author: Mr. Justice Woodward

text:
    Quinn’s Appeal.
    1. A judgment confessed by a married woman can he enforced in the single instance where, when a conveyance is made to her, it forms part of an agreement under which she takes land, subject to the condition that she shall pay its priees
    2. "Where a married woman declares that she has no defence to a judgment, she is not thereby estopped from asserting its invalidity on the ground of her coverture. Glidden v. Strupler, 2 P. F. Smith 400, followed.
    3. "Where land is sold under a mortgage containing a waiver of exemption, the mortgagor is, after notice given, entitled to his exemption out of the surplus as against subsequent judgment-creditors. Hill v. Johnston & Parker 5 Casey 362, followed.
    4. A judgment confessed by a married woman is void, and the discharge by the court of a rule to open such a judgment where the evidence is wholly inadequate to support such action, does not fix upon the record of the judgment the character of res adjudicata, so as to exclude her from participation in a fund.
    March 19th 1878.
    Before Agnew, C. J., Sharswood, Merctjr, Gordon, Paxson, Woodward and Trunicey, JJ.
    Appeal from the Court of Common Pleas of Schuylkill county: Of January Term, 1878, No. 150.
    Appeal by David Quinn and Susan, his wife, from the decree of the court, confirming the report of the auditor appointed to distribute the fund arising from the sheriff’s sale of the property of said Susan Quinn.
    On the 28th of May 1866, Martin McGinness purchased two lots in Pottsville, from P. W. Shaefer, attorney for Walter S. Shaefer and wife, paying therefor $175, for which he took the attorney’s receipt as follows:
    “Pottsville, May 28th 1866.
    “Received from Martin McGinness, laborer, of Pottsville, one hundred and seventy-five dollars, in full, for the surface of two lots in Mt. Hope, in the borough of Pottsville, on the north side of Minersville road, hounded east by John R. Hood’s lot, on the west by James Galbraith’s lot, and on the north by a twenty-foot alley. Said lots are 100 feet front both, and 23 feet deep, and subject to the usual reservations. Deed to be given as soon as practicable.
    P. W. Shaeeer, Attorney.”

      On the back of this paper is the following endorsement;
    “ For value received I hereby assign this receipt to Susan Quinn, wife of David Quinn, and hereby request P. W. Shaefer, Esq., to make the deed to her. I have disposed of my entire interest in the same.
    July 12 1866. Martin McGinness.”
    On January 23d 1867, a deed for the lots was executed by Shaefer and his wife to Susan Quinn. On August 20th 1867, Quinn and his wife executed a bond, with warrant of attorney, to confess judgment in favor of McGinness for $175, payable in seven payments. In 1870, Quinn and his wife mortgaged the two lots to the Pottsville Building Association for $600, which mortgage was recorded before the entry of judgment on the bond to McGinness. Judgment was entered on the bond February 1872, and it was then transferred to Kline, who issued a fi. fa. thereon. In September following, Mrs. Quinn filed an affidavit, setting forth her coverture, and the court granted a rule to show cause why the judgment should'not be opened. Depositions were taken under this rule, and McGinness testified on behalf of the plaintiff, that he sold the lots to Mr. Quinn and his wife, and that the bond was taken as security for the purchase-money. He further testified, that at the time of the assignment he “took no security, nor writing, or anythingthat he “did not want anything,” that he “thought it was all right,” and that he “never had said anything to Mrs. Quinn about being paid for the lots ’till after they had their house nearly built.” Quinn and his wife, on the contrary, swore that McGinness had given the property to Mrs. Quinn, who ivas his niece, and they had signed the bond without knowing what it was, and on the assurance of McGinness’s counsel that “it would not amount to anything.” There was also evidence to show that Mrs. Quinn had declared to Kline and his counsel, that she had no defence to the judgment before Kline purchased it.
    The court, Pershing, P. J., discharged the rule in an opinion, saying: “ For what then ivas the bond given ? In the absence of evidence of any other business transaction between McGinness and the defendants, to which the bond in question could have application, we have come to the conclusion that it was given for the purchase-money of real estate. If so, it is valid against Mrs. Quinn, notwithstanding her coverture, as is shown in Patterson v. Robinson, 1 Casey 81, and other cases. There is another ground upon which we may refuse to open the judgment in this case. M. McGinness testifies that after the bond was executed by the defendants, they severally, at different dates, made him a small payment upon it; acts inconsistent with the allegations they now make. Roland Kline testifies that before purchasing the judgment, he went with his counsel, Mr. Wright, to the house of Quinn, to learn whether there was any defence to its payment, and was then informed by Mrs. Quinn that the bond was all right. In this he is corroborated by Mr. Wright. It appears from the testimony of Mr. Wright, that Martin McGinness called upon him (Wright) several times, and urged him to induce Kline to purchase the judgment. After he had become the assignee of the judgment, Roland Kline states that at the request of one or both of the defendants, he made an agreement by which the time of the several payments was extended. The assignee having shown that he paid a valuable consideration for the judgment, before doing which he had been informed by one of the defendants that no defence would be made to it; he is brought directly within the ruling of these points, in Weaver v. Lynch, 1 Casey 449. The principle of estoppel appears when an act or statement cannot be withdrawn without a breach of faith on the one-hand, and an injury on the other; such an act rises from the rank of evidence to that of an estoppel, and absolutely binds and concludes the party affected by it: Doe v. Oliver, 2 Smith’s Leading Cases 711, &c.; this kind of an estoppel is applicable to feme coverts and infants as well as others, for it could not be tolerated that such persons should be allowed to injure others with impunity: 1 Story.’s Equity, sec. 385. See also Fulton v. Moore, 1 Casey 468. After a careful examination of the whole ease, we cannot find sufficient grounds for opening the judgment.”
    In 1875 judgment was obtained upon the mortgage to the Building Association, and Kline purchased the same and the property was sold on the levari facias thereunder. The sheriff made return that he had sold the premises for $600 ; that he had the receipt of Kline as assignee of the Building Association for the judgment and interest; and further, that he held Kline’s receipt for $160 on account of the judgment on the bond, which amount it appeared, however, he had not taken from the sheriff’s hands.
    The auditor, inter alia, reported: “It being conceded that there is no exemption against the mortgage, the only question is, is the defendant entitled to the exemption in preference to the judgment of Martin McGinness for use of Kline against the defendants. In this case the judgment is upon a bond in the usual form, and does not show that it ivas for purchase-money, and standing alone, being given by a married woman, would not only be entitled to preference over exemption, but would be absolutely void. But the defendants having a knowledge of that fact went into court and asked to have the judgment opened. The depositions submitted are a part of the record in the original judgment, were submitted to and passed upon by the court, thus giving the defendants their full day in court, and the court decided against them. The auditor must, therefore, [no matter what impression of the fact the depositions might leave upon his own mind as to the original transaction,] treat the iudgment as valid against both defendants, and for the purchase-money of the property against which they are not entitled to the exemption. Concluding thus, your auditor has nothing to do with the question whether the notice was in time or not, though he believes the notice was in time, and would entitle them, if nothing else prevented, to the exemption; and as to the point that Kline, the assignee of the judgment* is not entitled to the immunities of the purchase-money judgment, the assignee is certainly entitled to all the rights of the original plaintiff. This leaves it unnecessary for your auditor to make any particular distribution, as there is not. sufficient money in court to pay the purchase-money judgment, and the deed ought to be acknowledged and the sale confirmed to Roland Kline.”
    The defendants filed exceptions to this report, among others the following: The auditor erred in awarding any money from the fund in court to Kline on the judgment of McGinness against defendant, as said judgment was entered on a confession of judgment by a married woman and was void.
    The court, Walker, J., dismissed these exceptions and confirmed the report in an opinion, saying:
    “ The exceptions to the confirmation of this report virtually raises the same point decided by this court on the motion to open the judgment. It was there, as here, urged that the bond of Susan Quinn, a married woman, was invalid except for purchase-money.
    “ It was there held that the bond upon which suit is founded was given for purchase-money, and the' court refused to disturb the judgment. The fact that the bond was given in part payment for two lots of ground has been found by the auditor, and distribution made accordingly. The authorities cited by Judge Pershing in his opinion, cover the whole case, and fully sustain his decision, and the case of Schlosser’s Appeal, 8 P. F. Smith 489, relied upon by by the exceptant, is not in conflict with it in my opinion. The question here is therefore to be considered res adjudicata.

