text:
    Detwiler’s Appeal.
    A voluntary assignment for the benefit of creditors does not impose upon the assignee any duty to let the real estate, and where an assignee permits the assignor to remain in possession and use the real estate he is not chargeable with the rental thereof.
    November 16th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Appeal from the Court of Common Pleas, of Fayette county: Of October and November Term 1879, No. 368.

      Appeal of John S. Detwiler, assignee for th? benefit of creditors of Samuel Detwiler, from the decree of the court confirming the report of the auditor appointed to pass upon the exceptions to the account of said assignee.
    On April 22d 1876, Samuel Detwiler executed a voluntary-assignment of his real and personal estate to John S. Detwiler, in trust to sell, &c., for the benefit of the creditors of the assignor. When the assignment was made there were several judgments against the assignor, which were liens on the lands, and other judgment liens were obtained soon thereafter. The real estate assigned consisted of four farms, on one of which the assignor lived, and on which he had erected a grist and saw-mill. After the assignment he remained .in possession of the farms and continued to run the mills and farm the land with the men in his employ. The assignee took no possession of the real estate and. received no rent therefor. On the 3d of May 1878, two years after the assignment, none of the lands yet being sold, the assignee filed his account of the personal estate which he had received. Exceptions were filed thereto and an auditor, Daniel Downer, Esq., was appointed to pass thereon. He made a report wherein he surcharged the assignor with the sum of $2935, the estimated rents which the real estate and said mills would have produced had they been let. Exceptions were filed to this report, which the court dismissed, and confirmed the report in an opinion saying: “We do not see how the assignee can be relieved from liability for rents of the real estate conveyed to him in the deed of assignment, and included in the appraisement. If he permitted the assignee to remain in the actual occupancy of the real estate, using and enjoying the’ profits thereof, we must conclude that the assignor did so as the agent of the assignee, otherwise the assignee failed in the proper discharge of his duty in not taking possession óf said real estate. He seems to have considered that the property was in his possession, as he paid the taxes on it, and also paid the insurance on the buildings; and for such payments he has been allowed a credit in his account.”
    From the decree of the court confirming this report this appeal was taken.

      Boyle & Mestrezat, for appellant.
    An assignee for the benefit of creditors is created for a certain purpose, and that is specified in the instrument that transfers to him the property. He receives the personal and real estate for the same purpose, that is, to sell and dispose of, and with the proceeds thereof to liquidate the claims against the assignor. He is not made a trustee to hold property assigned to him, and to rent it, but is the “ hand only of the assignor, through which the latter distributes his property :” Wright v. Wigton, 5 W. N. C. 30; Fulton’s Estate, 1 P. F. Smith 211. He is like an executor with a naked power to sell: Estate of John Myers, 9 Phila. R. 310; Blight v. Wright, 1 Id. 549; Chew v. Nicklin, 9 Wright 87; Grump’s Estate, 34 Leg. Int. 150.

      D. Kaine, for appellees.
    By the deed of assignment, the estate of Samuel Detwiler vested in the trustee immediately on its execution and delivery, and it was his duty to have taken possession of it. Six months afterwards he sold the personal property, and never did anything with the real estate, but allowed his brother to occupy and use it. If the assignee in this case did not take possession of the property as required of him by law, he must account for its value. It was his duty under the 34th section of the Act of June 16th 1836, Pámph. L. 737, to take the real estate into his possession. He should have applied to the court, under the Act of February 17th 1876, Pamph. L. 4, and obtained an order to sell.
   Mr. Justice Mercur

delivered the opinion of the court, January 3d 1881.

This contention relates to the liability of the appellant for rent of the real estate assigned to him for the benefit of creditors. In April 1876, Samuel Detwiler executed a voluntary assignment of his real and personal estate to the appellant in trust for the latter to sell and dispose of the same, and if any part thereof remained, after paying the debts of the assignor, to deliver over and reconvey the same to him. At the time the assignment was made there were several judgments against the assignor, which were liens on the lands assigned, and other judgment liens thereon to a large amount were obtained soon afterwards. The assignor retained possession of the real estate. The appellant took no possession thereof and received no rent therefrom. On settling his account of the personal estate which he had received exceptions were filed thereto, the main ones being for his not having charged himself with the value of the rents of the real estate. The court held him liable therefor and decreed accordingly. This is assigned for error.

The eorréctness of this decree must be ascertained by a consideration of the effect of the assignment and of the duty thereby imposed on the assignee.

ít is well settled that a voluntary assignee is the mere representative of the assignor, enjoying his rights only and is bound where he would be bound. .Neither he, nor the creditors for whom he holds the property in trust, are purchasers for value. They are not parties to the deed. They have not relinquished anything in compensation for the benefits of the trust. They have not agreed to look to the property assigned for the satisfaction of their claims. They have no title to the property itself. They acquire a right only to enforce the duty undertaken by the assignee: Twelves v. Williams, 3 Whart. 485; Jefferis’s Appeal, 9 Casey 39; Fulton’s Estate, 1 P. F. Smith 204; Wright v. Wigton, 3 Norris 163; Morris’s Appeal, 7 Id. 368.

The assignment on its face does not impose on the assignee any duty to let the real estate. It was liable at any time to be sold by virtue of executions on the judgment liens. Any attempted letting must have been for a time of uncertain duration. A lien-creditor could proceed at his will to sell the real estate. Other creditors on application to court could enforce a sale. In view of the fact that no creditor caused a sale to be made, the presumption is that no sale was desired while the value of real estate was so much depreciated.

It is contended that inasmuch as the thirty-fourth section of the Act of 16th June 1836, Purd. Dig. 782, vests the estate in the assignee, and makes it his duty to take possession of the property, if he fails so to do, he is liable to the creditors for an amount equal to the value of the rents. At first sight this section might produce such impression on the mind. In general terms it deals with all the property assigned and gives a right of possession. It then stops. It does not profess to declare or define the duties of the assignee after he has taken possession of the land. A previous section of the same act had already defined his duty to be to convert the real and personal estate of such insolvent into cashAct of 16th June 1836, Purd. Dig. 780, pi. 32. Thus the manifest intent of the act is to give a power of sale not a power to let. The object of the assignment is to convert the property by sale, and not for the assignee to work the land or let it to others. His position is similar to that of an executor with a naked power of sale, yet we are not aware he has ever been held liable for rents not received. A creditor cannot rest on his rights, refrain from all action to induce a sale, and thus charge the assignee with rents which he never received. The learned judge therefore erred in surcharging the appellant with rents not received, and the decree must be modified accordingly.

And now it is ordered and decreed that the sum of $2935 be stricken from the sum adjudged to be in the hands of the appellant, and the residue, being $7487.03, be and hereby is adjudged and decreed to be the true sum due from him. ' So modified, the decree is affirmed. It is further ordered that the costs of this appeal be paid out of the fund.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Monongahela National Bank versus Overholt.
    1. The right of action to recover double the amount of usurious interest paid to a national bank, as provided by sect. 5197 of the National Banking Act, accrues upon the actual payment by the borrower of the amount of the illegal interest to the bank, and can be maintained whether the debt has been paid or not.
    2. Plaintiff brought an action to reoover such illegal interest after his discharge in bankruptcy. Held, that he could not recover, as the right of action passed to and vested in the assignee.
    November 17th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrbtt and Green, JJ. Sharswood, 0. J., absent.
    Error to the Court of Common Pleas of Fayette county: Of October and November Term 1880, No. 295.
    Debt by Isaac F. Overholt against the Monongahela National Bank of Brownsville. The defendant is a national bank. On March 11th 1876, it discounted a note for the plaintiff payable four months after date, for the sum of $2400, and charged him a discount at the rate of nine per cent, per annum. This note was renewed from time to time at the same rate of interest, up to November 26th 1877, when it went to protest. On the 23d of August 1876, it discounted another note for him, payable four months after date, for the sum of $2100, at the same rate of interest, which was renewed from time to time until the 1st of January 1878, when it also went to protest. Neither of these notes was ever paid, the maker and endorsers all being insolvent. This suit was brought by Overholt against the bank to recover back double the amount of interest or discount paid on these two notes, and the several renewals thereof, within two years from the bringing of this suit, viz., March 11th 1879. The total amount claimed was $622.72. On the 25th of June 1878, the plaintiff went into bankruptcy and obtained his final discharge on the 7th of February 1879.
    The second point of the plaintiff which the court, Willson, P. J., affirmed, was as follows :
    The plaintiff is entitled to recover from defendant double the amount of all interest or discount paid by plaintiff within two years previous to the inception of this action, when such interest and discount were ih excess of six per cent., the legal rate of interest. (First assignment of error.)
    The first and second points of the. defendant, which the court refused, were as follows :
    1. That the notes on which the usurious 'interest is claimed, never having been paid, the plaintiff is not entitled to recover. (Second assignment.)
    2. The plaintiff, Isaac F. Overholt, having been discharged as a bankrupt since the usurious interest was paid, he cannot recover. (Third assignment.)
    Verdict for plaintiff, and after judgment thereon the bank took this writ and alleged that the court erred as set forth in the above assignments of error.

