text:
    St. Patrick's Male Beneficial Society versus McVey.
    A member of an incorporated beneficial society does not stand in the relation of a creditor to the society, and can claim only such benefits as are prescribed by the by-laws existing at the time he applies for relief.
    January 2d 1880.
    Before Sharsavoo’d, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1879, No. 18. On an appeal from a magistrate.
    Assumpsit hy Rody McVey against the St. Patrick’s Male Beneficial Society.
    The society defendant was incorporated by the Court of Common Pleas of Philadelphia county on the 5th of May 1866.
    Among the articles of the constitution of the society were the following:
    Art. 2. The object of this society is beneficial, and the accumulation of a fund for the mutual aid and relief of those who may become members of it and require its beneficence in sickness or necessity.
    Art. 14. The duties of the stewards shall be to visit and examine into the cases of deceased members within txventy-four hours of the receiving an application for benefits (properly endorsed by the secretary), and if, in their opinion, such member is worthy, they shall, at the expiration of seven (7) days from the date of the secretary’s endorsement, obtain and pay to him such weekly sum as the existing by-laws may direct, and continue their visits at least twice a week during such illness; and in the event of any case appearing doubtful to them, they shall call upon a physician of respectability, whose opinion in writing shall be decisive. They shall report such decision at the next stated meeting.
    Art. 12. The capital and profits of this society, with interest and dividends of the money and other effects, shall not at any time exceed $2500, Pennsylvania currency. When it amounts to said sum, the society shall make a fair dividend of $1500, giving each member his equal share according to his investment. The remaining $1000 shall be deposited in bank or otherwise as the society may direct.
    Art. 13. This society shall have power to make by-laws as ■well as to carry into effect the provisions herein contained;1 provided, that no by-laws shall be repugnant to this constitution, nor the constitution and laws of the United States, or the constitution and laws of this state, and all by-laws to be enacted, altered or repealed must be proposed and laid over at least one month before being acted upon.
    By article 12, of the by-laws, “ every person on being elected a member of the society shall sign the constitution” and article 14, sect. 2, provided, that any member of the society who, after twelve months’ membership, is taken sick or otherwise disabled from following his usual or other employment, on application, shall receive five dollars per week. All applications for benefits to be addressed to the secretary for his endorsement, and no claim for benefits allowed until such application is received.
    At a regular monthly meeting in September 1876, the society, finding that their funds had become nearly exhausted, proposed the following by-law: “Be it resolved, that we suspend the weekly payments of benefits to the sick members until there is $800 in the treasury.” This resolution was laid over (under the rules) for one month, and duly passed at the meeting in October 1876. At the time of the adoption of this by-law, McVey was a member, and had been prior thereto. He became sick, January 1877, and so continued until March 17th 1877. No notice of this sickness was given to the secretary until about four months after his recovery, at -which time he was six months in arrears. He then paid the arrearages and demanded his sick benefits, which the society refused to pay — because the funds in the treasury did not amount to the sum required by the by-law passed October 1876.
    The court, Elcock, J., charged the jury: “This action is brought by the plaintiff to recover sick benefits from the defendants, who are a beneficial society. There is no dispute about the fact that he was sick during the time that he claims, to wit, from January 20th 1877, to March 17th 1877. The defendants contend that the plaintiff is not entitled to recover, for two reasons: 1. That there was no notice served upon the secretary in accordance with the rules and regulations of the society. This was not of substance in this case. The want of notice here was not one of the substantive requisites for recovery. The want of notice at the time is no substantive reason for not paying the plaintiff. He would be entitled to recover, because the rule in relation to notice was intended to prevent fraud on the society. Here there is no fraud alleged, but there is no denial of the sickness. 2. They relied upon a resolution or by-law passed October 2d 1876, by which the society resolved not to pay any sick benefits until there should be accumulated the sum of $800.
    “ This is a confession of insolvency, and the society should have wound up its affairs and gone into liquidation; but they had no right to pass that resolution. It is opposed to the very object for which the society was formed and is unlawful. They cannot pay one class and not another. They must, if they cannot do better than this society did by this resolution, surrender their franchises or make an assessment on their members to raise funds. Counsel for defendants have submitted to me the following point to charge you on: ‘If the jury believe that the resolution of October 2d 1876, was regularly passed by the society defendant, the plaintiff, being a member, is bound thereby and cannot recover.’ I refuse to so charge you, as the point is given.”
    Verdict for plaintiff for $44.60, and after judgment thereon, defendants took this writ, assigning for error the whole of the foregoing charge, on the ground that it was equivalent to a binding instruction to the jury to find for the plaintiff.

      William Grorman, for plaintiff in error.
    It is submitted, 1. That the by-law was not unconstitutional. And the society having proven it was absolutely necessary to their existence as a society, and that it was regularly passed — it was binding upon plaintiff; and further, they having declared they were not in funds, it was conclusive on the plaintiff, and defendant’s point should have been affirmed.
    2. If plaintiff intended to contest the constitutionality of this by-law, notice must be given at the time of the sickness, and in' the manner pointed out by their constitution and by-laws, hence no subsequent notice would, entitle plaintiff to recover. To sustain these positions see Cummings v. Webster, 43 Maine 192; Commonwealth v. Pike Beneficial Society, 8 W. &. S. 247; Black and White Smith Society v. Vandyke, 2 Whart. 309; Torrey v. Baker, 1 Allen (Mass.) 120; Toram v. Howard Beneficial Society, 4 Barr 519; St. Mary’s Beneficial Society v. Burford, 20 P. F. Smith 324; Breneman v. Franklin Beneficial Society, 3 W. S. 218.

      I). B. Meany, for defendant in error did not furnish a paper book.
   Mr. Justice Gordon

delivered the opinion of the court, Febuary 9th 1880.

Upon an examination of the charter of the society above named, we find under article second, the following: “ The object of this society is beneficial, and the accumulation of a fund for the mutual aid and relief of those who may become members of it and require 'its beneficence in sickness or necessity.”

Here two important particulars, fundamental in their character, become obvious: 1. The society is a charity, designed primarily, for the relief of such of its necessitous members as may require, that is need, its beneficence; 2. In order that it may be enabled to carry out this scheme of benevolence a fund must be accumulated from the contributions of the membership. Without this it could give nothing, could afford no pecuniary relief, for it would have nothing. What the amount of that fund was to be, under $2500, was left discretionary with the society, as will appear from article sixteen; nevertheless a fixed amount was contemplated. This was wise, for if the money received from monthly dues was to be expended just as it was received the operations of the society must necessarily be fitful and uncertain. One month the sick might be relieved, the dead buried, and the next, it might be impossible to do either for want of means. Hence the efficiency and harmonious working of the society depended largely upon the existence of a permanent fund. It follows, 'that the by-law regulating the amount to be paid weekly to the sick, was but a rule for the government of the officers in the administration of the society’s benefactions, and must necessarily be subject to amendment and alteration to suit the fund set apart for that purpose. Hence arises the error of the court below in treating the case, 1. As though the organization was a quasi insurance company ; and 2. As though the by-law, in existence when the plaintiff became a member, was part of a contract unalterable except with his consent.

This error becomes the more obvious upon reference to article ninth of the charter, which provides that the stewards, finding the applicant for “sick benefits” worthy, shall obtain and pay to him such weekly sum as “the existing by-laws may direct.” From this it is manifest that the plaintiff ought not to have been allowed to recover under a by-law which had been repealed before he fell sick.

But more than this, to treat the proposed benefaction of this association as a matter of right, was a mistake. When McVey entered the society it promised him nothing of the kind; it promised him pecuniary aid in his sickness or necessity only, in case it had funds for that purpose, and then under the condition that its officers, after notice, found him to be a person worthy of such aid. For the court to say, therefore, that the plaintiff was entitled, as of right, to the sum of five dollars, or any other sum of money per week, whilst he lay sick, and to treat the society as his debtor to that amount, was to introduce into its organic law a novelty found neither in its letters nor spirit.

From any and every point of view presented by this case, the defendant was entitled to a verdict, and so the jury ought to have been instructe

The judgment is reversed.


