text:
    The Susquehanna and Wyoming Valley Railroad and Coal Co. versus Quick.
    1. There is no distinction between a trespasser without and one with title on record.
    2. When the question is upon the extent of possession of one without title, the deed or other evidence of supposed title may give color to and extend the possession by presumption beyond his actual enclosure or cultivation, but has no effect as to whether he has continued in possession.
    3. A trespasser on a title cannot maintain the continuity of possession if he actually abandon it, although with intent to return.
    4. Such case does not resemble that of a settler.
    5. The animus revertendi in a settler evinces his intention to gain a rightful title under the state.
    6. Non-residence will not toll the statute, if the party keeps up his possession by cultivation.
    7. Actual possession may be either by residence or cultivation; it need not be by both.
    8. When one leaves the ground personally, he must leave it under circumstances indicating that he still holds the possession.
    9. There must be that in the appearance of the premises themselves to show the world that there is still a person in possession.
    10. The character of the possession of a party as stated by himself while in possession is part of the res gestee.

    11. The exemplification of a record in loose and detached parts is inadmissible in evidence; it must be made up and certified as a whole.
    12. Cunningham v. Patton, 6 Barr 355, criticised; Stephens v. Leach, 7 Harris 262, recognised.
    March 15th and 16th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Susquehanna county: To March Term 1871.
    This was an amicable action of ejectment commenced April 6th 1858, in Luzerne county, in which Peter A. L. Quick was plaintiff, and The Susquehanna and Wyoming Valley Railroad and Coal Company were defendants. The land in controversy was a tract of 888 acres known as the Miner tract, and a tract of 206 acres known as the Lewis tract.
    The case was tried in Luzerne county in February 1868, and a verdict and judgment rendered for the plaintiff for the Miner tract. The record was removed to the Supreme Court, the judgment reversed, and a venire de novo awarded (11 P. F. Smith 828). It was afterwards certified to the Court of Common Pleas of Susquehanna county; it was tried there, October 18th 1870, before Streeter, P. J.
    On the 4th of June 1810, the Miner lot was patented to Thomas Wright. On the 1st of August 1825, Asher Miner, executor, &c., of Thomas Wright, deceased, by virtue of authority in his will, conveyed the Miner tract,to John B. Quick. John B. Quick, Warmoldus Cooper and Abraham Lefoy, having become the owners of the Lewis lot (the southerly half of a lot numbered 43, the northerly half being known as the David lot), a patent was issued to them for it; viz. one-fourth to Quick and three-fourths to Cooper and Lefoy.
    On the 17th of October 1825,-John B. Quick, Cooper and Lefoy conveyed to Isaac Frost and J. B. Loring the Miner, Lewis and David lots in trust for an association for the purpose of mining, &c., the members of the association to hold interests in the same by fortieth undivided parts, of which John B. Quick was to retain ten or one-fourth of the whole. On the 3d of February 1844, John B. Quick conveyed to the plaintiff “ three-fourth parts or all my interest, in lot 42 (Miner) and in Lewis’s part of No. 43.” This deed was recorded.
    On the 18th of May 1853, all the title held by Frost and Loring became vested in John M. Cooper, and up to that time the interests of other members of the association, not including the interest which had been in John B. Quick, were vested in Cooper. Cooper’s title, through other conveyances, became vested in the National Anthracite Coal Company, and from them in the defendants. The leading question in the case was the Statute of Limitations.
    On the trial the plaintiff gave evidence as follows: — G-eorge Whitbeck testified that Jacob R. Quick, a son of John B. Quick, had raised coal in 1841 or 1842 on the Miner and Lewis’ lots. In 1852 Jacob R. Quick lived on the Miner lot in a log-house, and left about 1854 of his own accord; the three tracts were called “the Quick property.” He spoke of a number of other persons being on the land in controversy, and of having heard some of them say that they were there as tenants of the plaintiff. On cross-examination, his testimony tended to show that there had been no regular occupancy, and that during part of the time, some of the occupants were mining for the Anthracite Coal Com•pany. The witness was not able to speak definitely as to the dates when any of those who were on the land went on.
    Other witnesses testified of John B. Quick having come on the land in or about 1825 to 1828, and had coal uncovered on the Miner lot, but did not clear any land; brought his son Jacob on the land, who, whilst he was on it, called it his. John B. Quick himself never stayed on the land long at a time. About 1856, whilst the land was occupied by a man named Decker, the' plaintiff was* there; some three men, one of whom was Page, came there, the plaintiff forbade them ; they told plaintiff to leave and put him off; those who put him off said they did so by virtue of a writ of possession which they showed.
    Jacob R. Quick, son of John B. Quick and brother of plaintiff, testified that in 1826 a man named Tinklepaugh was on the Miner lot; his father took out coal; witness went into the Miner lot in 1841 under John B. Quick, opened a coal-bed, and remained about twelve years. In 1842 he leased a part of it to Norton; the plaintiff went into possession of the Miner lot in 1848 or 1844, after the deed from his father ; witness “ put in two or three men” who occupied the land or parts of it for plaintiff; they continued in till plaintiff was turned out. John B. Quick by his hands, from 1826 took coal from the land, and sold it to New York; witness went to Tioga county in 1852.
    D. T. Lewis had a lease from plaintiff to mine coal; he went there in 1855, and was put out of possession by Page in 1856;
    John B. Quick (in deposition) testified: that he never gave up possession, but in 1841 he leased to Jacob; that he and those under him paid the taxes until plaintiff went into possession; John Q. Smith was in under witness for eight or nine years; that the deed to Cooper and Lefoy was obtained fraudulently, and he told them they should not have possession until they paid according to the contract.
    The plaintiff gave in evidence a lease from John B. Quick (by attorney) to John Q. Smith for the Miner and Lewis lots for one year from April 1st 1834; also lease from same to F. A. L. Smith for one year from April 1st 1835; also lease from same to Jacob for three years from April 1st 1841, reciting that lessee had been in possession under a verbal agreement; also a lease from plaintiff to Baker, for two years from April 1st 1846, which was continued for one year from April 1st 1848 ; also, from same to Rummerfield, from April 1st 1854 to April 1st 1860, excepting right to mine coal; also lease from same to Daniel T. Lewis, dated November 8th 1856 till April 1857, of house on Miner lot.
    Rummerfield went into possession under his lease, and continued until removed by Page and others.
    Plaintiff then gave in evidence deeds dated May 8th and 9th 1826 from John B. Quick to Greorge Biddis for one-fourth of the Miner lot, Lewis lot and David lot, recorded May 23d, for the consideration of $6000, with evidence that Quick at their date was indebted to Biddis, who agreed to furnish him more money, and the conveyance was made as security, and the money owing by Quick had been paid. The plaintiff then offered exemplification of record of Pike county, and award of arbitrators in suit of George Biddis v. John B. Quick. Objected to.
    - 1. That it is not evidence, without first showing notice to the defendants, and those under whom they claim.
    2. That the papers are not connected together.
    3. That it is not an entire record.
    The evidence was admitted, and a bill of exceptions sealed.
    The record showed an award against Quick for $709.43, “ with consent of plaintiff. When paid, plaintiff shall convey to defendant all of above land conveyed to George Biddis as security for the above debt.” * * * The record showed satisfaction, March 31st 1835.
    Pie gave in' evidence the following assessments of taxes :—
    1806 till 1827. John B. Quick, improved and unimproved.
    1828 till 1831. George Biddis & Co.
    1832 till 1843. E. A. L. Smith, except 1841, when there was no assessment.
    1843. John B. Quick and Jacob R. Quick.
    1844 till 1849. Same, Thomas Clark, P. A. L. Quick and E. A. L. Smith.
    1850. No assessment. ’
    1851 till 1853. Jacob R. Quick.
    1854, 1855. No assessment.
    1856. Plaintiff, “ 386 acres known as Miner lot.”
    After the plaintiff closed, the defendants gave evidence tracing their title as before stated; amongst other things they gave in evidence a conveyance by the executor, &c., of Biddis to F. A. L. Smith, for an undivided fourth of land; from Smith to Clark, from Clark’s executors to Phelps, and thence through divers conveyances to the defendants; also, articles of association, dated October 17th 1825, between the persons for whom the conveyance of the land on the same day was made in trust to Frost and Loring, including John B. Quick. By the articles, reciting amongst other things that Quick was entitled to ten undivided fortieth parts of the land, the associates formed of themselves “ The Lackawanna Coal Company,” with a capital made up of the land, to be divided into 1000 shares of $50 each, of which 200 shares were to be used for working the mines, &c., and the remaining 800 shares to be divided amongst the associates in proportion to their respective interests in the land; also the transfer of 195 shares of Lackawanna Company stock by John B. Quick, the last transfer being March 14th 1827. They also gave evidence to show that John B. Quick was in their employ on the land; also, that John B. Quick had acknowledged that the land belonged to the company, and he had a small share in it, with other evidence for the purpose of showing that John B. Quick did not claim to be on the land in his own right.
    Joseph Slocum testified that he found Jacob Quick and Mrs. Phillips on the Miner lot, she having a husband living at the time. Her children were then with her.
    Defendants offered to prove by witness “ that in 1841 he found Mrs. Phillips living in the Miner house; that she said to him that the house was empty, and she was told to go in and stay, and that Jacob R. Quick came and she let him into possession with her.”
    The evidence was objected to by plaintiff as irrelevant, rejected by the court, and a bill of exceptions sealed.
    The defendant gave in evidence proceedings in ejectment at the suit of Thomas Clark against Jacob R. Quick for the Miner, Lewis and David lots in which Quick confessed judgment to Clark for the fourth on the 21st of August 1843. He also offered in evidence the record of proceedings in partition of the land in controversy, Clark against Frost and Loring, trustees. The offer was objected to and rejected, and a bill of exceptions sealed.
    The evidence was very voluminous, conflicting and complicated; it is supposed the foregoing, with the charge of Judge Streeter, will present intelligibly the questions decided by the Supreme Court.
    Defendants asked the court to charge the jury:—
    2. That, to acquire title under the Statute of Limitations by John B. Quick against his own grantees by deed, notice of his intention thus to acquire title must be shown to have been direct, clear and positive, and the statute will run only from such notice.
    3. That, under the evidence, John B. Quick was in 1825 a cestui que trust of Frost and Loring, and no sufficient evidence of notice of ouster of the trustees appears until the deed of 8th and 9th May 1826, and then only of one-fourth interest undivided in the lands in dispute, and the confession of judgment in ejectment by Jacob R. Quick, (then and at the time of service) a tenant of John B. Quick, was an attornment to Thomas Clark (which Jacob R. under the claim of plaintiff in this case had the right to make), and tolled the Statute of Limitations, so far as this defendant is concerned, as to the one-fourth interest, and for that plaintiff cannot recover.
    4. That, as to the remaining three-fourths interest undivided, plaintiff shows no sufficient evidence of notice of ouster until 1844, at the time of the deed from John B. Quick to plaintiff, describing the grantor’s interest as “ three-fourths or all my interest,” and the statute not having run since that time before the bringing of this suit, the plaintiff cannot recover for that interest.

