text:
    Christman v. Moran.
    By proceeding before arbitrators, an objection to the illegality of tbeir appointment is waived, even though, there was an express agreement that there shquld be no waiver.
    In error from the Common Pleas of Philadelphia.

      Jan. 17; Three arbitrators having been duly appointed and qualified, one of them declined serving. The others then appointed a person to fill the vacancy. Defendant’s counsel objecting to the appointment, agreed to proceed with the cause on the written agreement of plaintiff’s counsel, that the exception was not thereby waived.
    Exceptions having been filed to the award on this ground, they were overruled, and this writ brought, and the exception below assigned for error.

      Guillou, for plaintiff in error,
    relied on the rule determined iü 7 W. 495, that the appointment .was irregular, and 1 Pa. 305, that the other party proceeded at his peril after the exception -and express agreement.

      Ingraham, contra.
    7 Barr, 94, decides this objection cannot be taken in error, but on appeal only.

      Jan. 26.
   Gibson, C. J.

It is most true that arbitrators assembled and sworn, have not power to supply a vacancy, in .their number ; but they may supply it with the express or implied assent of the parties; and this distinguishes the ’case in hand from' Cross v. Wilson, 7 W. 495, in which the party affected by the award had done nothing to sanction the proceeding which led to it. In that case he had gone away protesting; in this he 'remained protesting, but participating. lie proceeded with' his defence protestando, but intending to take his chance before the arbitrators, and thus obtain the advantage of being loose or bound at his election. But he was bound to give up his chance or his objection, for they could not exist together. Had the arbitrators awarded in his favour, he might, notwithstanding his protest, have enforced the award; and mutuality of submission requires that both should be bound or neither. But had even both parties agreed to proceed, each reserving the same objection, neither would, according to the principle of the argument, have been bound, and the hearing would have been a mockery. By agreeing to go on, both waived the exception, and both are bound to stand to the award.

Judgment affirmed.


source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    Commonwealth v. Rhoads.
    Under the act of 1783, a writ of error and not an appeal lies to a judgment of the Common Pleas on a forfeited recognisance. The appeal provided by that act, lies only to the orders of the court on applications to remit or moderate the forfeiture. Hence an appeal taken from the judgment, assigning errors in the proceedings, and also that the court should have remitted the forfeiture where the record did not show such an application was made to the court below, was quashed.
    Appeal from the Common Pleas of Philadelphia.

      Jan. IT. This was an action of debt brought to December Term, 1845, on a recognisance of bail taken by the Recorder of the city of Philadelphia, in July, 1845, to answer in the Quarter Sessions a charge of a conspiracy to cheat and defraud; which recognisance had been forfeited by non-appearance. Judgment on the verdict was entered in June, 1846, and this appeal taken. Reside the errors assigned in the record and bill of exceptions, there were two, alleging the judgment to have been immoderate, under the circumstances of the case, and that the court below should have remitted the recognisance. But it did not appear, from'the record, that any application to remit had been made in the court below.

      B. Ingersoll

    now moved to quash the appeal, because it was taken to the proceedings at law, on the recognisance, the remedy being by writ of error.

      V. L. Bradford, contra
    By the act of 1T83, these recognisances are to be sued in the Common Pleas; and that court and the Quarter Sessions are empowered to order the recognisances to be levied, moderated, or remitted, in their discretion; with a proviso, allowing- appeals to this court, “ from such orders and judgments.” The statute, therefore, points out the remedy, which we are not at liberty to depart from.

      Jan. 27.
   Gibson, C. J.

There is no such thing as an appeal from a judgment in an action, according to the course of the common law, which is not given by statute; and this appeal has brought up the record of an action of debt for the penalty of a recognisance forfeited in the Quarter Sessions, and sued in the Common Pleas. The appellant relies on the second section of the act of 1T83, which declares such recognisances to he recoverable in the Common Pleas; “which courts” (the Common Pleas and Quarter Sessions) “may, and are hereby empowered to, order the said recognisance to be levied, moderated, or remitted, on hearing the facts and circumstances of the case, according to equity and their legal discretion.” Perhaps either court may entertain the petition, but not at the trial. The abatement or remission of the penalty would have been more appropriately the act of the court in which the recognisance was forfeited; but the statute is peremptory. But from the order of either court there is an appeal. When that has been disposed of, or when the time has elapsed without an appeal, the recognisance may be sued in the Common Pleas for the sum fixed by the order, or for the amount of the penalty. At the date of the statute, an action of debt could be brought only for a specific sum, and that sum was consequently intended to be liquidated, where there was a petition to remit or abate, before the impetration of the writ. The petitioner, or perhaps the commonwealth, has an appeal to the Supreme Court from the order; but if he file no petition, or do not appeal in time, he waives his right, and the attorney-general, or the proper officer of the county, may proceed. If action be brought pending the appeal, its pendency may be pleaded in abatement of the writ. This course is plain, simple, and consistent; while it would be impossible, without inextricable confusion, to jumble together the petition to abate or remit, and the common-law proceeding by action for the entire penalty.

Appeal quashed.


text:
    Pelayo v. Fox.
    Tie transfer of a general ship before delivery of the cargo, passes the right to sue for the freight; and the law implies a promise to pay by the consignee receiving the goods.
    In error from the District Court of Philadelphia.

      Jan. 1Y-18. Assumpsit for freight, with a count laying a delivery in consideration of a promise to pay the freight on goods which had been carried by plaintiff. The goods were shipped under a bill of lading deliverable “unto order or assigns,” which had been endorsed by the shippers to the defendant or his assigns, or, in his absence, to one Sierra or his assigns.
    After the arrival of the vessel in Philadelphia, but before the delivery of the cargo, the owners made an assignment of the vessel to the plaintiff for the benefit of their creditors.

      His honour, J ones, P. J., instructed the jury, that if the goods were delivered after the assignment of the vessel, the plaintiff could recover, and the law implied a promise by defendant to pay the freight on his receiving the goods. That under the evidence, the question of agency of defendant for the shippers did not arise.

      S. and O. Ingersoll, for plaintiff in error.
    Apart from the question of agency, there was a special contract by the bill of lading, which does not pass by a transfer of the vessel. There can be no contract different from the express one: 2 M. & S. 303. And this contract is not assignable, though the property in the goods passes by endorsement: Thompson v. Downing, 14 L. J. N. S. 320; 10 East, 279; 1 H. Bl. 117 n.; 4 Bing. 45; 2 Taunt. 414. Nor does the law imply a promise by the consignee: 4 Ad. & E. N. S. 260. The form of endorsement was evidence of agency: M. & M. 511.

      Brincklé and F. W. Hubbell, contra.
    The cases cited are of charter-parties, where there is an express contract, which is not assignable; but, in the case of a general ship, no contract to pay freight arises until delivery of the goods,' and the owner of the vessel at that time is the proper party to sue: 4 Bing. 45; 10 E. 279; 2 Taunt. 407 ; 4 Mass. 91. 4 Ad. & E. 260, was a special verdict; but the implied liability of the consignee was decided in 13 East, 399, 3 Bing. 383, 4 Taunt. 1. The question of agency is immaterial: 3 Bing. 383; 5 Taunt. 477; 3 Camp. 545.

      Reply.

    The freight had accrued on the arrival of the vessel at the port of delivery.

      Jan. 22.
   Gibson, C. J.

The exceptions to evidence have not been pressed, and the exceptions to the charge are resolvable into aAingle point. It has scarce been disputed that a transfer of the title to a general ship, transfers accruing freight. The implied contract is entire; and, generally speaking, till all is earned nothing is earned. The principle extends even to the mortgagee of a ship in possession, who, like a mortgagee of land in possession, is entitled to take the profits. It is inapplicable, however, to a chartered ship, the freight being payable according to the terms of the charter-party ; and hence the cases cited for the plaintiff in error are beside the point. But it is not demandable in any case before the cargo has been delivered; or, according to Mr. Chitty (Commercial L. 3 Vol. 410), who cites no authority for it, before it is ready for delivery. In this case, the transfer of the ship took place after her arrival, but before the entire delivery of the cargo, which was not perfected till the “ better part of a week had elapsedand the consignee insists that the voyage was ended the moment she touched the wharf; consequently, that the transfer was not made during it. There has been no decision that I am aware of, as to the precise point of limitation in regard to payment of freight, where the delivery has been delayed beyond a reasonable time; but in analogy to the ending of the voyage as regards the wages of seamen retained to discharge the cargo, we may say there was no unreasonable delay in this instance. The act of Congress of 1790, ch. 29, § 6, provides, that as soon as the voyage is ended, and the cargó and ballast fully discharged at the last port of delivery, every seaman or mariner shall be entitled to the wages that shall be then due, according to his contract;” and that if such wages shall not be paid within ten days after such discharge, he may libel the master and ship. Under this statute, Judge Peters allowed, in some instances, fifteen days to discharge the cargo: as in Thompson v. The Philadelphia, 1 Peters’ Adm. 210, and Edwards v. The Susan, lb. 165; and Judge Davis thought, in Holmes v. Bradshaw, Dis. Ct. of Mass. 1822, that fifteen working days should be allowed; and all concur that the voyage is not ended before that time, or the actual discharge of the cargo, to found a demand for wages; and why to found a demand for freight ? The difficulty is to discover what the ship does to earn freight while she is lying at her moorings. She conduces to the purposes of the voyage, if not in the further transportation of the property, at least in the preservation of it, till the consignee is ready to receive it; which is a part of her proper business. She was at every intermediate moment, therefore, earning the reward; and the judge charged properly, that if the transfer of the ship was made before the cargo was delivered, the transferee was entitled to the freight.

