text:
    January Term, 1882,
    No. 191.
    March 23d, 1882.
    Duffee versus Records.
    1. The sheriff made return to a writ of attachment, under the Act of March 17th, 1869, P. L., p. 8, as follows: “Attached as within commanded and made known to Tradesmen’s National Bank (the garnishee), by giving .... a true and attested copy of the within writ to John Castner, cashier of said bank, and making known to him the contents thereof; .... and by giving .... a like copy to E. J. Records, defendant, and making known to him the contents thereof.” Judgment was afterward entered against the defendant. At the time of the service there was a sum of money in the hands of the garnishee belonging to the defendant, which had been deposited as a usual bank deposit, and had been mingled with the other funds of the bank. Held, that the attachment was duly served, regularly returned, and that its lien therefore attached.
    2. The subsequent irregularity of not serving a copy of the inventory on the defendant could only be taken advantage of by the defendant, and cannot avail a subsequent attaching creditor.
    Before Sharswood, C. J.; Mercur, Gordon,Paxson, Trunket, Sterrett, and Green, JJ.
    Error to tbe Court of Common Pleas, No. 2, for Philadelphia County.

    Case stated, in which Francis H. Duffee was plaintiff, E. J. Records defendant, and the Tradesmen’s National Bank garnishee. It was subsequently modified by making J. B. Lippincott a party.
    The facts agreed upon in the case stated were as follows;
    The plaintiff, Duffee, November 18th, 1878, obtained a verdict against the defendant, Records, for $1764.07, on which judgment was subsequently entered. On the 1st of March, 1881, he issued an attachment sur judgment, in which the Tradesmen’s National Bank was summoned as garnishee, returnable to the first Monday of March then instant. This attachment was duly and in proper form, upon the same day, served on- the garnishee, and a proper return of the service was made by the sheriff. At the time of the service of this attachment, there was the sum of $2300 in cash in the hands of the garnishee, belonging to the defendant. A plea of nulla bona was filed by the garnishee.

      On the 21st of February, 1881, J. B. Lippincott issued an attachment, under the Act of March 17th, 1869, entitled “An act relative to fraudulent debtors,” out of Court of Common Pleas, No. 2, for Philadelphia County, in which E. J. Records was defendant, and summoning, inter alia, the Tradesmen’s National Bank as garnishee. This attachment was returnable the first Monday of the succeeding March, and the sheriff made return as follows:
    “Attached as within commanded and made known to Tradesmen’s National Bank, by giving, February 21st, 1881, at 10 o’clock and 30 minutes a.m., a true aud attested copy of the within writ to John Castner, cashier of said bank, and making known to him the contents thereof; also Fidelity Trust and Safe Deposit Company, by giving, February 25th, 1881, at 10 o’clock and 42 minutes p.m., a like copy to John B. Gest, vice-president of said company, and making known to him the contents thereof; also Fire Association, by giving, February 28th, 1881, at 11 o’clock and 85 minutes a.m., a like copy to A. Loudon Snowden, president of said association, and making known to him the contents thereof; and by giving,. March 3d, 1881, at 12 o’clock and 15 minutes p.m., a like copy to E. J. Records, defendant, and making known to him the contents thereof.”
    At the time of the service of this attachment, the sum of $2300, before mentioned, was in the hands of the garnishee. This money had been previously deposited as a usual bank deposit, and was mingled with its other funds. On the 28th day of March, 1881, judgment was entered in this attachment against the defendant for want of an affidavit of defence, and the damages were assessed at $12,094.12.
    The Court entered judgment for the garnishee on the case stated.
    The plaintiff then took out a writ of error, assigning as errors the entry of judgment for the garnishee, and the refusal to enter judgment for the plaintiff for the sum of $1764.07.

      Alex. Simpson, Jr., for plaintiff in error.
    There is but one question for decision, and that is, whether or not the writ of attachment, under the Act of 1869, was properly served and returned so as to obtain a prior claim upon the fund as against the attachment sur judgment.
    The subsequent attaching creditor may contest the right of the plaintiff under a prior writ as to his lien: Reed’s Appeal, 21 P. F. Smith, 378.
    Proceedings under the Act of 1869 are like those in foreign attachment: Cornman’s Appeal, 9 Norris, 256; Brenner v. Moyer, 10 W. N. 0., 565.
    The legislature has laid great stress upon the delivery of an inventory of the property or thing attached, for they require it in every contingency provided for in the act. But, in this case, no inventory was either made or delivered, though, as appears by the return, the defendant was found within the county. Hence, the service and return was fatally defective, and no lien was acquired upon the fund in the hands of the bank, though the judgment against the defendant, under section 4 of the act, — MeCallum v. Hodder, 2 W. N. C., 185; Sharpless v. Ziegler, 11 Norris, 467; Brenner v. Moyer, 10 W. N. C., 565, — may be valid.
    In New York, in the case of similar attachments to this, under section 235 of the code, which requires that a notice showing what is attached should be left with the garnishee, it has always been held that such notice is requisite, though the thing attached be money in bank, or a chose in action: Orser v. Grossman, 4 E. D. Smith, 443; Euhlman v. Orser, 5 Duer, 242; Wilson v. Duncan, 11 Abb. Pr., 3; Harman v. Remsen, 2 Abb. (N. S.), 272; Wood v. Orser, 25 N. Y., 353; otherwise no lien was acquired by the attachment.
    The sheriff returns “attached as within commanded and made known to Tradesmen’s National Bank, by giving, February 21st, 1881, at 10 o’clock and 30 minutes p.m., a true and. attested copy of the within writ to John Castner, cashier of said bank, and making known to him the contents thereof,” etc.
    It is not a sufficient return to simply return “ attached,” but the sheriff should have returned what he did, and the Court would then have decided whether he really did attach. This is required by the very wording of the writ: Drake on Attachment, sec. 205; Wistar v. The City, 5 Norris/218; Page v. Generes, 6 La. An., 551; Nichols v. Patten, 18 Maine, 231.
    Besides this, both the act and the writ require that the sheriff shall summon the parties in whose hands money, etc., is found, as garnishees, yet no such thing has been done here: Crizer v. Gorren, 41 Miss., 563. He simply attaches and makes known. Makes known what? Why, evidently that he has attached. He does not summon any one; he mentions no garnishees. He is not required to “make known” as in the ordinary attachment sur judgment, but he is required to attach and summon the garnishees, and return how he executed the writ. None of these essentials have been complied with: Eittredge v. Emerson, 15 N. H., 239; Crizer v. Gorren, 41 Miss., 563.

      John G. Johnson, for the garnishee and J. B. Lippincott, defendants in error.
    1. The rem attached in this case was a bank deposit, the amount of which was not, and could not be, known to the plaintiff or to the sheriff until after the return day of the writ. It was therefore impossible to serve the defendant with an inventory of what was necessarily unknown. The act provides no machinery for ascertaining, in advance, the nature and character of the thing attached, where it is a debt due, a deposit, or the like. To require what is claimed by the plaintiff in error to be necessary will render it almost impossible to attach choses in action.
    The inventory was intended to be required only where goods and chattels were attached, which, being visible, were capable of being inventoried simultaneously with the seizure. 11 was to be an “ inventory of the property or other thing attached.” In this case there was no thing attached. The right in action was in the hands of a corporation, not the party defendant. The bank, in whose hands it was found, was summoned as garnishee, and there was no actual seizure. An inventory is defined by Worcester to be “an account or catalogue of goods or movables;” .... “a list or schedule in writing, of the goods, chattels, and credits (sometimes of the real estate), of a testator, or intestate, made by an executor or administrator.”
    2. The act fixes no time for service upon the defendant of the inventory. It certainly, if it requires an inventory in a case like the present, does not mean that it shall be furnished in advance of the time at which the information necessary to make it can be obtained. There can be no necessity, therefore, for the service until after such obtaining, namely, after the filing by the garnishees of the answers communicating what is necessary to be known, which answers do not appear to have been filed anterior to the decision of this case in the Court below.
    3. The act does not require that the sheriff shall return the inventory to the Court, nor the fact of his service of the same. He may have made the service for aught that appears. His return states all that is required, viz., the service of the writ, and the manner of such service. This is all he was required to return.
    4. The proceedings under the Act of 1869 are twofold: First, the attachment of a rem, and, secondly, a service of process upon the defendant. The rem in this case was attached in accordance with the requirements of the act, and the lien of the creditors thereon was complete. After this was done, neither the garnishee, nor any subsequent creditor, had a right to contest the lien thus obtained. Even though we concede that the service of the process upon the defendant involved a service of both inventory and writ, it was for him alone to object to any defect in such service which was independent of the attachment and not a part thereof. Service of the inventory was for the defendant’s benefit only, and not for that of the garnishee. Even if he had a right to object to the manner of the service, he did not do it in the present case, and judgment was entered against him, which concludes himself and everybody else, and renders it impossible to question collaterally its validity or that of the steps which led up to it.
    April 3d, 1882.
   — Per Curiam:

The attachment, under the Act of March 17th, 1869, was duly served, and regularly returned. The lien of it, therefore, attached, and the subsequent irregularity of not serving a copy of the inventory on the defendant could only be taken advantage of by the defendant, and cannot avail a subsequent attaching creditor.

Judgment affirmed.


source: Caselaw Access Project

author: — Per Curiam:

license: Public Domain

text:
    January Term, 1882,
    No. 305.
    April 7th, 1882.
    Howard’s Appeal.
    1. A testator left real estate to his executors in trust to sell “in fee simple” for cash, or on credit, or on ground-rent, at such times and in such parts as to them should seem best, to invest the proceeds, and pay over the net income to his daughter, A., for life, for her sole and separate use, and upon her death to such child of A. and issue of deceased child as she should appoint, and, in default of appointment, to the children of A. then living and the issue of deceased children equally; and, for want of such child or issue, to such persons as would under the intestate laws of Pennsylvania be entitled if A. had died seised in fee unmarried and intestate. The executors conveyed a portion of the real estate, reserving a ground-rent. A. died without issue, leaving as next of kin a sister, B., and C., the daughter of her deceased brother. By agreement of partition the ground-rent was conveyed to C., who died a minor, unmarried, leaving a mother, D., who was not of the blood of the testator. Held,, that D. took a life estate in the ground-rent, and that the fee was vested in B. and her heirs.
    2. The option given to the executors to let on redeemable ground-rent, which, in point of fact, they exercised, prevented the will from working an equitable conversion of the real estate.
    3. In order to work such a conversion, the direction to sell for cash must be absolute and unconditional.
    4. Burr v. Sim, 1 Wharton, 252, distinguished.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, and Green, JJ. Sterrett, J., absent.

