author: Mr. Justice Gordon

text:
    Freck versus The Locust Mountain Coal and Iron Company.
    1. Where a party is the lessor of two adjoining mines, the rule governing adjacent mines when held by different owners, that the lessee must ascertain the dividing line at his peril, does not apply for the lessor having the power to protect himself by covenant, if he neglects to do so, he cannot plead rules resulting ex necessitate rei as against his’ own grant.
    2. Where the lessor not only gives his tenant the power, but makes it his duty to explore and mark a theoretical line upon his own premises, the tenant cannot be treated as a trespasser if, in an honest attempt to ascertain the line, he should chance to pass over it; for the right to do what is necessary in order to find and fix the line, is implied in the grant by which it is made a boundary, and in such a case the lessor can only recover damages for improper mining or criminal negligence.
    February 19th and 20th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunicey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1876, No. 147.
    Action on the case, by the Locust Mountain Coal Company, against Joseph M. Freck.
    Plaintiff owned two adjoining coal tracts, in Columbia county, called respectively Centraba and Hazeldell. .The first it leased, in 1862, to defendant, for a term of ten years, and the other to Robert Gorrell & Co. The defendant in his lease was given the right “ to dig, mine and take away coal, as their own property, from the véins of coal above and below the water level, as hereinafter limited and described, viz.: All the' coal in the south dipping vein, known as the Mammoth vein, in the Centraba or Oentreville basin, in the county of Columbia and state aforesaid, beginning at the east line of the lands of the party of the first part, and following the vein westward one mile and one-third of a mile; also all the coal in all other south dipping veins, in said Centraba basin, within the limits of the run hereinbefore named, which the parties of the second part shall cut by tunnel, and work on or before the 1st day of January 1866.” For this privilege, Freck was to pay plaintiff a royalty of twenty-five cents per ton. Gorrell & Co. had a similar lease of all the coal in the “ north dipping vein,” the royalty reserved being thirty-five cents per ton.
    The veins form what is called a basin, oblong in shape, many miles in length, the north and south sides sloping to the bottom, something like the letter V, and drawing together at the eastern and western ends of the basin, in a formation something like the end of the borvl of a spoon. The coal lies between thick seams or layers of slate, like the leaves of a book between the covers of it. The covers represent the slate. That part of the vein, or side of the basin which inclines or dips to the north, is called the “ north dip,” and the other side of the basin, or part of the vein which inclines to the south, is called the-“ south dip.” The lowest point, where the two dips meet, is called the synclinal axis.
    The controversy in this case arises from the interference of the mines worked, on the north and south dips of the Mammoth vein, near the synclinal axis.
    This axis formed the boundary line between the respective tracts leased by Gorrell and defendant, and 'this action was brought for damages resulting from, the trespasses of Freck, who, it was alleged, had crossed this line with his gangway during the course of his mining. It was shown that Freck had crossed this axis, his gangway being lower than that of Gorrell, and the water from 'the mine of the latter flowed into the Centraba, and that, by reason thereof, the plaintiff was compelled to incur large- additional expense for machinery and pumping. ' It was also in evidence that Freck had mined seven thousand tons of coal out of Hazeldell, upon which the additional royalty of ten cents per ton was claimed, and for which, it seemed, he paid. There was considerable evidence, on the part of defendant, to show the difficulty of ascertaining the true location of the synclinal axis until it had been reached by working the mines; and plans were offered in evidence showing that the plaintiff’s own engineers were not positive as to its true location. He also gave evidence to show that the damages complained of could have been avoided, if Gorrell had raised the grade of his gangway, or carried off the water by means of troughs. By the terms of the lease, the plaintiff reserved full power to supervise the work, under the inspection of its own engineers, and in pursuance thereof, its engineer, Mr. Stockett, had, at various times, entered and inspected the operations of Freck, and on the 22d of April 1871, sent him the following notice:—

      “ Office Locust Mountain Coal & Iron Co.,
    Centraba, April 21st 1871.
    Gentlemen:
    A part of the breasts turned on the south side of your east gangway of 2d lift on the Mammoth Vein, is beyond the limits of your lease, and consequently within the limits of another lease. The object of this notice is to prevent any infringement on the rights granted to the lessees.
    Yours respectfully,
    Thomas R. Stockett, Eng. and Agt.
    Messrs. J. M. Freck & Co.,
    Lessees of Centraba Colliery.”
    On the same day Mr. Stockett wrote to the president of the Locust Mountain Company, detailing a conversation he had had with Freck and his mining-boss, Williams, wherein they had expressed their confidence that there was yet another south dip between the breasts referred to and the adjoining lease of Gorrell & Co., and stating his own opinion that whilst this was possible, it was not probable. It did not appear that there was any remonstrance or caution against Freck proceeding with any experiment to discover this other “ south dip.” The junction of the two mines was first made by Gorrell & Co. after Freck had passed the boundary line. At this time the gangway of Gorrell & Co. was lower than that of Freck, yet, instead of making the grades conform, they drove it still lower.
    At the trial, the plaintiff having proved that Gorrell, in driving his gangway in the Hazeldell colliery broke into the breast of the Centraba, and that the interference of the gangways produced a necessary peril, the counsel of defendant, on cross-examination of a witness, who was a mining engineer, produced by the plaintiff, asked him,
    . “You say that this interference produced a necessary peril. At the time Gorrell, with his gangway, broke into breast 9, could not that difficulty have been avoided by a fair elevation of his gangway, so as to have avoided the gangway of Mr. Freck ?”
    The plaintiffs objected to the question, because there was no duty on Gorrell to change his course of mining, and no control over him by the plaintiffs. The court sustained the objection.
    The defendant, on the cross-examination of a mining engineer and a witness on the part of the plaintiff, who had testified to the location of the gangway driven by the defendant, proposed to ask him: “ State, when the gangway struck the rise or pitch, where it turned or deviated first towards the south in following the bottom sla.te, whether they did not pursue the best and most approved methods of determining the synclinal axis by the course of the gangway itself?”

      The court also sustained the objection to this question. The following points were presented by plaintiff, all of which the court affirmed:—
    2. By the lease from the company to Gorrell, no right whatever was reserved to prevent Gorrell turning the water of the Hazeldell into Centraba, and the only right they had in that respect was precisely what they would have if they had not been Gorrell’s landlord.
    5. If the defendant extended his workings beyond the boundary line fixed by the lease, and thereby the colliery leased to him became connected with the adjoining colliery, the defendant is liable for any damage the owners of the colliery necessarily suffered in consequence.
    6. If the Centraba colliery, by means of the connection thus formed, became liable to the flow of water from Hazeldell, and the risk of that liability diminished, the renting value of Centraba, and the lessors sustained a loss, the defendant is liable for the amount of the loss thereby suffered by the landlord..
    The following points were submitted by defendant, to which are subjoined the answers of the court:—
    1. That it appears, by the lease from plaintiffs to defendant, that the south dipping veins were leased to defendant, and by the lease from plaintiffs to Gorrell, that the north dipping veins were leased' by plaintiffs to Gorrell, and it is a conceded fact that these veins meet and intersect at the bottom of the basin; that if the jury believe that plaintiffs thus, by their own act, provided for and authorized the interference and intersection of the two workings, and the consequent opening of communication between the. two mines, and that the workings of Gorrell, closely approaching the bottom of the basin, would, in a very short time, have produced such connection of the two mines, plaintiffs cannot recover for the consequences of such connection.
    Ans. “ I affirm that point, so far as it applies to the state of facts which have been proved before you. It undoubtedly is a supposable case, that if the defendant had mined the south dipping vein down to and along the axis, which he had a right to do, and if Gorrell had mined the north dipping vein down to and along the axis, which he had a right to do, there would have been, along the entire course of that axis, if it was opened at all, a joint gangway or opening of these two mines. That would have been a perfectly legal act, I think, of both the defendant and Mr. Gorrell; and for any injury that might have resulted from such an opening as that the plaintiff would have no remedy against Freck. But if you are-of opinion that the opening which was- made was a different kind of opening from that, and produced different consequences, if it was an opening caused by the trespass of Mr. Freck beyond his own boundary, then the applicability of that point does not arise,, and you should consider the case independent of that.”

      ' 2. That if the jury believe the best scientific, as well as the best practical methods known to the art of mining were employed by defendant, in working the south dipping veins, as he approached and arrived at the bottom of the basin, and that such scientific and practical methods, faithfully employed, would not have enabled defendant to make any more accurate ascertainment of the true position of the synclinal axis than he did through his workings, then there can be no recovery by plaintiff.
    3. That the lease is to be interpreted in the light of the best methods known to the science of mining, and that both parties to it are to be understood as having these in view when they contracted, and that if the veins were mined only in the methods and to the extent which such scientific methods prescribe, there can be no recovery by plaintiff.
    Ans. “ Neither of these points are accurate statements of the law. They are the theory -which the defendant’s counsel has argued to you, but they are not the theory which I think governs this case.
    “ When a person approaches a point in which his rights come to be in doubt, and it is a matter of difficulty and danger to ascertain whether he is exactly right or not, it is his duty to stop short or to go on at his own risk. If he does go on, not having any certain light, he is responsible for the consequences.
    “ That the precise location of the synclinal axis is purely a question of fact, and exclusively for the determination of the jury, and that if the jury believe defendant did not transgress that line, as located by the jury, there can be no recovery by the plaintiff.”
    In the general charge, the court, Mitchell, J., also said:—
    “ This lease gave as a boundary of the premises leased to the defendant, on the south side (and that is the only side with which we are concerned in this controversy), what is called the bottom of the basin, or, more technically, and perhaps more accurately, by some witnesses, the synclinal axis.
    “ This axis, of course, you will understand, is an imaginary line, but it is the line where the north and the south dips come together, wherever that may be. This line, theoretically, is as fixed and definite as any boundary line can be; but, practically, it is a matter of very considerable doubt and difficulty to locate it exactly upon the land. Especially is this the case in the early part of the workings of a mine, before the bottom • of the basin, or what may ■be called the debatable ground, through which this axis runs, has been laid open to admit of accurate measurement by scientific means. [Now, the difficulty in knowing where the correct line is, which forms the boundary of the defendant’s lease in this case, does ■not in any way affect the rights of the parties.] It is not your (business, as members of the jury, nor is it mine, to make contracts for other people, or to say that they ought to have made their contracts different, in order to avoid disputes. That was their own business. The parties in this case ha/ve made their contract, and your duty and mine is to see that each performs his proper duties, and obtains his proper rights under the contract which they have made.
    [“ The synclinal axis, therefore, was the boundary which defined the defendant’s rights in 'this case, and working across that boundary, whether it was easy or difficult to ascertain, whether it was done intentionally or in ignorance, was a trespass for which the defendant is liable, if any damage has thereby occurred to the plaintiffs.”]
    The verdict was for the plaintiff for $17,000. The defendant assigned for error the rulings of the court on the foregoing offers of testimony, the answers to points and the portions of the charge in brackets.

