author: Mr. Justice Mercur

text:
    Jimison versus Reifsneider.
    I ]. The question of excessive distress is irrelevant in an action of replevin for the goods -distrained. If, in fact, the distress be excessive, the proper remedy is by an action on the case.
    2. A sub-lessee whose immediate landlord holds under a lease prohibiting sub-letting, and who has not been recognised in his tenancy by the paramount landlord, no matter whether his rent to his immediate landlord be in arrear or not, has no right in case of distraint by the paramount landlord upon the chattels on the demised premises for rent due him, to demand that the goods of his immediate landlord be first distrained upon and sold, and that resort be had to his goods only in case the proceeds of the former sale prove insufficient.
    3. When in such case the goods of both the sub-lessee and his immediate landlord are distrained upon, and the sub-lessee institutes replevin for his property and gives the usual bond, and afterwards the paramount landlord, relying upon the security of that bond, stays proceedings against the other goods distrained : Held, that by said last-named act the paramount landlord had not precluded himself from proceeding further against the goods which had been replevied.
    January 25th and 26th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1880, No. 115.
    Replevin, by J. P. Reifsneider against Powers & Weightman and James K. Jimison. The .sheriff returned nihil hahent as to Powers & Weightman. The narr. alleged the taking and detention of the plaintiff’s goods on the demised premises. The defendant Jimison filed his cognisance, acknowledging the taking by him, as bailiff of Powers & Weightman, of the plaintiff’s goods, on the demised premises, as a distress for rent then due and in arrears to Powers & Weightman by their tenants of the said premises, Hall & Richardson. The plaintiff filed three pleas. The first denied that Jimison was the bailiff of Powers & Weightman, and tendered issue. The second denied that any part of the rent mentioned in the cognisance was due and in arrears from Hall & Richardson, the lessees, to Powers & Weightman, and tendered issue.
    The third plea averred that at the same time the plaintiff’s goods were distrained the defendants also levied on the goods of Hall & Richardson, the lessees of Powers & Weightman, which were more than sufficient in value to pay the said rent; yet the •defendants released and discharged the goods of Hall & Richardson from all liability for said rent, although requested by the plaintiff to proceed, in the first instance, to make the rent out of the goods of Hall & Richardson, which they refused to do.
    The defendant, in his replication to the said third plea, traversed the alleged release and discharge of the goods of Hall & Richard son from the said distress for the said rent so due and in arrears to Powers & Weightman, as in the said third plea set forth.
    On the trial, before Hare, P. J., the evidence showed the following facts: On April 1st 1868, Powers & Weightman, by lease under seal, demised a factory with steam-engines, . boilers, machinery and fixtures, in the city of Philadelphia, to Hall & Richardson, for the term of one year from May 1st 1868, at a yearly rent of $2100, payable quarterly. Hall & Richardson wont into possession under this lease, and have remained in possession ever since. The lease contained a clause prohibiting subletting by Hall & Richardson, in violation of which, they sublet a part of the premises in 1868 to the plaintiff Reifsneider, at the rent of $1000 a year. On April 1st 1878, Hall & Richardson wore in arrear for rent of said premises, $675, and on the 20th April, Powers & Weightman gave a warrant to their bailiff', James K. Jimison, to collect the same, by virtue of which he made a distress upon all the goods and chattels found upon the demised premises. Jimison testified that ho knew nothing about the ownership of the goods levied on. Reifsneider testified that the levy covered about $5000 worth of Hall & Richai'dson’s goods, and about $3000 worth of his own; that he requested the bailiff, and Mr. Weightman personally, to proceed, in the first instance, under their distraint to make their rent out of the goods of Hall & Richardson, and that, if these should prove not sufficient, they could then sell his goods. This they declined to do. Reifsneider thereupon entered security in the sum of $4000, and issued his replevin, under which his goods were replevied and delivered to him. The landlords, relying upon the security of the replevin-bond entered by Reifsneider, thereupon instructed the bailiff to stop proceedings against Hall & Richardson, and the latter resumed possession of their goods.
    The defendants presented the following points:
    The court is requested to charge: 1. That on April 1st 1878, Hall & Richardson, lessees, being indebted to their landlords, Powers & Weightman, in the sum of $675 for rent of the demised premises, and then in arrear, they had the right, by their bailiff, the defendant, to distrain on the goods and property of the plaintiff Reifsneider, described in the writ of replevin, at that time found on the demised premises, in satisfaction of the said rent so in arrears.
    2. That even if there were other goods and property on the demised premises at the time of the said distress, not embraced in the present replevin, sufficient in value to satisfy the said rent then in arrears, still the plaintiff’s said goods found on the demised premises at the time of the said distress were liable for the said rent, and the said distress thereupon was proper and lawful.
    The court declined to charge as requested, and instructed the jury “to find for the defendant on the issues joined on the first and second pleas; and the court leaves the issue'^joined on the replication to the third plea to the avowry (cognisance) to the jury on the evidence.”
    Under these instructions, the jury found for the defendant on the' issues joined on the first and second pleas, assessing the rent in arrears at $755, and finding the value of the goods distrained $2000. On the issue joined on the replication to the third plea, the jury found for the plaintiff.
    Upon a motion in arrest of judgment, and to enter judgment for the defendant on the whole record, notwithstanding the verdict for plaintiff on the replication to the third plea, the court, Hare, P. J., filed the following opinion :
    “ The question presented by the record is, can a stranger to the lease, whose property had been taken under a distress made for the rent, require that the constable shall not offer his goods for sale until the tenant’s goods have been sold and found insufficient to pay the debt ? I state this as the question, because an under-tenant owes nothing to the landlord, and can -claim no more from him than a stranger whose goods are accidentally on the premises at the time of the levy. The legal right of the landlord is absolute, and the point to be determined is, whether he should so exercise it as not to sacrifice the stranger’s property unless such a course is requisite for his own protection. It is well settled under the authorities that a creditor should not be delayed or hindered in the use of any remedy for the satisfaction of the debt, even when the effect of refusing the injunction will be to throw the burden on one who, like a surety, is not p'rimiarily or ultimately liable, and thus give rise to a circuity of action, but it not less clear that when the fund or property in question is within the grasp of the law, and the question is merely as to the order in which it should be sold or appropriated, a chancellor may well direct that the principal debtor’s goods shall be the first brought to the hammer, and the execution stayed if they produce enough to satisfy the claim. If such be the rule, it applies emphatically in the present instance, where the plaintiff’s modest demand was not for the delay or omission of any step requisite to make the distress effectual, but that the landlord should, out of the whole mass of goods levied on, select those which belonged to the tenant, and dispose of them before proceeding to sell the plaintiff’s goods for a debt which he did not owe.
    “ We have arrived at this conclusion with some diffidence, because the case appears to be one of the first impression, and we do not desire to complicate or embarrass a remedy which is not less valuable to the tenant by enabling him to obtain credit, than to the landlord as a security for the rent; but we do not perceive that any inconvenience can arise from requiring that when the goods of a tenant and of an under-lessee or stranger have both been distrained for rent arrear, the tenant’s shall be first sold, as being the party who is really answerable.
    “ The landlord need not postpone the distress, the appraisement or the sale for an hour, nor is it incumbent on him to inquire whether the goods which the stranger or under-tenant claims as his do or do not belong to him. The only restriction imposed is, that the goods which are not so claimed shall be offered for sale in the first instance, and so much only of the residue disposed of as may be requisite to satisfy the arrears and costs.
    “ The plaintiff’s equity is stronger in the present instance, because it appears, from the pleadings and verdict, that ho had paid his rent to Hall & Richardson, which, as Kennedy, J., intimated in Quinn v. Wallace, 6 Whart. 452, 457, might well exempt his property from liability for the rent due from them, when the lessors actually held a sufficient amount of their property to pay the amount in full.
    “ The motion for judgment non obstante veredicto is dismissed, and judgment entered for the plaintiff on the verdict found for him on the issue joined on the replication to the third plea.”
    The defendant took this writ of error, assigning for error the refusal of the court to charge as requested in defendant’s points, and the entry of judgment for the plaintiff' on the verdict under the issue on the replication to the third plea.

