text:
    Roberts’s Appeal. Reed et ux. versus Roberts et al., Administrators of Thomson.
    1. T. transferred stock to F., a niece of Ms wife, on the books of a corporation, but retained the certificates in his possession, and after his death they were found in an envelope, with his own name and that of F. endorsed thereon. F. had no knowledge of the transfer. She lived in the family of T. and was in all respects treated and regarded as his daughter. Meld (affirming the court below), that the transfer on the books of the corporation vested in F. the legal title to the stock and she was entitled to the same.
    _ 2. Held, further, that the circumstances of the case rebutted the presumption of a resulting trust.
    June 22d 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the decree of the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1877, No. 225. Certilled from the Eastern District.
    This was a bill in equity, filed by Henry Reed and Charlotte F., his wife, late Charlotte E. Foster, against George B. Roberts and others, administrators c. t. a., and trustees of the estate of J. Edgar Thomson, deceased.
    The late J. Edgar Thomson having in his lifetime become the purchaser of two thousand shares of the stock of the “ Pennsylvania Company,” of the value of $100,000, caused the said shares to be transferred on the books of the company to Miss Charlotte E. Foster, the plaintiff in this case. The certificates were made out in her name, and retained in the possession of Mr. Thomson, where they were found after his death, enclosed in an envelope, which was superscribed in his own handwriting, “ J. Edgar Thomson,” and in one corner of the envelope, also in his handwriting, the words, “ Miss C. E. Foster.” The certificates bear date April 1st 1874. Mr. Thomson died May 27th 1874, leaving no child or lineal descendants. His personal estate was inventoried at $1,222,406.04, besides which he left real estate valued at $300,000. Miss Foster was an orphan niece of Mr. Thomson’s wife. At his request she came to reside in his family when she was under fourteen years of age, and continued to reside with him until the time of his death, being treated by him (as is alleged in the bill and not denied in the answer) as his own child, and with the greatest tenderness and affection. On the 20th of December 1871, Mr. Thomson made his will, by which he gave and bequeathed his real and personal estate to trustees for charitable uses, first, however, reserving out of the proceeds so much as his “ beloved wife may deem necessary for the maintenance of herself and his dear niece, Charlotte F. Foster,” and certain other sums for the payment of legacies bequeathed by his will. On the 24th of May 1874, he made a codicil to his will, in which he declared: “I desire my dear niece, Lottie Foster, but to whom I cherish the feelings of a father, to be so treated and regarded in the law as if she were really my child, receiving, during her lifetime, such income from my estate as if she were really my child, and I postpone the operation of the trusts of my will, so as fully to effect this result, until her decease, upon which event they are further to take full effect, as expressed in the will.” On the 26th of May 1874, he added another codicil, in which he declared as follows : “ The codicil which I added to my will the other night (May 24th) means that T wish my niece, Charlotte F. Foster, to be considered as my daughter, and to take out of the income of my estate all that she requires to render her more than comfortable in her housekeeping during her lifetime. I do not desire to postpone by it the operation of the trusts of my will except so far as may be necessary to secure the above object.”
    No dividends were paid upon the stock in the interval elapsing betw'eon the date of the transfer of the stock to the plaintiff and the date of Mr. Thomson’s decease. In the year 1874, the two thousand shares of the Pennsylvania Company, transferred by Mr. Thomson to the plaintiff', were, by the assent of all parties, exchanged for an equivalent amount, at par, in the 7 per cent, mortgage-bonds of the Pittsburgh, Cincinnati & St. Louis Railway Company, the plaintiff executing, on the 7th of October 1874, a power of attorney for the transfer of the stock, in order to facilitate the exchange.
    The bill averred that said shares of stock were a present, immediate, executed gift from Mr. Thomson to his niece, as an expression of his parental feelings towards her, and that the bonds into which said stock was converted were her individual property and did not belong to the estate of decedent.
    It prayed therefore that the defendants be required to deliver said bonds to her, and to account for the dividends received on said stock and bonds.
    The answer of defendants admitted, in effect, the facts alleged in the bill and averred that respondents did not know for what purpose the certificates of stock were transferred to the name of Miss Foster in the manner described in the bill — whether the testator intended that they should thus be held for his own convenience, and then transferred to himself, or whether he intended to make a gift of them to her ; and the respondents leave these questions to the determination of the court; but they deem it proper, under the advice which they have received from their counsel, to submit that if it could be shown to have been Mr. Thomson’s intention, in causing the certificates to be made out in the name of Miss Foster, to make a gift of the stocks to her, she was not informed of such an intention on his part, and no delivery of the same was made to her, but he appears to have retained them in his own custody and possession, and under his own exclusive control; that in point of fact and law the purpose now imputed to him was not carried out, and that the certificates remained his own property, and became that of his estate.

      The answer also averred that there were a number of pending and undetermined claims against the decedent’s estate, which aggregated about a million of dollars, the result of some of which could not be foretold.
    The case was heard before Thayer, P. J., and Briggs, J., the former delivering the following opinion :—
    “ The question to be decided is, whether the mortgage-bonds of the railway company, into which the shares of the Pennsylvania Company were converted, belong to the plaintiff or to the estate of Mr. Thomson ? Of course the ownership of the bonds follows the ownership of the shares. • If the shares were the property of the plaintiff, the bonds unquestionably belong to her, and she is entitled to the relief prayed for.
    “ It is to be observed at the outset that here was a complete, perfect and absolute transfer of the legal title to Miss Poster. The shares were transferred to her on the books of the company, by direction of the owner, and new certificates were taken out. in her name. The plaintiff stands in no need of legal or equitable remedies to complete her legal title. The only relief which she needs and prays for, is that her title be relieved from the claims of the administrators and trustees of Mr. Thomson’s estate, and that the bonds into which the shares were converted by her own agency, be surrendered to her. It is not the case, therefore, of an incomplete voluntary gift, or of a merely equitable title to a chose in action, acquired by an assignment which remains in the possession of the assignor. A gift of a chattel is not consummated and perfected until the delivery of the thing promised, and until then the party may revoke his promise. So also an assignment of a chose in action (e. g., a bond: Zimmerman v. Streeper, 25 P. F. Smith 147; or a policy of insurance: Trough’s Estate, 25 Id. 115; or a single bill: Pringle v. Pringle, 9 Id. 281; or a certificate of deposit: Withers v. Weaver, 10 Barr 391), where the assignor retains possession of the chose, or of the assignment, passes no title to the assignee or donee ; and the reason is that the retention of the chose, or of the assignment, is unmistakable evidence that the assignor, whatever his future intentions might be, has not parted with his property in the thing over which he retains entire control.
    “ If Mr. Thomson had suffered these shares to stand in his own name, and had executed to Miss Poster an assignment of them, and had retained that assignment in his own possession until his death, never having delivered it to her, there would seem to be no doubt under the decisions that no property in the shares would have passed to her. And the result would have been the same if he had given her a parol assignment of them without valuable consideration, still retaining the shares in his own name, unless, indeed, circumstances could be shown amounting to a declaration of trust on his part to hold them for her use. But here the gift is complete by the delivery of the thing itself, for transferring the shares to her upon the hooks of the company is putting her in complete possession of the thing assigned, and clothing her with the complete legal title. It stands in the place of a delivery. Such an act performs precisely the office which an actual delivery would perform if it were a chattel. It is as complete a delivery as the nature of the thing will admit of. There can be no clearer evidence of a design to part with the right of property in favor of another than an absolute transfer of the legal title to her for her own use. Retaining in his possession the certificates which are in her name, and which lie could not use without her consent, cannot undo or qualify the decisive ownership with which he had invested her by the actual transfer to her on the books of the company. The best evidence of her ownership is the transfer on the books of the company. The certificates were but secondary evidence of her ownership, and only useful for purposes of transfer. They were nothing more than the official declaration by the. company of what already appeared on their hooks. There was here no locus poenitentice. He could not have used the certificates, nor could any one have used them except Miss Eoster.
    “ We are of opinion, therefore, that the cases relied upon by the defendants’ counsel upon the subject of incomplete gifts of chattels and of undelivered assignments of choses in action, have no application to the circumstances of the present case, for here was a complete divestiture of his own title and a complete investiture of title in her, so complete that he had no further control over the legal title and no power, without her consent, to undo or disturb it.
    “ This brings us to what appears to us to he the real question in this case, and that is, whether there is here sufficient evidence to rebut the presumption of a resulting trust, which always arises ■where a conveyance has been made without consideration to one, of an estate or other property which has been purchased with the money of another. The presumption of such a resulting trust is always rebutted, where, to use the language of the books, the purchase may fairly be deemed to be made for another, from motives of natural love and affection. Thus a purchase in the name of a child or of a wife is uniformly held by the unaided force of the relationship alone to rehut the presumption, unless there he clear evidence to show that the donee was intended to be a mere trustee. It would be a useless waste of time to go over the cases establishing this doctrine. They have been industriously collected in the paper book of the plaintiff’s counsel and are familiar to the profession. The doctrine is too well established to admit of the least doubt. It is not controverted by the defendants’ counsel; but it is contended that the presumption of a resulting trust cannot be rebutted in the present case because the donee is not related by blood to the donor. Yet the ordinary case of a gift to a wife shows conclusively that blood is not a necessary ingredient to give effect to the presumption rebutting such a trust. The presumption in favor of a wife or child, which rebuts the resulting trust, is doubtless founded on the moral obligation which rests on the donor to provide for them, and the inference which arises therefrom, that it was the intention of the donor thus to provide for them, and that they should not hold as trustees. But why may not the presumption also arise where these relationships do not exist, if there is clear evidence to show that such was the manifest intention of the donor ?
    “ It is quite clear that other circumstances and other relations in life, besides the relationship of parent and child, or husband and wife, may sufficiently rebut the presumption of a resulting trust. Thus a gift to a sister: Kiddill v. Farnell, 5 Weekly Reporter 424; a grandmother to grandchildren: Gardner v. Merritt, 32 Md. 78; 10 Am. Law Reg. N. S. 127; a step-father to a step-child: Ray v. Simmons, 15 Id. 702; a relation by marriage: Currant v. Jago, 1 Collyer 261. Now whether there is, or is not, a resulting trust, must, as was said by Lord Hardwicke in Hill v. The Bishop of London, 1 Atk. 618, always depend upon the intention of the grantor. As the presumption which arises in favor of a wife or child is founded exclusively upon the intention of the grantor inferred from the relationship, it would be extremely illogical to hold that a like presumption could not be derived from other circumstances clearly showing the same intention, and especially from proof of the express and deliberately declared wishes of the grantor.
    “ There is no magic virtue in blood in such cases, except in so far as it gives rise to a strong, and unless rebutted, a conclusive presumption of the grantor’s intention. What, then, was Mr. Thomson’s intention in the present case ? If he had declared in so many words, that this was not to be a resulting trust in his own favor, and that Miss Eoster was not to be a trustee, but a beneficiary, would any one doubt that the presumption of a resulting trust would be rebutted, notwithstanding the fact that she was only connected with him by marriage, and by the ties of an affection which he himself declared to be as strong as the ties of parental affection ?
    “We are to look for the intention of the grantor in his acts and expressions. By his own act he invested her with the complete legal title to these shares. With what intention ? That she should •be a trustee for him ? Eor what purpose ? What possible motive can be attributed to him for having these shares transferred to her upon the books of the company, and thus putting them entirely . beyond his own control, if he did not intend her to take as a beneficiary ? Was she a stranger to him ? Let him answer for himself. Three days before his death, he wrote in the codicil to his will:—
    “ ‘ I desire my dear niece, Lottie Eoster, but to whom I cherish the feelings of a father, to be so treated and regarded in the law as if she were really my own child.’
    “ And on the day before he died he repeated it:—
    “ ‘ I wish my niece, Charlotte F. Foster, to bo considered as my daughter.’ Let it be remembered, also, that these declarations were made less than two months after he had transferred the shares to her.
    “ It seems to us, that to decide now' that she cannot take as a beneficiary, but must be held to be a trustee propter defectum sanguinis, would be to fly in the face of the plainly-expressed intentions of Mr. Thomson, and to override what cannot but be regarded as his most urgent dying request. There is, no doubt, a great deal in blood, as indicating the intention with which such an act as this is done. But there is also a great deal in the fact that a childless man takes to his home and heart an orphan child — a near relation of his wife, and dependent upon him for support — and plants her there in the place of a daughter, treats her in all respects as a daughter, and in one of the most solemn acts of his life declares that, in measuring her legal rights, he desires her to bo considered, in all respects, as if she were really his daughter. It would bo a mockery of reason, and an unjust perversion of a wholesome principle, to apply the presumption of a resulting trust, because she is not a child, when the author of the gift so solemnly and so emphatically declares that he desires her ‘ to be treated and regarded in law as if she were really his child.’ The principle which raises a resulting trust where there is a conveyance to a stranger, or where there is not evidence of a manifest intent that the grantee should take as a beneficiary, is a principle founded in wise and just considerations ; but it is not to bo applied indiscriminately, or where there are facts and circumstances which fairly rebut it.
    “Looking at all the circumstances of the case, and giving effect to the declared wishes of Mr. Thomson in reference to the legal status and rights of Miss Foster, we are of opinion that the presumption of a resulting trust is in this case fully and fairly rebutted; that she has a perfect legal and equitable title, and is entitled to the relief prayed for. Accordingly, let there be a decree for the plaintiff.”
    After a decree entered in accordance with this opinion the defendants took this writ, assigning the entry of this decree for error.

