text:
    Hope versus Everhart.
    1. A sale on fi. fa. under a waiver to which the defendant had not capacity to assent, is invalid, if the purchaser be aware of his incapacity.
    2. The Act of February 24th 1806, sect. 28, gives the prothonotary under a warrant of attorney no authority to do anything more than enter judgment for the amount which may appear due on the instrument and the stay mentioned in it.
    3. An obligation was executed with warrant of attorney to confess judgment “ waiving inquisition,” &c., which was noted on the docket with the judgment. Held, that the waiver was no part of the judgment.
    4. The waiver is binding on the defendant, if capable of executing it, but is no part of the warrant, it is the act of the defendant and not the sentence of the law.
    5. After a sale on fi. fa. under the waiver, the defendant was found to be a lunatic, his lunacy antedating the execution of the warrant and waiver. If the purchaser knew that the defendant had not capacity .to assent to a waiver, he took no title by his purchase.
    6. Titles under judicial sales made under legal forms, should not be set aside except on clear proof of such facts as should avoid the sale.
    7. Sect. 28, Act February 24th 1806, considered and construed.
    November — 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Mercer county; Of October and November Term 1871, No. 212.
    This was an action of ejectment for 50 acres of land, brought September 6th 1870, by Richard Hope, a lunatic, by his committee, against A. F. Everhart.
    The case was tried, May 22d 1871, before Trúnkey, P. J. It being admitted that the plaintiff had been the owner of the premises for a long time before May 8th 1863, the plaintiff rested.
    The defendant then offered in evidence the record of a judgment, John Hamilton v. Richard Hope, viz.:—
    “ By virtue of a writing obligatory under seal, dated August 12th 1862, due one day after date, with warrant of attorney annexed, I hereby enter judgment in favor of John Hamilton, plaintiff, and against Richard Hope, defendant, for the sum of seventy-six dollars, with costs of suit and costs of attorney’s commission, and release of all errors, waiving the right of inquisition and benefit of exemption laws, &c.
    “ Filed May 8th 1863.
    “W. Waugh, Prothonotary.”
    The note on which judgment was entered is as follows:—
    “No. 31. $76. Greenfield, August 12th 1862.
    “ One day after date I promise to pay to the order of John Hamilton seventy-six dollars without defalcation, value received from-
    “And I do hereby empower any attorney, of any court of record within the United States or elsewhere, to appear for me and confess judgment against me, as of any term, for above sum, with costs of suit and costs of attorney’s commission, and release of all errors; hereby waiving inquisition, and agreeing to the condemnation of any property that may be levied upon by any execution which may issue forthwith on failure to comply with the conditions hereof; also hereby waiving the benefit of the exemption laws, or any Acts of Assembly relative to executions now in force or hereafter to be passed.
    “ Witness, &c. “ Richard Hope. [l. s.]
    The defendant then offered in evidence the fi. fa. on the foregoing judgment, issued March 25th 1868, to April Term 1868, the sheriff’s levy on the premises in controversy, and return of sheriff attached to the writ that he had sold the premises on the 20th of April 1868 to the defendant for $565, with the sheriff’s deed acknowledged April 23d 1868. The offer was objected to by the plaintiff, admitted by the court, and a bill of exceptions sealed.
    The evidence was then read, and the defendant rested.
    Eor the plaintiff in rebuttal was offered the record of proceedings in lunacy against him, commenced June 22d 1868. The inquisition, which was confirmed August 20th 1868, found that the plaintiff was a lunatic, and had been for twenty years without lucid intervals, and during the time owned the premises in controversy, which were worth $2500, and personal property worth $200, &c.
    The inquest certified, “ that A. F. Everhart and J. W. Hillier, purchasers at private and sheriff’s sale of the real estate of the said Richard Hope, appeared before us in person and by their attorneys, and asked to be heard in defence of the legal capacity of the alleged lunatic, and were so heard.”
    The offer was rejected by the court and a bill of exceptions sealed.
    The verdict was for the defendant.
    The plaintiff took out a writ of error.
    He assigned for error the rulings of the court on the respective offers of evidence.

      McDermitt and Stranahan, for plaintiff in error.
    Sales of land on a fi. fa. are out of the usual course, and should conform more strictly to the statutory rule than if on a vend. exp.: Kelly v. Creen, 3 P. F. Smith 304. Prothonotary is authorized to enter judgment under a warrant to confess, nothing more : Act of February 24th 1806, § 28, 4 Sm. L. 278; 1 Bright. Purd. 825, pi. 32. Sale on fi. fa., without waiver of execution is void: St. Bartholomew’s Ch. v. Wood, 11 P. F. Smith 102. A warrant of attorney by one not sui juris to confess judgment is void: Knox v. Flack, 10 Harris 337; Caldwell v. Walters, 6 Id. 79. One causing an entry to be made on an insane man’s warrant is guilty of fraud: Banning v. Taylor, 12 Harris 293; Campbell v. Kent, 3 Penna. R. 72; Thompson v. Leach, 3 Mod. 310. One guilty of fraud in purchasing takes no title: Hoffman v. Strohecker, 7 Watts 86. Parties by contract can give no other effect to judgments and executions than that which the law attributes to them: Kneeble v. Newcomb, 8 E. Smith (N. Y.) 251.

      J. H. Robinson and W. Stewart, for defendant in error.—
    The plea of lunacy to the original judgment will not avail against a scire facias on it: Henry v. Brothers, 12 Wright 70.
   The opinion of the court was delivered, January 9th 1872, by

Williams, J.

This ease turns on the question whether the waiver of inquisition was a part of the judgment on which the land in controversy was sold. If it was, then the defendant, though a lunatic, was bound by it, and the plaintiffs, who are his committee, cannot question its validity in this action. But if it was no part of the judgment, the defendant, if he was so destitute of reason and understanding as to be incapable of assenting to it, was not hound by it, and the plaintiffs are not estopped from denying the validity of the purchaser’s title under it. A sale on a fi. fa. without waiver of inquisition is without authority and void: St. Bartholomew’s Church v. Wood, 11 P. F. Smith 96; and if so, a sale under a waiver to which the defendant was incapable of assenting, ought not to be regarded as valid if the purchaser was aware of his incapacity.

The act under which the judgment was entered provides that it shall be the duty of the prothonotary of any court of record, within the Commonwealth, on the application of any person being the original holder, or assignee of such holder, of a note, bond or other instrument of writing in which judgment is confessed, or containing a warrant for an attorney at law, or other person, to confess judgment, to enter judgment against the person or persons who executed the same, for the amount, which from the face of the instrument may appear to be due, without the agency of an attorney or declaration filed, with such stay of execution as may be therein mentioned, * * * particularly entering on his docket the date and tenor of the instrument of writing on Avhich the judgment may be founded, which shall have the same force and effect as if a declaration had been filed and judgment confessed by an attorney, or judgment obtained in open court and in term time.

The act, it will be seen, authorizes the prothonotary to enter judgment for the amount which, from the face -of the instrument, may appear to be due, with sucb stay of execution as may be therein mentioned; but it gives no authority to include anything else in the judgment. The direction particularly to enter on his docket the date and tenor of the instrument of writing on which the judgment may be founded, was not intended to enlarge the authority previously given, but to individuate and identify the instrument on which the judgment may be entered. He is not required to enter on his docket an exact copy of the transcript of the instrument; it is sufficient if he sets out its substance and import : Commonwealth v. Conard, 1 Rawle 252. The judgment is in strict conformity with the provisions of the act and the terms of the instrument on which it is entered. The docket-entry, after stating the names of the parties, is as follows: By virtue of a writing obligatory under seal, dated August 12th 1862, due one day after date, withywarrant of attorney annexed, I hereby enter judgment in favor of John Hamilton, plaintiff, and against Bich* ard Hope, defendant, for the sum of $76, with costs of suit and costs of attorney’s commissions and release of all errors, waiving the right of inquisition and benefit of exemption laws, &c.

The judgment is for the amount of the note, with costs of suit and costs of attorney’s commissions and release of all errors as authorized by the warrant of attorney; and the date and tenor or substance of the instrument are entered in due form on the docket. The phrase — “waiving the right of inquisition and benefit of exemption laws, Ac.,” is predicated not of the prothonotary, but of the defendant, and constitutes no part of the judgment. It was not intended as the language and act of the prothonotary, but as descriptive of the tenor of the defendant’s waiver as contained in the instrument on w'hich the judgment was entered. If it was intended as a part of the judgment, then it was not authorized by the Act of Assembly or by the warrant of attorney, and must be regarded as void for want .of authority. The warrant of attorney contains no delegation of authority to waive inquisition or to make the waiver any part of the judgment authorized to be confessed. The waiver of inquisition is the defendant’s own act and was clearly intended to be, and is no more a part of the warrant to confess judgment than if it had been written below it and separately signed. It is binding on the defendant if he was capable of executing it, but it is no part of the warrant of attorney or of the judgment entered in pursuance of it. Where stay of execution is provided for, it is properly a part of the judgment— otherwise execution thereon might be issued forthwith. But waiver of inquisition is not properly a part of the judgment. It is the act of the defendant, and not the sentence of the law as pronounced by the court. It does not operate on the judgment or modify its character. Its whole effect is to modify the proceedings under the execution, and to dispense with inquisition and condemnation where real estate is taken in execution to satisfy the judgment. If then, the defendant was incapable of executing a valid waiver, and if, as offered to be shown, the purchaser was aware of his incapacity, the plaintiffs were not estopped by the judgment from denying the validity of his title, and the evidence offered by them for the purpose of establishing these facts should have been received. The record of the inquisition and proceedings under the commission in lunacy, finding that he had been a lunatic without lucid intervals for about twenty years, was primfi facie evidence of" his incapacity to execute the waiver of inquisition under which his property was sold, and ought to have been admitted: Hutchinson v. Sandt, 4 Rawle 234; Rogers v. Walker, 6 Barr 371; Willis v. Willis’s Administrator, 2 Jones 159; In re Gangwere’s estate, 2 Harris 417. The purchaser knew, or ought to have known, that a sale on the fi. fa. without waiver of inquisition would convey no title; and if he knew that the defendant was so destitute of understanding as to be incapable of assenting to a waiver, it was his own folly to purchase on the faith of it. But the facts offered to be shown should be clearly established by the evidence before his title is declared void. Where all the forms of law have been observed in making judicial sales, titles should not be set aside except on clear proof of such facts as should avoid the sale.