      William Ernst (with whom was R. J. C. Walker), for the plaintiff in error.
    Goods found on demised premises are subject to distress for rent in arrear, whether they belong to the tenant, a sub-tenant, or to a stranger. A sub-tenant who has entered in violation of a clause in a lease prohibiting sub-letting, has no equity to demand that the landlord shall investigate the question of ownership of goods distrained upon, and exempt the sub-tenant’s goods, until ho has exhausted the tenant’s goods. Whether the sub-tenant owed any rent or not to the tenant is an immaterial matter, and will not avail him against the claim of the paramount landlord: Murphy v. Borland, 37 Leg. Int. 94; Blanche v. Bradford, 2 Wright 344; Rosenberger v. Hallowell, 11 Casey 369.

      S. N. Rich, for the defendant in error.
    We do not dispute the rule of the common law that goods of a stranger, found on the demised premises, are liable to distress for rent. But under the equitable principles incorporated in the law of Pennsylvania they are to be considered in the light of surety in case the goods of the tenant prove insufficient. And if a landlord, having in his hands the means of satisfaction of his debt, by a prior levy on the tenant’s goods, releases or abandons such levy, his surety is discharged: Commonwealth v. Miller, 8 S. & R. 452; Cathcart’s Appeal, 1 Harris 416; Quinn v. Wallace, 6 Whart. 452; Karns v. McKinney, 24 P. F. Smith 387. It is no answer to say that the under-tenant has his remedy over against the tenant by an action on the case. The law abominates circuity of action, and the landlord, having found sufficient goods of the tenant, has no right thus to harass the stranger or sub-tenant. The court below properly held that, under the facts, the rigor of the common-law rule should be mitigated by'construing the sub-tenant’s goods as security.
   Mr. Justice Mercur

delivered the opinion of the court, May 2d 1881.

This complaint is against the plaintiff in error, as bailiff of Powers & Weightman. As such he distrained, for the non-payment of rent, goods on the premises demised by them to Hall & Richardson. The warrant issued, and the distress was made on the 20th of April 1878.

That rent was then due and unpaid is found as a fact. That the goods of the defendant in error found thereon were liable to distress for the rent, cannot, under numerous authorities, be questioned: Karns v. McKinney, 24 P. F. Smith 387.

What, then, is the grievance of which the defendant in error complained, and which he sought to redress in this action ? Without the consent of Powers & Weightman, he appears to have leased a portion of the demised premises of Hall & Richardson. Claiming the latter had goods on the premises of sufficient value to satisfy the rent, he demanded of Powers & Weightman that they should release his goods and first proceed against the goods of Hall & Richardson. He also requested the bailiff to proceed first against their goods. On their declining so to do, he, on the second day after the distress, brought this action of replevin for his goods, and gave bail to the sheriff. The latter made return that he had replevied as commanded; had duly summoned Jimison on the 24th of April 1878, and delivered the property to Reifsneider, and nihil hahent as to the other defendants.

The plaintiff in error made cognisance. The first plea thereto denied that he was bailiff, and the second that there was any rent in arrear. On both these pleas the 'jury found for the plaintiff in error. The third plea averred that, at the time of taking the goods of defendant in error, the bailiff also took, in the same distress, goods of Hall & Richardson, of value more than sufficient to satisfy the rent, and afterwards, to wit, on the 23d of April 1878, that said Powers & Weightman and said Jimison did release and discharge said last goods from said distraint, knowing the goods 'in said cognisance mentioned belonged to defendant in error. The replication denied all. such release and discharge of said goods. Issue was joined on the pleas, and on this third plea the jury found 3n favor of the defendant in error. They also found the property distrained was of much greater value than the rent in arrear. The court considered the distress excessive. It appears to have assumed that fact to be fatal to the right of the landlord to dis-train, and thereupon entered judgment against the plaintiff in error.

The question of excessive distress was irrelevant in the action of replevin, and the evidence thereof inadmissible: Karns v. McKinney, supra. If, in fact, the distress was excessive, the proper remedy is by action on the case, founded on the Statute of Marlbridge: 3 Black. Com. 12; Roberts’s Dig. 177; McKinney v. Reader, 6 Watts 41; Karns v. McKinney, supra.

All the facts necessary to give a right to distrain existed. It was exercised by making one distress on property found on the premises, a portion of which belonged to the under-tenant. One complaint now is, a refusal within two days after distress made, to release and discharge his goods from the distraint, or at least to agree to sell first the goods of Hall & Richardson; the other is that the said last goods were released and discharged from the levy. The evidence sustains the fact averred in the first complaint. No authority was cited showing such release to be demandablo of right. None that it was error to refuse. The uncontradicted evidence is, that the bailiff made but one distress, and did not at that time know anything about the ownership of the goods distrained. There is no evidence that any of the goods of Hall k Richardson were released and discharged from the levy before the writ of replevin was executed. After its execution, the landlords told their bailiff to stop proceedings. Thereupon he did nothing further, but let them have them, and, as we have shown, the sheriff delivered the others to the defendant in error. This action was not for detaining the goods of the defendant in error after they were replevied, but for refusing to release them before they were replevied. There was really no evidence in support of the third plea to submit to the jury. But having been found they were insufficient, in law, to support the judgment, it was assumed by the learned judge that the defendant in error had paid his rent to Hall & Richardson. A careful examination fails to find any such averment in the pleadings, or in the evidence on the trial; nor is it found in the verdict as set forth in the paper-book. If, however, such was the fact, it in no wise changed the right of Powers & Weightman to distrain his goods. He was not their immediate tenant; they had not recognised his tenancy. He had not paid them, nor by their authority paid to any other person : Quinn v. Wallace, 6 Whart. 452. When his writ of replevin was executed, he gave security which was satisfactory to Powers k Weightman. The goods of the plaintiff in the writ were taken out of their hands. They had a right to rely on that security. They were precluded from then proceeding further against the goods thus replevied, and had an undoubted right to stay-proceedings against the other goods distrained. In so doing, after the writ of replevin was executed, they did not in the least render invalid any act of theirs prior to its execution, which was valid when performed.

The court therefore erred in not entering judgment in favor of. the defendant below, on the whole record, notwithstanding the verdict on the third plea. This view of the case makes any more specific answers to the assignments unnecessary.

Judgment reversed, and judgment in favor of the plaintiff in error, non obstante veredicto.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Gray versus Dick.
    L The Act of March 24th 1849, Pamph. L. 675, authorizing mechanics and material-men to file in certain cases lumping charges in mechanics’ liens within the counties of Chester and Philadelphia,’ confers such a right only upon contractors with the owner or owners of the premises against which the lien is filed, and not upon sub-contractors. The latter are still bound in all cases to itemize their liens.
    2. Where a sub-contractor files a lien containing such a lumping item, it will not be sufficient to validate it, as against the owner, that the date of beginning and ending the work or furnishing the materials included in such item are thereto appended.
    January 27th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1880, No. 47.
    This was a scir.e facias sur mechanic’s claim for $265.06, filed by William Gray against Walter B. Dick, owner, and John McLaughlin and Albert J. McLaughlin, contractors, for material furnished and stonework done towards the erection of a building- on Sixteenth street, near Jefferson street, in the city of Philadelphia.
    The following were the facts of the case:
    The plaintiff, a dealer in brown stone, on March 4th 1878, entered into an agreement, in writing, with Albert J. and John McLaughlin, who were the contractors with Walter B. Dick for the erection of a- brown-stone residence on North Sixteenth street, in the city of Philadelphia, to furnish the cut-stone work for the house to be erected. The work was to be furnished in accordance with plans and specifications prepared by the architect in charge of the building, J. K. Yarnall, Esq. In this agreement it W'as stipulated that the price of this work should be $1150, payable by instalments as the wrnrk progressed. The plaintiff completed his work and received two payments on account, leaving due him on account of the stipulated price the sum of $230