source: Caselaw Access Project

author: Chief Justice Sharswood

license: Public Domain

text:
    Mickley's Appeal.
    1. If a bequest be made to a person absolute in the first instance, and it is provided that in the event of death or death without issue, another legatee or legatees shall be substituted to the share or legacy there given, it shall be construed to mean death or death without issue before the testator. The first taker is always the first object of the testator’s bounty, and his absolute estate is not to be cut down to an estate for life without clear evidence of such intent.
    2. M. bequeathed one-sixth of his estate to his son “ J., M., or his heirs,’’ and a like proportion in the same language to two other sons, and the remaining three-sixths in trust for each of his three daughters. He also directed “ if either of my sons should die without leaving issue living at the time of his death, the share given to such son shall pass to and be divided among such of my children as may be then living, and to the issue of such as may be dead.” Held, that each son had an absolute indefeasible interest in the share bequeathed to him.
    January 28d 1880.
    Before Sharswood, C. J., Meruur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Orphans’ Court of Philadelphia countyOf January Term 1880, No. 90. ,
    Appeal by Henry J. Mickley, trustee under thd^ill of Joseph J. Mickley, deceased, from a decree of the court sustaining exceptions to the adjudication of one of the judges of said court upon the final account of the appellant as executor.
    • ‘Joseph J. Mickley, the testator, died February 15th 1878, after having made his last will, which was duly proved and letters testamentary granted to Henry J. Mickley, the executor therein, on February 23d 1878. The testator left surviving him six children, three sons and three daughters, all of whom are still living. By his will the testator ordered the real estate to be sold and the proceeds to be added to the rest, residue and remainder (after payment of debts, &e.), of his personal property, and to he divided into six equal shares or portions. He then-provides as follows: “ One equal sixth part thereof I give and bequeath to my son, Henry J Mickley, or his heirs. One other equal sixth part I give and be queath to my son, John J. Mickley, or his heirs. One other equal sixth part I give and bequeath to my son, Joseph P. Mickley, or his heirs. One other equal sixth part I direct shall be held by my said executor in trust for the sole and separate use of my daughter, Josephine C. A., wife of ’John Johnson, during the time of her natural life: and from and immediately after her death I give and bequeath the principal of said share to all and every the child or children, and issue of a deceased child or. children of her, my said daughter Josephine C. A., share and share alike, such issue, however, if any, to take per stirpes the share of their parent. In default of such child, children or issue of deceased child or children, I direct the said one-sixth of my estate to be equally divided among such of my children as may survive my said daughter, Josephine C. A., and the issue of such as may have died, such issue taking only the share of their parent.” Then follow similar bequests to each of his two other daughters.
    Immediately following the last of the three bequests to his daughters, is the following clause, which gives rise to the present controversy. ^“Fourth. I direct that if either of my.sons should die without leaving issue living at the time of his death, the share given to such son shall pass to and be divided among such of my children as may be then living, and to the issue of such as may be dead, such issue, however, taking only the share of their parent. In the event of the death of either of my said children without issue living at the time of his or her death, I direct that in the distribution of the share of such child as aforesaid, the portion thereof allotted to each of my daughters shall be held in trust in the same manner as directed in the. provision hereinbefore made for them.’b
    Henry J. Mickley filed his account as executor, and upon the adjudication of said account, it was claimed on behalf of the sons that they, having survived the testator, took, under his will, indefeasible estates. The auditing judge held that the sons took each a life interest in one-sixth part of decedent’s estate. To this adjudication John J. Mickley and Joseph P. Mickley, two of decedent’s sons, filed exceptions as follows:
    1st. Because the learned judge erred in finding that the sons of testator took but a life-estate under his will, and in awarding to them their respective shares for life only.
    2d. In not awarding to the same their respective shares in fee.
    Argument was made upon these exceptions before the court in banc, and the exceptions were sustained; and the court decreed that the executor pay the distributive shares of decedent’s sons to them in their own right absolutely. From this decision of the court in banc this appeal was taken.

      Edward Eoplcinson, for appellant.
    It can hardly be contended that the words of the will do not constitute a good executory bequest, though the words “ or his heirs ” be read “ and his heirs:” Diehl v. King, 6 S. & R. 29.
    In order to a clear understanding of the law applicable to this bequest, we must carefully distinguish between the case of a bequest to A., and if he should die, to B., and the case of a bequest to A., and if he should die “without issue,” or “without children,” or “without leaving issue living at the time of his death.” In the first class of cases, that of a bequest to A., absolutely or indefinitely, and if he should die, to B., the rule of construction applicable, and the reason of such rule, are most clearly set out in the opinion of Sir John Romilly, M. R., in the case of Edwards v. Edwards, 15 Beav. 357 (year 1852); as follows: “ As the testator speaks of death — the most certain of all things — as a contingency, it can only be made contingent by reference to its taking place before a particular period, and as no period of time is mentioned in the will, it is necessarily presumed that the period of time, to which the testator refers, is the period of possession or enjoyment; that is, his own death, when the legacy to A. will take effect; and the subsequent limitation is introduced to prevent a lapse of the legacy in. case A. did not survive the testator. In such cases, therefore, the rule may be considered settled, that the bequest must be read somewhat to this effect, that is to say, a bequest to A., but if A. shall die before the bequest becomes vested in him, then to B., and the consequence is this, if A. survives the testator, he takes an absolute vested interest.
    The law applicable to the second class of cases, and in which class the bequest now under consideration falls, is likewise in the same case clearly set out, and a distinction drawn between the two classes of cases. “In the second of the supposed cases, there is a manifest distinction. There the event spoken of on which the legacy is to go over is not a certain, but a contingent event. It is not in the case of the death of A., but in the case of his death without issue, or without leaving a child; and here it would be importing a meaning and adding words to the will, if it were to be construed as a condition to entitle B. to take upon the death of A. without issue, if it was to happen at some particular period. In these cases it has always been held, if at any time, whether before or after the death of the testator, A. died without leaving a child, the gift over takes effect, and the legacy vests in B.; this is best established by the case of Farthing v. Allen, reported only in 2 Jarman on Wills 688. All those cases are, of course, liable to be varied by the force of the particular expressions which the testator may have made use of in his will, importing a different intention; but they do not affect the rule — on the contrary, they'must be held tacitly to admit the application of it, inasmuch as they are treated as exceptions to an existing rule.”
    Like rules of construction were adopted in the following cases: Jessup v. Smuck, 4 Harris 327 ; O'Mahoney v. Burdett, 7 L. R. Eng. & Ir. App. 395; Ingram v. Soutten, Id. 408; Olivant v. Wright, L. R., 1 Ch. D. 346.

      John Gr. Johnson, for appellees.
    The appellant’s citations from English authorities can be met with citations of equal weight, to the contrary, from the same source: Home v. Pillans, 2 My. & Keene 18; Watson v. Walton, 7 DeG., M. & G. 248.
    The Pennsylvania cases settle the law in our favor: Caldwell v. Skilton, 1 Harris 152; Johnson v. Morton, 10 Barr 245; Biddle’s Estate, 4 Casey 59; Karker’s Appeal, 10 P. F. Smith 141. The context of the will favors our contention.
   Chief Justice Sharswood

delivered the opinion of the court, February 16th 1880.

The able argument of the young gentleman who presented this case on behalf of the appellants — who has a hereditary title to legal ability and acumen — has failed to convince us that the learned court helow erred in the construction which they put upon the will of Joseph J. Mickley. He is sustained by some English cases which are not of authority with us, and besides, as the great object in the construction of every will is to arrive at the true intention of the testator and to carry that out, if not contrary to law, decision on the language of wills, are not to be too closely followed. It is very clearly settled, both in England and in this state, that if a bequest be made to a person absolute in the first instance, and it is provided that in the event of death, or death without issue, another legatee or legatees shall be substituted to the share or legacy thus given, it shall be construed to mean death or death without issue before the testator. The first taker is always the first object of the testator’s bounty, and his absolute estate is not to be cut down to an estate for life, or what is practically the same thing, to be subjected to an executory gift over upon the occurrence of the contingency of death or death without issue at any future period within the rule against perpetuities without clear evidence of such an intent: Caldwell v. Skelton, 1 Harris 152; Estate of Mary Biddle, 4 Casey 59; Karker’s Appeal, 10 P. F. Smith 141 ; Fahrney v. Holsinger, 15 P. F. Smith 388 ; McCullough v. Fenton, Id. 418. In Jessup v. Smuck, 4 Harris 327, the general rule is recognised, though in that case the court, upon the construction of the whole will, thought the intention of the testator was very clear, that he meant death “without marriage,” at a period subse-quent to his own death. In the will before, us it is strongly contended that death without issue living at the death of the first taker evinces the same intention. But it is not easy to draw such an inference from those words alone. Mr. Smith, in his work on executory interests, maintains that where the gift over is not merely dependent upon death, but upon dying unmarried and without issue — the event will be construed to mean not a death generally at some time or other, but a death in the testator’s lifetime, if the fund or property itself, and not merely the interest or income, is given absolutely to the person whose death is spoken of: sec. 662. In the English cases a distinction is made between devises of realty. and bequests of personalty, which has not been recognised in this state. But taking the whole will we think there .is a very clear indication of the intention of the testator, that the distribution of his estate to the persons entitled should take place at the period of his own death, and not be postponed to a subsequent time. The share of either of his sons so dying without issue is to be divided among his other children, to his sons if living absolutely, and to his daughters, to be held in trust as provided in his will. Thus, while according to the construction contended for, the original share of the son would be held subject to .the executory bequest over, the accrued share would be held absolutely, while the accrued shares of the daughters would be held exactly as the original shares. Such a result was referred to and relied on as evidence that it was not the intention of the testator in Caldwell v. Skilton, 1 Harris 185. Says Mr. Justice Bell, “ besides that construction would render defeasible the original shares first taken under the will, while those which might accrue by the clause of survivorship would vest absolutely, a consequence certainly never contemplated.” Decree affirmed and appeal dismissed at the cost of the appellants.