Judgment affirmed.


author: Bell, J.

text:
    Ross’s Appeal.
    A., having purchased the right of a vendee under articles, erected fixtures on the land which he afterwards sold to B., to whom he also transferred Ms interest in the land by parol: B. cannot set up as a defence to A.’s claim for the price of the fixtures, a judgment against A.’s vendor, which was entered after possession taken by A. under Ms agreement — which judgment was known to B. at the time of Ms purchase of the fixtures; For, 1. It was no lien, because the interest had been transferred to A., and if a lien, B. might have severed before execution; and 2. He bargained for the fixtures as personalty, with knowledge of the existence of the judgment.
    Appeal from the Common Pleas of Philadelphia.

      Jan. 18. The question was the right of Lyman’s assignee to a dividend of the estate of Marshall & Kellogg, who had assigned for creditors, which was resisted on the ground that there were prior liens on the property sold by Lyman, for the price of which, the claim was made.
    The facts were these : — On the 14th of April, 1838, Patterson entered into an agreement for the purchase of a piece of land, to he paid for at the end of five years, secured by bond and mortgage. He entered on the property, and partially built a furnace for making iron. Some time afterwards, he agreed to transfer his interest to Lyman, who was to succeed to all his liabilities to the vendors. Lyman took possession in the fall of 1838, and erected machinery for manufacturing iron, but the agreement to transfer was not executed by Patterson until 1839. In 1840, Lyman made a bill of sale of all his fixtures, machinery, tools and goods on the land, to Marshall & Kellogg. The price agreed upon was the claim in this case. He also, by a verbal arrangement, transferred to them his interest in the land.
    The defence was, that there were two judgments against Patterson : one March 1st, 1838, and one December 10th, 1838, which the assignee alleged were liens on the fixtures sold by Lyman. But it was proved that at the time of the purchase Marshall & Kellogg had knowledge of these judgments, and consulted counsel, who advised they were not liens.
    The court decreed Lyman’s assignee a dividend, and this appeal was taken.
    Brinckle, for appellant.
    Patterson’ had an estate in the land, and when the fixtures were put there, they were bound as part of the realty : 2 W. & S. 116 ; Ib. 390. These liens caused a failure of consideration; for when the assignee sold, they were liable to them, and hence they must be deducted: 1 S. & R. 438.

      C. J. Biddle and Haly, contra.
    Patterson’s title was of no value; it was equitable, and nothing paid. Such title is bound only to the extent of payment of the purchase-money. But Marshall & Kellogg bought the fixtures as personalty, and not with the land. They could, therefore, have severed and avoided the lien. These fixtures were not liable to tlie judgment, for a purchaser who does not comply, has all the rights of tenant for years: 7 Cow. 321; 4 W. 33; 3 Atk. 13. Nor were the judgments liens: the one was before Patterson’s purchase, and the other, after he had sold to Lyman.

      Jan. 29.
   Bell, J.

The claim of Lyman’s assignee to participate in the distribution of the fund in the hands of Marshall and Kellogg’s assignee, springs from the contract of sale, evidenced by the bill 'of sale, as it is called, of the 15th of September, 1840. This claim is resisted by the appellant, because of an alleged failure of consideration, resulting from the supposed lien of the judgment recovered by the Miners’ Bank of Pottsville against Burd Patterson, on the 10th of December, 1838. This lien, it is assumed, affected, in the hands of the purchasers, the machinery and other fixtures attached to the furnace and engine-house by Lyman, after his agreement with Patterson. The objection, it will be perceived, does not embrace tlie whole of the appellee’s demand, since a part of it arises from the sale of chattels which in no aspect can be considered as having been parcel of the freehold, at any moment of time. The question is, therefore, narrowed down to such portions of the articles enumerated in the schedule accompanying the bill of sale, as, being annexed to, might, under certain circumstances, be regarded as part of the realty.

In Pennsylvania, it is indisputable that a lien or encumbrance on lands sold may furnish the vendee a defence pro tanto, in an action for purchase-money, even after conveyance made. It is settled, too, that chattels affixed to the freehold, for the time, so far partake of its nature as to pass by a judicial sale of the land to enforce payment of the lien. But as such things may be again disjoined by the owner of the freehold, and thus restored to their original character of personal chattels, there is nothing in the law prohibiting a sale of them as personalty. In the absence of fraud, parties so treating them, with a knowledge of the circumstances that attend them, necessarily assume any risk consequent upon their present relation. As between such parties, they are to be regarded as dissevered. This, as a general rule, results from the nature of what is technically denominated a fixture, though capable of amotion. Primarily a thing personal, it becomes for some purposes, in legal contemplation, incorporated with things real by simple annexation, and may, while this continues, be the subject of an estate in, or an encumbrance on lands. But it sustains this character only so long as the connexion lasts. The moment it is dissolved by a complete severance, this artificial character is dropped, and, as a moveable, it again assumes its natural relations. Take, for illustration, the rolls used in a rolling-mill. These, in Voorhis v. Freeman, 2 W. & S. 119, and Pyle v. Pennock, Ib. 390, are affirmed to be parcel of the mill, and to pass by a sale of it. But can it be doubted that a disunion and sale of them, as moveables, would pass them to a purchaser, freed of the lien of a judgment ? It may be said the roll is but a small part of the machinery of a rolling-mill, and to be regarded rather as a tool than a fixture. But the cases determine differently, and the principle they establish shows that the right to disannex depends not, in any degree, on the size or weight of the fixture. Steam-engines and other ponderous machines used in manufactories are, for the advancement of trade, constantly treated as chattels: Lemar v. Miles, 4 W. 330; and in Van Ness v. Pacard, 2 Pet. 137, the right of removal was extended to a wooden dwelling-house, with a walled cellar and brick chimney, erected by a dairyman, for the purpose of carrying on, more advantageously, his occupation. It is true, these were cases between landlord and tenant. But in a case decided at our last session in Pittsburgh, this doctrine was, with the approbation of the whole court, conceded as being applicable to a cast-iron blowing cylinder, placed in a furnace by the tenant of the fee. True, it was there held the cylinder passed to the purchaser, at a sheriff’s sale, as appurtenant to the furnace, but this was because the previous private purchaser had neglected to remove it before the sheriff’s levy. The doctrine to which I have adverted will, I think, be found entirely consistent with the decision in Gray v. Holdship, 17 S. & R. 413.

But apart from this, and under the ordinary principle of caveat emftor, I think it may be safely affirmed that one who knowingly purchases and agrees to pay for fixtures, as ordinary articles of merchandise, capable of being made so, and afterwards enters upon the. possession and enjoyment of them, though still annexed to the land, shall not be permitted, when called on for payment, to shelter himself under the allegation that they are, in their legal character, other than he agreed to consider and treat them at the time of his contract. Suppose the common case of the owner of a mill or other factory encumbered by lien, who rents the mill and sells to the lessee the machinery and other fixtures as personal chattels, and which the latter agrees to accept as such. Could he, after enjoyment under his purchase, set up the outstanding encumbrance as a bar to the recovery of the purchase-money ? Certainly not. But it will presently be seen that, in the present case, we are not called on to go even so far as this.