      Appeal of William J. Howard and Sophia B., his wife, from ¡¡the decree of the Court of Common Pleas No. 2, of Philadelphia County.

    Bill in equity, by Uriah W. Stokes against William J. Howard and Sophia B., his wife, Charles G. Poúlson and Susan!! A., his wife, and the Provident Life and Trust Company,! trustees of the- said Susan A. Poulson, to determine whether the said Sophia B. Howard was the life tenant or owneif in fee of a certain ground-rent issuing out of land owned by the plaintiif.
    The case was heard in the Court below upon bill and answer, from which the facts appeared as follows:
    John Angue, Jr., died prior to January 12th, 1848, leaving a will, in which he devised, inter alia, to his executors a lot on Spruce Street, in trust, “ to sell and dispose of the same in fee simple for cash, or on credit, or on ground-rent, with the usual right or power for the purchasers to extinguish the ground-rents at any time within seven years from the date of the respective deeds, at public or private sale, at such time or times, and in such parts, portions, or lots as to my said executors shall seem best, and thereupon from time to time to sign, seal, execute, acknowledge, and deliver in due form of law all and every such deed or deeds, conveyances and assurances in the law as shall be necessary and proper to grant, convey, and assure the same unto the purchaser or purchasers thereof, his, her, or their heirs and assigns forever, exonerated from all liability for or on account of the application of the purchase-money or ground-rents reserved therefor, and to invest the moneys or proceeds of such sale or sales as soon as may be after receiving the same from time to time in good and secure mortgages as aforesaid, or in such other securities or investments as are or shall be authorized by law as they, my said executors, shall think best.” The testator then directed his executors to collect the interest and income from the trust estate, and pay over the net amount to his daughter, Charlotte E. Angue, upon her receipt, during all the term of her natural life, for her sole and separate use ; and, upon her decease, to convey the trust estate to such of her children or their issue as she should appoint; and upon her decease, in default of appointment, to convey the same to her children and the issue of her deceased children in equal shares, the issue of any deceased child taking the share its parent would have taken if living; “and for want of such child, children, or issue, then to grant, convey, and assign the same to such person or persons as would under the intestate laws of Pennsylvania for the time being be entitled thereto, in case she, the said Charlotte, had died seised and possessed thereof in her own right, unmarried and intestate, in such manner and for such quantities of estate as such person or persons would in such case be •entitled to.”
    The executors conveyed a portion of the lot, reserving the ground-rent in controversy unto themselves, “ executors and trustees aforesaid, their heirs and assigns, in trust for the uses and purposes mentioned.” It was a redeemable ground-rent of $150 per annum.
    Charlotte E. Angue survived her father, died intestate and without issue, leaving surviving her as her next of kin a sister, Margaret L. Wilson, and a niece, Anna Maria Angue, who was the child of Albert D. Angue, a son of the testator. The mother of Anna Maria Angue was the defendant, Sophia B. Howard, who was the wife of Albert D. Angue at the time of his death. At the time of the death of Charlotte E. Angue an agreement was made between Margaret L. Wilson and the guardian of Anna Maria Angue, dividing the estate between them, and the ground-rent in question was conveyed by the executors to Anna Maria Angue in fee. She died in March, 1866, a minor, and so seised.
    Margaret L. Wilson died in January, 1871, a widow and intestate, leaving one child, the defendant, Susan A. Poulson. The Provident Life and Trust Company is trustee for her, under a deed of trust made by her in anticipation of her marriage with Charles (x. Poulson.
    Sophia B. Howard is not of the blood of the testator. She claimed to inherit from her daughter in fee, which claim was resisted by the trustee of Mrs. Poulson.
    The owner of the ground, wishing to extinguish the rent, filed his bill for the purpose.
    The Court below decreed, inter alia, “ that the right and title of the parties defendants herein to the yearly "ground-rent of one hundred and fifty dollars ($150) per annum, specified in the said bill at the time of filing thereof, was vested in them respectively in manner following, and not otherwise: that is to say, in Sophia B. Howard, one of the defendants, for her life, and the remainder thereof, in fee simple, to come into possession after the death of the said Sophia B. Howard, in the said the Provident Life and Trust Company of Philadelphia, their successors and assigns, in trust for the uses declared in the marriage settlement of Mrs. Susan A. Poulson.”
    William J. Howard and Sophia B. Howard then appealed, assigning as error the making and entering of the above decree.

      Robert JY. Willson, for the appellants.
    There can be no question that if the trust had been to sell the real estate for cash, or on credit alone, the descent would have been broken, a conversion would have been effected, and any person entitled to take any portion of the real estate, taking it as such by election, would have acquired it as first purchaser: Burr v. Sim, 1 Wh., 252; Allison v. Kurtz, 2 W., 185; Simpson v. Kelso, 8 W., 247; Gray v. Smith, 3 W., 289; Morrow v. Brenizer, 2 R., 185; McClure’s Appeal, 22 P. E. Smith, 414.
    In the case in hand, the trust was to sell either for cash, on credit, or on ground-rent, but it will be observed there was an out and out devise to the executors, and the manner of taking the consideration was left entirely to their discretion. Besides, the ground-rents which they were authorized to reserve were by the terms of the will to be of a redeemable kind, thus showing an intent on the part of the testator to provide for the conversion of the real estate into personalty at some time, in any event.
    Moreover, the ground-rents which might thus be created, by the act and in the discretion of the executors, would not be, and were not, when they actually did come into existence, either the same, or a part of the same estate, which the testator devised to the executors: Skerrett v. Burd, 1 Wh., 250; Robb v. Beaver, 8 W. & S., 107.
    . Moreover, it cannot be doubted that it is perfectly competent for a testator, either by express provision, or by an implication which amounts to the same thing, to make a disposition of his real estate which will not be affected by the proviso: See. 9, Act April 8th, 1833.
    It is contended that, by the concluding sentence of the before-recited clause of the will, the testator directed a final disposition of the property, to which the clause related, entirely independently of any connection with himself as the stirps or source from which it came. It is true that the person who was to be treated as the stirps, for the purpose of designating those to whom the property, real and personal, was to be assigned .and conveyed, was of his blood, but this does not affect the correctness of the assertion that he cut himself off from the line of blood connection with the title by the direction referred to: Johnson’s Appeal, 7 Norris, 346.

      J. B. Townsend, for the appellees.
    Anna Maria Angue was the intestate. She derived this property by the provisions of the will of her grandfather, John Angue, as his devisee, or by descent from her aunt, Charlotte Angue. It is not material for the purposes of this inquiry to determine which, as her mother is not of the blood of either of them, and therefore the mother is clearly excluded by the terms of the 9th section of the Act of April 8th, 1833, unless it can be shown by the record that some changes have been made which oblige the Courts to treat Anna Maria as a purchaser not deriving title by descent, gift, or devise from, an ancestor or other relation.

    It has been settled that a mother cannot inherit from her daughter lands which descended to the latter from her father: Walker v. Smith, 3 Yeates, 480; Shippen v. Isard, 1 S. & R., 226; Simpson v. Hall, 4 S. & R., 337; Bevan v. Taylor, 7 S. & R., 397; Baker v. Chalfant, 5 Whar., 477; Danner v. Shissler, 31 Penna. St., 289; Roberts’s Appeal, 39 Penna. St.,417; Walkers. Dunshee, 38 Penna. St.,430; McWilliams v. Ross, 46 Penna. St., 369.
    Whether the mother can take an inheritable estate from the daughter is always solved by the answer to this question : Did the daughter acquire her estate as a volunteer; that is, by gift, devise, or descent from an ancestor or relative, or was she purchaser, acquiring title otherwise? Maffit v. Clark, 6 Watts & Sergeant, 262; Hart’s Appeal, 8 Barr, 37; Lewis v. Gorman, 5 Barr, 165; Parr v. Bankhart, 10 Harris, 291; Montgomery v. Petriken, 5 Casey, 118; Roberts’s Appeal, 3 Wright, 417; Kinney v. Glasgow, 3 P. F. Smith, 141; Scott’s Intestate Law, 289.
    The power in the will authorized and justified the exchange of one piece of realty into another piece of realty, and the new parcel was taken with the impress upon the title that it was taken and held in trust for the same uses and purposes for which the lot was held. It was a substitution of one parcel for another of the same species. That the will also gave a power of conversion into personalty, if the executors chose to exercise it, goes for nothing, as they did not exercise the alternative power, Every heir who takes by descent or gift from an ancestor or relative has as absolute an estate in fee, and therefore as full power to sell and convert as any other owner; and yet, if such heir dies seised of such estate, unconverted, it goes to the relations on the side of that ancestor from whom it came.
    So here there was no conversion from realty into personalty, and the course of descent was not altered. There was no mandatory direction that a conversion into personalty should be made.
    April 17th, 1882.
   — Per Curiam:

The contention of the appellant in this case rests entirely on the assumption that the will of John Angue, Jr., worked an equitable conversion of the lot, the proceeds of which are in controversy, and that, as a consequence, Anna Maria Angue took as a purchaser, according to the principle of Burr v. Sim, 1 Whar., 252. We are of opinion, however, that as there was an option given to the executors to let on redeemable ground-rent, which in point of fact they exercised, the case is not within the line of cases relied on. The direction to sell for cash must be absolute, unconditioned, in order to work a conversion. Here the executors had the discretion either to sell for cash or to convert the lot into real estate of a different kind. It follows that the decree of the learned Court below was right.

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


text:
    January Term, 1882,
    No. 304.
    March 27th, 1882.
    Levering versus Willard et al.

    1. A. and B. agreed with C. that they W'ould “ furnish lumber to be used in the aforesaid houses (as ordered by the saidO.), delivered on the ground, and will charge therefor the following prices per thousand feet,” specifying certain kinds of lumber and prices, and “ will accept in settlement of their bills, rendered for the materials as above, one-half thereof in cash monthly, on the first day of every month, and one-half thereof in good improved first mortgages.”
    I), covenanted with A. and B., “that the payments agreed to be made to them in said agreement, shall and will be made in the manner and form in said agreement mentioned, for ail the lumber delivered to the ninety-eight houses in said agreement mentioned.” A. and B. furnished lumber to C., some of which was not of the kinds and prices specified in the agreement. Both O. and D. made payments on account.

