author: Chief Justice Agnew

text:
    Overseers of the Poor of the City of Williamsport versus Overseers of the Poor of Eldred Township.
    A married woman divorced a mensa et thoro on account of the cruel treatment of her husband, who has deserted her and moved to another state, can inquire a settlement in her own right entitling her to support as a pauper.
    June 4th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.

      Certiorari to the Court of Quarter Sessions of Lycoming county: Of May Term 1877, No. 220.
    This was an appeal, by the Overseers of the Poor of Eldred township, from an order of removal of Sarah Boyer, who had become chargeable to the poor district of the city of Williamsport. It appeared that Sarah was the wife of George Boyer, who owned real estate in Eldred township at and prior to the year 1867. On the 10th of September 1869, upon application by said Sarah, a decree of divorce a mensa et thoro was made by the Court of Common Pleas of Lycoming county, with alimony of $150 per annum.
    The causes shown for divorce were the cruel and barbarous treatment of her husband, an attempt on his part to poison her, adultery and desertion. Spon after the decree in divorce, George Boyer sold his real estate and moved to Virginia, where he purchased real estate and acquired a legal settlement under the laws of that state. After the decree in divorce Sarah rented a house in Williamsport at a rental of $6 per month, resided therein and paid the rent for more than two years, when becoming chargeable to the district the order of removal to Eldred township was obtained, that being adjudged to have been her last place of legal settlement.
    From this order the Overseers of Eldred appealed. •
    . Several points were submitted by the Overseers of the city of Williamsport, embodying substantially this proposition: Can a married woman who has been divorced from the bed and board of her husband, acquire for herself a legal settlement by complying with the requirements of the Act of Assembly ?
    The court, Gamble, P. J., reversed the order of removal and affirmed the foregoing proposition in an opinion, inter alia, saying
    “ By a judicial decree Sarah A. Boyer was divorced from the bed and board of her husband, thus legally changing her right of domicile from his house and home to such other place as she might choose. Does not this necessarily include the right to contract for a new home and the necessaries and comforts of life, independent of her husband, and to that extent to act as a feme sole ? The law is not so inconsistent as to authorize her to live separate and apart from her husband, and withhold the right and power of securing a home and a living elsewhere. Surely, to this extent, she must of •necessity be accorded the rights of a feme sole.
    “ In this case it is only necessary to accord to Mrs. Boyer the humane and beneficial right to acquire a settlement on the common terms prescribed by the legislature for all or £ any person.’ By the third paragraph of the ninth section of the Act of 1836, it is provided that a settlement may be gained in any district, £ by any person who shall bona fide £ take a lease of any real estate of the yearly value of $10, and shall dwell upon the same for one whole year and pay the said rent.’

      “ It is not necessary that the lease here mentioned should be in writing-; going into possession and paying a rent for the premises that are of the yearly value of $10, and dwelling upon the same one whole year, gives a settlement: Beaver v. Hartley, 1 Jones 254.
    “The undisputed evidence in this case, is that Mrs. Boyer took a parol lease of a tenement house in the city of Williamsport, of the yearly value or rental of $72, or $6 per month, and dwelt upon the same from July 1st 1871, to April 1st 1874, and paid the rent for the whole period, excepting the months of February and March 1874. That this is a full and literal compliance with all that the law requires there is no room to question or dispute.
    “ The policy of liberality and humanity which has always characterized the rulings of the courts of Pennsylvania in the administration of her laws designed to ameliorate the condition of the poor, may therefore be concentrated with all its persuasive power against the single doubt of her capacity to acquire the humble right to a legal settlement, which the law so freely accords to any person.

    “ I have no hesitation in arriving at the conclusion that under the law and the evidence, Sarah A. Boyer did acquire a legal settlement in the city of Williamsport, which supersedes the derivative settlement to which she was formerly entitled in the township of Eldred. Whatever legal disabilities may still attach to her by reason of the remaining vestiges of her coverture, she is legally authorized to change her domicile and to live separate and apart from her husband, which necessarily includes the right to make and enforce contracts pertaining to the same, and vests in her the legal beneficial incidents to all such contracts.”
    The Overseers of the Poor of the city of Williamsport took this writ, assigning for error the action of the court in reversing the order of removal.

      S. T. &. H. C. McCormick, for Overseers of Williamsport.
    A divorce a mensa et thoro does not destroy the relation of husband and wife so as to make the latter a feme sole.: 2 Bright on Husband and Wife 362; Schouler’s Domestic Relations 301. In support of their decision the court below cited Starrett v. Wynn, 17 S. & R. 130, but that was a case of desertion. It is contended that no person can obtain a legal settlement who is not sui juris, so that the contract between the poor district and the party is mutual. The separation between the husband and wife in this, instance may be destroyed by the parties at any time and she is not such person therefore as the law contemplates. The construction that “ any person” who shall bona fide take a lease shall thereby acquire a legal settlement is too literal an interpretation of the Act of 1836.

      R. P. Allen and J. M. Gamble, contra.
    Under our various Acts of Assembly, many rights are conferred upon married women to enable them to make contracts-and to derive the profits of their labor. The law thus assists them by giving them these rights when abandoned or neglected while married. Is it not unreasonable then to contend that when the law itself decrees a divorce a mensa et thoro that a woman so situated has not a right to make a lease or contract and that she does not thus acquire a legal settlement.
    June 18th 1877.
   Chief Justice Agnew

delivered the opinion of the court,

The question presented in this record is whether a wife, who has been divorced a mensa et thoro, on account of the cruel and barbarous conduct of her husband, and indignities to her person- rendering her condition intolerable, and life burdensome, and whose husband has deserted her, and moved out of the state, can acquire a settlement in her own right, entitling her to support as a pauper. If she cannot her lot is hard indeed, when she becomes old. and feeble, and unable to support herself. But we think the effect of the divorce, which separates her from the domicile of her husband, and of his cruel conduct, and final desertion leads to a different conclusion. The place of her husband’s settlement is no longer her home. She is cast out to seek a residence and a home where best she can find it, and if this leads her into another township or city, why shall she be denied the privilege of seeking comfort and a support, where the best opening offers to her wandering steps ? Humanity and laAV, its handmaid, do not say nay. Coverture alone bound her to her husband’s settlement, because it made her husband’s house her home. But when the law separated her from it, she became a houseless Avanderer, unless she can find another by her own volition. Then Avhen we add the legal consequences of her husband’s conduct, an emancipation from her condition as a feme covert, so far arises, that she is permitted to act as a feme sole in many respects which tend directly to the acquisition of a home.

By the second section of the Act of 4th May 1855, “ Whensoever any husband, from drunkenness, profligacy, or other cause, shall neglect or refuse to provide for his Avife, or shall desert her, she shall have all the rights and privileges secured to a feme sole trader under the Act of 22d February 1718, entitled an act concerning feme sole traders and be subject as therein provided; and her property, real and personal, however acquired, shall be subject to her free and absolute disposal during life, or by will, without any liability to be interfered Avith or obtained by her husband; and in case of her intestacy shall go to her next of kin, as if he were previously dead.” So the third section of the Act of 11th April 1856 declares that “ Whensoever any husband shall have deserted or separated himself from his wife, or neglected or refused to support her, or she shall have been divorced from his led and board, it shall be lawful for her to protect her reputation by an action for slander or libel; and she shall also have the right by action to recover her separate earnings or property.” Black v. Tricker, 9 P. F. Smith 13, decides that the acts or conduct of the husband, which under the Act of 1855 give rise to these privileges of the wife, establish her rights ipso facto, and the decree provided for in the fourth section for the security of creditors, is not necessary to confer them. It says also, that the third section of the Act of 1856 being in pari materia proves satisfactorily that a decree as a feme sole trader is not essential to the assertion of her rights and privileges in regard to her property.

In reference to the 2d section of the Act of 1855, Chief Justice Thompson said, “ The section was designed to suspend the marital rights of the husband as a consequence of the acts enumerated, and at the same time to relieve the wife from her marital disabilities.” It will be noticed also that the 3d section of the Act of 1856 expressly includes a case of divorce a mensa et thoro. This suspension of marital rights of the husband, and the power to trade, earn property, defend it, and keep it to herself and her children, unite, in enabling her to secure a place of business and a home, and thereby to obtain a settlement as the necessary consequence of her legal rights. The fact that in this case Mrs. Boyer did those acts, which, if a feme sole, would secure her a settlement in the city of Williamsport, is not disputed. Having then in this respect the power of a feme sole, as we have seen, it follows that this settlement was legally acquired and the city is liable for her support as a pauper.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    White versus Crawford.
    1. Where a contract provides that judgment may be entered without stay of execution after the day of payment, the legislature has not the power to grant a further stay or to suspend for an unreasonable time the execution of the judgment.
    2. The Act of the_17th of February 1876, gives courts of Common Pleas power to authorize an assignee for the benefit of creditors to make public sale of the real estate of the assignor, and declares that when an order of sale is -made the court may order a stay of execution on all liens that may be divested by such sale until such order shall be extended or revoked. Held, that the court, under this act, has no authority to order a stay of execution upon a judgment the defendant in which had expressly waived the stay of execution.
    3. If it is intended that an enactment shall have any other than a prospective operation, this intent must be expressed in unmistakable language.