      D. Kaine, for plaintiff in error.
    The intention of Congress appears to have been that when national banks received a greater amount of interest than is allowed, they shall forfeit double the sum actually paid in as interest, and that they may recover the principal: Bank v. Garlinghouse, 22 Ohio St. 492; Allen v. Bank, 23 Id. 97; Davis v. Randall, 115 Mass. 547; Central Nat. Bank v. Pratt, Id. 539; Bank v. Dearing, 1 Otto 29. These authorities certainly settle the question, that where none of the debt itself has ever been paid, an action cannot- be sustained for the usurious interest, and sustain the first and second errors assigned. The third assignment of error as to the plaintiff’s right to maintain this action is surely well taken. He was declared a bankrupt on the 28th of June 1878. He was discharged a bankrupt on the 7th of February 1879, and brought this suit on the 11th of March 1879. It is said this is a penalty. Be it so. The right of an individual to a penalty incurred under a statute is a civil cause, and is an action for money and passes to the assignee who can claim whatever the bankrupt could : Fiske v. Hunt, 2 Story 582; Musor v. Kendall, 3 Id. 507. The assignee takes such estate as the bankrupt had a beneficial as well as a legal interest in, and which is to be applied to the payment of his debts: Rhoades v. Blackiston,106 Mass. 334. If the bankrupt had any interest here whatever, it was beneficial, legal and vested and passed to his assignee, and he had no right of action.

      R. H. Lindsey, for defendant in error.
    No one questions the right of the bank to sue the borrower for the principal, but that right is entirely separate and distinct from and independent of the right of the borrower to institute a suit for the penalty. Suppose the note was renewed for four years at the time the usurious interest was paid. The statute -requires the suit for the penalty to be brought within two years from the time the usurious transaction occurred. Will it be contended that the borrower could not. bring a suit within the two years for the penalty because the principal had not been paid ? The authorities are numerous to the effect that the offence.is consummated when any payment of usurious interest has been made. The offence is complete when more than legal interest is received: Agnew v. McElhare, 6 Harris 487; Oyster v. Longnecker, 4 Id. 269; Seawell v. Shomberger, 2 Murphy (N. C.) 200; Commonwealth v. Frost, 5 Mass. 53. The right to sue for the penalty is vested in the borrower alone, by the express words of the statute. He can exercise the right or neglect it if he sees fit. Nobody else can exercise it; it is wholly personal and cannot vest in an assignee: In re Patterson, 1 Nat. Bank Reg. 125; Appold’s Estate, 7 A. L. R. (N. S.) 627; In re Fuller, 4 Nat. Bank Reg. 116; Brombey v. Smith, 5 Id. 152; Wheelock v. Lee, 64 N. Y. 242.
   Mr. Justice Trunkey

delivered the opinion of the court, November 26th 1881.

Section 5191 of the National Banking Act, R. S. U. S., prescribes the rates of interest which banks may receive. The next section is: “ The taking, receiving, reserving or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or legal representatives, may recover back in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same'; provided such action is commenced within two years from the time the usurious transaction occurred.”

Upon the actual payment by the borrower and receipt of the illegal interest by the bank, the right of action accrues, and can be maintained, whether the debt has been paid or not. This cannot be more clearly expressed than in the words of the statute, and decisions under other statutes, having little similarity to this, do not warrant departure from the plain meaning of the remedial and punitory provision.

On June 25th 1878 the plaintiff presented his petition for adjudication in bankruptcy, and he was duly discharged on February 7th 1879.' This action was commenced after his discharge, and the usurious transaction occurred prior to his petition for adjudication. Did the right of action pass as part of his estate to the assignee ? The broad and comprehensive terms of the Bankrupt Act vest in the assignee for creditors the entire estate of the bankrupt debtor, except exemptions which are intended to protect him and his family from temporary distress. All debts due him, all rights in equity, choses in action, and rights of action arising from contract, or from the unlawful taking or detention or injury to the property of the bankrupt, pass at once to the assignee on his appointment, in virtue of the adjudication in bankruptcy. The assignee has like remedy to recover all the estate, debts and effects in his own name as the debtor might have had if the decree in bankruptcy had not been rendered and no assignment been made. Rights of action for torts to the debtor’s person do not pass, nor the right to sue for a penalty ; these are not assignable.

It must be conceded that the sum which may be recovered from an association, where illegal interest has been paid, is so penal in its character that it is commonly called a penalty. But is not the act in strictness more remedial than penal ? Taking interest beyond the prescribed rates is not a criminal offence, does not forfeit the debt, or give a qui tarn action to an informer, is not denounced by pains and penalties as was usury by the common law or ancient statutes. Nor is the right limited to the person who paid the excessive interest, for it may pass to his legal representative; and in this respect it is not treated as a penalty, or tort to the person. He may recover back twice the amount of interest thus paid by action in the nature of debt, and this is akin to double, or treble damages for injuries, allowed by certain statutes for the twofold purpose of compensation and example. In actions at common law exemplary damages are frequently recovered. The only vindicatory part of the statute as respects usury, is that providing remedies for the borrower against the association which has exacted illegal interest. These operate to recompense the borrower and punish the lender for the wrong done. Enough of the old doctrine of usury pervades the statute to place the borrower, who has paid or agreed to pay excessive interest, in the light of one injured in his property; but the lender is not made a criminal.

Decisions of the federal courts are conflicting on the question whether the right of action vests in the assignee. As advised, it has not been decided by the United States Supreme Court. Among the cases in the district courts, where it has been held that the assignee of a bankrupt cannot maintain the action, is Brombey v. Smith, 5 Nat. Bank Rep. 152. On the other hand, in Crocker v. First National Bank of Chetopa, 3 Cen. L. Jour. 527, Dillon, C. J., ruled that the right passed, to the assignee, saying: “ It is our opinion that the assignee in bankruptcy -is, in respect of such a claim as this, which has injuriously affected and reduced the estate in bankruptcy, and which is to be enforced by an action in the nature of an action of debt, peculiarly and most appropriately the legal representative of the bankrupt. Every reason which in case of the death of the debtor, without bankruptcy, would give the right of action to his administrator or executor as his legal representative, applies with full force to the assignee in bankruptcy, if his estate-is, during his lifetime, administered in a court of bankruptcy.” A number of cases are, to same purpose, among them Wright v. First National Bank of Greensburg, 18 Nat. Bank Rep. 87.

Nichols et al. v. Bellows, 22 Vt. 581, a case under the usury laws of Vermont, seems to support the view that the action is not assignable. In Gray v. Bennett, 3 Met. (Mass.) 522, a well considered case, it was decided that an insolvent debtor’s right of action for recovery of threefold the amount of interest paid by him on a usurious contract, passes by the assignment of his estate, and his assignee may maintain a bill in equity to recover it. It was there claimed that the statute forfeiting threefold the amount of interest reserved, being in its nature penal, it resolves the demand into a mere claim for redress for a personal tort, which cannot be assigned. But the court, upon a careful review of the cases touching the principle, held that the' threefold act, while penal to some extent in its consequences, is so far remedial that it has the like privilege of liberal construction with those statutes which are wholly remedial; that the interest of the insolvent debtor was a vested interest and not a mere personal right, and unless it can be clearly shown by the statute that such an interest was not intended to be passed to the assignee, it becomes, by force of the assignment, vested in him.

The weight of authority, and what we deem the better reasoning, impel to the conclusion that the bankrupt had a vested interest under the statute giving him a right .to recover back twice the amount of interest he had paid, and that it was vested in the assignee in virtue of the adjudication in bankruptcy. The defendant’s second point should have been affirmed.

