text:
    School District of Dennison Township versus Padden.
    1. In the selection of school teachers, the provisions of the Act of April 11th 1862, must be strictly complied with. The act requires that teachers shall be selected by the school board. Held, that a contract between the president and secretary of the board, and a teacher, without the concurrence of the board was invalid and could not be enforced.
    2. It seems that no contract for the employment of teachers should extend beyond the current year.
    March 12th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Luzerne county: Of July Term 1878, No. 17. •
    This was an action by Martin Padden against the School District of Dennison township, to recover the wages alleged to be due by said district to the minor daughter of plaintiff asa teacher. The action was originally brought before an alderman, who gave judgment for the plaintiff, when defendant appealed. At the trial before Stanton, J., the plaintiff gave in evidence an agreement under seal between Rosa Padden, the daughter of plaintiff, and the President of the School Board, by the terms of which Miss Padden was to teach in a certain school for the period of six months. This agreement was signed by Miss Padden and by the president of the board, and countersigned by its secretary. Miss Padden received her pay for two months.
    The defendant offered to show that the school board had passed a resolution naming the time for vacation during the summer months: that Miss Padden had notice of this resolution and refused to comply therewith, and that in consequence thereof she had been dismissed by a resolution of the board. The court refused to admit this evidence.
    In the general charge the court, inter alia, said :—

      “ Mr. O’Dea was the president of this board. Mr. McDermot was its secretary, and as far as we are informed on the law, it is within their province to make and execute contracts, with the approval of the school board. We have no hesitation, therefore, in saying to you that this agreement offered in evidence is entirely legal, and stands upon a legal foundation.”
    The verdict was for the plaintiff. The defendant assigned for error the rejection of the foregoing offer of evidence.

      P. S. Osborne, for plaintiff in error.
    Rosa Padden was never legally employed by the board, and, therefore, was not entitled to recover. Sect. 4, Act April 11th 1862, Pamph. L. 472, provides, that no teacher shall be appointed in any common school district, except by the affirmative votes of a majority of the whole number of the directors or controllers thereof; and in each of said cases the names of the members voting both in the affirmative and the negative, shall be so entered on the minutes of the board by the secretary. There was no evidence before the court below, that Miss Padden was ever appointed a teacher as required by this act. The case rested entirely upon the contract.
    School directors have the right and power to dismiss teachers when, in their opinion, the interests of the schools require it: Burton v. Fulton et ah, 13 Wright 151.

      John T. Lenahan and John Lynch, for defendant in error.
    The board recognised Miss Padden as a teacher, by paying her for the months she actually taught the salary agreed upon by the president and secretary with her, and by receiving and approving her reports for those months ; thus the board ratified the contract made by its officers, and although the original hiring may not have been in strict compliance with the Act of 1862, the district is bound to pay her the salary agreed upon, until she is legally discharged.
   Mr. Justice Gordon

delivered the opinion of the court, May 7th 1879.

It is very certain that O’Dea, the president of the board of directors, had no power, merely by virtue of his office, to employ teachers. By the Act of April 11th 1862, teachers can only be selected by the school board, and so specific is this act, upon this subject, that it requires the names of the members voting, both in the affirmative and negative, to be recorded upon the minutes. This is the only manner in which teachers can be selected, and, from the very nature of things, this power cannot be delegátéd. Before effect could be given to the contract, exhibited by the plaintiff, it was necessary to show, not only that O’Dea was the regularly constituted agent of the board, but that Miss Padden had been selected as a teacher by the previous action of the directors.

This statute is a valuable one, intended to compel the expression of each individual member of the school board on a subject all-important in the public education, and this for the very purpose of preventing jobbery, and the exercise of a one-man power, in the . conduct of our common schools ; we are, therefore, not inclined to permit the abrogation of its force and efficiency by a weak construction designed to meet a particular case.

The plaintiff failed in that he did not show authority in the pretended agent who executed the contract, and in that he did not show that his daughter had been previously designated by the board as one for the services of whom such a contract might be made. But not only was this contract unwarranted in itself, but the court permitted it to be used to override a previous resolution of the board, of April 28th 1877, by which the vacation for the months of July and August had been ordered, and so to absolutely strip that body of its proper and lawful discretion in the government of the schools. On the 7th of July, the directors ordered the vacation already directed by the ordinance above mentioned, but to this the contract of O’Dea was opposed, and to it the court below gave effect, to the exclusion of the action of the board. This was all wrong. O’Dea and the secretary were not the school board, and their assumption of power was wholly unwarranted. Even supposing the contract to have been properly authorized, it, nevertheless, could not take from the public authorities the reasonable control and government of the schools. In every contract for the employment of teachers, such power must be taken to be reserved, otherwise great detriment might result to the administration of this important public trust and its efficiency might be seriously crippled. Public officers cannot, by contract, or otherwise, make over to private persons, their functions or powers, for these are committed to them for the public welfare and not for private gain. As long as their contracts do not compromise the common good, or tend to defeat the purposes for which they are elected, they may be enforced, but when they pass this line they have no legal efficacy.

Judged by this standard, the resolution of the 7 th of July, seems to us, to have been but a reasonable and proper exercise of official discretion, and should have been admitted in evidence. For the two months which Miss Padden taught, she was entitled to pay, not because of the contract made with the president, but because the school district had, Avithout objection, received her services; for these two months’ services she received full compensation; this Avas all she had a right to demand, and, so, it folioavs, that the present action Avas not well brought.

We may take occasion to say here, that no contract for the employment of teachers should extend beyond the current school year. There are tAvo reasons why such contracts should not be allowed: first, the incoming board should be left free to act for itself, unencumbered by the acts of its predecessor ; second, the action of the county superintendent in refusing, as he may, certificates to teachers thus employed, may give rise to serious embarrassments and lead to disputes and complications that should, when possible, be avoided.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Trunkby

license: Public Domain

text:
    Burk, Thomas & Co’s. Appeal.
    1. The owner of two judgments, one the first and the other the last lien, with writs and levy of personal property on both, the property remaining in possession of the defendant, may stay the first and release its levy, and secure the last, without postponement of so much of the first judgment as is realized upon the second to an intermediate lien-creditor.
    2. A. & Co. Avere junior judgment-creditors of B.; O. held the first judgment lien on B’s. real estate. D. held the subsequent liens; O. issued a fi.fa. on his judgment and levied on B.’s personal property. A. & Co. issued ay?. fá. on their junior judgment and levied upon the same personal property. They then purchased and took an assignment of C.’s judgment, filed the assignment, and ordered the fi. fa. thereon returned Avit.h levy discharged, the property remaining in possession of the defendant. There Avas no collusion alleged and the defendant made no complaint. The court below held that this action of A. & Co. postponed the lien of O.’-s judgment on the real estate of B., until the subsequent liens were discharged to the extent of the avails of the personal property levied upon for the debt of C. Held, that this was error, and that the full amount of said judgment should have been awarded to A. é Co.
    March 12th 1879.
    Before Sharsavood, C. J., Mercur, Gordon, Paxson, Woodavard, Trunkey and Sterrett, JJ.
    Appeal from the Court of Common Pleas of Bradford county: Of January Term 1879, No. 4.
    Appeal of Burk, Thomas & Co. from a decree of the court confirming the report of the auditor, appointed to distribute the proceeds of the sheriff’s sale of the real estate of J. W. Vandyke, in a judgment in favor of B. W. Lane. The facts are sufficiently stated in the opinion of this court.

      Williams & Angle, for appellants. — A
    levy on personal property is not a satisfaction of the judgment pro tanto: Cummins’s Appeal, 9 W. & S. 73; Morrison v. Hoffman, 1 Barr 13; Taylor’s Appeal, Id. 390; Cathcart's Appeal, 1 Harris 416; Campbell’s Appeal, 8 Casey 88; McLaughlin v. McLaughlin, 4 Norris 317.
    After a levy on personal property, the execution-creditor, who has caused the levy, may withdraw the execution and discharge the levy without discharging the lien of his judgment on the land: Cathcart’s Appeal, supra; McLaughlin v. McLaughlin, supra.

    Applying these principles to the case, and James Vandyke could have withdrawn his execution and. discharged the levy, without postponing his lien upon the debtor’s real estate. Burk, Thomas & Co. can do all that Vandyke could have done.

      J. McPherson, for appellee.
    If appellants had sold the personal property on both their writs of fi. fa., it cannot be pretended that even with the consent of J. W. Vandyke, the defendant, that they could have applied the proceeds on the writ issued on their posterior judgment, after the -writ had issued on their prior judgment, so as to continue the latter judgment in full a lien on land, to the prejudice of intervening liens: Davison’s Assignees v. Patton, 13 S. & B. 345. . . . '
    . . . If they had hot sold the property on either writ at sheriff’s sale, but released it from both levies, and bought it at private sale in satisfaction of their posterior judgment, to the prejudice of intervening liens, this would operate as postponement to such liens pro tanto: Hunt v. Breading, 12 S. & R. 37; Wood v. Vanarsdale, 3 Rawle 406.
    If the appellants could not, by either of the above methods, obtain satisfaction of their posterior judgment, and an advantage over the intermediate lien-creditors, can they without the consent of the defendant, by shifting the levy from one execution to another? The rule stated by Justice Bell in Cathcart’s Appeal, 1 Harris 422, furnishes the answer: “ It is also true that one who has levied on the chattels of his debtor, will not afterwards be suffered to divert the levy to the payment of a posterior judgment, in detriment of an intermediate lien.”' The same rule is found in Campbell’s Appeal, 8 Casey 92 ; and is illustrated by the reasoning to be found in Hunt v. Breading, Dean v. Patton, and Wood v. Vanarsdale, supra.

