author: Mr. Justice Tiiunkey

text:
    Fidler versus Hershey.
    1. Whenever it shall appear that a mistake or omission has been make in the name or names of any party to an action, the courts are authorized by the Act of May 4th 1852, in any stage of the proceedings, to permit amendments. Statutes relating to amendments are liberally construed in furtherance of trial upon the merits.
    2. A surety shall be exonerated only when the creditor has refused to bring suit after a positive request and explicit declaration by the surety, that he would otherwise hold himself discharged.
    3. The plea of nil debet puts in issue the existence of the debt claimed, and anything may be given in evidence under it, which shows there is nothing due at the time of pleading.
    4. A party objecting to evidence in the court of review will be confined to the ground of objection taken in the court below.
    May 23d 1879.
    Before Sharswood, C. J., Mercur, Gordon and Trunkey, JJ. Paxson, Woodward and Sterrett, JJ., absent.
    Error to the Court of Common Pleas, of Adams county: Of May Term 1879, No. 79.
    Debt by Samuel Hershey against Peter Fidler.
    Hershey issued his summons in debt against Peter Fidler. After the return-day, the plaintiff moved to amend, by adding the names of George W. Householder and Albert Spangler as co-defendants, which amendment was allowed under exception by defendant, and an alias summons was issued against said parties. This writ was returned “ served on George W. Householder,” and as to “Albert Spangler not found.” Householder did not appear or make any defence to the suit.
    The plaintiff filed his narr. in the original suit in debt against Peter Fidler for $500, rent due on an alleged demise of a mill and appurtenances to George W. Householder, Albert Spangler and,’ Peter Fidler, for a year from April 1st 1871 to April 1st 1872,/ and for use and occupation of the same. To this the defendant., pleaded nil debet.” , >
    ' After the case was thus at issue, the plaintiff, on the 25th of April 1878, moved further to amend, by changing the name of one of the parties who had been added to the record to Elliot H. Spangler, instead of Albert Spangler. This was objected to by defendants and allowed under exception, .on condition that a pluries summons be issued against Elliot H. Spangler. To this writ there was no return made, nor was there any appearance or defence by Elliot H. Spangler.
    The case was called for trial, when the plaintiff further amended his narr. by inserting the name of George W. Householder after that of Peter Fidler, wherever it occurred in the narr., and so as to make his demand against said Fidler and Householder. The amendment was allowed, and the jury was directed to be sworn to try the case against Fidler and Householder, and were so sworn. The verdict was rendered generally, and judgment entered thereon..
    At the trial before McClean, P. J., it appeared that Hershey leased a mill to Householder for one year for $500. In the body of the lease, the name of Householder alone appeared,- but Spangler and Fidler signed as securities. The rent not being paid, this suit was brought to recover it.
    Defendant having proved notice to the plaintiff “to push for' the rent as soon as it was due, that he wanted out of it,” then offered to prove that when the rent in question became due, Householder had sufficient property on the premises to pay the rent, if proceedings had been taken to collect it.
    This was objected to as irrelevant, and the court sustained the objection.
    Defendant having proved by Householder that he had paid some bounty tax for Hershey to John Eckenrode, and had a receipt for it, but had lost it and could not remember the amount, ■ and that Eckenrode was dead — then offered to prove by William H. Detrich that Householder had shown him a receipt for tax paid to Eckenrode for the year 1871, for $46, on the mill property of Hershey.
    Objected to, on the ground that the evidence was inadmissible’ under the pleadings, which objection the court sustained.
    The verdict was for the plaintiff for $444.60, and after judgment thereon, Fidler took this writ and alleged that the. court erred in allowing the amendments, which constituted the first four assignments, and in their rulings upon the above evidence which constituted' respectively the fifth and sixth assignments.

      . JR. G. Me dreary, for plaintiff in error.
    The addition of the • names of new parties defendant in a writ after the return-day .is not an amendment.. The alias and pluries writs were in fact different suits. The jury were sworn to try the issue’ between Householder and Eidler, and there was a verdict and judgment accordingly, when Householder had not appeared, and there was no plea nor issue as to him. ’ '
    Fidler, as surety, had a right to require the exercise of proper diligence by the landlord in the use of legal means for the collection of the rent from the principal. Our offer was to prove that such diligence could have secured payment of the rent. It was proper in connection with the notice to push for the rent: Cope v. Smith, 8 S. & R. 110; Bank v. Gibson, 1 Watts 146; Greenawalt v. Kreider, 3 Barr 267; Wetzell v. Sponsler, 6 Harris 460.
    If the engagement of Peter Fidler was a guarantee, he was discharged by want of diligence on the part of the lessor to collect the rent, and there was error in excluding proof of ability to pay: Gilbert v. Henck, 6 Casey 205; Allen v. Herman, 3 Phila. R. 378; Richards v. Commonwealth, 4 Wright 146.
    • The plea nil debet puts in issue the existence of the debt claimed at the time of pleading; and any matter may be given in evidence under it, which shows there is nothing due at that time as payment, release, or other matter in discharge, as well as in denial of original liability: 1 Chit. PI. 481-2; Stephen’s Pleading 177-8; Davis v. Shoemaker, 1 Rawle 135.

      D. Medonaughy, for defendant in error.
    There was no error in permitting the plaintiff to amend by adding the names of Householder and Spangler as co-defendants, after the return-day of the writ. The amendment was in time. It may bo made,by leave of court, in any stage of the proceedings: Kaul v. Lawrence, 23 P. F. Smith 410-16; Act of 16th April. 1846; Act of 4th of May 1852; Act of 10th of May 1871; Purd. Dig. 69 and 70, §§ 2, 3 and 6.; Herdic v. Woodward, 25 P. F. Smith 479; Logan v. Chandler, 2 Clark Cas. 509; Burk v. Bear, 3 Id. 355; Hartshorne v. Mercer, Id. 505.
    In the entering of the verdict and judgment against Fidler and Householder, jointly, Fidler has no ground for’ complaint; and Householder has not complained nor made objection.
    .. The offer of notice was not sufficient to work a discharge of Fidler. The words were “ to push for the rent that he wanted out it,” not to push for the rent or he would not be responsible for it. The rest of the offer was not competent under the pleadings. The words were not sufficient to bring the case’ within the.rule laid down in the cases cited by plaintiff in error. There .was, no offer to identify the receipt as the one referred to by Householder, nor to prove the handwriting of John Eckenrode, and to show, that he was a tax collector for the township containing plaintiff’s mill property. The offer was not to prove as now stated in defendant’s argument. We have only to do with the offer as made.
    June 9th 1879.
   Mr. Justice Tiiunkey

delivered the opinion of the court,

Whenever it shall appear that a mistake or omission has been made in the name or names of any party, the court is authorized, by Act of May 4th 1862, Pamph. L. 574, in any stage of the proceedings, to permit amendments. Statutes relating to amendments are liberally construed in furtherance of trial upon the merits. The evidence tended to show and the jury found that there was a lease signed by Householder, Spangler and Eidler. As between themselves, Householder was principal and Spangler and Eidler his sureties, and though Hershey had knowledge of that relation, they were jointly liable to him. The summons against Spangler was returned, “not found.” Householder did not appear, and'judgment ought to have been entered against him in default; but he does not complain, and the irregularity did no injury to Eidler. Proofs, verdict and judgment against Eidler were same as if the jury had been sworn as to him alone and he is not hurt by a joint-debtor being concluded with him. Besides, he did not object, perhaps could not, to the jury being sworn as to both. The first four and last two assignments are not sustained.

It has repeatedly been ruled that the surety shall be exonerated, only when the payee has refused to bring suit, after a positive request and explicit declaration by the surety that he would otherwise hold himself discharged: Erie Bank v. Gibson, 1 Watts 143. The notice as proved came far short. Moreover, it was given before the debt had become due, and for this cause, had it been complete in substance and form, it would not avail to" discharge the surety: Hellen v. Crawford, 8 Wright 105; Conrad v. Foy, 18 P. F. Smith 381. In the latter case it was said that notice ought in justice to be in writing and in the most explicit terms; and this has been made requisite by the Act of May 14th 1874, which, however, does not affect transactions prior to January 1st 1875.-No foundation was laid for the testimony set forth in the fifth assignment.

The plea of nil debet puts in issue the existence of the debt claimed, and anything may be given in evidence under it, which shows there is nothing due at the time of pleading, as payment, release or other matter in discharge. Formerly this rule was in force in England and still is in Pennsylvania. In a late case, Brubaker v. Taylor, 26 P. F. Smith 83, the present chief justice, referring to a portion of the evidence, said it was admissible under the plea of nil debet, because “ it tended to show there was no existing debt, whether it had been discharged by payment, release or in any other way.” Householder testified that he had paid taxes for his landlord to Eckenrode, could not state the amount, had taken a receipt which he had with him at April court and'had lost it. Then defendant offered to prove by-Detrich, to whom Householder had shown the receipt at April Term, that it was for $46. It is manifest from the bill of exception that the very point decided by the court was, that the offer was inadmissible under the pleadings. In an elaborate opinion, it was ruled in Mills v. Buchanan, 2 Harris 59, that a party objecting to evidence will be confined to the ground of objection taken in the court below. Hence the plaintiff cannot here object, that Householder. did not say he had shown the receipt to Detrieh, nor that there was no offer to prove its identity. Had he made the objection there, Householder was present, and could have settled it with a word. Having decided that the testimony was inadmissible under' the pleadings, the court put an end to proof or offer of proof of identity of the receipt. The objection and decision were on the ground that the offered testimony was inadmissible for a specified cause, and it would be unfair and unjust to the defendant for this court to say, although that decision was erroneous, an objection could have been taken for want of preliminary proof;' for, had it been, he might have made that proof. If, indeed,-the rejected testimony would not have been sufficient, with the other evidence, to establish the disputed fact, there would be no reversal; but as it was ample for submission to the jury, the case must go back for another trial.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Dimm’s and King’s Appeal.
    The administrators of Y., under an order of the Orphans’ Court, sold certain real estate of the decedent to B., and to secure the payment of a balance of the purchase-money took his judgment-bond. The bond was conditioned for the payment of a sum representing the widow’s dower and also the distributive shares of Y.’s heirs. Some years before the bond was entered, a memorandum or receipt was endorsed thereon in the form of a release, by one of the administrators, but was not signed. Judgment was subsequently entered on the bond, and the receipt was noted upon the continuance-docket, but the full amount of the original obligation, without the receipt, was docketed in the judgment-index. The property was afterwards sold by the assignee of B. for the benefit of creditors. Held, that the administrators were not estopped from alleging the truth concerning their judgment by reason of the receipt found upon the original bond, and upon the continuance-docket after the entry of judgment.
    May 26th 1879.
    Before Sharswood, C. J., Mercur, Gordon., Paxson, Woodward and Trunkey, JJ. Sterrett, J., absent.
    Appeal from the Court of Common Pleas of Juniata county: Of May Term 1878, No. 199.