Judgment reversed, and a venire facias de novo awarded.

Agnew, J., dissented.


source: Caselaw Access Project

author: Thompson, C. J.

license: Public Domain

text:
    Watters et al. versus Bredin.
    1. A deed was, “I, John Watters, * * * have sold and assigned the within-named farm to the said Lasher, * * * authorizing her in my name or otherwise but at her own expense to carry on and possess the same according to the tenor of herein written. * * * The condition of this assignment is such that said Watters is to have a good living out of the aforesaid farm his natural lifetime, and all other necessary expenses and the residue to remain in the hands of the said Lasher or her heirs; that is to say, if the above conditions are complied with, * * * otherwise to become null and void and of none effect.” Held, to be a deed upon condition.
    2. The clause containing the condition is part of the habendum; it explains the premises that an absolute estate was not intended to be granted, and controls the generality of the words in the premises.
    3. By the provisions of the deed, the grantee was required to furnish a living to the grantor, or in default to be subject to lose the estate by re-entry for condition broken.
    4. The maxims, Animus ad se omne ducit and Mala grammatica non vitiat chartam, applied.
    5. An inartificial and obscure deed construed.
    November— 1871.
    Before Thompson, C. J., Read, Agnew, Siiarswood and Williams, JJ.

      Error to the Court of Common Pleas of Crawford county: No. 62, to October and November Term 1871.
    This was an action of ejectment for 160 acres of land, brought by Nancy Bredin, late Lasher, against David Watters and others, heirs at law of John Watters, deceased. Both parties claimed under John Watters.
    The plaintiff gave in evidence the following deed :—
    “ Assignment maid this 6th day of May A D 1853' Know all min by these presents that I John Watters within named in consideration of one dollar to me in hand paid by Nancy Lasher of the Venango Township Crawford County and State of Pennsylvania The receipt whareof is hereby acknowledged have sold and assigned and by these preasents do sell and assign to the said Nancy Lasher the within named farm and all my right title and interest in and to the same. Authorizing her in my name or outherwise but at hur own expenses to cary awn and possess the same according to the tenor of herein witen

    “ Now the condition1 of this assignment is such that said John Watters is to have a good and suficient living out of the foresaid farm his natural lifetime and all outher nessery expenses and the residue to remain in the hands of the said Nancy Lasher or hur heirs that is to say if the above conditions are fully complyed with Then this assignment to remain in full force and virtue or outherwise to become null and void and of none afeet. In witness wereof I John Watters have set over all that certain peace or parsel of land bounded and described as follows, on the south by land of Thomas Daviee — and on the east by Martin Strayer and on the north by John Marchal and on the west by Andrew F. Watters in Fairfield Township Crawford County, &c., containing 160 acres, &c. * * *
    John Watters, [l. s.]”
    The plaintiff and her husband Lasher went on the farm in the fall of 1853, and remained there eighteen months.
    The defendants offered to prove that the plaintiff did not furnish Watters with a living; whilst on the farm did not cultivate it, nor furnish his living or necessary expenses in any other way; that she left the farm in the spring of 1855, and Watters entered for breach of the condition and that she had not furnished him any support up to his death in March 1869.
    The evidence was objected to by the plaintiff, rejected by the court (Lowrie, P. J.), and a bill of exceptions sealed.
    The verdict was for the plaintiff.
    The defendants removed the record to the Supreme Court and assigned the rejection of their offer for error.

      F. P. Rea, for plaintiffs in error.
    The words of the deed make the estate conditional: Sheppard’s Touchstone 122; Washburne on Real Prop. 467; Bear v. Whisler, 7 Watts 144. Forfeiture is the proper remedy: Sharon Iron Co., v. Erie, 5 Wright 341. A deed must be construed so that no part shall be rejected: Tyler v. Moore, 6 Wright 374; Wager v. Wager, 1 S. & R. 374.

      W. R. Bole, for defendant in error,
    cited Co. Litt. 47 a; Sheppard’s Touchstone, 80 et seq., 122; Whitaker v. Brown, 10 Wright 197; Jackson v. Swart, 20 Johns. R. 85; Jackson v. Dunsbaugh, 1 Johns. Cas. 91; Jackson v. Statts, 11 Johns. 351; Barrett v. French, 1 Conn. 354; Wallis v. Wallis, 4 Mass. 135; French v. French, N. H. 258; Jackson v. McKinney, 3 Wend. 233; Meanor v. McKowan, 4 W. & S. 302; Campbell v. Shrum, 3 Watts 60; Paschall v. Passmore, 3 Harris 295; Cromwell’s Case, 2 Rep. 71; Fort Plain & C. P. R. Co., 1 Kernan 389.
   The opinion of the court was delivered, January 9th 1872, by

Thompson, C. J.

The intention of the grantor in this case seems to us to he quite plain upon the face of his deed to Nancy Lasher, now Bredin. Animus ad se omne ducet. The intention is what the law applies itself to in deeds;

It is a deed upon condition undoubtedly, we think, and so ought it to have been held. In what may he regarded as the premises, the property conveyed is described, and the consideration set forth as paid by the grantee is one dollar. Then follows this provision, “ authorizing her (the grantee), in my name or otherwise, but at her own expense, to carry on and possess the same (the farm granted), according to the tenor herein written.” Then follows this clause: “ Now the condition of this assignment is such that said John Watters (the grantor) is to have a good and sufficient living out of the aforesaid farm for his natural lifetime, and all other necessary expenses, and the residue to remain in the hands of the said Nancy Lasher or her heirs; that is to say, if the above conditions are fully complied with, then this assignment to remain in full force and virtue, or otherwise to become null and void, and of none effect.” I have omitted the inaccuracies in spelling, for mala grammatiea non vitiat ehartam.

Regarding the clause as a portion of the habendum of the deed, the qualification of the granting portion is not in excess of its office. Blackstone, vol. ii. p. 298, says, “ the habendum may lessen, enlarge, explain or qualify the premises, but not totally contradict, or be repugnant to the estate granted in the premises :” Co". Litt. 21; Touchstone, cap. 5, No. 2. Now here the habendum merely explains the premises in this, that an absolute estate was not intended to be granted upon the consideration mentioned, which would be by gift, and it controls the generality of the words in the premises.

Here, then, we have a grant with a reservation to the grantor out of it, the real consideration in fact for the conveyance, with conditions to enforce it, and provisions for the defeat of the grant in case the conditions should be disregarded or not complied with by the grantee. We may not ignore all this, as the argument in support of the judgment below does. A deed must be so construed, if possible, that no part shall be rejected : 6 Wright 387; 1 S. & R. 374. This is elementary. To give these provisions effect is to require that the grantee -in the deed furnish the living to the grantor specified, or in default to subject her to lose the estate by re-entry for the condition broken. He intended, and reserved, a living out of the estate to be furnished by the grantee. The idea of the defendant in error that she w.as to stand seised to the use of the grantor for life, while he occupied the farm, is a view subject to many objections, but may be answered most readily by the terms of the deed itself. By it she was authorized to take possession of the farm, and to carry it on at her own expense, “according to the tenor herein written.” Could it have been intended that the grantor, notwithstanding this provision, was to remain in possession and occupy the land to furnish his own living at his own expense ? This would be to attribute an intention to the grantor in direct contravention of his deed. This was manifestly not the understanding of the grantee either, for she took possession, moved on the farm and remained on it for several years. Such a construction of the conveyance is altogether inadmissible. The facts that there was a failure of the condition to furnish the grantor a living, &c., from the premises by the grantee, and that there was a re-entry by him for condition broken, was most important testimony on the trial, and should have been received. This, if true, would have re-invested him with title. We think this should have been the course of the learned court on the offer of testimony, and because it was not, we must reverse the judgment.

There are some facts set forth in the defendant’s counter-statement of which we see no evidence whatever. Without attributing the least intention to mislead, to the learned counsel who prepared it, we desire to take this occasion to say that no history of the parties or of the case is at all allowable, unless disclosed by the testimony in the case.

Judgment reversed, and venire de novo awarded.


author: Williams, J.

text:
    Carrier and McPherson versus Esbaugh.
    1. Sheriff made a levy lawfully under a fi. fa., and sold the goods after only five days’ notice. Held, that trespass and not case was the proper remedy against him.
    2. So selling was an abuse of authority, and made the sheriff a trespasser ab initio.