   Mr. Justice Trunkby

delivered the opinion of the court, March 24th 1879.

James Van Dyke and B. W. Lane held judgments against J. W. Van Dyke, Lane’s being the posterior liens. On the 16th August 1877, James Van Dyke issued execution, by virtue of which the sheriff levied on the defendant’s personal property and advertised it to be sold on the 29th of same month. Burk, Thomas & Co., on the 24th August, obtained judgment against J. W, Van Dyke, for $220.21, and issued execution, upon which the defendant’s goods were sold, on the 14th of the following month, for $268.80. The sheriff applied $238.28 in satisfaction of their writ and paid the balance to Lane, on an execution he had issued the 25th of August. The day after Burk, Thomas & Co. had obtained judgment and issued execution, they purchased James Yan Dyke’s judgment and ordered the writ returned and levy discharged, for the purpose of securing their junior lien. Upon these facts, in distribution of proceeds of sale of J. W. Yan Dyke’s real estate, the sum of $220.21 of the James Yan Dyke judgment was postponed for the benefit of Lane: and this act is assigned for error.

The question is, whether the owner of two judgments, one the first and the other the last lien, with writs and levy of personal property on both, the property remaining in possession of the defendant, may stay the first and release its levy, and secure the last, without postponement of so much of the first judgment as is realized upon the second to an intermediate lien-creditor. It is said that Hunt v. Breading, 12 S. & R. 37, and Dean v. Patton, 13 Id. 341, rule in favor of postponement. The key-note of the opinions in those cases is, that a levy of goods is a satisfaction of the debt to the extent of their value. In the former, after stating the facts, Gibson, J. says, “ It is unnecessary to consider the effect of the rule in equity which compels a creditor who has a security on two funds, to take his satisfaction out of a particular one of them, in favor of a creditor who has a security exclusively on the 'other, as I am Satisfied, on principles of law, that a judgment-creditor who has seized the goods of his debtor in execution, cannot discharge them, and leave his judgment in force as to the'land.” He next considers the “ particular circumstances in the case stated which render it a peculiar one,” and adds, “that such an arrangement would be fraudulent in contemplation of law, I am very much inclined to believe. But the . cause is clearly with the defendant on another ground. Seizing goods in execution to the value of the debt, is a discharge of all responsibility on the part of the debtor, and consequently, a discharge of the judgment, whether the goods be sold or not.” And concludes thus: “ Here the sheriff returned, that he had levied and left the goods in the possession of the debtor, and the judgment must therefore be treated, as having been at one time actually satisfied; * * * consequently, its lien on the land is gone.” He does not pronounce the arrangement fraudulent, though inclined to think it was, nor base his conclusion on any rule in equity in reference to . postponement, or election of a fund, but puts the decision on satisfaction of the debt by reason of the' levy of goods, and upon nothing else. In Dean v. Patton, Duncan, J., with like directness, points to the foundation of the judgment, namely, that Canan, having two judgments against Clarke, on which writs of fieri facias had been issued and returned with levy of goods, and venditioni exponas issued on both, and sale of the goods on both, could not, with Clarke’s consent, authorize the sheriff to apply the proceeds on the second so as to preserve the lien of the first against an intermediate mortgage. It was argued for Canan that the goods sold were not the goods levied on. by the first execution ; and to that it was answered it was not proved, and if it were, it would be equally fatal to his claim for the reason that “ by seizure of the goods the debt was discharged, as far as the value.” The base of that decision was, satisfaction by actual levy and sale of goods on the first judgment, and the dictum, that a debt at law is satisfied by the levy.

It would be interesting to trace the transition from the rule, recognised in Hunt v. Breading, to the one now settled in this state, to wit: If an older judgment-creditor sues out a fi. fa. and levies it upon personal property, these acts alone neither pay his debt, nor postpone hi-s lien upon the debtor’s land to that óf a junior judgment. He may leave the goods levied upon in the debtor’s hands: he may release his levy and abandon his fi. fa. without affecting his right as an older lien-creditor, to claim the proceeds of sale of the debtor’s land: Campbell, Bredin & Co.’s Appeal, 8 Casey 88, and cases there cited: The dicta found in a number of cases resting on Hunt v. Breading, would not stand on the present rule. Yet it is as true now as then that, as between distributees, what does not amount to a satisfaction of the debt, as between debtor and creditor, may postpone a prior lien-creditor to a junior one. But postponement must be on other grounds than satisfaction of the debt by a mere levy of goods. Where the goods have been left in the continued possession of the debtor and he has been permitted to use them as his own, and he has lost nothing by the seizure, the levy is no satisfaction of the judgment.

The goods were not taken from the defendant on the James Van Dyke execution. He lost nothing by the levy on that writ, and the plaintiff realized nothing. James Van Dyke, had he not sold his judgment, could have stayed his writ and discharged the levy without danger of postponement of lien on real estate. He lawfully assigned the judgment to Burk, Thomas & Co., junior creditors, and they had a right to do with it what he could have rightfully done. Burk, Thomas & Co. violated no rule of ethics in the fair and vigilant use of means for collection of their debt; and the obtaining judgment and immediate issue of a fieri facias present no appearance of wrong. Lane could have issued his execution as well before as after; and his delay is no especial merit requiring compensation for what he lost by it. There is neither proof nor cause for pretence that he was circumvented. No artifice delayed him in issuing his writ. The auditor does not find that Burk, Thomas & Co. practised deceit or -collusion, and he returns no evidence that they did. Must they forbear the use of legal process in tenderness to an intermediate sleeping lien-creditor ? The law does not forbid her remedies to one seeking to collect his due, but rather sanctions their use by aiding the wakeful creditor who commits no fraud.

So much of the decree as postpones the sum of $220.21, and interest thereon from September 14th 1877, of judgment No. 270, September Term 1873, now for use of Burk, Thomas & Co., is reversed; and it is now considered and adjudged that the full amount of said judgment and its interest be allowed, and distribution be corrected accordingly. Costs to be paid by appellees.


author: Mr. Justice Paxson

text:
    Mason’s Appeal.
    3. The personal property of a decedent is the primary fund for the payment of all his debts, and a judgmentwhich was a lien on his real estate in his lifetime, is entitled' to share pro rata with the unsecured debts in its distribution.
    ' 2. The estate of a decedent consisted of two funds, one arising from the personalty, and the other from the sale of the real estate. There were both lien and unsecured creditors. Held, that both classes were entitled to share pro rata in the distribution of the personalty fund, and after its distribution, the real estate fund should be awarded to the lien creditors in the order of their priority.
    3. In such distribution there is no distinction between solvent and insolvent estates; the order of paying is the same in either case.
    4. Kamsay’s Appeal, 4 Watts 71, reviewed.
    March 13th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.

    Appeal from the Orphans’ Court of Luzerne county: Of January Term 1879, No. 68.
    Appeal of William Mason from the decree of the court distributing the balance in the hands of the administrators of Davis Dean, deceased.
    Davis Dean died in 1876, intestate and insolvent. On September 18th 1877, an order was made for the sale of the decedent’s real estate for the payment of debts, and on January 9th 1878 the court confirmed the sale. The administrators filed their account April 1st 1878. The personal property fund for distribution was $3451.11, and after paying costs of audit and preferred claims there was left a balance of $2237.86. The real estate fund for distribution at the time of the audit consisted of $1141.70 in cash, and $2985.22 secured by mortgages not due until January 9th 1879, seven months thereafter. The unsecured claims proved amounted to $10,250.13, and the liens on the real estate to $4281.75. Among the latter Mary Dean had a judgment for $573.50, and William Mason a judgment for $171. These judgments were the two last liens. Before the auditing judge it was contended on behalf -of these two lien-creditors that the fund arising from the personal property should be first distributed pro rata among all the creditors, lien and unsecured alike; that this process of distribution would pay over fifteen cents on the dollar to both secured and unsecured claims; that by this arrangement the lien debts would be reduced'about $6(00, and as the real estate fund lacked only $153.84 to pay the liens thereon in full, that payment in full would thus be secured. The auditing judge was however of a different opinion, and distributed the real estate fund first to the lien-creditors, in the order of their priority, paying a part of Mary Dean’s judgment, but not reaching Mason’s. The personalty fund was afterwards distributed pro rata, in which distribu-' tion the unpaid balance of the Dean judgment and the Mason judgment participated. Exceptions were filed to this adjudication, Mary Dean alleging that the court erred in not allowing her a pro rata share on her whole claim out of the personal fund which upon a restatement of the account was allowed. The exceptions of Mason were to the effect that all the judgment-creditors should have first shared pro rata in the personal estate fund, and then taken the balance of their claims out of the real estate fund, the result of which would have been to give the junior judgment-creditors a larger share of the above estate, and the general creditors a smaller one than has been awarded them, while the senior judgment-creditors would remain unaffected.
    The court, Rhine, P. J., dismissed the exceptions, in an opinion, inter alia, saying:
    “ The apparent dilemma lies in the fact that we have the two funds for distribution at once. We think the proper solution of this case depends upon this further proposition that where an estate is insolvent judgment-creditors may, but are not obliged, first to claim a dividend out of the personal estate, and then resort to the real estate for any deficiency; and that in the absence of any express demand on either fund, it is presumed that they elect to claim payment out of that fund which they have in their immediate grasp, and which will the most directly satisfy them: 10 Harris 442; Scott 205-6. It is elementary law that no one will be forced upon a fund simply to accommodate another claimant,- unless such fund is sufficient to satisfy his whole demand. No one will be compelled' to split up his claim and roll it around until he finds satisfaction, when he has-under his immediate control a single fund, if the purpose is simply to accommodate a stranger to him. We cannot, for such a purpose, without his consent, substitute the real' estate security of a judgment-creditor of a decedent for the personal bond of an administrator and his sureties, given for personal estate only, and thus oblige him, in case of the default of the administrator, to pursue two sets of sureties — one for that part which is to be paid out of personal estate and another for the balance awarded out of real estate. In this case the exceptant has no superior equity, for his present demand cannot be complied with without injuring the general creditors, and at least endangering the rights of the senior j udgment-creditors. ’ ’
    The distribution made in accordance with this opinion awarded the real estate fund to the lien-creditors in the order of their priority, which gave to Mason a small amount on his judgment and allowed the balance to them pro rata with the unsecured creditors, in the personal property fund. From the decree thus made Mason took this appeal.

