text:
    Kemmerer versus Tool and Romich, Assignees of Knerr.
    1. It is not good practice to divide assignments of error into separate clauses and number them accordingly.
    2. Kemmerer obtained a judgment against Knerr, who afterwards purchased land; within two years the judgment was revived by amicable scire facias and confession ; within four months of the revival Knerr was adjudged a bankrupt. Held, that the revival was not in fraud of the bankrupt laws.
    3. The revival was not out of the usual course of business; it was not Kemmerer’s duty to inquire as to Knerr’s insolvency.
    4. It would have been no infraction of the bankrupt law had Kemmerer, knowing Knerr's insolvency, issued execution on his original judgment and thus secured a lien by the levy on the after-acquired property of Knerr.
    5. Knerr’s confession of judgment of revival was not a preference voluntarily given by him, within the purview of the bankrupt law.
    6. When the act of a debtor does not hasten the remedy or give a preference or any other advantage which the creditor could not at once have secured, it is not a fraud on the other creditors.
    7. A mere passive non-resistance to a regular judicial proceeding will not show a preference to a creditor or a purpose to defeat or delay the Bankrupt Act, although the judgment creditor may know the insolvency of the debtor.
    8. A debtor consenting to an amicable action or revival, which gives the creditor no advantage which he could not at once have secured by adversary process, does nothing beyond mere passive non-resistance.
    March 23th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common .Pleas of Lehigh county: Of January Term 3876, No. 168.
    This was an action of assumpsit, brought July 6th 1872, by James I. Tool and Charles W. Romich, assignees in bankruptcy of E. H. Knerr, against Martin Kemmerer.

      The action was to recover from the defendant the amount received by him from the proceeds of the sheriff’s sale of Knerr’s property, on a judgment alleged to have been obtained against Knerr in fraud of the bankrupt laws.
    The case had been before tried and the judgment reversed; it is reported in 28 P. F. Smith 147.
    The case was again tried September 13th 1875, before Longaker, P. J.
    The plaintiffs gave in evidence the proceedings under which Knerr, June 22d 1870, was adjudged a bankrupt; also the record of a judgment, against him in favor of Kemmerer, entered in the Common Pleas of Lehigh county, on the 3d of April 1868, to January Term 1868, for $4000; also, revival of the judgmént to April Term 1870, by agreement of parties in an amicable scire facias, dated May 16th 1870, and filed May 17th.
    Knerr testified that at the time the judgment was originally entered, he owned a tract of 23 acres of ore land; one-half of another tract of ore land containing 23 acres; one-half of the Lyon hotel property in Berks county; one-half of two houses in the 6th ward, Allentown, and of town lots in Allentown.
    About the 5th of June 1868, the witness sold-his interest in the ore lands, and on that day, the defendant released the lands from the lien of his judgment; about the 10th of April 1869, he sold his interest in houses in Allentown, and from the purchase-money paid $1350 to the defendant, who then released the houses from the lien of his judgment. Witness afterwards bought a farm called the “Marx farm ;” at the time the judgment was revived, it was worth $9000 ; his personal property was then worth $3300.
    The witness testified much at large as to his property, debts, &c.
    On cross-examination defendant proposed to him a number of questions as to his insolvency, his knowledge of it at the time of the revival, and his intent to give the defendant a preference over his other creditors; all which were rejected by the court and bills of exception sealed.
    The defendant, called by the plaintiffs as on cross-examination, testified, that he took the revival( when his judgment was two years old, because he had released the other properties, to cover all the real estate, to obtain a lien on the Marx farm. He testified, also, that he knew that Knerr was indebted in large amounts. At the time of the revival he did not know that Knerr was insolvent or contemplated insolvency; he knew, at the time of the revival, that he could have issued an execution and created a lien on Knerr’s real and personal estate. He had issued a fieri facias and sold Knerr’s interest in an ore lease.
    There was evidence also by the plaintiffs, for the purpose of showing that the defendant knew that Knerr was insolvent; they gave evidence also that there was a large amount of record debts and other debts against Knerr at the time of the revival.
    The “Marx farm” was sold by the sheriff for $6300. On the 8th of November 1870, the sheriff paid the defendant, Kemmerer, from the proceeds of sale, $2583.27, “in full of debt, interest and costs” on his revived judgment.
    This is the sum for which the plaintiffs brought this suit.
    The following are the defendant’s points and their answers :—
    1.- The Bankrupt Act is not to be construed to cover all cases of insolvency to the exclusion of other judicial proceedings. A debtor can confess a judgment and allow his property to be seized on execution; this is not per se an act of bankruptcy.
    3. A creditor holding a judgment may issue an execution and levy on the property of the debtor, even though he doubts his solvency at the time of making the levy, and the lien thus created will be protected.
    4. The defendant, Kemmerer, could have issued execution on his original judgment, at the time, or before the revival, seized Knerr’s property, and levied on the Marx farm, without committing a fraud on the Bankrupt Act.
    To each of these points the judge answered :—
    “ This is a good legal proposition, but it has no application to the issue trying.”
    5. Kemmerer having taken a revival of the judgment, thereby giving time to Knerr, is evidence to rebut the presumption of fraud upon the Bankrupt Act. ’
    Answer. “ This is a circumstance which may be considered by you, if you deem it of any weight, in determining this question. It is not affirmed as broadly as prayed for.”
    6. (Kemmerer might at once have sued out an execution, made a levy on the after-acquired real estate of Knerr, and thus secured the lien which he was desirous of obtaining.) The mere circumstance that Knerr consented to do a thing, which in any aspect was for his (Knerr’s) benefit, should not be allowed to affect the creditor, with knowledge of insolvency.
    Answer. “ The first part, as a proposition, may be good law, but it has no application to the case trying. The remainder is a circumstance for the jury to give to it such weight, if any, it may be entitled to.”
    8. Kemmerer in accepting the revival obtained no higher security than he might have obtained by issuing execution, and, therefore, it is no fraud on the Bankrupt Act.
    Answer: “ This point as a whole is answered in the negative.”
    The court further charged :—
    * * * “ This action is based upon the allegation that the defendant obtained a preference upon certain real estate of Mr. Knerr, contrary to the provisions of the Bankrupt Act, and such conduct, if it exist, will be a fraud upon that act. The acts contrary to the provisions of the bankrupt law, as alleged in this case, are not in themselves fraudulent in fact; nor are they criminal; nor tainted with turpitude; but, being prohibited by the Act of Congress, they are-illegal, and being the means or device used to secure the payment of the money in dispute, render the defendant liable in this action; and if there should be a recovery by the assignees, then this money will be assets of the bankrupt’s estate for pro rata 'distribution amongst his creditors. * * * You are trying the sole question of fraud or no fraud upon the Bankrupt Act.
    “ The Bankrupt Act is a means intended to effect an equitable distribution of an insolvent’s estate amongst his creditors. Yet while this is the specific purpose of the act, one creditor may by adverse legal process obtain a lien to the exclusion of other creditors, and thereby secure the payment of his claim; provided, no act be done which is prohibited by the provisions of the Bankrupt Act. * * *
    “ While this may be legally done, yet every device, contract, contrivance, or agreement between a creditor and his debtor, entered into with an intent to defeat the provisions of the Bankrupt Act, and being collusively done, is void; and whatever property or valuable thing is so obtained, may be covered in an action by the assignees of the bankrupt, and when so recovered is held as assets for the benefit of all the creditors who may legally prove their claims.”
    The judge then recapitulated the facts.
    Approaching then the consideration of this important point, you will inquire, did Knerr, the debtor, and Kemmerer, the creditor, do any act which is contrary to the provisions of the Bankrupt Act, by agreeing to a revival of this judgment ? If they did, then this action will be maintained; if they did not, then the action will fail.
    “ To commit a fraud upon the Bankrupt Act these several ingredients must concur: 1st. Knerr must have been insolvent, or contemplating insolvency; 2d. The revival of the judgment must have been given with a view to prefer, or must have in effect preferred the defendant over the other creditors; 3d. The defendant, at the time, must have known, or must have had reasonable cause to believe that Knerr was insolvent, or was contemplating insolvency, and that the revival of the judgment was given in fraud of the provisions of the Bankrupt Act; 4th. The revival must have occurred within four months of the filing of the petition upon which Knerr has been declared a bankrupt.
    “ 1. Knerr must have been insolvent, or was contemplating insolvency. Insolvency under the Bankrupt Act is not a total inability of Knerr to pay his liabilities for want of assets, but it is that condition financially, when he is unable to pay his notes, and other liabilities generally, as they fall due. A failure to meet a note or two, or other indebtedness when due or demanded, is not enough, if payment be made within a reasonable time thereafter; but if there be a general failure to pay, then the condition of the law is satisfied and insolvency has occurred, or the debtor may be said to be acting in contemplation of insolvency. * * * Insolvency is a question of fact, and is not founded upon the actual knowledge of the debtor or creditor; a reasonable cause to induce the belief is all that is required, as regards the creditor.
    “Was then Knerr, May 17th 1870, insolvent, or acting in contemplation of insolvency ? Was he at that time able to pay his debts, or had he a reasonable expectation that he would be able to do so ? Or had he the ability to pay his notes, or other debts, as they became due, or within a reasonable time after they became due and were demanded ? * * * [If at the time of the revival of the judgment you find the fact that Knerr was entirely unable to pay his debts, then the law declares him to be insolvent, and a bankrupt in fact. If he were unable to pay his notes as they matured, or to pay generally his debts due as they should be demanded, then, under the provisions of the Bankrupt Act, he will be declared to be a bankrupt; even though he might have assets sufficient to pay all his debts.] * * *
    “ You will then direct your inquiry to the time of the taking of the revival, and determine whether or not, at that time, Knerr was able to pay his debts. Was he insolvent or contemplating insolvency ? If you find that Knerr was insolvent, or contemplating insolvency, you will have established the first requisite to support this action. * * *
    “ Assuming you have found the first, requisite — insolvency, or contemplating insolvency — you will proceed to inquire as to the second requisite, that is, was the revival given with a view to prefer, or did it in effect prefer the defendant’s claim over the other creditors ? [I instruct you that the effect of the revival was to give “the defendant a preference over the other creditors, and as the law presumes that every man intends the consequences of his act, it follows as a legal conclusion that the revival was given with a view to prefer, and did in fact prefer the defendant over the other creditors.]
    ’“ Assuming that the first requisite has been established — the insolvency, or the contemplation of insolvency by the defendant, and the second following as a conclusion of law, you will proceed to inquire for the third requisite, to wit:—
    “ Did the defendant know, or had he reasonable cause to believe that Knerr was insolvent, or contemplating insolvency ? And was the revival given with an intent to defeat the provisions of the Bankrupt Act? This requisite may be considered under three heads : actual knowledge, reasonable cause to believe and the intent to defeat the law. As bearing upon actual knowledge, actual notice is to be regarded as actual knowledge ; and notice is either actual or constructive. Under the Bankrupt Act, notice may be either real knowledge, or such a chain of facts and circumstances as will produce a reasonable cause of belief. Reasonable cause of belief is a condition of mind falling short of actual knowledge ; it is a reasonable and well-grounded suspicion naturally flowing from facts proven, and may flow from facts not sufficient to produce a full conviction. In the ordinary transactions of life, a chain of facts and circumstances often exist upon a subject about which inquiry is being made, which will not produce a full conviction of the existence of such facts, yet it will produce a reasonable and well-founded belief in the existence of such facts, and this is all that is required here.
    “ [Again, there is a legal principle called constructive notice. Constructive notice is distinguishable from actual notice, or knowT ledge in this, as regards the Bankrupt Act. Whatever facts, course of conduct, or circumstances, fairly put a careful and prudent man upon inquiry, where- the means of knowledge are at hand, will constitute constructive notice, and when these things, concur, and a party fails to make a proper or reasonable inquiry as regards the truth or falsity thereof, he does so at his peril, and he becomes chargeable with all the facts which by a proper inquiry he might or ought to have ascertained.]
    “Under this instruction, as to legal principles, you will recur to a consideration of the facts, and determine whether or not the defendant by rumor, report, or the reputation of the neighborhood, had information of such facts and circumstances as would put a prudent and ordinarily careful person upon inquiry.”
    The judge then referred to evidence of conversations of the defendant with other persons, and proceeded :—
    “If you find as a fact, that the defendant used any or all of these expressions, you will weigh them with all the other testimony in the cause, as well as with the acts and conduct of the defendant, and with his testimony, and determine whether the defendant knew, or had reasonable cause to believe, or had in his possession such facts as would put a careful and prudent man upon inquiry; and if you shall find any one of these three conditions, then you will have found, as a part of the third requisite, that the defendant knew, or had reasonable cause of belief, that Knerr was insolvent, or contemplating insolvency. * * *
    “ [The other part of the third requisite is, was the revival given with an intent to defeat the provisions of the Bankrupt Act ? If Knerr was insolvent, or acting in contemplation^ insolvency, and the defendant knew it, or had reasonable cause to believe it, the fact that the legal consequence of the revival was to give a preference, a legal presumption arises that the act of revival must' be construed as an intent to defeat the provisions of the Bankrupt Act; because every person is held to intend the logical sequence of that which necessarily flows from the acts or act done by him. But while this is a presumption, and only primá facie proof, it may be overcome if there is found any testimony in the cause strong enough to overcome it, and this is a fact which you must determine.] ” * * *
    The verdict was for the plaintiffs for $3389.25.
    The defendant took a writ of error. He assigned for error:—
    1. The answer to his first point.
    2-7. The answers to his third and subsequent points.
    As to the charge of the court.
    This assignment was to the parts of the charge in brackets which were separately numbered.
    As to the admissions and rejections of evidence.
    This assignment also was divided into clauses referring to each particulur ruling and consecutively numbered.