      Meld, that D.’s covenant was a contract of suretyship and not of guarantee.

      Meld, further, that it was not restricted to the kinds of lumber and prices specified in the agreement between the original parties.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkev, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas, No. 3, of Philadelphia County.

    Covenant by Edward Willard and David H. Kochersperger, trading as Willard & Kochersperger, against William A. Levering, upon an instrument under seal, covenanting that certain payments agreed to be made by one S. R. Good would be made.
    Upon the trial in the court below, before Ludlow, P. J., the following facts appeared.

      The plaintiffs and Good entered into an agreement, dated December 8th, 1877, reciting that Good, a builder, had in course of erection ninety-eight houses, on a lot of ground on Aspen Street, and providing that the plaintiffs “ will furnish lumber to be used in the aforesaid houses (as ordered by the said Good), delivered on the ground, and will charge therefor the following prices per thousand feet.” The agreement then set forth certain kinds of lumber and the prices, and provided further that the plaintiffs “ will accept, in settlement of their bills rendered for the materials as above, one-half thereof in cash monthly, on the first day of every month, and one-half thereof in good improved first mortgages,” etc.
    January 4th, 1878, the defendant covenanted and agreed, by an instrument under seal, with the plaintiffs, “ that the payments agreed to be made to them in said agreement shall and will be made in the manner and form in said agreement mentioned, for all the lumber delivered to the ninety-eight houses in said agreement mentioned; provided, however, that I am not to be responsible for any such lumber delivered in excess of fifteen thousand dollars.”
    Plaintiffs claimed for lumber sold to Good, to the amount of $5887.45, and admitted credits of cash paid by him of $2250, and a mortgage transferred as cash by Levering for $2375. The plaintiffs gave a receipt for this mortgage, dated August 30th, 1878, setting forth: “ This assignment is made and received in payment of the sum of twenty-three hundred and seventy five dollars, for lumber furnished by us to S. R. Good, and unpaid by him, for the buildings at Thirty-ninth and Aspen streets, upon a certain contract, dated December 8th, 1877, between us and S. R. Good ; and for the payments thereunder by S. R. Good the said W. A. Levering is responsible.
    “By virtue of this assignment, we hereby release W. A. Levering as guarantor for the payments under the contract by S. R. Good, except for the balance of twelve hundred and sixty-two dollars and forty-five cents, still due us over and above the said sum of twenty-three hundred and seventy-five dollars.”
    The defendant testified that he signed the guarantee; that he had a conversation with Willard in regard to prices, that he was desirous of confining his liability, and that the only agreement made was as to the articles specified.
    He further produced evidence to show that part of the claim, amounting to $938.75, was for items of lumber not specified in the agreement of December 8th, 1877, and that upon other items there were charges amounting to $181, and $237, beyond the rates named in that agreement.
    Counsel for the defendant presented, inter alia, the following points:

      I. That the instrument on which suit is brought is a guarantee, and plaintiffs, not having shown that they pursued the original and primary debtor, cannot recover against the guarantor.
    3. That even if this contract be considered a contract of suretyship, Levering only agreed to become surety for the payment of money for certain kinds of lumber, specified in the original contract between Good and plaintiff.
    4. As Levering guaranteed payment for lumber of a certain quality and kind, and the evidence shows that the lumber furnished was of a different kind, he is only liable for the value of the kind of lumber he guaranteed.
    5. As defendants in this case guaranteed payment for a certain kind of lumber, and that kind was not furnished, he is not liable at all.
    II. The plaintiffs must show that .they used all reasonable diligence ■ to compel payment by Good. If they have not done so, then they have no claim against the defendant under the guaranteed contract.
    The Court refused the 1st, 3d, 5th, and 11th joints, and, as to the 4th, said, “ Refused, if by this point it is intended to say, that Levering was only liable for the lumber mentioned in the contract between Good and plaintiffs.” He charged the jury, inter alia:

    “ You have heard this instrument called a guarantee. [I may say here that, in point of law, although the word guarantee is used, it is the opinion of the Court, that the instrument is a contract of suretyship.] A surety agrees to pay if the principal debtor does not; a guarantor if the principal debtor cannot. In the first place, the creditor need not press the original debtor, but in a guarantee he must show that the debtor cannot pay. That is the law.
    “ [Now I say that this is an agreement to pay at all events, and therefore an agreement to pay if the other debtor does not, and not if he cannot.]
    “ Assuming then that this is so, there is another and very nice question. [I instruct you, as a matter of law, under the original agreement between Willard & Kochersperger and S. R. Good, that by the terms thereof, the lumber to be provided is lumber to be generally furnished, and not only the special lumber mentioned in said agreement.]
    “ The reason is this :
    “ In the first clause of the instrument it is specified, that ‘ they will furnish the lumber to be used for ninety-eight houses, etc.' [and it is not anywhere stated that the only lumber for the payment for which Levering in his agreement undertakes to be responsible, is that which is specified in this agreement between plaintiffs and S. K.. Good].
    “ [While I agree that no sum can be charged for lumber specified in this agreement beyond the price agreed on, a fair price can be charged for other lumber, not therein mentioned by description or price.] This was a large operation, and it is not denied that certain lumber was used covered by the terms of the guarantee.
    “ If you believe that this extra lumber was furnished, the ease of the plaintiffs rests further on the admission of defendant that some twelve hundred dollars was due. Witnesses have said, that a receipt was signed by Willard & Kochersperger for the benefit of defendant, and this receipt is produced. The witness, Moore, says, that Willard and he and Levering were present, and the ideas were given him by Willard and Levering, and that the balance was due when called for. Good was examined to show, that, in a settlement between Levering, Sprogell and the witness, the claim of the plaintiffs was an item in his account with the parties, and the balance was offset by transfer of properties by Good to Levering. This paper is a release of defendant from his liability under the guarantee, except for the $1262.45, therein mentioned. Again, there is the letter of July 15th, 1878. This is the plaintiff’s case in brief.
    “ [The defence is, that for certain lumber plaintiffs cannot recover, because it is not covered by the terms of the agreements between Good.and the plaintiffs, and the plaintiffs and defendant. This is not a sufficient defence under my construction of these agreements.]
    “ There is also in evidence a contemporaneous conversation between Levering and one of the plaintiffs -which I admitted. The defendants say that the guarantee was to extend only to the articles of lumber mentioned by description and price in the agreement of December 8th, 1877. [As to this agreement, it is a question of fact whether or not, under the evidence, it was modified by the parties to it so as to exclude all other lumber except that mentioned by description and price in the written agreement. That is a question of fact which I leave to you.]
    “Now we come to the release. The defendant says he never intended this as a final settlement, his idea being that when it was signed he was not aware of the exact amount due. It was in evidence that he had no knowledge of the amount due,but that it was suggested to him by the otherside. [If you believe that Mr. Levering was not aware of what he did, and simply executed the release under the impression that he was being relieved from further liability on his guarantee only, then you must give him the benefit of the doubt.]

      “ [Tt is alleged that the hemlock joists were charged for, some in one way and some in another, and not according to the agreement. It is for you to say whether this is so or not.]”
    Counsel for defendant excepted to the answers to the points, and to those portions of the charge within brackets.
    May 6th, 1880. Verdict for the plaintiffs for $1378.94, upon which judgment was subsequently entered.
    The defendant then took out a writ of error, assigning as errors the charge and the answers to the points as above set forth.

      'William Drayton, for plaintiff in error.
    The question as to whether this instrument is a guarantee or contract of suretyship, is a very nice one, for, although an instrument closely resembling this in Gilbert v. Henck, 6 Casey, 205, is called a guarantee, yet, in Reigart v. White, 2 P. F. S., 438, this is criticised, and still more so in Frechie v. Drinkhouse, 4 W. N. C., 298. And a careful examination of the difference between those cases where the guaranty is general and where it is special shows this distinction. Where the agreement is for the payment of a definite sum or, what is the same thing, for the payment of rent, which can be rendered certain, the contract is one of suretyship: Allen v. Hubert, 13 Wr., 259; Seltzer v. Greenwald, 2 W. N. C., 395; Ashton v. Bayard, 21 P. F. S., 139; Campbell v. Baker, 10 Wr., 245. _
    _ If Levering is a surety, what are his responsibili ties ? They are limited by the contract which he makes, and cannot be carried beyond it. This principle is settled by every case both in England and this country. It is enunciated in Stoughton v. Day, Aleyn, 10; Arlington v. Merricke, 2 Saunders, 403: Miller v. Stewart, 9 Wheaton, 680; Hibbs v. Rue, 4 Barr, 352, in Pennsylvania; Bank v. Barrington, 2 P. & W., 27; Dundas v. Sterling, 4 Barr, 79.
    Where a guarantee was made at the same time as the agreement, to which it is collateral and is contained in the same instrument or indorsed thereon, the whole is to be taken together as an entire instrument: Meriden Britannia Co. v. Zingsen, 48 N. Y., 247; Morss v. Salisbury, 48 N. Y., 636; Rogers v. Kneel and, 10 Wend., 219; Adams v. Hill, 16 Ále., 215; Blim v. Torode, 4 Phila., 118.
    From these authorities we are entitled to say that these two agreements, of December 8th, 1877, and January 4th, 1878, are to be read together, and all that Levering is liable for is what Good agrees to pay for in his contract with plaintiffs.