    “Exceptions overruled and report confirmed.”
    Quinn and his wife took this appeal, assigning this decree for error.

      Lin Bartholomew and Reilly .Nash, for appellants.
    — Patterson v. Robinson, 1 Casey 81, and Ramborger’s Administrator v. Ingraham, 2 Wright 147, relied on by the court below, simply hold that a judgment bond of a married woman, given at the time of purchase, as a part of the consideration for transferring the title to her, is not void, but that whatever agreement to encumber her title she may make at that time, the law will not permit her to set up her coverture to defeat. But certainly her power to confess a judgment for the purchase-money would not continue for months after the legal and equitable estate is vested in her.
    The conveyance and the execution of the judgment bond must be one transaction; that is, the confession of the judgment must be contemporaneous with the transfer of the title to the married woman, and as a consideration therefor, otherwise it will be invalid: Brunner’s Appeal, 11 Wright 73; Schlosser’s Appeal, 8 P. F. Smith 495. The declarations of a married woman will, not estop her. She had no power to contract, and certainly no contract can arise by implication from declarations made by a party laboring under such a disability : Rumfelt v. Clemens, 10 Wright 455; Keen v. Coleman, 3 Wright 299; Glidden v. Strupler, 2 P. F. Smith 400. In Weaver v. Lynch, 1 Casey 449, relied on by the court below, the party making the declarations was under no legal disability when the declarations were made.

      John W. My on and James My on, for appellee.
    — There was a waiver of exemption in the mortgage, and a waiver of exemption as to one of the creditors having a lien on a fund is a waiver to all: Shelly’s Appeal, 12 Casey 373. In law and fact the property was really that of Quinn himself. It was not clearly shown that the property was that of the wife : Bowers’s Appeal, 18 P, F. Smith 126. Where a married woman purchases property and agrees to pay for it in the future, such a purchase is upon condition, and she will be bound to perform the condition. She will not be permitted to keep the property and the purchase-money too. “ It does not charge her person, but the land,” and a judgment bond given by her for the purchase-money will be enforced as a judgment against the land: Patterson v. Robinson, 1 Casey 81; Ramborger’s Administrators v. Ingraham, supra.

    As she has the right to purchase real property the law will hold her to her contracts as to the specific property, precisely in the same way such contracts would be binding between other parties competent to contract.
    May 6th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

No connection between the judgment-bond executed by Quinn and his wife and the instruments by which Mrs. Quinn’s title to the property sold by the sheriff became vested in her, was shown by the documentary evidence submitted to the auditor. The bond did not even recite that it was given for the purchase-money of the land. The contract made by P. W. Shaefer, as attorney for Walter S. Shaefer and his wife, with Martin McGinness, was made on the 28th of May 1866. McGinness assigned his interest in the contract to Susan Quinn on the 12th of July 1866, and Shaefer and his wife executed the deed to her on the 23d of January 1867. McGinness paid the -whole consideration for the property when he received the contract. The character of the bond, which was not executed until the 20th of August 1867, as a purchase-money obligation, could only bo made out by parol testimony, and to that the Common Pleas resorted in disposing of the rule to open the judgment. The usual consequences were developed by the experiment. McGrinness testified that he had sold the property to Quinn and his wife. They swore that he had given it to Mrs. Quinn, and that they signed, the bond without knowing what it was, and on the assurance of McGrinness’s counsel that “it would not amount to anything.” The conclusion that something like perjury ivas committed on one side or the other, could probably be safely drawn.

