author: Mr. Justice Mercur

text:
    Watson’s Appeal.
    p. an¿ 'W. owned certain property, as tenants in common. They jointly executed a mortgage thereon to N. to secure the payment of eleven bonds of $2000 and one of $4000. N. assigned nine of the $2000 bonds to C. and guarantied their payment. About the same time N. borrowed money of D. and gave the $4000 bond as collateral security. N. failed to pay D. and the latter transferred the $4000 bond to E. After the obligors had paid and taken up two of the $2000 bonds, W. conveyed his undivided one-half of the property to N. The deed contained a covenant of N., by whioh he agreed to assume and pay the balance due on said mortgage and to save harmless W., his heirs, executors and administrators, from the payment of the same or any part thereof. Afterwards N. procured a re-assignment of the seven bonds from C. and transferred them to other parties. Held, that by the conveyance by W. of his interest in the land to N., the latter became a tenant in common with P., and when N. paid and took up the bonds secured by the mortgage, which he and P. were jointly obligated to pay, he thereby acquired the right to collect one-lialf thereof out of the estate of P., and was entitled to all the securities and all the remedies given by the mortgage, and that by the assignments of the bonds these remedies passed to his assignees.
    June 2d 1879.
    Before Sharswood, C. J., Mercur, (Jordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Appeal from the Court of Common Pleas of Lycoming county: Of May Term 1879, No. 210.
    Appeal of Oliver Watson and Oliver Watson, Jr., in right of his wife, formerly Ella R. Potter, from the decree of the court making distribution of the proceeds of the sheriff’s sale of the real estate of Joseph H. Wonderly and of Ozias Potter, deceased, in the hands of Albert T. Nichols, his administrator.
    John B. Hall, being the owner in fee of certain real- estate known as the “Foundry Property,” in the city of Williamsport, in 1864, entered into articles of agreement to sell the same to Albert T. Nichols. Nichols in 1866 sold the same to Ozias Potter and Joseph H. Wonderly, there being at the time a balance of $16,000 due Hall from Nichols on the aforesaid agreement. On the 81st of October 1866, Hall executed and delivered to Potter and Wonderly direct a deed of the premises, and the same day Potter and Wonderly gave to Hall bonds for the $16,000 due him from Nichols, and a mortgage on the premises to secure the same; and to Nichols, the same day, bonds for the sum of $24,000, and a mortgage on the same premises to secure the same. The deed and two mortgages were filed for record on the day of their execution.

      The bonds to Hall were all paid by. the obligors, except one of $4000, which was assigned by Hall to E. L. Piper, and by Piper to Mrs. Catherine J. Packer. Three of the bonds given to Nichols, amounting to $6000, were paid by the obligors. Of these, one bond of $4000 had been assigned by Nichols to Robert Porter, in 1867, as collateral security for a loan of $5500, for which Nichols had given his note, with endorsers, and which note, with the interest thereon, remains unpaid, and said bond was assigned by Porter to Oliver Watson, on the 9th day of May 1878. The remaining seven bonds of $2000 each were assigned by Nichols to E. L. Piper, December 9th 1867, and re-assigned by Piper to Nichols, in 1874 and 1875; and subsequently thereto, to wit, on the 29th of May 1875, two of said bonds were assigned by Nichols to the City National Rank of Williamsport, as. collateral security for a loan to said Nichols upon his note, with endorsers, which note remains unpaid; and five of said bonds were assigned by said Nichols to William H. Armstrong, and by him to the York County National Bank as collateral security, for a loan of $10,000 obtained by Nichols on his notes, endorsed by said Armstrong and others, and which note remains unpaid and the endorsers never released. The bonds were assigned to Armstrong to obtain his endorsement of Nichols’s notes, and assigned by Armstrong to the York County National Bank after failure of Nichols to pay his notes.
    On September 6th 1869, Ozias Potter, one of the obligors in the said bonds and mortgages, and owner of the undivided one-half of the property described in the aforesaid deed and mortgages, died, leaving to survive him a widow and an adopted daughter, Ella R., since intermarried with Oliver Watson, Jr., having made a will which was declared invalid, on issue thereon, and on the 8th of October 1870, letters of administration de bonis non were granted to the aforesaid A. T. Nichols.
    On the 11th January 1871, Joseph H. Wonderly, the other obligor in said bonds and mortgages, and owner of the other half part of the said premises with his wife, by their deed dated January 10th 1871, conveyed to said Nichols the one undivided half part thereof. This conveyance 'was expressly made subject to the payment by Nichols of the balance of the debt and interest due upon both of the aforesaid mortgages, and the fact that part or all of the bonds thereby secured had been assigned to third parties was distinctly recognised. This deed also contained a covenant by Nichols “to assume and pay the balance of the debt and interest owing upon said two mortgages and bonds secured thereby, and to save harmless the said Wonderly from any liability for the same;” and it was moreover expressed that the performance of said covenant and by said Nichols was a part of the consideration of said deed, and the deed was executed by Nichols as well as the grantors. Mrs. Catherine J. Packer issued a scire facias upon the Hall mortgage, obtained a judgment, and issued a levari facias to May Term 1878, and then assigned the judgment to Oliver Watson. The sheriff sold the property to Oliver Watson for $9800, for which sum he returned he had taken the receipt of Oliver Watson under the Lien Creditor Act, Mr. Watson claiming that the fund should be appropriated first to the payment of the Hall mortgage, balance in full of debt and interest $5016.57, and the remainder should be applied to the bond which had been assigned by Nichols to Porter and by Porter to him, the said Watson, and so the auditor reported. To this report exceptions were filed on the 31st of December 1878, by the City National Bank and the York County National Bank, and the case referred back to the auditor to make a new distribution on the principles indicated in the opinion of the court, to wit, that Nichols, by virtue of his succession to Wonderly’s half interest in the property, and having paid off the mortgage, was entitled to subrogation as against Potter, but confirming the distribution so far as applied to the Hall mortgage. The auditor made a second report, distributing the $4500 pro rata, upon the whole of the Porter bond and the one-half of the amount of the bonds held by said banks. To this report Oliver Watson and Oliver Watson, Jr. filed exceptions on the 18th of April 1879, alleging as error that the auditor erred in not distributing the whole balance of $4475 to the Porter bond; that the distribution was not in accordance with the law and .the facts, and that there was error in the court in refusing to confirm the first report and in referring the same back to the auditor.
    On May 9th 1879, the final decree of the court was filed, decreeing a distribution different from that made by the auditor, but not as claimed by Oliver Watson, overruling the exceptions, except to the extent that the distribution made by the auditor was changed by the opinion as filed by the court, and confirming the report of the auditor absolutely. By this decree the $4475 are distributed as follows:
    One-half thereof to the Porter bond held by Watson, $2237.50 And of the remaining one-half, to wit, $2237.50, to
    Oliver Watson on the Porter bond, ... 280.46
    $2517.96
    To the bond held by City National Bank, - - 579.47
    To the bond held by York County National Bank, - 1377.57
    $4475.00
    Erom,which final decree Oliver Watson and Oliver Watson, Jr., took this appeal.

      Clinton Lloyd and H. W Watson, for the Watsons.
    Potter and Wonderly were joint obligors in the bonds to Nichols. Either might pay, and was in duty bound to pay, without consultation with the other. We contend that Wonderly paid the whole of the mortgage-debt, not the half thereof as the court intimated in their opinion, by the sale of his undivided interest in the property to Nichols. The satisfaction of the mortgage and cancellation of the bonds were a part of the consideration of Nichols’s purchase, and as was said by Thompson, O. J., in Abbott v. Kasson, 22 P. F. Smith 183: “ It would be a novelty for a purchaser of land to keep on foot his own mortgage against his own estate.” Granted that Potter was not a party to the transaction, still surely in a sci. fa. by Nichols, if he. continued to hold the bond, Potter could make defence that the mortgage had been paid in full by Wonderly in any way. ■ Nichols would be estopped from recovery on the mortgage by the covenant in the deed from Wonderly, by which he agreed, as part of the consideration, to satisfy the mortgage and cancel the bonds, and his assignees can stand in this respect in no better position than himself, even if the deed from Wonderly to Nichols, recorded years before they came into possession of the bonds, was no notice to them.

      A. J. Dietrich, for the City National Bank of Williamsport.—
    We are still disposed to adhere to the views and position taken before the auditor, that the Hall mortgage and the Nichols mortgage, having been executed and recorded on the same day, and there being no recital in the Hall mortgage that it was for purchase-money, therefore not differing from the Nichols mortgage, that there was nothing on the record of which purchasers of the bonds were bound to take notice; that, therefore, the mortgages, as to such purchasers, stand upon the same basis, and that, consequently, the City National Bank is entitled to share equally in the distribution of the proceeds realized from the sheriff’s sale of the premises upon which they were liens.

      Armstrong Linn, for the York County National Bank.'
    A judgment paid may be kept alive in equity when justice requires it to be done: Fleming v. Beaver, 2 Rawle 128. A'mortgagee, who purchases the land bound by the mortgage, will be allowed to use the mortgage for his protection against prior liens: Moore v. Harrisburg Bank, 8 Watts 138. The assignment of the bond to Porter, and by him to Watson, gives this bond no preference over other bonds covered by the same mortgage. All must be paid pro rata: Donley v. Hays, 17 S. & R. 400. The estate of Potter must bear its proportion of the joint encumbrance, and the right of Nichols to contribution inures to the benefit of the bondholders: Gearhart v. Jordan, 1 Jones 325.

