author: Read, J.

text:
    Philadelphia versus Scott.
    1. The Act of March 23d 1866, repealing the laws requiring advertisement of “ municipal claims,” does not apply to registered taxes.
    2. The Acts of Assembly relating to city taxes and municipal claims compared and construed.
    May 28th 1872.
    Before Thompson, C. J., Read, Asnew, Shabswood and Williams, JJ.
    Error (from the Eastern District) to the District Court of Philadelphia: Of January Term 1872, No. 230.
    This was a scire facias, issued October 21st 1870, by The City of Philadelphia against Freeman Scott, owner, &c., on a tax claim amounting to $237.16, filed against a lot of ground on Carlton Street, with the building erected on it, &c. The return to the writ was, “ Made known by posting and publication, and nihil habet as to the defendant.”
    By Act of February 3d 1824, § 1, 8 Smith’s L. 189, 2 Br. Purd. 1084, pi. 1, all taxes, &c., in Philadelphia on real estate shall be a lien on such real estate.
    By the Act of April 16th 1845, § 3 Pamph. L. 496, 2 Br. Purd. 1086, pi. 12, the treasurer of Philadelphia was authorized to enforce payment of such taxes and to employ counsel for the purpose.
    By .Act of January 23d 1849, § 3, Pamph. L. 686, 2 Br. Purd. 1090, pi. 34, sales under municipal claims are to be made only after three months’ publication in daily newspapers in Philadelphia, before commencing suit on the claim. By Act of March 11th 1846, § 2, Pamph. L. 114, 2 Br. Purd. 1087, pi. 18, the claim for taxes is to be filed in the office of the prothonotary of the District Court, and the city may proceed by action of debt against the person liable for the taxes or proceed by scire facias, as in case of mechanics’ liens. In case of mechanics’ liens, if the defendant cannot be found in the county and there be no one residing on the premises, the sheriff shall affix a copy of the scire facias on the house. By the Act of April 12th 1859, § 1, Pamph. L. 114, 2 Br. Purd. 1087, pi. 16, the powers and authority of the treasurer were conferred on the receiver of taxes.

      On the 23d of March 1866 (Pa.mph. L. 303, 2 Br. Purd. 1091, pi. 42, et seq.), there was enacted “ A further supplement * * * regulating the filing and collection of municipal claims.”
    The preamble and the first section are:—
    “ Whereas, Frequent and just complaints have been made, that great expenses are imposed upon the owners of real estate in the city of Philadelphia, by the necessary costs for advertising municipal claims before suit brought, as required by existing laws, and great injustice is frequently done to the owners of property liened by the city, who are ignorant of the existence of claims against the same, by the accumulation of the costs of suit thereon, and by selling said properties without actual notice to them :* * *
    “ Sec. 1. That all laws and parts of laws, requiring the advertisement before suit brought, of municipal claims of every description, so far as said requirements are concerned, are hereby repealed, and in lieu thereof, and as a sufficient substitute therefor, it is hereby declared, that before any scire facias shall be issued on any such claim, it shall be the duty of the city solicitor to cause diligent search to be made by an assistant or clerk, for the owners or reputed owners of all real estate, against which there has heretofore been, or may hereafter be, filed, any claim in the name of the city of every kind, and to serve him or her with a written or printed notice to make payment to the city solicitor within ten days.”
    By subsequent sections it is provided that “ the writs of scire facias shall be served by the sheriff, by advertising and posting as now by law required,” and before judgment by default, the court must be satisfied by affidavit, that if the owner had a known residence in the city, he had been served before suit with notice of the claim ; if the owner had no known residence in the city but has residence elsewhere, that notice of the claim had been sent to him by mail; if his residence could not be ascertained, that the premises had been visited and the notice served on the occupant-if there were one, if unoccupied, that a notice of the claim was affixed on the premises, &c., with other provisions to ascertain the owner for the purpose of serving him.
    The cause was tried May 19th 1871, before Thayer, J. The claim was given in evidence by the plaintiff, and it was admitted, that no notice had been given to the defendant under the Act of March 23d 1866, before issuing the scire facias.
    The court reserved the point whether the neglect of the plaintiff to give the notice to the defendant required by the Act of 23d March 1866, before issuing the scire facias, constituted a defence to this action and prevented the plaintiff’s recovering; and directed the jury to find a verdict for the plaintiff, subject to the decision of the court in banc, upon the reserved point. The jury found a verdict for the plaintiff for $160.20; and afterwards the court, sitting in banc, entered judgment for the defendant upon the said reserved point.
    The plaintiff sued out a writ of error from the Supreme Court, and assigned the entering of judgment for defendant for error.

      J. S. Powell and-McFadden (with whom was P. Poulson), for plaintiff in error.
    — “ Registered taxes ” and “ municipal claims ” are not convertible terms: Northern Liberties v. St. John’s Church, 1 Harris 104; Pray v. Northern Liberties, 7 Casey 69.
    Myers, for defendant in error.
    July 3d 1872,
   The opinion of the court was delivered, by

Read, J.

— By the Act of the 3d of February 1824, taxes on real estate in the city and county of Philadelphia, are declared to be a lien on said real estate, giving it a priority before any recognisance, mortgage, judgment, debt, obligation or responsibility, which the said real estate may become charged with, or liable to, from and after the passing of the act, and it is made the duty of the commissioners of the county of Philadelphia, to keep a fair and correct register in a book or books, to be opened by them for that purpose, and to be called “ The Register of Unpaid Taxes on Real Estate,” in which they shall enter all taxes, which shall be delivered to them in conformity with the provisions of the act.

By construction, and also by the positive provision of the 8th section of the Act of 11th March 1846, “ no law now in force shall be so taken or construed, as to require the city of Philadel- ■ phia, or any district of the county of Philadelphia, or the board of health, to register in the office of the county commissioners, a,ny claim for curbing, paving, grading, laying pipes or culverts, or the expenses of removing nuisances.”

By the 3d section of the Act of the 16th April 1845, the treasurer of the county of Philadelphia shall have power to enforce the payment of registered taxes, and to employ counsel, who shall receive five per cent, on all sums collected by him, in full compensation for his services in collecting. Suits for registered taxes to be in the name of the county.

Upon the consolidation of the city under the Act of 2d February 1854, as carried out by subsequent acts, the offices of the county treasurer and county commissioners were abolished, and the receiver of taxes was invested with full power to collect the taxes, and to give notice to delinquent tax-payers, and upon him devolved the duty of keeping “ The Register of Unpaid Taxes on Real Estate,” and by the Act of the 9th of April 1861, he was authorized to charge delinquent tax-payers a commission of five per cent., to be paid to and received by the receiver of taxes, which charge was repealed by the Act of 9th January 1867.

By an Act of the 24th of March 1870, Pamph. L. 545, the receiver of taxes was directed to appoint a person to be denominated collector of all outstanding or delinquent taxes due the city of Philadelphia, who shall hold his office for the term of three years, to whom he shall hand over immediately “ the registries of all outstanding or delinquent taxes due and owing said city, and upon the first day of February Anno Domini, one thousand eight hundred and seventy-one, and each succeeding year, the registry of delinquents for the previous year.”

The said collector is immediately to “ proceed to collect all such delinquent taxes, either out of the personal or real estate of said delinquent owner, wherever the same may be found, and for such purpose he shall be and is hereby invested with full and absolute authority to levy and sell either the personal or real estate of said owner.”

He is to file liens, take judgment and sell the real estate. And by the 5th section, “ the compensation of the said collector shall be five per cent, upon the amount he shall collect and pay over to the city treasury. Provided, That the city of Philadelphia shall not be liable for any expense for advertising, office-rent, clerk-hire or any other cost of collection ; all such expenses to be paid by the collector.”

By the Act of 31st of March 1864, it is made the duty of the prothonotaries of the Court of Common Pleas and of the District Court of the city and county of Philadelphia, to keep a Locality Index, in which shall be registered the street front of real estate against which claims are or shall be filed, to enforce liens for taxes, municipal work, or of mechanics and material-men.

By the Act of the 16th February 1866, it is also made their duty to place on the Locality Index, the street front of real estate against which writs of scire facias shall issue, to enforce the collection of any claim filed for taxes, municipal work or of mechanics and material-men.

By the Acts of 14th March 1865, and 2d of February and 29th of March 1867, and 24th of March 1868, the Board of Revision of Taxes was established and its powers defined, and the chief engineer and surveyor is to cause to be made books of plans of the city, divided into sections, so far as the streets are or shall be laid out, and under the said acts and ordinance of the city, there is established in the Department of Surveys, a “Registry Bureau,” of which the chief engineer and surveyor is the executive head.