      E. J. JErdman and J. R. Stiles, for plaintiff in error.
    — A change of securities, putting the creditor in no better position, is no fraud upon the Bankrupt Act: Clark v. Iselin, 21 Wall. 360; Cook v. Tullis, 18 Id. 332 ; Tiffany v. Saving Bank, Id. 375. The policy of the Bankrupt Act, as it now seems to be administered, is to sustain the efforts of the struggling debtor to continue his business : Wilson v. Bank, 17 Wall. 488. Wherever circumstances and facts are given in evidence, then the question of intention is for the jury, and not a question of law for the court: Clarion Bank v. Jones, 21 Wall. 325 ; Little v. Alexander, Id. 500.

      JE. Albright and R. JE. Wright, for defendants in error.
    May 8th 1876.
   Mr. Justice Sharswood

delivered the opinion of the court,

The material facts of this case are not in dispute. They are minutely stated by the learned judge below in his charge to the' jury. Upon these facts we think there was error in the answers to the second, third, fourth, fifth and seventh points of the defendant, and also in the charge as set out in the first assignment of error. It is not a proper practice to divide the assignments of error into separate clauses, and number them accordingly.

When this case was here on the former writ of error Ave held that the court below had erred in instructing the jury that the amicable revival of Kemmerer’s judgment Avas an act out of the usual course of business, and that it wras Kemmerer’s duty to make inquiry as to the insolvency of Knerr, and on failure so to make inquiry, tbe presumption followed that he would have found reasonable cause to induce the belief that Knerr was insolvent, or was contemplating insolvency. (For this opinion see 28 P. F. Smith 147.) The principle then settled was conclusive against the plaintiff below, although the case was not so presented as to call for the expression of such an opinion; the second assignment of error, then actually including five distinct points, according to the twenty-second rule of the court, was a waiver of the errors alleged.

