1837, and became of age May 23d 1858.
    Susanna, the widow, did not marry again and died November 30th 1876.
    The petition of John B. Grebill, the son, in this case, prayed for an order directing Jacob Grebill, the surviving executor, to pay him the said sum of $2000, with interest, from the time of the death of the widow. This order the court refused; but ordered and decreed that -tjie surviving executor should pay to the petitioner the said sum, less $647.20.
    The remaining facts will be found in the opinion of the court.
    The foregoing decree was assigned for error.

      A. Herr Smith and B. G. JEshleman, for appellant.

      George Brubaker and H. Q. Brubaker, for appellee.
    October 7th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

No copy of John Grebill’s will has been printed in either of the paper-books, and no statement of its general scope and tenor has been presented. In the absence of evidence and suggestion, it may be assumed that the testator provided for the distribution of his entire estate. If he did so, and if the property he possessed has been divided among his beneficiaries, it would seem certain that there is no fund in the hands. of the surviving executor for the payment of the sum of $647.20 claimed by the appellant, if that sum belonged in fact at the time of the testator’s death to his widow.

By the fourth clause of the will, the annual interest on $2000 was bequeathed to Mrs. Grebill during her widowhood. The bequest was made subject to modification in these words: “In case my beloved wife Susanna should get married again, then and in such case I do give and bequeath unto her the sum of $647.20, lawful money, being the amount she had when we got married, to be paid to her out of said principal sum of $2000 ; and the balance of said sum to be paid as hereinafter directed.” Another legacy of $2000 was given in the fifth clause of the will to the testator’s youngest son, John, the appellant. The executors were required to invest this money, and to pay it with the accrued interest to the legatee when he should become twenty-one years of age. They were authorized, however, to apply so much of the interest of the legacy as should be required for the maintenance of the widow and the son, they living together, in case the interest previously bequeathed to the widow should be insufficient to maintain them. The fifth clause closed with the following provision, relating to the fund set apart by the fourth clause for the benefit of the widow: “And further, I give and bequeath unto my said son John, his heirs and assigns, the aforesaid sum of $2000, whereof my beloved widow receives the interest during her widowhood, to be paid to my said son at the death of my said beloved wife, if she die my widow; but at the marriage of my said wife, then the balance of said sum, after paying out such part before bequeathed to my wife, shall only be paid to or for the use of my son John.”

Mrs. Grebill did not marry, and after her death, the present demand of the appellant for the whole sum of $2000, the interest of which had been given to her, was asserted. To the extent of $1352.80, the demand was not resisted ; b.ut the surviving executor of the will denied the right of the claimant to the residue, amounting to $647.20, on grounds which were held to be adequate by the Orphans’ Court. After her marriage, and in her husband’s lifetime, a sum precisely equal to this residue had been found due to Mrs. Grebill in a settlement with George Groff, her guardian. At the request of both the husband and wife, Mr. Groff retained the money, and, as he testified in 1843, “gave her a bond for it and put it out at interest.” The principal of the fund remained in his hands until Mr. Grebill died, and was subsequently paid to the widow, who in the meantime had received the interest. After the receipt of the money from the guardian, Mrs. Grebill brought suit to recover one year’s interest on $2000. The cause was tried in August 1843, and the verdict of the jury found that this sum of $647.20, specified in the fourth item, was the identical sum which had been ascertained to be due from the guardian, and had been retained in his hands. Having elected to treat that money as her own, and not subject to disposal by her husband, ‘and having obtained possession of it from its custodian, the Court of Common Pleas held that Mrs. Grebill was entitled to recover the interest only on the remaining sum of $1352.80. In accordance with that decision, interest was paid to her on that sum from the date of the trial to the date of her death.

It is clear from the evidence submitted to the Orphans’ Court, that the balance found due by Mrs. Grebill’s guardian never passed into the actual possession of her husband. It appeared that he had exercised some dominion over it, it is true, but it was kept apart from his personal funds, was recognised as separate property of his wife, and the security for it was stated by the guardian to have been given to her. Though, before the Act of 1848, marriage was in effect a gift of the wife’s personal estate in possession, it was but a conditional gift of her chattels in action, such as debts, contingent interests, money owing her on account of intestacy, or orphans’ portions in the hands of the chamberlain of London: 2 Ventr. 341. At common law a husband had a naked power over the dioses in action of his wife, but it was one which he was not obliged to exercise even for the benefit of creditors: Dennison v. Nigh, 2 Watts 90. Nothing has been shown even tending to prove that during his lifetime Mr. Grebill ever claimed his wife’s money as his own, and the assertion of title to it by a bequest in his Avill could not affect rights which she had been permitted to retain. That bequest did not, therefore, make it part of his estate which he could transfer to his son after his wife’s death. It was said in Hartman v. Dowdel, 1 Rawle 279, that a husband could assign a security belonging to his wife, but in order to make the assignment valid, the assignee would have to show that he was a purchaser. “ In other words,” the court said, “the husband may sell his wife’s chose in action, but cannot give it away freed from the incidents of the marriage.” In that case it was ruled that an assignment of a wife’s interest in her father’s estate as a collateral security for her husband’s debt, did not deprive her of her right of survivorship, the husband having died before the interest was reduced to possession. There can be no question, under the undisputed facts presented here, that the sum of $647.20 in controversy was intended to be included as part of the $2000 on which interest was to be paid to Mrs. Grebill. But it was her property, and not her husband’s. When she reclaimed it, she withdrew it from the control of his executors, and to just that extent reduced what he treated in his will as the volume of his estate. So far as the amount in question is concerned, the gift to the son amounted to a legacy of an < identified and specified fund, to which the testator had no title. And the appellant has produced no reasons to support his demand that the fund should be replaced by a resort to the general assets of his father’s estate.