      October 6th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

This fund, in contention, is the proceeds of a sale of lands formerly owned by Ozias Potter and Joseph H. Wonderly, as tenants in common. While thus owning the land, in November 1866, they jointly executed a mortgage thereon to Albert T. Nichols, to secure the payment of eleven bonds, ten of $2000 each, and 'one of $4000. In December of the next year, Nichols assigned nine of the $2000 bonds to one Piper, and .guaranteed their payment. About the same time, Nichols borrowed money of one Porter, and gave him the $4000 bond as collateral security. Nichols failed to pay Porter, and the latter transferred the bond to one of the appellants. After the obligors had paid and taken up two of the $2000 bonds, in January 1871, Wonderly conveyed his undivided one-half of the property to Nichols. The deed contained a covenant of Nichols, by which he agreed to assume and pay the'balance owing on said mortgage, and to save harmless, said Wonderly, his heirs, executors and administrators from the payment of the same of any part thereof. After this, Nichols procured a re-assignment of the seven bonds from Piper, and the appellees acquired and hold them under later transfers from Nichols. The present contention is between the appellees on the one side, who hold the bonds thus taken up and negotiated again by Nichols; and the appellants on the other side, who hold the $4000 bond not taken up. The appellants contend that the bonds re-assigned to Nichols, were, thereby, by operation of law, paid and satisfied.

As between two mortgagors of land held by them as tenants in common, and third persons, each mortgagor is-liable for the whole sum secured by the mortgage; but, as between themselves, each is liable for one-half only. As-to the other half, each is surety for the other: Gearhart v. Jordan, 1 Jones 325. As no partnership existed between the mortgagors, none of the incidents applicable to copartners can be invoked. The rule which denies subrogation in case of a debt arising in a partnership transaction before settlement of the partnership accounts, does not apply. On the conveyance by Wonderly of his interest in the land to Nichols, the latter became a tenant in common with Potter. Thenceforth they sustained the same relation in regard to the payment of the mortgage, as Wonderly and Potter had previously sustained. No consideration passed from Potter. He .was a stranger to the contract between Wonderly and Nichols. His rights were unaffected thereby. They were neither enlarged nor diminished. The covenant of Nichols obligated him to protect Wonderly from all liability on the mortgage and bonds; but not to protect or relieve Potter therefrom. It follows, when Nichols paid and took up the bonds, secured by the mortgage, which he and Potter were jointly obligated to pay, he thereby acquired a right to collect the one-half thereof out of the estate of Potter. He was not driven to an action to enforce this right; but was entitled to all the securities and all the remedies given by the mortgage: Wright v. Grover & Baker, 1 Norris 80. By virtue of subsequent assignments, all these rights and remedies passed to the appellees, and they are justly entitled to the sum decreed to them.

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


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    The Commonwealth versus Jones.
    1. The modification of orders in desertion cases, whether the proceedings are under the general law or the Act of 1S67, are in the discretion of the Court of Quarter Sessions, and the allowance may ho increased or diminished from time to time to suit the changed circumstances of the parties, or for sufficient reasons may be revoked altogether, and such action is not reviewable in the Supreme Court.
    2. The surety of one who was ordered to pay a certain amount per week for the support of his wife and child, took a rule upon the Commonwealth to show cause why the surety should not be permitted to surrender the body of the defendant and be released from his recognisance, which rule the court made absolute. Held, that such order was within the recognised power of the court, and it must be presumed that there was a sufficient reason therefor.
    June 2d 1879.
    Before Sharswood, C. J., Merctjr, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Certiorari to the Court of Quarter Sessions of Lycoming county: Of May Term 1878, No. 205.
    This writ was taken by the Commonwealth to an order of the court, Gamble, P. J., making absolute a rule granted to Philip Miller, the surety of Vincent K. Jones, to show cause why said surety should not be permitted to surrender the body of said Jones, and be discharged from all liability on his recognisance.
    The facts and proceedings in the court below, are sufficiently set forth in the opinion of this court.

      O. H Reighard and W. W. Hart, district attorney, for the Commonwealth.
    The proceedings in this case are founded on the Act of April 13th 1867, Pamph. L. 78. Miller became surety to the Commonwealth in $800 conditioned for the payment of six dollars per week. Can this be regarded as anything else than a pecuniary; obligation on the part of Miller, from which he can be released" only on payment of the full amount of the bond ? The Act of Assembly, the order of the court and the record of the bond, all recognise but one condition, and that payment of a stipulated sum of money. There is no condition for the appearance or surrender of the defendant as in recognisance of bail or arrest in civil actions. On the contrary, the obligation of the surety may be regarded as analogous to that required in bail for stay of execution. Surely it will not be contended that bail for stay of execution could be discharged from his pecuniary liability by surrendering his principal. It is only by compliance with the order of court and the terms of the bond in a bastardy case, that the principal or surety can be released from the obligation thereof: Directors of the Poor v. Dungan, 14 P. F. Smith 402.

      Henry O. McQormieh, for defendant in error.
    In the case at bar, the court, in the exercise of a discretion which we believe the law allows, saw fit to require the surety to pay up the arrearages of the weekly allowance, and surrender his principal to the custody of the sheriff. If the court had this power under the law, then there is no error apparent upon the face of this record, and it is wholly immaterial what the merits of the case may be. A' certiorari to the Quarter Sessions brings up nothing but the record; the merits of the case cannot be examined : Derry Overseers v. Brown, 1 Harris 390. The depositions taken, if any there were, or the facts shown to the court, inducing the order, cannot be inquired into by this proceeding, and the presumption is that good reasons did exist for making the order complained of. On a certiorari, every intendment is in favor of the proceeding till the contrary appear: Case of Windsor Township, 9 Watts 249. It may be observed, that in this case it is the Commonwealth that complains, and not the defendant; yet the Commonwealth is in nowise injured. . The defendant was taken into custody upon his surrender, and the court 'had the right to keep him in prison until he either complied with the order or gave new security.
    June 23d 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

The Commonwealth takes this writ of certiorari to bring up for review the proceedings in a desertion case. Vincent K. Jones, the defendant, after a hearing in the Court of Quarter Sessions, upon the "charge of having neglected and refused to support his wife, was ordered to pay six dollars per week, “for the support of his wife and child, and. to give security to comply with this order by one or more sureties to the Commonwealth, to be approved by the court, .in the sum of $800; the said defendant to be committed to the county prison, there to remain until the order of the court is complied with.” Upon the same day, as appears by the record, the defendant entered the required security, and we take it for granted was discharged from arrest. Without referring to all the subsequent motions and orders in the case, it is sufficient to say, that on May 28th 1877, Phillip Miller, the surety, came into court and obtained a rule upon the Commonwealth to show cause why he should not be permitted to surrender the body of Vincent K. Jones to the sheriff of Lycoming county, upon paying up all arrearages to date, and be thereafter exonerated from all further liability on his said recognisance. This rule was subsequently made absolute, and the defendant re-arrested and sent to prison. It is this order of which the Commonwealth complains. The proceedings appear to have been under the Act of 18th April 1867, Pamph. L. 78.

The contention of the Commonwealth was that this was a case in which the surety could not discharge himself by a surrender of his principal; that his recognisance was analogous to bail for stay of execution, and that there was no relief from the condition of the recognisance but compliance with the order of the court. We are not considering the right of the surety to surrender his principal, and demand his own discharge, as in the case of ordinary bail in ci’iminal cases. It was held, in the Directors of the Poor v. Dungan, 14 P. F. Smith 402, that where in a ease of fornication and bastardy, the defendant had received the usual sentence, he had no right to be discharged, except upon compliance with the order for the support of the child, and that the surety stood in no better position. In such case the sentence was final, and after the term of court at which it had been imposed, could not be revoked nor modified, and the liability of the surety becomes fixed. But this’ record presents a question of the power of the court. The modification of. orders in desertion cases, whether the proceedings are under the general law or the Act of 1867, are in the discretion of the court, and the allowance may be increased or diminished from time to time, to suit the changed circumstances of the parties, or for sufficient reasons, may be revoked altogether, and such action is not reviewable here. The Act of Assembly gives no appeal, and the certiorari brings up nothing but the record. That fails to show why the court below made the order complained of. It was within the recognised power of the Quarter Sessions, and we must presume there was a ’sufficient reason for it. In any event the Commonwealth has not been injured. The arrearages were all paid up, and the defendant re-committed to prison, where he must remain until' he gives new bail, or is discharged by due course of law.