      William A. Porter, for appellants.
    — A voluntary gift is of no effect unless executed by the transfer of the property intended to be given, and by the delivery of the usual evidences of the title to such property: Antrobus v. Smith, 12 Vesey Jr. 39; Noble v. Smith, 2 Johns. 52; Pearson v. Pearson, 7 Id. 26; Plumstead’s Appeal, 4 S. & R. 544; Lee v. Luther, 5 Wood. & M. 519; In re Campbell’s Estate, 7 Barr 100; Withers v. Weaver, 10 Id. 391; Lonsdale’s Estate, 5 Casey 407; Kidder v. Kidder, 9 Id. 268; Pringle v. Pringle, 9 P. F. Smith 281; Trough’s Estate, 25 Id. 115; Zimmerman v. Streeper, 25 Id. 147; Trimmer v. Danby, 25 L. J. Ch. 424.
    A purchase or conveyance made with the money of one in the name of another, raises a legal presumption of a resulting trust-in favor of the former: Lloyd v. Spillet, 2 Atk. 148; Kisler v. Kisler, 2 Watts 323; Jackman v. Ringland, 4 W. & S. 149; Lynch v. Cox, 11 Harris 265; Brabrook v. Boston Five Cent Savings Bank, 104 Mass. 228; Clark v. Clark and Trustee, 108 Id. 522.
    The consideration of blood or natural affection is insufficient to support even a promise to give, where the promise has not been performed. .
    As far back as the reign of Elizabeth, it was held in the case of Bret v. J. S. et ux., Cro. Eliz. 756, that “ natural affection of itself is not sufficient consideration to ground an assumpsit.” Also, in the same reign, in the ease of Harford v. Gardiners, 2 Leonard 30, the court say: “ Love is not a consideration upon which an action can be grounded — the like of friendship.” See also, Mills v. Wyman, 3 Pick. 207; Fink v. Cox, 18 Johns. 145; Kennedy’s Ex’r v. Ware, 1 Barr 445; Lyon v. Marclay, 1 Watts 271.

      A. Sydney Biddle and George W. Biddle, for appellees.
    — A court of chancery will give effect to a perfect gift by declaring the donee’s rights : Langdon v. Allen, 1 W. N. C. 395; Sidmouth v. Sidmouth, 2 Beav. 447; Ellison v. Ellison, 6 Vesey 656 a, 661; Tierny v. Wood, 19 Beav. 330; Parnell v. Hingston, 3 Sm. & G. 337; Gilbert v. Overton, 2 Hemming & Miller 110.
    Where a voluntary gift has been perfected it cannot be revoked: Clavering v. Clavering, 2 Vernon 473; Boughton v. Boughton, 1 Atk. 625; Knye v. Moore, 1 Sim. & Stu. 61; Simonton’s Estate, 4 Watts 180; Rycroft v. Christy, 3 Beav. 238; Sidmouth v. Sidmouth, supra; Cressman’s Appeal, 6 Wright 147.
    The mere fact that the instrument by which the gift operates, or which is the evidence of the completion of the transfer, is retained by the donor, does not render the gift revocable. Nor if the property given is a fund, does the fact that the donor retains possession and control of it divest an executive gift: Worrall v. Jacob, 3 Meriv. 256; Knye v. Moore, supra; Sidmouth v. Sidmouth, supra; Browne v. Cavendish, 1 Jones & Latouche 606; Kiddill v. Farnell, 5 Weekly Reporter 324: Evans v. Jennings, 6 Id. 616; Langdon v. Allen, supra. Knowledge by the donee that the gift has been made, is not necessary to its completeness or irrevocability: Clavering v. Clavering, supra; Sidmouth v. Sidmouth, supra; Langdon v. Allen, supra; Smith v. Lyne, 2 You. & Col. Ch. 345; Middleton v. Pollock, Ex parte Elliott, Law Rep. 2 Ch. Div. 104. A thing given is completely transferred where the legal title has actually vested in the donee: Ellison v. Ellison, supra; Xenos v. Wickham et al., 14 C. B. N. S., 108 E. C. L. R. 435, 860; Fowkes v. Pascoe, Law Rep. 10 Ch. App. 343, 349; Middleton v. Pollock, supra.

    No presumption of a resulting trust where purchase is made for one standing in relation of child, as in this instance: 2 Story’s Eq. J., § 1202; Dyer v. Dyer, 2 Cox 92; Glavister v. Hewer, 8 Vesey 195; Rider v. Kidder, 10 Id. 367; Mclntire v. Hughes, 4 Bibb (Ky.) 186; Dennison v. Goehring, 7 Barr 175.
    See also the following cases, bearing upon the several propositions above: Ray v. Simmons, 15 Am. Law Reg. N. S. 701; Hill v. Stevenson, 63 Me. 364; Howard v. Windham County Savings Bank, 40 Verm. 597; Millspaugh v. Putnam, 16 Abbott’s Prac. 380; Gardner v. Merritt, 32 Md. 78; Currant v. Jago, 1 Collyer 261.
   The judgment of the Supreme Court was entered, June 26th 1877,

Per Curiam.

— The decree in this case is to be affirmed for the reasons given by the learned judge in the court below.

Decree affirmed, with costs to be paid by the appellants, and the appeal is dismissed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    First National Bank of Carlisle versus Graham.
    A special deposit of bonds was left by a customer with the cashier of a national bank for safe keeping, with the knowledge of its directors, and the cashier gave a receipt therefor. The bonds were subsequently stolen and the bank offered no satisfactory explanation of the manner of the theft. Held, that there was sufficient evidence of gross negligence to bo submitted to the jury. Held, further, that a recovery could be had against the bank if the bonds were stolen through the gross negligence of its officers.
    June 22d 1877.
    Before Agnew, C. J., Siiarswood, Merour, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1877, No. 186.
    Assumpsit by Fannie L. Graham against the First National Bank of Carlisle, to recover the value of four bonds deposited by her with the cashier of the bank, and for which she held the following receipt:—
    “ Carlisle, Pa., Oct. 22d 1868.
    “ Miss F. L. Graham has left in this bank, for safe keeping, four thousand dollars (§4000) in U. S. 5-20 bonds of 1867, to be returned on the return of this receipt.
    (Signed) Chas. H. Hepburn, Cashier.”