author: Mr Justice Gordon

text:
    Peoples' Bank versus Gayley.
    1. A warehouse receipt, as contemplated b.y the Act of September 24th 1866, must be issued by the person in possession of the goods in his own right. One who is the servant or agent of the principal cannot issue such receipt.
    2. Where goods on storage are pledged without the knowledge of the bailee, and the latter, by direction of the pledgor, subsequently delivers the goods to a bona fide purchaser for value, the pledgee cannot maintain replevin against the bailee.
    3. E. was a warehouseman and lessee of a wharf. G. was employed to take charge of the wharf. P. obtained a receipt from G., showing that G. had received and held subject to P.’s order certain iron. _ P. pledged the iron to a bank as collateral for a loan, endorsing the receipt to the bank. The latter never notified G. or his employer. P. afterwards obtained another receipt from E. without disclosing that he had obtained a receipt from G., and sold the iron to H., to whom E. gave a new receipt in his own name. P. becoming insolvent, and the bank failing to get the iron from G., brought replevin against him. Held, that it could not recover.
    January 23d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunicey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1878, No. 226.
    Replevin by the Peoples’ Bank of Philadelphia, against Andrew T. Gayley for eight hundred tons of iron.
    At the trial it appeared that in October 1874 there was stored on the Callowhill street wharf eight hundred tons of iron. Defendant was in charge of this wharf, but there was no sign about it to indicate who was its owner. The iron belonged to the firm of Malin Bros., and,on the above day Alexander Ervin, a confidential agent and attorney of Henry G. Morris, an iron manufacturer, went to the defendant at the wharf with an order from the Malin Bros, to deliver to said Morris three hundred tons of this iron. The order was in an envelope with a printed address in these words: “A. T. Gayley, Esq., Callowhill street wharf, Delaware avenue, city.” Ervin told Gayley he wanted to borrow money on the iron from plaintiffs, and that he had negotiated a loan on it for Morris, and that he desired from defendant a warehouse receipt to use for that purpose.
    Gayley wrote the following receipt:
    “ Philadelphia, October 15th 1874.
    ' Received from Malin Bros, three hundred' tons (300) * 1 Nth Penn, pig iron on storage, subject to the order of Henry G. Morris.
    And. T. Gayley.”
    Ervin turned this document, and in G;ayley’s presence Ervin wrote on the back the following words:
    A. T. Gayley, Esq.,
    Please deliver enclosed pig iron to W. H, Taber, Esq., Cash or order.
    Henry G. Morris,
    p p Alex. Ervin,
    Atty.
    October 20th 1874, Gayley issued a second' receipt in these words:
    Philadelphia, October 20th 1874.
    Received from Malin Bros.:
    250 tons, * 1 Nth Penn, pig iron.
    250 “ * 2 x Robbins “
    Held subject to the order of Henry G. Morris.
    And. T. Gayley.
    And in the same manner Ervin endorsed said receipt in Gayley’s presence thus:
    Please deliver enclosed pig iron to W. H. Taber, or order.
    Henry G. Morris,
    p p Alex. Ervin,
    October 20, 1874. Atty.
    William H. Taber was the cashier of the plaintiffs. Both the receipts thus endorsed were taken to the Peoples’ Bank with the printed envelope above mentioned, and $18,500 was loaned upon this iron. This was October 15th and 20th 1874.
    The original note given by Morris to the bank was renewed, the . same iron continuing as collateral until May 1875, when Morris failed. The loan not being paid, the plaintiff laid claim to the iron included in these receipts. They offered to pay the storage and demanded the iron, but Gayley gave them no satisfaction, and referred them to one Etting as the owner of the wharf. The bank then issued this writ of replevin for the eight hundred tons of iron. The return of the sheriff showed six hundred and fifty-three tons replevied, and one hundred and forty-seven tons eloigned by Gayley. It was not denied that Ervin had authority to act for Morris.
    The defence was that after the pledge of the iron to the plaintiffs, February 27th 1875, Ervin, as Morris’s agent, gave George M. Troutman a bill of sale for the iron, and that the receipts of Gayley were merely memoranda given by him as the weighmaster of Etting. The evidence' in this direction comprised the following offers to prove, 1. That defendant was the clerk or assistant of E. J. Etting; 2. That Etting was a warehouseman; 3. That the wharf was Etting’s wharf, held under a lease, on which he received goods for storage and warehousing; 4. That warehouse receipts for goods stored on that wharf were issued by Etting or his partner only; 5. That defendant had no authority to issue warehouse receipts; 6. That he had never done so to his knowledge or intention ; 7. That the papers produced by plaintiff were obtained from him by Ervin to enable him to have a written memorandum of the fact that the iron bought from Malin by Morris was actually on that wharf; 8. That at the time of giving those receipts defendant told Ervin that he could not give him a warehouse receipt, and if he wanted one he must go to Mr. Etting, who alone could give that; 9. That it was untrue that Ervin told witness, defendant, that he intended to pledge the iron to plaintiffs ; 10. That it was untrue that Ervin made the endorsements on tbe receipts in his presence or to his knowledge; 11. That defendant never heard of the pledge to the plaintiffs until June 1875, or thereabouts; 12. That in the meantime the iron was sold by Morris to Troutman in February for value paid, and was delivered to him; 13. That before the writ issued, or there was notice of the title of the plaintiffs by either Etting, Gayley or Troutman, Etting, the warehouseman, agreed to hold the iron for Troutman, and issue to him a warehouse receipt; 15. That it was the practice, when application was made to Mr. Etting for a warehouse receipt, for Mr. Etting to ascertain what amount of the iron was there, and having issued a warehouse receipt, he notified Mr. Gayley, in order that he might know the iron could no longer be delivered on the order of the depositor.
    All of these offers were severally objected to, and the objections overruled.
    It was then proved by defendant, Etting, Morris and others, that Morris, at various times had kept iron stored on the wharf, and that Ervin was familiar with the method of issuing warehouse receipts for it. Morris also testified, “ I knew Gayley as a weigh-master; did not know him as a warehouseman.”
    After Ervin had obtained the above receipts on November 18th 1874, he applied to Etting & Groome for another receipt for the same iron. They knew nothing of the receipts previously issued, and upon this application they issued their usual warehouse receipt as follows:—
    “ Storehouse, Callowhill street wharf, Delaware Avenue,
    Philadelphia, November 18th 1877.
    Received from Henry G. Morris, the merchandise described below, to be held by me on monthly storage, from November 18th 1874, and to be delivered on the order of The Philadelphia Ware-
    house Company, only on the return of this certificate and payment of the charges. ,
    Marks, &c. Description of Merchandise.
    670 tons. Six hundred and seventy tons No. 1 Pig iron,
    340 “ Three hundred and forty tons No.' 2 x pig iron,
    140 “ One hundred and forty tons No. 2 common pig iron.
    1150 tons. Delivered to Henry G. Morris, on payment of charges.
    Charges: W. H. Jackson,
    Storage per month, 10 cents. for Company.
    Labor,
    (Endorsed).
    Warehouse receipt. H. G. Morris; date- 1874. Merchandise. Philadelphia warehouse; cancelled receipt; order to deliver. Please deliver the within merchandise upon payment of all charges.”
    On the back of this receipt were printed “ obligations of ware-housemen and storekeepers,” and underneath the full text of the Act of September 24th 1866, Purd. Dig. 114, relating to goods, wares and merchandise in store, &c.
    The same firm issued a similar receipt for 120 tons on November 25th 1874. Both these receipts .were delivered to the Philadelphia Warehouse Company as collateral fora previous loan made by that company to Morris. In February 1875, one Troutman purchased this iron from Morris under an agreement to pay off the loans for which it was held as collateral. This he did, and thereupon he received a bill of sale from Ervin, and obtained from Etting & Groome a warehouse receipt in his own name for the iron.
    Defendant offered in evidence the two receipts above-mentioned, dated November 18th and November 25th, respectively, from Etting to the Philadelphia Warehouse Company, and also a letter from Efcting to defendant, dated November 23d 1874; giving notice of the issue of the certificate for the iron. Objected to and objection overruled.
    The plaintiffs submitted the following points, to which are appended the answers of the court:—
    First. That the papers in evidence, signed A. T. Gayley, and dated October 15th and 20th 1874, vested in plaintiffs on delivery, the title to the property therein described.”
    Ans. “Well, that is so.”
    Second. Said papers are receipts within the meaning and purview of the Act of Assembly, entitled, &c., being the Warehouse Act.
    Ans. “ That, I think, is not the case. I say that they are not receipts within the meaning and purview of that law.”
    Third. Said papers are negotiable under said act.
    Ans. “ I do not think that they are.”
    4th. Said papers, whether negotiable or otherwise, vested in plaintiffs a valid title to said property against Gayley and Morris.
    Ans. “Well, that would be so.”
    5th. The title of the plaintiffs being good against Gayley and Morris, it continued, and continues good against all persons whomsoever, unless divested, “apart from legal process,” as a consequence of some illegal act of plaintiffs, or by reason of some unlawful act of commission or omission of plaintiffs.
    Ans. “ I do not think, as I have said to you, that that is so, if subsequently to that they failed to give notice of their having this pledge to this property, and if it was in good faith transferred to another by a warehouse receipt, that would divest their property.”
    6th. The issue of a warehouse receipt by Etting cannot, per se, divest the title of plaintiffs, or give title to any one against plaintiffs.
    Ans. “ If the warehouse receipt was issued in good faith, it would have that effect.”
    7th. Under the evidence in the cause, the issue of a warehouse receipt to Troutman, or any other person, could not divest the title of plaintiffs.
    Ans. “ I say that it could.”
    9th. The alleged title of Troutman, given in evidence, is no defence under the pleas of non cepit, non detinet, and no property in plaintiffs.
    Ans. “I think that it is.”
    The defendants presented the following points, to which are appended the answers of the court:
    2d. The documents in question are not warehouse receipts.
    Ans. “In my opinion they are not.”
    3d. The plaintiffs, to entitle them to claim under those papers as warehouse receipts, must prove that Gayley was a warehousman, and as such intrusted with the iron. Not having done this, they cannot assert title to the iron by the endorsement and delivery of the receipts.
    Ans. “ That, as a matter of law, I instruct you to be so.”
    6th. Unless the plaintiffs had under its title as pledgee a right to the possession of the iron, at the date of his writ, June 18th 1875, he is not entitled to recover in this suit, which is a replevin for these goods.
    Ans. “ That is so.”
    7th. If Mr. Morris, the owner of the iron, subsequent to the pledge of the plaintiffs, sold the iron to Troutman, and Etting agreed to hold the iron for Troutman, that was a delivery to Trout-man, equivalent to an actual delivery and removal of the same by him.
    Ans. “ That is so.”
    8th. If the wharf on which the iron was, and is still stored, was the wharf of Etting, and the defendant, Gayley, was merely his servant, and the iron was subsequently sold by Morris to Trout-man, and Etting issued to him a warehouse receipt, and Troutman was a bona fide purchaser for value without notice of the prior pledge by Morris to the bank, then the title of the bank was divested by that sale and delivery to Troutman, and the plaintiff cannot recover.
    Ans. “ That I think to be so.”
    9th. If the jury should find that Gayley had notice of the pledge to the bank, the plaintiffs cannot recover in this action, if Trout-man bought the iron after that pledge, and without notice of the pledge paid for it. For the plaintiffs’ right depends on title, and that was divested by the sale to Troutman bona fide, and for value without notice.
    Ans. “ I affirm this point.”
    In the general charge the court, Biddle, J., inter alia, said: “ The bank alleges they hold what is called a warehouse or storage receipt, issued by Mr. Gayley to Mr. Morris, and that under our Act of Assembly this receipt is negotiable, and having come to them by assignment, the title of the property of Mr. Morris is in them.
    “Well, then, if these are warehouse receipts that is undoubtedly true; but are these warehouse receipts ? [Before any one can issue warehouse receipts, he must be in possession of the property, that is, not simply in charge of the property.] If this were not the law, we could carry on no business with any safety, unless we could perform all the duties connected with it ourselves. The porter of your store, before you got down there in the morning, the watchman of the bank, the servants of your house, could give a valid title to all your property. [In the case I put, and which I do not think the danger of has been explained away, coal is sent to you by your coal merchant, whoever he is, the receipts are given by anybody, any member of your family who happens to be there, for one or two, or ten tons of coal; your servant, or your cook, or your wife, writes the name to that. Well, can it be possible, that when that goes back to your coal merchant, that he can assign that, as if you had admitted that you had had that much coal of his in your cellar, and that the man then could sue you or your cook, and when your cook came in, say for you, why I have acknowledged you have got this coal.]
    “Her answer would be, probably, “I am cook of this house; the man came to the house, and he put this coal down in the cellar, and he says, ‘ Now I want you to give me a memorandum that I have left that here to show when I get home,’ and the cook then hands him this memorandum ; and then if the coal merchant transfers it to somebody else, why then the cook’s lawyer would come here, and would say, ‘Why you don’t mean to say that you want to hold this woman responsible; this is not a warehouse receipt that is negotiable, for you cannot assign this; admitting that this act was done, and the coal was put down in the cellar, this is not a warehouse receipt under the law, and is not assignable;’ and that, in fact, is exactly what is stated here in the present case. * * * [As my opinion is, this man had no such possession of this wharf, under the evidence, as would justify him to give what the law declares to be a warehouse receipt.”]
    The verdict was for defendant, and after judgment thereon, plaintiffs took this writ, and alleged that the court erred in the admission of the testimony under the above offers, in the answers to points, and in the portions of the charge included in brackets.