      ; Appeal of David B. Dimm and George King, administrators of Adam Yeager, deceased, from the decree of the court making distribution of a fund in the hands of Louis E. Atkinson, assignee of Joseph Branthoffer, for the benefit of creditors.
    The material facts are stated in the opinion of this court.

      Ezra B. Par her and Louis E. Atkinson, for appellants.

      Jeremiah Lyons and B. F. Burchfield, for appellees.
    October 6th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

There is in this case but one exception to the ruling of the court below, and that exception raises the only question which the case presents. Were Dimm and King estopped, from alleging the truth concerning their judgment, by reason of the memorandum, or receipt, found upon the original bond, and upon the continuance docket after the entry of judgment ? A statement of the facts is necessary to a proper solution of this question.

In the year 1869, the appellants, as administrators of Adam Yeager, deceased, under an order of the Orphans’ Court, sold certain realty belonging to the estate of their decedent, to Joseph Branthoffer, and'to secure the payment of a balance of purchase-money they took his judgment-bond. This bond was conditioned for the payment of a sum of money representing the widow’s dower, and, also, the distributive shares of three of Yeager’s heirs.

On the 3d of May 1871, some years before the bond was entered, Branthoffer made an arrangement with Dimm by which he, Branthoffer, proposed, to obtain the releases of the three heirs, and Dimm thereupon endorsed on the bond the following memorandum: “ The within bond is all paid but $574.39, which is the dower of Margaret Y.eager, which is payable at her death. Interest payable annually on the above. This money is due and payable at the death of Margaret Yeager, to the heirs of Adam Yeager, May 3d 1871.”

■ This was not signed by Dimm for the reason, which he gave at the time, that the releases not having as yet been executed he would not affix his signature to the receipt until they were obtained. Two of these releases Branthoffer afterwards obtained, but failed to procure the third. The non-releasing heir was afterwards paid off by Dimm, and as a cautionary measure, Branthoffer’s judgment-note was taken for the amount thus paid. The court held, rightly, that this note was not a satisfaction, fro tanto, of the original bond.

. In 1875 judgment was entered upon the bond; the receipt was noted upon the continuance-docket, but the full amount of the original obligation, without the receipt, was docketed in the judgment-index. Thus matters rested until the property was sold by Branthoffer’s assignee, and the money arising therefrom was brought into court for distribution.

' The auditor, who was appointed to marshal and distribute these assets, awarded to the Dinun and King judgment the full amount claimed by them; that is to say, the widow’s dower and the distributive share ofithe heir who had not released to Branthoffer; in all some $736.86, with interest and costs. The court reversed this finding of the auditor as to the distributive share, holding that, as to this, the appellants were estopped by their receipt.

We think this ruling was erroneous. We cannot find in the facts of the case a single element necessary to constitute an estoppel. As between the parties themselves the endorsement was not a receipt, nor was it intended so to be, and as Branthoffer never obtained the contemplated release for the thirty distributive share, he could claim no credit for it; as to him the judgment was good for the amount of the dower and that share; as much so as though the endorsement had never been made. Such being the case, the judgment being valid as to Branthoffer, it must also be valid as to subsequent creditors. As was said in Cover v. Black, 1 Barr 493, the creditor stands on the foot of his debtor, and where the act done does not impair the lien between the original parties, neither does it as to the subsequent judgment-creditor. This would be. iifferent had the acts of the original parties misled the subsequent creditor to his injury, or had there been a failure to comply with the Act of Assembly requiring the judgment to be properly marked on the judgment-index. But neither of these things is found in this case. No creditor was induced to trust Branthoffer- because of the endorsement, and the,judgment was regularly, and to its full amount, carried into the judgment-inaex. The learned judge says that it is a legal presumption that the subsequent creditors did examine the entire record of the Dimm and King judgment, and were induced, by the endorsement on the bond, to give Branthoffer credit.

This, however, is a mistake, the legal presumption, if any such there is, is to the contrary. Mr. Chief Justice Gibson, in Reed’s Appeal, 1 Harris 476, says: “ In the ordinary course of dealing, the creditor looks to the debtor’s personal ability, and to nothing else. When he looks to real security he takes a mortgage.”

The argument of, and the authorities cited by, the court below, might very well apply to a purchaser or a mortgagee, for the dealing, in such case, being for and on account of the realty alone, an examination of the records might not only be expected but presumed; not so, however, where the credit given is personal. It is for this reason, among others, that it has been held that a judgment-creditor does not come within the meaning of the Recording Acts: Cover v. Black, 1 Barr 493, and Reed’s Appeal, supra. ’

The decree of the court below is reversed, and it is now ordered that distribution be made according to the auditor’s report, and that the appellees, pay the costs of this appeal.


author: Mr. Justice Paxson

text:
    Wilson’s Appeal.
    1. Without a levy, a writ of fieri facias creates no lien upon real estate, independent of the judgment which it executes.
    2. Real estate, the sale of which produced a fund in court, belonged to A., who inherited it from his father. The descent was cast on the 29th of September, at about 11 o’clock a. m. The appellant’s judgment against A. was entered between 8 and 10 p. m. of the same day. C. obtained a judgment against A. on the 21st of February 1874, and on September 29th 1877, after the entry of appellant’s judgment issued a fieri facias which reached the sheriff at 11 p. m. There was no levy under this fi. fa. until several days thereafter. Held, that said execution was not entitled to come in upon the fund as against appellant’s judgment.
    May 26th 1879.
    ■ Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sterrett, J., absent.
    Appeal from the Court of Common Pleas of Juniata county: Of May Term 1879, No. 15.
    Appeal of H. • Latimer Wilson, executor of. William Curran, deceased, from the decree of the court, making distribution of the proceeds of a sheriff’s sale of the real estate of Joseph Adams.
    William Adams, the father of Joseph Adams, died on the 29th of September 1877, intestate, seised of certain real estate. On the same day the appellant entered a judgment, on warrant of attorney, in the Common Pleas of said county, against the said Joseph Adams, for $959.61. This was the first lien on the real estate which produced the fund in court, and which descended to the defendant on the death of his father.
    On the 21st of February 1874, John deck obtained judgment, by warrant of attorney, against Joseph and Mary Adams, for $1362. This judgment was not a lien, having been entered before the defendant acquired any real estate. But on the same day that the title vested in Joseph Adams, by the death of his father, Clock issued a fieri facias upon his judgment, which came to the hands of the sheriff at 11 o’clock, p. M., but the sheriff did not levy on the real estate until the 3d of November following. Afterwards, the real estate was sold by the sheriff for $1400, and the money brought into court for distribution.
    The court filed the subjoined opinion:
    “ The following facts are agreed upon, to wit:
    “1. On the 2'lst of February 1874, John Cleck obtained judgment No. 21, April Term 1874, against Joseph Adams for $1362.
    “ 2. On the 29th of September 1877, about 11 o’clock in’ the forenoon, William Adams, the father of Joseph Adams (the defendant), died, and the latter inherited from his father, by descent, the real estate which produced the fund in court.
    ' “ 3. On the 29th of September 1877, between the hours of 8 and 10 o’clock, p. M. of that day, H. L. Wilson, executor of William Curran, entered a judgment against Joseph Adams to No.. 45, December Term 1877, for $959.

      “4. -On the 29th of September 1877, and after the entry of this last-mentioned judgment, No. 45, December Term 1877, John Cleek, the plaintiff in judgment No. 21, April Term 1874, issued a fieri facias thereon, which came to the hands of the sheriff at 11 o’clock R. M. of said day, but no levy on the real estate so descended to Joseph Adams, the defendant, was endorsed on the fieri facias that day. The fieri fa.cias is No. 12, December Term 1877 ; and on vend. ex. No. 8, February Term 1878, the land so descended to Joseph Adams, was sold for $1400. The question is, does the judgment of Wilson, executor of Curran, entered 29th September 1877, eleven hours after the descent- cast (but same day), take precedence of the lien secured by the fieri facias issued on Cleck’s judgment, twelve hours after the descent cast, (but on same day), or both being liens obtained the same day do they take pro rata ?

