author: Chief Justice Ag-new

text:
    Mauch Chunk versus McGee.
    1. The title of an act was, “ An Act giving the right to the Town Council of the Borough of Mauch Chunk to huild drains, and sewers, and file liens for the building of the same.” The act authorized the council to direct lot-owners to build sewers, &e., and upon failure, the authorities might build, &c., and charge the cost as provided by the General Borough Law. The 2d section authorized the authorities to impose a reasonable charge'upon lot-owners, “ who may have tapped or who may hereafter tap, any sewer, &c., which was built or may hereafter be built” by the borough — not exceeding $1 yearly for each foot front of the lot, which charge may be discontinued when the borough is reimbursed the expense of “ building and maintaining” the sewer, &c.; the charge may be collected by action of debt. Held, that the 2d section was within the scope of the title and was constitutional.
    2. Part of an act not within the subject stated in the title, may be declared unconstitutional, leaving the rest to stand.
    3. It is the duty of the court to reconcile the different parts of a law, if it can reasonably be done, rather than frustrate the legislative action. .
    4. The provision that the charge “ may be discontfnuec] when the borough is reimbursed, &c.,” is mandatory, to guard against a continuing charge for construction beyond the time of payment; leaving the borough under its general powers — which are ample — to collect a charge from lot-owners for the use of the sewer.
    5. A sewer built before the passage of the act being within the powers conferred by the General Borough Law, was not illegal.
    6. Such sewer was within the intent expressed in the title of the act, authorizing the borough to file liens for building.
    7. The remedy in the title to “ file liens,” is only modal, the purpose being to secure the expense.
    8. The.collection is the substantial point intended of the authority to file the lien ; and any remedy for collection in the body of the act would not be foreign to the title.
    9. Useful and honest legislation should not be defeated by too rigid an adherence to the letter of the Constitution; or pretexts be caught at to avoid legislation where it can be fairly reconciled with the Constitution.
    10. If the title fairly gives notice of the subject of the act so as reasonably to lead to an inquiry into the body of the bill, it is sufficient; it is otherwise if it tends to mislead and draw attention from a covert purpose in the bill.
    March 20th 1876.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Carbon county: Of July Term 1875, No. 21.
    This was an action of debt originally commenced before a justice of the peace by Mauch Chunk borough against Bernard McGee, “ to recover rent for the use of a sewer” built by the plaintiff. The case was brought by appeal into the Court of Common Pleas, June 15th 1872.
    The borough of Mauch Chunk is under the General Borough Law of April 3d 1851, Pamph. L. 320, 1 Br. Purd. 167.
    The action was brought under the Act of March 24th 1869, Pamph. L. 514, and the question in the case was whether the subject of the act was so “clearly expressed in the title,” as that the act was not unconstitutional. The act is as follows:—
    “ An act giving the right to the town council of the borough of Mauch Chunk to build drains and sewers, and file liens for the building of the same.”
    “ Sect. 1. Be it enaóted, &c., that the corporate authorities of the borough of Mauch Chunk, in the county of Carbon, shall have the right to order and direct the owner or owners^ or reputed owners or occupiers of the lot or lots of ground in front of, or alongside of which, or through which any drains, sewers or culverts may become necessary, to build the same in such manner as may be directed; and upon failure of the owners of said lots so to do withiiij the time prescribed by the ordinance of said borough, then the said corporate authorities may do the same, and may collect the cost of the work and material in the manner provided in the sixth article of the second section of the act of the General Assembly of the Commonwealth of Pennsylvania, entitled “ An Act for the incorporation of boroughs,” passed April third, one thousand eight hundred and fifty-one; and the said borough authorities shall have the same right to order and direct the repair of all drains, sluices and sewers, under and through any of the streets, lanes or alleys in said borofigh, and may require the owners of lots bounded or fronting on the same, so to repair them, and on failure so to do, the said borough authorities may do the same, and collect the cost of work and materials in manner above provided.
    “ Sect. 2. That the borough authorities are hereby authorized to impose such charge as they may deem reasonable upon the owner or owners of any lot or lots who may have tapped, or who may hereafter tap, any sewer, culvert or drain which was built or may hereafter be built at the expense of the borough: Provided, the charge shall not exceed at the rate of one dollar yearly per foot of the lot or lots fronting on said sewer, culvert or drain ; and the said charge may be discontinued when the borough is fully reimbursed for all the expenses and costs incurred in building arid maintaining the said sewers, culverts or drains; the said charge or charges may be collected by action of debt, as ordinary actions of debt are now recoverable: And provided further, that twenty days’ notice shall be given to the owner, &c. * * *”
    Eor the purpose of carrying out the provisions of the act, the council of the borough, on the 12th of April 1869, passed an ordinance, enacting:—

      “ That whenever, in their opinion, it may be necessary to construct drains or sewers * * * the council, after giving twenty days’ notice to the property owners along whose property such drain or sewer is to be constructed, in order that such property owner may construct such drain or sewer according to dimensions and specifications furnished by the council, at-his or their own expense, and if, at the end of twenty days, such owners of property shall not have commenced the drain, then it may be lawful for the town council to authorize the construction of such sewer or drain, and shall charge the owners of property along whose property such drain shall pass their proportion of the original cost with twenty per cent, added.
    “ Sect. 2. That the owner or owners of any lot or lots * * * fronting and lying alongside of any street underneath which, through or alongside of which any sewer, culvert or drain has been built or may hereafter be built by the -corporate authority, and the owner or owners of such lot or lots who have tapped or who may hereafter tap the same for the purpose of draining his or their cellar or carrying slops or filth from his or their premises into said sewer, culvert or drain, shall -pay at the rate of one dollar per foot per year of the lot or lots fronting on said sewer, culvert or drain. Twenty days’ notice of said charge to be given to the owner, reputed owner or occupier of said lot or lots of ground against which the charges may be imposed, and upon failure to pay the same, the amount of said charges to be collected according to the provisions of the Act of Assembly entitled 1 An act giving the right to the town council of the borough of Maueh Chunk to build drains and sewers, and to file liens for the building of the same,’ approved March 24th 1869.”
    On the trial, April 3d 1874, before Dreher, P. J., it was admitted
    “ That the borough made demand on defendant twenty days before bringing this suit for $60, rent for one year from July 1st 1870 to July 1st 1871, being at the rate of one dollar per foot of defendant’s property on Susquehanna street, upon or under which the sewer is located, and that the connection is made from defendant’s premises into the sewer.”
    The plaintiff offered the Act of March 24th 1869.
    The defendant objected to the second section, for the reason that it is void, no reference being made to its subject in the title as required in the eighth section of eleventh article of the amended constitution : 1 Br. Purd. 34.
    'Also the ordinance of April 12th 1869.
    The defendant objected to the offer, the ordinance being based on the act and therefore unauthorized.
    Both offers were rejected and several bills of exception sealed.

      The court directed a verdict for the defendant and the jury so found.
    The plaintiff took a writ of error and assigned for error, the rejection of their offers and the charge of the court.

      0. Albright, for plaintiff in error.
    — The amendments of 1864 to the Constitution, do not require that the title to an act should be an index to all its contents: Yeager v. Weaver, 14 P. F. Smith 425; Dorsey’s Appeal, 22 Id. 195; Allegheny Home’s Appeal, 27 Id. 77; State Line and J. Railroad Co.’s. Appeal, Id. 429. The title of this act relates to building drains, &c., the act provides for enforcing payment; this was within the scope of the title and therefore valid: Pennsylvania Railroad Co. v. Riblet, 16 P. F. Smith 164. When a law has but one general object the provisions of the Constitution ar§ accomplished: Cooley on Const. Lim. 144; State v. Powers, 14 Indiana 195; People v. Briggs, 50 New York 566; Philips v. Bridge Co., 2 Metc. (Ky.) 222 ; Smith v. Commonwealth, 8 Bush 112; Blood v. Mercelliott, 3 P. F. Smith 391; Church St., 4 Id. 353; Commonwealth v. Green, 8 Id. 226.
    The council had authority under the General Borough Law of 1851, to build sewers, &c., and therefore to pass the ordinance: Fisher v. Harrisburg, 2 Grant 296; Greensburg v. Young, 3 P. F. Smith 280; McGonigle v. Allegheny, 8 Wright 121; Schenley v. Commonwealth, 12 Casey 57.
    Portions of an act being unconstitutional, the whole is not necessarily so: Smith v. McCarthy, 6 P. F. Smith 359; Commonwealth v. Green, 8 Id. 226; Cooley on Const. Lim. 178. If -a penalty be given by statute, but there be no provision for its recovery, debt will lie: Dwarris on Stat. 160, 231. Statutes are to be interpreted so as to sustain them rather than to set them aside: Howard Association’s Appeal, 20 P. F. Smith 346.