      M. Hampton Todd, for defendants in error.
    It is a contract of suretyship. It is not a contract that if Good is unable to pay Levering will pay, but it is a contract that if Good does not pay Levering will pay. The language is, “ That the payments agreed to be made to them in said agreement shall and will be made in the manner and form in said agreement mentioned for all the lumber delivered to the ninety-eight houses in said agreement mentioned.”
    The “manner and form” was one-half cash and one-half mortgage. The cash monthly, and the mortgage when due, i. e., when lumber was delivered in an amount sufficient that one-half thereof would be equal to the amount of the mortgage.
    The distinction between a suretyship and a guaranteeship is, “ That a guaranteeship is where one contracts that another is able to perform, and a suretyship is where one assumes to perform the contract of the principal debtor if he should not:” Eeigart v. White, 2 P. F. S., 438 ; Kramph v. Hatz, Id., 525.
    “ I do hereby guarantee to Sherman & Go. the payment of contract made by them with Davis & Woods to the amount of ten thousand dollars,” was held in Woods v. Sherman, 21 P. F. S., 100, to be a suretyship, the Court saying: “If we substitute any other word .... for the word guarantee, as ‘ promise, agree, or undertake,’ there can be no doubt that the writing would impart an absolute and direct engagement for the payment of the contract.”
    The plaintiff in error says that the broad language of the obligation signed by him, when it says he is responsible for the payment “for all the lumber delivered to the ninety-eight houses in said agreement mentioned,” is to be restrained by the language of the agreement with Good, so as only to include the lumber for which prices are given in the agreement.
    We think there are three good answers to this view:
    (A) It is not the true construction of the agreement with Good.
    (B) It is not the construction placed upon the agreement by the parties. ”
    ” (C) That even conceding, for the sake of argument, that the construction contended for by the plaintiff in error is correct, it would be inequitable to allow him to take the fruits of the receipt of August 30th and to charge the full amount of this bill in his settlement with Good, and at the same time repudiate his liability for this lumber.
    April 10th, 1882.
   — Per Curiam:

We think that the undertaking of the defendant was an original contract of surety-ship, not a guarantee. It was that the payments should be made in the manner and form mentioned in the agreement for all the lumber delivered to the houses. We think, upon the construction of the agreement and the subsequent transactions , between the parties, it was not restricted to the kinds of lumber and prices specified in the agreement between the original parties.

Judgment affirmed.


author: — Per Curiam :

text:
    January Term, 1882,
    No. 183.
    March 20th, 1882.
    The Lombard and South Streets Passenger Railway Company versus Steinhart.
    1. A child six years and six months old cannot be held responsible for contributory negligence.
    2. In a suit by such a child against a passenger railway company for injuries caused by its being run over by one of the defendant’s cars, there was evidence that the driver of the car was intoxicated; that he was driving at a rapid rate of speed; and that he was looking sideways, and talking to a man on the platform. The Court charged the jury: “If you find that the driver, at the time of the accident, was not looking at the track ahead of him, owing to his talking with a person on the platform, or to his looking around, or for any other cause, then this is evidence of negligence on the part of the defendant.” Held, that it was not error.
    3. The Court further charged: “If you believe that the injury in question was caused by the negligence of the driver in driving too rapidly, or in not watching the track, or in any other manner, and the injured boy had not capacity to appreciate the danger and avoid it, so far as any act on his part contributed to the injury, that incapacity shields him from responsibility for any act of his contributing to the injury, although such act would have been contributory negligence in an adult, defeating" his recovery, and your verdict should be for the plaintiff.” Held, that it was not error.
    4. The Court further charged: “If you believe the injured boy, in trying to run across the street at the crossing, acted according to the habitual impulse of a child of his age, under all the circumstances, and the defendant was guilty of negligence in any of the modes aforesaid, or otherwise, and the injury resulted therefrom, your verdict must be for the plaintiff.” Held, that it was not error.
    5. The Court declined to .charge that: “ If the jury believe from the evidence that the plaintiff ran between the horses and the dasher of the car, then this act caused the injury and the defendant was guilty of no negligence, and your verdict must be for the defendant.” Held, that it was not error .
    6. The Act of April 4th, 1868, limiting the amount of damages to be recovered, is unconstitutional as to a company which, by resolution of its stockholders, formally accepted the provisions of the act prior to the adoption of the constitution of 1874.
    7. Central Railroad Co. of N. J. v. Cook, 1 W. N. 0., 319, and Passenger R. W. Co. v. Boudrou, 11 Norris, 475, followed.
    8. The conductor of the car having testified for the defendant that he and the driver were both sober at the time of the accident, and the driver was probably capable of taking care of the car, the Court permitted counsel for plaintiff, upon cross-examination, to ask him what time he and the driver went to work that morning, and what time they made the last trip the night before. Held, that it was not error.

      Before Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Sharswood, C. J., absent.
    Error to the Court of Common Pleas, No. 1, for Philadelphia County.

    Case by Myer Steinhart, by his next friend and father, Philip M. Steinhart, against The Lombard and South Streets Passenger Railway Company, to recover damages for injuries to the plaintiff, alleged to have been caused by the negligence of the employes of the defendant.
    Upon the trial in the Court below, before Peirce, J., the following facts appeared:
    The plaintiff, a child six years and six months old, living with his parents at 532 South Street, in Philadelphia, was sent by his father, on the 21st of August, 1880, to the northeast corner of Sixth and Lombard streets to bring a doctor for his mother, who was ill. It was about 5.45 p m. On returning from the drug store he attempted to cross from the north side of Lombard Street to the south side. One of the cars of the defendant was going eastward on Lombard Street, and it ran over the plaintiff, crushing both of his legs. He was taken to the Pennsylvania Hospital and both of his legs were amputated above the knees. The testimony as to how the accident occurred was conflicting.

      Isaac Silberman, for the plaintiff, testified, inter alia: “ The boy came out of the drug store and ran over the street. The car came quick, and the horses knocked him down, and a man came and picked him up. The horses went so fast that he could not get past. So far as I saw the horses were going too fast......He was crossing nearly at the corner. The horses were going too quick......The driver was a little tight; if not, he could have stopped the car. The horses were going fast. The car was going faster than they usually go. He turned the brake after the child was under the horses. There was a man standing on the platform, I think, and the driver was talking to him. The driver was looking sideways, and, if he had been looking ahead, he could nave stopped the car.”
    On cross-examination he said:
    “ The boy crossed at the usual place......I saw the horses knock the child down. ..... The horses ran into the child.”

      Elizabeth Riley, for the plaintiff, testified, inter alia: “The driver was whipping his horses and going fast.”

      George Burnell, for the plaintiff, testified, inter alia: “My attention was drawn to the car by the unusual rate of speed the car was going at.....The driver in particular was under the influence of liquor. He was drunk and unfit to take charge of the car. I know the driver.”

      Rben Cooper, for the plaintiff, testified, inter alia: “ The driver looked like as if he was intoxicated......The car was coining down faster than usual.”

      Charles Bassett, for the plaintiff, testified, inter alia: “ I saw the boy coming out of the drug store, and either the horses or the pole struck the boy, I could not see which.”

      Henry M. Wetherill, Jr., for the plaintiff, testified that he was surgeon at the hospital, and described the injuries and amputation. On cross-examination he said:
    “ I observed slight bruises only on body, such as might have been occasioned by falling.”

      Thomas Burns, for the defendant, testified, inter alia: “ I was conductor of the car......We crossed Sixth Street at the usual rate. There was a car going down Sixth Street. The driver slacked up to let this car pass. He did not have time to get up fast rate after the Sixth Street car passed. .....The accident occurred just below Sixth Street. The crossing was clear. The driver, when we had crossed Sixth Street, put the brake on with such force as to throw me in the doorway. I jumped off and found the boy clear of the car in the centre of the track......He was some distance from the flagstones, — the length of the car from the flagstones. Boy was sitting up with back to south track. .....To the best of my knowledge he-(the driver) was in a sober condition. He was probably capable of taking care of the car. I was perfectly sober.”

      Robert Moore, for the defendant, testified, inter alia: “ I was a car driver......A Sixth Street car was passing there. I braked up a little until the car passed.....I then looked ahead. I had a clear track, — nothing ahead. When I got on the other side of Sixth Street, about six feet from the crossing, was an iron plate or covering. I recollect the little head laying there on the plate in the middle of the track. I could not pick the boy up, but I braked the car as quick as I could. It was six feet from the east side of the crossing. I never saw a bit of the child until I saw him between the swingle-tree and the dasher on the ground. He was lying in the middle of the track, six feet east of the flagging, between the swingle-tree and the dasher. The pole could not have knocked the child down.”
    On cross-examination he said:
    “ The first I saw of the boy he was lying between the two tracks, about six feet from the crossing. His head was east, and was about the plate.”

      Thomas Burns being recalled, upon cross-examination was asked:

      “ Q.. What time did you and the driver go to work on that morning ? ”
    Under objection and exception the witness answered, “ About 6.30.”
    “Q. What time did you make your last trip the night before?”
    Under objection and exception the witness answered: “I couldn’t say that I was working the night before. The car finished its trip the night before about thirteen minutes after twelve, midnight, if it was on time, and started out at 6.30 next morning. The depot is at Twenty-fifth and South streets.”

      Charles Kersclmer, for the defendant, testified, inter alia: “ I saw a little boy running across the street......He was from the drug store. He was going across the street south......I saw the boy knocked down and car went over him. He seemed to have something white in his hand. .....The ear was coming across Sixth Street. The boy was running across the street, and ran between the dasher and the swingle-tree of the car and was knocked down. That was the last I saw of him until the ear ran over him. He wms then about three feet east of the flagging-stones on Sixth Street, when he ran between the swingle-tree and the dasher.”
    On cross-examination he said: “ I think the boy ran between the horses and the dasher. Behind the horses is a swingle-tree......The space between the dasher and the swingle-tree is a foot and a half. The boy ran in this space.”

      William J. Mitchell, for the defendant, testified, inter alia: “ At the hospital the boy made a remark, when his father came to him and spoke to him, ‘ Poppy, I did not see the car, or I should not have run into it.’ ”
    There was further testimony that the car was going at an ordinary rate of speed. The defendant, at a special meeting of the stockholders, held April 20th, 1870, had by resolution accepted the provisions of the Act of Assembly of April 4th, 1868.