    “ First then, did the mere issuing of the fieri facias, without a levy on the land create a lien ? Both sides concede that it did, as our Act of Assembly relating to executions declares that ‘ no writ of fieri facias or other writ of execution shall bind the property or the goods of the person against whom such writ of execution is sued forth, but from such time as such writ shall be delivered to the sheriff, under sheriff or coroner to be executed, and require the officer to time such writ when received; and after this if the defendant do not pay, the sheriff is to proceed to levy and sell, &e. In Mifflin v. Will, 2 Yeates 177, delivery of the writ at sheriff’s office or house was held to bind defendant’s personal property, and binds from delivery whether a levy is made or not: Duncan v. McCumber, 10 Watts 212; Schuylkill County’s Appeal, 6 Casey 358; Wilson, Sieger & Co.’s Appeal, 1 Harris 429; Shaeffer v. Gilmore, 3 W. & S. 438; McCormick v. Miller, 3 P. & W. 230; Jones v. Atherton, 7 Taunt. 56; 2 E. C. L. Rep. 258; which show that although the sheriff levies upon and sells upon the second writ, the first writ will be entitled to the money: Drew v. Lanison, 11 Ad. & E. 529.’ True, all these relate to personal property, but in Pennsylvania, lands are chattels for payment of debts. It is true, that in Packer’s Appeal, 6 Barr 277, there was a levy, but the question of lien by delivery of the writ did not arise. We think the law is settled that where the judgment on which the fieri facias issues has never been a lien on the real estate of the debtor* as in after-acquired real estate, the execution becomes a lien: Packer’s Appeal, 6 Barr 277. We now come to the question of priority, as between the lien by judgment and the lien by execution. We admitted parol evidence to show, first, when the estate descended to the defendant; and second, when or at what hour of the day of descent, the judgment was entered, and the sheriff’s endorsement proved at what time the fieri facias came into his hands.

      “ That the judgment was entered after the descent cast, and before the fieri facias issued (all on the same day, however,) is clear. Metzler v. Kilgore, 3 P. & W. 245; Claason’s Appeal, 10 Harris 359; Hendrickson’s Appeal, 12 Id. 363; Mechanics’ Bank v. Garman, 8 W. & S. 304; Small's Appeal, 12 Harris 398; Lanning v. Pawson, 2 Wright 480 and Boyer’s Appeal, 1 P. F. Smith 432, all show, that not only as between judgments entered on the same day is there no priority, but that the same principle applies to all liens. Eor instance, in Claason’s Appeal, 10 Harris 359, the contest was between a judgment and a mortgage in which it was shown by -parol that the judgment was entered between 7 and 8 ¡ o’clock, and the mortgage about 8 o’clock P. M., and it was said that the precise time when a mortgage is left for record, is noted in order to determine the priority between mortgages, but as no such minute is made upon the entry of a judgment, if fractions of a day are to be considered in ascertaining which is first in lien, parol evidence must necessarily be resorted to, and the value of the encumbrance will then depend upon the lives, accuracy and truthfulness of witnesses, instead of a certain safe and reliable record open to inspection of every person interested, and which tells the same story at all times, and under all circumstances; and it is stated that no reason was discoveed why the principles which reject fractions of a day, should not be applied to mortgages ■when the contestant is a judgment, and the parol evidence was held immaterial, and should have been rejected. The Act of 28th March 1820, gives mortgages priority as to each other even when entered on the same day, so that the date of entry is for that purpose. Hendrickson’s Appeal, 12 Harris 363, arose two years after Claason’s case, and was decided the same way, upon general principles, as seen in the second sentence of Judge Black’s opinion, whilst the third sentence is made the syllabus by the reporter as the point ruled, which was no more than stating that even if there could be priority, there was no means of ascertaining it, but the point ruled wras that there could be none. In Boyer’s Estate, 1 P. F. Smith 432, the same principle is announced. It is true that in this case, the Mechanics’ Bank v. Garman, 8 W. & S. 304, and others, as Lanning v. Pawson, 2 Wright 480, it is conceded that in favor of a conveyance by the debtor, the precise hour of the day when a judgment is entered may be shown, or any other matter in pais out of which other rights have arisen, because it would, says Judge Gibson, be impossible to put a judgment and a conveyance on a footing of equality, not only because it would be impracticable to determine the relative proportions coming to each, but because they are inconsistent and irreconcilable. The one is a security which encumbers the property in exclusion of everything subsequent to it; the other a conveyance excluding everything to which it is anterior, and they are therefore incapable of standing together. When judgments bear the samé date they must necessarily come in together, but as between judgments and a conveyance, actual priority must be shown, like any other fact.
    “ So far has this principle been carried, rejecting fractions of a day, that in Long’s Appeal, 11 Harris 297, there is no priority between several writs of foreign attachment, served or levied on the same day, on personal or real estate, and the reasoning of Judge Lewis, is very full. Now, in the present case, we have a lien by judgment and one by execution, both acquired on the same day; both encumbrances, and why should the rule be different from that which prevails between a judgment and. a mortgage. Said C. J. Tilghman, in Sims v. Hampton, 1 S. & R. 412, ‘there shall be no fractions of a day except in a case of necessity;’ and in Long’s Appeal, supra, Judge Lewis said, ‘neither justice nor necessity requires that one creditor should be aided in seizing all the assets of his debtor, to the entire exclusion of others equally meritorious.’ It is contended, that the Act of Assembly which requires the sheriff to endorse time, &c., on executions, fixes the time of lien, and that as against this sort of lien, the exact moment of the entry of the judgment, ought to be permitted to be shown. But this provision was manifestly only intended to operate as between executions issued on the same day. We are of opinion that the liens in this case must be treated as commencing at the same moment of' time, and that the fund must be apportioned between them.”
    A decree was entered accordingly, and therefrom this appeal was taken.

      Jeremiah Lyons and Edward S. Doty $ Son, for appellant.—
    The execution on the Cleck judgment was not a lien on the after-acquired land until an actual levy was made.

      Louis E. Atkinson, for appellee.
    June 23d 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

At common law a writ of fieri facias bound the personal property of the defendant from the teste of th^writ. The Act of 16th June 1836, Pamph. L. 768, provides that “no writ of fieri facias, or other writ of execution, shall bind the property or the goods of the person against whom such writ of execution is sued forth, but. from the time- such writ shall be delivered to the sheriff, under-sheriff, or coroner to be executed.” The 40th section of said act requires the sheriff to endorse on a fi. fa. the day of the month, the year and the hour of the day when any such writ shall come into his hands. It has been repeatedly held that the writ is a lien from the time it is lodged with the sheriff: Mifflin v. Will, 2 Yeates 177; Duncan v. McCumber, 10 Watts 212; Schuylkill County’s Appeal, 6 Casey 358; Wilson’s Appeal, 1 Harris 426; Shafer v. Gilmore, 3 W. & S. 438. All these cases, however, .and many others that might be cited, refer to personal property. It has never yet been held that the lien of a fieri facias attaches to real estate without a levy. It was settled in Colhoun v. Snider, 6 Binn. 135, that after-acquired lands were not bound by a judgment previously entered. But an execution issued upon such judgment, and levied upon such subsequently-acquired lands, is a lien thereon: Packer’s Appeal, 6 Barr 277. It is true the question of lien by the mere delivery of the writ to the sheriff was not raised in Packer’s Appeal, nor am I aware of its having been raised in any .other case. The reason for it probably is the general acquiescence of the profession in the belief that a fi. fa. was not a lien upon real estate without a levy. We find dicta scattered through our books tending to show that such has been the impression, at least, of the judicial mind. Thus, in Betz’s Appeal, 1 P. & W. 278, it was said by Justice Smith that “ the fieri facias itself is no lien upon the land until it is seized in execution by virtue of the writ;” and by Justice Rogers, in Boal’s Appeal, 2 Rawle, at page 39: It is the opinion of the majority of the court, that as the writ of restitution is strictly an execution, it comes within 'the same rules as other executions; and that the lien commences on the goods from the time the writ goes into the hands of the sheriff, and on the lands from the time of the levy.”

It was held by the learned judge of the court below that inasmuch as lands are chattels 'for the payment of debts by our law, the lien of the fi. fa. attached without a levy. It is true that in Pennsylvania lands are liable for the debts of the owner, but they are so sub modo only, they are not primarily liable. It is the duty of the sheriff to levy first upon the personal property, but “ if sufficient personal estate cannot be found by such officer, he shall proceed to levy upon the defendant’s real estate.” See Act of 16th of June 1836, sect. 43, Pamph. L. 769. The plain object of the provision in the Act of 1836, first above cited, was to prevent the lien of the fi. fa. relating back to the teste of the writ. Had it been intended to make such writ a lien upon real estate from the time it came into the hands of the sheriff, such intention would have been doubtless clearly expressed in the’act. It is expressly provided by the Act of 1836 that a testatum'fi. fa. shall be a lien upon the real estate of the defendant, in the county to which it shall be sent, for the period of five years, and it is required to be docketed and go upon the judgment-index. As indicative of the legislative mind, it is not out of place to refer to the 9th section of the Act of 20th April 1853, Pamph. L. 611, relating to executions levied on after-acquired real estate in Philadelphia, which provides that all such executions may, on application of the execution-creditor, be certified by the officer making such levy, to the officer of the court from ■which such execution issued, when it shall be docketed on the judgment-index, and thenceforth bind such real estate for five years like any other judgment, and unless such levy be so certified and indexed it shall be no lien on such real estate. The Act of 22d April 1856, Pamph. L. 532, is general and provides in the third section that “the lien of no judgment, recognisance, execution levied on real estate in the same or another county, or of writs of scire facias to revive or have execution of judgments, shall commence or be. continued, as against any purchaser or mortgagee, unless the same be. indexed in the county where the real estate is situated, in a book to be called the judgment-index; and it shall be the duty of the prothonotary or clerk forthwith to index the same, according to priority of date, and the plaintiff shall furnish the proper information to enable him to perform said duty.” It will thus be seen that an execution levied upon real estate of a defendant is not a lien as against a purchaser or mortgagee unless regularly entered upon the judgment-index. We regard it as equally clear that without a levy a writ of fieri facias creates no lien upon real estate independent of the lien of the judgment which it executes.