      F. J. Fox, for defendant in error,
    as to the constitutional question, cited Dorsey’s Appeal, 22 P. F. Smith 195; W. Phila. Pass. Railroad Co. v. Union Pass. Railroad Co., 9 Phila. R. 495. The ordinance is unreasonable and oppressive, and therefore-void: 1 Dillon on Mun. Corp., sect. 253, et seq. ; Northern Liberties v. Gas Co., 2 Jones 318 ; Commonwealth v. Worcester, 3 Pick. 462; Decatur v. Murray, 16 Id. 125; Comyn’s Dig. title “ By-Law” C. 7; Boston v. Shaw, 1 Metc. 130; Hammett v. Philadelphia, 15 P. F. Smith 146.
    May 8th 1876.
   Chief Justice Ag-new

delivered the opinion of the .court,

The court below thought that the second section of the Act of 24th of March 1869, Pamph. L. 514, was unconstitutional because too foreign to the title of the act. The title is, “An act giving the right to the town council of the borough of Mauch Chunk to build drains and sewers, and to file liens for the building’of the same.” It is settled in this state that a part of an act not within the subject stated in the title, may be declared to be unconstitutional, ieaving the portion within the title to stand: Dorsey’s Appeal, 22 P. F. Smith 192; Allegheny Home’s Appeal, 27 Id. 77 ; Smith v. McCarthy, 6 Id. 359 ; Commonwealth v. Green, 8 Id. 234; Cooley’s Constitutional Limitations 178. The first section' is conceded to be constitutional. The real question, therefore, is whether the second section is germain to the same subject. Giving to the second section the interpretation it may reasonably have, we think it falls within the general subject of the title. It is the duty of the court to reconcile the different parts of a law, if it can be reasonably done, rather than to declare any part void, and thus frustrate the legislative action. The subject of the title is the building of drains and sewers in Mauch Chunk, and securing the expense of so doing. The true purpose of the second section is to enable the borough to collect the expense of building sewers and drains, built or to be built, from those who use them. The words “ and the said charge may be discontinued when the borough is fully reimbursed for all the expenses and costs incurred in building and maintaining the said sewers, culverts and drains,” were intended to put an end to the special yearly charge per foot where the owner of a lot had paid his proportion of the expense. This must be treated as mandatory, to guard against a continuing charge for construction, beyond the time of full payment; leaving the borough under its general .powers, which are ample, to collect a reasonable and uniform charge from lot-holders for the use of the sewer, if they continued to use it. The purpose, as thus interpreted, being to enable the borough to collect the cost of construction from those who used the sewer, it is not so foreign as to be declared unconstitutional. The variations in the circumstances referred to in the second section are not an absolute departure from the subject itself. A sewer built before the passage of the act was not illegal, for the structure falls clearly within the powers conferred in the second section of the General Borough Law of 1851, 1 Br. Purd. 167. This borough being under that act, the sewer being legally built, it was substantially, though not literally, within the intent expressed in the title; that is, to authorize the borough to file liens for the building of the same, which substantially expresses the idea of securing and collecting the expense. The difference in the time of the construction of the sewer is evidently immaterial, not being absolutely repugnant to the main intent to authorize the building of sewers and collect the expense.

It is also objected that the remedy given in the second section is not by way of filing a lien, but by action of debt. This, however, is only modal. The purpose of filing a lien is to secure the expense, yet it does not expressly give any remedy for collection. But as collection is the substantial point intended, of the authority to file the lien, no one would contend that any remedy for collection given by the legislature in the body of the act would be foreign to the title. It might be debt on the lien, or scire facias, or other writ suitable to accomplish' the purpose. A judgment in debt would itself be a lien, and become efficient for collection by execution. Upon the whole section, we cannot, in view of its evident purpose, say it is not substantially germain to the subject of the title. It will not do to defeat useful and honest legislation by too rigid an adherence to the letter of the Constitution. As remarked by 0. J. Gibson, following C. J. Tiluhman, a constitution is not to be interpreted as articles of agreement at common law; and where multitudes are to be affected by the construction of an instrument, great regard should be paid to the spirit and intention; Monongahela Navigation Co. v. Coon, 6 W. & S. 114. It is a cardinal rule (said the late C. J. Thompson) that all statutes are to be so construed as to sustain rather than ignore them; to give them operation if the language will permit, instead of treating them as meaningless; and I may add, or treating them as invalid: Howard’s Appeal, 20 P. E. Smith 344. It is not the purpose or the duty of the court to catch at pretexts to avoid legislation, where it can be fairly reconciled with the Constitution. This has been the current of decision in this state in many cases : Blood v. Mercelliott, 3 P. F. Smith 391; Case of Church Street, 4 Id. 353; Commonwealth v. Green, 8 Id. 226 ; Allegheny Home’s Appeal, 27 Id. 77 ; State Line and Juniata Railroad Co.’s Appeal, Ibid. 429. In Commonwealth v. Green, Justice Sharswood remarked, that “ the intention of the constitutional amendment was to require that the real purpose of a bill should not be disguised or covered by the general words, “ and for other purposes,” which was formerly so common, but should be fairly stated; and it must be a clear case to justify a court in pronouncing an act, or any part of it, void on this ground.” So it was said in Allegheny Home’s Appeal: “If the title fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary.” An exception to this general rule is, when the title tends to mislead, and to draw off attention from a covert purpose contained in the body of the bill. Such was the case of the Union Pass. Railway Co.’s Appeal, 29 Legal Intelligencer, 1872, p. 380. The case before us has no such feature. We think the court below erred in holding the second section of the act to be unconstitutional.'

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Peter versus Schlosser.
    1. One having a claim exceeding §100 cannot give jm-isdiction to a justice by allowing a credit of a distinct and independent debt so as to reduce it under §100.
    2. If the debt has been reduced by direct payments to a sum not exceed-' ing $100, the justice has jurisdiction.
    3-. No part of the principal of a debt can be thrown away in order to give the justice jurisdiction.
    4. The spirit and intent of the act is that a justice shall not investigate and consider any claim exceeding §100.
    5. It is not the amount of the judgment, but of the demand that gives the justice jurisdiction.
    6. No delay in making the objection nor consent can give jurisdiction ; the objection may be made after trial and verdict in court.
    March 20th 1876.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common.Pleas of Lehigh county: Of July Term 1875, No. 40.
    This case was originally commenced before a' justice of the peace, of whose proceedings the following is a transcript:—
    “Benjamin Schlosser

      v.

    Santee Peter.
    “ Civil suit. Summons issued December 9th 1871, to the constable, &c. * * * Returnable the 16th of December. December 11th 1871, plaintiff claims as follows: Sold to the defendant twenty-one square of slate, at $5.50 per square, amount $115.50; two load chips, at 50 cents a load, amount $1; one log, twenty-four feet, at seven cents, per foot, amount $1.68; one load wood, $2; four cord wood, at $2 per cord, amount $8 ; four logs, sixty-four feet in all, at 15 cents per foot, amount $9.60. 'Whole amount of claim, $137.78. And now, December 16th 1871, parties appeared, but could not agree. Adjourned by consent of the two parties, to meet again on the 30th of December, at 12 o’clock noon. * * * And now, December 30th 1871, parties appear. Defendant claims an offset for the-following items: Hauling 427 sills, at six cents a piece, amount $25.62; one day hauling sills $5.45; eleven days hauling logs, at $5 per day, amount $55; cash paid to the plaintiff, $20 ; corn delivered to plaintiff, $1.27. Whole amount of claim, $107.34. Four witnesses sworn for plaintiff and four witnesses for the defendant. After hearing the parties and their witnesses, I have made a. deduction of fifty cents a square on nineteen squares of slate, and a deduction of $1.50 a day on the hauling of the logs, leaving the plaintiff claim the amount of $128.28, and the defendant claim $90.84, leaving a balance of $37.44 in favor of the plaintiff. Therefore judgment in favor of the plaintiff for $37.44, and costs of suit.”
    The defendant appealed to the Court of Common Pleas, on the 29th of February 1872.

      The cause was tried April 27th 1875, before Longaker, P. J.
    The plaintiff gave in evidence the transcript of the justice.
    The paper-books show that much evidence was taken on both sides as to the amounts.
    In the course of the trial, the defendant asked the court to direct a nonsuit, on the ground that the transcript showed that the claim of the plaintiff was more than $100, and therefore the justice had no jurisdiction. The motion was refused.
    The defendant submitted a number of points, two of which asserted that the justice had no jurisdiction. The points were denied, and with the answers were filed; but the record did not show that any exceptions were taken. The record showed that the court refused “ to take the- case from the jury for want of jurisdiction in the justice.”
    The verdict was for the plaintiff.
    The defendant took a writ of -error.
    He assigned for error, the refusal to order a nonsuit, the refusal to dismiss the case for want of jurisdiction, and the answers to his points.

      J. J). Stiles, for plaintiff in error. —
    The court should have dismissed the case upon motion. Neither laches nor consent can give jurisdiction: Collins v. Collins, 1 Wright 387; Borland v. Ealy, 7 Id. 111; Funk v. Ely, 2 P. F. Smith 442. A justice has no jurisdiction of a disputed set-off exceeding in amount $100 : Milliken v. Gardner, 1 Wright 456. One who has a demand exceeding $100 cannot, give jurisdiction to a justice of the peace for its recovery, by allowing a set-off or counter demand of the defendant, so as to reduce his claim below $100: Stroh v. Uhrich, 1 W. & S. 57. The docket of a justice is the best evidence to show the cause of action before him ; and parol evidence is not admissible to contradict or vary it: Coffman v. Hampton, 2 W. & S. 387.

      E. J. More, for defendant in error.
    May 8th 1876.
   Mr. Justice Mercur

delivered the opinion of the court,

The record does not show any exception to the charge, nor to the answer of the court, on the points submitted. The only question then is, whether the record shows want of jurisdiction ?

The case originated before a justice of the peace by summons, under the Act of 1810. By that act jurisdiction is given to a justice of the peace only'“in cases where the sum demanded is not above $100.” A creditor who has a claim on, his debtor exceeding $100, cannot give jurisdiction to a justice by allowing a credit to the defendant of a distinct and independent debt, so as to reduce his own demand below $100: Stroh v. Uhrich, 1 W. &. S. 57. However large the claim may have been, yet, if it has been reduced by direct payments to a sum not exceeding $100, the justice has jurisdiction: Collins v. Collins, 1 Wright 387. But no part of the principal can be .thrown away in order to give the justice jurisdiction: Evans v. Hall, 9 Id. 235. The true spirit and intent of the act is, that the justice shall not investigate and consider any claim exceeding the sum mentioned in the act. It is not the amount of the judgment which gives jurisdiction. It is, in the words of the act, “the sum demanded.” When the defendant is brought before the justice by adverse process, and the amount in controversy, exceeds the jurisdiction of the justice, no mere delay in making the objection can give jurisdiction. As consent cannot give it, the objection may be made after trial and verdict in court: Collins v. Collins, supra.

The question then, in this case is, did the sum demanded “ exceed $100?”