    3. The writ gave the sheriff no authority to sell without giving notice, and the sheriff stood as if his acts had been illegal from the beginning.
    4. The sheriff paid the plaintiff the execution-debt from the proceeds of the sale. Held, in an action of trespass against the sheriff, not to be evidence in mitigation of damages.
    5. The regulations of the statute for the seizure and sale of chattels, should be lawfully and strictly complied with.
    6. Dallam v. Fitler, 6 W. & S. 323; McMichael v. Mason, 1 Harris 214; Wilson v. McElroy, 8 Casey 82.
    November 21st 1871.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Jefferson county: No. 32, to October and November Term 1871.
    This was an action of trespass d. b. a., commenced, December 29th 1868, by F. C. Esbaugh against Nathan Carrier, Jr., A. D. McPherson and A. J. Smathers.
    Smathers was plaintiff in an execution against Esbaugh; Carrier was the sheriff and McPherson his deputy, who executed the writ and sold the goods.
    A judgment had been entered to February Term 1867 in favor of Smathers against Esbaugh for $144.30. On this judgment a fi. fa. was issued to September Term 1868, under which the personal property of Esbaugh was levied on and sold by the sheriff; it produced $219.45, of which $156.54 were paid to Smathers in full of the debt and interest of his judgment.
    There was evidence that the sale had been made by the sheriff upon jive days’ notice. There was also evidence that Smathers had agreed with Esbaugh that no execution should issue on the judgment until the next spring, and that he had issued execution during Esbaugh’s absence.
    The following are points of the plaintiff with their answers :—
    “ 2. If the property was sold on five days’ notice instead of six, it would render the sheriff a trespasser ab initio, and the plaintiff would be entitled to recover the full value of the property sold, and in addition thereto (if the sale was attended with circumstances of oppression) exemplary damages for the oppression.”
    Answer: “This is affirmed.”
    “ 3. If A. J. Smathers had agreed for a sufficient consideration with the defendant not to issue execution on his judgment until spring, and for the purpose of oppression and wrong had fraudulently violated that agreement, the execution as to him would afford no protection, and the plaintiff would he entitled to recover, at least as to him, exemplary damages.”
    Answer: “We answer this point also in the affirmative. But if Smathers did not participate in selling on less than six days’ notice, on which there is little if any evidence, then he is not liable for the trespass of the sheriff, and your verdict for a fraudulent issue of the writ should be against him alone, and you cannot render a verdict for two separate trespasses — the one committed by Smathers himself, the other by the sheriff and his deputy. But you may find as to the one, not guilty, and as to the other for the plaintiff for such damage as he has sustained by that particular trespass. If Smathers had a valid judgment against defendant, of which there is no doubt, and having an execution out on it and defendant paid a part, and it was agreed that there was to be a stay until the following spring, and Smathers, in the face of such agreement, issued on the judgment, he would be liable as a trespasser for sending the sheriff on him. But if the agreement was conditional, and before becoming absolute, more money was to be paid, or what was to be given to him and it was not done, he had a perfect right. In order to make Smathers a trespasser you ought to be satisfied that he issued in defiance of a positive agreement to stay. If the jury should find that Smathers is a trespasser, and this issue was under circumstances of oppression, you may allow exemplary damages as against the sheriff. If it was merely a mistake in not advertising long enough, you should find only such damages as the plaintiff has actually sustained.”
    The defendant’s 1st, 2d and 3d points and their answer are as follows:—
    “ 1. The judgment of A. J. Smathers against E. C. Esbaugh being a valid judgment, the execution issued therefrom gave the sheriff the right to levy on the property of Esbaugh and remove it out of his possession. And if he was not a trespasser at the time of the levy or at the time of the removal, the fact of his only giving five days’ notice of the time of sale would not make him a trespasser, and as there is no evidence of fraud, the verdict must be for the defendant.
    “ 2. If the plaintiff had not actual possession or the right to take possession at the time of the sale, he cannot maintain his present action.
    “ 3. There being no evidence in the case against A. J. Smathers other than that he had the writ issued, as to him the verdict must be for the defendant.”
    Answer: “We answer defendant’s first three points in the negative, and say that a fi. fa. gives no right to sell personal property until the sheriff or his deputy has advertised it six days agreeably to the Act of Assembly, and an officer selling, as was done in this case, if the evidence is believed, on less than six days becomes a trespasser ah initio. The advertising on the 12th of November to be sold on the 18th would be long enough, but if on the 14th the sheriff altered the time of sale and made it on the 19th, the notice of the time and place of sale would date from the 14th, and the advertisement would be only five days, and this would not save him from this action of trespass, and it would make the original taking a trespass.
    The court (Campbell, P. J.) further charged : * * *
    “ The defendants’ counsel on the trial of the cause requested us to instruct the jury that the money raised by the sale of plaintiff’s property and applied in satisfaction of the judgment against him should be referred to the jury in mitigation of damages. We refused to do this because the omission to advertise the property for the time prescribed by the Act of Assembly, made the sheriffs trespassers, proceeding as if they had not advertised at all, and the sale was a nullity, and they had no right to take the money and pay the plaintiffs judgment in favor of Smathers, any more than they could take his property and sell it without legal process, and therefore they cannot offer the judgment in mitigation of damages.”
    The verdict was for the plaintiff against Carrier and McPherson for $459.94, and as to Smathers “not guilty.”
    Carrier and McPherson removed the record to the Supreme Court by writ of error.
    They assigned five errors; three to answers to the plaintiff’s points, one to the answer to the defendant’s points, and one to the charge.

      Gordon and Brother, for plaintiffs in error.
    Possession or right of possession in plaintiff is necessary to maintain trespass : Lewis v. Carsaw, 3 Harris 31. The sheriff’s failing to give six days’ notice was mere non-feasance, for which tresspass will not lie: Sommer v. Wilt, 4 S. & R. 19; Berry v. Hamill, 12 Id. 210. For malicious abuse of legal process, ease is the remedy : Barnett v. Reed, 1 P. F. Smith 190; Kennedy v. Barnett, 14 Id. 141. The amount received by plaintiff under the execution should have been allowed to go in mitigation of damages: Mitchell v. Commonwealth, 1 Wright 187; Mickle v. Miles, 1 Grant 320.

      Andrews & Conard and Jenlcs & Clark, for defendant in error.
    If the act of the officer was lawful at first and he after-wards abuse his authority, he is a trespasser ah initio : 1 Chitty’s Pl. 213; Gibbs v. Neely, 7 Watts 305. An officer cannot show in mitigation of damages that the proceeds of sale were applied to pay the debt: McMichael v. Mason, 1 Harris 214; Dallam v. Fitler, 6 W. & S. 323.
   The opinion of the court was delivered, January 9th 1872, by

Williams, J.

The first question presented by the record is, whether trespass or case is the proper remedy for the seizure and sale of the plaintiff’s goods on an execution against him without giving six days’ notice of the sale, as provided by the Execution Act of the 16th June 1836. The action is trespass, and we are clearly of the opinion, both on principle and authority, that it is the appropriate remedy. Though the levy was lawful, the sale, without the notice required by the statute, was such an abuse of the authority contained in the writ to levy and sell, as to render the sheriff a trespasser ab initio. The writ conferred no authority to sell without giving the notice, and the sale was therefore an unauthorized act, and left the sheriff in the same situation, as though his acts had been illegal from the beginning. If he had no authority to seize and sell the plaintiff’s property without giving the statutory notice, can there be a doubt that he was a trespasser in making the sale ? Selling the goods without notice was not merely an abuse of the authority contained in the writ, it was an act done without authority and against law. Having no legal justification for the seizure and sale, the sheriff stands in the same relation to the plaintiff as if he had originally taken the goods without authority, and must be regarded as a trespasser ab initio. This is the well settled doctrine of our own cases, and authorities elsewhere: Kerr v. Sharp, 14 S. & R. 399; Wilson v. Ellis, 4 Casey 238; Freeman v. Smith, 6 Id. 264; Wilson v. McElroy, 8 Id. 83; Van Dresor v. King, 10 Id. 201; Bradley v. Davis, 2 Shep. 44; Mussey v. Commings, 34 Maine (2 Red.) 74; Breck v. Blanchard, 20 N. H. 223 ; Purrington v. Loring, 7 Mass. 388; Pierce v. Benjamin, 14 Pick. 356; Smith v. Gates, 21 Id. 55; Vail v. Lewis, 4 Johns. 450; Ash v. Dawnay, 16 Engl. L. & Eq. 501; as a reference to those cited will show.

In Kerr v. Sharp, goods distrained upon for rent were sold without having been appraised and advertised agreeably to the Act of the 21st of March 1772, and it was held that the distrainor was a trespasser ab initio, and that an action of trespass quare clausum fregit might be maintained against him. So in Wilson v. Ellis and Freeman v. Smith, a constable, who seized the property of a defendant under an execution, and refused to permit him to select property to the amount of three hundred dollars and have it appraised under the Act of 1849 — the defendant demanding and being entitled to the benefit of the exemption — was held liable as a trespasser ab initio. These cases are directly in point, and all the authorities •cited show that trespass is the proper remedy for the wrongful act •.of the sheriff in seizing and selling the plaintiff’s goods without giving the notice required by law. It is true that in Yan Dresor v. King, it was. held that an action on the case will lie against a constable for selling a defendant’s goods under an execution, in disregard of bis claim for tbe benefit of tbe exemption law, but it was there said “ there is no doubt but that trespass, in cases like the present, will lie.” Case was held to lie, on the ground that tbe constable had been guilty of a breach of duty in refusing or neglecting to allow the debtor’s demand of the provisions of the exemption law; and for the injury occasioned by such breach of duty, case was said to be tbe more natural and direct remedy. But in the case before us the sheriff was not guilty of a mere breach of duty in selling the goods without notice. He had no authority whatever to make the sale, and consequently bis act, in making it, was nothing less than a sheer trespass. There is then no conflict in the authorities. They all agree that for the wrongful act, complained of here, trespass is the proper remedy. It would have saved us, however, some labor in the investigation of the question, if the authorities, to which we have •referred, had been cited in either of the paper-books. *

The question next to be considered, as to the measure of damages, may be disposed of in a few words. The court instructed the jury that the plaintiff was entitled to recover the full value of the property sold by the defendants, without any deduction or abatement, in mitigation of damages, of the money raised by the sale and applied in satisfaction of the judgment against him; and we think.that this instruction was clearly correct. What right has a trespasser, who seizes and sells the property of another, against bis consent, without authority of law, to defalk, in mitigation of damages, the proceeds of sale which he may have applied to the payment of the owner’s debts ? As said in McMichael v. Mason, 1 Harris 214, the sheriff, being a trespasser from the beginning, could gain no right from his wrong — not even the right to pay the plaintiff’s debt without request. In Dallam v. Fitler, 6 W. & S. 323, it was ruled that in'trespass against a sheriff-, for seizing and selling the plaintiff’s goods under a judgment against another person, the amount paid out of the proceeds of sale for rent of the premises, cannot be received in evidence to ábate the damages. And in Wilson v. McElroy, 8 Casey 82, that in an action of trespass for disregarding a debtor’s claim for the benefit of the exemption law, the debt extinguished by the sale cannot be defalked against the plaintiff’s damages. These authorities govern tbe question of damages in the case before us. To allow the proceeds of sale applied to the satisfaction of the plaintiff’s judgment to be defalked in mitigation of damages, would encourage a disregard of the wholesome provisions of the act, which forbids the sheriff from making sale of the property taken in execution until he shall have given six days’ notice thereof in the manner provided by the statute. It is essential to the rights of property, that the positive regulations of the statute, authorizing the seizure and sale of chattels, without the consent of their owner, should be lawfully and strictly complied with: 14 Pick. 356; and to insure this there must be no abatement of the damages.