      F. W. Hughes and F. O. Parry, for plaintiff in error.
    — The •grant to Freck to take out coal at a certain per cent, per ton, was not a lease, but a mere license to mine: Bainbridge on Mines 117; Act of April 11th 1848, Pamph. L. 533, Purd. Dig., title “Land Office,” pl. 120, 122; Brandt v. McKeever, 18 P. F. Smith 70; Johnstown Iron Co. v. Cambria Iron Co., 8 Casey 241; Funk v. Haldeman, 3 P. F. Smith 229. In granting the right to mine the coal from the south dip, the plaintiff granted to defendant the right to make use of so much of the land in which the vein was situated, whether on the surface, or under the surface of the ground, as was necessary for mining of the coal from the south dip in the usual, proper, efficient and workmanlike manner of mining.
    A way to the coal was necessary for the enjoyment of the grant: 3 Cruise Dig., tit. xxiv., “Ways,” sect. 1, pl. 11; Clarke v. Cogg, Cro. Jac. 170. The gangway was a way of necessity, made on the land of the grantor by the grantee, for the purpose of mining the coal from the south dip of the Mammoth vein. It was driven as near to the south dip of the vein as the formation of the ground would permit, and without any objection on the part of the plaintiff. It is not denied that it was made in good faith and in accordance with rules of good mining, and that when it was driven there were no indications .that would show to a person skilful and experienced.-in the art of mining, that it could have been driven on any other line for the mining of the coal from the south dip, beyond the rising in the bottom slate, in an efficient and workmanlike manner.
    The plaintiffs knew the position of the gangway, as it was made, and as they did not object to its location, they must be presumed, under the covenants of the lease, to have approved of it.
    Grorrell & Co. could have prevented the flooding of the mines by changing the grade of their gangway, and this change it was their duty to make: Locust Mountain Coal and Iron Co. v. Gorrell, 29 Leg. Int. 101; Appeal of the Mammoth Vein Coal Co., 4 P. F. Smith 189; Clegg v. Dearden, 64 E. C. L. R. 576.

      A. Sidney Biddle and B. O. McMurtrie, for defendant in error.
    — The grant was a lease and not a license, for rent, and the right of entry was reserved. The working over was not of necessity, either in the legal or in the miner’s- sense.
    The grant was the right to take coal from a certain vein within certain limits. There was access to the vein within the lines. It is plain that all the coal could be got out by this access. It may be .that it would be very expensive, too much so to make it profitable to do so. To say that this authorizes the use of any portion of the adjoining land, which will enable the lessee to mine all the coal to a profit, is certainly new doctrine. Ways of necessity are most rigorously construed. To extend the rule as here claimed, would be ruinous ; the rule is, if there is a way, however inconvenient, none pásses by implication. Good intentions are not an excuse for overworking, and will not excuse a wrongdoer. There is no difference between a trespass on the landlord’s property not granted and that of a stranger. The trespass was on Gorrell, the tenant, and not on the landlord. The only power reserved by the landlord was to secure the covenant to mine properly, not whether the tenant was confining his operations to the limits of his grant. The acceptance of royalty professedly paid for coal lawfully taken under the contract, cannot justify the wrongful act and estop the landlord. It was neither paid nor accepted in satisfaction of the injuries of which complaint is made. The landlord could not have compelled Gorrell to adopt another mode of working. They had no power to compel him to forego anything for the benefit of another colliery belonging to them. Gorrell might have avoided the difficulty had he known of the peril, and if he chose to abandon apart of his coal by raising his gangway. He was not bound to adopt such a course. His was not the wrongful act. The contention that Ereck having gone to the bottom first, Gorrell was bound to change his course, is not tenable. There is no such obligation resting on an adjoining tenant.
    May 6th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

The principles, as well as the main facts of this case, are few and simple. The whole body of coal mentioned in the leases with Freck & Blackiston, and with Gorrell & Co., the former dated August 18th 1862, the latter January 11th 1868, belonged to the Locust Mountain Coal and Iron Company. The general vein or stratum, thus leased, lay in the Centraba or Centreville basin, and a cross section of it, in shape, resembles very much the letter Y, except that the vein is rounded at the bottom. The northern part, called the “south dip,” was that leased to Freck & Blackiston; the southern side, or “north dip,” to Gorrell & Co. It follows, that the line, dividing these two leases, was the middle line of this basin, or that from which the two sides begin to ascend, called, technically, the synclinal axis. Either or both these parties had the right, under their respective leases, to take out all the coal down to this line. The coal company was the common lessor of both parties, and, hence, the rules governing adjacent mines when owned by different owners, cannot apply to the company plaintiff, for having the power so to do, if it neglected to protect itself by covenant, it cannot plead rules, resulting ex necessitate rei, as against its own grant. It follows that if both parties, in strict accordance with the terms of their several leases', had worked down to the synclinal axis, they would have brought the two mines together, and so produced ' every result now complained of, except such as may have arisen from the criminal negligence of one or both of the lessees. The company, therefore, has no right to complain of the mere conjunction of these workings, for this is but the result of its own grant; and it follows, that unless it can show some wrong done in the manner in which Freck conducted his workings, it has no standing to maintain this suit. Now as there is no question as to the character of Freck’s work, so far as his own lease extended, our inquiry must be limited to a single point, to wit: was the damage complained of the result of Freck’s wilful trespass upon the adjacent lease ? His southern boundary, the synclinal axis, could, by no human possibility, be ascertained until developed by the proper w-orkings. Yet Freck had the right, under his lease, to go to that line, and this necessarily involved the further right of ascertaining this line, by the best means in his power. It is here that the court below committed an error, in treating the case as one between distinct landowners; in such case the doctrine that the lessee must ascertain the dividing line at his peril, would-be correct, and though he passed over it with the best possible intentions, he would nevertheless bé a trespasser. Not so, when the lessor, not only gives his tenant the power, but makes it his duty, to explore and mark a theoretical line upon his own premises. In such case the tenant cannot be treated as a trespasser if, in an honest attempt to ascertain that line, he should chance to pass over it; for the right to do what is necessary in order to find and fix that line is implied in the grant by which it is made a boundary. Freck had a right to ascertain his southern line, and if he did no more than was necessary for this purpose he was not a trespasser. The difficulties, in the accomplishment of this result, become apparent by a glance at the map before us, on which we observe the plottings for the synclinal axis in no less than five different places. It is thus apparent that the true line, the one finally adopted, was only conclusively set-tied after Ereck’s workings had enabled the engineers to ascertain its true location.

But there was not a day, not an hour, during the progress of this work, when this company had not the power to put an end to these operations, on the discovery that the lessee was working beyond the bounds of his lease.

In that lease it had retained full supervisory powers ; the work was done under the constant inspection of its own engineer, and in case of dispute it had the power to settle all matters by arbitration. And if, under such circumstances, being fully and accurately informed of Ereck’s operations, it chose to stand by and permit him to prosecute his researches, according to the best of his judgment, at the same time receiving the products of his labor as so much rent under the lease, by what rule of justice can it now treat him as a trespasser ? If we examine the notice of Mr. Stockett, the plaintiff’s engineer, dated April 21st 1871, when Ereck’s gangway had already been driven south of what afterwards proved to be the true synclinal axis, we find two things worthy of observation. 1. He is notified not that his gangway, but “ a part of the breasts turned on the south side of your east gangway of the second lift on the Mammoth Yein, is beyond the limits of your lease.” 2. That “ the object of the notice is to prevent any infringement on the rights granted to 'the lessees.” Thus we observe that, even as yet, the true position of the dividing line was not discovered, and that the defendant’s workings were not regarded as likely to prove injurious to the rights of the company, and he was warned only to avoid interference with the lease of the adjoining tenants. Then we have Mr. Stockett’s letter of the same date to the president of the company, detailing the conversation he had had with Freck and his mining-boss, Williams; the confidence they expressed that there was yet another south dip between the breasts referred to, and the adjacent lease of Gorreil & Co., and his own opinion that whilst this was possible it>was not probable. Thus the company, by its own officer, was put into possession of every detail, not only of Ereck’s doings, but of his intentions and opinions, and if it trusted him, without remonstrance or caution, to proceed with his experiments in good faith, we cannot see why it should complain of the result.

Again, the defendant ought not to be held liable for damage resulting from the neglect of either the plaintiff or Gorreil & Co. It is manifest, from the facts of this case, as well as of the case of this same plaintiff against the last-named compaliy, as reported in the Leg. Int. of 29th March 1872, that much, if not all, of the damage to the Centraba mines resulted from the intentional acts of the lessees of Hazeldell, in so sloping their gangway as to throw the water into the Ereclc workings. But the plaintiff had the same powers over Gorreil & Co. that it had over Freck & Blackiston, and if it passively permitted the former to do that which proved disastrous to its own property, it cannot cast the burden of its own negligence over .upon the defendant. We see,-from the case above stated, that when it chose to move, there was no want of powers, and that it could then make itself felt to some purpose, not only through the reserved powers of the lease, but also through the strong arm of this court.