      A. D. Dean, tor appellant.
    There was no equity which required the judgment-creditors to first exhaust the real estate fund: Torr’s Estate, 2 Rawle 254; Kittera’s Estate, 5 Harris 422. The personal fund is the primary one for the payment of all debts; 4 Kent’s Com. 420; Hoover v. Hoover, 5 Barr 356; Ramsey’s Appeal, 4 Watts 71; Walker’s Estate, 3 Rawle 237; Mason’s Estate, 1 Pars. 129; Scott on Intestate Law 187. See also Shunk and Freedley’s Appeal, 2 Barr 304; and Morris v. Olwine, 10 Harris 442.
    No counsel nor paper-book contra.

   Mr. Justice Paxson

delivered the opinion of the court, March 24th 1879.

In this.case there were two funds for distribution; one the proceeds of the personal estate; the other the proceeds of the sale of the real estate. The court below distributed the real estate fund first, and applied it to the payment of the judgments which were liens during the lifetime of the decedent, and then applied the personal fund pro rata to all the claims, including the judgments of Mary Dean and the appellant. The result was that all the judgments were paid in full, except the judgment of the appellant, which was thrown entirely upon the personal fund, and of course received only its pro rata dividend. From this decree of distribution an appeal was taken to this court, upon the ground that the court below should first have applied the personal fund to the payment of all the debts pro rata. The effect of this would have been that the lien-creditors would have received a dividend out of the personal estate, which would have so reduced the' amount of the encumbrances as to let in the judgment of the appellant upon the real estate fund, and paid him in full. There -would of course have been a corresponding reduction in the dividend to the unsecured creditors, who were confined to the personal fund.

By the law of this state, all of a man’s debts become a lien upon his real estate when he dies. For the purposes of distribution, however, judgments recovered during the lifetime of a decedent are entitled to priority over general creditors out of the proceeds of the real estate.

The personal estate is the primary fund for the payment of debts, including such as were liens upon the real estate. I know of no rule of law better settled than this. It hardly needs the citation of authorities, and I refer to only a few, that are conveniently at hand: 4 Kent’s Com. 420; Walker’s Estate, 3 Rawle 229; Ramsey’s Appeal, 4 Watts 71; Hoover v. Hoover, 5 Barr 356.

If, therefore, the administrator had filed a partial account, containing only the proceeds of the personal estate, it is clear that such proceeds must have been applied fro rata to all the creditors, including the judgment-creditors, who are secured upon the real estate. This would have produced the precise result claimed by the appellant. So much was admitted by the learned judge of the Orphans’ Court, but inasmuch as there were two funds for distribution at the same time, and the estate was insolvent, he held that the judgment-creditors’ may, but are not obliged to, claim a dividend out of the personal estate, and then resort to the real estate fund for any deficiency; and further, that in this case the appellant has no superior equity which entitles him to throw the judgment-creditors upon the personal fund, in the first instance, to the manifest injury of the general creditors. I concede there is no equity in the appellant’s claim. But this is not a question of equities, or of the marshalling of assets. Nor is it a question of election by creditors between funds. On the contrary, it is a matter of the payment of debts in the order prescribed by the Act of Assembly. As before said, the personal estate is the primary fund for the payment of debts. Until that is exhausted, or shown to be insufficient, the law will not permit the administrator to sell the real estate, and then only so much thereof as may be necessary to make up the deficiency of the personal estate. The Act of 24th February 1834, Pamph. L. 77, Pur’d. 421, provides that “ all debts owing by any person within this state, at the time of his decease, shall be paid by his executors or administrators, so far as they have assets, in the manner following, viz.: 1. Funeral expenses, medicine furnished and medical attendance given during the last illness of the decedent, and servants’ wages not exceeding one year; 2. Rents not exceeding one year; 3. All other debts, without regard to the quality of the same,-except debts due the Commonwealth, which shall be last paid.” There is no distinction here between solvent and insolvent estates; the order of paying debts is the same in either case. Nor is there any question of equities or of marshalling of assets; it is an order of the payment of debts which must be observed in all cases. The executor or administrator has no discretion ; he shall pay — is the imperative command of the statute— in the order therein prescribed. Hence, when personal estate comes to his hands, he must apply it first to the preferred debts specified in the act, and then to “ all other debts without regard to the quality of the same;” and for this he is responsible upon his official bond. Nor can this order of the payment of debts be changed by any arrangement between a class of creditors and the administrator. In the case in hand, had the personal estate been sufficient for the payment of all the debts, including general and lien-creditors, it is too plain for argument it would have been the duty of the administrator to have so applied it, and thus to have relieved the real estate for the benefit of the heirs. The same principle must be applied though the estate be insolvent.

No authority can be found in this state to sustain the position of the appellees: Ramsey’s Appeal, 4 Watts 71, is the only ease in point that I have found, or that has been called to our attention, and that is with the appellant. It is not well reported, but enough is clear to show that there were two funds, as here : the one real and the other personal; and one of the main questions was whether the personal fund should be first applied pro rata among all the creditors. This appears from the following exception: “ There was error in not decreeing the personal fund to be first applied to the payment of the debts of the deceased, according to the Statute of Distribution, and then applying the fund raised by the sale of the real estate, to the payment of the liens upon it.” It was said by Mr. Justice Rogers in delivering the opinion of the court: “ The personal fund, including of course the money arising from the sale of the land not bound by judgments obtained in the life-. time of the deceased, must be distributed in the first place, among the creditors in the order prescribed by the act. It is made the duty of an executor or an administrator to pay all the debts of the intestate in the manner therein prescribed. * * * The personal property of a decedent is the primary fund for the payment of all debts ; and this is as true of a judgment, which is a lien on the real estate in the lifetime of the decedent, as of any other debt. It is only in case there is an insufficiency of personal estate that an Orphans’ Court will order a sale of real estate to pay debts.

Ramsey’s Appeal was decided nearly half a century ago. Its principle was recognised and followed in the somewhat analogous case of Shunk & Freedley’s Appeal, 2 Barr 304, where there was a fund for distribution in the hands of an assignee for creditors. Shunk & Freedley’s Appeal was cited and approved in Morris v. Olwine, 10 Harris 442. I know of no case in conflict with Ramsey’s Appeal; certainly no such case was cited upon the argument. ■That it has not been questioned is persuasive evidence of the general approval of the profession of the pi’inciples it established.

The decree is reversed at the costs of the appellees, and it is ordered that the record be remitted to the Orphans’ Court, with directions to make- distribution in accord-' anee with the principles indicated in this opinion.

Mr. Justice Mercur dissented.


author: Mr, Justice Mercuu

text:
    Lamb’s Appeal.
    1. The Act of April 4th 1877, authorizing an appeal from a refusal to open a judgment entered by warrant of attorney, or on a note on which judgment is confessed, do;s not apply to a judgment which has been revived by agreement of the parties. The act was intended to apply to a judgment remaining unchanged by subsequent judicial proceedings, and where the defendant never had his day in court, not to a judgment ratified and confirmed by revival, with a full knowledge of the .original consideration.
    2. A judgment of revival entered by agreement of the parties in an amicable scire facias, is not a judgment entered by virtue of a warrant of attorney and from a refusal to open it, no appeal lies.
    3. Walter v. Breisch, 5 Norris 457, distinguished.
    March 13th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Court of Common Pleas of Bradford county: Of January Term 1879. No. 159.
    Appeal of Harrison Lamb from the order of the court refusing to open a judgment on the ground of usury.
    On November 9th 1864, Lamb gave to J. P. Kirby his promissory note for $510.30, wherein was a confession of judgment for that amount and a waiver of inquisition and exemption. Judgment was entered thereon to December term 1866. This judgment was revived by amicable scire facias on January 4th 1870, and it was agreed therein that it was revived for $510.30. ■ It was again revived by amicable scire facias to February term 1875, when it was again agreed that $510.30 were due thereon with interest from January 9th 1874. Execution having issued on this judgment in 1876, the .defendant took a rule to show cause why the original judgment and the series of revivals should not be opened and the defendant let into a defence. Depositions were taken in support of the rule, whereby it appeared that in November 1864, Lamb borrowed of Kirby $500, and gave his note to him for $510, for one-year, with the understanding that he was to have the money for a series of years at the rate of ten per cent, per annum; that at the end of the first year he paid $51 interest and took up the old note, giving in lieu thereof the note in question for $510, on which judgment was entered in 1866, and that he continued to pay $51 interest per annum until 1876. On May 20th 1876, Lamb paid $215.53 and all costs, which sum he alleged, with those heretofore paid and deducting the usurious interest, paid the judgment in full with legal interest.
    The court, Morrow, P. J.,- discharged the rule, in an opinion saying:
    “The law as applied in the case of Pomeroy v. McClelland, 25 P. F. Smith 410, controls this case. The defendant has had his day in court. The judgments were not revived until the liens were about to expire. The agreements to revive were in good faith and with a full knowledge on the part of the defendant of all the facts and circumstances of the case. He did not avail himself of his rights under the Act of 28th May 1858, and cannot now ask us to do for him, what he had the time, right and opportunity to do for himself. But he has had no day in court as to the usury included in the notes, and unless the plaintiff will remit $20.10 on No. 104, February Term 1875, and $8 on No. 103, February Term 1875, the judgment must be opened as to such excess. If these sums are remitted, rule discharged.”
    The plaintiff having remitted these amounts, the defendant took this appeal and assigned the discharge of the rule for error.
    ■ W. S. Thompson and Williams $ Angle, for appellant.
    The Act of x\pril 4th 1877, Pamph. L. 53, Purd. Dig. 2115, gives us the right to this appeal. And apart from this act the courts have power over judgments by confession or warrant of attorney and they can open, control and do justice in the same. Usury is the sum of all reasons for granting relief to an injured party..
    The original taint of usury, attaches to all consecutive securities growing out of the original transaction, and none of them however remote can be free from it if the descent can be traced. Campbell v. Sloan, 12 P. F. Smith 481; Overholt v. Bank, 1 Norris 490.
    The distinction between the note and the amicable scire facias as made by the court is wholly impracticable. Can there be any difference in principle as applicable to a note containing usury, wherein judgment is confessed, and in an agreement to revive judgment, and renew a lien, also containing usury? Walter v. Breisch, 5 Norris 457, rules this case.