Judgment reversed.


author: Mr. Justice Mercur.

text:
    Borough of New Brighton versus United Presbyterian Church.
    1. Under sect. 8, art. 16. of the Constitution of 187.4, and the Act of May 24th 1878, the owners of lots are to be compensated for damages sustained by reason of the authorities of any borough changing the grade of a street;
    2. It was contended that inasmuch as the proprietor of a borough had laid it out into lots and streets, and the borough had never fixed the grade of a particular street, it was not liable' for damages for grading it the first time. Held, that a change from the natural grade was a change of grade just as clearly as if changed from a grade previously made by the authorities and was within the meaning of the statute.
    3. The statute giving compensation is remedial, and gives damages where before none could be recovered, and should receive a liberal construction to effect its object.
    November 17th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Error to the Court of Common Pleas of Beaver county: Of October and November Term 1880, No. 307.
    This was a petition filed November 4th 1878, by the United Presbyterian Church of New Brighton, praying for the appointment of viewers to assess damages sustained by said church to their property abutting on Apple street, in the borough of New Brighton, by reason of the change of the grade of said street by the proper authorities of said borough.
    By agreement of the parties, the case was submitted to the court under the Act of April 22d 1874, who filed the following opinion:

      “ The court proceeded to the trial of the case,, and having fully heard the evidence adduced by the parties and the arguments'of their attorneys, do find the facts to be as follows:—
    “ 1. The plaintiff was and is the owner of a certain lot of ground in the borough of New Brighton, in the county of Beaver, bound on the northeast 60 feet by Fifth street, on the southeast about 210 feet by Apple street, and on the southwest 60 feet by Fourth street, on which is a brick church, 56 feet in length by 40 feet in width, built about the year 1854, and located 9 feet from the line on Apple street and 38 feet from the line of Fifth street; said church being at the time of establishing the grade of Apple street, as hereinafter mentioned, and now used as a place of worship by the plaintiff congregation.
    “ 2. The borough of New Brighton, the defendant corporation, was incorporated by the Act of Assembly 'approved April 16th 1838, and in 1855, by appropriate proceedings in the Court of Quarter Sessions, became subject to the general borough laws of 1851. That portion of the borough in which is located this church lot was laid out into lots by the then owner, Benjamin Townsend, about the year 1840, and the streets bounding the lot in question opened some time afterwards.
    “ Commencing on Fourth street, the western boundary of the lot, and passing eastward, the natural surface of the ground rises very rapidly for a distance of about 100 feet, the ascent or grade being about one foot to four. The other or eastern'portion of the lot is comparatively level.
    “3. A small cut or excavation had been made on Apple street prior to 1878, but the extent of this was insignificant; and by whom done does no.t clearly appear in the evidence, but it would seem it was not done by the borough. The street was so steep as to be impassable by vehicles; no grade had been established by the borough ■ authorities prior to 1878 on this part of Apple street between Fourth and Fifth streets. On the 27th day of July 1878, the borough authorities established the grade for that part of said Apple street between Fourth and Fifth, which is the alleged cause of the injury complained of, to which grade the plaintiff objected. The minutes of council show that a committee, representing the plaintiff, waited upon them to protest against it. The grade was established, however, by council, by which said Apple street is required to be cut down alongside of said church lot as follows : beginning at the intersection of Fourth street at western line of the lot, the cut is 2 5-10 feet; at a point 50 feet distant therefrom eastward 8 6-10 feet; at a point 100 feet distant therefrom 14 6-10 feet; at a point 150 feet distant therefrom 15 8-10 feet; at a point 200 feet distant therefrom 13 3-10 feet, and at the line of Fifth street the cut is 9 9-10 feet. -The grade of Fifth street is not showm in the evidence, nor does it appear that a grade has ever been established thereon ; but to make it accessible from its intersection with Apple street, where the cut is 9 9-10 feet, as stated above, will require an average cut of not less than 5 to 6 feet along the eastern end of the. church lot. Most of the excavation on Apple street, alongside of this lot, has been done, but considerable yet remains to be done to bring the street to the established grade and to the full width of the street.
    “ 4. The lot and street are composed of gravel of a character that will readily crumble and move when cut, the evidence showing that such material will not rest at a grade greater than one and a half base to one rise, as that this deepest cut of 15 8-10 feet, if carried up to the line of lot, would cause the gravel to crumble and fall to a distance of 23 feet on to the lot before it would cease moving, and in this way a considerable portion of the natural surface of the lot next the streets would be destroyed and the available size thereof materially reduced, unless the same was protected by sufficient walls. The lot also will be rendered much more inaccessible except at great expense and inconvenience.
    “ 5. As to the protection of the lot from the. injury resulting from the cutting of the street to the grade established, the mode of protection, the character and strength of the wall sufficient for the purpose, and the cost of the same, the witnesses differ widely. It is clearly established, however, by the evidence, that the church building is endangered by the excavation of the street as it now is, and that if the excavation is carried up to the line of the lot, as required by the grade established, the building must necessarily fall unless protected by a strong wall; but a wall of proper strength may be constructed to protect it. The cost of such a wall as would properly protect the building would be about $1900, an amount that, would hardly be justified in view of the character of the building itself. To protect the balance of the lot so as to maintain the full surface thereof in the same condition as when the grade was established, would require a further outlay of not less than $500 to $600; a less expense might perhaps suffice, but it would be at the expense of reducing the available surface of the lot by terracing or sloping the same, and the weight of the testimony is that the property would not be as desirable or valuable after it was thus protected as it was before. To take the building down and rebuild it in a manner similar to its present structure, but lowered to the grade of the street as established, would cost from $2200 to $2500, and this would riot include the excavation or grading of any portion of the lot except that portion necessary for the site of the building, thus leaving the part of the lot not covered by the building comparatively inaccessible and useless, but in such a case the building thus re-erected would be virtually a new structure, .and much more valuable than the present one.
    “ 6. Turning our attention from the character of the injury and the cost to the plaintiff of protecting against the same and maintaining the property in suitable condition for its present use and purpose, and seeking to ascertain the amount of damages sustained by plaintiff by a comparison of the market value of the property as it stood unaffected by the change produced by the establishing of the grade on the street and the excavation thereof, with the market value thereof as affected thereby, we find a very wide difference in the testimony of the witnesses. Of the witnesses called by the defendant Butler, Bennett and Oorbus speak of the property as worth $1200, putting the lot at $700 to $800, thus leaving the building worth $400 to $500, while the weight of the evidence is that the materials in the building, if taken down, are worth this amount or more. A' comparison of the statements of these witnesses with the statements of the other witnesses, both of plaintiff and defendant, render it quite .evident that they are for some reason quite mistaken in their estimate of the value of the house as it stood before the grade was established. * * * After a careful consideration of all this conflicting testimony, having a due regard to the means and opportunities of the different witnesses to form correct opinions and furnish reliable data on which to base our judgment, we find the value of the property before the grade was established or any excavation done on the street by. the borough authorities, to b<^$2500, and that having due regard to and making a just allowance for all the advantages which have resulted or seem likely to result to\he defendant, we find that the damage which has resulted and which ¡seems likely to result to the plaintiff’s property and church lot above\described, by reason of the act of the defendant in changing thg-grade of said street, is the sum of $1500, as of thedat.e-of'-thechanging of the grade as aforesaid.
    “ Such are the facts as determined from the evidence. We next consider the law of the case. That defendant had the right to establish the grade of the street and cause the street to be cut down to the grade, is not and cannot be denied. ’ This right and power the state has conferred by statute, and the power is a reasonable and necessary one, the proper exercise of which is essential to the improvement of the borough and well being of the public. And it may also be taken as established, for it is not a matter for our consideration or determination#that the public good demanded the exercise of that power in the manner it was exercised in this case, but the exercise of that power, as the evidence clearly shows, has caused an injury to the plaintiff, and our question is whether this injury is one for which compensation .may be claimed and recovered against defendant in this proceeding? what are the legal rights of the plaintiff upon the facts? That’plaintiff could not have recovered for the injury complained of prior to the adoption of the new Constitution, is well settled. The well settled interpretation of the provisions of the former Constitution, requiring compensation to be made or secured in all cases where private property was taken, or applied to public use under the right of eminent domain, whether by the state itself or by any other person or corporation to whom that right has been delegated, was that those provisions did not embrace a case like the present, where there was no actual taking, although the injury consequent upon the acts done frequently amounted to a serious diminution if not a total destruction of the value of the property affected thereby : Green v. Borough of Reading, 9 Wall. 382; Philadelphia v. Trenton Railroad Co., 6 Whart. 25; O’Conner v. Pittsburgh, 6 Harris 189; In re Ridge Street, 5 Casey 391, and many other cases. But the provisions of the present Constitution on this subject differ materially from those of the former. While the former forbade the taking or application of private property to public use, without just compensation, and declared that the legislature should not invest any corporate body or individual with the privilege of taking private property for public use without requiring compensation to be made or secured to the owner, the present, by the eighth section of the sixteenth article, makes it obligatory upon municipal or other corporations invested with such privilege, to make or secure just compensation, not only for property taken, but for property injured or destroyed by the construction or enlargements of their works, highways or improvements. Here is an evident purpose to extend the right of compensation to cases not embraced in the corresponding provisions in the former Constitution, to meet and prevent the recurrence of the well-known hardships and injustice that had occurred in many prior cases. The language used is so broad and comprehensive as to meet every ease, and afford full protection to the citizen whenever his right of private property is interfered with and he made to suffer loss by the exercise of the sovereign power of the state for the benefit of the public.
    “ Such being the manifest purpose of the new Constitution in the changes made in the provisions on this subject, the citizen is entitled to the protection it affords, and has a right to demand compensation whenever he shows he has sustained an injury embraced within that provision. The plaintiff’s claim seems to be clearly embraced therein. The defendant being invested with the right to take private property for public use, has in the establishment of a grade on an excavation of Apple street caused an injury to the plaintiff’s property abutting thereon. But although the case in this respect be within the spirit and letter of the Constitution, and the plaintiff’s right to compensation for the injury clearly declared therein, what are the means provided for enforcing that right? This proceeding is under the act to provide for appointing viewers to assess damages where streets and alleys,are changed in grade or location in the several boroughs of the Commonwealth, approved May 24th-1878, and which enacts that in all cases where the proper authorities of any borough have or may hereafter change the grade or lines of any street or alley, or in any way alter or enlarge the same, thereby causing damage to the owners of any property abutting thereon, the Court of Common Pleas shall appoint viewers to assess the damages, &c. Eor the defendant it is claimed that plaintiff’s case does not come within this statute, for the reason that the borough had not fixed nor regulated the grade of the street in question by any ordinance or otherwise, nor done any work thereon prior to the passage of the ordinance establishing the grade complained of; that up to that time said street had remained in all respects in tlie same condition as when dedicated to public use by David Townsend, so that no change was or could be made in the grade of the street by the act of defendant, and as the statute only provided for cases where there has been a change of grade there can'be no recovery in this proceeding. We deem this too narrow a construction of this statute. The obvious purpose of the legislature in its enactment was to provide the necessary means for carrying into effect the provisions of the new Constitution above cited, in respect.to injuries caused by the act of borough authorities in changing streets or alleys. The terms in which the act is expressed are perhaps not as clear as might have been used; but since the purpose and terms of the Constitution clearly embrace the case, we should, if the language will at all permit, give the statute such an interpretation as will further that purpose, and enable the citizen to avail himself of his constitutional rights, rather than an interpretation which would retard or deprive him of that right. It is true the borough authorities had never fixed any degree of assent or descent to which the street should be brought by excavation for the more convenient use of it by the public, and this is what is understood by establishing the grade as applied to this grade; neither had anything been done upon it by said authorities by way of excavation or otherwise to change or reduce the natural steepness of the grade or ascent, yet we think it would be doing no violence to the meaning of the term ‘ grade’ as used in this statute, to hold that it may properly be applied to this street as indicating its condition with reference to the degree of ascent or descent thereof, as it was prior to the action of the borough authorities determining to what less degree of ascent or descent it should be brought by excavation, and that a change of grade may properly be predicated of the action' of those authorities in declaring that a change should be made in the degree of ascent or descent as it then existed and the same reduced. It seems to us the language of this statute may rightly be so understood and that such is the fair and reasonable interpretation of it in view of the provisions of the Constitution and the evident purpose of the statute to give effect to that provision. We are of opinion, therefore, that the plaintiff properly asserted in its petition that the borough authorities had changed the grade of Apple street, and that their action in passing the ordinance of July 27 th 1878, in reference to the grade and the excavation done in pursuance thereof, was clearly an alteration of that street, and within the superadded clause in the statute, or in any way alter or enlarge’ any street or alley. The counsel for the defendant ask us to affirm the proposition contained in their points submitted, viz.: 1. If the court find as a fact in this case that the proper authorities of the borough of New Brighton at no time prior to the ordinance of July 27th 1878, regulated or fixed the grade of that part of Apple street whereon the plaintiff’s property abuts, there.can be no recovery of damages in this proceeding; and 2. If the court find as a fact that Apple street, where the plaintiff’s property abuts thereon, was at the time of the making of said ordinance in the same condition as to grade as when dedicated to public use by David Townsend, and that the borough authorities had neither by work done on the ground, nor by resolution, ordinance or otherwise, fixed any other grade than that complained of in this'Suit, the plaintiff is not entitled to recover, as change of the grade of a street within the meaning of the Act of 24th May 1878, implies that a different grade had previously been established by the competent authority.