To apply the doctrine of Patterson v. Robinson, 1 Casey 81, and Ramborger’s Administrator v. Ingraham, 2 Wright 146, to the circumstances of this case, would be a travesty of a rule of law. McGrinness testified in terms that at the time of the assignment, he “took no security, no writing or anything;” that he “did not want anything;” that he “thought it was all right;” and that he “ never said anything to Mrs. Quinn about being paid for the lots till after they had their house nearly built.” The judgment-bond, therefore, was not even executed in pursuance of a previous agreement made either when the contract was assigned, or when the deed was delivered. In executing it, Mrs. Quinn was assuming, seven months after her title was vested, an entirely new obligation. She was performing no condition on which her tenure of the land depended, and was fulfilling no duty, legal or moral, which she owed to her assignor. Ramborger’s Administrator v. Ingraham was ruled by Chief Justice Lowrie on the ground that the conveyance and the lien for the purchase-money were all one transaction, and that the benefit and the burden were to be treated as valid alike. A judgment confessed by a married woman can be enforced in the single instance where, when a conveyance is made to her, it forms part of an agreement under Avhich she takes land subject to the condition that she shall pay its price: Brunner’s Appeal, 11 Wright 67. In Schlosser’s Appeal, 8 P. F. Smith 493, two married Avomen purchased some real estate on which there AAas at the time a subsisting lien. The plaintiff satisfied the judgment against the vendor, and took a neAV one against the vendees. It Avas held to be a clear case of novation — the substitution of a neAV debt for the old one — and the judgment, being a new contract by married women, Avas declared to be void.. In the discussion of that case, Shars-WOODj J., said that “ the cases Avhich permit a married Avoman to bind her separate property, are exceptions .to a general rule of sound policy, and ought to be strictly confined within the limits prescribed. If aa'6 begin to reason upon the abstract justice of making her property answerable for her honest debts, the exceptions will soon eat out the rule itself.” At the utmost, the bond of Mrs. Quinn, was given for an antecedent debt, and for a consideration Avhich had passed to her months before. If under the facts presented, it could be treated as a purchase-money security, a rule Avould be established which would place the property rights of a married woman at the mercy of an auditor or a jury whenever by the testimony of a single witness they would be subjected to attack.

At the hearing of the rule, testimony was before the court which tended to show that Mrs. Quinn had declared to Kline and his counsel that she had no defence to the judgment before Kline purchased it from McGinness and took an assignment. It was urged below, and has been argued here that she was estopped by her declarations from asserting its invalidity. This question was settled by an exhaustive and absolutely conclusive opinion of the present Chief Justice in Glidden v. Strupler, 2 P. F. Smith 400. It was there decided that the contract of a married woman being void, it cannot be ratified, even by deed, except in the mode prescribed by the statute; and that positive acts of encouragement which might operate to estop one sui juris, will not affect one who is under a legal disability.

Hill v. Johnston & Parker, 5 Casey 362, meets the objection of the appellees that the waiver implied in the execution of the mortgage under which the land was sold, bars the right of Mrs. Quinn to set up her exemption claim upon the fund. The rule established was,'that where notice of the demand for exemption has been given to the sheriff before the sale of real estate on a levari facias, the want of an appraisement will not prevent the debtor from taking the amount of the claim out of the proceeds after the payment of the judgment on the mortgage. In his report the auditor expressed the opinion that the demand upon the sheriff was made in due time by the appellants.

It was urged further on the argument that the question of the validity of this judgment was settled by the determination which the Common Pleas made of the rule to open the judgment. It was said that the appellees were fully heard, and that they acquiesced in that determination. Certainly, they acquiesced. They could do nothing else. No appeal to this court was possible until the Act of the 4th of April 1877, was passed, and then the property had long been sold. The appellants had no remedy except to assert their rights in the distribution. The judgment was void upon its face. The evidence on which it was found to have been for purchase-money was before the auditor and is here in the record of this appeal. It was wholly inadequate to support the decision of the court below refusing to open the judgment, and that refusal left it in precisely its original position. Dorrance v. Scott, 3 Wharton 309, decided not only that a judgment against a married woman was void, but that a judgment in a scire facias issued upon it.was void as well. In Caldwell v. Walters, 6 Harris 79, a married woman was permitted to maintain an ejectment against a purchaser of her property at sheriff’s sale under a judgment which she had confessed. And in Swayne v. Lyon, 17 P. F. Smith 436, a title was held to be unmarketable which a vendor had acquired at a sheriff’s sale under an adversary judgment against a Wife. The declaration in the action contained two counts for materials furnished at the wife’s request for the improvement of her separate real estate. But the common counts were added, and the vendee was relieved from the obligation of his contract because, notwithstanding the judgment, execution and sale, the wife would remain at liberty to show that the recovery was on claims covered only by those counts, for which she was subject to no liability. The discharge of the rule to show cause did not fix upon the record of the judgment against Mrs. Quinn the character of res adjudieata so as to exclude her from participating in this fund. *

The decree is reversed at the costs of the appellee ; and it is now ordered and adjudged that the moneys produced by the sheriff’s sale, after payment of the principal debt, interest and cost .accrued in the judgment upon the mortgage to the Pottsville Building and Saving Fund Association, and of the costs of the audit, be distributed and paid to the appellants.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Miller, Assignee of Loomis, versus Bedford.
    1. Where a mechanic's claim sets forth that it was for work done and materials furnished in pursuance of a contract, it is regular on its face, and the lien will be sustained by proof that the price of the work was to be ascertained by measurement after its completion.
    2. Where the record does not show what the reserved points are, the entry of judgment non obstante veredicto is without warrant.
    March 19th 1878.
    Before Acnew, C. J., Sharswood, Merour, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas of Wyoming county: Of January Term 1878, No. 160.

      Scire facias sur mechanic’s claim filed by C. P. Miller, assignee of L. P. Loomis, against B. R. Bedford.
    The claim filed set forth: “ The amount claimed to be due is seven hundred and eighty-six dollars and thirty-five cents, for work and labor, sand, lime, brick and materials furnished in and about the erection of said building by L. P. Loomis, within six months past; the work and labor having been done and the -materials furnished in pursuance of a contract for the erection of said building entered into between B. R. Bedford and said L. P. Loomis, dated June 27th 1871, and supplement thereto, dated September 11th 1871, as occasion required, commencing on the 10th day of October 1871, and continuing until the 10th day November 1871, when the last work was done and the contract performed on the part of said L. P. Loomis.”