      Philip Steinhart, for plaintiff, testified, in rebuttal: “The child was lying in the hospital. He said, ‘ I did not see the car.’ He said, ‘ If I had it would not have happened.’ ”
    Counsel for plaintiff asked the Court to charge, inter alia-:

    “ 3. If you find that the driver, at the time of the accident, was not looking at the track ahead of him, owing to his talking with a person on the platform, or to his looking around, or for any other cause, then this is evidence of negligence on the part of the defendant.
    “ 4. If you believe that the injury in question was caused by tbe negligence of tbe driver in driving too rapidly, or in not watching the track, or in any other manner, and the injured boy had not capacity to appreciate the danger and avoid it, so far as any act on his part contributed to the injury, that incapacity shields him from responsibility for any act of his contributing to the injury, although such act would have been contributory negligence in an adult, defeating his recovery, and your verdict should be for the plaintiff.
    “ 5. If you believe the injured boy, in trying to run across the street at the crossing, acted according to the habitual impulse of a child of his age, under all the circumstances, and the defendants were guilty of negligence in any of the modes aforesaid, or otherwise, and the injury resulted therefrom, your verdict must be for the plaintiff.”
    The Court affirmed these points.
    Counsel for defendant asked the Court to charge, inter alia:

    “ 6. If the jury believe from the evidence that the plaintiff ran between the horses and the dasher of the car, then this act caused the injury, and the defendant was guilty of no negligence, and your verdict must be for the defendant.
    “ 7. In no event can the plaintiff recover more than three thousand dollars.”
    The Court refused these points, and charged the jury, inter alia:

    “The question for you to arrive at in the first instance is, was this injury caused by the defendant company? Now, you have heard the evidence upon that point. Thejule of law touching injuries of this character is that the party who is responsible for it must have been guilty of negligence. If there was no negligence on the part of the company, causing the injury, then there is no responsibility; and there is another principle of law, not only must that be so, but in ordinary cases there must have been no contributory negligence on the part of the plaintiff uffo has suffered the injury ; because, if he contributed to his own injury, even slightly, the law says he can have no recovery for that which was partly his own act. In other words, the law will not measure the extent of the responsibilities where there has been contributory negligence on the part of the plaintiff . . . As you shall find whether this accident was caused through the negligence of the driver, or by one of those unavoidable circumstances, or series of circumstances, by which an accident occurred without fault, that is, without such fault as the law recognizes, on their part, so should be your verdict. If the accident was caused by the agent of the company— the driver — through his want of attention, through his want of diligence, through his want of care, and if by any want of care which he could have exercised, or want of any attention, or if by any attention which he could have exercised, or any care which he could have exercised, the accident could have been prevented, but which occurred from want of this care and attention, then the company would be liable.
    “ Now, relatively to the duty of care on the part of the boy, the Supreme Court has said, in a case which is well known, which is also a city passenger railway company, where a child of ten years of age leaped off the front platform of the car and was injured, the Supreme Court said the plaintiff was a mere boy, and the law, because of his tender age and inexperience, does not exact of him the same degree of care and prudence that it does of a person of mature years. A boy’s capacity is a measure of his responsibility, and if he has not the ability to foresee and avoid the danger to which he may be exposed, negligence will not be imputed to him if he unwittingly exposed himself to it.
    “ Now that appears to be the law, gentlemen, with respect to the responsibility of a boy, so far as the question of contributory negligence is concerned. You will look at all the facts of the case, gentlemen, with that care that they deserve, and with that attention which I am sure you have already manifested in listening to the evidence in the case, and I am sure you will endeavor to do justice between these parties.
    “ In determining the case, you are not to press down upon the defendants because they happen to be a corporation, nor because they happen to be a street railway company. We have our duties, and they have their rights, as this little boy has his rights. And we are bound to do justice between the parties.
    “ Such companies are compelled, of necessity, to intrust the management of their cars to other people, and I suppose, ordinarily, they endeavor to do the best for themselves and for the public, in that respect, that they can. Their own interests would seem to induce them to do as well as they can for themselves, as well as for others; at the same time, they are bound to be careful in the selection of their servants, and not put an intemperate man upon their cars; not to put careless men upon their cars; not to put incompetent men upon their cars ; but to exercise such discretion and judgment as will tend to protect the citizen from injury by reason of that fact. And also, gentlemen, there would seem to be a duty with respect to a car approaching a crossing — a street crossing — of a more stringent character than when running ordinarily along a street at a place where there is no crossing. Of course, the driver must at all times see what is ahead of him. Children are sometimes in the street, in the middle of the square, going across the street, and injuries not infrequently happen. Therefore, there should be diligent attention and care at all points along the highway; but when the car approaches a crossing, it approaches a point where the citizen has a right of way to cross the street, and where he would naturally expect to find people crossing, and he should therefore give, if possible, a more strict attention to the discharge of his duty at that point than at any other place, whilst it is incumbent upon him at all times to be careful in the discharge of his duties.”
    Counsel for defendant excepted to the answers to the above points.
    November 3d, 1881. Verdict for the plaintiff for $4000, upon which judgment was subsequently entered.
    The defendant then took out a writ of error, assigning as errors the admission of the evidence under exception and the answers to the points as above.

      Mayer Sulzberger and William Botch Wister, for plaintiff in error.
    The evidence admitted was held to be error in Railway Co. v. Ilenrice, 11 Norris, 431.
    The fact that the questions were asked in cross-examination did not make them less irrelevant: Floyd v. Bovard, 6 W. & S., 75; Mitchell ®. AVelsh, 5 Har., 339.
    They did not tend to show bias or interest, and were designed to prejudice the jury: Hopkinson v. Leeds, 28 P. F. Smith, 396 ; Helser v. McGrath, 2 P. F. Smith, 531.
    Plaintiff’s points were stated in words too vague and general. The words “ or for any other cause,” “ or in any other manner,” and “ or otherwise,” should have been restricted to something that did, in fact, contribute to the accident. If the third point was properly affirmed, a driver can in no case properly look anywhere except at his horses’ heads.
    As to defendant’s sixth point:
    There were two kinds of negligence charged in plaintiff’s testimony:

      jFirst. Fast driving.

      Second. Drunkenness of the driver.
    But no matter how drunk a driver may have been, or how fast he may have driven, in the case submitted by the point neither the drunkenness nor the fast driving caused the boy to run into the car, and such drunkenness or fast driving was, in such, a case, no part of the accident. We asked the judge to say, that, if the jury believed from the evidence that the plaintiff ran between the horses and the dasher of the car, this act caused the injury.
    Surely, the learned judge should have affirmed it as put, instead of refusing it; for the same mischief would have been caused whether the car was going fast or slow.
    The intoxication and fast driving are, therefore, merely conditions, just as the position of the plaintiff in Boudrou v. Passenger Railway Company, 11 Norris, 475, was a condition: Fairbanks v. Kerr, 20 P. F. Smith, 86; Railroad Co. v. Boyer, 9 W. N. C., 497; Goshorn v. Smith, 11 Norris, 435; Baker v. Fehr, 10 W. N. 0., 56._
    As to defendant’s eleventh point:
    The defendant having accepted the Act of Assembly of April 4th, 1868, the act became a part of its charter, and the Constitution of 1874 was inoperative. For this reason, and because the plaintiff had, in fact, been guilty of contributory negligence, this case is distinguished from Railroad v. Cook, 1 W. N. C., 319; Passenger Railway Co. v. Boudrou, 11 Norris, 475.
    The decision in Boudrou’s case was pronounced with hesitation, and should be reviewed. Is it in violation of any constitutional provision to limit the application of the rule respondeat superior; Kirby v. R. R. Co., 26 P. F. Smith, 509; Rickard v. R. R. Co., 8 Norris, 193 ; Elliott v. City of Phila., 25 P. F. Smith, 347 ; Eriev. Caulkins, 85 Pa. St., 247 ; Norristown v. Fitzpatrick, 8 W. N C., 459 ; Freeman v. City of Phila., 7 W. N. C., 45.

      8. Edwin Megargee and Richard P. White, for the defendant in error.
    The defendants below, having asked the witness as to his own and the driver’s condition on that day, it was competent for us, in cross-examination, to ask the witness as to any circumstances which might qualify his testimony-in-chief, or which might test his accuracy, capacity, intelligence, bias, or reliability.
    There is scarcely any limit to the extent to which cross-examination may go. It is left to the sound discretion of the judge trying the case: Jackson v. Litch, 12 P. F. Smith, 454; Henderson v. Hydraulic Works, 9 Phila., 100 ; Clark v. Trinity Church, 5 W. & S., 266 ; Yeager v. Weaver, 1 Leg. Gaz., 156 ; Ott v. Houghton, 6 C., 452; Cameron v. Montgomery, 13 S. R., 128 ; Commonwealth v. Eaton, 8 Phila., 428.

      Plaintiff’s points followed: R. R. Co. v. Mulhair, 6 W. N. C., 508 ; R. R. Co. v. Hassard, 25 P. F. Smith, 311.
    If the company defendant was guilty of negligence, and the boy had not capacity to appreciate the danger, and avoid it, then, so far as any act on his part contributed to the injury, that incapacity shields him from responsibility, and does not defeat his recovery: Passenger R. Co. v. Hassard, 25 P. F. Smith, 367 ; Crissey v Passenger R. Co., Ibid., 83 ; Passenger R. Co. v. Caldwell, 24 Ibid., 421; N. P. R. Co. v. Mahoney, 7 Ibid., 187; Pa. R. R. Co. v. Kelly, 7 C., 372.
    Counsel for the defendant below, in its sixth point, not only asked the Court to decide what caused the accident, but also that their client had been guilty of no negligence.
    If the Court had affirmed this point, it would have removed from the jury a most important and vital point in the controversy: Pa. R. R. Co. v. Bock, 12 Norris, 427.
    April 3d, 1882.
   — Per Curiam :

In view of the fact that the plaintiff' had not reached an age to exercise discretion in avoiding the danger, he could not be held responsible for contributory negligence. The main question, then, was whether the negligence of the railway company caused the injury. While some of the evidence-was conflicting, yet there was amply sufficient, if believed, to justify the jury in finding it as a fact. There was evidence that the driver of the car was intoxicated, and driving at a rapid rate of speed, without giving that attention to the observance of any object on the track which his duty required. The case was well'submitted to the jury, in a full and adequate charge. There was no error in the answer to the eleventh point. We adhere to our decisions as to the unconstitutionality of the Act of 4th April, 1868, limiting the amount to be recovered as declared in Central Railroad Co. of N. J. v. Cook, 1 W. N. C., 319, and Passenger Railway Co. v. Boudrou, 11 Norris, 475.