Kemmerer could have issued an execution on his original judgment, and immediately secured a lien by a levy on the after-acquired property of Knerr. Though he knew of Knerr’s insolvency, there would have been no infraction of the Bankrupt Act in doing this. This being so, Knerr’s confession of a judgment of revival did not alter the case. It wTas not a preference voluntarily given by the debtor within the purview of the law. The creditor was put in no better condition, and the debtor had more time given to him, and was saved the costs of adverse process. It was an act in the ordinary course of'judicial proceedings. Perhaps nine-tenths of all judgments are revived by agreement. When the act of the debtor does not hasten the remedy, or give precedence to one over other creditors pressing their claims, or any other advantage which the creditor could not at once have secured, it is not easy to understand how it can be regarded as a fraud ou other creditors. According to the judgment of the Supreme Court of the United States, in Wilson v. The City Bank, 17 Wallace 473, something more than passive non-resistance of an insolvent debtor to regular judicial proceedings is necessary to show a preference of a creditor, or a purpose to defeat or delay the operation of the Bankrupt Act, and that though the judgment creditor in such case may know the insolvent condition of the debtor. We hold that the debtor, by consenting to an amicable action or revival, which gives the creditor no advantage which he could not at once have secured by adversary process, does nothing in effect beyond “ mere passive non-resistance.” He agrees only to what he cannot help. The contrary doctrine would be of no practical benefit except to protbonotaries and sheriffs. No man would rest upon an amicable revival, if it was liable to be declared invalid in ca,se the defendant became bankrupt within four months. The case below, we think, falls directly within the principle of Wilson v. City Bank, and upon the undisputed facts the defendant below was entitled to a verdict in his favor. Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Quinn versus McCarty.
    1. The Act of 14th December 1863 (Landlord and Tenant) gives to a single justice the jurisdiction exercised by two justices and twelve freeholders under the Act of Marcb-21st 1772.
    2. The Act of 1863 affords an ample and complete system for the settlement of controversies between landlord and tenant, where it is alleged the lessor was quietly possessed of the premises, had demised them to the tenant and had given him three months’ notice to quit.
    3. A lessor leased premises for “ one year, with privilege of five years, providing the terms hereafter mentioned are complied withnotice of three months to be given to the lessee “ previous to the expiration of each of said vears if these provisions are not complied with, or else this agreement shall he considered as renewed.” The lessor alleging that the lessee had broken the covenants, gave three months’ notice to quit. Held, that a single justice had jurisdiction under the Act of 1863.
    4. Whether the lessee’s right of possession had expired was a question of fact under parol testimony of the lessor to show that the condition of the lease had been broken, and that, under the act, was for the justice to decide.
    5. The lapse of a specific period of time is not the only element that can enter into the question whether a tenancy has expired.
    6 Under a lease providing for forfeiture for condition broken, whenever an act is done which gives the lessor a right to maintain covenant he may maintain ejectment.
    7. Under the Act of 1863, the justice must hear any defence the tenant may offer.
    8. The appeal, under the Act of 1863, is in place of the provisions of the 13th sect, of the Act of 1772, for withdrawing the proceeding from the justices, and freeholders upon the assertion by a third party of a title adverse to the lessors; and of the Act of March 20th 1810, excluding a justice’s jurisdiction when the title to land may come in question.
    9. A tenant before a justice or in court on appeal may set up any defence of which he could avail himself in ejectment by his lessor.
    10. The scope of an inquiry into the rights of landlords is no narrower than that of tenants.
    11. Having established a tenancy the lessor may show a right to recover on any grounds or on any evidence on which he could roly in an ejectment on an alleged forfeiture for breach of condition of the lease.
    12. By the lease all improvements to the buildings, &c., were to be at the expense of the lessee and remain part of the realty. On the trial of an appeal under the Act of 1863, from the judgment of a justice dispossessing the tenant, Held, that evidence was not admissible by the tenant to show the improvements put on by him as a basis on which to assess damages.
    13. The court charged that the verdict should be for the tenant for such damages as would “ fully compensate him for loss and annoyance by reason of his eviction from and deprivation of the premises.” Held to be error; the pecuniary loss from his eviction was the measure of compensation the defendant should have recovered had he been entitled to a verdict.
    14. Brown’s Appeal, 16 P. IP. Smith 155; Heritage v. IVilfong, 8 P. F. Smith 137 ; Koontz v. Hammond, 12 P. F. Smith 177 ; Newell v. Gibbs, 1 W. & S. 496, followed.
    March 23d 1876.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Pike county: Of January Term 1876, No. 123.

      The proceedings in this case were under the Landlord and Tenant Act of December 14th 1863, Pamph. L. 1126, 2 Br. Purd. 882, pi. 20. They were commenced before a justice of the peace April 15th 1874, on the complaint of John Quinn; that on the 11th of March 1873, he was quietly in possession of a farm of one hundred and twenty-four acres, and on that day demised it to W. H. McCarty for one year from April 1st 1873, “ with the privilege of five years at the annual rent of $175, under the terms and conditions of the lease;” that three months’ notice to quit had been given to McCarty to remove, &c., that- he had refused, &c.; and asking that proceedings be taken as directed by the Act of Assembly.
    Process was accordingly issued against McCarty, and after hearing on the 30th of April, the justice found the complaint true, &c., and entered judgment against McCarty that he should forthwith deliver possession of the premises, and gave judgment also for $6 damages and costs; on the same day a writ of possession was issued; McCarty appealed, May 7th. The constable, May 8th 1874, returned to the writ that he had delivered possession to Quinn on the 4th of May.
    The case was tried December 24th 1875, before Waller, P. J.
    The lease was given in evidence by plaintiff; it was dated March 11th 1873, for a piece of land, describing it, containing one hundred and twenty-four acres, upon which were “erected a dwelling-house, barn and other out-buildings, for the term of one year with privilege of five years, providing the terms hereafter mentioned are complied with by said McCarty ; said McCarty agrees to pay for the same the sum of one hundred and seventy-five dollars, payable as follows. * * * And it is hereby expressly agreed that all the improvements made to said building or dwelling-house are to be done at the expense of said McCarty, and to remain a part of the realty. * * * And the said Quinn binds the said McCarty to not take off the premises the hay, straw, and cornstalks raised thereon, but that the same should be fed and used up on the premises. And the said W. H. McCarty agrees to give peaceable possession of said property at the expiration of said term of five years to the said John Quinn, or sooner, if these conditions above-mentioned are not complied with, in the same ■ condition as when he took possession thereof, common wear and tear, and casualties which may happen by fire, or otherwise, excepted. Notice of three months must be given to the said W. H. McCarty previous to the expiration of each of said years if these provisions are not complied with by said McCarty, or else this agreement shall be considered as renewed. And it is hereby further agreed by the said Quinn that the said McCarty can immediately go on and add the improvements necessary, as suits his convenience.” * * *
    Also ; .notice to quit, served December 31st 1873, as follows :—