The real estate, the sale of which produced the fund in court, belonged to Joseph Adams, who inherited it from his father. The descent was cast on the 29th day of September 1877, at about eleven o’clock, &. M. The appellant’s judgment against Joseph Adams was entered between the hours of eight and ten, p. M., of the .same day. John Cleck, the appellee, obtained a judgment against said Adams on the 2Íst of February 1874, and on the said 29th of September 1877, and after the entry of the appellant’s judgment, issued a fieri facias which reached the sheriff at eleven o’clock, p. M. As, however, there was no levy under this fi. fa. until some days afterwards, it is manifest, in view of the principles above stated, said execution was not entitled to come in upon the fund as against the judgment of the appellant.

The decree is reversed, at the costs of the appellees, and it is now ordered and decreed that the fund in court be applied first, to the payment of the judgment of the appellant, H. L. Wilson, executor of Joseph Adams, No. 45, December Term 1877, and that the balance, if any, thereafter remaining of said fund, be applied to the execution of the appellee, Cleck v. Adams, vend. ex., No. 8, February Term 1878.


author: Per Curiam.

text:
    Toole’s Appeal.
    To grant or refuse a license is entirely within the discretion of the Court of Quarter Sessions, and no appeal lies therefrom.
    May 27th 1879.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Certiorari to the Court of Quarter Sessions of Huntingdon county : Of May Term 1879, No. 187.
    Eelix Toole petitioned the court for a license to keep a tavern or inn, and filed his bond and recommendations, and fully complied with all the requirements of the Act of April 12th 1875, Purd. Dig. 2027, and the rules of court. Twenty citizens signed the recommendation attached to his petition. There was. no remonstrance or objection of any kind to the granting of the license. The court, however, refused the license, and when asked to state their reasons, declined to do so.
    Toole then took this writ, and assigned this refusal for error.

      Petrilcen McNeil, for plaintiff in error.
    The clear intention of the Act of Assembly is that the court should exercise a sound judicial discretion in the granting of license, when objection was made to the granting of any particular license, and that discretion was to be exercised on the evidence before the court. There would or could be nothing else upon which to call into exercise or rest a legal or judicial discretion. .
    No counsel contra.

    June 9th 1879,
   The judgment of the Supreme Court was entered,

Per Curiam.

_ _ . Thi's was an application in the court below for a tavern license. The Act of Assembly gives no appeal in such a case. .'The grant o’r- refusal’ of a license is entirely within the discretion of the court. On the face of the record, we see no evidence-of the’abuse of the discretion. What testimony may have been before the court, does not appear, and we are certainly not to presume that the refusal of the license was arbitrary and without some good reason.

Order approved.


author: Mr. Justice Trunkey

text:
    Hamaker versus Blanchard.
    1.. The-finder of lost property has a valid claim to the same against all persons but the true owner, and generally the place in which it is found creates no exception to this rule.
    2. The fact that money is found in the public room of a hotel, creates no presumption that it belonged to a guest of the hotel, and that the hotel-keeper, by reason of its thus being found, is entitled to the custody thereof to await the true owner.
    3. A domestic servant in a hotel found in the public parlor a roll of bank-bills. She immediately informed the proprietor of the hotel, who suggested that the money belonged to a transient guest of the house and received it from the servant to hand to the guest. It was afterwards ascertained that the guest did'mot lose the money, and upon demand by the servant the proprietor refused to return it to her. She brought assumpsit for the money. Held, that she was entitled to recover.
    May 27th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Mifflin county: Of May Term 1879, No. 57.
    Assumpsit by James Blanchard and Sophia, his wife, for the use of the wife, against W. W. Hamaker.
    This was an appeal from the judgment of a justice of the peace. The material facts were these: Sophia Blanchard was a domestic servant in a hotel in Lewistown, of which the defendant was the proprietor. While thus employed, she found in the public parlor of the hotel, three twenty-dollar bills. • On finding the money, she went with it to Mr. Hamaker, and informed him of the fact, and upon his remarking that he thought it belonged to a whip agent, a transient guest of the hotel, she gave it to him, for the purpose of returning it to said agent. It was afterwards ascertained that the money did not belong to the agent, and no claim was made for it by anyone. Sophia afterwards demanded the money of defendant, who refused to deliver it to her. Defendant admitted that he still had the custody of the money.
    In the general charge the court (Bucher, P. J.,) inter alia, said: “ If you find that this was lost money, Hamaker did not lose it, and that it never belonged to him, but that it belonged to some one else who has not appeared to claim it, then you ought to find for the plaintiff, on the principle that the finder of a lost chattel is entitled to the possession and use of it as against all the world except the true owner. * * * The counsel for the defendant asks us to say that as the defendant was the -proprietor of a hotel and the money was found therein, the presumption of law is that it belonged to ,a guest, who had lost it, and that the defendant has a right to retain it as against this woman, the finder, to await the demand of., the true -owner. I decline to give you such instructions; but charge you that under the circumstances there is no presumption of law that this money was lost by a guest at the hotel, and that the defendant is entitled to keep it as against this woman for the true owner.”
    The verdict was for the plaintiffs for $60, with interest, and after judgment thereon, defendant took this writ and assigned for error the foregoing portions of the charge.

      II. J. Culbertson, for plaintiff in error.
    It is only in the absence of all protection or responsibility in reference to a lost chattel, that the place in which a lost article is found does not constitute any exception to the general rule of law, that the finder is entitled to it as against all persons except the true owner: Bridges v. Hawkesworth, 7 Eng. Law and Eq. Rep. 430; McAvoy v. Medina, 11 Allen (Mass.) 549. An innkeeper is liable for the goods of his guest, including money, and if they are brought within the inn a responsibility is created: Houser v. Tully, 12 P. F. Smith 92; Packard v. Northcraft’s Administrators, 2 Metc. (Ky.) 439; Berkshire Woollen Co. v. Proctor, 7 Cush. 417; Edwards on Bailments, 2d ed., sect. 459; Story on Bailments, sect. 471; Jones on Bailments 95; Addison on Torts, Wood’s ed., vol. 1, pp. 755 and 752. He is bound to keep honest servants, and is responsible for the honesty of his servants and his guests: Houser v. Tully, supra; Gile v. Libby & Whitney, 36 Barb. (N. Y.) 70; Story on Bailments, supra. To allow servants to retain money found in an inn would encourage them to be dishonest. The better rule is to require them to deliver property so found to their employer, to be held for the true owner: Mathews v. Harsell, 1 E. D. Smith’s Rep. (N. Y.) 394. An innkeeper is held to a rigid responsibility in the care of his guests’ property, and it is a safe presumption of law that money found in an. inn belonged to a guest, and that the innkeeper has a right to the custody of it as against his servant, the finder, to await the true owner, and if the latter does not make claim thereto, then he should have the money who bears the responsibility.

      J. A. McKee, for defendants in error.
    There is no evidence that the money bélonged to a guest of the hotel.
    An innkeeper is under no obligation to one who casually steps into his house to transact business, using his parlor as a matter of convenience, and the innkeeper under such circumstances would not be liable for the loss of any property or money left there without his knowledge or consent: Story on Bailments, sec. 477 ; 2 Kent’s Com. 595.
    There is no presumption of law that the money was lost by a guest. If this money was- found'in such a situation as to clearly indicate that it was lost, and not voluntarily placed where it was found, by tbe owner, by mistake or forgetfulness, then the finder is entitled to it: McAvoy v. Medina, supra.

    June 9th 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

It seems to be settled law that the finder of lost property has a valid claim to the same against all the world, except the true owner, and generally that the place in which it is found creates no exception to this rule. But property is not lost, in the sense of the rule, if it was intentionally laid on a table, counter or other place, by the owner, -who forgot to take it away, and in such case the proprietor of the premises is entitled to retain the custody. Whenever the surroundings evidence that the article wras deposited in its place, the finder has no right of possession against the owner of-the building : McAvoy v. Medina, 11 Allen (Mass.) 548. An article casually dropped is within the rule. Where one went into a shop, and as he wras leaving picked up a parcel of bank notes, which was lying on the floor, and immediately showed them to the shopman, it was held that the facts did not warrant the supposition that the notes had been’ deposited there intentionally, they being manifestly lost by some one, and there was no circumstance in the case to take it out of the general rule of law, that the finder of a lost article is entitled to it as against all persons, except the real owner: Bridges v. Hawkesworth, 7 Eng. Law & Eq. R. 424.

The decision in Mathews v. Harsell, 1 E. D. Smith (N. Y.) 393, is not in conflict with the principle, nor is it an exception. Mrs. Mathews, a domestic in the house of Mrs. Barmore, found some Texas notes, which she handed to her mistress, to keep for her. Mrs. Barmore afterwards intrusted the notes to Harsell, for the purpose of ascertaining their value, informing him that she was acting for her servant, for whom she held the notes. Harsell sold them, and appropriated the proceeds; whereupon Mrs. Mathews sued him and recovered their value, with interest from date of sale. Such is that case. True, Woodruff, J., says : “lam by no means' prepared to hold that a house-servant who finds lost jewels, money or chattels, in the house of his or her employer, acquires any title even to retain possession against the will of the employer. It will tend much more to promote honesty and justice to require servants in such cases to deliver the property so found to the employer, for the benefit of the true owner.” To that remark, foreign to the case as understood by himself, he added the antidote: “ And yet the Court of Queen’s Bench in England have recently decided that the place in which a lost article is found, does not form the ground of any exception to the general rule of law, that the finder is entitled to it against all persons, except the owner.” His views of what will promote honesty and justice are entitled to respect,' yet many may think Mrs. Barmore’s method of treating servants far superior.

The assignments of error are to so much of the charge as instructed the jury that, if they found the money in question was lost, the defendant had no right to retain it because found in his hotel, the circumstances raising no presumption that it Avas lost by a guest, and their verdict ought to be for the plaintiff. That the money Avas not voluntarily placed where it was found, but accidentally lost, is settled by the verdict. It is admitted that it Avas found in the parlor, a public place open to all. There is nothing to indicate AYhether it was lost by a guest, or a boarder, or one who had called with or without business. The pretence that it Avas the property of a guest, to whom the defendant Avould be liable, is not founded on an act or circumstance in evidence.