      F. 0. Brewster and Oharles Gilpin for plaintiffs in error.
    The law will not allow this defendant, after holding himself out to the world as a warehouseman, after issuing receipts as a warehouseman, which came into the possession of the plaintiffs for a valuable consideration, to set up to the prejudice of the plaintiffs that he was merely a servant, and had no authority to issue receipts. The defendant being a warehouseman is estopped as against one who takes the warehouse receipt for a valuable consideration, from denying the truth of the statements to which it gives credit by its signature, so far as those statements relate to matters which are, or ought to be, within his knowledge, or the knowledge of his agent: Hale v. Milwaukee Dock Co., 29 Wis. 482. The receipt was not signed by Gayley as agent. He had the power to receipt and deliver. Under the pleas of non eepit and no property, Gayley wanted to prove that he was not principal, but agent.
    The assignment of the receipts was equivalent to the delivering of the property itself: Hanson v. Myers, 2 Tudor’s Leading Cases 626 ; Gibson v. Stevens, 8 Howard 398; Dows v. The Nat. Ex. Bank, 1 Otto 618; Sheppard v. Harrison, 5 H. L. R. 120; Enlow v. Klein, 29 P. F. Smith 488; Bank v. Jones, 4 Comstock 498 ; First Nat. Bank v. Dearborn, 136 Mass. 219 ; City Bank v. Railroad Co. 44 N. Y. 300; Alderman v. Railroad Co., 115 Mass. 234; Dows v. Rush, 28 Barb. 158; Schumacher v. Eby, 12 Harris 525 ; Millar v. Savings Institution, 3 W. N. C. 480. It was clearly error to allow defendant to show a pledge of the same iron by Ervin after a pledge to the plaintiffs. If Gayley exceeded his powers as an agent, his principal cannot deny his authority. A receipt for the price of goods given by an agent or a consignor is a receipt by his employer, so as to enable the consignor to maintain an action for money had and received against the consignee: Comly v. McBride, 4 Whart. 526.
    Suppose that, secretly, Gayley had no power to give receipts, still it is clear, independently of the foregoing authorities, that his vouchers bind his employers, and therefore, the receipts held by the plaintiffs are as valid and binding, as if actually issued by the employers, for they placed him in the position to do wrong and to mislead: Griswold v. Haven, 11 Smith (N. Y.) 598. The plaintiffs became the owners of the iron in October 1874. If so their title never having been divested by their own act or by judicial process, Troutman’s title, set up by the defendant, must fall: Quinn v. Davis, 28 P F. Smith 18; McMahon v. Sloan, 2 Jones 229; Davis v. Bigler, 12 P. F. Smith 247; Corst v. Kleber, 29 Id. 290; Second National Bank v. Walbridge, 19 Ohio 419 ; Martin v. Creditors, 14 La. Ann. 393.
    Nor can it avail the defendant to assert that the plaintiffs should have notified Etting or Groome of the pledge of the iron. The answer to this is self-evident. The plaintiffs had no knowledge of Groome or Etting, or that defendant, who acted as principal, was a servant. Besides this, the notice to defendant was in .law notice to his employers.

      W. Wynne Winter, Jr., and It. O. McMurtrie, for defendant in error.
    The plaintiffs had no right to the possession at the time the action was commenced and cannot maintain an action of replevin : Collins v. Evans, 15 Pick. 63; Leslie v McDowell, 6 Harris 91; Reinheimer v. Hemingway, 11 Casey 438 ; Rogers v. Arnold, 12 Wend. 30; Sanley v. Neale, 98 Mass. 343 ; Parker v. Mellor, 1 Ld. Raym. 219; Clemson v. Davidson, 4 Binn. 409; Miller v. Adsit, 16 Wend. 344 ; Rockwell v. Saunders, 19 Barb. 473; Pierce v. Stevens, 30 Maine 184.
    The ownership of the plaintiffs, the very foundation of their action, was, in its origin, a simple pledge as security for a loan, and it was never anything more. It was a pledge without possession, and the pledgor and owner of the iron, after the pledge, actually sold and delivered the iron, the subject of the pledge, to a bona fide purchaser without notice of the pledge. Now, if the sale and delivery by the owner of the iron destroyed the ownership of the pledgee without possession, the right of that pledgee to maintain replevin is gone: Pierce v. Stevens, supra; Warner v. Matthews, 18 Ill. 83; Curd v. Wunder, 5 Ohio 92; Boyle v. Rankin, 10 Harris 168; Shaw v. Levy, 17 S. & R. 99; Winslow, Lanier & Co. v. Leonard, 12 Harris 14; Davis v. Bigler, 12 P. F. Smith 242.
    A warehouse receipt, is a document of statutory origin, as to all questions that arise in this case, and it is of the last importance to have a correct construction of the statute and the effect to be given to it in this the first case on the subject. The statutory regulations have no other object than to give a quasi negotiable character to such documents and to regulate the consequences. These consequences must be looked at in considering it. They are very extensive in their nature. They introduce an entirely new principle into our law, and one that cannot be too carefully reflected upon. No rule has been more sedulously guarded than that there shall be actual change of possession to effectually protect subsequent purchasers of personal property from frauds : Shaw v. Levy, 17 S. & R. 99; Hazard v. Hamlin, 5 Watts 201; McKibbin v. Martin, 14 P. F. Smith 352. For this change of possession is now substituted a document signed by the party in whose possession the property is, the effect of which is to be equal to an actual delivery.
    One of the first essentials to a warehouse receipt is, that it should be issued by a warehouseman, and that the goods for which it is given, should be on the premises of such warehouseman. It seems to result from the very effect given by the statute to such a paper, that it should only be issued by one hand, and that the responsible party; otherwise every employee might, with equal effect, issue documents that would pass the title of all the goods in his employer’s possession. And hence, the admissibility of the evidence to show the capacity in which Gayley was employed, and his duties therein. He was only the servant or foreman of the actual warehouseman. No one but the master can sign a bill of lading: Dean v. King, 22 Ohio 119; Babcock v. Orbison, 25 Ind. 75; Jearez v. Steamer George Washington, 1 Woods 96.
    No one disputes that an owner cannot be defrauded of his property by the sale .of it to a stranger, but it is also not to be doubted that a sale by an owner does destroy the lien of a pledgee whose pledge is unaccompanied by possession. In the former the ownership is absolute, in the latter, it is a mere lien : Walker v. Staples, 5 Allen 34. Delivery of the pledge, or a transfer of the custody, is absolutely essential to constitute a valid pawn: Beeman v. Lawton, 37 Maine 543; Owens v. Kinsey, 7 Jones L. (N. C.) 245; Smyth v. Craig, 3 W. & S. 14.

      • The contract of Gayley with Morris, if there was one, was incapable of transfer so as to entitle the transferee to sue in his own name: Thompson v. Dominy, 14 Mees. & Wells. 403; Fahnestock v. Schoyer, 9 Watts 102; London Savings Society v. Hagerstown Bank, 12 Casey 498; McCormick v. Trotter 10 S. & R. 94.
    In replevin, a defendant may defeat the action, by showing title in a third person: Robinson v. Colloway, 4 Ark. 94 ; Redman v. Hendrickson, 1 Sandf. (N. Y.) 32; Lester v. McDowell, 6 Harris 91.
    Under the pleas of non copit and “ no property in the plaintiffs,” the defendant may undoubtedly show that the plaintiffs had no right to the possession, or that the title was in a stranger : Page v. Weeks, 13 Mass. 199; Whitwell v. Wells, 24 Pick. 25; McBride v. Duncan, 1 Whart. 269.
   Mr Justice Gordon

delivered the opinion of the court, March 1st 1880.

