author: Mr. Justice

text:
    Silverthorn et al., Commissioners, &c., versus Hollister et al.

    A judgment was entered on a bond given to indemnify the county of Brie for keeping a lunatic, the wife of H., one of the obligors, at a state hospital. The penalty of the bond was §500, conditioned that 11. should pay the county §39 quarterly, and indemnify the county against all expense in”tlie keeping of said lunatic. _ The court below held that payments made in accordance with the condition of the bond were payments on account of the penalty. Held, that this was error : that-the judgment was a continuing security in the nature of a' fixed lien, and that upon a sale upon a judgment, prior to that entered on the judgment of the county, a subsequent judgment-creditor was not entitled to have the payments, made on account of the lunatic, credited upon the judgment of the county; but $500 thereof, or if less, the, balance of the fund should be impounded for the future expenses of the lunatic.
    October 22d 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Appeal from the Court of Common Pleas of Erie county: Of October and November Term 1878, No. 33.
    Appeal of M. H. Silverthorn and others, commissioners of Erie county, from the order of the court releasing a fund arising from the sale of real estate bound by a judgment given to the county of Erie to indemnify said county for the expense of keeping Martha Hollister, an insane person, at a hospital for the insane.
    The judgment was entered upon a bond by O. C. and S. A. Hollister and by M. W. Moffit and James Lewis, in the sum of $500, with warrant of attorney to confess judgment, given to the county commissioners, conditioned as follows :
    “Whereas, the expense of keeping Martha Hollister at the Western Pennsylvania Hospital for the Insane, at Dixmont, is char'ged to and paid by the county:
    “Now the condition of the foregoing obligation is such that if the aforenamed O. C. Hollister shall well and truly pay or cause to be paid into the county treasury quarterly, in advance, to wit: On the first days of January, April, July and October in each year, the sum of thirty-nine dollars or such other sum, be the same more or less, as the county shall be required to pay for the support and maintenance of-the said Martha Hollister at said institution for the ensuing quarter, and shall fully pay and indemnify the said county for any and all expenses incurred by said county by the keeping of the said Martha Hollister at said institution from and after the 22d day of November A. i>. 1872, then in that case the foregoing obligation to be null and void; otherwise to be and remain in full force and virtue.”
    Martha Hollister was placed in the Western Pennsylvania Hospital for the Insane on the 20th of November 1872, and was still there at the commencement of these proceedings, at the expense of the county of Erie, which paid for her board at the rate of three dollars a week, besides furnishing her clothing. Judgment was entered on the bond.
    On the 1st day of November 1875, the real estate of S. A. Hollister, one of the defendants in the judgment, was sold at sheriff’s sale for $1000, a sum sufficient to cover the judgment for $500 in this case, there being a prior judgment for $300. There was, at this date, a balance due the county of Erie for the maintenance of Mrs. Hollister, of $140.55. Since that date nothing was paid to the county, and the cost of her maintenance to the county (including balance November 1st 1875), to October 1st 1878, was over $590, besides her clothing.
    In the distribution of the money made by the sale of S. A. Hollister’s real estate, $500, the amount of the bond in this case, was impounded, and remained in court as security for the performance of the condition of the bond. On the 29th of May 1877, W. C. Goodrich, a lien creditor of S. A. Hollister, whose judgment was entered subsequent to the entry of the judgment in this case, made a motion for a rule to show cause why the $500 remaining in court should not be released from the’lien of the judgment in this case, on the payment of the sum of $95.83. The court granted a rule to show cause, which was, after argument, made absolute on the payment to the county of the sum of $140.55, the amount due the county at the date of the sale of the real estate of S. A. Hollister, viz.: November 1st 1875.
    From this order of the court the county commissioners appealed, claiming the entire amount impounded, as the payments made by them on account of the support of Mrs. Hollister already exceeded the amount of the bond.

      ID. B. Me dreary and Frank Gfunnison, for plaintiffs in error.—
    The bond was not given for the payment of money, but to indemnify the county for the maintenance of Mrs. Hollister at the hospital. It was a continuing security in the whole amount of the penalty for constantly accruing liability, and the amount of the judgment was not diminished by payments made: Vogel v. Hughes, 2 Miles 379. Had the judgment in suit been a first lien on the real estate of S. A. Hollister, it would not haye been diyested by the sale under the ruling of this court in Luce v. Snively, 4 Watts 397; Moore v. Shultz, 1 Harris 102; Rutty’s Appeal, 3 Norris 61. The only disposition that could properly be made of the fund was to impound it in court,, and substitute the money for the land, as a security for the performance of the condition of the bond.

      d. L. Baker, for appellee.
    If this was a money bond, it is clear that the surety could not be held beyond the payment of the penalty, his liability could not exceed the judgment, and upon payment of the balance, the appellants could have no further recourse to the fund derived from the sale of his property. This was an ordinary bond, and part payment goes in discharge of the penalty: City v. Baxter, 6 Phila. R. 530; Clark v. Bush, 3 Cowen 151; Fairlie et al. v. Lawson et al., 5 Id. 424. The bond was merged in the judgment. The judgment measured the liability of Hollister, and having paid a part of it the balance only was a valid lien.
    November 11th 1878.
   Mr. Justice

delivered the opinion of the court,

The bond upon which the judgment which is the subject of this contention was entered, was given to indemnify the county of Erie for the expense of keeping Martha Hollister, a lunatic, and the wife of one of the obligors, at the Western Pennsylvania Hospital for the Insane. The penalty of said bond was $500; the condition was that C. C. Hollister should pay into the county treasury the sum of $39 quarterly, or such other sum as the county should be required to pay for the support of the said Martha Hollister, and fully indemnify the county against all expense for keeping the said Martha, &c. It is clear that this judgment was a continuing security; it was in the nature of a fixed lien : Luce v. Snively, 4 Watts 897; Moore v. Shultz, 1 Harris 102; Rutty’s Appeal, 3 Norris 61, and would not have been discharged by the sheriff’s sale but for the fact of there being a prior judgment. It is a mistake to suppose that payments made in accordance with the condition of the bond were payments on account of the penalty. That remains as a continuing security, and until the non-payment of the quarterly or other sum for the support of the lunatic as required by the county of Erie, there is no breach of the condition. After breach the obligors can discharge themselves only by the payment of the penalty.

The fund was claimed in the court below by W. C. Goodrich, whose lien is next in point of time. It is manifest he is not entitled to any portion of it. After paying over the amount due the county to the date of such payment, it will be the duty of the court below to impound the balance, if any, of the fund for the purpose of defraying the future expenses of the lunatic.

The order of the court below is reversed, at the costs of the appellees, and it is ordered that the record be remitted to the court below with directions to dispose of the fund in accordance with the views indicated in this opinion.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    The County of Erie versus The Erie and Western Transportation Company.
    The Brie and Western Transportation Company is a Pennsylvania corporation, engaged in the business of transporting grain and other merchandise to and from, the various ports on the great lakes to southern and eastern cities. It owns certain water-lots in the city of Erie, on which to accommodate its business it erected grain elevators, warehouses and offices. Held, reversing the court below, that these were taxable for local purposes by the county of Erie, under the principle of the ruling in Railroad v. Berks County, 6 Barr 70, and Wayne County v. The Delaware and Hudson Canal Co., 3 Harris 351.
    October 22d 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1878, No. 198.
    The following case, wherein the county of Erie was plaintiff, and the Erie and Western Transportation Company was defendant, was stated for the opinion of the court:
    That the defendant is a public corporation duly incorporated by the legislature of Pennsylvania, by act approved June 21st 1865, and by supplements of April 15th 1869, and May 9th 1871, entitling the defendant corporation: “ to all the powers, privileges and rights conferred by an act approved April 7th 1870, upon the Pennsylvania company” (all of which acts of the legislature of the Commonwealth of Pennsylvania are to be taken and made a part of this case stated as fully as if the same were copied herein).
    That the defendant corporation is a common carrier engaged in transporting grain and other merchandise to and from Chicago, in the state of Illinois, and other ports on the great lakes, the cities of Philadelphia, Penna., Baltimore, Md., and other eastern and southern cities; that in the carrying on of its business under its charter, it is necessary that it should have grain elevators, docks, warehouses and offices in the city of Erie.
    That the defendant is the owner of certain water-lots, situate in the city of Erie, necessary to the carrying on of its business under its charter, and upon which are erected two grain elevators, warehouses, docks and offices, all of which are used by the defendant in carrying on its business under its charter.
    That the plaintiff is a quasi corporation in law.
    That the said plaintiff did assess and levy upon the said water-lots, docks, elevators, warehouses and offices of defendant, situate in the city of Erie and county of Erie aforesaid, a tax for county purposes, for the year 1875, amounting to the sum of $607.50, and collected the same from the defendant, and that the said defendant paid the said tax under protest; that the said plaintiff did assess and levy upon the said property of defendant a tax for county purposes, for the year 1876, amounting to the sum of $607.50, which said last-mentioned sum has not been paid.
    If the court is of the opinion that the said property of the defendant was not legally subject to taxation for county purposes, the judgment is to be entered for defendant for $607.50 (the tax paid under protest for the year 1875), but if the court is of the opinion that the said property of defendant is subject to the payment of said taxes, the judgment to be entered in favor of plaintiff for $607.50, the tax for 1876.
    The court in an opinion, inter alia, said:
    “ It is admitted by the case stated, as it is apparent from the charter and scope of the objects and purposes of this organization, that it is a public corporation, and that the property taxed is such as is necessary for the enjoyment of the franchise granted by the act of incorporation and its supplements. [It must therefore be held to be exempt under a class of cases decided by the Supreme Court and not necessary to be cited here.] It is not requisite with the view so taken of this case to consider the effect of the Act of 1871, extending the rights of the Pennsylvania company to the Erie and Western Transportation Company, defendants. Judgment entered on the case stated for defendants for the sum of $607.50.”
    The plaintiff took this writ, assigning for error the entry of judgment and the foregoing portion of the charge in brackets.