The error complained of in the answer of the court to the plaintiff’s third point, if it be one, is rendered immaterial by the finding of the jury. Even if the court instructed the jury, as contended, that if they should find that Smathers was a trespasser, and the issue was under circumstances of oppression, they might allow exemplary damages as against the sheriff, it did the plaintiffs in error no harm, for the jury found that Smathers was not guilty of the trespass. But it is evident from the whole answer that the sentence closes with the word “ damages,” and that the phrase “ as against the sheriff,” is the beginning of the next sentence, which reads as follows: As against the sheriff, if it was merely a mistake in not advertising long enough, you should find only such damages as the plaintiff has actually sustained. This instruction was clearly correct, and the jury must have properly, understood it.

Judgment affirmed.


author: Sharswood, J.

text:
    Scott versus Scott.
    1. A writing in form a deed, but in fact a will, contained a covenant of warranty of land designed to be passed by it. Held, that the clause, being in a will was not a covenant of warranty.
    2. An express warranty must be created by deed; a will is not a deed.
    3. The instrument granted real estate to the grantee after the death of the grantor; the grantor afterwards devised to others. Held, not a breach of the covenant.
    4. If there had been such covenant, its breach could not occur in the life of the grantor so as to subject him or his executors after his death to an action.
    5. To sustain an action on a covenant of warranty, there must be an actual or constructive eviction by title paramount.
    6. Turner v. Scott, 1 P. E. Smith 126, recognised.
    November —1871.
    Before Thompson, C. J., Read, Agnew, Siiarswood and Williams, JJ.
    Error to the Court of Common Pleas of Erie county: No. 130, to October and November Term 1871.
    This was an action of covenant by John W. Scott against Abner Scott, executor, &c., of John Scott, deceased, with notice to Nancy Holliday and others, devisees and heirs of John Scott.
    The declaration set out that John Scott in his lifetime, on the 22d of November 1849, by indenture between him and the plaintiff, did grant, &c., certain real estate (described in the declaration), to the plaintiff in fee, “after the decease of the said John Scott.” The declaration further averred that John Scott did covenant, &c., with John W. Scott, that he would warrant and defend the premises granted, subject to the life estate of the grantor, against all persons whatever lawfully claiming, &c. The declaration averred performance by the plaintiff and that neither the grantor in his lifetime nor the executors since his death performed the grantor’s covenants, but that the grantor by his will devised the premises to his daughters. The declaration further averred that after the death of the grantor the plaintiff was in possession of the premises granted, and that the devisees of the grantor by judgment in an action of ejectment and execution thereon turned him out of possession, &c., and that the grantor did not keep his covenant in his lifetime nor had the defendant since his death.
    The case was tried, March 29th 1871, before Wetmore, P. J.
    The plaintiff gave in evidence the instrument containing the covenants declared on, viz.:—
    “ This Indenture made, &c., between John Scott, of, &c., of the first part, and John W. Scott, of, &c., of the second part, witnesseth, that the said party of the first part, as well for and in consideration of the sum of natural love and affection which he, the said John Scott, hath and beareth unto the said John W. Scott, as also that the said John W. Scott hath this day agreed to live with the said John Scott, and labor for and assist him in working the land hereinafter described, and to maintain Patience Scott, the wife of the said John Scott, if she survives him, during her natural life, &e., * * * has granted, &c., * * * and by these presents does grant, &c., unto the said John W. Scott, his heirs and assigns, all the following described pieces and parcels of land situated, &c., * * * “ excepting and reserving nevertheless, the entire use and possession of said several described pieces and parcels of land with the appurtenances unto the said John Scott and his assigns for and during the term of his natural life, and this conveyance in no way to take effect until after the decease of the said John Scott, the grantor. Together, &c., subject to the reservation of a life estate as aforesaid. To have and to hold the said described pieces of land, after the decease of said John Scott, * * * unto the said John W. Scott, his heirs and assigns, to and for the only proper use and behoof of the said John W. Scott (after the death of the said John Scott), his heirs and assigns for ever. And the said John Scott, his heirs, executors and administrators, do by these presents covenant, grant and agree to and with the said John W. Scott, his heirs and assigns, that he, the said John Scott, his heirs all and singular the hereditaments and premises herein above described and granted or mentioned and intended so to be with the appurtenances unto the said John W. Scott, his heirs and assigns, against him, the said John Scott, his heirs, and against all and every person or persons whomsoever lawfully claiming or to claim the same or any part thereof, subject to the life estate of the said John Scott aforesaid, shall and will warrant and for ever defend.”
    It was witnessed by Miron H. Hutchinson and George II. Cutler. By the will of John Scott, dated February 26th 1861, he revolted all wills, “and particularly a certain will and testament (in form as a deed), &c., witnessed by Miron Hutchinson and George H. Cutler. And I hereby give and assign as the reason of revoking and making void said will, that my son, John W. Scott, and his wife have failed to treat me with filial affection, and to comply with the conditions upon which I made said will. I give and bequeath, &c. * * * Subject to the above, I give and bequeath all my personal property and real estate of whatever name and nature and wheresoever situated to my daughters Nancy Holliday, Anna Sanford and Parney P. Turner, and my son Abner Scott, to be equally divided between them, to them and their heirs and assigns for ever.” * * *
    He appointed Abner Scott the executor of his will. Subsequently to November 22d 1849, John Scott made a deed of the premises to Abner Scott in trust for himself and the daughters of John Scott.
    The plaintiff went into possession with the grantor under the instrument of November 22d 1849. Upon the allegation that the plaintiff had not complied with his agreement to work the farm, &c., the grantor left the premises, brought an action of ejectment and under it recovered the possession, and whilst in possession made his will as above stated.
    ' After his death the devisees in the will went into possession under it; the plaintiff brought an ejectment against them and recovered the possession (Perry v. Scott, 1 P. F. Smith 119). The devisees afterwards brought an ejectment against the plaintiff in which they recovered a judgment on the ground that the instrument of November 22d 1849, was a testamentary writing and revocable, and had been revoked by John Scott’s will (Turner v. Scott, 1 P. F. Smith 126). On this judgment an habere facias was issued and the devisees put into possession. This action was then brought on the covenant of warranty in the instrument of Novem-‘ her 22d 1849.
    The defendant’s 4th point was:—
    The will of John Scott being the mere expression of the desire of the testator, and of a later date than the instrument under which plaintiff claimed, cannot constitute such paramount title as to be the foundation of an action of covenant for breach of the warranty, and the quit-claim deed of a later date offered in evidence would not constitute such breach.
    The court answered: — “ In answer to the defendant’s 4th point we say, the will and deed made subsequently to the 22d day of November 1849, are a breach of the covenant contained in the instrument dated November 22d 1849.”
    The defendant’s 10th point, which was negatived, was:—
    “ The covenant of warranty only warranted the possession after the death of John Scott; there could be no breach of the covenant during his life.”
    There was much evidence in the case and several questions of law raised; — what is above given will sufficiently illustrate the decision of the Supreme Court.
    The verdict was for the plaintiff for $6146.50.
    The defendant took a writ of error and assigned for error (amongst others), the answers to his 4th and 10th points.

      S. E. Woodruff., for plaintiff in error.
    As to the 4th point cited Dobbins v. Brown, 2 Jones 79; Co. Litt. 385 b; Rawle on Covenants for Title 327; Seymour’s Case, 10 Rep. 96; Piatt v. Oliver, 3 McLean 96; Kirchenval v. Triplet, 1 A. K. Marsh. 495; Sheppard’s Touchstone 186. When there is an express covenant none can be implied: Rawle on Covenants 356; Nokes’s Case, 4 Rep. 81; Merrill v. Frame, 4 Taunt. 329; Frontín v. Small, 2 Raym. 1419. As the the 10th point he cited Rowan’s Appeal, 1 Casey 295.

      G. H. Cutler and J. C. Marshall (with whom was F. F. Marshall), for defendant in error,
    cited as to the binding effect of thé covenant in the instrument of November 22d 1849: Cannel v. Buckle, 2 P. Wms. 243; Brinker v. Brinker, 7 Barr 53; Turner v. Scott, 1 P. F. Smith 126; Johnson v. McCue, 10 Casey 180; McMullin v. Glass, 3 Casey 151.
   The opinion of the court was delivered, January 9th 1872, by

Sharswood, J.

We agree entirely with the zealous and able counsel for the defendant in error, who say, in their printed argument, that this case presents a single point: “ Can an action be sustained by John W. Scott against the executor of John Scott, upon the covenant of John Scott, made the 22d day of November 1849, which was broken by John Scott in his lifetime, and fully performed and kept by John W. Scott on his part ?”

The covenant referred to, that upon which this action is based, is contained in an instrument of writing, which, though in form a deed, was held by this court, in Turner v. Scott, 1 P. F. Smith 126, to be a last will and testament, and, therefore, ambulatory until the death of the testator, and revocable and actually revoked by his subsequent will, dated February 2d 1861.

How can an action be sustained on a revocable and revoked instrument ?

It is settled, indeed, by the best authority in the law, that an express warranty cannot be created without a deed, and a will in writing is no deed, and, therefore, an express warranty cannot be created by will: Coke’s Litt., 386 a. If a warranty cannot be so created, it follows that a covenant of warranty cannot; for the one necessarily follows the nature of the other. But even admitting that there was a subsisting covenant, there was no breach of it by John Scott, which would subject him to an action upon it, in his lifetime, or his executors after his death. By the very terms of the instrument he had the right of possession during his life, “it was in no way to take effect until after the death of the said John Scott.” To sustain an action upon a covenant of warranty, there must be either an actual or constructive eviction by title paramount. The learned judge below, in his answer to the defendant’s fourth point, instructed the jury that the will and deed of John Scott, made subsequently to the 22d November 1849, was a breach of the covenant contained in the instrument dated November 22d 1849. No authority has been or can be cited to support the position that a deed or will subsequently made by a grantor is itself a breach of the covenant of warranty contained in his conveyance, more especially when such deed or will is a lawful act.

All the authorities are the other way: Clark v. McAnulty, 3 S. & R. 364; Paul v. Witman, 3 W. & S. 407; Rawle on Covenants of Title 240.

Judgment reversed.