      June 4th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of laicomina county: Of May Term 1877, No. 160.
    This was a proceeding upon a judgment wherein Henry White, to the use of the Savings Institution, was plaintiff, and William Crawford defendant.
    On the 11th of April 1873 William Crawford gave his judgment note, under seal, to Henry White for $3000, payable one year from date, yjherein he authorized any attorney to appear for him' and confess judgment, “with costs of suit, release of errors, waiver of stay of execution, the right of inquisition on real estate and all exemption laws.” The note was transferred to the Savings Institution and judgment entered thereon on the day of the date of the note.
    On the 14th of September 1876, William Crawford made and delivered to John K. Crawford a deed of assignment of all his estate, in trust, for the benefit of creditors. On the 15th of the same month his assignee petitioned the Court of Common Pleas for an order of sale of the real estate of said William Crawford, in pursuance of the terms of the Act of February 17th 1876, Pamph. L. 4, entitled, “ An act to enable assignees for the benefit of creditorg to make sales of real estate encumbered by liens,” the second section of which provides: “ Whenever said court shall grant an order of sale as aforesaid, said court may order a stay of execution on all liens that may be divested by such.sale by the assignee, until said order shall be extended or revoked: Provided, that it shall be lawful for said court to extend any order of sale granted as aforesaid, or to award an alias or pluries order of sale.”
    On the 21st of October 1876, the court, Gamble, P. J., made the following order: “ After hearing and argument, the assignee having filed a bond with approved securities and all the lien creditors having had notice, and it appealing to be for the interest of all parties that the real estate should be sold, it is ordered,
    “ That said John K. Crawford, assignee, &c., make public sale of all the real estate described in said petition in such parcels as said assignee may deem most advantageous to all parties in interest, requiring from the purchaser or purchasers thereof twenty per cent, of said purchase-money down at the time of sale, and the balance in three equal payments at six, twelve and eighteen months from the confirmation of said sale, with interest, to be secured on the premises, except where the purchase-money exceeds $20,000, in which case the balance to be paid in four equal payments, at six, twelve, eighteen and twenty-four months, with interest. The interest on all unpaid purchase-money to be paid annually. And the court further order that the said assignee make return to this order of sale during the next regular term of court, said sale to be made at the court house during said term, after having been duly advertised according to law. All executions to be stayed -on all liens upon said real estate which would be divested by such sale until otherwise ordered by the court.”

      In compliance with this order the fi. fa., in White v. Crawford, was stayed.
    The plaintiff then took this writ, assigning for error, 1, the order of sale of the real estate and the staying of the fi. fa., and, 2, the staying of the fi. fa., when the contract of the parties contained a special waiver of the stay of execution.

      Henry C. Parsons and Henry W. Watson, for plaintiff in error:
    Where a contract provides that judgment may be entered “without stay of execution” after the day of payment an act which grants a further stay impairs the obligation of the contract and violates the constitution: Billmeyer v. Evans, 4 Wright 324; Breitenbach v. Bush, 8 Id. 318; Lewis v. Lewis, 11 Id. 127.
    The assignee of William Crawford takes his property subject to all the rights, liabilities and contracts made by him. He stands in exactly the same position, and yet notwithstanding the express agreement of his assignor, William Crawford, as contained in the single bill or judgment note before recited, the court have stayed the execution of the plaintiff and given the assignee power to sell the real estate of the defendant at a credit extending over two years from the date of said sale.

      S. T. & H. C. McCormick, for the defendant in error.
    It is true that this court has decided that the Act of May 21st 1861, Pamph. L. 770, granting an absolute stay of execution for one year on all judgments, was in conflict with the constitution so far as it related to judgments in which an express waiver of stay of execution was a part of the contract. But that act was designated as, and had the effect of, an absolute stay law, and was evidently intended to prevent the collection of debts. No such intention appears in the Act of 17th of February 1876. It is entitled “ An act to enable assignees for the benefit of creditors to make sales of real estate encumbered by liens.” This is not the language of a stay law.
    The order directs the assignee to sell the real estate and make return to the order at the next term of court. Such sale of course is for the benefit of the lien creditors who must be paid out of the proceeds of the sale in their order. The order to sell granted to the assignee is simply another form of execution; he is acting as an officer of the court; if he unreasonably delay a sale, any lien creditor is certainly in a position to ask the court that he be made to show cause why the sale should not be made. Does then, this change of remedy impair the obligation of the contract ?
    An act which merely gives an additional remedy to enforce a contract is not unconstitutional: Taggart v. McGinn, 2 Harris 157; Chadwick v. Moore, 8 W. & S. 50.

      October 1st 1877.
   Mr. Justice Mercur

delivered the opinion of the court,

On the 11th of April 1873 the defendant executed, under seal, the note on which this judgment was entered. He therein agreed to pay three thousand dollars, one year after date. He authorized any attorney of any court of record to appear for him, and to confess judgment against him for the said sum “with costs of suit, release of errors, waiver of stay of execution, the right of inquisition on real estate, and all exemption laws.” On the same day judgment was duly entered on the note.

Thus the written contract shows the defendant expressly waived all stay of execution, after the maturity of the note. The waiver was part of an entire contract. It was founded on a sufficient consideration. No policy of law forbade it. He had an undoubted right to so agree. After the expiration of the year, he could not interpose any further stay. The right of the holder to execution, became complete. It is not alleged that under any law, then existing, the order of 21st October 1876, staying execution, could be sustained. Is such a stay authorized by the Act of 17th February 1876 ? Section first of this act gives the Court of Common Pleas power to authorize an assignee, for the benefit of creditors, to make public sale of the real estate, of the assignor, “at such place and. upon.such terms as the said court shall direct.” It further declares that after confirmation, said sale shall discharge all liens against the real estate so sold, excepting mortgages prior to other liens, ground-rents, and purchase-money due to the Commonwealth. Section two declares that when such an order of sale is made, the “ said court may order a stay of execution on all liens that may be divested by such sale by the assignee until said order shall be extended or revoked.” It also authorizes the court to extend an order of sale which it had granted, or to award an alias or pluries order therefor.

It is not entirely clear that the legislature intended this act to apply to cases in which the parties had agreed there should be no stay. It makes no specific reference to such cases. In Dewart v. Purdy, 5 Casey 113, it was said nothing but the most indubitable phraseology will induce this court to hold that the legislature intended an enactment to have any other than a prospective operation. With fully equal reason we should hold that the legislature did not intend to change- the terms of an existing contract, unless the act expressed such intention in clear language. Applying that rule to the Act of 1876, it would not affect the note in question. If, however, we concede that the general terms of the act are sufficiently broad to include this judgment, then other questions arise. Is the act within the limits of constitutional power? Can the legislature thus impair a contract ? When the parties have not specifically contracted in regard to the remedy for the collection of a debt, it must be conceded that the legislature may pass laws altering, modifying or taking away an existing-remedy for the recovery thereof, without violating the provision- of .the constitution which forbids the passage of laws impairing, the-obligation of contracts. This is because a distinction is recognised between the obligation of a contract and the remedy give'n by. the legislature to enforce that obligation. It was said by Mr. Chief Justice Marshall, in Stages v. Orowninshield, 4 Wheat.; 122,- to be a distinction which “ exists in the nature of things,”. Although a right without some remedy for its enforcement would be of no practical value, yet nevertheless they are distinct things.

Usually parties do not contract as to the manner of ascertaining the damages, nor as to their measure, in case of a failure to fulfil the substantial obligations of an agreement. They leave these questions to be settled in the manner provided by general law. Yet when they do contract in regard to them, the contracts become of binding force, and the courts must so recognise them. Thus in a contract for the construction of a railroad, full effect is given to a clause providing that the decision of the chief engineer shall be final and conclusive in all matters of dispute arising between the parties to the agreement as to the proper execution of the work. In like manner, an agreement liquidating the amount of damages in case of a non-performance of the contract, will be enforced.

Whenever the parties have made the legal remedy the subject of their contract, that portion of their contract is as far removed from subsequent legislative action as the main obligation of their contract. Where legislative power is unable to impair the one, it cannot the other: Billmeyer v. Evans et al., 4 Wright 324; Breitenbach v. Bush, 8 Id. 313; Lewis v. Lewis et al., 11 Id. 127.

Conceding that the legislature may lawfully change the mode of selling the defendant’s real estate; that it may authorize it to be sold by virtue of-an order to the assignee, instead of by writ to the sheriff; that it may authorize a stay of proceedings on the latter, while the power of sale is being exercised on the former, with-, out infringing on that clause in the constitution which denies it the power of impairing a contract, it by no means follows that it can postpone the collection.of the debt for an unreasonable time.

This brings us to a consideration of the terms and effect of. the order made by the court, It declares that the purchaser shall be required to pay twenty per cent, of the purchase-money at the time of sale, “ and the balance in three equal payments, at six, twelve and eighteen months with interest.” If, however, the bid should exceed twenty thousand dollars, the excess above the down payment shall be in four equal payments, at six, twelve, eighteen and twenty-four months with interest.