      Pdward Overton, Jr., N. Q. Plsbree and John P. Sanderson, for appellee.
    An appeal does not lie in this case. The Act of 1877 applies only to those cases where courts refused to open judgments entered by warrant of attorney or on judgment notes.
    This appeal is taken from the refusal of the court to open two successive judgments, each entered upon an amicable scire facias, or, in other words from the refusal of the court to open judgments entered in amicable actions. It is plain that a judgment entered m an amicable action, is not entered by virtue of, a warrant of attorney or judgment note: Cook v. Gilbert, 8 S. & R. 567. ■
    The rule as to the estoppel of a judgment is one of strict law. This rule lies at the foundation of our jurisprudence, and needs no citation of authority in support of it. Its application to the case of a judgment upon an amicable scire facias is undoubted. There is no difference in legal effect between a judgment confessed, or for want of an appearance or plea, and a judgment on the verdict of a jury: Hopkins v. West, 2 Norris 109.
   Mr, Justice Mercuu

delivered the opinion of the court, May 7th 1879.

This is an appeal from a decision of the court refusing to open a series of judgments on the ground of usury. The original judgment was entered to December Term 1866. It was first revived by amicable scire facias to February Term 1870, and again in like manner to February Term 1875.

Prior to the Act of 4th April 1877, it was well settled that the question of opening a judgment rested in the discretion of the court in which it was rendered. No appeal from its action would lie to this court; nor could we review it on writ of error, unless the opening in the particular case was in excess of the power of the court: Catkin v. Robinson, 2 Watts 373. A refusal to open is simply a refusal to disturb' the judgment, and is not the exercise of an illegal power: Henry v. Brothers, 12 Wright 70; McClelland v. Pomeroy, 25 P. F. Smith 410. It is claimed by the counsel for the appellant that the right of appeal is given by said Act of 4th April. This act declares that “ in all cases of application made to any court of this Commonwealth to have any judgment, which has.'been entered by virtue of a warrant of attorney or on judgment note opened and defendant or defendants let into a defence, the party or parties aggrieved by the decision of the court thereon, may have the same reviewed in the Supreme Court by appeal, in like manner and proceedings as equity cases are now appealed.” Thus this act authorizes an appeal only in case the judgment has been entered by virtue of a warrant of attorney, or by virtue of .a note in which judgment is confessed, under the 28th section of the Act of 24th February 1806: 1 Purd. Dig. 825, pi. 32. In either case the judgment is entered without notice to the defendant, and without his having any opportunity of being heard.

A judgment of revival, entered by agreement of parties, called an amicable scire facias, is not entered by virtue of a warrant of attorney authorizing any person to appear and confess judgment nor upon a judgment note. It is a power or authority to the prothonotary to enter judgment, but no warrant to confess it. As was well said by Mr. Chief Justice Tilghman, in Cook v. Gilbert, 8 S. & R. 568, in speaking of the power under which the prothonotary acted, “ it is a mistake to call this a warrant of attorney.” It is a confession of judgment by the party defendant himself, without substituting any person to confess it for him.

From a refusal to open either of the revived judgments, it is very clear the Act of Assembly gives no appeal. The remaining question is whether the refusal to open the original judgment after the revivals comes within the true meaning of the act ?

Judgment of revival on a writ of scire facias post annum et diem not only continues a former lien, but may also create a new one on lands not before bound thereby. It has all the conclusive effect of an original judgment in determining the -amount due: Irwin v. Nixon, 1 Jones 426. For many purposes, it has an effect separate from the original. Thus the reversal of a judgment entered on a scire facias does not affect the original judgment, yet a reversal of the original judgment is a reversal of the revived one which was based upon it: Ranck et al. v. Becker, 12 S. & R. 426.

As a judgment is the end of the law in settling a controversy, there is no reason why one of revival on the agreement of the parties shall not be as conclusive as one taken on a writ of scire facias, regularly issued, unless impeached for fraud. As was said by the present Chief Justice in Hopkins v. West, 2 Norris 109, “had the judgment confessed by the plaintiff below, in favor of the defendants, been an adversary judgment upon the verdict of a juiy, it cannot be questioned but that it would have been conclusive as between the parties, even though it should manifestly appear that it included usurious interest. There is no difference in legal effect between a judgment confessed, or for want of an appearance or plea, and a judgment on the verdict of a jury.” It is true this case recognises the power of a court to open a judgment in a proper case; but the power is not the question which we are now considering. The question is, whether an appeal lies for refusing to exercise that power. That case was one of usury, and the opinion proceeds to say “ no substantial difference can be shown between this and any other illegality entering into its consideration.”

It is well settled that the mere payment of interest in excess of six per cent, since the Act of 28th May 1858, is not necessarily fraudulent even as to creditors: Good v. Grant, 26 P. F. Smith 52; Bank v. Roseberry, 31 Id. 309; Appeal of Second National Bank of Titusville, 4 Norris 528. Sections 1 and 3 of the Act of 26th March 1827, Purd. Dig. 820, pi. 5 and 6, expressly authorize judgments to be revived by agreement of the parties, and give to such revived judgment the same effect for all purposes of lien as if taken on a Avrit of scire facias sued out. The courts have favored the practice of reviving judgments in this manner, by giving full effect to the agreement. Hence a judgment confessed in an amicable scire facias upon a supposed former judgment, which did not legally exist, was held valid against encumbrances, and all others claiming under the defendant by title subsequent to the confession : Ramsay v. Linn, 2 Rawle 229. So a revival by agreement of the parties is valid, although several original judgments are therein consolidated, and one judgment entered for the amount due on all: Reed’s Appeal, 7 Barr 65.

The statute which authorizes an appeal, as in equity, on the refusal of a court to open a judgment entered by virtue of a warrant of attorney or on a judgment note, manifestly intended a judgment remaining in that form unchanged by subsequent judicial proceedings. It applied to a case in which the defendant never had his day in court. It was not intended to disturb a judgment ratified and confirmed by sueessive revivals, with a full knowledge of the original consideration. A party may be estopped in equity as well as at law. It would be a strange application of equitable principles to hold, that no appeal will lie for a refusal to open the revived judgments, yet that it will to. a refusal to open the original judgment on which the later judgments rest.

We must not lose sight of the fact, that the Act of the 4th of April 1877, makes no special reference to usury. It is general in its terms, and we must therefore consider it in its application to all cases in which the equitable powers of the court are invoked under the act.

The case of Walter v. Breisch, 5 Norris 457, is not in conflict with the conclusion we have reached. It is true that was a ease in which a judgment had once been revived, and the court on proof of the payment of interest at ■ the rate of 36 per cent, per annum, did open the original judgment. We affirmed the discretionary power of the court so to do. Without any aid from the Act of 4th April 1877, we could have held that we would not review the action of the court at that stage of the proceeding, and have affirmed it. Peoples’ Fire Insurance Co. v. Hartshorne et al., 3 Norris 453. The present case presents no such gross imposition. The court required the appellee to remit so much of the interest as it thought had been improperly taken. Whether it reached the true amount'or gave a correct reason therefor we will not now consider. We merely decide that it exercised a discretion, which under all the facts and circumstances, the statute in question does not authorize us to review.

Order discharging the rule affirmed, and appeal quashed.


author: Per Curiam.

text:
    Early & Lane’s Appeal.
    ]. Where the stock of a'eorporation is assigned to the corporation itself*as collateral security for a loan, the title -of the assignor to the stock is so far divested that it cannot be sold under an execution against-him.
    2. Where a shareholder in a building association has assigned his stock to such association as security for a loan, and the loan is also secured by a judgment, upon a sale of his real estate by the sheriff, he may elect to have the value of the stock deducted from the amount of the judgment before the latter is permitted to share in the proceeds of the sale.
    3. Where a shareholder has so elected, an attachment of the stock thereafter binds only the interest which remains after the stock has been applied to the payment of the judgment.
    March 13th 1879.
    Before Siiarswood, C. J., Merour, Gordon, Paxson, Woodward, Trjjnkev and Sterrett, JJ.
    Appeal from. the Court of Common Pleas of Luzerne county: Of January Term 1879, No. 185.