According to law the receiver of taxes advertises the names of delinquent tax-payers, in each ward, and the cost of advertising each name in any one ward, in two newspapers, shall not exceed fifteen cents. By the Act of 21st March 1862, Pamph. L. 152, upon the receipt of the registries by the collector of outstanding or delinquent taxes, it is the practice of that officer, to give to each delinquent tax-payer, thirty days’ notice personally before any proceedings are taken against him.

There is but one city and county tax for all purposes.

In the old city proper all the improvements were paid for by general taxation, and by loans effected on the credit of the corporation.

Instead of incorporating the suburbs into the city, or extending the city limits to include the built portions and population beyond them, on the north, south and west, distinct corporations called districts were created over specific portions of territory. These districts being sparsely settled, with large vacant spaces, and inhabited by persons unable to bear heavy taxation, adopted the system of imposing the costs of the improvements upon those who were immediately benefited by them. The improvements so made consisted of pitching and paving streets and alleys, for digging down, filling up, and for curbing, paving and repairing any foot-way within the same, and also for building culverts and laying down iron pipes within the same, the costs of which were imposed upon the real estate in front of which they were made, according to the front foot, and were made liens, and provision was made for filing claims and demands for the same, and for the recovery of the same by writ of scire facias by the 8th and 9th sections of the Act of 16th April 1840, Pamph. L. 414, 415. By subsequent acts these provisions have been extended to the old city proper with a single exception. These are styled municipal claims. Claims filed by the board of health for the expenses attending the removal of nuisances may also be classed as municipal claims.

By an act entitled “A further supplement to an act consolidating the city of Philadelphia, &c., regulating the filing and collection of municipal claims,” passed 23d March 1866, Pamph. L. 303, it is recited: Whereas, Frequent and just complaints have been made that great expenses are imposed upon the owners of real estate in the city of Philadelphia, by the necessary costs for advertising municipal claims before suit brought as required by existing laws, and great injustice is frequently done to the owners of property liened by the city, who are ignorant of the existence of claims against the same, by the accumulation of the costs of suit thereon, and by selling said properties without actual notice to them, and whereas, it is just these grievances should be remedied :

It is enacted, “ That all laws and parts of laws requiring the advertisement before suit brought of municipal claims of every description, so far as said requirements are concerned, are hereby repealed, and in lieu thereof, and as a sufficient substitute therefor, it is hereby declared, that before any scire facias shall be issued on any such claim, it shall be the duty of the city solicitor to cause diligent search to be made by an assistant or clerk for the owners or reputed owners of all real estate, against which there has heretofore been or may hereafter be filed, any claim in the name of the city, of every kind, and to serve him or her with a written or printed notice, to make payment to the city solicitor within ten days.”

By the 2d section it is enacted: “If said claims are not paid within said time, they shall be sued out by the solicitor, and the writs of scire facias shall be served by the sheriff by advertising and posting as now by law required; but before any judgment by default shall be entered therein, the court shall be satisfied by an affidavit to be filed of record of the following facts,” which have no bearing upon the present case. It is also provided, “that there shall be paid to the city solicitor as costs, five per cent, upon said claims to reimburse him for carrying into effect the provisions of this act, which percentage shall be in lieu of all costs heretofore and now chargeable for advertising claims and liens before suing them out, and in lieu of all percentage and commissions of all kinds whatever, now allowed or charged on any claim of whatsoever nature filed in the name of the city, and all municipal claims of every kind, whether to use or otherwise, shall be filed by the city solicitor.” “ This act shall apply to all claims and liens of whatsoever kind filed and to be filed in the name of the city, whether to use or otherwise.”

The court below held that this act applied to, and covered registered taxes, although the words used are “municipal claims.” This would certainly seem to be a very forced construction, when we consider that taxes and registered taxes have belonged exclusively to one department, the receiver of taxes, who collects them out of either real or personal estate. By the Act of 21st March 1862, the cost of advertising delinquent tax-payers before suit brought, was reduced to fifteen cents for each name, whilst the costs of advertising municipal claims before suit brought remained untouched. At the time of the passage of the Act of 1866, the receiver of taxes was authorized to charge delinquent tax-payers a commission of five per cent., to be paid to and received by him, which, if the new act applied, would oblige a delinquent taxpayer to pay ten per cent., compounded of five per cent, commission and five per cent, costs.

The Acts of 1864 and 1866, establishing the locality index, both speak of liens and claims filed for taxes, municipal work or mechanics and material-men, three distinct classes, and defining municipal claims as municipal work, a term which could not include taxes.

By the repeal of the Act of 9th April 1861, five per cent, was taken off the delinquent tax-payers, and by the Act of 24th March 1870 the five per cent, is not paid by the tax-payers, but by the public out of the moneys collected and paid over, whilst by the Act of 1866 the five per cent, is paid to the city solicitor as costs.

The case before the court was governed by the Act of 1870, and not by the Act of 1866.

In the office of the prothonotaries there are a “ city tax-docket,” in which the taxes are entered, and separate dockets for “ city claims,” and “city claims to use,” &c., the last arising out of contractors agreeing to take the bills to be collected in-payment.

The duties imposed upon the city solicitor, as appears by the affidavit required by the Act of 1866, in order to secure personal notice of the proceeding to the real owner, are very onerous, and are justly considered as costs in the cause to be paid by the defendant. The Act of 1866 was drafted by the present attorney-general, then city solicitor, and neither he nor any subsequent city solicitor ever supposed it applied to registered taxes, or that municipal claims could be extended to include a distinct class of claims and registered taxes, the exclusive collection of which was vested in the receiver of taxes.

Judgment reversed, and venire de novo awarded.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    Roddy’s Appeal.
    1. The 9th section of Act of April 22d 1856 (Judgments), applies to subrogation and to cases where the estates of several shall be subject to the lien of' a judgment, to which they should contribute.
    2. In such cases the court may order the properties to be sold in the proportion or succession in which they are liable to contribute to the lien, or compel the plaintiff on payment to assign his judgment and direct to what uses it shall be assigned, and may control the execution so as to prevent injustice.
    3. R. and P. jointly purchased two tracts, gave a mortgage on them for the purchase-money ana made amicable partition. R. paid part of the mortgage. On his offer to pay the residue of the proportion to which his part was liable, the court might order P.’s tract to be first sold.
    * 4. The proper practice in such case, stated.
    October 10th 1872,
    (at Pittsburg). Before- Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Somerset eounty: Of May Term 1872, Middle District, No. 90.
    On the 22d of September 1871, John D. Roddy presented a petition to the Court of Common Pleas, setting out that the petitioner and Hiram Findley purchased from David Hay and Michael Hay two tracts of land, one known as the Hoyman farm, and the other as the Sturtz farm, and gave a joint mortgage on the farms for the purchase-money; that in January 1869, they made an amicable partition, the “Hoyman farm,” containing 327 acres, being assigned to Findley, and the “ Sturtz farm,” containing 289 acres, being assigned to Roddy; that up to July 2d 1869, Roddy had paid to the Hayes, the mortgagees, $3337.50, and Findley had not paid anything; that upon a scire facias on the mortgage, the mortgagees recovered judgment against Findley and Roddy for the amount due on the mortgage; Roddy further represented that he was willing to pay the unpaid purchase-money due on his tract upon the plaintiffs in the scire facias releasing his tract from the lien of the mortgage. The prayer of the petition was that the court would order “ that the plaintiffs shall cause to be first raised out of the tract held by the said Findley so much of the amount due on the judgment as would amount to his pro raid of the original purchase-money, and the residue out of the tract held by your petitioner if not otherwise paid or satisfied by your petitioner.”
    The court granted a rule on the plaintiffs to show cause why the order prayed for should not be made.
    The plaintiffs answered admitting the allegations of the petition, and averring “ that said mortgage is a joint obligation, and that they, the said respondents, are neither a party to nor even agreed to said amicable partition; that both tracts are bound by said mortgage, and that they believe that' at a cash sale both tracts will not bring much more, if any, than will satisfy their judgments, interest and costs; and they further say they ought not to be delayed or postponed in the execution on their mortgage by reason of any private arrangement made by the mortgagees for their own interest or convenience, and in which your respondents were not consulted, did not agree to and could not control, and therefore pray your Honors to discharge the rule at the costs of the petitioner.”
    The court discharged the rule, and Roddy appealed to the Supreme Court, assigning the order discharging the rule, for error.

      J. R. Sdie, for appellant.

      V. Say and 8. Gaither, for appellee.
    October 21st 1872,
   The opinion of the court was delivered, by

Agnew, J.