      It appeared at the trial, before Herman, P. J., that the bonds were kept in the safe, inside the vault, in the bank. On the 5th of August 1871 the bonds were stolen. The fact that the loss occurred by theft was not denied, but the manner of the theft was not explained in any way. It was shown that other parties had left bonds, at different times, in the bank for safe keeping and that some of the directors knew of this habit of receiving them on the part of the cashier. It was in evidence also that having obtained the information that' the bonds were stolen, from an outside source, about two weeks after the theft, Miss Graham made inquiry at the bank, and was told that they were stolen, but both the president and the cashier told her not to be alarmed, that she should lose nothing, and that she should come as usual, and the interest on the bonds should' be paid her as usual. This interest was credited to her on the books of the bank and was paid to her for two years subsequent to the loss. In 1878 the bank suspended payment and Miss Graham having demanded the bonds and failing to get them brought this suit.
    The defendant contended that gross negligence must be proved, and as there was no evidence of such negligence on the part of the bank, asked for a compulsory nonsuit, which the court refused, and the verdict was for the plaintiff.
    This refusal to enter a compulsory nonsuit was assigned, inter alia, for error by the defendant in bringing this suit.

      W. F. Sadler and S. Hepburn, Jr., for plaintiff in error.
    — The bank had no authority to take deposits for safe keeping. No distinction exists between an act prohibited by law and an act of a corporation not authorized by law. If unauthorized, it is illegal and void, and creates no liability which can be enforced at law: First Nat. Bank of Lyons v. Ocean Nat. Bank, 15 Sickels (N. Y.) 278; Wiley v. Nat. Bank of Brattleboro, 14 Am. Law Reg. 342; Fowler v. Scully, 22 P. F. Smith 456; Bank of Pennsylvania v. Commonwealth, 7 Harris 155; Bank of U. S. v. Dandridge, 12 Wheat. 64; Head v. Providence Insurance Co., 2 Cranch 167; Venango Nat. Bank v. Taylor, 6 P. F. Smith 14.
    The narr. in this case is in assumpsit, and declares specially on the receipt of the cashier; and his act being unauthorized, the bank is not liable: Wiley v. Bank, supra; Foster v. Essex Bank, 17 Mass. 497; Ex parte Brown, 3 Deacon 91.
    There was no evidence of gross negligence, and the burden of proving 'it is upon the plaintiff throughout: Scott v. Nat. Bank of Chester Valley, 22 P. F. Smith 471; Smith v. First Nat. Bank in Westfield, 99 Mass. 605; Adams Express Co. v. Sharpless & Sons, 27 P. F. Smith 522.

      John Hays and J. H. Graham & Son, for defendant in error.
    The question of the liability of national banks, where they receive deposits for safe keeping, was raised and ruled in this court in First National Bank of Carlisle v. Graham, 29 P. F. Smith 106. It is well-settled law that a contract or promise may bo proved by inferences drawn from corporate acts as well as in the case of an individual: Canal Bridge v. Gordon, 1 Pick. 297; Foster v. Essex Bank, supra; Episcopal Charitable Society v. Episcopal Church in Dedham, 1 Pick. 372; Bank of Columbia v. Patterson, 7 Cranch 299; Dunn v. St. Andrew’s Church, 14 Johns. 118; King v. Inhabitants of Chipping Norton, 5 East 240.
    The unauthorized acts of a corporation are binding upon it, if subsequently assented to: Essex Turnpike v. Collins, 8 Mass. 292; Hayden v. Middlesex Turnpike, 10 Id. 397.
   The judgment of the Supreme Court was entered, June 26th 1877,

Per Curiam.

— Looking at the almost universal practice of banks of all kinds to accept special deposits of valuable securities from their customers, and the evidence in this case that such was the habit of this bank with the privity and knowledge of the directors and officers, we are of opinion that a liability for safe-keeping is raised by the receipt given to the plaintiff in this case for her bonds. If the bonds be lost or stolen through the gross negligence of the bank this liability becomes fixed. The debatable question in this case is whether there was sufficient evidence of such negligence to he submitted to the jury. Upon the whole evidence we think there was. Whether the bonds in question were lost, stolen or abstracted by some one in the bank does not clearly appear. It certainly is a circumstance of some weight that a satisfactory solution of the manner of the loss has never been given by the bank, if, then, we refer to the structure and arrangement of the banking house and the vault, we find it almost impossible that this vault could have been entered in broad daylight, as alleged it must have been, by a person entering to steal these bonds, without his being seen by the officers of the bank. If we add to this an entire absence of any breach of the windows, doors, vault and floors, through which an entry might have been effected, and that no information was given to the plaintiff of the loss of her bonds until she called herself, and then that she was called into a private room to communicate the loss, the case acquires more strength. And then, if finally she was told by the bank that the loss would not be hers but that of the bank, and that the bank would continue to pay her the interest, and accordingly did so for about two years, carrying the payments into the books of the bank, implying a consciousness of the officers that the loss was caused by some fault of the bank, we reach a point in the evidence of such strong import as to the fact of gross negligence, the evidence could not be withheld from the jury. Having been submitted to them, and gross negligence found by them, and a new trial refused, we cannot say that the evidence was insufficient, and that an error was committed. The verdict establishes the negligence. We discover no error in the record and the judgment is affirmed.


author: Chief Justice Agnew

text:
    Dunn and Biddle’s Appeal. Fry’s Estate.
    1. F. and his wife, E. L. F., executed a deed of trust of the wife’s estate as to one-third thereof in trust to pay over the net rents, issues and profits, interest and income thereof, for and during the lifetime of the said E. L. F., to such persons as she, the said E. L. F., whether covert or sole, may appoint: * * * Provided, that such rents, issues and profits, interest and income, shall not he liable to her debts, contracts or engagements, or the debts, contracts or engagements of her present or any future husband. And from and immediately after the decease of the said E. L. F., then to grant, convey, assign, transfer and set over the said one full, equal, undivided third part of the said trust estate hereby granted and assigned unto such person or persons, and for such use and uses, estate and estates, as she, the said E. L. P., whether covert or sole, by her last will and testament, or any instrument in the nature thereof, shall direct, limit and appoint; and for want of such direction, limitation or appointment, then to grant, convey, assign, transfer and set over, the said one full, equal, undivided third part of the said trust estate hereby granted and assigned unto and to the use of such person or persons, and in such’ proportions as they would be entitled to under the present intestate laws of the state of Pennsylvania, if the said E. L. F. had survived her husband, and died intestate in said state. F. and his wife were afterwards divorced. Held, that the trust was an active one to preserve the corpus of the estate for the appointees or heirs and did not fall with the divorce.
    2. Earp’s Appeal, 25 P. F. Smith 119, and Yarnall’s Appeal, 20 P. F. Smith 339, distinguished; Williams's Appeal, 3 Norris 377, followed.
    3. In 1859 E. L. F. made her will, the first clause reciting that it was made “ in pursuance and execution of all laws, authorities and powers enabling me to make a last will or appointment in the nature thereof.” In the foregoing deed of trust, made in 1875, testatrix reserved to herself the power of appointment by will in the terms therein contained: Held, that the will was not a valid execution of this power.
    June 22d 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Certiorari to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1877, No. 126.
    Appeal of O. B. Dunn and George Biddle, executors under the will of Emily L. Fry, deceased, from the decree of the court confirming the report of the auditor to whom was referred the account of the Pennsylvania Company for Insurances on Lives, trustees under a deed of trust executed by Mrs. Fry and her husband.
    Emily L. Fry, deceased, was- the daughter of John Grigg, also deceased. She was born in the month of August 1840. ■ In August 1858 she was married to Horace B. Fry, and had two children, Nannie McClellan Fry and Reginald Fry, both of whom are still living. Mrs. Fry went to Europe in 1865, and remained until 1874, when she returned to New York, remained there two weeks, and went back to Europe. She came back to this country in May 1875, and died in New York on the 23d of October 1875.
    While residing in Paris, Mrs. Fry, who was possessed of an estate of nearly $300,000, made and published her last will and testament. The will is dated the 18th of June 1869. Mrs. Fry, on the 23d of October, executed a codicil to the will. In this will the first clause was : “ In pursuance of all laws, authorities and powers enabling me to make a last will or appointment in the nature thereof.” She then, after reserving some personal effects, gives, devises and bequeaths her entire estate to her executors in trust for the benefit of her children and their issue, and in case of the death of both of her children before attaining the age of twenty-one years, without leaving lawful issue, then she directs her trustees, or the survivor, to dispose of her residuary estate, by applying the same to charitable uses in France.
    On the 10th day of June 1875, Horace B. Fry and Emily L. Fry, his wife, executed a deed of trust to the Pennsylvania Company for Insurances on Lives and Granting Annuities, of all the estate of said Emily L. Fry, real, personal a.nd mixed, excepting $7000 in nominal amount of the seven per cent, coupon bonds of the New York Central Railroad Company, and $3000 in nominal value of bonds of the Philadelphia and Reading Railroad Company ; also equipages, household furniture, books, pictures, &c., “In trust as respects one fell equal undivided third part of the property hereby granted and assigned to pay over the net rents, issues and profits, interest and income thereof, for and during the lifetime of the said Emily L. Fry, to such person or persons as she, the said Emily L. Fry, whether covert or sole, shall appoint from time to time to receive the same by any revocable instrument under her hand, and not by way of anticipation, and in default of such appointment, then into her own proper hands, notwithstanding coverture, and in case of such coverture for her separate use, and the receipt of such person so appointed, or of herself in default of such appointment, shall only be a sufficient discharge therefor, jProvided, that such rents, issues and profits, interest and income, shall not be liable to her debts contracts or engagements, or the debts, contracts or engagements of her present or any future husband. And from and after the decease of the said Emily L. Fry, then to grant, convey, assign, transfer and set over the said one equal undivided third part of the said trust estate hereby granted and assigned unto such person or persons, and for such use and uses, estate and estates, as she, the said Emily L. Fry, shall, whether covert or sole, by her last will and testament, or any instrument in the nature thereof, under her hand and seal, executed in the presence of two or more credible subscribing witnesses, direct, limit and appoint, and for want of such direction, limitation or appointment, then to grant, convey, assign, transfer and set over the said one full equal undivided third part of the said trust estate hereby granted and assigned unto and to the use of such persons and in 'such proportions as they would be entitled to under the present intestate laws of the state of Pennsylvania, if the said Emily L. Fry had survived her husband and died intestate in the state of Pennsylvania while an inhabitant thereof, seised and possessed in her own right of said equal undivided third part of said trust estate, and if the real estate therein included were situate in said state of Pennsylvania.” The other two-thirds of the estate were conveyed in trust for the two children, and in the event of their death without issue, to such person or persons as they might by will or other instrument constitute, limit and appoint to receive the same, and in default of such will or appointment then the estate was to be conveyed as in the case of the third named above. There was no dispute about these two-thirds. On the 7th of September 1875, Horace B. Fry and Emily L. Fry were absolutely divorced from the bonds of matrimony under proceedings instituted, by Horace B. Fry v. Mrs. Fry, in the Circuit Court of Dubuque county, Iowa, and Mrs. Fry died on the 23d day of October following.
    Shortly after Mrs. Fry’s death the Pennsylvania Company filed their account as trustees, which was referred to an auditor, before whom appeared the executors and the Fidelity Insurance, Trust and Safe Deposit Company, the former claiming one equal undivided third part of the entire trust estate under the provisions of the will, and the latter claiming the entire trust estate as guardian of the two minor children, under the- provisions of the deed of trust. •
    The auditor was of opinion that the trust created in the deed executed by Horace B. Ery and Emily L., his wife, dated June 10th 1875, was an active one, and continued to the day of the death of Emily L. Fry, and that the will of Mrs. Fry was revoked and of no effect, and he, therefore, awarded the whole trust estate to the Fidelity Company.'
    The exceptions filed to this report were dismissed by the court, Ludlow, P. J., saying:
    “ Under no circumstances can we interpret the will of Mrs. Fry, made many years before the deed of 1875 was executed, as an execution of a power of appointment contained in that deed. The question is always one of intention, and though a will is ambulatory until the death of the testator, yet the very fact that it was made in 1869, and was not republished, rebuts any presumption of an intent to execute a power not then in existence.
    “It is argued that although no execution of a power can be established, yet the trust cannot be sustained, inasmuch as the divorce terminates the marital relations.