      10. That if John B. Quick, on 8th and 9th May 1826, had any title to convey tó George Biddis, and if such conveyance should, by the jury, be believed to have been for the security of money, in the absence of testimony that these defendants had notice thereof, they are bond, fide purchasers without notice, and cannot be affected thereby.
    The court charged: * * * “ The defendants have shown a regular legal title to this land. The plaintiff cannot and does not controvert the regularity of this chain of title from the Commonwealth to the defendants. But he claims title under the Statute of Limitations, and this is the leading question in the cause. The trust deed made John B. Quick a cestui que trust of Frost and Loring; and, to enable him to acquire title by the Statute of Limitations against his trustees and co-tenants, he must oust them from the possession and hold the actual, visible, notorious, hostile, continuous and uninterrupted possession for twenty-one years. The trustees and co-tenants, in order to be affected, must have had notice of the intention of John B. Quick to change the character of the possession — in other words, notice that he claimed to hold in hostility to them. [But an ouster need not necessarily be proven by direct and positive notice of an intention to exclude the trustees and co-tenants. Ouster and adverse possession may be presumed by the jury, from ‘ open, notorious and uninterrupted possession of the whole by a tenant in common for twenty-one years, claiming the whole land as his own, and taking the whole profits exclusively to himself.’ These facts do not constitute a legal presumption of ouster — they are facts from which a jury may infer ouster and adverse possession ; if the evidence satisfies their minds, the fiduciary character of the relation has been determined and notice of such determination has been brought home to the parties to be affected.] [If the jury shall be satisfied from the evidence that John B. Quick and Peter A. L. Quick, by themselves and by tenants, held actual, visible, notorious, hostile, continuous and uninterrupted possession of this land, or any portion of it, for twenty-one years prior to 1856, and that the trustees and co-tenants had notice of such adverse and hostile holding, the plaintiff may recover to the extent of such possession.]” The court here referred the jury in general terms to the evidence on both sides relating to the possession, and proceeded : “It has been already said, the possession necessary to give title under the statute must be continuous and uninterrupted. There must be no break in the continuity of the possession. An entry by the owner or an action of ejectment prosecuted to 'judgment will suspend the statute — as it is termed, will toll the statute. [A vacancy in the possession caused by a tenant’s going out a few weeks, or even a few months, before another tenant comes in, does not break the continuity of the possession, if the landlord have his title upon record, and does not intend to relinquish his possession, and puts another tenant in before his possession is disturbed by another claimant. Peter A. L. Quick had his title upon record in 1844; but John B. Quick, who claims to have been in possession by his tenants up to that time, had no record title; and a vacancy of one day prior to 1844, caused by one tenant’s going out before another came in, would have broken the continuity of the possession. If the jury find from the evidence any such break in the possession, the previous possession goes for nothing, and the plaintiff must begin his possession anew.]
    “ On the 21st of November 1845, Frost and Loring brought an ejectment against Jacob R. Quick in the Common Pleas of Luzerne county, and in the precipe and summons described the three lots, known as the Miner, Lewis and Daniel David lot. On the 10th of May 1853, Jacob R. Quick confessed judgment, and this judgment was executed in 1856, by putting the defendants in this suit in possession. Cross-interrogatories were filed in the case, which were signed by several attorneys, and among them A. T. McClintock signed them as attorney for Peter A. L. Quick. Jacob R. Quick had purchased the Daniel David lot by deed in 1843, and he testifies that at the time of the bringing of the ejectment he was in possession only of the Daniel David lot, and was not in possession of either the Miner or Lewis lot. If Jacob R. Quick was in possession of the Miner lot by lease, or otherwise, this ejectment prosecuted to judgment tolled the statute, and, the statute not having run at that time, the plaintiff cannot recover. Or if you believe from the evidence that Peter A. L. Quick employed counsel to defend that suit, the plaintiff cannot recover, even though Jacob R. Quick was in possession only of the David lot under his deed.
    [“From the papers in evidence, and from testimony of Mr. McClintock and P. A. L. Quick, you will determine how the fact is. If Jacob R. Quick was not in possession of any other land than his own in 1845, and if P. A. L. Quick did not defend that suit or employ counsel to defend it, then the ejectment did not toll the statute, and is no bar to the plaintiff’s recovering.]
    “ There is another branch to this case to which I will now briefly call your attention. On the 8 th of May 1826, John B. Quick deeded one undivided fourth of lot 42, and of the Daniel David lot, to George Biddis. On the 9th of May he conveyed one undivided fourth of the Lewis lot to George Biddis. On the 16th of September 1830 the executor of George Biddis conveyed this title to Francis A. L. Smith. In 1841 Smith conveyed to Thomas Clark. This title is now vested in the defendants. It is claimed by the plaintiff that these deeds to Biddis were given to secure the repayment of a loan of money; and that the money has been repaid. A deed absolute upon its face may be shown by parol, if the evidence is clear and explicit, to be security for money loaned, and only a mortgage. [It is further claimed by the plaintiff that Smith and Clark had actual notice and full knowledge of the character of this deed. And it is further claimed that when the defendants and the grantees of Clark’s executors acquired title, John B. Quick was in the actual possession of the property. If you find all these facts as claimed by the plaintiff, the defendants cannot hold the one undivided fourth of the land under this Biddis title. If the deed was given to secure the repayment of a loan and has been paid, and Smith and Clark both had actual notice of this fact; and at the time Clark’s executors conveyed to John C. Phelps, John B. Quick and those claiming under him were in the actual, visible and notorious possession of the land, and continued such possession down to 1856, such possession was constructive notice of the character of this Biddis title, and the defendants will not be protected by it.] If you find any of the facts just stated against the plaintiff, the defendants will be entitled to hold this undivided one-fourth, and this right is in no way affected by the Statute of Limitations.
    “ In reference to the general question of possession, it should be observed that possession of one lot having distinct boundaries cannot be extended to another and distinct lot. In this case there is no evidence of any actual possession of the Lewis lot. The plaintiff has therefore failed to give any evidence of title to that lot under the Statute of Limitations; and as to that ¡ lot your verdict must be against the plaintiff.” * * *
    In answer to the points he said:—
    “ 2. This point is affirmed to this extent: The grantees must have had notice of John B. Quick’s intention to hold adversely to them; but that notice may be presumed by the jury if they believe from the evidence that John B. Quick, the grantor, claimed the whole land as his own, took the whole profits exclusively to himself, and continued in the actual, visible, notorious and uninterrupted possession of the land for twenty-one years prior to 1856.”
    “10. This point is correct; but if the jury find that at the time of the defendants’ purchase of this title Quick was in the actual, visible and notorious possession of the property, such possession would be constructive notice and equivalent to actual notice.”
    The verdict was for the plaintiff for the Miner lot.
    The defendants took out a writ of error, and assigned twenty-two errors:—
    4. Admitting the exemplification of the record, Biddis v. Quick.
    10. Rejecting the declarations of Mrs. Phillips.
    11. Rejecting the proceedings in partition, Clark v. Frost et al.