      I>. B. McOreary and Frank G-unnison, for plaintiff m error.—
    We do not claim that land occupied by railroads, and necessary for their use, or property or appurtenances necessary to the proper exercise of their corporate franchises, are legally liable to local taxation. This is a statutory right, and has been too often construed by this court to leave it a debatable question. But the defendant is not a railroad and does not exercise the functions of one.
    This company, so far as it operates within this state, does so mainly under authority given by the railroads ; the same as a private individual or a number of individuals associated together might do without a charter. It is simply a business arrangement. And whilst it may be said in legal parlance to be a public corporation, having a charter and a corporate existence, yet it is submitttd whether it is a public corporation in that sense of the word that entitles it to the same immunities and exemptions and privileges that are enjoyed by railroad corporations, which have become and are public, common necessities every day and hour to every citizen of the government as well as the government itself.

      James O. F. F. Marshall, for defendant in error.
    The defendant is not a private corporation organized merely for private purposes, but is a corporation created for the public convenience and charged with the performance of duties to the public; the property belonging to the defendant sought to be taxed is indispensable to the performance of the duties imposed upon it. The defendant is bound to receive and transport all grain, goods and merchandise offered it, and for any one who may desire their grain, goods or merchandise so transported. It can make no choice of its customers, but must treat the public alike. In transporting grain from the western cities to the seaboard, the elevators at the port of shipping and delivery are as necessary and indispensable as the steamers and vessels by which the grain is carried; without these elevators and docks, offices and freight depot at Erie, the defendant would be utterly unable to enjoy its franchises, or perform its duties to the public. When hundreds of thousands of bushels of grain are now daily received and transported by this company, without these elevators and docks it could not transport a single cargo during the season.
    We therefore contend, and it is conceded by the case stated that the defendant is a corporation of the class of railroads, canals, &c.: Schuylkill Navigation Co. v. Commissioners of Berks County, 1 Jones 202; Lehigh Coal and Navigation Co. v. Northampton County, 8 W. & S. 334; Commissioners of Wayne County v. Delaware and Hudson Canal Co., 3 Harris 351; N. Y. & E. Railroad Co. v. Sabin, 2 Casey 242; Lackawanna Iron and Coal Co. v. County of Luzerne, 6 Wright 424 ; Northampton County v. Lehigh Coal and Navigation Co., 25 P. F. Smith 461; West Chester Gas Co. v. County of Chester, 6 Casey 232. Coal and Navigation Co., 25 P. F. Smith 461; West Chester Gas Co. v. County of Chester, 6 Casey 232.
    January 6th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

From the case stated, we learn that the company defendant is a Pennsylvania corporation, incorporated by the Act of June 21st 1865, and by the supplementary Acts of 15th of April 1869 and 9th of May 1871. That its business is the transportation of grain and other merchandise, to and from the various ports on the great lakes, the cities of Philadelphia and Baltimore and other eastern and southern cities. That it is the owner of certain water-lots in the city of Erie, on which, for the accommodation of its business, it has erected two grain elevators, warehouses and offices, and that upon these the county of Erie has imposed the taxes which are the subject of this contention. Elevators, as we understand the word as here used, are warehouses for the storage and ready shipment of grain, and we presume the docks mentioned in the statement are appurtenances connected with these warehouses, intended for the convenient landing of vessels and the easy disposition of their cargoes. The only question is, was it proper to tax these warehouses for county purposes? We may say, in limine, that the Act of 1870 extended to the defendant by the Act of 1871, applies only to the taxation of dividends and net earnings, and has no application to the question in hand. It has been repeatedly ruled that the property of canal and railroad companies, and other quasi public corporations, necessary for the exercise of their several franchises, as depots, toll-houses and water-stations, is not taxable for local purposes. The reason given for this exemption is that these things enter into the very composition of the works of these corporations, and, without which they could not exercise their corporate functions. On the other hand, it has been often and expressly held that such property as does not enter into the structure of a company’s works, but is used only as a convenience for carrying on its business, is taxable. Warehouses, machine-shops and coal-shutes have been enumerated as property of this character: Railroad v. Berks Co., 6 Barr 70.

We understand that the warehouses, the taxation of which is the subject of controversy, were used not only as storehouses, in the ordinary sense, but also for the transshipment of goods from vessels to railroads, and vice versa, from railroads to vessels. This being so, the case is met in point and ruled by Wayne County v. The Delaware & Hudson Canal Co., 3 Harris 351, wherein it was held, that buildings situated at the junction of a canal and railroad, used for receiving and transshipping goods and merchandise to and from the canal and railroad, to be forwarded along the lines of these works, must be regarded as warehouses and therefore taxable. The above cases so exactly cover the case in hand, that without overruling them, the judgment of the court below cannot be affirmed.

The judgment is reversed, and it is now ordered that judgment be entered, on the case stated, for the plaintiff in $675.50 with costs.


author: Mr. Justice Sharswood

text:
    Howe Sewing Machine Co. versus Sloan.
    Goods intrusted to an agent to be sold on commission are not liable to distress for rent due by the agent: Karns v. McKinney, 24 P. F. Smith 387, followed.
    October 24th 1878.
    Before Asnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1878, No. 125.
    Replevin by the Howe Sewing Machine Company against S. S. Sloan for twelve sewing machines which the plaintiff had consigned to G. C. McKinley for sale, and .upon which defendant had distrained for rent due by said McKinley.
    Under the provisions of the Act of May 14th 1874, Pamph. L. 166, the case was referred to M. Crosby, Esq., as referee. He found, as facts, that McKinley, who was engaged in selling the machines of the plaintiff, had leased the premises for which the rent was due and on which the distress was made in his own name, and occupied them for the purposes of his business. Before the referee, as found by him, a general agent of the plaintiff testified: “ That the property distrained was that of the plaintiff; that it was simply placed in the hands of McKinley to sell on commission, and that the plaintiff had nothing to do with the renting of the store by McKinley; that McKinley was to sell-for the company for thirty per cent, of each sale, the company having the right to reject the sales; that the company paid him $10 when a sale was accepted, and the balance when the company had received a certain amount; that the property distrained was worth $630 to plaintiff.
    The defendant also testified that he did not know at the time of making the lease, or at the time of the distress, that the property was that of the plaintiff; that it came upon the premises marked to G. O. McKinley; that he did not know until after the distress that the machines were only consigned to him.
    The plaintiff submitted the following points, to which are appended the answers of the referee:
    1. That if the referee should believe that G. O. McKinley was the agent, consignee or factor of the plaintiff, and the property distrained the property of the plaintiffs and only consigned to said McKinley, that in that case the defendant could not distrain it, and the decision must be for the plaintiff.
    Ans. “I do not find that McKinley was an agent, factor or consignee of the plaintiff in the usual acceptation of the terms.”

      2. That if the defendant knew that the property of the Howe Machine Company was only consigned to McKinley.as such agent or factor, that in that case the decision should be for the plaintiff.
    Ans. “I find from the evidence that the defendant did not know till after the distress that the property was that of the plaintiff.” In an opinion, the referee, inter alia, further said :
    “It is a settled principle of the common law that the goods of a stranger, found on demised premises, are liable for rent, and may be distrained therefor.
    “Upon this principle of law the plaintiff’s machines were liable to distress for rent due by McKinley, unless, under the circumstances of the case, they fall within some one of the several exceptions established in the interest of commerce and for the benefit of those compelled to intrust their property temporarily to the possession of others.
    “ Such exceptions seem to have been fully discussed in Karns v. McKinney, 24 P. F. Smith 387, none of which seem to be like the case in question. The machines were certainly not in a warehouse on storage, nor were they in McKinley’s- possession as an artisan, like cloth in a tailor’s shop, &c., nor was McKinley a factor in any sense, as between himself and the landlord or the public at large. It is true he may have received the machines from the plaintiff to sell for a certain percentage on the amount of sales as his compensation, but he was not, in the usual acceptance of the term, a commission merchant. It may have been known to the plaintiff, but it was not known to his customers, to those who bought machines of him, or to the public, or even to his landlord, the defendant, that he held the property on commission. He appeared to hold it as owner, and in that respect this case differs greatly from all those mentioned as exceptions to the general rule.
    “If I leave goods for storage in a warehouse, or at a freight depot, or on a wharf, for transportation or repairs, with a mechanic, or send them for sale to a generally-recognised and well-known commission merchant, my relation to the goods and to those in whose custody they temporarily are, and perhaps also to the public, so far as the public can have an interest therein, is not the same as if I had consigned them to an individual to sell, as McKinley held these machines for sale, being apparently the owner, but in fact holding them on commission under secret instructions and by virtue of private arrangements between such individual and myself not known or in any manner disclosed to those with whom he dealt. In the one case my actual relations to the property would be readily comprehended and understood by business men of even dull intelligence, while in the other it could not he discovered or even guessed at by the wisest and the shrewdest dealers.
    “If the principle that the goods of strangers found on demised premises are, under any circumstances, to be liable to distress for rent, I see no reason why the goods levied on in this case were not so liable.”
    The decision and judgment were for defendant, when plaintiff took this writ, among other errors assigned being the answers to the foregoing points.