      The defendant entered a rule to show cause why the claim should not be stricken from the record, which the court discharged. The defendant then filed a plea of “Nil debit.” At the trial the agreement of June 27th 1871, was put in evidence by plaintiff, wherein it was stipulated that Loomis would furnish the brick, lime, sand and other materials necessary, and in a good and workmanlike manner erect the outside walls for a brick building, in accordance with certain plans,, and that in consideration therefor Bedford was to pay Loomis $13.50 per thousand bricks “at measurement, and to be measured after said walls and work were completed.” By the supplementary contract of September 11th 1871, certain additional work was to be done by Loomis, for which he was to receive an additional sum of fifty cents per thousand bricks. A computation showed that the number of bricks actually used at the contract price made the amount claimed. It was also shown that the claim was assigned to Miller. The plaintiff having closed his evidence, the defendant moved for a nonsuit, which the court, Ingham, P. J., refused, saying:—
    “ This motion is overruled for the purpose of taking the verdict of the jury on the evidence, the court reserving the legal points involved.”
    The verdict was for the plaintiff. The court subsequently entered judgment for the defendant non obstante veredicto, in an opinion, inter alia, saying :—
    “ The plaintiff having closed his evidence, the defendant, by his counsel, moved for a compulsory nonsuit. This motion we overruled for the purpose of submitting to the jury the facts proved in the case, reserving the points: whether the claim filed in the case was sufficient to create a lien under the mechanics’ lien laws, and whether the plaintiff has given such evidence as is in law sufficient to maintain the action, or sufficient evidence to submit to the jury. The right of a mechanic or material man to a lien upon a building can only be asserted in the manner provided by the statute. The statute, among other things, provides that every claim must set forth ‘the amount or sum claimed to be due, and the nature or kind of work done, or the kind and amount of materials furnished, and the time when the materials were furnished, or the work done, as the case may be.’ The claim filed by Loomis does not state ‘ the nature or kind of the work done, nor the amount of material furnished.’ On its face, therefore, it is defective as a lien unless the omission to comply with the form of the statute is supplied by the fact that the work and labor were done and the materials furnished in pursuance of an agreement for a stipulated sum. The claim sets forth that the work and labor were done and the material furnished in pursuance of a contract for the erection of a building. The amount claimed to be due is $786.35. On the ground that this claim appeared to be founded on a special contract for a round sum of money (and not having the contract before us), we overruled the defendant’s motion to strike off the lien and compelled him to plead to the scire facias. When the contract was offered it appeared that the value of the work could only be computed by the measurement of the work and a computation of the number of the brick; that it was nob for a round sum of money, but provided for payment for the work of laying the brick at a fixed price per thousand. Construing the allegation in the claim as we were compelled to construe it in order to sustain the validity of the lien, and there appears a clear variance between the evidence offered and the claim filed, the allegata and the probata do not correspond. For these reasons we find that judgment cannot be entered for plaintiff on the verdict, and judgment-must be entered against him non obstante veredicto.”

    This action was assigned for error by Miller, who took this writ.

      Sittser Ha.rding and W. P. O. A. Little, for plaintiff in error.
    — The reservation of “the legal points involved” is irregular. It is not a good reservation of a point to reserve it on all the evidence. Every reservation of a question should place distinctly upon the record what the point is which is reserved and the state of facts out of which it arose: Irwin v. Wickersham, 1 Casey 316; Winchester v. Bennett, 4 P. F. Smith 510; Ferguson’s Admr’s v. Wright’s Admr’s, 11 Id. 258. After pleading to the scire facias all objections to the lien were waived: Howell v. City of Philadelphia, 2 Wright 471. The claim made here is sustained by Hill et al. v. McDowell et al., 2 Harris 175, where the amount of work done was not stated, and it was alleged to have been done in pursuance of an agreement.

      P. O. Loss, for defendant in error.
    — The questions reserved were distinctly stated in the opinion of the court, and were raised in the court by the exceptions to evidence and motion for the non-suit. In all the cases cited by the plaintiff there were controverted facts, and the manner of reserving the questions involved the court’s assuming the facts without a distinct finding by the jury, but in this case the record ^hows that no evidence was offered on part of defendant, and hence the facts Avere undisputed.
    No waiver can be presumed after a motion to strike the claim from the record. Hill v. McDowell, supra, cannot be reconciled -with the later authorities.
    April 4th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

Were we to determine this case according to that of Hill v. McDowell, 2 Harris 175, Ave should be obliged to say that not only the claim filed but the proofs also, were sufiScient to sustain the lien in controversy, for, in that case as in this, the contract was, that the price of the work should be ascertained by measurement after its completion ; and, in that case as in this, the objection was made that as the contract was not for a fixed sum in gross, the lien was irregular for Avant of proper specifications.

The lien, however, under consideration has the advantage over that in the case above mentioned in that it is regular upon its face, inasmuch as it sets forth a contract under Ayhich the materials AYere furnished and the work was done, Avhich did not appear in the case of Hill v. McDowell, supra. The court, then, did right in refusing the motion to strike off the lien.

It was thought, hoAvever, that the contract, not being for a sum in solido, did not support the claim filed, and so judgment was entered non obstante veredicto, on certain alleged reserved points, for the defendant. What these points thus reserved AYere, the record does not show, and Ave must therefore assume that the judgment Avas entered without warrant: Ferguson v. Wright, 11 P. F. Smith 258. In that case it was held that a reservation, whether upon the whole testimony, the plaintiff was entitled to recover, was not good, as it furnished nothing to which the party might except in order to have a review; but the argument is a fortiori where the reservation is made upon no point whatever.