Without dwelling upon any of the numerous exceptions, we but suggest, by way of summary, the following principles for the re-trial of this case.

If the crossing of the line of the two leases, by Freck, resulted from an error in judgment in an honest- attempt to develop that line — if the company permitted him to exercise his own judgment concerning this matter, by passively or actively acquiescing in what he did, or if the damage resulted from the direct acts of the lessees of the north dip — the defendant is not responsible for the consequences flowing from any or all of such acts. In such case the plaintiff ought only to recover the difference in the price of the coal which the defendant took from the north dip, and that which came from his own workings, as measured by the prices fixed in the two leases — we believe some ten cents per ton.

Furthermore, it will be proper for the court below to admit all such testimony as may hear upon the manner and character of the defendant’s work in the mines, and theory and intent governing it.

The judgment is reversed, and a venire facias de novo is awarded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Wheeler et al. versus Crawford.
    1. In the absence of a provision in a lease, that the lessor shall repair, it is no defence in an action for the rent, that the demised premises are not in a tenantable condition.
    2. A lessee cannot avail himself of the fact that an estate is held by a trustee under the provisions of a will, which directs him to keep the demised premises in repair, although the lease in terms is made subject to the provisions of said will.
    February 21st 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1878, No. 58.
    Debt by George Crawford, substituted trustee in the place of John Holahan, under the will of Amos Holahan, deceased, against F. M. Wheeler and A. M. Moore, as sureties of one Hall on a lease.
    By the copy of the lease filed it appeared that plaintiff had leased to Hall certain premises for which he was to receive an annual rental of $3500, payable in monthly instalments, and for the payment of which defendants became sureties. The lease was made subject to the provisions of the will of Amos Holahan. In an affidavit of defence Hall averred: “The property in question was leased May 16th 1876, for a term of five years, at an annual rental of $3500, by the above-named plaintiff as trustee, &c., as above, to deponent, subject to the provisions of the will of Amos Holahan, deceased, relating to said property, which are as follows :—
    “ ‘ I, Amos Holahan, of Philadelphia, make, declare and publish this my will and testament, and appoint my brother, John Holahan, executor and also trustee for the purposes hereinafter specified, in the full confidence that he will perform the duties of executor and trustee faithfully and carefully. * * * I give, devise and bequeath my house and lot of ground on the southeast corner Eighth and Zane streets, and also my house and lot of ground, No. 68 Zane street, with their respective appurtenances, to my brother John Holahan, and his heirs and assigns for ever, in trust nevertheless to and for the following uses, intents and purposes, namely : 1st. To keep the said houses in repair, and rented, to collect the rents, to pay taxes, and for repairs, and to pay and distribute the net income thereof, one-half part to my son, Jacob Holahan, half yearly during his life, and the other half part to my daughter, Rachael Holahan, half yearly during her life.’
    “ That since deponent has taken possession of said premises, the ceilings in the upper rooms have fallen, and others are in daily danger of falling, to the imminent 'peril of any one occupying them, and the joists are so insecure as to render the rooms entirely untenantable and unfit for use, and thus deponent is deprived of what profit he might receive as an innkeeper from their occupancy. All of which has repeatedly been made known to plaintiff by deponent, with a demand that the provision of the lease under the will be complied with by the lessor and trustee in keeping the said premises in repair.
    “ Deponent further says that at the time of the execution of said lease and taking possession of said premises, he was not informed, nor had he any means of knowing the dangerous and insecure condition of said property, but said untenantable condition was known to the parties in interest under the trust, and such knowledge withheld from him.
    “ And deponent further saith that at the time and before the execution of the lease, when he read the clause in reference to delivering up possession at the expiration of the term, ‘ in like good order and condition as they now are,’ plaintiff in express terms told deponent he would not be liable for any repairs unless something was broken or destroyed by him; that the clause in the lease was formal, and no liability attached other than reasonable wear and tear in the use of the property.

      “ And deponent further saith that had not there been this clear and distinct agreement concerning repairs, he never would have executed the lease, nor bind himself to pay so exorbitant a rental.
    “All of which he declares, believes and expects to prove on the trial of the cause.”
    The court entered judgment for plaintiff for want of a sufficient affidavit of defence, and defendants took this writ, assigning this entry for error.

      George W. Arundel and Benjamin Harris Brewster, for plaintiffs in error.
    — One of the provisions of the will required the trustee to keep the premises in repair, and he exceeded his powers when he obtained from the lessee a covenant to repair. By the very terms of the will he was bound to keep the premises in a tenantable condition. A covenant on the part of the lessee to repair can mean no more than ordinary repairs, and not permanent, and substantial repairs like the making of a new roof: Long v. Fitzimmons, 1 W. & S. 532; Mattocks v. Cullum, 6 Barr 454.

      George M. Dallas, for defendant in error.
    — The clause in the will relied upon by plaintiffs in error, was not intended to, and does not, inure to the benefit of the trustee’s lessee. The liability of the tenant to repairs is not raised by this record. It is no defence to an action for rent, that the premises are out of repair, in the absence of a provision in the lease that the landlord shall repair, especially where the tenant has, as in this case, had possession and paid rent under the lease for ten months : Crawford v. Wheeler, 4 W. N. C. 369, and cases cited (C. P. 3), viz.: Hitner v. Ege, 11 Harris 305; Long v. Fitzimmons, 1 W. & S. 532; Wien v. Simpson, 2 Phila. 158; Walz v. Rhodes, 1 W. N. C. 49; Lukens v. Hedley, Id. 266; McCloskey v. Wiltbank, Id. 413; Kline v. Jacobs, 18 P. F. Smith 57.
    March 4th 1878,
   The judgment of the Supreme Court was entered,

Per Curiam.

— We discover no error in this case. A tenant must stand upon the terms of his lease, and not upon duties imposed by a will upon a trustee, which are- not made terms or conditions in the lease in his-favor. The question here is not on the powers or duties .of the trustee, but upon performance of the terms of the lease by the tenant; and the words, “subject to the provisions of the will of Amos Holahan, deceased,” do not refer to privileges conceded to the tenant, but to burthens to which he is subjected.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Simons versus Van Ingen et al.

    1. Where a term of years is sold by a sheriff under execution, thfe sale operates and takes effect as an assignment at law, and a purchaser at such sale takes the estate liable to such covenants of the lessee as may have attached to the property demised, and as he assumes these liabilities of the lessee he likewise takes all the interests of the assignor in the thing assigned, -whether in possession or expectancy.
    2. The covenant to insure, in the lease in this case, was not merely personal or collateral, but became annexed to the premises demised, and all its obligations, as well as privileges passed to the purchaser of the term of years at the sheriff’s sale.
    February 21st 1878.
    Before Agnbw, O. J., Sharswood, Merour, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of July Term 1877, No. 80.
    Attachment execution, issued by Van Ingen & Snyder, against Duffield Ashmead, defendant, and Peter C. Hollis, executor of the estate of Sarah H. Atherton, deceased, garnishee, in which George W. Simons was allowed, by ordej. of court, to interplead. A case was stated for the opinion of the court, which in substance was, that Ashmead rented the premises, No. 724 Chestnut street, from the then owner, who is now represented by Hollis; that this lease stipulated: “ The party of the second part further covenants and agrees, that he will invest the sum of two hundred and seventy dollars as deposit mqney, and procure therefor a policy of perpetual insurance for four thousand five hundred dollars, in the name of P. C. Hollis, executor of the estate of S. H. Atherton, deceased, which said insurance is to be held by the party of the first part, and for their exclusive benefit and advantage, in case of loss by fire, with the mutual understanding, however, that said deposit money (of two hundred and seventy dollars), and any increase of the same, as hereinafter provided for, is to be returned to the party of the second part, less a discount of five per centum, either at the expiration of the hereby created term of seven years and six months, upon delivering up possession of the premises to the party of the first part, and in case of an earlier termination of this lease, caused by the total destruction of the building by firethat the term of the lease expired January 1st 1877, and George W. Simons, the tenant under the lease, delivered possession to Hollis, representing the lessors; that the plaintiffs issued an attachment sur judgment, and attached the deposit money mentioned in the above abstract of the lease; that the personal property of Ashmead, the lessee, including the leasehold, was levied on and sold by the sheriff, who returned the writ to court, on March 24th 1870, having levied February 26th 1870; that Simons claims all the rights of the defendant, under the lease, he being the purchaser from the sheriff’s vendee; that the sheriff's sale took place March 8th 1870, and an item in the catalogue was “good-will, lease, signs, &c.,” sold for four hundred dollars, and included in the sheriff’s bill of sale; that in an answer filed by the garnishee, he claimed the deposit money, on account of the’last quarter’s rent on the premises, due January 1st 1877 ; that Simons was allowed to interplead, by the court, on the 20th of January 1877. If the money was to go to the plaintiffs, then judgment was to be entered for them; if not, for the garnishee. The court entered judgment for the plaintiffs, and Simons, who took this writ, assigned this entry for error.

      Robert H. Hinckley, Jr., for plaintiff in error.
    — The lease by its terms covers assignees, and Simons was an assignee in law, as he held under a sheriff’s sale: Taylor’s Landlord and Tenant 427, 429. All the interest of the lessor in the term passed with the assignment, and as this insurance fund was connected and continued with his interest in the term, it passed to his assignee; Taylor’s Landlord and Tenant, § 437 ; Thompson v. Rose, 8 Cowden 266. The covenant to insure was a covenant to support the thing demised, and was not, therefore, a mere personal covenant, but one running with the land: Pakenham’s Case, Rawle on Covenants for Title 314.