The proceedings are affirmed.


author: Mr. Justice Gordon

text:
    Cassidy versus Elias.
    1. In an action of replevin for a distress for rent, there can be no such thing as an avowry or recognisance, while the goods are in the defendant’s possession. If he claims as owner, that claim is inconsistent with the allegation that the property was seized as a pledge for rent in arrear, for .this is a confession that the goods are owned by the tenant; if on the other hand he depends on his own right to distrain, he can have no standing unless he has surrendered the property, in obedience to the command of the writ.
    2. In an action of replevin, the plaintiff, in his narr., charged that the defendant did and still does retain the goods against gages, &c. The defendant made cognisance, and the plaintiff, in answer, pleaded that the goods seized were not distrainable and there was no rent in arrear. Held, that as the declaration was in the detinet, the cognisance was bad and must so have been pronounced on demurrer. Held, further, that this defect was not cured by plaintiff, in his replication, traversing the facts in the cognisance.
    3. In this action the appraisement made for the plaintiff, under the Exemption Act, is not evidence of the value of the goods ; neither is the price obtained by the defendant for the goods at private sale admissible to fix the value of the property in suit.
    4. That the judgment, in such a case, is in excess of the value of the goods, as set forth in the writ and the narr., is of no consequence, as it may be cured by amendment, even in the court of review.
    June 3d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Lycoming county: Of May Term 1879, No. 13.
    Replevin by Samuel Elias against Andrew Cassidy, to recover the value of certain goods, distrained for rent in arrear, by said Cassidy, as bailiff of Charles G. Scholl, the landlord of plaintiff.
    The narr. charged that the defendant did, and still does, detain the goods against gages, pledges, &c. The defendant filed an avowry, and the plaintiff in his replication averred, “the goods seized are not distrainable, and no rent in arrear.”
    The material facts were these:
    Samuel Elias was adjudged a bankrupt on the 17th day of February 1875, on a petition filed against him December 23d 1874. He was, at the time, engaged in the clothing business, and occupied a store-room on the first floor of a building situate on the north side of Market square, Williamsport. His lease only covered this store-room and one-half of the cellar. His rent was payable at the end of each quarter of the year. The stock of clothing, &c., of Mr. Elias in the store-room was taken in custody by the deputy marshal, as messenger, under an order of the United States District Court, after the filing of the petition of bankruptcy against Elias, and the marshal removed the stock of goods from the storeroom some time before the 1st day of April 1875, and stored it in a room in the third story of the same building. This room was entirely disconnected with the store-room, and the goods were carried out of the store-room on the sidewalk, and thence up to the third story by a public or common stairway. The store-room was taken possession of by Charles Gr. Scholl, the landlord, before or on the 1st day of April 1875. The goods remained in the room on the third story of the building, and in the custody of the marshal or messenger, until the assignee of Mr. Elias was appointed, and until the 21st day of May 1875, when the assignee proceeded to the room where the goods were stored, and set out to Mr. Elias sufficient of the same to make up the exemption allowed to bankrupts under the Act of Congress.
    Scholl, by his bailiff, Andrew Cassidy, immediately seized the goods for rent, alleged to be owing Scholl for the store-room on the first floor, and on the same day gave notice to Elias of the distress, and on the 22d day of May 1875, Mr. Elias issued a writ of replevin (having first given safe pledges to the sheriff) for the goods so distrained. The bailiff retained the goods and delivered them to Scholl, who sold them, after some time, at private sale.'
    The goods for which Elias issued his writ of replevin were valued in the writ at $1000.
    At the trial, the plaintiff proposed to ask witness, “ what, in his judgment, was the market valué of the goods set apart?” The defendant objected, on the ground that if the landlord erred in making the distress, the Act of Assembly gave a specific remedy to the tenant, and because the goods had been appraised by sworn appraisers, and the value fixed by them was conclusive.
    The court overruled the objections. First assignment of error.
    The defendant proposed-to ask Scholl, the landlord, What prices did you realize from the sale of the goods ?” Objected to by plaintiff, because it was the landlord’s duty to make public sale; that a private sale is no criterion of value; that witness had testified he had no knowledge of the value of such goods, and was incompetent.
    The court sustained the objection, saying, “A private sale is no evidence of value.” Second assignment of error.
    The court affirmed the following point of plaintiff:
    That the defendant, having given bond, and retained the property mentioned in the writ of replevin, cannot set up a defence that he retained the property for rent in arrears. Third assignment of error.
    The verdict was for plaintiff for $1161.02. After judgment the defendant took this writ and, inter alia, alleged that the court erred as set forth in the above assignments; and in allowing the jury to find for a greater amount than that fixed in the writ.

      Henry W. Watson, for plaintiff in error
    The Act of Assembly in this state fixes the quantity, of goods a debtor may retain by their value, and points out the mode to ascertain that value: Hammer v. Freese, 7 Harris 257. The question of value was not raised by the pleadings. The amount paid for goods is prima facie evidence of their value: Sedgwick on Damages, sect. 287, p. 345; Britton v. Stanley, 4 Whart. 119. If the avowry was not sufficient in substance, advantage should have been taken of it by special demurrer: Baird v. Porter, 17 P. F. Smith 107. The plaintiff having put the facts at issue by a replication, cannot prevent the whole case going to the jury by a prayer to the court for special instructions. There is no set-off in replevin, but if the goods are subject to a charge, it can be enforced by tvay of recoupment: Macky v. Dillinger, 23 P. F. Smith 85. The value of the goods were fixed when they were set apart by the appraisers. The plaintiff could in no event recover more than the value of the goods as fixed in the writ. The damages in replevin are ordinarily the value of the goods with interest: McCabe v. Moorehead, 1 W. & S. 513; Schofield v. Ferrers, 10 Wright 438.

      J. M. G-amble and H. P. Allen, for defendant in error.
    This court decided in Baird v. Porter, supra, that a defendant has no right to retain the goods after a replevin, by giving a claim-property bond, unless he had a property in them which entitled him to their possession. And a landlord has neither a special or general property in goods distrained for rent, nor right to their possession after service of the replevin, and it is his duty to deliver the goods under the replevin, and look to the replevin bond.
    In replevin damages beyond the value of the property may be given where the taking has been accompanied with peculiar wrong and outrage: McDonald v. Scaife, 1 Jones 381; Schofield v. Ferrers, 10 Wright 438; Etter v. Edwards, 4 Watts 63; Fisher v. Whoollery, 1 Casey 197. It cannot be contended that the appraisement of these goods under the Bankrupt Act -was the only evidence that could be given of their value when taken by Scholl. That was not a proceeding between Scholl and Elias, and neither of them were estopped by the action of the appraisers.
    October 6th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

This was an action of replevin brought by Samuel Elias, the plaintiff below, for the recovery of the value of certain goods dis-trained, for rent in arrear, by Andrew Cassidy, the defendant, as bailiff of Charles G. Scholl, the landlord of the plaintiff. The narr. charges that the plaintiff did, and still does, detain the goods against gages, &c., as it is technically denominated, in the detinet. The defendant made cognisance, and the plaintiff, in answer, plead that the goods seized were not distrainable, and that there was no rent in arrear.

On this kind of pleading the parties went to trial, and the plaintiff asked the court to charge, “ that the defendant, having given bond and retained the property mentioned in the writ of replevin, he cannot set up a defence that he retained the property for rent in arrears.” This point was affirmed by the court. Of this, inter alia, the defendant complains.

There is no doubt, as the declaration is in the detinet, the cognisance was bad and must so have been pronounced on demurrer: Baird v. Porter, 17 P. F. Smith 105.

The action of replevin, in Pennsylvania, so far as regards goods distrained for rent, is but the common-law form of that action somewhat modified hy statute and practice; in its essential features, however, it continues the same. This writ formerly obtained only in one instance, that of a wrongful distress. It was'intended to effect a re-delivery of the pledge, or thing distrained, to the owner, upon his giving security to prosecute his suit and to return the distress should the right be determined against him. On the giving of such securities, the sheriff was bound to restore the' chattels to the tenant, unless the distrainor claimed property in them, and, in that event, the plaintiff in the replevin was compelled to sue out his writ de proprietate probanda, and the right of property was then disposed of by an inquest summoned, for that purpose, hy the sheriff. If, however, the distrained goods had been secreted or earned out of the county, before this writ could be served, the tenant might have a capias in withernam, by which a reciprocal distress was made on goods of the distrainor, by way of reprisal and as a punishment for his illegal behavior. Finally,-if on trial of the replevin, the distress was found to be lawful,- the' defendant had judgment that the distrained goods be returned to him [de retorno habendo), and he was then entitled to hold them until the rent was paid.

From this we learn, that the chattels distrained were regarded only as a pledge for the payment of the rent due; that- the question in trial was not the right of property, but the right of possession only; that during the trial the possession, necessarily, was in the plaintiff, and that that possession passed to the distrainor only after judgment in his favor. <

It is thus manifest, from the character and nature of the action of replevin for a distress for rent, that there can properly be no such thing as an avowery or cognisance whilst the goods are in the defendant’s possession. If he claims the possession as owner, that claim is inconsistent with the allegation that the property was seized as a pledge for rent in arrear; for this is a confession that the goods are owned by the tenant; if, on the other hand, he defends on his right to distrain, he can have no standing unless he has surrendered the property in obedience to the command of the writ.

Clearly, then, the cognisance in this case could not have borne the test of a demurrer. It is urged that this defect in pleading is cured by the defendant’s plea, improperly called a replication, traversing the facts, set forth in the cognisance, that the goods were distrainable, and that there was rent in arrear. This would be so were the defect merely formal; not so, however, where the defect,. as in this case, is material. The rule is, that, the judges are bound before in any case they give judgment, to examine the whole record and then to adjudge the case as on the whole it may appear, without regard to the issue of law or fact that may have been raised and decided between the parties, and this, it is said, because the pleader, from misapprehension, may have passed by a material question of law without talcing issue upon it: Stephen on Plead. 119-120.