The judgment is reversed, and it is now ordered that judgment on the verdict be entered for the plaintiff.


author: Per Curiam.

text:
    Walter versus Breisch.
    Where a debtor has paid usurious interest upon a judgment, and confessed a judgment of revival, the court will nevertheless open the judgment and allow him a credit for said usurious interest upon the principal.
    March 20th 1878.
    Before Asneav, C. J.,- Sharswood, Mbrcur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the Court of Common Pleas of Schuylkill county: Of January Term 1878, No. 110.
    Appeal of A. K. Walter from the decree of the court making absolute a rule to shotv cause Avhy a judgment held by said Walter against Jacob Breisch should not be opened, and the latter let into a defence on the ground of usury.
    It appeared that in 1871, Walter loaned Breisch $2800, to secure the payment of which the latter gave him his judgment note, upon which judgment was entered on January 4th 1871. On November 3d 1875, Breisch entered into an amicable action to revive said judgment and continue the lien thereof for five years, and confessed judgment therein for $2100, on Avhich judgment of revival Avas entered for that amount. In June 1876, Breisch obtained a rule to show cause why this judgment should not be opened and he be let into a defence; and in support of the rule, deposed that he had paid interest on $2300, the amount originally borrowed, from the date of the loan until March 1875, at the rate of 3 per cent, per month. It appeared that he had also paid $300 of the principal. Nothing was paid after the judgment to revive. The court, Pershing, P. J., made the rule absolute, when the plaintiff took this appeal, under the provision of the Act of April 4th 1877, Pamph. L. 53, giving the right of appeal in cases of this kind in like manner as equity cases are appealed.

      A. P. Spinney, for appellant.
    — The Act of Assembly of May 28th 1858, provides, “that the borrower or debtor shall not be required to pay the creditor the excess over the legal rate, and it shall be lawful for such borrower or debtor at his option to retain such excess from the amount of any such debt.” There must be a time when the debtor or borrower must exercise such option, and that time manifestly is before judgment, when the excessive interest has been previously paid. If he suffers judgment he has spent his option, has chosen to pay the excessive interest, and is concluded. If the borrower allows the usurious interest to become ■ merged in a judgment, it is then too late to take advantage of the defence of usury: 3 Parsons on Contracts 119, 6th ed.; Thatcher v. Gammon, 12 Mass. 268; Thompson v. Berry, 3 Johns. Ch. 395; 17 Id. 436.

      D. O. Henning, for appellee.
    — Can this excessive interest be credited upon the principal. That it can has been often decided: Lucas v. Government National Bank, 28 P. F. Smith 228; Overholt v. National Bank, 1 Norris 490; Brown v. Second National Bank, 22 P. F. Smith 209; Hartman v. Danner, 24 Id. 36; Youngman v. Walter, 23 Id. 134; Chamberlain v. McClurg, 8 W. & S. 31; Act May 8th 1858. The defendant having some time prior to his application, entered into ai\ amicable revival of the judgment, no relief can be afforded him, other than by opening the judgment: Hopkins v. West, 2 Norris 109. although he has overEaid the judgment; and the court will open the judgment to let im into such a defence: Martland v. McGonigle, 1 T. & H. Pr. 658.
    April 1st 1878,
   The judgment of the Supreme Court was entered,

Per Curiam.

— There was sufficient evidence to show excessive usury intervening between the entry of the original judgment and its revival by amicable agreement. If the amicable revival were conclusive upon the defendant confessing the judgment, usury would seldom be reached. An<l creditors, aware of such law, would always make it a condition of giving time, that a judgment or warrant of attorney to confess it, or to waive it, would be given. This corrective power of the court must be exercised to prevent the ruin of unfortunate debtors who are in merciless hands. This case is an apt illustration of the benign effect of-the law against wrong. The defendant in this case for several years paid interest at the rate of thirty-six per cent', per annum, the usury amounting to a larger sum than the original debt.

Order affirmed, and the appeal dismissed at the cost of the appellant.