      Thomas Roddy, for plaintiff in error.
    McKinley was only the agent, factor or consignee of the plaintiffs. He sold on commission, and his power over the machines was merely a power of sale upon the conditions prescribed by the company. The landlord occupied half the store that McKinley rented. lie knew that the machines were consigned to him to sell on commission, or if he did not it was his duty to ascertain to whom he was giving credit: Brown v. Sims, 17 S. & R. 140; Weidel v. Roseberry, 13 Id. 180; Riddle v. Welden, 5 Watts 14; Cadwalader v. Tindall, 8 Harris 422. McKinley being a factor, goods in his possession were privileged from distress: Gilman v. Elton, 3 Brod. & Bing. 75; 2 Shars. Black. 8, note 10; Karns v. McKinney, 24 P. F. Smith 389; Owen v. Boyle, 22 Me. 47; Connah v. Hale, 23 Wend. 462; Stone v. Matthews, 7 Hill 423; Briggs v. Large, 6 Casey 287 ; Kleber v. Ward, 6 W. N. C. 235.

      O. L. Balter and O. O. Bowman, for defendant in error.—
    McKinley was not a factor. All he had was the right to make a bargain in relation to the property consigned to him. Practically the company was carrying on business in Sloan’s store, but of this the defendant had no knowledge.
    Karns v. McKinney, Brown v. Sims, Briggs v. Large, supra, are all cases where the demised premises were used for warehouse purposes, and this class of cases, in which it is sought to protect customers and persons who temporarily placed their property in the possession of others for storage, or for the purpose of having labor bestowed thereon, properly forms an exception to the common-law rules.
    November 11th 1878.
   Mr. Justice Sharswood

delivered the opinion-of the court,

The rule of the common law that the goods of a stranger on demised premises are subject to the distress of the landlord has yielded, and must continue to give way to the growing necessities of trade and business. As Chief Justice Gibson has said: “ There is little reason to doubt that the exceptions will, in the end, eat out the rule.” It is not a subject upon which it would be wise to draw refined distinctions. It was settled in Brown v. Sims, 17 S. & R. 188, that goods on storage were exempt, though the business of the tenant was not exclusively that of a warehouseman. Certainly a man may safely intrust his cattle to a farmer to agist, who raises his own beasts for the drove or the market. Nor is there any reason why a similar principle should not be applied to the case of goods intrusted to an agent to be sold on commission. It is notoriously the usage for merchants — not holding themselves out as commission merchants — to receive and sell goods in that way. In the particular case before us it would seem reasonable to infer that the products of sewing machine companies, the machines themselves being known by the name of the manufacturers, are usually sold by these agents on commission. There was enough to put the landlord on inquiry if notice was necessary. The broad principle which governs the case has been succinctly and happily expressed by our brother Mercur, in Karns v. McKinney, 24 P. F. Smith 390. “ The principle,” he says, covering these cases during the tenancy, except when the goods are in the custody of the law, is this: Where the tenant, in the course of his business, is necessarily put in possession of the property of those with whom he deals or of those who employ him, such property, although on the demised premises, is not liable to distress for rent due thpreon from the tenant.”

The judgment entered on the decision of the referee is reversed, and the record is remitted to the Court of Common Pleas that judgment may be there entered for the plaintiffs, and their damages for detention ascertained by a writ of inquiry.

Judgment reversed and record remitted.


text:
    Bredin versus Road Commissioners of Cranberry Township.
    1, Ata treasurer’s sale plaintiff bought certain lands which were sold for county and township taxes, among which were the road taxes for the latter. Plaintiff afterwards discovered that part of the lands purchased were not in the county, and that others were sold on double assessments. The county refunded her share of the taxes, but the township refused, when plaintiff brought an action therefor against the road commissioners of said township, and recovered a judgment before a'justice of the peace. The defendants appealed to the Common Pleas, which entered a compulsory nonsuit, on the ground that there was no privity of contract between the plaintiff and the township. Reid, that this was error.
    2. By the terms of the Act of April 21st 1856, the rule caveat emptor does not apply to purchasers at treasurer’s sales, where the lands sold are not in the county, or when sold upon a double assessment.
    October 24th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Venango county: Of October and November Term 1878, No. 105.

      This was an appeal in the court below by the Commissioners of Cranberry township, Venango county, from the judgment of a justice of the peace, obtained by James M. Bredin against said commissioners.
    The facts are fully stated in the opinion of this court.

      James M. Bredin and J. B. Hancock, for plaintiffs in error.' —
    The road commissioners had authority to assess the tax for township purposes: Blanchard v. Tioga Improvement Co., 3 Gr. 216; and when collected for such township purposes, it belongs to the county, and not to the township: Potter County v. Oswayo Township, 11 Wright 162. The county receives none of these taxes, and it would be unjust to fix any liability upon her.
    By the Act of 21st April 1856, sect. 1, Pamph. L. 477, the rule of caveat emptor prevails in all treasurers’ sales “ except in cases of double assessment, or where the taxes on which sale is made shall have been previously paid, or where the lands do not lie within the county.”
    All these tracts of land were sold as unseated land, were doubly assessed, or did not lie in the county of Venango. They came literally and in fact within the exception of said act.

      John McKissick, for defendant in error.
    There was no privity of contract between the parties to this action, and it must fall: Dicey on Parties to Actions 240. If plaintiff has any right of action it is against the commissioners or treasurer of the county, and not against the township: Potter County v. Oswayo Township, 11 Wright 164: Schuylkill County v. Commonwealth, 12 Casey 535. The rule of caveat emptor applies to all judicial sales: Rorer on Judicial Sales 168; Bickley’s Admr’s v. Biddle, 9 Casey 276; Sackett v. Twining, 6 Harris 199; Fox v. Mensch, 3 W. & S. 444. Tax or money voluntarily paid cannot be recovered: Cooley on Taxation 556; Boroughs on Taxation 267, 443, 556; Hospital v. Philadelphia County, 12 Harris 229 ; Taylor v. Board of Health, 7 Casey 73 ; Wharton v. Birmingham, 1 Wright 371.
    January 6th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

James M. Bredin bought, at treasurer’s sale, certain tracts of land, which had been assessed by the road commissioners of Cranberry township with certain road taxes, for- which taxes, inter alia, the said lands were sold. Bredin paid the amount of his bids to the treasurer, and the part thereof due the township for road taxes was paid over to the commissioners. The plaintiff now alleges, that after these purchases, he discovered that certain of the tracts, so bought by him, did not lie in Venango county, and others had been doubly assessed, and he, therefore, got no title. On application to the county commissioners they gave him an order for the amount of the county tax, but refused to- settle for the township tax. The plaintiff then brought suit, before a justice of the peace, against the township, and obtained judgment. An appeal was taken to the Common Pleas of Yenango county, and when the case came on for trial, the judge directed a nonsuit, on the ground that there was no privity of contract between the plaintiff and the township. This was error. By the terms of the Act of 1856, the rule caveat emptor does not apply to purchasers at treasurers’ sales, where the lands sold are not, in the county, or when sold upon a double assessment. It is obvious that, in such cases, the act intends the purchaser shall not lose his money. The county, however, cannot retain money paid into its treasury for ■ the townships. The township taxes collected by the sale of lands, seated or unseated, are collected for the townships, and the county officers are but agents for that purpose. These officers collect the township taxes for the town- . ships, just as they collect the county taxes for the county, and when 'the former are paid into the treasury, they are paid in for the townships, and not for the county.

It follows, that there can be no liability resting upon the county for moneys paid upon improper township assessments. If, however, Bredin’s allegations are correct, the township of Cranberry has in its treasury money belonging to him; money obtained from him through assessments which its officers had no right to make, and if he cannot recover this money, then, in spite of the Act of 1856, the rule caveat emptor does apply to purchasers at treasurers’ sales, to the extent, at least, of township taxes. As we cannot adopt such an interpretation of the act as this, we must hold the township liable to account to the plaintiff for any money belonging to him, of which it may have the possession, or for which it ought to account.

The judgment is reversed and a procedendo awarded.


author: Mr. Justice Mercuii

text:
    Duffield, for use of Jackson, versus Cooper.
    1. In a judgment against a principal and his surety, if the surety pays the amount of the judgment he succeeds by operation of law to the rights of the creditor, and is entitled to collect the judgment. It is not necessary that the paying surety must be subrogated under the 9th section of the Act of April 22d 1856. That act applies to judgment liens on real estate, and is intended to adjust and protect the equities of persons holding such liens. It was not designed to settle the rights nor to prescribe the remedies between surety and principal.
    2. While an execution must follow the judgment, yet if in a judgment against principal and surety, the surety pays the whole amount of the judgment, and execution issues for the use of the surety, it is not fatal to the execution that it goes against the principal alone.