Judgment affirmed.


text:
    July Term, 1881,
    No. 43½.
    January 25th, 1882.
    Maberry versus Dudley.
    1. Under a lease of a farm, giving the landlord a right to repair, it is no defence to a claim for rent that during the term the outgoing tenant, without tiie consent of the landlord, entered the bam to thresh, and while in his possession the barn was consumed by fire.
    2. Nor that by the fire the tenant was deprived of the use of any barn or outbuildings to the end of the term.
    8. Nor that, against the objection of the tenant, the landlord entered and tore down the walls and débris for the purpose of rebuilding.
    4. Nor that the new buildings were not intended for the enjoyment of the tenant, and he had no enjoyment of them.
    5. To repair means to put the premises in their former condition.
    6. Offers of evidence which, if admitted, would make out no defence are properly rejected.
    Before Sharswood, C. J.Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas, No. 3, for Philadelphia County.

    Replevin by James Maberry against William Dudley, Sr., landlord, and Abraham Updike, bailiff, for goods distrained by defendants for rent in arrear uuder a lease.
    Upon the trial before Yerkes, J., the following facts appeared:
    The defendant, Dudley, by lease, dated February loth, 1879, leased to the plaintiff a farm of ninety-eight acres, in Byberry, with the messuage and outbuildings, and tbe improvements necessary to the cultivation of tbe land, for the term of one year, at a rent of $750, payable in instalments. The lease reserved to tbe defendant tbe use of tbe part of the house occupied by him, the use of tbe spring and trough, tbe carriage-house, pig-pen, the ground on the northwest of the truck-patch, the Franklin pears, the small fruit in the yard, with manure for the same, and the chicken-yard, with the right of “doing any repairing” or the planting of trees about the farm.
    In September, 1879, the barn burned down. An instalment of rent, $200, came due February 1st, 1880, and, not having been paid, the defendant distrained.
    Counsel for plaintiff’ made several offers of evidence, as follows:
    1. That, without the consent of the landlord, and against his consent, the outgoing tenant entered on the premises to cut his grain, and entered the barn for the purpose of threshing, and whilst in possession the barn was consumed by fire.

      2. The extent of the loss by fire.
    3. That by this fire the tenant was deprived of the use of any barn and outbuildings to the end of his term.
    No buildings were substituted for those destroyed during the term for tenant’s use.
    4. That immediately after the fire, the landlord put men to work tearing away débris and tearing down walls, for the purpose of rebuilding, and that this was done without consent of tenant and against his objection.
    5. That new buildings were not completed within three mouths from the time of fire, and that said buildings were not intended for the enjoyment of said tenant, and tfiat said tenant had no enjoyment of the same.
    These offers were all objected to and were rejected, and exceptions were taken.
    February 1st, 1881. Verdict for the defendant, rent in arrear, $200, on which judgment was subsequently entered.
    The plaintiff then took out a writ of error, assigning as errors the exclusion of the above offers of testimony.

      Wm. Hall Waxier, for plaintiff in error.
    Only one side of the case was heard, and no fair conclusion can be formed. There was a clear and unmistakable eviction. The landlord took possession without the conseut of the tenant and tore down the walls. Rent is not apportioned in favor of a wrongdoer: Linton v. Hart, 1 Casey, 193; Bennett v. Bittle, 4 Rawle, 342; Briggs v. Thompson, 9 Barr, 338; Kessler v. McConachy, 1 Rawle, 435; Ross v. Dysart, 9 Casey, 452; McOlurg v. Price, 9 P. F. Smith, 420; Magaw v. Lambert, 3 Barr, 444.
    If it be argued by the counsel for the defendant that the landlord hacfa right to re-enter upon the premises for the purpose of repairing, then it is submitted that no covenant to repair can be so construed that the landlord can re-euter and erect entirely new buildings in place of those burned down; certainly no such force of construction can be given to the word repair in this case, where the destruction by fire was not contemplated.
    In the case of Hoeveler v. Flemming et al., 10 Norris, 322, it was decided, that, where the repairs are not ordinary, but of a character to deprive the tenant of all beneficial enjoyment of the premises, or at least seriously interrupt it while the repairs are in progress, they amount to an eviction, and suspend the rent.

      Samuel Wakeling, for defendant in error.
    As to the first offer, the waygoing tenant had a legal right to enter on the land to cut and remove the waygoing crop, even after the expiration of his time: Stultz v. Dickey, 5 Binney, 285; Demi v. Bossier, 1 P. & W., 224; Craig v. Dale, 1 W. & S., 509; Iddings v. Nagle, 2 W. & 8., 22.
    The destruction of the barn by fire, whereby the plaintiff was deprived of its use, is no defence. The lease contained an express covenant to pay, and as there was no clause for a suspension of the rent in case of fire, or until the premises were rebuilt, the tenant took the risk and bound himself to pay the rent during the term: Bussman v. Ganster, 22 P. F. Smith, 285.
    The right to repair the barn should be construed as a right to rebuild, it for the benefit of the business to be conducted upon the whole property.
    The lease contained no covenant on the part of the landlord to rebuild or repair for the tenant, who was bound to pay rent even if one of the buildings had been destroyed. There was no covenant as to repairs in three months, and the oifor did not go to show that the enjoyment of the bairn at the time when completed was refused by the landlord.
    While there are many instances where an eviction is a snspension of the rent, yet the principle does not apply to this case, because the landlord was in part possession and enjoyment, and had reserved the right to maintain his estate in proper order. The cases cited by the plaintiff in error do not apply to this case. In all instances the tenants were in absolute possession, and there were no rights of entry in the landlord to maintain the estate. In this ease the right of the landlord was based upon his concurrent enjoyment and possession of the building destroyed, with his reserved right to maintain his estate. The mere fact of the burning of the barn was not an eviction, unless it could be shown that it was the act of the landlord, and as the offer tendered no such proof, or even such suggestion, it should therefore fall.
    February 13th, 1882.
   — Per Curiam :

The offers of evidence, if admitted, would have made out no defence. By the lease the landlord had the right to repair the damage done by the fire. To repair, means to put the premises in their former condition. As there was no stipulation in the lease to that effect, there was nothing to relieve the tenant from the payment of the rent while the repairs were going on. Had the lease not been near expiring, the tenant no doubt would have insisted upon having them done.

Judgment affirmed.


author: Trunkey, J.

text:
    January Term, 1881,
    No. 142.
    March 29th, 1882.
    Malone et al. versus The City of Philadelphia.
    1. A municipal corporation is not liable to an action for consequential damages to private property unless it be given by statute, where the act complained of was done under a valid act of the legislature, and there has been no want of reasonable care or of reasonable skill in the execution of the power, although the same act, if done without legislative sanction, would be actionable.
    2. Where, therefore, an act of Assembly authorized a municipal corporation to continue a certain culvert or sewer into a river, and the corporation afterward extended it, so that its terminus was near low-water mark of the river, and in consequence the dock adjoining plaintiff’s wharf was filled up with débris, and that side of the wharf rendered useless, it was held that plaintiff had no cause of action against the corporation, though the sewer could have been carried out into the river to the wardens’ line.
    Before Merour, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to tbe Court of Common Pleas, No. 2, of Philadelphia County.

    Case by Watson Malone and Bernard T. Malone, trading as Watson Malone & Son, against the City of Philadelphia, to recover damages for the erection and continuance of a sewer,' by which, as alleged, sewerage was carried into the dock adjoining plain tills’ wharf, and filled the dock úp and made it unfit for navigation.
    Upon the trial in the court below, before Hare,P. J., plaintiffs gave the following facts in evidence:
    Plaintiff's are in the lumber business, and occupy and have occupied since February, 1870, Pier No. 44, north of Laurel Street, in the City of Philadelphia, under leases from the owners.
    By Act of Feb. 25th, 1861, P. L. 43, relating to the city of Philadelphia, it is provided: “ And the said councils shall continue the- culvert intended to drain Cohocksink Creek, by the shortest practicable course from Front Street along the said creek or canal, and any of the streets hereby authorized to be laid out or already established, into the river Delaware, and upon the completion of the said culvert, and opening the streets so laid out or extended, the said councils are further authorized to fill up the said creek or canal to the proper grade, and declare vacated such parts of it west of Delaware Avenue as may not be occupied by said culvert, or made a part of any of the streets so laid out, in such manner and at such time as they may deem expedient. Provided, that if the said councils decide to construct said culvert on Laurel Street, the owners of property shall be exempt from the usual charges for culverts,” etc.

      By ordinance approved April 24th, 1868, the city councils authorized a contract for the construction of “ a sewer from the east side of Front Street upon the open channel of the Cohocksink Creek (Canal Street) to Laurel Street, thence in said Laurel Street to the Delaware River, with its branches.”
    Under this authority the city entered into a contract for the sewer, in 1869, and it was completed in March, 1872. The sewer drains 1600 or 1800 acres north and west of plaintiffs’ wharf, and there are many manufactories along it. Cohocksink Creek was walled up and its whole drainage turned into the sewer. Its terminus is very near low-water line. It could be carried out further into the river, to the wardens’ line. Engineers differ in opinion as to the propriety of so carrying out sewers. When plaintiffs took possession of their wharf in 1870, there was sufficient water on the south side in the dock to receive and discharge large-sized vessels. The effect of opening the sewer was to till up the dock with debris and stuff. At low-water mark it became bare from one side to the other. The city dredged it out in 1874, but in four months it filled up again. With water in the dock, two vessels of five hundred tons burden could be moored there, at a wharfage of five dollars a day each. The ordinary daily discharge from the sewer is about three feet deep. It caused the filling of the dock. It is quite offensive.
    Upon this evidence the Court entered a judgment of non-suit, and subsequently, January, 8th, 1881, discharged a rule to take off the nonsuit.
    The plaintiffs then took out a writ of error, assigning as error the refusal to take off the judgment of nonsuit.