The transcript shows that the-summons issued December 9th 1861 was returnable on the 16th. December 11th plaintiff filed his claim for goods sold ; “ whole amount of claim, $137.78.” On a second meeting of the parties, and after hearing testimony, the transcript further states that the justice made a deduction, “leaving the plaintiff’s claim the amount of $128.28.” The defendant below claimed set-off, and the judgment was in favor of the plaintiff for $37.44.

Thus it is shown by the record, the only sum demanded or claimed by the plaintiff was $137.78. The justice examined and investigated that claim. On the trial the justice, not the plaintiff, reduced the claim or sum demanded to $128.28. At no time was the sum demanded brought within the limits fixed by the Act of Assembly. The plaintiff’s claim was not reduced by any evidence, given .either by himself or by the defendant, of payment. It was reduced solely by separate and distinct items of set-off. Jurisdiction cannot thus be given: Bower v. McCormick, 23 P. F. Smith 427.

Judgment.reversed.


author: Per Curiam.

text:
    Baldwin’s Appeal. Nyce’s Estate.
    1. A'decedent in Pennsylvania had assets in New York ; administration was granted there to the Pennsylvania administrator, who filed an inventory in New York, including a mortgage on property in New Jersey, where no administration had been granted. The administrator settled an account in Pennsylvania without charging himself with the mortgage, on the ground that he had to account for it in New York. Held, that he was accountable for it in Pennsylvania.
    2. The mortgage was in the name of the decedent, the administrator satisfied it without payment and took a new mortgage in his own name as administrator from the same mortgagor in its place, on part of the property covered by the first mortgage, and subject to a mortgage entered after the satisfaction was entered, and on other property; .the last mortgage was uncollected. Held, that the administrator was accountable for the first mortgage.
    3. The fact that the land covered by the mortgage was in New Jersey made no difference, by the laws of that state, the Pennsylvania administrator having the right to cancel it.
    4. Including the mortgage in his New York inventory did not protect the administrator, the debt not belonging to New York.
    5. The ancillary administration in New York could grasp only the estate whose situs was there.
    March 20th 1876.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Pike county: Of July Term 1875, No 158. In the estate of George Nyce, deceased.
    The decedent died intestate, November 25th 1869. His administratrix having died, administration d. b. n. was granted to John Baldwin, April 8th 1871.
    The decedent’s residence was in Pike county, Pennsylvania. He left a large amount of assets in Orange county, New York; and ancillary administration in that county was granted to the Pennsylvania administrator.
    He filed an inventory in Orange county, amounting in the whole to $16,146.90. One of the items was a mortgage, made by David K. Howell to Alfred Wells, February 1st 1867, and by him assigned to the decedent, the principal being $4500, with $418.78 interest due to August 30th 1871. The inventory filed in Pike county did not include this mortgage. The mortgage was the first lien on two tracts of land in Warren county, New Jersey, one containing 102 acres, and the other 112 acres. No administration was granted, in New Jersey. On the 20th of July 1872 this mortgage rvas “ can-celled ” on the record, by Baldwin, the administrator. On the 9th of March 1872, two mortgages from -Howell to the Mutual Life Insurance Company of New York were recorded, one for $4000 on the 102 acre tract, and the other for $6000 on the 112 acre tract. On the 14th of July 1872,-a mortgage from Howell to Maria Miller, on the 112 acre tract, for $4500, was recorded; and on the 17th of July, a mortgage from Howell to Baldwin, “administrator, &c., of George Nyce, deceased,” on the 102 acre tract and on another tract of 40 acres, was recorded.
    Baldwin filed his administration account in Pike county, and did not charge himself with the amount of the Howell mortgage. Exceptions were filed to the account, amongst others, that he should have so charged himself.
    On the hearing before the auditor, C. W. Bull, Esq., the administrator testified that he had given bond as administrator in New York, in $50,000; that his counsel there advised him that he must account in New York for all contained in his inventory filed in that state. The original Howell mortgage was satisfied, and the other given as a substitute for it. The latter was unpaid. His counsel in New York consented that the present mortgage might become a second lien. He (administrator) was not aware of it at the time. Process had been issued to collect his second mortgage, and served, and then stopped “ for the present.” All the securities in the New York inventory had been collected except this mortgage. He had not settled an account in New York. The change in the-Howell mortgage was. done by the advice of his counsel, and with the consent of his sureties in New York. The sureties were perfectly responsible. Howell wanted to borrow money from the insurance company, and they would not lend except upon a first mortgage. He asked that the Nyce mortgage should be removed and a second mortgage given, and agreed to put in the forty acres, on which there was no lien. This was done. The old mortgage was payable February 1st 1872 ; the last one in June 1872. The administrator’s counsel in New York advised him that it would be impracticable for him to transfer the funds there to Pennsylvania.
    There was evidence that the property covered by the last mortgage, “in war times might bring $8000.”
    As to this mortgage, the auditor reported : * * *
    “ The mortgage of David K. Howell, of Warren county, New Jersey, for $4500, it being without the power of the administrator in this county to collect it by action of law and the same not having been paid to him, and having been included in the inventory and appraisement made of the funds of said decedent in Orange county, New York, as appears from the evidence and certified copy of the inventory and appraisement, and counsel for exceptant having withdrawn their claims to surcharge accountant with any of the funds in New York, your auditor refuses to surcharge the accountant-with the Howell mortgage in New Jersey and dismisses so much of the exceptions as relates thereto.”
    The guardian of the minor children of the decedent excepted to the report of the auditor, one of the exceptions being that he refused to charge the administrator with the Howell mortgage.
    The Orphans’ Court, Dreher, P. J., sustained this exception and referred the report back to the auditor with instructions to charge the administrator with the mortgage and interest.
    The auditor made a second report so -charging the administrator. On exception, by the administrator, to this report, it-was confirmed and the administrator decreed to pay out the money, &c.
    The administrator appealed to the Supreme Court and assigned the decree for error.

      O. Burnett and J. B. Storm (with whom was J. Nyce).

    — The administration of an estate is in the jurisdiction in which possession of it is taken : 2 Williams on Ex’rs 1301. The foreign administrator has the right to hold the assets of that jurisdiction: 1 Williams on Ex’rs 357 ; 2 Id. 1415; Story’s Confl. of L., sect. 513. The transmission of assets to the administrator of the domicil is within the judicial discretion of the foreign jurisdiction: Harvey v. Richards, 1 Mason R. 408; Dent’s Appeal, 10 Harris 514; Parker’s Appeal, 11 P. F. Smith 478; Freeman’s Appeal, 18 Id. 151; Aspden v. Nixon, 4 Howard 467.

      S. Holmes (with whom was H. M. VanAuken), for appellee.—
    There was no ancillary administration in New Jersey and the home administrator had a right to receive a voluntary payment and-give a release : 3 Redfield on Wills 26 ; Story’s Confl. of L., sect. 515, note 2; Stevens v. Gaylord, 11 Mass. R. 256; Doolittle v. Lewis, 7 Johns. Ch. R. 49; Shultz v. Pulver, 3 Paige 182; Hooker v. Olmstead, 6 Pick. 481; Atkins v. Smith, 2 Atk. 63; Trecothick v. Austin, 4 Mason 16, 33. All debts follow the person, not of the debtor, in respect of the right or property, but of the creditor to whom due : Thorne v. Watkins, 2 Ves. 35; Doolittle v. Lewis, 7 Johns. Ch. R. 45; Brown v. Brown, 1 Barb. Ch. R. 189 ; Vroom v. VanHorn, 10 Paige 549 ; Parsons v. Lyman, 20 N. Y. 103; Middlebrook v. Merchants’ Bank, 41 Barb. 481. Where the administration both at home and abroad has been taken by the same person, in the settlement of his account in the state where distribution is to be made, he is accountable for the net amount of what he should have received abroad: Stokely’s Estate, 7 Harris 476 ; Scott’s Intestate L. 33. The acts of an attorney bind the client: Lawson v. Bettison, 12 Ark. 401; Sampson v. Okleyer, 22 Cal. 200; Bethel Church v. Carmack, 2 Md. Ch. 143; Thornburg v. Macauley, Id. 425; Greenlee v. McDowell, 4 Ired. Eq. 481; Chambers v. Hodges, 23 Tex. 104; Russell v. Lane, 1 Barb. 519; Williams v. Walker, 2 Sandf. Ch. 325.
    March 27th 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

— We perceive no error in this decree. The administrator clearly did acts to charge himself with the debt of the Howell mortgage.

The debt, for which the-mortgage was the security only, came into the hands of the administrator as a part of the assets, so far as the facts of the case show. He chose voluntarily to cancel the mortgage and take a new security by mortgage in his own name. ,

The first mortgage was well secured on two tracts of land and was a first lien. The second was taken on one of them only, and a small piece additional, but subject to two large mortgages, equal and probably greater than the whole value of the land. The fact that the land held in security lay in New Jersey would make no difference in this case, for it seems the - law of New Jersey permitted the cancellation of the mortgage, and the fact of cancellation is certified by the proper officer. In such a case the claimants of the estate in Pennsylvania had a right to insist on his accounting for the debt here.

The fact that the administrator chose to carry the Howell mortgage into the inventory of the ancillary administration in New York cannot protect him, for the debt by no rule belonged to New York. The ancillary administration in New York could grasp within it only the estate whose situs was there; neither the debt nor the mortgage of Howell had any situs there.