— From the tenor of the arguments and the entire absence of a reference in the paper-books to the 9th section of the Act of 22d April 1856, Br. Purd. 578, pi. 40, it would seem that act was not brought to the attention of the learned court below. The act confers upon the courts a valuable power, to control and direct executions so as to subserve the rights and equities of defendants as well as plaintiffs. Being statutory, the power is legal, and extends not only to cases of subrogation, in which the court has before exercised equitable powers, but to all cases where the estates of several persons shall be subject to the lien of any judgment to which they should by law or equity contribute. The court may, therefore, order the properties liable to the common encumbrance to be sold in the proportion, or in the succession, in which the properties of the several owners shall in law or equity be liable to contribute towards its discharge, or compel the plaintiff on payment to assign his judgment. It may also direct to what uses the judgment shall be assigned, and when assigned direct all executions thereupon, so as to subserve the rights and equities of all parties, whose real estate is liable thereto. These powers are so clearly remedial and adapted to cases in which the court had not before been accustomed to grant relief, by compelling the plaintiff to proceed in his execution so as to do no injustice ; they should be exercised in the very spirit of the act itself. In this case the defendants held the “ Hoyman” and “ Sturtz” tracts severally, but subject to a common encumbrance, to wit, a joint mortgage, on which judgment had been obtained, which was ripe for execution. Roddy had paid a considerable part of the mortgage-money, but Findley had paid none, and was insolvent. Roddy offered to pay the residue of the proportion of the money to which his several tract was equitably subject. It was therefore just that the two tracts should be so sold as to prevent injury to Roddy by selling his tract for the debt and throwing him upon action against Findley for contribution. This could be easily done without the slightest injury to the plaintiff in the levari facias, by an order that the sheriff sell the “ Hoyman” tract owned by Findley first, and if the price was sufficient to pay the liens, to return the “ Sturtz” tract owned by Roddy unsold; but if the (l‘ Hoyman” tract did not bring a sufficient sum to pay the debt and costs,- then to sell the “ Sturtz” tract, unless the defendant, Roddy, paid to him the residue not made by the sale of the “ Hoyman” tract. By such an order the plaintiff would not be delayed and justice would be done between the defendants in the writ. As the court below declined to exercise their power at all, and to make any order in the ease, their order discharging the rule must be reversed. But as it is alleged that Findley was not made a party to the rule, and had no notice, and yet might be able to show a reason, either not to make the order we have indicated, or to modify it, we forbear making any further decree, and direct the record to be remitted to the court below to hear the rule afresh with notice to Findley; and to make such order in the case as equity and justice shall require.

Order of the court below discharging the rule to show cause reversed, and record is directed to be remitted to the court below to proceed in accordance herewith.


text:
    Steele’s Appeal.

    1. Upon conflicting testimony the court below decreed subrogation; on appeal the Supreme Court held, that the evidence of the appellant should outweigh that of the appellee before error could be alleged; the evidence being about equipoised the decree was approved.
    2. The right of subrogation, being of pure equity and benevolence, is the subject peculiarly of equity jurisdiction.
    3. Appeal is the proper remedy to review a decree of subrogation in the court below.
    4. In the court below the proceeding for subrogation should be by petition (setting forth the necessary facts), and answer.
    October — 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Crawford county: Of October and November Term 1871, No. 95.
    On the 7th of November 1867, Hiram Steele, Conrad Wegefarth and Horace Horton, by an instrument of writing, associated themselves for the purpose of mining oils, agreeing to put down five wells on farms specified, on which they had oil leases ; each to pay one-third of the expenses and to receive one-third of the profits.
    On the 11th of November Wegefarth assigned all his interest in these leases to William McArthur, his father-in-law, and Margaret McArthur.
    On the 7th of May 1868, Wegefarth, Steele and McArthur made a note, with, warrant of attorney to confess judgment, to John Benninghoff for $500, payable in 90 days.
    This note was signed:— “ C. Wegefarth,
    H. Steele,
    Wm. McArthur, Security.”
    Judgment was entered on the note, execution was issued to June Term 1870, and McArthur’s property levied on ; the sheriff being about to sell the property, McArthur paid the amount of the judgment. He then presented a petition to the court setting out that he was the surety for Steele in the note and that he had been compelled by execution to pay the sum of $620.85, the amount of the judgment on the note and costs. He therefore prayed for a rule to show cause why he should not be subrogated to the right of the plaintiff in the judgment. Wegefarth had been declared a bankrupt.
    Depositions were taken on behalf both of Steele and McArthur, upon which the court held that McArthur was the surety for Wegefarth and Steele, and decreed that McArthur be subrogated to the rights of the plaintiff in the judgment.
    From this decree Steele appealed to the Supreme Court, and there assigned it for error.

      J. B. Brawley and B. Berriclcson, for appellant.

      W. B. Bole, for appellee.
    January 9th 1872,

       This and the three cases following it were argued at former terms.

   The opinion of the court was delivered, by

Agnew, J.

— On the merits, this case is with the appellee. Giving to the appellant’s testimony the greatest weight he can ask for it, it stands nearly upon an equipoise with that of the appellee. In that case we ought not to reverse. The appellant’s evidence should outweigh that of the appellee before error in the court below can be alleged. The face of the note on which McArthur the appellee appears as surety, and the partnership relation between Steele and Wegefarth, the presumptive principals, are circumstances of weight, corroborating the testimony of the appellee.

The most important question before us is the right of Steele to appeal. McArthur took a rule to show cause why he should not be subrogated to the rights of the plaintiff. The rule was made absolute by the court below, and from that order Steele has appealed to this court. As the question is one of importance, and the right of appeal denied, we shall dispose of it now. The right of subrogation is one arising in pure equity and benevolence, and is therefore a peculiar subject of equity jurisdiction: Kyner v. Kyner, 6 Watts 221. The power to subrogate was often exercised by our courts before the Act of June 16th 1836 conferred the equity powers enumerated in that act. Indeed, it does not appear that this power can be referred to any of the heads of equity set forth therein. The appeals, therefore, which came up after the passage of the act upon orders of subrogation cannot be referred to the right of appeal given by it. Certainly those which came up before cannot. Bearing this in mind, I shall refer to some of the cases reviewed in this court without pretending to cite all. Some came up by writ of error and some by appeal. Of the former are, Burns et al. v. Huntingdon Bank, 1 Penna. 395; Croft v. Moore, 9 Watts 451; Pott v. Nathans, 1 W. & S. 155; Springer’s Adm’rs. v. Springer, 7 Wright 518. In the last named, Lowrie, C. J., said: “ It was natural, in introducing the equity remedy of subrogation, to introduce with it the right of review. But a writ of error cannot, without a change in its nature, become an adequate form of review of equitable remedies, because it brings up only what is properly record, in order to assign error in that, and never brings up the evidence except by bill of exceptions, which is a form not practised in equity. It is by appeal that equity remedies are reviewed in a higher court, and that brings up the whole case, and not merely the record of it; and it is properly this form of review that is to be deemed as introduced along with the practice of subrogation.” These appear to be correct views, and as a consequence the writ of error in that case was quashed, although that form of remedy had been used in previous cases. In all the cases the proceeding had been by a rule to show cause in the court below.

Neff v. Miller, 8 Barr 347, does not state how the case came into this court, but the proceeding was by a rule to show cause which was discharged, and in this court the discharge of the rule was reversad and a procedendo awarded. The next case is Klopp & Stump v. Lebanon Bank, 10 Wright 88, a regular proceeding by bill, which came up by appeal. After this I find Mosier’s Appeal, 6 P. F. Smith 76. There Dick & Co. presented their petition to the Common Pleas of Crawford county, setting out certain facts, and praying the court to strike off the entry of satisfaction in three certain judgments, and to subrogate them in place and stead of the plaintiff. This was done, and on appeal to this court the order of the court below was affirmed in am opinion by the present Chief Justice. Taking the whole current of authority, it is certainly conclusive of the right of appeal to this court existing in cases of subrogotion, whether the proceeding be by a mere rule to show cause, a petition or a formal bill. In reason it should be so. The jurisdiction is a large and important branch of equity, and the questions often of great delicacy and far-reaching consequence. The better practice, however, is to proceed by a formal petition, setting forth all’ the necessary facts to entitle the party to the subrogation, and by an answer, thus bringing the precise question at issue distinctly before the court.