Had, then, the verdict been for the defendant, we would have been obliged, on inspection of the record, to reverse, because the pleadings show him to be in the possession of property to which he has no right, and, on strict common-law rule, judgment would have, to be entered for the plaintiff non obstante veredicto. As it is, the judgment of the court below is right, though regularly it should have been readied through a demurrer.

The remaining assignments require but little consideration. The appraisement made for the plaintiff under the Exemption Act was not evidence of the value of the goods; it was foreign to the, case trying, it was but the opinion of the appraisers, and if this was of value to the defendant, he might have produced them as witnesses on the trial. Neither was the price the defendant obtained for the goods, at private sale, admissible to fix the value of the property in suit, for this was ex parte, and the inquiry must remain whether that price was or was not the fair market value, so that such evidence would settle nothing. That the judgment was in excess of the value of the goods, as set forth in the writ and narr., comes to nothing, for this is a purely technical defect, and might have been cured by amendment, and may, therefore, now be treated as amended.

Judgment affirmed.


author: Mr. Justice Sterrett

text:
    Gamble versus Hepburn et al., to use of Claxton’s Administrator.
    1. II. and L. sold to G. a tract of land. To secure tlie purchase-money G. gave them certain bonds and a mortgage. He paid all the bonds but one.
    L. assigned his interest in this one to H., and II. assigned his interest therein to O. On the refusal of G. to pay the bond, a scire facias was issued on the mortgage in the names of II. and L. to the use of C. The latter died after suit brought and her administrator was substituted. Held, that G. was not competent as a witness and was properly rejected.
    2. L., one of the legal plaintiffs, was called by the defendant to prove matters that occurred while the legal plaintiffs were the owners of the bond. Held, that he was competent, under the Act of March 27th 1865, and the second section of the Act of 1869.
    June 3d 1879.
    Before Sharswood, C. J., Mercur, Gordon,. Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Lycoming county: Of May Term 1879, No. 133.
    Scire facias sur mortgage issued by Huston Hepburn and C. M. Laporte for the use of Huston Hepburn, now for the use of R. B. Claxton and Crecy Claxton, his wife, in right of said wife, against Jacob Gamble. On the 16th day of May 1867, Huston Hepburn and C. M. Laporte sold to Jacob Gamble several tracts of timber-land and a saw-mill. They executed and delivered a deed to Gamble, and he gave them a mortgage to secure the purchase-money, and entered into possession of the premises. He paid all of the bonds secured by the mortgage, except the last, one of $500. Laporte assigned his interest in this last bond to Hepburn, on the 16th day of June 1871. Hepburn assigned his interest to Crecy Claxton. On the refusal of Gamble to pay the bond a scire facias was issued upon the mortgage, in the names of Huston Hepburn and C. M. Laporte, for the use of Crecy Claxton. Mrs.' Claxton having died after suit was commenced, her administrator was substituted. The court rejected Gamble as a witness, on the ground that he was the defendant, and was not rendered competent by the Act of 1869. The defendant then called Laporte, one of the plaintiffs, who was also excluded by the court. The verdict was for plaintiffs, when defendant took this writ and, inter alia, assigned for error the rejection of the witnesses as above set forth.

      Henry O. Parsons and J. J. Metzgar, for plaintiff in error.
    The offer was to prove by Gamble a conversation‘with Laporte, one of the plaintiffs, prior to the assignment made by him of his interest in the bond, and prior, of course, to the assignment by Hepburn to Mrs. Claxton. The action was not upon the bond, but upon the mortgage. The mortgage was never assigned to Mrs. Claxton.

      The scire facias was issued in the names of Hepburn and Laporte, and was marked for the use of Mrs. Claxton. Hepburn and Laporte were the legal plaintiffs, and the offer was to prove their acts and declarations while they were the holders of the bond. They are both living, and are both competent witnesses; both could have been called to contradict Gamble. What principle, therefore, would be violated by permitting Gamble to be sworn, and who would be injured ? Not the administrator of Mrs. Claxton, because she received the bond subject to all of the equities between the original parties.
    The Act of 1865, and the second section of the Act of 1869, were passed in order to enable parties to call their adversaries and elicit the truth from them. We called Laporte and proposed to prove by him the whole transaction. The plaintiffs objected on the ground that Laporte was not made competent to testify under the “Act of 1869, or any subsequent act,” and that the witness being the assignor of the bond, could not be called to invalidate it. There might be force in these objections if Laporte had offered himself as a witness, but he was called by the defendant, and the Act of 1865 and the Act of 1869 clearly permitted this to be done.

      Allen ‡ Gamble and John JSiCtermarhs, for defendants in error.
    —The competency of Jacob Gamble, the defendant, as a witness must depend solely upon the Act of April 15th 1869, and yet the proviso to that act expressly declares that it “ shall not apply to actions by or against executors, administrators or guardians.” Nor can the substitution of the administrator, as a party to the record, after the institution of the suit affect the question of the defendant’s competency, in his own behalf: Taylor v. Kelly, 30 P. F. Smith 97; Pratt v. Patterson, 31 Id. 114; Evans v. Reed, 28 Id. 415; Karns v. Tanner, 16 Id.; Noble v. Mortimer, 4 W. N. C. 300.
    That the declarations of Laporte, 'the payee or obligee, after he had parted with his interest in the bond, could not be received in evidence to invalidate it in the hands of his assignee, it scarcely requires authorities to maintain : Eby v. Eby’s Assignee, 5 Barr 435.
    June 25th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

The court was clearly right in refusing to admit the defendant below as a witness in his own behalf. The scire facias was issued in the name of the mortgagees, Hepburn and Laporte, to the use of Crecy Claxton, assignee of the last bond secured by the mortgage. She subsequently died, arid her administrator was substituted on the record as equitable plaintiff. In this form the case came to trial. Under the proviso to the Act of 1869, the defendant was incompetent to testify, in his own behalf, to anything that occurred prior to the death of Mrs. Claxton. His status, in this regard, was the same as though the act had never been passed. The competency imparted in general terms by the enacting clause of the first section to persons theretofore excluded on the ground of interest or policy of law, is limited by the proviso, which declares, among other things, that the act shall not apply to actions by or against executors, administrators or guardians. The learned counsel for the plaintiff in error contended, however, that inasmuch as the legal plaintiffs were both living and could be called to rebut his testimony, the defendant was competent to prove their acts and declarations while they were holders of the bonds, and that the equitable plaintiff had no right to complain because his intestate took the bond subject to all the equities between the original parties. So far as the legal plaintiffs are concerned, the soundness of this position might perhaps be conceded, but as to the equitable plaintiff, it assumes what may not be the fact, that the bond in the hands of Mrs. Claxton was subject to all the equities existing between the original parties. Before taking the assignment, it was her duty to inquire whether the obligor had any defence, and we have no right to assume that she neglected to do so. If she were living, and could testify that, upon inquiry, he informed her that he had no set-off or defence, the previous acts and declarations of the obligees would be of no avail. In this position of affairs, it is obvious that the living defendant would have an undue advantage over the personal representative of the deceased equitable plaintiff, that was never intended to be accorded to any party in interest. This principle has been recently ruled in a case not yet reported. But it is unnecessary to go beyond/ the act itself in search of a valid objection to the competency of the defendant in a case like the present. He is expressly excluded by the words of the act, and as was said in Taylor v. Kelly, 30 P. F. Smith 95, “ a true enforcement of the statute requires us to hold that it means what it says, when it declares, this act shall not apply to actions by or against executors, administrators or guardians.’ ” Under the Act of'April 3870, he would have been competent to testify to matters occurring since the death of Mrs. Claxton, and affecting the right of her administrator to recover, but he was not called for that purpose.

The question as to the competency of Laporte, one of the legal plaintiffs, called by the defendant, depends on the Act of March 27th 1865, and the second section of the Act of 1869, which provides that “ a party to the record of any civil proceeding in law or, equity, or a person for whose immediate benefit such proceeding is prosecuted or defended, may be examined as if under cross-examination, at the instance of the adverse party,” &c. These enactments are just as clear and explicit in regard to the right of either party to call his adversary, as is the first section of the latter act in regard to excluding a party, in a suit by or against an executor, administrator or guardian, from testifying in his own behalf.

As we understand the offer, it was to prove matters that occurred while the. legal plaintiffs were the owners of the bond in suit, and not the acts or declarations of either of them after the assignments to Mrs. Claxton. The learned judge erred in holding that the witness was incompetent for the purpose stated in the offer, and for this alone the judgment must be reversed.

Judgment reversed, and a venire facias de novo awarded.


text:
    Clark versus Johnson et al.