Decree affirmed with costs and the appeal dismissed.


text:
    Bethlehem Borough versus Perseverance Fire Co.
    1. An unincorporated fire company having property was incorporated, to be located in Bethlehem, the charter declaring the object to be “ the protection of the property of our fellow-citizens from fireHeld, that it was not for the private gain of its members; the property acquired in aid of the object was for charitable uses.
    2. The stat. of 43 Eliz., c. 4 (Charitable Uses), is not extended to Pennsylvania; its principles are in force here by common usage.
    3. The principles of the Statute of Elizabeth are stronger as to corporations than to unincorporated associations; the duty of the courts of this state to supervise them being required by the Act of June 19th 1836.
    4. By subscriptions obtained by the company from citizens of Bethlehem, by entertainments, &c., the corporation acquired personal property in aid of its objects: Held, that they had the legal title, but held it in trust for the uses for which the corporation was created, and they could not divest it of the trust or divert it from its general purpose.
    5. It might in good faith dispose of any specific articles, using the proceeds for other apparatus, &c., to be used for the purposes of its charter.
    6. The trust inheres in the property into whatever form it may be changed; the proceeds cannot be divided amongst its members.
    7. The right of a borough under Act of April 3d 1851 (General Borough Act), to make regulations as to fires and appropriate money to fire companies and engines for the borough, does not empower the authorities to take from the possession of an incorporated company fire apparatus not owned by the borough.
    8. A borough may purchase and own fire apparatus, and take possession of it and control it, or may give money to a company to assist them in purchasing.
    9. Whatever is given to a fire company is given to be used by it for the object declared in its charter,'and the rights of the cestui que trusts must be protected by the courts.
    10. The company is'the legal custodian of the property and is entitled to notice and hearing before its rights are impaired. -
    11. A legal dissolution of a corporation is to be effected by proceedings under the Act of April 9th 1856, sect. 1, relating to corporations, and cannot be by an irregular assemblage of a portion of its members without notice, resolving to disband.
    12. A temporary non-user of its property by the company did not divest the rights.
    13. A fire company had acquired property; the borough purchased a steam-engine and put it into their charge ; upon a disagreement with the authorities, a number of members of the company assembled without notice and resolved to disband; the authorities, assuming that they had disbanded, took possession of the property and delivered it to a company of a portion of the same members and assuming to act under the same charter. Held, that the act of the authorities was illegal; they had no right to the possession of the property.
    14. An action of assumpsit waiving the tort could not be maintained against the borough for the value of the property.
    15. Assumpsit can be maintained only where there is a contract express or implied; it will not lie for a chattel illegally detained.
    16. The plaintiff cannot waive the tort and recover the value of the goods, unless the defendant has sold them and received the money, or has taken them for the purpose of sale and there be no evidence to rebut the presumption of sale and the receipt of the money.
    17. When goods are sent to one who refuses to receive them and professing to return them substitutes spurious artidles, the owner may waive the tort and recover the price in an action for money had and received, but not for goods sold and delivered.
    18. When one tortiously in possession of another’s goods converts them, assumpsit for money had and received may be maintained.
    March 20th 1876.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Northampton county: Of July Term 1875, No. 56.
    This was an action of assumpsit, brought July 7th 1873 by the Perseverance Fire Company, No. 1, against the Burgess and Council of the borough of Bethlehem,
    The declaration was in the commoii counts.
    The bill of particulars furnished, on demand of the defendants, was for $1150, money paid by plaintiffs for the use of defendants in the purchase of a steam fire engine; $500, the value of a hand fire engine; $900, the value of a hose carriage; $700, the value of a pair of horses ; $50, the value of two sets of harness ; $500, “ the value of certain furniture, equipments, &e., all. which foregoing articles were the property of the plaintiffs and were unlawfully taken from their possession by the defendants, and converted to the use of the defendants.”
    The plaintiffs afterwards filed an “amended bill of particulars,” for $1000, money lent by plaintiffs to the defendants; $150, money paid, &e., by plaintiffs for defendants’ use; “also to recover the value, with interest, of the articles and property specified in the schedule hereto annexed, which said articles and property were unlawfully, forcibly and tortiously taken from the possession of -the plaintiffs, whose property they were, by the defendants, and convei’ted by the defendants to defendants’ own use.”
    The schedule specified the articles mentioned in the first bill of particulars, and also specified the articles of “ furniture, equipments, &c.,” with the value affixed to each article; the whole amounted to $3907.20.
    The defendants filed two pleas in abatement, the substance of wliich was, that prior to July 8d 1873, the plaintiffs were a corporation liable under the ordinances of the defendants to be disbanded, and that by an unanimous vote of their members the plaintiffs disbanded and so officially announced to the defendants, who ratified, the same on the 4th of July, and invited the original corporators and members of the corporation and others to effect a re-organization ; and that the plaintiffs were neither members nor corporators of Perseverance Fire Company, No. 1, nor in anywise connected with it; the name, privileges, franchises, &c., of Perseverance Fire Company, No. 1, were all vested in the re-organization, which was alone recognised as that company in the “ Bethlehem Fire Department,” and the plaintiffs were, therefore, incapable of bringing suit.
    The counsel of the parties afterwards agreed that the defendants might, under pleas in bar, give in evidence any matters which could be taken advantage of under a plea in abatement or any special plea whatever, without prejudice to the defendants to have the whole merits of their defence passed on by the jury.
    The defendants afterward pleaded “Non assumpsit and payment, with leave, &c.”
    Prior to 1843, the real estate in Bethlehem belonged to the Moravian Society. They owned also a very old hand-engine, which had become useless and had passed as a relic into the hands of an unincorporated fire association (the nucleus of the plaintiffs’ company), in Bethlehem. The possession of this engine, although it was not included in the property alleged to have been taken by defendants, appears to have been the occasion of this controversy.
    Bethlehem was not then incorporated ; it was incorporated in 1849. By the act of incorporation the authorities had power to organize as many fire companies as there should be engines belonging to the borough, and to assess, and apportion, raise and appropriate such taxes as might be necessary for carrying their rules, ordinances and' regulations into effect.
    Afterwards the borough came under the General Borough Law of April 3d 1851 (Pamph. L. 320, 1 Br. Purd. 167). The 18th paragraph of the 1st section of the act provides that boroughs shall have power “to make regulations relative to the cause and management of fires, and within such limits within the borough as they may deem proper to prescribe; and to authorize the borough authorities to appropriate money for the purchase of fire-engines for the use of said boroughs and to fire companies.”
    Subsequently the members of the fire company applied to the Court of Common Pleas of Northampton county to be incorporated. Their petition set out that they were “ associated for the purpose of forming a fire-engine and hose company, and prayed to be erected into a corporation,” to be situated in the borough of Bethlehem. * * *