_ Unless the bank has succeeded in showing that the receipts issued by Gayley, of October 15th and 20th 1874, are warehouse receipts, under the Act of 24th of September 1866, it has no case. Admitting all that Ervin swears to, it but comes to this, that Gayley was the bailee of Morris, the owner of the iron, and as Morris, through Ervin, sold or pledged the iron for value to two different parties, who were without notice of the claims of each other, it follows, that the one first obtaining the possession, or what is now under the statute its equivalent, would have the right of property: and the one failing in this, having no property in the goods claimed, could certainly not maintain the action of replevin: Winslow v. Leonard, 12 Harris 14; per Lowrie, J.; Davis v. Bigler, 12 P. F. Smith 242.

Now, from the evidence, two things may be taken as established: 1. That Troutman had a regular warehouse receipt from Etting & Groome, the lessees of the wharf, and hence, under the statute, he had the right of property, unless the plaintiff, the pledgee of Morris, had the previous right, by virtue of the receipts from Gayley. 2. That Troutman, when he purchased, had no notice of the property to the bank.

These being the main and really important facts of the case, it follows, that very many of the numerous exceptions taken in the court below, to the rejection or admission of evidence, become unimportant and need no consideration. The real and only question for solution is, which of these parties had the prior right to this metal? And as neither had the actual possession of this property, as that remained with the wharfinger, this question rests for its solution not upon the form but upon the character of the papers by which they severally profess to hold title. Gayley’s receipts were, in point of time, prior to those of Etting & Groome to Troutman; it follows, that if Gayley had power to issue receipts, such as are contemplated by the statute of 1866, the plaintiff’s case is made out and it ought to recover; on the other hand, if he had no such power, as against Troutman, the bank had no right in the property, and the case was properly disposed of in the court below. The question then which we have to deal with is one of power. What was Gayley’s power? And here, also, we get rid of a good deal of the brushwood of this case; for if Gayley had no power, original or delegated, to issue technical warehouse receipts, what he knew of Ervin’s intentions, what Ervin said to him, or he to Ervin, was of no consequence; so, on the other hand, if Gayley had such power his intention to give a mere memorandum would not have a feather’s weight in the case, for none the less would a bona fide purchaser or pledgee take title by virtue of the receipts issued by him. We proceed, then, to inquire what was the position and power of this man Gayley on and about the wharf upon which the iron in suit was found ? But as to this there is no controversy. The responsible parties were Etting & Groome; they were lessees of the wharf, and Gayley was their employee. To this both Gayley and Groome swore, as well as to the further fact, that he had no authority to issue warehouse receipts. Furthermore, Mr. Morris, himself, testifies : “ I knew Gayley as a weighmaster, did not know him as a 'warehouseman.” That Ervin himself knew of this fact is patent; for that, when he intended to repledge this iron to the Philadelphia Warehouse Company, he went to Etting & Groome for his receipts.

Such, then, being the undisputed status of affairs, with whom, in the language of the Act of Assembly, were the goods in controversy “stored or deposited ?” Upon the determination of this question depends the validity of the plaintiffs’ receipts. Were they stored or deposited with Etting & Groome or -with Gayley ? This question would seem to be very clearly settled by the preceding facts. If Etting & Groome were the owners of the wharf, if Gayley was but a servant in charge of this wharf, he was but a custodian for his masters, and goods deposited on that wharf were deposited with them and not with him. It is urged that the Malins sent the order for the iron sold to Morris in an envelope addressed to Gayley. But what of that ? This metal had been stored there before the date of the order, and without the assent of Etting & Groome, Gayley could not remove it nor permit it to be removed. Moreover,- it was “ subject to the payment of freight and charges thereon,” not to Gayley, but to his employers. It is true he had possession, inasmuch as he had charge of the wharf, but his possession, like that of any other servant in charge of his master’s property, was subordinate to that of Etting & Groome. In other words, he had possession for them; his possession was but their possession. He was an agent with limited powers, and those dealing with him were bound to inquire as to the extent of those powers, or take the risk upon themselves : Moore’s Exr’s v. Patterson, 4 Casey 505. Suppose they, as they had the undoubted power to do, had discharged him the next day, or the next hour, after he had received the order from the Malin brothers ? Who then would have had possession of the iron, and who would have been responsible for its safe-keeping ? Surely, Etting & Groome, not Gayley. Thus it is that we discover, beyond peradventure, with whom the commodity in question was stored or deposited, and it is thus that we determine who is the “warehouseman, wharfinger or other person,” who by the act is empowered to give the statutory receipt.

If, indeed, any servant could bind his master by issuing a receipt for goods committed to his charge, the condition of things would be sufficiently serious, and the statute would be pregnant with more harm than good. In this very case we have an example of what would result from such a construction of the act. A crafty agent obtains • a receipt from a servant, intended only as a memorandum, pledges it to an innocent party, then obtains another receipt from the owners of the wharf, and passes that to a like innocent party, and thereby these wharfingers are liable for double the value of the property. But we may easily suppose .a case in which a dishonest clerk or other employee, in connection with one or more accomplices, might, in a month’s time, bring to ruin the wealthiest warehouseman in this city. But this will not do ; such results were never intended by the makers of the statute, and a construction such as this is warranted neither by the letter nor spirit of that statute.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    City of Philadelphia, to use of Johnson, versus Rule.
    1. The frontage rule of valuation, as applied to rural property, is unequal, unjust and unconstitutional.
    2. In a scire facias on a claim, for paving, to rebut the defendant’s evidence of the bad character of the paving, there were offered in evidence samples of the stone taken from the quarry, the same as that used in the paving: Held, that those samples should have been admitted ; and that it was error to charge the jury that a failure to produce samples of the very material used, raised an inference that such samples, if produced, would have told against them. Held, further, that these errors were harmless when it appeared that the property sought to be charged was rural property, to which a per foot front assessment would not apply.
    January 26th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J. absent.
    Error to the Court of Common Pleas, No. 8, of Philadelphia county : Of January Term 1879, No. 281.
    Scire facias sur municipal claim by the City of Philadelphia, to the use of Samuel Johnson et al., against Elizabeth Rule and her husband, in right of said Elizabeth Rule, for paving a lot of ground at the corner of Eifty-sixth and Chestnut streets, in the city of Philadelphia. Defendants pleaded “ non-assumpserunt. ”

      At the trial, the plaintiff offered in evidence the Act of April 3d 1873, Parnph. L. 504, under the provisions of which the paving was done and the claim filed. In filing the claim the directions of the act were followed, and the charges were made therein in accordance with a foot frontage assessment. The defendants gave evidence to show that the materials used in the paving were not of a good character. One point of defence was, that the rubble-stone laid was not good. The plaintiffs, in rebuttal, offered in evidence a stone of which a witness said:. “ This is a sample of stone which is put in the street; it is exactly like those put down — is a fair specimen of them — and came from the quarry. It’s the same stone.” This was rejected, on the ground that it did not come out of the street itself. The defendants also gave evidence to show that the property which it was proposed to charge was rural property, and consisted of farm land.
    In the general charge, the court, Einletter, J., inter alia, said: “ The plaintiff could have brought you specimens of the stone. It is for you to say how far the absence of such testimony has a tendency to corroborate his side of the case. * * * It is a principle of law that, if a party fails or neglects to produce witnesses or samples which were in his power, the witnesses or samples would, if produced, have been against him. * * * Two or three years ago, the question in this case came up before the Supreme Court, and it said: ‘ You have no right to pass Acts of Assembly directing the paving of the streets, and directing that it shall be paid for by the frontage of that street, at the rate calculated upon the frontage of the street.’ This being the law, it becomes an important question for you to determine whether this lot was rural, suburban, or used for agricultural and grazing purposes. * * * Of course, it is something when the owner of a large lot of land like this shows that it had not been used for any other purpose than farm land, and that he has kept it in the character of a farm against all its surroundings. In addition, you are shown that the locality from Forty-second to Fifty-sixth street was unimproved land; that at that time there were fourteen squares on one of the most important streets, one of the most valuable streets in the city, unimproved. * * * Then the question you are to determine is, whether it is rural, suburban, or agricultural land. That you must ascertain from the uses to which it has been put. It has been uninterruptedly used for farming. This is corroborated by the assessor whom the city has appointed to investigate the character of the land for the purposes of assessment; and he tells you it is farm land.
    “ If you are satisfied from the testimony it is farm land — and you must consider it at the year 1876 — if you are satisfied from all the evidence in the case that it was either rural, suburban, or agricultural or grazing land, it is your duty to find for defendant, because tbe Supreme Court has said the legislature has no right to measure the value of paving by the front foot of such a place. And as the plaintiff claims to recover by virtue of the act, and no other way, you must find for defendants.”
    Verdict and judgment accordingly. The plaintiff took this writ, and alleged, inter alia, that the court erred in their imling upon the above evidence and in the foregoing portions of the charge.

      Henry Reed and William W. Wiltbank, for plaintiff in error.
    If the legislature, or any person or body under it, imposes a tax which is clearly a burden, in that it does not represent an equivalent for the local improvement bestowed, it does an act which is unconstitutional. In ordinary cases the judgment of the authority imposing the special tax, under sanction of law, is relied on ; and the courts will sustain a charge thus made, if apparently made in the exercise of a sound discretion. The courts will, in such cases, assume, in favor of the legislature, that the special tax does actually represent an equivalent, and no more, of the special benefit: Stroud v. City, 11 P. F. Smith 255; Lea v. City, 30 Id. 315; City v. Sellers, 6 Phila. 253. The sample of stone produced should have been admitted. It was as fair an exhibit of the character of the rubble, if the jury believed the witness, as could have been secured. The plaintiffs had no right to take stones from the street.