The appeal in this case is therefore recognised, but on the merits it is dismissed at the costs of ■ the appellant.


author: Williams, J.

text:
    Kneib versus Graves.
    1. A judgment was entered against a firm on a note with warrant of attorney to confess judgment, not under seal, signed by one of a firm in the firm name, for a firm debt. Held, that the plaintiff was entitled to execution against the firm effects; but not against the other members of the firm.
    2. After entry of the judgment, the plaintiff brought suit for the debt ¡against another of the firm ; he pleaded the judgment as a “former recovery.” Held, that this was not such estoppel as to authorize execution on the judgment against him individually.
    3. The execution must follow the judgment and be warranted by it; and this depends on its nature and form.
    October — 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of JSrie county: No. 66, to October and November Term 1871.
    On the 2d of May 1868, No. 826, to February Term 1868, a judgment “ J. C. Graves against Theodore Eimers & Co.,” was entered in the Court of Common Pleas of Erie county for $800, on a note dated April 1st 1868, for that sum, payable to the plaintiff or bearer in six months with interest, with warrant of attorney to confess judgment, waiving inquisition, exemption, &c.; thenote and warrant were not under seal, and were signed by Theodore Eimers only.
    The plaintiff doubting the effect of the entry of the judgment against the members of the defendant firm other than Theodore Eimers, brought an action of assumpsit to February Term 1889, against Matthew Kneib, Martin Schwab and Joseph Eimers, who, he aVerred, were the other partners.
    His declaration set out the indebtedness of the firm to him on the note mentioned in the judgment; that judgment had been recovered on it against T. Eimers by virtue of the warrant of attorney, “but no valid judgment had been obtained against the defendants, the remaining members of the said firm, by reason whereof and by force of the statute, &e., the plaintiff became entitled to have and maintain this action against the defendants.” Kneib alone took defence and pleaded the general issue, but did not put m an affidavit denying the partnership, as required by the rules of the Court of Common Pleas of Erie county. The case being thus at issue it came on for trial January 80th 1871.
    After the plaintiff had closed his case, the defendant offered in evidence the record of the judgment, No. 826, to February Term 1868, to show a former recovery for the same cause of action.'
    On the plaintiff’s objection the court rejected the offer, for the reason that there was no plea of “ former recovery.”
    The defendant then, by leave of the court, added the plea of “former recovery,” in which he set out the above-mentioned judgment. The cause was continued on motion of the plaintiff.

      On the 31st of January the plaintiff suggested that the defendant by his plea of former recovery had affirmed the judgment mentioned in it as a valid judgment against him, and thereupon moved “ for leave to issue an execution on this judgment against the said Kneib as well as the other defendants.”
    The court granted a rule to show cause, which after argument was made absolute March 27th 1871; and a fi. fa. was accordingly issued.
    This ruling of the court was assigned for error by Kneib on his removal of the record to the Supreme Court.

      J. R. Thompson, for plaintiff in error.

      8. JE. Woodruff, for defendant in error.
    — The judgment was primá facie good against all the firm; Kneib not having asked it to be set aside, it must stand: Harper v. Fox, 7 W. & S. 142 ; McDuffie v. Bartlett, 3 Barr 317; Collyer on Part., section 469. Kneib’s plea of “former recovery” estopped him: 3 Chitty’s Pl. 929; Hayes v. Gudykunst, 1 Jones 221; Taylor v. Parkhurst, 1 Barr 197 ; Ranck v. Becker, 12 S. & R. 412; Co. Litt. 352 a; Kelly v. Eichman, 3 Whart. 419; Coke v. Brummell, 8 Taunton 439.
    January 9th 1872,
   The opinion of the court was delivered, by

Williams, J.

— The plaintiff below was entitled to an execution against the partnership, on the judgment confessed by T. Eimers, one of the firm, and to satisfaction thereof out of the joint effects; but he had no right to an execution against the other members of the firm not named in the record. If they authorized or assented to the confession of the judgment, their individual property may have been liable to seizure and sale on an execution against the partnership, but the judgment, as confessed, did not authorize an execution against the individual members composing the firm. If, therefore, the plaintiff in error is estopped, by his plea of former recovery in the action subsequently brought against him on the note upon which the judgment was confessed, from denying that the judgment against the partnership is a valid and binding judgment against himself as a member of the firm, it does not follow that an execution might be rightfully issued thereon against him. Nothing can be plainer than that the execution must follow the judgment and be warranted by it. And whether the execution corresponds with the judgment and is warranted by it or not, depends upon the nature and form of the judgment, and not upon the effect to be given to it by a plea of former recovery or any other matter dehors the record.

It follows that the execution in this case was erroneously issued against the plaintiff in error. It should have issued against the partnership, in conformity with the judgment. Whether the plaintiff in error would be estopped by his plea from denying the right to seize and sell his individual property upon an execution against the partnership is a question not presented by the record, and we express no opinion in regard to it. All that we decide is that the execution was improperly issued against the plaintiff in error, whether he is estopped by the plea of former recovery from denying that the judgment is binding on him, or not.

The order of the 29th of March 1871, making the rule to show cause why execution should not issue in this case against M. Kneib, &c., absolute, is reversed, and the execution issued in pursuance thereof, is set aside at the costs of the defendant in error, the plaintiff below.


author: Thompson, C. J.

text:
    Angier, Terre-tenant, versus Schieffelin et al.

    1. The acknowledgment of a mortgage was, “Brie County ss. Before the subscriber, a justice of the peace of said county,” &e. The justice was of 'Crawford county, and the mortgage was put on record there. In a scire facias against a terre-tenant, evidence was admissible to show that the mortgage had been acknowledged in Crawford.

    2. The acknowledgment was primá facie regular, and the recorder was bound to record it; it was therefore notice to subsequent purchasers.
    3. Whatever is sufficient to put a party on inquiry which would result in the information sought, is equivalent to notice, and as an examination of the recorder’s office would have shown a purchaser that the magistrate was of Crawford, he had notice.
    October — 1871.
    Before Thompson, O. J., Read, Agnew, Shaksavood and Williams, JJ.
    Error to tbe Court of Common Pleas of Qrawford county: Of October and November Term 1871, No. 22.
    This was a scire facias issued to June Term 1868, of the court below, by Schieffelin, Brothers & Co. against George M. MoAvbray and Jacob I). Angier, terre-tenant; the defence was made by the terre-tenant.
    The case was tried, November 22d 1870, before Yincent, J.
    The plaintiff offered in evidence a mortgage from Mowbray to themselves for $2900 on real estate in Titusville, Crawford county; it was dated May 2d 1862.
    The acknowledgment Avas as follows:—
    “ Erie county, ss:

    Before the subscriber, a justice of the peace of said county, personally came George M. Mowbray, the mortgagor above named, and in due form acknoAvledged the above indenture to be his act and deed. In testimony Avhereof, I have hereunto set my hand and seal this third day of May, in the year of our Lord one thousand eight hundred and sixty-two.
    E. H. Chase, [l. s.]”
    The mortgage was recorded in the recorder’s office of Crawford county, May 7th 1862.
    It was admitted by the plaintiffs that at the date of the mortgage, Chase was not a justice of the peace of Erie county, but was of Crawford county.
    The defendant objected to admitting the offer, because the mortgage was not so acknowledged as to entitle it to be recorded, and therefore was not notice to innocent purchasers.
    The plaintiffs then proposed to prove that the acknowledgment was taken in Crawford county, and that “Erie” with the scilicet was a mistake.
    This was objected to by the defendant, allowed by the court, and a bill of exceptions was sealed.
    Chase then testified that he took the acknowledgment at Titus-ville in Crawford county at the time it purported to be taken.
    The court admitted the mortgage, and sealed a bill of exceptions.
    The defendant then gave in evidence a sheriff’s sale, February 12th 1866, of the premises covered by the mortgage to Jonathan Watson under a judgment against Mowbray subsequent to the mortgage, and deed from Jonathan Watson to Angier, the terretenant, March 2d 1866; recovery of the land in ejectment by Angier against Mowbray, April 22d 1870, and possession delivered to Angier under an habere facias.
    The defendant submitted two points :—
    1. The record showing that the acknowledgment was before E. El. Chase, a justice of the peace of Erie county, he being admitted not to be a justice there; the acknowledgment is illegal; the mortgage improperly on the record, and therefore no notice to purchasers at a judicial sale.
    2. Angier being a purchaser at sheriff’s sale, under no other notice than a defective record, took the premises discharged from the lien of the mortgage.
    Both points were denied by the court. .
    The court also charged that the case turned upon the sufficiency of the record of the mortgage to put a purchaser on notice; the acknowledgment was sufficient to allow it to be recorded, and being recorded it was notice to the purchaser. The purchaser took the land subject to the mortgage, and Angier is in no better position, and the “ verdict must be for the plaintiffs.”
    The verdict was for the plaintiffs for $4389.41.
    The defendant (terre-tenant) removed the-record to the Supreme Court by writ of error.
    He assigned six errors :—

      1, 2. The admission of the evidence objected to.
    8, 4. The charge of the court.
    5, 6. The answers to his points.

      Douglass McGoy, for plaintiff in error.
    — Parol evidence was inadmissible to contradict the acknowledgment: Watson v. Bailey, 1 Binn. 470; Jourdan v. Jourdan, 9 S. & R. 268; Selin v. Snyder, 7 Id. 166 ; McPherson v. Cunliff, 11 Id. 422. The record of a deed defectively acknowledged is not notice to a subsequent purchaser : Simon v. Brown, 3 Yeates 186; Goepp v. Gartiser, 11 Casey 130; Heister v. Fortner, 2 Binn. 40.