      “You are hereby notified and required to quit, remove .from, and deliver up to me possession of the premises situate, &c. * * * which you now hold as tenant under me (you not having complied with the conditions of the lease between us for the same), at the end of your current term, to wit, on the first day of April, A. D. 1874.” * * *
    The plaintiff testified that the defendant went into possession of the farm April 1st 1873, and remained until May' 1874. The hay, straw, &c., were not used up on the place ; twelve to fourteen tons of hay were removed; all but three tons were taken after the notice to quit; he gave defendant notice to quit because he did not live up to his agreement.
    The plaintiff gave other evidence and rested.
    The defendant gave evidence in answer to plaintiff’s case and offered to prove that after he went into possession under the lease, he made a large expenditure of money in enlarging the house, and put on valuable improvements, of the use and benefit of which he was unlawfully deprived by the act of the plaintiff.
    This offered for the purpose of one basis on which the jury may assess damages.
    This was objected to by plaintiff, .because:—
    1. The rental is the proper basis of damages, and the value of the improvements themselves is not the proper basis upon which to assess the damages.
    2. The evidence would mislead the jury.
    The evidence was admitted and a bill of exceptions sealed for the plaintiff.
    Defendant said:—
    “ I expended about $600 in repairs and improvements of the property. Farm worth $200 per year at time he put me off; this aside from what the hotel was paying me at the time I was dispossessed. I had built up a good, very good business. ■ It was paying me about $2000 a year profits; was not a hotel before I took it.”
    Both parties gave other evidence and closed.
    The plaintiff’s fourth point, which was answered in the charge, was:—
    “ If the jury believe that McCarty violated the provision of the lease in removing hay from the premises, and that Quinn did not authorize such removal, then Quinn had the right to terminate the lease upon giving three months’ notice to McCarty previous to the first of April 1874; and if McCarty failed to deliver up the possession in pursuance of such notice, then Quinn would be entitled to recover damages for the retention of the possession.”
    The court charged: * * *
    “ The plaintiff claims to recover upon the ground alone that defendant had sold, contrary to the provisions of the lease in evidence, a stack of hay containing some two and a half or three tons, thereby breaking a covenant in said lease; and that having given notice to quit three months before the expiration of the year, the plaintiff had a right to terminate the lease and take the proceedings in this case before the justice; and that now on the appeal, he is entitled to a verdict, if you believe that defendant violated the provisions of the lease in removing hay from the premises without authority from plaintiff. As we dispose of this case in our answer to plaintiff’s'points, we will answer these points. We affirm the first three points as stated. [In answer to the fourth point, we say this point is not well stated. The jury must find from the evidence, facts as a basis of a conclusion asked for. The belief of the jury cannot be the basis of a finding, unless that belief is produced by the evidence in the case. We are asked in this point to instruct you, substantially, that a violation of covenants in a lease authorizes a lessor to terminate the lease, and gives jurisdiction to a justice of the peace to take cognisance of and decide the case under the Act of 1863. We think that act only applies to the plain case of determination of a lease by its own limitations, or term, and that it does not confer upon justices jurisdiction in cases of covenants, and if the justice does not derive his jurisdiction from the express terms of the act, such jurisdiction cannot be conferred by the parties, and especially by a lessor against the consent of the lessee. We therefore negative this the fourth point of plaintiff], [and instruct you that your verdict should be for the defendant for such damages as in your judgment, from all the evidence, will fully compensate him for loss and annoyance by reason of his eviction from and deprivation of the premises described], and you will further find that the defendant shall have restitution of the possession of the property described in the lease.”
    The verdict and judgment were as follows:—
    “December 24th 1875, jury find for defendant the sum of one hundred dollars and restore said defendant to the premises. • And now, to wit,' December 24th 1875, the jury having found for the defendant, and having assessed his damages at one hundred dollars and awarded restitution, it is ordered and decreed that judgment be entered against the plaintiff for one hundred dollars and costs and restitution of the premises, and a writ of possession directed to be issued on payment of jury fee.
    The plaintiff took a writ of error; he assigned for error,
    1. Admitting the evidence contained in the bill of exceptions.
    2. The answer to plaintiff’s point.
    3. 4. The last part of the charge included in brackets.

      W- &. Jessup, for plaintiff in error.
    — The court should require of justices of the peace under the Landlord and Tenant Acts only such substantial compliance with the letter and spirit of the statute as would generally be within the competence of the magistrates: Snyder v. Carfrey, 4 P. F. Smith 93. The Act of 1863 provides an ample remedy to recover possession of leased premises when it is alleged the term has expired. It gives no more rights to the landlord than to the tenant. The tenant can prove any and every defence to the landlord’s claim: Brown’s Appeal, 16 P. F. Smith 155. The inquiry of the justice is, has the tenancy terminated and has the requisite notice to quit been given: Koontz v. Hammond, 12 P. F. Smith 177. There is nothing in the act that confines the justice to any particular kind of evidence, or the plaintiff to any particular mode of proving the fact. The defendant is not confined to the lease for defence. He may set up any defence before the justice or on appeal that would avail him in an ejectment: Newell v. Gibbs, 1 W. & S. 496; Debozear v. Butler, 2 Grant 421; Hunter v. Jones, 2 Brewster 371. Lessor may re-enter for forfeiture: Taylor Landlord and Tenant 379; Clarke v. Cummings, 5 Barb. 339; Jackson v. Brownson, 7 Johns. 227. Entry is not necessary to complete forfeiture: Sheaffer v. Sheaffer, 1 Wright 525; Davis v. Moss, 2 Id. 346.

      F. M. Qrane (with whom were John Nyce and Gr. Gr. Waller), for defendant in error.
    — This being a proceeding in derogation of the common law, the authority of the justice is circumscribed by the Act of Assembly and he cannot go beyond it. The act provides that if it -is proven before the justice “ that the term for which the land was demised is fully ended,” and that three months’ notice has been given, &c., then in that case he shall give judgment against the tenant. There is no other ground on which he is empowered to act. But when questions of a more serious and complicated nature may arise, they were reserved for decision by the common-law tribunal. The intention is obvious, to reserve to the Court of Common Pleas all the jurisdiction that has not been especially delegated to the justice’s court: Firmstone v. Mack, 13 Wright 392.
    May 8th 1876.
   Mr. Justice Woodward

delivered the opinion of the court,

The Act of the 14th of December 1863 gave to a single- justice of the peace the jurisdiction in proceedings to regain possession of demised premises, which had previously been exercised under the Act of 1772 by two justices and a jury of twelve freeholders. By its provisions the duty was imposed on the magistrate to hear and decide upon the rights of the parties in every case in which it should be alleged by a lessor that he had been quietly possessed of the lands and tenements required to be surrendered; .that he had demised them to the tenant in possession for a term that was fully ended; and that he had given to the tenant three months’ notice of his desire to repossess the premises. The act was designed to afford an ample and complete system for the settlement of all controversies of this kind : Brown’s Appeal, 16 P. E. Smith 155. In the present case the plaintiff had leased the property in dispute to the defendant for the term of one- year, with the privilege of an extension for five years, provided the terms of the lease should be complied with throughout that period. One of the -stipulations of the instrument was in these words: “Notice of three months must be given to the said W. H. McCarty previous to the expiration, of each of said .years, if these provisions are not complied with by the said W. H. McCarty, or else this agreement shall be considered as renewed.” Upon the allegation that the defendant had violated his covenants, this proceeding was instituted by the plaintiff. IJ'he court below instructed the jury that the Act of 1863 “ only applies to the plain case of determination of a lease by its own limitation, or term, and that it does not confer upon justices jurisdiction in cases of covenants.” A verdict was accordingly directed in favor of the defendant.

The limit within which the court confined the power of the magistrate was entirely too restricted. Whether the defendant’s right to possession had expired or not was a question of fact under the parol testimony furnished by the plaintiff to show that the condition of the lease had been broken. By the very terms of the statute that -was a question for the justice to hear and decide. Was the term “ fully ended ?” The lapse of a specified period of time is by no means the only element that can enter into the consideration of the question whether a tenancy has expired. If the lease had been for five years, and had contained an express stipulation that a breach of any covenant should work a forfeiture of the lessee’s estate, the right of the lessor to re-enter would have- accrued on such a breach. Under a lease providing for a forfeiture for a condition broken, whenever an act has been done which gives the lessor a right to maintain covenant, he may, at his option, maintain ejectment: Jackson v. Brownson, 7 Johns. 227. Under the Act of 1863 it is the duty of the justice to hear any lawful defence which the defendant may offer: Heritage v. Wilfong, 8 P. F. Smith 137. The appeal which the act authorizes, stands in the place of the provisions of the 13th section of the Act of the 31st of March 1772, for withdrawing a proceeding from the jurisdiction of the magistrates and freeholders upon the assertion by a third party of a claim of title advei’se to that of the lessor, and in place of the provision of the first section of the Act of the 20th of March 1810, excluding the jurisdiction of the justice where title to land may come in question. It is competent for the tenant, before the justice, or in court on the appeal, to set up any defence of which a tenant can avail himself in an ejectment by his lessor. He may prove that the title of the plaintiff has come to an end by expiration, by his own act, or been divested by act of law: Newell v. Gribbs, 1 W. & S. 496. “ He may prove that he was induced to accept the lease by fraud or misrepresentation, for that would show that there was no tenancy, and that would be fatal to the plaintiff’s recovery in this proceeding Sharswood, J., in Koontz v. Hammond, 12 P. F. Smith 177. The scope of inquiry into the rights of a plaintiff is limited to no narrower bounds. In the hearing before the justice, and in the trial in court, the truth in regard to the allegations of the complaint on which the proceeding has been founded is to be investigated and ascertained. A tenancy being established the plaintiff may show his right to recover on any grounds and by any evidence upon which he could rely in an action of ejectment founded on an alleged forfeiture for breach of the conditions of the lease. The question here should have been submitted to the jury.