      October 24th 1878.
    Before Agnew, C. J., Sharswood, Mercur,, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Venango county: Of October and November Term 1878, No. 253.
    This was a rule to show cause why a judgment entered on an exemplified record, wherein John Duffield was plaintiff and William A. Cooper and J. O. Jackson were defendants, should not be stricken off and execution set aside.
    Cooper and Jackson executed a note in the following form:
    “ $1250. Franklin, Pa., February 3d 1877.
    Six months after date we promise to pay to the order of John Duffield twelve hundred and fifty dollars for value received, with interest, payable at the Exchange Bank, Franklin, Pa.” (With a warrant of attorney to confess judgment, &c.)
    On the 2d of July 1878 judgment was confessed by attorney in the Court of Common Pleas of McKean county in favor of Duffield, and against both Cooper and Jackson, for $1028.87, being the balance then due, and execution issued thereon. Endorsed upon the execution is the following receipt:—
    “ September 7th 1878.
    Received from J. C. Jackson one thousand, thirty-five and 17-100 dollars, and do hereby assign to him the within entitled judgment, debt, interest and costs, without recourse. [Signed] John Dueeield, by Sterrett, Brown & Rose, Attorneys.”
    Returned by order of plaintiff.
    On July 22d 1878 an exemplification of this record in McKean county was filed in the Common Pleas of Yenango county, and on the same day execution issued and levy, was made upon the personal property of Wm. A. Cooper, who presented his petition, upon which a rule was granted on the plaintiff to show cause why the judgment should not be stricken off and the execution stayed and set aside. Testimony was taken which conclusively established that Jackson was surety in the note; and it was contended, upon the part of the plaintiff, that he being simply a surety and having paid the claim, he had the right to have the judgment marked to his use and issue execution against Cooper alone.
    After argument upon the rule to show cause, the court, Taylor, P. J., in an opinion, inter alia, said:
    “ That a surety may pay an indebtedness and not extinguish the claim against the principal debtor, will be admitted ; and that the surety having paid the debt, is entitled to all the securities the creditor had against the principal debtor, is settled by numerous cases: Wright v. Grover & Baker S. M. Co., to use, 1 Norris 80, and eases there cited.
    “ After an indebtedness has assumed the form of a judgment the 9th section of the Act of April 22d 1856, provides a mode by which such surety may be subrogated to the rights of the plaintiff, viz.: by application to the court, who alone has the power to order a radical change of the record. The record of the judgment in McKean county stood thus : John Duffield v. William A. Cooper and J. C. Jackson. The judgment was so entered upon the records of this court. The prceaipe for fi. fa. and the fi. fa. in this county did not pursue the judgment. It is in the form following: John Duffield, to use J. C. Jackson, v. William A. Cooper. The execution should have followed the judgment, and the plaintiff could have directed a levy upon the goods of one of the defendants alone, if he chose so to do. Not having done so, it is such an irregularity as will warrant the setting aside the execution: Shaffer v. Watkins, 7 W. & S. 229; Stuckert v. Ellis, 2 Miles 433.
    “ If subrogation after judgment was effected by operation of law, the same as before, we fail to see the necessity of the Act of Assembly before cited. The act having provided and pointed out the remedy, the surety should avail himself of its provisions. For these reasons the rule to set aside the lien and execution is made absolute and discharged as to striking off the judgment.”
    This action of the court was assigned for error by Duffield, who took this writ:

      Dodd tf1 Lee, for plaintiff in error.
    Wright v. Grover and Baker Sewing Machine Co., 1 Norris 80, is conclusive of this case and decides it in our favor. The Act of 22d April 1856, Purd. Dig. 827, does not apply to this case, but is meant merely to control liens on real estate as between parties entitled to subrogation. We rely also on Fleming v. Beaver, 2 Rawle 128. The surety having paid the debt, succeeds by operation of law to the rights of the creditor without assignment and without any further act on his part. The judgment therefore being Jackson’s by operation of law and actual assignment, the execution was rightly issued, for the law would not require of him the absurd thing of issuing an execution against himself.

      James D. JLancoeJc, for defendant in error.
    The execution must follow the judgment on which it is founded, and if the judgment is joint the execution must be joint: Bouvier’s Institutes, vol. 3, p. 573; Shaffer v. Watkins, 7 W. & S. 229; Kneib v. Graves, 22 P. F. Smith 104; Stuckert v. Ellis, 2 Miles 433; Herman on Executions 42.
    Subrogation is an equitable right, and must be asked for by the surety and granted by the court as shown by the records. It is not allowed to constitute itself and thus contradict the records.
    January 6th 1879.
   Mr. Justice Mercuii

delivered the opinion of the court,

Cooper and Jackson made their joint note to Duffield, with warrant of attorney to confess judgment. Although not shown on the face of the note, yet in fact, Jackson signed as surety for Cooper. Judgment was entered on the note and execution issued. Jackson paid the debt, interest and costs to the plaintiff’s attorney, and on the back of the execution took from him an assignment of the judgment. As the attorney is not shown to have been authorized to make the assignment, and it does not appear that his act therein was ratified, the invalidity of the assignment may be conceded. The fact, however, that Jackson took the assignment at the time he made the payment, is evidence that he did not intend to extinguish the debt. The right of a surety in a judgment, to collect it of his principal, after the former has paid it, is well settled by numerous decisions: Wright v. Grover et al., 1 Norris 80. An actual assignment to the paying surety is not necessary. The right of substitution being shown, and the surety having paid the debt, he succeeds by operation of law to the rights of the creditor: Id. Jackson was therefore entitled to collect the judgment of Cooper. The learned judge appears to have thought that the paying surety must have been subrogated under the 9th section of the Act of 22d April 1856. That act applies to judgment liens on real estate, and is intended to adjust and protect the equities of persons holding such liens. It was not designed to settle the rights, nor to prescribe the remedies between surety and principal.

The other question relates to the form of the execution. It is undoubtedly true as a general rule that the execution must follow the judgment. That is, if the judgment be joint the execution should be against all of the defendants therein. This rule, however, is not so inflexible as to prevent its being modified by the special circumstances of the case. Thus in a joint judgment against sevéral, one of whom is an infant, the court will set aside the execution as to him; yet, permit it to go on as against the others, and sell their property. So if one of the defendants be a feme covert, and not liable on the judgment, the execution may be set aside as to her, but suffered to proceed against the other defendants in the judgment. Again, if one joint defendant in a judgment die, execution goes against the survivors. The Act of 18th April 1861, declares, no civil process shall issue or be enforced against any person mustered into the service of this state or of the United States.” Sheetz et al. v. Wynkoop et al., 24 P. F. Smith 198, was the case of a judgment against several defendants, one of whom had been mustered into the services of the United States, and thereby entitled to the protection of the act. It was there said by our late brother Williams, that doubtless on suggesting the fact of such service, execution might have been sued out against the other defendants. In the present case it would be the merest technicality to require the use party plaintiff to issue an execution against himself. The receipt ancl assignment of record on the execution showed he had paid the whole judgment. Thus the record showed why the execution went against Cooper alone. He has no equitable ground of complaint. In case he was not liable for the whole judgment, as between him and Jackson, the court should have restrained the execution to the collection of such portion as in equity he ought to pay. But being liable for the whole, he has no standing to invoke the equitable power of the court. The fact of the payment of the whole judgment by the use plaintiff, appearing of record, precluded the collection of any part of it from him again. The defendant had paid none of it, although legally liable for the whole. Under all these facts, we do not think it fatal to the execution, that it went against the only defendant liable for its payment. The learned judge therefore erred in making absolute the rule to show cause why the lien and execution should not be set aside.

Judgment reversed, and the rule is discharged.


author: Per Curiam

text:
    Pennsylvania Railroad Co. versus Weiss.
    The presumption of a fact in law which carries a case to the jury, necessarily leaves them in possession of the case, and although the evidence to rebut the presumption may be very strong, yet it is a matter for the jury and not for the court.
    October 24th 1878.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson, and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1878, No. 142.
    Case by Katharina Weiss and her minor children against the Pennsylvania Railroad Company, to recover damages for the death of her husband, caused by the alleged negligence of defendant.
    At the trial, before Galbraith, P. J., it was shown on the part of plaintiffs that Weiss, while driving over a public crossing of defendant’s railroad in the city of Erie, was killed by a passenger train. There was evidence also that the train was running at a greater rate of speed than that permitted by the rules of the company. Two witnesses for the defence testified that they saw Weiss drive on the track, and that he did not stop, look and listen. In rebuttal, the plaintiffs gave evidence to show that a number of freight cars were standing on the track in the direction from which the train came, and that these obstructed the view of the track, and that Weiss was unable to see the approaching train. Upon this evidence the court refused to instruct the jury that, “from all the evidence in this case the plaintiffs are not entitled to recover,” and left the case to the jury in an opinion, inter alia, saying:
    “ The law requires that a person about to cross a railroad track shall use certain precaution on his part; failing in which, he cannot recover, nor his representatives, for any injuries he may suffer in consequence of such neglect. It was the duty of Jacob Weiss, as he came near the crossing, to stop and look and listen, and if he did not do so, but drove on, omitting that precaution which the law and common prudence required of him, the consequence of his rashness and folly must rest upon his representatives, and not upon the railroad company, even if you believe there was negligence on' the part of those in charge of the train. The presumption is that Weiss did his duty by stopping and looking and listening. In the absence of proof to the contrary, the law presumed this to his favor. But the defendants claim to have shown that so far from this being the fact, Weiss not only did not stop and look and listen, but that he drove rapidly towards and upon the tracks, and so encounted the locomotive that ran over him and caused his death. The explanation of this by counsel for plaintiff, is a denial of the truth of the evidence and allegation that it cannot be true. Examine this carefully for yourself. If it is true, then plaintiff clearly cannot recover. How is it contradicted ? What witnesses prove a different state of things ? How are they corroborated by the other evidence in this case ? This is for you ?”
    The verdict was for the plaintiffs for $3000, and after judgment the defendant took this writ, assigning for error the refusal of the court to give the instruction asked for as above.