The record before us fails to show the relative position of the plaintiff’s judgment in the order of liens. In view, however, of the time given to the purchaser to make his payments, we think the action of the court in thus staying the plaintiff in the collection of his debt, is an abuse of the power intended to be given by the Act of Assembly. We discover nothing in the act indicating a purpose to postpone the collection of judgment liens for such an unreasonable time. The object is to pass to the purchaser a title as free and unencumbered as if acquired by virtue of a sheriff’s sale, made on execution issued upon a judgment lien; and to stay execution while the assignee is proceeding to sell; but not to unduly postpone the time for payment of judgment liens thereby divested. We think the learned judge misapprehended the design of the statute and gave to it an improper effect. The order staying execution must therefore be reversed. Order reversed.


author: Per Curiam.

text:
    City of Williamsport versus Brown.
    The Act of 1st of April 1872, limiting the rate of taxation for city purposes in the Seventh Ward of the city of Williamsport, and classifying lands subject to this tax, is not inconsistent with the provisions of the Act of May 23d 1874, relating to cities, and not repealed by the latter act.
    June 4th 1877.
    Before Agnew, C. J., Mercur, G-ordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Lycoming county: Of May Term 1877, No. 111.
    Assumpsit by Adam C. Brown against the city of Williamsport, wherein the following case was stated for the opinion of the court:—
    The city of Williamsport was incorporated by an Act of Assembly of the 15th of January 1866.
    By a supplement to said act, approved the 22d day of March 1870, the authorities of said city were authorized “ to levy and assess upon the valuation of all taxable property for county purposes,” an amount not exceeding four per cent., in one year, for city purposes.
    On the 1st of April 1872, a further supplement to said act of incorporation was approved, which provided: “ That it shall be the duty of the assessor of the Seventh Ward of the city of Williams-port, immediately after the annual assessment in each year, to certify to the city council a list of the assessments of all lands in said ward which are used as farms, and from which no portion has been sold during the preceding year for the purpose of laying out building lots ; and it shall be the duty of the council in determining the rate of taxation for each year for city purposes to assess a tax on the lands embraced in the list aforesaid equal to one-third of the highest rate of taxes required to be assessed for the purpose aforesaid, for said year and no more, and all other real estate in said Seventh Ward a tax equal to ihree-fourths of the highest rate of taxes as aforesaid.”
    On the 3d of January 1876, the city council adopted the provisions of an Act of Assembly, approved the 23d day of May 1874, entitled “An act dividing the cities of this state into three classes,- * * * and providing for the incorporation and government of cities of the third class.”
    On the 4th of February 1876 the governor issued letters patent, whereby he certified the surrender of the former charter and the acceptance of the provisions of the aforesaid Act of Assembly, and declaring that from the date of such certificate the said city should be governed, controlled and regulated by and under the provisions of the aforesaid act.
    On the 1st of June 1876 an ordinance was passed by the city council, entitled an ordinance assessing city taxes for the year 1876, which said ordinance provides “ that there shall be assessed and levied for general revenue purposes, for the year 1876, ten mills on tbe dollar on the assessed valuation on all the real, personal and mixed property within the limits of said city, taxable according to the laws of the state of Pennsylvania,” and providing, in addition thereto, that “ there shall be assessed for the payment of loans to support the government of said city, and for making the necessary improvements therein, one per centum upon the assessed valuation on all persons, real and personal property, and all other matters and things within said city taxable for state and county purposes.” In addition to the foregoing provisions, the said ordinance provides that “there shall be levied upon the assessed valuation of the taxable property of said city, one mill upon the dollar of such valuation, to be called the sinking-fund tax, to be applied to the redemption of the .funded debt of said city.”
    The said ordinance further provides that “ there shall be levied and assessed, in addition to the amount above specified, on all taxable property within said city, five mills on the dollar of the valuation thereof, for the payment of interest on the funded debt of said city.”
    The plaintiff is the owner and occupant of fifty-two acres of land in the Seventh Ward of said city, used by him exclusively for farming purposes, “ and from which no portion has been sold during the preceding year for the purpose of laying out building lots.” This property was assessed for county purposes, for 'the year 1876, at the sum of $1472.
    By virtue of the above recited ordinance, the city authorities of the said city have levied, for general revenue purposes for the year 1876, the sum of $14.72 on the valuation of the land aforesaid; $14.72 for the payment of loans and making improvements in said city, $1.47 for the purposes of a sinking fund, and $7.36 for the payment of interest on the funded debt of said city; amounting in all to the sum of $38.27, being the uniform rate throughout said city-
    The said plaintiff has paid one-third of the taxes thus levied upon his property, to wit, $12.25, voluntarily, and the remaining two-thirds, to wit, the sum of $25.52 cents, the said plaintiff has paid to the city treasurer under protest, to prevent a levy and sale of his property.
    If the court should be of opinion that the full rate of taxation was illegally levied upon the said real estate of the plaintiff, then judgment to be entered in favor of the plaintiff for $25.52 and costs. If of a contrary opinion, then judgment to be entered in favor of the defendant for costs.
    The court, Gamble, P. J., entered judgment for the plaintiff in an opinion, inter alia, saying:—
    “ It is claimed, that inasmuch as this Act of 1872 is entitled a supplement to the charter of the city, it thus constituted a part of the same, and was surrendered and ceased to have any force or effect, upon the acceptance by the city-of the Act of the 23d of May 1874, commonly known as the ‘ Wallace law.’ Without stopping to inquire whether the Act of 1872 can bepropei-ly regarded as a part of the charter of the city, but granting for the present that it may be so considered, it must be shown to be inconsistent with the provisions of the Act of 1874, or else it is preserved by the express terms of the section providing for the acceptance of that law, and the surrender of the former charter. That section provides .that no such acceptance of the act shall be construed to be a repeal or surrender of any rights, powers, privileges and franchises, heretofore by law conferred on such city, not inconsistent with the provisions of this act.
    “ It is argued with force and ability that the special provisions of the Act of 1872, as noted in the ‘case stated,’ are inconsistent-with the first clause of the 20th section of the Act of 1874.
    “ There is no apparent inconsistency in the letter or spirit of these acts; the one specifies the maximum rate of taxation per annum on all real and personal property within the limits of the city, taxable according to the existing laws of the state: the valuation to be taken from the assessments under the provisions of law regulating the same. The other requires all the real estate of the Seventh Ward to be assessed and returned for taxation, with a certificate designating such lands as are used exclusively as farms, which shall be taxed at a rate equal to one-third of the highest rate of taxes to be assessed for city purposes for the current year. This is simply a mode or means of fixing a valuation on the farm land, for the purposes of taxation for city purposes, so as to cause the burden to bear an equitable and fair relation to the advantages derived from the city government. Such is the purpose of the Act of 1872, as declared in the preamble.

      “ Instead of repealing the existing laws regulating the mode of assessment, the Act of 1874 expressly provides that the valuation for the purposes of taxation shall be taken from the assessments made under existing laws regulating the same.”
    The entry of judgment for plaintiff was' the error assigned by the city.

      Henry W. Watson, for plaintiff in error.
    The Act of 1872 was a part of the former charter of the city, which her councils by the acceptance and adoption of the Act of 1874 surrendered. It is further contended that the provisions of the two acts are repugnant.
    Even if the Act of 1875 was not accepted by the city is not the division or classification of the property subject to tax into three classes a legislative declaration that all property of any city which has accepted the Act of 1874 shall be taxed equally and in the same proportion on its assessed valuation? The Act of 1872 by its terms applies only to the “Seventh Ward,” and is consequently in violation of sect., 1 art. 9 of the Constitution: Pittsburgh v. Roup, 1 W. N. C. 254.

      S. T. & H. C. McCormick and H. H. Cummin, for defendant in error.
    There is nothing in the general city law inconsistent with the provisions of the Act of April 1st 1872, Pamph. L. 705. On the contrary, it is provided in clause 1 of section 20 that the city shall levy and collect taxes for city purposes under the provisions of existing laws regulating the same. To repeal an act impliedly, it must be so clearly repugnant with the act to be repealed, that they cannot stand together: Dickinson v. Dickinson, 11 P. F. Smith 405. The constitutionality of the Act of 1872 is sustained by Lehigh Iron Co. v. Supervisors of Lower Macungie Township, 31 P. F Smith 482.
    June 18th 1877,
   The judgment of the Supreme Court was entered,

Per Curiam.

We think the Act of 1st April 1872, limiting the rate of taxation for city purposes in the Seventh Ward of the city of Williamsport and classifying lands subject to the tax is not inconsistent with the provisions of the Act of May 23d 1874, Pamph. L. 230, relating to cities, commonly called the “ Wallace law;” but can well stand with the latter. It affords a very just means of regulating taxation. The power to classify the subjects of taxation still remains under the new constitution: Kittanning Coal Co. v. Commonwealth, 29 P. F. Smith 100.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    The Singer Manufacturing Co. versus Rook et ux.