    A. brought assumpsit against J. and 0., trading as H. O. & Go., on a promissory note executed in the name of the firm for merchandise bought of plaintiff. The defendants were dealing in drugs, paints, oils, glass, &c., at retail; but sometimes they sold at wholesale. The consideration for the note were four barrels of cologne spirits bought by 0., who was the acting partner, in the name of the firm. It appeared that the purchase of such spirits was within 'the general scope of the business. O. was engaged in business in another place in the same town, under the firm name of E. D. & Co., to which one of the barrels was sent, and no entry made on the books of defendants. The court to whom the case was referred, without a jury, * found as a conclusion of law that the shipment of this one barrel to E. D. & Co., of which J. was not a member and had no knowledge, created no valid claim against the defendants. Held, that this was error.
    June 3d 1879.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Warren county: Of May Term 1879, No. 196.
    Assumpsit by Thomas Clark against S. P. Johnson, impleaded with George P. Orr, lately trading as Hazeltine, Orr & Co., upon a promissory note given by the firm.
    A trial by jury was dispensed with, and the case submitted to the court (Wetmore, P. J.,) who found the facts as follows:
    The firm of Hazeltine, Orr & Co. consisted of Samuel P. Johnson and George P. Orr. Ezra Hazeltine had once been a member of the firm, but had parted with his interest before the debt in suit was contracted, and his name was retained after his actual interest in the firm had ceased. The present firm was organized in 1871, and George P. Orr was the acting member. The business was dealing in drugs, paints, oils, glass, &c., at retail. The firm sometimes, according to the evidence of E. T. Hazeltine, sold goods at wholesale. The claim in suit is for a note of $507.78, dated Warren, Pennsylvania, January 1st 1877, due five months from date at First National Bank, Warren, Pennsylvania, payable to the order of plaintiff.

      The consideration for the note was cologne spirits, purchased as follows:
    1875, February 11th, 1 barrel cologne spirits, 87 gallons @$1.15 . . '......$100.57
    March 6th, 1 barrel cologne spirits, 85.5 gallons @$1.25,....... 106.31
    March 22d, 1 barrel cologne spirits, 87.88 gallons @ $1.25,....... 109.85
    April 12th, 1 barrel cologne spirits, 85.90 gallons @$1.25,....... 107.38
    Interest, ........ 83.73
    $507.78
    Between September 2d 1874, and February 17th 1875, inclusive, three barrels of alcohol had been purchased, and they were settled and a note, given for the same, due February 4th 1876, which was paid. There had been dealings in the way of purchasing alcohol by the firm from plaintiff for years before George P. Orr became a member of the firm. The cologne spirits, the consideration for the note in suit, was not entered on the books of defendants in the usual way when they made purchases, and no entries were on the books of defendants indicating these purchases ' or the consideration paid therefor. The three barrels of alcohol were duly entered on defendants’ books, and the payment of the note for the same closed the account between the parties as far as defendants’ books disclosed the dealings between them. Cologne spirits was shown to be deodorized alcohol. Retail druggists keep it in small quantities, generally from one to five gallons. It is used for reducing extracts and manufacturing cologne, and defendants did not use over five gallons per year. Except the amount in suit, none was ever shown to have been bought by defendants from plaintiff.
    George P. Orr had another place where he was carrying on business in the name of E. D. York & Co. The cologne spirits in suit went into that concern, and S. P. Johnson, the defendant, had no knowledge of the firm or business of E. D. York & Co., until after the transactions out of which the claim in suit was given.
    The item March 6th 1875, for $106.31 was on a written order of Hazeltine, Orr & Co., signed by George P. Orr for the firm, dated Buffalo, New York, and directed the shipment of one barrel cologne spirits to E. D. York & Co., and bill to Hazeltine, Orr & Co.
    The following were the court’s conclusions of law from the foregoing statement of facts’:
    “1. The purchase by George P. Orr for defendants February 11th 1875, and March 22d and April 12th of same year, were within the scope of the business transacted by the firm in the usual course of dealing, and hence within the scope and power which one member had to bind the firm for the purchase of goods.
    “2. The purchase made by George P. Orr in the name of the firm, March 6th 1875, directing the shipment to be made to E. D. York & Co., and the bill to be made to Hazeltine, Orr & Co., cannot be sustained as a valid claim against Hazeltine, Orr & Co.
    UE. D. York & Co. was George P. Orr, and it was therefore a purchase on his own account, and the goods were delivered to him, and never came- to possession of defendants.
    “ The transaction was out of the usual course of dealing between the parties, plaintiff and defendants, and the legal duty was in plaintiff to know to whom he was selling the goods. He could not sell and deliver goods to George P. Orr on his order and charge them to defendants; for the same reason he could not sell and deliver them to E. D. York & Co., which is another name for George P. Orr, and charge the amount to defendants.
    “ There is therefore deducted from the note the item of $106.31, dated March 6th 1875, with interest on the same as computed in the bill annexed to the plaintiff’s depositions, and this leaves the balance of the note due at maturity $379.99, with interest on the same from June 4th 1877 (the date of the maturity of the note), to March 3d 1879.
    “ It is therefore ordered that judgment be entered in favor of plaintiff and against defendants for the sum of $419.88, with interest from March 3d 3879.”
    The plaintiff excepted to the findings of the court as follows:
    1. In not granting the plaintiff’s motion to strike out testimony and evidence. 2. In their findings of fact in considering the defendants’ books of account as evidence, said books not being introduced to show any account, credit, or set off against the plaintiff, but merely the manner in which defendants kept their account with plaintiff for goods purchased of him. 4. In finding as a fact that the cologne spirits in suit went into the concern of E. D. York & Co., there being no evidence of that fact, except as to the item of March 6th 1878. 5. In their second conclusion of law, and in finding that the item of March 6th 1875, was not a valid claim against Hazeltine, Orr & Co., and that the transaction was out of the usual course of dealing, there being no evidence that the plaintiff ever knew that George P. Orr had any connection with E. D. York & Co. 6. In deducting anything from the amount of the note in suit.
    The court overruled the exceptions, and entered' judgment according to the decision previously filed. The plaintiff then took this writ and alleged, inter alia, that the court erred in overruling the above exceptions

      Glarh ‡ Noyes, for plaintiffs in error.
    Unless the seller is guilty of collusion, a sale to one partner is a sale to the partnership, with whatever view the goods may he bought, and to whatever purpose they may be applied: Bond v. Jepherson, 1 Camp. 185. Had the defendants clearly established the fact, that as between Orr and Johnson there was fraud, yet the plaintiff must recover unless he participated in it, or had notice that it was intended: Potter v. Price, 3 Pitts. Rep. 136. Orr was the acting partner, buying and selling all the goods and transacting all the business of the firm, and these goods were undeniably purchased solely upon the firm’s credit. Was there anything in the fact that the goods were ordered shipped to E. D. York & Co. to give notice of any intended fraud ? If such a shipment was altogether unusual, and so inconsistent with honest dealing as to put the plaintiff upon inquiry as to which partner ordered the goods, and why they were to be sent elsewhere than to the defendants’ store, surely it was incumbent upon the defendants to make this appear by evidence. But no evidence was offered from which any such inference can be drawn. Had the plaintiff known that Orr ordered the goods, and was a partner in both firms, he would not have been bound to suspect fraud: Haldeman v. Bank of Middletown, 4 Casey 440; Miller v. Consolidation Bank, 12 Wright 514.

      S. P. Johnson, for defendant in error.
    The circumstances were such as to create a suspicion and put a prudent man on inquiry. The plaintiff’s acts and conduct warrant the inference that he knew the barrel of spirits was not in the line of the business, or for the use of Hazletine, Orr & Co.
    October 6th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

_ This action was against Johnson & Orr, copartners, trading as Hazleton, Orr & Co. It was on a promissoi'y note executed in the name of the firm, for merchandise bought of the plaintiff. The case was submitted to the decision of the court without the intervention of a jury. The court found as facts that the business of the defendants was dealing in drugs, paints, oils, glass, &c.', at retail; but sometimes they sold at wholesale; that the consideration of the note was four barrels of cologne spirits. Each was bought at a different time, but all wdthin two months; they were bought by Orr, who was the acting member of the firm, in the name of the firm, and that the purchase of such spirits was within the general scope of the business in which the firm was engaged; that Orr was engaged in another place in business, in the same town, to which the second barrel was sent, and no entry was made on the books of defendants indicating the purchase thereof. The court, therefore, found as a conclusion of law, that the shipment of this barrel to E. D. York & Co., of which Johnson was not a member and had no knowledge, created no valid claim against the defendants. This conclusion presents the main question in the case.

The only evidence bearing directly on the custom of this mode of shipment is, that of A. Gerrould. He testified, it often happens that goods are ordered by a customer before the order is sent by the dealer to the seller, and they are often shipped directly to the customer. Thus this evidence was to the effect that such a mode of shipment was within the general custom of dealers in merchandise, and there was no evidence to the contrary. We think this custom of so ordering goods shipped, is practised to some extent by all dealers in merchandise. We, therefore, are unable to see that the mere fact that one barrel was ordered to be shipped, and was shipped, to the address of another firm in the same town, creates any presumption that it was not sold in good faith to the defendants. It was not calculated to excite the suspicion of a prudent vendor, nor sufficient to put him on inquiry. The learned judge assumed as a fact, that the order for the barrel in question was dated at Buffalo, N. Y., whereas, in truth, instead of being so dated, it was addressed to the plaintiff at Buffalo. This erroneous reading was caused by reason of the order having been so attached to the depositions as to cover the name of the plaintiff. The removal of the covering removes all ground for the assumption. This corrected reading, as shown on the face of the order, necessarily changes the conclusion of law at which the court arrived. Without further discussion of the assignments, all the other facts found show the learned judge erred in not entering judgment in favor of the plaintiff, for the whole amount of the note, with interest.