      J. Moss Thompson, for plaintiff in error.
    It is an unbending rule that one approaching a railroad crossing must stop, look and listen for coming trains, and a neglect to do so is negligence per se : North Penna. Railroad Co. v. Heilman, 13 Wright 60; Penna. Railroad Co. v. Beale, 23 P. F. Smith 505; Railroad v. Weber, 26 Id. 157; Gerety v. Phila., Wilm. & Balt. Railroad Co., 31 P. F. Smith 274. The plaintiffs relied upon the presumption of law that the deceased did his duty in this particular, and there was nothing but this presumption to sustain their right to recover. They offered no express testimony to show that deceased did “ stop, look and listen.”
    On part of the defendants to rebut this naked presumption, it was shown by the uncontradicted testimony of two competent and intelligent witnesses that the deceased did not stop, but drove on to the track in front of the approaching engine, and was killed.
    Thus the presumption of law fails, and the just and fair conclusion that the deceased did not do his duty is established. Hence it was properly claimed that the court should have instructed the jury that under the evidence the plaintiffs were not entitled to recover.

      Davenport Griffith, for defendants in error.
    The court properly left the case to the jury: Weiss v. Railroad Co., 2 W. N. C. 214.

      November 4th 1878,
   The judgment of the Supreme Court was entered

Per Curiam

The principle of this case was decided at this term in the case of the Pennsylvania Railroad Co. v. Miller et ux., ante 895. The presumption of a fact in law, which carries a case to a jury, necessarily leaves them in possession of the case. True the evidence to rebut the presumption may be very strong, yet it is a matter for the jury and not for the court. The force of the evidence may or may not be sufficient to convince them that the natural presumption arising from human instinct is repelled. But before they can come to this conclusion they must consider the circumstances under which the repelling witnesses testify. They may be such as not to convince a rational mind that the deceased heedlessly rushed into danger, or the character of the witnesses and their appearance before the jury may render them unworthy of belief, consequently the jury only can determine the fact put in issue by the presumption of law.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Appeal of Fowler et al. Fowler et al. versus Kingsley.
    1. Where a debtor dies, under the acts which provide that all the debts of a decedent shall be a lien upon his real estate, for a period of five years after his death, a bill in equity will lie on the part of creditors who have not reduced their claims to judgment against one to whom the decedent, in his lifetime had conveyed land in fraud of said creditors, if the grantee was not a bonafide purchaser but knew of the fraudulent intent, and the court will decree such conveyance void, and that such land shall be subject to the debts of said creditors.
    2. The mere fact that the claimants had not recovered judgment, is not sufficient to oust the equity jurisdiction of the Court of Common Pleas.
    3. Pending the suit, the court properly enjoined the defendant from conveying or encumbering the land.
    4. The deed in controversy was only void as to the complaining creditors. The quiescent creditors, if there be any, cannot take advantage of this proceeding, and after the payment of the claims of the complainants in the bill the land should be relieved from the injunction.
    5. After the decree in this case, one who had purchased said land from the assignee in bankruptcy of the defendant, applied to the court and asked that the decree should be modified so that no sale of the land should be made until the temination of certain proceedings, in which the claims of the complainants in the bill would be ascertained. Held, that the defendant and those claiming the land under him had had their day in court, and the motion must be denied.
    October 25th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Appeal from the Court of Common Pleas of Erie county: Of October and November Term 1878, No. 8'. In Equity.

      Appeal of Justus Fowler and others, certain creditors of David Winton, deceased, from the decree of the court dismissing their bill in equity, wherein they prayed that a preliminary injunction might issue to restrain the defendant, Carlos M. Kingsley, from conveying or disposing of certain property of said Winton, deceased, which it was alleged he had fraudulently conveyed before his death to the defendant, Kingsley.
    The substance of the bill and answer and of the master’s report as presented and the other proceedings are sufficiently stated in the opinion of this court.
    The following were portions of the opinion of Galbraith, P. J. :
    “ The bill in this case alleges in substance that the complainants are creditors of the estate of David Winton, deceased, and that said Winton in his lifetime made a conveyance to defendant of certain lands in Elk Creek township, Erie county, Pennsylvania, with intent to defraud the complainants and hinder and delay them in the collection of their debts, the defendant knowing of such fraudulent intention.
    “ The case was referred to a master, the answer of the defendant presenting merely a denial of the allegations of fact set forth in the bill. The report of the master made the deed fraudulent and void as against the complainants. To this report the defendant filed exceptions and raised the question of jurisdiction, which has now to be passed upon. Dpes this bill state such a case as is within the appropriate jurisdiction of a court of equity ? The complainants are not judgment-creditors. They do not even claim that they have a suit pending, in aid of which the desired discovery is sought. Even the nature of the indebtedness does not appear and it is not stated whether their claim is upon note, bond, book-account or otherwise. The amount only is set forth as being ‘the sum of $1600 in the aggregate.’
    “ It is claimed that fraud being alleged and proved, therefore the case comes within the jurisdiction of a court of equity, and the case of The Bank of Kentucky v. The Schuylkill Bank, 1 Pars. .222, is cited. * * * To give a court of chancery jurisdiction on the ground of fraud there must not only be fraud but the parties complainant must show such status and rights on their part as to entitle them to be heard in this court. The mere allegation of fraud is not enough. There is no similarity between the Kentucky Bank case and that now under consideration. It was not a bill to enforce the payment of a judgment out of lands claimed to belong to a debtor, but an attempt to call to account a fraudulent agent. It is true that fraud is one of the grounds for the exercise of chancery jurisdiction, and that the statute of 13th Elizabeth, making all convevances made with intent to delay or defraud creditors null and void, is in full force in Pennsylvania. If the creditors complainant had pushed their alleged debts to judgment, and sold the land in question to satisfy the same, the evidence adduced in this case before the master would have been relevant in trying the title thus acquired as against that of the alleged fraudulent grantee. But the question before us is whether the alleged fraud can be reached by the mode complainants have adopted. In other words, can a mere creditor, whose claim has never reached judgment, sustain such a bill as that in this case to try the title to real estate ?
    “ The learned counsel has not cited us to any instance in which such a proceeding has ever been attempted, much less sustained; on the contrary, the rule and practice seems to be well settled that only a judgment-creditor can be entitled to the discovery and relief here sought, and where the object is to reach personal assets there must also have been an execution and a return of nulla bona before resort can be had to a court of chancery. In the case of Brinkerhoff v. Brown, 4 Johns. Ch. Bep. 671, the chancellor says: £ It is sufficient, however, to observe that I find the rule to have been long and uniformly established that to procure relief in equity by a bill brought to assist the execution of a judgment at law, the creditor must show that he has proceeded at law to the extent necessary to give him a complete title. If he seeks aid as to real estate he must show a judgment creating a lien upon such estate; if he seeks aid in respect to personal estate he must show an execution giving him a legal preference or .lien upon the chattels.’
    “This case of Brinkerhoff v. Brown, is cited with approval by Judge Stronq in Suydam v. Northwestern Ins. Co., 1 P. F. Smith 401. 'fc 'fc 'fc
    “In all the cases referred to the parties seeking the aid of courts of chancery were judgment-creditors. This is not the case of a creditor seeking discovery in aid of a pending suit at law, b.ut that of an alleged creditor asking equity aid in enforcing and collecting a debt not yet judicially ascertained and which may on trial be found to have no legal existence. The defendant here is not presumed to know anything as to the validity or otherwise of the debt claimed, and of course could not answer upon that issue but only as to his own complicity in the alleged fraud. * * *
    “And now, to wit, September 18th 1877, this cause having been argued upon the bill and answer and exceptions' to the master’s report, it is, after consideration, ordered, adjudged and decreed that the complainants’ bill be dismissed and the injunction dissolved and that the complainants pay the costs.”

      James Q. ‡ F. F. Marshall, for appellants.
    This case is within the jurisdiction of equity on the ground of fraud: Act of 13th of June 1840, Purd. Dig. 591; Act 14th February 1857, Purd. Dig. 592; Story’s Eq. Jurisprudence, sect. 350 ; Brightly’s Eq. Jurisprudence 69.
    The Acts of Assembly have made sundry changes in the law making or creating the lien of creditors on the real estate of decedents since 1794. One feature in all the Acts of Assembly up to the last one of 1834, was that the debts of the decedent became a lien on the real estate of the decedent from his death, protecting all the creditors alike. A judgment recovered against the executor or administrator adds nothing to the lien of the creditor; all creditors of a decedent are placed on an equal footing in the distribution of the decedent’s real estate, except those who had a lien by judgment or mortgage in the lifetime of the deceased.
    We take it to be well settled upon authority that a court of equity will interfere and grant remedial justice whether the property could be reached by ail execution at law or not, for otherwise a debtor under shelter • of it might convert all his property into cash in defiance of his creditors, to the utter subversion of justice: 1 Story’s Eq. Jurisprudence, sect. 368 ; Hadden v. Spader, 20 Johns. 563.
    To oust the jurisdiction of equity the plaintiff’s remedy at law must be full, complete and adequate: Skilton v. Webster, Bright. N. P. 203; Kirkpatrick v. McDonald, 1 Jones 387; Bank of the United States v. Biddle, 2 Pars. 31; Witman v. Lex, 17 S. & R. 91; Brightly’s Eq. Jurisprudence, sect. 398; Weir v. Mundell, 3 Brow. 594; Henry v. Deitrick, 3 Norris 286.
    [Agnew, C. J. — When did Winton die ? Under the intestate laws, have not these claims fastened upon his property as liens ? The question in my mind is whether a creditor having an absolute lien for five years can prevent the land passing into the hands of any one except for value. The question is whether this five years lien does not cover this case. It is a question too whether this is not a bill for an injunction to prevent a fraud from being consummated, and not a bill of discovery at all.]
    That is what it is.