      B. S. McAllister and J. B. Brawley, for defendants in error.
    —The acknowledgment on its face was regular, and the recorder was bound to record it; it could not mislead one seeking for encumbrances. A blank for the county could have been supplied by parol: Fuhrman v. Loudon, 13 S. & R. 386; Scott v. Gallagher, 11 Id. 347; Bennet v. Paine, 7 Watts 334; Pierce v. Hakes, 11 Harris 231.
    January 9th 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

— The learned judge of the Common Pleas was right in his reasoning and conclusions on the point raised by the defendant below and defendant in error, in regard to the question of notice furnished by the record of the plaintiff’s mortgage. Had Chase been a justice of the peace of Erie county, the acknowledgment before him by the mortgagor, although the land lay in « Crawford, or any other county in the state, would have been all right, and the duty of the recorder of Crawford county to enter it of record, when offered for that purpose, would have been undoubted. This being the appearance of things, it was properly put on record by the recorder, and was thence primd facie notice to terre-tenant of the encumbrance. Had he doubted the validity of the acknowledgment taken by Chase, he could have satisfied himself by examining the recorder’s office that he was a justice of the peace, in and for Crawford county, for undoubtedly his commission was on record, as required by the Act of 11th April 1840, and that he was a proper officer to take the acknowledgment. This being followed by an inquiry of the magistrate would have fixed the fact that the mortgage was in truth properly acknowledged. Whatever is sufficient to put a party on inquiry, where it ought to result in the information, is equivalent to notice. This is a general rule. All this by very little industry the plaintiff in error could have had. With it, would the defendants have been concluded? He did not make the examination and inquiry, but the plaintiff offered to prove the facts, and the court admitted the testimony. By this it appeared that Chase took the acknowledgment in his office in Titusville, Crawford county. It is very evident that the mortgage was filled up on an Erie county blank, and that the justice neglected to alter the name of the county referred to in the scilicet, from Erie to Crawford; hence the error. But in point of fact the mortgage was well acknowledged, as the testimony showed. Authorities abundantly establish that testimony to supply errors and omissions in acknowledgments and certificates of magistrates, quite as important as that under consideration, has always been received in this Commonwealth, and the reason is given in Rigler v. Cloud, 2 Harris 361, that “it is against the spirit and genius of our government to extend nice technical objections to the acts of magistrates and other functionaries of the law, who are called from the mass of the people to discharge duties without previous legal learning or experience.” The first of these cases is The Commissioners of Berks County v. Ross, 3 Binn. 539, where proof aliunde the magistrate’s certificate to a deposition which omitted to state his official character, was admitted to prove that fact. In Fuhrman v. Loudon, 13 S. & R. 386, no county was mentioned by the magistrate at all as his place of residence in the certificate of acknowledgment. But it was held that the words, “a justice of the peace, in and for said county,” should be regarded as referable to the county in which the lands described in the deed lay, and in this way the acknowledgment was held good. So in Scott v. Gallagher, 11 S. & B. 347, an omission from the certificate of acknowledgment that the magistrate was a justice of the peace of the county in which the land was situated, was held not to vitiate the acknowledgment, and that it was proper to admit proof aliunde to establish that fact. The propriety of this ruling is fully sustained by Gibson, C. J., in Bennet v. Paine, 7 Watts 334. In, Pierce v. Hakes, 11 Harris 231, the objection was that the deed was defectively acknowledged before a court in the state of New York, because the certificate of the judge did not certify that the court in which the deed was acknowledged (being a deed to bar an entail), was a court of record, and that the omission was not cured by proof of the fact. In the opinion of this court, per Lowrie, J., it was said: “ It is admitted that such a certificate by a justice of the peace is good, though he omits to state his official character. It follows that it is the fact, and not the certificate .of the given official character, that is required.” This court, in the recent case of Brookes’s Appeal, 14 P. F. Smith 127, held that the clerical error made by the recorder on the margin of the record of a mortgage, of “January” instead of “February,” might be corrected by the note made when the instrument was left for record. This is in the spirit of the case just eited. We do not mean to say that every omission in a certificate of acknowledgment may be supplied aliunde ; it is only of those of the character we have been discussing and analogous cases, in which we think it may and ought to he done. It was proper in this case.

There is no error in this record, and the judgment is affirmed.


text:
    Hocking Valley Bank versus Barton.
    1. Two notes for value of same date, at six and twelve months, were made payable at Meadville : an Ohio bank discounted them before maturity for the payee ; as to the six months note he waived notice and demand, and on his promise to pay it at the banlc, it agreed he might take the note at any time, and it was not sent to Meadville for collection until fifteen months after maturity; the other was sent there before due and collected from the maker by suit. Held, that these facts were not evidence that the note was not discounted in the usual course, or that the bank agreed to release the maker and look to the payee, or let in proof of payment by the maker to the payee, or of equities between them.
    2. The bank’s title was as endorsee before maturity; it did not claim on the payee’s title and could not be affected by his subsequent declarations.
    November 20th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Crawford county: No. 187, to October and November Term 1870.
    This was an action of assumpsit by the Hocking Valley Bank (Ohio) against L. L. Barton, brought to August Term 1859.
    The cause of action was the following note:—
    ■“ $1000. Lancaster, Ohio, August 25th 1857.
    Six months after date I promise to pay William Latta or order for the use of the Ohio Stage Company one thousand dollars, for value received, with six per cent, interest from date, at the exchange office of J. R. Dick, Esq., Meadville, Penna.
    L. L. Barton.”
    Endorsed, “Demand and notice waived. William Latta.”
    The cause was tried, June 22d 1870, before Johnson, P. J.
    The plaintiff gave the note and endorsement in evidence and rested.
    The defendant, under objection and exception, gave evidence that on the 18th of August 1857, he bought from Latta the stock of the Ohio Stage Company, with their mail contract, in payment of which Barton gave Latta the note in suit and another note of the same kind and for the same amount, payable at the same place in twelve months; Barton to have possession of the stock on the 15th of August 1857, “ and to answer all charges and risks.”
    The defendant then offered to prove by S. N. Pettis, Esq., the declarations of the cashier of the bank, that the bank did not hold the note in the usual course of business, but under an arrangement by which Latta had the right to take it at any time for the purpose of laying ground for evidence of payment to Latta.
    The offer was admitted under objection by the plaintiff, and a bill of exceptions sealed.
    Mr. Pettis testified that about October 15th 1859, he had a conversation with the cashier of the bank at the banking-house on the subject of the note; the cashier then said “that although the note had been in the bank, it was held by such an arrangement that Latta could have taken it at any time.”
    The defendant then read the cross-examination in the deposition of O. P. Garraty (who had been cashier of the bank), taken by the plaintiff. The defendant said that the bank had, on the 28th of September 1857, discounted the note at the instance of Latta; it had not been sent to Dick’s banking-house, because Latta promised to pay it at the plaintiff’s bank; and for the same reason suit was not brought on the note.
    In a subsequent deposition Garraty testified, that the proceeds of the note, $974.50, were applied to the use of Latta; that the bank had owned the note from the time of its discount.
    H. O. Weakley, a subsequent cashier, testified as Garraty had; and also that the note had been retained at the request of Latta, on his promise to pay it at the bank, without putting the plaintiff to the trouble and cost of collecting it. Latta was then solvent; he became insolvent in November 1858 ; the other note was forwarded for collection, because Latta had not requested that it should be retained.
    J. M. Dick, at whose bank in Meadville the notes were payable, testified that the twelve months’ note was received at his bank for collection before it was.dne, it being the custom to forward notes before maturity for demand and protest; the note in suit was sent to his bank fifteen months after it became due.
    The defendant then offered to prove that he had paid the note to Latta as agreed between them ; to show it in part by letters of Latta, alleging that he had taken up and owned the note and that he had in his hands funds of Barton to pay it.
    The offer was objected to by the plaintiff, and — except the part of Latta’s letter claiming to have taken up and own the note— admitted and a bill of exceptions sealed.
    The defendant testified that at Latta’s request he had paid $879.44 of debts of the company, for which he was to have credit on the note, which sum had never been allowed or paid him. “ If the bank had notified me at the maturity of the note that they held and claimed it, I could have protected myself by preventing Latta from receiving my mail pay. Latta received the full amount of this note and $1100 over its face, and he is indebted to me in such amount.”