    Where a married woman joins her husband in a mortgage to encumber her separate estate, as to a bona fide mortgagee, for value, without notice of fraud or imposition in the procurement of the execution of such instrument, the certificate of the magistrate who takes the acknowledgment is conclusive of every material fact expressed therein.
    June 5th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Lycoming county : Of May Term 1877, No. 30.
    Scire facias sur mortgage issued by The Singer Manufacturing Company against D. N. Rook and Hannah his wife.
    In 1869 Rook wras appointed the agent of the company plaintiff by Ober, its manager, and the mortgage in suit was given by Rook and his wife on the separate estate of the wife as security for the sewing machines that would be forwarded to him for sale. On the termination of his agency in 187 0, Rook was indebted to the company from sales to the amount of about $2000, the evidence of which were two notes he had given the company and which constituted the claim upon the mortgage. The mortgage was in due form and after being recorded was forwarded to the company by mail. The defence was that Mrs. Rook executed the mortgage under duress; that she was persuaded by her husband to do it without knowing its contents and that she ivas deceived by him as to what the contents of the instrument were.
    At the trial, before Gamble, P. J., the plaintiff gave in evidence the bond and mortgage, proved the agency, the condition of Rook’s accounts when the agency terminated and that he was indebted to the company in the amount of two notes which the company held, and there rested.
    The defendants offered to prove by D. N. Rook, the witness upon the stand, that a few days prior to the execution of the mortgage by Hannah M. Rook, his wife, the managing agent of plaintiff suggested to him to get her to execute such an instrument; that the witness informed his wife of the conversation had with said agent, and asked her whether she would be willing to give said mortgage ; that she positively declined doing so, and said that under no circumstances would she agree to any such thing; that witness tried to persuade her to yield, but all his persuasions were unavailing; that he then saw the said agent and told him about his wife’s unwillingness to execute a mortgage, and also informed him that she was very unwell, and suggested that he had better give the agency to Isaac A. Simpler; that the said agent stated he preferred him (Rook) because he had been recommended to him as a good and efficient party for the purpose of making sales, &c., and at the same time remarked to witness, that he (witness) could induce his wife to think better of the matter by and by, and have her execute tbe instrument by getting it drawn, and taking the officer to his house and having her acknowledge it there; witness replied he would manage in some way to have her execute it; and thereupon caused the mortgage to be prepared and took a justice of the peace with him to his house, and had her sign it; that she was not informed of the contents thereof, nor was she examined separately and apart from her husband; that witness, said to her when they came into the house that this paper was - all right, and pointed to the place where she should sign it, and she there put her name to it; that witness, being her husband, was present in the room with her during all the time the officer was there; that he told her this instrument'' could not affect her property, it was only a matter of bail upon which she could not become liable; that said Hannah M. Rook, at the time of the execution and alleged acknowledgment, was entirely ignorant of the nature and character of the instrument she was executing, and did not discover her mistake until about the 1st of June following, whereupon she became alarmed, and very much dissatisfied; that about the 20th of the same month, witness met J. W. Truxell, an agent of said plaintiff, and informed him that his wife had discovered that the instrument she had executed was a mortgage, and that she was distressed about it, and wanted it cancelled, and he, witness, therefore proposed to settle up with the company and do no more business for them; that said agent then said she never should be affected by it, and he should keep right on; that at the time of said conversation, the plaintiff only held two notes against him, both of which have been paid since. Further, that at the time of the execution of said mortgage said Hannah M. Rook was very unwell and unfit to do business, being by reason of her physical condition at that time kept a great portion of the time under the influence of chloroform, to be followed by proof that the bond accompanying the mortgage was never executed by her, nor did she ever see it or know anything of its contents. Further that said bond is not for the payment of any debt of defendants or either of them, nor intended for the payment of any particular sum of money, but simply for the discharge of the duty of said D. N. Rook as agent for plaintiff. Further, to be followed by the evidence of Hannah M. Rook and others, that she did not voluntarily execute said mortgage, but it was executed wholly at the instigation of, and under the influence of her husband, without knowing the nature and character thereof.
    Plaintiff objected, 1. Because the defendants do not propose to prove that the company, plaintiff, had any knowledge of any fraud practised upon Mrs. Rook, either in procuring the mortgage or in her acknowledgment thereof; nor 2. To prove that the plaintiff is not a bona fide holder for value of the mortgage upon which suit has been brought.

      Objections overruled and evidence admitted. Plaintiff excepted and bill sealed.
    The same witness was then asked if he had held a conversation with Truxell about this mortgage, and if so, what ?
    Defendant objected to evidence of this conversation until the nature and scope of the agency of Truxell had been proved by other testimony.
    The court overruled the objection and admitted the testimony, which was in substance what is contained in the foregoing offer in regard to meeting Tr.uxell, and having a conversation with him in relation to the mortgage. It appeared that Rook had paid Truxell money for the company, and had taken his receipt therefor, and that the manager afterwards recognised this action of Truxell.
    The points submitted by the plaintiff and the answers of the court were as follows:—
    1. That there being no evidence in this case that the plaintiffs knew that any fraud had been practised upon Mrs. Rook at the time the mortgage was given, the verdict must be for the plaintiffs.
    Answer. “ To avoid the acknowledgment of a married woman, properly certified by a competent officer, it is necessary to prove fraud, duress, or moral constraint practised upon her to obtain her signature, or that the essentials of the law were omitted by the officer, and knowledge of which, or circumstances which should lead to an inquiry, must be brought home to the plaintiff; but the court decline to say that there is no evidence in this case of such circumstances/’
    2. That, as the evidence shows that the plaintiffs were bona fide holders for value of the mortgage, they cannot be affected by any fraud practised upon Mrs. Rook at the time of its acknowledgment, unless they had notice of the fraud.
    Answer. “ This point is affirmed, with the additional qualification : that if the jury are satisfied, from the evidence, that the managing or general agent of the plaintiffs, who transacted this business, had knowledge of circumstances which should have put him upon inquiry, then the plaintiff would be affected by the fraud practised upon Mrs. Rook.”
    The verdict was for the plaintiff for $2600, as against D. N. Rook, but not against his wife.
    The company then took this writ, assigning for error, inter alia, the admission of defendant’s evidence under the foregoing offers, and the answers to plaintiff’s points.

      Henry C. Parsons, for plaintiff in error.
    There was no evidence to show the company was not a bona fide holder of the mortgage for value, nor that it had knowledge of the fraud practised upon the wife. As a bona fide holder of the mortgage, without notice of the fraud, as against the company, the acknowledgment could not be impeached.: Louden v. Blythe, 3 Casey 22; Hall v. Patterson, 1 P. F. Smith 290; McCandless v. Engle, Id. 309; Heeter v. Glasgow, 29 Id. 79.

      John J. Metzger, for defendants in error.
    It may he shown by parol, that the acknowledgment of the wife was not done of her own free will and that undue measures were employed in obtaining it, and if the company had knowledge, which should have put it upon inquiry as to the manner in which this acknowledgment was obtained, and failed to inquire, it must abide the consequences, if the acknowledgment is avoided: Louden v. Blythe, 4 Harris 532; Idem, 3 Casey 22; McCandless v. Engle, 1 P. F. Smith 309.
    June 26th 1877.
   Mr. Justice Gordon

delivered the opinion of the court,

■ When a married woman joins her husband in a deed or mortgage to convey or encumber her separate estate, as to the bona fide vendee or mortgagee, for value, without notice of fraud or imposition in the procurement of the execution of such instrument, the certificaté of the magistrate, who takes the acknowledgment, is conclusive of every material fact expressed therein. This certificate of the ofiicer is a judicial act and cannot be impeached except for fraud. As to him who has notice, or who has parted with no valuable consideration, the wife may avoid the instrument by showing that she was entrapped into the execution of it by craft or treachery or compelled thereto-by force: Louden v. Blythe, 3 Casey 22; Williams v. Baker, 21 P. F. Smith 476; Heeter v. Glasgow, 29 Id. 79. Applying the principles above stated to the case in hand, it becomes manifest that certain of the instructions, of the learned judge of' the Common Pleas to the jury, were wrong. The consideration for the mortgage in suit was good and valuable, and the certificate of acknowledgment was in all particulars regular, and was prima facie evidence of the truth of the matters therein set forth. True it undoubtedly is, conceding the testimony of Rook himself to be correct, that a most wicked and shameful fraud was perpetrated upon this married woman, when sick and in trouble, by her own husband, in procuring her signature and acknowledgment to an instrument the nature and character of which were carefully concealed from her. But of all this, Ober, the agent of the company, knew nothing; for the execution was had in his absence, and the paper itself, after it was put of record, was sent to him by mail. It is true Rook says he informed him that his wife was unwilling to sign a mortgage and that he had better give the agency to some one else, but that, upon Ober’s insisting upon his assumption of the business, he told him he' would try and induce his wife to execute the mortgage, and that he, Ober, then suggested that, as she was too sick to go out, he could take a justice of the peace to the house in order to have her acknowledgment taken. Granting this, and yet it is a very far-fetched and violent presumption that Ober had reason to know, or even to suppose, when Rook said he would try to induce his wife to sign the mortgage, that he thereby intended to accomplish his object by fraud rather than by lawful means. The court certainly erred in allowing the jury to infer a guilty knowledge, on part of the plaintiff’s agent, from evidence so slight and unsubstantial. It follows, that the plaintiff’s first and second points should have been affirmed, except so far as the first required a peremptory instruction that the verdict should be in favor of the plaintiff. The remaining exceptions are not sustained. If, at any time after the execution of the mortgage, an agent of the company was informed that that instrument had been obtained from Mrs. Rook by compulsion or unfair means, from that time the company must be taken to have dealt with Rook on his individual credit alone, and not upon the security of the mortgage. All dealings between the parties after that date, must be taken to have been transacted with knowledge of the fraud perpetrated upon the wife, and as not being protected by the shield óf innocency under which the previous transactions were conducted. There was some evidence that Truxell was an agent of the company and that Rook informed him' that his wife had not voluntarily executed the mortgage. It was right that this evidence should go to the jury, and, if believed, it might properly have the effect to defeat the plaintiff’s recovery for any credit given to Rook after the date of such information.

The judgment is reversed, and a venire facias de novo is awarded.


author: Mr. Justice Sterrett

text:
    Battles & Webster versus Laudenslager.
    1. Where a party is the holder for value, before maturity, of negotiable paper the presumption is that he is bona fide holder without notice, and to affect him with knowledge of such fraud as will defeat a recovery, the evidence must be clear and sufficient to justify an inference of knowledge.
    2. It was alleged, that the negotiable paper in controversy was obtained by fraud. Held, that it was erroneous to instruct the jury that the holders, who were purchasers for value, before maturity, ought not to recover if there was any evidence tending to show that they were connected with or had any knowledge of the original fraud.
    3. Great latitude should be allowed in the admission of circumstantial evidence for the purpose of proving participation in manifest fraud, but when the testimony is before the court, it is their duty to see that it has at least a natural and reasonable tendency to sustain the allegation in support of which it is introduced; that it is of such a character as to warrant an inference of the fact to be proved, and amounts to something more than a mere basis for conjecture or vague speculation. If there is no sufficient evidence to justify an inference of the disputed fact, the 'court has the right and it is its duty to withhold it from the jury.
    4. It is irrelevant to introduce evidence of the character of a party where his general reputation for honesty is in no way involved in the issue.