By the terms of the agreement all improvements to the dwelling-house or building were to be made at the expense of the defendant, and to remain a part of the realty. On the trial the defendant was permitted to prove, under exception, that he had “ made large expenditures of money in enlarging the house, and put on valuable improvements,” in order to establish “one basis on which the jury may assess damages.” If the defendant had been entitled to a verdict on the main questions in the cause, the effect of that would have been to restore to him the possession of the premises in their improved condition. If he was not entitled to a verdict he could not assert a claim for expenditures by way of set-off in this proceeding, even if he had a right under a separate contract to compensation. Peculiar and exceptional circumstances might be conceived in which such facts as these would be relevant, but no such circumstances are disclosed in this record. For the purpose for which it was offered the evidence was not competent.

The court charged the jury that their verdict should be for the defendant for such damages, as in their judgment, under the evidence, would “ fully compensate him for loss and annoyance by reason of his eviction from, and deprivation of the premises.” The statutory provision is, that “ if the jury shall find in favor of the tenant, they shall also assess the damages which he shall have sustained by reason of his removal from the premises,” under the warrant of the justice. The pecuniary loss caused by his eviction was the measure of compensation which the defendant would have had the right to recover if he had been entitled to a verdict. This, undoubtedly, was all the court intended to include, and the word annoyance was probably used inadvertently in the sense of disturbance of the lessee in the possession of the property. But the word suggests not only the idea of actual injury, but ideas of personal chagrin and mental vexation and anxiety, and for such results of a law suit any attempt to apportion money damages could result only in conjecture and caprice.

Judgment reversed, and writ of restitution in favor of the plaintiff and venire facias de novo awarded.


author: Chief Justice Agnew

text:
    Lehigh Iron Co. versus Lower Macungie Township.
    1. An Act of February 25th 1870, authorized a township to collect a tax from owners of ore beds for ‘‘ every ton of ore mined and carried away with teams” over the roads in the township. Held, that the act was not repealed by sect. 1, art. 9, of the Constitution of 1873, declaring that “ all taxes shall be uniform on the same class of subjects,” and levied, &c., under “ general laws.” ■■
    3. Sect. 1, art. 9, of the New Consñtution is not immediately operative; it is mandatory on the legislature to enact laws framed upon its special intent and to repeal all laws inconsistent with it.
    3. It is left to the legislature to time the repeal of special and local laws after proper general laws have been passed.
    4. Article 9, of the New Constitution, construed.
    5. Weber v. Reinhard, 23 P. F. Smith 370, re-affirmed.
    March 23d 1876.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Lehigh county: Of January Term 1876, No. 149.
    This was an action of assumpsit, brought April 7th 1875, by Lower Macungie Township against the Lehigh Iron Co.
    The cause of action as set out in the affidavit of claim was:—
    “ That defendant is a corporation created under the laws of Pennsylvania and has its principal works in said county, and there carries on business; that said defendant on February 25th 1874, was and ever since has been the lessee and grantee of iron ore mines in said township of Lower Macungie, from which said mines said defendant as lessee, or grantee, as aforesaid, did cart and carry away or cause or procure to he carried away over the public roads in said township, the following quantities of iron ore, to wit: * * * ; that at the'rate specified in the act thereto annexed, relating to said township of Lower Macungie, the tax on the said ore so carried away amounts at the expiration of said first period of six months to $86.15, and for the latter period of six months to $41.87.
    “ That after said taxes became due as aforesaid, and before the bringing of this suit,' said defendant was notified of the amount of aforesaid, two sums and payment thereof demanded; that said defendant * * * is indebted to the plaintiffs in said two sums — together $128.02, all of which is due and unpaid, for the recovery whereof-this suit is brought.”
    The following are acts under which the tax was claimed: April 14th 1868, Pamph. L. 1127 :
    “ An act authorizing the supervisors of Upper Saucon township, Lehigh county, to collect an additional road tax on ore beds.
    “ That in addition to the taxes collectible under existing laws, the -owners of ore beds, situated in Upper Saucon township, Lehigh -county, shall, from and after the passage of this act, pay to the supervisors of the roáds in said township, one and a half cent for each and every ton of ore mined and carried away with teams over the public roads in said township, which said payments shall be made at the end of every six months after the passage of this act; and in default of payment, the same to be collected as debts of like amount are collectible by law.”
    Act of February 25th 1870, Pamph. L. 241:
    “ An Act to extend to the township of Lower Macungie, in the county of Lehigh, the provisions of an act approved April 14th, A. D. 1868, entitled ‘ An Act authorizing the supervisors of Upper Saucon township, Lehigh county, to collect an additional road tax on ore beds.’ ”
    “ That the provisions of an act, approved the 14th day of April, A. D. 1868, entitled, &c., be and the same are hereby extended to the township of Lower Macungie in said county of Lehigh ; provided that in all cases where the ore is mined under a lease or grant of the ore, such lessee or grantee shall be taken and held to be the party liable to pay the tax provided for by this act; provided said tax shall not exceed one per cent, per ton.”
    The affidavit of defence was:—
    “It is admitted that the Acts of. 14th April 1868, and 25th February 1870 (copies of which are appended to the plaintiffs’ affidavit), were passed by the legislature, and that the defendant, in the month of February, A. D. 1874, and from time to time since that date, has caused and procured its officers and employees to cart and carry over the highways in the township of Lower Macungie, ores mined on properties owned or leased by said defendants; and that the number of tons set forth in the statement of the plaintiffs is correct. Deponent further saith that the Acts of Assembly referred to have been abrogated and annulled by the provisions of the Constitution adopted in 1873, and consequently this suit cannot be maintained. And deponent saith that there is no authority in law for the imposition and collection of the several sums of money set forth in the plaintiffs’ statement; and that the defendant is not indebted to the plaintiffs in any sum whatever.”
    On a rule for judgment for want of a sufficient affidavit of defence, the court, Longaker, P. J., delivered the following opinion :—
    “ The special act under which this tax is demanded was held to be constitutional in Weber v. The Supervisors of Upper Saucon, 23 P. F. Smith 371. It is however contended by the defendant that by reason of the adoption of the Constitution of 1873, all local and special laws have been repealed. This declaration is not based upon an explicit provision, but is said to follow by implication; and art. 9, § 1, wherein it is provided that all taxes “ shall be levied and collected under general laws,” is laid hold of as authority to prevent the collection of this tax from the defendant. This tax, and the mode prescribed for its collection, exists only by a local law, and if the Constitution operates as a repeal of the statute, then the defence assumed by the defendant will defeat a recovery. A repeal by implication seems to be incompatible with the express language of the Constitution itself. In art. 3, § 7, it is said: ‘ but laws repealing special or local acts may be passed.’ The Constitution prohibits the enactment of local or special laws, but this prohibition most assuredly cannot be construed to operate as a repeal.
    “ Again, if the provision that all taxes ‘ shall be levied and collected under general laws’ is to be construed to repeal all special laws now in force as regards the collection of taxes, it is to be feared that many counties and other municipalities will find that there is no statute by which their taxes can be levied and collected; because for many districts special laws have been enacted ; and none have yet discovered that the new Constitution has effected a change. The Supreme Court, by affirmance of the case of the City of Pitts-burg v. Kitty Roup, Weekly Cases 524, declares, that the special act as regards the assessment of rural property is still in force. I am therefore of the opinion that the affidavit of defence is insufficient, and now, Januaryl7th, A. D. 1876, it is considered, adjudged and decreed that the rule be made absolute, and that the prothonotary assess the amount of damages.”
    Damages were assessed at $128.02.
    The defendants took a writ of error, and assigned for error the entering of judgment for the plaintiffs.