      “ The facts stated in these points are true, and the propositions of law asked to be affirmed thereof, are the same we have been, considering; but they are here formally stated in order that we may fully comply with the requirements of the statute under which the case had been tried. We decline to affirm these points, and hold that there is nothing in the facts that will prevent a recovery; that the plaintiff’s case comes within the provisions of the Constitution and of the statute under which the proceedings were instituted, and it is entitled to recover. We therefore find in favor of the plaintiff $1500 damages as of the date of July 29th 1878, the date of the resolution fixing the grade (and at which time a portion at least of the excavation had been done, the evidence not fixing the time definitely) with interest thereon from that date, $166.50, making $1666.50, and order and direct that this finding and decision be filed by the prothonotary, and notice thereof given forthwith to the parties or their attorneys, and that if no exceptions be filed hereto within thirty days after the- service of such notices, that judgment be entered by him on said finding for said sum of $1666.50 in favor of plaintiff, and against defendant, with costs of suit.”
    To this finding and judgment of the court the defendant filed exceptions, which the eourt overruled, and entered judgment for the plaintiff for $1666.50. The borough took this writ and alleged that the court erred in refusing to affirm the points it submitted.

      W. S. Morlan and S. B. Wilson, for plaintiff in error.
    Where a street was laid out by the owner of property thirty years ago,-and was dedicated to the use of the public by him and accepted by them, it is a public highway, and purchasers from the original proprietor have no other rights in it than the adjoining owners have in any other street, whether opened according to law or dedicated to the public use by the owner of the soil: Mercer et al. v. The Pittsburgh, Fort Wayne and Chicago Railroad Co., 12 Casey 99. And we take it that the purchaser has no other or greater rights as against the public, than the original proprietor had after the dedication.
    This is not a taking of property, neither is it an enlargement, as the street is neither widened nor lengthened; the work complained of is changing the grade, and the street in fact was cut down to a six degree grade; but was that such an enlargement as is meant in the Constitution ? Was it doing anything more than was contemplated between David Townsend and the public at the time of the dedication should and must necessarily be done to carry out the purpose of the dedication, and for which damages were tacitly waived ?
    To bring a case within the Act of 1878 there must be a change or alteration in the grade from what it was originally made. Therefore the word grade, when applied .to a road, means it has a fixed condition ; either naturally or artificially, fit for travel of all kinds, but where it is steep naturally, as to be unfit for travel, it has no grade, and to level it down to a proper degree of elevation is to fix or make a grade, and not to change a grade as claimed by defendant in error.

      Frank Wilson and J. R. Harrah, for defendant in error.
    The plaintiff admits that there was no passable highway along the line of defendant’s lot until 1878, but merely a place where one could be, and was likely to be constructed. Is the construction of a highway, for injuries resulting from which sect. 8 of the 6th article of the Constitution provides, the mere location and throwing open of a street or road, or does it consist of making such street or road a highway over which the public may pass and repass ? If, then, the constructing or building of a highway is to be compensated for, why is the defendant in this case to be deprived of its constitutional right to just compensation for the injury caused by the construction and enlargement of Apple street ? As to the remedy provided to carry out this section of the Constitution, the Act' of 1878 is evidently framed to that-end. It provides not only for a change of grade, but for any alteration or enlargement of a street or alley whereby damage is caused to the owner of property abutting thereon. This street was not only changed in grade, but was in every way altered; thus Fifth Avenue, in the city of Pittsburgh, was altered, when the cathedral was left inaccessible, and this case appears to be within the mischief the Constitution and Act of 1878 design to remedy. Even without the Act of 1878 we would not be remediless: City of Reading v. Althouse, 12 Norris 400. The Act of 1878 should be liberally and beneficially expounded, so as to suppress the mischief and advance the remedy, inasmuch as it seems quite evident that since the Constitution was adopted the maxim “sic títere tuo ut aliemwm non Icedas,” applies to the public in at least as full force as to private persons. A borough has now no more right to go on to a public street, no difference how required, and dig a pit in front of a citizen’s dwelling without protecting it and paying for injury done, than has an individual.
   Mr. Justice Mercur.

delivered the opinion of the court, November 26th 1880.

It must be conceded that prior to the Constitution of 1874, the defendant in error would have been remediless ; but art. 16, sect. 8, declares, “ Municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by the'construction or enlargement of their works, highways or improvements.” This section thus gives compensation for property injured in the construction or enlargement of highways. The first section o’f the Act of May 24th 1878, Pamph. L. 129, gives effect to the Constitution and defines the liabilities of boroughs within this Commonwealth. It provides “ where the proper authorities of any borough have, or may hereafter change the grade or lines of any street or alley, or in any way alter or enlarge the same, thereby causing damage to the owner or owners of property abutting thereon, without the consent of such owner, or in case they fail to agree with the owners for the proper compensation for the damages so done,” the Court of Common Pleas of the proper county, on application, shall appoint viewers to assess the damages. Under that section damages in this case were assessed. On appeal therefrom trial by jury was -waived and the case submitted to the court, and from the finding thereof and judgment.thereon this writ of error was taken.