Many authorities Avere cited, in argument, touching the rights, duties and responsibilities of an innkeeper in relation to his guests; these are so Well settled as to be uncontroverted. In respect to other persons than guests, an innkeeper is as another man. When money is found in his house, on the floor of a room common to all classes of persons, no presumption of ownership arises; the case is like the finding upon the floor of a shop. The research of counsel failed to discover authority that an innkeeper shall have an article Avhich another finds in a public room of his house, Avhere there is no circumstance pointing to its loss by a guest. In such case the general rule should prevail. If the finder be an honest woman, who immediately informs her employer, and gives him the article on his false pretence that he knoAvs the owner and will restore it, she is entitled to have it back and hold it till the oAvner comes. A rule of laAV ought to apply to all alike. Persons employed in inns will be encouraged to fidelity by protecting them in equality of rights with others. The learned judge Avas right in his instructions to the jury.

Judgment affirmed.

Mercur, J., dissents.


text:
    Lehr versus Taylor.
    1. Plaintiff worked defendant’s farm upon the shares. By the terms of the lease, he was to have half the grain, but the right of possession thereof in the fields or in the barn was to be in the defendant, until divided and his share delivered to him under the terms of the lease. The plaintiff moved off the farm in the spring. During the following summer the wheat sown the fall previous was harvested, and defendant refused to allow plaintiff to take his share thereof, on the ground that the plaintiff had fraudulently withheld a portion of the corn and other crops of the previous season. The plaintiff brought trover and conversion for the value of one-half of the wheat crop, jMeld, that the action would not lie.
    2. It seems, that even if this was the proper remedy the defendant could show, in mitigation of damages, that the plaintiff had fraudulently withheld a portion of the crops and could recoup the value thereof in this proceeding.
    May 27th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Mifflin county: Of May Term 1879, No. 122.
    Trover and conversion by Matthew P. Taylor against Henry Lehr, to recover the value of one hundred and sixty-five bushels of wheat. The material facts will be found in the opinion of this court.
    At the trial before Bucher, P. J., the defendant submitted, the following points, to which are appended the answers of the court.
    1. That under the article of agreement, given in evidence in this case, plaintiif cannot sustain his suit in this form of action, and the verdict must be for defendant.
    Refused.
    . 2. That if the jury believe, from the evidence in the case, that plaintiff did not deliver to the defendant his full share of the corn crop, of the last year of his tenancy, but fraudulently withheld a part thereof, and that defendant proposed to plaintiff that he could thresh the wheat, and have his part of it, if he would comply with the article of agreement and give defendant his share or part of the corn crop withheld, that then plaintiff cannot recover and the verdict must be for defendant.
    Refused.
    3. If the court refuses to answer the first and second points, as requested, defendant asks the court to charge the jury that he is entitled to deduct from the plaintiff’s claim the value of whatever corn of defendant’s share plaintiff withhold and did not deliver to Him, in mitigation of damages.
    Refused.
    In the general charge the court, inter alia, said:
    “It is in proof that defendant threshed the grain; that the plaintiff demanded his share after it was threshed, but the defendant refused to give it to him, and sold a part and used the balance. This was a conversion of the grain, and the action can be sustained notwithstanding the agreement provides that the defendant is to have the possession of the grain in the fields, as well as. in the barn, until h'e received his share. This stipulation in the agreement did no more than give the defendant a lien on the grain until he received his share, if it even did that. It did not clothe him with authority to sell it and convert it to his own use. The moment he did this he became a tort feasor, and an action would lie. The defendant insists that he has a right to deduct, or set-off, from this claim of the plaintiff, his share of the corn that the plaintiff neglected or failed to give him for the year 1875. We instruct you that this is an action ex delicto, and the set-off here claimed cannot be allowed. The defendant, as I said before, may have had the right to the possession of this grain for his protection, but when he sold it, and converted it to his own use, he became liable to this action. The lien that he had for his protection did not give him the right to sell it and pay himself with the proceeds for his share of the corn crop that he did not get in the year 1875. We admitted this evidence with hesitation,- and have come to the conclusion that this set-off cannot be allowed. If you believe then that there has been a conversion of this wheat by the defendant you ought to find a verdict for the plaintiff.”
    The verdict was for plaintiff for $196.90. After judgment thereon the defendant took this writ, and assigned for error the refusal of the foregoing points.

      D. W. Woods, for plaintiff in error.
    This action cannot be sustained. All the rights and equities of the parties can be properly adjusted and worked out by an action against Lehr on the articles of agreement, if Taylor has any just claim. Even if the action could be sustained, we had a right to prove, in mitigation of damages, that Taylor had fraudulently withheld from defendant his share of the corn: Romig’s Adm’r v. Romig, 2 Rawle 241; Saam v. Saam, 4 Watts 432.

      Andrew Reed, for defendant in error.
    The defendant in error was entitled to the actual possession, for the purpose of threshing and dividing the wheat, and was prevented from so doing by the wrongful act of Lehr, who sold the wheat and thereby prevented Taylor from ever obtaining his own property. The allegation that Taylor had not made a fair division of the corn the year before, will not justify Lehr taking Taylor’s share of the wheat the next year, and of whose title thereto there was and could not be any dispute. To an action of trover brought for a wilful tort like this, there can be no set-off. The two cases cited by the plaintiff in error fail to establish any contrary doctrine.
    October 6th 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

The plain tiff worked the defendant’s farm upon the shares. By the terms of the lease, he was to have half the grain, but the right of possession thereof in the fields or in the barn was to be in the defendant until divided and his share delivered to him, under the terms of the lease. The plaintiff moved off the farm in the spring of 1876. The wheat which is the subject of the present contention, was sown the previous fall, and harvested during 1876. It was therefore one of the crops of the year 1875. The defendant refused to allow plaintiff to take his share thereof, upon the allegation that the plaintiff had fraudulently withheld a portion of the corn and other crops for the year 1875. Thereupon the plaintiff brought this action of trover and conversion, to recover the value of one-half the wheat crop. Upon the trial in the court below, the defendant contended, 1. That the action of trover and conversion would not lie; and 2. That if it were the proper form of remedy, the defendant could show, in mitigation of damages, that the .plaintiff had fraudulently withheld a portion of the crops, and could recoup the value thereof in this proceeding. Both these points were ruled against the defendant, the learned judge holding that in an action in form ex delicto, no set-off can be allowed.

We are of opinion that the plaintiff has mistaken his form of action. The possession and the right of possession of the grain was in the defendant until divided as stipulated in the lease; not as to the wheat crop alone, but as to all the crops of grain and hay in the fields or in the barn. If therefore the plaintiff had appropriated the corn and other crops to his own use, in fraud of the rights of his landlord under the lease, tvould he also be entitled to demand a division of the wheat and sue the latter in trover and conversion upon a refusal? We need not argue such a plain proposition. The possession being in the defendant, the action of trover cannot be sustained. Nor does it matter that the defendant sold the wheat and received the entire proceeds, if, as he alleges, the plaintiff had in his hands more than the amount unlawfully withheld from him. Had the plaintiff brought his action upon the lease all questions arising under it could have been properly adjusted. The attempt to settle only so many of them as suits his convenience is ingenious, but carries with it the penalty of failure by reason of a mistake in the form of action.

As this view is decisive of the case, we need not discuss at length the question raised by the second and third assignments. The general rule is as stated by the court below', that in actions ex delicto, a set-off is not admissible. But the evidence offered here was not by way of set-off, but of equitable defence as to matters growing out of the same transaction. There is a line of cases which go very far towards establishing its competency. See Heck v. Shener, 4 S. & R. 249; Romig v. Romig, 2 Rawle 241; Saam v. Saam, 4 Watts 432. There is a growing disposition to favor every principle that avoids circuity of action. There is ahvays a saving of expense, and sometimes a great gain to the cause of justice by hawing one jury pass upon the whole case.

Judgment reversed.


text:
    Crozier’s Appeal.
    The right given by statute to a widow to elect not to take under her husband’s will is purely personal, and in the event of her death without having exercised said right, her heirs or personal representatives cannot make the election.
    May 27th 1879.
    Before Sharswood, C. J., Meucur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Orphans’ Court of Juniata county: Of May Term 1879, No. 167.
    Everard Oles died March 30th 1877, leaving an estate valued at about $>60,000 and a widow, but no children or lineal heirs. He left a will, wherein the following provision was made for his widow: “It is my will and I order and direct that my beloved -wife Mary, if she survive me, shall have the -net annual proceeds. arising from my real and personal estate * * * so long as she lives.” The widow died thirty-six days after her husband, on the 6th May 1877, intestate, and letters of administration on her estate were issued to B. F. Crozier, who, with Susanna Valentine, Elizabeth C. Westfall, James H. Crozier, Mary Foultz and Mary C. McWilliams, constitute the heirs-at-law and next of kin of the said Mary Oles, deceased. On the 4th day of August 1877, these next of kin joined the administrator of the said Mary Oles in a petition addressed to the Orphans’ Court, representing the facts above stated, and further averring that the said Mary Oles, deceased, had not in her lifetime accepted the provision made for her by her deceased husband in his will, nor was she at any time since the decease of her husband competent to make an election, because she was of unsound mind, and asking that they, as next of kin-and the representatives of said Mary, be allowed, upon due notice to the parties in interest, to elect not to accept the provisions made for her by the wjll of her husband, and take what the statutes give in cases of intestacy. After answer filed averring that the widow had in fact accepted the provisions of her husband’s will, in pais, during her lifetime, and denying want of mental capacity, &c., the Orphans’ Court directed an issue to be framed and sent into the Common Pleas for trial — which issue was as follows:
    1. Whether Mary Oles elected to accept the devise and bequest to her under the will of said Everard Oles, deceased.
    2. Whether she was competent, by reason of unsoundness- of mind, to make an election to accept. This issue was tried, and the jury found that she was of unsound mind, and had never made an election. No measures were taken in the lifetime of the widow to have her declared a lunatic.
    After hearing, the court, Junkin, P. J., dismissed the petition in an opinion saying:

      “ The first question is, have the heirs and next of kin of Mary Oles the right, either for her or themselves, to waive the provisions of her husband’s will and elect to take a distributive share of his estate under the statutes ? The right claimed is of first impression in this state: no reported case of similar claim is found in Pennsylvania, and many widows must have died within the year,, without having made an election.
    “The Statute of Wills, 8th April 1833, sect. 11, pi. 32 (Br. Purd. 1476), makes a devise or bequest by a husband to his wife a bar of her dower, unless the will declares otherwise, but provides' that nothing therein contained shall deprive the widow of her choice, either of dower or of the estate or property so devised or bequeathed; and the Act of 11th April 1848, construing this section, admits her to a share of the personal estate of her husband under the intestate laws as well as his real, where she waives the provisions of the will, and repeats that the’ said widow may take her choice, and the Act of 29th March 1832 provides, that at any time after twelve months from the death of the testator, the Orphans’ Court, on the application of any person interested in the estate of the decedent, shall issue a citation to any such widow to appear, &c., and make her election, &c., and if she neglects or refuses to appear, such neglect or refusal shall be deemed an acceptance of- the devise or bequest, and a bar of dower.
    “ Dower at the common law, was a provision for a widow out of the lands or tenements of her husband, for support and the nurture of her children, and were it not for the statute giving her a share of her personal estate, there could be no controversy in this case; she had all the income of the real estate of her deceased husband while she lived.
    ' “Now the statute (Act of 11th April 1848) which admits her to a share of his personal estate, only does so ‘ in case she elects not to take under the last will and testament of her husband.’ The right of election is personal to her; it is not given to her heir or administrator. Her title comes by election ; ‘ it is the election that hath obtained it.’ There are no inheritable qualities in this right of election vested in the widow; .it dies with her. It must have been known to the law-maker that widows often die within a year, or even within a few days after the decease of their husbands, and had it been intended that this right of election should continue after the death of a widow, it would have been easy to have said so. The intent of the law being to favor, comfort and provide for her, when she died there was no more need. If she died without electing, no choice was necessary, there would be no purpose to subserve. "When a right grows out of an election, it cannot arise or come into existence until an election is actually made: W. S. v. Grundy, 3 Crunch 337.
    “ There is some authority on this point in other states. In Missouri, we have Welch v. Anderson, 7 Jones (or 28 Mo. 293), under a statute substantially like our own (R. Code, 1845, p. 430); it was held that the right of a widow was strictly personal and not transmissible by descent; and in Hamilton v. O’Neil, 9 Mo. 10, the same principle was held. In the former case the widow died without having made an-election and her heirs sought to make it, as heirs, but Scott, J., said there was no right or estate in her capable of descending to her heir. In Sherman v. Newton’s Ex’r, 6 Gray 307, under a statute which declares, ‘ When any man shall die, having lawfully disposed of his estate by his will, and leaving a widow, the widow may, at any time within six months after the probate of the will, waive the provision made for her in the will, and she shall in such case be entitled to such portion of the real and personal estate as she would have been entitled to if her husband had died intestate;’ it was held in that case that although the widow had died within seven days after her husband, and before the probate of the will, and her heirs had made the application within six months, that the right of election must be exercised personally by the widow, and that the statute did not contemplate any advantage should be derived by the heirs from the privilege; and, accordingly, there was no provision or direction as to the time or manner in which, in any contingency, they should be allowed to avail themselves of it. To the same effect is Pinkerton’s. Adm’r v. Horace B. Sargent’s Ex’r, 102 Mass. 568, under the same statute, but with these additional features, namely, that the widow had long been a lunatic, and confined in a hospital, and her right of election had been exercised by her guardian, as well as by herself, and the decision rests upon the ground that the privilege is so rigidly personal, that no one could exercise it for her, and being insane, she could not intelligently do so for herself. Then there is Atherton v. Corlis, 101 Mass. 44, to same effect; and, also, Merrill’s Adm’r v. Emery’s Ex’r, 10 Pick. 507; Boone’s Rep. v. Boone, 3 Harr. & McH. (Md.) 95; Collins’s Adm’r v. Carman’s Ex’r, 5 Md. 504, all coming to the same result-, namely, that the right is personal to the widow. On both reason and authority, it seems clear that the claimants in this case are not clothed with the personal privileges of their relative, Mary Oles, and cannot be permitted to exercise the right of election, and decline the provisions of her husband’s will.
    “ But the jury in the Common Pleas have found that Mary Oles ■was incapable of exercising her privilege of election for want of mental capacity, and how is the case affected by this fact ? It is no-t to be doubted, that in this state, under the authority of Kennedy v. Johnston, 15 P. F. Smith 451, that whilst the court hold that the right is personal to the widow, yet, if she be incompetent to exercise it, it is not lost, nor shall it fail her, but the Court of -Common Pleas will advise with her committee, elect for her, and then record the election in the Orphans’ Court.- But where she dies before such election is made, how then ? Is the case changed so that the same reasons which exclude the heir from exercising the right after the widow’s decease, will not also exclude a court from doing the same thing ? Is there a survivorship of the right in the one any more than in the other ? Clearly not. The argument which excludes the heir, is, that the right of election does not survive the life of the elector. So long as the lunatic elector lives, the court, as guardian, is invested with the power of choice; but when the fountain dries up in death, all that has life in it dies also. . In short, if no election is made by the widow during life when she is competent to act for herself, or by the court when she is .not, the right is defeated in either case, the time and opportunity are past, and it never was intended that any election should be made after her death. It could do her no good, and the good of others was not in the view of the law-maker. That the law has been so understood and practised without challenge for the last-century is apparent, from the fact, that a similar claim has never been made with sufficient zeal to establish a precedent.”
    From this decree, dismissing their petition, the petitioners took this appeal.

      Louis E. Atkinson and Ezra D. Parker, for appellants.
    It is claimed that this right of election by a widow is purely personal,- and must be exercised by the widow herself; but it is a right coupled with an interest. It vested in the widow at the death of the husband, and her right ought not to be divested by death, insanity, or other cause, within the time fixed for the exercise of her right. The widow having died before she could exercise the right of election, it must of necessity be exercised by her representatives. If in this case the widow had made an election by declining the provisions of the will, and accepting of her share under the intestate laws, the right acquired by her in the property would pass to her representatives on her death. Where the widow, though enjoying during her life the benefits conferred by the will, was not shown to have elected as between the will and her dower, it was held that her next of kin might elect separately, some for and some against the will: Fytche v. Fytche, Law Rep., 7 Eq. 494, cited in Story’s Eq., vol. 2, 11 ed., p. 376. Where a husband died intestate and his widow died intestate, without claiming dower in his estate, the representatives were entitled to provision in lieu of dower given by the estate: Douglass v. Clarke, 4 Dessaus. (S. C.) 143.

      E. 8. |f L. W. Doty, for appellees.
    The widow’s representatives have no authority to make an election unless it is given to them by the express terms or by a fair interpretation of the Act of 11th April 1848. We contend that both reason and authority clearly demonstrate that this right of election is a personal privilege of the widow, and that it cannot he exercised after her death by her representative, either with or without the sanction of the court. The evident purpose of the act was to benefit the widow, and not her representatives after her death. It is her personal right and is not transmissible by descent. The same principle has frequently been decided in our own state, although arising u-nder other statutes. The right of a widow under the Act of 1851 to retain real or personal property of her husband’s estate to the value of $300 is a personal privilege which she may waive, and the privilege is waived entirely if she neglect to demand an appraisement: Davis’s Appeal, 10 Casey 256; Hufman’s Appeal, 31 P. F. Smith 329; Frances’s Estate, 25 Id. 222. So the remedy by distress incident to a widow’s annuity ascertained by a proceeding in the Orphans’ Court in partition under the intestate laws, is not one to which there can be any equitable subrogation. It is a personal remedy which belongs to the widow, and which she cannot use for the benefit of another tvho had previously paid the annuity to her: Shouffler v. Coover, 1 W. & S. 400.
    June 9th 1879,
   The judgment of the Supreme Court wras entered,

Per Curiam.

We affirm the decree upon the opinion of the learned president, of the court below.

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


author: Mi’. Justice Paxson

text:
    Horning’s Executors’ Appeal.
    1. Where a property is sold under a judgment obtained on a mortgage, and a creditor, whose judgment was a first lien upon the property sold and several other properties of the debtor, voluntarily declines to take the money and allows it to be applied to the mortgage, he will not thereby be postponed to junior lien-creditors upon a distribution of the proceeds of the sale of one of the other properties.
    2. The executors of A. had ajudgment, which was a first lien upon several tracts of land belonging to B. The latter mortgaged one of these tracts to C., and under a judgment obtained upon the mortgage, the tract was sold. In the distribution of the proceeds, the executors declined to take their money and allowed it to be applied to the mortgage. Subsequently B. conveyed another of his tracts to D., who gave a mortgage for the purchase-money. The mortgage was accompanied with eleven bonds, upon one of which the mortgaged premises were subsequently sold and the fund brought into court for distribution. The holders of the bonds contended, that the executors of A., having declined to take the fund on the previous distribution, must now be postponed to them, which contention the court below sustained. Held, that this was error and that the executors should have>been allowed to participate in the fund.
    3. If the interests of junior lien-creditors require that a prior lien-creditor shall do or omit to do a particular thing, they should give him notice thereof before they seek to hold him responsible for any such acts or omissions.