      J. Buross O’Bryan, for defendants in error.
    — The covenant was a mere personal undertaking, and did not run with the land: Vernon v. Smith, 5 B. & Ald., 7 E. C. L. R. 5.
    If the lessee makes a collateral covenant, his assignee is not bound to perform it, and the converse is true : Coffin v. Talman, 4 Seld. 465; Taylor’s Land, and Ten., § 444. In order that covenants run with the land, they must affect the nature, quality .or value of the property demised, or must affect the mode of enjoyment. If they do not, they are mere personal covenants, and the assignee, though named, is not affected by them: Taylor L. & T., §§ 260, 261; Norman v. Wells, 17 Wend. 136; Smith L. & T. 290, 291.
    May 6th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

This case stated is not drawn with commendable precision. The paper-book does not state clearly against whom the judgment was entered. Inferentially it was against the garnishee, yet by order • of court the plaintiff in error was permitted to interplead, and he has taken the writ of error. As no objection was taken to his position on the record we will not treat it as fatally defective. If either the garnishee or the plaintiff in error is entitled to the money in question, the court erred in entering judgment in favor of the defendants in error.

Ashmead leased the store and-premises from the heirs of Mrs. Atherton, for seven and a half years, to be computed from the 1st of July 1869. He covenanted for himself, his executors, administrators and assignees, inter alia, to pay to the lessors a sum specified, in quarterly payments during said term; also to procure and maintain during the whole of said term a perpetual insurance on the building for $4500. To procure this insurance he was to place the sum of $270 as deposit money, that being the sum assumed to be necessary to secure the insurance. It was agreed, however, that at the expiration of the term by its own limitation, or by a ■total destruction of the building by fire prior to that time, the $270, less five per cent., should be returned to the lessee.

All the leasehold interest of' Ashmead in the premises was sold at sheriff’s sale on the 8th of March 1870. The purchaser transferred all his interest thus acquired to the plaintiff in error. He retained it until the expiration of the term on the 1st of January 1877, and then delivered possession to the lessors.

The defendants in error claim this fund of $270, less 5 per cent., by virtue of an attachment issued against the representative of the lessors as garnishee of Ashmead, on the 26th of May 1870. Their right to the money depends on the effect of the sheriff’s sale made previous to the issuing of the attachment.

It is an elementary principle of law that a lessee, during his occupation, holds both by privity of estate and of contract. His privity of estate depends upon, and exists with, the continuance of his term. By an assignment of the term his privity of estate is transferred to his assignee. It, however, remains annexed to the estate, so that the assignee holds in privity of estate with the original landlord. Taylor’s Land, and Ten., sec. 436. An assignment may be made either by the voluntary act of the party or by operation of law. When a term of years is sold by a sheriff under execution, the sale operates and takes effect as an assignment in law. A purchaser at such sale takes the estate liable to such covenants of the lessee as may have attached to the property demised. As he assumes these liabilities of the lessee he takes all the interest of the assignor in the thing assigned, whether in possession or expectancy: Id., sec. 437. He is obliged to perform all the covenants of his lessor which are annexed to the estate, so long as he retains possession. By accepting possession of the property, although the assignee may not be named in the original lease, yet he subjects himself to all the covenants that run with the land. He must fulfil them and is entitled to all the rights and privileges flowing therefrom as fully as the lessee held the same.

Hence it was held in Thompson v. Rose, 8 Cowen 266, that an assignment passed to the assignee a right to compensation, under the lessor’s covenant to pay for buildings and improvements which might be erected on the premises demised.

By the terms of this lease these $270 represented a portion of the obligation which the lessee assumed as necessary for his enjoyment of the premises for the stipulated term. The obligation attached to the whole term and was inseparable from it. The covenant was not merely personal and collateral, but became annexed to the property demised. It directly affected the enjoyment of the term. This case, however, does not rest on the implied obligation of the assignee. He was bound by the express language of the lease. The lessee’s right to this money at the expiration of the term, if there had been no sheriff’s sale, would have depended upon the fulfilment of his other covenants in the lease. The quarter’s rent last due on the lease has not been paid. The representative of the lessors claims the right to retain this money to apply on that rent, as against both plaintiff and defendant here. We think by virtue of the sheriff’s sale the entire interest of the lessee passed to the purchaser. Nothing present or prospective remained due to him from the lessors, nor out of this insurance fund.

The court, therefore, erred in entering judgment in favor of the attaching creditor, and the judgment must be reversed.

Judgment reversed, and judgment in favor of the plaintiff in error on the case stated.


author: Mr. Justice Sharswood

text:
    Knecht versus Freyman.
    In an action to recover damages for breach of warranty of a horse, the plaintiff laid the damages in his narr. at $1000. The evidence showed that the price paid for the horse was $150, and that subsequently in his diseased condition he was worth from $80 to $75. The verdict was for plaintiff for $123.02. On the ground that this sum was made up of a principal of $99.57, and interest from the time of the alleged breach of contract, the defendant took a rule to show cause why judgment should not be entered upon the verdict without costs, for the reason that plaintiff, as required by the Act of March 20th 1810, had not filed an affidavit that he believed the damages exceeded $100, and was not therefore entitled to costs: Held, reversing the court below, that he was entitled to costs.
    March 4th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Lehigh county: Of January Term 1878, No. 21.
    Assumpsit, by Stephen Knecht, against John Freyman, to recover damages for breach of warranty of a horse. Defendant pleaded the general issue. The facts are sufficiently stated in the foregoing syllabus and in the opinion of this court.

      Butz y Schwartz and John B. Stiles, for plaintiff in error.

      Edwin Albright and Evan Ilolben, for defendant in error.

      March 18th 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

The Act of March 20th 1810, certainly meant to provide, that any plaintiff who should sue in court for-any debt or debts, demand or demands, made cognisable before a justice, should be deprived of costs, unless he filed an affidavit that he did truly believe that the debt due or damages sustained exceeded the sum of one hundred dollars. If the verdict of the jury is for less than one hundred dollars, the loss of costs must follow, unless indeed it appears that the amount was reduced by set-off or equitable defence. Here the verdict of the jury was for more than one hundred dollars. The learned judge below, however, thought that as it appeared that interest added to a principal of $99.57, from the day of the commencement of the suit to the day of the verdict, produced just the amount of the verdict, it was clear that the plaintiff’s demand was within the jurisdiction of a justice. In the case of an action for a sum certain-^-as on a promissory note, bond, or book account— this may be right. Collins v. Collins; 1 Wright 387, was a question of the jurisdiction of a justice, raised upon an appeal, and there it was said by Woodward, J., “ The sum demanded” is the test of jurisdiction. To get at that, wo look at the transcript of the justice and the narr., on the appeal, and the practice is to receive parol testimony, also, and from all these sources to determine the jurisdiction by the matter of fact.” See, also, Funk v. Ely, 2 P. F. Smith 442. More analogous to our question is Haines v. Moorehead, 2 Barr 65, in which it was held, that a plaintiff who appealed from an award in his favor and recovered more than the sum awarded to him, but less than such amount with interest added for the intermediate term, was entitled to full costs. “ The only practical criterion,” says the court, “is. the difference of amount; and we cannot enter into an examination of the cause by which it was produced.” So, Barker v. McCreary, 16 P. F. Smith 162, where a plaintiff appealed from a judgment of a justice in his favor, for $46.62, and two years after obtained a verdict for $50, it was decided that he was entitled to costs. See, also, McMaster v. Rupp, 10 Harris 298. But the case now before us was an action to recover damages for breach of the warranty of a horse. The measure, in such cases, is well settled to be the difference between what would have been the market value of the animal as warranted and its market value in .its actual condition. The jury may add interest from the breach, but they are not bound to do so. It would lead to embarrassing inquiries to ascertain what they had done. We think it better, in such cases, to adhere to the plain, words of the statute.

Judgment reversed, and now judgment for plaintiff below, with costs.


author: Chief Justice Agnew

text:
    Perot’s Appeal.
    1. The 7th section of the 5th article of the constitution provides, that the prothonotary of the courts of Common Pleas’ of Philadelphia county shall receive a fixed salary; to be determined by law and paid by said county, and in the next clause provides, that the fees collected in such office shall be paid into the county treasury: Held, that these clauses should be construed together and interpreted to mean that until the legislature shall fix the salary of the prothonotary, the fees of his office are not to be paid into the county treasury.
    2. The place of the clause as to fees, its context and connection, and the reason, intent and spirit of the provision, all unite in condemning as illogical and unreasonable the view that this clause must be dislocated from its
    Íilaee and connection, and treated as an independent and absolute provision, or the immediate payment of the fees of the office into the county treasury, and this conclusion derives force from its relation to other parts of the constitution and schedule.
    3. The 18th section of the Act of March 21st 1876, relative to the salaries of county officers, which postpones the operation of the act until the expiration of the terms of the incumbents, is'constitutional.
    February 21st 1878.
    Before Askew, C. J., Sharswood, Mercur, Gordon, Paxsok and Trunkey, JJ. Woodward, J., absent.
    Appeal from the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1877, No. 208. In equity.
    This was the appeal of T. Morris Perot and others, citizens and taxpayers of the city of Philadelphia, from the decree of the court refusing an injunction against William B. Mann, prothonotary of the Courts of Common Pleas of Philadelphia county.
    The bill alleged in substance: That in the 7th section of the 5th article of the constitution of Pennsylvania, which went into effect January 1st 1874, it is provided as follows, viz.: “For Philadelphia there shall be one prothonotary’s office and one prothonotary for all of said courts, to be appointed by the judges of said courts, and to hold office for three years, subject to removal by a majority of the said judges. The said prothonotary shall appoint such assistants as may be necessary and authorized by said courts, and he and his assistants shall receive fixed salaries, to be determined by law and paid by said county. All fees collected in said office, except such as may be by law due to the Commonwealth, shall be paid by the prothonotary into the county treasury.” That by the 23d section of the schedule to said constitution, it is provided that the prothonotary of the Courts of Common Pleas of Philadelphia should be first appointed by the judges on the first Monday of December 1875 and that on that day the said judges appointed the defendant, William B. Mann, prothonotary, who thereupon entered upon the duties of said office.
    . That on the 21st of March 1876, an act was passed entitled “An Act to carry into effect section 5 of article 14 of the constitution; relative to the salaries of county officers, and the payment of fees received by them into the state or county treasury in counties containing over one hundred and fifty thousand inhabitants,” by which act it was provided that the annual salary of the prothonotary should be $10,000. That-by the 18th section of said act it was provided that the same should take effect on the expiration of the term of the present incumbents of county offices. The bill averred, however, that this last provision was of no avail to relieve the said prothoi\otary from paying the fees received into the county treasury, but that nevertheless he had neglected and refused to pay over the fees collected, and had retained and appropriated the same to his own use.
    The bill prayed that the said Willian B. Mann might be restrained from further appropriating said fees to his own use, and required to pay the same into the city treasury ; for an account of fees previously collected, and such other relief as might be necessary in the premises.
    The defendant demurred to the bill, assigning for cause that it did not show he was retaining the fees without authority of law, and that the Act of March 2lst 1876 did not affect the defendant, because he was an incumbent of a county office, and the act did not apply until the expiration of his term.
    The court refused the injunction and entered judgment for the defendant; opinions being filed by Ludlow, P. J., and Yerkes, J. From this decree this appeal was taken.