Agnew, J., dissented.


text:
    The Albany City Insurance Co., for use, versus Whitney et al.

    1. In aforeign attachment in the Common Pleas by an insurance company, bail was entered and the attachment dissolved. The declaration was in assumpsit and averred, that goods had been shipped by the defendants and the vessel had been wrecked on one of the “ Great Lakes;” that the plaintiff came to the wreck with the necessary appliances to remove the cargo, tackle, furniture, &c., and that whilst at the wreck prepared to remove the cargo, &c., the defendants offered to receive the cargo and pay its proper proportion of the expenses incurred by the plaintiffs ; and that the “ proportion of the charges and expenses occasioned thereby and by the salvage of the rigging, furniture, &o., and of the cargo*** which should be apportioned on the cargo was,” &e., and that defendants received the cargo and agreed to pay such proportion, &e.” The defendants pleaded in abatement that the cause of action occurred on the “ Great Lakes and within the maritime jurisdiction of the United States and being a claim for salvage,” the jurisdiction was exclusive in a court of admiralty and the Common Pleas had no jurisdiction. Held, that the action being on a contract to pay, it was within the saving of the 9th sect, of Federal Judiciary Act of February 20th 1789, and the common-law court had jurisdiction.
    2. The peculiar and exclusive jurisdiction is when the proceedings are
      in rem: remedies in personam are concurrent, when there is ground to maintain a common-law action.
    3. A benefit or service performed voluntarily is a consideration to support an express promise.
    4. The saving in 9th sect, in Act of Congress, February 20th 1789 (Judiciary Act), is of a common-law remedy.
    5. Common-law courts and admiralty have concurrent jurisdiction on charter-party, bill of lading, shipping articles and policy of marine insurance.
    6. Foreign attachment is process to commence a personal action and compel an appearance; when dissolved by bail, the judgment is in personam.

      7. On the scire facias against the garnishee, on the plea of “ nulla bona,” he may show that the property attached is not the defendant’s but the garnishee’s or some other person’s.
    8. The court should not proceed on a plea in abatement without replication or demurrer.
    November — 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of JErie county: No. 124, to October and November'Term 1871.
    On the 20th of June 1870, a foreign attachment in assumpsit was issued out of the Court of Common Pleas of Erie county, at the suit of the Albany City Insurance Company to the use of George P. Griffith against Charles Whitney and others, tradin g as C. & D. Whitney, Jr., & Co., bail to dissolve $1200.
    Under the writ the schooner “ Grace Whitney” was attached-, and Captain Lewis Elliott summoned as garnishee. Bail was entered, and the attachment dissolved. The declaration filed by the plaintiff was as follows :—
    “ Charles Whitney, &c., were attached by their goods and chattels, and summoned to answer the Albany City Insurance Company, now for use of George P. Griffith, in a plea of trespass on the casein assumpsit, and thereupon the said plaintiffs, by their attorney, J. C. Sturgeon, complains, for that heretofore, to wit, on the 24th day of June, A. D. 1870, divers goods of great value, had been and were shipped and loaded by defendants on board the schooner Monteagle, to be carried to Ogdensburg, in the state of New York, on and for freight in and during the said voyage. And the plaintiff- further saith, that afterwards, and during said voyage, to wit, on the great lakes, the said vessel, and the tackle and apparel thereof, by and through the mere force and violence of certain hurricanes of wind and stormy weather, and by the perils and dangers of the seas, became greatly strained, &c., whereby and because thereof, the said vessel was driven on rocks and shoals and wrecked, so as to make her utterly unable to proceed upon her said voyage. And that afterwards, &c., plaintiffs did come with a wrecking-tug, men, and all the necessary appliances for the removal of the cargo, tackle, furniture, anchors, cables, &c., from the wreck of the schooner Monteagle as aforesaid; and that at that time, and while plaintiffs being then and there prepared for the removal of the said cargo as aforesaid, the said defendants came and offered to receive the said cargo, and then and there agreed to pay plaintiffs such proportion of the expenses incurred by them as should be apportioned upon the said cargo, the said sum of expenses amounting to the sum of $1082.42, and' in consequence of which said several promises to pay, then and there, said proportion of the charges and expenses occasioned thereby, and by the salvage of the rigging, furniture, anchors, cables, &e., and of the cargo of the schooner Monteagle, wdiich should be apportioned on the cargo saved from the said vessel, the said defendants did then and there receive the said cargo amounting to 50,000 feet of black-walnut lumber, of great value, &c., and then and there did agree to pay the said share of the expenses apportioned on the said cargo as aforesaid, and in consequence thereof did then and there become liable to pay the said plaintiffs the sum of $900, being the amount assessed upon the said cargo by virtue of the agreement as aforesaid.
    “ And the said plaintiff further says that afterwards and whilst the said vessel Monteagle was proceeding on her said voyage, &c., loaded with black-walnut lumber, the property of defendants ; she was by the violence of the winds and waves driven on shoals and reefs and stranded, being damaged thereby so as to be incapable of further proceeding on her said voyage, and whilst the plaintiffs were engaged in unloading the said cargo, having tug, men, cables, and all the necessary appliances therefor, the defendants appeared and received the said cargo consisting, &c., and then and there agreed to pay to plaintiffs such proportion of the plaintiffs’ expenses in proceeding to the said wreck for the purposes aforesaid, as should be assessed upon the cargo so saved, by an adjustment of the said expenses between the vessel and cargo, amounting to the sum of $1082.42, and the said defendants then and there, according to their said undertaking, did become liable to pay, and then and there should have paid to plaintiffs a certain sum of money, to wit, &c., being their proportion of the salvage, adjustment, &c., as aforesaid; yet the said defendants afterwards, disregarding their promises so made, have not paid any part of the said moneys to plaintiffs,” &c.
    The defendants filed a plea in abatement, viz.:—
    “ The said defendants come, &c., and say that this court ought not to have or take further cognisance of the action aforesaid, because they say that the said supposed cause of action, and each and every of them, originated on the great lakes and within the maritime jurisdiction of the United States, and being a claim for salvage, and is exclusively the subject of investigation in a court of admiralty, and not in a state court, and this court has no jurisdiction on the subject-matter, and this the said defendants are ready to verify; whereupon they pray judgment whether this court can or will take further cognisance of the action aforesaid.”
    There was no demurrer or replication to this plea.
    After argument the court quashed the writ and all subsequent proceedings.
    The plaintiffs removed the record to the Supreme Court, and assigned the quashing of the writ, &c., for error.

      J. C. Sturgeon and C. B. Qurtis, for plaintiff in error.
    The suit is on a contract; it is not for salvage; it is within the saving of the Act of Congress of September 24th 1789, § 9, 1 Brightly’s U. S. Dig. 24, pl. 1; The Golden Gate, 1 Newberry Adm. Rep. 302; Hine v. Trevor, 4 Wall. 271; The Belfast, 7 Id. 463.

      J. C. Marshall (with whom was F. F. Marshall), for defendant m error.
    Salvage is to be determined by a court of admiralty: 3 Kent’s Com. 245; 2 Pars, on Mar. Law. 595. The services, whether voluntary or by request, and contract and compensation, relate to salvage: 1 Conkling’s Adm. 350; Abbott on Shipping 399. The admiralty jurisdiction is extended to the lakes: Act of Congress, February 20th 1845, § 1, 1 Brightly’s U. S. Dig. 25, pl. 3; Genesee Chief v. Fitzhugh, 12 How. 452; Jackson v. The Magnolia, 20 Id. 300.
   The opinion of the court was delivered, January 9th 1873, by

Sharswood, J.

The declaration was in assumpsit upon an agreement by the defendants in consideration of the delivery to them of the cargo of a certain wrecked vessel by the plaintiffs, who were the salvors, to pay them such proportion of the expenses incurred as should be apportioned upon the said cargo, and averring an adjustment accordingly. To this the defendants pleaded in abatement that the cause of action originated on the great lakes, and within the marine jurisdiction of the United States, and being a claim for salvage, was exclusively the subject of investigation in a court of admiralty. To this plea, as far as appears by the record, there was neither replication nor demurrer. Upon it there was, therefore, no issue either of law or fact. Yet the court proceeded to enter judgment. No objection has been made on this ground here, and it is mentioned only to say that we disapprove of such loose practice. Had it been assigned for error it would have been sufficient ground itself for the reversal of the judgment.

Assuming, however, that the plea was orally demurred to, and so the case has been presented and argued here, we think that the learned court below erred in sustaining the plea, and entering the judgment quashing the writ and the subsequent proceedings. The cases of The Moses Taylor, 7 Wall. 411, and The Belfast, 7 Id. 624, have settled that the common-law courts cannot exercise any portion of the admiralty jurisdiction, which is vested by the Constitution of the United States and the 9th section of the Judiciary Act of September 24th 1789 (1 Story’s Laws U. S. 56) exclusively in the Federal courts. But these cases also establish that the distinguishing and characteristic feature of a suit in admiralty, so far at least as the jurisdiction is intended to be exclusive, is that the vessel or thing proceeded against itself is seized and impleaded, and is judged and sentenced accordingly. On the other hand, by the common-law process property is reached only through some person as a defendant, and then only to the extent of his title. What is peculiar to admiralty and exclusive are proceedings in rem. Remedies in personam are concurrent wherever a ground can be laid sufficient to maintain a common-law action. It may be that such an action would not lie for salvage without a promise to pay, because being a voluntary service, performed without previous request, there is no sufficient consideration to support an implied assumpsit. But a benefit conferred or service rendered, though purely voluntary, is sufficient consideration to support an express promise: Graves v. McAllister, 2 Binn. 591; Clark v. Herring, 5 Binn. 33; Cunningham v. Garvin, 10 Barr 366; Lycoming v. Union, 3 Harris 166. The 9th section of the Federal Judiciary Act of 1789 contains an express “ saving to suitors in all cases of the right of a common-law remedy, where the common law is competent to give it.” This saving indeed does not authorize a proceeding in rem to enforce a maritime-lien in a common-law court. It is not any remedy in a common-law court which is saved, but only a common-law remedy. But surely no one will pretend that covenant, debt or assumpsit will not lie at common law on a charter-party, bill of lading, shipping articles or policy of insurance. Yet these are "all within the admiralty jurisdiction. The Supreme Court of the United States have affirmed the broad doctrine of Mr. Justice Story in De Lovio v. Boit, 2 Gallison 398; Ins. Co. v. Dunham, 11 Wall. 1, holding that the contract of marine insurance is a maritime contract within the admiralty and maritime jurisdiction, though not within the exclusive jurisdiction of the United States courts. The proceeding below, though commenced by the process of foreign attachment, was not instituted to enforce a maritime lien. It would, not have been so had the cargo saved been attached. That which was attached was the schooner Grace Whitney, as the property of the defendants. Foreign attachment is but a process by which to commence a personal action. It seizes property to compel an appearance. It can be dissolved upon entering bail, and when dissolved, the judgment against the defendant is in personam. ' It is followed by a proceeding against the garnishee by writ of scire facias, in order to subject the property attached to execution as the property of the defendant. The garnishee may plead nulla bona, and show that it is not the property of the defendant, but of himself or some third person. In this case the attachment was dissolved by the entry of security for the demand of the plaintiff. It was therefore a common-law remedy, the same as if it had been commenced by a summons— an action of assumpsit upon a parol contract, pursued in personam, and strictly within the saving of the 9th section of the judiciary Act of 1789.