      H. Q. Hunsberger and E. Harvey, for plaintiffs in error.

      E. Albright, for defendant in error.
    March 30th 1876.
   Chief Justice Agnew

delivered the opinion of the court

When the question upon the constitutional power to levy such a special tax as this was here before, this court affirmed it with a very positive dissent, however, by the present Chief Justice, and a qualified concurrence on part of Read, then Chief Justice,'and Williams, J., excepting to the extension of Hammett v. Philadelphia, beyond the case itself. It was believed by the majority that the former decisions of the court supported the power, though its exercise was apparently unjust and unequal. For the same reasons the court, as now constituted, feel bound by that decision, especially in view of the constitutional restrictions upon the power of taxation, which it is hoped will hereafter prevent local and unequal impositions. The only question now before us is, therefore, upon the effect of the first section of the ninth article of the new Constitution upon such legislation. It is contended that this section is a repeal per se of the act under which this tax is sought to he levied and collected.

It is a question of very great concern to the whole state, for if the position taken by the plaintiff in error be true, .some of the most important laws of the state have fallen long since, and all acts done under them have been unlawful and void. An example may be found in the act known as the Yenango County Tax Law, enacted many years ago, and extended from time to time to other counties, until now it is the law of probably one-third of the counties in the state. This is the law which makes the treasurer of the county the collector of the state and county taxes, sends him out into the different townships to receive from the people, and requires him to place all uncollected taxes, on the first day of September, in the hands of the several constables for collection, with an addition of five per cent, to the taxes of such person to pay the expense of collection. It allows the taxpayer a reduction of five per cent, for prompt payment before the first of August, and grace by payment of the simple amount between the 1st of August and the 1st of September. The constables give bond and sureties for collection. This is undoubtedly the cheapest and best system of collection in the state, but it is unquestionably special. Many other laws for particular localities might he mentioned.

In view of the wide and extended effects of an immediate repeal, ipso facto, by the adoption of the new Constitution, it behooves us to be careful in the interpretation of the sections mentioned. Upon all the consideration we can give to this subject, after a very careful argument to assist us, we are of opinion that section 1 of article 9 is not immediately operative, but was intended by the convention to be mandatory upon the legislature to enact laws framed upon its special intent, and to repeal all laws inconsistent therewith, leaving the legislature, in the exercise of a sound and wise discretion, to time the repeal after proper general laws shall have been passed. Any other interpretation would lead to most ruinous results. So much may be deduced from a comprehensive view of the section itself and its consequences, in the absence of any language in it to evidence an intent to make it a repeal per se. But beyond this there is strong evidence in the immediate context that the convention had a different intention. A part of section one is the declaration, by way of exception to its generality, of the power of the assembly to exempt certain classes of property from taxation. This is followed immediately by section 2, which provides that “ all laws exempting property from taxation other than the property above enumerated, shall be void.” Thus the subject of repeal was directly before the mind of the convention, and was limited to laws relating to exemption only. The subject of the second section, being directly connected with the subject of the first, indeed might have been incorporated with it, and this subject being that of repeal, it is conclusive evidence to our minds that the convention did not intend to repeal special tax laws, but to let them stand until the' legislature had enacted a proper general system of taxation to take their places. The eminent men who composed that body could not fail to perceive the utter confusion into which the state would have been thrown by a repeal per se.

These views derive confirmation from other portions of the instrument. The exception in the 7th section of the third article, relative to legislation, giving power to repeal special and local acts, strongly indicates the intent that such local and special acts should remain until legislation had been adopted to harmonize these local and special provisions with the general laws so adopted. There are, also, instances of immediate repeal of existing laws; for example, art. 3, sect. 21, relating to damages for personal injuries, and sect. 22, relating to investments by executors, &e. Art. 16, sect. 1, relating to certain existing charters of incorporation, and the section relating to exemption laws; already alluded to (sect. 2, art. 9.) Then we have the 2d and 31st sections of the schedule bearing directly upon the question. The former continues in force all laws not inconsistent with the Constitution, and all rights, actions, prosecutions and contracts. This express provision must have its due operation, unless inconsistency plainly appears. The other makes it the duty of the legislature at its first session, or as soon as may be, to pass such laws as may be necessary to carry the Constitution into full force and effect. This section also necessarily appeals to the consciences of the members, by their oath of office, to perform this necessary duty, and to bring the laws of the state into perfect accord with the Constitution, which is the highest evidence of the will of the people. With the legislature, therefore, this duty remains to provide general laws for uniform taxation, and to harmonize all paYts of the state by repealing local and special provisions that stand out upon the body politic as incongruous excrescences.

Judgment affirmed.


text:
    Allen versus Liggett.
    1. Liggett issued a summons in trespass q. c. f. against DuBois (who was summoned) and Allen, as to whom the return was “ Nihilthe declaration was against both, reciting that Allen had not been served ; the verdict and judgment were against DuBois, but not realized : Held, that another action for the same cause could be maintained against Allen.
    2. The praecipe in the second suit was for an alias against Allen alone, and referred to the former suit: Held, that an amendment striking out “ alias" in all the proceedings was properly allowed.
    3. When a summons is not served, a plaintiff at common law may prevent its abatement by entering continuances from term to term, and then issue an alias to bring in the defendant, and thus prevent the bar of the Statute of Limitations.
    4. The plaintiff may abandon his first summons and begin anew.
    5. An alias scire facias issued after five terms from the former, is insufficient to preserve the lien of a judgment which had expired in the interval.
    6. The spirit of the present age is to reach the merits of a case \d res magis valeat quarn pereat.

    7. Cridíand a. Floyd, 6 S. & R. 412; Taylor a. Henderson, 17 S. & R. 453, distinguished.
    March 27th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of 'Common Pleas of Clinton county: Of 'January Term 1875, No. 85J.
    On the 27th of March 1868, Benjamin Liggett commenced an action of trespass q. c. f., No. 115, to May Term 1868, against John H. Allen. The praecipe was: “ Issue alias summons in trespass quare clausum fregit, to recover treble damages for cutting timber trees. Vide original summons, No. 262, May Term 1866.”
    The writ was in the ordinary form of an original summons.
    On the 12th of May 1868, a rule was granted to show cause why the alias writ of summons, and all proceedings thereon should not be set aside.
    On the 10th of November 1870 the record was amended by omitting from the proceedings the word “ alias,” and all references to any former proceedings against the defendant.
    On the 25th of November the plaintiff’s rule was discharged.
    The declaration averred that the defendant broke and entered the close of the plaintiff, and unlawfully and without the consent of the plaintiff, cut down certain timber trees, and converted them to his own use, and cut down other trees, without alleging a conversion, contrary to the Act of Assembly of September 1st 1824, &c.
    On the 10th of August 1872 the defendant pleaded “ Not guilty he pleaded also a special plea, viz., that the plaintiff should not maintain his action “for or on account of any supposed trespasses committed before the 26th day of April, A. D. 1866, because, he says, that the said plaintiff, on the 26 th day of .April, A. D. 1866, to No. 262, May Term 1866, in the Court of Common Pleas of Clinton county * * * by an original writ of summons in trespass q. c. f., impleaded one James DuBois jointly with the said defendant, and which writ was duly served on the said James DuBois, and so returned by the sheriff of said county, and which said writ of summons-was, as to the defendant, returned nihil habet by the said sheriff; * * * that in said suit the said plaintiff impleaded the said James DuBois in a certain plea of trespass for committing the very same supposed trespasses committed previous to the 26th day of April, A. D. 1866, in the said declaration above mentioned; whereupon the said James DuBois afterwards pleaded that he, the said James DuBois, was not guilty of the said suppo'sed trespasses * * and issue was thereupon joined upon the said plea between the said plaintiff and the said James DuBois ; and thereupon * * * the said issue came on to be tried, and was then and there tried in due courae'of law by a jury * * * and the said jury returned a verdict for the said plaintiff and against the said James.DuBois for the sum of $468 * * * and on the 11th day of May, A. D. 1868, judgment was duly entered on said verdict for the sum of $468 * * * which said judgment still remains in full force .and effect, not in the least reversed or made void. * * * ”
    The case was tried December 19th 1872, before Williams, P. J., of the 4th district.
    Both parties gave evidence under the plea of “Not guilty.” Defendant gave in evidence also the record of the suit set out in his special plea, viz.: “ Summons trespass c. q. f., to May Term 1866, No. 262, Benjamin Liggett against James DuBois and John H. Allen. Return served on James DuBois, and ‘ nihil habet,’ as to J. H. Allen.”
    The declaration in the suit of 1866 complained “ that whereas the said James DuBois and one John H. Allen (as to which John H. Allen the writ of summons was returned ‘nihil habet, pro ut patet per reeordum’) had broken and entered plaintiff’s close, and cut his timber, &c., as in the declaration in this case.”
    The verdict was for the plaintiff in that case, for $468, and judgment was entered on the verdict.
    On the record of that ease it is noted, “ Exit alias summons, No. 116, to May Term 1868.” _
    _ The jury found a special verdict, as follows :—
    “We find that the defendant, by his employees, cut and carried away - from the tract of land described in plaintiff’s' declaration, timber, to wit: pine, oak, poplar and linn, amounting in all to one hundred and fifty-three thousand feet, for which the plaintiff is entitled to recover $612, single damage. We further find that defendant in like manner cut and left lying on said tract, pine, oak, poplar and linn, in all twelve thousand feet, for which plaintiff is entitled to recover $48, single damage.
    “ We further find that the whole of said timber was claimed for by the plaintiff in an action of trespass, No. 262, of May Term 1866, Common Pleas of Clinton county, in which a recovery was had against one James DuBois.