The evidence puts it beyond controversy, that here the contracting parties considered the sale of the articles enumerated in the bill of sale, as something entirely distinct from and independent of the arrangement respecting the transfer of .the island; the subject of the one being regarded as personalty, of the other, as realty. Upon this basis, they negotiated and arrived at their conclusions. This is established as well by the language of the bill of sale as by the testimony of the leading witness, Mr. Marshall, who said, Marshall & Kellogg purchased from Lyman, in the month of September, 1840, certain goods mentioned in a bill of sale to them, dated, &c., which contains all the goods sold to Marshall & Kellogg by Lyman, and contains the whole agreement between the parties, in relation to the sale of those goods.” The fixtures and other things, on the island, are a part of the articles contained in the bill of sale. Marshall & Kellogg were to have the island on the same condition that Lyman was to have it from the owner — by paying the purchase-money of eight thousand dollars in five years.” “We talked to the owners of the island different times, and we could have had the island by paying the purchase-money.” “ Marshall & Kellogg purchased the interest of Mr. Lyman in the island by verbal understanding. We were to step in Lyman’s shoes, and take it exactly as he had it, pay the purchase-money, and receive the title from the owners.” In truth, Lyman undertook to sell nothing to Marshall & Kellogg but that which he had himself placed upon the island, or acquired elsewhere. He pretended no pecuniary interest in the land; for neither he nor Patterson had paid any part of the purchase-money, or secured its payment, under the agreement with Starr. Patterson, it is true, had a bare equity, which might be the subject of lien; but, in point of value, it was but an interest in the contract of sale, capable of being perfected into an estate by payment of the purchase-money. This was all he could transfer to Lyman, and this was all Lyman undertook to pass to Marshall & Kellogg. Indeed, it is perfectly apparent that from the beginning, the fixtures and the land were regarded as the property of different owners. They were so treated by Patterson and Lyman, and, as has been seen, so contracted for by Lyman and his vendees. That the latter might never acquire a legal title to the island, must have been in the contemplation of the parties as possible; but it could not have been thought that a failure to do so, would affect tlicir right of ¡property in machinery purchased as personalty. And in this they were right, if the case of Raymond v. White, 7 Cow. 319, he law. There a machine, called a heater, was introduced into a tannery by an equitable purchaser, who afterwards failed to fulfil the conditions of sale, by payment of the purchase-money, and abandoned the land. Conceding the heater to be a fixture, it was held — Chief Justice Nelson delivering the opinion of the court — that an equitable vendee, who failed to perform his covenant, was to be considered as a tenant for years, or at the will of the vendor; and, as such, might remove a fixture, and consequently it was liable to be levied on and sold at the suit of an execution-creditor, though remaining in its original position.

Under the circumstances at which I have glanced, Marshall & Kellogg took possession of the articles sold by Lyman, and continued in the enjoyment of them, up to the time of their assignment to the appellant, into whose hands they passed by virtue of the assignment. If not sold — and on this head the record is not explicit — they are still held by him, and his possession and title is undisturbed and unchallenged by any one. Looking to this fact, in connexion with the contract of sale, it is difficult to imagine upon what ground the objections raised by the appellant could be sustained.

Rut did the question raised in this case regard alone the land which Starr and his associates agreed to sell to Patterson, the appellant’s position would be found untenable.

All the decisions, and particularly Hart v. Porter, 5 S. & R. 203; Friedly v. Scheetz, 9 S. & R. 163; Lighty v. Shorb, 3 Pa. 447; Moore v. Shelly, 2 W. 256, and Stroop v. Ransom, 10 Ib. 297, show that the doctrine of Steinhauer v. Witman is not of universal application. The rule there recognised, does not extend to those cases where it is expressly stipulated or shown by circumstances to be the understanding of the parties, that the vendee was to take upon himself the risk of a defect of title or the existence of an encumbrance. Now, Marshall swears, that at the time of their contract wdth Lyman, his firm had notice of the judgments recovered against Patterson, but not deeming them to be liens on the land, he disregarded them. It is obvious from this, that neither of the parties imagined that Lyman had engaged to warrant his vendee’s title either to the land or the fixtures. Marshall & Kellogg undertook to decide for themselves, whether the judgments were or were not encumbrances; and never dreamed of looking to Lyman to guaranty them against a mistake, in this particular. But apart from the direct proof, the nature of the transaction shows this to have been so. The case presents the uncontradieted fact, that Marshall & Kellogg were to take the place of Lyman, as purchasers from Starr and others. As already said, Lyman intended to do nothing more than to transfer to them his interest, whatever it was, in the contract. Why, then, should he be made answerable for encumbrances not suffered by him, any more than for a defect of title ? The very character of the agreement repels such an idea, as is shown authoritatively by Smith v. Sillyman, 8 Wh. 589. In that case, where there was a similar arrangement, it is truly said the presumption is irresistible, in the .absence of express stipulation, that the vendee relied on his own judgment, as to the soundness of-the title. The same presumption is applicable to an encumbrance. Such an agreement amounts to a declaration by the vendee, that he takes the property just as his vendor received and held it, and subject to all defects or hindrances not created by the latter.

But another aspect of the case is hostile to the appellant’s pretensions. Of the two judgments shown by the paper-book to have been recovered by the Miners’ Bank of Pottsville v. Burd Patterson, one was rendered on the 1st of March, 1838. The agreement between Starr and Patterson, for the transfer of the island, was on or after the 14th of April, 1838, and was, of course, after acquired property, aliened before execution. But the appellant does not pretend this to be a lien. He points to the second judgment as the encumbrance. This was recovered on the 10th of December, 1838. Now, according to the testimony of Mr. Patterson and Andrew Bussell, the former contracted to sell to Lyman in September or October, 1838, when Lyman actually took possession and commenced his improvements. This was the inception of Lyman’s title or interest, which might have been bound by a judgment recovered against him- any time after that period: Richter v. Selin, 8 S. & R. 440; Pugh v. Good, 8 W. & S. 56. From this moment ho acquired all the equitable interest which before had resided in Patterson, and became liable for the purchase-money to the original vendors. The subsequent written agreement of the 30lh of April, did not disturb this interest or operate to postpone the time when it vested. If it be considered as a second contract, it may have worked a cancellation of the first, so far as they were inconsistent; but it would not have the effect of reinstating the equitable interest of Patterson, so as to let in the lien of the judgment. That interest remained in Lyman by virtue of tbe prior contract, up to tbe moment of tbe execution of tbe second, under which it passed eo instante, leaving neither time nor room for the intrusion of the judgment. It was, in truth, but a mere alteration in the terms of the sale, like the striking out of an old clause, or the insertion of a new one, in a written agreement, which would not, of course, disturb the interest first acquired. If the writing was hut the visible expression of the verbal agreement, then its operation is to be referred to the date of the latter, and the option given by it being exercised affirmatively, served to confirm the inchoate interest conferred by the conditional bargain, possession, and improvements.

Decree affirmed.

Since this opinion was prepared, both parties have presented a written statement, agreeing the fixtures have been sold by the appellant as the property of Marshall & Kellogg. This fact, of course, strengthens the claim of the appellees.


text:
    Morris v. Oakford.
    A., having mortgaged land to secure llis bond, conveyed the land to B., who agreed to pay the mortgage-debt and interest. B. having failed to pay the accruing interest, it was paid by A. and receipts endorsed on the bond. A. then, purchased the bond and mortgage, and took an assignment in the name of a trustee. On the sale of the land by the sheriff he is entitled, as against a subsequent judgment-creditor of B., to receive from the proceeds the principal of the mortgage-debt, together with the interest he had paid, which B. had agreed to pay.
    In error from the District Court of Philadelphia.

      Jan. 18. Rogers and McIntyre being owners of land, executed a mortgage thereon, to secure their bond to Parker.
    In 1839, they conveyed the land to Barrington, who by the deed assumed the .debt, and undertook to pay it with the interest. Rogers and McIntyre continued to pay the interest on the mortgage-debt up to 1844, receipts for which, in the usual form, were indorsed on the bond by Parker.
    In 1844, Rogers and McIntyre procured an assignment of the bond and mortgage to Oakford, as their trustee. He issued a sci. fa. and obtained judgment for the debt, with interest from 1839. A sale was made by the sheriff, and the question arose on distributing the proceeds. Morris, a judgment-creditor of Barrington in 1840, objected to the payment of the amount claimed for interest, after his judgment, alleging it had been paid and extinguished. The court awarded to Oakford the whole of his claim.

      J. Fallon and S. B. Gilpin, for plaintiff in error.
    The debt here claimed was paid to the creditor, and there is no intent apparent to keep it alive. 9 W. 451, goes further than any other case, and it is there admitted that payment even by a surety, with intent to discharge the security, extinguishes it in equity, as well as at law. To the same effect is the decision in 10 S. & R. 399 ; Green C. R. 145. A debt once suspended is gone: 8 S. & R. 27; 8 Rep. 136, a; and the substitution of a surety is never permitted to work injustice to another creditor: 8 W. & S. 333; 3 Pa. 200. Certainly Parker could not have claimed this fund under either of these principles, and Oakford, who is substituted for him, is in no better situation.