      June 5th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Lycoming county : Of May Term 1877,' No. 119. _ ‘
    _ Assumpsit by Battles & Webster, against George Laudenslager on the following promissory note:—
    “ $238.40. Town of Jackson, county of Lycoming,
    State of Penn’a, October 19th 1871.
    Six months after,date I promise to pay to the order of D. C. Sullivan two-hundred and thirty-eight and 40-100 dollars for value received, without defalcation or stay of execution.
    Payable at my house. George Laudenslager.”
    Endorsed, “D. O. Sullivan.”
    The plaintiffs were bankers doing business in Girard, Pennsylvania, and the defendant a farmer residing at the place named in the note.
    At the trial before Gamble, P. J., the plaintiffs offered the note in evidence and rested.
    Defendants then made the following offer:—
    “ To prove that on the 14th of October 1871, one D. C. Sullivan came to the house of the defendant in Jackson township, Lycoming county, and stated to defendant that he wished to insure his buildings from loss by fire, which might occur in any way, at a much lower rate of insurance than he could obtain from other companies; that he was agent for the Girard Electrical Insurance Company of Girard, Erie county, Pa.; that if defendant would insure in that company, he would put lightning-rods on his buildings at the cost of the company, and that the whole expense of insurance to the defendant would be the annual interest on the cost of the lightning-rods, as the said rods were put up by the fire insurance company for their own protection and not for the benefit of the insured; that said company never insured unless they put lightning-rods on the buildiqgs, as more losses happened by lightning than by fire; that the defendant would never have to pay more than the interest on the cost of the lightning-rods for his insurance ; and that at the end of a year, if the defendant did not find the company good, and all that he represented to be true, he, Sullivan, would come around and take off the rods free of charge ; that Sullivan was accompanied by two men, and had a large wagon with the words ‘ Lightning-Rods’ conspicuously painted thereon; that he and his men put the lightning-rods on the house and barns of the defendant; and Sullivan then brought a paper to defendant and requested him to sign it, stating that it was merely a memorandum that he would pay the interest upon cost of the lightning-rods, and that he (Sullivan) would give him a paper that would ‘ kill the otherand that Sullivan then handed to this defendant a paper, of which the following is a copy :—
    “ ‘ For value received, I, the undersigned, agent of the U. S. Lightning-Rod Co., agree to deliver unto Geo. Laudenslager a policy of insurance of Girard, Erie Co., Pa., in accordance with the conditions stipulated in application for insurance this day taken by me, within thirty days from date of application, the said Geo. Laudenslager having this day given his obligation for $238.40, which amount is in full for insurance and lightning-rods this day placed upon buildings. Town of Jackson, county of Lycoming, state of Pennsylvania, this 19th day of October 1871.
    (Signed) D. C. Sullivan, Agent.’
    “ (Endorsed) ‘ It is further agreed by the said George Laudenslager, that he will pay, or cause to be paid, six per cent, interest on the amount of the within stated obligation, after maturity, interest to be paid annually at the said George Laudenslager’s house; and if he don’t find the company perfectly good, just as represented in application, I will take rods and insurance off free of charge.
    D. C. Sullivan.’
    “ That Sullivan then left, and a policy of insurance in the Girard Electrical Insurance Company of Girard, Erie county, Pa., was after-wards sent to defendant, insuring his barns against loss from fire by lightning only, and defendant neither saw nor heard from Sullivan again; but upon the 6th of September 1872, suit was brought against him upon the promissory note for $238.40, given in evidence by plaintiffs; that the signature to the note is in defendant’s handwriting, but Sullivan never read such a note to him, but pretended to read only an agreement to pay interest upon the cost of the lightning-rods and defendant did not know that he had signed said note until he was sued thereon; that the whole consideration of said note has failed, and defendant’s signature was obtained by the grossest fraud, and the lightning-rods are entirely worthless. Also, to prove that the plaintiffs are not bona fide holders for value of the said note, that Sullivan was formerly in the employment of Webster, one of the plaintiffs, in the lightning-rod business; that both of the plaintiffs resided at Girard, Erie county, Pa.; that neither of them had any acquaintance whatever with this defendant, never saw him nor heard of him, and he resided three hundred miles from the place of business of the plaintiffs.
    “Further, that both of the plaintiffs were, at the time this fraud was perpetrated and the said note was given, directors in the Girard Electrical Insurance Co. of Erie county, Pa.; that the character of Sullivan in 1871-2 was bad for' honesty and integrity, and this fact was well known to the plaintiffs; that he was totally insolvent during those years, and this fact the plaintiffs well knew; that the plaintiffs purchased at the same time a very large number of promissory notes of small amounts each, but amounting in the whole to $20,000, at a discount of 20 per cent, on each note; that all of these notes were purchased by plaintiffs from Sullivan, and this defendant’s note was among the rest; that neither the note on which suit has been brought, nor the others, were protested at maturity ; that the said note was payable at defendant’s house in Jackson township, Lycoming county, but ivas never presented there for payment until after maturity — all this for the purpose of proving a scheme concocted by the plaintiffs and Sullivan to cheat and defraud defendant and to obtain his signature to said note, and also to show that plaintiffs are not bona fide holders for value, without notice and in the usual course of business, of the note on which suit was brought.”
    The plaintiffs objected to this offer, for the following, among other, reasons:—
    1. Because the evidence proposed does not show such knowledge of the alleged fraud brought home to the plaintiffs as would constitute a defence to the note.
    2. There is no issue involving the character of Sullivan, and evidence of his character or reputation is, therefore, irrelevant.
    The court admitted the evidence, which was the first assignment of error.
    It appeared from the evidence under this offer that Sullivan had practised a gross fraud upon Laudenslager in procuring the note; that he represented himself as the agent of the insurance company, located at Girard; that he took the insurance in that capacity, and. thus consummated the fraud; that Laudenslager never made personal application for insurance, but it was made through Sullivan, and that the company ratified his agency by accepting the appliear tion and issuing a policy; that one of the parties plaintiff, Battles, was treasurer of this insurance company, and both were directors; that these plaintiffs, as bankers, had their office in the same building with the insurance company, a door opening from the one into the other; that, as bankers, they had taken $20,000 of similar notes to the one in suit; that these notes were not endorsed by one Crowell, to whom Sullivan alleged they belonged when he sold them to plaintiffs; that they had knowledge that Sullivan was irresponsible, one of the plaintiffs testifying that he knew Sullivan’s reputation was bad, and that he was “tricky.”
    There was other evidence as to the character of Sullivan.
    The plaintiffs submitted the following, among other points, to which are added the answers of the court:—
    2. The entire evidence in the cause does not show the plaintiffs to have had notice of the fraud alleged to-have been practised by D. C. Sullivan, nor that they are holders mala fide, and the plaintiffs are therefore entitled to recover.

      Answer. “ Declined, leaving the question of mala fides, on the part of the plaintiffs, as a question of fact for the jury, under all the evidence.”
    4. That, under all the evidence in the cause, there is no question of fact raised to be submitted to the jury. They must, therefore, under the law, find for the plaintiffs.
    Answer. “We decline to give you such instructions. We think there is evidence in the case proper to be submitted to you, and from that evidence it will become your duty to determine whether these parties are bona fide holders, innocent of all knowledge of this fraudulent transaction. If they are innocent holders, without any knowledge of this fraudulent transaction, .then they hold this note free from the fraud committed by Sullivan. But if they are not, and you believe from the evidence in the cause that they had knowledge of that fraud, then we think they are not bona fide holders, and that they ought not to recover. We submit it to you upon that question of fact.”
    The answers to these points constituted the ninth and tenth assignments of error.
    In their general charge, the court, inter alia, said: “ If there is any evidence at all in the case tending to show that the plaintiffs were connected with the original fraud, or that they had any knowledge of the original fraud, then they ought not to be permitted to avail themselves of this principle of law and come in and say, ‘ Because this is a negotiable paper and we hold it, we have a right to recover.’
    This portion of the charge constituted the second assignment of error.
    The verdict was for the defendant, and the plaintiffs took this writ, the assignments of error, inter alia, being those heretofore noted.

      Hill McCormick, for plaintiffs in error.
    A holder for value without notice, can recover, though he received the note under circumstances calculated to arouse the suspicions of a prudent man and to destroy his title, it must be shown that he took the note mala fide : Phelan v. Moss, 17 P. F. Smith 59, and nothing but clear evidence of knowledge or mala fides can impeach his title : Moorehead v. Gilmore, 27 P. F. Smith 120. The character of Sullivan was not in issue and the evidence in regard thereto was inadmissible: Porter v. Seiler, 11 Harris 424.

      Henry C. Parsons and Henry W. Watson, for defendant in error.
    The facts were properly submitted to the jury. Great latitude in the admission of evidence is permissible where a note has been obtained by fraud: Brown v. Schock, 2 W. N. C. 151. In Phelan v. Moss, supra, the note was payable to bearer. Here it was payable to order, and was endorsed and never protested.
    October 1st 1877.
   Mr. Justice Sterrett

delivered the opinion of the court,

It may be assumed that the signature of the defendant, as maker of the note in suit, was fraudulently obtained by the payee. This fact was clearly shown and has been impliedly found by the jury. The testimony was also clear and uncontradicted that the plaintiffs became the holders of the note for value before maturity. The only question of fact upon which the defence hinged, was whether they were bona fide holders, without notice of the fraud practised by Sullivan the payee. This question was submitted to the jury and passed upon by them adversely to the plaintiffs. The substance of their complaint is that there was no competent evidence to justify the court in submitting the question.

