text:
    Mulherrin versus Delaware, Lackawanna and Western Railroad Co.
    1. The D. railroad company, by agreement, had a right of trackage on the tracks — two running parallel at a distance of seven feet from each other— of the B. company. The plaintiff was a brakeman of the B. company ; his train passed from one track to the other, and in the performance of his duty he left the train and closed the switch, the train passing on some distance into the yard without him. He stopped a few minutes and walked along the track to go to his train, which he might have reached in some other way; whilst so on the track he was struck by an engine of the D. company, going in the same direction, and injured. Held, that he had no right to be on the track ; that being there was contributory negligence per se, and he could not recover from the D. company for the injury.
    2. Where a person goes on a track, he cannot recover from'the company except for wanton injury, although the negligence of the company’s agent contributed to the result.

      3. Except at crossings, where the public have a right of way, one who steps on a track does so at his peril.
    4. The employees of the company whose duty requires them to go on the track, if injured, have no redress against the company; they take the risk upon undertaking the employment.
    5. Whilst passing from one point of the road to another, the plaintiff had no higher protection than a stranger.
    6. The plaintiff was, within the meaning of the-Act of April 4th 1868, an employee lawfully engaged about the roads, &c., of the D'. company, and therefore entitled only to such right of action as if he had been aii employee of the D. company.
    March 14th 1876.
    Before A&new, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1875, No. 64.
    This was an action on the case, brought June 25th 1872, by Patrick Mulherrin against the Delaware, Lackawanna and Western Railroad Company.
    The action was to recover damages for injuries sustained by the plaintiff in consequence of having been struck by an engine of the defendants, whilst he was walking on the track of the Lackawanna and Bloomsburg Railroad. The railroads of the two companies intersected at a point near Scranton.
    By an agreement between the two companies, datéd April 28th 1863, the defendants had the right to use the Lackawanna and Bloomsburg Railroad for the transportation of coal from the intersection near Scranton to Nanticoke, and to and from all intermediate points.
    The plaintiff was in the employ of the Lackawanna and Blooms-burg Company, as a brakeman. On the 29th of June 1871, he was walking on one of the tracks of that company within the city of Scranton, when he was struck by an engine of the defendants drawing a heavy train of coal cars, and so severely injured that it was necessary to amputate both his legs.
    The case was tried October 21st 1874, before Harding, P. J.
    The evidence showed that whilst 'the defendants’ trains had a right under the agreement to run on the other company’s tracks, yet the running was to be such as not to interfere with the latter company’s regular trains ; in consequence, the defendants! trains did not run on any schedule time, but were running by telegraph and signals. The accident occurred near the crossing of Scranton avenue, which is also intersected by Jackson street, in the part of the city known as Hyde Park. There were two tracks of railroad here; one bound north on which laden cars passed; the other bound south on which usually unladen cars passed; the space between these two tracks was seven feet, and the space between two engines passing on the respective tracks would be about three and a half feet; on the outside of the southern track there is a space where persons can walk without risk; there w-ere below the Scranton avenue crossing two switches to enable trains to pass from the southern to the northern bound track.
    John Dacy testified.: that he was watchman at. the Scranton avenue crossing, in-the employ of the Lackawanna and Blooms-burg Company; his watchhouse was about four or five feet from the northern bound track; from that place he could see about eighty rods down the track. On the day of the accident witness saw the plaintiff on his train; he jumped off and opened one of the switches, his train went into it, he closed it and the train went on to Scranton so fast that the plaintiff could not again get on the train ; if after a switch is turned the brakeman is wanted, the engine is “ slowed up” for him to get on ; if it leaves him behind, he stays till the engine comes back ; if the train should not come back it would be the duty of the brakeman to join his train. After the plaintiff had turned the switches, he walked to the watch-house and got from witness a match to light his pipe; while standing talking with witness, the plaintiff’s train came out from Scranton, and went into the “ hill switch ;” when plaintiff saw it, he walked from witness about two steps out on the northern bound track; there was then a train coming down from Scranton on the south bound track; w'hen plaintiff stepped on the track he took the direction towards the “ hill switch” toward his train ; near the watchhouse there was a gully that goes across the track at the intersection of the streets; plaintiff stepped on the track around the gully, and walked on toward the “hill stvitch,” still on the north bound track ; the gully where it passed under the track had no covering but the ties; a minute or two after plaintiff left witness, a train came down on the north bound track, the two trains passed the crossing together ; the northern train gave no signal; the southern train did; witness thought the northern train was going fourteen or fifteen miles an hour; this train belonged to the defendants, and consisted of a heavy load of coal cars; a second after the northern bound train passed, witness was told that a man had been run over ; he went out and found plaintiff lying in a gully on his back, with feet and legs “ mashed;” he had been pulled along the track, thirteen or fourteen cars had gone over him, pulling him until he fell into the gully.
    On cross-examination witness said, that plaintiff continued to walk on the track as long as he saw him. There was no way for plaintiff to get to his' train other than walking between the tracks and in the gutter outside of the south bound track, except “ he went by the turnpike and went down again, but that was a long ways for a man that was working to go iip the turnpike,” it would be safer for a man to.walk on the track when it is empty than between the tracks.
    Another witness testified: that she was on the south track and met plaintiff walking on the other track towards his engine; the engine on the south track whistled for her to get off the track ; the plaintiff just then passed her, the other engine was coming up, the two trains passed pretty near together; the train on the north track knocked plaintiff down and dragged him. There was no whistle from that engine; the loaded train came very fast; the plaintiff could not see the train.
    The plaintiff testified that on the morning of the accident his train started to Scranton from Bellevue switch, which is south of Scranton, and reaches from near Scranton avenue down to about eighty or a hundred yards; when the train got below Scranton avenue, he got off the train and replaced the switches which had been opened by the front brakeman and the train had crossed over; the train had gone on and he could not reach it. It was his duty to join his train when and where he could; and if it was coming back, to wait there until it came back. If it did not come back it was his duty to approach and rejoin it; he was authorized to use the north bound track and always used it. The usages of brakemen at that particular point were, after closing a switch and their train was in sight, to take the track by the nearest course to get the train.
    “ I walked on to Scranton avenue crossing to where the watchman stood, and I expected my train to come from Scranton again after leaving a few cars; I staid until I saw them going over the bridge, and when they got at the ‘ hill switch’ they ran in there and stayed; at that time I stepped from Mr. Dacy out on the track and looked both ways when going on the track, and I saw nothing coming at that time; I saw tbe track was clear at that time; saw nothing on the northern bound track; there was an empty train on the southern hound track, passing ; then I proceeded a distance; 1 cannot tell the exact distance. * * * I proceeded towards the ‘ hill switch ;’ I did not do anything nor hear anything at all; was knocked down just about that time; I was knocked dowm probably half a second, and some man ‘hollered;’ * * * and that was all I-heard ; I was dragged quite a distance, and dragged into this gully and laid there.”
    The train which struck him was a “wild-cat” train belonging to the defendants; the schedule gives such trains a right on the tracks after certain hours of the day. He stood at tbe watchhouse to wait for his engine in case others should come along the track ; he was to hold them till his was out of the way ; where he was struck was about one hundred and sixteen feet from the watchhouse; there was no bell nor whistle sounded, except on the southern bound engine.
    On cross-examination he said it was doubtful whether he could have walked with safety between the two tracks; he could have walked on the southern side of the track;' but the train was between him and that side; when he first saw the south train it was between him and the “ hill switch;” this train had not passed him when he was struck.
    He further testified as to the extent of his injuries,,the continue anee of his sickness, expenses, &c.
    There was evidence also from several witnesses that no signal of the coming of the train was given, that it was going at a high rate of speed, &c.
    The defendants gave evidence that signals were given; that the train was going at the rate of five or six miles an hour, &c.; that the plaintiff stepped on the track just before the engine and just as he stepped there the engine struck him; when he came out of the watehhouse the engine was about fifteen or twenty feet distant ; plaintiff was about four feet from the engine when h,e stepped over the rail; he was halloed at by the brakeman of the train as soon as he stepped on the track. Also : that a man could stand with safety between the two tracks whilst two trains were passing each other.
    The following are points of the defendants and their answers-:—

      5. If plaintiff was not an employee of the company using the railroad, then, under the rule of Railroad v. Norton, he had no right whatever to be on the track, and his presence there was of itself negligence which concurred in producing the injury; and he cannot recover.
    Answer : “ This point we cannot affirm. If you find that he was improperly on the track, or there without exercising reasonable caution, brakeman though he was, then, of course, he cannot recover. But this is a question of fact for you under all the testimony in the case.”
    6. Under the provisions of the first -section of the Act of 4th April 1868, the plaintiff has no right of action and recovery against the defendant, other than would exist if the plaintiff had been an employee of the defendant at the time of the accident, and is, therefore, not entitled to recover.
    Answer: “We decline to affirm this proposition.”
    8. It was negligence on the part of the plaintiff to be on the track, and there can, therefore, be no recovery in the case, even though there may have been negligence on the part of the company’s employees.
    A-nswer : “ We have already said to you, and we repeat it, that it is for you to determine, under the testimony of Mr. Gaynor, under the testimony of the conductor, and under the testimony of Mulherrin himself, whether the latter negligently went upon that track, knowing, as he did, of these particular trains, and the right of the defendant to run them. If you shall find that he did, then he would not be entitled to recover. In determining, however, as to this, -it is 'your -duty 'to .consider every fact and circumstance brought to your notice by the witnesses in the case on the one side and the other. Such is our answer to this point.”
    9. As plaintiff was an employee on the railroad, well acquainted with the running of the trains, and therefore bound to exercise a high degree of care, it was negligence on his part to walk on the track on which he knew trains were constantly running, so as to approach him in a direction in which he could not see them, and he’ is therefore not entitled to recover.
    “ Our answer to this point may be stated thus: If any other person than a brakeman had gone upon that track, as the plaintiff admits he did, unquestionably it would have been negligence per se; and if such person had been. run down, it would have been the fruit of his own folly, and he could not recover. Whether the plaintiff was guilty of negligence, or not, is for you to determine, in view of all the evidence in the case, amongst which is the fact that he was a brakeman, and that it was his duty to close the switches near the watchhouse, his train moving on meantime, and the further fact that he was seeking to join it -when he was struck, though with full knowledge on his part that the defendant was running trains every hour in the day over the road at that point.”
    By the first section of the Act of 4th April 1868, Pamph. L. 58, 2 Br. Purd. 1094, pi. 5 : “ When any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, or in or about any train or car therein or thereon, of which company such person is not an employee,, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee.”
    The verdict was for the plaintiff for $4000.
    The defendants took a writ of error; they assigned for error the answers to their points.