      May 27th 1879.
    Before Sharsavood, C. J., Mercur, Gordon, Paxson, Woodavard, Trunkby and Sterrett, JJ.
    Appeal from the Court of Common Pleas of Mifflin county: Of May Term 1879, No. 176.
    Appeal of Jacob R. Wirt and Adam Lefferd, executors of Robert Horning, deceased, from the decree of the court making distribution of the proceeds of the sheriff’s sale of the real estate of John S. Hanawalt.
    This Avas a case stated, the material portions of Avhich will be found in the opinion of this court. The case Avas tried before Bucher, P. J.

      Louis JE. Atkinson, for appellants.
    Moore, McWilliams & Co., the mortgagees, had an equity which Avould have compelled Horning’s executors to look to the other lands of HanaAvalt for payment in the event of a judicial sale, or if satisfied out of the mortgaged lands, wTould have been subrogated to the rights of the judgment-creditors. The right of the mortgagees to the exclusive benefit of the fund arising from the mortgaged land, or of substitution to the judgment if it Avas first paid out of the proceeds was indisputable. The debtor could not by any subsequent action alter the status of the mortgage: McDevitt’s Appeal, 20 P. F. Smith 377.
    Horning’s executors in this case are prior lien creditors. They have the first lien on the lands sold. They do not invoke the aid of a court of equity. Their rights are at law, and although they have passed one fund, their debt is not extinguished, nor its lien on the fund arising from the sale of the one hundred and tAventy-one acre tract: City of Philadelphia v. Cooke, 6 Casey 62.

      J. A. McKee, K. J. Qulbertson and Andrew Reed, for appellees.
    —It Avas the duty of Horning’s executors to take their money when they could get it. All their equity as a prior lien-creditor, considered in itself, was extinguished Avhen they refused to take their money out of the first fund by the intervening equities of John S. HanaAvalt, a subsequent bona fide purchaser for value. The only ground on Avhich the appellants can justify their refusal to take their money is on account of the equity of Moore, McWilliams & Co., who are not here claiming. Nor was there any proceeding by them to compel the appellants to come on to this fund or to prevent them from taking the other.
    But granting' that Moore, McWilliams & Co. had done so, and were here claiming by subrogation or otherwise, their equity, or the equity of the appellants through them, is not sufficient to take this money from the creditors of John S. Hanawalt. The cases of Ebenhart’s Appeal, 8 W. & S. 327, and Lloyd v. Galbraith, 8 Casey 103, and the still later case of Hoff’s Appeal, 3 Norris 40, fully sustain this principle.

      June 23d 1879.
   Mi’. Justice Paxson

delivered the opinion of the court,

The contention here arises upon the distribution of the proceeds 'of the sale of real estate. On the 24th day of December 1874, Joseph R. Hanawalt was the owner of several separate tracts of land in Mifflin county. On that day, Joseph R. Hanawalt and George Hanawalt confessed a judgment to the executors of Robert Horning for $346.40, and this judgment became a lien on all of Joseph R. Hanawalt’s said tracts of land.

Subsequently, to wit, on the 13th day of August 1875, Joseph R. Hanawalt mortgaged one of the said tracts to Moore, McWilliams & Co., for $7000. This tract was subsequently sold by the sheriff, under a judgment obtained upon the mortgage, and purchased by the mortgagees for the sum of $1750. The judgment of Horning’s executors being prior to the mortgage, was entitled to payment out of the proceeds, but being a first lien upon other properties, the executors declined to take the moneyj and allowed it to be applied to the mortgage.

On the 20th of August 1875, the said Joseph'R. Hanawalt conveyed another of his several tracts of land to John S. Hanawalt, in consideration of $6550, who gave a mortgage for the entire amount. This mortgage was dated January 21st 1876*, and recorded February 5th 1876. It was accompanied by eleven bonds, upon one of which the mortgaged premises was subsequently sold, and the fund in court is the proceeds of that sale.

The only question for our determination is, whether Horning’s executors are entitled to take the amount of their judgment out of the fund. Their claim to do so is resisted by the appellees, who are the holders of a portion of the eleven bonds so as aforesaid issued by John S. Hanawalt, and which accompanied the mortgage of $6550, upon the ground that said executors having declined to take the money when they might have done so, out of the proceeds of the sale under the mortgage of Moore, McWilliams & Co.} must now be postponed to the appellees.

The court below sustained the position of the .appellees and postponed the judgment of Horning’s executors, upon the ground, mainly, that when John S. Hanawalt took his deed, on the 20th of August 1875, he saw that the judgment held by Horning’s executors was amply secured on the tract mortgaged to Moore, McWilliams & Co., so that there was no probability of his land being called upori to pay it. “But all this,” says the learned judge, “is reversed by the executors refusing to lift the money.”

Prima facie, the right of Horning’s executors to be paid out of the fund is clear. They have the first lien. The right of a lien-creditor to pass the first fund and come in upon a subsequent one ig well settled: Bank v. Winger, 1 Rawle 295; Addams v. Heffernan, 9 Watts 529; Hastings’s Caso, 10 Id. 303; Ziegler v. Long, 2 Id. 205: Konigmaker v. Brown, 2 Harris 269; City of Philadelphia v. Cooke, 6 Casey 56; McDevitt’s Appeal, 20 P. F. Smith 373. This general rule, however, is subject to modification where the equity of junior encumbrances requires it. Thus it is a familiar principle, that where a creditor has a lien upon two funds, and a later creditor has a lien upon one only, equity will compel the former to resort to that which will not disappoint the creditor who can resort to but one. The appellees claim, that they have an equity which takes the case out of the general rule above stated. But I am wholly unable to see in what their equity consists. The court below concedes, that if Horning’s executors could have been compelled to resort to the tract conveyed to Joseph R. Hanawalt by John S. Hanawalt, they have a right to come in on this fund, for the reason that they may do voluntarily what the law will compel them to do. It is very clear, that Moore, McWilliams & Co. had an equity which, if asserted, would have compelled Horning’s executors to look to the other lands of Hanawalt for payment before coming upon the tract covered by their mortgage. And this equity is superior to the equity of the appellees, because prior in point of time. If, therefore, Horning’s executors had taken their money out of the proceeds of the sale under the mortgage of Moore, McWilliams & Co., the latter could have successfully claimed to be subrogated to their judgment. This right existed when the mortgage of the appellees was executed, and could not be thereby taken away. It is settled by a line of authority, that where mortgaged land is sold in pieces and at different times, the several pieces are liable for the mortgage debt in the inverse order of their alienation. See Nailer v. Stanley, 10 S. & R. 450; Cowden’s Appeal, 1 Barr 267; Becker v. Kehr, 13 Wright 223; Carpenter v. Koons, 8 Harris 222; Fluck v. Replogle, 1 Id. 405; Lloyd v. Galbraith, 8 Casey 103. The effect of the ruling of the court below is to reverse this order, and place the last purchaser in a superior position to that of the first as regards the payment of a common encumbrance.

I have discussed the point made by the appellees as though they were entitled to raise it. ■ I seriously doubt their right to do so. There is nothing in this record to show that they gave notice to Horning’s executors to take their money out of the fund created by the sale on the Moore, McWilliams & Co. mortgage; or that the executors even knew of the existence of the appellees’ mortgage. A lien-creditor is not bound to search for subsequent encumbrances and is not affected with record notice of them. It was held in Taylor’s Executors v. Maris, 5 Rawle 50, that “ the holder of a judgment, a lien on land, a portion of which is covered by a subsequent mortgage, does not, by releasing a part of the land bound by the judgment, impair his right to be paid out of the remainder, including the portion embraced in the mortgage, unless the mortgagee has distinctly notified him of his mortgage before the release, and cautioned him against doing an act by which the mortgagee’s security may be diminished; and the recording the mortgage is not such notice.” This is a sound and reasonable rule. If the interests of junior lien-creditors require that a prior lien-creditor shall do or omit to do a particular thing, it is clear they should give him notice thereof before they seek to hold him responsible for any such acts or omissions.

We are of opinion that the court below erred in excluding the judgment of Horning’s executor from participation in the fund.

The decree is reversed, and it is ordered that the record be remitted to the court below, with instructions to distribute the fund in accordance with the principles indicated in this opinion ; and that the costs of this appeal be paid by t.he appellees.