Had there been a demurrer to the plea in abatement, the proper judgment would have been a judgment of respondeat ouster. We remand the record with & procedendo, in order that a demurrer may be properly filed, and judgment of respondeat ouster entered thereon, unless the defendants should prefer to withdraw their plea.

Judgment reversed, and procedendo awarded.


text:
    Bennett et al. versus Cadwell’s Executor.
    1. In a suit in Wisconsin on a partnership note, one of the partners was not served, and judgment was recovered against the others. This did not discharge the partner not served in a suit against him in Pennsylvania.
    2. Primfi facie, the law of the forum is the same with the law of the place of the contract.
    3. Partners dissolved; Cadwell, one of them, received all the assets'and covenanted to pay all the debts and indemnify his fellows. In a suit on a note against the firm, one of whom Bennett, was not served, a judgment was recovered against the others, Cadwell being one of them. A judgment was recovered in Pennsylvania in a suit against Bennett for the same note for want of an affidavit of defence. This judgment was primfi facie evidence of Bennett’s right to maintain an action against Cadwell on his covenant.
    4. In the action against Cadwell the validity of the judgment could not be inquired into collaterally.
    5. Accepting a bond from one partner for a firm’s simple contract debt is a satisfaction of the firm’s indebtedness.
    6. The recovery of the judgment in Wisconsin extinguished the firm’s indebtedness as to the partners served.
    , 7. Act of April 6th 1830, (judgments against part of joint contractors), applied.
    8. Campbell' v. Steele, 1 Jones 394, recognised.
    November — 1871.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Erie county: No. 157, to October and November Term 1871.
    This was an action of covenant brought February 12th 1869, by Charles H. Orton, George W. Haverstick and Elon A. Bennett, for the use of Elon A. Bennett, against William W. Beed, executor, &c., of Plenry Cadwell, deceased.

      The declaration recited in the first count that Orton, Haverstick, Bennett and Cadwell had been partners, under the firm of Haverstick, Bennett & Co., and on the 1st of June 1857, the partnership had been dissolved; on that day an agreement was entered into by Cadwell of the one part and the other partners of the other part, by which in consideration of one dollar and the settlement and adjustment of the business and indebtedness of the partnership by Cadwell, the three partners sold to him all the property of the firm and the debts due to it; and that Cad-well covenanted with the other partners that he would save them harmless and keep them indemnified against all persons to whom the partnership was indebted, from all actions, &c., arising out of the partnership. The plaintiffs averred that one of the debts of the firm was a note due to Barnes, Lyman & Co., for $1813.30, and that judgment had been recovered on it against Bennett in the Common Pleas of Erie county, for $1651.80, which judgment was revived on the 29th of October 1868, for $2403.09 with $17.04 costs, and Bennett had been compelled to pay the judgment and interest.
    In the second count they set out as a breach that a judgment for a debt of the firm had been recovered against Bennett by the Farmers’ and Millers’ Bank, of Milwaukee, and that he had paid $250 and $5 costs of that judgment.
    The case was tried January 28th 1871, before Vincent, A. J.
    The plaintiffs gave in evidence the covenant of indemnity, as set out in the declaration. They gave in evidence also the record of a judgment in a suit to May Term 1861 of the Common Pleas of Erie county, Barnes, Lyman & Co. v. Elon A. Bennett. The statement of the claim was that Haverstick, Bennett & Co. had made a note in favor of Lyman, Barnes & Co., for $1330.30; that on the 8th of January 1858 plaintiffs recovered judgment in the United States Court for the District of Wisconsin against Haverstick, Orton & Cadwell, for $1407.79; that Bennett was not served with process in the case, and therefore judgment had not been obtained against him jointly with theother partners, makers of the note.
    Judgment was taken against Bennett on the 3d of March 1861, for want of an affidavit of defence for $1651.80.
    A scire facias was afterwards issued on this judgment, and judgment was taken for want of an affidavit of defence, and liquidated January 4th 1869, at $2403.09. Fi. fa. issued on this judgment January 19th, levy on Bennett’s property, receipt for debt and interest, and writ stayed.
    The plaintiffs offered in evidence a notice from Bennett to the executor of Cadwell, to defend him and keep him harmless from the claim under the scire facias and other claims against Haverstick, Bennett & Co.

      This offer was objected to by the defendant and rejected by the court, but no exception was taken.
    The plaintiffs gave parol evidence that the above judgment against Bennett was a debt of the firm of Haverstick, Bennett & Co.
    The defendant gave in evidence a judgment for $3300, “ Beal Debt $1649.70,” by confession by Cadwell, at November Term 1860, on bond and warrant in favor of Barnes, Lyman & Co.; assignment of the judgment to W. W. Lyons, and satisfaction by Lyons May 15th 1866.
    Bennett testified that, by giving his note for the debt and interest of the judgment, he had got the plaintiff to stay the execution.
    The plaintiff in rebuttal gave in evidence the assignment dated October 31st 1864, by Barnes, Lyman & Co., of the judgment against Cadwell to Lyons, “ to be collected for his benefit and use, without recourse in any manner whatsoever, reserving, however, all our rights against the other members of the firm of Haverstick, Bennett & Co., against whom we hold a judgment recovered duly, and also reserving all collateral securities held by us for payment of the debt for which the above assigned judgment was obtained, which are hereby excepted from this transfer, and to remain our property.”
    Bennett paid the $250 mentioned in the second count in the declaration.
    The court charged: * * * “ In March 1861, Barnes, Lyman & Co., who were creditors of the firm, obtained a judgment against Bennett for a partnership debt. Before this time Barnes, Lyman & Co. had obtained a judgment against the other members of the firm, in the state of Wisconsin. They also obtained a judgment against Henry Cadwell alone, for the same claim, at November Term 1860, in this county, which was revived against him to No. 137, August Term 1865.
    “ October 31st 1864, the judgment against Cadwell alone was assigned to W. W. Lyon, reserving to the plaintiffs all claim or judgments against other members of the firm. This assignment was filed of record in February 1867.
    “ The reservation in the assignment to Lyon certainly gave Barnes, Lyman & Co. a right to collect from the other partners so much of their claim as was not then satisfied in law or in fact.
    “ Cadwell, by the agreement of June 1st 1857, only bound himself to pay the legal claims against Haverstick, Bennett & Co., and in our opinion, the other members of the firm, when separately sued for the firm debts, were bound to notify Cadwell of such suits, in order that he might set up any defence the law permitted against a recovery, and if, at the time judgment was obtained against Bennett, there was a legal defence to the claim, as against Bennett, which Cadwell could have availed himself of, and Bennett permitted judgment to go against him without notice to Cadwell, .he cannot now make the estate of Cadwell liable for the amount.
    “ [At the common law, if a creditor took judgment and liquidated it against one joint debtor, he lost all right to bring suit for the same claim against the other joint debtor or debtors. And as we have no evidence that such proceedings are regulated by statute in Wisconsin, we must presume that the common law prevails there, and we are, therefore, of the opinion that the judgment taken by Barnes, Lyman & Co. for their claim against the members of the firm other than Bennett, released him from all legal obligations to pay the debt. It was no longer a legal claim against him ]
    “ [The judgment which was assigned to W. W. Lyon, and which was satisfied by him, was entered, on a bond given by Cadwell to Barnes, Lyman & Co.] Mr. Bennett says, in his testimony, that Barnes, Lyman & Co. had but one claim against his firm, and [if this be so,'and the bond so given by Cadwell was for this claim, it was a satisfaction of it against all the other members of the firm, because it was a higher security than the note]. If after that, Bennett, without notice to Cadwell, permitted judgment to be taken against him for the same debt, he must, in our opinion, abide the consequences of his own neglect. But if the facts were not as above supposed, and the only .defence Cadwell could have made against the claim in suit against Bennett, was to the extent of the amount released by the assignment to Lyon, Bennett would still be liable for three-fourths of the claim as it stood on the 31st of October 1864, and can-recover that amount from Cadwell’s estate, when he, Bennett, has become liable to .pay it; and that he has so become liable is made out if you believe the testimony.” * * *
    The verdict was for the defendant on the first count of the declaration, and for the plaintiffs on the second count for $277.91. The plaintiffs took a writ of error and assigned for error the portions of the charge in brackets.

      Spencer & Marvin and J. H. Walker, for plaintiffs in error.
    — The presumption is that the law of the place of the contract is the same as the law of the forum: Yattel’s L. of N. 173. The suit in Wisconsin was one of the remedies for the same contract, and the plaintiffs could resort to their remedy here according to the law of Pennsylvania : Story Confl. of Laws, section 558, 587. By our Act April 6th 1830, section 1, Paraph. L. 277, 2 Br. Purd. 1120 pi. 4; in all suits against copartners, &c., where the writ has not been served on all the defendants and judgment obtained against those served, it shall not be a bar to those not served. This statute controls here: Steel v. Smith, 7 W. & S. 447; Campbell v. Steel, 1 Jones 394. Comity to a foreign state does not require a disregard of our own statute: Bank of Augusta v. Earle, 13 Peters 519; Decouche v. Savatier, 3 Johns. Chan. R. 190.
    The bond and confession of Caldwell to Barnes, Lyman & Co., is not a bar: Act of 1830, section 2, 2 Br. Purd; supra, pl. 5.