      Brincklé and F. W. Subbell,’contra.

    Rogers and McIntyre became sureties for Barrington, by his agreement: 3 W. 60; 5 W. & S. 36; and as such are entitled to the full benefit of the doctrine of subrogation: 9 W. 451, and cases there cited; 2 Raw. 128; 1 W. & S. 420; 6 Ib. 190. These show that the fact of payment is immaterial, unless it also appear the surety intended to extinguish the liability of the principal; but if,-as here, he was compelled to advance the money, and then takes'an assignment of the security, it remains as between himself and the principal in full force. In the case cited on the other side, there was an admitted intent to extinguish the debt. [Gibson, C. J. — There is no doubt but for the intervening judgment.] The answer is, he has not a specific, but a mere general lien. He is not a purchaser, nor is there any injury done to him by this subrogation — he is placed in the same position as if the interest had never been paid.

      March 14.
   Bell, J.

By his covenants to pay the amount of the mortgage, and the interest accruing thereon, as part of the purchase-money of the premises conveyed by McIntyre and Rogers, Barrington made the debt his own, as between himself and his vendors: Campbell v. Shrum, 3 W. 60; Blank v. German, 5 W. & S. 36. But as they still stood bound for it to Parker, the relationship of principal and surety was established, as between them and Barrington, immediately on the execution of the conveyance, though each continued liable to Parker as principal debtors. In this particular, their relative positions are very similar to those occupied by the parties in Fleming v. Beaver, 2 R. 128, and may be illustrated by the analogous case of an undertaking by one partner to pay the debts of a dissolved partnership. Such debts are thereafter regarded, in equity, between the partners, as the debts of the undertaking party; and the continuing liability of the others is, in the'same point of view, a liability for the debt of another. Hence the retiring partners are called sureties, and as such may prove a partnership debt paid by them against the bankrupt estate of the promising partner, under the 49 Geo. 3, which provides that “ where any person shall be surety for, or liable for any debt of a bankrupt,” he shall come in with the other creditors: Theo. P. & Sur. 239; Wood v. Dodgson, 2 M. & S. 195; see also Parker v. Ramsbottom, 5 D. & R. 138; 3 B. & Cr. 257. So viewed, the case is the ordinary one of payment of the debt of a principal by his sureties, which, under the familiar equity, entitles them to be substituted for the creditor. It is urged, however, that here has been an actual payment of the debt, principal and interest, by the mortgagors, which discharged it, for every'purpose, as against the subsequent encumbrancer, Morris.

But, contrary to what would seem to be the English doctrine upon the subject, it is now definitively settled in Pennsylvania, that, though actual payment discharges a judgment or other encumbrance at law, it does not in equity, where justice requires it should be kept afoot for the 'safety of the paying surety. And this is always the case where the amount of the debt is advanced to procure the control of the security, and not with the intent to extinguish it: Croft v. Moore, 9 W. 455; for there is no principle of equity which requires a surety to pay the debt in ease of his principal, or for the benefit of the posterior encumbrancers. On the argument it was accordingly admitted that, with respect to the principal sum due under the mortgage, the District Court was right in awarding the money to Mr. Oakford, as the representative of the mortgagors, inasmuch as the circumstances attending payment to the mortgagee, precluded the notion of an intent to discharge the lien. It was thought, however, that a difference exists as to the sums paid for interest. TEese, it is said, must be taken as paid absolutely and in unqualified discharge of the interest, as it does not appear there was, at the time of payment, an intent to preserve it as a continuing claim against the purchaser. But, as is intimated in Croft v. Moore, it is ordinarily difficult to conceive a mere surety’s intention to be extinguishment, and not advancement. Primá facie, the latter is to be taken as the object. Where, therefore, there are no special circumstances evidencing an intent to discharge the debt or interest, as was the case in Kuhn v. North, 10 S. & R. 899, or express proof to that effect, equity regards the duty as still existing, at the option of the surety. Here there is not only no such proof or circumstance, but everything negatives the idea the mortgagors intended to discharge the yearly interest in ease of Barrington, who had expressly agreed to pay it. Nor does this conclusion work injustice to Morris, the subsequent judgment-creditor. He took his judgment, of course, subject to the prior mortgage, as it was exhibited by the record, and the interest growing due under it. In addition, he must be taken to have had notice of his debtor’s express undertaking to discharge the mortgage-debt and its interest. He was bound to know that payment of the latter by the mortgagors did not, under the facts of which he must be held cognisant, discharge the land of its lien. His delay to enforce his judgment was consequently at his own risk, in the absence of imputed fraud or deceit practised by the mortgagors, to whom, at all times, he might have had recourse for information.

A similar doctrine was announced in the late cases of Neff’s Appeal, decided at Harrisburg, and O’Neil v. McClure, at Pittsburgh. Indeed, I think the present is ruled by those cases and Fleming v. Beaver.

The view which has been taken makes immaterial the objection that Sharp was not permitted to take defence to the scire facias.

Decree affirmed.


author: Burnside, J.

text:
    Davids v. Harris.
    The party by whose orders a house is erected, is the builder, and liable for the value of the party-wall, although the house was erected under a contract for a gross sum, “including party-walls,” and which had been paid.
    An execution issued by a justice and returned, levied but not sold for want of time; an alias stayed; and a pluries issued nine years afterwards, returned “ no goods;” are no evidence for the defendant of payment of the debt.
    The right to compensation for a party-wall, is personal to the first builder: hence, where a house was erected on land conveyed to the husband and wife, and the heirs of the wife, the husband and his creditors are entitled to the compensation.
    In error from the Common Pleas of Philadelphia.

      Jan. 19. The case is fully stated in the opinion of the court.

      B. Shippen and JH. M. Wharton for plaintiff in error.
    The contractor was the first builder; he had received the price, and was bound to apply it before using the wall, or he became a trespasser. This he was not authorized to do by defendant. The judgment is presumed to be satisfied by a levy, there being no evidence what became of the goods. It is conceded that if the goods were not sold it would not be so; but after a levy, the onus is thrown on defendant, and there was no evidence here but the record: 5 Barr, 294, 519; 10 W. 9; 12 S. & R. 37; 11 Ib. 299; 5 Binn. 272; 1 Barr, 393. The building was on the wife’s land, and was hers: the presumption is, it was erected with her money. It would, therefore, be a claim by her, which survives, and is not cast upon the husband, but by his acts and consent: 6 W. & S. 298; 1 Wh. 179.

      Brightly, contrá.
    There was' no evidence of satisfaction as to the defendant: 17 S. & R. 436; 9 W. & S. 73 ; 1 Barr, 13, 390; 1 W. & S. 251. The moiety of the wall was erected by him on the land of another under a statutory license, for which he is to be compensated when the owner of the land wishes to use it; it is, therefore, a personal claim: 2 Miles, 247, 337; 5 S. & R. 1.

      Jan. 26.
   Burnside, J.

It is necessary to state this case minutely, for a proper understanding of the questions it presents. The case below was an attachment execution issued by the plaintiff against R. Meredith, defendant, and Davids as garnishee, upon a judgment before an alderman by Harris v. Meredith, in October, 1836. An execution had been issued on this judgment in November, and was returned by the constable “goods levied and not sold for want of time.” In January, 1837, an al. execution issued, and was returned “ proceedings stayed;” a pluries execution in October, 1845, was also returned “no goods, and defendant not found.” Shortly after this, in October, 1845, this attachment execution issued, and was served on Davids as garnishee. Meredith, the defendant, not being within the county, was not served. The grounds on which Davids was made garnishee were as follows:—

On the 26th of March, 1834, Pennock and wife conveyed to Robert Meredith, and Catherine his wife, and the heirs and assigns of the said Catherine, a certain lot in the city of Philadelphia. Meredith (the husband) in the same year erected a brick building thereon, with a party-wall built partly on the lot adjoining. That lot is owned by the wife of Davids, who, in March, 1845, entered into a written contract with D. White & Bon, to build five houses on the last-mentioned lot, and to completely finish them, including paving, party-walls, &c., for $8,000. One of these houses was erected adjoining the Meredith lot, and in so doing the party-wall, by him erected, was broken into and used.