      The preamble of their constitution submitted with the petition, stated that “ We having formed ourselves into afire company under the name of ‘ The Perseverance Fire Company, No. 1,’ having for our object the protection of the property of our fellow citizens from fire, do agree to accept the following constitution,” &c.
    There was no provision in the constitution for the dissolution of .the corporation.
    On the 6th of October 1853, the court made the decree of incorporation.
    On the 1st of March 1869, the council of the borough purchased a steam fire-engine for the use of the Perseverance Company “ for the sum of $4000;” of this sum the plaintiffs alleged that they had paid $1000, which was one of the specifications in their bill of particulars. Council subsequently bought another steam fire-engine for the use of the Reliance Company. Subsequently, on being informed by these-companies that they were about to disband, from inability to meet their expenses, the council resolved to pay all necessary expenses for keeping the engines and their houses in order, &c. Council afterward sold two hand-engines belonging to these companies for $600.
    On the 5th of July 1872, the council passed an ordinance constituting “ The Bethlehem Fire Department,” consisting of the several companies within the borough; they were to elect a chief engineer; each company to elect from their members an assistant engineer subject to the approval of the town council;.the chief engineer to remove any of the assistants by a resolution passed by two-thirds vote of the council; and by a like vote the council could remove the chief engineer. The chief engineer was to have full control of all the fire apparatus; he and the assistants were to constitute a board of engineers who should have power to expel or fine any member of any of the companies for improper conduct as specified in the ordinance; and should one-fourth of any company be guilty of such improper conduct, the engineer might suspend the company or fine each member of such company, and for a second offence, disband the company; the fines to be collected by suit before the burgess as other municipal fines were collected.
    There were other ordinances and resolutions in relation to the control of the fire department by the borough authorities.
    At a special meeting of the town council, held on the morning of the 3d of July 1873, the burgess stated that the object of the meeting was, “ that as the Perseverance Fire Company had refused to give up the old engine as per resolution passed at a meeting of the Water Board, to be placed in the room of the Young Men’s Missionary Society of Bethlehem for safe keeping, and that sundry threats had been given as to the destroying the old engine, &c.; he asked the council to take action on the matter.” A resolution was then passed, directing the old engine to be given to the museum committee of the Young Men’s Missionary Society, in trust for safe keeping until otherwise ordered, and that the police force, with the members of council, should proceed to the Perseverance engine-house and remove the old engine, and if any resistance should be offered, the police should proceed according to law. The chief engineer was instructed to call a meeting of the engine company and examine into the difficulty about the old engine and other misconduct; the burgess was directed to place policemen on the premises day and night till the difficulty be arranged ; it was resolved also, that if the old engine could not be removed peaceably it should be removed by force.
    The case was tried May 11th 1875, beforé Meyer, P. J.
    J. N. Edwards, a member of the plaintiffs, testified, that on the 8d of July 1873, the town council and police officers came to the engine-house and removed the old hand-engine; when the trustees of the company became aware of this they had' interviews with some of the members, and about 9 o’clock in the evening there were assembled at the engine-house about twenty-six of the mem- • bers. The president called the meeting to order, and said “ the insult offered to us would be considered ; * * * then they wanted to disband and became noisy; I said to the foreman that I would make a test vote on the question, and as soon as the question was taken he should move to adjourn ; the motion that a test vote on the question be taken was by rising, no count was taken on account of the confusion.” A committee was appointed to see if the Reliance Company would disband. Some business was transacted as to what the company would do if they disbanded; a committee was appointed to take an’ inventory, because they thought the boro"ugh would take the property. The company did not disband that night; the meeting was not regularly organized; each member was to have a written notice twenty-four hours before a special meeting; the president stated that the object was to see about taking away the old engine and about disbanding the company. The company claimed to own the old engine.
    He testified that the articles contained in the inventory — the same as those in the hills of particulars — belonged to the company ; a hand-engine (not the relic) was sold without the assent of the company after the steamer was bought, the company interposed no objections; they were not consulted; the company had previously wanted to sell, the council did not like it and it was dropped; the money for the horses was raised by voluntary subscriptions taken by the company from citizens of Bethlehem, and by a ball. The horses were taken by the borough officers July 4 th.
    J. A. Fries testified that the company paid $1000 to the chairman of the Borough Finance Committee, and he paid that and $1000 of the borough’s money to the manufacturer for the steam fire-engine ; the $1000 paid by the company were the proceeds of a “Gift Enterprise,” which they had conducted.
    PI, Yost testified that the high constable of the borough took possession of the engine-house, and locked out the members of the company; that members of the town council were with him.
    Schitz, the high constable, testified, that with other police officers he went, by order of the council, to the engine-house, on the morning of July 3d 1873; the members of the council were with them ; -he went in, got the key, and locked the door; after the members of the company went out, he put the dead-latch down so that it could not be opened with a key; and, by order of the council, he kept the key in his possession ; one of the police took the horses away. Pie was not ordered to take away anything else.
    There was evidence that the lot on which the engine-house was erected belonged to the borough; that the building was erected by the company.
    ■ There was evidence also, that the company had paid for the hose-carriage; the money which paid for it was raised by subscriptions obtained by the company from the citizens of Bethlehem.
    There was evidence also, that the goods in the engine-house continued there after the borough officers took possession of it.
    The defendants gave evidence by Otto Brunner, that on the 3d of July there was a company re-organized. On the 4th a number of the members of the original company, at the request of members of the town council, met the council at the rooms with respect to the organization of a company to take charge of the Perseverance fire-engine, that the old company had disbanded — “ to take charge of the general apparatus.” The members of the old company who -tfere at this conference organized the company; a number of the former members joined ; a number of other citizens offered to organize with them there; a general meeting was called for the 8th; there was a meeting on that day, and a committee appointed to frame a constitution and by-laws; the company was fully organized in that month, and a committee appointed to notify the council to hand them the property in trust; that was done, and the company took charge of it and attended to their duties ever since.
    Another witness testified, when they went to the engine-house on July 4th, there were a number of the members of the old organization there; that one of them pointed to some property which they claimed, and said that they had nothing to do with the balance ; that the new organization had had most of the property in dispute in their charge ever since; none of the original members had ever made a demand for the property.
    The chief engineer testified, that he was at the meeting on the night of July 3d ; there was much excitement and noise, so much so that the vote on disbanding could not be taken. After much speaking and efforts to take the vote, witness, as chief engineer, said that they should decide the question of disbanding one way or the other ; he wished to make his report to the council; after that a vote was taken, “and they all jumped up and unanimously hallooed to disband.” They then resolved to dispose of their horns, &c., 'and to appoint a committee to procure a room to store things belonging to the company. Witness reported to council on the 4th, that he had gone to the engine-house to call a meeting as he was ordered, and found that they had called a meeting themselves, .and had unanimously resolved to disband. The old hand-engine was taken away July 3d ; all the fire apparatus of the borough was transferred to another company. The old hand-engine was taken without the consent of the company — that was what made the disturbance.
    There was evidence that the council never offered to restore the property,
    There was much other evidence — bearing on the question of disbandment — the ownership and value of- the property ; the taking possession of it by the borough authorities, and whether they had permission of the company to do so, &c.
    The plaintiffs, in rebuttal, gave evidence that no notice had been given of the holding of the meeting on July 3d.
    The following are points of the plaintiffs, with their answers:—
    2. There are no facts given in evidence in this case which suffice to show that the plaintiffs were ever legally dissolved or disbanded as a corporation, or that they had lost or forfeited their right to hold and retain the property which they had acquired, and for the recovery of the value of which this action was brought.
    Affirmed.
    7. The legal title to the two horses held by the plaintiffs and taken by the defendants was in the plaintiffs at the time they were taken.
    8. The money with which the said horses were purchased was the money of the plaintiffs, no portion of it having been furnished or contributed by the defendants, and the circumstance that a portion of it was contributed upon a representation by Samuel Mack, the collecting agent, that the horses when purchased should be used for the protection from fires of the citizens of Bethlehem, or should belong to the borough, would not suffice to divest the legal title of the plaintiffs in the horses.
    Answer: “If the jury find the fact from the evidence that the money with which the two horses were purchased was contributed in part by the plaintiffs and the residue by the citizens of the borough of Bethlehem, and paid over to the plaintiffs, then the legal title to said horses was in the plaintiffs, and subject to this qualification the seventh and eighth points are affirmed.”
    10. By virtue of the payment of the said alleged sum of $1000 to the owners of the said steam fire-engine as a part of the purchase-money thereof, the plaintiffs, in absence of any agreement, by mere operation of law, became the owners of an undivided interest as tenants in common in the said steam fire-engine, in the proportion which the said sum of money paid bore to the whole purchase-money of the engine.
    13. The declarations of a few of the members of the Perseverance Eire Company on the night of July 3d 1873, and on the next day, to the effect that the company had disbanded and that they, the said members, would not turn out at fires, would not, even if believed by the jury, as testified by the defendants’ witnesses, suffice either to work a dissolution or accomplish the disbandment of the plaintiffs.
    Both these points were affirmed.
    The following are points of defendants and were all negatived:—
    1. The engines, liose-carriage. and other apparatus for the ex-tmguishment of fires, held by a fire company, which have been paid for by money subscribed directly or indirectly by the citizens of a town, or raised by taxation, are held by such fire company in trust for the citizens of such town, subject to the control of the constituted authorities of such municipality, 'and such fire company has no title to sell the same.
    2. Whenever the borough, in the exercise of a reasonable discretion on their part, saw proper to give over the custody of the fire-engine and other fire apparatus to another company than the plaintiffs, organized to extinguish fires, such action gave the plaintiffs no title to recover the value of such property from the borough.
    3. If the jury believed that the association of men known as the Perseverance Eire Company, No. 1, “ on the 3d and 4th of July 1873, agreed to disband, and either neglected or refused to attend to their duties as firemen, the borough authorities had the lawful right to take possesion of the engine, horses and other apparatus and to deliver them to another company organized to take the place of the disbanded company.
    5. If the jury believe the borough council in good faith acted upon the official report of the chief engineer that the plaintiffs’ company had disbanded, and the plaintiffs having received information of such action gave no notice to council, in a reasonable time, that they had not disbanded, and made no request for the return to their care of the fire apparatus, that no action can be maintained to recover its value.
    6. The bringing of the. suit by the plaintiffs, on the 7th of July 1873, which was before the organization of the new company, and before the delivery to such new' company of the fire apparatus, without notice to the borough council that they had not disbanded, ratified the action of the council in treating the company as disbanded, and justified the borough authorities in delivering the property to the new company, and the plaintiffs therefore cannot recover.
    7. There was neither an express nor an implied contract on the part of the borough to pay the plaintiffs the value of the fire apparatus and other property, and the plaintiffs therefore cannot recover.
    8. There is no evidence that the borough took any of the property of the plaintiffs and converted it to their own use, so as to entitle the plaintiffs to recover in trover, and that the plaintiffs, therefore, waiving the tort, cannot recover in assumpsit.
    10. If plaintiffs were a fire company in the fire department of Bethlehem, and acquiesced in an ordinance entitled “ An ordinance relative to chief engineer, assistants and fire department,”' passed July 5th 1872, and an ordinance entitled “An ordinance authorizing a uniform badge'for the fire department of the borough of Bethlehem,” passed July 5th 1872, by assisting in the choice of a chief engineer and wearing the department badge, and plaintiffs voluntarily disbanding themselves, they are in the same position as if they had been disbanded by council under section 8 of the first of said ordinances, and their reinstatement is a matter altogether “in the option of the council.”
    12. There is no evidence that the payment of the sum of $1000 upon the steam-engine was a loan to the borough, and even if the jury believe there was a promise by the borough that the plaintiffs should have an interest to that extent in the engine, no recovery can be had in this action for the sum so paid, as the plaintiffs have failed to show that the borough has ever sold the, engine or applied it to other uses than those 'for which it was originally purchased.
    In the general charge, the court said :—
    * * * “ It is contended by the defendants that the plaintiffs mistook their remedy; that they ought to have gone into a court of equity or by mandamus raised the question as to the title to and right of possession by the plaintiffs of the property in question, under their charter of incorporation, as well as the right of the defendants under their charter, the general borough laws, and their ordinances. I endeavored to satisfy myself that the sole remedy in this case is a court of equity or by mandamus, but in the absence of an express authority on that point, I am compelled to apply the general rule of the common law respecting the rights of property and the remedy to enforce these rights, and therefore hold and so charge you, [that while there might have been a concurrent remedy in a court of equity or by mandamus, yet these plaintiffs, if they had the legal title to the property, which they allege the defendants took and retained possession thereof, forcibly and without their consent, and under circumstances which would entitle them to recover against a stranger, they had a right to have and maintain a common-law action against these defendants.]
    “In this form of action, in ordinary cases, where one person receives the money of another, or where he receives such money, which in good conscience he has no right to retain, or where a person lays out and expends money for the use of another, at his request, either express or implied, the law implies a promise to pay the money so received, laid out and expended. * * *
    “First. It is contended on the part of the plaintiffs that if the jury find from the evidence that they were the lawful owners of the property mentioned in the hill of particulars, and that the defendants forcibly and without plaintiffs’ consent took out of their possession this property and retained it, that they have the right to waive the tort, and recover the value of the same with interest in this form of action under the count for money had and received. We say to you that such is the law, and it is immaterial whether you find that they held such property absolutely or in trust for the uses and purposes provided for by their charter. * * * If, therefore, you find that any property included in plaintiffs’ bill of particulars was in possession of the plaintiffs on the 3d of July 1873, and before bringing of the suit, which was simply loaned to them by said society or some one else; which was never given to them, or which they did not purchase or contribute themselves, then as to such property the plaintiffs did not have title to recover in this form of action. If they only had the lawful possession of such property and it was taken by force and without their consent, they could in an action of trespass recover damages for depriving them of their possession, but they could not recover the value of the property in any form of action.
    “ What other property was there which belonged exclusively to the plaintiffs and which was in their exclusive possession at the time of the alleged trespass by the defendants, and which was acquired by the plaintiffs in the manner I have already stated ? If you find from the weight of the evidence that they then had such property, that they had it in their exclusive possession and that it was acquired by them in that way, and is included in said bill of particulars, unless something else shall appear in the case, to which I shall call your attention shortly, the plaintiffs would be entitled to recover the value of said property, together with interest, if you find from the weight of the evidence that it was forcibly taken out of their possession by the defendants in their corporate capacity before the bringing of the suit, and either retained it or delivered it over to another company, without the consent and against the will of the plaintiffs. Or if the defendants before the bringing of this suit, obtained possession of said property by the express or implied consent of plaintiffs of their acts and conduct, and^the plaintiffs before the bringing of the suit made a demand upon the defendants for the same and they refused to deliver it up, the plaintiffs can recover. But if you cannot find from the weight of the evidence that the property in question was the property of plaintiffs, .or if you find that it was their property, but cannot find that this property was taken by the defendants in their corporate capacity by force or by appearance of force or by the exhibition of authority, but that they got possession of the same by the consent express or implied of the plaintiffs, for the purpose of subserving the interest of the people of Bethlehem at that time, and there wras no demand m$de by the plaintiffs upon the defendants to deliver up the same before suit brought, then I say to you that the plaintiffs cannot recover in this case the value of said property ; and I say further to you that the mere bringing of this suit is not such a demand required by'law. *' * *
    “If the defendants sold any property that belonged to the plaintiffs, and appropriated the money, whatever money they received for such property sold, and you find the property belonged to plaintiffs, the defendants, in their action, are bound to pay over the same, and the plaintiffs can recover in this form of action. 0
    [If the plaintiffs lent to the defendants a sum of money to purchase a steamer with, or if they paid this money in the purchase of it, at the request of the defendants, express or implied, and by their conduct afterwards ratified it, then you can find in favor of the plaintiffs the amount of money so paid by them, with interest.] If they lent it to the defendants, and you find they agreed to pay it back, they can recover that amount as a loan, with interest. If they paid it for the use of the defendants, either by the express or implied assent of the defendants, -or it was after-wards ratified, then the plaintiffs are entitled to receive the amount of money so paid. [If they paid money in the repair of property belonging to the borough, and it was necessary to be paid to make it efficient for the use of the borough, then we say to you that the plaintiffs can recover for whatever money was paid, as the evidence satisfies you in this case.] * * *
    “I may say here, in a general way, that when disbanding is spoken of, you will bear in mind that the-disbandment of the company, by which they separated themselves and did not act any more, would not in law constitute a dissolution of the corporation. The corporation still exists, that in one sense is perpetual, unless it is limited by the act creating it, or it may become limited if the parties who have an interest in it go in the courts and seek a dissolution, or if they have committed some acts by which they have forfeited their franchise, and a .proper party goes before a, proper tribunal and has the corporation dissolved.’'
    The verdict was for the plaintiffs for $2975.14.
    The defendants took a writ of error. They assigned for error,