      May 8th 1871,
    14, 15, 21, 22. The answers to the defendants’ 3d, 4th] 2d and 10th points.
    16-20. The parts of the charge in brackets, the 18th assignment being to the part of the charge which related to “ a vacancy in possession for a few weeks or months,” &c.

      W. H. Jessup and A. Hand (with whom was H. F. Hodges), for plaintiffs in error.
    As to the 4th assignment they cited Todd v. Campbell, 8 Casey 250; Odenbaugh v. Bradford, 17 P. F. Smith 96. As to 10th, Brolasky v. McClain, 11 Id. 167. As to the 18th, Brolasky v. McClain, supra; Olvine v. Holman, 11 Harris 284; Stephens v. Leach, 7 Id. 262; Zubler v. Schrack, 10 Wright 70; Lawrence v. Hunter, 9 Watts 76.

      J. Handley and J. W. Maynard, for defendants.
    As to the 18th assignment cited Cunningham v. Patton, 6 Barr 359; Johnston v. Irwin, 3 S. & R. 291; Hubley v. Vanhorne, 7 Id. 192; Royer v. Benlow, 10 Id. 306 ; Mercer v. Watson, 1 Watts 338; Hopkins v. Robinson, 3 Id. 205; Hoey v. Furman, 1 Barr 295; Porter v. McGinnis, Id. 413; Stephens v. Leach, 7 Harris 262.
   The opinion of the court was delivered,

by Agnew, J.