      Vincent, Benson Brainerd, for appellee.
    The testimony showed that Winton was living and kept house in Ohio. If the deceased owned land and owed debts in Pennsylvania, there must be a court here in which such claims could be adjudicated. There was no claim made in any court in the state by anybody in any way. A claimant must at least establish his claim upon the estate before he can have such process as here claimed. If they did not establish their claims they should have at least asked the benefit of an administration. They must do one or the other before they can proceed in equity. A question of fraud between debtor and creditor cannot be tried in a court of equity in this state: Winch’s Appeal, 11 P. F. Smith 424. The question in this case cannot be tested in the way it is here sought to be. The parties here have no judgments, and cannot ask for the interposition of a court of equity.

      November 11th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

The bill in this case avers that the complainants are creditors of David Winton, deceased; that he died in December 187 0, leaving no property for the payment of his debts; that at the time of his decease he was indebted to the complainants in the sum of $1600; that previous to the 25th of May 1870, the said Winton was the owner of a farm in the county of Erie, Pa., in fee-simple; that on said 25th of May the said Winton made a deed of conveyance of the said farm to Carlos M. Kingsley, his son-in-law, reciting a consideration of $4000; that said conveyance was made by the said Winton to the said Kingsley for the purpose and with the intention of defrauding the complainants, and to hinder and delay them in the collection of their debts against the said Winton; that the defendant knew of and was a participant in the fraud; that the complainants were informed and verily believed that the defendant contemplated and intended selling and conveying said land to a bona fide purchaser with a view of preventing complainants from collecting their claims against the decedent out of said property. The prayer of the bill was for a preliminary injunction restraining the defendant from conveying or in any manner encumbering the said real estate, and that upon final hearing the deed from the said Winton to the said defendant be declared null and void, and that the said land be made subject to the payment of said debts. The answer in general terms negatived the material allegations in the bill and especially - the charge of fraud and collusion. The bill was referred to a master, who, after an investigation of the facts, found the fraud as charged by the complainants, and recommended a decree that the land be sold by the assignee in bankruptcy of the defendant, and the proceeds of the sale be applied first, to the payment of the costs of this case; secondly, to the claims of the complainants, and thirdly, to the creditors of the defendant. Upon exceptions filed the court below dismissed the bill, upon the single ground of, want of jurisdiction. That is the one question for our consideration.

While the learned judge admits that fraud is one of the grounds for the exercise of chancery jurisdiction, and that the statute of 13 Elizabeth, making all conveyances with intent to hinder, delay and defraud creditors null and void as to such creditors, is in force in Pennsylvania, he nevertheless held that the complainants had no standing in a court of equity because they were not judgment-creditors. We need not discuss the question as to how far the position of the court below might have been sustained had this bill been filed during the life of Mr. Winton. It may be that in such case the creditors would have been compelled to commence proceedings at law to establish their claims before filing their bill, though the statute of 13 Elizabeth extends the benefit of its provisions to all creditors alike, without regard to the character of their claims. But the moment Mr. Winton died, his creditors of all classes became lien creditors under the Act of Assembly which provides that the debts of a decedent shall be a lien upon, his real estate for five years after his death. We think, therefore, the mere fact that the complainants had not recovered judgment against Mr. Winton was not of itself sufficient to oust the equity jurisdiction of the court.

Fraud is one of the recognised subjects of equity jurisdiction. It is said by Judge Story, in his valuable treatise on Equity Jurisprudence, at § 350: “ It must be a fundamental policy of all enlightened nations to protect and subserve the rights of creditors, and a great anxiety to afford full relief against frauds upon them has been manifested not only in the civil law, but from a very early period, in the common law also.” As a general rule courts of equity have jurisdiction to relieve against every species of fraud: Chesterfield v. Janssen, 2 Ves. 155. The jurisdiction is expressly given by our Act of 13th June 1840, Pamph. L. 671, and has been constantly and repeatedly exercised since that time. It is especially adapted to this class of cases. Its process is plastic and may be readily moulded to suit the exigencies of the particular case. A court of equity proceeds with but little regard to mere form. It moves with celerity and seizes the fruits of a fraud in the hands of the wrongdoer. So long as fraud forms one of our recognised heads of equity jurisdiction, the mere statement of the. facts of this case forms a strong argument in favor of the right of the complainants to maintain their suit. And it must be conclusive unless they have a-full and adequate remedy at law. Had they such remedy ? It was urged by the appellee that they should have brought suit at law against the administrator, if there be one, and if not, they should have raised up an administrator for that purpose. Such a proceeding would have been a vain thing and lex neminem cogit ad vana sew inutilia. Mr. Winton was domiciled in another state at the time of his death, and left no personal estate in Erie county. There was nothing to administer. There was no real estate of which he died seised. It had been conveyed by a deed, which however fraudulent as to creditors, was good against him, his heirs, executors and administrators : Williams’s Adm’rx v. Williams, 10 Casey 312; Buehler v. Gloninger, 2 Watts 226; Stewart v. Kearney, 6 Id. 453. Whatever standing the administrator might have to impeach this deed would be derived solely from his position as trustee for the creditors defrauded. His intervention would not. seem to be necessary if the creditors prefer to proceed themselves. Any attempt of the administrator to sell the real estate for the payment of the debts due complainants would be of little avail so long as it is covered by this fraudulent title. The purchaser would buy a lawsuit with no accurate means of judging of its value. In order to make the property available for the payment of the debts, it is necessary to remove the blot upon the title. This can only be effectually done by a court of equity.

Not only would a suit against the administrator have yielded no fruit, but I am unable to see that it could have been of any avail in this proceeding. It would not have been evidence for any purpose against the defendant, for he would not have been either party or privy. Notwithstanding a judgment against the administrator, the complainants would still have been compelled to prove their debts against Mr. Winton. Nor could the costs of such a judgment have been recovered: Osgood v. Manhattan, 3 Cowen 612.

The complainants have no remedy against the heirs. The plea of riens per descent would have been a sufficient answer to an action against them.

Equity furnishes the appropriate remedy for this case. Its first move was to enjoin the defendant from conveying or encumbering the property pending the bill. Without this the creditors might have been totally defeated by a sale to a bona fide purchaser.

It is not necessary to notice in detail the authorities cited by the .appellee. Nearly all of them relate to bills of discovery, and have no bearing upon the case. Brinkeroff v. Brown, 4 Johns Ch. R. 671; Suydam v. Northwestern Ins. Co., 1 P. F. Smith 394; Hendricks v. Robinson, 2 Johns. Ch R. 283; McElwain v. Willis, 9 Wend. 548, cited by the learned .judge of the court below, were all cases of bills filed in aid of a judgment at law, and rest upon a different principle. On the other hand Loomis v. Tifft, 16 Barb. 547, is directly in point, and rules that a creditor who has neither judgment nor lien can proceed in equity against the fraudulent grantee of a decedent. We do not go so far. Here the creditors had a lien, and we go no further than to say that having a lien they have a standing in court to maintain their bill.

While in no doubt as to the law of the case, we are embarrassed to some extent by the defective manner in which it was presented. We were furnished with an abstract only of the bill and master’s report. We find nowhere a full and distinct statement of the debts of the respective complainants beyond the averment in the bill that they aggregate about $1600, and the finding of the master stated argumentatively that the debt of Justus Fowler amounted to $712. He also finds that Winton was indebted to the complainants in the aggregate sum of $1600. This is very loose and unsatisfactory. No statement or finding as to the nature and character of the claims, whether due on bond, bill, book account or otherwise. All these matters should have been clearly averred in the bill and found by the master. As, however, the master has substantially found the facts necessary to give the court jurisdiction, and to justify a decree, we are indisposed to turn a ease out of court that has substantial merit on account of the defects referred to.

The only remaining question is as to the form of the decree. The deed in controversy is void only as to the complaining creditors. The quiescent creditors, if there be any, cannot take advantage of this proceeding. This is settled by Shulze’s Appeal, 1 Barr 251, and Tomb’s Appeal, 9 Id. 61. It is apparent then that after paying first, the costs of this proceeding, and second, the respective claims of the complainants, the real estate in question ought to be released from the injunction. . Opportunity should be given to the defendant or his assignee in bankruptcy to make such payment. We, therefore, enter the following decree:

This cause came on to be heard at the October and November Term of this court, at the city of Pittsburgh, and was argued by counsel, whereupon this 11th day of November 1878, it is considered and adjudged by the court that the decree of the court below be reversed at the costs of the appellee; that the deed from David Winton to Carlos M. Kingsley, dated the 25th of May 1870, conveying 166 acres of land in Erie county, Pennsylvania,’ be and the same is declared null and void as against the complainants in this bill; that the injunction heretofore issued be made perpetual, unless the defendant or his assignee in bankruptcy shall, within ninety days from the filing of this decree, pay the costs of this proceeding, and the respective claims of the complainants in full;' and in case such payment shall not be made within ninety days, as aforesaid, then it is further ordered and decreed that the real estate described in ' said deed be sold by the administrator of David Win-ton, deceased, if there be one; and if not, by a trustee to be appointed by the court below, for the purpose of paying the debts of the complainants and the costs of this proceeding.

On the 29th of November Mr. Justice Paxson filed the following additional opinion:

After the above case was decided, and during the present term of the court, an application was made on behalf of E. T. Montague to modify our decree so that no sale of the real estate in controversy shall be made until after the claims of the complainants shall have been legally ascertained. It was alleged in support of this motion that the said Montague purchased said real estate from the assignee in bankruptcy of said Carlos M. Kingsley; that suits have been commenced at law by some of the complainants against the administrator of said David Winton, deceased, to which suits said administrator has made an affidavit of defence; and that until the amount of said claims can be ascertained, the said Montague cannot decide whether it is to his interest to pay the same, or to suffer said real estate to be sold.