      Appeal of Early & Lane, James S. Barron & Co. and O. Howard Blood, from the decree of the court dismissing the exceptions to and confirming the report of the auditor] appointed to distribute the proceeds of the sheriff’s sale of the real estate of L. Schlesinger.
    The fund for distribution was realized from a sale upon a judgment of Blood, and amounted to $950. There were a number of judgment-liens upon the property sold, the first of which was one of the Wyoming Building and Loan Association for $1000. The second judgment was one in favor of Mrs. Silverbach for $600, and the eighth, tenth and eleventh were in favor of Blood, Barron & Co. and Early & Lane, respectively. The first judgment was given by Schlesinger to the association, on September 29th 1870, to secure the payment of a loan of $1000, made to him by the association, and for the payment of which he at the same time assigned as collateral security, five shares of stock which he held in said association. On the 12th day of March 1877, these five shares of stock were sold as the property of Schlesinger, on a writ of fieri facias to April Term 1877, issued upon a judgment of James S. Barron & Co. to January Term 1877, and two other similar writs to April Term 1877, in favor of judgment-creditors of Schlesinger. The stock was purchased by the attorney who represented the three writs of execution upon which the sale was effected for the sum of $20. The purchase w'as made with the view to give his clients the benefit of the same. The return of sale was made in due form of law by the sheriff, and was entered of record in the ordinary way.
    On the 24th September 1877, an auditor was appointed to distribute the real estate fund, and on the 22d November 1877, the counsel representing Schlesinger asked the auditor to apply the value of said five shares of stock in payment of the judgment in favor of the Wyoming Building and Loan Association, the first lien-creditor.
    This claim was resisted by the association, for the reason that the same had been sold by other creditors of Schlesinger, and she asked to have the real estate fund applied in payment of her judgment. Subsequently this claim on behalf of Schlesinger was repeated in writing, and was based upon the assertion that the sheriff’s sale of the stock on the fieri facias conferred no title upon the purchaser, because Schlesinger had previously assigned it as collateral security. The auditor’s authority to try the validity of the sale in this collateral proceeding was denied. But the counsel representing the purchasers of the stock at the audit, apprehensive that the auditor would suspend the distribution and ask the court to determine the validity of the sale, issued attachment-executions against the stock upon the three judgments on which the fi. fa. had issued and the stock had been sold. These writs were issued and levies made on same 1st December 1877.

      The auditor, however, assumed the jurisdiction to' inquire into the validity of the sale of the stock, and found, as a matter of law, that it passed no title. He defalked the value of said stock out of the judgment in favor of the Wyoming Building and Loan Association, the first lien-creditor, and payment of the balance of said judgment was awarded out of the real estate fund. What remained of the real estate fund was distributed to the judgments immediately following in their order, and the creditors who purchased the stock did not receive anything.
    The ¿uditor, J. Yaughan Darling, Esq., in his report, inter alia, said:—
    “ It is obvious that at the threshold of the case lies the question of the validity of the sale of the stock to the attorney upon the fi. fa. to April Term 1877; since, if the purchaser took a legal title to the stock, it follows that the building association is entitled to the whole fund.
    “ Can the stock of a building association assigned to it, the association, as collateral to its own loan to the stockholder, be levied upon by and sold under a writ of fieri facias ?
    “ The Act of March 29th 1819, sect. 2d, Acts of 1819, p. 226-7, Laws of Penna., vol. 7, p. 217, is undoubtedly in force, notwithstanding the Act of 1886 ; and, under its provisions, stock standing in the name of the defendant and not claimed by another, may still be sold under a fieri facias: Lex v. Potter, 4 Harris 295. The scope of the act is in terms limited to cases ‘ of stock owned by any individual or individuals,’ &c., ‘ in his or their own names.’ And it is not the exclusive remedy — attachment execution lien also: Weaver v. The Huntingdon Railroad Co., 14 Wright 314. The stock • in the case under discussion was assigned to the association, as collateral, it is true, but none the less assigned. The assignment would seem to have been duly entered on the transfer book of the association. Indeed, the assignment itself was offered “as a true copy of the original as contained in the transfer book of the association.” The certificate itself was kept in the name of the boiv rower who was entitled to its possession, and no memorandum of the assignment was made on the face of the certificate. But this is immaterial, and would be even as against a purchaser of the certificate of value and without notice: Bank of Commerce Appeal, 23 P. F. Smith 59. On the whole facts the auditor is of opinion that the stock did not pass under the sale upon the fieri facias. Whilst in a certain sense the borrower, Schlesinger, owned the stock in his own name, yet this is not the sense intended by the act. In all cases where the stock is subject to a charge or lien, and much more so where the stock has been assigned as collateral, it is essential, in the words of the present chief justice in Weaver v. The Railroad, supra, to the interest of all parties and to save litigation, ‘ that the proceedings by attachment should be resorted to, and the precise extent and character of the claim of the corporation ascertained before final execution.’ The machinery provided by the second section of the Act of 1819 is wholly insufficient to effect justice in a case like the present, and it is only by a strained construction of the section itself that it can be made to appear applicable at all. The industry of the counsel representing the Silverbach and other judgments has furnished an authority in our own court directly in point.
    “ In Mulford v. Wersberger, 8 Leg. Reg. 99, the stock had been assigned to and held by the association as collateral to its loan. The court held that the stock was ‘ held in another name than that of the real owner thereof,’ and therefore within the 32d section of the Act of 1836, requiring an affidavit and recognisance.
    “ The auditor, therefore, finds that, subject to the assignment as collateral to the association, Schlesinger owned the stock at the time of the sheriff’s sale.
    “ This brings us to the second question: Is the value of the stock at the time of the sheriff’s sale to be applied in reduction of the judgment of the association ?
    “ It would seem to be tolerably well settled that without an ‘ election’ on the part of either the borrowing stockholder or the association to have dues, &c., applied on account of the judgment, or rather the debt for which both the judgment and the stock are collateral, payments on stock will not be so applied. ‘ Such payments are not ipso facto payments’ on the lien: North Am. Build. Ass. v. Sutton, 11 Casey 463. The rule is admirably stated by Asnbw, C. J., in Spring Garden Asso. v. Tradesman’s Loan Ass., 10 Wright 493. ‘ Payments to stock are not ipso facto payment
    to the mortgage (judgment) debt or loan. It is true, according to former decisions, the mortgagor may apply his payments on the stock to the mortgage-debt, a license to do so being implied in the nature of these building and loan transactions. The building association may also apply them by virtue of the terms of the assignment of the stock which is taken as a collateral security. But in order to effectuate application of payments on stock to the debt, it requires an act of appropriation by one or the other of the parties. Strangers to the transaction stand upon a different footing. They can require nothing which the parties do not.’

      “ If this be a correct statement of the law, it follows that any election or appropriation on the part of Schlesinger would be valid and binding, not only as against the association itself, but as against all creditors not holding liens upon the stock.