The 18th assignment contains the only serious error in the instructions of the court which needs notice. The court charged that a vacancy in the possession caused by a tenant’s going out even for a few months, before another tenant comes in, does not break the continuity of the possession, if the landlord have his title upon record, and does not intend to relinquish his possession and put another tenant in before his possession is disturbed by another claimant. Peter A. L. Quick had his title upon record in 1844; but John B. Quick, who claims to have been in possession by his tenants up to that time, had no title; and a vacancy of one day prior to 1844, caused by the tenant’s going out before another came in, would have broken the continuity of the possession.” As an unqualified instruction upon the doctrine of the Statute of Limitations, this portion of the charge is erroneous. The distinction between a trespasser without, and one with title on record, in its effect upon the continuity of possession, has no place in the law. The deed from John B. to Peter A. L. Quick, which the learned judge calls title, is nothing but the link connecting together the possession of these two persons, whose possession otherwise would be independent and distinct trespasses. Where the question is upon the éxtent of possession, of one without title, the deed, warrant, survey or other evidence of supposed title may give color to and extend the possession by presumption beyond his actual enclosure or cultivation; but it can have no possible effect upon the fact whether he has continued in the possession or left it. In view of the circumstances of this case, the latitude of time allowed by the judge to preserve the continuity of possession, is important. A few months, because of the favor shown to the man with a deed or record, might be six, eight or ten. Now, clearly, it is not the law that possession can actually be abandoned for so many months, even though the trespasser intend to return. There is no resemblance in this respect between the case of a trespasser on the title of another, and a settler by improvement on vacant land. The animus revertendi, which evinces the intention of the settler to gain a rightful title under the authority of the state, cannot, in the case of a trespasser, supply the place of an actual possession to obtain a title by wrong. As a circumstance of evidence, the animus revertendi may, with other indicia, tend to show that the actual possession has not been abandoned, as where the party leaves crops in the ground, and large improvements, or cattle grazing in the fields. Even non-residence will not toll the statute where the party keeps up his possession by cultivation. It is well settled that actual possession may be either by residence or by cultivation, and need not be by both. Had the court qualified this portion of the charge, so as to give the jury to understand that they meant only a suspension of residence and not a vacancy in possession, there would have been no error. But the language was “a vacancy of possession for a few months.” In this case it was important that the instruction to the jury should be carefully guarded, for the improvements on some of the tracts were very insignificant, while the occupancy consisted partly in mining coal at intervals; the tenants were numerous, their removals frequent, and altogether the possession bordered closely on the loose and roving. The case of Cunningham v. Patton, 6 Barr 355, has been cited to show that an interval of four months will not destroy the continuity of possession. The facts of this case are very briefly reported, and it is evident the language of Coulter, J., has reference to features not presented clearly. The judge in the court below charged that there was no suspension of the possession by reason of Duval having left it for a short time under the circumstances.” What these circumstances were, is the defect in the report, but the only point made in the argument of the counsel for the defendant in error was, that residence is not necessary to make an adverse possession; while Coulter, J., remarked, that during these four months the trespasser could not have returned the land unseated” — “there were the house and barn, and the land cleared to 'warn him to inquire after the settler” — “his absence was during the period when the farmer does not bestow his labor on the soil, it was neither seed-time nor harvest.” It seems to be a case not of a suspension or abandonment of possession, but of residence, where there were indicia to show that the possession was otherwise kept up, and in view of this the animus revertendi was a circumstance in the evidence, leading the Justice to resemble it to the case of a settler. If the case were not of this character it cannot be sustained; and the analogy to the case of a settler would well deserve the strong criticism of Gibson, J., in Stephens v. Leach, 7 Harris 262. In the last case the correct principles of the statute were stated by the former Chief Justice. “ Adverse possession,” he says, “ professing as it does to be founded not on title but on trespass, is essentially aggressive, and the stamp of its character must always be preserved by acts on the premises. A man does not discontinue his possession by locking up his bouse in town, or suspending his cultivation in the country, provided he do not suffer the buildings in the one ease, or the fields in the other, to be thrown open; but he is bound to continue a positive appearance of ownership, by treating the property as his own, and holding it within his exclusive control. An intention to resume a suspended intrusion of which the owner of the title may know nothing, is short of the requirement of the statute. The question is not, what did the outgoing occupant intend, but what did he do ? Did he keep his flag flying and present a hostile front to adverse pretensions ? An adverse possession ought to be such as to challenge the right of all the world; but when an occupant has evacuated the place and suffered it to go to wreck, he hauls down his colors and his challenge is withdrawn.” The language is perhaps too figurative to be entirely plain, but the scope and purpose of it is to show, that when one leaves the ground personally, he must leave it under circumstances indicating that he has not left the possession, but still holds it. There must be that in the condition and appearance of the premises themselves that show to the world that there is still a person in possession. The unqualified language of the judge below, in the present case, would scarcely lead the jury to distinguish between a mere interval in the occupancy by personal residence, and an interval of actual possession, which would break the continuity of possession; and the obscurity was not diminished when he referred to the continuity being broken by a single day’s vacancy of possession, where the title was not on record. He must have meant the same kind of vacancy of possession when referring to that of a single day and to that of a few months; and if not, then his charge was contradictory. This part of the charge was therefore erroneous, for it left the jury without a consistent rule to guide them in this complicated case, upon its facts.

We are not very clear as to some of the bills of exception to the admission and rejection of evidence. In a case of such numerous facts and complication of detail, it is not easy to pronounce upon every exception. We may say, however, we are not clear that the rejected evidence referred to in the 10th assignment of error was irrelevant. Phillips being found in possession of a part of tbe property, it would seem to us that her account while in possession of the manner she came there would be competent to show under whom she was living there, and this whether she was a married woman or not. The character of the possession of a party as stated by himself while in possession is part of the res gestee. It was not offered to affect the rights of her husband or of his landlord, if he had any, for so far as we understand the evidence (in which indeed we may err), there was no possession of the husband or lease to him; but the offer seems to relate to an independent possession by Mrs. Phillips herself, which it was the right of the party to have referred to the jury.

Nor do we see why the record in the action of partition brought by Clark against Frost & Loring trustees, was irrelevant, though it was rather unimportant. We shall, however, not refer to the bills of exception in detail further than to say that some are not sustained, others were saved by the introduction afterwards of the deeds and other writings notin evidence when the objections were made; and others are not sufficiently before us to decide them. Among the last class is the exemplification of the record from Pike county, of the case of George Biddis v. John B. Quick. The certificate of the prothonotary is not printed for us, or it may be there was no general certificate attached to the exemplification. It would seem from the statement in the bill of exception, that the record consisted of loose and detached parts. If that be the fact, there was error in receiving the detached papers. The record must be made up and certified as a whole. This error, if it be one, can be corrected by making up a proper record and certificate.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: by Sharswood, J.

license: Public Domain

text:
    McConeghy versus Kirk.
    1. "Where a copy is filed in an action against a party secondarily liable, as drawer or endorser on a bill or note under tbe Affidavit of Defence Law, the presumption is that all steps, such as presentment, Sao., to fix liability have been taken, and it is not necessaiy the plaintiff should aver them.
    2. If they do not exist the defendant must deny them in his affidavit of defence.
    3. It is not sufficient for defendant to say that he has not received notice; he must state such facts as will justify the inference that there was no notice nor due diligence used.
    4. The payees of a note were J. J. & J. P. Kirk, the endorsement was “John J. Kirk,” the presumption was that the payees were a firm and the endorser one of them.
    5. If it were not so, the defendant, the second endorser, should have averred the contrary.
    6. By endorsing the note to the plaintiff, the defendant averred the genuineness and regularity of the previous endorsements.

      7. One partner may accept or endorse negotiable paper in his individual name, so as to bind the firm, where it appears to have been on partnership account.
    8. Where the payees are a firm, the endorsement by one of the firm is primS, facie on partnership account.
    9. Identity of name is primft facie identity of person.
    March 17th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 62, to July Term 1870.
    This was an action of assumpsit, brought March 31st 1870, by Elias Kirk, endorser, against George McConeghy, on a note, a copy of which was filed, as follows:—
    ■ “ $300 Feb. 18th 1869.
    Nine months after date, I promise to pay to the order of J. J. & J. P. Kirk, at the National Bank of Germantown, three hundred dollars without defalcation, for value received.
    Thomas McCaeeerty.
    (Endorsed) John J. Kirk,
    George McConeghy.”
    “Protested at maturity.”
    The defendant filed an affidavit of defence: “ That the note upon which the above action is brought was endorsed by him without any consideration, solely for the accommodation of the maker, who promised to pay the same at maturity, that he did not receive a notice of the non-payment of the said note at its maturity, and that he believes and expects to prove that plaintiff had full knowledge of the facts herein stated, and he is also advised that the copy filed is not such a paper as entitles plaintiff to judgment for want of an affidavit of defence: all which deponent expects to prove on the trial.”
    The court entered judgment for the plaintiff for $310.41 for want of a sufficient affidavit of defence.
    This was assigned for error on the removal of the record to the Supreme Court by the defendant.