      Plaintiff, on February 12th 1879, then filed the claim in controversy for this amount, under the provisions of the Act of March 24th 1849, Pamph. L. 675, adding thereto sundry small items, aggregating ¡$35.06.
    The following is the bill of particulars filed to accompany the claim:
    Bill of Particulars.
    Philadelphia, Jan. 31st 1879.
    Messrs. J. & A. J. McLaughlin,
    Bought of William Gray.
    1878.
    To stonework of W. B. Dick’s house, 1524 North 16th, above Jefferson, as per contract, ..... $1150 00
    Mar. 8 — To 2J hrs. man rubbing bricks on wheels, @ $1.00,...... 2 50
    Apl. 2 — To 36 buff enam. bricks, @ 8 cts., . . 2 88 To 1^ hrs. man rubbing on wheel, @ $1.00, 1 50
    “ 3 — To 2 rubbers, § day ea. on wheel, 1-J days, @ $10.00, . . . . ' . . 15 00
    « 9 — To 21 enam. buff brick, @ 8 cts., . . 1 68
    To 11|- hrs. of man rubbing on wheel, @ $1.00,......11 50
    $1185 06
    Or.
    1878.
    Apl. 23 — By cash, $600 00
    May 25— “ ... 320 00
    -- $920 00
    $265 06
    Commenced, March 5th 1878.
    Finished, Sept. 14th 1878.
    Subsequently a scire facias was issued on the claim, and a rule to plead thereto filed, whereupon the owner, Walter B. Dick, on April 14th 1880, obtained a rule on the plaintiff to show cause why the item in the bill of particulars annexed to the claim, and covering the price stipulated in the written agreement should not be stricken out. On April 17th 1880, the court made this rule absolute, and at the same time refused the motion of plaintiff asking leave to amend the claim by withdrawing and striking out of the bill of particulars all the dates, amount and items except those referring to the items covering the stipulated price.
    Plaintiff thereupon took this writ, assigning for error (1) The action of the court in making absolute the rule strnnng off the first item in the claim; and (2) The refusal of the court, on plaintiff’s motion, to allow' the remaining items to be stricken off.

      M. Hampton Todd (with him J. R. Booth), for plaintiff in error.
    The first item of the claim should not have been stricken out. It was in literal compliance with the Act of March 24th 1849. The claim was properly filed by a sub-contractor. If it be argued that the Act of 1849 did not intend to confer the privilege of filing such a lien upon him, because the contract made by him is not directly with the owner, we submit that where work is done by a sub-contractor, in accordance with plans and specifications furnished by the owner’s architect, the owner has all the information that c'ould reasonably be required, to enable him to ascertain whether or not the lump sum was a proper amount for him to pay for what was placed upon his property.
    The charge is properly inserted as to form. Shields v Garrett, 5 W. N. C. 120, is not adverse to this claim. There the lumping charge was put under one date, and the statement of the beginning and ending of the whole work included all the other items in the bill. In the claim in this case the lump charge or stipulated sum has separate and independent dates for the commencing and finishing of the work under the special contract.
    As to the other items in the bill it would appear reasonable that if the defendant by adverse motion could strike out an item of the claim, the plaintiff could voluntarily renounce and withdraw one or more items, and this view would seem to be strengthened by the Act of June lllh 1879, Pamph. L. 122, authorizing amendments to mechanics'* claims in any stage off the proceedings.

      John M. Thomas, for defendant in error.
    Besides the first, the fourth and seventh items have no date attached. The dates annexed to the bill of particulars as those of beginning and ending the work are therefore indefinite, in that they might apply to either one of several items. The court was therefore justified, under the authority of Shields v. Garrett, 5 W. N. C. 120, in striking out the first item. It was there decided, notwithstanding a date is given to a lumping charge filed under the Act of 1849, that where such a charge forms one of a series of items, each having an appropriate date, it is not sufficient compliance with the terms of said act to state when the whole work was begun and ended. Here the failure to comply with the requirements of the act is even more flagrant. The Act of April 16th 1845, sect. 5, Pamph L. 588, authorizing contractors to file lumping claims in certain cases has been construed not to exempt sub-contractors from the obligation of itemizing their liens: Russell v. Bell, 8 Wright 47; Lee v.
      Burke, 16 P. F. Smith 336. The same construction should he placed upon the Act of 1849.
    As to the remaining items the court had no power to amend the lion by striking them out, more than a year having elapsed since the lien was filed: Russell v. Bell, 8 Wright 47. Nor is this power conferred by the Act of June 11th 1879, Pamph. L. 122, for this is not retroactive: Sutton v. Clark, 7 W. N. C. 437; Ashman v. McIlvaine, 8 W. N. C. 309; Sparr v. Walz, 9 W. N. C. 64.
    At any rate no injury was done the plaintiff by the refusal to strike out those items, as, the first item being stricken out, the omission of the rest would have left plaintiff without any item at all.
   Mr. Justice Trunkey

delivered the opinion of the court, February 7 th 1881.

A supplement to the Act of 1836, relating to mechanics’ liens, provides: “ It shall be lawful for any mechanic or material-man in the city or county of Philadelphia and county of Chester, who performs work and furnishes materials, to include both iti the same claim filed ; and where the value or amount of the work or materials can only he ascertained by measurement when done, or shall he done by contract for a stipulated sum, it shall be lawful to file a statement of the time when the work was commenced and when finished, and of the aggregate price of the work and materials:” Act of March 24th 1849, Pamph. L. 675. The plaintiff submits that the claim filed complied with the requisites of this act. It was a literal compliance, and the sole question is whether the plaintiff comes within the intendment of the statute.

The contract was not made with the owner; he was not a party to it, and presumably knew nothing of it. Such a contract would not be evidence of tho sum which the owner ought to pay, nor of the amount of the claimant’s lien on the building. The mechanics’ lien laws have not invested contractors with power to obtain work and materials and bind the building for a larger sum than such work and materials are worth. As a general rule, the claim shall set forth the nature or kind of the work done, or the kind and amount of materials furnished, and the time when the work was done or materials were furnished, with reasonable certainty. This is the mode prescribed for giving the owner of the building information of the grounds of the claim; and, formerly, it had to be observed by contractors as well as by claimants with whom the owner had no contract relation.

The Act of 1845, Pamph. L. 538, provided for tho case of a special contract made by a mechanic with the owner for the erection of a building or a part thereof; and in such case it is not required to sot out in the claim the nature or kind of work, or kind and amount of materials furnished, for there is no reason for application of the general rule>: Young v. Lyman, 9 Barr 449. Each party to the contract has knowledge of the claim under it, and the reason for furnishing particulars does not exist. That supplement declares that the Act of 1836 shall extend to and embrace claims for labor done and materials furnished and used in erecting any house or other building, which shall have been or shall be erected, under or in pursuance of. any contract or agreement for the erection of the same;” but, notwithstanding its general terms, it was decided that it did not place a sub-contractor on the same footing with the contractor- — he continued bound to set forth particulars in his claim as directed by the Act of 1836, or his lien would fall: Russell v. Bell, 8 Wright 47; Lee v. Burke, 16 P. F. Smith 336. Among the reasons given in those cases for strict' construction are: The sub-contractor is entitled to no more than the fair market value of the work done and materials furnished on the credit of the building,-and hence the owner should be informed by the claim filed as to the particulars of the claim, that he may make the necessary inquiries to satisfy himself of its justice as a lien on his property. The agreement between the contractor and sub-contractor is not the measure of the owner’s responsibility; bis building is bound for no more than the value of the work done and materials furnished by the sub-contractor, and he has a right to insist on compliance with the requisites of the Act of 1836.