It is not claimed that either of the plaintiffs was present at the time the note was given, nor was there a particle of direct evidence that they had any knowledge of the fraudulent conduct of Sullivan. On the contrary Mr. Battles, who transacted the business for them, testified that they neither knew nor had reason to suspect it. For the purpose of affecting them with such knowledge the defendant relied entirely upon the facts and circumstances which he was permitted to prove under his first offer; and it was claimed that such a train of circumstances was established as justified the court in submitting the question to the jury, whether the plaintiffs purchased the note with knowledge of the fraud practised by Sullivan. Assuming the facts and circumstances to be true, are they, singly or collectively, sufficient to justify the inference sought to be drawn from them ? We think not. They are entirely consistent with honesty and good faith on the part of the plaintiffs and their ignorance of Sullivan’s fraudulent conduct. It may be said they are not inconsistent with their knowledge of the fraud, but that amounts to nothing unless they point in some degree to the conclusion sought to be established. We are unable to see -that any natural inference or presumption of knowledge arises from them. If there is, it is so weak and inconclusive that it would be unsafe and improper to submit the question to the jury. At best it could be merely the subject of conjecture or speculation; and “mere speculative inferences are not allowable and cannot be regarded as evidence:” Goodman v. Simonds, 20 Howard 360. No doubt great latitude should be allowed in the admission of circumstantial evidence for the purpose of proving participation in manifest fraud, but when the testimony is before the court, it is their duty to see that it has at least a natural and reasonable tendency to sustain’ the allegations in support of which it is introduced, that it is of such a character as to warrant an inference of the fact to be proved, and amounts to something more than a mere basis for conjecture or vague speculation. If there is no sufficient evidence to justify an inference of the disputed fact, the court has the right and it is its duty to withhold it from the jury. “ Evidence may be legally admissible as tending to prove a particular fact which yet by itself is utterly insufficient for the purpose. It may be a link in a chain but it cannot make a chain unless other links are added Howard Express Co. v. Wile, 14 P. F. Smith 201. So in England it is now settled that the preliminary question of law for the court is not whether there is literally no evidence, but Avhether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established. If there is evidence on Avhich the jury can properly find the question for the party on whom the onus of proof lies, it should be submitted; if not, it should be withdrawn from the jury: Ryder v. Wombwell, Law Rep. 4 Exch. 39; Jewell v. Parr, 13 C. B. 916.

Again, in determining Avhether a question of fact should be submitted to the jury on the evidence presented, the character or degree of the proof required should also be taken into consideration. The plaintiffs in the present case, were the holders for value before maturity of negotiable paper. The presumption in their favor was that they were bona fide holders Avithout notice, and, to affect .them with knowledge of such fraud as would defeat a recovery, the evidence should be clear: Moorehead v. Gilmore, 27 P. F. Smith 122. In that case it is said that the latest decisions, both in England and this country, have set strongly in favor of the principle that nothing but clear evidence of knowledge or notice, fraud or mala fides can impeach the prima facie title of a holder of negotiable paper taken before maturity. It is of the utmost importance to the commerce of the country that the principle should be sternly adhered to, however hard may be its operation in particular cases. To the same effect are Goodman v. Harvey, 4 Ad. & E. 870 ; Goodman v. Simonds, 20 How. 348; Phelan v. Moss, 17 P. F. Smith 59.

Considering the facts and circumstances, relied on by the defendant, either singly or collectively, we are of opinion that they were insufficient to justify the inference sought to be drawn from them, and that they utterly failed to furnish that degree of proof which was required to impeach the prima facie right of the plaintiffs, and should not have been submitted to the jury. The ninth and tenth assignments of error are therefore sustained.

In addition to the insufficiency of the testimony to justify an inference of the fact to be proved, part of it was objectionable on another ground. The character of Sullivan for honesty and integrity in 1871 — 2, was irrelevant, and could have no other tendency than to mislead or prejudice the jury. All that was. done by him in procuring defendant’s signature to the note, so far as it tended to prove fraud, was relevant, but his general reputation for honesty was in no way involved in the issue.

The learned judge, in that part of his charge covered by the second assignment, fell into an error, in saying to the jury, that the plaintiffs ought not to recover “if there was any evidence tending to show that they were connected with or had any knowledge of the original fraud.” This gave the jury an unwarrantable latitude. It by no means follows that any fact is to be accepted as true because evidence has been introduced tending to prove it. It frequently occurs that there is evidence, tending to prove certain facts, which often falls far short of establishing their truth.

There is nothing in any of the remaining assignments, that calls for special notice. If the testimony had been such as to justify the submission of the question of notice or knowledge of the fraud to the jury there would be no just ground of complaint.

Judgment reversed and a venire facias de novo awarded.


text:
    The Peoples’ Fire Insurance Company versus Hartshorne et al.

    1. The opening of a judgment to let a defendant into a defence is not a final judgment, and a writ of error will not lie thereto.
    2. Unless such intent is clearly manifest it will not be presumed that a law was intended to have any other than a prospective operation.
    3. Where the charter of a mutual fire insurance company provides that it shall have a lien in the nature of a judgment upon the property of the insured for his premium note, and by the terms of the charter it is manifest the lien is to be restricted to real estate, the fact that a part of the risk covered by the policy is on personal estate will not prevent the filing of a lien against the real estate,
    4. Nor is such lien invalid by reason of having been filed after the expiration of the policy.
    June 5th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Lycoming county: Of May Term 1877, No. 150.
    This was a proceeding upon a judgment obtained by the Peoples’ Fire Insurance Company, against F. M. Hartshorne and M. L. Clay, doing business as F. M. Hartshorne & Co.
    Upon the 4th of May 1869, F. M. Hartshorne & Co. applied to the Cumberland Yalley Mutual Protection Company for an insurance upon their planing mill, valued at $12,000 ; upon machinery and belting therein valued at $8000, and upon worked and unworked lumber therein valued at $12,000. The term of their insurance was five years from May 4th 1869.
    Upon the 28th of May 1874, the Insurance Company, now known as “ The Peoples’ Fire Insurance Company,” entered a judgment against the defendants in error for $1800 upon the following premium note:—
    “ Eor value received in policy No. 18,088, I promise to pay to the Cumberland Valley Mutual Protection Company or their order, two thousand dollars, at such times and by such instalments as the board of directors of the said company shall from time to time demand and order, pursuant to the act of incorporation and rules and regulations of the said company, with interest from date at the rate of five per centum per annum, payable in advance, on the fourth day of May in each year, during the continuance of this risk. Witness our hands this 4th day of May 1869.
    F. M. Hartshorne & Co.” •
    The company claimed a lien upon a property situated on the west side of Campbell street in the city of Williamsport, consisting of a frame steam-power planing mill, one hundred and forty feet by seventy-two feet, machinery, belting, gearing and worked and unworked lumber therein.
    Upon the judgment thus entered the company issued a. fieri facias for the collection of the amount claimed by reason of unpaid assessments and interest on said note, claiming authority for these proceedings under the 6th section of the Act of April 13th 1838, Pamph. L. 364, which is as follows:—
    “And the company shall have a lien in the nature of a judgment, waiving the right of inquisition, upon all the said property of the insured to the amount of his deposite note, or so much thereof as may be unpaid, which shall continue until the amount of such note, with interest and costs of execution, if any, shall be paid or satisfied according to the provisions of this act: Provided, said company shall file, in the office of the prothonotary of county wherein such real estate shall lie, a memorandum of the name of the insured, a description of the property, the amount of the deposite note unpaid, and the term for which the insurance shall continue; and the prothonotary with whom the same shall be filed is hereby required forthwith to enter the same, without tax or fee, at large upon his judgment docket, and the same, when so entered, shall be deemed and taken to be, in all respects, as a judgment entered by confession upon a warrant of attorney, and execution may be had thereof for so much as by virtue of this act may be due and deman dable.”
    The writ of fieri facias was stayed, by order of the court below, on the 24th of August 1874, and a rule granted on the plaintiff to show cause why the judgment should not be opened and stricken off. Depositions were taken in support of this rule, and, after argument,.the court, on the 21st of February 1876, made the following decree:—
    “And now, to wit, February 21st 1876, rule to show cause why judgment should not be opened and defendants let into a defence, and also why said judgment should not be stricken off, made absolute.”
    The company took this writ, and alleged that .the court erred in making absolute the rule (1) to open the judgment, and (2) to strike off the judgment.

      J. H. Mitchell, J. J. Metzgar and J. M. Weakley, for plaintiff in error.
    The opening of a judgment is reviewable under the Act of April 4th 1877, Pamph. L. 53, which provides that in all cases of application made to any Court of Common Pleas within this Commonwealth, to have any judgment, which has been entered by virtue of a warrant of attorney, or on judgment note, opened, and defendant let into a defence, the party aggrieved by the decision of the court thereon may have the same reviewed in the Supreme Court by appeal, in like manner and proceedings as equity cases are now appealed. The authority to take such a premium note and to enter such a judgment upon it are both clearly authorized by the charter of plaintiff, and the right to enter such a lien is expressly recognised in Hageman v. Peoples’ Fire Ins. Co., 1 W. N. C. 31.

      H. H. Cummin and Henry C. Parsons, for defendants in error.
    The opening of a judgment is not the subject of review: Campbell et al. v. Sloan, 12 P. F. Smith 481. The Act of the 4th of April 1877 does not apply, and to make it do so it would be necessary to give it a retroactive effect.
    Under the Act of 1838, where personal property is insured no judgment can be entered upon the premium note. The act allows the entry of judgment against real estate only, and the very language of the section restricts it to real estate. In the case at bar no distinction is made between real and personal property.
    It is further contended that the judgment is void because it was not entered until after the policy had expired.
    October 8th 1877.
   Mr. Justice Mercur

delivered the opinion of the court.