      T. R. JElcoek, for plaintiff in error.
    1. Defendant states that “ he did not receive a notice of the non-payment of the said note at its maturity:” Story on Prom. Notes, § 299. There is upon the record no averment that the defendant had been given notice, or that notice had been sent him: Bellemire v. Bank of the United States, 4 Whart. 113; Bennett v. Young, 6 Harris 261.
    2. McConeghy is not liable as endorser, for the note is not negotiable. It is drawn payable to the order of J. J. & J. P. Kirk. Before it becomes negotiable, and before McConeghy can become an endorser, it is necessary that the note should be endorsed by J. J. & J. P. Kirk, they being the payees: Pease v. Dwight, 6 How. (U. S.) 199; Barto v. Schmeck, 4 Casey 447; Schafer v. Bank, 9 P. E. Smith 144; Murray v. McKee, 10 Id. 35; Wright v. Hart, 8 Wright 454.
    March 23d 1871,
    3. McConeghy cannot be considered as a guarantor, for the Act of 1855 requires all contracts of guaranty to be in writing.
    4. The plaintiff showed no legal title to the note; there must be an endorsement by J. J. & J. P. Kirk, either by each separately, or, by one in the name of both: Wood v. Wood, 1 Harrison 428; Smith v. Whiting, 9 Mass. 334; Chitty on Bills 39, 132, 394; Canal Bank v. Bank of Albany, 1 Hill 287; Bircleback v. Wilkins, 10 Harris 26; Raymond v. Middleton, 5 Casey 529.
    5. The note being drawn payable at The National Bank of Germantown, the plaintiff should have averred a presentment at that place: Byles on Bills 169; Thomas v. Shoemaker, 6 W. & S. 179.

      J. W. Sunsicher (with whom was D. H. Mulvany), for defendant in error.
    That the note was endorsed without consideration is no defence: Anspach v. Bast, 2 P. E. Smith 356; Moseley v. Hanford, 10 B. & C. 729; Woodridge v. Spooner, 3 B. & A. 233; Free v. Hawkins, 8 Taunton 92; Hill v. Gaw, 4 Barr 493; Mason v. Graff, 11 Casey 448. The presumption is that the endorsee received it bond, fide, in due course of business and for a valuable consideration: Gray’s Adm’r. v. Bank of Kentucky, 5 Casey 365.
    2. The protest is an answer to the allegation of want of notice: Coddington v. Davis, 3 Denio 17; Seneca Co. Bank v. Neass, 5 Id. 330 ; Story on Prom. Notes 386. The endorser may not have actually received notice of non-payment and yet be bound: Woods v. Neeld, 8 Wright 86; Moore v. Somerset, 6 W. & S. 262.
    3. The defendant must be presumed to have taken the note on the faith of the prior endorsement, and that endorsement is good and binding on the party who made it: Schafer v. Bank, 9 P. F. Smith 144
   The opinion of the court was delivered,

by Sharswood, J.

When a copy is filed in an action against a party secondarily liable as the drawer or endorser of a bill of exchange, or the endorser of a promissory note, under the 2d section of the act entitled “ An Act to establish the District Court for the city and county of Philadelphia,” passed March 28th 1835, Pamph. L. 88, the presumption is that all steps have been duly taken which are necessary to fix liability, such as due presentment, demand of payment at the proper time and place, and notice of dishonor; nor is it necessary that there should be any averment by the plaintiff of these particulars. The defendant must deny them in his affidavit if they do not exist: Sleeper v. Dougherty, 3 Whart. 177. Nor is it sufficient for him in such case to say that he has not received notice. He must go further, and state such facts as will justify the inference that no notice has been given or due diligence used: Moore v. Somerset, 6 W. & S. 262.

It is urged, however, that the copy filed in this case shows no endorsement by the payees, and that the defendant assumed the position of third endorser on the note, with the condition implied that the payees should assume that of first endorser, so as to give him recourse against them: Schafer v. The Farmers’ and Mechanics’ Bank, 9 P. F. Smith 144. The presumption, however, certainly is, that J. J. & J. P. Kirk, to whose order this note was drawn, constituted a firm or partnership, and it is an equally reasonable presumption that “John J. Kirk,” the first endorser, was the J. J. Kirk, a member of that firm. If these facts were not so, it was incumbent upon the defendant to aver the contrary. By endorsing the note to the plaintiff he affirmed the genuineness and regularity of the previous endorsemeilts before his own. It is not the case of no endorsement by the payees; but of an endorsement by one of the payees constituting a firm or partnership. Now, it appears to be well settled and recognised by the most approved elementary writers, that one partner may accept or endorse negotiable paper in his individual name, so as to bind the firm, whenever it sufficiently appears to have been on partnership account. “ In all contracts concerning negotiable paper,” says Chancellor Kent, “ the act of one partner binds all, and even though he signs his individual name, provided it appears on the face of the paper to be on partnership account, and to be intended to have a joint operation:” 3 Kent’s Com. 41; Chitty on Bills 58; Byles on Bills 44. “If a bill,” says Lord Kenyon, “is drawn upon the partnership, in their usual style and firm, and it is accepted by one of the partners, it certainly binds the partnership to the payment of it:” Wells v. Masterman, 2 Esp. 731; Manson v. Rumsey, 4 Cowp. 384; Dolman v. Orchard, 2 C. & P. 104. Here a note made to the order of a firm, is endorsed by one of the firm. Primfi facie it is a partnership act, binding upon the firm. It devolved upon the defendant below to deny it, if John J. Kirk was not a member of the firm of J. J. & J. P. Kirk, the payees. Identity of name is prinffi facie evidence of identity of person. The transactions of the world would not go on if this were not so: Byles on Bills 422.

Judgment affirmed.