      T. 3. Speakman and 3. Spencer' Miller, for appellants.
    — The direction of the constitution that the fees shall be paid into the county treasury is peremptory and unconditional in its terms, and no legislation was needed to carry it into effect. But if it was needed the fees certainly ceased when the salary was provided.
    [Chief Justice Agnew. — Do you contend that prior Acts of Assembly were ipso facto repealed by the adoption of the new constitution ?]
    We contend that no legislation was required. It was simply necessary to carry out the direction of the constitution, which had fixed a limit to the time when fees should be paid. We maintain that it was not competent for the legislature to strike out that limit and fix another. The legislature so fixed the salaries; anything else it did was work of supererogation and it therein transcended its power. The legislature not only neglects to obey the constitution, but it may repeal the law. Will not the penalty be then that the constitutional provision must fall ?

      Francis 3. Brewster, F. Carroll Brewster and George W. Biddle, for appellee, were not called on.

      February 25th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

The question in this case is a very plain and simple one. What is the interpretation to be given to the penultimate clause of the seventh section of the fifth article of the constitution of 1873, relating to the pay of the prothonotaries ? The whole section reads thus: “ For Philadelphia, there shall be one prothonotary’s office, and one prothonotary for all said courts, to' be appointed by the judges of said courts, and to hold office for three years, subject to removal by a majority of the said judges; the said prothonotary shall appoint such assistants as may be necessary and authorized by said courts; and he and his assistants shall receive fixed salaries, to be determined by law and paid by said county; all fees collected in said office, except -such as may be by law due to the Commonwealth, shall be paid by the prothonotary into the county treasury. Each court shall have its separate dqckets, except the judgment docket, which shall contain the judgments and liens of all the said courts, as is or may be directed by law.” The punctuation I have compared with three copies of the constitution, the most accurate known to me, and it will be seen that the penultimate clause as to fees is a part of the preceding sentence, and closes with a period. The question is, is this clause to be viewed as a distinct, separate and independent provision, standing alone in its operation, and not affected by the preceding part of the same sentence? To state the proposition is to discover its fallacy. Clearly its interpretation is to be gathered from its place, its preceding context, its intent, and its relation to other parts of the constitution. It follows immediately in close connection, and dislocated by no period, the clause that “ he (the prothonotary) and his assistants shall receive fixed salaries, to be determined by law and paid by the said county.” Thus the constitution itself refers the matter of the fixed salary to the legislature. As a consequence, the second section of the schedule is operative, for until the legislature fix the salary, the law of compensation, to wit, his right to the legal fees, continues; for, until that event, neither the law nor his right is' inconsistent with the terms of the constitution. This second section reads thus: “All laws in force in this Commonwealth at the time of the adoption of this constitution, not inconsistent therewith, and all rights, actions, prosecutions and contracts shall continue, as if this constitution had not been adopted.” This section has been considered heretofore. See Lehigh Iron Co. Lower Macungie Township, 31 P. F. Smith 482, and Watson v. C. & D. River Railroad Co., 2 Norris 254. Thus both the law and the right to the fees remain. Another significant fact is found in the context and the clause itself. The salary, when fixed, must be paid by the county; so the fees are to be paid t& the county. The intent is manifest. The schedule, which is the transition way from the old to the new form of government, provides for the status quo until the laws necessary to give effect to the new, shall be passed by'the legislature; and, to prevent escape, enjoins the duty of passing such laws, in the thirty-first section, thus: “ The General Assembly, at its first session, or as soon as may be, after the adoption of this constitution, shall pass such laws as may be necessary to carry the same into full force and effect.” This duty, demanded by the voice of the people themselves, is also enforced by the oath of office. The thought of the section is therefore manifest. Legislation is provided for to fix the salaries, and then the county must pay them; until that time, the schedule will maintain the status quo ; and then, as the consideration for the payment of the salaries by the county, the fees of office shall be paid to the county. Thus the two clauses, having their natural relation in the -same sentence, harmonize with each other. On the other hand, if we disjoint the sentence, insert a period where there is none, and treat the clause as to the fees as independent, absolute and immediate, so as to carry the fees of office into the treasury at once, we do the public, as well as the officer, a great wrong. Then we have an office, created by the constitution, dependent on the mere voluntary service of some one who will accept it without fee or reward, until the salary be fixed by a law, become responsible to all his assistants for their compensation, incur the risks of, and liability for, their errors, and give a bond, with sureties in a large sum, to be answerable for the performance of the duties and the mishaps of the office. Did the convention intend that the public should be imperilled by the want of officers, or the officers to be unpaid for services, until the legislature might act ? Clearly not; the consequences are too grave. Hence they coupled the two clauses, that they might run together and have a plain meaning, intending to provide for the meanwhile in the schedule, by preserving the status quo until the legislature should perform the duty enjoined in the thirty-first section of the schedule.

But it is argued that the legislature may fail to pass a law fixing the salaries, and thus suffer the evil to continue, which the provision for payment of fees into the county treasury was intended to remedy. True, the time may be delayed, but this was a fact which was in view when the convention committed the subject to the legislature ; and the argument supposes that the members of that body are void of conscience and willing to violate their oaths of office. The constitution cannot be administered on any such supposition. We are bound to concede honesty of purpose to them, as we would ask it to be awarded to ourselves. But the supposition is contradicted by the fact, for we find that the Assembly passed the requisite law on the 31st day of March 1876, Pamph. L. 13. Now, when we remember the immense number of legislative acts necessary to adjust the affairs of the state to the terms of the new constitution, we cannot suppose any violation of duty m tins respect. In this connection complaint is made of the eighteenth section, which postpones the operation of the act until the terms of the then incumbents of county offices should expire. We must believe the legislature had good reasons for this, some of which we can easily understand. The expiration of existing terms, and the incoming of new officers, would enable existing laws to have their well-known effect, and their accounts with the state could be easily adjusted. But break off in the middle of a term, and the old and the new laws must have a legal and proper adjustment, both as to the accounts for fees and the pro rata of salaries. This would require some legislation, and even then complications might arise, with their offspring of litigations. But with the expiration of the term, the old law would expire, and with the beginning of the new term, the new system would arise, and the old and new would be harmonized.

It is also said the 18th section is unconstitutional. But this is answered by our interpretation of the clause as to fees; for if they are not to go into the county treasury until the salary is fixed, the law and the constitution are in harmony. They would be in disorder only, if we give the clause an immediate, independent and absolute interpretation.

The 29th section of the schedule, as to the compensation of county officers in office at the adoption of the constitution, has no relation to the case before us. Mr. Mann has been since appointed, and his ease is necessarily governed by the section under which he was appointed — 7th section, 5th article.

So the 5th section of the 14th article, relating to county officers, does not touch this case. It is the general provision for the compensation of county officers, while the case before us comes specially under the 7th section of the 5th article, already noticed. But the 5th section of the 14th article is in pari materia, and confirms conclusively the interpretation we have given to the 7th section of the 5th article. Thus it says: “ The compensation of county officers shall he regulated hy law, and all county officers who are, or may be salaried, shall pay all fees, which they may be authorized to receive, into the treasury of the county or state, as may be directed by law. In counties containing over 150,000 inhabitants, all county officers shall be paid by salary, and the salary of any such officer and his clerks, heretofore paid by fees, shall not exceed the aggregate amount of fees earned during his term and collected by or for him.” Thus the former part of the section so connects the salary arid the fees, as to show that the regulation of the salary must precede the payment of the fees into the toeasury. The latter part makes payment by salary compulsory' in counties having a population over 150,000. Upon the census of 1870, this would. apply to Allegheny, Luzerne and Philadelphia, and was approximated by Lancaster and Schuylkill.

Thus, a full consideration of section 7th, article 5th of the new constitution, leads to a clear result. The place of the clause as to fees, its context and connection, and the reason, intent and spirit of the provision, all unite in condemning, as illogical and unreasonable, the view that this clause must be dislocated from its place and connection, and treated as an independent and absolute provision for the immediate payment of the fees of the office into the county treasury; and this conclusion derives force from its relation to other parts of the constitution and the schedule.