      8. Woodward and A. T. MeOlintoeh (with whom was E. N. Willard), for plaintiff in error.
    — If it wTould have been negligence per se, in a person other than a brakeman, going upon the track as the defendant in this case did, then the fact that he was an employee of another company and about such other company’s business, doesjnot change the rule, and if he was injured while in the ordinary pursuit of that company’s business, under the circumstances of the case, and the fact that other brakemen were in the habit of walking on the track when there were other places of safety for them to walk, does not help the plaintiff’s case, nor change the rule of negligence. That which would have been negligence in any other person than a brakeman was negligence in Patrick Mulherrin : Railroad Company v. Norton, 12 Harris 465; Philadelphia & Reading Railroad Co. v. Hummel, 8 Wright 375.
    This Act of 1868 is constitutional: Kirby v. The Pennsylvania Railroad Company, 26 P. F. Smith 506. Thp case of the plaintiff falls within the terms of the Act of 1868 ; he had voluntarily ventured into employment alongside of the servants of the defendant. He knew well the risks of his employment, and cannot recover for injury even though it was caused by the negligence of the servants of defendants, who were engaged in the same employment and on the same railroad. It is the duty of courts in cases of clear negligence arising from an obvious disregard of duty and safety, to determine it as a question of law : Pittsburg & Connellsville Railroad Company v. McClurg, 6 P. F. Smith 294; P. & R. Railroad Company v. Hummel, 8 Wright 375; O’Brien v. P., W. & B. Railroad Company, 3 Phila. Rep. 76. Clear negligence on part of plaintiff is most conclusively established under the facts proved in the case, and the 8th and 9th points should have been affirmed.

      O. L. Lamberton (with whom was E. P. Eisner and F. Q. Hosier), for defendant in error.
    — The use of a railroad track, except at lawful crossings of public roads or highways, is exclusively for the company and their employees: Railroad v. Hummel, 8 Wright 375. Mulherrin was then rightfully on the track, and it was for the jury what his duties as brakeman required of him and his authority in discharging those duties, to be on the track at the time of his injury : Catawissa Railroad Co. v. Armstrong, 13 Wright 186.
    Negligence is to be submitted to the jury upon the question of reasonable and ordinary care under all the circumstances of the case : Patterson v. Wallace, 1 McQueen, H. of L. Cas. 48. Even where the facts are undisputed, it is for the jury and not for the judge to determine whether proper care was exercised or whether they established negligence: Sioux City & P. Railroad Co. v. Stout, 17 Wall. 637; Southworth v. Old Col. & New. Railroad Co., 105 Mass. 344; Bill v. Smith, 39 Conn. 296; Baltimore & Ohio Railroad Co. v. Dougherty, 36 Md. 366; Same v. Fitzpatrick, 35 Id. 32. When the standard shifts with the circumstances of the case, it is in its very nature incapable of being determined as a matter of law, and must be submitted to the jury to determine what it is, and whether it has been complied with: West Chester & Phila. Railroad Co. v. McElwee, 17 P. F. Smith 315; Catawissa v. Armstrong, 2 Id. 282; Penna. Coal Co. v. Bentley, 16 Id. 34; Johnson v. West Chester & Phila. Railroad Co., 20 Id. 357; Kay v. Penna. Railroad Co., 15 Id. 269; Glassey v. Passenger Railroad Co., 7 Id. 174; Phila. Pass. Railroad Co. v. Hassard, 25 Id. 367; Penna. Railroad Co. v. McTighe, 10 Wright 316.
    Whether Mulherrin’s acts and position at the moment of the accident contributed to his own injury were questions for the jury: L. & B. Railroad Co. v. Chenewith, 2 P. F. Smith 382 ; Catawissa Railroad Company v. Armstrong, 13 Wright 187; s. c. 2 P. F. Smith 282; Pennsylvania Railroad Co. v. Ogier, 11 Casey 60; Gaynor v. Railway, 100 Mass. 208; 2 Redf. Am. R. Cases 554. It is no justification to the defendants below that they were in the exercise of a lawful right, if the injury arose from the negligent manner-in which it was done. And this was a question for the jury: Penna. Railroad Co. v. Barnett, 9 P. F. Smith 259; 1 Redf. on Railroads, sect. 131, p. 527. The rapid running of a train of cars around curves at crossing places over the railroad without usual and necessary signals is negligence per se: Penna. Railroad Co. v. Ogier, 11 Casey 71; Reeves v. D., L. & W. Railroad Co., 6 Id. 454.
    The first section of. .the Act oi 1868 even if valid and applicable to persons falling within its terms, cannot be made to apply to the parties to this litigation. Mulherrin was not hurt on the road of the defendant company or near it; and is not within the words or purview of the statute. At no time was he “ lawfully engaged or employed on or about the roads, works, depots and prémises of the Delaware, Lackawanna and Western Railroad Company, or in or about any train or car therein or thereon.” The policy of the law is not to extend the rule restricting the right of action by the employee against the employer in cases of 'negligence: Catawissa Railroad Co. v. Armstrong, 13 Wright 186. Statutes are not presumed to make any alteration in the common law farther or otherwise than the act expressly declares, and must be construed strictly : Melody v. Reab, 4 Mass. 471; Gibson v. Jenney, 15 Id. 205; Commonwealth v. Knapp, 9 Pick. 496; Wilbur v. Crane, 13 Id. 284.
    A statute which is to take away a remedy given by the common law ought never to have an equitable construction, and must be construed strictly: Hammond v. Webb, 10 Mod. 282. The act in question being in the nature of a penal statute, ought to be construed strictly to save a right or to avoid a penalty : Whitney v. Emmett, 1 Bald. 316; Sprague v. Birdsall, 2 Cowen 419 ; Gilbert v. Col. Turnpike Co., 3 Johns. Cas. 107; Bennett v. Ward, 3 Caines 259 ; Sickles v. Sharp, 13 Johns. 497 ; Jones v. Eustis, 2 Id. 379; Myers v. Foster, 6 Cowen 567 ; Wales v. Stetson, 2 Mass. 146 ; Smith v. Spooner, 3 Pick. 229. A statute which grants exclusive privileges in derogation of the common-law rights of the citizens at large ought not to be extended by implication ; on the contrary, it should be construed strictly against the company: Cayuga Bridge Co. v. Magee, 2 Paige 116 ; Culver v. Hayden, 1 Verm. 359; McMullin v. McCreary, 4 P. F. Smith 230.
    It is not to be presumed that the legislature intended to make any innovation upon the common law further than the case absolutely required. The law rather infers that the act did not intend to make any alteration other than what is specified and besides what is plainly pronounced. If that had not been the intention, the legislature would have'expressed it otherwise: Dwarris on Statutes 43 ; Borland v. Nichols, 2 Jones 43 ; Stormfeltz v. Manor Turnpike Co., 1 Harris 555. The contract to use the roadway of the Lackawanna and Bloomsburg Railroad Company in common did not make Mulherrin subject to the rule governing employees of the company defendant: Catawissa Railroad Co. v. Armstrong, 13 Wright 187 ; s. c. 2 P. F. Smith 282 ; Hanover Railroad Co. v. Coyle, 5 Id. 396; Smith v. N. Y. & Harlem Railroad Co., 19 N. Y. 127; Sawger v. Rut. & Burl’n Railroad Co., 27 Vt. 370 ; Warburton v. Great Western Railroad, 36 L. J. N. S. Exch. 9 ; Farwell v. Boston & Worcester Railroad Co., 4 Metc. 49.
    May 8th 1876.
   Mr. Justice Paxson

delivered the opinion of the court,

This was an action of trespass on the ease for injuries resulting from alleged negligence on the part of the employees of the railroad company in moving their cars. The undisputed facts of the case are substantially as follows: The injury was caused by the train of the Delaware, Lackawanna and Western Railroad Company. The track was owned by the Lackawanna and Bloomsburg Railroad Company. The former company had the right of track-age over the road by virtue of an agreement between the two companies.; and the train of the Delaware, Lackawanna and Western Railroad Company was lawfully upon the track. There are two tracks at the point where the injury occurred. Between the inside rails of said tracks there is a space of seven feet in width, leaving a clear space between passing trains of about three and a half feet in width, while outside of the southern track there is room to walk without danger. Patrick Mulherrin, the plaintiff, was in the employ of the Lackawanna and Bloomsburg Company; as a brakeman. On the morning of the 29th of June 1871, he was on his train approaching Jkramton from á northerly direction; when near Jackson street he goFoTTTrom his train to turn the switch, and having performed this duty he went to the watchman’s house near the switch, where he remained some time in conversation with the watchman, then lighted his pipe and started towards Scranton to join his train, walking on the northern track. When he stepped on said track a train was passing him on the southern track. Instead of waiting until the train had passed, and then crossing over both tracks to the outside of the southern track, where there was clear space to have walked with safety, he continued walking on the northern track until he was overtaken by the defendants’ train moving in the same direction, which struck and badly injured him. Upon this state of facts he seeks to recover from the- defendants damages for the injuries sustained.