      “ It would be sad indeed, if tlie very object of the trust should thus, through a technicality, perish. Such might have been the case after Ogden’s Appeal was decided, but the recent authorities cited by the auditor, are, we think, strong enough to enable us to decide that this trust is yet active and must be sustained. It was not merely a trust during coverture, but also whether covert or sole.”
    The action of the court in dismissing the exceptions and confirming the report was assigned for error by the executors, who took this writ

      A. Sydney Biddle and George W. Biddle, for appellants.
    — The gift to Mrs. Fry of one-third part of the trust estate in question constituted a trust for her sole and separate use, and gave her a legal estate at the termination of the marital relation: Dodson v. Ball, 10 P. F. Smith 496; Mackason’s Appeal, 6 Wright 330; Nice’s Appeal, 14 Id. 144; Mogargee v. Naglee, 14 P. F. Smith 216; Yarnall’s Appeal, 20 Id. 338; Ogden’s Appeal, Id. 502; Rife v. Geyer, 9 Id. 396.
    Mrs. Fry, upon becoming discovert, took an estate in fee simple, in the one-third of her trust estate: Dodson v. Ball, supra; Ralston v. Waln, 8 Wright 279; Physick’s Appeal, 14 Id. 128; Nice’s Appeal supra; Guthrie’s Appeal, 1 Wright 16.
    The will was not revoked by the deed of trust and was a good execution of the power reserved to herself under said deed: Patch v. Shore, 2 Drew. & Smale 591; Act of Assembly April 8th 1833, Purd. Dig. 1476, pl. 16; Wogan v. Small, 11 S. & R. 145; Balliet’s Appeal, 2 Harris 459; Thomas v. Jones, 1 DeGex, J. & S. 63; Act of Assembly of 1833, Purd. Dig. 1476, pl. 11; Thomas v. Jones, 31 Law Journal Rep. Ch. 733, and 2 Johnson & Hemming 475: Cofield v. Pollard, 5 Weekly Rep. 774.

      Thomas J. Diehl and William A. Porter, for appellees.
    — A general devise, however unlimited in its terms, will not comprehend the subject of a power unless it refer to the power itself: Sugden on Powers 385. There is no authority that holds that a general power of appointment was executed by the donee of the power in an instrument of anterior date to that which created the power itself: Bingham’s Appeal, 14 P. F. Smith 349. The intention of the party, where the power is general, is to be sought only in the instrument by which the appointment is made : Thompson v. Garwood, 3 Whart. 287. Mrs. Fry’s will, executed six years before the creation of the power, contained no reference to this power, as was in the nature of the case impossible.
    The deed was a revocation of the will: Balliet’s Appeal, 2 Harris 460; Leigh v. Norbury, 18 Vesey 339.
    The deed of trust was not intended for coverture only, but it was intended that it should operate on this one-third if the parties should afterwards become discovert, either by a natural or legal dissolution of the marriage relation: Earp’s Appeal, 25 P. F. Smith 119; Ashhurst’s Appeal, 27 Id. 464; Ash’s Appeal, 30 Id. 497.
   Chief Justice Agnew

delivered the opinion of the court, June 26th 1877.

It was not quite accurate to say, as the learned judge below did, that the trust in Mi’s. Fry’s deed might have perished, if it had been determined under Ogden’s Appeal. Ogden’s Appeal has not been impaired by the subsequent cases: Earp’s Appeal, 25 P. F. Smith 119; Ashhurst’s Appeal, 27 Id. 464; Ash’s Appeal, 30 Id. 497, and some others, are plainly distinguishable from both Yarnall’s and Ogden’s Appeals, 20 P. F. Smith 501. The grounds are broad and clearly visible, and were stated in Earp’s Appeal, which the other cases mentioned followed. This distinction has been re-stated in the recent case of Williams’s Appeal, 2 Norris 377. In that case there were two instruments creating several trusts of a very different character, but which the auditor and the court below confounded, one of which was governed by Ogden’s Appeal and similar cases, and the other by Earp’s Appeal and its sequents, and so we held.

Mrs. Fry’s deed is plainly governed by the principles stated in Earp’s Appeal and is quite as easily distinguished from Ogden’s Appeal. The trust created by her was, “to pay over the net rents, issues and profits, interest and income thereof for and during the lifetime of the said Emily L. Fry,” to her appointee or herself,“whether sole or covert,” and “in case of such coverture for her separate use.” Then follows a proviso which gives character to the trust for her life, and show's that it was intended for her protection without regard to coverture, “ provided that such rents, issues and profits, interest and income, shall -not be liable to her debts, contracts or engagements, or the debts, contracts or engagements of her present or any future husband.” Thus she clearly indicated her intention to protect herself against her own acts as well as those of any husband, present or future. A trust for coverture only, falls at the death of the first husband, but this she intended to be carried over to any future husband, and in connection with the provision against her own debts she discovers a plain intention to make the trust for life and not for coverture merely:

Mrs. Fry’s trust for her own life is very similar to that in Ash’s Appeal, in which the same expressions occur, to wit: “whether sole or covert.” Her trust not being for coverture merely, and being equitable and of the income only and for life, was active, and did not fall with the divorce, and therefore could not coalesce with the remainder for her heirs, which was legal. The exclusion of the husband from the descent or succession, in the language defining the persons to take under the intestate law, was therefore an immaterial circumstance, as the rule in Shelly’s case would not operate under any circumstances. The language used in Earp’s Appeal, distinguishing it from Yarnall and Ogden’s Appeals, is quite as applicable to this case.

Mrs. Fry’s will, made long before she declared this trust, and not republished, cannot operate as an appointment under her deed. There are some plausible considerations which might be argued to make the will an appointment under the deed of trust, but upon a careful review of the entire subject we think the intention to execute this posterior power cannot be fairly inferred from the antecedent will, without a republication. This subject was discussed in Bingham’s Appeal, 14 P. F. Smith 849.