text:
    East Union Township versus Ryan.
    1. A statute giving a new remedy or creating a new jurisdiction, or a private act conferring new and extraordinary special powers on particular persons, affecting the property of others, or exempting from a general bur-then imposed bylaw, should be strictly construed.
    2. An Act of Assembly provided that certain commissioners should view and open a state road; that they should take an official oath; that the work should be let out to the lowest and best bidder; that the commissioners should draw warrants for the cost thereof on the township to be benefited; which latter were to raise the money by a special tax, out .of which the expenses were to be paid. Held, that the warrants drawn by the commissioners were not negotiable instruments upon which the holder could bring suit in his own name. Held further, being made payable out of a special tax demand upon the township treasurer was necessary before suit brought. Held further, that before recovery could be had on these warrants, it must be first shown that the directions of the statute had been literally complied with.
    March 20th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodavard and Trunkey, JJ.
    . Error to the Court of Common Pleas of Schuylkill county: Of January Term, 1878. No. 267.
    Assumpsit by Patrick Ryan against the township of East Union.
    The declaration contained the common counts, together Avith a special count, Avhich averred that under the provisions of the Act of April 7th Í873, commissioners were appointed to lay out a state road, to let the same to the lowest bidder, and to charge the expense thereof to the several toAvnships through Avhich the road Avas located; that said commissioners Avere authorized to draAv warrants in favor of the contractors on the treasurer of said townships; that said commissioners laid out the road through East Union toAvnship, and let out the making of the same through said toAvnship to Andrew Comrey.'Avho duly complied with his contract; that said commissioners issued their warrant in his favor for the work so don§; and that said Comrey, for a valuable consideration, assigned said warrant to plaintiff, who had made demand of payment of the township treasurer and had been refused.
    The following are, in substance, the material provisions of the Act of 1878. It was made the duty of the commissioners under the act to subscribe an oath to perform their duty with fidelity; to carefully view the ground on which the road shall pass, and lay out and make the same on the route agreed upon by them for the road; to have accurate drafts made of the location of the road, noting the courses and distances as they occur, with such other matter as may serve for explanation; to deposit a copy of the draft in the office of the clerk of Quarter Sessions of the several counties through which the road shall pass; the commissioners, within thirty days of the filing of the drafts, to give public notice by handbills posted along the line of the road and other places contiguous thereto, that on a certain day and place they will receive proposals for the opening and making of the road. The proposals to embrace either the whole pr certain portions of the road; the commissioners, at the time so appointed, to open the proposals and award the contract for opening the road, in whole or in portions, to the lowest and best bidder; the contractors, within five days, to give bonds with sureties for the performance of the duties enjoined under the contract and specifications. If the lowest bidder fails to file their bonds, the contract to be awarded to the next highest bidder that will conform to the requirements of the law; the commissioners are “ authorized and empowered to draw wai’rants in favor of the contractors on the treasurers of the several townships through which the road shall pass, for such sum as may be necessary to build or construct so much of said road as the relative length in such township may be to the entire length thereof.” And the several townships are authorized and empowered to levy and collect a special tax, not exceeding two mills in any one year, on the assessed valuation of such township. Said tax shall be levied and collected at the same time and in like manner as other county and township rates and levies are made and collected. Said tax so collected, shall be applied only to the payment of the warrants hereinbefore mentioned. The commissioners are “ authorized and required to examine the said road as the work progresses, and draw warrants in payment thereof in proportion to the amount of work performed. And no warrant shall be drawn until the work shall be approved by the commissioners.” If any contractor or contractors should fail to do their work in a good and workmanlike manner, the commissioners are authorized to relet such work at the expense of the original contractor; the road to be commenced within thirty days after the award of the contract, and completed within one year, unless, in the opinion of the commissioners, it may be prudent and necessary to extend the time to two years. A majority of the commissioners are authorized to carry out the intentions of the act.
    At the trial the plaintiff gave in evidence the foregoing Act of Assembly, and then called Comrey, who testified that he was the contractor for that portion of the road in East Union township, and identified two warrants which he stated were issued to him by the commissioners named in the Act of Assembly, and which he had endorsed to plaintiff. These warrants, which were as follows, were then offered in evidence :
    “No. 67. Mahanoy City, June 1, 1874.
    “ To Henry Miller, Treasurer of the Township of East Union, in the County of Schuylkill, State of Pennsylvania.
    “ Pay to Andrew Comrey, or bearer, $200, and charge to the account of the. State Road in the Counties of Schuylkill and Luzerne, authorized by Act of Assembly, approved April 7, 1873.
    $200. William H. Barlow,
    Jno. R. Porter,
    Philip IIuntzinger,
    Commissioners.”
    “No. 68. Mahanoy City, June 1, 1874.
    “ To Henry Miller, Treasurer of the Township of East Union, in the County of Schuylkill, State of Pennsylvania.
    “ Pay to Andrew Comrey, or bearer, $500, and charge to the account of the State Road in the counties of Schuylkill and Luzerne, authorized by Act of Assembly, approved April 7, 1873.
    $500. William II. Barlow,
    Jno. R. Porter,
    Philip IIuntzinger,
    Commissioners.”
    The defendant objected to these warrants, because—
    1st. The orders were issued to Andrew Comrey, not the plaintiff in this action, and are irrelevant in this issue.
    2d. The condition precedent to the right to issue orders under the Act of Assembly of 7th October 1873, not having been shown, nor proposed, the evidence is incompetent for the purpose proposed, and is irrelevant and immaterial.
    3d. If the orders were properly issued, the act provides a mode for the payment from a special fund to be raised for that purpose, and the remedy., if any, for the payment of orders properly issued by persons duly authorized and qualified to issue them, is by mandamus and not by suit.
    The defendant offered no evidence, and moved for a nonsuit, which the court refused, and directed a verdict for plaintiff for the amount of the warrants without interest. The defendant took this writ, assigning, inter alia, for error, the admission of the warrants in evidence.

      Lin Bartholomew and Bdward Owen Parry, for plaintiff in error.
    —The Act of 1873 is a statute derogatory to private property, and must be construed strictly and not enlarged by intendment: Dwa.rris on Statues 750. When the law gives a special jurisdiction to any body of men, it must be strictly construed : Wistar v. Kammerer, 2 Yeates 100; Marshall v. Ford, 1 Id. 195; Young v. Martin, 2 Id. 312; Blair v. Caldwell, 3 Id. 284; Cromwell v. McCalmont, 1 S. & R. 126; Blair v. Waggoner, 2 Id. 472; Wain v. Shearman, 8 Id. 357; Birch v. Fisher, 13 Id. 208; Peters v. Heasley, 10 Watts 210; Hoffman v. Bell, 11 P. F. Smith 444.
    It should have been shown that all the acts' required by the statute were performed prior to the issue of the warrants: Kennedy v. Board of Health, 2 Barr 366. The suit should have been brought on the original claim, and not on the warrants, and demand must be made before an action lies: Allison v. Juniata Co., 14 Wright 351; Luzerne County v. Day, 23 P. F. Smith 143. Being made payable out of a particular fund, the warrants were not negotiable, and do not, per se, import consideration: 1 Daniels on Negotiable Instruments. If a suit cannot be maintained against the township for orders payable out of the fund raised by the special tax until the special tax is levied and collected, it would seem that a mandamus would be the proper remedy for a contractor to enforce the payment by the township for work done under the contract: 2 Dillon on Corp., sect. 118; People v. Mead, 24 N. Y. 118.

      John W. Ryon and James Ryon, for defendant in error.
    — If the suit was erroneously brought in the name of the -equitable plaintiff, it was amendable at any time even in this court: Barnhill v. Haigh, 3 P. F. Smith 165; Heidelberg School District v. Horst, 12 Id. 307; Schryock et al. v. Basehore, 1 Norris 159. The warrants were an acknowledgment of debt by proper officers for work done under contract, and proof of consideration was not necessary: Dyer v. Covington Township, 7 Harris 200; Pitt Township v. Leech, 2 Jones 33; City v. Burgin, 14 Wright 539; Thompson v. Commonwealth, 31 P. F. Smith 320; Neale v. Overseers, 5 Watts 538. These warrants did not require a demand before suit brought: Commonwealth, ex rel. Hamilton, v. Pittsburgh, 10 Casey 512; Commonwealth, ex rel. Middleton, v. Allegheny Co., 1 Wright 246. Mandamus will not lie until after judgment : Hester’s Case, 2 W. & S. 416.
    May 6th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