      T. M. Marshall and J. C. Marshall, for defendant in error.—
    The common law is to be taken to be the law of Wisconsin: 23 N. Y. R. (6 Smith 465); Siegel v. Robinson, 6 P. F. Smith 19. The confession of judgment by Caldwell was a satisfaction as against the other partners: Lewis v. Williams, 6 Wharton 264; Higgins’ Case, 6 Rep. 43; Wallace v. Fairman, 4 Watts 378; Welsh v. Hirst, 1 Phila. R. 50; Hogg v. Charlton, 1 Casey 202; Anderson v. Levan, 1 W. & S. 334.
   The opinion of the court was delivered, July 3d 1872, by

Williams, J.

The question presented by the first assignment of error is, whether the judgment obtained in Wisconsin against the other members of the firm extinguished the partnership-note, and discharged the plaintiff, who was not served with the summons, from his legal obligation to pay it, and if so, whether it constitutes a defence in this action. The court below charged the jury that, “at the common law, if a creditor took judgment and liquidated it against one joint debtor he lost all right to bring suit for the same claim against the other joint debtor or debtors; and as we have no evidence that such proceedings are regulated by statute in Wisconsin, we must presume that the common law prevails there, and we are therefore of the opinion that the judgment taken by Barnes, Lyman & Co. for their claim against the members of the firm other than Bennett, released him from all legal obligation to pay the debt. It was no longer a legal claim against him.”

It is undoubtedly true that by the common law a judgment against one or more of several partners on a partnership-note merges the original cause of action, and is a bar to another suit against the remaining partners who were not served with the writ of summons: Smith v. Black, 9 S. & R. 142; Downey v. Bank. 13 Id. 288. But in the absence of proof, must we presume that the common law prevails in Wisconsin unmodified by statute ? And if so, does it follow that the judgment recovered against the other members of the firm in that state was a bar to the action brought against the plaintiff in the court below to recover the amount of the note ? It is clear, that by the law of Pennsylvania it was not a bar to the action: Vanemen v. Herdman, 3 Watts 202; why, then, should we presume that it was by the law of Wisconsin ? It is well settled that in the absence of proof, the law of the state, where the contract was made, will be presumed to be the same as the lex fori: Sperrill v. Hopkins, 1 Cow. 103; Leavenworth v. Brockway, 2 Hill 201; Holmes v. Braughton, 10 Wend. 75; Foulke v. Fleming, 13 Md. 392; Bean v. Briggs, 4 Iowa 464; Whidden v. Seely, 40 Maine 247; Cabarga v. Seeger, 5 Harris 514. In Sperrill v. Hopkins the court say: “ The plaintiff having failed to show what the law of Massachusetts is, we are to presume it the same as our own;” and in Leavenworth v. Rockway, “ the onus probandi was upon the defendant to show the law of Ohio to be different from that of this state, if he wished any advantage from it.” So in Bean v. Briggs, it is said: “ If a controversy arises in our courts upon a contract made in another jurisdiction, primá facie it is to be governed by the law of this state; and if it is claimed that the law of the place of contract establishes a rule unknown to our law, such foreign law should be proven.” The doctrine of all the cases cited is, that when the law of the state where the contract was made is not shown, it will be construed according to the lex fori. Why, then, should this case be an exception to the general rule ? When Pennsylvania has abrogated the technical rule of the common law as to the effect of a judgment against one or more of several joint debtors or partners on account of its injustice, why should we presume that it is in force* in other states ? There is no state where the common law prevails that it has not been more or less modified by statute, and if so, what foundation is there for the presumption that it exists in any state without modification.? If the defendant claims the benefit of a technical defence not allowed by our law, why should he not show that he is entitled to it by the law of the state where the contract was made? It seems to me that on principle and authority we are bound to presume that the law of Wisconsin is similar to our own, and in the absence of proof we cannot presume that the common law prevails there without modification : Blystone v. Burgett, 10 Ind. 28. But the question raised here was in effect decided by this court in Campbell v. Steele, 1 Jones 394. It was there held that a foreign judgment against one of several joint owners of a steamboat is not a bar to an action against the others. In that case Rogers, J., said, in answer ,to substantially the same position as that which has been taken here.: “ But it is said that the judgment against Smith is a bar to .an action against the other partners. Strictly speaking, the owners of the boat are not partners, but tenants in common; Knox v. Campbell, 1 Barr 368; but be this as it may, the judgment against him neither merges the debt nor is it a bar to this action. The case is clearly embraced by the 1st section of the Act of '6th April 1830; for otherwise a judgment in another state would have a greater effect than a judgment in our own state.” And, after quoting the act, he continues: “In Vanemen v. Herdman, 3 Watts 202, a judgment is ruled not to be a bar to a subsequent action, even although an execution has been issued on the first judgment. Nothing but satisfaction bars a suit against other partners. This just and salutary act is entitled to a liberal construction ; and although this case does not come within its letter, it is clearly embraced by its spirit.” The question is therefore no longer an open one.

But if it had been shown that by the law of Wisconsin the plaintiff w'as discharged from all liability on the note by the judgment against the other members of the firm, could the defendant set up his discharge as a defence to this action ? The defendant did not plead the judgment and give the record of it in evidence. All the proof that we have that any such recovery was had, is found in the record of the judgment against the plaintiff for the amount of the note. The plaintiffs in that case filed a statement of their claim, and after setting out a copy of the note, they say: After the said note became due, the plaintiffs, January 8th 1858, recovered judgment against the defendants, George W. Haverstick, Chas. H. Orton and Henry Cadwell, in the United States District Court for the District of Wisconsin, for $1407.79. Elon A. Bennett, the defendant, was not served with process of summons, and on that account judgment was not obtained against him jointly with the other partners, the makers of the note. Upon this statement judgment was entered against Bennett on the 30th day of March Í861, for want of an affidavit of defence. It is admitted that if tbe defendant’s testator had had notice of the action, the judgment would have been conclusive against the executor in this action. But the judgment is primfi facie evidence of the plaintiff’s right to maintain the action, and if it cannot be collaterally impeached, it is conclusive on the defendant. What right then had he to impeach it ? He may avoid its effect by showing that his testator had a good defence to the action if he had received notice of its pendency, and been required to defend it. But he had no defence other than the recovery of the judgment against the other members of the firm in Wisconsin. But this defence is set out on 'the record in the statement of the plaintiff’s claim, and was passed upon by the court in rendering judgment against the defendant. If the plaintiffs, by their own showing, were not entitled to judgment, then the court had no right to enter judgment against the defendant for want of an affidavit of defence : Woodwell v. Bluff Mining Co., 1 Casey 365. The court, therefore, in giving judgment against the defendant, necessarily decided that the recovery of the judgment in Wisconsin against the other members of the firm was not a release and discharge of the defendant from his obligation to pay the debt. Whether the court was in error in so deciding, cannot, as it seems to me, be inquired into collaterally in this action. The court ba'd jurisdiction of the parties and of the subject-matter of the action: how then could the defendant set up the error of the court in giving the judgment as a defence to this action ? And how could the same court that rendered the judgment declare it erroneous when collaterally in question ? But it was rightly entered if Campbell v. Steele is law, and its authority has never been questioned or doubted.

There is nothing in the second assignment, and it only remains to consider the question presented by the third specification, whether the bond given by Cadwell, upon which judgment was entered in the court below, was a satisfaction of the claim against all the other members of the firm because it was a higher security than the note? Undoubtedly the acceptance of a bond or specialty from one partner is an extinguishment or satisfaction of the partnership indebtedness on simple contract. But there is no evidence that the bond of Cadwell was taken for the partnership indebtedness on the note. The judgment obtained in Wisconsin against Cadwell and the other members of the firm had already extinguished the note as against them. The bond, if taken for the partnership indebtedness, must therefore have been taken in payment or as collateral security for the judgment. There is no evidence for what the bond was given, except that it may be inferred from the assignment of the judgment entered thereon, that it was given as collateral security for the judgment obtained in Wisconsin. It was not a merger or extinguishment of the judgment, nor could it operate as a satisfaction of it unless it was taken in payment. But whether it was taken in satisfaction or as collateral security of the judgment if it was paid to the plaintiffs, or their assignee, Lyons, it was a good defence to the scire facias on the judgment against Bennett; and as it had been satisfied by Lyons before the issuing of the scire facias, it was primá facie a good defence to that action. It is clear that if Cadwell had paid Barnes, Lyman & Co., or their assignee, the amount of their judgment, it was a satisfaction of their claim against the partnership, and Bennett, if advised of the fact, he might have availed himself of the defence in the sci. fa. on the judgment. As the case goes back for a new trial, it may be proper to say that, in this aspect of it, though no error is assigned to its rejection, the court erred in not admitting in evidence the notice given by Bennett to the defendant of the pendency of the sci. fa. It is true that neither Bennett nor Cadwell could have set up a pretermitted defence, but they could have set up the payment of the judgment given hy Cadwell, for that was a satisfaction of the plaintiff’s whole claim against the partnership. As the satisfaction of the judgment against Cadwell was primá facie evidence of its payment, it was a good defence to the scire facias, and, therefore, if Bennett gave notice of its pendency, the executor was bound to appear to the action and set up the payment of the judgment by his testator as a defence, and if, after receiving the notice, he failed to do so, he is now estopped from setting it up as a defence to this action. The judgment obtained against the plaintiff under such circumstances must be regarded as conclusive of his right to recover.

It follows, from what we have said-, that the court below was in error in instructing the jury that the plaintiff was not entitled to recover the amount of the judgment obtained against him by Barnes, Lyman k Co., because his liability to them was extinguished by the judgment obtained against the other members of the firm in Wisconsin, and because the partnership note was extinguished by the bond given by Cadwell, upon which judgment was entered in the Common Pleas of Erie county.