      1. The answer to plaintiffs’ second point.
    2. The answers to plaintiffs’ seventh and eighth points.
    3. 4. The answers to plaintiffs’ tenth and thirteenth points.
    5-7. The answers to defendants’ first, second, and third points.
    8-11. The answers to defendants’ fifth,- sixth, seventh and eighth points.
    12. The answer to defendants’ tenth point.
    13. The answers to defendants’ twelfth point.
    14-18. The parts of the charge in brackets.

      W. F. Poster and F. J. Fox, for plaintiffs in error.
    — This was a charity; the plaintiffs held it in trust for the inhabitants of the town and they could not refuse to use it to protect the property of the town from fire: Magill v. Brown, Brightly’s Rep. 405 ; Thomas v. Ellmaker, 1 Pars. Cas. 107; Attorney General v. Heelis, 2 Sim. & St. 67; Witman v. Lex, 17 S. & R. 90; Babb v. Reed, 5 Rawle 151; Unangst v. Shortz, 5 Whart. 519; Church v. Remington, 1 Watts 218; Pepper’s Will, 1 Pars. Cas. 436; Wright v. Linn, 9 Barr 435. Bethlehem being a municipal corporation was the only legal representative of its inhabitants and had in charge whatever related to the public good and the general welfare : 1 Dillon on Mun. Corp. 92, 93. A court of equity had exclusive jurisdiction over this property, as trust property : Thomas v. Ellmaker, supra; King v. Strafford, 3 Term R. 646. The property was trust property; a court of equity has exclusive juris-diction of it: Act of June 16th 1836, sect. 13, par. 6, Pamph. L. 789, 1 Br. Purd. 590, pl. 1; Foley v. Tovey, 4 P. F. Smith 190 ; Kisor’s Appeal, 12 Id. 428; Roshi’s Appeal, 19 Id. 467. The payment of the $1000 towards the steam-engine was voluntary and no recovery can be had for it: 2 Comyn on Cont. 151; 1 Pars, on Cont. 304, 305; 2 Kent’s Com. 616._ There could be no recovery without demand and refusal: 1 Chitty’s Pl. 155.

      II. F. Green (with whom was W. W. Schuyler), for defendants in error.
    — A corporation can be dissolved only by judicial proceedings under the Acts of April 9th 1856, sect. 1, Pamph. L. 293; April 4th 1872, sect. 1, Pamph. L. 40, 1 Br. Purd. 285, pl. 21, 22. A party may waive the tort and recover in assumpsit: McCullough v. McCullough, 2 Harris 295; Deysher v. Triebel, 14 P. F. Smith 386.
    May 8th 1876.
   Mr. Justice Mercur

delivered the opinion of the court,

• Two controlling questions- arise under the eighteen assignments of error. The one involves a consideration of the rights of the defendant in the property in question; the other whether it has selected the proper form of action to assert these rights.

The defendant in error was duly incorporated by the Court of Common Pleas of Northampton county on the 6th of October 1853. The company had had an existence and organization as a fire company for some fifty years prior to its incorporation.

The application for the charter avers that “-the said corporation is intended to be situated in the borough of Bethlehem ” in said county. The charter declares that the incorporators have for their “ object, the protection of the property of our fellow-citizens from fire.” Thus the sole purpose for which it was incorporated is clearly and distinctly expressed.

Its object was not for the private gain and profit of its members, but for the public benefit. It existed for no other or different purpose. The property which it acquired, in aid of its object, was therefore for charitable uses. While the statute of 43 EJiz., c. 4, of charitable uses, is not extended to Pennsylvania, yet the principles of it as applied by chancery in England, have long been recognised as in force here by common usage: Witman v. Lex, 17 S. & R. 90; Babb v. Reed, 5 Rawle 151; Methodist Church v. Remington, 1 Watts 218 ; Magill v. Brown, C. C. U. S. (Brightly’s Rep. 347); Thomas v. Ellmaker, 1 Pars. Eq. Cas. 98; Pepper’s Will, Id. 436 ; 7 Johns. Ch. 294; Wright v. Linn, 9 Barr 435.

In most of these cases, the rule was -applied to voluntary associations or unincorporated companies. When applied to incorporated companies the reason is stronger, and the duty of a court of equity under our statute is free iron doubt.

The first section of the Act of 6th April 1791, 3 Sm. Laws 20, authorized the incorporation of citizens of this Commonwealth for “ any literary, charitable or religious purposes.” Section 1 of the Act of 8th April 1833, Pamph. L. 238, extends the provisions of the previous act to beneficial societies and associations, and to fire-engine and hose companies. Section 2 declares that all corporations established under the foregoing act and all that may hereafter be incorporated under this act shall be able and capable in law to take and hold real and personal estate, “ to be employed and disposed of according to the objects, articles, and conditions of the instrument upon which the said corporations respectively are as aforesaid formed or established, or according to the articles and by-laws of said corporations respectively, or of-the will and intention of the donors.”

The fire apparatus of this company was originally furnished by the Moravian Society, which was the owner of all the real estate in Bethlehem until a few years prior to the incorporation of the company. As additional or improved apparatus was required, it was procured by subscription, or by fairs, concerts, and similar enterprises.

Within the limits of its charter the defendant in error had all the rights of a corporation — it held the legal title to property — yet it held it in trust for the uses and purposes of its creation, that vras for the protection of the property of their fellow-citizens from fire. It had no right to divest the property of that general trust nor to divert it from that general purpose. The corporation may in good faith dispose of any specific article, using the proceeds thereof in the acquisition of new or improved apparatus, to be used for the purpose mentioned in its charter. In whatever form the company changes the property, the trust still inheres. It cannot sell it and divide the proceeds among its members.

The company held its property subject to the supervisory power of a court of equity. By the 13th section of the Act of 16th June 1836, the Supreme Court and the several Courts of Common Pleas are given all the jurisdiction and power of a court of chancery, so far, inter alia, as relates “ to the supervision and control of all corporations other than those of a municipal character.”

It is true among the enumerated powers vested in the corporate oificers of a borough by section 2 of the Act of 3d April 1851, Purd. Dig. 168, is one “ to make regulations relative to the cause and management of fires,” and to “ authorize the borough authorities to appropriate money for the purchase of fire-engines for the use of said boroughs and to fire companies.” But a right to make a general regulation relative to the management of fires, gives no right to the borough authorities to take out of the possession of an incorporated company the fire-engines and apparatus which is not owned by the borough. It is not given to the borough authorities to decide that the company has forfeited all its rights to the possession and custody of the property it holds in trust, and therefore has no rights entitled to respect. The borough may purchase and own fire-engines or apparatus, or it may appropriate money as a donation to a fire company to assist in their purchase. What the borough owns herself, she may take possession of and control or sell it. What an incorporated company owns the borough cannot control in that manner.