It was held in the Railroad v. Norton, 12 Harris 465, that where a person places himself on the track of a railroad, he can claim no damages except for wanton injury, and not for injury sustained in the pursuit of the company’s lawful business in the ordinary manner, even though the negligence of the company’s agent contributed to the result. It was said by Mr. Justice Woodward, in delivering the opinion of the court, that in order to make railroad companies to carry safely, “ the law insists upon a clear track.” This doctrine cannot be too emphatically asserted or rigidly enforced. We hold these corporations to a strict line of responsibility whenever passengers are injured by accidents to their trains. It follows that we should be equally emphatic as to their control of their tracks. Except at crossings, where the public have a right of way, a man who steps his foot upon a railroad track does so at his peril. The company have not only a right of way, but such right is exclusive at all times and for all purposes. This is necessary, not only for the proper protection of the company’s rights, but also for the safety of the travelling public. It is not right that the lives of hundreds of persons should be placed in peril for the convenience of a single foolhardy man, who desires to walk upon the track. In England it is a penal offence for a man to be found unlawfully upon the track of a railroad. It would add materially to the public safety were there a similar law here.

These remarks do not, of course, apply to employees of railroad companies whose duties require them at certain times and for certain purposes to be upon the track. They go there in the course of their employment, and under the well-settled rules of law they take the risk. In cases of personal injury they have no redress against the company employing them, and by the act of whose servants it is -occasioned. In this case the plaintiff was not. in the employ of the defendants, but was a brakeman of the Lackawanna and Bloomsburg Company. The evidence clearly shows that he was not necessarily on the track when he was struck by the train. He got off his train to perform a duty, to wit, the adjustment of a switch. That duty had been performed when he sought to rejoin his train. If, in doing this, he saw fit to walk upon the track, he did so at his own risk. His obligation to join his train involved neither a duty nor a necessity to walk where he was struck. It was clearly proved that there was ample opportunity of reaching his train without incurring such peril. It is .true some of,his witnesses say he could not have avoided the track without taking a circuitous route. But a careful examination of the testimony showed that this was based upon the fact that when he started there was a train upon the southern track. It appears from the cross-examination of the plaintiff, that if he had waited for a few moments, until the southern bound train had passed, he could have crossed over and walked along the outside of the southern track to his train in perfect safety. It was a mere matter of passing from one given point of the road to another. Whilst so engaged he had no higher protection than a stranger walking over the same ground. It was correctly said by the learned judge in another portion of his charge: “ If any other person than a brakeman had gone upon the track, as the plaintiff admits he did, unquestionably it would have been negligence per se ; and if such a person had been run down it would have been the fruit of his own folly, and he could not recover.” Yet in what better position was the plaintiff than a mere stranger ? He was not injured while engaged about the switch, or in any other duty which required his presence on the track. Passing from one point to another point on the road was not such a duty, unless there had been no other place for him to walk, which was not the case. We think, therefore, that as applied to the facts of this case, the defendant’s fifth point ought to have been affirmed, and that it was error to decline it.

There was also error in not. affirming the defendant’s sixth point. The case comes clearly within the terms of the first section of the Act of 4th April 1868, Pamph. L. 58, which provides, that when any person shall sustain personal injury or loss of life, while lawfully engaged or employed on or about the roads, works, depots or premises of a railroad company, or in or about any train or car thereon, of which company such person is not an .employee, the right of action and recovery in all such cases against the company shall be such only as could exist if such person were an employee.” This act was passed shortly after the decision in the Catawissa Railroad Co. v. Armstrong, 13 Wright 186, was published, in which it was held, that when a person in the employ of one railroad company was injured by the cars of another company who had the right to run their trains over the other’s road, the person so injured was not precluded from recovery on the ground that he was in the same general employ with the servants of the company whose cars caused such injury. It is highly probable the Act of 1868 was passed in view of this decision. Be that as it may, it is our duty to give it effect according to its plain meaning. The plaintiff’s case comes precisely within its terms. He was not an employee of the defendants, but he was employed on or about their road. The fact that the defendants were only entitled to track rights to the road is not material. This is not a question of the extent of their title. It was the road of the defendants for the purpose of moving their trains, which is sufficient to bring the case within the Act of 1868. This is decisive of the plaintiff’s case and renders it unnecessary to discuss the remaining assignments of error.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    Foster versus Barnes.
    1. S. and II., partners in a bakery, owned real estate which was used for partnership purposes ; they sold one-third of the interest in the firm to B., and afterwards conveyed to him one-third of the real estate. W. afterwards entered a judgment against B. S. died, and in proceedings in' equity by his administrators, against II. and B. as surviving partners, an account was decreed and a receiver appointed ; he petitioned the court, showing that the personal property was not sufficient to pay the debts, and asking for an order to sell the real estate, which was made, describing it as the property “ of the late firm of S., II. & B.under it the real estate was sold to 1?. Under W.’s judgment B.’s interest in the real estate was sold by the sheriff to W., the jury found that it was not partnership property. Held, that the sale by the receiver did not pass B.’s separate interest in the real estate discharged of W.’s judgment, but that he took that interest under the sheriff’s sale.
    2. On a judgment at law against a partnership for a firm debt on'a decree in equity for the payment of money, the separate property of each partner may be sold and the purchaser will take a title clear of the lien of judgments.
    3. As to the members of the firm — they being parties to the bill — the decree was conclusive that the real estate was partnership property; and the sale would pass whatever interest each had in it.
    4. The decree would not bind an adverse title nor would the title of one not a party to the proceeding be divested by the receiver’s sale.
    5. A recorded agreement by B. that his interest in the real estate was partnership property, would have affected only subsequent creditors; after the entry of thejudgment, he could not change the character of the real estate so as to affect the lien.
    6. For all partnership purposes, (except conveyance under the Statute of Frauds) making the real estate partnership property, changed it to personalty.
    7. As to all persons not parties to the proceedings in equity and not bound by the decree it remained an open question whether the real estate sold by the receiver was the property of S., H. & B.
    8. It is the equity which each partner has to have the partnership assets applied first to partnership debts that he may be relieved from individual liability, which gives partnership creditors priority of payment.
    9. W. would have had no right to participate in the fund raised from the receiver’s sale : it must have gone to the payment of firm debts.
    March 14th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1875, No. 88.
    This was an action of ejectment, brought August 1st 1874, by William H. Barnes against Charles Foster, for a'lot of land in the borough of Pittston.
    The premises in question, on the 15th of May 1869, were conveyed by Charles Pughe and Samuel Price to Charles Schlager and Gerard Hillers; the consideration was $6000; the conveyance was to them as tenants in common. The grantees, as partners in the cracker-baking business, afterwards put up a steam-bakery, containing a large amount of machinery, apparatus, &c., for carrying on their business. On the 12th of May 1870, they entered into an'agreement with Wesley D. Barnes, the son of the plaintiff, viz.:—

      “That the said Wesley D. Barnes this day becomes a partner in the firm of Schlager & Hillers, heretofore existing between said Charles Schlager and Gerard Hillers, and that from this date the firm name shall be Schlager, Hillers & Barnes, and the business shall continue to be the steam-bakery, business as heretofore.
    “ The said Wesley D. Barnes pays said Gerard Hillers and Charles Schlager the sum of ten thousand dollars, five thousand dollars to each, for which amount they shall transfer and assign unto said Wesley D. Barnes a one-third undivided interest in all the personal property of the late firm of Schlager & Hillers, including, &c., and also the undivided one-third interest in the real estate in which the said .firm of Schlager & Hillers now carry on their business, all of the said property, real and personal, to be sold and assigned to said Wesley I). Barnes, free and clear of all encumbrances, said Charles Schlager and Gerard Hillers to discharge all liens and encumbrances now' existing against said property.” * * *
    On the 23d of May 1870, Schlager and Hillers, in consideration of $2000, conveyed to Wesley D. Barnes “ the one undivided third part of” the premises. On the same day the plaintiff furnished to his son $5000, and took from him a judgment-note payable in six months, waiving inquisition, condemnation, &c.; judgment was entered on this note September 7th 1870. Schlager, one of the partners, died December 21st 1871.
    The surviving partners, Hillers and Barnes, continued the business of the partnership for some time after Schlager’s death.
    On the 21st of January 1874, the administrators, &c., of Schlager filed a bill in equity against the other partners, setting out amongst other things :—
    “ That the defendants have, since the death of Schlager, remained in possession of all the property and assets of the said firm, and continued the business thereof without at any time accounting for the share of the said decedent, although frequently required to do so by complainants; and are wasting the property, and mismanaging the affairs of the said firm, and endangering thereby an entire loss of the complainant’s interests therein.”
    The prayer was for an “ account of the said partnership business, and to pay over to the complainants whatever may be justly due them therefrom; and that a receiver may be appointed to take charge of and wind up the said business.”
    Under proceedings in the case Charles Pughe was appointed receiver, January 31st 1874.
    On the 6th of April 1874, the receiver petitioned the Court of Common Pleas, setting forth that the bakery was lying idle, that the property would depreciate in value, that an immediate sale of all the property would be beneficial to all interested, and was necessary to wind up the affairs of the firm.