      John R. Read and Silas W. Rettit, for plaiutiffs in error.
    That the defendant is a municipal corporation is no ground for exemption, and in building drains she is exercising merely a private function for the benefit of some of her citizens : Detroit v. Corey, 9 Mich., 184; Gas Works v. Mui’phy, 3 Wr., 257; Shuter v. The City, 3 Phila., 228; Webster Saving Fund v. The City, 7 Casey, 175; City v. Collins, 18 P. F. Smith, 106; City v. Gilmartin, 21 P. F. Smith, 140.
    The city is liable for injuries caused by the insufficiency or obstruction of sewers: Allentown v. Kramer, 23 P. F. Smith, 406 ; Lead Co. v. Rochester, 3 N. Y., 463 ; Barton v. Syracuse, 36 N. Y., 54; Child v. Boston, 4 Allen, 41; Proprietors v. Lowell, 7 Gray, 223.
    The injury would have been avoided by carrying out the culvert into the tideway. As constructed it is a public nuisance. The act contemplated its being carried into the Delaware. The river is a public highway, and not even the crown at common law could legalize its obstruction : Hale, de Juris Maris, 11; Attorney-General v. Parmeter, 10 Price’s Exch. Rep., 378; Browne v. Kennedy, 5 Har. & Johns., 203.
    The right of navigation is paramount: Hart v. Hill, 1 Wharton, 136; Flanagen v. City, 6 Wr., 228; City v. Gil-martin, 21 P. F. Smith, 149.
    The act should be reasonably construed, so as to restrict the construction to such a culvert as would not interfere with navigation. It authorized a sewer extending into the river, and the city has only extended it to the river.
    The wharf is the property of the plaintiffs, and is entitled to the same protection from a nuisance, ás are lands. The right to the use of the dock is essential to that of the wharf: Harrison v. Sterett, 4 Har. & McH., 540; Browne v. Kennedy, 5 Har. & Johns., 203.
    The point in this ease has been decided: Richardson v. Boston, 19 TIow., 263 ; Haskell v. New Bedford, 108 Mass., 208; Brayton v. Fall River, 113 Mass., 218; Boston Rolling Mill v. Cambridge 117 Mass., 396.

      C. E. Morgan, Jr., and William Nelson West, city solicitor, for defendant in error.
    The dock was not in any sense the property of the plaintiffs.
    An owner of a wharf has no right of property in the adjoining dock. He has only the right to use it in common with the rest of the public — a right subject to the control of the State. It is competent for her at any time to cause the same to be filled up: Neill v. Easby, 1 W. N. C., 58 ; Easby v. Patterson, 6 W. N. C., 318; Kusenberg v. Browne, 6 Wr., 173; Tinicum Fishing Co. v. Cartel’, 1 P. F. S., 21; Easby v. Patterson, 7 W. N. C., 219 ; Simpson v. Neill, 7 W. N. C., 85, 8 Norris, 183.
    Any loss was indirect and consequential, the result of the city’s compliance with the act of Assembly: O’Connor v. Pittsburgh, 6 Harris, 187; Strawbridge v. The City, 7 W. N. C., 537 ; Vaughan v. Railroad Co., 5 Hur. &Nor., 679.
    There is no evidence of negligence or carelessness in the construction of the sewer.
    The determination of the place for the mouth of the sewer the legislature left to the judgment of the municipality. The city, in the exercise of the discretion thus reposed in her, selected for this purpose the low-water line, rather than a point farther out in the stream. For a mistake in the exercise of this discretion she cannot be held responsible to the plaintiffs: see Fair v. City, 7 Norris, 309 ; Collins v. City, 8 W. N. C., 409: Hoff v. City, 8 W. N. C., 407.
    October 2d, 1882,
   The opinion of the Court was delivered, by

Trunkey, J.

The Act of February 2oth, 1861, P. L., 43, authorizes the councils of the city of Philadelphia to continue the culvert intended to drain Cohoeksink Creek, from Front ¡Street into the river Delaware. In 1869, the city entered into a contract for the building of the culvert. It was finished in 1872, the mouth being at the low-water line of the river, at the foot of Laurel Street. The plaintiffs’ wharf, held by lease, is materially injured by the tilling of the dock, on its south side and in front of the street, with matter discharged from the culvert. Upon these facts the Court entered non-suit, which judgment is the specification of error. The plaintiffs’ title to the land does not extend beyond the low-water line. Outside that line his right is subject to the control of the Commonwealth under her laws. Neither allegations nor proof show want of care or skill in the construction of the culvert, nor that it drains a larger district than was contemplated by the statute, nor that it casts any substance on the plaintiffs’ land. The alleged nuisance is in the river, where the title is in the Commonwealth, and -where the statute authorized the city to place the mouth of the culvert.

The principle is well settled, that a municipal corporation is not liable to an action for consequential damages to private property, unless it be given by statute, where the act complained of wms done under a valid act of the legislature, and there has been no want of reasonable care or of reasonable skill in the execution of the power, although the same act, if done without legislative sanction, would be actionable: Dill, on Mu. Corp., § 781; O’Connor v. Pittsburgh, 6 Har., 187; Allentown v. Kramer, 23 P. F. S., 406. Nothing appears in the evidence to take this case out of the operation of that principle.

Judgment affirmed.


text:
    July Term, 1881,
    No. 79.
    January 18th 1882.
    Appeal of the Manufacturers’ National Bank.
    1. The existence of a mortgage executed by a married woman upon her separate estate to secure the bond of her husband is a sufficient consideration for a mortgage given by him to her.
    2. A false declaration as to the amount of liens made by the husband to subsequent lien-creditors will not estop her from collecting her mortgage.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Appeal of the Manufacturers’ National Bank from the decree of the Court of Common Pleas, No. 1, of Philadelphia County, confirming the report of an auditor appointed to distribute the proceeds of a sheriff’s sale of real estate.
    In the Court below Jesse Lane issued a scire facias sur mortgage against George II. Roberts, upon which he obtained judgment for $5168.33, and under a levari facias the premises embraced in the mortgage were sold to Margaret B. Roberts for $11,000. After the payment of the costs and the execution-creditor, the balance of $5469.58 was paid into court, and was referred to an auditor, John B. Colahan, for distribution.
    The auditor reported the facts substantially as follows :
    The liens of record upon the premises sold were,
    1. A mortgage from George II. Roberts to Margaret B. Roberts, dated April 10th, 1879, for $7000.
    2. A judgment confessed by George H. Roberts to Margaret B. Roberts, July 22d, 1879, for $500.
    3. A judgment confessed by George II. Roberts to the Consolidation National Bank, July 26th, 1879, for $1800.
    4. A judgment confessed by George H. Roberts to the Manufacturers’National Bank, July 28th, 1879, for $3106.60.
    The indebtedness of the defendant to the Manufacturers’ National Bank originated December 4th, 1877. Prior to the time at which this bank took the judgment-note held by them to secure his existing indebtedness, he misrepresented to it the amount of the incumbrances on his Third Street property, which was the one sold by the sheriff, by saying that there was an incumbrance against it of $5000, and thereby obtained additional time.
    Margaret B. Roberts was the wife of the defendant. November 26th, 1856, the defendant, being then the owner of premises No. 1011 Arch Street, in the said city, subject to a mortgage of $10,000, conveyed them, without consideration, through a third person to his wife. At the time of this settlement he was worth, above all debts, $50,000. The bond and mortgage of $10,000 upon this property was reduced, May 31st, 1864, by a payment of $5000 on account, of which Mrs. Roberts paid $2500. The interest was paid with her money and that of her husband.
    To prove consideration for the mortgage held by Mrs. Roberts, it was shown that she executed a mortgage for $10,000 upon the Arch Street property September 15th, 1873, to secure a bond of her husband for the same amount to the Philadelphia Saving Fund. That sum was paid by the Saving Fund September 20th, 1873, to her husband with her consent. On the same day he paid off a mortgage for $10,000 on the Third Street property.
    In 1859 Mrs. Roberts loaned her husband $2500, and in 1860 the further sum of $2000. Upon these sums the interest had been paid, but not the principal. In his ledger she was credited, January 1, 1868, with $4500, and every six months thereafter, until the time of the audit, was also credited with the interest and debited with its payment.
    It was also in evidence that she had received, between 1859 and 1864, from the estates of different relatives, $17,301.71.
    The reduced mortgage of $5000 and the subsequent mortgage of $10,000 upon the Arch Street property remained unpaid.
    This mortgage of $10,000 and the loans of $4500 constituted the consideration for the mortgage of $7000, upon which, with the $500 judgment, the claim of Mrs. Roberts was based, and also the consideration of another mortgage for $7000, dated April 10th, 1879, to her from her husband upon other real estate owned by him. Until April ÍOth, 1879, Mrs. Roberts held no securities for the indebtedness to her, and no acknowledgment of the loans. He collected her interest, invested her money, and paid her interest and taxes.
    The auditor found “ that $10,00Q of the consideration for the claim of the wife for $ 14,500 has been established. As to the remaining $4500, that has also been shown by loans to that amount made by Mrs. Roberts to her husband in 1859 and 1860, as airead]' stated. These loans, as well as the ability of Mrs. Roberts to make them from her separate estate, has been proven,” and that it was clearly a debt due by the husband to the wife.
    He awarded the balance of $5149.58 to the wife.
    Exceptions to this award were filed by the subsequent lien-creditors. The Court, June 18th, 1881, dismissed the exceptions and confirmed the report:

      The Manufacturers’ National Bank then appealed, assigning as errors, 1 and 2, the dismissal of the exceptions and refusal to decree the fund to the appellant; 3, in holding that the indebtedness of George H. Roberts to Margaret B. Roberts amounted to a sum sufficient to take the entire fund; 4, in holding that the mortgage to secure her husband’s bond created an indebtedness by the latter to the former; and 5, in holding that consideration for.the $7000 had been shown.

      Robert H. Neilson and Aubrey H. Smith, for the appellant.
    The mortgage by the wife to secure her husband’s bond did not create a debt between them. She was a surety only, and he was the primary debtor. Her liability was contingent.
    The receipt by the husband of the money with the wife’s consent amounted to a gift by her to him : Mann’s Appeal, 14 Wr., 375 ; Hinney v. Phillips, 14 Wr., 382; Earley «. Rolfe, 9 W. N. G., 106.
    Every intendment will be made in favor of the creditor: Garrison v. Monaghan, 9 C., 232; Wilson v. Silkman, 10 W. N. C., 364.
    ■ Lewis Stover, for the appellee.
    In the case of Wingerd v. Eallon, 9 W. N. C., 163, this Court said, that, no matter whether it be a debt or a collateral security, it is a sufficient consideration for a mortgage.
    The $10,000 -were not a gift. The law presumes a debt: Hamill’s Appeal, 88 Penna. .State, 363.
    She was not estopped by his declaration: Klein v. Caldwell, 91 Penna. State, 140.
    January 30th, 1882.
   — Per Curiam :

From the facts found by the auditor it is very clear that Mrs. Roberts had a separate estate, derived otherwise than from her husband, and that her husband had credited her with these loans on his book. There was ample consideration to sustain her mortgage of $7000 on the premises, and the amount awarded her fell short of that sum. Even if her husband did make a false representation to the bank when he obtained the discount, that surely can be no estoppel to her. They ought to have sought information on the subject of the amount of the incumbrances from the records.