The validity and amount of the claims referred to was one of the questions directly involved in the bill in equity. Until the creditors established their claims the court had no jurisdiction to declare the deed void. The master finds that Justus Fowler’s debt amounts to $712, and that the claims aggregate some $1600. This was not a very clear finding, but we have only that portion of the master’s report that bears upon the question of fraud, and there was no exception filed in the court below that the master did not find the amount of the respective claims with sufficient accuracy, or that he found them upon insufficient evidence. Upon this question, therefore, Carlos M. Kingsley and those claiming this land under him' have had their day in court.

The motion is denied.


text:
    Millard’s Appeal.
    1. A gift of the income of a fund, without limitation as to time, is a gift in perpetuity, and carries the fund itself.
    2. Where there is no bequest over, and no restriction to the life of the first taker, the gift is absolute.
    3. Where it is plain that the intention of a testator was to give the entire beneficial interest of a bequest to his nephew, the fact that he withheld the enjoyment of the principal thereof until the trustee of the nephew should be satisfied that he was sober and industrious in his habits, in no wise affects the question of intention.
    4. A testator bequeathed a certain sum to his executrix in trust, to be safely invested, and the income to be paid to his nephew, and authorizing her, at her discretion, to pay over to him the fund itself. Held, that this was a vested legacy in the nephew. ■
    October 8th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1878, No. 229.
    Appeal of Clara M. Millard, from the decree of the court dismissing her exceptions to the final account of Mary Ann McClurg, trustee of Joseph M. Millard, under the will of Thomas McClurg, deceased.
    The facts are stated in the opinion of this court.

      Moore cf Milligan and J. L. Logan, for appellant.
    The condition to pay over if Joseph should be sober and industrious, was a stipulation as to the time of payment and not a condition precedent as to the gift: McClure’s Appeal, 22 P. F. Smith 414. Vested interests have preference over those which are contingent, and in doubtful cases the first taker is preferred: Amelia Smith’s Appeal, 11 Harris 9; Malone v. Dobbins, Id. 296; Roberts’s Appeal, 9 P. F. Smith 70.

      George P. Hamilton, for appellee.
    The gift, and the direction to pay, were inseparably connected, so that the former could only be implied from the latter, and the legacy was therefore contingent and not vested: McClure’s Appeal, supra. The cestui que. trust had not the jus disponendi, and therefore the fund was not transmissible to the appellant: Fearne on Remainders; Evans v. Davis, 1 Yeates 332; Keyser v. Mitchell, 17 P. F. Smith 473; Stoner’s Appeal, 27 Id. 282; Gaul’s Estate, 30 Id. 348.
    October 21st 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

The contention in this case arises upon the construction of the following clause of the will of Thomas McOlurg, deceased: “ I give, devise and bequeath to my executrix, hereinafter named, the sum of thirty thousand dollars, in trust, that she shall and do put and place the same out at interest on good real security, or in bonds of the United States, or state of Pennsylvania bonds, or in bank stocks or other good securities, and pay over the interest or dividends therefrom and thereof from time to time when and as the same shall be received, unto my nephew Joseph M. Millard; and in ease the said Joseph M. Millard shall be sober and industrious in his habits, my said executrix may, and she is hereby authorized to pay over to him, from time to time, such portions of the principal as she in her judgment shall deem right and proper, or she may at any time she may deem it right and proper, pay over to him the whole of the said thirty thousand dollars.” On the 3d day of July 1874, Mary Ann McOlurg, the executrix under said will, filed her petition in the Orphans’ Court of Allegheny county, reciting the above clause of said will, and asking leave to invest the sum of $25,000 of the principal of said legacy in a certain bond and mortgage described in said petition, which leave was granted by the court. Previously to that time the petitioner had paid the collateral inheritance tax on the legacy, and had also, in the exercise of the discretion conferred upon her by the testator, paid over to the said Joseph M. Millard the sum of $4182.14 of the principal. Shortly after the said Joseph M. Millard died intestate, leaving a widow, Clara M. Millard, the appellant, and a daughter, Margaret Blanche Millard. The said Mary Ann McOlurg filed her second and final account as trustee of this fund, to which exceptions were filed by the appellant, upon the ground that the trustee had not charged herself with the balance of the principal of said fund remaining in her hands. The exceptions having been dismissed by the Orphans’ Court this appeal was taken.

The record raises the single question whether this is a vested legacy. If vested it would go to the administrator of Joseph, and the widow as such would have no standing in this proceeding. We are requested, however, not to decide the case upon this technical point, but to treat it as if the appellant were the personal representative of Joseph M. Millard.

We are of opinion that the legacy vested. It was evidently so intended by the testator. There is no bequest over, and there is no restriction to the life of the first taker'. There was an absolute direction to pay the interest to Joseph, with authority to pay over the principal in the discretion of the trustee. A gift of the income of a fund without a limitation as to-time is a gift in perpetuity and carries the fund itself: Roberts’s Appeal, 9 P. F. Smith 70; Parker’s Appeal, 11 Id. 478; Appeal of the Pennsylvania Company, 2 Norris 812. The testator plainly intended to give the entire beneficial interest to his nephew. It is true he withheld the enjoyment of the principal until his trustee should be satisfied that he was sober and industrious in his habits, but this in no wise affects the question of intent'. The testator evidently hoped and expected that his nephew’s conduct would eventually entitle him to receive the principal. He made no provision for any other contingency. The condition upon which the principal was to be paid having become impossible by the act of Grod, i. <?., by the death of Joseph M. Millard, what is to be done with the fund ? the trustee cannot keep it; there was no gift over, and it does not pass under the residuary clause. Either the testator died intestate as to this fund, or it must go to the personal representative of Joseph M. Millard. The law never presumes an intent to die intestate as to a part of a testator’s estate. No such intention can be gathered from this will. The plain object of the clause in question was to provide for his nephew, and at the same time prevent the fund from being wasted through idleness or intemperance. We regard this question as free from doubt, but if it were not, we would feel ourselves bound to apply the rule laid down in Amelia Smith’s Appeal, 11 Harris 9: “in the construction of wills the law in doubtful cases leans in favor of an absolute rather than a defeasible estate; of a vested rather than a contingent one; of the primary rather than the secondary intent; of the first rather than the second taker as the principal- object of the testator’s bounty.”

It was urged on behalf of the appellee, that Joseph M. Millard took nothing; that inasmuch as the trustee could withhold at plear sure he had nothing which was the subject of gift, sale or attachment; and Keyser v. Mitchell, 17 P. F. Smith 473; and Huber’s Appeal, 30 Id. 348, were cited in support of this view. It' is a sufficient answer to this to say that in the case in hand there was an absolute gift of the income, which was not the case either in Huber’s Appeal or Keyser v. Mitchell.

The accountant must be surcharged with the whole amount of the legacy and credited with the payments made by her of interest and principal. The balance of the fund will be payable to the administrator of Joseph M. Millard, if there be one, and if not to an administrator to be hereafter appointed.

The decree is reversed, and the exceptions filed by Clara M. Millard, to the account of Mary Ann McClurg, trustee of Joseph M. Millard, deceased, are sustained. The costs of this appeal to be paid by the appellee.


author: Per Curiam.

text:
    Rynd, for use, &c., versus Bakewell and Reed.
    1. The variance is fatal, where a mechanic’s lien is,filed ‘‘ for materials furnished for the erection and construction of buildings,” and the evidence shows they were for “ repairs.”
    2. The scire facias upon a mechanic’s lien answers as a statement of claim and takes the place of a declaration.
    October 9th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkev, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 201.
    Scire facias sur mechanic’s lien issued by B. E. Rynd, for use of J. T. Stockdale, against Benjamin Bakewell, owner, and William Reed, contractor.
    The affidavit of claim was “ for shingles .furnished in and about the repairing or alteration of the buildings as described in said lien,” and in the affidavit of defence, it was averred, “ that the houses mentioned in said lien were constructed over twenty years ago, and not about the time of furnishing the material.” At the trial, before Bailey, A. L. J., the evidence of plaintiff showing that the materials were furnished for repairs, the defendant moved for a nonsuit, on the ground,
    1. That there is a fatal vai'iance between the claim and scire facias in this case and the evidence offered to sustain it. The claim is for materials furnished for and about the erection and construction of certain buildings; the proof, so far as it goes, is that materials were furnished for repairs.
    2. That more than six months having elapsed since the time the materials are alleged to have been furnished, the claim filed cannot be amended, and the plaintiff must stand on the claim as filed, and has failed to prove that any materials were furnished for or about the erection or construction of the building mentioned in the scire facias.
    The court granted a nonsuit and subsequently refused to take it off, which action of the court was assigned for error by the plaintiff, who took this writ.

      JR. A. JBalph, for plaintiff in error.
    It is not necessary to state how the material was used, whether as a repair or otherwise; nor need the day be proved as alleged: Pittsburgh’s Appeal, 20 P. F. Smith 142; Hillary v. Pollock, 1 Harris 186; McCay’s Appeal, 1 Wright 125; Haviland v. Pratt, 1 Phila. R. 364; Dreisbach v. Keeler, 2 Barr 77; Fourth Baptist Church v. Trout, 4 Casey 153. Unless the claim is totally defective in giving information to those making searches for encumbrances, the question is for the jury on the scire facias: McClintock et al. v. Rush, 13 P. F. Smith 203 ; Ewing v. Barras, 4 W. & S. 467.