      The prayer was for a sale of all the property of the firm ; the court ordered as follows :—
    “ Whereupon, it appearing manifest unto the court aforesaid, that the personal property was not sufficient to pay the debts of said firm, and that it would be beneficial to all interested that the real estate be sold: It was considered and ordered by the said court, on the 6th day of April 1874, that it be sold, according to the prayer of the petitioner.”
    In pursuance of this order, the receiver, on the 2d of May 1874, sold the real estate — being the property conveyed to Schlager and Hillers, the one-third of which had been conveyed to Wesley D. Barnes, as above stated — to Foster, the defendant, for |9050:
    The advertisement under which this sale was held, was as follows :—
    “ Public Sale. — By virtue of an order of the Court of Common Pleas of Luzerne county, sitting in equity, the undersigned will expose to sale by public vendde, or outcry, on the premises, on Saturday, the 2d day of May, A. D. 1874, at 11 o’clock A. M., the following described property of the late firm of Schlager, Hillers & Barnes, to wit,” &c.
    Under a pluries fi. fa. on the judgment of the plaintiff, W. II. Barnes, against Wesley D. Barnes, Wesley’s interest in the premises was sold by the sheriff to the plaintiff, and the deed to him acknowledged June 6th 1874.
    The sale by the receiver to Foster, the defendant, was confirmed by the court, September 23d 1874, and it was “adjudged by the said court that the same should be and remain stable for ever.”
    On the 21st of October 1874, the receiver executed and delivered to Foster, a deed for the whole of the lot, the deed reciting the proceedings and order in the Court of Common Pleas, and conveying “ all the estate, &c., of the said firm of Schlager, Hillers & Barnes,” in the premises conveyed. This deed was acknowledged in open Court of Common Pleas on the day of its date.
    Foster went into possession under the receiver’s deed.
    On the day of the receiver’s sale, Foster, the defendant, being present, the following notice on behalf of W. H. Barnes was publicly given-:—
    “ Notice is hereby given that the undivided one-third of the real estate, now about to be sold as the property of. Schlager, Hillers & Barnes, belongs to W. D. Barnes individually, and all purchases made at this sale will be subject to that right.”
    The case was tried November 18th 1874, before Harding, P. J.
    The plaintiff after giving in evidence such of the foregoing facts as showed a primá facie title in him, rested.
    The defendant called Pughe, the receiver, who testified that previously to May 1870, Schlager & Hilleré were doing business as partners in a steam-bakery on the property in question ; which was the only property they had in partnership ; after investigation into the business by the plaintiff and his son, Wesley D. Barnes, the son became a member of the firm about May 1870.
    Defendant gave evidence also that the plaintiff, about the time he issued his original fi. fa., knew of the proceedings in equity against the firm for the appointment of a receiver, &c.
    Hillers, one of the partners, testified that the plaintiff and his son made an application to witness and Schlager to admit the son into the firm; they went over the establishment and examined it thoroughly, and also examined their books to ascertain the extent of the business; the old firm agreed to sell one-third interest for $10,000 ; this sum was not to go into the partnership, but was to be applied to the debts of Schlager & Hillers, which they owed on therbuilding ; the real estate was to be held as partnership property, and the conveyance of the one-third of the real estate was in pursuance of the agreement for the partnership ; that agreement was prepared by the plaintiff; he furnished all the first payment, $5000 to his son. Schlager, Hillers & Barnes used the property for partnership purposes as it had been previously used by Schlager & Hillers.
    When the plaintiff was investigating into the business previously to his son entering the firm, he was shown the building, engines, &c., all the stock of flour, and other materials for baking, as the partnership property ; the building covered the whole lot. except a small strip. The remainder of 'the purchase-money beyond the first $5000 was paid by the son, he took it out of the business and charged himself with it.
    There was other evidence for defendant for the purpose of showing that the real estate was partnership property.
    The plaintiff testified that the one-third of the real estate was conveyed clear of encumbrance so that he could have a lien on it to secure his advance to his son, and that the' understanding was that it was not to be considered partnership property.
    The defendant’s points and their answers were as follows :—
    1. If the jury find that the lot in controversy was purchased for partnership property, and held and used for the purpose of carrying on the partnership business, and that the plaintiff knew that it was held as partnership property, the property so held and used was first liable to partnership debts, and the receiver’s salé was good and valid to vest the property in the defendant.
    Answer: “ If you are satisfied by clear, distinct and positive proof, that the plaintiff knew the transaction tó be as stated in the point, notwithstanding the deed was to the contrary, the proposition is well put, and we affirm it.”
    2. The decree for the sale of the real estate on the petition of the receiver, in the equity proceedings, was a judicial finding of the realty to be personal property, and liable to partnership debts, and the sale vested title in the purchaser in the whole property. ,
    Answer : “ We can hardly affirm that proposition in the broad terms in which it is couched. So far as it was partnership property, unquestionably the decree on the equity side of the court was conclusive, and bound every person in connection with the ownership. If it was partnership property, then, unquestionably, the title was conveyed, by the deed of the receiver, to Mr. Charles H. Foster; hut if it never was partnership property, but was held by the partners as tenants in common, then the adjudication referred to in the point was not conclusive as against the plaintiff. With this qualification we affirm the proposition.”
    3. The sale by the receiver under order of the court, was a judicial sale, made prior to the sheriff’s sale on plaintiff’s judgment, and vested title in the defendant, superior to any title acquired under the sheriff's sale, and the plaintiff is not entitled to recover.
    “ If the property was partnership property, we affirm the proposition ; if it never was partnership property, we decline to do so. If it was a tenancy in common, as claimed by the plaintiff, and as exhibited by the deed, and was levied upon, and sold by the sheriff to him, as is not denied, then the title vested in the plaintiff, and he is entitled to recover. If, on the other hand, you are satisfied by the showing, that it was partnership property, then the receiver’s sale vested the title in Charles H. Foster, and your verdict should be for the defendant. But if it never was partnership property, but was held by the partners as tenants in common, the adjudication referred to in the point, was not conclusive as against the plaintiff. With this qualification we affirm the proposition.”
    The court charged :—
    * * * “The controversy now relates to the real estate, and hence the question for you is, did the real estate partake of the characteristics of partnership property ? In other words, was the real estate and personal property, constituting the cracker-baking establishment, all partnership property ? If it was; if it all belonged to the partnership, as a whole, then the proceedings on the equity side of the court, and the sale by the receiver, to Charles II. Foster, vested in the latter a good title, and your verdict should be in his favor. But if the property was originally purchased by W. D. Barnes, as a tenant in common with Schlager & Hillers— that fact being indicated by the deed to him, which, unless there is something further in the case, is the controlling evidence — then the entry of the judgment before referred to, and a subsequent sale by the sheriff thereon, and the purchase by the plaintiff, would vest the title in the latter, and he would be entitled to recover.
    “ The defendant has exhibited articles of partnership between Schlager, Hillers and W. D. Barnes, in which the personal property, and this real estate, are all recited; he relies upon this, as strong evidence of the character of the property, and as distinguishing the ownership from a tenancy in common. The agreement undoubtedly expresses the understanding of the parties ; but that it fixes this real estate as partnership property, so far as the plaintiff here is concerned, is quite another matter.
    “ Gerard Hillers is one of the parties who executed the- deed. Ordinarily, he could not be a witness for the purpose of contradicting his solemn deed. He testifies that although the deed recognises a tenancy in common, yet, in fact, the property was partnership property and was so regarded and used. We may say to you, however, in this connection, that so far as the use of the property was concerned, it was not a controlling element, as to the ownership of these parties. The mere occupancy of the property by the partnership, would not warrant the assumption, by a creditor, that it was partnership property, for the reason that it might have been rented; and for the stronger reason, that upon the proper records of the county of Luzerne, a crowning evidence had been placed, that the property was held by Schlager, Hillers & Barnes, not as partners, but as tenants in common.” * * *
    The verdict was for the plaintiff.
    The defendant took a writ of error. He assigned for error the charge of the court and the answers to his points.

      A. JRicJcetts and A. T. McQKntoolc, for plaintiff in error.
    — The articles of partnership were a solemn declaration by deed, on the part of Schlager & Hillers, that the property occupied and used by them as a steam-bakery, both real and personal, was partnership property; and on the part of Wesley D. Barnes, that he purchased and held with them as partners, an undivided one-third interest in the same. And the plaintiff below had unquestionable notice of these articles. This was sufficient to notify the defendant in error, that this realty as well as the personalty, was partnership property : McDermot v. Laurence, 7 S. & R. 438 ; Hale v. Henrie, 2 Watts 143; North Pennsylvania Coal Company’s Appeal, 9 Wright 181.
    The occupancy of the real property by the firm, was notice that it was the firm’s property: Lewis v. Bradford, 10 Watts 67; Kerr v. Day, 2 Harris 112 ; Ebbert’s Appeal, 20 P. F. Smith 79.
    Land bought for partnership purposes and paid for out of partnership funds, is partnership property, though conveyed in the deed to the partners as tenants in common : Abbott’s Appeal, 14 Wright 234; Pars. on Part. 364.
    The decree for the sale of the real estate by the receiver was a judicial finding that the real estate was partnership property, and therefore conclusive : Marsh v. Pier, 4 Rawle 273, and cases cited; Kean v. McKinsey, 2 Barr 30; Edwards’s Appeal, 16 P. F. Smith 89; Taylor v. Cornelius, 10 Id. 187 ; Wescott v. Edmunds, 18 Id. 34; Evans v. Tatem, 9 S. & R. 252; Moore v. Spackman, 12 Id. 287 ; Wilkinson’s Appeal, 15 P. F. Smith 189.
    The order of the court adjudicating the realty to be partnership property, was manifestly right; but even if it had been erroneous, that was a matter with which the purchaser, at the receiver’s sale, had no concern. All that he was required to do was to ascertain that the court had jurisdiction, and exercised it, and made the order for the sale: Voorhees v. The Bank of the U. S., 10 Pet. 449, and cases cited; Grignon v. Astor, 2 How. 319; Gray v. Brignardello, 1 Wall. 627; McPherson v. Cunliff, 11 S. & R. 422.