The lot of the defendants does abut on a street, and by reason of a change of the grade thereof by the authorities of the borough the damages have been sustained. Why shall not the owner of the lot be compensated ? It is claimed by the plaintiff in error that, inasmuch as the proprietor of that part of the borough laid it out into lots and streets, and the municipality had not before fixed the grade of this street, it is not liable for damages resulting from grading it the first time. Why not ? The proprietor dedicated the street to public use as the grade then existed. The defendant in error so accepted it, and erected a church edifice on the lot abutting thereon. Whether or when the authorities would change the grade was a matter of conjecture. A change from the natural grade is a change of grade just as clearly as if changed from a grade previously made by the authorities. It is presumed to have been made for the public benefit; but, as is found, to the injury of private property. There was no provision by which the authorities could have been compelled to establish the grade of a street thus dedicated before the municipality had accepted it or assumed some authority over it. When the borough accepted- it she took it as it then was, in width, line and grade. This statute giving compensation is remedial. It gives damages where before none could be recovered. It should receive a liberal construction to effect its object. The learned judge was entirely right in holding the borough liable.

Judgment affirmed.

Justice Paxson dissented.


author: Mr. Justice Gordon

text:
    National Bank of Fayette County versus Dushane et al., Administrators.
    1. Where usurious interest has been actually received by a national bank on the renewals of a scries of notes, and the bank brings suit on the last note of the series, such illegal interest cannot be set off by the defendant. The only remedy of the latter is by an action of debt against the bank, under the National Bank Act, to recover the penalty therein prescribed.
    2. The forfeiture of the interest only occurs where illegal interest has been stipulated for but not paid.
    3. Lucas v. The Bank, 28 P. F. Smith 228, Overholt v. The Bank, 1 Norris 490, and kindred cases, overruled, so far as they hold that illegal interest taken by a national bank can be used by way of set-off or payment.
    November 18th 1880.
    Before Mercub, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent. '
    Error to tbe Court of Common Pleas of Fayette county: Of October and November Term 1880, No. 153.
    Assumpsit by the National Bank of Eavette county against Joshua M. Dushane and A. O. D. Tinstman, administrators of the estate of Martin 0. Tinstman, deceased, to recover the balance alleged to be due by the estate of Tinstman on a note made by said Tinstman October 19th 1872, for $5000, payable four months after date to the order of A. Overholt & Co., at said bank and endorsed by said payees. Plaintiff admitted the payment of interest on said note to January -1st 1875, and also a credit of $1519.12 on September 2Qth Í875, and another of $1000’on December 8th 1875.
    The only defence made was that of usury ; to establish which defendants showed that the note in suit w'as the last of a series of notes given in renewal of a loan of $5000 originally obtained by said Tinstman from said bank on March 3d 1870, which notes the bank had regularly discounted at the rate of ten per cent, per annum. The dates, length of time and discount of each note is as follows:

      Date. . Time. Discount paid.

    March 3d’70, . 90 days, . . . .'$130.55
    June 4th ’70, . . . 6 months, . . . 259.72
    Dec. 7th ’70, ... 4 “ ... . 173.60
    April 10th ’71, . . 6 “ . . . 257.66
    Oct. 13 bh ’71, . .' 6 ■ “ . . ' . . 259.72
    April 16th’72, . 6 . . . . 259.72
    Interest and discount paid on note in suit to Jan. 1st ’75, 744.45
    Credits on principal as aforesaid, . . . . 2519.12
    Total amount paid on loan, . . . $4604.54
    Defendants, therefore, claimed that there had been a plain violation of law'in the taking and receiving of discount or interest at a greater rate than six per cent., and submitted’ the following point which the court, Stowe, P. J., of Court of Common Pleas, No. 1, of Allegheny county, holding a special court, affirmed.”
    “ That if the jury find from the evidence that the plaintiff has. charged and received a rate of interest over six per cent, on the note in suit, and -the several notes of which it is a renewal, that the interest-bearing quality of said notes is thereby destroyed, and no interest can be allowed; and that the defendant is entitled to a credit against the face of the note of all payments made'.”
    Verdict for plaintiff for $395.46, the difference between the face of the note and the sum total of the discounts and payments made on the loan from the beginning. After judgment on this verdict the plaintiff took this writ and alleged that the court erred in affirming the defendant’s point.

      Nathaniel Ewing, for plaintiff in error.
    When this case was tried the recognised authority on such questions of usury as were raised here was Lucas et. al. v. Government National Bank of Pottsville, 28 P. F. Smith 228 ; and the court below followed the principles there laid down in affirming the point submitted by the defendants. But since that time both the Supreme Court of the United States and this court—the former in Barnet et. al. v. Muncie National Bank, 8 Otto 555, and the latter in the National Bank of Clarion v. Gruber, 10 Norris 377—have placed a different construction upon the National Banking.Act. These latter cases decide that the usurious interest or discount cannot be applied by way of offset or payment to the note in suit, as was done in this case; but that where such illegal interest has been paid, twice the amount so paid can be recovered in. a penal action of debt, &o. The court, therefore, erred in permitting the defendants to defalk from the face of the note in suit the whole amount paid as interest or discount on the loan from the beginning. As the interest was actually paid in this case, and not merely stipulated for, it is not embraced in the first category defined by the United States Supreme Court in the case of Barnet v. The Bank, above referred to, where the interest-bearing quality of the note is destroyed and only the sum loaned, without interest, can be recovered. Hence we think we are entitled to recover the amount of the note with interest, less the credits admitted.

      Boyle & Mestrezat, for defendants in error.
    By the Act of Congress of June 3d 1864, the entire interest is forfeited whenever usury has been taken, received, reserved or charged. And our position is that the several amounts received by the plaintiff from the defendant were payments on the note, and that plaintiff was entitled to recover the face of the note less these payments-This being a renewal note, the last in a series on all of which usury had been taken, all the interest was forfeited. The authorities cited by plaintiff in error clearly show that the loan and the original note as evidence of it, were not satisfied or paid by the subsequent renewals of the note. The statute had forfeited the entire interest, and as a consequence the note bore none, and whatever sums had been paid the bank were payments on the principal. In Barnet v. National Bank, 8 Otto 555, the second ground of defence was precisely similar to that taken, by us in the case at bar; that the bill in suit was the last of a series, and that illegal interest was taken upon the series, all of which should be applied a-s a payment upon the bill in suit. The Circuit Court in overruling the demurrer to the defence decided that the illegal interest paid on a series of notes could be applied as a payment in an action on the last of the series. The Supreme Court refers to this disposition of the point by the Circuit Court, and indicates no objection to it. The case of the First National Bank v. Gruber, 10 Norris 377, is not a similar case to this one. In that case John Gruber, Sr., brought an action against the bank to recover under the National Bank Act double the amount of certain payments of usurious interest made to the bank within two years prior to the beginning of the action; and also, the excess of interest, over six per cent., on certain other payments of usurious interest made more than two years previous to and within six years of the commencement of the action. -The tenth point of the defendant was as follows : “ There can be no recovery under the evidence as to moneys claimed in this action except as to the penalty.” The court below answered that “ we think there can be recovery for such moneys as were paid by the plaintiff as interest or discount, where such moneys so paid were in excess of six per cent.” 'This court reversed the court below on the authority of Barnett v. The National Bank, supra, and said' that from that case it appears that neither by set-off nor original action can interest, over legal rate paid to a national hank, be recovered except by way of penalty, as prescribed by the Act of Congress of June 3d 1864. We submit that the question of the right to set off usurious interest in a suit brought to enforce the contract was not raised in, nor necessary to a decision of the case of the Bank v. Gruber, and, therefore, anything said in regard to it was merely obiter dicta. This court will not overrule a long line of its decisions unless compelled in clear and explicit terms.
   Mr. Justice Gordon

delivered the opinion of the court, January 3d 1881.

This case, on the authority of the recent decision of the Supreme Court of the United States, Barnett v. The National Bank, 8 Otto 555, must be reversed. It was there held that usurious interest, previously received by a national bank,, though taken in the renewals of a series of bills of which the one in suit was the last, could not be pleaded by way of set-off, and that the only remedy was by an action of debt founded on the penal clause of the. Act of Congress. This case, of course, overrules Lucas v. The Bank, 28 P. F. Smith 228; Overholt v. The Bank, 1 Norris 490, and all cases of a similar character, at least so far as they hold that illegal interest taken by a national bank can be used by way of set-off or payment.