The first assignment of error cannot be sustained. The opening of a judgment to let a defendant into a defence is not a final judgment; A writ of error, therefore, will not lie: Hill v. Irwin et al., 8 Casey 314; Campbell v. Sloan, 12 P. F. Smith 481. It is urged that the decision of the court may be reviewed under the Act of 4th April 1877, Pamph. L. 53. Two objections exist to prevent the application of that act to the present case. 1. It directs that the remedy shall be “ by appeal in like manner and proceedings as equity cases are now appealed.” When thus before us, we can consider the merits of the case. On this writ of error, the facts on which the court acted are not legally here, and we cannot examine them. 2. The decision of the court was made more than a year before the passage of this -act. There is nothing in the language of the act indicating an intention to make it operate retroactively. Unless such intent is clearly manifest, it will not be presumed that the legislature intended any other than a prospective operation: Dewart v. Purdy, 5 Casey 113; Taylor v. Mitchell, 7 P. F. Smith 209; Steckel’s Appeal, 14 Id. 493; White v. Crawford, ante, 433.

The second assignment is to striking off the judgment.

The lien was filed under the sixth section of the Act of 13th April 1838, Pamph. L. 364. It declares “ the company shall have a lien in the nature of a judgment, waiving the right of inquisition upon all the said property of the insured to the amount of his deposite note.” It also directs that the claim shall be filed, “in the office of the prothonotary of the county wherein such real estate shall lie.!’ It further declares that where duly entered and docketed “it shall be deemed and taken to be in all respects, as a judgment entered by confession upon a warrant of attorney and execution may be had thereof for so much as by virtue of this act may be due and demandable.”

It is contended that it was not the design of the act to permit such a lien to be filed where personal property only is insured. There is force in this argument. A waiver of inquisition cannot apply to personal estate. The lien is to be created in the county where the real estate is situate. The “said property” would therefore appear to refer to real estate only. It would be a great departure from the whole spirit of our laws, to assume an intention to thus create a lien on personal estate. A true construction of the act would seem to restrict the lien thereby acquired to the buildings insured and the land covered thereby, with reasonable curtilage. If, therefore, the policy covered no real estate; if the premium note was given for insurance on personal property only, we think the lien could not be sustained. But such is not the fact. The risk was on the planing mill, and machinery, belting, gearing and worked and unworked lumber therein. Although the machinery, belting and gearing are valued separately from the mill, and a portion of the risk put on them specifically; yet inasmuch as they were within the mill they are presumed to have formed an essential part of it. Without them, it would not have been a complete and operative planing mill. They, therefore, constituted a part of .the real estate, and might well have been included in a general description of the mill. The whole value insured was $2500; but the premium note was for $2000. $1600 of the note was given to pay for insurance on real estate, and the residue to pay for insurance on the lumber. We do not think the fact, that one-fifth of the whole risk -covered by the policy, was on personal estate, could prevent the filing of a lien against the real estate. The question now presented is not as to the amount of the lien ; but as to the validity of any lien.

It is further argued that the lien is invalid by reason of its having been filed after the expiration of the policy. This view fails to give due regard to the object and spirit of the act which authorizes the lien to be filed. It was not intended to restrict, but to enlarge the securities of the company. No rights were thereby taken from it; but additional security was given to it. As long as the company had a valid claim on the note, so long it had this additional remedy. The right to collect on the note did not necessarily terminate at the expiration of the policy. The defendant still remained liable to contribution for losses sustained during the life of the policy: Buckley et al. v. Columbia Ins. Co., 2 Norris 293. The note was not barred by the Statute of Limitations. The learned judge therefore erred in making absolute the rule to strike off the judgment.

Judgment reversed, and that portion of the rule discharged.


author: Mr. Justice Paxson

text:
    Brown’s Appeal.
    Since the Act of 29th of March 1832, partition is demandable by the widow of a decedent as a matter of right in the Orphans’ Court, and the Act of the 17th March 1845, having conferred upon the Common Pleas, in equity, jurisdiction in all eases of partition, she is entitled to file her bill in the latter court for that purpose.
    June 6th 1877.
    Before Agnew, C. J., Mercur,, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Appeal from the Court of Common Pleas of Warren county: In Equity. Of May Term 1877, No. 225.
    Appeal of Samantha Brown and Alexander Brown, her husband, in right of Samantha, from the decree of the court, dismissing, for want of jurisdiction, a bill filed by said parties setting forth the interest of said Samantha in the real estate of "which her late husband,' Hernán L. Brown, died seised, and praying for partition thereof.
    The facts are stated in the opinion of this court.

      W. B. Brown and Wilbur §■ Miles, for appellants.

      Claris $ Noyes, for appellee.
    October 1st 1877.
   Mr. Justice Paxson

delivered the opinion of the court,

This is a question of jurisdiction. Heman L. Brown died intestate seised of thirty-three acres of improved land. He left surviving him a widow, Samantha Brown, and one child, Orletta Brown, a minor. Philip Mead,' guardian of said minor, by virtue of an order of the Orphans’ Court sold said land, subject to the widow’s interest, to Seth W. Rowley, the appellee. Samantha Brown, the widow, having subsequently intermarried with Alexander Brown, filed this bill in the. Common Pleas against said Rowley, for partition. The court below dismissed the bill for want of jurisdiction.

The 36th section of the Act of 29th of March 1832, Pamph. L. 201, provides that partition may be made in the Orphans’ Court of the real estate of any decedent upon “the application of the widow, or any lineal descendant of the decedent, having an interest in such real estate.” In Bishop’s Appeal, 7 W. & S. 251, the intestate left ’a widow and one child surviving. A petition was filed in the Orphans’ Court on behalf of the child, praying for partition. It was held by that court that there could .not be partition between one descendant and the widow. This ruling of the Orphans’ Court was reversed by this court upon appeal, and it was held, that “ if a man die intestate leaving a widow and one child, there may be partition between them, if it can be made without prejudice to the estate.” See also Gourley v. Kinley, 16 P. F. Smith 270 ; McCall’s Appeal, 6 Id. 363.

Formerly the Orphans’ Court alone had jurisdiction to make partition between persons who take by descent from one who died seised of real estate. This exclusive jurisdiction was taken away by the Act cf 21st of April 1846, Pamph. L. 426, which declares that “ nothing contained in the- act entitled £ An act relating to Orphans’ Courts,’ passed on the 29th day of March 1832, shall be construed to give to the Orphans’ Courts of this Commonwealth exclusive jurisdiction in the partition and valuation of the real estates of intestates, or to prevent any of the parties interested in such real estates, from proceeding by action of partition in the other courts of this Commonwealth, which have jurisdiction of the action of partition.”

The proceeding in this case was by bill in equity. The authority for it, if it exists at all, must be found in the 3d section of the Act of 17th of March 1845, Pamph. L. 160, which is as follows : “ Tlie Supreme Court in and for the Eastern District of Pennsylvania, and the Court of Common Pleas of Philadelphia county, shall each have all the power and jurisdiction of a court of equity, in all cases of dower and partition within the city and county of Philadelphia.” The Act of 14th of February 1857, Pamph. L. 39, confers upon the respective Courts of Common Pleas throughout the Commonwealth, all the equity powers possessed by the Court of Common Pleas of Philadelphia county. It was contended, however, that the Act of 1845 was intended to apply only to such cases in which an action of partition ivould lie, and that inasmuch as a widow could not be a demandant in such action, her remedy was still confined to the Orphans’ Court. We regard this as a narrow construction of said act. It evidently was intended to apply to all cases in which by the laws of this state partition is demandable. The language of the act is broad enough to warrant this construction. We have seen that under the Act of 1832, and the cases cited, the widow of an intestate is entitled to partition of the real estate of which her husband died seised. It is true the jurisdiction was limited in such cases to the Orphans’ Court, but the Act of 1845 extended the jurisdiction in all cases of dower and partition to the Common Pleas in equity. If this bill had been filed by the heir the jurisdiction could not well have been questioned. Yet in such case the widow would have been a necessary party, and her rights would have been ascertained and determined in such proceeding. In Gourley v. Kinley, supra, Mr. Justice Williams recognises the right of the widow since the Act of 1846 to proceed under the partition acts to have her share assigned to her, in all cases where her husband died seised and in possession of real estate. It is not necessary to go so far in this case. What we decide is, that since the Act of 1832, partition is demandable by the widow as a matter of right in the Orphans’ Court; and that the Act of 1845 having conferred upon the Common Pleas in equity, jurisdiction in all cases of partition, she is entitled to file her bill in the latter court for that purpose.