      John H. Connellan and Robert P. Dechert, for defendants in error.
    The property sought to he charged was undoubtedly rural, and to apply thereto the per foot front rule was clearly unconstitutional: Hammett v. City, 15 Id. 146: Seely v. City of Pittsburgh, 1 Norris 360; Craig v. City, 8 Id. 265.
    Samples of the very stone used could easily have been produced, and it was not error, therefore, to charge that a failure or neglect to produce these samples raised an inference against plaintiff: Best on Ev., sects. 411, 412, and cases cited; Church v. Church, 1 Casey 278.
   Mr. Justice Gordon

delivered the opinion of the court, February 9th 1880.

The stone produced by Samuel Johnson, as a sample of the material of which the pavement in controversy was composed, ought to have been admitted in evidence. He swore that it was exactly like those put into the street; that it came from the same quarry and was the same stone. It was of the general character of the material used that the jury was to judge, and for this purpose a sample of the rock from which it was taken was just as good, if not better, than a block taken from the pavement. Furthermore, it was error to tell the jury that the plaintiff might have produced specimens of the stone taken from the street, and that its not having done so was a circumstance that might weigh against it. The city had a right to rely upon evidence of the general character of the material as it appeared in the road-bed, and upon proof of the proper execution of the work, and that it did not have the stones dug up and produced in court was not a circumstance from which unfavorable inferences might be drawn. Certainly a mechanic or contractor is not obliged to tear up his finished work in order to present samples to a jury; such a rule as this would not only be novel and unreasonable, but often impossible.

But this error, as well as some others which might be found in the rulings of the court below, becomes harmless in the presence of the undoubted fact, abundantly proved and not denied, that the property, through which the street runs, was, when the paving was done, and is now, farm land-, The property sought to be charged by the lien in controversy lies immediately north of Chestnut street and east of Fifty-sixth street, and is part of what was once known as the Gamber farm, upon which the only building is an old log-house. At the time of this street paving there were but about twenty-five houses between Forty-second and Fifty-sixth streets, and but three west of Forty-sixth, whilst immediately south and west of the property of the defendant the country was wholly occupied for farming and grazing.

This completely rural character of the territory, in which the defendant’s lot is situated, protects it from the frontage rule of taxation. A rule of this kind, as applied to country property, is unequal, unjust and unconstitutional; and in thus saying we but repeat what has been said over and over again, in a long series of cases, commencing with the Washington Avenue Case, 19 P. F. Smith 852, and ending with Craig v. City of Philadelphia, 8 Norris 268.

It thus follows, from the facts above stated, that the errors committed by the court below did the plaintiff no harm, since, in any event, the verdict must have been for the defendant.

Judgment affirmed.

Paxson, J., dissented.


author: Mr. Justice Trunkey

text:
    Smith versus The Popular Loan and Building Association.
    In a suit against an endorser of a promissory note, an affidavit of defence is sufficient to prevent judgment where it alleges such facts as show that the endorsement was obtained from the defendant by misrepresentation, and that the note was negotiated in fraud of his rights.
    January 26th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1880, No. 45.
    Case by The Popular Loan and Building Association of the city of Philadelphia against Michael Smith, upon a promissory note drawn by George C. Shelmerdine to his own order and endorsed by defendant. The latter filed an affidavit of defence wherein he averred, “that the defendant, at the request and for the accommodation of Shelmerdine, the drawer of the promissory note upon which suit is brought, made, executed and delivered to the Fourteenth and Twentieth Wards Building and Loan Association of Philadelphia a bond and mortgage, in the sum of §4000, which said Shelmerdine was to pay in monthly instalments of thirty-four dollars each to said association. On the 14th day of April 1879, Shelmerdine came to defendant and told him that he was in arrears on said monthly payments in the sum of §500, and the said association had promised to give time for the payment thereof if Shelmerdine would give his four promissory notes, making together the sum of §500, endorsed by defendant, whicii said notes Shelmerdine asserted were to be paid by him and received by said association on account of said mortgage. On this assurance defendant endorsed said notes, one of which is the note in suit; but Shelmerdine, in violation of his promise and duty to defendant, instead of paying said notes on account of said mortgage gave the same to the plaintiff association in this case.”
    The court entered judgment for want of a sufficient affidavit of defence, when defendant took this writ and alleged that this was error.

      Charles D. Freeman, for plaintiff in error.
    Where fraud is alleged that is sufficient for the cause to go to a jury: Ehrisman v. Roberts, 18 P. F. Smith 308; Shannon v. Commonwealth, 8 S. & R. 444; Graham v. Smith, 1 Casey 323; Byles on Bills 224; Phelan v. Moss, 17 P.F. Smith 59 ; Hoffman v. Foster, 7 Wright 137 ; Hutchinson v. Boggs, 4 Casey 294. If the defendant proves that the note was fraudulent in its inception, or fraudulently put in circulation, there is thrown upon the plaintiff the burden of proof that he is a holder bona fide, and for a valuable consideration : Smith’s Leading Cas., vol. 1, part 2, 825; Holme v. Karsper, 5 Binn. 469; Dickson v. Primrose, 2 Miles 366; Knight v. Pugh, 4 W. & S. 448; Brown v. Street, 6 Id., 221; Phelan v. Moss, supra; Snyder v. Riley, 6 Barr 167; Beltzhoover v. Blackstock, 3 Watts 27. The affidavit clearly pointed out the fraud.

      Joseph Savidge, for defendants in error.
    In Bardsley v. Delp, 7 Norris 420, the affidavit of the defendant alleged-, as the affidavit in this case does, that the note was given for a special purpose, and was used by the one who received it for an entirely different purpose. The plaintiff, as in this case, had no notice of any secret equities existing between the endorser and the holder of the note, and it differed from this case in that it averred that the note was taken by the plaintiff for an antecedent debt, which the affidavit in this case does not aver; yet the court held, reversing the court below, that the affidavit was not sufficient and directed judgment to be entered for the plaintiff".
   Mr. Justice Trunkey

delivered the opinion of the court, Febuary 2d 1880.

The affidavit of defence sets forth facts which show that the defendant’s endorsement of the note in suit was induced by falsehood ; that he gave it on the assurance that the note would- be paid on a mortgage, for which he was already liable; and that the drawer and payee fraudulently gave the note to the plaintiff. The facts are clearly stated, and reveal actual fraud by the drawer in the obtaining and use of the endorsement. This case is ruled by Hutchinson v. Boggs & Kirk, 4 Casey 294, which establishes that an affidavit of defence, alleging such facts as show that the note was obtained from the defendant by misrepresentation and negotiated in fraud of his rights, is sufficient to prevent judgment being entered for want of a proper affidavit of defence. Where a negotiable note was obtained from the maker under false pretences, and fraudulently put in circulation by the payee, the holder of the note, in order to recover, must show a purchase for value before maturity, without notice of the fraud. An affidavit of defence distinctly setting out the facts, from which the fraud is a direct and natural inference, is sufficient: Hoffman v. Foster & Co., 7 Wright 137. See Albietz v. Mellon, 1 Id. 367.

Judgment reversed and procedendo awarded.


author: Mr. Justice Sterrett

text:
    Taylor’s Appeal.
    1. As a general rule, it has been the practice in Pennsylvania for a judgment-creditor to seize and sell in satisfaction of his debt any real estate in which his debtor has or is believed to have an interest,. Whenever such interest is alleged, the creditor is permitted to proceed with his execution, and, if there be any question in regard to the title, it may be raised and determined afterwards in an action of ejectment.
    2. It is only where the creditor is clearly and undeniably proceeding against right and justice to abuse the process of the law to the injury of another that equity intervenes to stay his hands.
    3. Winch’s Appeal, 11 P. F. Smith 424, followed.
    January 28th 1880.
    Before Sharswood, C. J., Merger, Gordon, Trunkey and Sterrett, JJ. Paxson and Green, JJ., absent.
    Appeal from the Court of Common Pleas, No. 2, of Philadelphia. county: Of January Term 1879, No. 119. In Equity.
    Bill in equity filed by Henry Moore against William H. Taylor, William II. Wright, sheriff, and William J. Moore.
    The bill alleged that in May 1877, William J. Moore made a contract with H. H. Corbin to lay the bricks in the erection of certain houses, for which he was to be paid partly in cash and partly with one of the houses to be erected. On May 22d 1877, II. II. Corbin assigned all his interest as builder to 13. R. Corbin, who thereupon assumed the liabilities of H. H. Corbin under the aforesaid contract with Moore. That on January 29th 1878, W. J. Moore having completed his contract, demanded from I). R. Corbin a conveyance of the house and lot agreed to be conveyed to him, and that the conveyance should be made to Henry Moore, to whom William J. Moore had transferred his interest for a valuable consideration. That on the 29th of January 1878, a deed was executed by D. R. Corbin to Henry Moore, but inasmuch as there was a dispute about an item alleged to be still due under the contract, the deed was delivered to a third party to he held in escrow until said dispute was settled. That before said settlement, and while said deed was still held in escrow, one William H. Taylor recovered a judgment in Court of Common Pleas, No. 2, of Philadelphia county, against said 13. R. Corbin, and that in pursuance thereof a vend. ex. had issued at the suit of said Taylor, and the lot of ground was advertised to be sold by the sheriff on tlie first Monday of October 1878, as the property of said D. R. Corbin. That upon the settlement of the disputed item on the 14th of August 1878, the deed was released from escrow and delivered to Henry Moore, and that on the succeeding day it was duly recorded. That the said deed of Donald R. Corbin vested in complainant a good title, in fee simple, free and clear of all debts of said Donald R. Corbin, not then (to wit, on January 29th 1878), of record; for the reason that the equitable title to said premises was vested in said William J. Moore, from the time of his selection of the said real estate, to wit: at and from the date of his said contract with said Corbin, in May 1877, and also for the further reason, that the full consideration for said premises had been fully paid by said William J. Moore, prior to the said 29th day of January 1878, by work done by him under his said contract. That great and irremediable injury will result to, and be inflicted upon complainant, and the title to his property become clouded and unmarketable, if Taylor is permitted to proceed, and said sheriff is allowed to sell said real estate, as he advertises he will do. That the said defendant Taylor, well knowing of complainant’s title, as hereinabove set forth, and that the said Donald R. Corbin has had no interest whatever in or to said property since the 29th day of January 1878, has caused said real estate to be levied upon and condemned, and to be exposed for sale as aforesaid, with the express intention and purpose of compelling complainant to pay him, said Taylor, the judgment-debt of $110.36 due to him by said Donald R. Corbin, to avoid litigation, and save the title to complainant’s said property from becoming clouded and unmarketable.
    The bill prayed for an injunction, special until hearing and perpetual thereafter, to restrain the sheriff and Taylor from proceeding further against the estate of complainant, and from selling the same.
    In support of the bill complainant filed two affidavits to the effect that Taylor was fully cognisant of the facts set forth in the bill, and that he had said his purpose in proceeding against the real estate was to force a settlement of Corbin’s indebtedness to him; that it would be cheaper to pay his claim than to be involved in litigation and expense and have a cloud thrown upon the title.
    In his answer to the bill, William H. Taylor averred, that shortly before the judgment was obtained, D. R. Corbin had fraudulently transferred and conveyed a large number of properties, so that the judgment might not be a lien thereon; that Corbin obtained credit on said property; that he still had an interest in the property in dispute when the judgment was obtained. He also denied that he knew anything about the title of the complainant as set forth in the bill, and averred that the alleged statements imputed to him in the affidavits were false.
    The court awarded an injunction in accordance with the prayers of the bill, when Taylor took this appeal, and assigned for error this action of the court.