The decree of the Common Pleas is affirmed, with costs to be paid by the appellants, and the appeal is dismissed.


author: Mr. Justice Sterrett

text:
    Arnot’s Administrator versus Symonds.
    The names of the payees appeared on the hack of a note in the usual position of the first endorser, about three inches from the left end, and that of the defendant in the opposite direction, about the same distance from the right end of the note, so that the latter with reference to the former may be said to have been inverted. Held, that this irregular endorsement did not relieve the defendant of liability, as ho could have recourse against the payees.
    June 25th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Tioga county: Of May Term 1877, No. 200.
    Assumpsit by James H. Bosard, administrator of John Arnot against Job W. Symonds, on the following promissory note :—
    “ $331.84. Elmira, N. Y., Dec. 21st 1872.
    Two months after date we promise to pay to the order of Booth, Dounce, Rose & Co., three hundred thirty-one and T®/o dollars, value received, at First National Bank of Wellsboro, Pa.
    Houghton, Orr & Co.”
    Endorsed in the position the names are printed below:
    o -s © (A © © P © © PQ
    * *< ©

      Arnot purchased the note before due for value in the regular course of business, without knowledge as to the time when Symonds endorsed the note, whether before or after the payees, Booth, Dounce, Rose & Co. Booth, Dounce, Rose & Co., endorsed the note at the usual and proper place for the payee to endorse, and Symonds’s name is written under the name of the payees; and the only irregularity there was about the note or endorsements at the time plaintiff purchased it was the fact that Job Symonds’s name, under that of Booth, Dounce, Rose & Co., was inverted.
    The evidence showed that Houghton, Orr & Co. were required to furnish security beyond their own firm name. They applied accordingly to the defendant to endorse their note. He endorsed it by writing his name across the back of the note on the right hand end, at about three inches from the end of the paper. In this condition it was sent to the payees. They did not endorse above the name of defendant, but put their endorsement at the other end of the paper, and negotiated the note at the Chemung Canal Bank, owned by the plaintiff. The note went to protest, and the holder sued the defendant as endorser.
    The only question was, whether the fact of Symonds’s name being endorsed in this irregular manner, a recovery could be had against him by plaintiff.
    The court, Williams, P. J., held, under the authority of Eilbert v. Finkbeiner, 18 P. F. Smith 243; Losee v. Bissell, 26 Id. 459; and Schafer v. The Farmers’ and Mechanics’ Bank, 9 Id. 145, that the defendant was not put fairly in the position of a second endorser by this anomalous endorsement, and was not, therefore, liable, and directed a verdict to be found for him.
    The plaintiff took this writ and assigned this action of the court for error.

      M. F. Elliott, for plaintiff in error.
    — Because the name of Symonds was inartistically written on the note does not constitute what is called an irregular or anomalous endorsement. There can be no doubt about the right of Symonds, as the endorsements stand, to collect of Booth, Dounce, Rose & Co., the amount which the plaintiff shall recover against him in the action.

      Henry Sherwood and C. H. Seymour, for defendant in error.
    — It is evident from the position or place of the name of the defendant on the note that he understood that the payees were to assume the place of first endorsers on it, and they not having done so, the defendant is not liable in this case : Eilbert v. Finkbeiner, 18 P. F. Smith 243. When the defendant wrote his name on the back of the note he had the right to adopt either end as the upper end, and having written his name right side up between the end and the middle, far enough from the end for the name of the payees above his name, that end of the note became and was tbe upper end of said note, both to the eye and in fact, and the signature of the payees, whether made in the presence of Mr. Arnot or not, on the note, in the hands of the payees, was evidence that it never had been negotiated by the pavees to any one before it was transferred to the bank: Maples v. Brown, 12 Wright 462; Losee v. Bissell, 26 P. F. Smith 459.
   Mr. Justice Sterrett

delivered the opinion of the court, October 1st 1877.

Suit was brought by the plaintiff in error against the defendant as endorser of a note, made by Houghton, Orr & Co. to the order of Booth, Dounce, Rose & Co. and by them endorsed. The name of the payees appears on the back of the note in the usual position of the first endorser, about three inches from the left end, and that of the defendant is written in the opposite direction, about the same distance from the right end of the note; so that the latter endorsement with reference to the former may be said to be inverted. This inartistic peculiarity, in the relative position of the names, has given rise to the question of defendant’s liability as second endorser. This depends on whether the payees, from their position on the note, are to be regarded as first endorsers. If the defendant, in case he is required to pay, will have recourse to the payees, it follows that he is liable, as second endorser, to the holder. Whether he would have such recourse or not is really the tost of his liability.

It appears from the testimony that in pursuance of an understanding between the makers and the payees, to the effect that the former were to furnish security, in addition to their firm name, the defendant by request endorsed the note before it was delivered to and endorsed by the payees. This, however, is immaterial, so far at least as the plaintiff is concerned. Both names were on the note, just as they now appear, when it was presented to his bank for discount. He had no knowledge of the transaction except what might be derived from the face of the paper and the position of the endorsements thereon. The only ground of defence was that the defendant’s endorsement, as shown by the note itself, was irregular or anomalous, and, therefore, on the authority of Schafer v. Farmers’ and Mechanics’ Bank, 9 P. F. Smith 145, and kindred cases, he was not liable. The learned judge entertained this view of the case and accordingly directed a verdict for the defendant. In this we think there was error. It cannot be doubted that a person who puts his name on the back of negotiable paper, before the payee has endorsed it, means to pledge, in some shape, his responsibility for the payment of it; and it has been settled by this court, that, in the absence of legal evidence of any different contract, he assumes the position of second endorser, and that to render his engagement binding, as to any holder of the note, the implied condition that the payee shall endorse before him, must be complied with so as to give him recourse against such payee: Schafer v. Bank, supra; Eilbert v. Finkbeiner, 18 P. F. Smith 247. As was said in Herrick v. Carman, 12 Johns. 160, the fact of his endorsing first, in point of time, can have no influence, for he must have known, and we are bound to presume that he acted on the knowledge that though the first to endorse, his endorsement would be nugatory unless preceded by that of the payee. Before the Act of 1853 went into effect it was competent to prove by parol that the irregular endorser agreed to become surety for the maker or undertook to guaranty the payment of the note, &c.; but the statute effectually closes the door against this species of proof, and requires such agreement or understanding to be evidenced by some memorandum or note thereof in writing, signed by the party. Hence, in the absence of legal evidence to the contrary, the position of one who endorses in point of time before the payee is that of second endorser, and he cannot be held unless the payee assumes the place of first endorser. Taking the note then just as it was when presented for discount, what was the legal relation of the endorsers ? The payees had placed their firm name on the note in the position usually occupied by the first endorser, and there is nothing to justify the inference that they intended to avoid the responsibility which usually attaches to a party occupying that position. If they had written their name in the same direction and immediately under the endorsement of the defendant, the inference would have been quite plain that they did not intend that he should have recourse to them. The legal effect of placing their name where it is, without any endorsement above it, is to make them liable as first endorsers.

When the payee negotiates a note made to his own order, he naturally and ordinarily becomes first endorser, and in the absence of competent evidence to the contrary, the holders or endorsees will have recourse to him, if the paper is dishonored. There is nothing on the face of the note or in the position of the endorsements in this case,, to make it an exception to the rule. The fact that the defendant’s name, considered in relation to the payee’s endorsement, is inverted, can make no difference. Instead of having been written in the opposite direction and parallel to that of the payee’s, it might have been placed diagonally thereto, or in any other position so that it was not over or above it. There is no evidence that the plaintiff knew which endorsement was made first in point of time ; nor would it be material if there was. The only knowledge he had was such as the paper itself imparted, and from this he had no notice that could in any way affect his right to recover against either of the endorsers.

It may be that this view of their legal relation, as derived from the position of the endorsements, will defeat the object the payees had in requiring the makers to furnish an endorser. If so, it must he accepted as the result of their mistake in taking the note, made to their own order, instead of to the order of the defendant. The same result would flow from the ruling of the court below. If suit were brought against them by the defendant, they could not successfully say that they do not appear on the note as first endorsers, nor would they be permitted to prove by parol that their liability was secondary to that of the defendant.

judgment reversed, and a venire facias de novo awarded.


text:
    Commonwealth ex rel. King versus King.
    1. The right of appointment of the governor, to fill a vacancy in a county office, under the 8th section of the 4th article of the constitution, extends only to the period between the death, resignation or removal of the incumbent and the beginning of the new term by regular succession.
    2. The sheriff of McKean county died on the 14th of October 1875, in the last year of his term. To fill the vacancy the relator was appointed by the governor, his commission running to January 1877. The respondent was elected sheriff for the term of three years, at the regular triennial election on November 2d 1875. Held, that the appointee of the governor was only entitled to the office from the time appointed until the beginning of the next regular term in January 1876 ; and that the respondent was entitled to the same after that time.
    June 25th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of McKean county: Of May Term 1877, No. 38.