      J. V. Barling and W. P. Byman (with whom was- E. G. Butler), for defendant in error.
    — To affect strangers, purchasers, mortgagees and creditors, there must be some written evidence of the intention of the partners to make real estate partnership assets, and where there is simply a conveyance to them as tenants in common, it is not competent to show by parol evidence, that the property was in fact designed to form a part of the partnership assets: Ridgway’s Appeal, 3 Harris 177; McDermot v. Laurence, 7 S. & R. 438; Lefevre’s Appeal, 19 P. F. Smith 122 and Ebbert’s Appeal, 20 Id. 79. Or even that this fact was known to the purchaser : Hale v. Henrie, 2 Watts 145 ; Lancaster Bank v. Myley, 1 Harris 547; McCormick’s Appeal, 7 P. F. Smith 54. A sale by a receiver to wind up a partnership conveys partnership property only, and neither he nor the creditors can claim as assets of the firm, property which the partners have elected to consider separate property : Gow on Partnership 255. The appointment of a receiver determines no right and in no way affects the title to the property : 2 Daniel Chan. Prac. 1431, note 3. When trust property of any kind is sold under an order of court, there is no implied warranty of title, the soundness, or the quality of the property sold: Storm v. Smith, 43 Miss. 497 ; Huber v. Armstrong, 7 Bush (Ky.) 590. In judicial sales of real or personal'property, there is no warranty: Freeman v. Caldwell, 10 Watts 9; Fox v. Mensch, 3 W. & S. 444; Brown v. Wallace, 2 Bland (Md.) 479; United States v. Duncan, 12 Ill. 523. A sale made by order of a court of equity is, until final ratification, an executory contract, open to objection, and should not be enforced, if the enforcement would be inequitable and'against good conscience: Hunting v. Walter, 33 Md. 60; Bickley v. Biddle, 9 Casey 277; Vandever v. Baker, 1 Harris 126; 2 Leading Cases in Equity 72.
    May 8th 1876.
   Mr. Justice Sharswood

delivered the opinion of the court,

The verdict of the jury, under instructions from, the court, in which we find no error of which the plaintiff has any right to complain, has established that the premises never were the partnership property of Schlager, Hillers & Barnes. This dispenses with the necessity of considering either that question or the knowledge or notice of the plaintiff.

The question in the cause is then reduced to this, whether the sale by the receiver under the order of the court did pass the separate interest of Wesley D. Barnes, to the purchaser, clear and discharged of the lien of the judgment, in favor of the plaintiff below.

Undoubtedly on a judgment at law against a partnership for a firm debt, the separate property of each partner may be levied upon and sold, and the purchaser will take a title clear of the lien of judgments. The same result must follow in a sale under a decree of a court of equity for the payment of money. By the Act of Assembly of March 29th 1859, Pamph. L. 289, it is declared, “ that decrees in equity for the payment of money, shall be and constitute a lien on the real estate of the defendants or debtors named in the decree, in the manner, for the like period, and with the same force and effect as the lien of judgments rendered by and in the common-la,w courts of this Commonwealth.” But the decree for the sale by the receiver in this case was special, “ the following described property of the late firm of Schlager, Hillers & Barnes.” As to the members of the firm who were parties to the bill, that decree was conclusive that the premises were partnership property. They could have been heard in opposition to the decree and to the confirmation of the sale. They would be estopped from alleging as against the purchaser that it was 'not partnership property, and the sale would of course pass whatever interest each one of them had in it. But how are the rights of the plaintiff below, whose judgment was a lien upon the undivided third of the property of one of the partners, held by him according to the paper title, and as the verdict establishes, as a tenant in common, to be affected ?' It is not pretended that it could have bound an adverse title. The title of a third person not a party to the proceeding could not have been divested by the sale. When the judgment of the plaintiff below was entered, its lien attached upon the title of Wesley D. Barnes, as a tenant in common of real estate. No act of Wesley D. Barnes, after that, could change its character so as to affect or injure the lien. If he had agreed and put it upon record, that the land should be partnership property, that could only affect subsequent creditors who w;ould have constructive notice of it. For all purposes connected with the partnership, e-xcept sale and conveyance under the stringent provisions of the Statute of Frauds, that change is from real to personal property. As to all third persons not parties to the proceeding in equity, and not therefore bound by the decree, it remained an open question whether the premises sold under the order were or were not “ property of the late firm of Schlager, Hillers & Barnes.” The bill was merely for an account of the partnership business “ and to pay over to the complainant whatever may be justly due them therefrom, and that a receiver may be appointed to take charge of and wind up ,the said business.” It is the equity of each of the partners that the partnership assets shall be applied in the first instance to the payment of partnership debts, that they may be relieved from their individual liabilities for those debts, which gives partnership creditors any right to priority of payment. The fund raised by the sale under this order must have gone to the payment of firm debts. William H. Barnes, the plaintiff below, would have had no right to participate in the fund. So far as he was concerned it was the same thing as if the sale had been of the right, title and interest of an entire stranger. The estoppel upon the parties to the bill, which concludes them from averring anything against the force and effect of the decree, does not close his mouth. On the whole, then, we find no error in this record.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Schriffer versus Saum et al.

    1. A mechanics’ lien was for labor, &c., “in the erection and on the credit of a building, of which A. Schriffer and Charles Schriffer were the owners, and the claimants the builders for the said A. and Charles, at whose request the work, &c., were done for said building.” A. was the wife of 0. Held, to be defective in not setting out A.’s coverture, and in joining her with C. without averring that he was her husband, and not setting out that the work &c., were for the improvement of her separate-estate.
    2. To charge the property of a married woman the coverture must be set forth, and it must appear from the record that the debt is within the spirit and meaning of the Act of April 11th 1848.
    3. It must appear affirmatively that the debt was contracted with intent to apply its proceeds to the improvement of the wife’s separate estate, and also that they were actually so applied.
    4. Within the six-months for filing the claim, an amendment that C. was the husband of A. was allowed. This cured the defect in this respect.
    5. Dearie v. Martin, 28 P. F. Smith 55, followed.
    March 15th 1877.
    Before Agnew, C. J., Sharswood, Mer.cur, G-ordon, Paxson and Woodward, JJ.
    Error to the Mayor’s Court of the city of Scranton: Of January Term 1875, No. 169.
    This was a scire facias sur mechanics’ lien, issued August 4th 1873 by George Saum and Conrad Schrader, against “Mrs. A. Schriffer and Charles Schriffer, owners or reputed owners and contractors.” THe lien had been filed on the same day the scire facias issued. It was as follows :—
    “ George Saum and Conrad Schrader file this their claim for the payment of the sum of $865.25 and interest, as per bill hereto attached, * * * against all that double wood, stone, brick and slate dwelling-house, &c., * * * the said sum of $865.25 being a debt contracted for labor, viz.: carpenter, work, &c., * * * and for materials, viz.: lumber, &c., * * * done and furnished by the said George Saum and Conrad Schrader, in part, by virtue of a written contract now'in possession of the above-named defendants (but a synopsis of which is hereunto attached as a part hereof), and in part by virtue of verbal agreements within six months last past, for and about the erection of said building, and on the credit thereof, of which the said A. Schriffer and Charles Schriffer were, and are, the owners or reputed owners, and the said George Saum and Conrad Schrader, the builders and contractors for the said A. Schriffer and Charles Schriffer, and at whose instance and request the said work was done and materials furnished as aforesaid for said building.” * * *
    “ Synopsis of written contract of Mrs. A. Schriffer and Charles Schriffer with George Saum and Conrad Schrader:—
    “ Said contract is dated in or about the month of September or October 1872, and is for the materials for and the erection and construction by said Saum and Schrader of a double dwelling-house of stone, brick, wood, lime, sand, slate, paint, hardware, &e., situation on eastern side of Madison avenue, near Mulberry street, in the city of Scranton. Size sixty-six by forty feet, with finished basement, first, second and attic stories and Mansard roof, windows, doors, fastening materials, painting, stairways, halls, &e., as more fully set out and described in specifications hereto attached. Consideration, $5000 ; terms, $1500 when the basement walls were up ; $1500 when the house was under roof, and $2050 when the house was completed. /

    [Signed] George Saum,
    Conrad Schrader,
    A. Schrieeer,
    Charles Schrieeer.”
    The work was completed April 26th 1873.
    On the 19th of August 1873, the defendants filed an affidavit of defence, admitting that the sum of $500 was due by them and tendering judgment for that amount.
    On the 22d of .December 1873 the defendants pleaded nil debet, payment with leave and set-off.
    On September 4th 1874, on motion of plaintiffs, the court permitted the record to be amended so that the defendants in the lien be stated as “ Mrs. A. Schriffer and Charles Schriffer, her husband, owners,” &c., and that all the pleadings be amended accordingly.
    On the 23d of January 1875, on motion of plaintiffs, the record was amended by striking out the name of Charles Schriffer wherever it appeared in the record.
    The case was tried January 23d 1875, before Ward, Recorder of the Mayor’s Court.
    The plaintiffs, under objection and exception, gave in evidence a contract under seal dated August — 1872 between Mrs. Schriffer alone of the first part and the plaintiffs of the second part for the erection of the building mentioned in the claim; it was signed by Mrs. Schriffer and the plaintiffs. They also gave evidence of the performance of the work.
    The defendants gave evidence that the house was not well built, nor in accordance with the contract, &c.
    The verdict was for the plaintiffs for $862.02.
    The defendant took a writ of error and assigned for error,
    1. Permitting the lien to be amended by adding the words “her husband and contractor,” and striking out the name of Charles Schriffer.
    2. Admitting in evidence a contract under seal, signed by A. Schriffer ; the contract being made by a married woman.
    3. Entering judgment against Mrs. A. Schriffer in this case.