Every reason given for the distinction of the contractor under the supplement of 1845 applies in full force to the supplement of 1849. If the latter includes only those who contract with the owner, it harmonizes with the previous legislation, and wrongs nobody. But if it embraces sub-contractors, the owner of the building in this case has all the particulars he is entitled to, namely, the contract price which the contractor agreed to pay for stonework done by the claimant between March 5th and September 14th 1878. What light does that give one who is called on to pay a debt owing by another man ? It is sufficient for the victim to see the amount demanded, but not to see that it is right. Unless imperatively required by the words of a statute, it should not be made an. instrument of rank injustice. Not only is the right of lien a privilege to a favored class of creditors in addition to all remedies common to other creditors, but this supplement is local, limited to two counties. Therefore, by universal rules, it must receive a strict construction as to the persons and subjects to which it relates. Where a mechanic or material-man contracted with the owner, and the value of the work or materials can only be ascertained by measurement, or is stipulated in the contract, it is enough to give the aggregate price with the dates of commencing and finishing. There is reason in that the parties stand equal. In such case, the contractor is within the words and intendment of the statute. Sub-contractors and persons who work for or sell materials to contractors are not necessarily included in the language of the statute, and we think are clearly without its intendment.

It is unnecessary to remark upon the question raised by the second assignment. If the motion to strike out was for the purpose of validating the claim under the alleged contract, it was rightly refused: Fahnestock v. Wilson, 9 W. N. C. 385.

But for the special circumstances, this writ of error would be quashed, even without motion. Consent of parties will not induce review by piecemeal. However, we were statisfied that a decision either way would end the dispute, and consider the case as if the claimant’s motion had been granted by the court below.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Horstman versus Kaufman.
    1. The Act of June 11th 1879, Pamph. L. 129, enabling the plaintiff in an execution, upon filing an affidavit that he believes the defendant owns property which he fraudulently conceals and refuses to apply to the payment of his debts, to examine said defendant on oath as to said property, is in conflict with Art. I., Sect. 9 of the Constitution, which provides that no one shall be obliged to give evidence which may criminate himself. It is therefore unconstitutional and void.
    2. The testimony of a witness given under compulsion of the court, cannot be used against him on a criminal charge, for the reason that he should not have been subjected to such compulsion.
    January 30th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Certiorari to the Court of Common Pleas, No. 3, of Philadelphia county, of January Term 1880, No. 162.
    This was an action of assumpsit on a book-account between Charles J. Horstman, Otto Von Hein, and Gustavus Walter, trading as Horstman, Von Hein & Co., against Charles Kaufman, in which judgment for want of an affidavit of defence was obtained September 20th 1879, for $268.83. A fi. fa. issued on said judgment was returned nulla bona on the 21st of October 1879.
    The plaintiff moved for the appointment, of a commissioner under the act of June 11th 1879, Pamph. L. 129, to take the testimony of the defendant and other witnesses, and filed the following affidavit:
    “ Gustavus Walter, being duly sworn according to law, deposes and says that he is a judgment-creditor of Charles Kaufman, the defendant in the above cause, and that he is a member of the firm of Horstman, Von Hein & Co., the plaintiffs therein, and that he has reason to believe that the said defendant has property, rights in action, stocks, moneys or evidences of debt which the said defendant fraudulently conceals and refuses to apply to the payment of his debts. GKjstavus Walter.
    Sworn to and subscribed before me this 10th day of November, a. x>. 1879.
    A. H. Nones, Notary Public, 486 Broadway, N. Y.
    On November 18th 1879 the court granted a rule to show cause why a commissioner should not be appointed under the said act, and after argument the court discharged the rule, Einlbtter, J., delivering the following opinion :
    “ The very able argument of counsel for defendant has left scarcely a doubt on our minds as to the unconstitutionality of the act. We are not, however, called upon to decide this question, inasmuch as'we are compelled to refuse the rule on other grounds. The act must be construed in conformity with the construction given to the act to which it is a supplement. The affidavit should therefore set out the facts which warrant the belief that the defendant has property, &c., and also the facts which warrant the averment of fraudulent concealment.”
    The plaintiff thereupon took this writ of certiorari, assigning for error the action of the court in discharging the' said rule.

      Isaac S. Sharp (with whom was Alleman), for the appellant.
    The court below discharged the rule solely upon the ground of the insufficiency of the affidavit, in that it followed the words of the act, and did not set out the facts to warrant the belief of fraudulent concealment, as was required under the decisions of the lower courts under the Act of 1869, to which the Act of 1879 is a supplement. But since this case was decided in the court below, this court has decided in Sharpless v. Ziegler, 11 Norris 467, that an affidavit following the general terms of the Act of 1869 is sufficient, and the supplement of 1879 must be construed in conformity with the original act.

      Mayer Sulzberger, for appellee.
    The Act of June 11th 1879, is unconstitutional, because, first, it does not clearly express in its title the subject of it, as required by Art. III., Sect. 3, of the Constitution. It is entitled ‘‘a supplement” to the Act of 1869, but its provisions are not germane to the Act of 1869. The purport of that act was only to enable a suit to be commenced by attachment instead of by summons. This supplement has no bearing on that subject. As the object of the Act of 1869 was to give the plaintiff security at the time of bringing suit, a return of nulla bona could not happen, and hence the only cases in which the so-called supplement of 1879 could be invoked, are precisely those proceedings not under the Act of 1869. The Act of 1879 is in effect a supplement to the Act of June 16th 1886, Pamph. L. 763-4, entitled, “ An lict relating to executions.” Sections 9 — 18, of that act, bear the sub-title ‘‘Of proceedings to discover the defendant’s effects,” and the supplement of June 11th 1879, is a mere simplification of the process by which such discovery may be made.
    Secondly. The supplement is unconstitutional, because it violates Art. I., Sect. 9, of the Constitution, which provides that “ a man cannot be compelled to give evidence against himself.” The very ground of this proceeding is a charge of fraudulent concealment, which is a misdemeanor under the Crimes’ Act of 1860, sect. 130, 181, 132. The proceeding is not a judicial one, as under the Act of 1842, but is at the personal discretion of the judgment-creditor upon filing an affidavit that he has reason to believe that the debtor has acted fraudulently, and thereupon the latter must criminate himself under penalty of attachment. The act also provides for the production, under the said penalty, of books and papers, which process is equivalent to an unreasonable search within the meaning of the Bill of Rights. The act thus attacks the first principles of individual liberty, and introduces the greatest change in the law of evidence in Pennsylvania that has ever been made since the original Constitution.
    This certiorari is in efiect an application to this court to issue a mandamus to the court below commanding them to appoint a commissioner, but the act does not even contemplate the appointment of a special commissioner in each case if there is a standing commissioner. The principle that a witness must claim his privilege of exemption from answering when a particular question is asked, does not apply to this case, because every question to be put is intended to substantiate the criminal charge made by the affidavit. Under such circumstances, the defendant can refuse to be sworn : Galbreath v. Eichelberger, 3 Yeates 515; Cooley on Constitutional Limitations *314, *394; Broadbent v. State, 7 Md. 416; Regina v. Garbett, 1 Denison C. C. 236; 1 Greenleaf on Evidence, sect. 451; Wharton’s Criminal Law, sect. 807, 808 (7th ed.); Emery’s Case, 107 Mass. 172. The plaintiff in this case resides out of the jurisdiction, and made his affidavit in New York probably without any knowledge of the circumstances, and if he has a reason for his belief it was proper for the court below to compel him to state it.
    Sharp, in reply.
    We deny that the Act of 1879 is unconstitutional, either because of its title, or of its enacting clause. The Act of 1869 is entitled, “An Act relevant to fraudulent debtors.” This “supplement” relates to a discovery of fraudulent debtors’ property, and is therefore germane to the original act. It might well have been incorporated in the original act. It is settled that an act, entitled a supplement to a previous act, sufficiently indicates its subject to meet the requirements of Art. III., Sect. 3. of the Constitution, if its subject is germane to the subject of the original act. In re First Presbyterian Church, 6 W. N. C. 421; Allegheny Co., Holmes’s Case, 27 P. F. Smith 77; State Line Railroad Co.’s Appeal, Id. 429. Sect. 8 of the Bill of Rights, prohibiting unreasonable searches, was directed against the issuing of general criminal warrants, which had grown to be an abuse in England, and is inapplicable to this act, which provides for the common-law process of subpoena. Nor is the act in violation of the 9th section of the Declaration of Rights, which provides “ that in criminal prosecutions * * * the accused cannot be compelled to give evidence against himself.” The refusal to answer is a personal privilege, which must be claimed when the question is asked, the answer to which would criminate the witness, and it may be waived. But if answered under a compulsory order of the court, or under a compulsory statute, such disclosure could not be used against him in a criminal prosecution: 1 Greenl. on Ev., sect. 451; Regina v. Garbett, 1 Denison C. C. 236; s. c. 2 Car. & K. 474; United States v. Prescott, 2 Dillon Circ. C. 405; In re Brooks, 5 Pac. L. R. 236; Act of July 12th 1842, sect. 22; Purd. Dig. 53, Pamph. L. 345; Uhler v. Maulfair, 11 Harris 481. If this act is unconstitutional, so would be the Act of 27th of March 1865, which enables the party to call his opponent to testify; so also the Affidavit of Defence Law of 1835, and. other acts of similar character. This act has been held in the lower courts to be constitutional; Loewi v. Haedrich, 8 W. N. C. 70; Cox v. Walton, Id. 360; Dorff v. Matthews, 36 Leg. Int. 382.
   Mr. Justice Gordon