      Joseph Shoemaker and L. R. Fletcher, for appellant.
    A court of equity will never, except in case of fraud or irreparable injury, restrain a sale of real estate when a question of title is in dispute. The creditor should be allowed to sell whatever interest he believes his debtor has in land, and the case go to a jury in an action of ejectment. And the decisions to this effect in Pennsylvania are uniform: Winch’s Appeal, 11 P. F. Smith 424; Clark’s Appeal, 12 Id. 447; Reeser v. Johnson, 26 Id. 313; High on Injunction, ch. vi., sects. 267 and 273; Drake v. Jones, 27 Miss. 428; Kichn v. McNeil, 47 Mo. 389 ; Leading Cases in Equity 1408 ; Benton Tsp. v. Kennedy, 2 Luz. Obs. 316; N. Penna. Coal Co. v. Snowden, 6 Wright 488 ; Freeman v. Elmendorf, 3 Halst. 475 ; Purdy v. Irwin, 18 Cal. 350; Watkins v. Logan, 3 Monroe 20 ; 1 Dan. Ch. 29. The injury is not irreparable: Clark’s Appeal, supra. Every allegation of fraud is positively denied by Taylor in his affidavit or answer. The case, in principle, is precisely similar to Winch’s Appeal, supra.

      E. C. Mitchell, for appellee.
    Where the title of a defendant in the execution is in dispute, the court will not enjoin the creditor’s execution, because it would withdraw facts from a jury which should properly be decided by them. If, however, the defendant has no interest, and the creditor is proceeding, against right and justice, to use the process of the law to the injury of another, equity will intervene to stay his hand: Winch’s Appeal, 11 P. F. Smith 424; Hunter’s Appeal, 4 Wright 194 ; Lyon’s Appeal, 11 P. F. Smith 15 ; Houston, Smith & Co.’s Appeal, 6 W. N. C. 162. The appellee has no adequate remedy at law. He cannot become a party to the suit, but must proceed by original bill, as was held in Dent v. Ross, 11 Casey 337. If the sheriff’s sale is allowed to proceed, he will either be compelled to pay the judgment or suffer the irreparable injury of a cloud upon his title.
   Mr. Justice Sterrett

delivered the opinion of the court, February 9th 1880.

It cannot be doubted that under certain circumstances the power of a court of equity to restrain an execution-creditor from proceeding to sell may be properly invoked; but, as was said in Winch’s Appeal, 11 P. F. Smith 424, “ it is only where the creditor is clearly and undeniably proceeding, against right and justice, to abuse the process of the law to the injury of another, that equity intervenes to stay his hand.”

Tested by this principle, the appellee was not entitled to the special injunction. The appellant, in his affidavit or answer as it is termed, positively denies that he knew anything about plaintiff’s title, as set forth in the bill; and avers, that he believed then and believes now, that Corbin had an interest in the property levied on at the time the judgment was obtained. He also denies that he is proceeding to sell “with the express intention and purpose,” charged in the ninth paragraph of the bill. The bill itself discloses the fact that, at the date of the judgment against Corbin, he claimed an interest in the lot to the extent of a part of the consideration therefor, which ho alleged had never been fully paid. If he was correct in this, the appellant had a right tó subject that interest, whatever it might be, to the payment of his judgment, by levying on and selling the same as the property of Corbin. It is alleged, however, in the bill, that the price of the lot had been fully earned before the judgment, was obtained, but this is not admitted. On the contrary, it is impliedly denied in appellant’s affidavit.

As a general rule, it has been the practice in this state, for a judgment creditor to seize and sell in satisfaction of his debt any real estate in which his debtor has or is believed to have an interest.. Whenever such interest is alleged, the creditor is permitted to proceed with his execution; and if there be any question in regard to title, it may be raised and determined afterwards in an action of ejectment. The reason why the creditors’ execution will not be enjoined in such cases is, that to do so, would in effect withdraw, from the consideration of a jury facts which properly should be decided by them. In cases of disputed title to personal property, taken in execution, our interpleader act provides a special mode of proceeding, in which conflicting claims of ownership may be determined, if the sheriff or other officer charged with the execution of the writ sees fit to avail himself of the protection afforded by the act.

In Hunter’s Appeal, 4 Wright 194, an injunction restraining the sale of a wife’s real estate on an execution against her husband, was sustained; but the decision was put on the ground, that the separate property of a married woman is expressly exempted by statute, from levy and sale for the debts of her husband, coupled with the fact, admitted by the pleadings, that the land levied on belonged exclusively to the wife. This fact was a controlling element in the case. In Winch’s Appeal, supra, where the title of the wife was disputed, the court refused to restrain the creditor from proceeding with his execution against the alleged interest of the husband and thus preparing the way to test the title, if it became necessary. A somewhat similar principle was recognised in Reeser v. Johnson, 26 P. F. Smith 313.

It may happen that the bona fide owner of real estate is subjected to the inconvenience and annoyance of having his property levied on for the debt of one who, perhaps, is not and never has been interested therein ; and thus his title may, for the time being, be clouded and rendered unmarketable; but such results cannot be wholly avoided. Relief must be sought, when they do occur in speeding the final determination of the questions in dispute, by such means as are provided by law for that purpose.

The decree granting the special injunction is reversed and set aside, and it is ordered, that the costs of this appeal be paid by the appellee.


author: Per Curiam. Per Curiam.

text:
    City of Philadelphia versus Scott.
    1. A scire facias upon a city claim for taxes must be prosecuted to judgment within five years after issuing the same, or the lien of such taxes is lost.

      2. Where a scire facias and an alias scire facias upon a city claim for taxes issued, and no judgment was obtained thereon for five years from the issue of the same, Held, that the lien of the taxes was gone and could not be revived by a scire facias “ to revive and continue lion” issued more than five years after the filing of the claim, although within five years from the issue of the original writs of scire facias and alias seire facias.
    February 28th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1879, No. 9.
    Seire facias sur claim for registered taxes issued by the City of Philadelphia against Freeman Scott, owner or reputed owner.
    The claim was for taxes against the whole of Scott’s property at Fifteenth and Montgomery Avenue, containing about ten acres of land, for the years 1866-9. The claim was for $4043.51. It was filed March 16th 1871. On November 1st 1871, a writ of scire facias sur tax claim issued, but was returned nihil habet. An alias scire facias was then issued on November 17th 1871, returnable to the first Monday of December 1871, and was served by posting and publication. The usual pleas were filed, the cause put at issue, and tried January 11th 1877, when a special verdict was rendered for the plaintiff for $2132.78, against the whole lot above mentioned, except that part which had been released previously. On the trial defendant’s counsel asked the court to charge the jury, that as more than five years had elapsed from the issuing and return of both scire lacias and alias, the plaintiff could not recover, hut was barred by the statute in relation to tax liens. The court refused so to charge the jury, but said the proper proceeding was after verdict to move in arrest of judgment.
    The special judgment was accordingly rendered, and defendant moved in arrest of judgment and filed the reason above set forth. Prior to and on the day before the original writ of scire facias expired, to wit: on the 31st day of October 1876, the plaintiffs issued a writ called “ a writ of scire facias to revive and continue lienthis was served on Scott, but nothing more was done therein and the case was tried on the pleadings in the original and alias scire facias.
    On the argument on the motion in arrest of judgment the plaintiff argued that, as the last-mentioned scire facias issued before the original and alias had expired, the lien still continued and was revived thereby, and that the case was still a lis pendens.