In case the contributors to the erection of a church edifice, discover the corporation is not using it according to the trust for which it is held, surely it will not be contended that they on their own motion can go and take adverse possession of the building. The property does not belong to the contributors, but to the corporation, to be used by the corporation according to its charter.

The same principle applies to a fire company. Whatever may be subscribed or otherwise donated, is given to the corporation to be used by it for the object and purpose declared in its charter. The rights of eestuis que trustents therein must be protected and enforced in and through the courts : Roshi’s Appeal, 19 P. F. Smith 462. The fire company is the legal custodian of the property, and is entitled to notice and hearing before its rights shall be impaired. Nor was the corporation deprived of this right by the fact that a portion of its members assembled without notice and in an irregular manner and favored the disbanding of the company. The action then had was insufficient to work a legal dissolution of the corporation or destroy its rights of property. The first section of the Act of 9th April 1856, Purd. Dig. 285, pl. 21, prescribes the manner in which a corporation may be dissolved on its own petition by the Common Pleas of the proper county. A temporary non-user of the property did not divest the rights of the company therein : Wright v. Linn, supra ; McKissick v. Pickle, 4 Harris 148. We conclude therefore that the plaintiff in error has no just cause to complain of the answers of the court in regard to its assumed claim of right to the possession of the property.

The tenth assignment strikes at the form of the action. The declaration was in assumpsit. This action cannot be sustained unless there was an express contract, or the law will imply a contract: 1 Chit. Pl. 99. It does not lie for a chattel illegally detained : Willet v. Willet, 3 Watts 277. The plaintiff cannot waive the tort and recover the value of the goods unless the tort feasor has sold the article and received the money: Id.; Gilman v. Wilbur, 12 Pick. 120, or where he has taken it as merchandise to market for the purpose of sale and in the absence of any evidence to rebut the presumption of a sale and receipt of the money: McCullough v. McCullough, 2 Harris 295. This case was correctly said to be ruled by Longchamp v. Kenny, 1 Doug. 132, K. B., but in referring to that case the remarks of Mr. Justice Burnside are calculated to convey a wrong impression as to the extent to which it goes.

The facts of the case were that tickets for a masquerade party had been delivered to each plaintiff and defendant to sell and account for or return after- the party. The defendant got possession of one ticket that had been delivered to the plaintiff. On demand the defendant refused to pay for it or to give any satisfactory answer. Thereupon the plaintiff paid for it, and then brought suit against the defendant. The declaration was for money had and received, and for money paid.

In delivering the opinion of the court, Lord Mansfield said, “ If he sold the ticket and received the value of it, it was for the plaintiff’s use, because the ticket was his. Now as the defendant has not produced the ticket, it is a fair presumption that the defendant had actually received the money for the ticket.

If goods be sent to a merchant who refuses to receive them because they are not such as he ordered, and under pretext of re-delivering them, substitutes' spurious articles, and the genuine ones are not returned or accounted for, the owner may waive the tort and recover the price for which they may be presumed to have been sold by the defendant, in an action for money had and received ; but not for goods sold and delivered: Gray v. Griffith, 10 Watts 431. When one tortiously, in possession of another’s goods converts them into money or securities, assumpsit for money had and received may be maintained. This suit is governed by equitable principles, and lies only where the defendant ex aequo et bono ought to refund the money received: Deysher v. Triebel, 14 P. F. Smith 383. In many cases where the defendant has received goods wrongfully, a contract for the purchase will be inferred and the plaintiff may waive the tort and. recover the amount in an action for goods sold and delivered: 1 Leigh’s Nisi Prius 91; but if there be no unfair dealings or other circumstances from which an implication may arise under such a count a recovery cannot be had of the value of specific articles in the possession of the defendant, claimed as the property of the plaintiff: Deysher v. Triebel, supra.

Turning to the fact's in this case, we find that the borough authorities took possession of the property on the 3d of July 1873, by exercising dominion and control over it. They retained it in its specific form when this suit was brought,' four days thereafter. The possession was not taken fraudulently, but under a claim of right. No conversion of it into money or securities had taken place. It was merely detained and held. No implied contract or receipt of money can be implied. The whole evidence rebuts any such presumption. ' It follows, therefore, that this assignment only is sustained, and for that reason the judgment must be reversed.

Judgment reversed.


author: Mr. Justice Sharswood

text:
    Taylor’s Appeal.
    1. Taylor lent money to Schuon and took two mortgages, one for $3000, which was a first lien, the other for $10,000, prior to which was a mechanic’s lien; the aggregate was $656, more than the amount advanced by Taylor: the land was sold by the sheriff subject to the $3000. In distributing the proceeds, creditors alleged the $656 -were usurious and should be deducted from the $10,000. Held, that Taylor having advanced more than $10,000, he was entitled to receive the whole amount due on that mortgage.
    2. A creditor having two securities for the same debt may avail himself of either until he has received his whole legal claim.
    3. The court below in distribution apportioned the $656 between the two mortgages; Held to be error.
    March 23d 1876.
    'Before Agnew, C. J., Sharswood, Mercur, •Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas of Lehigh county: Of January Term 1875, No. 158.
    In the distribution of the proceeds of the sheriff’s sale of the real estate of Herman Schuon.
    On the 7th of January 1875, the sheriff paid into court as the proceeds of the sale, the sum $19,044.62. On the next day Charles M. Runk, Esq., was appointed auditor to report distribution.
    The real estate sold consisted of two lots referred to in the proceedings as No. 1 and No. 2 ; No. 1 was sold subject to a mortgage of $8000 which will he referred to hereafter.
    The facts as reported bv the auditor are in substance as follows :—
    Schuon in 1874 being largely indebted and executions pressing him, applied to William H-. Taylor, who agreed to lend him $10,000, for which he was to have as security a first mortgage on No. 2, the money to he applied by Taylor to the payment of the liens on No. 2. The mortgage was executed and it was afterwards ascertained that $10,000 would not be sufficient to pay all the liens. An arrangement was then made that Taylor should take an assignment of the $3000 mortgage, which was held by a bank as collateral security, and advance enough to discharge the liens against Schuon ; this being completed, Taylor recorded his $10,000 mortgage. The whole amount advanced by him was $12,643.56 ; for this he held as security the two mortgages amounting together to $13,000. Previously to the recording of the $10,000 mortgage repairs had been done to the building on No. 2 and the mechanic’s lien for them was entered afterwards. In consequence, this mortgage did not become a first lien as was designed, and it-was discharged by the sheriff’s sale; Taylor, therefore, had to come upon the fund in court, which was sufficient to pay the $10,000 mortgage and subsequent liens in full, except a judgment in favor of B. C. Roth, for $1750, entered November 27th 1874.
    Before the auditor, Taylor claimed that $656.44, the difference betwmen the money advanced by him and the amount of the two mortgages, had been allowed to him by Schuon under a contract, for his services in procuring the money for him. The subsequent lien creditors claimed that the sum of $656.44 was usurious interest and therefore should he deducted from the amount to which Taylor would apparently be entitled and be appropriated for their benefit.
    The auditor reported: * * *
    “It seems clear that Mr. Taylor did perform services for ■which he would he entitled to compensation if he were not the lender of the money. The fact that he is the lender should not deprive him of his right to compensation, if his services were not the mere pretext to evade the law against usury.
    “ The view we take ofthe case relieves us from deciding whether Mr. Taylor is entitled to retain the $656.44 as compensation for services, or not. Under the arrangement for the $10,000 loan, that money was to be applied in discharge of liens upon the property to be covered by the mortgage to secure' that loan. After this mortgage had been executed, recorded and part of the money paid out by Taylor, it was found that $10,000 would not reach, and Taylor says he refused to furnish more money without being secured. It was then agreed that Taylor should receive an assignment of a $3000 mortgage, known as the Eagan mortgage, covering No. 1, of defendant’s real estate. An assignment of this mortgage was executed August 22d 1874 * * * Mr. Schuon and Mr. Taylor seem to regard it as security for the money advanced by Mr. Taylor above the $10,000. As that mortgage ($3000) is not discharged by the sheriff’s sale, neither its validity, nor the sum due upon it, is in question before me.- In compliance with his engagement to lend $10,000, Mr. Taylor furnished more than that sum, which was applied in discharge of the liens on the property to be covered by his mortgage. * * *
    “ Mr. Taylor has, therefore, in the judgment of the undersigned, furnished the full sum secured by the $10,000 mortgage, and is entitled to be paid that sum out of the money in court with interest thereon from August 11th 1874, to April 12th 1875, the date of sheriff’s sale. This has been allowed him in the distribution.” * * *
    He therefore awarded to Taylor $10,400, the amount of principal and interest due on his mortgage, and to Roth, the last lien creditor, $434.88, leaving still due to him the sum of $1356.42.
    Roth filed exceptions to the report of the auditor, viz.:—
    1.1Awarding to Taylor the full amount of his mortgage and interest.
    2. Allowing him $656.44, the amount retained from the $10,000 lent to Schuon.
    4. Allowing Taylor usurious interest on his mortgage.
    In his opinion on the exceptions, Longaker, P. J., amongst other things, said:—
    “ * * * The property upon w'hich the Eagan ($3000) mortgage rests has been sold subject to this mortgage; and the $10,000 mortgage has been discharged, from the fact that a mechanic’s lien was filed subsequently to its entry. It is therefore contended by counsel for Mr. Taylor, that the $656.44 retained by him — if found to be a bonus — will attach itself to the Eagan mortgage; and as that mortgage is not discharged, the court can institute no inquiry as regards its legal status. * * *
    “ An examination of the testimony warrants the conclusion, that this sum was retained as a bonus, and it must therefore be treated as usurious interest attaching itself to the entire transaction; and a proper equitable disposition will be a pro rata distribution of the $656.44 upon the sum of $12,343.56. * * * The pro rata distribution will be about 531-1000, which on $10,000 will be $531; this latter sum will therefore be deducted from the distribution allowed Mr. Taylor, and added to the claim of B. C. Roth.
    “And now, 14th January a. D. 1876, it is decreed that the report be modified by reducing the allowance to Taylor on his mortgage to the sum of $9869, and increasing the distribution to B. C. Roth on his judgment of $1750 to the sum of $965.88.”
    Taylor appealed to the Supreme Court and assigned this decree for error.