      Malcolm Hay, for defendants in error.
    October 14th 1878,
   The judgment of the Supreme Court, was entered

Per Curiam.

The evidence did not support the claim, which was for erection and construction, and not for repairs. No amendment had been made, if indeed any could be made, after the expiration of the six months allowed for filing the claim. The scire facias answers as a statement of-claim, and takes the place of a declaration, and being for erection and construction presented a claim for original erection. The evidence for materials furnished was for the repairs of a house already built. It is evident the allegata and probata did not agree; non constat that the plaintiff had not a claim for each — one for construction and the other for repair.

Judgment affirmed.


text:
    McGeary versus Mellor et al.

    Under the provisions of the Act of May ISth 1876, exempting pianos, melodeons and organs, leased or hired, from levy or sale on execution or distress for rent the notice required by the act must be given to the .landlord when the leased instrument is placed upon the premises, or, at latest, before the landlord's right to distrain has accrued.
    October 9th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term, 1878, No. 36.
    Replevin by Mellor & Iloene, for use of C. C. Mellor, against Henry McGeary, for an organ which the plaintiffs had leased to Mrs. Thompson, and which had been distrained upon and sold for rent, and purchased by the defendant McGeary, the landlord of Mrs. Thompson.
    It was claimed by the plaintiffs that the piano was exempt from distress and sale by reason of the Act of May 13th 1876, Pamph. L. 171, which provides: sec. 1, “ Be it enacted, &c., that hereafter all pianos, melodeons and organs, leased or hired by any person or persons residing in this Commonwealth, shall be exempt from levy and sale on execution or distress for rent, due by such person or persons so leasing or hiring any such piano or pianos, melodeon or melodeons, organ or organs, in addition to any articles or money now exempt by law; provided, the owner or owners of any such piano, melodeon or organ, or his or their agent, or the person or persons so leasing or hiring the same, shall give notice to the landlord or his agent that the instrument is leased or hired.”
    The jury found “ for the plaintiffs, subject to the opinion of the court as to whether the notice given by Mrs. Thompson, lessee of the organ, to the constable at the time of the levy, and afterwards by plaintiffs to defendant, as to the ownership of the organ in dispute after the .levy, but before the sale of the same by the constable, is sufficient notice under the Act of Assembly approved the 13th. day of May 1876, entitled, ‘ An act to exempt pianos, melodeons and organs, leased or hired, from levy and sale on execution or distress for rent,’ to exempt the same from sale as the property of the defendant in the execution ; the lease of the house in which the organ was levied upon having been executed March 15th 1876, for one year from April 1st 1876, and the lease for the organ being dated Sept. 21st 1875, for the term of one year; the landlord’s warrant issued August 22d 1876; levy made August 23d 1876; and notice of ownership by plaintiffs served August 28th 1876; and sale of organ by constable Sept. 6th 1876.”
    On this special verdict the court in banc afterwards entered judgment for the plaintiffs, Petterman, J., in an opinion, inter alia, saying :
    “We think the notice given in this case, as found by the jury, was sufficient, and in time to save the rights of the owners of the instrument in controversy. We do not think it necessary, nor does the act require the owner of the instrument to be constantly on the alert to notify the landlord of such persons as may contract for the hiring or leasing of pianos, melodeons or organs, that they own such property, and that the tenant has but a lease of it. Prior to the passage of the act the title to property leased or hired would not pass on a sale on execution against the party having possession of the same under such contracts, or, if sold, the owner could recover it upon showing the nature of the contract, although it may have been purchased by one without notice of the secret title of the real owner. But, ordinarily, such property would have been subject to a distress for rent while in possession of the lessee. Hence, the passage of the Act of May 13th 1876, to protect the rights of a particular class. The object of the act being to protect against a claim for rent, it is only when a party having a lease of property protected by the act falls in arrear with his rent, and the protected property on the leased premises is levied upon to satisfy the claim of the landlord, that it becomes necessary for the owner or lessor of the exempted property to give notice to the landlord of his claim of property, and if such notice be given without unnecessary delay, after a knowledge of the fact of a levy has been received, and before a sale, it would be sufficient, and if the landlord, in disregard of such notice, should proceed and sell the property so claimed, he would do so at his peril. Our view of the law on the facts, as found by the jury, being with the plaintiffs, judgment is ordered to be entered for the plaintiffs in the special verdict upon payment of verdict fee.”
    This action was ássigned for error by defendant.

      Samuel O. Schoyer and Marshall U. McGfeary, for plaintiffs in error.
    The Act of May 13th 1876 is a special statute for the benefit of a particular class of persons, and in derogation of the common law, and should be strictly construed.
    Every landlord looks upon his remedy by distress as the cheapest and most speedy method of collecting his rent. He looks upon the goods on the premises in the nature of a pledge, and their value measures the credit to be given the tenant. The legislature, in framing the act, had in view this state of facts, and in conferring the benefits of the act on certain persons, also intended to prevent injustice to the landlord. The benefits are upon condition that notice be given to him, and we contend that notice must be given to the landlord immediately when the tenant goes upon the demised premises, and that therefore the notice here given was not in time. The words of the act are “ shall be exempt from levy and sale,” thus showing that notice was to be given before distress.

      J. W. Kirker, for defendants in error.
    The act provides for no time for giving notice, but this Act of May 1876 is similar in its provisions to the Exemption Act of 1849, and in construing the latter act, it has been repeatedly held, that notice is good at any time before the sale: Neff’s Appeal, 9 Harris 243; Diehl v. Holben, 3 Wright 213; Rogers v. Waterman, 1 Casey 182.
    It is claimed on the part of the plaintiff in error, that as the language of the act is “ levy and sale,” the notice must be given before the levy or distress is made. The language of the Exemption Act of April 9th 1849, is precisely the same; yet it has always been held, that the demand is in time, if made after the levy and before the sale.
    The title of the act is, “ An Act to exempt pianos, melodeons and organs leased or hired, from levy or sale on execution or distress for rent,” and it is very evident, as has been held in reference to the Act of 1849, where the same language is made use of, that the intention of the legislature was to prevent the exempt property from being sold.
    Under the Act of 1849, it requires a claim or demand to call the exempting power of the statute into operation ; but under the Act of May 13th 1876, the property is already exempt, and a notice is only required to free it from the grasp of an execution or distress for rent.
    October 21st 1878.
   Mr. Justice Gordon

delivered the opinion of the.court,

The Act of May 13th 1876 was passed in favor of a special class of dealers and was intended to exempt certain of their wares from the common-law right of distress. By this act, as to the articles therein described, the landlord is deprived of a right and power which, before the passage of said act, he possessed. It follows, that this act, being in derogation of the common law, must receive a strict construction. In other words, the dealer’s right to have his property exempted ought not to be extended beyond the plain intent of the legislature, as indicated by the words of the act, and if these words are, as to their meaning, ambiguous or obscure, the rights of the landlord must be as fully considered, in the construction of the statute, as those of the dealer. Now the act prescribes that pianos, .melodeons and organs “shall be exempt from levy and sale on execution or distress for rent,” but, only, on condition that the owner of such instruments, or his agent, shall give notice to the landlord or his agent that the instrument is leased or hired. And why give notice to the landlord? If the object in view was only the exemption of this class of property, without regard to the rights of the landlord, why not leave it in the same condition which leased, or loaned property occupies with respect to .an execution for an ordinary debt ? We think this question can be fairly answered only upon the assumption that the legislature intended, as far as consistent with the privilege granted, to' protect the landlord from injury, and not to create a case of exemption similar to that prescribed by the Act of 1849. If, then, the proviso originated in the legislative regard for the lessor’s right, we must so construe it as fairly to carry out the idea thus made prominent, and this, a fortiori, if we do not thereby infringe the privileges granted to the dealer. The matter then stands thus: the dealer in the wares subject to exemption has it in his power, by notice, not only to relieve his own property from distress, but, also, by a judicious exercise of that power, to prevent injury to the owner of the demised premises. If notice be given when the leased instrument is put upon the demised property, or at a time when there is no rent due, the tenant is thereby prevented from acquiring a false credit and the landlord is informed that he must look to other goods for the rent of the current quarter, and, failing that, that he may proceed to regain possession of his tenement by the ordinary statutory methods. If, on the other hand, notice be given only after the rent is due, it may happen that the tenant may have received a credit to which he was not entitled, and the landlord may lose, by no default of his own, a lien which lawfully attached upon the goods. Seeing, then, that the former proposition puts neither hardship nor inconvenience upon the dealer, and as it seems also consonant with the legislative intent, we think it should be adopted as the proper construction of the statute.

The attempt to assimilate the act, under consideration, to the General Exemption Act of 1849, has not been successful. The former only affects the wares of a special class of dealers, and the landlord cannot know, except upon notice, whether they are leased by his tenant or owned absolutely, whilst the latter is general, and every one knows, without notice, that the exemption right belongs to the debtor, and that he may claim that right at any time before his goods are sold on execution. Further, in the one case, notice is necessary as a condition precedent to the exemption; without such notice it cannot exist; but in the other it exists without notice, and that such notice is required ht all is, only, that a presumption of waiver may be rebutted.

We conclude, then, finally, that the notice, in the case in hand, given as it was, after the levy, was too late; that it should have been given when the leased instrument was put upon the demised premises, or, at latest, before the landlord’s right to distrain had accrued.

The judgment of the court below is reversed, and judgment on the special verdict for the defendant, and that he have a return irreplevisable, and costs of suit.

Mercur J., dissents.