It was a fatal objection to the admissibility of the warrants of the state road commissioners, that they were drawn in favor of Andrew Comrey, while Patrick Ryan was the plaintiff in the action. It is true they were made payable to Comrey, “or bearer,” but that did not give them any of the qualities of commercial paper. In Reeside v. Knox, 2 Whart. 233, it was decided that a draft by a mail contractor, payable to his own 'order, on the postmaster-general, was not a negotiable bill of exchange, so as to entitle a holder to sue in his own name. It was said in the opinion of the court that an indispensable element in the constitution of negotiable instruments is an absolute and entire freedom from contingency of payment depending on the happening of an event, or the solvency of a fund. Where a defendant had been convicted of the larceny of a county order, the judgment was reversed because the instrument was not within the terms of the Act of the 5th of April 1790, making it a felony to steal “ obligations, or bonds, bills obligatory, bills of exchange, promissory notes for the payment of money, lottery tickets, paper bills of credit, or certificates granted by or under the authority of this Commonwealth, or of all or any of the United States of America.” Warners. The Commonwealth, 1 Barr 154. Orders drawn by supervisors on a township treasurer, payable out of moneys arising from road taxes,” are not bills of exchange, nor contracts of any kind, and in a suit on them interest is not recoverable: Dyer v. Covington Township, 7 Harris 200. The holder of a county warrant or order cannot recover interest after demand and non-payment for want of funds. Such a warrant is not a bill, note, check or contract, nor is it a satisfaction of the original indebtedness: Allison v. Juniata County, 14 Wright 351. In that case an opinion was strongly intimated by Judge Thompson that an action would not lie on such a paper, but there was nothing to call for a decision of that question. In th'e First National Bank of Northumberland v. The Rush School District, 2 W. N. C. 471, the plaintiffs gave in evidence an order signed by the president and secretary of the school board on the treasurer of the school district, in favor of Abel Marcy, and proved Marcy’s endorsement. A nonsuit was ordered by the Common Pleas, and the judgment was affirmed.

While the point was not distinctly made at the trial, it sufficiently appears that the verdict was obtained without any proof whatever of demand on the township treasurer. It is not necessary for the purposes of this cause to attempt an analysis of the cases in Avhich the rule of Luzerne County v. Day, 11 Harris 143, has been followed, overlooked or disregarded. The commissioners of this state road were appointed by a special Act of Assembly. Forming no part of the pervading governmental system of the Commonwealth, responsible to no existing constituency, and controlled by none of the restraints or limitations, and subject to none of the penalties by which the faithful performance of the duties of' ordinary municipal .officers are secured, these gentlemen were clothed by the legislature of 1873 with power to appropriate private property for the uses of a highway,.to enter into contracts for opening and making it, to take bonds from contractors, to decide finally and Avithout appeal on the character of the work done, and to draw Avarrants on the treasurers of the townships through which the road should be laid for their respective proportions of the cost of construction. No supervision or control over the work — no participation in it even — was allowed to the township authorities. They were to have no part in settling prices or selecting contractors ; no inspection of the road by them during its progress or at its completion was authorized; they had no power to inquire whether the entire expenses were equitably apportioned or not; no provision for auditing accounts was made; no limit of expenditure was fixed, and no notice even of the number of warrants to be drawn on the treasurer of any township, or of the amounts to be drawn for, was prescribed. The townships were simply to pay. Done well or ill, the cost of the work, as adjusted by the commissioners, was provided to be met by a special tax in addition to the current burdens of the municipalities. Under such a statute, before they should become liable to be harassed by a lawsuit, it would seem just that the township officers should be afforded the opportunity at least of ascertaining the weight of the load they were to be called upon to bear. The construction of this highway was to be paid for out of a designated fund, to consist of a tax of two per cent, on the assessed valuation of the property of each township. The treasurer had no authority to appropriate to the payment of the warrants of the commissioners any moneys outside of the fund to be thus raised. Some reasonable notice by the holders of those warrants, conveyed by a demand of payment or in some other form, was requisite in order to fasten a liability upon the township officers. An action for the recovery of the amount of any warrant could only be maintained against them after such notice, and after the lapse of such a period of time as would enable them to collect this tax “at the same time,” in the language of the act, “ and in like manner as other county and township rates and levies are made and collected.” These warrants could only be payable aftqr such presentation as would give opportunity to provide the fund exclusively dedicated to their liquidation.