author: by

text:
    Dungan’s Appeal. Blake’s Appeal.
    1. The United States has a lien upon the distillery, fixtures, &c., for taxes on distilled spirits when such property is sold on execution against the distiller.
    2. The property is not sold subject to the lien, but the United States taxes are to be first paid from the proceeds.
    3. The sale being under process from a state court, that court will distribute the proceeds and recognise the priority of the United States claim.'
    4. The lien of the United States is superior to the claim of the landlord on the proceeds for rent.
    5. The laws of the United States are supreme on all subjects to which the legislative power of Congress extends.
    March 17th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeals from the decree of the District Court of Philadelphia: No. 194 and 202, to July Term 1870.
    To September Term 1869, a writ of fieri facias was issued at the suit of James Blake & Co. against Winston F. Rogers, and the fund arising from the sale under the writ brought into court for distribution. A. Thompson, Esq., was appointed auditor to distribute the fund, which, after deducting costs and expenses of audit, amounted to $1382.17.
    The claimants on the fund were Greorge C. Evans, United States revenue collector for the third district of Pennsylvania, J. Dyre Dungan, landlord of the premises which were occupied by the defendant, and on which were the goods sold under the execution, and the plaintiffs in the execution.
    The facts are stated as follows in the report of the auditor:—
    “ The claim of the United States , was for the balance of $7260.36, which was composed of taxes alleged to be due by the defendant to the United States, on spirits distilled, for deficiency in spirits, and for the capacity-tax on his distillery.
    “ That of the landlord was for seven months’ rent of premises situate at Front and Canal streets, at $83.38 per month, commencing on the 1st of May 1869, and extending to the 1st of December following.
    “And that of the plaintiff in the execution was for $6000, with interest from September 19th 1869, being the amount of a judgment recovered by the plaintiff in the above execution against the defendant, Rogers.
    “ The defendant in the above execution was a distiller on the premises; he succeeded Milton W. Hillegass, who was the former lessee of the same premises; the landlord of both was J. Dyre Dungan.
    “The lease between Dungan and Hillegass is dated June 27th, A. D. 1867; it commenced on the 1st of July then ensuing, and was to continue thereafter, from month to month, until the 1st day of July, A. D. 1872, at the rent of $1000 per annum. This lease contained a covenant on the part of the lessee, ‘ that he would not let or demise, or in any manner dispose of thb demised premises, or any part thereof, for all or any part of the term, to any person or persons whatsoever.’ This relation existed between the landlord and his tenant Hillegass up to the 20th of January, A. D. 1869, on which day Hillegass assigned in writing, under seal, the residue of the term to the defendant Winston F. Rogers.
    “ The premises having been used as a distillery by Hillegass, he by the same instrument transferred ‘ all the machinery, stills, boilers or whatever used in carrying on the business of -said distillery.’ Hungan, the landlord, agreed to this change by writing. The defendant Rogers entered into possession under this agreement, and carried on business as a distiller; it was during this possession that all the claims now made originated.
    “ He was sold out by the sheriff on December 29th 1869, under the Blake judgment, the levy thereunder having been made on 24th September preceding. The property thus sold were the fixtures of his distillery, with some office furniture of inconsiderable value.” * * *
    “ By the Act of Congress of July 20th 1868, relating to excise duties, § 1, 15 Stat. at Large 125, 2 Brightly’s Digest of U. S. Laws, 115, ‘ a tax of fifty cents on each and every proof gallon’ was directed to be levied and collected on all distilled spirits on which the tax prescribed by law has not been paid, &e., which tax was ‘ to be paid by the distiller, owner or person having possession thereof, before removal from distillery warehouse.’ And every proprietor or possessor of a still, distillery or distillery apparatus, and every person in any manner interested in the use of any such still, distillery or distillery apparatus, shall be jointly and severally liable for the taxes imposed by law on the distilled spirits produced therefrom, and the tax shall be a first lien on the spirits distilled, the distillery used for distilling the same, the stills, vessels, fixtures and tools therein, and on the lot or tract of land whereon the said distillery is situated, with any building thereon, from the time said spirits are distilled until the said tax shall be paid.
    “ And by the Act of Congress of January 18th 1864, relating to the internal revenue system, sect. 28, 2 Brightly’s Digest 301, the amount of all unpaid taxes, it is said, shall he a lien in favor of the United States from the time it was due until paid with the interest, penalties and costs that may accrue in addition thereto, upon all property and rights to property belonging to such person.” * * *
    “The defendant Rogers was actually indebted in the sum of $1613 to the United States, for unpaid taxes alone on his distilled spirits, after his ownership of the lease, and prior to the date of the levy under the Black judgment, viz., during the months of June and July. This sum, by the positive language of the Act of 1868, is made a first lien. It is greater in amount than the sum awarded, and therefore all further discussion as to that due and unpaid since the levy and prior to the sale, as well as for the other branch of the claim, is unnecessary.” * * *
    March 23d 1871,
    The auditor, therefore, awarded the whole balance, $1332.17, to G-eorge C. Evans, United States collector, &c.
    The report of the auditor having been confirmed by the District Court after exception, Dungan and Blake appealed to the Supreme Court, and assigned the decree of confirmation for error.

      P. Archer and L. 0. Oassidy, for Dungan ; Or. JunJcin, for Blake.
    The sheriff sold subject to the fixed lien of the government: Reed’s Appeal, 1 Harris 476; Vandyke v. Bennett, 1 Tr. & H. Pr. 724; Mentzer v. Menor, 8 Watts 296; Vandever v. Baker, 1 Harris 121; Mann’s Appeal, 14 Wright 375.
    The right of the government could not operate over the lien of a prior contract — the lease.

      N. S. Sharpless (with whom was J. Qooke Longstreth), for appellee,
    referred to the Acts of Congress cited in the auditor’s report; Taylor v. Carryl, 12 Harris 259; s. c., 20 Howard 253; Hagan v. Lucas, 10 Pet. 400
    The landlord has no lien for rent on goods sold under execution; he has merely priority of payment from the proceeds.
   The opinion of the court was delivered,

by

By the report of the auditor, it appears that the property sold were the fixtures of the distillery of Winston E. Roger's, the defendant in the Blake judgment, consisting of tubs, boilers, tools, stills, &e., with some office furniture of inconsiderable value, all on and belonging to the distillery premises. The defendant became indebted to the United States for taxes on his distilled spirits, manufactured in this distillei’y, and for his deficient returns, and for a capacity-tax on his distillery. Rogers was actually indebted to the United States in the sum of $1613 for unpaid taxes alone on his distilled spirits, which being greater than the amount for distribution, makes it unnecessary to consider the remaining portions of the claim of the government.

By the Act of Congress of 20th July 1868, “ imposing taxes on distilled spirits and tobacco, and for other purposes,” (15 Stat. at Large 125), it is enacted “ that there shall be levied and collected on all distilled spirits, on which the tax prescribed by law has not been paid, a tax of fifty cents on each and every proof gallon, to be paid by the distiller, owner or person having possession thereof before removal from distillery warehouse; and the tax on such spirits shall be collected on the whole number of gauge or wine gallons, when below proof, and shall be increased in proportion for any greater strength than the strength of proof spirit as defined in this act; and any fractional part of a gallon in excess of the number of gallons in a cask or package shall be taxed as a gallon. Every proprietor or possessor of a still, distillery or distilling apparatus, and every person in any manner interested in the use of any such still, distillery or distilling apparatus, shall be jointly and severally liable for the taxes imposed by law on the distilled spirits produced therefrom, and the tax shall be a first lien on the spirits distilled, the distillery used for distilling the same, the stills, vessels, fixtures and tools therein, and on the lots or tracts of land whereon the said distillery is situated, together with any building thereon, from the time said spirits are distilled until the said tax shall be paid.”

The argument of the appellants is, that the sheriff could not sell the property except subject to the lien of the government for the unpaid tax. In plain language, he could not give a title to the property sold by him as an officer of the law. If, therefore, he sold the articles levied upon in twenty-five different lots to twenty-five different persons for twenty-five different prices, would each lot be subject to the whole fixed lien, or how much of it ?

The case of The Royal Saxon is an answer to this argument. In Taylor v. Carryl, 20 Howard 583, the Supreme Court of the United States held that, where property is levied upon, it is not liable to be taken by an officer acting under another jurisdiction. Speaking of a seizure by a sheriff under process from a state court, and a subsequent seizure of the same property by the marshal, under process against the same defendant, it is said, “ The marshal or the sheriff, as the case may be, acquires a special property in the goods, and may maintain an action for them. But if the same goods may he taken in execution hy the marshal and the sheriff\ does this special property vest in the one or the other, or both of them ? NO SUCH CASE CAN EXIST: property once levied upon remains in the custody of the law, and is not liable to be taken by another execution in the hands of a different officer, and especially by an officer acting under another jurisdiction.”

The sheriff having sold the property under an execution from a state court, the distribution will be made by that tribunal, and in so doing, it will recognise the unpaid tax on the distilled spirits as the first lien, and direct its payment accordingly. This has been done by the court below in the present case, following the precedent in the appeal of The United States v. Black et al., from the decree of the Court of Common Pleas of Cumberland county, the opinion in which case was filed at Pittsburg on the 19th October 1869.