A measurement-bill in evidence showed the value of the party-wall to be $54.30. The counsel of Davids requested the court to instruct the jury: 1. That if White & Son contracted to erect the houses for a gross sum, which was paid to them, and they broke and used the party-wall, they, and not Davids, were liable. To this the court answered, that White & Son were the agents of the defendant, and the toser of the wall by them made him responsible. This instruction is the first error assigned. An agent is a substitute for another. Here White & Son were the substitutes of Davids, who caused the house to be built. The act of 24th February, 1721, Dunl. 39, provides that the first builder shall be reimbursed for one moiety of the charge of the party-wall, or for so much as the next builder shall use before he breaks into the wall. This claim is a chose in action: 2 Miles, 37. It is not a lien on the lot or the building, but is a personal charge against the second builder: 1 Dall. 341; 5 S. & R. 1.

The court were further requested to charge the jury, that under the evidence in the suit of Haines v. Meredith, the levy made on the defendant’s goods in 1836 and no sale thereof for want of sufficient time, an al. ex. and proceedings stayed by the plaintiff, coupled with the fact, that no further steps were taken by him until the issuing of the plnries in 1845, and in the absence of all other evidence, the judgment against Meredith in law was presumed to be satisfied. The court answered this point in the negative, which is the second error assigned. If there had been conflicting executions against Meredith, the lien of Haines’s execution would have been lost in favour of a subsequent execution: Comth. v. Stremback, 3 Raw. 341. But where the goods levied are not removed; but left with the defendant, who uses and converts them to his own purposes, the judgment is not presumed to be satisfied: Armitage’s Appeal, 9 W. & S. 74. Here there is no evidence, nor any pretence of evidence, that the plaintiff had any advantage or benefit from the levy. The goods were not removed nor disturbed, and in such case there is no legal presumption that the judgment is satisfied.

3. The last point necessary to notice, is that the house being erected on the lot conveyed to Meredith and wife, and her heirs, was the property of the wife; the party-wall was her property, and a judgment of the husband’s creditor would not attach by law. The court also answered this point in the negative. Meredith had at least a life-estate in this lot. It is not necessary to inquire further, his right of reimbursement was a personal right: Hart v. Kucher, 5 S. & R. 1; Oat v. Middleton, 2 Miles, 247. Here the owners when the last house was built stood in the relation of party and party, and this enables the builder of the first house to recover. It was a personal claim given by legislative enactment from the owner of the second house to the builder or owner of the first. Builders and owners are parties, and the act makes it a personal charge against the builder of the second house — a mere chose in action, and subject to an attachment execution, like any other debt or claim for money.

Judgment affirmed.


text:
    Lea’s Appeal.
    Under the act of 1848, non-releasing creditors are not entitled to dividends undex’ an assignment in trust for such creditors as shall release.
    From the Common Pleas of Philadelphia.

      Jan. 19. On the 14th January, 1845, Sharpless and another made a general assignment to Lea and another, in trust to sell and pay the proceeds to such of the assignors’ creditors as should execute a release before 12 o’clock M. on the 7th February, 1845. The auditor and court distributed the fund to all the creditors, as well the non-releasing as those releasing; and this appeal was taken.
    It did not appear where the creditors resided.

      Serrill and JP. MeGall, for appellants.
    The assignment is not within the meaning of the act, “to prefer one or more creditors,” for it extends the benefit to all on equal terms. It does not exclude any creditors. It is perfect when executed, and valid, and not remaining in fieri until the time has elapsed. Should any creditors be excluded, it will be by their voluntary omission. The intent of the act is to prevent preferences, and that intent only can be enforced. Whether stipulations for a release should be allowed, is for the legislature. Both of these practices have prevailed from the earliest judicial history of the state, and have always been considered as distinct by the profession and community. The act allows preferences for the wages of labour, but that must be by apt words in the instrument; this shows that immediate and not constructive preferences were aimed at. The act was intended to strike at the right of capricious.preferences by putting all on an equality; and this is the effect of this assignment, as was said in 2 Binn. 186. IIow can there be a preference without a design to do so ? and how can the creditor know who will release ? If all or if none release, there will be no preference. The point was decided in 2 Barr, 148, n.; Blakey’s Appeal, 1 Ib. 449, is also an authority that the act of preference must be included in the assignment.

      Morris and Tyson, contra.
    The case in 2 Barr was on the ground that the bankrupt act was in effect incorporated in the assignment; the parties ratified it, instead of going into bankruptcy and avoiding it. The benefits of the act will be but partial, on the construction contended for. In this case but twenty-three days were allowed, to the creditors, which is unreasonably short, tas many reside out of the commonwealth. The act is a legislativo construction, that all future assignments “ shall enure to the benefit of all the creditors.” By this means preferences are within the control of the debtor. His foreign creditors may never hear of the deed, or may be unable to comply with it. By making the time sufficiently short, domestic creditors can always gain a priority. The stipulation is a preference within the act, and the right to make it is consequent upon the right to prefer. It is so styled in 2 Binn. 181, and so treated in 1 Edw. Ch. 451, 5 Raw. 224, 3 Law J. 213, 6 Law Rep. 318, 411. Clearly, those who do not release are and were creditors. How, then, can it be said to enure to all creditors, if they are excluded ? The assignment is in fieri, at least until some one releases. Should all refuse, it is a nullity — from its perfection a preference is given. It is plain, then, that practically a preference is thus given.
    2. The right to prefer was based upon the right of paying in the order of the debtor’s choice, and the right to stipulate for a release has always been based on the right of preference: 4 Mason, 206 ; 5 J. C. R. 329; but the clearest and most complete exposition is found in Thomas v. Jenks, 5 Raw. 224, where it is said, “ the basis of it is the admitted right to prefer one creditor to another and “ he may set his price upon it, provided it does not extend beyond a mere preference;” and again: it is “ an exercise of his right of preference.”

      Jan. 29.
   Burnside, J.

The question presented in this ease is, whether a debtor who by deed conveys all his property to assignees for the benefit of his creditors, can stipulate for a release, since the passage of the act to prevent preferences in assignments,” April 17, 1843, p. 273; Dunl. 896. The act declares “ that all assignments of the property in trust, which shall hereafter he made by debtors to trustees on account of inability, at the time of the assignment, to pay their debts, to prefer one or more creditors (except for the payment of wages of labour), shall be held and construed to enure to the benefit of all the creditors, in proportion to their respective demands; and all such assignments shall be subject, in all respects, to the laws now in force relative to voluntary assignments.” The law then in force, and well settled, allowed the debtor to stipulate for a release, even when he had given preferences in his assignment: Lippincott v. Barker, 2 Binn. 174; 4 Wash. C. 232; Schuylkill Nav. Co. App., 2 Barr, 148, n. When the act was passed, the law was settled and long held, that a preference given to one or more creditors, in exclusion of the rest, was valid: 4 Dall. 85, in note; 2 Binn. 186; 13 S. & R.. 132. A careful examination of the act shows the legislature studiously avoided making any change in the law relating to voluntary assignments, as it was then understood and settled, except in the one particular, that there should be no preferences given in assignments, but in every other respect they should be subject to the law then in force.

The act did not make the assignment void, but said it should be held and construed for the benefit of the creditors.

This is the only provision in the act. Hence, in Blakey’s Appeal, 7 Barr, 449, it was held that judgments confessed to secure creditors are not such preferences as are avoided by the act of 1843, although an assignment for creditors was intended, and was shortly afterwards executed. This case goes far in principle to settle the case under consideration. The legislature knew that the stipulation for a release was in accordance with the spirit of the bankrupt laws of the commercial world, and with the spirit of the age, that where an unfortunate debtor surrenders all his property to his creditors for their benefit, he ought to be allowed to begin the world again untrammelled, for his own benefit and that of his family. They made but the one provision in the act; and to prevent a latitudinarian construction of this one, they declared that all such assignments shall be subject, in all respects, to the laws now in force relative to voluntary assignments. If these creditors all released there would be no preference, and each determines for himself whether he will accept of the terms of the deed of assignment, it having been settled in the Schuylkill Navigation Company’s Appeal, that no creditor should be allowed a dividend who did not release. We therefore think the auditor and the court were in error. They ought to have awarded the whole fund to the releasing creditors. In all eases where a release is required, a reasonable and fair opportunity is to be given by the requirements of his deed to come in and release, or the assignment would be fraudulent. We cannot say that such an opportunity was not given in this case.

Decree reversed, and record remanded.


text:
    Wright v. Truefitt.
    The rule in Walton ¶. Shelly does not apply, where the note or hill is not sued on. Hence, in an action to recover from a prior endorser the amount advanced to take up the hill; the drawer and acceptor are not incompetent, under the policy of the law, to prove that the hill was endorsed for the accommodation of the party making such advance.
    In error from the District Court of Philadelphia.