Decree affirmed, with costs to be paid by the - appellants, and the bill of the plaintiffs finally dismissed.


text:
    Lewis versus Jeffries, Assignee of Bank of Brandywine. Lewis’s Appeal.
    The Bank of Brandywine, incorporated by the legislature of the state, prior to the adoption of the new constitution, was authorized by its charter to borrow money by mortgage of its real estate. It executed a mortgage upon its bank building, to secure a loan, and some time thereafter was compelled by its embarassments to make an assignment for the benefit of its creditors. Proceedings were instituted to foreclose the mortgage, when the assignee applied to the court for an injunction to restrain the collection of the debt, on the ground that the mortgage was unlawfully created, inasmuch as the bank had'not complied with the provisions of sect. 7, art. 16 of the constitution, prescribing the mode in which the indebtedness of corporations is to be incurred, and the Act of April 18th 1874 enacted to carry the section into effect. The court below granted a preliminary injunction: Held, that the injunction should not have been granted.
    February 25th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Appeal from the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1876, No. 69. Inequity.
    This appeal was taken by Charles S. Lewis, from the decree of the court, granting an injunction to restrain said Lewis from the collection of a bond and mortgage upon the bank buildings of the Bank of Brandywine. It appeared from the bill which was filed by the assignee of said bank, and from the affidavits and counter affidavits filed in the case, that the Bank of Brandywine, which was located in West Chester, Pennsylvania, was incorporated by the Act of March 15th 1871, Pamph. L. 64. Among other provisions of its charter are the following:—
    “ They (the corporators) are hereby made capable to have, purchase, receive, possess, enjoy, and retain, to them, and their successors, such real estate as may be necessary for the transaction of their business, together with such as may be held by said company as security for debts or in satisfaction thereof, and the same to grant, mortgage or demise.”
    “ That it shall be lawful for said company to receive deposits of money from individuals and corporations, and to allow such interest for money so received as may be agreed upon between said company and said depositors * * * and to issue certificates for said deposits.”
    “ It shall be lawful for said company to borrow money, but not in excess of its capital stock subscribed, and to secure the same by mortgage on its real and personal property, or pledge of stocks or bonds, or otherwise, and on such time as the majority of the directors may deem expedient.”
    “ That the capital stock of said bafik shall be $100,000 * * * with the privilege of increasing the same by a vote of the directors to the amount not exceeding $300,000.”
    “ That the affairs of said company shall be conducted by a president and six directors, to be chosen as hereafter directed and provided for.”
    On the 25th of June 1874, the bank delivered to Robert S. Paschal a bond and mortgage upon its bank building, to secure a loan of $15,000. This bond and mortgage were purchased by the defendant, Lewis, on the 2d of July 1874, who believed it a safe and permanent investment, and who received from the bank, at the same time, a declaration that it had no set-off. . The mortgage was made in pursuance of a resolution of a majority of the board of directors of the bank, and it subsequently had the approval of a majority of the stockholders at the first annual meeting thereafter, in May 1875. One of the directors who passed the resolution to create the mortgage was Charles Dingee, the president of the Dingee and Conard Company, and it appeared the money to be raised thereon was to be applied to the discharge of a mortgage upon the real estate of said company, a foreclosure of which was threatened, and which it was found would endanger a large indebtedness of the company which the bank held. It .appeared, however, that a first mortgage upon the real estate of the company was held by the bank, and the aggregate indebtedness of the latter was not therefore increased by the creation of the mortgage in suit. Two semi-annual payments of interest were made to Mr. Lewis, and until the filing of this bill no objection whatever was made to the validity of the mortgage. The bank soon thereafter became embarrassed, and made an assignment to the complainant for the benefit of creditors on the 22d of December 1875. The assignee sold the bank building for $19,700, and alleging that by reason of this mortgage a cloud was cast upon the title, and he was prevented from making a marketable title to the property, he prayed in the bill filed: 1. that the said creation of the indebtedness of $15,000 be declared unlawful. 2. That the mortgage be declared void and delivered up to be cancelled. 3. That defendant be restrained by injunction from proceeding to collect said debt upon the judgment or upon the mortgage.
    The court, Einletter, J., continued the special injunction previously granted, and, in opinion, said:—
    “ The Bank of Brandywine was chartered March 15th 1871, with the right to borrow money, ‘but not in excess of its capital.’ On the 25th day of June, A. D. 1874, it mortgaged its banking property, for the sum of $15,000, to R. S. Paschall, who assigned to Charles S. Lewis, on the 30th of June, with a declaration of no set-off.
    “ On the 22d day of December 1875, the bank made an assignment to William W. Jeffries, who obtained a preliminary injunction, enjoining the said Charles S. Lewis from proceeding to the collection of the said mortgage, in any manner whatsoever.
    “ The ground upon which the complaint is based is, that ‘ the bond 'and mortgage were made without any compliance, or attempted compliance, with the provisions of the Act of Assembly of April 18th 1874, by virtue of which alone could such indebtedness have been lawfully created.’
    “ Section 7, article 16, of the constitution, is as follows: ‘ The stock and indebtedness of corporations shall not be increased, except in pursuance of general law, nor without the consent of the persons holding the larger amount, in value, of the stock, first obtained at a meeting to be held after sixty days’ notice, given in pursuance of law.’
    “ A general Act of Assembly, to carry into effect this constitutional provision, approved April 18th 1874, is as follows: ‘ The capital stock or indebtedness of any corporation may be increased, from time to time, by the consent of the persons, or bodies corporate, holding the larger amount in value of the stock of such company; provided, that no corporation shall increase the amount of its indebtedness beyond the .amount of its capital stock subscribed, until the amount of its capital stock subscribed shall be fully paid in.’
    “ It is contended by the defendant, that neither the constitution nor the Act of Assembly has application, because the bank, by its charter, was authorized to borrow money to the extent of its capital, and this loan was within that limit.
    “ That the increase of indebtedness which is prohibited, means an increase beyond that allowed by laws existing at the time of the adoption of the constitution, and of the enactment of the general law.
    “ That ‘even though the section means what complainants contend for, it was not intended to be applied to rights existing under the laws then in force.’ * * * By the schedule to the constitution, section 2, it is provided, that ‘all rights, actions and contracts, shall continue as if the constitution had not been adopted.’
    “ It is further contended that the stockholders, with knowledge ! of the mortgage, did not object, but acquiesced therein, and ' thereby ratified it.
    “ The language of the constitution is plain, direct and positive. It is an absolute prohibition, without qualification of any kind. 4 The stock and indebtedness of corporations shall not be increased, except,’ &c. By what authority, or by what rule of interpretation, shall we interpolate the words ‘beyond the amount now allowed by law ?’
    “The proceedings of the convention do not favor the position of the defendants. That the convention did not look with favor upon the legislation which, about this time, with profuse liberality, flowed out to all. sorts of corporations, may be seen in the section, as it was originally reported to the convention. It closes thus: ‘Laws heretofore enacted, by which an increase of stock or bonds, or other indebtedness of any corporation, has been authorized, are hereby declared void, except so far as may be necessary to maintain the obligations of contracts.’
    “ It is not likely that a section born of this spirit would leave this very increase of indebtedness free from all restrictions and restraint. If there had been any doubt as to the application of the pi’ohibition of this section of the constitution, it might be expected to be found and settled in the legislation which was to carry out the constitutional provision. The language of the act is as positive and general as the constitution. It affords no inference that any such doubt existed in the minds of the legislators. The manifest object of the constitution and the act is, that owners of corporate property shall have some supervision over that property and over their agents. We do not see how the second section of the schedule helps the argument of the defendant. What right is interfered with by giving the stockholders an opportunity to pass upon the question of mortgaging his property ? What right is obstructed in staying for a time the inundation of debt ? What vested right has the agent to endanger the property of the principal without his consent ? If, however, this is no answer, a complete one may be found in the fact, that the legislature, in the charter which created the bank, reserved the right to alter or rescind any of its provisions. The Act of April 18th 1874 is the exercise of that right. The directors of the bank made the mortgage against the prohibition of the constitution and the Act of Assembly. This was not merely ultra vires, it was unlawful, and therefore void, and could not be ratified: Fowler v. Scully, 22 P. F. Smith 456. Are bonds and mortgages within the term ‘indebtedness.’ There surely cannot be higher or more dangerous debts, as applied to corporations. When it is considered that chattel mortgages may be so gen erally applied, it becomes evident that mortgages of all kinds are the very debts against which the stockholder might find his only protection, in the law which requires his consent. A mortgage upon the place of business and machinery of a manufacturing, printing, or publishing company; or upon the real estate and rolling stock of a steam or street railway, might be the surest and swiftest means of destruction. It is not necessary for us to refine upon the wórd ‘indebtedness,’ or to enlarge or restrict its general meaning. If, as has been argued by the defendant, a strict and literal reading of the constitution and’ act would prevent the receipt of deposits, and compel a cash business in all cases, we will wait until the exigencies call upon us to act. The present case involves no such questions. We now say only, that a bond and mortgage are within the meaning and intention of the law. This case furnishes a fitting example of the evil which was intended to be guarded against by the constitution. Three directors create a debt, not to meet an emergency of the business of the bank, but to lend the proceeds to a corporation, the president of which is one of the three directors. From such financiering, what but insolvency can result ?
    “We have followed the plain and obvious meaning of the constitution and law. In this we think we have also obeyed the spirit and object. If it be necessary in any event to enlarge or restrict this prohibition, it can be done with authority by a higher tribunal. We would encourage the idea which the constitution seems to suggest, that stockholders are the real owners of corporate property, and that managers and directors are but their trusted agents. Injunction continued.”
    From this decree the defendant took this appeal.