And now, to wit: October 6th 1879, judgment reversed and judgment in favor of the plaintiff against the defendant, for $579, and costs in the court below.


author: Per Curiam.

text:
    Bailey et al. versus Eder et al.

    1. A verdict rendered in one county cannot be transferred to another county, for the purpose of a lien, as in the case of a judgment.
    2. A verdict was rendered in the Court of Common Pleas of Philadelphia county. Pending a motion for a new trial and before judgment was rendered, an exemplification of the record was filed in the Court of Common Pleas of Lycoming county, and after judgment was entered on the verdict in the Philadelphia court, a certified copy of the entry was taken to Lycoming county and filed in the case. Held, that the exemplification of the record was properly stricken off.
    June 3d 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.

      Error to the Court of Common Pleas of Lycoming county: Of May Term 1879, No. 120.
    Covenant by Joseph H. Bailey, James Bailey and Robert H. Miller against Matthias Eder, Robert H. Ilousel and Elias Deemer, trading as Eder, Housel & Deemer, to recover an instalment of purchase-money upon a contract for the sale of certain timber lands in Potter county. The plaintiffs resided in Clinton county, and the defendants in Lycoming county. The suit was brought in the Court of Common Pleas of Philadelphia- county, and resulted in a verdict against the defendants for $36,539.91. This verdict was rendered on the 22d of October 187†, and on the next day a motion for a new trial was made. Pending the motion, and before judgment was entered, viz., on the 26th of October 1877, an exemplification of the .record was filed in the Common Pleas of Lycoming county, and the amount of the verdict was entered on the lien docket. Judgment was afterwards entered on the verdict in the Philadelphia court, and a certified copy of the entry of judgment was taken to Lycoming county and filed in the case. In the meantime the defendants -felled, judgments were entered against them and they made an assignment for the benefit of creditors. Counsel for the assignees procured a rule to show cause why the exemplification should not be stricken from the record, and upon that rule argument was had. The defendants also petitioned the court to make the rule absolute. There was no testimony taken for the argument, and no evidence but the record.
    The court, Mayer, P. J., made the rule absolute in an opinion, saying:
    “ Had' the plaintiffs authority to transfer this verdict before the entry of judgment upon it, to the Court of Common Pleas of Lycoming county ? The first section of the Act of 16th April 1840 provides, ‘ that in addition to the remedies now provided by law, hereafter any judgments in any District Court or Courts of Common Pleas in Pennsylvania may be transferred from the court in which they are entered to any other District Court or Court of Common Pleas, in this Commonwealth, by filing of record in said other court a certified copy of the whole record in the case,’ &c.
    “ It is plain, that this act only authorizes the transfer of judgment, and unless authority exists, by virtue of some other Act of Assembly, to transfer a verdict before judgment, the right has not been granted, for it is only by legislative enactment that a transfer can be made.
    “ It is contended, on the part of the plaintiffs, that this right exists by virtue of the provisions of the Act of Assembly of 23d March 1877. The first section of this act provides, ‘ that whenever a verdict is rendered by a jury in any of the Courts of Common Pleas of this Commonwealth for any specific sum of money, in such case, the verdict shall be a lien on the real estate situate within the proper county of the party or parties against whom said verdict shall be rendered, which lien shall remain, unless the court grant a new trial or arrrest the judgment, and it shall be the duty of the prothonotary of the Court of Common Pleas to enter such verdict on lien docket, where judgments are entered, marking the same ‘ verdict,’ and specifying the amount of said verdict and the date of its rendition.’
    “It is argued, that the words in said section, ‘the verdict shall be a lien upon the real estate situate within the proper county of the party,’ has reference to the county where the party against whom the verdict may be rendered has real estate. We think there can be no misapprehension in regard to the meaning and intent of the Act of' Assembly of March 23d 1877. Prior to the passage of this act, it often occurred that verdicts were rendered, and considerable time elapsed before judgment was entered upon them by reason of the pendency of motions for new trials or an arrest of judgment. Before the disposition of these motions other judgments would be entered, and the party in whose favor a verdict was rendered would thus be deprived of the benefit of his verdict, by the entry of intervening judgments. To remedy this, this act was evidently passed, and the lien of the verdict does not extend beyond the county where it was rendered. In the absence of any legislative enactment authorizing the, transfer of a verdict before judgment to another county, the transfer of this verdict from Philadelphia county to Lycoming county was without authority of law, neither does the certificate of the prothonotary of Philadelphia county of the subsequent entry of the judgment have any curative effect and remedy of the original defect in transferring the record. The Act of 1840 does not authorize the transfer of several copies of the record, in different stages of the suit, to the same county: Hallman’s Appeal, 6 Harris 313. The act says : That the judgment may be transferred ‘ by filing of record in said other county a certified copy of the whole record in the case.’
    “ The objection made upon the argument, that the application for the rule was made by the assignee of the defendants, if valid, has been cured by the filing of the petition of the defendants. Being of the opinion that the entry of the transcript in the Court of Common Pleas of Lycoming county in this case, on the 26th day of October 1877, before the entry of judgment on the verdict in the Court of Common Pleas of Philadelphia county, was entirely unauthorized, the rule is made absolute, and it is ordered that the exemplification of the record entered to No. 244, November Term 1877, be stricken from the record, and that the entry of the same on the lien docket be annulled and vacated.”
    This action of the court was assigned for error by plaintiffs, who took this -writ.

      Allen § Q-cmble and C. S. McCormick, for plaintiffs in error.—
    The Act of 1877, Pamph. L. 34, is a remedial statute and must be liberally construed to advance the remedy. The evil was that when a verdict of a jury had been by them duly rendered, and by the court recorded, it still did not create a lien upon the real estate of the defendants. And the dilatory motions practised in courts, permitted other judgments to be entered, assignments or conveyances to be made, so that when the plaintiff at length came to gather the fruits of his verdict, he found nothing, and his labor and care expended about his suit was lost.
    This act makes the verdict a lien at once upon the real estate of the defendants situate within the county in which the verdict is entered, and if by its own construction, or in connection with the Act of 1840, Purd. Dig.,.vol. 1, page 821, providing for the transfer of judgments from one county to another, the lien can be extended to lands lying in other counties, it will accomplish the purpose of its enactment, and its benefits will extend alike to all. The denial of the right to transfer the judgment is based mainly on Hallman’s Appeal, 6 Harris 312. That case decides that an award of arbitrators could not be transferred pending an appeal. The reasoning, upon which the ruling in that case was based, not only has not stood the test of time, but it has given away to the opposite theory.

      JI. C. Parsons and S. R. Peale, for defendants in error.
    The lien of a verdict is a statutory lien. It is limited to the proper county — the county in which the verdict is rendered. There is no legislative authority for transferring it to another county for the purpose of lien or otherwise. It cannot, therefore, be transferred. JSxpressio unius est exclusio alterius.

    June 16th 1879,
   The judgment of the Supreme Court was entered,

Per Curiam.

We affirm the order in this case upon the opinion of the learned president of the court below.

Order affirmed.


text:
    The Township of Ridgway versus Wheeler et al.

    By special laws applicable to Elk county, the road and sidewalk taxes shall be collected by the constables of the respective townships, upon warrants and duplicates issued by the supervisors. The supervisors of a township of said county tendered the tax duplicates to the constable, who declined to receive them and refused to act. The supervisors then appointed one of their own number collector of said taxes, who gave the i-equired bond, which was duly approved. The court below held that the supervisors had no power to appoint and the bond was a nullity. Held, reversing the court below, that the special acts having been rendered inoperative temporarily by the refusal of the constable to act, the supervisor might appoint, under the powers conferred by the General Law of April 15th 1834; that there was a clear casus omissus in the special acts, and to that extent the general act supplied their place ; that the appointment was legal and the bond valid, and the collector having received the money must pay it over.
    June 4th 1879.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Mh county: Of May-Term 1879, No. 67-
    Debt on an official bond by the township of Ridgway against V. S. Wheeler, Robert I. Campbell and Isaac Horton.
    W. II. Schram and Virgil S. Wheeler were supervisors for the township of Ridgway, for the year 1872-3. As such, they levied road, additional road and sidewalk taxes. Under the special laws relating to Elk county (see Pamph. L. 1855, p. 240, and Pamph. L. 1864, p. 157), it is provided that these taxes “shall be collected by the constables of the respective townships, upon warrants and duplicates issued by the supervisors.” In pursuance of these laws, Schram and Wheeler, as supervisors, tendered the duplicates of these taxes to the constable, H. II. Wensel, who declined to accept them. They then appointed one of themselves, Virgil S. Wheeler, collector of said taxes, placing in his hands the duplicates, with their warrants as supervisors attached. Wheeler accepted the appointmént, and filed with the town clerk his bond, as collector, in the penal sum of $6000, with Robert I. Campbell and Isaac Horton, as sureties. This bond was approved by the said Wheeler, and the said Schram, as supervisors. Wheeler proceeded to collect by virtue of this appointment, and by himself and .his deputy, D. F; Farrand, did collect a large amount of said taxes. A part of the taxes so collected ivas never paid over to the township. The balance so collected, and in the hands of Wheeler and his deputy, was shown to be $85.91 on the additional road tax, and $138.94 on the sidewalk tax, making a total of $224.85. Charging the said supervisors with the whole amount of said duplicates, and crediting the payments to the township treasurer, the township auditors found a balance due the township of $367.81 on the additional road tax, and $872.11 on the sidewalk tax. This suit was brought on the bond given by Wheeler, as collector.
    In charging the jury, the court (Wetmore, P. J.), inter alia, said: “The proper manner for the supervisors to proceed was to assess the tax for the payment of the debt of the township, and also to assess the tax for the purpose of building sidewalks, and make out their duplicate in due form, directed to the constable of the township, who, by law, was the collector of the taxes to be thus assessed. In this case, we learn that the constable declined to take the duplicate which was offered him. We will not now discuss the question as to the obligation upon the constable at that time. It is not material to the decision of this question. We learn that this bond was executed by the supervisors and by Campbell, and a warrant for the collection of the taxes was issued to Wheeler, one of the supervisors. There was no authority in law to issue that warrant to Wheeler. The money raised by the special road tax did not belong to the supervisors. It was not to be laid out upon the roads of the township. It was specially directed to he assessed and collected for the purpose of paying creditors. This suit is brought upon a bond executed by the supervisors, with Campbell as surety. We say to you that the supervisors had no jurisdiction over those taxes, so far as the collection of them was concerned. That duty devolved upon another officer, to wit, the constable. They had no authority to appoint either one of their own number, or any third person, as collector. [The bond given by the supervisors, with Campbell as surety, for the performance of that duty, was a nullity. It did not authorize the supervisors to collect the taxes, and he had no authority to go to persons assessed and enforce the payment. We say to you that there is no obligation on the part of these defendants upon the bond on which this suit was instituted. Your verdict, under the ruling, should be for the defendants.”]
    The verdict was in accordance with this instruction, and after judgment plaintiff took this writ and, inter alia, alleged that the court efred in the portion of the charge noted above in brackets.