Judgment reversed and a venire facias de novo awarded.


text:
    Kauffman’s Appeal.
    1. Confession of judgment and prsecipe for fi. fa. were handed by the plaintiff to the prothonotary on Sunday; on the next day the prothonotary entered the judgment and issued execution. Held, that the judgment and execution were valid, and had priority over other executions issued subsequently on the same day.
    2. The prothonotary was not bound to receive the papers ; his acceptance of them was not an official act; he received them as agent of the plaintiff.
    3. An auditor was appointed to distribute a fund raised by execution, the money not having been paid into court; a creditor who had no notice of the application for the appointment and did not assent to it, appeared before the auditor; but excepted to the report on this ground. The court confirmed the report. Held to be error.
    4. On filing the exception, the court should have ordered the money into court before distributing it.
    5. The fund not being within the grasp of the court, there was no authority to distribute it without the assent of the parties.
    November — 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Clarion county: No. 179, to October and November Term 1871. In the distribution of the proceeds of the sheriff’s sale of the personal property of John P. Cook.
    The records of the Court of Common Pleas of Clarion county, and the endorsements on the writs of execution showed that judgments had been entered against John P. Cook and executions issued on them as follows:—
    John R. Kron, $298.98. Entered May 8th 1871. Execution placed in sheriff’s hands same day at 6J o’clock, A. M.
    John R. Kron, $298.28. Entered May 8th 1871. Execution placed in sheriff’s hands same day at 8 o’clock, A. M.

      Charles Kauffman. Entered March 27th 1871. Placed in sheriff’s hands May 8th 1871, at 8f o’clock, A. M.
    The confessions of judgment on the Kron judgments were handed to the prothonotary at his house on the 7th of May 1871, which was Sunday, with instructions to enter the judgments on the next morning ; at the same time and place a praecipe for a fi. fa. on the first judgment was given to the prothonotary, with instructions to issue the writ the next morning.
    On the 8th of May the prothonotary entered the judgments and issued the execution on the first; a fi. fa. was afterwards on the same day issued on the second judgment; afterwards Kauffman issued a fi. fa.
    These writs severally came into the sheriff’s hands as above stated.
    The sheriff sold the goods and James B. Knox, Esq., was appointed auditor, on the application of Kron, to distribute the fund arising from the sale. The fund was not brought into court; Kauffman did not assent to the appointment of the auditor, nor had he notice of the application. The amount, after deducting all costs, including those of the audit, was $399.85.
    Before the auditor, Kauffman alleged that the transactions in relation to the Kron judgments having taken place on Sunday, the judgments and executions thereon were therefore void. Kaufman appeared before the auditor, but there made no objection to the money not having been brought into court.
    In concluding his report the auditor said:—
    “ The facts in this case showing that the work or worldly employment which gave the Kron judgments their priority over the Kauffman judgment was done on Monday, and not on Sunday, to wit: The entry upon the docket by the prothonotary and the issuing of the writs of fieri facias, would not bring the entry of the Kron judgments within the principles decided in the above stated cases cited by attorney for execution-creditor Kauffman.
    And your auditor is of the opinion that the writs issued on the said Kron judgments, being the first in the hands of the sheriff, are entitled to the funds — the distribution of which your auditor makes as per statement below
    He appropriated the whole of the fund to the Kron judgments.
    Kauffman filed exceptions, averring that the auditor erred in reporting that the transactions on Sunday in relation to the judgments, &c., did not invalidate them: also, that there was error in the proceedings for distribution, the money having not been paid into court.
    The report was confirmed.
    Kauffman appealed to the Supreme Court and assigned for error the confirmation of the report of the auditor.

      T. S. Wilson and G. A. Jenks, for appellant.
    The fund could not be distributed without being in court: Williams’s Appeal, 7 Barr 259; Troutman’s Appeal, 11 Harris 491; Masser v. Dewart, 10 Wright 534. The transactions having been -on Sunday, the judgments, &c., are void: Acts of 1705, sect. 4, 1 Sm. L. 25, April 22d 1794, sect. 1, 3 Sm. L. 177, 2 Bright. Purd. 1345, pl. 1, 3; Stearn’s Appeal, 14 P. F. Smith 447; Kepner v. Keefer, 6 Watts 231; Foreman v. Ahl, 5 P. F. Smith 325;

      W. W. Barr, for appellee.
    The act of June 22d 1871, sect. 1 (Pamph. L. 1376), 1 Bright. Purd. 658 pl. 118, authorizes distribution by assent of parties without payment of money into court. Kauffman did not object to the appointment of the auditor, nor at the hearing that the money was not paid into court. As to work, &c., on Sunday: Baker v. Lukens, 11 Casey 146; Huidekoper v. Cotton, 3 Watts 59; Jones v. Hughes, 5 S. & R. 299; Lea v. Hopkins, 7 Barr 449; Mohney v. Cook, 2 Casey 348; Shuman v. Shuman, 3 Id. 94.
   The opinion of the court was delivered, January 9th 1872, by

Williams, J.

However improper the act, the delivery of the declarations, confessions of judgment and praecipes for executions to the prothonotary at his residence on Sunday evening, did not affect or impair the validity of the judgments entered, and the executions issued in pursuance thereof the next morning. The prothonotary was not bound to receive the papers at his dwelling-house, and his acceptance of them there cannot be regarded as an official act. He did not receive them in his official capacity, but merely as the agent of the appellee; and their delivery to him on Sunday evening no more rendered the judgments and executions entered and issued thereon nullities, than if they had been handed to some other agent to be delivered the next morning to the prothonotary in his office. If, as was held in Baker v. Lukens, 11 Casey 146, a judgment will not be regarded as invalid because the warrant of attorney on which it was confessed appears to be dated on Sunday, there is still less reason for holding the judgments and executions in controversy to be invalid, for in neither of them do the papers appear to have been drawn or executed on Sunday.

But it was error to appoint an auditor to distribute the fund when it was not in court. And the error was not cured by the Act of the 22d of June 1871, Pamph. L. 1376, for it does not appear that the appellant assented to the appointment of the auditor, as provided by the act, or that in any way he waived his right to object to the appointment. The auditor was appointed at the instance of the appellee, without notice to the appellant. It is true that the latter appeared before the auditor and claimed the fund, but on the coming in of the report he excepted to it on the ground that “ the auditor was appointed Avithout the fund being paid into court.” When this exception was made the court below should have ordered the fund into court before proceeding to distribute it. It had no authority to decree distribution of a fund not within its grasp without the assent of the parties in interest: Williams’s Appeal, 9 Barr 267; Troutman’s Appeal, 11 Harris 491; Masser v. Dewart, 10 Wright 534; and for this error the decree must be reversed. The victory will be a barren one, for, on the undisputed facts of the case, the appellee is clearly entitled to the fund.

The decree is reversed at the costs of the appellee, and the record is remitted to the court below7, to be proceeded in according to law.


text:
    Chadwick et al. versus Ober et al.

    1. A scire facias Avas issued against four and returned “ nihil” as to three; the one served filed an affidavit of defence to the action as to all. An alias scire facias was issued against the three and returned “ nihil.” Judgment was taken against the three and was set aside. The defendant served, pleaded; the other three pleaded a separate plea; the plaintiff took a writ of error to setting aside the judgment. Held, that a writ of error would not lie.
    2. The action was an unit, and there should be final judgment before a writ of error would lie.
    November — 1871.
    Before Thompson, C. J., Read, Agneav, Sharsavood and Williams, JJ.
    Error to the Court of Common Pleas of Venango county: No. 193, to October and November Term 1871.
    On the 11th of July 1870, Elihu ChadAvick and others issued a scire facias sur recognisance in error to the Supreme Court, against George Ober, Augustus Hartje, Henry C. Reineman and Martin Heehelman. Service was made on Ober, and the sheriff returned “nihil” as to the other defendants. Ober, on the 2d of August, filed an affidavit of defence which went to the whole cause of action against himself and the other defendants, who were his sureties. On the 26th of August, the plaintiffs issued an alias scire facias sur recognisance which was returned “nihil.”
    On the 14th of December, the plaintiffs entered judgment against Hartje, Reineman and Heehelman after two returns of “nihil.” The judgment was certified to Allegheny county and entered there, becoming a lien on the defendants’ real estate there. On the 10th of March 1871, the court (Trunkey, P. J.) set aside the judgment upon a rule to show cause, &c. On the same day, Ober pleaded “nul tiel record,” payment with leave, &c. The other defendants pleaded payment with leave, &c.
    On the 29th of September 1871, the plaintiffs removed the record to the Supreme Court, and assigned for error, setting aside the judgment against Hartje, Reineman and Hechelman.

      McCalmont & Osborn and C. T. Bonsall, for plaintiffs in error,
    cited Horner v. Hower, 3 Wright 126, as to the decree of the court here being reviewable in Supreme Court.

      A. B. McCalmont and S. H. Geyer, for defendants in error.—
    Grant v. Hickcox, 14 P. F. Smith 334.
   The opinion of the court was delivered, January 9th 1872, by

Thompson, C. J.

The writ of error in this case brings up a record upon which final judgment has not been entered. It was an action on a recognisance of bail in error to which an affidavit of defence was filed by Ober, one of the defendants, in favor of himself and the other defendants, his sureties. No judgment was taken for want of an affidavit of defence or otherwise, and'Ober pleaded nul tiel record, payment icith leave, &c. There the case as to him stands. As to the other defendants there was no service, two nihils being returned on successive sci. fas. Judgment was entered against them in the prothonotary’s office for want of appearance, and as I understand it, liquidated for the whole penalty in the recognisance, and a transcript taken to Allegheny county to make a lien on the property of the defendants, or some of them. The court below on motion, struck off this judgment as irregularly entered, and then these defendants appeared and pleaded to the action, and so the matter now stands as to them. Until the case, thus untried and ready for trial, is disposed of, no writ of error lies. When that is done the whole record can be reviewed in this court, but not until then. If there were nothing else in the Avay but the untried issue tendered by Ober, the case aa7ouM not be reviewable until that was disposed of. The action is a unit, although against several, and there must be final judgment, or something in,the nature of final judgment, on the record before it is ready for review in this court. If this were not so, Ave might have several Avrits of error on a single judgment by the same party in the same case. We have very often said this, and when it is not regarded in practice, we universally quash the writ of error.

Writ quashed.