The decree is reversed at the .costs of the appellee, and the record ordered to be remitted to the Orphans’ Court for further proceedings.


author: Mr. Justice Woodward

text:
    The Muncy Creek Railway Company versus Hill.
    The provisions of the Act of the 16th of June 1836 which empower a sequestrator to take possession and assume the control and management of the property of a corporation are restricted by the Act of the 22d of April 1858, so as not to apply to an unfinished railroad. It was the design of the latter act to give to the sequestrator, as the representative of creditors, the earnings of the completed portion of the road, but to preserve the corporate property within the possession, management and control of the corporate officers.
    June 6th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Lycoming county: Of May Term 1877, No. 29.
    J. C. Hill having obtained a judgment against the Muncy Creek Railway, and a fieri facias issued thereon having been returned unsatisfied, petitioned the court for the appointment of a sequestrator, and Michael Steck was appointed.
    The Muncy Creek Railway Company was incorporated by Act of Assembly approved May -21st 1864. The road thus chartered was to run from Laporte, in Sullivan county, to a point near Muncy, in Lycoming county, a distance of about thirty miles. Work was done on said road in making bridges, grading, &c., for about fourteen miles ; about six miles thereof were so far completed as to be in running order, and provided with depots, turn-tables, engines, passenger ears and other equipments, so that for three years passenger and freight cars were running regularly over said 'six miles, yielding revenues and receipts to the company. Steck, by virtue of his appointment as sequestrator, took possession of said six miles, employed a conductor, ticket and freight agents, and such other employees as were necessary to conduct the business of the road. H. R. Merhling, general superintendent, A. H. Hill, conductor, Alexander Bubb, fireman, and William Reedy, assistant agent of the company, employed thereon and acting under its control, took possession of the engines and cars of the road, and refused to permit the employees of the sequestrator to’ assume the management of them. . Steck then asked the court for an attachment against said parties, who, in their answer to the rule to show cause why the same should not issue, averred their willingness that the sequestrator should receive all the revenues, receipts and profits of said road, either directly as the same should be paid, or in such other manner as the sequestrator should deem proper, so as to secure the full receipt of such revenues, but denied to him the right to take the full custody and control of the road from the company, and to appoint superintendents, conductors, &c., for running such road, and refused to surrender their positions as employees.
    After argument, the court, Gamble, P. J., in an opinion, inter alia, said:—
    “ The question raised by the petition and answer involves the jurisdiction, powers and authority of a sequestrator, under existing laws.
    “The Act of Assembly of 1870, which repeals the 73d section of the Act of 1836, is itself repealed so far as relates to the Muncy Creek Railway Company, by the Act of March 28th 1871, Pamph. L. 491. The statutory law applicable to this case is therefore the 73d, 74th and 75th sections of the Act of 16th of June 1836, as modified by the Act of the 22d of April 1858, Pamph. L. 458.
    “ Under the provisions of the Act of 1836 it has been held that sequestration operates as a statutable assignment of all the effects and estate of the corporation, and that a road extending into different counties is under the control and management of the sequestrator, whose duty it is to take possession and so manage the concern as to benefit the creditors: Turnpike v. Wallace, 8 Watts 316. That the sequestrator shall take possession of the property of the corporation, &c., &c. : Bevans v. The Turnpike, 10 Barr 179. A sequestrator appointed under the Act of 1836 is armed with all the orders and decrees that a court of chancery can enforce. He has all th& powers and is subject to all the duties of trustees appointed under the laws relating to insolvent debtors: Suydam v. N. W. Ins. Co., 1 P. F. Smith 394. That it was always held that it belonged to the jurisdiction, powers and duties of a sequestrator, appointed under the Act of 1836, to take possession, control and management of the sequestered property, of whatever it might consist, is so abundantly established by authority and precedent that it is not believed to be doubted by the learned counsel in this case, but they are understood to contend that the Act of 1858 limits and restricts that right to the simple receipt and custody of the receipts and revenues.

    “ That act declares that these provisions of the Act of 1836 shall not apply to any unfinished railroad, with this proviso : ‘ Provided, that nothing herein contained shall be so construed as to prevent a sequestrator from taking custody of the receipts and revenues of the portion of any such road that may be so far completed as to be in running order.’
    “ It is admitted that the portion of road sequestered in this case is so far completed as to be in running order; that it is provided with depots and other buildings, turn-tables, engines, passenger cars and other equipments, and that passenger and freight cars have been regularly running thereon for about three years past, thus yielding revenues and receipts to the company.
    “ I think the proper and reasonable construction of the proviso under consideration is, that it excepts from the operation of the body of the act such portions of unfinished roads as are so far completed as to be in running order and capable of producing revenues.
    “ That the sequestration, manifestly contemplated, must of necessity include the road in funning order with its equipments, as the only means by which there can be any receipts and revenues for the sequestrator to take custody. Can it be supposed that the legislature intended to put the receipts and revenues in the custody of the law, for the benefit of creditors, and leave the only possible means of producing receipts and revenues in the possession and under the control of the debtor? Such a proceeding would not only be wholly ineffectual, but it would not be sequestration as heretofore defined, nor could such a custodian be a sequestrator, in a legal sense. But the construction I have suggested renders the provisions consistent and harmonious, makes a remedial law effective, and accords perfectly with the construction given to the Act of 1836, in the case of Beeler v. The Turnpike Co., 2 Harris 162.

      “ It is therefore ordered and decreed, that Michael Steck, sequestrator, &c., and duly appointed in the above stated case, do enter upon and into possession, control and management of that portion of the Muncy Creek Railway which is so far completed as to be in running order, together with its depots, turn-tables, engines, cars and other equipments, for the purpose of collecting, receiving and taking in custody the receipts and revenues thereof, and hold the same subject to the future order of the court. And all persons are hereby enjoined to abstain from obstructing, or in any .manner hindering the said sequestrator in the discharge of the duties imposed upon him. And the costs of this proceeding are imposed upon the respondents.”
    The company took this writ assigning this decree for error.

      Bentley & Parker, for plaintiff in error.
    The manifest intent of the legislature was to release a railroad in process of construction, or, as the acts says, unfinished, from the operation of the Act of 1836, and then, in order that creditors might be protected in their rights, and that there might be an honest division of the earnings of any finished portion to such as are entitled to the same, the proviso was attached, which gave control of any such earnings to the person who might be appointed for such purpose.

      J. O. Hill, for defendant in error.
    October 1st 1877.
   Mr. Justice Woodward

delivered the opinion of the court,

Under the writ issued to him as sequestrator, Michael Steck took possession of the buildings, rolling-stock and equipments of the Muncy Creek' Railway Company on the 1st of March 1874. He appointed agents to operate the finished section of the road, and through them collected and took into his custody its receipts and revenues during the months of March and April. On the 1st of May 1874, officers employed by the corporation took the property into their hands, and have since retained it under the corporate control. While the right of the sequestrator to receive the earnings of the road has not been denied, the company have constantly insisted that they are entitled to the possession and management of their real and personal estate. The question is a narrow one, and has been raised by the petition of the sequestrator for an attachment against the persons who assumed the control of- the property on behalf of the company. A rule to show cause was granted, upon which, after hearing, the Common Pleas decreed the surrender of “ that portion of the Muncy Creek Railway which is so far completed as to be in running order, together with its turn-tables, engines, cars and other equipments” to the possession, control and management of the sequestrator, “for the purpose of collecting, receiving and taking custody of the receipts and revenues thereof.”

There is no doubt whatever that the action of the court would have been fully justified by the provisions of the 73d, 74th and 75th sections of the Act of the 16th of June 1836, if they had remained in force. By. the 73d section, after the return of an execution against a corporation unsatisfied, a writ was authorized “ to sequester the goods, chattels and credits, rents, issues and profits, tolls and receipts from any road, canal, bridge or other work, property or estate of such corporation.” The 74th section made it the duty of the sequestrator to “ take charge of the property and funds,” and to make due distribution of their proceeds. That a sequestrator, under the Act of 1836, was entitled to assume the control of the works and structures out of which revenue was derived, has been repeatedly settled by judgments of this court: Turnpike Co. v. Wallace, 8 Watts 316 ; Bevans v. The Turnpike, 10 Barr 179; and Beeler v. The Turnpike Co., 2 Harris 162. The idea of a transfer of possession is embodied in the etymological signification of the word sequestrate. Its original meaning was to give up for safe keeping. Throughout the civil law and common law precedents, process of sequestration against revenue or income has been treated as carrying with it the right to the possession of the property out of which the revenue or income issued.

It is competent, however, for the legislature to confine the process to stricter limits. And the peculiar language of the Act of the 22d of April 1858, indicates a purpose to modify and restrict in essential respects the remedy by sequestration as against a particular class of railroad corporations. It declared that so much of the Act of 1836 as related to the appointment of sequestrators in cases of judgments recovered against corporations should not apply to any unfinished railroad. The enactment was followed by this proviso: “ That nothing herein contained shall be so construed as to prevent a sequestrator from taking custody of the receipts and revenues of any portion of any such road that may be so far completed as to be in running order.” The difference between the phraseology of this act and that of the Act of 1836 is marked and significant. The effect of the later statute is to declare that “the goods, chattels and credits', rents, issues and profits, tolls and receipts” of an unfinished railroad shall not be sequestered, and that a sequestrator shall not “take charge of the property and funds” of such a railroad, but that he shall have power to “take custody of the receipts and revenues” of any completed section. The act was drawn with apparent care, and so as to anticipate and avert any implication to be founded on the confused employment of technical words. Property was “sequestered” under the Act of 1836. The Act of 1858 simply authorized the payment of income to a sequestrator for the benefit of the creditors of the corporation.

While it would be equally unprofitable and unnecessary to conjecture the motives for the legislative action, it is possible that the public interest was supposed to be involved in the completion of a railroad partly built, and that the maintenance of the corporate property under the control of a board of directors might be essential to that result. The attainment of this end can be made entirely consistent with the appropriation to creditors of the income derived from the finished road. No embarrassment can arise in carrying out the intention of the legislature, for there is ample inherent power in the Court of Common Pleas to enforce the performance of the duties equally of the directors and the sequestrator. In the decree that has been made, however, that power has been exercised in a wrong direction. It was the design of the Act of 1858 to give to the representative of the creditors the earnings of the completed portion of the road, but it was equally its design to preserve the corporate property within the .possession, management and control of the corporate officers.

The judgment of the Court of Common Pleas is reversed, and it is now ordered and adjudged that the rule to show cause why an attachment should not be issued be discharged, and that the petition of the sequestrator be dismissed.