delivered the opinion of the court February 14 1881.

In Sharpless v. Ziegler, 11 Norris 467, we held that under the Act of 17th of March 1869, where the affidavit followed in general terms the wording of the statute, it was a sufficient warrant to the prothonotary to issue the writ of attachment, and that the court had no power to quash such writ, though it might, on proper cause shown, dissolve such attachment so far as it affected the goods of the debtor seized under it. We also called attention to the obvious distinction in this respect, between this act and that of July 13th 1842, in that whilst the attachment directed by the latter can be issued only after judicial consideration, the writ authorized by the former issues from the prothonotary as a ministerial act.

The act under consideration, June 11th 1879, Pamph. L. 129, would seem in this respect to be of the same character as that of 1869. All that is required of the court is that upon filing the prescribed affidavit, it shall appoint a commissioner, an act purely ministerial. Indeed even this may be dispensed with, if there be a standing commissioner, for the act does not require that such officer be appointed specially for the case in hand-.

Whilst, therefore, the correctness of the decree in this case is admitted, we cannot agree with the court below that, admitting the validity of the act, the affidavit was insufficient to support the morion to appoint a commissioner. The affidavit is in the words of the statute, which is all that seems to be required ; no such thing as judicial discretion is left to the court, it is made the mere minister of the creditor. The plaintiff in the execution is clothed with the sole, unrestrained, and unlimited power to call before himself and his commissioner the defendant with his books and papers, and then and there at his own good pleasure examine him and them without rule, restraint or supervision, and without limitation as to time or manner. What questions shall be asked, how they shall be asked, what books and papers shall be produced, and how they shall be examined, how long the unfortunate debtor may be detained and when discharged, of all these the creditor is made the sole judge, and the Court of Common Pleas is but his minister to enforce his behests by subpoenas and attachments.

With all this power the execution-plaintiff clothes himself by the mere act of filing an affidavit “ that he has reason to believe that said judgment debtor has property, rights in action, stocks, moneys or evidences of debt, which he fraudulently conceals and refuses to apply to the payment of his debts.” And when he is so clad with this power, whether he will use it discreetly and properly, or arbitrarily and improperly, rests altogether with himself. A more ingenious inquisitorial device to squeeze the last farthing from the wretched debtor was never before devised, and for its complete perfection it needs but the boot and thumbscrew.

Dropping, however, the question whether the legislature can constitutionally invest one citizen with a power so arbitrary and so irresponsible as that found in this statute over a fellow-citizen, and whether a court may be so far disi'obed of its judicial functions as to be made the mere tool of the creditor, there are, nevertheless, some rights possessed by the debtor, which even the law-making power is bound to respect.

One of these rights is that he shall not be compelled to give evidence that may be used against him in a criminal prosecution, in other words, he may not be compelled to do that which may criminate himself. The framers of the Act of 1842 were careful to provide that no answer which the defendant W'as required to make as a witness should be used against him in any other suit or prosecution. But this Act of 1879 makes no provision of that kind, and yet, as has been well shown by the learned counsel for the defendant, the initial proposition is to compel the debtor to reveal that which is made a misdemeanor by the Crimes Act of 1860. This cannot be done : Galbreath v. Eichelberger, 3 Yeates 515. And as this enactment proposes on its face to force the debtor to forego a constitutional right, with which the legislature has no power to interfere, it is utterly void and worthless. No such attempt has ever heretofore been made in Pennsylvania, and it is to no purpose to refer to the Act of 1842, for that act leaves the option with the defendant. He may verify his allegations by'his affidavit, but if he does so he submits himself as a witness, and may be examined by the complainant. Even then, when he thus voluntarily submits himself, the act protects him in that it not only prohibits the use of the evidence so given from being used in any prosecution, but, also, in any suit against him: Uhler v. Maulfair, 11 Harris 481. The Act of 27th of March 1865, is still less to the point, for it certainly does not follow that because a party in a civil suit may use his adversary as a witness, he may therefore compel him to testify to that which would criminate himself. His rights as a witness remain, though the right to refuse to testify which he formerly had as a party, is taken away. The argument,'therefore, based on this act is not sound; but the counsel for the plaintiff argues and cites a number of authorities to prove that where a witness answers under ■ a compulsory order of the court, such answers cannot be used against him, and hence without a statutory provision he is sufficiently protected. This is true, and for the very reason that he answers under an arbitrary compulsion to which he ought not to have been subjected: Regina v. Garbett, 1 Denison’s Cr. C. 236. In this case it was held that statements made by a witness after he had appealed to the court to be excused from making such statements, cannot- be admitted to prove him guilty of crime; that such statements must be regarded as given under compulsion and duress, upon the same principle that confessions not free and voluntary cannot be received to affect the defendant.

It is thus manifest that arbitrary compulsion and duress by a court, stand on no higher ground than the duress and compulsion of natural persons. In either case, because of the wrong done to the witness, the evidence thus produced cannot afterwards be used against him.

As, then, the Act of 1879 contravenes an important principle of the Bill of Rights, it must be regarded as unconstitutional and void.

The order of the court below discharging the rule for a commissioner is affirmed.