      D. W. Ranh and J. Mahon, for plaintiff in error.
    — Before the amendment of September 7th 1874, it did not appear as if this woman had been one of the parties, except by implication that she had signed a contract with Charles Schriffer: Russell v. Bell, 8 Wright 47; Dearie v. Martin, 28 P. F. Smith 55. The lien and claim show that it was based on contract dated in September or October 1872, signed by Mrs. A. Schriffer and Charles Schriffer, but not averring that this woman was the wife of Charles Schriffer. The averment in the lien that the building was constructed by virtue of one contract, could not be proved by offering in evidence a contract under seal, signed by Mrs. A. Schriffer, a married woman, for work done, or to be done. The variance was fatal: Cunningham v. Shaw, 7 Barr 401 ; Scott v. Horn, 9 Id. 407 ; Stump v. Hutchinson, 1 Jones 533.
    A married woman cannot dispose of or charge her separate estate by an instrument under seal independently of her husband: Pettit v. Fretz, 9 Casey 118 ; Bear v. Bear, Id. 525 ; Murray v. Keyes, 11 Id. 384. The court could not enter judgment against this married woman, since there is no averment that it wras for the improvement of her separate estate, nor does it aver her coverture, nor that the contract was under seal. A mechanics’ lien, to bind the separate estate of the wife, must show upon its face her coverture, and that the work was done with her authority and consent. This lien shows none of these requisites, and is therefore radically and incurably defective: Dearie v. Martin, supra. She must be impleaded with her husband. An action against a married woman without naming her husband, and averring that it is for necessaries for her family, or the improvement of her separate estate, and judgment thereon, are void.

      II. N. Willard and W. U. Grearhart, for defendants in error.—
    A reference to it (the contract) in the lien was unnecessary, mere surplusage: O’Brien v. Logan, 9 Barr 99. If there had been defects in the lien, the plea cured them. Defects on the face of a claim are not raised by such a plea; they must be considered as waived. The invalidity of a lien cannot be taken advantage of under the plea of payment with leave: Lee v. Burke, 16 P. F. Smith 336; Lybrant v. Eberly, 12 Casey 347; Lewis v. Morgan, 11 S. & R. 234; Abbott v. Lyon, 4 W. & S. 38; Richabaugh v. Dugan, 7 Barr 394; Lehman v. Thomas, 5 W. & S. 262.
    March 27th 1876.
   Mr. Justice Gordon

delivered the opinion of the court,

The claim, as filed by the plaintiff, was defective in two material points. 1. It did not set out the coverture of Mrs. A. Schriffer, but joined her with Charles Schriffer without indicating that he was her husband. Without more, that was sufficient to avoid the lien. In order to charge the property of a married woman, the fact of coverture should be set forth; and it must appear from the record that the debt which is sought- to be charged upon her separate estate is within the spirit and meaning of the Act of 1848 : Dearie et ux. v. Martin, 28 P. F. Smith 55. 2. The claim does not allege that the work and materials were done and furnished for and about the improvement of her separate estate. This also is a defect fatal to the plaintiff’s lien ; for it must appear affirmatively that the debt was contracted, not only with the intent to apply the proceeds thereof to such improvement, hut that they were actually so applied: Heugh v. Jones et ux., 8 Casey 432. In fine, it must appear from the record that the debt charged is within the letter or • spirit of some one of the exceptions of the Act of 1848: Mahon v. Gormley, 12 Harris 80; Murray v. Keyes et ux., 11 Casey 384. An amendment was made within the six months allowed by the statute for filing the claim, setting forth the 'fact that Charles Schriffer was the husband of Mrs. A. Schriffer. This doubtless cured the first defect which we have pointed out, but not the second. As, however, this amendment was stricken off by a subsequent one, striking out the name of Charles Schriffer altogether, and as the judgment was rendered on the record as it thus stood, it is clear that the first amendment failed of its object. Indeed this last error was, if possible, worse than the first; for as the proceedings now stand they not only fail to show -coverture, but they charge the defendant, confessedly a married woman, as a feme sole. It is manifest, from the above, that the contract between the defendant and the plaintiffs should not have been admitted in evidence; for the record failing to show such a condition of affairs as would charge her estate, her contract, however explicit, must count as nothing: Dearie v. Martin, supra.

Judgment reversed.


author: Mr. Justice Merour

text:
    Commonwealth versus Beamish.
    1. A school district is not a “ body corporate” within the meaning of 118th sect, of Act of March 31st 1860 (Criminal Code), making it a misdemeanor for a director, &c., to falsify papers, &c., of such body corporate.
    2. School districts are not strictly municipal corporations, having neither seal nor legislative powers; like counties and townships, they are quasi corporations.
    3. An indictment charged that the defendant, being a director and secretary of a school district, with intent to defraud, altered, &e., a “book and writing, known as the duplicate of taxes,” &c.: Held, 1, that the indictment could not be sustained under the 118th sect, of Act of 1860. 2. Nor for forgery at common law, neither copy nor purport of the whole writing, nor the part altered being set out.
    4. The indictment was good under Act of March 31st 1860, sect. 17 (Criminal Procedure Act) ; — “ duplicate of taxes” being that by which the tax list, for collection, &c., is “ usually known.”
    5. “ Duplicate,” when used in connection with the collection of taxes, has a known and recognised meaning..
    March 16th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Certiorari to the Court of Quarter Sessions of Luzerne county: No. 20, of July Term 1875; at the instance of the Commonwealth.
    The following indictment was found in the Court of Quarter Sessions for the county of Luzerne, at April sessions 1875:—
    “ The grand inquest, &c., * * * * * do present:
    That F. A. Beamish, yeoman, of said county, on the thirty-first day of May, A. D. eighteen hundred and seventy-three, at, &c. * * * * being a director of the fourth school district of the said city of Scranton, a body corporate then and there duly and legally organized and existing, under and by virtue of the laws of the said Commonwealth, and also an officer of the same, to wit: the secretary of the board of directors of the said body corporate, did, with intent to defraud, alter, mutilate and falsify a certain book and writing, commonly known as the duplicate of the taxes levied for the use of the said school district, for the year ending on the thirty-first day of May, A. D. eighteen hundred and seventy-three, or thereabouts; it being a book and writing belonging to the said fourth school district of the said city of Scranton, a body corporate as aforesaid; contrary to the form of Act of Assembly in such case made-and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.”
    ~On the 27th April 1875, the defendant moved to quash the indictment, “ for the reason, that’said indictment sets forth no indictable or legal offence as committed by the defendant; for the reason that the fourth school district of the city of Scranton, of which the defendant is alleged was a director, is not such a body corporate or public company as is contemplated by section 118 of the Act of 31st March 1860, under which the indictment is found.”
    The court quashed the indictment.
    This was assigned for error, on the removal of the record to the Supreme Court by the Commonwealth.
    The Act of March 31st 1860 (Griminal Code), sect. 118, Pamph. L. 410, 1 Br. Purd. 349, pi. 171, is as follow's:—
    “ If any director, manager, officer or member of any bank, or other body corporate or public company, shall, with intent to defraud, destroy, alter, mutilate or falsify any of the books, papers, writings or securities belonging to the bank, body corporate or public company of which he is a director, manager, officer or member, or shall make or concur in the making of any'false entry, or any material omission in any book of accounts or other document, he sl^all be guilty of a misdemeanor.”

      A. Farnham, District Attorney, and A. FicJcetts, for Commonwealth.

    — “ Body corporate” in the act includes a School District Act of May 8th 1854, sect. 18, Pamph. L. 620, 1 Br. Purd. 242, pi. 38. Express words in a statute are not to be disregarded: Commonwealth v. Penna. Ins. Co., 1 Harris 165 ; Mayor v. Davis, 6 W. & S. 269; Potter’s Dwarris on Statutes, pp. 144, 146; Dame’s Appeal, 12 P. F. Smith 417; Bartolett v. Achey, 2 Wright 273 ; Howard Association’s Appeal, 20 P. F. Smith 344 ; Gyger’s Estate, 15 Id. 311.

      S. Woodward, contra.
    May 8th 1876.
   Mr. Justice Merour

delivered the opinion of the court,

It is very evident that this indictment was designed to be framed under the 118th section of the Act of 31st of March 1860, 1 Purd. Dig. 349, pi. 171. It was a mistake, however, to assume a school district to be such a corporation as is indicated in that section. The Act of Assembly has conferred on the several school districts certain capacities as bodies corporate ; such as to sue and be sued ; to purchase and hold such real and personal property as may be necessary for the establishment and support of its schools, and to sell the same when no longer necessary for those purposes; and generally to make other contracts therefor in their corporate names. Yet it has not made them strictly municipal corporations. They have neither a common seal nor legislative powers. Like counties and townships, they are 'quasi corporations. Within a prescribed space they exercise many of the faculties of a corporation : Wharton et al. v. School Directors, 6 Wright 358.

That this view of the section accords with the legislative intent is manifest in other parts of the same act. Thus, sections 116, 117 and 119, contain substantially the same language : “ If any person, being a director, officer or manager of any body corporate or public company.” Yet other portions of each section clearly show that it does not apply to municipal corporations. Whenever there is any design to extend the penal provisions of the statutes to the officers, books or records of a public office or corporation, the intent is expressed in unmistakable language. This is done in section 17-1, page 365, pi. 255; and again in section 15, page 318, pi. 21. Hence it follows that this indictment cannot be sustained under the 18th section of the act.

A further inquiry is, whether the indictment is good at common law, modified by our Criminal Procedure Act.

Forgery at common law, says Blackstone, 4 Com. 247, is the fraudulent making or alteration of a writing to the prejudice of another’s rights; and by Mr. East, to be the false making or altering malo animo, of any written instrument for the purpose of fraud and deceit: 2 Am. Crim. Law, sect. 1418.