This, of course, reaches the claim of the landlord, the unpaid tax being made a first lien on the distilled spirits, the distillery used for distilling the same, the stills, vessels, fixtures and tools therein, from the time said spirits are distilled until the said tax shall be paid, which secures its first payment out of the proceeds of such sale.

“ The power to impose taxes is one so unlimited in force and so searching in extent, that the courts scarcely venture to declare that it is subject to any restrictions, except such as rest in the discretion of the authority which exercises it. It reaches to every trade or occupation; to every object of industry, use or enjoyment ; to every species of possession, and it imposes a burden which in case of failure to discharge it, may be followed by seizure and sale or confiscation of propertyCooley on Constitutional Limitation 479. The laws of the United States are supreme on all subjects to which the legislative power of Congress extends.

Decree affirmed, and appeals dismissed at the costs of the appellants.


author: by A&new, J.

text:
    Woodward versus Wilson.
    1. A mechanics’ lien was filed against Woodward for materials furnished to buildings on a lot described as “belonging to the above-named Woodward,” who was named in the claim “ as owner or reputed owner.” In an affidavit of defence by Woodward to a scire facias, he averred that the ground belonged to his wife, that he was in possession of the lot, and without her consent but at his own instance and for his benefit, without her knowledge he contracted for the materials, &c. Held, to be insufficient.
    2. Such a claim is no lien on the wife’s estate.
    3. The curtesy of the husband could not be levied on and sold upon a levari facias.
    4. The creditor alleging in his claim that the title is the husband’s, her title could not be set up as a defence to a scire facias.
    3. She is not a party, and cannot intervene to prevent the creditor from having his remedy against the proper and independent title of the husband.
    6. The husband cannot set up her title in his own defence.
    7. The creditor alleging in his claim that title was in the husband, could have judgment against the husband, sell and purchase his title and thus contest the wife’s claim to the property by ejectment.
    March 17th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 189, to July Term 1870.
    This was a scire facias sur mechanic’s lien by Abel Wilson against Byron Woodward, owner or reputed owner, and Thomas Eoulkrod, contractor, brought to December Term 1869.
    The claim was as follows:—
    Abel Wilson, of, &c., files his claim or statement of demand against the buildings hereinafter mentioned, the ground covered by said buildings, and so much other ground immediately adjacent thereto and belonging to the above-named Byron Woodward, as may be necessary for the ordinary and useful purposes of the same, and sets forth as follows, viz.:—
    “ 1. The name of the claimant is Abel Wilson; the name of the owner or reputed owner of said buildings is Byron Woodward, &c.
    “2. The amount claimed to be due is $754.18 for lead pipe, terra cotta pipe, bath-tub, plumbing materials and fixtures, and zinc, also for tin work, roofing and plumbing,” &c.
    Byron Woodward filed an affidavit of defence as follows:—
    “ That by deed, dated June 1st 1860, Edward Hayes granted in fee simple unto Emma C. Woodward, then wife of this affiant, a certain lot or piece of ground, with a three-story brick dwelling-house thereon erected; situate, &c. And thereupon the said Emma became the sole and absolute owner of said lot or piece of ground, with said dwelling-house thereon erected, as aforesaid. That said dwelling-house occupied but about 17 feet of the front of said lot, and the remaining part of said lot was intended for the use of said dwelling, and was used as a sideyard for said dwelling by the occupants thereof.
    “ That in the early part of September 1869, your affiant, without the knowledge of his said wife Emma, and for his own benefit and advantage, and on account of his own sole responsibility— and not for the benefit or advantage of the said Emma, nor at her instance, nor on her behalf, made and entered into a contract with the said Thomas S. Eoulkrod, a builder, to erect and construct for him, your affiant, upon the said lot of ground of his said wife Emma, the building mentioned or described in the claim upon which this suit is brought [with the exception of the summer-kitchen, which was afterwards put up by said Eoulkrod, at the sole instance and inquest of this affiant, and for his sole use and-benefit, and not at the instance of the said Emma, nor for her use- and benefit], for the price or sum of $6000. And the said Eoulk-rod then agreed to erect and construct said building for this affiant, and find all the materials necessary therefor — with the-exception of said kitchen, for said sum of $6000. That the cost of said kitchen would not exceed the sum of $300.

      “ That at the time of the commencement of said building youraffiant was in the possession of the lot on which the same is now-erected, but the said Emma was the sole and exclusive owner of the lot of ground aforesaid, and this affiant had no estate therein. That the said Emma has not in any way contracted with said plaintiff for the work and materials or any part thereof mentioned in said claim, but the same were contracted for exclusively by the said Eoulkrod. That he has already paid to said Eoulkrod, and on his orders, and at his request, for the erection and construction of said building, upwards of $7000, $1000 more than the contract price and more than the whole work done upon and materials used in said building and kitchen were worth. That the erection of said building on said lot adds nothing to the value of the lot itself, independent of the building, but renders the old dwelling-house of less value by depriving it of the use and benefit of a sideyard.”
    May 8th 1871,
    The court below entered judgment in favor of the plaintiff for want of a sufficient affidavit of defence.
    This was assigned for error on the removal of the case by the defendant to the Supreme Court.
    6r. W. Biddle, for plaintiff in error.
    By the Act of April 28th 1840, § 24, Pamph. L. 474, Purd. 714, pi. 40, a mechanic’s lien shall not extend to any greater estate than that of the person in possession at the time of commencing the building, and at whose instance the same is erected; nor shall any greater estate be sold, &c. The husband has no present estate or interest: Gamble’s Estate, 1 Pars. 489; Act of April 1st 1863, § 1, Pamph. L. 212, Purd. 1306, pl. 1. The claim should not have been filed against the entire fee, because the judgment and execution must follow the claim: Foster v. Fowler, 10 P. F. Smith 27; Carey v. Wintersteen, Id. 395; Bruner v. Sheik, 9 W. & S. 119; Haworth v. Wallace, 2 Harris 118. A mechanic’s claim must be based upon a contract with the owner of the fee: Harlan v. Rand, 3 Casey 514. An express contract is required where it is sought to hold a married woman for necessaries: Murray v. Keyes, 11 Casey 384; Parke v. Kleeber, 1 Wright 251; Lippincott v. Hopkins, 7 P. F. Smith 328. Glidden v. Strupler, 2 Id. 400, and Kirk v. Clark, 9 Id. 479, hold that a married woman is beyond the reach of the doctrine of estoppel, arising from consent, acquiescence and encouragement.

      A. Letehworth, for defendant in error,
    cited Keeney v. Good, 9 Harris 349; Gamber v. Gamber, 6 Id. 363.
   The opinion of the court was delivered,

by

A&new, J.