author: Mr. Justice Paxson

text:
    Dovey’s Appeal. Moodie’s Appeal.
    1. The modern doctrine of lis pendens is based not upon the theory that a pending suit is constructive notice to ail the world, like a recorded deed ; but upon the ground that the law will not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party, and defeat the execution of the decree to be entered in the cause.
    2. The doctrine of Us pendens can, therefore, have no application except in those cases where the lis in question is of such a character as to enable a definite decree to be entered therein, deciding the right of property between the parties.
    3. Whether the doctrine of lis pendens will apply where the property concerning which the litigation is pending, consists of stock, not decided.
    4. The taking of a security not as collateral for, but as payment of an antecedent debt, will constitute the assignee a holder for value, so as to give him the rights of a bona fide purchaser.
    5. A bona fide purchaser of a certificate of stock with blank power of attorney from a confidential agent of the owner in whose custody it has been deposited, and whose sale thereof is fraudulent, is entitled to hold the same as against the real owner or his representatives.
    February 1st 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., did not sit.
    Appeals from the decree of the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1880, Nos. 33 and 88½. These two appeals were from the same decree,'and were argued together.
    This was a bill in equity, filed May 6th 1877, by Charles E. Morris, assignee for the benefit of creditors of Henry G. Morris, against John J. Dovey and William J. Moodie and others, trading as Moodie, Gross & Co. John J. Dovey died after suit brought, and his executors were substituted. The plaintiff, Charles E. Morris, also died, and the Philadelphia Trust, Safe-Deposit and Insurance Company were appointed assignee, and substituted of record in Ms place.
    The bill was filed to recover part of the proceeds of a judgment recovered by Dovey in the United States Court against the Seventh National Bank of Philadelphia for refusing to permit Mm to transfer 75 shares of stock in said bank, of which he held a certificate and power of attorney. The plaintiff admitted that Dovey was entitled to $3700 thereof, but asserted that the residue, $2262.25, belonged to the plaintiff. After answers filed, the cause was referred to a master, who found the facts substantially as follows :
    In January 1874, Henry G. Morris was the owner of a certificate for 75 shares of the stock of the Seventh National Bank of Philadelphia. In that month he pledged it to the Provident Life and Trust Company as collateral security for a loan, and a new certificate was issued in their name, dated January 23d 1874. Upon the payment of the loan, on March 24th 1874, the trust company executed an assignment in blank upon the back of the certificate, with a blank power of attorney to transfer and deliver the same to one Alexander Ervin, then the confidential agent and financial manager of Henry G. Morris.
    On April 29th 1875, Henry Gr. Morris and wife made an assignment for the benefit of creditors to Charles E. Morris, and on the same day Ervin ceased to be in the employ of Henry G. Morris.
    On June 7th 1875, the said Ervin — who had retained possession of the said certificate and power — fraudulently sold and delivered the same to Moodie, Gross & Co., and received therefor from them the sum of $37 00 in cash, an overdue check of his for $2500, and a receipted bill for coal previously sold him for $250.83, making a total of -$6450.83.
    The assignee of Henry G. Morris notified the bank soon after-wards not to transfer the stock, as it belonged to his assigned estate; and when Moodie, Gross & Co., on September 27th 1875, presented the certificate to the bank for a transfer, their demand was refused. Thereupon Moodie, Gross & Co., on October 14th 1875, filed a bill in equity in the Court of Common Pleas, No. 4, against the bank and Charles E. Morris, assignee of Henry G. Morris, to compel a transfer, and praying, inter alia, for a decree that said Charles E. Morris, assignee, should be debarred and precluded from .recovering the said stock, or its value, from the bank. The answer of Charles E. Morris set forth all the above facts, and averred that Moodie, Gross & Co. did not purchase the said stock, but received the same from Ervin as a pledge for a private debt of his, contracted' before that date, under circumstances which would have placed any prudent business man on inquiry had the transaction been bona fide. No cross-bill was filed by Morris in this suit, and the cause was referred to a master.
    Pending this litigation, on May 24th 1876, Moodie, Gross & Co. borrowed $5000 from John J. Dovey, and delivered to him, as collateral security for said loan, the said certificate and blank power of attorney. This transaction was made without the knowledge of- Morris, assignee, or the bank; and Dovey then had no notice or knowledge of the pending of said suit in equity.
    The master in the- above cause of Moodie v. The Bank and Morris, reported that Moodie, Gross & Co., were bona fide purchasers of the said stock from Ervin for the full consideration of $6450.83; and he recommended a decree that the bank be required to transfer the said certificate, as prayed in the bill, unless Charles E. Morris, assignee, should within fifteen days pay to the plaintiif the whole of the said consideration of $6450.83, with interest, in which case the plaintiif should be required to deliver the certificate to said assignee, and the bank should then transfer the same to him.

      Upon exceptions filed by Charles E. Morris, assignee, the court, in an opinion by Briggs, J., held, that Moodie, Gross & Co., were purchasers for value only to the extent of the $3700 paid in cash; and reversed so much of the master’s finding as decided that the plaintiffs were also purchasers for value as to the check for $2500, and coal bill for $250.83. The court thereupon entered the following decree November 4th 1876 : “ That the said plaintiffs, Moodie, Gross & Co., deliver to the said Charles E. Morris, assignee of Henry G. Morris, the said certificate, No. 476, for seventy-five shares of the capital stock of the Seventh National Bank of Philadelphia, upon the said Charles E. Morris paying to the said plaintiffs $3700, with interest thereon from June 7th 1875, on or before the thirtieth day of November instant \ and that the said bank shall thereupon, upon the surrender of the said certificate by the said Charles E. Morris, transfer the same to him on the hooks of the said bank.”
    In August 1876, Dovey, without the knowledge of Morris, assignee, had presented the certificate to the bank for transfer, which was refused because of the notice received from Morris in 1875, and on November 22d 1876, Dovey brought a suit at law in the United States Court against the bank, founded on such refusal. On April 17th 1877, he recovered judgment for $5962.25, and on that day received that amount in money and surrendered the certificate to the bank. Dovey’s right to $3700 (as the assignee of Moodie, Gross & Co.’s bona fide interest), not being disputed, he retained that sum, and the balance of the money so recovered on the judgment, after deducting costs, viz., $1818.60, was by agreement left in the hands of Dovey’s counsel (R. C. McMurtrie, Esq.) to await the issue of this suit, and was by him deposited in the Pennsylvania company at interest.
    On April 28th 1877, the foregoing facts (viz., Dovey’s loan of $5000 to Moodie, Gross & Co., on the security of the certificate, and his suit and recovery against the hank) haying been brought to the notice of the Court of Common Pleas in the equity suit of Moodie, Gross & Co. against the hank and Morris, assignee, and it being suggested by counsel that a decree against the plaintiffs for the transfer of the stock to a defendant who had filed no cross-bill against the plaintiffs was irregular, the court were of the same opinion. The court thereupon (without filing a further opinion) made the following order:
    “We are satisfied that this decree has been erroneously entered against the plaintiffs, as there was no cross-hill filed to support it; and we do now order that the said decree of November 4th 1876, be and is hereby vacated.
    “ And now, April 28th 1877, it is ordered that the plaintiff’s bill be dismissed, at the plaintiffs’ costs.”
    An appeal taken by the plaintiffs from said decree to the Supreme Court was nonprossed when reached, in January 1879, at the request of the appellant’s counsel.
    This bill, filed by Morris May 16th 1877, prayed (1) That it be decreed that the defendant Dovey holds the balance of the sum, $5962.25, recovered by him in his suit at law against the bank, after deducting the sum of $3700, with interest and costs, in trust for the complainant as assignee, and that he account for and pay over the same; (2) That the defendants Moodie, Gross & Co. be restrained from claiming the same, or any part thereof, either from the said Dovey or the complainant.
    The master to whom this cause was referred reported, as matter of law, that Moodie, Gross & Co., when they borrowed the $5000 from Dovey on May 24th 1876, had no right to part with the certificate in question, by reason of the pendency of their suit in equity against the bank and Morris, assignee; that Dovey was affected with notice of Moodie, Gross & Co.’s disability, on the doctrine of lis pendens; that he therefore took the stock subject to all its equities, including the rights of Morris, assignee, therein ; and that therefore the plaintiff was entitled to the fund for distribution. In this decision the master held that the case “ came strictly within the rulings of the Supreme Court in Diamond v. Lawrence County, 1 Wright 353.” He therefore awarded the fund to the Philadelphia Trust Company, substituted assignee of. Henry G. Morris.
    Upon separate exceptions to the master’s report, filed by Dovey and by Moodie, Gross & Co., the court, in an opinion by Thayek, P. J., held that Dovey was affected by the doctrine of Us pendens, not, however, on the ground stated by the master, that Us pen-dens was notice to a purchaser, but because of the general rule of policy, deducible from the more modern authorities, that, “pending a litigation, neither party can be permitted to alienate the contested property so as to affect the rights of the other;” that “this doctrine is not confined to transfers by defendants, but is equally applicable to plaintiffs,” and that the alienee of either party is bound by the rule. The court further held as follows: That the meaning and effect of the final decree of April 28th 1877, in the equity-suit.of Moodie, Gross & Co. against the bank and Morris, assignee, vacating the prior decree and dismissing the plaintiffs’ bill, were — that the plaintiffs had been shown to have no title to the stock, but that it belonged to the assignee of Henry G. Morris, subject to the plaintiffs’ lien for the $3700 cash actually advanced; and therefore the relief prayed for by the plaintiffs, viz., a transfer of the whole stock was denied, and their bill dismissed. It is the substance of the decree, and not its form, which binds all who come in pendente lite: Style v. Martin, 1 Cas. in Ch. 152. “ By that determination the present defendant is bound, because he came in pendente lite and purchased a title which was then in litigation, and which in the course of that litigation was determined to extend to only a portion of the property which was the subject of the dispute. That portion the defendant has already received. To allow him now to claim the whole would enable him to deprive the present plaintiff of the fruit of his former litigation, and, in effect, to subvert the decision of the court.”
    The court thereupon dismissed all the exceptions and entered the decree reported by the master, as the decree of the court, to wit: “And now, October 4th 1879, the above cause coming on to be heard on the master’s report, and the exceptions thereto, and the same having been fully argued by counsel, and considered by this court, it is ordered, adjudged and decreed that the report of the master be confirmed, and that the exceptions thereto be dismissed; and it is further ordered and decreed that the sum of $251.87 bo paid by R. O. McMurtrie, Esq., the holder of the fund at issue, to the master and examiner, for the costs and expenses of the reference, and that the sum of $1566.73, the balance on hand, with all accrued interest thereon due by the Pennsylvania Company for Insurance on Lives and Granting Annuities, be paid to the Philadelphia Trust and Safe Deposit and Insurance Company, the present assignee for the benefit of the creditors of Henry G. Morris.”
    From this decree, Dovey and Moodie, Gross & Co. took these separate appeals, assigning for error substantially the dismissal of their exceptions and the entering of the decree.