      Edward S. Dixon and John Gr. Johnson, for appellants.
    — The debates of the constitutional convention show clearly that the increase of indebtedness contemplated was one that could not be made except by the allowance of the legislature; one not within the warrant of the charter. It was corporate indebtedness that was meant, such as involved a pledge of the franchises and required express legislative sanction. There is no intention disclosed to prevent corporations from incurring such obligations as are incidental to their-existence and authorized by their charters. The section was not designed to prevent the creation of debts within the limit fixed by the Charter, but forbid their expansion beyond the limit: G-reen’s Brice’s “Ultra Vires” 66; Philadelphia and Sunbury Railroad Co. v. Lewis, 9 Casey 37. The construction contended for would make it impossible for corporations to enter into any obligation by which a pecuniary obligation was incurred. The inevitable result would be that every corporation would stop business, for every act done by it incurs a pecuniary liability.
    [Chief Justice Agnew. — The true distinction perhaps is between the ordinary and extraordinury business of the bank.]
    How are you to determine what is ordinary and extraordinary ? The power to create this mortgage was a charter provision, and upon what theory can the exercise of the power he deemed extraordinary ? Further, we contend that the section was not intended to apply to corporations in existence at the time of the adoption of the constitution: Hays v. Commonwealth, 1 Norris 518; Ahl v. Rhoads, 3 Id. 319.

      George Tucker BisyTiam and Wayne Mac Veagh, for appellee.—
    If we assent to the argument of the appellant there is no power in the legislature to direct that the trustees of trust property when they deal with it shall consult with the owners. It certainly retains control over corporations so long as it does not interfere with charter rights, and in 1857 the power to alter and amend charter privileges was resumed in so far as it did not do injustice to the corporators. But our contention here is not for the change of any charter rights, but simply for the power to control and regulate, and to declare that the owners must be consulted before an increase of indebtedness can be incurred.
    [Agnew, C. J. — Banks increase their business daily by deposits. Suppose a mortgage had been given for deposits.]
    They would clearly be within the powers of the bank. Indebtedness within the meaning of the constitution is indebtedness of a permanent character, and not that incurred in the ordinary conduct of business. Receiving deposits is undoubtedly such ordinary business.
    [Mercur, J. — Suppose instead of a mortgage the bank should give a certificate of deposit.]
    All that is necessary to conduct the current business can be done, but there can be no contraction of indebtedness, qua indebtedness, and which is not the usual, ordinary business of the bank. For example, the president of a railroad may run the road and contract debts to do so,'but he cannot contract a permanent loan without consulting the stockholders.
    [Agnew, C. J. — Where power is given to directors to do certain acts must stockholders be consulted ?]
    There is not only a constitutional provision requiring it, but the statutory mode is pointed out in the Act of 1874. The constitutional convention simply said that in making any increase of their indebtedness, corporations should consult their stockholders, and we believe and contend that they had the power to make this regulation.
    [Sharswood, J. — Suppose the charter authorizes $300,000 of stock and only $200,000 are subscribed. If the corporation wants to increase its stock to the amount of the difference, ca.n it not do so?]
    We insist that the stockholders must be consulted.
    [Agnew, C. J. — You contend that in depriving the directors of certain power and conferring it upon the stockholders there is no impairment of any right of stockholders ?]
    Exactly. You cannot impair substantial rights or do injustice to stockholders. The statute neither enlarges nor diminishes any corporate right; it simply provides a method by which the action of corporate agents is to be controlled. The object is to guard not impair corporate privileges. .
    We further contend that so far as the regulation of corporations is concerned the constitution does apply to existing corporations. This case brings us face to face with the question as to what control is reserved to the people over existing corporations. Neither the points, decided nor the reasoning in Hays v. Commonwealth, supra, and Ahl v. Rhoads, supra, Avarrant the general proposition that no corporation which existed prior to the adoption of the constitution is affected by any of the provisions contained in the constitution and the Act of 1874. The first case assumed to alter a vested and valuable right of a corporator, and in the latter there was no increase of indebtedness, but simply an exchange of securities.
    March 4th 1878,
   The judgment of the Supreme Court was entered

Per Curiam.

— It is ordered that the special injunction in this case be dissolved, and that the record be remitted for further proceedings. Costs to abide the final decree.

Trunkey, J., dissents.


author: Mr. Justice Paxson

text:
    Wood’s and Martin’s Appeal. McCloskey’s Estate.
    M. and W., who were executors and trustees under the will of McO., in their account charged five per cent, for the collection of rents, alleging that there were thirty-six houses belonging to the estate, and that accountants hah Pa^ sa^ percentage for collecting the rents. They claimed, in addiyonj gve per oeny commissions as executors. W. was a real estate agent, whose principal business was to collect rents, and he claimed to act as the agent, and received the percentage therefor in that capacity. The court below disallowed the claim for collecting the rents and increased the commissions of the executors to six per cent. Held, that in the absence of evidence of peculiar difficulty in the collection of the rents, this allowance was sufficient.
    February 26th 1878.
    Before Agnew, C. J., Sharsayood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1876, No. 30.9.
    Appeal of T. Abbott Wood and William H. Martin, surviving executors and trustees under the will of Michael McOloskey, deCeased, from the decree of the court dismissing the exceptions of said executors to the adjudication of their second account.
    McOloskey died in 1860, and by his will gave his property to his executors in trust to pay the income to his wife, Ellen McOloskey, during the term of her life, and after her death to his daughter, Catharine Mansfield, for her life, then in equal shares to the testator’s grandchildren, until the youngest grandchild attained the age of twenty-one years, when the estate should be divided among them. The widow, Wood and Martin were named in the will as executors and trustees. The widow died in August 1869.
    The second account of the executors came before the Orphans’ Court for adjudication on the 26th of April 1876, and was audited by Dwight, J. In this account the accountants had charged themselves, inter alia, with the rents collected from thirty-six houses, payments of which were made monthly, from September 1st 1869 to March 1st 1875, aggregating $39,837.89. The accountants claimed credits and allowances for the cost of collecting the rents, at the rate of five per cent, on the collections, and which aggregated in the five years $1998.67. Martin was a member of the bar and Wood a collection agent, in the habit of collecting rents, and who had actually collected them in this case. They also claimed an allowance of five per cent, commissions as executors and trustees. The court below disallowed the claim of credit for the cost of collecting the rents, and in lieu thereof increased the accountants’ commissions as executors and trustees from five to six per cent, on the gross amount of the rents, and surcharged them with the difference of $1593.34. This adjudication in the court below was one of the grounds of appeal.
    The other ground of appeal was that the balance in hand of $4101.25, shown by the account, and which was of the corpus of the estate, was erroneously awarded by the court below to Catharine Mansfield, as income.
    It appeared at the foot of the account, in the enumeration of the corpus of the estate, that said balance was composed as follows: — •
    Cash in the Beneficial Saving Fund $2573.96
    “ “ Western Saving Fund 1368.07
    “ “ Farmers’ and Mechanics’ Bank 159.43
    $4101.46
    The testator had provided, in the codicil to his will, as follows: “It is my will and I order that my executors, as soon as possible consistent with the payment of the several legacies in my .said will contained, set apart and deposit in some good saving fund in the city of Philadelphia the sum of $3000, for the express purpose of repairing any damages that may occur'to my real estate from fire or other casualty, to be so kept and used until the division of my estate as in my said will directed.”
    The said balance on hand of $4101.46, of which $3000 came from the corpus of the estate, the remainder being accrued interest thereon, was held by the accountants under the clause above quoted.
    The executors filed exceptions to this adjudication, which were dismissed, when they took this appeal, alleging that the court erred in the surcharge of $1593.54, and in awarding the balance, $4101.46, to the life tenant. The evidence was not brought up with the record, and a portion of the foregoing facts were extracted from the auditor’s report and the opinion of the court below.

      W. S. Price, for appellants.
    — It was erroneous to award the balance to the life tenant. The -fund deposited in the savings fund was to be kept until the division of the estate. In support of the contention that five per cent, should be allowed for collecting the rents, and a fair commission for administering the trusts, the following cases were cited: Rhodes’s Estate, 2 W. N. C. 587; Heckert’s Appeal, 12 Harris 482; Eshleman’s Appeal, 24 P. E. Smith 42; Pusey v. Clemson, 9 S. & R. 209.
    • William Henry Lex and William M. Smith, for appellees.
    — It is conceded that it was erroneous to award the whole of the balance to the life tenant, but we contend that she is entitled to the interest which has accrued on the original fund. The will directs that “some good saving fund” should be selected, and it is suggested that the deposit should be designated and confined to one institution of the kind. Of the assets of the estate, a part of it consisted of city loan', bonds and mortgages, and the balance of real estate well located and occupied by good tenants. One of the executors took no active interest in the management of the estate, and the other was by occupation a rent collector and real estate agent. He had the sole charge, and the trustees never employed an agent. Under such circumstances two and a half per cent, would have been ample: Spangler’s Estate, 9 Hams 335; Walker’s Estate, 9 S. & R. 22; Stevenson’s Estate, 4 Whart. 104. In Rhodes’s Estate, the decedent instructed his trustees to employ a particular agent and pay him for his services.
    March 11th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

It is conceeded that the court below erred in awarding to the life-tenant the whole of the balance for distribution. This balance was made up in part of the sum of $3000, awarded the accountants as trustees by the auditor upon the first account, to be deposited and kept in some good saving fund in the city of Philadelphia, for the purpose of repairing any damages that might occur to the real estate of the testator by fire or other-casualty, and to be kept so invested until the final division of his estate as directed by the codicil to his will. To the extent, therefore, of the distribution of this principal sum of $3000 to the life-tenant, this decree must be reversed. But as the testator did not direct the accumulation of this fund, the accrued interest was properly distributed. The principal should be allowed to remain on deposit, as directed by the codicil. We decline to designate a saving fund for the deposit, as requested by the appellee, or to make an order to confine it to one such institution. Any application for such purpose should be made to the court below.