      Defendant read parts of a letter from Latta to him, dated “- 29th 1858,” in which Latta said he enclosed post-office order for route No. 3393, “ which you will collect and send me statement as soon as possible. * * * I have done everything I can these hard times to help you through with these matters; * * * let me hear from you soon that the note is paid; * * * Have these post-office orders collected and statement sent me soon, as I may receive the back pay and make arrangement and have these notes transferred soon as possible,” &c. Also letter same to same, dated “ July 8th 1858:” “ enclosed send you post-office order, collect and make return as soon as possible. * * * Levi Jones is entitled to be paid one-half of the pay on No. 3390. * * * Please give this matter attention and settle with and pay him soon,” &c.
    Defendant under objection and exception gave in evidence certificate from post-office department of the account between Latta and the defendant from April 1st 1857 to February 26th 1859, crediting him with service in carrying mail from April 1st 1857 to December 31st 1858, on the routes sold to Barton, and charging him with $2259.66, the full amount due for the service.
    The plaintiff in rebuttal gave evidence that the note had been discounted at the request of Latta.
    The court charged :—
    * * * [“ Have the bank ever got their pay or did they enter into any arrangement with Latta by which they ever surrendered the note to him or were to look to him alone for their payment and release Barton ? These are questions to be submitted to you. * * The defendant alleges that they did so agree with Latta, and that it either was not discounted in the regular course of business or that the bank returned it to Latta and agreed to arrange it with him, and not to look to Barton for payment. In support of this theory the defendants’ counsel argues that it so appears :—
    “ 1. Because the note was not sent to Meadville for payment at maturity or for collection until nearly fifteen months afterwards, and long after the other note due six months later, was sent, sued and collected from Barton.
    “ 2. Because the cashier said that the note was in the bank under circumstances that entitled Latta to lift it at any time.
    “ 3. From the testimony of the cashier that the note was retained because Latta promised to pay it there and desired that it should not be forwarded.
    “We submit the facts to you.] * * * If the bank agreed to look to Latta alone for it and release Barton, or if they charged and surrendered it to him to settle with Barton, the arrangement between Barton and Latta for its payment by the application of funds in the hands of Latta for that purpose would be valid and effectual for its payment, and the note as to the defendant would be cancelled, and the bank cannot recover it now, provided you believe from tbe evidence of tbe defendant that as between him and Latta it was paid. The mere detention of the note by the plaintiff or not demanding it when due does not support the allegation that the bank did not own it, as doubtless Latta did promise to pay it and waived protest.”
    The verdict was for the defendant.
    The plaintiff took a writ of error, and assigned for error the admission of defendant’s offers of evidence and the part of the charge in brackets.

      J. B. Brawley (with whom was H. O. Johnson), for plaintiff in error.

      M. Park Davis, for defendant in error.
    January 9th 1872,
   The opinion of the court was delivered, by

Williams, J.

— The uncontradicted evidence — that given by the defendant as well as that given by the plaintiff — shows that the note in suit was discounted by the bank for the payee before maturity, at the usual rate; and it is not pretended that the defendant has paid it to the bank, nor is there any evidence that it has been paid by the payee. What boots it, then, that the defendant has paid the amount of the note to the payee, or that the latter has received moneys for the use of the defendant, which it was agreed between them should be applied to the payment of the note ? Unless the bank authorized the payment, or has in some way released the defendant, he is still liable to it for the note. It is not alleged that the bank authorized the payment, but it is insisted that it did not take the note in the usual course of business, and, therefore, holds it subject to the equities existing between the maker and payee. This is the defence set up on the trial, and zealously contended for here. But what is the evidence to sustain it ? The bank, as we have seen, discounted the note for the payee before maturity; and if so, took it discharged of all equities between the maker and payee, unless there was some special understanding or agreement which took the case out of the usual and ordinary course of business. What, then, are the facts relied on as tending to show that the bank took the note under some special arrangement with the payee, and not in the usual course of business ? They are these: Payment of the note was not demanded of the maker at maturity — demand and notice were received by the payee; the note was not sent to the exchange office of Dick for collection until about fifteen months after it was due; it was retained by the bank in the meantime, at the request of the payee, upon the understanding had with him that he would pay it there without putting the bank to the trouble or cost of collecting it; and after it had been sent to Dick for collection, and suit had been brought on it, the cashier declared to Mr. Pettis that though it had been in the bank, it was held by such an arrangement that Latta, to whom it was originally given, could have taken it at any time. Now do any or all of these facts tend to show that the note was not taken in the usual course of business, or that it is held subject to the equities betwéen the maker and payee ? Do they show that it was not discounted by the bank for the payee before maturity, or that in discounting it the bank agreed to release the maker, and to look only to the payee for payment ? It seems to us that they do not. It is not an unusual circumstance for the endorser to waive demand and notice. The bank was under no obligation to demand payment of the maker at maturity, and it did not release him by retaining the note, at the request of the payee, upon his promise to pay it there without putting the bank to the trouble or cost of collecting it. Nor has the defendant any reason to complain of the indulgence, for he might have discharged his liability by .depositing the amount of the note in the exchange office where it was made payable.

Surely there is nothing in any or all of these facts sufficient io show that the bank is not the boná fide holder of the note, and entitled to recover the amount thereof from the defendant. And what do the declarations of the cashier amount to, admitting that they are admissible in evidence as against the bank ? Do thejr tend to show that the bank did not discount the note before maturity ? Or if it did, that the note was paid by the payee, or that the bank agreed to release the maker? Nothing of the kind. Taken strictly as proved, all that the declarations show is, that the bank held the note under such an arrangement with the payee that he could have taken it at any time. They have this extent — no more. And what was meant is apparent from the testimony of the two cashiers — whose depositions were read in evidence by the defendant — that the bank retained the note at the request of the payee, and upon his promise to pay it there, and thaffunder this arrangement he could have taken it at any time. But he could not have taken it without complying with the arrangement, and there is nothing in the evidence to warrant the inference that he could.

Our conclusion upon the whole case then is, that there was no sufficient evidence tending to show that the bank did not discount the note at all; or, that having discounted it, the bank agreed to' look to the payee alone for it, and release the maker; or that it charged and surrendered it to the payee to settle with the maker, and it was error to submit these questions to the jury. It follows that all the evidence given by the defendant, under exception, tending to show that he has a defence as against the payee, was improperly received, and should have been excluded. But if it were otherwise, the payee’s letters were clearly inadmissible. The bank is not claiming to recover on the title of the payee, but on its own title as endorsee of the note before maturity, and cannot be affected by the subsequent ex parte declarations of the payee. As between the bank and the defendant, the payee’s letters to the latter, amount to no more than would his unsworn verbal declarations, and come directly within the rule which excludes hearsay evidence. But as we have said, all the evidence given on the subject should have been excluded; yet having been admitted, the court should have instructed the jury, on the whole case, that there was no sufficient evidence that the bank took the note out of the usual course of business, or that it held it subject to the equities between the maker and payee, and that payment to the latter constituted no defence as against the bank.

Judgment reversed, and a venire facias de novo awarded.


text:
    Scott versus Noble.
    1. A joint suit was commenced in Massachusetts against Grafton, a resident, who was served, and Noble, a non-resident, who was not served. The court there issued an order that the plaintiff give notice to “ Noble of the pendency of the action by serving him with a copy of the order.” Noble in Pennsylvania, endorsed on the order, “I accept service of this writ.” Held, not to give the Massachusetts court jurisdiction of Noble.
    2. Judgment was rendered there against both defendants. Held to be invalid against Noble.
    October — 1872.
    Before Thompson, C. J., Bead, Agnew, Shakswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 94, to October and November Term 1871.
    This was an action of debt by Martin B. Scott against Theodore Noble, commenced April 25th 1866 ; on the 4th of May 1867, the court permitted the name of Joseph Grafton to be added as defendant. An alias summons was issued against Grafton on the 3d of July 1867 ; to this writ the sheriff returned “Nihil.”
    The cause of action was a judgment of the Supreme Judicial Court of Massachusetts, in favor of Scott against Grafton and Noble on the 12th of May 1846, for $6363.76, besides costs.
    On the 13th of September 1844, an action was commenced in the Court of Common Pleas of Suffolk county, Massachusetts, by Martin B. Scott against Joseph Grafton, of Boston, Massachusetts, and Theodore Noble, of Cleveland, Ohio, trading as Graftan & Noble, on a promissory note of the defendants to plaintiff, dated November 18th 1872, for ¡§5368.33, and payable one day after date.
    The sheriff returned that he had summoned Grafton, and that Noble “ not being a resident in my precinct, and he not having any agent or attorney duly accredited and known to me as such within my precinct, I could make no service on him.”
    On the 20th of November 1844, Graftan made an affidavit of defence, and on his application the action was removed to the Supreme Judicial Court. By the record of that court it further appears as follows:—
    “ Commonwealth oe Massachusetts.
    “ Suffolk, ss.