This indictment charges that the defendant, a director and secretary of the board of school directors of the fourth school district of the city of Scranton, “ did, with intent to defraud, alter, mutilate- and falsify a certain book and writing, commonly known as the duplicate of the taxes, levied for the use of the said school district for the year ending on the thirty-first day of May, A. D. eighteen hundred and seventy-three, or thereabouts, it being a book and writing belonging to the said fourth school district.” It thus charges: first, the fraudulent intent ■; second, the alteration and falsification; third, of a writing which it describes by name. The former two are averred with sufficient precision to sustain an indictment at common law. The third is insufficient. It is true, inasmuch as the fraudulent alteration of a material fact affects .the whole instrument, the forgery may be specially alleged, as constituted by the. alterations, or the forgery of the whole instrument may be charged: Idem, sect. 1480. Hence, an indictment for forging an order for nineteen dollars is supported by evidence that the order was originally made for nine dollars, and genuine, and that it had been altered to nineteen dollars: Idem, sect. 1484; State v. Flye, 26 Maine 312. Thus, at common law, the indictment need not designate the specific words or parts of the writing altered, hut under the averment that the whole is forged, the alteration of the particular part may be proved. Plere, however, neither copy nor purport of the whole, nor of the part altered, is set forth or described. It therefore fails to answer the requirements of the common law.

The remaining question is, whether it is good under our “ Criminal Procedure Act of 31st of March 1860 ?” This act wrought a great change in criminal pleadings. Sect. 13, Purd. Dig. 379, pi. 18, declares, “ in any indictment for forgery, uttering, stealing, embezzling, destroying or concealing, or obtaining by false pretences, any instrument, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or fac simile thereof, or otherwise describing the same or value thereof.”

If this written instrument is described by the name or designation by which it is usually known, it fills the requirements of the statute. It is described in the indictment as “ a book and writing, commonly known as the duplicate of the taxes levied for the use of the school district.” We think the word “ duplicate,” when used in connection with the collection of taxes, has a well-known and recognised meaning. It is known to all men.

Section 13th of the Act of 8th of May 1854, Pamph. L. 619, relating to common schools, declares the president shall “ issue the duplicate and warrant for the collection of the district taxes.” Section 14th declares the secretary “ shall prepare the duplicate of school tax.” Section 31st says, all the taxes levied and assessed “ within each school year shall be contained in the same duplicate,” and that “ the board shall appoint some suitable and competent person as collector of the school tax duplicate for each township, borough or ward.” Section 2d of the Act of 21st of April 1869, Pamph. L. 87, directs the board “ to place in the hands of the treasurer a certified duplicate of the school tax” for collection. If the taxes are not paid to him within a specified time, section 3d requires the board to elect a collector, and “have the duplicate placed in his hands” for the collection of the unpaid taxes.

Thus the statutes unite with popular language iii giving to the book in question the name of “ duplicate.” Hence it appeal's the indictment substantially gives the name or designation by which it is usually known.

It therefore follows the learned judge erred in quashing the indictment.

Judgment reversed, motion to quash dismissed, and a procedendo awarded.


author: Per Curiam.

text:
    Mull’s Executors versus Mull’s Administrator.
    1. A testator gave the “ yearly interest ” of a sum to his wife for life and after her death “ the principal shall be equally divided among all my children or their legal heirs, if any of my children should die before such mentioned period doth arrive:” Held, the legacies to his children were vested.
    2. “ To be equally divided among all my children,” shows the intention to put them all on the same platform, which would create a vested interest in all.
    3. The words, “ or their legal heirs,” were n'ot to idividuate grandchildren, but to supply a legal succession, and mean “legal representatives.”
    March — 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Series county: of January Term 1876, No. 162.
    This was an amicable action and ease stated in which Mary Mull, administrator, &c., of Reuben Mull, deceased, was plaintiff, and Henry Mull and Thomas Mull, executors, &c., 'of Thomas Mull, deceased, were defendants.
    The action was entered March 16th 1876.
    The question arose under the following clause in' the will of Thomas Mull, deceased, who died in August 1842, leaving to survive him his wife Elizabeth and six children, two of whom were Reuben and Edwin:—
    “ Item 3d. I further give and devise unto my said wife Elizabeth, in lieu of her dower, the yearly interest at six per cent, of the sum of $3000, to be paid to her annually, on the 1st day of April, by my hereinafter-named executors, who shall hold the said principal in trust during my said wife’s lifetime, and, after her decease, I direct that the said principal of $3000 shall be equally divided among all my children, or their legal heirs, if any of my children should die before such mentioned period doth arrive.”
    Thomas Mull and Henry Mull, other sons of the testator, were appointed executors of his will.
    At the death of the testator, Reuben had one child, who died before bis father without issue.
    On the 9th of April 1851, Edwin assigned to Reuben all his interest in the $3000, retained for the use of the widow during her life.
    Reuben died in the life of the widow, leaving a widow, the plaintiff in this case, and one child. Edwin died after Reuben, but also in the life of the widow, leaving two children. The widow died January 17th 1874. The executors had in their hands for distribution $2312.02, part of the $3000. The plaintiff as administratrix of Reuben claimed one-sixth of this sum in the right of Reuben himself and another sixth in his right as assignee of Edwin.
    It was agreed by case that if the court should be of opinion, that the legacies to the children were vested, judgment should be entered for the plaintiffs for $770.67; if the court should be of opinion otherwise, judgment to be entered for defendants.
    The court (Hagenman, P. J.) entered judgment for the plaintiff for $707.67 with interest.
    This was assigned for error on the removal of the record to the Supreme Court by the defendants.

      W. M. Goodman, for plaintiffs in error. —
    A testator may substitute one class of legatees for another in th'e event of the death of that other class prior to the occurrence of a limited contingency : 2 Jarman on Wills 695. If it appear that the testator meant the time of payment to be the period at which a legacy should vest, with a direction for'payment to the legatee at a definite period, although it be given in terms of immediate bequest, and the legatee die previously, he will have taken no interest in the legacy to transmit to his personal representatives, because the period of payment is of the essence of the bequest: 1 Roper on Legacies 557. The bequests became absolute at or upon the death of the testator’s widow and not before. That part of testator’s will, “ legal heirs,” meant children : Umstead’s Appeal, 10 P. F. Smith 365.

      A. G. Green, for defendant,
    cited Patterson v. Hawthorn, 12 S. & R. 112 ; Provenchere’s Appeal, 17 P. F. Smith 463 ; King v. King, 1 W. & S. 207.
    March 13th 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

— There is no clearly-expressed intention in the will of Thomas Mull to bequeath over to certain persons, either by name or description, the principal of the legacy of $3000, in the event of the death of any of his children, in the lifetime of the widow. The only words are, “ to be equally divided among all my children or their legal heirs.” If there were anything else in the will to evince the testator’s meaning to be children when he used the words “legal heirs,” we might conclude thát they were the legatees of the principal sum. But the form of the bequest to be “ equally divided among all my children,” shows an evident intention to put all upon the same platform of ownership, which would carry a vested interest in all. The words following, “ or their legal heirs,” evidently were used not to individuate grandchildren, but to supply a legal succession in the event of the death of any ‘ one, and mean simply legal representatives. The legacies were therefore vested, and passed on the death of any one to his executors or administrators.

Judgment affirmed.


text:
    Rounds versus Waymart Borough.
    1. The Act of March 25th 1864 provided that the property of soldiers should be exempted from taxation, &c. ; the Act of April 8th 1873, enacted that all real estate should be taxed, except certain classes specified, the property of soldiers not being one excepted, and laws inconsistent, &c., were repealed. Held, that the Act of 1864 was not repealed.
    2. A general statute without negative words will not repeal a previous statute, which is special, although the provisions be different.
    3. -To repeal a previous statute requires a clear inconsistency between the two laws.
    ■ 4. The Act of 1873, as bearing on the Act of 1864, construed.
    March 16th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Wayne county: Of January Term 1875, No. 238.
    This was an amicable action 'and ease stated, in which the borough of Waymart was plaintiff and Hubbel Rounds defendant. It was entered in the court beldw to February Term 1874.
    The facts set out in the case were as follows-
    “ Hubbel Rounds, the defendant, was a volunteer in the war of the rebellion, having enlisted * * * September 10th 1862, and continued in the service until the close of the war, July 1865. Rounds resides in the borough of Waymart. * * * He is assessed for personal property and real estate, and previous to the year 1873 had not been assessed, either on his real or personal property, with any bounty tax in said borough, by virtue of the provisions of the 4th section of the Act of March 25th 1864, Pamph. L. 86, viz.: ‘All assessments heretofore made of taxes for the purpose of paying bounties, as aforesaid, be and the same are hereby legalized and made valid : Provided, that the property of non-commissioned officers and privates, in actual service in the United States army and navy, from this .Comihonwealth, or who died, or were permanently disabled in such service, or having been in such service for the space of one year and six months, were honorably discharged therefrom,’ &c., ‘shall be exempted from any taxation under the provisions of this act.’
    “Bounty bonds were issued by said borough of Waymart, in March 1864, for the payment of which a tax has been levied against said Rounds for the year 1873, for which the borough claims to collect from him the sum of $6.72, which assessment is made both' on his real and personal property. Rounds was honorably discharged from said service after having remained therein for over one year and six months.”
    By the 1st section of the Act of April 8th 1873, Pamph. L. 64, Br. Purd. Sup. 1820, pi. 1, “ all real estate within this Commonwealth shall be liable to taxation for all such purposes as now are or hereafter may be provided by general laws, excepting only therefrom the classes of property specifically exempted from taxation;” and then naming the various kinds of property specifically, among which soldiers are not mentioned, nor the Act of March 25th 1864: “ and all laws or parts of laws inconsistent with the provisions of this statute, be and the same are hereby repealed.”
    The questions submitted to the court are: Does the Act of April 8th 1873 repeal the Acts of March 25th 1864, March 15th 1865, and March 30th 1866, as regards exemptions, and is the * * * defendant, Rounds, liable to pay the bounty tax as assessed against him, to wit, on his real and personal estate ? If the court should be of opinion that he is liable, then judgment be entered against the defendant, on the case stated, for the amount of the tax for which he is so liable on his real estate. But if the court are of opinion that he is not so liable, then judgment to be entered in favor of defendant.
    The court (Dreher, P. J.), in delivering the opinion of the court, said:—
    * * * “ This Act of April 8th 1873 is so plain and unambiguous that it needs no interpretation. It interprets itself. ‘ All real estate within this Commonwealth shall be liable to taxation for all such purposes as now is or may be provided by general laws;’ ‘ and all laws .or parts of laws inconsistent with the provisions of this statute be and the same are hereby repealed.’ The act excepts certain classes of property, but the property of persons who have been in the military service of the United States is not excepted. As bounty taxes are assessed, levied and collected by a general law, they clearly come within the provisions of this statute. The property of such persons was, by the prior acts authorizing taxation for payment of bounties, excepted from such tax; but those acts, so far as they exempted real estate, are repealed by the express language of the Act of 1873, that ‘ all laws or parts of laws inconsistent with the provisions of this statute be and the same are hereby repealed.’ The personal property of the defendant remains exempted from bounty tax, and therefore the tax assessed in this case on personal property is illegal, but the tax on real estate is legal. Let the judgment, therefore, be entered in the case stated in favor of plaintiff and against the defendant for the sum of $5.72, the amount of tax on defendant’s real estate, with costs.” * -* *
    Judgment was accordingly entered against defendant for $5.72. He took this writ of error, and assigned for error the entering of this judgment.