      “ If the court be of opinion that the said recovery of the judgment entered therein, and now remaining unsatisfied, is a bar to a recovery in this case, then we find for defendant.”
    In delivering the opinion of the court on the special verdict, Judge Williams said:— .
    “ * * * The position taken is, that as the summons issued against both DuBois and Allen, the plaintiff must be held to have elected to proceed against the trespassers jointly ; and that taking a verdict against DuBois was equivalent to the entry of a nolle prosequi against Allen, or to a verdict in his favor.
    “ The cases cited satisfy us that if Allen had been served, and the plaintiff had gone to trial against DuBois alone, the verdict might have had the effect claimed for it: 2 Sellon’s Practice 337 ; Breidenthal v. McKenna, 2 Harris 160; Cridland v. Floyd, 6 S. & R. 412.
    “But trespasses committed by more than one are joint and several, ‘ and the trespassers may be sued severally, though the plaintiff can recover but one satisfactionKennedy v. Philipy, 1 Harris 409. And in the same case it is said that the plaintiff may ‘ severally proceed to judgment against all, and have his election de melioribus damnis, unless he has actually received satisfaction from one.’
    “ In the case at bar the plaintiff endeavored to proceed against the trespassers jointly, but was able to serve but one of them with process. He has proceeded against him ‘ severally to judgment.’ What prevents his proceeding now to judgment against the other defendant since served ? Not his own neglect to compel an issue in the former case, for the defendant was not then served. Nor yet a ‘nolle prosequi, retraxit, release or acquittal,’ growing out of the venire or trial against the defendant pleading only; because the defendant who pleaded was the defendant who was served, and the only one. If there is any reason why the plaintiff should not now recover, it must therefore be found in the fact that Allen was named in the prsecipe and summons.
    “ It would follow, then, that the plaintiff was bound to wait until service could be ha^d upon Allen (for we have no process of outlawry) before proceeding against DuBois, or abandon his claim against all hut the defendant served. We think it more reasonable to hold that the plaintiff, finding himself able to serve but one of the defendants, had the right to proceed against the defendant so served severally to judgment, precisely as though the defendant served had been named alone in the prsecipe. By the return of the writ DuBois only was brought in ; he answered, and the jury tried the issue so raised. The court had no jurisdiction over the defendant not served. He lived in- a remote part of the Commonwealth, and could not have been concluded by’ the result of the trial of that cause, because, not having been served, he had no opportunity to be heard. Nor ought the plaintiff to be concluded as to Allen, for the same reason, viz.: he was not served, and could not, therefore, be compelled to answer.
    “ Nor does the other position urged upon our attention, viz., that the recovery against DuBois passed the title to the timber trees claimed for from the plaintiff to DuBois, strike us as tenable. As to a stranger to the trespass, or a vendee holding by purchase from the trespassers, or either of them, this might be true; hut if the doctrine of Kennedy v. Philips, 1 Harris 409, be the law, then it does not lie in the mouth of one joint trespasser to allege, when sued severally, that a several judgment, entered an hour, a day or a year earlier in point of time against a fellow trespasser, protects him from all liability for his trespass.
    “ If trespasses committed by more than one are joint and several, and the trespassers may be proceeded against severally, it must happen that one judgment will be prior in time to another. It may happen that one judgment will be larger than another. The plaintiff is then put to his election de melioribus damnis. But if the position of the defendant’s counsel be correct, .there could be no several judgments against the several trespassers, and of course no election de melioribus damnis ; but the judgment first rendered would pass the title of the plaintiff to the defendant in that case, and plaintiff’s right to sue, as well as his title to the property— the subject of the action — would be divested by the rendition of judgment in the case first tried.”
    Judgment was accordingly entered for $1982, double and treble damages.
    The defendant took a writ of error, and assigned for error,
    1. Allowing the amendment to the record.
    2. Entering judgment for plaintiff on the special verdict.

      O. Gr. Furst and S. Linn, for plaintiff in error.
    — At common law when a tort was committed, or a joint and several contract entered into by two or more persons, the party with whom the contract was made, or against whom the tort was committed, had his election to sue jointly or severally : 1 Chitty’s Pleading 86 ; Bigelow on Estoppel 49, 57 ; Lovejoy v. Murray, 3 Wall. 1, 11; Downey v. The Bank, 13 S. & R. 288. The plaintiff must sue all jointly, or each separately : 1 Saund 291 e. As' to whether a judgment recovered against one tort-feasor sued alone is a bar to an action against the others, the authorities do not agree. In some of the cases, English and American, it is held.that ajudgment recovered against one of several joint tort-feasors is a bar to an action against the others ; in others it is said to require the issuing of an execution ; and in others that nothing short of satisfaction will be a bar: Brown v. Wootton, Cro. James 73; Bigelow on Estoppel 49; Lovejoy v. Murray, 3 Wall. 1; Livingston v. Bishop, 1 Johns. 290; Buckland v. Johnson, 15 Com. B. 145, 80 E. C. L. Rep.; Brown v. Cambridge, 3 Allen 474; Stone v. Dickinson, 5 Id. 29; 3 Penna. Blacks. 194; 1 Greenl. on Evidence, sect. 409. When the plaintiff here brought a joint action he made his election to treat his cause of action as joint; his cause of action must now be considered to every legal intent as joint only: Reed v. Garvin, 7 S. & R. 363 ; Beltzhoover v. Commonwealth, 1 Watts 127. The judgment taken against James DuBois in the joint action of trespass, if rendered in form, would be that the plaintiff therein recover his damages of James DuBois only: Shively v. The United States, 5 Watts 332. “ The language of the Act of 6th of April- 1830, Pamph. L. 277, 1 Br. Purd. 826, pl. 34, 35, is very explicit and must be confined to the cases it enumerates:" Walter v. Ginrich, 2 Watts 204. At common law when an action is brought against two jointly for a trespass, and one is not served with process, the plaintiff cannot have judgment against the defendant served without entering a nolle prosequi against the one not served, which is equivalent to an acquittal of the party not served : 2 Sellon’s Pr. 337 ; Breidenthal v. McKenna, 2 Harris 160; Salmon v. Smith, 1 Saund. 207 a, note 2; Bosworth v. Sturdevant, 2 Cush. 400; Moore v. Hepburn, 5 Barr 399. But the case which is decisive of this point is Cridland v. Floyd, 6 S. & R. 412; Wakeley v. Hart et al., 6 Binn. 316.