      Jan. 19. Assumpsit for money had and received. The defendant was the drawer of a note to the order of Danforth & Hildeburn, and the endorser of a draft drawn and accepted by Reinhard. It was shown that these instruments, which had been negotiated, were taken up at or after maturity, in part by funds furnished by J. B. Danforth, a subsequent endorser, whose bankrupt assignee was the plaintiff, suing to the use of one who had purchased the claim, and claimed in this action the amount thus advanced.
    The only material question was the competency of Reinhard, the drawer of the draft, to prove that it was an accommodation bill for the use of Danforth. He was admitted for this purpose, having been released by defendant, the objection being that he was a party thereto, and hence incompetent under the policy of the law.

      Gerhard, for plaintiff in error.
    Reinhard, if apparently incompetent as a party to the draft, could not remove the objection by his own evidence: 1 Raw. 197. The rule in Walton v. Shelly was established where the action was on the note, but it is equally applicable where a recovery is sought, based upon the note; and it was said in 4 Raw. 307, that the character of the suit does not alter the rule.

      C. Ingersoll, contra.
    Walton v. Shelly does not apply where the notes are not sued on: 6 S. & R. 115; 4 Raw. 307.

      Jan. 26.
   Gibson, C. J.

The rule in Walton and Shelly has never been applied, at least in this state, to a bill or note on which the action was not brought. The question could not arise in The Bank of Pennsylvania v. McCalmont, because the drawer was offered as a witness by the holder, not to impeach the note, hut to prove that he was the principal debtor, without affecting the liability of the endorser. The object and effect of the testimony was not to discharge either of them, but to bring the debt within the terms of the drawer’s assignment for his creditors. It is true, that in delivering the opinion of the court, Judge Kennedy recognised the principle of Walton v. Shelly as a general one, and without distinction as to the foundation of the action; hut he was not called on to distinguish, as the rule was clearly inapplicable to that case on another ground. The point, therefore, did not come up, and there was no intimation of an opinion in relation to it. The rule is of questionable propriety in the abstract; and its utility in practice, if it has any, has not been so clearly disclosed as to give it a claim to extension.

The testimony of Beinhard being admitted, the question of fact submitted to the jury came up for determination as a matter in course. The papers on which the plaintiff principally relied as evidences of debt, were jorimd facie evidence of it, and the jury were told so. The court had then performed its proper function, in deciding what was an unmixed question of law; hut when parol evidence, explanatory of the transaction, became an element of the ca.se, it drew the whole to the jury. Then, if the note was given, as Beinhard testified, to accommodate Danforth, and not to secure advances by him, there was an end of the contest. The fact was for the jury, as judges of his credibility; and the court properly referred the whole to them.

Judgment affirmed.


text:
    Worrell’s Appeal.
    Guardian, hold liable for an investment in stock of a navigation company, when in good credit, and paying large dividends for along time subsequent; where it was common for other trustees to invest in such stock, and for others to use it as a permanent and safe investment, and where the guardian had invested his own funds in the same manner, and though the stock continued to pay large dividends and be in good credit for some years after the investment, and some of the wards who received the stock on attaining their majority, had realized a large profit on the investment of their share of the fund.

      From the Orphans’ Court of Philadelphia.

      Jan. 19-22. The question in this case was whether the appellant was liable as guardian for certain investments made by him of his wards’ money.
    John Jennings died in 1832, leaving five children, of whose estate, Worrell, the appellant, at the solicitation of their mother, and against his inclination, became the guardian. From 1838 to 1835, the guardian received in cash about $6,000 on account of t the share of John K.., one of these children. This sum he invested, together with the funds of the other wards, as follows: — In 1834-5-6-8, in shares of the Schuylkill Navigation Company, at $111, $143, $160, $163, the par value being $50. Two other investments were made by him, one in stock of the Mechanics’ Bank of Pittsburgh, and of the Delaware and Hudson Canal. But as to these no question was made in this court, the market prices being about the same as the cost. The auditor, on objection being made by the ward, disallowed the claims for credits for all these investments, and the guardian appealed.
    From the auditor’s report and the evidence, it appeared, that Worrell had undertaken the guardianship as a friend of the family, and without having made, or intended to make, any charge for his services. There was evidence that he made the investments with the knowledge and approbation of the wards’ mother. It was proved that the two elder children had realized a large profit out of the same investments of their funds. That the ward, while in his minority, did not object. That a very large number of trustees had made similar investments of trust funds, and that the stock was considered and extensively used at the time the investment was made, as a good and safe mode of making permanent investments. That Worrell, the guardian, had been a holder of the same stock in his own right since 1834. It was also in evidence that the Navigation Company had paid dividends varying from 24 to 6 per cent, on the par value down to 1842: since that time no dividends had been declared.

      McMurtrie and Randall, for appellant.
    It may be considered as conceded, since it is conclusively proved, that this investment was made bond fide, in the exercise of a discretion then considered sound, in the manner that other trustees and prudent men acted, and as he acted for himself. The English rule as to liabilities and' duties of trustees in this particular, is no standard here; compare I Ves. 150, 5 Ib. 839, with the settled doctrine of this state. Their particular doctrine, established in Trafford v. Boehm, 3 Atk. 444, is that no fund which may be lost in the course of lawful business by the manager, is a proper investment: that was relied on and repudiated in 5 Barr, 15. It was there settled that the liability does not depend on the nature of the security, but whether the trustee acted in the manner that prudent men acted for themselves. Such was the rule in England until Trafford v. Boehm, 1 P. W. 648; 2 Ib. 85-6 ; Bluck v. Nicholls, Ib. 169; Trenchard v. Phillips, stated Ib. 168; 1 Atk. 480; 1 Atk. 513; 3 Swanst. 63, n. b.; C. T. Finch, 258 ; 1 Vern. 336; 1 Eden. 148 ; and is recognised by Story, J., in his Eq. Juris. §§ 465, 1269, 1271-3, where he says that “ the present rule of the chancery imports, to say the least, extraordinary diligence and vigilance, and that it is certainly somewhat perilous to trustees, and startling to uninstructed minds.” It is a doctrine introduced from state policy, and has never been adopted in Pennsylvania, but the rule as above stated has always prevailed: 1 Pa. 214; 6 W. 188; 8 W. & S. 150. He is not to be judged by the result: 8 W. 23 ; 4 J. C. R. 628 ; 3 Atk. 480. Such is also the rule in Massachusetts: 9 Pick. 446; where the selection of certain stocks was treated as an investment, and though there was a will, yet the words there do not give any other authority than the law: 20 Pick. 119.

      E. K. Price and Meredith, contra.
    The question is not one of good faith, or whether the guardian acted in accordance with those most competent to judge; if it were, experience has proved he has not so acted. The English rule, it is admitted will not sanction this act. The earlier cases cited were investments in S. S. stock, under the express authority of an act of parliament. It is said to have been a state policy; but of this there is no evidence, and they do not exclude other securities. If honesty of intention and acting as for himself are always sufficient, we have no rule at all, and nothing is so hazardous but could thus be defended. It was sot up in 1 Cox, 25, but rejected by Lord Loughborough, who said, an executor must always be liable for an infant’s money. What are good investments need not be defined: it is sufficient that bank and canal stocks are not such. It must be a security, and not mere personal security — not a part ownership in a trading corporation. The Pennsylvania cases cited do not apply. 5 W. & S. 256, was nearly similar, and the trustee was held responsible where he had once received the money. 5 Barr, 15, was a loan to a corporation holding vast real estate, which was in substance a real security.

      But there is no necessity for adding such stocks to the already ample list of securities specified in- the act of Assembly; real securities, ground-rents, under 8 Raw. 131, and the loans secured, as those of the Lehigh Coal Company;'under Twaddell’s Appeal. If another rule is adopted, every case must be decided by the court on parol proof.

      April 16.
   Burnside, J.