      Quo warranto ex relatione Thomas King against Chester S. King, to show by what warrant the latter exercised the office of sheriif of McKean county.
    On the 14th day of October 1875, M. N. Powell, sheriff of Mc-Kean county, died. It was the last year of his term. On the 25th day of October 1875, Thomas King, the relator, was appointed to fill the vacancy, and commissioned by the governor until the end of the next session of the legislature of the Commonwealth, the state department writing him that upon his confirmation by the senate, a new commission would be issued, running to the 1st of January 1877. At the general election, November 2d 1875, Chester S. King, respondent, was voted for and declared elected, and subsequently commissioned for the full term of three years from January 1st 1876, under Avhich commission he claimed to exercise the duties of the office.
    On the 16th of February 1876, relator petitioned for a rule to show cause why a quo warranto should not issue. A rule to show cause was granted returnable March 2d, and on the 3d day of March a writ was issued returnable March 21st. On the 18th day of March an answer was filed.
    The relator claimed that under the law and constitution he was entitled to hold the office, perform the duties and receive the emoluments until January 1st 1877.
    The case was heard before Williams, P. J., April 10th 1876, who entered judgment for the respondent and filed the following opinion, which is given in extenso, because of its able and exhaustive discussion of the question involved.
    “In October 1872, M. N. Powell was elected sheriff of McKean county, and commissioned for the term of three years. The time for choosing his successor was the general election of 1875. The sheriff’s proclamation for the election had been duly issued and advertised, designating the offices to be filled at the election; that of sheriff being one. Candidates had been nominated by both parties for election to the office of sheriff, and the political canvass nearly closed, when Powell, after an illness of a few hours’ duration, died. This was on the 14th day of October, and the election was to occur on the 2d day of November, .or within less than three weeks. The relator was appointed to fill the vacancy, and commissioned by the governor, as sheriff, his commission running according to its terms until the close of the next (the present) session of the legislature.
    “ The election was proceeded with in accordance with the sheriff’s proclamation, and resulted in the election of the respondent to the office of sheriff of McKean county. He was commissioned by the governor for a full term of three years, in accordance with the terms of the election so held. The writ of quo warranto was applied for by the relator in order to test the validity of the commission so issued to the respondent.
    “ In his petition the relator sets out the terms of his own commission, and claims the right to perform the functions of sheriff, by virtue thereof.
    “ The respondent replies, the election and his commission issued in pursuance thereof, for the term of three years. To this answer the relator demurs. The issue, therefore, is one of law simply, and presents the question of the validity of the election of the respondent. Its validity is denied upon the allegation that there was no vacancy in the office of sheriff to be filled at the general election of 1875, because the death of Powell occurred within three months immediately preceding the election. This circumstance, it is argued, took from the electors of McKean county the power to elect a sheriff, because of the provisions of the new constitution, and the Act of May 15th 1874. It becomes necessary therefore to examine somewhat at length the provisions bearing upon this subject.
    “ Art. 4, sect. 8, of the constitution, confers on the governor the power to nominate, and by and with the advice and consent of two-thirds of the senate, to appoint certain officers whose places are not under any circumstances to be filled by election; and gives him the power to fill vacancies that may happen during a recess of the senate in these ofiices, and issue commissions to his appointees during such recess, to expire at ‘the end of the next session.’ The same section then proceeds to confer on the governor the power to fill vacancies in certain elective offices, and provides that if the vacancies occur during the session of the senate, the governor shall nominate to the senate a suitable person to fill the vacancy. It then concludes with these words : ‘ But in any such case of vacancy in an elective office a person shall be chosen to said office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding said election, in which case the election for said office shall be held at the second succeeding general election.’
    “ The other constitutional provisions bearing upon the question are sects. 1 and 2 of art. 14. Sect. 1 defines and enumerates the ‘ county officers,’ the office of sheriff being one of them. Sect. 2 provides that ‘ county officers’ shall ‘ be elected at the general elections, and shall hold their offices for the term of three years, beginning on the first Monday of January next after their election, and until their successors shall be duly qualified. All vacancies not otherwise provided for shall be filled in such manner as may be provided by law.
    “ From these provisions it seems clear that if the death of M. N. Powell created a vacancy within the meaning of sect. 8 of art. 4, the position of the relator is sustained. Before determining this point it is important to get at the exact sense in which the word is employed in this section ; it should be borne in mind that sects. 1 and 2 of art. 14, fix the terms of county officers, and provide for their election. • The whole subject, therefore, of the election and succession of all county officers, being thus distinctly provided for, we may safely conclude that such provisions as relate only to the filling of vacancies were intended to be auxiliary to, and not destructive of the provision of art. 14. With this thought in mind, let us now turn back to sect. 8, art. 4, and look once more at its words : ‘ But in any such case of vacancy in an elective office, persons shall be chosen to said office at the next general election.’
    “ Chosen for what ? not for a term to be filled regularly, under art. 14, but to fill an office that would otherwise be vacant, because of the want of authority to elect at that time; if it was a choosing at the regular time fixed, in order to keep up the line of succession in the office^ the case would be already provided for; but sect. 8 continues the subject by adding, ‘unless the vacancy shall happen within three calendar months immediately preceding such election, in which case the election for said office,’ that is, to fill the vacancy in said office, ‘ shall be held at the second succeeding general election.’ Why ? Because a vacancy ought not to be filled by ail election without time enough in which to select suitable candidates, and give general notice to electors that an officer is to be voted for, not ordinarily elected at that time. This construction leaves art. 14 to provide for the ordinary succession of official terms; and sect. 8 of art. 4, to provide for the extraordinary elections rendered necessary by the happening of a vacancy requiring to be filled by an election at another than the regularly triennial election. But, is the Act of 1874 capable of a construction in harmony with this view of the constitutional provisions ? It declares ‘ that in case of a vacancy happening by death, resignation, removal or otherwise, the governor shall appoint to fill the vacancy, where provision is not already made by the constitution or laws for filling it, and that the person so appointed shall continue in office till the first Monday of January next succeeding the first general election, which shall occur three or more months after the happening of such vacancy.’ The- title of this act shows that its purpose is simply ‘ to provide for the appointment of officers to fill vacancies in cases not otherwise provided for by the constitution or laws of this Commonwealth.’ It .was intended to carry out the provisions of sect. 8 of art. 4. If the view we have taken of that section be correct, then this Act of Assembly must be held to relate only to such cases of vacancy as require to be filled at another time than the regular or usual election for filling the office. A vacancy occurring at such time as "to be filled by the people without any departure from the rule of election' fixed by art. 14, is already ‘provided for.’ The case unprovided for at the passage of the act was the occurrence of a vacancy requiring to be filled at another than the usual time, of which all electors would have notice. The provision made for this case by the Act of 1874 is that such vacancy shall be filled at the first election occurring long enough after the vacancy arises to afford opportunity to make an intelligent choice. This time, is fixed at three months.
    “ Any other view of this act makes it infringe upon art. 14, sect. 2, of the constitution; but the construction we have considered not only relieves the Act of 1874 of this difficulty, but assigns to it its proper place in our elective system. The people elect their officers for fixed terms and at regular intervals, so that no vacancy can occur without the intervention of some disturbing cause, such as the death, resignation or removal of the officer: -when, by reason of such disturbing cause, the vacancy does occur for which the ordinary machinery of the election laws is inadequate to provide, we have the remedy for the exceptional and disturbing case in the provisions relating to the filling of just such vacancies; this makes our system complete and harmonious.
    ■ “ But let us look at the consequences that might follow a holding in accordance with the position of the relator. If the vacancy is not such as we have supposed, but is any vacancy occurring at any time, then the regular operation of the election laws would be interfered with in the case in hand, and an election occurring at the end of the constitutional term of the office, for which candidates had been nominated after their qualifications had been discussed and their friends marshalled, would be postponed for one whole year. If these consequences must follow when the death of the officer occurs three weeks before the election at which his successor should regularly be chosen, they must with equal certainty follow if the death occurs but one week or one day before the time for opening the polls. If the death of the incumbent works this serious change in the position of candidates and electors, so equally must his ‘ resignation or removal.’ It might happen, therefore, that the incumbent of a county office, becoming satisfied that his favorite candidate for the succession must be defeated, should resign on the eve of an election, thereby creating a vacancy, which the governor must fill, and so not only postpone the election for one year and secure an opportunity to fight the battle over, but by the appointment of his candidate by the governor to fill the vacancy, secure for him mean time, by this artifice, the very office that it had become apparent the people were not disposed to confer upon him, and when the second succeeding general election comes around, and the issue is again made up with another prospect of defeat, what could prevent the appointee from offering his resignation, and so creating another vacancy to bo filled by the governor, and postponing the election for another year ? Who can tell at what time an election could ever be reached at which the electors might feel sure that they would be permitted to exercise their constitutional right to elect a sheriff ?
    “But suppose the election to have been held, the votes actually counted, and the result ascertained to be adverse to the wishes of the incumbent, and he then resigns. What follows ? Here is a vacancy in the office of sheriff, and it has happened by resignation; it is one of the precise cases put by the Act of 1874. If the relator’s construction be correct, how is this vacancy to be filled? Very clearly, it must be filled by appointment by the governor. How long shall the appointee hold ? The reply of the relator must be, ‘ Until the first Monday of January next succeeding the first general election which shall occur three or more months after the happening of such vacancy.’ And there can be no escape from it, if his construction be correct. Such consequences were not intended by the constitution, or by the Act of 1874; and they seem to illustrate the necessity of giving such a construction to all their provisions as shall secure to the people the right to elect their officers in accordance with the spirit of our institutions, as the first object of regard; and then in the next place, and in subordination to this great fundamental right, to provide for filling vacancies occurring within the term, at such times and in such manner that the ordinary operation of our elective system fails to provide for the succession.
    “ The question is new, and the phraseology of the constitution and of the Act of 1874 is such that the work of harmonizing their provisions is by no means easy, but we have persuaded ourselves that it is not impossible. From the construction we have adopted, we have come to the following conclusions applicable to this case:—
    “That the election of 1875 was the usual, regular and proper triennial election for sheriff of McKean county.
    “ That the death of the outgoing officer, a few days before the election, could not divest .the right of the electors to fill the office »t that election.
    “ That the respondent was regularly elected at said election, has been duly commissioned .by the governor, and is the legal incumbent of the office of sheriff for said county, for the term of three years from the first Monday of January last.
    “Judgment accordingly for respondent, with costs.”
    The relator took this writ, and assigned for error this entry of judgment for respondent.