      M. M. Thorpe (with whom was Q: E. Lathrop), for plaintiff in error.
    — General expressions in a statute are restrained, when it appears that it was the intention of the legislature to provide only, for particular cases-: Bank of N. America v. Fitzsimmons, 3 Binn. 356 ; Street v. Commonwealth, 6 W. & S. 209; Cadbury v. Duval, 10 Barr 270. A general statute without negative words will not repeal a previous statute, although their provisions be different; Brown v. Commissioners, 9 Harris 37.
    Or. Or. Waller, for defendant in error.
    May 8th 1876.
   Mr. Justice Gordon

delivered the opinion of the court,

The error of the court below was in supposing that the Act of 8th of April 1873 repealed the exemption in the Bounty Acts of 1864-5-6.

The Act of 1873 provides that “all real estate within this Commonwealth shall be liable to taxation for all such purposes as now is or hereafter may be provided by general laws;” and it repeals all laws or parts of laws inconsistent therewith. The court were of opinion that the exemption of the property of soldiers, as found in the Bounty Acts, was inconsistent with the provisions of the above recited act, and hence repealed by it. We do not think so. A general statute, without negative words, will not be construed so as to repeal a previous statute, which is particular or special, though the provisions in the two may differ. So, to repeal an express enactment requires a clear inconsistency between the two laws: Brown v. Commissioners, 9 Harris 37; Street v. Commonwealth, 6 W. & S. 209. Applying the above rules to the question before us, and the Act of 1864 must stand unaltered, for this statute relates only to a particular subject, and cannot survive the occasion for which it was created. Unless, therefore, we find in the Act of 1873 some words expressly negativing its provisions, we must treat it as untouched by the latter act. Again, not only are the acts not inconsistent, but it is clear, from the wording of the Act-of 1873, that it was not intended to affect any particular act, but rather to except all such from its provisions; for it provided only against the exception of real estate that was then or might thereafter be liable to taxation by general laws. As the soldiers’ property was not then taxable by any general law for bounty purposes, and as the exemption is found in a particular act not affected by the Act of 1873, we may, we think, safely conclude that the general statute was not intended in any manner to modify or alter the particular act.

The judgment of the court below on the case stated is reversed, and it is ordered that judgment be entered for the defendant.


text:
    Lehigh Valley Insurance Co. versus Fuller et al.

    1. To a scire facias in an attachment execution issued in one county against an insurance company as garnishees in another, the officer returned that'he served the writ ‘‘ by giving a * * * copy * * * to 0., agent of the garnishees, and by summoning him as garnishee and by making known to him the contents thereof.” Judgment was taken by default against the garnishees: Held, that under the Act of May 4th 1852, the service being personal on the agent, it was not sufficient.
    2. Under the Act of 1852 the service must be “ at the usual place of business or residence ” of the agent and in no other way.
    3. The return must show on its face a legal service.
    4. In a rule to open the judgment, depositions were taken to show that the person served was not agent of the garnishees: the rule was discharged. Held, that the depositions were no part of the record and the Supreme Court could not inquire as to whether the person served was an agent on whom process could be served.
    ■ 5. The decision of the court below on the rule to open the judgment could not be reviewed in the Supreme Court.
    March 16th 1876.
    Before Agnew, C. J., Siiarswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Mayor’s Court of the city of Scranton: Of January. Term 1876, No. 87.
    This was an attachment execution in which G. A, and I. F. Fuller were plaintiffs, PI. Krause, defendant, and the Lehigh Valley Insurance Company garnishees.
    The plaintiffs, having a judgment against the defendant, issued an attachment execution in which the Lehigh Insurance Company were garnishees.
    The return of the 'marshal of Scranton to the writ was: — •
    “ Attached, as within commanded, by giving a true and attested copy of the within writ November 25th 1872, at 6.30 p. m., to C. Soellner, agent Lehigh Valley Insurance Company, and by summoning Mm as garnishee, and by making known to him the contents thereof, and same time by like copy to Henry Krause, the within named defendant, and by making known to him the contents thereof.”
    A judgment was taken by the garnishees by default for want of an appearance for $351.44, and an execution issued against the garnishees April 15th 1875.
    On the 24th of May 1875, a rule was taken to show cause why the judgment should not be opened and the garnishees let into a defence, &c'. •
    The affidavit on which the rule was granted averred that the agent, Soellner, had never been served with the writ, &e.; that, at the time the writ purported to have, been served, he was not agent for the company.
    Evidence was taken by depositions to establish the averments of ’ the affidavit. The rule was discharged.
    By the Act of May 4th 1852, sect. 1, Pamph. L. 574, 1 Br. Purd. 43, pi. 7, “ When any person or persons, being residents of this Commonwealth, shall engage in business in any other county than the one in which he, she or they shall reside, and not being in the county at the time of issuing such writ or process, it shall be lawful for the officer charged with the service thereof, to serve any writ of summons or any other mesne process upon the agent or clerk of any such defendant, at the usual place of business or residence of such agent or clerk, and to have the same effect as if served upon the principal personally.”
    The garnishees removed the record to the Supreme Court by writ of error, and assigned amongst others the following errors:—
    3. Because there was no service upon the garnishees or a proper officer of the company.
    4. Because the marshal’s return does not show a service upon the garnishees, and does not set forth what property, rights or credits of II. Krause were attached in the hands of the Lehigh Valley Insurance Company.
    5. Because the garnishees are not a corporation within the city of Scranton, and therefore beyond the jurisdiction of the mayor’s court.
    8. Discharging the rule

      H. G. Hunsberger (with whom was W. H. Gearhart), for plaintiffs in error.
    — The writ that may be served on an agent in another county is the original writ on the commencement of an action: Act of April 8th 1851, sect. 6, Pamph. L. 354, 1 Br. Purd. 287, pl. 31. An attachment in execution is not the commencement of an action, neither is the scire facias the original writ. It is in substance, if not in form, an execution: Wray v. Tammany, 1 Harris 394; Newlin v. Scott, 2 Casey 102; Kase v. Kase, 10 Id. 131. This process should issue from the court of the county where the garnishee resides: Cowden v. West Branch Bank, 7 W. & S. 432.

      D. G. Harrington (with whom was H. N. Willard), for defendants in error.
    — The Lehigh Valley Insurance Company were doing business in another county of the state, and service on the agent, located in the city of Scranton, was good under the Act of 1852 : Landis v. Lyon, 21 P. F. Smith 475 ; Bancord v. Parker, 15 Id. 336.
    May 8th 1876.
   Mr. Justice Sharswood

delivered the opinion of the court,

The decision of the court below upon the motion to open the judgment is not the subject of review here : Bunce v. Wightman, 5 Casey 335; Henry v. Brothers, 12 Wright 70; Ringwalt v. Brindle, 9 P. F. Smith 51; Bredon v. Gilliland, 17 Id. 34. Nor can we inquire into the question of fact whether Soellner, upon whom the service of the writ Avas made, was an agent of the 'corporation garnishees, upon whom a lawful service could be made. The affidavits and depositions are no part of the record, and are not before us: Calhoun v. Logan, 10 Harris 46.

The only question which properly arises is as to the regularity of the judgment by default for want of appearance. That depends upon whether the. return by the marshal showed a laAvful service upon the garnishees. The defendants in error rest it upon the first section of the Act of May 4th 1852, Pamph. L. 574, entitled “ An Act relative to courts in this Commonwealth.” It provides “ that when any person or persons, being residents of this CommonAvealth, shall engage in business in any other county at the time of the issuing of such writ or process, it shall be lawful for the officer charged with the service thereof to serve any Avrit of summons or any other mesne process upon the agent or clerk of any such defendant at the usual place of business or residence of such agent or clerk, and to have the same effect as if served upon the principal personally.”

Conceding that an attachment execution, Avith the clause of scire facias to the garnishee embodied in it, is a “ summons or other mesne process,” the legislature has seen fit to provide that the service shall be “at the usual place of business or residence” of the agent, and in no other way. A personal service is not sufficient. Why, it is not our place to inquire. Ita lex scripta est. It is clear that the return must shoAV on its face a legal service : Winrow v. Raymond, 4 Barr 501; Wilson v. Hayes, 6 Harris 354 ; Weaver v. Springer, 2 Miles 42.

Judgment reversed.