    The defendant argued that the lien of the tax claim, and of the scire facias thereon, expired on the 1st of November 1876, five years after the issuing of the oi’iginal scire facias, or, if not then, certainly by the first Monday of December 1876, the return-day of the alias scire facias.
    The court arrested judgment, and Briggs, J., delivered the following opinion:
    “ The verdict in this case was obtained on the 11th of January 1877, upon an alias scire facias issued upon a claim for taxes registered on the 16th of March 1871, against a lot of ground at Fifteenth and Montgomery Avenue, being five years, one month and twenty-five days after the writ of alias scire facias was issued.
    “ The first section of the Act of the 11th of March 1846, Bright. Dig. 1086, provides that, ‘ All registered taxes as aforesaid, shall cease to be a lien after the expiration of five years from the first day of January in the year succeeding that in which they became due, unless suit be brought to recover the same, as it now is or may be provided by law for the recovery of the same, and duly proceeded m to judgment.’ The second section of said act gives a remedy upon such claims by writ of scire facias, as in the case of mechanics’ claims. And by the Act of June 16th 1836, Bright. Dig. 1036, for remedy upon mechanics’ claims it is provided that: ‘ The lien of every such debt for which a claim has been filed as aforesaid, shall expire at the end of five years from the day on which such claim shall have been filed, unless the same shall be revived by scire facias in the manner provided by law in the case of judgments.’
    “ It follows from these Acts of Assembly, that the same time is given the plaintiff to obtain judgment upon his writ of alias scire facias, as is given to prosecute to judgment a like writ to continue the lien of a judgment, and this by the very terms of the Act of the 26th of March 1827, Bright. Dig. 820, and the adjudications thereupon is limited to five years from the time of issuing the scire facias: In re Fulton’s Estate, 1 P. F. Smith 204; Meason’s Estate, 4 Watts 344; Silverthorn v. Townsend, 1 Wright 263 ; Ward v. Patterson, 10 Id. 372; Hershey v. Shenk, 8 P. F. Smith 384; Hunter v. Lanning, 26 Id. 26.
    “ It therefore follows that the plaintiff’s scire facias has not, in the language of the Act of the 11th of March 1846, been ‘ duly proceeded in to judgment.’ And this, notwithstanding, the plaintiff caused a scire facias to revive the lien to he issued October 31st 1876. It is not pretended that this writ was a pluries. Indeed, it could not be, for, as the alias was duly served, there was no legal requirement in the case which a pluries could answer, llegarding it then as an independent writ, as it was held under like circumstances, in Meason’s Estate, supra, it was an abandonment of the scire facias previously issued, and in this view there was no lien to revive, as the lien had already expired on the 16th of March preceding. Viewed in either aspect, the presentment is alike fatal to the plaintiff’s case. We, therefore, order that the rule for a new trial be discharged, and that judgment on tho verdict be arrested.”
    The plaintiff then took this writ.

      John S. Powell and Christian Kneass, for plaintiff in error.
    Wo adopt as our argument the opinion of Allison, P. J., in Ketcham v. Singerly, 34 Leg. Int. 125, and the cases therein cited. Our sci. fa. to revive was issued in time; it was duly served on Scott, and an appearance entered for him ; the lien was a subsisting one at the date of the verdict, and still remained so, and it is submitted we are entitled to judgment on that verdict.

      Charles Meyers and William Rotch Wister, for defendant in error.
    Tho ease of Ketcham v. Singerly, which is solely relied on by the plaintiffs to support their case, was totally different from this case. In that the claim was filed some time in Juno 1867, and the original scire facias W'as issued on January 18th 1868. Tho scire facias to revive and continue lien was issued on the 19th of April 1872, and within five years from the filing of tho claim, it therefore did continue the lien of the claim, and the learned judge only decided that it did not interfere with the original scire facias. In our case, however, more than five years had elapsed between the filing of the claim and the issuing of the scire facias to revive and continue the lien, and the original and alias scire facias were at issue, and the case was tried on the pleadings filed in them, and the verdict rendered thereon.
    The cases cited by the learned court in Ketcham v. Singerly all support our contention.
   The judgment of tho Supreme Court was entered March 24th 1879,

Per Curiam.

What is meant by the words “ duly proceeded in to judgment” in the first section of the “ Act relating to registered taxes and municipal claims in the county of Philadelphia,” passed March 11th 1846, Pamph. L. 114, was settled by the construction which has been given to tho second section of the Act of March 20th 1827, 9 Sm. L. 304. Where no judgment is obtained until more than five years after the issuing of the scire facias, the lien of the original judgment is lost: Fulton’s Estate, 1 P. F. Smith 204. “ When,” says Mr. Justice Rogers in Meason’s Estate, 4 Watts 344, “a scire facias is issued to revive a judgment the lien is continued for five years and no longer. The law does not recognise the possibility, when due diligence has been observed, that the plaintiff can fail to obtain a judgment of revival within a period of five years.” The alias scire facias in this case, which issued November 17th 1871, had expired without a judgment before the trial. The scire facias issued October 31st 1876, was more than five years after the lien was filed. It was a suit distinct from and independent of the alias scire facias of November 1871. It was not and could not be grounded upon that proceeding. In any aspect of the case, we think that the lien had expired, and the judgment of the court below was right.

John S. Powell and Christian Kneass, for plaintiff in error.

That the ordinary sci. fa. has the effect of reviving the lien is decided in Sweeny v. McGittigan, 8 Harris 320, which was followed by the District Court of this county in Cornelius v. Junior, 5 Phila. R. 171. The sci. fa. and alias in the present case therefore revived and continued the lien until November 17th. 1871. That is to say the sci. fa. and alias revived “ the lien incidentally and by legal construction, although not purporting to be for the purpose of revival:” Cornelius v. Junior, supra. That they may proceed together is decided by Judge Allison in Ketcham v. Singerly, and again in another case of Ketcham v. Singerly by Court of Common Pleas, No. 2, reported in 3 W. N. C. 544.’ It may also be noticed that in those cases the judgments were entered in the sci. fa. to enforce the liens upwards of eight years after the sci. fa. had been issued, they having been kept alive by the sci. fa. to revive. The sci. fa. in the cases of Ketcham v. Singerly, issued January 18th 1868, and the pleas on which judgment was given for plaintiff were filed on March 17th and 20th 1876, respectively, so that it cannot be held that judgment had to be obtained on those sci. fas. within five years without overruling those cases.

Charles Meyers and William Rotch Wister, for defendant in error.

The city can only enter liens against realty by virtue of express authority by statute: Philadelphia v. Greble, 2 Wright 339; Miller v. Gorman, 2 Id. 309; Wilson on Municipal Corporations, sect. 657. The lien created by the original scire facias and alias not having been prosecuted to judgment was gone at the expiration of five years, and no judgment could be entered thereon: Hershey v. Shenk, 8 P. F. Smith 383; Silverthorn v. Townsend, 1 Wright 263; Fulton’s Estate, 1 P. F. Smith 204; Hunter v. Lanning, 26 Id. 25; Meason’s Estate, 4 Watts 344; Ward v. Patterson, 10 Wright 372. What is meant by the words “ duly proceeded in to judgment” in the first section of the “act relating to registered taxes and municipal claims in the county of Philadelphia,” passed March 11th 1846, Pamph. L. 114, was settled by the construction which has been given to the second section of the Act of March 20th 1827, 9 Sm. Laws 304. Where no judgment is obtained until more than five years after the issuing of the scire facias, the lien of the original judgment is lost: Fulton’s Estate, supra. This construction of the law was followed in Poole v. Williamson, 4 Rawle 317; Betz’s Appeal, 1 Penna. R. 271; Todd v. McCulloch, 3 Id. 444; Brown v. Campbell, 1 Watts 41; Meason’s Estate, 4 Id. 341; Ebright v. Bank, 1 Id. 397 ; Bank v. Crevor, 2 Rawle 224; Commonwealth v. Barker, 2 Penna. R. 232; Downey’s Appeal, 2 Watts 297; Jack v, Jones, 5 Whart. 321 ; Fryhoffer v. Busby, 17 S. & R. 121; Westmoreland Bank v. Rainy, 1 Watts 26; Bank v. Fitzsimmons, 2 Binn. 445; Black v. Dobson, 11 S. & R. 94; Sinkett v. Wunder, 1 Miles 361; Ward v. Patterson, 10 Wright 372.

Judgment affirmed.

Upon the plaintiff’s petition a re-argument was ordered, and the case was again heard January 28th 1880, before Sharswood, O. J., Mercur, Gordon, Tronkey and Sterrett, JJ. Paxson and Green, JJ., absent.

In the first section of the Act of March 11th 1846 it is provided not merely that suit shall he brought but that it shall be “ duly proceeded in to judgment.” These words have some meaning, and what that is, is readily seen by looking at them. There is no difficulty in ascertaining the intention of the law, and “ courts are bound to give it effect, whatever may be their opinion of its wisdom or policy Dwarris on Statutes *690. “ The fittest course in all cases where the intention of the legislature is brought in question, is to adhere to the words of the statute, construing them according to their nature and import:” Dwarris on Statutes *703.

The iudament of the Supreme Court was entered, February 24th 1880,

Per Curiam.

After the re-argument in this case and mature reconsideration, we seo no reason to change the conclusion at which we arrived oirtho first argument, and expressed in the opinion filed March 24th 1879. There is a marked distinction between the facts of this case and Ketcham v. Singerly, Leg. Int., April 6th 1877, p. 125. Here the scire facias, which it is urged was potential to keep alive the lien, was issued October 31st 1876, more than five years after the claim was filed. In Ketcham v. Singerly, the alias scire facias to revive and continue the lien, was issued within five years from the filing of the original claim. It is not necessary for us to consider whether the judgment in that case was right. It is enough to say, that conceding it to be so, it does not prove that our judgment is this case was wrong.

Judgment affirmed.