      O. Oorss, for defendant in error.
    — At common law, when necessary to prevent a failure of justice, the courts allowed amendments: 1 Ch. Pl. 13 note; 3 Chitty’s Gen. Prac. 173, 174. Such amendments being in the discretion of the court could not be reviewed by writ of error. The Act of 1806 made the errors therein enumerated a matter of right, and their refusal can be assigned for error. The amendment granted in the court below not being within that act, the granting of it cannot be reviewed here: Rhoads v. Commonwealth, 3 Harris 277. In Pennsylvania the law is that the plaintiff may bring as many several actions as he chooses against the joint trespassers, proceed to judgment in one or all of them, and then, electing de melioribus damnis, collect the largest one: Kennedy v. Philipy, 1 Harris 409. From the return of nihil there was no suit pending against Allen : Allen v. Mandeville, 26 Miss. 397; Rose v. Oliver, 2 Johns. 365; Purviance v. Dryden, 3 S. & R. 405 ; Heydon’s Case, 11 Rep. 5; Livingston v. Bishop, 1 Johns. 290 ; 2 Tr. & H. 51; Bradley v. Givens, 3 Bibb. 194; Floyd v. Browne, 1 Rawle 121; Ammonett v. Harris, 1 Hen. & Munf. 496; Burnam v. Webster, 5 Mass. 270 ; Rose v. Oliver, 2 Johns. 365. Verdict without judgment concludes no one: Saylor v. Hicks, 12 Casey 394; Nor confession without plaintiff’s consent: Finney v. Ferguson, 3 W. & S. 415.
    May 8th 1876.
   Chief Justice Agnew

delivered the opinion of the court,

A brief statement of facts is necessary to an understanding of the questions in this case. On the 26th of April 1868, Liggett brought an action of trespass quare clausum fregit against DuBois and Allen. Allen was not served, and the declaration reciting the return of nihil as to Allen, set forth a joint trespass. The case was tried against DuBois, a verdict against him, December 19th 1869, for $468, and judgment May 11th 1868.

On the 28th March 1870, Liggett issued an alias summons, No. 115, May Term 1870, against Allen, which was served on him November 10th 1870. ° The record was amended by striking out the word “ alias” and all reference to former proceedings against Allen. A declaration was filed, a trial, and verdict, and judgment against Allen for treble damages, $1982. Two questions are raised : 1. Was it error, by an amendment, to permit the action to stand as a separate suit against Allen? 2. Was Allen discharged by the former proceeding against DuBois ? The determination of the first question depends upon the decision of the second, for if a separate action can be maintained against Allen after the recovery against DuBois, the amendment was proper. Calling the second action an “ alias” did not make it so conclusively. If Liggett could maintain a separate action after recovery against DuBois, he was not bound to enter the' continuance in the first action to keep it open as to Allen, but might proceed by a separate summons. Where a summons is not served, a plaintiff at common law may prevent its abatement by entering the continuances from term to term, and then issue his alias to bring in the defendant. In this wise he may prevent the Statute of Limitation from barring his action: Westmoreland Bank v. Rainey, 1 Watts 30. But there is nothing to prevent his abandoning his first summons and beginning anew. Indeed, at common law, in the case of a scire facias to revive a judgment, the alias was treated as abandoned if not issued within a year and a day: 2 Sellon’s Practice 189, 190 ; Vitry v. Dauci, 3 Rawle 13; Davidson v. Thornton, 7 Barr 134. So an alias sci. fa., issued after a lapse of five terms from the former, is considered inefficient to preserve the lien of a judgment which has expired in the interval: Westmoreland Bank v. Rainey, supra; Silverthorn v. Townsend, 1 Wright 267. Before the Act of 1827, a testatum fi. fa. might be thus abandoned: Cowden v. Brady, 8 S. & R. 505. In the case before us, eight terms, or nearly two years, had elapsed before the so-called alias was issued. We do not say that the continuances might not have been entered up to continue the first action. But clearly, if the plaintiff chose to abandon it he could, if he had a right to proceed separately against Allen;

This brings us to the second question. The essential difference between this ease and many of those cited by the plaintiff in error is, that here there was no service of the first writ upon Allen, and he was suffered to drop out of the case. This distinguishes it from Cridland v. Floyd, 6 S. & R. 412. There all were served, two pleaded to issue, and rules to plead were issued against the others. A trial, verdict and judgment took place as to the two who pleaded. It was held that, under the circumstances, the trial and judgment were equivalent to a nolle prosequi and discharge of the others. Cridland v. Floyd was followed in Breidenthal v. McKenna, 2 Harris 160, a case similar in its facts. As the weight of the argument of the plaintiff in error is thrown upon Cridland v. Floyd, it is proper to notice it particularly. The decision was made in the year 1821, before the spirit of liberal amendment had prevailed in the state. The opinion was by Justice Duncan, a most learned and able judge, but a strict adherent to common-iaw rigidity. He admits that this branch of the law of actions is very difficult, and proves his concession by a most elaborate review, in eight pages, of the numerous and discordant precedents, concluding with an apology for its length by saying : “ To explain the reasons of the opinion, required a general view of the clashing opinions and inconsistent decisions on this dry but curious subject.”- The case is evidently not a precedent to bind us, certainly not beyond its facts, in view of the present liberal doctrines of amendment, sanctioned by so many statutes and decisions since made. The spirit of the present age is to reach the merits of a case, ut res magis valeat, quam pereat. Even the earlier decisions tended this way. The want of service of the writ has been held to be a very important fact. Thus, in Purviance v. Dryden, 3 S. & R. 402, a defendant not served was objected to as a witness, on the ground that he was a party to the suit. Chief Justice Tilghman said the writ was issued against him as well as Purviance, but he never was' summoned, and the action, according to our practice, was carried on against Purviance alone. In fact, the witness was not a party to the suit, and therefore there is no.force in this objection. The ease of Taylor et al. v. Henderson, 17 S. & R. 453, is not contradictory. It was decided on the ground of Page’s interest, and he was in fact served with the writ, and joined in a commission to take testimony, though he did not plead to issue. The principle of Purviance v. Dryden was followed in Kennedy v. Philipy, though the case was not cited in the report: 1 Harris 408. There a tort-feasor not joined in the action was held to be a competent witness against a number of co-trespassers, reversing the opinion of Judge Black, who thought him incompetent, the action being joint against some of them.. There is no ground in the authorities for the application of the maxim stare decisis to the case before us, and we are free to decide it upon principles of justice and proper analogy to other actions.

It cannot be pretended that there is justice in permitting a co-trespasser to escape the consequences of his wrong, especially in a case where his wilful injury is so obnoxious, the law visits his wrong with treble damages. Why should the fact that he was not served with the process in the former action discharge him ? It was no fault of the plaintiff, or. of the sheriff, if he could not reach him. And at this point it is proper to notice the difference between similar actions brought in this state and in England. Here we have no process of outlawry to reach the property of the defendant. There the action is suspended until, by outlawry, the defendant not served can be reached through his effects. Remarking .upon this, Chief Justice Tilghman said: “Having no process of outlawry, we are in a worse situation than they are in England. With us the plaintiff is without remedy:” Downey v. Bank, 13 S. & R. 288. With justice on this side, and controlled by no stubborn precedent, we cannot hesitate to adopt the analogy presented by the legislation in reference to joint contracts. Under the Act of 6th April 1830, a judgment against one of several joint obligors, promisors or partners, is no bar to a suit against the others not served. So, confession of judgment is not a bar. Under the Act of August 2d 1842, several judgments against defendants are good in the same action, and may be revived, or the money collected as upon one judgment. There is still a further Act, in pari materia, of April 11th 1848,1 Brightly’s Purd. 826, pl. 34, 35, 36, 37, 38, 39. Adding to this the ample power of amendment conferred, even to the change of the form of action and the correction of verdicts, we may repeat the language used in Weikel v. Long, 5 P. F. Smith 241, that “the whole common-law theory on the subject of actions against joint debtors, partners and judgment-defendants has been deranged by legislation.” There is a greater reason for applying the principles of these acts to joint tort-feasors than to joint contractors, for the former have no ligament of contract with the plaintiff to bind them together. They cannot say to him, this is the form of your agreement with us, and you must abide in it. Upon the whole case, we perceive no error to correct, and the judgment is affirmed.