      “ It is true that no appropriation was made by Schlesinger until after the sale; but is this necessarily fatal to his right to make such appropriation. It was strenuously argued by the counsel for the purchasers of the stock at the sale upon the fieri facias, and the creditors who subsequently attached the stock, that the sale of the land concluded the debtor’s fight'6f election, and the principle was invoked that the course of distribution cannot be interfered with by the debtor: Thomas’s Appeal, 19 P. F. Smith 120, and cognate cases.
    “ In the view of the auditor this .pi-inciple does not apply to the case in hand. The auditor finds a judgment in favor of the building association in the sum of $1000. It is the first lien and prima facie entitled to the fund. But the debtor sets 'up the defence of payment, a defence clearly cognizable by an auditor: Borland’s Appeal, 16 P.F. Smith 470. It is immaterial to the building association from which of the two sources, the stock or the judgment, the payment is made to them, if, in point of fact, they realize their debt. And the only objecting creditors, unless the building association can be considered as such, are those who by reason of the position of their several judgments cannot by any possibility take the fund; the whole contention on their behalf being that the fund should be applied to the judgment of the building association so as to free the stock for their benefit. It is urged in support of this position that the association, having two funds to look to, should, in accordance with the equitable rule as to marshalling assets, be compelled to go upon that fund upon which these creditors have only postponed liens, and, in this distribution, liens that as such cannot be reached.
    “ This argument assumes as its premise the existence of liens upon the stock. Suppose for a moment that no such liens exist. "What is there to limit the right of the debtor to have payments on his stock applied to the judgment ? If the association had brought suit he could have treated the payments on stock as payments on the debt. In this case the sale having been made upon another judgment, the debtor does what is practically the same thing, viz., appropriates the payments to the judgment. This is no more ‘ interference with the course of distribution’ than is every attempt to let in a junior by establishing the payment of a senior judgment. The building association must of course be paid in full whatever is owing to it; and the other judgment-creditors cannot complain, for the effect of the election is to increase, not to decrease, the fund for distribution. Nor is this in any sense a case for the invocation of the doctrine as to marshalling assets. The three judgment-creditors, apart from their position as attaching creditors, have no equity above the other lien-holders who are not reached by the fund. And, moreover, the right to use the stock payments in liquidation of the judgment, does not extend to strangers. ‘They,’ says Agnew, Justice, ‘ can require nothing which the parties do not:’ Spring Garden Asso. v. Tradesman’s Loan Asso., 10 Wright, 493.
    “ If there be a lien on the stock existing before the election then the holder might with great show of reason claim to confine the association to the fund. Possibly even a demand for subrogation ■would be sufficient to conclude the debtor’s right of election. But the auditor is of opinion that until some such step is taken ; until a definite right in, or a lien upon, the stock is obtained, the right of election continues in the debtor up the period of distribution.
    “ The only question of importance remaining is, whether the attachments of Messrs. Barron & Co., Early & Lane, and O. Howard Blood are operative as against the election of the debtor, Schlesinger. The auditor has already found as matter of fact that the election or appropriation by Schlesinger was made at the first meeting of the audit, November 22d 1877, by a verbal notice from Mr. Strauss, acting for Mr. Brundage, counsel for Schlesinger, and that this notice was repeated in a modified form and in writing by Mr. Brundage on the second meeting of the audit, November 26th 1877.
    “ The attachments are all tested December 1st 1877. Under the rulings of the auditor, if they be correct, it follows logically that these attachments bound nothing but the interest in the five shares of stock attached, after the application of their value, at the time of the sheriff’s sale, to the judgment of the association, or, in other words, the balance, if any, that might exist after the stock had paid the debt.”
    The court, Harding, P. J., in ruling upon the exceptions to this report, in an opinion, said:
    “ The important question in this whole case is — did the assignment of the building association stock as collateral divest the title of Schlesinger so far as to prevent sale on execution ? We are of the opinion that such an assignment does divest, for the time being, title in the original owner.
    “ Where a customer, by indenture, assigned a number of shares in a life insurance company, then standing in the name of the customer on the books of the company, subject to redemption on payment of a sum of money therein mentioned, and with a power of sale, an entry of this assignment was made in the insurance company’s ledger, which company afterwards refused to recognise this transfer. It was held that the notice of assignment was sufficient, and that the circumstances sufficiently showed the bankrupt not to be the reputed owner of the shares at the time of bankruptcy: Ex parte Masterman, 2 M. & A. 209 ; Grant on Banking 154.
    “ So where A. insured the life of B., payable to A. on the death of B., immediately afterward A. assigned the policy to his banker as security for a loan or advance which was also secured by a mortgage of real property. It was held that the company had no right to call upon A. and the bankers to interplead, and the bill was dismissed with costs: Dessborough v. Harris, 3 Eq. Rep. 1058 ; see also Butchart v. Dresser, 10' Hare 453; 4 DeG-., M.’ & G-. 542; Ex parte Dobson, 2 M., D. & DeG-. 685.
    “ The English doctrine here explained is fully sustained in our. courts. In the case of Hanna v. Holton, 28 P. F. Smith 834, it was held that the assignment of a collateral security to a creditor, to hold for the security of his debt, establishes a privity of contract which invests him with the ownership of the collateral for all purposes of dominion of the debt assigned.
    “ Where one was indebted to a bank in a sum much larger than the value of some stock of the bank he owned, and it was verbally agreed that he should transfer the stock as collateral security for his indebtedness, and a power of attorney was accordingly drawn up for that purpose, it was held that this agreement operated as an assignment of the stock in equity: Lightner’s Appeal, 1 Norris 301. But "where a creditor takes a mortgage note, or other chose in action only as security for a pre-existing indebtedness, and not for money advanced at the time, he is not a purchaser for value.:
    . Petrie v. Clark, 11 S. & R. 377 ; Irwin v. Tabb, 17 Id. 419 ; Hartman v. Dowdel, 1 Rawle 282; Twelves v. William, 3 Whart. 485 ; Depeau v. Waddington, 6 Id. 220; Trotter v. Shippen, 2 Barr 358; Ludwig v. Highley, 5 Id. 139; Kilpatrick v. Muirhead, 4 Harris 123 ; Ashton’s Appeal, 23 P. F. Smith 162.
    “ It was the duty of the creditors here to have strictly pursued the mode pointed out by the statute when they originally proceeded against the stock held in the name of Schlesinger, notwithstanding it was assigned to the building association as collateral security. There was an equity of redemption in Schlesinger, sleeping, it is true, but nevertheless ready to tap at the conscience of a chancellor sitting in equity at the moment the loan to the association was paid: 1 Purd. Dig. 639, sects. 29, 30, 31; Commonwealth v. Watmough, 6 Whart. 117 ; Lex v. Potter, 4 Harris 295; Weaver v. Hunting-don Railroad Co. 14 Wright 314.
    “ The fund in court represents all that Schlesinger’s real estate sold for. Here, therefore, is a creditor stripped of all his tangible or valuable property, save only his equity in the stock of the association in question. It is to this fund the jurisdiction of this court has attached. Jurisdiction having attached, equity comprehends within its grasp all incidental matters necessary to enable it to make a full and final distribution, and therefore to terminate litigation while it affords a perfect remedy : Souder’s Appeal, 7 P. F. Smith 502 ; Rice’s Appeal, 29 Id. 182.

      “ Subsequent'to the assignment of this stock as collateral security, and subsequent to the sale of the same on the Barron & Co. execution, Barron & Co. sued out their execution on the 1st day of December 1877, and attached these five shares of stock according to law. Several other creditors did the same prior to the filing of . the report of the auditor in court. How far this estopped these creditors from denying that this stock was yet the property of Schlesinger need not be decided under our present views of this question.

      £t We must, therefore, overrule the exceptions in this case and direct the fund in court to be distributed as directed by the auditor.
    “ Exceptions overruled and report confirmed.”
    From this decree this appeal was taken, the assignments of error being:
    The court erred: 1. In recognising and aflirming the jurisdiction of the auditor to inquire into the validity of the sheriff’s sale of stock, because an execution cannot be assailed collaterally except in cases of fraud, and an auditor cannot go behind the sheriff’s return, which is a part of the record, to inquire into the validity of the sale. 2. In confirming the finding of the auditor that the sheriff’s sale conferred no title upon the purchaser. 3. In not awarding the whole of the real estate fund to the association, the first lien-creditor.

      G. D. Foster and John McGahren, for appellants.
    The auditor possessed no supervisory po'wer by which he could pass upon and determine the validity of sheriff’s sale of stock, upon the principle that an execution, like a, judgment, is valid until reversed or set aside: Stewart v. Stocker, 13 S. & R. 204; Lowber’s Appeal, 8 W. & S. 387; Wilkinson’s Appeal, 15 P. F. Smith 190.
    And it is settled, if anything can be, that an erroneous judgment or aii irregular execution, not void, can be set aside only by direct application to the court from which the process emanates, and not by collateral attack under cover of any other proceeding: Herman on Executions 517; Stewart v. Stocker, supra; Lowber’s Appeal, suprd; Wilkinson’s Appeal, supra; Whart. on Ev. 833.
    ' No question can be raised before an auditor regarding an error or irregularity in the judgment or in the issuing of execution: Tr. & H. Pr. vol. 1., p. 1076 and cases cited.
    Schlesinger exercised all the acts of ownership and enjoyed all the rights and immunities over the stock after the assignment as collateral security, that he did before. The assignment made was not an absolute transfer; but it was simply an hypothecation of it for the payment of the loan. The indices of ownership remained the same after the loan as before.
    The association had no greater interest or title to the stock than she would have had if the assignment as collateral had not been made. The Act of June 16th 1836, Purd. Dig. 635, pi. 12, provides that the sale of stock upon execution shall be subject to all lawful claims thereupon of such body corporate. The right of the association as against the stock could not be any more affected or prejudiced by a sale of the same on fieri facias in the one instance than in the other. The manifest object of the act was to protect the rights of the person who was the real but not apparent owner of the stock, and preclude the possibility of having it swept away by execution process for the payment of the apparent owner’s debts.

      Courts of law, as well as equity, in the distribution of a fund in the hands of the court, invariably apply the equitable principle, that where one creditor has a lien on two funds, and another creditor has a lien on one, only the creditor having the lien on the two funds will be compelled to levy his execution and seek his satisfaction out of that fund upon which he alone has security, so that both creditors may be protected in their rights: Ramsey’s Appeal, 2 Watts 228; Bruner’s Appeal, 7 W. & S. 269; Findlay v. TJ. S. Bank, 2 McLean 44; Trimmer v. Bayne, 9 Ves. 209.

      S. J. Strauss, for appellees.
    Assuming that the sale upon the fieri facias conveyed title, it was only the title of the defendant, subject to equities existing against him. The distribution defalked the stock at the request of the defendant, and at its actual value. The auditor had the right and the power to work out the equities of all the parties before him, and to complete the distribution as if the subrogation had been made. This was done in Ramsey’s Appeal, 2 Watts 228; Souder’s Appeal, 7 P. F. Smith 502; Rice’s Appeal, 29 Id. 182.
    Stock not standing in the name of the real owner cannot be sold by virtue of a fieri facias: Act 16th June 1836, sects. 32, 33, 34, Pamph. L. 767; Lex v. Potter, 4 Harris 295; Weaver v. Railroad Co., 14 Wright 314.
    Such a sale is void. A sale of property in pursuance of any other execution or record than that prescribed by law, vests no title: Hern, on Execution, sec. 258, &c.
   The judgment of the Supreme Court was entered, March 31st 1879,

Per Curiam.

We affirm this decree on the able report of the court opinion of the learned president confirming it.