text:
    Cross versus The Peach Bottom Railway Co.
    1. An alteration in tbe charter of a railway company, by which the additional privilege is given to the corporation to extend its road, is not such an invasion of the contract of subscription as will relieve the subscriber to the stock from his liability to pay. Gray v. The Monongahela Navigation Co., 2 W. & S. 156, followed.
    2. It seems, that the reservation to the legislature, in the Act of February 19th 1849, regulating railroad companies, to alter or amend any charter granted under said act, was only intended to enable the legislature to act without the consent and against the will of the corporation ; but where the alteration is made on the suggestion of the company, the legislature has nothing to do with the case.
    May 28th 1879.
    Before Sharswood, C. J., Mercur, Gordon, ■Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of York county: Of May Term 1879, No. 164.
    Assumpsit by the Peach Bottom Railway Company' against Thomas G. Cross, to recover the amount of a subscription to the stock of the company plaintiff.
    The Peach Bottom Railway was incorporated by the Act of ■ March 24th 1868, Pamph. L. 778. By the first section thereof, the company was invested with all the powers, and made subject to all the provisions of the Act of February 19th 1849, Pamph.
    • L. 46, entitled an act regulating railroad companies. By the 20th •section of the latter act, the legislature reserves the power to . resume, alter or amend any charter granted under said act.
    By the Act of 7th of April 1873, Pamph. L. 545, a supplement was passed, enacting that the second section of- the act of incor.poration of the Peach Bottom Railway Company, approved the 4th day of March 1868, shall be and is so far altered and supplied, as to authorize and empower said company to lay out, construct and operate the main line of the railroad to the town of Berlin, in the county of Adams.
    Before the passage of this latter act, the defendant subscribed for a number of shares of the stock of the plaintiff company; which enactment he contended, released him from ‘the payment of his subscription. The railway company since this amendment to its charter, never took any steps to extend the road to Berlin.
    The case came before the court below, on exceptions to the report of a referee, James W. Latimer, Esq., who decided that this amendment of the plaintiff’s charter, released defendant from the obligation of paying his subscription.
    The court, Fisher, P. J., in reviewing these exceptions, inter alia, said: “ We agree with the auditor in the view he has taken of the case, except as to the enlargement of the powers of the corporation by the Act of April 7th 1873. * * *
    “ It may, perhaps, be proper here to state, that the Peach Bottom' Railway Company have never, since the amendment to its charter, taken any steps to extend the main line of the railroad to Berlin, in Adams county, and declare that they never intended to do so. In the case of Commonwealth v. Fayette Railroad Co., 5 P. F. Smith 452, it was decided that a railroad company, incorporated -subject to the provisions of the Act of 1849, with a proviso that it should not be taxed until its dividends amount to six per centum per annum, although subsequently a general law declared that all incorporations ay ere to be subject to a tax of one per centum of dividends thereafter declared, Avas taxable under the latter act on a dividend less than six per centum per annum, on •the principle that the reservation in the Act of 1849, became a constituent part of the contract of incorporation.
    “In the case of Union ImproAmment Co. v. Commomvealth, 19 P. F. Smith 140, the same doctrine was held, and the case of Iron City Bank v. Pittsburgh, 1 Wright 340, was approved, in Avhich was decided in substance, the same doctrine as in the above cited case.
    “ In New York there exists a statute similar to our Act of 1849. Under this act it was held in the ease of the Buffalo and New York Railroad Company v. Dudley, 4 Kernan 354, ‘ That the amendment of a charter changing the name of a corporation, and authorizing the extension of the road from Attica to Buffalo, was within the power, as reserved by the legislature in the charter of incorporation, to alter or repeal the act.’
    “ We are of the opinion that these cases take a proper vieAv of the subject, and that judgment ought to be rendered for the plaintiff.”
    The court then entered judgment for plaintiff for f470.30 with costs. The defendant then took this Avrit, and, inter alia, assigned for error the above portion of the charge, and the entry of judgment for plaintiff.

      W. C. Chapman and Cochran f Hay, for plaintiff in error.—
    The cases cited by the court below, were all questions of the power of the legislature to impose taxes on corporations by general laws, notwithstanding they had special provisions that they should only be taxed in certain contingencies. In the New York cases, each charter expressly reserved to the legislature the right at any time to alter, repeal or amend the act. There is no such absolute power vested in the legislature of this state. In reserving, altering or amending our charters, it must be seen that no injustice is done to the corporation. It has been repeatedly held in our courts, that the termini named in a charter are fundamental conditions of the terms of subscription, and that the suj)er-addition of any new enterprise discharges the subscriber: Everhart v. Philadelphia and West Chester Railroad Co., 4 Casey 339; Indiana Turnpike Co. v. Philips, 2 P. & W. 184; Plankroad Co. v. Arndt, 7 Casey 317; Caley v. Phila. and Chester Railroad Co., 30 P. F. Smith 363; Hays v. Commonwealth, 1 Norris 518.

      John Blackford and V. K. Keesey, for defendant in error.—
    The reserved right of the granting power to “ resume, alter or amend” the charter of the plaintiff below», was as much a part of the contract to which the defendant below subscribed, as if the very language of the Act of 1849, suy>ra, had been engrafted into the charter: Suydam v. Moore, 8 Barb. 358; Oliver Lee & Co.’s Bank, 7 Sm. (N. Y.) 21; In the matter of the Reciprocity Bank, 22 Id. 9; Fitchburgh Railroad Co. v. Grand Junction Railroad Co., 4 Allen 198-205. This reserved right to amend, alter or repeal, includes authority to withdraw powers granted to a .corporation, and to confer new powers upon it, and require the exercise of such new powers. It is independent of the assent of the corporation: Mayor, &c., v. Norwich, &c., Railroad Co., 109 Mass. 103; The City of Roxbury v. Boston, &c., Railroad Co., 6 Cush. 424; Mass. Statutes 1831, p. 613. Its exercise does not impair the obligation of the contract; Commonwealth v. Fayette County Railroad Co., 5 P. F. Smith 454; Union Improvement Co. v. Commonwealth, 19 Id. 140; Fell v. McHenry, 6 Wright 41-9; Tomlinson v. Jessup, 15 Wall. 454; Tomlinson v. Branch, Id. 460; Holyoke v. Lyman, Id. 500; Miller v. The State, Id. 478.
    The defendant subscribed to the stock subject to the contingency, that additional powers might be conferred by an amendment to the charter: Schenectady, &c., Plank-road Co. v. Thatcher, 1 Kernan 102; Buffalo and New York Railroad Co. v. Dudley, 14 N. Y. 336; Northern Railway Co. v. Miller, 10 Barb. 260.
    But it is suggested by the plaintiff here, that the reserved right of the legislature of Pennsylvania to resume, alter or amend, is restricted by the proviso “ that in resuming, altering or amending said charters, . no injustice shall be done to- the corporators.” Grant this to be so, where is .the injustice done to Thomas G. Cross by this amendment? Certainly to show that, was incumbent upon him : Northern Railroad Co. v. Miller, 10 Barb. 260; Schenectady, &c., Railroad Co. v. Thatcher, 1 Kernan 109.
    June 23d 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

Whilst we agree with the judgment of the court below, we cannot approve of some of the reasoning which leads to that judgment. We do not think it follows that because this railway company was, in its erection, made subject to the Act of 1849, in which act the power is reserved to alter or amend any charter granted under it, that a subscriber to its stock would be held to payment, notwithstanding some material change might be made in the organization or powers of the corporation. It is not legislative power that we have to regard, but the contract of the subscriber. The legislative reservation is in the nature of a police power designed for the protection of the public welfare, and where such protection becomes necessary, the law-making power may act without consulting either the interests or will of the company, and in such case it may well be that, not only the company, but its stockholders, must submit to the legislation thus imposed upon them. Where, however, this legislation results from the motion, and for the benefit of the corporation, the case is different; for when an alteration in the charter is made on the suggestion of the company itself, the Act of 1849 has nothing to do -with the ease; the legislature always had such power. The reservation in the act just named, was only intended to enable the legislature to act without the consent and against the will of the corporation.

It is manifest, therefore, that in considering the'case in hand, we must leave this act out of the question, for, by the finding of the referee, the supplement of 1873 was made for and accepted by the company.

It is certain, then, that if this supplement had made a material change in either of the termini of the road, or if the alteration in the charter were so extensive and radical as to superadd to the oi’iginal undertaking an entirely new enterprise, the case ivould be governed by the rulings found in the Turnpike-road Co. v. Phillips, 2 P. & W. 184, and the Turnpike-road Co. v. Arndt, 7 Casey 317, and the plaintiff could not recover. But we cannot see that the supplement works any such change or alteration.

It confers upon the company an additional privilege, in that, it authorizes it to extend its main line to the town of Berlin, in the county of Adams, but,- if we understand the case, this interferes with neither of the present termini. If, for example, the defendant was interested in one or both the terminal points now reached by the road, these points, notwithstanding the railway should hereafter be extended to Berlin, would still be reached by the road; neither of them would be affected or cut off from the line of improvement. The additional power conferred upon the company is only that of extension, and it in no way interferes with the rights of the defendant as vested in him by the contract of subscription. It follows that the governing rule is that found in Gray v. The Monongahela Navigation Co., 2 W. & S. 156, to wit: “ An alteration in a charter of incorporation, by which additional privileges are given to it, is not such an invasion of the contract of subscription as will relieve the subscriber to its stock from his liability to pay.” The language used by Chief Justice Gibson, in the case cited, is so thoroughly applicable to the one in hand, that we have but to adopt it in order to fully dispose of the question in controversy. “ In this instance then what has the legislature of Pennsylvania done ? It has not pretended to take away any corporate franchise, or to impinge upon any right before granted. That is not pretended. On the contrary it has enlarged a corporate privilege. But the exercise of it, it is alleged, may plunge the company into an expense not originally contemplated. What of that ? The defendant is not hound to contribute to it beyond the amount of his original subscription, and; as to that, his contract remains the same. But it is said that by taking off the limitation of the company’s expenditure, the legislature has altered its power to incur responsibility for greater damages than it otherwise could have done. In that lie's the fallacy. The legislature has not made it incumbent on the company to use the additional privilege granted to it, but it has left the use of it to its discretion. It may, in fact, never use it, and whether it shall .do so, will depend on the volition of the defendant’s corporate- agents, the president and managers, by whose acts he is necessarily to be bound as his own, even in the modification of the charter for the public good, provided it does not extend to a change of the structure of the association, as was attempted in'the Indiana and Ebensburg Turnpike v. Phillips, 2 P. & W. 184.”

The applicability of all this language to the case in hand will appear in the mention of a few of the facts: The supplement of 1873 only confers the power upon the company to extend its road to Berlin ; it has, however, as yet not availed itself of that power; it may never do so, but if it does the defendant is not hound to contribute to the expenses necessary to accomplish such extension. The power is a discretionary one, and if it is ever exercised it must be so exercised only at the will of the defendant’s corporate agents, the president and managers of the corporation. As, however, the case stands ah the present time, the defendant is asked to pay for nothing that he did not contract to pay for, that is, the building of the road as it now exists; this he agreed to do, and it is but right that he be held to his bargain.

The judgment is affirmed.