      “ Supreme Judicial Court, March Term, A. D. 1845.
    “ Martin B. Scott, plaintiff, against Joseph Grafton and Theodore
    Noble, defendants.
    “ This is an action of assumpsit to recover ten thousand dollars alleged to be due to the plaintiff, from the defendants, on the 13th day of September, a. d. 1845, as set forth in plaintiff’s writ of that date.
    “ And it appearing to the court by the suggestion of the plaintiff and on inspection of the officer’s return on the plaintiff’s writ, that the defendant Noble was not an inhabitant of this Commonwealth, nor resident therein at the time of the service of said writ, and that he had no last and usual place of abode, tenant, agent or attorney in this Commonwealth, known to the plaintiff or to said officer, and that no personal service of the writ has been made upon the defendant Noble:
    “ It is ordered by the court here, that the plaintiff give notice to the defendant Noble, of the pendency of this action, by serving him with a true and attested copy of this order, fourteen days at least before the second Tuesday of November next, that he may then and there appear and show cause why judgment in the above entitled action should not be rendered against him; and that this action be continued from term to term until notice shall have been given to the defendant Noble agreeable to this order.
    George C. Wilde, Clerk.”
    “ On an attested copy of which order, duly certified by the clerk of said Supreme Judicial Court, the following endorsement appears :—
    “ I accept service of the within writ.
    October 23d 1845. Theodore Noble.”
    “Armstrong County — Commonwealth of Pennsylvania, ss.

    “ Personally appeared before me, a justice of the peace for the county aforesaid, the above-named Theodore Noble, and acknowledged the above signature to be his.

      “ Given under my hand and seal this 23d day of October, A. D. 1845. Alexander Gardner, [l. s].”
    “ Thereupon the action was continued unto the November Term of said court, 1845, when the plaintiff and said Joseph Graftan appeared; but tbe said Theodore Noble, although solemnly called to come into said court, did not appear but made default.
    “ And t-he action was continued unto the March Term of said court, 1846, when at the commencement of said term the plaintiff and said Joseph Graftan appeared, but afterwards, during said term, the said Joseph Graftan, although solemnly called to come into said court, did not appear, but made default.
    “It was therefore considered by said court, on the thirty-second day of the term, being the 12th day of May, in the year eighteen hundred and forty-six, that the said Martin B. Scott recover against the said Joseph Graftan and Theodore Noble the sum of $6368.76 damage, and costs of suit taxed at $52.21.
    “ On which judgment an execution was issued on the 3d day of November 1846, which execution has not been returned into the clerk’s office of said court.
    “ All and singular which premises we have held good by the tenor of the presents to be exemplified.” * * *
    On the trial April, 6th 1868, before Stowe, J., the records above stated were given in evidence.
    The defendants gave no evidence.
    The court charged as follows :—
    “ The jury are instructed fro formd, that under the evidence in this case plaintiff is entitled to recover the amount of judgment with interest, and directed to return a verdict for that amount, subject to the questions of law raised by the several points presented by defendant’s counsel, which are reserved.”
    A verdict was rendered for the plaintiff for $15,003.44, subject to the questions reserved.
    Judge Stowe in his opinion on the reserved question, after stating the evidence as given in the case, said: * * *
    “ The defendant now alleges that this evidence is insufficient to authorize a verdict and judgment for plaintiff.
    “ 1. Because the endorsement by defendant Noble upon the certified order of the Supreme Judicial Court of Massachusetts (as appears by the record above recited) did not give jurisdiction to said court over the person of Noble so as to render effectual and of 'force in this state the judgment rendered against him by said court.
    “ 2. That the record shows that the court in which suit was brought did not have jurisdiction over the person of defendant so as to make the judgment valid and effectual against him in this state.
    “ These two reasons involve the same questions, viz.: Does this record show such a state of facts as to sustain an action in Pennsylvania against defendant Noble upon the judgment of the Supreme Court of Massachusetts ? In other words, does this record show the court had jurisdiction over Noble, the defendant, so as to render the judgment obtained against him valid and effectual beyond the limit of the state of Massachusetts ?
    “ It seems to be settled beyond controversy that a judgment obtained against a person without notice, in a state where he has no residence, and in which he has no property during the pend-ency of the action, has no extra-territorial vitality — but that is not the precise case in hand. Here Noble not only had notice of the pendency of the suit, but actually accepted service of the same, in ample time before judgment, to have made defence if he had so wished.
    “ The question now is, did this give the Supreme Court of Massachusetts such jurisdiction over the person of Noble as makes this judgment valid as the foundation of an action in Pennsylvania.
    “ If the original summons, or what we may consider the same thing, this notice, had been served by the proper officer of the court of Massachusetts upon Noble in Pennsylvania, would that have given jurisdiction ? Steel v. Smith, 7 W. & S. 448. * * * No sovereignty can extend its process beyond its own territorial limits, to subject other persons or property to its judicial decisions : Story’s Confl. Laws; Rogers v. Burns, 8 Casey 527.

      “ The same doctrine is fully established by the Supreme Court of Massachusetts itself, in Hall v. Williams, 6 Pick. 240; Mills v. Duryee, 7 Cranch 481; Price v. Hickock, 89 Yt. 292. Is the case altered by reason of the acceptance of service by Noble of the notice directed to be served upon him by the court ? I think not.
    “ The acceptance of service of a writ or notice I take to be nothing more than an assent to the service, which waives irregularities as to time and manner, but which amounts to nothing more than a proper and legal service would. It is not ever considered as equivalent to an appearance. But even assuming that the effect of the acceptance of service of the notice was substantially an agreement by Noble that the court should have jurisdiction, and so far as he was concerned, might proceed and dispose of the case without his appearance by perscin or attorney, I do not think this would help the matter. Even when a party is within the control of the court, consent will not give jurisdiction, nor will it give effect to a nullity. Here it is sought not only to give jurisdiction to a court by a mere inferential agreement by a party to a suit, but actually to confer upon the court of Massachusetts a right to exercise authority over a citizen of Pennsylvania, when within the jurisdiction of his own state. It is clear that this would be entirely inconsistent with the sovereignty of Pennsylvania, and therefore does not fall within the power of any individual.
    “ This disposes of the whole ease, and renders the examination of the other questions unnecessary.

      “ Let judgment be entered for defendant non obstante veredicto, upon payment of the verdict fee.”
    Judgment was accordingly entered for the defendant.
    The plaintiff having removed the case to the Supreme Court, assigned the entering of this judgment for error.

      J). W. Bell, for plaintiff in error.
    — The exemption of a defendant from the service of a writ out of the jurisdiction of the court is a privilege which he may waive : 1 Tr. & H. 152: Toland v. Sprague, 12 Pet. R. 300; Grade v. Palmer, 8 Wheat. 605 ; Flanders. v. Ætna Insurance Co. 3 Mason 158. Consent may give jurisdiction of parties: Walker v. Rogers, 1 Wisc. 597 ; Gilliland v. Sellers, 2 Ohio (N. J.) 223.

      H. Burgwin, for defendant in error.
    — The defendant or his estate must be within the jurisdiction of the court: Lawrence v. Smith, 5 Mass. R. 362; Tappan v. Bruen, Id. 193; Nye v. Liscomb, 21 Pick. 263. A sovereignty cannot extend its process beyond its territory: Story’s ConH. Laws 14, sect. 539 ; Steel v. Smith, 7 W. & S. 447; Rogers v. Burns, 3 Casey 525; Bissell v. Briggs, 9 Mass. 462; Hall v. Williams, 6 Pick. 232. Serving notice without state limits does not give jurisdiction ; Price v. Hickock, 39 Vt. 292 ; Woodward v. Tremer, 6 Pick. 354. The acceptance of service had no more effect than actual service would have had: Arnold v. Frastellot, 13 Pick. 172. Nullities having never possessed any validity cannot be cured: Carlisle v. Weston, 21 Pick. 535; Vanderpoil v. Wright, 1 Cow. 269; Francis v. Sitts, 2 Hill 262.
    November 14th 1872,
   The opinion of the court was delivered, by

Read, J.

— This case was rightly decided by the learned judge in the court below. , Joseph Graftan and Theodore Noble, copartners, under the name of Graftan & Noble, of Cleveland, Ohio, gave their promissory note to Martin B. Scott, of the same place, dated November 18th 1842, payable one day after date¡ On this note Martin B. Scott commenced suit in the Court of Common Pleas in Boston, Massachusetts. The writ was directed to the sheriff, who was commanded to attach goods or estate of defendants, and for want thereof to take the bodies of said Graftan and Noble, and have them before the justices of the said court. The sheriff returned that he had attached a chip as the property of Graftan, and left a summons for him at his last and usual place of abode in Boston, to appear in court, and September 17th 1844, he returned that Theodore Noble was not a resident of his precinct, and had no known agent, and could not he served. Upon the affidavit of Graftan, this action was removed to the Supreme' Judicial Court at Boston. Graftan appeared, and in March Term 1845, on motion of the plaintiff Scott, it appearing by inspection of the record, that defendant Noble was not an inhabitant of the Commonwealth nor resident therein at the time of the service of the writ, and had no place of abode or agent therein, and that no personal service of the writ has been made upon him, the court ordered the plaintiff to give notice to defendant Noble of the pendency of the action, by serving him with a true and attested copy of the order that'he might appear and show cause why judgment should not be rendered against him in this action. On an attested copy appears this endorsement: “ I accept service of the within writ, Theodore Noble,” he then living in Pennsylvania.