Decree affirmed, and appeal dismissed at the costs of the appellant.


author: Mr. Justice Woodward

text:
    Walsh versus Commonwealth ex rel. Evans.
    1. Sect. 8, art. 4, of the constitution, provides that the governor “may fill any vacancy that may happen * * * in any judicial or in any other elective office, which he is or may be authorized to fill; * * * but in any such case of vacancy in an elective office, a person shall be chosen to said office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding such election, in which case the election for said office shall be held at the second succeeding general election.” Held, that when a new county is erected, a “ vacancy” in the county offices “happens” withir the meaning of this constitutional provision.

      2. The new county was erected August 21st 1878. The next general election was on November 5th 1878. Held, that no election for new county officers could be held until the second general election succeeding the erection of the county, and that the appointees of the governor were entitled to hold over until the commencement of the term of those chosen at said general election.
    March 14th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Lackawanna county: Of January Term 1879, No. 219.
    Quo warranto by the Commonwealth, ex relatione Richard Evans, against Patrick M. Walsh, to show cause by what authority he exercised the office of county surveyor of the county of Lackawanna.
    The suggestion of Evans, filed January 22d 1879, averred that on November 5th 1878, the relator was duly elected according to law to said office of county surveyor, to serve for three years, from the first Monday of January 1879 ; but notwithstanding said election the respondent used and continues to use the franchises of said office, &c. The relator therefore prayed due process of law against the respondent, and that he be made to answer, &c. A rule on Walsh to show cause why a quo warranto should not issue against him having been made absolute, and the quo warranto having issued, the respondent filed an answer, wherein he averred that in accordance with the Act of April 17th 1878, entitled “ An act to provide for the division of counties of this Commonwealth, and the erection of new counties therefrom,” and the proceedings had as therein provided, and in accordance with the constitution and laws of this Commonwealth, the county of Luzerne was on the 21st of August 1878, divided, and the county of Lackawanna erected therefrom, with all the rights, powers and privileges of other counties of this Commonwealth. That by reason of the erection of said county oof Lackawanna, a vacancy in the office of county surveyor of said county happened less than three months before the next general election, and Patrick M. Walsh, respondent, was on the 21st day of August 1878, appointed by the governor to be the county surveyor of Lackawanna county, to fill said vacancy, and duly commissioned, as appears by the copy of the commission issued by the governor to the respondent.
    The respondent further saith that by virtue of said appointment and commission, he entered upon the discharge of the duties of said office, after having first duly qualified as required by law. That the respondent’s term of office will not have expired until the end of the session of the senate of the Commonwealth of Pennsylvania, next following the date of the respondent’s appointment, which session of said senate had not expired at the date of issuing the writ in this case ; and that the Commonwealth ought not to have judgment, for the reason that by law the respondent is entitled to hold the office of county surveyor until his successor is duly elected and qualified, and that there can be no legal election for the office of county surveyor of the county of Lackawanna until the second general election succeeding the appointment of the respondent.
    The Act of 1878 contains, inter alia, the following provisions:
    “ The governor shall immediately appoint and commission for the new county the necessary county officers, as provided by law, who shall perform the duties, have the power and be subject to the like qualifications as have county officers of this Commonwealth, and shall continue in office until the next general election and until their successors shall be duly elected and qualified.

      “ At the next general election after the erection of said new county, the qualified electors shall elect the said several county officers, as aforesaid mentioned, to hold their offices as is provided by law.”
    Section 8, article 4, of the constitution, provides that the governor shall have power to fill all vacancies that may happen in offices to which he may appoint, during the recess of the senate, by grant-ting commissions which shall expire at the end of the next session ; he shall have power to fill any vacancy that may happen during the recess of the senate, * * * in a judicial office, or in any other elective office which he is or may be authorized to fill; if the vacancy shall happen during the session of the senate, the governor shall nominate to the senate before their final adjournment a proper person to fill said vacancy ; but in any such case of vacancy, in an elective office, a person shall be chosen to said office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding such election, in which case the election for said office shall be held at the second succeeding general election.
    On February 26th 1879 the relator demurred to this answer, and on the same day, at the request of the parties, judgment of ouster was entered pro forma, when the respondent took this writ.

      L. Amerman, Stanley Woodward and J. H. Burns, for plaintiff in error.
    We contend that all appointments made by the governor to fill vacancies in. elective offices must necessarily be made in conformity with the constitutional provision. The section of the Act of April 17th 1878, clearly confers upon the governor the power of appointing the new county officers. The way in which this power can be exercised by him is regulated by the constitution, and the term of the appointed officer and the time of choosing his successor, are so clearly and definitely fixed, that there is no room nor power for statute regulation. We believe that in this case the statute and constitution may be harmonized; but we say if there be a conflict, the statute must give way. The vacancy in this case having occurred less than three months previous to the general election, no successor to the respondent can be legally chosen till the second succeeding general election. Those who object to this view of the case, say that the respondent was not appointed to fill a vacancy that happened, but to an office created by the new county act, and that therefore the appointment does not come within the constitutional regulation. To this we answer that the office in question is not a created office within the meaning of the term, and even if it were, so far as this case is concerned, there is no difference between a vacancy caused by the creation of an office and one produced by death or resignation.
    The question turns upon the construction of the word “ vacancy,” not on the w'ord “ happen.” The usual words of limitation “ by death,” “resignation,” “otherwise,” &c., are not added to the word “happen.” “ Vacancy, ” therefore means any vacancy in any of the offices enumerated.
    The constitution, article 14, sections 1 and 2, designates who are county officers. An officer implies the existence of an office. A county without officers cannot exist under our constitution. It is idle to argue that an office corresponding with every officer enumerated in the constitution does not exist in every county in the state. When Lackawanna county was erected, it was invested with all the rights, powers and privileges, and with all the offices of other counties of this Commonwealth. On the 21st day of August 1878, the first day of its existence, these several county offices were without incumbents. They were vacant in every sense of the word. What is a “ vacancy ?” Webster says it is “ the state of being destitute of an incumbent; a place, or office not occupied, or destitute of a person to fill it.” “From vaco, vacans, to be empty.” Worcester : “ The state of a post, office or employment when destitute and wanting an incumbent; a place or office which is empty and not filled.” Johnson : “ State of a post when it is unsupplied.” Bouvier: “ A place which is empty.” Judge Marcy in People v. Green, 2 Wendell 278, says: “ It has been sometimes applied to the office as contradistinguished from the term of service, and at others, to the term of the office. I understand it as applicable to the office alone.”
    When the governor has power to fill vacancies we contend that it applies as well to places, which have never before been occupied, as to a place which has been previously occupied. There is no valid distinction between an office never filled and an office vacant because empty. Again, the act creating Lackawanna county did not create the office of surveyor. This office was created by the existing law. It existed by virtue of the county. When a new county is created the constitution attaches to it the necessary county offices, and unless there be some express provision that the duties of the office shall, for the time being, be performed by some other officer, then these offices are vacant, and the vacancy is such an one as the constitution intended to provide for: Stocking v. State, 7 Indiana 329 ; Collins v. State, 8 Id. 344 ; Biddle v. Willard, 10 Id. 63; People v. Parker, 37 Cal. 650; State ex rel. Attorney-General v. Irwin, 5 Nevada 111; State v. Adams, 2 Stewart (Ala.) 231; Gormley v. Taylor, 44 Georgia 79 ; Giles v. Russ, 49 Id. 115 ; Dillon on Municipal Corporations, sect. 161, note 4; 14 Opinions U. S. Attorney-General 2.
    It is also claimed by the other side that section 2, article 14 of the constitution, which provides that “ all vacancies not otherwise provided for shall be filled in such manner as may be provided by law,” was intended to and actually does leave appointments to fill vacancies in county offices, subject entirely to regulation by statute, and that the new county act being the latest statute on the subject, so far as this case is concerned, it repeals all other statutes that conflict with it, and stands without any constitutional limitation whatever in regard to appointments. In our opinion this provision in no way alters or affects the powers and limitations in regard to appointments made by the governor, but was intended solely to allow the legislature to vest the power of appointment of county officers in other hands than those of the state executive, if they saw fit.

      S. M. Edwards, E. Merrifield and ZT. W. Palmer, for defendant in error.
    The constitutional provision refers solely to vacancies that may happen to an existing office. It contemplates that the office has once been filled: Sergeant’s Constitutional Law 373; Mc-Crary’s Law of Elections 237.
    That there are two kinds of vacancies contemplated in the constitution, is shown by the provision contained in section 2, article 14, where is found, “ all vacancies not otherwise provided for, shall be filled in such manner as may be provided by law.” The vacancies provided for in section 8, article 4, are such as occur from death, resignation, promotion or removal. In the ease in controversy, the vacancy did not come by chance; it was created; it was the act of the people, and the very power that enabled them to act, provided at the same time how the offices should be filled, and for how long a time; clearly coming within the provision of article 14, section 2, and being one of the vacancies not otherwise provided for. That this section 8, article 4, has a limited meaning, so far as the word “ vacancy ” is concerned, is decided in the case of Commonwealth v. King, 4 Norris 103, which rules this case. This is an elective office, and no vacancy can exist therein until an election has once been had. This was not a vacancy in an existing term, in an office that had been regularly filled by the major power of the people. All county officers must be elected by the people, and there can be no such thing as applying the constitutional provision to extend-the term of appointees, who are not made to fill the term of a regularly elected officer. It was not a vacancy that in the legal acceptation of the term, “happened.” The word “happen,” limits the power to cases where there has been an incumbent.
    There is no intention in the constitution to fix a time of notice for holding elections to three months. The provision is simply for vacancies that happen within existing terms, to offices that have been regularly filled. It certainly was not meant to take from the people of Lackawanna county the right to elect their officers, which, under the respondent’s view, it would do; because if the office of surveyor should become vacant within three months of the next election, the appointee would hold over, and so under similar conditions indefinitely.
   Mr. Justice Woodward

delivered the opinion of the court, March 31st 1879.