      R. Brown, B. B. Strang, Junius R. Clark and Williams & King, for relator.
    — The constitution of 1878 made provision for election to county offices, but none for appointment to fill a vacancy in the office until an election could be held. The legislature, to remedy this omission, passed the Act of May 15th 1874, and it was under the powers conferred by this act that the relator was appointed and commissioned on the 25th of October 1875 to fill the office, made vacant by the death of M. 1ST. Powell on the 14th of October 1875.°
    Why, if the Act of 1874 is constitutional, is not the relator entitled to hold the office for the term as provided by the said Act, viz.: until the first Monday of January next succeeding the first general election which shall occur three or more months after the happening of the vacancy ? In this act we find nothing in conflict or inconsistent with any of the provisions of the constitution; the clause of this act specifying the length of the term for which the appointee shall be entitled to the office, is only in furtherance of art. 4, sect. 8, of the constitution, which provides, that in case the “ vacancy shall happen within three calendar months preceding the general election, the election for said office shall be held at the second succeeding general election ;” and of art. 14, sect. 2, which provides, “ that the term of the person elected shall begin on the first Monday of January next after his election.” The Act of 1874 thus provides that the person appointed to the office shall hold the same until the term of the person duly elected shall begin.
    The relator was appointed, not for the balance of the unexpired term of the deceased incumbent, but under the act of 1874 “ to fill the office;” and we submit that he is entitled to the office for the term specified by said act, which in this case would be until the first Monday of January 1877.
    The respondent was elected to the office expected to become vacant on the first Monday of January 1876, by the expiration of the term for which Powell was commissioned. If Powell had lived, his election would have been regular to fill such vacancy ; but by Powell’s death, his term of office had already, on the 14th of October 187 5, in fact expired with him; to fill this vacancy that had occurred the relator was appointed, and his right to the office and the term for which he was entitled to it was determined by Act of Assembly and the constitution. Hence, at the time of the election of the defendant, there was no vacancy in the office either in fact or in immediate expectancy. Therefore, the defendant was elected to the office to supply a vacancy that did not exist and could not occur, and to say that he was elected to fill the vacancy that had occurred by the death of Powell, we submit that such vacancy had already been supplied by the appointment of the relator, and further, that an election to fill that vacancy could not under the constitution and law be held until the general election of 1876.
    _A. G. Olmstead and John G. Hall, for respondent.
    — It is not to be presumed that the legislature were ignorant of the right of the people to elect their officers, nor of the constitutional provisions guarding that right. It is to be presumed that they intended this Act of Assembly to be in harmony with that right and with these provisions. Therefore, if such a harmonious construction can be given to it, that construction should be applied. What then was the legislative intent ?
    The mischief to be remedied at its passage was the happening of vacancies at times when no election was provided for by the constitution or laws. The remedy needed was a provision for keeping up the succession in county officers by appointment, and, after suitable notice to the people, by election. It is presumed that the Act of 1874 was intended to provide a remedy for the actual mischief, and to give effect to, not defeat, the constitutional right of the people to elect their officers.
    In the cases to which the court below held it applicable, it does both these things. In a case like the one now before the court, if applicable, it does neither. On the contrary, it limits the right of the people to choose their officers. For here was an election held, after due and full notice, at the time fixed by the constitution for the election of a successor to the incumbent, whose term was just expiring. The case was not within the mischief to be remedied, and it is almost impossible that it could have been within the legislative intent.
   Chief Justice Agnew

delivered the opinion of the court, October 1st 1877.^

The opinion of the learned judge of the Common Pleas contains a very full and satisfactory discussion of the question in this case. The true inquiry is whether under the constitution and laws of the state the governor, in filling a vacancy caused by death, can commission a sheriff for a term to last beyond the expiration of the term of the deceased officer. The argument of the relator fails to distinguish between the major power of the people to elect sheriffs, by way of regular succession, for fixed terms; and the minor power of the governor to fill a vacancy in an existing term. The second section of the 14th article of the new constitution declares that, “ county officers shall be elected at the general elections, and shall hold their offices for the term of three years, beginning on the first Monday of January next after their election, and until their successors shall be duly qualified ; all vacancies, not otherwise provided for, shall be filled in such manner as may be provided by law.” As the term is. fixed by the constitution to begin on the first Monday of January following the election, it is the clear constitutional right of the people to elect the successor of the incumbent of an existing term at the general election next preceding the expiration of his term; and if the successor does not qualify no vacancy takes place, but the existing term is extended until the successor is duly qualified. It is manifest, therefore, that the vacancy referred to in this section is one occurring in an existing term by death, removal, resignation or other cause, ívhich prevents the existing term being carried to its regular period of expiration. The appoinment to fill this vacancy, or intermediate period between the death and the period of the expiration, necessarily follows the nature of the vacancy. The constitution itself provides for the election of the sheriff in regular succession, and leaves no vacancy to be provided for as to him. When the successor is duly elected his term is fixed to begin on the first Monday of January following. It is clear, therefore, that the vacancy referred to in the section cannot refer to any portion of the new term which accrues under the constitution itself by regular election and by way of constitutional succession. It follows from this major requirement of the constitution, that the term vacancy used ill the 8th section of the 4th article, conferring power on the governor to fill vacancies, must have the same interpretation, so far as it relates to the office of sheriff, or other county elective offices under the 2d section of the 14th article, otherwise the two provisions would conflict. Such a conflict is unnecessary; for the general election referred to in the last clause of the 8th section of the 4th article can have no appropriate meaning without trenching upon the provisions of the 2d section of the 14th article. It says: “but in any such case of vacancy in an elective office, a person shall be chosen to said office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding such election, in which case the election for said office shall be hold at the second succeeding general election.” The true purpose of this provision is to preserve the popular right, and not to limit or destroy it. Without the provision for election, the appointment to fill the vacancy would run to the end of the term made vacant by death or other cause; hut with it, the right of the people to elect their officers takes effect at the next, or at the furthest, at the second succeeding general election. For example, if the sheriff die in the first year of his term and three months before the day of the general election, his successor will be chosen in the same year, or two years before the time fixed for the election of a successor in due and regular course of the constitutional arrangement of election to the office. If the incumbent die within three months of the election, then an election will take place one year in advance of the regular period. This is evidently the purpose of this part of the 8th section of the 4th article, and no conflict can arise between it and the 2d section of the 14th article. The true interpretation of the constitution being this, it is manifest that the Act of May 15th 1874 cannot change the constitutional provisions and extend a vacancy into the next regular term of office, and thereby defeat the popular right of election to fill the next regular term. That act, therefore, must have the same interpretation, and the right of appointment of the governor to fill a vacancy extends only to the period between the death of the incumbent and the beginning of the mew term by regular succession, under the provisions of the 2d section of the 14th article of the new constitution.

Judgment affirmed.


author: Mr. Justice Woodward

text:
    McGinnis versus Prieson. McGinnis’s Appeal.
    1. To continue the lien of an execution it is not necessary that the personal property levied on should be taken into actual possession. It is sufficient if it be forthcoming to answer the exigencies of the writ. The leaving the goods therefore in the possession of the defendant by the permission of the plaintiff will not divest the lien of the execution, unless there bo fraud.
    2. This rule applies to a constable’s levy when made and extended, and such levy will take priority of a subsequent levy by the sheriff.
    June 13th 1877.
    Before Asnew, O. J., ShArswood, Merohr, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the decree of the Court of Common Pleas of Qlinton county: Of May Term 1877, No. 107.
    William McGinnis obtained a judgment against Adolph Prieson, for ^9779.20, on the 12th day of August 1876. On the same day ho issued a writ of fieri facias, and levied on the personal property of Prieson, consisting of household furniture, as well as a lot of fixtures, drugs, medicines, &c., in a drug store. All the articles in the drug store were sold by the sheriff on the 28th of August 1876, for $2614.76. Out of the proceeds of this sale Jonas Zindel claimed $216.17. Zindel had obtained three several judgments before an alderman against Prieson and one Ira Mason for about $200. Upon these judgments executions were issued by the aider-man and placed in the hands of the constable on the 3d of July 1876, and were returned by the constable as stayed by the order of plaintiff. On the 26th of July 1876 executions were again issued to the constable, who on the 7th of August 1876 endorsed thereon the 'following levy : “ August 7, ’76. I have this day levied on the following personal property belonging to the within-named defendant: one soda-fountain and fixtures, seven show-cases and contents, a lot of whiskey, brandy and wines in bottles and barrels.” On each of said executions there was also the following endorsement : “ Aug. 15, ’76. Returned with a levy endorsed, on want of time.” On the 15th of August three other executions were issued on the same judgments, upon each of which appears the following endorsement: “ See old execution August 7, ’76. I have this day levied on the following personal property belonging to the within-named defendant,” naming the articles enumerated above.
    McGinnis contended that there was no levy made by the constable upon the articles specified in the return made by him, and to establish this fact and contradict the return, called Prieson, who testified : “ He never notified me that he had made a levy; he never indicated to me that any part of the goods in my store were under levy. I went on and used the goods in my store until closed by the sheriff, the same as I always did for the same purpose. If a customer had desired to purchase anything in the show-cases or the liquors, it would most certainly have been sold to him. He never notified me that he would make a levy, but he showed me the papers and said if they were not fixed up he would have to make a levy. This was something like five or six days before I was closed up. I told him he had better get an indemnifying bond before he made a levy upon my goods. He did not make a levy at that time to my knowledge, because he came in two or three days after and asked me whether I had seen Mr. Zindel or Mr. Mason. .There was some negotiation at that time in reference to taking notes for the amount of these executions.”
    The constable, on the contrary, testified: “I made a levy on the old executions, on each of them, and the levy was endorsed on the back of each of the executions. This levy I endorsed on each of the old executions before I returned them. The old executions were issued on the same judgments and for the same amounts (except that there were a little more costs) as those offered in evidence here. As far as the things levied upon I did not tell any one. I told Mr. Prieson I would make a levy, and made it in Ms presence. He then told me to get a bond. I did not tell him I had made a levy after I had made it. I left the goods in the store, in Dr. Prioson’s possession. All kinds of things that are usually kept in drug-stores in show-cases were in the show-cases upon which I levied. The goods were left by me in such a way that Dr. Prieson could use them. I was not directed by any one not to remove the goods. I saw the goods almost every day after I had levied upon them before the sheriff closed the store. I saw the doctor several times, too, and talked to him about it. There was nothing to indicate to a stranger that the goods were under a levy. I never itemized the contents of the show-cases. I never took the number of the bottles and barrels of brandy, Avhiskey and wine. The liquors in bottles that I levied upon were on the right hand of the store, and those in barrels were in the cellar. I was not in the cellar that day, but I was the week before I levied— probably it was ten days before. I had the levy on a piece of paper, and copied it on the executions. The memorandum was made in Prieson’s store. The memorandum is either lost or mislaid. Dr. Prieson was in the store when I made it. I told him I’d make a levy, and I made it in his presence, he on one side of the counter and I on the other.”
    It Avas further contended by McGinnis, that even if the levy was made as stated in the return of the constable to the executions issued on the 26th of July, that the constable having returned the executions without proceeding to sell, the lien of the levy was gone when the writs wore returned on the 15th of August.
    The court, Mayer, P. J., in an opinion, said: “ The lien of Zindel’s executions had attached before McGinnis’s writ reached the hands of the sheriff, and the constable could have insisted on his right to sell the goods levied on as against the levy made by the sheriff on the same goods. But he did not assert Ms right and returned these executions on return day with levy and not sold for Avant of time. The justice issued other executions upon which he endorsed and preserved the levy made on the former executions. The sale Avas made by the sheriff on the 28th of August, being eleven days after the levy made by the constable on Zindel’s executions, and nine days before the lien of the levy had expired. It is of no consequence that the sale was not made by the constable. The lien of his levy would attach to the proceeds of sale. Being of the opinion that the execution of McGinnis is postponed in the distribution of the proceeds of sale to the three executions of Jonas Zindle v. Adolph Prieson and Ira Mason, it is ordered and directed that that portion of the proceeds of sale of the personal property of Adolph Prieson in his drug store realized from a sale by the sheriff of the goods and chattels levied upon by the constable on the executions of said Zindel, be and appropriated to the payment of the debt, interest and costs of said executions.
    From this decree this appeal was taken.