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


text:
    July Term, 1881,
    No. 8.
    January 29th, 1882.
    The Manufacturers’ National Bank versus Jones.
    1. A bank has no lien upon money standing to the credit of one of its depositors for the amount of a note of such depositor, discounted by the bank, but which has not matured.
    2. The mere insolvency of the depositor intervening before the maturity of the note, cannot affect the question as against a creditor attaching the fund.
    3. A bank, therefore, cannot set-off against the claim of an attaching creditor the amount of unmatured notes indorsed by the depositor, and discounted for him by it, though he is at the time insolvent.
    Before Sharswood, O. J.; Merour, Gordon, Paxson, Trunket, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia County.

      Scire facias sur foreign attachment in a suit of William W. Jones against James Fayer, defendant, and the Manufacturers’ National Bank, garnishee. Judgment was entered by confession against the defendant for $1260.62.
    Upon the trial in the Court below, before Mitchell, J., the following facts appeared:
    The bank account of William Fayer, agent, with the garnishee, showed a balance in favor of the depositor, December 23d, 1879, of $913.74. William Fayer was agent for James Fayer, of Liverpool, England, and" the balancean bank was the property of James Fayer.
    Prior to the attachment, two notes were discounted by the bank for the benefit of William Fayer, agent, one of the said notes being dated November 6th, 1879, made by James Harrison, to the order of William Fayer, agent, and by William Fayer, agent, indorsed, for $255.90, due in sixty days, and protested for non-payment on the 8th day of January, A. D. 1880; and the other of the said notes, made by Franklin Baker, to the order of William Fayer, agent, and by William Fayer, agent, indorsed, dated December 4th, 1879, for $500, due in sixty days, protested February 5th, 1880. The amount of the discounts was credited to William Fayer, agent, and formed part of the credit side of the account. The bank did' not know, either at the time of the discounting of the notes, or at the time of the attachment, for whom William Fayer, agent, was agent, or whether he was agent for any one. At the time of the attachment William Fayer, doing business as William Fayer, agent, was insolvent.
    The Court reserved the point whether, under the facts found, the defendants were entitled to their set-off.

      The verdict was for the plaintiff for $977.70, of which $913.74 was principal, and $63.96 interest; and the jury found the facts specially as follows:
    1. William Fayer was agent for James Fayer at the time of the attachment, December *22d, 1879.
    2. That the bank did not know for whom its depositor, William Fayer, agent, was agent, either at the time of the discounting of the notes or at the time of the attachment.
    3. That William Fayer, doing business as William Fayer, agent, was insolvent at the time of the attachment.
    4. That the set-off of the bank upon the two notes, if the Court determines that it is to be made, amounts to $810.
    March 22d, 1881. The Court found that the bank was not liable for the interest, reduced the verdict to $913.74, and entered judgment on the point reserved for the plaintiff.
    The garnishee then took out a writ of error, assigning as error the entry of the above j udgment.

      Henry O. Ohnstead, Robert H. Neilson, and Aubrey H Smith, for plaintiff in error.
    The single question is, whether a bank, on the insolvency of its depositor, may set off unmatured paper of the said depositor against the claim of an attaching creditor ?
    An attaching creditor occupies no better position than his debtor: Good v. Grant, 26 P. F. Smith, 52 ; Eiddle v. Etting, 8 Casey, 412; Myers v. Baltzell, 1 Wr., 491.
    It is a well-known custom of banks to treat the deposit of a customer as security for his discounts: Stewart v. Bank, 6 W. N. C., 399.
    The proceeds of the notes were passed to the credit of the account attached, and any one claiming the entire balance must take it subject to the rights of the bank.
    A transfer by indorsement is equivalent to the drawing of a new note: Stephens v. Monongahela Bank, 7 W. N. C., 491.
    The right of a bank to set off unmatured paper of an insolvent depositor has been many times ruled: Stewart v. Bank, 6 W. N. C., 399 ; Bank v. Hoffman, 34 L. J. Ch., 285; Demmon v. Bank, 5 Cush., 194; Aldrich v. Campbell, 4 Gray, 284.
    The right of a party whose debt is due to compel an insolvent debtor to set off a claim against him not due has been ruled in Jordan v. Sliarlock, 3 N, 366.
    When it is shown to the Court that the dealings of the lender of money have been upon the faith of a security in his hands, that this secui’ity, though changeable at the will of the debtor, was at the time of the latter’s insolvency sufficient to meet the lender’s claim, and was in the latter’s actual possession, it is not very unreasonable for the Court to allow the parties to remain in the position in which they have placed themselves.

      W. H. Peace and Frank P. Prichard, for defendants in error.
    The bank could only claim such rights as they could assert against the principal: Bank v. Jones, 6 Wr., 536.

      Non constat that the principal was not entirely solvent and-would not have remitted on application.
    The debt owing by William Fayer, agent, was not only unmatured but was also contingent. The indorser is not liable until after presentment to, demand of, and refusal by the maker.
    The cases cited by plaintiff in error in support of its main proposition do not bear it out. See, In re Commercial Bank, L. R., 1 Ch. Appeal, 538; Spaulding v. Backus, 122 Mass., 553 ; Dougherty v. The Bank, 9 W. N. C., 1; Bower v. Gas Co., 22 Weekly Rep., 740 ; Parsons v. Root, 41 Conn., 161; Beckwith v. Union Bank, 9 N. Y., 211; 4th Nat. Bank v. City Nat. Bank, 68 111., 398.
    Any other rule would render impossible the system of credit now existing between banks and their depositor’s. It is possible that a depositor may be insolvent at the time he obtains the discount, and that the discount for him by the bank of paper drawn or indorsed by his friends may be the very means by which he expects to carry on his business and relieve himself from his embarrassments. Can it be that the bank, after agreeing to advance the money on the security of the paper, and receiving a consideration therefor, can, before maturity, seize upon the customer’s deposit and thus ruin him ? It is also possible that one carrying on a flourishing business would, if the business were suddenly wound up without opportunity to fulfil contracts or realize assets, be insolvent. Is it possible that a bank, on a mere allegation of insolvency or upon an attachment levied, can require immediate payment of discounted paper out of the deposits, and then justify its action by proof of an insolvency which it has helped to create ?
    January 23d, 1882.
   — Per Curiam:

It is established, as is shown in the opinion of our brother Trunkey, in Dougherty v. Central Rational Bank, 9 Weekly Notes, 1, that a bank has no lien on money standing to the credit of one of its depositors for the amount of a note of such depositor, discounted by the bank, but which has not matured. It is clear that the mere insolvency of the depositor intervening cannot aifect the question as against a creditor attaching the fund.

Judgment affirmed.


text:
    July Term, 1881,
    No. 21.
    January 18th, 1882.
    Appeal of Philip Mitton et al.

    1. There is no appeal in election cases.
    2. A certiorari brings up barely the record, and upon it the Court cannot examine and decide the merits of such cases.
    Before Sharswood, C. J.; Merour, Gordon, Paxson, Trunkby, Sterrett, and Green, JJ.

      Certiorari to. the Court of Quarter Sessions of Philadelphia Cov,nty.

    Petition of Philip Mitton and twenty seven, other citizens of the Sixth Ward, of the city of Philadelphia, asking the Court to decree'that John Wade and Henry L. Greenebaum had been duly elected school directors of the said ward, at the election of February 18th, 1879, and that the return of William F. Englehart and William H. Wakefield, as elected, was a false return.
    The petition set forth that upon 620 of the ballots cast for Englehart and Wakefield, were the names of two other persons; that these ballots were illegal, inasmuch as each elector was only entitled to cast his ballot for three persons; that these ballots were counted, and that without them Wade and Greenebaum. were elected.
    The answer denied the truth of these allegations. An examiner was. appointed,, before whom considerable testimony was taken in support of the petition.
    On the 6th of'December, 1879, the Court refused, without prejudice, an application of the petitioners, made on an interlocutory report of the examiner, for an order directing the ballot boxes of all the election divisions to be opened and inspected.
    On the 24th of April, 1880, the Court refused a renewed application for an order for the same purpose, “without prejudice, to the petitioners to renew the same, after showing, by the testimony of voters at said election, that a sufficient number of ballots, containing four names for the full term, were cast at said election, to alter the result of said election, if such ballots were rejected and not counted.”
    On the 26th of March, 1881, the Court made a final decree, dismissing the petition, and adjudged that the complaint was without probable cause, and that the costs be paid by the petitioners.
    The petitioners then appealed, assigning as errors, inter alia, the refusals of the applications to order the opening of the ballot boxes.

      John II. Sloan, for the appellants.
    All the cases in which the Courts have refused, on a petition contesting an election, to order the opening of ballot boxes, until proof was given by testimony of voters sufficient to change the result, were cases where there was but a single candidate on each side, and where the question v?as as to the illegal character of the voter, not of the vote itself, as in this case: see Laly v. Petroff, 32 Leg. Intel., 21; McCullough’s Case, 34 Leg. Intel., 28; and in these cases it is admitted that there may be cases in which such an order would be eminently proper and necessary.
    Kneass’s Case, 2 Pars., 553, is an authority for opening boxes, etc., where, as in this case, a specific statement of the reason is made. In Thompson v. Ewing, 1 Brewster, 67, the Court ordered the opening of the boxes upon an affidavit, and because it appeared there, as in this case, to be a necessity.

      Isaiah II Brown and L. Bregy, for the appellees, produced no paper-book.
    January 30th, 1882.
   — Per Curiam:

There is no appeal in election cases, and we cannot examine and decide the merits, upon a certiorari which brings before us barely the record. We cannot tell, therefore, whether the refusal of the Court to order the ballot boxes to be opened was right or wrong. The rule in all cases is omnia presumuntur rite esse acta.

Proceedings affirmed.