The 14th section of the act “ relating to the Orphans’ Court,” passed the 29th of March, 1832, Dunlop, 466, provides that “ where an executor, administrator, guardian, or trustee, shall have in his hands anymoñeys, the principal or capital whereof is to remain for a time iñ his jiossession, or under his control, and the interest, profits, and income thereof, are to be paid away, or to accumulate; or when the income of real estate shall be more than sufficient for the purposes of the trust, such executor, administrator, guardian, or trustee,, may present a petition to the Orphans’ Court of the proper county, stating the circumstances of the case, and the amount or sum of money which he is desirous of investing; whereupon it shall be "lawful for the court, upon due proof, to make an order directing the investment of such money in the stocks or public debt of the United States, or in the public debt of this commonwealth, or in the public debt of the city of Philadelphia, or in real securities, at such prices or on such rates of interest and terms of payment, respectively, as the court shall think fit; and in case the said moneys shall be invested conformably to such directions, the said executor, administrator, guardian, or trustee, shall be exempted from all liability for loss on the same, in like manner as if such investments had been made in pursuance of directions in the will or other instrument creating the same.” It is true that this court has settled that the legislature did not intend to restrict the investments of guardians, executors, or trustees, to securities designated in the said recited act, and to require them, in all cases, without exception, to be made, under the direction of the court, but to point out a course free from risk — not to interdict every other investment: Twaddell’s Appeal, 5 Barr, 17; Nyce’s Appeal, 5 W. & S. 254. The stocks of the United States, as well as of this state, and the stocks of the city of Philadelphia, are generally in the market. Investments in landed securities are seldom difficult to obtain; but unfortunately, -owing to the avariciousness of the age, five or six per cent, will not satisfy the cupidity and the rage for speculation which exists in those who have money to invest. The rage for speculating in stock's is universal throughout the Union. But a trustee who regards the interest and safety of himself and family, will follow the course laid down for him by the legislature. It is urged upon us that Twaddell’s Appeal (before cited) rules this case. They have but little resemblance to each other. Twaddell’s Appeal was a loan of money to a rich corporation, owning valuable real estate; this is a purchase of stock of a navigation company. A sudden calamity prevented the former, for a short time, from paying the semi-annual interest on their loans.

The Schuylkill Navigation Company must provide for their debts before the stockholders get anything. I alluded to Twaddell’s Appeal with some reluctance; beyond it, I cannot advance a step. If that case had been an investment in stock of the company, and not a loan when the company were in full operation, it ■would have presented a different question. Bank-stocks have been repudiated as unsafe investments for trustees to make. Surely navigation-stocks are equally, if not more so. We have many navigation companies in this state: shall we hold the stock of one a safe investment, and the stock of another unsafe ? There are stockholders of prudence and of the greatest wisdom in each of them — men deemed the wisest and most talented in the vicinity of the improvements. But these navigation companies are all more or less subject to floods and other casualties. A case may arise, where an executor, administrator, guardian, or trustee, will have cast upon him a sum invested in a navigation company or other improvement, which is unfinished; and it is the interest of the stockholders to complete the work. To do so, a little more stock is to be taken. In such a case, when it will arise, it will be worthy of consideration, and this court no doubt will come to a correct and just decision; but that is not this case. I am unable to discover any good reason why navigation companies should be declared a safer investment than banks. The proper rule for this court to adopt is, to place them all on the same footing as to trust investments. It is for the safety of those who cannot take care of themselves. The legislature have pointed out a way, if pursued, that a trustee may be safe, and run no risk. If he disregards that salutary course, it may be his misfortune.

Referred to Mr. W., as the auditor of this court, to report on the expenses and commissions which ought to be deducted from the balance of the fund.


author: Rogers, J.

text:
    Commonwealth ex rel. Broom v. Hanley.
    The death of the person elected to fill the office of cleric of the Orphans’ Court, before he has qualified himself according to law, does not create a vacancy, but the incumbent who is authorized to hold the office until his successor shall by qualified, holds over.

      Jan. 22.

      Quo warranto. The suggestion set forth, that by a commission issued by the governor, dated December 14, 1848, directed to the relator, reciting that it appeared from the returns in the office of the secretary of the commonwealth, that at an election on the 10th of October last, O. Brooks was duly elected to the office of Clerk of the Orphans’' Court for the city and county of Philadelphia, and that since the filing the said returns, said Brooks had deceased, and a vacancy had thereby occurred in said office, he, the said relator, was appointed and commissioned to hold the said office.' That the relator' had accepted the appointment and taken the necessary oaths, and given the requisite security, but that since the said date, David Hanley had used and still uses the said office and franchise, &c.
    The answer of the respondent a-yerred that he held the- office rightfully. That he had been elected clerk, &c., on the second Tuesday of October, 1845, and had been commissioned to hold the said office for three years from the 19th December, 1845, and until his successor should be duly qualified, and that he had given the requisite security, &o., under which he claimed to hold the office. He admitted the election of Brooks as set forth in the suggestion, but averred that he had deceased on the 5th November, before he had in any way qualified himself, or been qualified to fill the said office, and before a commission had issued to him. That by the act of 1839, clerks of the Orphans’ Courts are to be commissioned for three years, and until their successors shall be duly qualified. That the governor has no authority to appoint but in case of a vacancy; and that at the time of the decease of said Brooks, respondent was lawfully in possession of said office, and that no vacancy had occurred ■ — whence the appointment of the relator was without authority.
    To this the relator demurred.

      Reed, for the relator.
    The court has invariably shown a determination to carry out the intent and spirit of the constitution: 8 W. 344; 4 Wh. 186. Under the former constitution, the office now in question was held at the pleasure of the governor, and by his appointment. The constitution of 1838 changed the mode of selection, in two particulars: 1. In directing a popular election. 2. In limiting the term to three years. This is clearly defined, and was the object of the act of 2d July, 1889. This appears from § 3, which provides that the delay incident to a contested election shall be computed in the term of three years. This is reiterated in § 4. But for the convenience of the public, and to prevent a failure in the office, he is to hold “until his successor is qualified.” The spirit of the constitution is violated by allowing him to hold for a longer period, and the qualification of this rule is to be strictly construed. The true construction is to confine it to the contingency of the person elected neglecting or becoming incapable of being qualified. But a vacancy proper is to be filled in the mode pointed out. No commission is to issue until-the 1st of December following the election, and if, in that period, the person elected will not qualify, or cannot, then the incumbent holds over. And this emergency alone is thus provided for, as is apparent from the whole tenor of the instrument. For if there is no vacancy, and no appointment by the governor, there can be no election of a successor at the next general election, for that is allowed only in such cases. But a vacancy by death is one of the very instances spe-cified in the 4th section, for the appointment by the governor, until the people at the earliest opportunity may fill the office. It is true a commission cannot issue until December 1st, but before that time the person is “ elected to fill the office,” and does fill it, so as to cause a vacancy within the intent of the law.

      J. and C. Fallon, contra.
    To destroy the executive patronage, and substitute elections by the people, was the main object of the constitution. An appointment by the executive is allowed only where absolutely necessary, and then only until the first opportunity offered for a popular choice. This, it is submitted, is the great object of the new constitution. Why should the office be filled by the governor when there is an incumbent chosen by the people, under the constitution ? But clearly the governor’s right is limited to the case of a vacancy. Was there then a vacancy when he appointed? This is the only question; and the answer is found in the commission, which, according to the constitution and law, authorizes the respondent to hold until his successor is duly qualified. His successor must have been elected under the constitution, and qualified, i. e. capable of entering on the duties of the office. Here Brooks was not qualified; hence there was no successor, and his death did not leave the office vacant, because the respondent was then lawfully filling it. It is conceded that an inability or neglect to qualify allows the incumbent to bold over. How can a case of inability to qualify more completely occur than by the death of the person elected ?
   Rogers, J.

The rights of the relator and respondent depend upon the construction of that part of the amended constitution, which provides “That the prothonotaries of the Supreme Court shall be appointed by the said court for the term of three years, if they so long behave themselves well: prothonotaries and clerks of the several other courts, recorders of deeds, and registers of wills, shall at the time and places of election of representatives, be elected by the qualified electors of each county or district over which the said courts extend, and shall be commissioned by the governor. They shall hold their' offices for three years, if they shall so long behave themselves well, and until their successors shall he duly qualified. Yacancies in any of the said offices shall be filled by appointments to be made by the .governor, to continue until the next general election, and until successors shall be elected and qualified as aforesaid.”

The cardinal rule in the construction of the constitution is the spirit and intention of its framers;,and this intention we have endeavoured to carry out in The Commonwealth v. Swift, 4 Wh. 186, and in The Commonwealth v. Collins, 8 W. 844, and in other cases.

The respondent was elected clerk of the Orphans’ Court, for this city and county, the second • Tuesday of October, 1845, and being so elected, the then governor of the commonwealth issued a commission in due form, dated the 9th November, 1845, whereby the respondent was commissioned, in the language of the constitution, to be clerk of the Orphans’ Court for the term of three years to be computed from the 1st day of December, 1845, and until a siiccessor shall he duly qualified.