      Jesse Merrill, for appellant.
    — The goods named in the alleged levy were not in the view of the officer at the time of the levy ; there was no schedule of the goods made and returned; the levy was not “public, open and unequivocal,” and there never was a seizure of the goods, all of which are requisites to a valid levy: Lowry v. Coulter, 9 Barr 351; Schuylkill County’s Appeal, 6 Casey 359; Duncan’s Appeal, 1 Wright 502; Truitt v. Ludwig, 1 Casey 149; Parys’s Appeal, 5 Wright 277; Wood v. Vanarsdale, 3 Rawle 401.

      T. T. Abrams, for appellee.
    — lo constitute a good levy on personal property it is not necessary that the goods should be immediately removed or taken in possession, but it is sufficient if they are within the control of the officer at the time of the levy and it is followed up with reasonable diligence: Wood v. Vanarsdale, 3 Rawle 401; Trovillo v. Tilford, 6 Watts 468; Linton v. Commonwealth, 10 Wright 294; Dorrance v. Commonwealth, 1 Harris 160; Keyser’s Appeal, Id. 412.
    Where an act is required to be done by an officer, the law will presume that it was rightly done: Fetler v. Patton, 8 W. & S. 458; Bull. N. P. 298; Williams v. East India Co., 3 East 199; 2 Best on Presumptive Evidence, p. 633, pl. 357; Hartwell v. Root, 19 Johns. 345; King v. Hawkins, 10 East 216.
   Mr. Justice Woodward

delivered the opinion of the court, October 1st 1877.

In the distribution of the fund produced by the sale of Adolph Prieson’s property, the first question that arose was one of fact. Jonas Zindel, the" appellee, asserted a right to participate in the distribution, by virtue of the lien of three executions issued to constable Keller, in judgments, obtained on the 3d and 13th of June 1876, before a justice of the peace. On behalf of the appellant this right was denied, on the ground that no levy had been actually made. Prieson testified that although the constable was at his store, no intimation of an intention to make a levy was given him, and that he remained in possession until the store was closed by the sheriff. On the other hand, the executions which were issued on the 26th of July 1876, exhibited an endorsement on each of a levy made on the 7th of August on “one soda-fountain and fixtures, seven show-cases and contents, and a lot of whiskey, brandy and wines in bottles and barrels.” On each of the three executions issued on the 15th of August the same entry was copied, and reference was made to the former executions and the original endorse-. merits. In support of his return, the constable swore that he made the levy, gave notice to Prieson of the articles seized, made a memorandum of them in his presence, and from that memorandum endorsed the levy on the executions. The court below accepted the record of the constable’s official action, corroborated as it was by his sworn statement, as decisive of the question in dispute in favor of the appellee. It cannot be said that the decision was based on unsatisfactory grounds. The parol evidence was conflicting, and only due weight was given to the return made by the constable, in the discharge of his legal duty, on the 7th of August, five days before the appellant acquired any adversary right by placing his execution in the sheriff’s hands. “ It is a Avoll-settled rule of law,” it was said by Justice Kennedy, in Fitler v. Patton, 8 W. & S. 455, “ that where any act is required to be done by any one, and especially by an officer, within a limited time, which were he not to perform as required, would render him guilty of a criminal neglect of duty, the law will presume that it was done rightly, and will throw the burthen of proving the contrary on the other side.”

It was also objected to the application of the fund to the claim of the appellee, that, as there was no actual seizure of the property, and the defendant in the executions was left in its possession, the levy was not legally made. A reference to rules which precedents have firmly established, sufficiently answers this objection. It was said by Strong, J., in Commonwealth Insurance Company v. Berger, 6 Wright 292, that “ strictly, it is true, a levy is an actual seizure; but in this state it has been held that if the officer, with the goods in view and within his power, assert that he makes a levy upon them, his acts are equivalent to a levy.” This statement of the legal principle is warranted by the cases of Wood v. Vanarsdale, 3 Rawle 401, and Trovillo v. Tilford, 6 Watts 468. To continue the lion of an execution, it is not necessary that the personal property levied on should be taken into actual possession; it is sufficient if it be forthcoming to answer the exigencies of the writ: Dorrance’s Administrators v. The Commonwealth, 1 Harris 160. The mere leaving in the possession of the defendant of goods levied upon, with the permission of the plaintiff, will not divest the lien of the execution, unless there be fraud: Keyser’s Appeal, 1 Harris 409.

While there has boon no attempt to prove any fraudulent agreement, practice or contrivance on the part of the appellee, it is insisted that his claim should be postponed, because all the proceedings on the executions indicated an intention not to sell, but to cover up and secure a lien upon the goods made subject to the levy. Two of the appellee’s judgments were recovered on the 3d of June 1876. The third was recovered on the 13th of that month. Executions were issued on the 3d of July, and wore stayed on the 22d. On the 26th of July the second series of executions went out. They were levied on the 7th of August, and were returned with the levy endorsed on each, and with the entry “on want of time,” made by the constable as part of the return, on the 15th of August. The same day the justice issued the third series of executions, and the levy made on the 7th of August was immediately endorsed on the new writs. Meanwhile the appellant’s execution was issued to the sheriff on the 12th of August. All of Prieson’s personal property was levied on and taken into the sheriff’s custody at once, and was sold on the 28th of August. Of the disposition made of the first writs the appellant is not in a position to complain. When his execution passed into the sheriff’s hands, the property was bound by the lien of the constable’s levy, which the terms of the 18th section of the Act of the 20th of March 1810 would have preserved for twenty days from the 7th of August. It is not necessary to inquire what effect upon the appellee’s rights would have been produced by the sheriff’s sale on the 28th of August, if the constable had retained the second series of writs in'his hands until that time. Those writs were returned for reasons that were satisfactory to the magistrate on the 15th of August, and fresh ones were issued in their stead. The consequence was that the appellee stood in the same position on the 28th of August that he would have occupied if the sheriff’s sale had been made within twenty days from the date of the constable’s levy. The 18th section of the Act of 1810, after authorizing a levy, fixing the extent of its lien, and empowering the officer to take a bail-bond, and in default of such bond to sell, made this provision for the contingency of the loss of the lien from lapse of 'time: “ But should the lien be expired, the justice may issue an alias execution, which may be proceeded on as aforesaid.” In all the steps that were taken it is not seen how anything was done by the appellee to involve his claim in hazard. He took no personal action after staying the first executions, and the appellant had not then obtained his judgment. Nor did anything in the proceedings of the justice and constable indicate any other purpose than the collection of the judgments of the appellee by the application, in entire good faith, of ordinary and familiar legal process. The legitimate end of an execution is to have the money'at the return of the writ, or, for good reasons set forth in the return, to hold the property for another writ, and not to favor the debtor by giving him time or a deceptive appearance of ownership : Lantz v. Worthington, 4 Barr 153. Eor all that appears, this “ legitimate end” was kept in view throughout these proceedings. Even if there had been official irregularity or undue delay, the appellee would not have been held responsible. An execution will not be postponed for the officer’s default. His procrastination, even by the sufferance*of the creditor, is not fraudulent per se, and postpones only when the creditor directs him not to proceed: McCoy v. Reed, 5 Watts 300. The lien of these executions was legally acquired and was duly preserved until the seizure of the ^ goods by the sheriff withdrew them from the constable’s control. In the entire absence of affirmative proof of any action on the part of the appellee that»would bar his rights, he was entitled to take the amount of his judgments out of the proceeds of the sheriff’s sale.

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