In a transaction like the one in hand, from the ease above cited, it will be found that the defendants’ only remedy was by a penal action for double the illegal interest paid, and that the forfeiture of the interest upon the note only occurs where illegal interest has been stipulated for but .not paid. It follows that the plaintiff should have been permitted to recover the full amount of the note in suit with interest.

Judgment reversed, and a new venire ordered.


author: Mr. Justice Mercur

text:
    Campbell et al. versus The Commonwealth.
    1. Two associate judges not learned in the law sat with the president judge in Fayette eouncy and participated in the trial and sentence of certain defendants for arson. It was not denied that these associate judges acted under and by virtue of an election by the people of the county, and that a commission was regularly issued to them by the governor, hut the validity of their title to the office was questioned on the ground that under the Constitution of 1874, and subsequent legislation, the people had no power to elect associate judges in Fayette county. Held, that they were judges de facto, and as against all parties but the Commonwealth they were judges^ de jure, and having at least a colorable title to these offices their title thereto could not be questioned in any other form than by quo warranto at the suit of the Commonwealth.
    2. Clark v. Commonwealth, 5 Casey 129, followed.
    November 18th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Error to the Oyer and Terminer of Payette county: Of October and November Term 1880, No. 209.
    On the 10th of August 1875, a store-house and out-houses belonging to Messrs. Sturgis and Burchinal, and a groceiy and dwelling-house belonging to E. T. Brownfield, situate in Smithfield, Eayette county, Pa., were, destroyed by fire. On the 18th of January 1879, information was made by Messrs. Sturgis and Burchinal charging the defendants, Benjamin Campbell, Patrick Mona-hon and Hananiah L. Worthington, with felonious arson in setting fire to those houses. On the 8th of March 1879, the defendants were convicted of this offence, and on the 27th of the same month they were sentenced to a confinement of eight years in the peniten ti ary.
    Several exceptions to the admission and rejection of evidence were taken by the defendants during the trial in the court below. These exceptions were submitted to this court immediately after sentence, in order to obtain a stay of execution until they could be more fully presented, but the stay was refused. The defendants regarding this action of the court as conclusive upon the exceptions taken upon the trial, do not now ui'ge these points, but rest their case upon the single question of the legality of the court by which they have been committed to prison. •
    Alpheus E. Willson, President Judge of the Courts of Fayette county, and David W. C. Dumbauld and Griffith Roberts, claiming to be Associate Judges not learned in the law, of the same courts, tried and sentenced the defendants.
    No exception or protest was taken or made to the oi’ganization of the court, but this court has, at the suggestion of the attorney-general of Pennsylvania, issued a writ of quo warranto to’ Judges Dumbauld and Roberts, to test their right to their seats. This writ is still pending. The defendants believing that these judges had no right to sit in the court that tried them, maintained that their conviction and sentence were without authority of law and void, and took this writ, assigning for error the participation of David W. C. Dumbauld and Griffith Roberts as judges in the proceedings of the Court of Oyer and Terminer of Fayette county, Pennsylvania, at March Term 1879, on the 5th, 6th, 7th and 8th days of March 1879.

      Edward Campbell, for plaintiffs in error.
    The sentence in the case at bar cannot- be allowed to stand. It is not the sentence of any court, but the sentence of three men who have no legal authority whatever to sentence anybody. And yet they have conducted a trial, pronounced judgments upon questions of law and fact, and have finally deprived the plaintiffs in error of their liberty for a period of a year and a half, and that period will extend much further unless this court interferes. We submit that no reason-or legal decision prevents such interference: Foust v. The Commonwealth, 9 Casey 338; Kilpatrick v. Commonwealth, 7 Id. 198; Commonwealth v. Zephon, 8 W. & S. 382; Commonwealth v. Shaffner, 2 Pearson 450.
    Section 5 of the fifth article of the Constitution of Pennsylvania, adopted in 1874, reads as follows: “ Whenever a county shall contain forty thousand inhabitants, it shall constitute a separate judicial district, and shall elect one judge learned in the law, and the G-eneral Assembly shall provide for additional judges as the business of the said district may require. Counties containing a population less than is sufficient to constitute separate districts, shall be formed into convenient single districts, or, if necessary, may be attached to contiguous districts, as the General Assembly may provide. The office of associate judge not learned in the law, is abolished in counties forming separate districts ; but the several associate judges in office when this constitution shall be adopted, shall serve for their unexpired terms.”
    On the 14th of April 1834, the state was divided into judicial districts, of which the counties of Washington, Fayette and Greene were made the Fourteenth. On the 23d day 'of January 1866, Washington county was taken from the Fourteenth district and made a part of the Twenty-seventh, leaving the Fourteenth district to be composed of. the counties of Fayette and Greene.
    Matters stood in this way until April 9th 1874, when the legislature, by Act of Assembly, again divided the state into judicial districts. The fourteenth clause of the first section of that act, see Pamphlet Laws, page 54, Purd. Ann. Dig. 1835, is as follows: “ The Fourteenth district, of the county of Fayette, to which the county of G-reene is hereby attached.”
    This establishment of Fayette as a separate • district, was of course done by the legislature because of the fact that the county contained over forty thousand inhabitants.
    If this provision of the state Constitution and this Act of Assembly make Fayette county a separate judicial district, surely it must then follow that associate judges not learned in the law have no right to sit in the Court of Oyer and Terminer, and the sentence pronounced on the plaintiffs in error must be reversed.

      S. L. Mestrezat, District Attorney, for the Commonwealth.
    It no where appears on the record that Dumbauld and Roberts are not judges. They are Judges of the Common Pleas of Fayette county, and are, therefore, Judges of the Oyer and Terminer. These judges are regularly commissioned, and have been exercising their functions for the last five years.
    This is not the proper way to test this matter. It is a collateral proceeding, and the justices having no hearing here, the proper way to determine the question would be by writ of quo warranto to Dumbauld and Roberts. Clark v. Commonwealth, 5 Casey 129, says : “ His plea admits that Judge Jordan is a judge defacto, and if it did not admit this, we would take judicial notice of the legislation which placed him- in the courts of Montour county, so far as to hold him to be a judge de facto. That legislation is at least a colorable title to his office. Can the rights and powers of a judge de facto, with color of title, be questioned in any other form than by quo warranto at the suit of the Commonwealth? Assuredly not. He is a judge de facto, and as against all parties but the Commonwealth, he is a judge de jure also.”
    Keyser v. McKissan, 2 Rawle 139, says: “ The acts of public officers, de facto, coming in by color of title, are good so far as respects the public, but void when for their own benefit.” To the same effect, Kingsberry v. Ledyard, 2 W. & S. 41; Commonwealth ex rel. v. Slifer, 1 Casey 31; Gregg Township v. Jamison, 5 P. F. Smith 473; Foust v. Commonwealth, 9 Casey 343; Commonwealth v. Burrell, 7 Barr 34.
   Mr. Justice Mercur

delivered the opinion of tne court, January 3d 1881.

The plaintiffs in error were tried and convicted of arson. Motions for a new trial and in arrest of judgment were made and overruled. Sentences were pronounced.

No exception was taken, no protest was made, to' the organization of the court, or to the legal qualification of any of its members. No error is assigned to any ruling of the court during the trial, nor to the form of'the sentences. The objection is now made in this court for the first time, that the two associate judges, not learned in the law, sat with the president judge, and participated in the trial and sentence.

It is not denied that these judges professed to act under and by virtue of an election by the people of the county, and a commission in regular form, issued to each of them by the Governor of the Commonwealth. The objection to the validity of their title to the office rests on the allegation that under the Constitution of 1874, and subsequent legislation, the people had no power to elect associate judges in the county of Fayette.

Under due forms of law they hold their offices by title regular on its face. They are performing the duties thereby imposed on them, and enjoying the profits and emoluments thereof. Thus they are judges defacto, and as against all parties but the Commonwealth they are judges de jure. Having at least a colorable title to these offices, their right thereto cannot be questioned in any other form than by quo warranto, at the suit of the Commonwealth: Clark v. Commonwealth, 5 Casey 129. They are entitled to notice and an opportunity to be heard in defence of their rights before they shall be adjudged to be invalid. As their title then cannot be impeached in this collateral action, it is unnecessary to consider any question relating to their right as against the Commonwealth.