The respondent took the oath of office, gave bond with sureties as required by law, was in all respects duly qualified, entered on the duties of his office the 1st December, 1845, behaved himself well, and has since used and continued to use and exercise the same.

The second Tuesday of October, 1848, Oliver Brooks was elected successor to the same office, but haying died the Tth November, 1848, within thirty days (the time prescribed by the act of the 2d July, 1839) from the day of election, he never was nor could be qualified to fill the office by taking the necessary oath or by giving bond as the law requires. In this position, the governor, reciting that a vacancy had occurred in the office, issued his commission to the relator.

The relator contends that, according to the spirit of the constitution, the tenure of county offices is strictly limited as to time, viz: three years; that any extension of the time arises only from the exigency of the case, and must be strictly construed; that the holding over the incumbent is confined to the single instance of failure to qualify — a failure resulting from the act or omission of the successor; that there can be no holding over when a vacancy occurs which is to be filled for a limited time by executive appointment ; that if neither the death of the successor, before his commission takes effect, nor the expiration of the term of three years for which the respondent was elected and commissioned, create a vacancy, the incumbent necessarily holds over for three years, and a popular election next year is defeated; that the office, so far as to create a vacancy by death, is filled by election, and that at the expiration of the term of three years, for which an incumbent is elected and commissioned, a vacancy occurs, even though there be no election by the people, as, in case of a tie, such incumbent continues under a provisional tenure, being only a temporary officer, until his successor shall be duly qualified.

The respondent denies and avoids the several propositions of the relator, and insists that sedulous care is taken in the amended constitution to restrict, as far as possible, the patronage of the executive, and to give him the power of appointing to the office in question only when the public necessity requires it; that the governor has the right of appointment in the single case where a vacancy has occurred, and then only because public convenience demands that there should be some actual incumbent competent to fulfil the duties of the office.

The fundamental error which lies at the root of the whole case of the relator, consists in the assumption that, according to the spirit of the constitution, the tenure of cohnty offices is strictly limited as to time, viz: three years; and that any extension of the time arises only from the exigency of the case, and must be strictly construed.

The relator assumes that the respondent was elected and commissioned only for three years; but this is a mistaken view of the constitution, and is only plausible by obliterating several important words from the constitution.

The constitution reads thus: — “ They shall hold their offices for three years, if they shall so long behave themselves well, and until their successor shall be duly qualified.” The obvious meaning of this clause is, that they cannot hold office less than three years, if they so long behave themselves well; although, on the happening of certain contingencies, they may hold office for a longer period.

It is therefore of no consequence that, according to the respondent’s construction, he holds office six, instead of three years. Without intimating an opinion as to the term of his office, or that, if as the relator contends, it would -be a great misfortune, we think there is nothing in the argument which can overrule the plain words of the constitution.

That question does not directly, although it may incidentally arise, and may be and has been considered by the court, and due weight attached to it, without, however, altering the conclusion to which we have felt ourselves bound to come. Besides, it will be for the legislature to determine whether ■ this result, so much deprecated by the relator, may not be removed by legislative enactment.

That the respondent is entitled to hold until his successor is duly qualified, are the words of the constitution.

Was there a successor duly qualified within the spirit of the constitution ? is the point on which the question mainly, if not entirely depends. Being duly qualified in the constitutional sense, and in the ordinary acceptation of the words, unquestionably means that he, the successor, shall possess every qualification; that he shall, in all respects, comply with every requisite before entering on the duties of the office; that, in addition to being elected by the qualified electors, he shall be commissioned by the governor, give bond as required by law, and that he shall be bound by oath or affirmation (vide 8th article of constitution) to support the constitution of the commonwealth, and to perform the duties of the office with fidelity.' Until all these pre-requisites are complied with by his successor (for if you can dispense with one, you can dispense with all), the respondent is de jure, as well as de facto, the clerk of the Orphans’ Court.

The words are emphatic and full of meaning. The successor must not only be qualified, but duly qualified; and qualification for office, as defined by the most approved lexicographer, is endowment or accomplishment that fits for an office; having the legal requisites; endowed with qualities fit or suitable for the purpose.

In this sense it is used in the same section of the constitution, section 8, article 6, as respects electors; “qualified electors” clearly meaning citizens, either native or naturalized, who have paid taxes, and who are in all other respects entitled to vote.

In the same connexion it is used in other parts of the constitution, and in various acts of Assembly, which it would be a work of supererogation particularly to enumerate. Even in its direct, restricted, popular sense, it means he shall have taken an oath or affirmation.

The constitution provides not only that the officer shall be elected, but that he shall be commissioned by the governor. This is conclusive proof that the election alone does not constitute him an officer in a constitutional sense. Eor there may be cases where the governor would be bound by an imperious sense of duty to withhold the commission from a person duly elected by the qualified electors; as, for example, in cases of insanity developed since the election, or the conviction of some high crime or misdemeanour. Where this occurs, and it is possible, although not probable, no person will venture to contend that the office is filled by election, as the relator contends, so as to create a vacancy by death. It is said, and this is the strength of the relator’s case, that the holding over of the incumbent is confined to the single instance of failure to qualify, a failure resulting from the act or omission of the successor. But for this distinction, we see no warrant in the constitution, or in the reason of the thing; for of what consequence is it in principle, whether the officer elect is prevented from qualifying himself by an inability or unwillingness to give the necessary security, by neglect or refusal to take the required oath or affirmation, by insanity or crime, or by the contingency of death ? It is enough for the incumbent who holds the office by a constitutional tenure, that for some cause, with which he has nothing to do, the requirements of the constitution and laws have not been complied with.

The only inquiry is, has a successor been duly qualified ? if he has not, we are not at liberty to inquire whether it has arisen from his own act or omission, or has been caused by death, or by other causes over which the successor may have had no control. The 10th October, 1848, Brooks was elected to be the respondent’s successor, but he never was qualified, and never could be qualified, for he died the 7th of November 1848, within thirty days from the day of his election, and before his commission could be legally issued.

Did the case rest here, the title of the respondent would be clear and unquestionable; but tbe relator contends that the facts presented a case of vacancy, which the governor had the right to fill, and this brings us to the consideration of that question. Yacancies of the offices enumerated in the preceding part of this section, so reads the constitution, shall be filled by appointments to be made by the governor, to continue until the next general election, and until successors shall be elected and qualified as aforesaid. To maintain this proposition, that in this case the governor has the right of appointment, as a case of vacancy, it is necessary for the commonwealth to establish that the office, so far as to create a vacancy by death, is filled by election.

On this point several remarks have already been made pertinent to the point, which it would be useless to repeat. That the framers of the constitution did not look to an election merely as conferring office, is very evident, because otherwise we must strike out the important words that before a person who has been regularly elected, commissioned, given bond, and sworn, can be suspended, his successor must be qualified in like manner.

That there is a difference between the election and qualification of the officer, is too apparent to need the aid of argument. The successor must not only be elected, but he must be qualified, are the words of the constitution, showing beyond all question that the election and qualification do not mean one and the same thing.

It will be observed that the terms on which alone the governor can appoint, are a vacancy in the office, and that there can be a vacancy in an office when there is a person in possession whom all acknowledge to be rightfully in possession, having a perfect right to exercise all the powers and duties of the office, and to receive and enjoy all its emoluments, is a position difficult to comprehend. It is an abuse of terms to say that at the time the governor issued his commission to the relator the office was vacant, for no person can plausibly deny that the respondent was the rightful possessor of the office, at that time.

The primary object of the framers of the amended constitution (whether wisely or not it would be unbecoming for me to say) was to diminish, as far as practicable, executive patronage; and in accordance with this policy it was thought proper to confine the power of appointment to the single case of a vacancy in office. What, then, is meant by a vacancy in the office ? Surely an office cannot be vacant when it is filled by a person in the legitimate exercise of all its functions, in the lawful enjoyment of all its emoluments.

It would be a waste of time to enter into an elaborate argument to prove a proposition so plain. But disguise it as you may, this is the case here.

At the time the governor issued his commission to the relator, the present incumbent, beyond all controversy, was the legal officer of the court. His time had not expired, nor could Jie be replaced except by a person fulfilling all the constitutional and legal requirements. The relator’s proposition involves the legal absurdity that two persons can be the lawful officer of the same office at one and the same time. In this case we have to choose between the elect of the people and the appointee of the governor, and we think we cannot assail the intention of the constitution by inclining to the former rather than the latter*. The respondent was elected by the people, and we see nothing by which his title to the office has been affected or impaired.

Judgment for defendant.