Decree aflSrmed, and appeal dismissed at the costs of the appellant.


author: Mr. Justice Paxson

text:
    Missimer, Assignee, versus Ebersole.
    1. Where a new execution issues without disposing of the levy on the old one, and there is nothing to connect the property levied upon under the alias with the property seized under the fi. fa., excepting similarity in description, the alias fi. fa. and the levy under it amount to an abandonment of the levy upon the original fi. fa., and the.lien thereof is gone.
    2. Where the lien of the fi. fa. was thus lost by an abandonment of the levy, the rights of an intervening assignee for creditors attached, and there could be no valid levy under the alias fi. fa. upon the assigned property.
    May 8th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodavard and Trunkey, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1878, No. 58.
    The facts are fully stated in the opinion of this court.

      J. B. AmwaJce and A. J. Liberty, for plaintiff in error.
    Until there was a disposition of the property levied upon, under the original fi. fa. an alias fi. fa. could not regularly issue for the same property, and ought to have been set aside: Potts’s Appeal, 8 Harris 253; Ingham v. Snyder, 1 Whart. 116; Eckhols v. Graham, 1 Call. 492; Harrison v. Wilson, 2 A. K. Marsh. 547; Alley v. Carroll, 3 Sneed 110. By issuing a second execution the plaintiff waived the first and destroyed the lien on the property taken thereunder : Eckhols v. Graham, supra.

      N. Bllmaher, for defendant in error.
    In Potts’s Appeal, supra, the alias fi. fa. issued before the return of the original writ, but here the original was returned before the alias issued. And the alias issued immediately upon the return of the original, and such a coui’se certainly cannot be construed as an abandonment of the prior levy.
    May 20 th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

On the 3d day of April 1877, Abraham Ebersole (defendant in error), issued a Avrit of fieri facias against Samuel Blecker, and on the 5th of April the personal property of Blecker was levied upon by the sheriff. Subsequently, the writ was stayed by the order of the court below, the lien of the levy being preserved by said order, and a rule granted to show cause why the judgment should not be opened. This rule was discharged on the 25th of September following. In the meantime (April 23d 1877), Blecker, the defendant in the execution, executed an assignment for the benefit of his creditors, which was delivered to the assignee on the same day, accepted by him and duly recorded. After the discharge of the rule to open the judgment, the said writ of fieri facias was returned by the sheriff to the office of the prothonotary, at the request of the counsel of the defendant in error. The return is “ writ stayed by court.” At this point-the execution-creditor had a valid and subsisting levy, and his right to have issued a venditioni exponas and proceed to sell the property, could not have been denied. lie did not do so, but issued an alias fi. fa., under which the sheriff' made a new levy. His return makes no reference to the levy formerly made on the fi. fa. It was conceded at bar, however, that most of the property seized undér the alias was the same property previously levied upon under the fi. fa. There were, however, a number of articles not included in the first levy. These items were subsequently stricken out by the court. The court below was asked to set aside the alias fi. fa., on the ground that it was irregular, and that it was an abandonment of the levy upon the fi. fa. This motion was refused, and forms the subject of the three assignments of error.

It was held in Potts’s Appeal, 8 Harris 258, that issuing a new execution without disposing of the levy on the old one Avas an irregularity, but one that could be taken advantage of by no one but the defendant. In that case the alias fi. fa. was levied upon the same property that had been seized upon the prior writ. This fact is stated in the return to the alias, as well as the further fact that it was made ‘'subject to all prior claims and levies made on same.” It will thus be seen that in Potts’s Appeal there was an irregularity but no abandonment of the prior levy. The return to the alias shows the property to be the same, and evinces a clear intention to retain the lien of the fi. fa. In the case in hand there is nothing to connect the property levied upon under the alias with the property seized under the fi. fa. excepting similarity in description.. For aught that appears from the return the property may have been entirely different. In point of fact a portion of it was different, as has been already said. We think the alias fi. fa. and the levy under it amounted to an abandonment of the levy upon the fi. fa., and that the lien thereof is gone. If it Avas intended not as an abandonment, but to do what actually Avas done, to seize on property not before seized, it was, as Avas said by this court in Ingham v. Snyder, 1 Whart. 115, “a most unheard of proceeding, and one whose consequences could have been averted but by relinquishing it at the threshhold.” In that case the lien of the levy on the fi. fa. was preserved only by the withdrawal of the pluries prior to any action upon it.

When the lien of the fi. fa. was lost by an abandonment of the levy the rights of the assignee for creditors attached, and there could be no valid levy under the alias upon the assigned property. For a mere irregularity in the execution no one but the defendant can complain, as was said in Potts’s Appeal, supra, but a voluntary assignee represents the assignee, and stands in his shoes. What the assignor may do, his assignee, as his representative, may do for him. The assignor made the motion in the court below to set aside this execution. Beside, the abandonment of a levy would seem to be a different matter than a mere irregularity in the execution, and one which purchasers or creditors could take advantage of. A discussion of this question, however, is not essential to this case.

The order of the court below, of the date of October 27th 1877, discharging the rule to set aside the alias fi. fa. is reversed, and it is now ordered that said rule be made absolute.