      R. C. McMurtrie, for the appellant, Dovey.
    This bill should have been dismissed for want of jurisdiction. Before it was filed, the stock was converted into money; the conversion was ratified by the plaintiff, whose prayer was that the defendant Dovey, as trustee, be required to pay him the money. The proper remedy was an action at law for money had and received: Grubb v. Grubb, 7 W. N. C. 349.
    The numerous other errors of the court below began with the first decree in the case of Moodie v. The Bank and Morris, which directed a delivery by a plaintiff to a defendant, which was not prayed for, and directed a payment by defendant, which had never been demanded. A court of equity cannot compel a defendant to redeem the plaintiff’s title when unsought by the plaintiff. Perceiving this error, the court vacated their decree, and went as far wrong on the other side by simply dismissing the plaintiff’s bill. It was admitted he was entitled to hold the property until paid $3700, but the court (erroneously drawing their own decree) omitted to mention that or to reserve his rights in any way.
    Following these errors, the master, in the present case, erred in his statement of the law that Us pendens is notice to all the world. The court reversed him on that, but adopted his conclusion upon a different statement of the doctrine of Us pendens, which, we contend, was equally erroneous as applied to this ease. It is true that Moodie’s suit against the bank was pending when Dovey purchased, and that the decree in that suit was entered subsequently to his purchase. But the final decree in that case was that the bill be dismissed. The operation of the decree was in no way affected by the transfer of Moodie’s title to Dovey. It decided nothing but that Moodie was not entitled to the relief he asked; in fact, it really decided that Moodie had no title to pass the stock conveyed to him, even to° the extent he had paid for it. No one supposes that this was meant; but to find the meaning you must look to the opinion — i. e., out of the record. Dovey’s title does not depend on title or absence of title in his vendor, but in the fact that he was the purchaser from one having the indicia of ownership. The court below held, virtually, that a decree refusing, to recognise a plaintiff’s title is as effectual as a decree directing a conveyance. If it had directed a delivery, we admit that the decree must have been complied with. But no authority warrants the position that a purchaser of a legal title can be affected as to the real ownership by a decree in equity, when nothing is directed to be done, or can be done, under the decree pronounced, or on the case made by the pleadings. If the decree establishes an- equity merely, a purchaser of the legal title is not bound. All the authorities hold that a purchaser after the decree is not bound, because the plaintiff then has power to execute it; and if he delays he is in the same position as any other holder of an equity. He is neither better nor worse because of the decree. That does not create a right; it is and can be nothing but an authoritative ascertainment of a right. The theory of the Us pendens doctrine in equity is precisely what it is at law — to prevent the defendant in a suit, or the party against whom relief is asked, by transferring the subject of the litigation pending the suit, disabling the court to give the relief asked, because the plaintiff cannot otherwise protect himself should the decree be in his favor.
    It is submitted, therefore, that the true statement and limit of the doctrine of lis pendens is that no change of, ownership during a suit will prevent the execution of a decree, as it could have been executed if there had been no change. It is immaterial whether a plaintiff or defendant sells. Practically, the rule only applies to a plaintiff, because there are but two instances in which a defendant can ever have affirmative relief without a cross-bill, and in neither can this rule operate. It is not a rule which makes a pending suit, or any question of fact or law incidentally decided therein, notice to or conclusive on a purchaser of a legal title. It is simply a rule that the decree must be complied with. It has nothing to do with notice or the effect on title. Whatever may be the dicta scattered through the books, it will be found that all the decisions harmonize with this statement of the rule, that in enforcing the decree, a purchaser pendente lite is disregarded. Nothing can better prove this to the practical mind than that this doctrine is not even known in common-law courts, while it is certainly true there as elsewhere; but there is not a form of proceeding left in which it can be applied, except it bo in partition, because in no common-law action is judgment ever given for any res.

    The Us that was pending in this case was a claim and denial of title. The court held that the plaintiff had no title which could be enforced in that suit, and admitted they could not give the defendant the relief he was entitled to on the evidence ; they actually vacated the decree in which they had attempted to do this, because in fact, there was no lis ; that is, no cross-bill filed, no claim for such relief. That suit was abortive. How then can it be said that there was a Us pendens by virtue of which the court can enforce by this bill the defendant’s right against a purchaser from the plaintiff in the former suit ? A purchaser of land is not affected by the fact that there is a suit pending to determine the right to money which is a charge on the land: Worsley v. Scarborough, 3 Atk. 392; Newman v. Chapman, 2 Randolph 93. A decision as to an abstract question of title, which cannot be carried into effect by the decree, is not within the rule of lis pendens: Carrington v. Brents, 1 McLean 167. In Diamond v. Lawrence County, 1 Wright 353, relied on by the other side, the decision was right, but the ground on which it was put, that of notice, was wrong.
    Whatever the doctrine of Us pendens may be, however, it does not apply to stocks or similar property: Leitch v. Wells, 48 N. Y. 585; County of Warren v. Marcy, 7 Otto 96.

      Samuel Gustine Thompson, for the appellants, Moodie, Gross & Co.
    The title of these appellants to the stock was complete. The certificate stood in the name of the Provident Company, not in that of Morris. Moodie honestly bought it from Ervin, paying $3700 in cash, and cancelling antecedent debts for $2750. The court held, in their opinion by Briggs, J. (on the authority of the overruled New York case of Root v. French, 13 Wend. 570), that we were only entitled as purchasers to the extent of the cash consideration, and, because we claimed the whole, dismissed our bill. That decree settled only Moodie’s right to a transfer by the bank. Where the defendant, in a former bill, files a new bill against the former plaintiff, the cause is opened on its merits: Neafie v. Neafie, 7 Johns. Ch. 1. This is a question of title on the distribution of the proceeds, and we have the right to appeal. The cancellation of the antecedent debt was a valid consideration: Sinclair v. Healy, 4 Wright 417; Swift v. Tyson, 16 Pet. 19; Pratt v. Coman, 37 N. Y. 440; Currie v. Misa, 10 Law Rep., Exch. 153; Walker v. Geisse, 4 Whart. 252.