On the 17th of April 1878, the “Act to provide for the division of counties of this Commonwealth, and the erection of new counties therefrom,” was passed. Proceedings to promote the division of the county of Luzerne, and the erection of the county of Lackawanna were at once begun. These proceedings were perfected on the 21st of August 1878, when the governor declared by proclamation that a majority of the votes cast at the election held under the terms of the act, on the 13th of August 1878, had been in favor of the creation of the new county, and that thenceforth, in the words of the 9th section, “said new county was established, with all the rights, powers and privileges of other counties of this Commonwealth.” In the 11th section, the governor was required immediately to appoint and commission the officers for the new county, who should continue in office until the next general election, and until their successors should be duly elected and qualified. Patrick M. Walsh, the defendant in this quo warranto, was appointed surveyor the day the establishment of the new county was proclaimed.

At the general election, held on the 5th of November 1878, the relator, Richard Evans, received a majority of the votes cast for county surveyor. The term for which the defendant was copa’missioned was “until the end of the next session of the senate,” and he resisted.the relator’s claim to the office, because, as he alleged, the election of county officers at the general election of 1878 was undue and illegal. The ground was taken that it had been held in violation of section eighth of the fourth article of the constitution, declaring that “ in any case of vacancy in an elective office, a person shall be chosen to said office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding such election, in which case the election for said office shall be held at the second succeeding general election.” Less than three calendar months intervened between the date of the defendant’s commission and the date of the'election. Insisting that the office of surveyor was vacant when he was appointed, the defendant asserted his right to retain it until the final adjournment of the session of the senate in 1879. The relator, on the other hand, denied that he was such an elective officer as was contemplated in the constitutional provision. He contended that the design of the legislature in the 11th section of the act was to bridge over the interval between the creation of the county and the next election, by directing the governor to appoint new officers, instead of directing that their duties should be performed by the existing officers of the county of Luzerne. He relied on the second section of the fourteenth article of the constitution, requiring that “ all vacancies not otherwise provided for, shall be filled in such manner as may be provided by law.” Invoicing that direction as one of the grounds to support his claims, he began this proceeding to obtain possession of the office, and prosecuted it to a judgment, pro forma, of ouster against the defendant.

Was the office of surveyor of the county of Lackawanna vacant, in the constitutional import, on the 21st of August 1878 ? The verb “ to vacate,” in its English form, has acquired an active sense through a long period of transition, by popular usage and in consequence of its early adoption as a technical and legal term. “ To leave empty;” “to cease from occupying;” “to annul;” “to make void,” undoubtedly express the different meanings in which, as a verb, the word has come to be employed. But it does not follow that its derivatives have acquired exclusively equivalent meanings in popular, or legislative, or legal usage. In its original Latin form, the word was invariably used to define the state and condition of some existing thing at some particular point of time. It had no transitive power whatever. It meant “ to be empty, void or vacant;” “to be void of, free from or without, to lack or want a thing.” Vacant lands were described as lands that were “ uninhabited or uncultivated.” The Roman law gave the word precisely the same meaning. Vacant possessions were defined by Ulpian, in the Pandects, to’be such as were “free, unnoccupied, ownerless:” Dig. 38, 17, 2. And many of the derivatives from the English verb retain the exact meaning of the original Latin word. To be “vacant,” in its primary sense, is “to be deprived of contents; empty ; not filled.” The first definition of “ vacancy,” is “ the quality of being vacant; emptiness.” The wmrds “ vacant lands,” so familiar in the Pennsylvania courts, convey as to description of subject-matter, the precise idea which Ctesar conveyed in explaining the public policy of the Suevi. Surrounding their own territories they desired, to as wide an extent as possible, vacare agros. De B. Gal. IV. 3. Usage has warranted the employment of these words in an enlarged and broader sense, hut the primary and strictly grammatical meaning which they still retain is identical with their exclusive original signification. The result is that the word “ vacancy ” aptly and fitly describes the condition of an office when it is first created and has .been filled by no incumbent. The need to strain and torture terms would lie in the opposite direction.

Was the claim of the relator sustainable on other grounds ? When the defendant was commissioned, executive, legislative and popular action had established the county of Lackawanna, and with it the office of surveyor. It was an existing unfilled elective office. The duty of the governor to fill it was clear. He derived his original power to appoint from the constitution, and that had authorized him-to issue a commission in the event of a vacancy in any elective office. It is true the statute had directed him to appoint the officers of Lackawanna; but without that direction, if the offices had been established by special enactment, it would still have been his constitutional duty to issue the commissions. The eleventh section directed that the officers appointed by the governor should retain their places until the next election, and until their successors should be duly elected and qualified. Due election and qualification could only result from action in accordance with the constitution and existing laws. If the county had been organized before the 5th of August 1878, the legality and regularity of the election on the 5th of November would have been unquestionable., But until the 21st of August it was uncertain whether the county would ever have existence at all. The proclamation changed what had been a project into a vital actuality. The moment the life of .the county began, there came into being the several county offices specified in the first section of the fourteenth article of the constitution. They were not places to be filled by clerks-, or agents, or deputies, pro hac vice. They were elective' offices and they were vacant. All the conditions under which the constitutional duty of the governor to select incumbents subsisted. Is it possible that in view of such conditions, the legislature could have the power, even if they had so intended, to take these offices out of the operation of the constitutional provision ? But they could have had no such intention. When the act was passed, it was as uncertain that the organization of the county would be perfected three months after the next election, as it was that it would be perfected three months before. And on what principle can the second section of the fourteenth article apply in any way to this question ? They were “ vacancies not otherwise provided for,” which were to be “filled in such manner as should be provided by law.” But these vacancies were such as had been provided for. They were vacancies in elective offices which the governor had power to fill. The provisions of the Act of the 17i;h of April 1878, must be construed in its connection with the provisions of the constitution, and the officers of the county pf Lackawanna must stand on the same footing as if their places had previously been occupied, and they had succeeded to them by appointments to supply vacancies produced by causes of ordinary and familiar kinds.

It was strongly urged at the argument that no ground of reason or convenience .existed in this case to justify an interference with the right of the people to elect their officers in the autumn of 1878. It was said that there was ample time after the proclamation to select candidates, and to provide that the rights of parties, individuals and the community should be secured from hazard. If this court had the power to say this, it is possible that this suggestion would be adopted. It is true that all formal details relating to assessments, revision of lists, the furnishing of ballot-boxes and blanks, and the notice to be given by the sheriff, could have been arranged in this interval of seventy-six days. But cases might occur where the interval would be forty, thirty, twenty or ten days. And it would be necessary to go into an inquiry in each instance into the adequacy of time to prepare for the election. To guard against a shifting rule like this, fortunately for the community and the courts, the constitution has established an abiding and pervading system. It was the opinion of its framers that the work of selecting officers for the government of the Commonwealth, and of the counties of the Commonwealth, should be carefully and thoughtfully done. Haste, impulse and evil temper will enter into political contests, whatever safeguards may be thrown around the ballot, and whatever may be the period allowed for deliberation. But the constitution has established the unbending rule that three full months shall be the period within which to prepare for an election to supply a vacancy, and during which mistakes may be corrected, prejudices may be overcome, ignorance may be enlightened, excitement may be allayed, and passions may subside. It has not been suggested that this election resulted in the choice of a surveyor who was not entirely competent, and did not possess every requisite qualification for the duties of the position. But it has sometimes happened that in haste, and under the influence of prejudice, very important offices have been filled, not only by very incompetent, but by very bad men.

It has not been thought necessary to encumber this opinion with quotations from the authorities bearing on this question. They are overwhelmingly preponderant in favor of thé position of the defendant, and have been marshalled with great ability in his counsels’ original and supplemental briefs. Indeed, in this connection, the court have pleasure in acknowledging the benefit they have derived from the careful, skilful and thorough preparation of this cause by the counsel for both the parties. A single remark in regard to each of the cases of The Commonwealth v. Swift, 4 Whart. 186; Broom v. Hanley, 9 Barr 518, and The Commonwealth v. King, 4 Norris 103, needs only to be made. The only point ruled in the first was, that the constitution of 1838 did not create a vacancy in the office of recorder of deeds, and that the power remained in the governor to appoint under the constitution of 1790 until the general election in 1839. In the second, it was decided that the death of a person elected to fill the office of clerk of the Orphans’ Court before he had qualified himself, according to law, did not create a vacancy, but the incumbent who was commissioned to fill the office until his successor should be qualified, held over. In the third case, the sheriff of McKean county died about three weeks before the general election of 1875, in the third and closing year of his term ; and as the people of the county could have devoted the whole of the three years to preparation for the election of his successor, it was held of course, that the appointee of the governor could retain the office only to the time when the new term began in January 1876. Nothing decided in either of those cases touches the points in issue here.

The judgment of ouster is reversed at the costs of the relator : and it is now ordered, adjudged and decreed that judgment on the demurrer in favor of the defendant be forthwith entered: and it is further ordered, adjudged and decreed, that the said defendant recover his costs of said relator, to be levied by execution, as in cases of debt.

Justices Mercur and Gordon dissented.