Judgment affirmed.


author: Per Curiam.

text:
    Appeal of the Brownsville Deposit and Discount Bank.
    While it has been authoritatively settled that liens digested by a sale made by the assignee of an insolvent, in pursuance of an order of court, cease to draw interest beyond the date of confirmation of the sale to be paid out of the proceeds, yet, if the creditor -whose lien is thus divested, and who is entitled to receive his money, is not then paid- the same, and it is kept or invested afterwards so as to draw interest, it is interest produced by the money to which he was justly entitled, and he can properly claim the interest thus produced.
    November 17th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Stereett and Green, JJ. Sharswood, O. J., absent.
    Appeal ■ from the Court of Common Pleas of Washington county: Of October and November Term 1880,- No. 142.
    Appeal of the Brownsville Deposit and Discount Bank and the Washington Savings Bank from the decree of the Court of Common Pleas of Washington county distributing the assigned estate of Azariah Crow.
    Azariah Crow made an assignment for the benefit of his creditors, his estate consisting of nine several tracts and lots of land and some personal property. The latter being insufficient for the payment of his debts, his assignee made application to sell the land divested of liens under the provisions of the Act of February 17th 1876, Pamph. L. 4. The court granted an order of sale on the usual terms, to wit, one-third of the purchase-money payable on confirmation of sale ; one-third thereof with interest from the date of confirmation, in six months thereafter, and the remaining one-third thereof, with interest from date of confirmation, in twelve months thereafter. In pursuance of said order seven of the said tracts and lots were sold on the prescribed terms. The assignees made report of the sales, which were confirmed by the court August 26th 1878. The assignees then filed their account, charging themselves with the proceeds of sales, taking credit for deferred payments, which was confirmed. Auditors were then appointed to determine claims and prepare schedules of distribution. The total amount of sales of realty, collected and uncollected, less the proper expenses, was $17,992.57, which the auditors were allowed to distribute. This sum embraced only the principal, no interest on the deferred payments being included. This sum was applied by the auditors to the various judgments in their order, including the several judgments of the Washington Savings Bank and a portion of the judgment of the Brownsville Deposit and Discount Bank, with interest to date of confirmation of sale. The latter judgment amounted, with interest, on the day of confirmation of sale, to $4911.68. The real estate fund above stated paid off this amount, $4121.74, leaving a balance to be paid by sale of the remaining real estate. No interest on the purchase-money was included in this distribution. This report was confirmed, without exceptions, May 19th 1879.
    Subsequently the remaining real estate was sold by order of the court for cash. An account was settled and confirmed. In this account the assignees charged themselves with the interest- accruing on the deferred payments of purchase-money, together with royalty on coal mined and rents, amounting to $1151.13, which was made up as follows: Interest on purchase-money, $676.07; rent, $50 ; royalty on coal mined, $425.06. On the confirmation of this second account another distribution was made by the auditors. The following are the material portions of the report of the auditors, Boyd Crumrine and L. R. Smith, Esqs.:
    “ The account (to which no exceptions were filed) now before us embraces a balance of the assigned estate not included in a former account by the same assignees, filed and confirmed on October 14th 1878. The fund embraced in the said former account was distributed by us, as auditors, by a report filed and confirmed nisi May 19th 1879, which is the report hereinafter occasionally referred to.
    “1. The point was made in behalf of certain judgment-creditors whose-liens had received out of former distribution payment in full of debt and interest up to the confirmation of the sale of the real estate which produces the fund, that such creditors were entitled to receive out of the present real estate fund interest upon the principal of the debt after the date of confirmation until they actually received payment. This claim was made especially by I. Y. Hamilton, Esq., representing judgments of James W. Kuntz, in trust.
    “ In our former report the point was decided that the lien-creditors could receive interest only to the date of confirmation of sale, which was August 26th 1878. The distribution was not made, however, until May 19th 1879, while we find as a fact that payment was not actually made to the distributees until on or about July 10th 1879. As a matter of fact, then, the lien-creditors participating in that distribution lost the interest upon their money for almost one year, which was quite an item on some of the judgments.
    “ The decision of your auditors as to this point was not excepted to, and was soon afterwards shown to be correct by three cases decided by the Supreme Court, published for the first time on July 10th 1879, and hereafter referred to.
    “ The land of Azariah Crow, from which the fund at present for distribution was realized, had not been sold at the date of .the former report — was not sold and the sale confirmed until August 21st 1879, as appears from the returns of sale. And the claim is pressed upon us with much force that the lien-creditors who did not receive their money out of the last distribution until say July 10th 1879, and lost the interest thereon from August 26th 1878 to the date of payment, should now receive interest for that period out of the fund now distributed, on the ground that though the sale of the land from which the former fund was realized discharged their liens from that land, yet the liens remained undischarged from the remaining lands of the same debtor subsequently sold, and so remaining, protect the lien-creditors' at least to the extent of the interest lost.
    “ The point undoubtedly is of great weight. For it would seem to be correct that the liens of the judgments were discharged on August 26th 1879, only from the lands of the debtor at that date sold, and not' from the lands remaining unsold. And the lien-creditors, such as participated, having received principal and interest to August 26th 1878, but by payment actually made nearly a year-thereafter, it would seem necessarily to follow that out of the lands against which the liens still remained they should be made whole by receiving the interest for the intermediate period.
    “But if we give to Carver’s Appeal, 8 Norris 276, Tomlinson’s Appeal, 9 Id. 254, and Ilerbst and Buehler’s Appeal, Id. 253, this legitimate effect under a fair construction, is it correct to hold that the 'lien-crcditor who received principal and interest to date of confirmation out of former 'distribution had a lien continuing against the tract then unsold ? We think not, and hold that under those decisions the lien of a judgment must-be considered as discharged from all the debtor’s lands — satisfied—by a sale of the trust lands to the extent it may have received of principal and interest, and that the loss of interest incurred by a lien-creditor is consoled by the thought that it is caused by the law, which is pleasantly supposed to injure no one. And observe, it is distinctly said in Tomlinson’s Appeal, supra, and as a ratio decidendi, that the court has no power to order a sale against the objection of lien-creditors on time, so as unduly to postpone them if stay of execution is ordered. In that case Mercür, J., delivering the opinion, said : ‘ The act requires notice to the lien-creditors, and an opportunity for them to be heard before the sale is ordered. If it is so ordered as to postpone the payment of liens and deprives the owners of interest thereon for a time longer than may be reasonably required to make distribution of the fund, it cannot well be said that the sale is for the ‘ manifest interest’ of such creditors; it is not necessary for the purpose of discharging the lien or of giving an undoubted title to the purchaser. It would therefore be unwarranted by the statute. The payment of so much of the purchase-money as will be sufficient to satisfy the liens divested by the sale should be acquired at the time of confirmation or soon thereafter. ’
    “ From this it follows that, as warranted by the law, the court should order a cash sale only, or at least a sale equivalent thereto, with payments to be made as soon as distribution can be reported; and if a lien-creditor expressly or by his silence assents to a sale on postponed payments, he has himself to blame, for it is the law which appropriates, pays and pro tanto satisfies the judgment-creditor as of the date of confirmation.
    “These considerations force upon us the conclusion that on a sale of one parcel of the realty of a trust estate, the lien of a judgment seeking payment out of it is discharged to the extent of the sum appropriated to the principal, with interest to-the date of confirmation ; to that extent is the judgment paid and satisfied and extinguished, and that in the present case the lien-creditor who has received the principal and interest on former distribution, to the date of confirmation of the sale of the lands which produced the fund against which he claimed, no matter when he actually was paid his money, is presumed to have received it on the day when the law made the appropriation, to wit, August 26th 1878.
    “ As was well suggested by counsel for a late lien-creditor : Suppose there are judgment-liens against A., owing Whiteacre and Blackacre, and that on a sheriff’s sale Whiteacre is sold and the proceeds paid into court for distribution; that a contest arises which is not finally, determined until the Supreme Court has closed the gate, when a lien-creditor will receive his principal, with interest to date of sale only; could the lien- creditor issue execution and sell Blackacre.to recover interest he lost pending the contest over the Whiteacre fund ?
    “ We therefore hold that the claim for interest out of this fund upon judgments which received principal and interest in full to date of confirmation out of the other fund must necessarily be disallowed.
    “ 2. The next question raised relates to the distribution of the fund, $1151.13, made up of interest, rent and royalty on coal. At the time of the former distribution the assignees were chargeable with interest which they were entitled to receive upon,the purchase-money realized from the sales of real estate which had then been made by them and with rents and royalty. The amount was then before us' to be distributed. The fund now before us is made up to a large extent of interest heretofore received upon the deferred payment distributed by the former report. The items constituting the fund have been separated so as, to afford opportunity for exception to our ruling upon the point made, which is :
    “ How is this accrued interest upon purchase-money to be distributed ?
    “It is not disputed, and we think cannot be, that the fund with the exception probably of the items of rent and royalty, being produced by the proceeds of real estate, accretions to that fund should belong to it and be distributed with it to the lien and not to the unsecured creditors. But as to the method of application to the liens these different positions were taken, according with the different interests of the claimants :
    “ 1. The early lien creditors contended that it should be applied to liens at the time of the assignment in the order of their priority until they should have been made whole of the interest lost between the date of confirmation of first sales and the date of actual payment.
    “ 2. The later lien creditors claimed that it should be applied to all the liens participating in the former fund pro rata their several amounts on date of confirmation, on the ground that it should be treated as a fund produced by an investment made by order of court,- and that in such case it would be applied to the pro rata benefit of all lien creditors participating in the principal fund.
    “ 3. The latest lien creditors insisted that it should go to the liens not paid in full by the former distribution, on the ground that those liens which had received principal and interest in full to.date of confirmation of sale were then wholly satisfied, and those which, had received only part payment were satisfied only pro tanto.
    “ Now, if we are correct in our ruling upon the question first discussed, that is as to whether the first lien creditors should receive out of the present fund interest which they had lost out of the former, then we must disallow the claims made upon the present question by the first and latter lien creditors. Because, if in law the lien creditors who received principal and interest in full by an appropriation as of date of confirmation were then satisfied, although' they had lost interest upon their .liens for a period, then undoubtedly they receive nothing further from the estate, either by preference or pro rata. The ruling upon the first question decides points 1 and 2 made on this.
    “ We determine, therefore, that this fund should be added to the real estate fund proper, and be distributed with it to the liens unpaid by former distribution in the order of their priority.
    “.Both of these questions are new to us, and do not seem to have been authoritatively settled by the Supreme Court, unless it be by the principles of the cases hereinbefore referred to. We would be pleased, therefore, to have our rulings reviewed* by exceptions and corrected if erroneous.”
    * Exceptions were filed -to the report of the auditors, and it was alleged they erred in determi*ing that “the interest fund should be added to the real estate fund and be distributed with it to the liens unpaid by the former distribution.” The exceptants claimed that the interest fund should be applied pro rata to all those judgments, or to such part of any judgment as would be entitled to payment out of the fund upon which such interest accrued.
    The court, Hart, P. J., in passing upon the exceptions, filed the following opinion:
    “ The argument of the learned counsel for the exceptants is one of great force, and I might be inclined to yield to it, and decree accordingly, if this were^a case of first impression. It is contended that as to interest on the real estate fund not accounted for at the date of the first distribution, but which accrued and was paid to the assignees after such distribution, it is to be regarded in equity as an accretion, not to the assigned estate in general, but to the principal fund distributed ; and therefore that the law having appropriated the principal fund, and distributed it, eo instanti, that the sale was confirmed — the business of the court, after such confirmation, being, in strictness, not to make, but to ascertain, the legal distribution — any accretions of interest to that fund must belong _ to the lien creditors to whom the law had distributed the principal in the ratio of the amounts so distributed, respectively, to the whole amount of the principal fund.
    “ But I am of opinion, with the auditors, that the question has been -authoritatively settled against the exceptants in the three recent cases cited by the auditors — but more especially in Tomlinson’s Appeal, supra. In that case the sale was confirmed on the 24th December 1877, the terms of sale being ten per cent, of the purchase-money to be paid in cash, and the remainder on the 1st April 1878. The auditor allowed Ilarple, a lien creditor, interest on his judgment to April 1st 1878. The court below confirmed the report; and on appeal to the Supreme Court the decree of confirmation was reversed on this single point — the court holding that interest on liens should be computed to the time of confirmation only, and not to the date of the payment of the purchase-money. Mercur, J., says: “ The precise question was ruled in Carver’s, Appeal, 'decided at the present term, supra. It was there held that the interest should be computed to the time of final confirmation only. * * * We held it was the confirmation of the sale, and not the payment of the purchase-money, which determines the time when interest- shall cease on liens paid out of the proceeds.” To the same effect is Herbst’s Appeal, supra.