On other grounds this judgment is unsustainable. The evidence consisted of the Act of Assembly of the 7th of April 1873; of the two warrants; of the testimony of Andrew Comrey that he was the contractor for the East Union portion of the road, and that he had endorsed the two warrants in suit, which he identified; and of the testimony of Patrick Ryan, the plaintiff, that he was the owner of the warrants; that he had worked for Comrey •on the state road, and had taken the warrants in payment, and that Barlow, Porter and Pluntzinger were the commissioners in charge of the road. The statute required the commissioners to make oath or affirmation before entering on their duties, that they would discharge them with fidelity and impartiality. Compliance with this' direction was not even alleged in the declaration. The work was to be done under contracts. No contract was shown, and it was not proved that the road was built. The fifth section contained this provision: “The said commissioners are hereby-authorized and required to examine said road as the work progresses, and draw warrants in payment thereof in proportion to the amount of work performed, and no warrant shall be drawn until the work shall be approved by said commissioners.” It has been argued that their examination and approval are necessarily to be implied from the fact that they signed the warrants. But they formed, for the purposes of this highway, not only a new board of administrative officers,' but a new tribunal with judicial attributes. A jurisdiction was conferred on them that was in derogation of the common law, and in conflict with the general statutes regulating individual and municipal rights. The act was as novel as it was special. It placed the property of entire communities Under the discretionary authority of the commissioners, without security or responsibility for its exercise. Rights asserted under the powers they wielded ought to be affirmatively made out, and their action should be held subject to strict scrutiny. Before the holder of their warrants can recover a verdict he must show that the prescribed statutory steps have been duly taken, and the prescribed statutory duties literally fulfilled. The whole current of authority has pursued one direction in holding proceedings under enactments like this to rigorous account. A statute which gives a new remedy by summary proceedings, or other deviations from the ancient constitution, ought not to receive a liberal construction: Pool v. Neel, 2 Sid. 63. A statute creating a new jurisdiction ought to be construed strictly: 10 Rep. 75. Private acts of parliament, conferring new and extraordinary powers of a special nature upon particular persons, affecting the property of individuals, or giving exemption from a general burden attaching by law upon all parties, should receive a strict interpretation: Rex v. Croke, 1 Cowp. 26. In that case, which arose under an act for making a road from Blackfriar’s Bridge across St. George’s Field, Lord Mansfield held the corporation of the city of London, in exercising the powers given them, to rigid compliance with the terms of the act in the minutest details. Marshall’s Lessee v. Ford, 1 Yeates 195, was an ejectment by a purchaser at a sheriff’s sale under a mortgage to the trustees of the loan office, and a precept from one of the trustees. The question was as to the necessity for the production in evidence of the precept and a certified copy of the mortgage, as well as the sheriff’s deed. The court said: “The summary remedy given under the loaii office acts requires a minute and strict investigation. The mortgage is instar judieii, and must, with the precept, be produced as the basis on which the sale rests.” “It has been truly said that where the law gives a special jurisdiction to any body of men, it must be strictly pursued. Courts of justice are bound to watch their conduct narrowly, and investigate it minutely:” Wistar’s Lessee v. Kammerer, 2 Yeates 100. Watt’s Lessee v. Gilmore, 2 Yeates 330, was one of a flood of cases illustrating the exact fidelity with which every act, every document and every advertisement connected with a sale of land for taxes before the passage of the Act of 1816, was required to be re-produced. In all actions in which a bankruptcy comes in question, unless otherwise provided by statute, it is necessary to go-through all the steps before entered into by the commissioners: Pleasants v. Meng, 1 Dall. 383. And in almost every instance of local, limited and exceptional jurisdiction, the same rule applies. In order to sustain this action, it must appear that the directions of the act have been pursued. It does not follow' that the commissioners were sworn because the law prescribed an oath. The provision that they should examine and approve the work was an injunction on them to investigate, deliberate and judge. The fact that the warrants were signed and delivered cannot be taken to imply that they performed that duty, or that a contract was ever made, or that the road has ever been constructed. All that was shown on the trial was, that the Act of Assembly had been passed, and that the commissioners named in it had issued their warrants on the treasurer of the township of East Union in favor of Andrew Oomrey for seven hundred dollars. Compared with what was proved, the margin that was taken for granted was too large.

Judgment reversed, anda venire facias de novo awarded.


author: Mr. Justice Trunkey

text:
    Kelley versus Dodge Manufacturing Company.
    In an action brought in the Common Pleas, the plaintiff averred in his affidavit filed, ‘‘ that his claim and demand exceeded $100.” Held, that this averment was not a compliance with section 26, of the Act of March 20th 1810, and the verdict being for a sum less than $100, Judgment should be entered without costs.
    March 21st 1878.
    Before Agnew, C. J., Sharswood, Mercur, Paxson, Woodward and Trunkey, JJ. Gordon, J., absent.
    Error to the Court of Common Pleas of Wyoming county: Of January Term 1878, No. 218.
    Assumpsit by the Dodge and Stevenson Manufacturing Company against James Kelley, to recover the price of a mowing-machine.
    The plaintiff filed a statement, wherein he charged the defendant with “one No. 2 Ohio and Buckeye Mower, $110,” and filed an affidavit “ that his claim and demand exceeded $100.” The verdict at the trial was for $4’8.08 for plaintiff, whereupon the defendant took a rule to show cause why judgment should not be entered without costs, on the ground that the affidavit did not comply with the requirements of section 26 of the Act of March 20th 1810, inasmuch as the affidavit did not aver that “ the debt due or damages sustained” exceeded $100, but simply that his claim exceeded that amount. The court, Ingham, P. J., discharged the rule and entered judgment for plaintiff with costs. The defendants assigned this action for error.

      Sittser, Harding and P. M. Osterhout, for plaintiff in error.

      W. H. ¿' O. A. Little, for defendant in error.
    April 1st 1878.
   Mr. Justice Trunkey

delivered the opinion of the court,

Section 26, Aet of 1810, provides that if any person shall commence suit for a debt or demand, made cognisable by said act by a justice of the peace, in any other manner than directed by said act, and shall obtain a verdict or judgment, without costs, for not more than $100, not having made and filed an affidavit that he “did truly believe the debt due or damages sustained” exceeded $100, he shall not recover costs in such suit: Purd. Dig. 848, pi. 81. Without perjury, no one can take the statutory oath, unless he believes the sum justly and legally due him exceeds $100. If his suit be for damages for breach of contract, his statement or declaration may demand far more than the sum necessary to recompense him for the injury. If for debt his statement may claim more than legally can be exacted. When the oath is made in the words of the statute, or in equivalent words, there is no uncertainty of meaning, and every one, learned or unlearned in the law, understands the affiant as intending the very sum due and owing.’

Here, the plaintiff in his affidavit says, “that his claim and demand” exceed $100. This positive assertion may be as strong as if he said he truly believed they exceeded that sum, or even stronger. Hence the departure from the statute is noticeable, and it is at once seen that the words “claim and demand” are not necessarily equivalent to the words “debt due or damages sustained.” Claim is often used to signify the right or title to a debt or to damages, and quite as often means “ a demand of a right or supposed right, a calling on another for something due or supposed to be due.” So demand may signify the amount claimed to be due, or “ the asking or seeking for what is due or claimed to be due.” The affiant, if questioned after the verdict for less than $50, could well respond that he claimed in his statement more than $100. But if it be doubtful that he could fairly make such response — if his affidavit could be construed to mean the debt itself, or to mean the claim for the debt or the supposed debt — the statute was not complied with. This evasive affidavit should have been treated as a nullity.

The order that the plaintiff recover costs is reversed and set aside; and judgment upon the verdict affirmed, without costs.