      Lewis Waln Smith and William A. Porter, for the appellees.
    1. As to Dovey’s Appeal. This case illustrates the wisdom of the doctrine of lis pendens, whether based on the principle of notice, or upon the rule of public policy, that pending litigation, neither party shall, by parting with the thing in dispute, affect the other party’s rights.- The facts are arguments. Stock of Morris was fraudulently sold to Moodie, who sued the bank for refusal to transfer, and made Morris co-defendant; Moodie, fearing a decree in Morris’s favor, or the filing of a cross-bill, sold or pledged, and forfeited it to Dovey, pending his own suit, and Dovey collected the proceeds by a judgment at law. If Dovey had inquired of the bank, he would have .learned that, its transfer had been prohibited. It is not inequitable, therefore, to hold him affected with notice; but we rely on the broad principle, that where a party to a suit holds property which is the subject of the litigation, he cannot convey to a stranger a better title than he has himself": Ballamy v. Sabine, 1 De G. & J. 580. The question of jurisdiction should have been raised by demurrer. It was not taken below, and cannot be considered here.
    2. Moodie’s Appeal. Moodie, -Gross & Co., having purchased from a fraudulent holder, were only entitled to receive back the consideration actually paid by them. If the $8700 be refunded with interest to them, or to Dovey, their assignee, they are in no worse position than they-were when they received the stock, and the true owner is at least entitled to redeem it by repaying that amount. The check was worthless, and the receipted bill was not conclusive. Moreover, these appellants have no standing here. The same questions were raised on their former appeal, on their own bill; which was non-prossed. There is no decree against them in this case, and the appeal should be quashed.
   Mr. Justice Paxson

delivered the opinion of the court, February 21st 1881.

The doctrine of lis pendens has been essentially modified by the later decisions. In the earlier cdses, both in England and this country, it was held- that Us pendens was notice to all the world, with the same effect as the registration of a deed under the recording acts as to constructive notice of the conveyance. More recent cases, however, place the doctrine upon another, and, we think, a sounder basis. In the leading case of Bellamy v. Sabine, 1 DeG. & J. 580, it was said-by Lord Chancellor Cranworth: “ It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice .the opposite party. The doctrine of lis pendens, says Mr. Adams, in his work on Equity, “ has been recently considered and decided not to stand on the ground of notice, express or implied, but to follow from the general rule that, pending litigation, neither party can be permitted to alienate the contested property, so as to affect the rights of the other.” This is a rule of public policy, and the object of it is to prevent the parties from making a conveyance pendente lite of the property or thing which is the subject-matter of the controversy, and thus to defeat the execution of the decree of the court. The effect of it is to imjlfi'se a disability to convey from the time of the service of the subpoena upon the defendant. The court, in the execution of its decree, pays no regard even to a bona fide purchaser. In other words, no change of ownership during a suit will prevent the execution of a decree, as it could and would have been executed had there been no change.

So far, we are in entire accord with the views of the law as expressed by the learned and able judge of the court below. It is in the application of the law to the. facts of this particular case that we think he has erred.

It is conceded that Moodie pledged the shares of stock in question to Dovey in June 1876, and that the present bill was filed on May 6th 1877. To this state of facts the doctrine of lis pendens certainly cannot apply. It was urged, however, and the court below adopted this view, that as the bill filed by Moodie on October 14th 1875, to. compel a transfer by the bank, was pending and undetermined when he pledged the stock to Dovey, that the said bill was a lis pendens, and avoided the pledge. But that bill came to nothing; it was dismissed, and that is the only decree in the cause. It could not affect this case unless we hold the dangerous, if not absurd, doctrine that Us pendens is to apply to every suit, even where the cause of action is purely imaginary. The consequence of such a rule would be that any man’s property could be tied up, and alienation prevented by the filing of a bill setting forth a claim which had no foundation whatever.

The decree upon Moodie’s bill decided nothing but that he W'as not entitled to the relief he asked. Had there been a cross-bill filed by the assignee of Henry G. Morris, and a decree that the plaintiff in Moodie’s bill had -not the title to the stock, but that it belonged to the assigned estate of Henry G. Morris, subject to the plaintiff’s lien for the cash actually advanced, and therefore the relief prayed for by the plaintiffs was denied, and their bill dismissed, we would have had a different question before us. But we are unable to see how that abortive proceeding can be tacked to the present bill so as to produce a Us pendens.

As the record stands, the most that can be urged for Moodic’s bill is that it was constructive notice to Dovey. But under the modern doctrine of lis pendens, constructive notice amounts to nothing, and we are of opinion that a Us to affect the party and destroy his power of alienation must be a Us in which a decree could be entered against him as to the property which is the subject-matter of the contention. He may not convey pendente lite, for the reason that such transfer would defeat the execution of the decree. But if the proceeding is such that no decree can be entered, why may he not convey ? The true rule would seem to be that a purchaser is affected by the decision upon any claim to the property purchased, if there be a litigation pending in which that question is decided: Newman v. Chapman, 2 Randolph 93.

It was said in Murray v. Lylburn, 2 Johns. Ch. 441, that the doctrine of Us pendens may not apply to movable personal property, on the ground of the necessities of commerce; in the County of Warren v. Marcy, 7 Otto 96, that it does not apply to negotiable securities; and in Leitch v. Wells, 48 N. Y. 586, that it does not apply to stocks. We neither affirm nor deny the latter proposition, but decide this ease upon other grounds.

The jurisdiction is doubtful. The proceeding is an action for money had and received under the disguise of a bill in equity. But as the point was not made below, either by demurrer to the bill or exceptions to the master’s report, we have considered the case upon its merits.

It remains but to say a few words in regard to Moodie’s Appeal. The only prayer in the bill as to Moodie, Gross & Co., was that they be restrained and precluded from claiming the fund or any part thereof either from the said Dovey or from the plaintiff. There was no decree against them, except as they may be incidentally affected by the award of the fund to the assigned estate of Henry G. Morris.

The position of the appellants is this: They bought the stock of Ervin for the sum of $6450.83, and afterwards pledged it to Dovey for $5000 cash borrowed. Under the principles indicated in Dovey’s Appeal, his executors are entitled to payment in full of the sum borrowed, and for which the stock was pledged. The balance, if any, would belong to Moodie, Gross & Co., provided their title is good. It was conceded in the court below, and here, that they had title to the extent of the $3700 paid in cash for the stock. But it was contended, and so held by the court below, that as to the $2500 check, and the -coal bill of $250.83, the said Moodie, Gross & Co., were not holders for value, for the reason that both the latter sums represented antecedent debts. It is true the taking of a security as collateral for an antecedent debt; does not make the creditor a holder for value, so as to give him the rights of a bona fide purchaser, but the rule is otherwise where it is taken in payment or extinguishment of the debt. In such case the contract is executed and the debtor released. Not so, where the creditor has taken something as collateral. In such case the contract is executory; the creditor has parted with nothing, and still holds his grip upon his debtor. Here Moodie paid Erwin §3700 in cash; surrendered to him bis (Erwin’s) cheek for $2500, and receipted Erwin’s coal bill for §250.83. That this constituted a valuable consideration is sustained by a number of authorities, among which may be mentioned Sinclair v. Healy, 4 Wright 417; Shufeldt v. Pease, 16 Wis. 659, where it was held that “a purchaser of goods from a fraudulent vendee, whose title is voidable on the ground of fraud, who takes them in payment of a pre-existing debt, against said fraudulent vendee, is a purchaser bona fide, and as such is protected in his purchase against a claim to the property made by the party defrauded.” Barnett v. White, 34 Miss. 57, where it was held that “when the antecedent debt was extinguished it was a good consideration.” Paddon v. Taylor, 44 N. Y. 371; Pratt v. Coman, 37 Id. 440; Brown v. Leavitt, 31 Id. 113; Bank v. Babcock, 21 Wend. 500; Burns v. Rowland, 40 Barb. 368.

It followed that after Dovey’s claim is paid in full, the surplus, if any there be after the payment of the expenses of the reference as specified in the decree below, will belong to the appellants in this appeal.

Decree reversed, and appeal dismissed at the cost of the appellees.