    “ As already said, I concur with the auditors as to the bearing of these cases upon the question before us. I understand the construction put by the Supreme Court upon the Act of 1876 to be, in effect, that where a judgment creditor has received from the proceeds of sale of real estate the full amount of his claim, with interest to the date of confirmation, he is to be regarded as paid out — his lien gone — his judgment satisfied — and he has no further claim either against the assigned estate or against the assignor himself. The debt is as fully discharged as though the assignee, had, on the very day of confirmation, paid him the debt, interest and costs in full, and taken his receipt in satisfaction of the judgment. The truth seems to be, in the light of these authorities, and particularly of Tomlinson’s Appeal, that the vice of this proceeding was in the original order to sell on time instead of for cash. And it does not help the matter to say that it was so ordered by general consent of the lien creditors. In this court, hereafter, such time sales will not be allowed, unless it be under very special circumstances and upon very short credit.
    “ It follows frorri what has been said that the exception to the report of the auditors must be overruled and the report confirmed) finally; and it will be decreed accordingly.”
    From this decree this appeal was taken.

      John L. Grow and I. Y. Hamilton, for appellants.
    The appellants claim that the three cases referred to, which were regarded as of binding authority by the auditors and the court below, do not determine the question presented by the present case. It is true that they decide that interest on judgment liens ceases at the date of confirmation of sale ; but the letter of these decisions should not be extended to cover the present case, where a wholly different state of facts exist. The question raised by our appeal is, to whom belongs the interest accruing on purchase-money after confirmation of - sale ? while in Tomlinson’s Appeal there was no interest whatever for distribution, the purchase-money did not bear interest, and the question as to the distribution of an interest fund was not then before this court. The interest in the estate' of Azariah Crow commenced to accrue on the day of the confirmation of sale, after the rights of judgment-creditors had all been fixed and vested, and after full effect had been given to the principle of Tomlinson’s Appeal. Tomlinson’s Appeal leads us to the point where the facts of this case begin, and there is no conflict whatever between those cases and the principle we contend for. Even, as in the present case, where the fund is productive after confirmation of the sale, the principle of Tomlinson’s Appeal applies in order to determine when the debtor ceases to pay interest, and also to determine the share of each creditor in the fund. It is obvious that the formulated statement^of the principle of the cases referred to has reference to the debtor’s rights, and was never intended to be taken so literally as to apply to a case like the present, where the interest accrued after the confirmation of sale ; after the liens were divested; after the appellants acquired a vested interest in the fund; after the debtor and creditor both had the full benefit of the appropriation. But the claim of appellants is not without direct precedent. In Cowden’s Estate, 1 Barr 284, it is held as follow's : “ If interest has been made and received on the moneys or any portion thereof made by the sheriff’s sale, it shall follow and be paid to the parties respectively who shall-be entitled under the decree to receive the principal upon which it shall have been made and received.”
    In Rice’s Appeal, 29 P. F. Smith 208, Mr. Justice Paxson says: “ The interest is the product of the principal. Each of the parties is entitled to interest in exact proportion to his share of the capital earning such interest. So likewise as to the increase of the fund. The rights of the parties to the principal were adjusted as of the day of sale. Since then the fund as a whole has grown or increased a certain amount or percentage, it follows that the share of each creditor entitled to participate in the distribution has grown in a corresponding ratio, and he will be entitled to said increase in the same proportion that the amount of principal awarded him bears to the entire, principal of said fund.” The interest therefore accruing on the purchase-money after the confirmation of sale must be distributed pro rata to those lien-creditors entitled to the principal, and we therefore respectfully submit that the court erred in confirming the auditor’s report.
    No appearance for appellee.
   The judgment of the Supreme Court was entered, November 26th 1880,

Per Curiam.

It is true, as stated by the learned judge, it has been authoritatively settled that liens divested by a sale made by the assignee of an insolvent, in pursuance of an order of court, cease to draw interest beyond the date of confirmation of the sale to be paid out of the sum for which it sold: Carver’s Appeal, 8 Norris 276, and Tomlinson's Appeal, 9 Id. 224. The reason is that the money should then be paid and take the place of the land. The creditor whose lien is thus divested is entitled to receive his money. If it is not then paid to him, and is so kept or invested afterwards as to draw interest, it is interest produced by the money to which he was justly entitled, and he is therefore entitled to the interest thus produoed. It follows that each lien-creditor who was entitled to share in the fund, for which the land sold, is entitled to share in the interest afterwards produced, in proportion to his share in the fund producing the interest: Cowden’s Estate, 1 Barr 267 ; Rice’s Appeal, 29 P. F. Smith 208; Burkholder’s Appeal, 13 Norris 522. The learned judge therefore erred in confirming the report of the auditor as to the distribution of the interest produced by the fund after confirmation of sale.

Decree reversed, and it is ordered that the record be remanded with instructions to decree distribution conformably with this opinion, and that the costs of this appeal be paid out of the fund.