On the 12th May 1846, judgment was entered against Joseph Graftan and Theodore Noble, in default of an appearance, for $6363.26 damages and costs of suit, &c. The present suit is upon this judgment.

It was a valid judgment against Graftan, but not against Noble, who was not a citizen or inhabitant of Massachusetts; had no estate or property therein, nor was at any time before or during the pendency of the suit within the state. In Reel v. Elder, 12 P. F. Smith 315, my brother Sharswood says: Nor did the evidence given of the notice of the pendency of the proceeding, admitting that it was served on the plaintiff, make any difference; for in the language of the opinion (by Justice Agnew) in Colvin v. Reed, 5 P. F. Smith 375, ‘ back of it lies the want of power of the distant state to subject her to its jurisdiction’ — clearly when it is once determined that a court has no jurisdiction. Notice, or even process duly served, cannot give vitality to the judgment it may pronounce. It is null and void, at least as to any extra-territorial effect.” In addition to the authorities cited by the learned judge in the court below, Judge Eletcher said in Phelps v. Brewer, 9 Cushing 395 : “ It is a matter too well settled to admit of discussion, that when a party is not within the jurisdiction, and is not served with process, and does not voluntarily appear to answer to the suit, by himself or his attorney, the judgment cannot be enforced against him out of the local jurisdiction. This point has been fully and repeatedly decided by this court, and since the institution of this suit has been directly adjudged by the Supreme Court of the United States.” In Bischoff v. Wethered, 9 Wall. 312, in a count on 'a judgment in the Court of Common Pleas at Westminster Hall, in England, the evidence was an exemplified copy of a judgment recovered against the defendant in the said Common Pleas, without any service of process on him, or any notice of the suit, other than a personal notice served in the city of Baltimore, Mr. Justice Bradley said, “ as to the first point raised, to wit, the effect of the proceeding in the Common Pleas, Westminster Hall, it is enough to say that it was wholly without jurisdiction of the person, and whatever validity it may have in England, by virtue of statute law against the property of the defendant there situate, it can have no validity here even of a primá. facie character. It is simply null.”

Judgment affirmed.


author: Per Curiam.

text:
    Newmyer’s Appeal.
    1. Members of a church subscribed in writing sums to buy a lot for erecting a church ; the deed was made to L., B. and N., who were subscribers, without N.’s knowledge. L. and B. executed a deed to the church; N. refused, having been notified by several subscribers to do so. Held, that the conveyance to L., B. and N. was in trust for the church, and the notice to N. did not justify him in refusing to convey.
    2. A parol condition by the notifying subscribers, that the lot was not to be conveyed till a fund be raised sufficient to erect the building, was not ground upon which N. could refuse to convey: it was a matter between those subscribers and the church.
    3. Costs imposed on N. under the circumstances.
    October 10th 1872.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the District Court of Allegheny county: In Equity: Of October and November Term 1870, No. 203.
    The proceeding commenced by a bill, filed February 15th 1868, by “ The First Evangelical Lutheran Church of Pittsbufig” against Jacob S. Newmyer.
    The complaint was, that the plaintiffs, an- incorporated religious body, having determined to change the location of their church building, selected a lot on Penn street, Pittsburg, which could be purchased for $20,000. A subscription book was accordingly opened in which the several subscribers agreed to pay the sums set opposite their names, “provided $20,000 is made up and paid;” $20,245 were subscribed and paid; the lot was purchased and paid for by the money subscribed, and the title, on the 30th of April 1864, conveyed by John Herron, the owner, to Thomas H. Lane, George Black and Jacob S. Newmyer; the plaintiffs, by resolution of their church council on the 18th of November 1867, requested Lane, Black and Newmyer to convey the lot to the corporation ; Lane and Black executed a deed of conveyance, but Newmyer refused.
    The prayer of the bill was, that a decree be made ordering Newmyer to execute the deed of conveyance to the corporation.
    Newmyer answered that the lot had been purchased by the subscription-money as averred in the bill, but that the subscriptions were made and paid, he being one of the subscribers, with the express understanding, that the lot was not to be given to the church until it should raise a fund to erect a church building on the lot free from all debt; the fund was to be raised in a reasonable time, and the building commenced with the least practicable delay; ho such fund had been raised although a reasonable time had elapsed; the deed from Herron was made to Lane, Black and the respondent, without the respondent’s knowledge or consent. Previously to the request to him to execute the deed of conveyance, he had been notified by subscribers to the amount of $6360 to the fund for the purchase of the lot, not to convey it to the plaintiffs, as they would hold him “to strict accountability in regard thereto.” In his answer he suggested that the subscribers thus notifying should be made defendants in the bill, and declared his readiness to execute such deed as the court should decree; he further submitted whether any decree could be made against him.
    A replication was filed, and William B. Cooke, Esquire, was appointed master.
    The master found that the subscriptions were made, and the lot purchased with the moneys, as set out in the bill, and that the conveyance to Black, Lane and Newmyer was in trust for the plaintiffs; that the conveyance from Herron had been made without the respondent’s knowledge and consent, and his name used without his authority; that notice had been given to Newmyer, as averred in his answer, not to execute the deed; that John Graff, one of the subscribers, and one of the persons notifying Newmyer, subscribed upon the understanding that the full amount of the purchase-money of the lot should be paid, and the church building erected as soon as practicable, by selling the old church lot and raising an amount outside sufficient to free the church from all debt; “then, and not until then, was the title of said lot to be vested in the church;” that such was not the general understanding amongst the subscribers; the subscriptions having been made on no other conditions than those appearing in the subscription-book. The master was of opinion that the terms and conditions of the subscriptions were those only contained in that book. He further found that no funds had been raised or steps taken to build a church on the lot.
    He decided that the plaintiffs were entitled to a conveyance of the lot from the respondent.
    After exceptions to the report, the court (Hampton, P. J.) decreed: “ That the said respondent, Jacob S. Newmyer, took and holds the title to the lot of ground mentioned and described in complainants’ bill in this case, and conveyed by John Herron and wife to Thomas H. Lane, George Black and the said Jacob S. Newmyer, by deed dated April 30th 1864, &c., in trust for the complainants, the First English Evangelical Lutheran Church of Pittsburg. And the court do further order, adjudge and decree that the said Jacob S. Newmyer do forthwith execute and deliver to the said complainants a good and sufficient deed, granting and conveying to them all his right, title, interest and estate in the lot of ground aforesaid, conveyed to him by the aforesaid deed of the said John Herron and wife, and that the respondent pay the costs.”
    Newmyer appealed to the Supreme Court, and there assigned the following errors:—
    1. That the subscribers who notified the appellant not to convey were not made parties.
    2. Decreeing that the plaintiffs were entitled to a conveyance from the respondent.
    3. Decreeing that the respondent should pay the costs.

      M. W. AeJieson and T. Mellon, for appellant.
    — The subscription was a contract between the subscribers; the plaintiffs were not a party, and being strangers to it, they have no equity to ask specific execution of it, especially as this would violate a condition upon which they subscribed: Backus’s Appeal, 8 P. F. Smith 186. The want of equity could be shown outside of the writing: Brawdy v. Brawdy, 7 Barr 157; Goucher v. Martin, 9 Watts 106; Brightly’s Eq. Jur. 191. The subscribers who notified the appellant had an interest and should have been parties: 1 Daniels’s Chan. Pr. 181; Brightly’s Eq. Jur. 411; Adams’s Eq. 607; 1 Story’s Eq. Jur. sect. 72, 76 a.

      Cr. Shims and J. I. Kuhn, for appellees.
    October 17th 1872.
   The judgment of the Supreme Court was entered

Per Curiam.

— The conveyance of the property, about which this controversy has arisen, was, as the master has found, in trust for the “ First English Evangelical Church of Pittsburg.” There was no reason that we can see, why the appellant should not have joined in the declaration of trust as well as the other trustees, Black and Lane, or otherwise made a conveyance to, or in trust for the church. The notice to him not to convey, by Graff and others, did not justify him in refusing so to do. Even if their alleged parol condition had been established and valid, it was a condition subsequent, and a matter between them and the church. It was not a matter about which Newmyer was bound to interpose in any way. We think the court below violated no equitable rule, under the circumstances of the case, in imposing the costs on the appellant.

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