      Rufus Lucore and Hall tf McCauley, for plaintiff in error.—
    The provision of law that the taxes “ shall be collected by the constables of the respective townships upon warrants and duplicates issued by the supervisors,” is to be construed liberally in behalf of the township, so as to advance the main purpose, to wit: the collection of the taxes. Where there is no constable, or where the constable refuses, are the taxes to remain uncollected ? Or shall it be so' construed that in such cases the supervisors shall have the right, ex necessitate, to exercise the power of appointment existing under the express provisions of the general laws of the state ? We submit that the latter is the more reasonable view, and best serves the main purpose.

      George A. Jenhs and George A. Rathbun, for. defendants in error.
    The Act of 1834, sect. 31, required the supervisor’s and overseers of the poor, annually, at a meeting to be convened for the purpose, to appoint some suitable inhabitant of the township to be collector of township rates and levies. That duty was taken from them by the Act of 1855 and the collection of road taxes imposed upon the constables of the respective townships, who were made liable upon their official bonds for the due collection and payment of such taxes to the township treasurer.
    All authority before that time vested in the supervisors to appoint a collector was taken away, and an- officer of the township, known to and provided for by the general laws of the state, was designated by law to collect the road and cash taxes. His authority to collect such taxes was established and his receipt to the citizen would discharge the tax, leaving the township, in case of his default, to look to the security of his official bond;
    The supervisors did not act as thus required and give their warrant and duplicate to the constable, but appointed Wheeler, one of themselves, as collector, taking from him the bond in suit.
    There was no authority in the supervisors to appoint Wheeler, and no power to collect the cash and sidewalk taxes mentioned in his duplicate, and his receipt would be valueless and not discharge the taxes unless they could be traced to the township treasurer. There was no liability upon the bond.
    June 23d 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

This was a suit upon the official bond of Virgil S. Wheeler, as. collector of road and sidewalk taxes for the year 1872. It was not denied that he had collected a portion of said taxes, which he had neglected and refused to pay over. The sole defence was that the collector had not been appointed by lawful authority; that his bond w’as therefore null and void, and neither the collector nor his sureties responsible thereon. The court below sustained this position, and instructed the jury to find for the defendants.

By a special law, applicable to Elk county, it is provided that the taxes referred to “ shall be collected by the constables of the respective townships, upon warrants and duplicates issued by the supervisors.” See Act of 1855, Pamph. L. 240, and Act of 1864, Pamph. L. 157. In pursuance of these acts, the township supervisors tendered the tax duplicates to the constable, who declined to receive them and refused to act. The supervisors then appointed .one of their own number, Virgil S. Wheeler, collector of said taxes, who gave the required bond, which was duly approved. It was upon this bond that the present suit was brought. It is in the usual form and recites the fact that the said Virgil S. Wheeler has been duly appointed collector of road and sidewalk taxes for the year 1872.” Assuming there to have been such an irregularity in the appointment as would have enabled a taxpayer to resist the payment of his tax, it is difficult to see how either Wheeler or his surety can defend upon this ground in the face of the recital in the bond that he had been duly appointed collector. He was certainly a de facto collector, and it was urged on behalf of the township that the appointment was good ex necessitate. We are of opinion that this point was well taken. Under the general law of 15th April 1834, sect. 31, Pamph. L. 515, it is provided that “the supervisors and overseers of the poor of every township shall annually, at a meeting to be convened for the purpose, appoint some suitable inhabitant of the township to be collector of the township rates and leviesand by the 39th sect, of said act: “ If in any township there shall not be a treasurer elected or appointed, it shall be the duty of the supervisors and overseers of the poor of the township, either by themselves or by a proper person duly authorized by them respectively, to collect the township rates and levies by them respectively laid.” This being a general law, is in force in Elk county, except in so far as ii is displaced by the special laws referred to. In case of the repeal of the special laws, the general law would of course come in to take their place. So it would be in force to supply any casus omissus in the special laws. The latter provide, as we have stated, that the constable shall collect the taxes. He refuses -to .do. so. How are the taxes to be collected ? To proceed against the constable for his refusal would not remedy the difficulty. The necessities of the township require that the taxes should be collected. The supervisors are required by law to keep the roads and bridges in proper order, and are liable tfl indictment for a neglect of this duty. How is it possible to perform it unless the township rates and levies are collected ? The special acts having been rendered inoperative temporarily by the refusal of the constable to act, we see no reason why the supervisors may not appoint á collector under the powers conferred upon them by the Act of 1834. There is a clear casus omissus in the special acts, and to that extent the Act of 1834 comes in to supply their place. We regard the appointment as legal and the bond good. The collector having received the money, must pay it over.

Judgment reversed, and a venire facias de novo awarded.