      JE. Haney, for appellant.

      W, H. Sowden, fon appellee.
    May 8th 1876.
   Mr. Justice Sharswood

delivered the opinion of the court,

Conceding all that can be asked, that the advances by Taylor to Schuon constituted one debt, for which two several mortgages were taken as securities, and that the sum of $656.44, the differ.ence between the amount of these two mortgages and the sum actually advanced, was usurious, it is not easy to comprehend upon what principle of law or equity the usury is to be apportioned between these two mortgages. The opinion of the learned judge below does not enlighten us. A creditor who has several securities for the same debt, has a right to avail himself of any one' of them, until he has realized his whole legal claim, principal and interest. If Taylor had sued out the $10,000 mortgage, he would have been entitled to a judgment for the whole amount, principal and interest, for after receiving it, there would still have been a balance due him, for which he must look to his other security. That other security he may never realize or not in full. If both mortgages had been turned into money, and it was thus legally ascertained that there was more than enough to pay Taylor his debt in full with legal interest, there might then have arisen a question of marshalling the assets, there-being two separate funds. Here there -was but one fund in court, upon which the $10,000 mortgage stood as an undoubted lien, and the Eagan mortgage not a lien. It seems to us that there was error in the decree of the court below.

Decree reversed, and now record remitted that distribution may be decreed according to the report of the commissioner.


author: Mr. Justice Paxson

text:
    Van Auken versus Dunning.
    1. Van Auken gave a note to Everett for $3340 ; .judgment was entered on it; Everett assigned $2500 of it to Dunning; on affidavit of Van Auken the judgment was opened and he let into ¡¿“defence. On the trial he offered to prove that Dunning lent him $2500 in New York at a rate of interest usurious by the laws of that state; that Van Auken procured the assignment of the judgment as collateral security for the loan, it having been paid by the money borrowed from Dunning. Held, that this would not b'e a defence, Dunning was entitled to recover the amount lent and legal interest.
    2. The offer not being to show that the contract was void for usury by the laws of New York, the presumption was that they were the same as in Pennsylvania, and the contract .was to be treated as void only for the excess of interest.
    March 23d 1876.
    Before Agnew, 0. J., Sharswood, Mercur, G-ordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Pike county: Of January Term 1876, No. 126.
    On the 15th of June 1872, judgment: Francis Everett against D. M. Yan Auken, was entered in the Court of Common Pleas of Pike county, on the following note:—
    “$3340.00. On the first day of January A. D. 1873, for value received, I promise to pay Francis Everett, or order, three thousand three hundred and forty dollars, without defalcation or discount, with interest from the date hereof, and I do hereby confess judgment for the above sum, with interest and costs of suit, and do hereby empower any attorney of the courts of record of this state or elsewhere, or the prothonotary thereof, to enter the said judgment of record, with release of all errors, hereby waiving the exemption laws of this Commonwealth exempting property from levy and sale on execution-and the right of inquisition, with confession of condemnation.
    Witness my hand this 12th June A. D. 1872.
    D. M. Yan Auken.”
    Subsequently, by an assignment by a separate writing, stating the docket entries of the judgment, it was assigned as follows:—
    “For and in consideration of the sum of- two thousand five hundred dollars to me in hand paid by Braddock R. Dunning, I do hereby assign, transfer, and set over unto the said Braddock R. Dunning, his executors, administrators, and assigns, two thousand five hundred dollars of the above stated judgment, and said judgment for said amount is hereby assigned, transferred, and set over, with interest from the date hereof, and direct that said judgment, to the amount of two thousand five hundred dollars, be marked to his use — said amount to be collected without recourse to plaintiff.
    Witness my hand this seventh day of May A. D. 1873.
    Francis Everett.”

      Upon the petition and affidavit of the defendant that he had a legal defence to the whole judgment, the grounds of which he set out, the court on the 26th 1874 granted a rule on Dunning to show cause why the judgment should not be opened and the defendant let into a defence. On the first of March 1875 the rule was made absolute, and an issue directed, in which Braddock R. Dunning was the plaintiff and Van Auken defendant; the note to stand as the declaration ; and the defendant to plead to issue. He pleaded payment with leave to give the special matters in evidence.
    The case was tried December 21st 1875, before Waller, P. J.
    The plaintiff gave the note, judgment and assignment in evidence and rested.
    The defendant offered to prove that in the spring of 1873, he made a loan of $2500 of Braddock R. Dunning, at Middletown, in the state of New York, at the rate of seventeen per cent, per annum; that said loan was usurious by the laws of the state of New York; that as security for said loan he procured an assignment of $2500 of the judgment given in evidence to be made to said Dunning, it having been paid to said Everett by money lent by said Dunning; and that said Dunning only holds said assignment as collateral security for said usurious loan, and the judgment was only kept alive for that purpose. Offered for the purpose of defeating plaintiff’s right to recover under said assignment.
    The plaintiff objected to the offer.
    1. That, if the above contract of loan was usurious under the laws of the state of New York, and could not be enforced by action on the ground of its being void, then the $2500 of the judgment so assigned as collateral security remains unpaid, and the validity of the judgment unimpaired.
    2. That, the original judgment being unimpaired and nothing alleged against it, nothing occurring subsequent to its rendition can be given in evidence in this. suit.
    The offer was rejected, “ as the record of the judgment is anterior to the contract usurious as alleged, and the assignment to Braddock R. Dunning was of the subsisting judgment, to the extent of $2500 and interest, being a part of the judgment.”
    A bill of exceptions was sealed for defendant.
    ' No other evidence being offered, the court directed a verdict for the plaintiff for $2500 and interest on that sum.
    The jury accordingly found for the plaintiff $2743.25.
    The defendant took a writ of error and assigned for error the . rejection of his offer of evidence.

      W. H. Jessup, for plaintiff in error.
    — The opening of the judgment of itself let in an inquiry to matters occurring after its entry; in such cases the substance is looked at, not the form: Gates v. Johnson, 3 Barr 55; Clark v. Douglass, 12 P. F. Smith 408.
    By the New York laws, 1 Revised Statutes 772, the rate of interest is fixed at seven per cent, per annum, and all bonds, notes, &c., upon which a greater rate of interest is reserved are declared void. This money being borrowed in New York and no place of payment being fixed, it was payable there, and the contract is governed by the laws of that state: DeWolf v. Johnson, 10 Wheat. 367 ; Cope v. Alden, 53 Barb. 350; Williams v. Fitzhugh, 37 New York 444. Any security given in payment- or discharge of an usurious security is equally yoid with the original. The original taint of usury attaches to all consecutive obligations and securities growing out of the original vicious transaction : Vickery v. Dickson, 35 Barb. 96; Campbell v. Sloan, 12 P. F. Smith 485; Tate v. Wellings, 3 Term R. 537; Preston v. Jackson, 2 Stark. 237 (212); Bridge v. Hubbard, 15 Mass. 96; Tuthill v. Davis, 20 Johns. 285; Walker v. Bank of Washington, 3 How. 62; Botsford v. Sandford, 2 Conn. 276; Wales v. Webb, 5 Id. 150; Dunning v. Merrill, 1 Clarke C. R. 252; Reed v. Smith, 9 Cowen 647; Steele v. Whipple, 21 Wend. 103; Dow v. Schutt, 2 Den. 621; Harrison v. Hannel, 5 Taunt. 780; Irvin v. Barrett, 2 Grant 73; Belt v. Lent, 24 Wend. 230.

      F. M. Crane (with whom were J. Fíyce and C-. Q. Waller.)—
    The assignment was a Pennsylvania contract: 2 Parsons on Contracts 95. In order that a contract or debt should be avoided as usurious, it is necessary that it should itself be tainted with usury; for if any subsequent contract in payment of the first be usurious, the second contract will be void, and will therefore leave the original contract or debt wholly unpaid, and it may.be enforced as if the second had not been made: 2 Parsons on Contracts 392, and authorities there cited.
    The offer should have proposed to prove that the contract was not only made but to be performed in New York, in order to subject it to the usury laws of that state: Chapman v. Robertson, 6 Paige 627. As to the character of evidence admissible in an issue on an open judgment: Curtiss v. Slosson, 6 Barr.265.
    May 8th 1876.
   Mr. Justice Paxson

delivered the opinion of the court,

We see no error in the rejection of the defendant’s offer. It was proposed to prove that in the spring of 1873, the defendant made a loan of the sum of $2500, of Braddock R. Dunning, at Middletown, in the state of New York, at the rate of seventeen per cent, per annum ; that said loan was usurious by the laws of the state of New York; that with the money thus obtained the defendant paid Everett, the plaintiff in the judgment in controversy,' the money due thereon ; and in order to secure the said loan, Dunning procured from Everett an assignment 'of said judgment in Dunning’s favor; that the latter now holds the judgment as collateral security for said usurious loan, and for no other purpose. Conceding all this to be true, it would not amount to a defence. The plaintiff would be entitled to recover the $2500, actually loaned to the defendant, with legal interest. It was not alleged that any payment had been made on account of either principal or interest. The case was argued upon the theory that the contract was void by the laws of the state of New York. Had the offer been to show that it was void, we should have had an entirely different question before us. The offer was to show that the contract was usurious. Such contract is void here only for the excess. We have no right to presume it is otherwise in the state of New York.

The judgment is affirmed.