The only question that remains' to be considered is the surcharge of $1593.34, being for the several amounts claimed to have been paid by the accountants for the collection of the rents of the real estate. It was alleged that there were thirty-six houses belonging to the estate, and that the accountants paid an agent five per cent, for collecting the rents. They charged in addition five per cent, commission as executors. One of the accountants was a real estate agent, and his principal business was the collection of rents. He took upon himself this branch of the business of the estate, and gave it his personal attention. He claims to have acted as agent for the executors, and to have been paid by them five per cent, on the rents received for his services in that capacity. The court disallowed this claim and surcharged the accountants, with the amount thus paid, $1593.34, and• increased their commissions to six per cent.

The appellants have not brought up the evidence with this record, and ask us to say as 'a matter of law, that an executor is entitled to an allowance of five per cent, over his commissions with which to pay an agent to collect the rents of the real estate. This we cannot do. It may be that in many cases such an allowance would be proper. The services of an experienced rent collector might in many instances be highly beneficial to the estate and justify the additional expense; in others wholly unnecessary. Five per cent, commissions would be ample compensation to an executor in the case of a store renting for $10,000 per annum, while ten per cent, might be inadequate for a house renting for $100. Much depends upon the character of the property as well as its rental value. If old and out of repair, and inconveniently located as to the residue of testator’s property, the labor would be proportionably increased. All these and others that might be specified, are matters of fact essential to a correct understanding and decision of the case. 'All we know is that some of the houses were small; but how located, in what condition of repair, and occupied by what class of tenants, we are not informed by this record. We are not disposed to convict the court below of error upon such a meagre presentation of the facts. Rut for the error se.t forth in the second assignment this decree must be reversed.

The decree is reversed at the costs of the appellee, and it is ordered that the record be remitted to the court below with directions to make distribution in accordance with the views set forth in this opinion.


author: Mr. Justice Mercer

text:
    Louchheim Brothers versus Henzey, Administrator.
    1. A sheriff’s sale is not necessarily void because of the two judgments under which it is made one is in fraud of the Bankrupt Act.
    2. The passive non-resistance of a debtor to the recovery of a judgment against him is not necessarily a fraud upon the Bankrupt Act, although he may be insolvent in contemplation of that act.
    3. The fact that a portion of a lot of goods sold at a sheriff’s sale were brought within the reach of the execution only shortly before the sale, and that very soon thereafter a petition in bankruptcy was filed, does not invalidate the sale.
    February 26th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 8, of Philadelphia county: Of January Term 1877, No. 461.
    Trespass brought by Henry S. and Joseph Louchheim, trading as Louchheim Brothers, against Edgar M. Gregory, United States Marshal, for an illegal seizure of goods. The action was originally brought in the Supreme Court at Nisi Prius. At the trial it appeared that Henry S. Louchheim, individually, and the Louchheim Brothers, had in December 1869, each brought suit against Nathan Kahn, and on the 27th of that month judgments were obtained by the first for $3677.83 and the last for $2675.30 for want of affidavits of defence. Executions issued on these judgments and Kahn’s stock of goods in a store were sold by the sheriff and bought by the plaintiffs for $567.58, who employed a son of Kahn to carry on the business for them. Among the goods sold were some which Kahn had brought in November 1869 from Ohio, where he had had another store. On the 7th of January 1870, two days after the sale, a petition in bankruptcy was filed by other creditors of Kahn, and on the 25th of the same month he was adjudged a bankrupt, and by the direction of these creditors the marshal seized the goods sold at the sheriff’s sale and which still remained in Kahn’s store. He delivered them to the assignee in bankruptcy, who sold them for $1853.70. This action was then brought against the marshal, who having died during the foregoing proceedings, his administrator Henzey, was substituted in his place. At a former trial of this case the court instructed the jury that if the plaintiffs were active in procuring a preference by judgments and executions, knowing Kahn to be insolvent, the preference was in fraud of the bankrupt law, and the sheriff’s sale passed no.title. The verdict and judgment were for the defendant, which this court reversed: see 27 P. F. Smith 305. At the second trial the defendant, among others, submitted the following point:
    “ That if the jury believe that Nathan Kahn, with a desire to prefer Louchheim Brothers or Henry S. Louchheim, failed to make a defence to plaintiffs’ suit, which by law he was entitled to make, or caused goods to he brought within the reach of the execution, then there was sufficient under the Bankrupt Act to invalidate the whole transaction and the sheriff’s sale, and the verdict must be for the defendant.”
    The court answered: “ This point is affirmed; with the qualification that the jury must be satisfied from the evidence of such desire and such acts.” Verdict and judgment for defendant and plaintiffs taking this writ, assigned, inter alia, for error the answer to the foregoing point.

      George L. Orawford, for the plaintiffs in error.
    — A preference is not per se a fraud: In re John Riorden, 14 N. B. R. 332. To invalidate a preference under the Bankrupt Act there must be some positive act done by the debtor, not a mere omission to act with a desire to prefer: Wright v. Filley, 1 Dillon 172; Wilson v. City Bank, 17 Wall. 473; Clark v. Iselin, 21 Id. 360; Sleek v. Turners’ Ass., 26 P. F. Smith 142; Louchheim v. Henzey. 27 Id. 305; Kemmerer v. Tool, 28 Id. 151.

      Thomas J. Diehl, Samuel Dielcson and John O. Bullitt, for defendants in error.
    — This court reversed the judgment in the previous trial of this case on the ground that the question of fraud and collusion on the part of Kahn should have been left to the jury. Here that question was left to them and in the language of the ruling in Wilson v. City Bank, supra. In permitting the recovery of these judgments Kahn was guilty of procurement within the meaning of the bankrupt act.
    [Sharswood, J. — If he is guilty of mere passivity ?]
    No, but if the creditor attempts to do that which he is not entitled to do, and the debtor permits him, it is not mere passivity.
    May 6th 1878.
   Mr. Justice Mercer

delivered the opinion of the court,

This was an action of trespass, brought by the plaintiffs in error, for the wrongful taking and selling of their personal property. They claimed title to the same through a purchase made at sheriff’s sale, on the 5th of January 1870, as the property of one Nathan Kahn. Two days after the sheriff’s sale, a creditor of Kahn filed a petition in bankruptcy against him, and on the 25th January 1870 he was adjudged a bankrupt. The defendant, who was the United States marshal, seized and sold the same property by virtue of the proceedings in bankruptcy. The right of the parties depend on the effect to be given to the sheriff’s sale.

The plaintiff in error relies on the third assignment only. This covers the answer of the court to the fifth point submitted by the defendant. The court charged that if the jury was satisfied from the evidence that Kahn, with a desire to prefer the plaintiff, in either of the judgments on which the sale was made, failed to make a defence to the plaintiff’s suit, which by law he was entitled to make, or caused goods to brought within the reach of the executions, then there was sufficient, under the Bankrupt Act, to invalidate the whole transaction and the sheriff’s sale; and the verdict must be for the defendant.

When this case was here before, 27 P. F. Smith 305, it was held that the proceedings under the judgments and executions were not per se in fraud of the bankrupt law, but were questions of fact for the jury. This fifth point presents two distinct propositions, stated disjunctively, each of which was affirmed. Neither one presents the question of Kahn’s intending to defraud any of his creditors, nor of any collusion of the plaintiffs in the judgments, with him; but, in effect, the answer declares, that either of the facts stated constitutes an implied fraud on the bankrupt law. The sale was made by virtue of executions issued on two judgments, yet the jury was told if Kahn, with a desire.to prefer either plaintiff, failed to make defence to the plaintiff’s suit, which by law he was entitled to make, they should find for the defendant. The failure to make defence in either one “invalidated the whole transaction.” As a legal proposition we think this is not correct. In contemplation of law each judgment stands on its own merits. The fact that one of the plaintiffs was interested in both judgments does not change the rule of law as to their separate effect, although it may increase the probability as to the facts alleged. It is not clear to our mind exactly what idea the court intended to convey to the jury when he refers to the defence which by law Kahn was entitled to make. It appears the judgments were taken for want of affidavits of defence. Did the court mean that if Kahn had no other defence than one purely technical, that he was bound to interpose it; or was'it intended to limit the requirement to defending against a debt not honestly and justly due ? If the debt was justly due, I know of no law requiring him to actively resist a recovery. His passive non-resistance is not necessarily a fraud on the bankrupt law, although he may be insolvent in contemplation of that act: Wilson v. City Bank, 17 Wallace 473; Sleek v. Turner, 26 P. F. Smith 142; Kemmerer v. Tool, 28 Id. 147.

The other objectionable part of the answer is, “or caused goods to be brought within the reach of the execution” is “sufficient to invalidate the whole transaction and the sheriff’s sale.” Thus this one act is by itself alone declared to be sufficient to taint and corrupt the whole transaction. The validity of the debts may have been unquestionable. The judgments may have been recovered in undoubted good faith. The executions may have issued with the most pure intentions. Kahn may not only have honestly owed the debts, but may have been under the highest legal and moral obligation to pay them; yet, according to this answer, if he “ caused goods to be brought” within reach of the executions, it invalidated all the plaintiff’s rights in the property purchased at sheriff’s sale. He need not have caused all the goods sold by the sheriff, nor all taken by the defendant, “to be brought within reach of the execution,” but any part of them, to vitiate the whole sale.

It is an important fact in this case that the sheriff’s sale was made before any proceedings in bankruptcy were instituted against Kahn. The mere existence, on the statute book of the bankrupt law, did not prevent a levy and sale.

If neither the judgments nor the sales were fraudulent in fact, the latter gave a good title to the purchaser. In that case the assignee in bankruptcy could not follow the property, but must resort to the fund produced by the sale: Rohrer’s Appeal, 12 P. F. Smith 498.

Judgment reversed, and a venire facias de novo awarded.