text:
    The Dunkirk and Allegheny Valley Railroad Company versus Mead.
    By Act of March 28th 1868, entitled “ An Act for the protection of farmers and owners of cattle, horses, sheep and swine, along the line of railroads in the county of Warren,' said railroad companies are required to erect and maintain fences along the tracks of their roads and to construct cattleguax’ds at all the public x-oad-crossings, sufficient to prevent orderly cattle from straying upon said tracks ; and by the Act of April 17th 1869, a noncompliance with these requirements renders a company liable for the value of the animal injux'ed or killed by such neglect. The plaintiff was pasturing his covr upon land near to, though not directly abuttixxg upon the x-ailroad. The cow escaped from the enclosux'e and passing out upon a public road, ■ strayed on to the track of the railroad, where there were no guards, and was killed. Held, that plaintiff was entitled to recover.
    June 4th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Warren county: Of May Term 1879, No. 52.
    Case by Stephen Mead against the Dunkirk and Allegheny Yalley Railroad Company, to recover the value of a cow killed by one of defendant’s trains.
    By a special act, approved March 28th 1868, Pamph. L. 514, railroad companies in Warren county are required to fence their roads “ for the protection of farmers and owners of cattle, &c., residing along the line of such railroads,” and also, “ to construct sufficient cattle-guards at all road-crossings;” and by the Act of April 17th 1869, the failure to perform these duties, renders the railroad company liable for the value of cattle, &c., injured in consequence of such neglect. Mead lived about half a mile from the railroad company’s track and owned no land along its line, but pastured his cow in the field of one Dalrymple, south of and near the railroad station, but not adjoining its land or right of way. Between this pasture and the railroad company’s land at the nearest point was the public highway, fenced on both sides, and betxveen this pasture and the railroad track at the point where the cow was killed a fenced field intervenes. The public road crosses the railroad just east of the depot. There is a side track extending some distance east and west of the depot, and the land east of the depot is used for yard and shipping purposes, piling ties and lumber, loading and unloading freight, and the track through this yard and east of it nearly to the bridge across Andrew’s run, as well as west across the- public road, is used by the railroad company in switching, arranging and making up trains, and more or less of this work is done by night. To put in cattle-guards where the public road crosses the railroad, or at any point where they would be crossed in switching and making up trains, it was alleged, would seriously endanger the lives of the trainsmen and railroad employees. The entire south side of the railroad company’s right'of way and yard, the side toward the Dalrymple pasture, is well fenced. The entire north side of the right of way and the yard are also well fenced. The part of the west end of the company’s yard north of the railroad track, is left unfenced for the convenience of the public, in passing in and out with freight, ties, &c. The plaintiff’s cow is supposed to have escaped in some way from the pasture into the public highway, and to have strayed thence through defendant’s yard, on to and along the track east toward the bridge, and was struck a few rods west of the bridge.
    At the trial before Church, P. J. (of the Thirtieth Judicial District), the defendant submitted, inter alia, the following points, to which are subjoined the answers of the court:
    1. The obligation on the defendant, under the statute, to make and maintain fences, applies only as against owners or occupiers of the adjoining close; and the plaintiff not residing nor occupying land along the line of defendant’s road, cannot assert this obligation nor recover for any loss incurred by reason of any neglect thereof by defendant.
    Ans. “ First part to semicolon answered in affirmative. Second part in negative, if the jury believe that plaintiff was then occupying Dalrymple’s farm as laid in map in evidence.”
    2. The defendant was not bound to build fences, or put in cattle-guards at any point where,.to do so, would endanger human life, or seriously impede the operations of the road; and is not liable for injury to any cattle straying on its tracks by reason of the lack of fence or cattle-guards at such points.
    Ans. “ As per general charge.”
    In the general charge, the court, inter alia, said: [“ Mr. Mead testified that he had rented pasture of Mr. Dalrymple, and kept his cow there, and turned her in that day, and he knew nothing else of her until she was killed. If that be so, and you believe that his cow, within the meaning of this act, did casually break out of its proper enclosure upon the highway, he is guilty of no negligence in the cow being upon the highway.] * * * [This railroad was constructed after the Act of 1868 was passed, and they were required to construct sufficient fences and cattle-guards in the manner pointed out by this act. In default of that, the owner of any cattle may recover damages for the killing, in consequence of such a cattle-guard not having been placed in the place pointed out by the Act of Assembly.] It is alleged on the part of the railroad company, that this plaintiff does not come within the provisions of this Act of Assembly, because he did not occupy the land along the railroad track. It appears by this draft and by evidence, that he was pasturing his cow in Dalrymple’s pasture. This pasture comes down, as appears by this draft, to two highways ; one of the highways running across the railroad, right at the depot. It appears in evidence, that the defendant’s track is fenced the whole distance, according to the Act of Assembly, except at a point opposite the depot, where the track-yard of the defendant’s railroad abuts against this highway, and there is no ■ fence there, neither is there any cattle-guard. There is a fence at the east end of the yard proper where there are switch-gates, but there are no cattle-guards; and it is evident that this beast had gone down through towards the bridge easterly, and past the yard proper, and there it Avas killed..
    [“Noav, we say to you, that it was the duty of this railroad company to build a cattle-guard, either at this railroad crossing, or at the eastern end of their yard.] If it was impossible for the railroad company to transact its ordinary business by maintaining this fence at the road crossing proper, it was their duty to put a cattle-guard at the eastern end of the yard. .If you believe they could do so without seriously interfering with the ordinary business, they Avere guilty of negligence, or rather of violation of the Act of Assembly in not doing so. So, in our view of the case, ave cannot answer the defendant’s points exactly, as he has asked us to say.
    [“We say, that Dalrymple’s field is sufficiently close to the rail- ■ road to come within the provisions of this Act of Assembly.] The simple fact of the highway being between the pasture-field and the right of Avay of the railroad, does not relieve the company from the obligations of this Act of Assembly. If you believe that the exigencies of the railroad business prevented them from building a fence or a cattle-guard immediately at the crossing, they should have built a cattle-guard at the first convenient place.”
    The verdict was for plaintiff for $62.75. The defendant took took this Avrit and alleged that the court erred in the ansAvers to the foregoing points, and in the portions of the charge noted in brackets above.

      Brown Stone, for plaintiffs in error.
    The plaintiff bases his claim on the special act, and he must shov? affirmatively he is within its provisions: 1 Redf. on Railways 496; Illinois Central Railroad Co. v. Williams, 27 Ills. 48. The act only inures to the benefit of the owners of a close adjoining, the railroad: Jackson v. Rutland and Burlington Railroad Co., 25 Vt. 150; 1 Redf. Am. Railway Rep. 351; Ricketts v. The E. & W. India Docks and Birmingham Railway Co., 12 Eng. L. & Eq. Rep. 520; Manchester, Sheffield and Lincolnshire Railway v. Wallis, 25 Id. 373; Towns v. Cheshire Railroad Co., 1 Foster’s Rep. 363; Cornwall v. Sullivan Railroad Co., 8 Id. 161; Chapin v. Sullivan Railroad Co., 39 N. H. 53; Enright v. S. F. & S. J. Railroad Co., 33 Cal. 236; Woolson v. Northern Railroad Co., 19 N. H. 267; Mayberry v. Concord Railroad Co., 47 Id. 391; Little v. Lathrop, 5 Greenl. 356; Rust v. Low, 6 Mass. 90; Lawrence v. Combs, 37 N. H. 331. Railroad companies are not responsible for damage - occurring to domestic animals from want of fence or cattle-guards at points which do not properly admit of being fenced, or of the building of cattle-guards: 1 Redf. on Law of Railways 494; Indianapolis and Cincinnati Railroad Co. v. Oestel, 20 Ind. 231; Indianapolis and Cincinnati Railroad Co. v. Kinney, 8 Id. 402; Davis v. Burlington and Missouri River Railroad Co., 26 Iowa 549; Galena and Chicago Union Railroad Co. v. Griffin, 31 Ill. 303; Packard v. Illinois Central Railroad Co., 30 Iowa 474.

      Clark Noyes, for defendant in error.
    The word “adjoining,” does not occur in the Act of 1868. The right to enforce it is not restricted to any particular class of persons; “any person” may give the notice or build the fence or cattle-guard if the company do not. The language used in the title is “along the line,” which means sufficiently near to be within the mischief to be prevented, which was manifestly dangerous collisions between animals and moving trains. It is % general police regulation, incidentally, if not principally intended to protect the public, like the special act for Erie county, which was so. interpreted in Pennsylvania Railroad Co. v. Riblet, 16 P. F. Smith 164. Only great inconvenience or danger could excuse the company from a literal compliance with the act. They would be bound to comply as nearly as the circumstances would permit. The j.ury have found that they could have placed a cattle-guard at the east end of the yard, without inconvenience or danger. The. plaintiff’s cow was killed at a point beyond where this guard should have been. The plaintiff’s recovery is not defeated by the fact that his cow came upon the track from the highway. The action is not based upon negligence . but upon the statute. This is remedial and should be liberally construed: Pennsylvania Railroad Co. v. Riblet, supra; Tracy v. Troy and Boston Railroad Co., 38 N. Y. 433. It provides for cattle-guards at all road crossings to prevent cattle from straying upon the track. The cattle-guard would only be effectual against animals in the road. The Court of Appeals of New York, have decided .that railroad companies are liable under a similar statute, although the cattle aré straying in the highway or trespassing on the adjoining field: Corwin v. New York and Erie Railroad Co., 13 N. Y. 42; Shepard v. New York and Erie Railroad Co., 35 Id. 641; Bradley v. Railroad Co. 34 Id. 427.
    June 23d 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

This case turns upon the interpretation of the Act of 28th of March 1868, which requires railroad companies in the county of Warren to erect and maintain fences along the tracks of their roads and to construct cattle-guards at all the public road crossings, sufficient to prevent orderly cattle, horses, sheep and swine from straying upon said tracks.

The defendant contended, and so asked the court to charge, that the plaintiff’s case did not come within the provisions of this act, because he did not occupy land immediately adjacent to the railroad. This the court refused to do, saying that as the plaintiff was depasturing his cow upon land near to, though not directly abutting upon, the railroad, it was sufficient, and if the cow escaped from the enclosure without any default on his part, and was killed in consequence of the neglect of the company in not fencing its track according to the terms of the statute, he was entitled to recover. In this we discover nothing wrong. It is true the act recites that it is for the protection of farmers and owners of cattle residing along the line of any railroad in the county of Warren. But here, first, it is obvious the intent is to protect all owners of live stock, whether farmers or other persons; whether, therefore, they own or occupy land or not is of no consequence; and hence, also, in order to give proper force to this intent, we must construe the words “along the line of,” to mean in the vicinity of; otherwise only such stock-owners as own or occupy land adjoining the lines of railways would be protected; and so even those who were in the lawful occupancy of highways crossing the defendant’s improvements, unless they were adjoining landowners, would not be within the terms of the act. This, however, would limit the act not to stock-owners, or even to landowners generally, but to such only as happened to have or occupy lands adjoining railroads. Such an interpretation as this, since it accords neither with the words nor spirit of the act, cannot be the true one.

But again, a construction which would determine that a tract of land did not lie along the line of a railroad because, as in the present case, a public highway intervened, would be too narrow for practical purposes, and would not accord with the common understanding and acceptation of those words. It would, in fact, amount to the abrogation of a wise law, designed not only for the protection of the property of persons residing in the vicinity of railroads, but also for the protection of the limbs and lives of those travelling over or using such railroads.

A construction such as this we are not prepared to adopt; on the other hand, that of the learned judge of the court below seems tp us much the better of the two. He has not only properly construed this act, but, in all other respects, has tried this case fairly, and has withheld nothing from the defendant to which it was justly entitled.

Judgment affirmed.