This mechanics’ claim was filed against Byron Woodward as the owner, and Thomas S. Foulkrod as the contractor, for the erection of a building upon ground alleged to belong to Byron Woodward. He has filed an affidavit of defence to the scire facias on this claim that the title of the ground is in his wife, and that he contracted for the building for his own benefit, and -not for the benefit of his wife, or at her instance or in her behalf. Is this a good defence to a claim against himself as owner? We have held in Finley’s Appeal, 17 P. F. Smith 453, that such a claim is no lien upon the estate of the wife, and that her title cannot be sold upon it. Even the curtesy interest of the husband in her estate of inheritance cannot be levied and sold upon the levari facias since the Act of 1st April 1863, § 1: Brightly’s Dig. 1306, pi. 1. And even before the Act of 1863 the curtesy interest of the husband was not liable to sale during the lifetime of the wife: Act 22d April 1850, § 11; Brightly’s Dig. 700, pi. 16. It is evident, therefore, that the only interest liable to the lien of the mechanic in this case is an estate of Byron Woodward, held in his own right and upon his own independent title. Now if the creditor alleges that the property is his and not that of his wife, on what principle can her title be set up as a defence in the scire facias ? It is nothing to her whether judgment goes against her husband in this proceeding, for it is wholly inoperative as to her estate, or as to the estate of the husband derived by the curtesy from her. She is no party to the proceeding, and cannot intervene to prevent the creditor from having his remedy against the proper and independent title of her husband. Much less can the latter set up her title in Ms own defence. A judgment against him can be levied only of his own estate or title. To that he sets up no defence. If the title be that of the wife or of the husband by curtesy only, neither she nor he can be dispossessed. The purpose of the Act of 1850, and still more of the Act of 1863, was to prevent the wife from being deprived of the benefit of her estate through the derivative interest of her husband; for to drive him from the possession is effectually to deprive her of the enjoyment of her own property. But to the creditor who asserts that the property is her husband’s and not hers — that the deed to her is but a trust, the property being bought and paid for by him — the right to judgment on the claim is essential. Without it he cannot sell the title of the husband, and place himself or another as a purchaser at sheriff’s sale in a position to contest her claim to the property by ejectment. To allow the husband to set up a title in his wife in defence to a claim against his own title, would shut the door against the proof of the fraud, or else compel the purchaser at sheriff’s sale to fight over the battle waged upon the scire facias; for Mrs. Woodward would not be concluded by the verdict without being brought in and made a party to the scire facias and the trial. We think the . affidavit of defence was therefore insufficient.

Judgment affirmed.


text:
    Mullison’s Estate. Stevenson’s Appeal.
    1. M. executed a mortgage to B. without consideration, for the purpose of having it sold to raise money for M.; B. held the mortgage as trustee for M. and was bound to dispose of it according to M.'s direction.
    2. A personal engagement by the mortgagee to raise the money in the future would be a consideration for the mortgage.
    3. A positive agreement by B. to sell the mortgage and hold the proceeds for M. would be only a gratuitous promise.
    4. The mortgage therefore was not available against subsequent lien-creditors from its date, but only from the time money was advanced upon it.
    5. An assignee of B. of the mortgage having notice that it was without consideration to B. but for the mere purpose of raising money for M. by its sale, would be put upon inquiry as to whether there were liens intervening between its date and his purchase.
    6. Offering a note by the maker for discount is primS, facie evidence that-it is an accommodation note.
    7. If the mortgagor sells a mortgage, it is a circumstance to put the purchaser on inquiry.
    8. The assignee of the purchaser of the mortgage is in the same position as the purchaser.
    9. The assignee of a mortgage takes it subject to all the equities between the original parties, but not to any secret equities not arising out of the instrument.
    March 17th 1871. Before Thompson, O. J., Read, Agnew and Sharswood, JJ. 'Williams, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Philadelphia: No. 158, to July Term 1870. In the matter of the distribution of the proceeds of the sheriff’s sale of the real estate of John R. Mullison.
    The money was produced by a venditioni exponas to December Term 1869, issued by George Williams against Mullison, under which a lot of ground on which were erected five buildings was sold; the money-paid into court was $5231.68, and George D. Budd, Esq., was appointed auditor to distribute it.
    The facts in the case, as shown by the report of the auditor, are these: On the 5th of March 1868, Mullison became owner of the ground sold under the execution, and afterwards divided ■ it into five'lots for building. About the 7th of September 1868, Mullison contracted by parol with William Henderson to erect five buildings for, him on the lots. On the 21st of September, and before the commencement of the buildings, he executed and delivered to Thomas J. Butterworth five mortgages of the ground, two for $1000 each and three for $800; the mortgages were recorded the same day. There was no consideration from Butter-worth to Mullison, but the mortgages were made for the purpose of raising money for Mullison, as he might need it for the houses, and there was no agreement that Butterworth should raise money for Mullison. On the 22d of September the contract with Henderson was consummated by writing, and early in October the work on the buildings was commenced.

      On the 3d of December, Charles E. Willis advanced to Mullison $1150, to secure which Mullison executed a judgment-bond upon which judgment was entered in the District Court of Philadelphia. On the same day, Butterworth, by Mullison’s direction, assigned the mortgages to Mr. Willis as collateral security for the payment of his bond. This assignment was acknowledged on the day of its date, but not recorded until January 20th 1870. The mortgages remained in the possession of Henry Haines, Esq., the agent and conveyancer of Mr. Willis, until some time in April 1869, when Mullison called at Mr. Haines’s office in his absence, and, without his knowledge, obtained the mortgages from a clerk, who supposed that Mullison was authorized to receive them. In the meanwhile the buildings were progressing towards completion, and Mullison becoming more and more pressed for money, he proceeded to use the mortgages as a means of raising money. He therefore applied to Mattys Kaas, a licensed pawnbroker, who referred him to his conveyancer, Isaac M. Post, Esq.; he, at the request of Kaas, examined the properties and pronounced them good security for the amount. On the 6th of May 1869, Butterworth, at Mullison’s order, executed assignments of the mortgages to Kaas, which were acknowledged on the same day, and recorded November 6th 1869. The assignments were absolute on their face and for the consideration of $2800. “ On the same day Kaas entered into a collateral agreement with Mullison, where- ' in the assignment of the mortgages was recited, and a condition inserted that if a certain debt of three thousand three hundred dollars, incurred by Mullison to Kaas, should be paid within six months from that date, then the said assignment to be null and void, but if otherwise then the said mortgages to become the absolute property of the said Mattys Kaas. Five hundred dollars of this sum, represented interest, or possibly a bonus, to be paid for the negotiation of the mortgages. This whole transaction appears to have been carried on by Mullison. He had possession of the mortgages. He gave information as to the condition of the property. He produced the surveyor’s certificate of survey. He obtained from Butterworth assignments in blank, in which after-wards the name of Kaas was inserted. He signed the collateral agreement with Kaas, and finally, upon a written order of Butter-worth’s, received the whole $2800 eonsideration-mon.ey, and receipted for Butterworth for the same. The money thus obtained, was applied to the payment of the debts contracted in the building operation. * * * There seems to have been no effort made to discover the true relation between Mullison and Butterworth. Mr. Kaas * * * paid his money in good faith, believing that he had purchased mortgages which were good liens on the property and subject only to the ground-rent. On the 5th of November 1869, he assigned the mortgages for a valuable consideration to Washington J. Stevenson, the present holder. Prior to the execution and delivery of this last assignment, Mr. Stevenson was notified by Richardson L. Wright, Jr., Esq., the attorney in fact of the mortgagor, that the creditors of the latter' would contest the payment of the mortgages, and, acting under the advice of Mr. Wright, Mr. Mullison declined to give a certificate of no set-off.” * * * The judgment in favor of Willis, and the mortgages as assigned to him by Butterworth, were assigned to Henry Haines, Esq., who in the distribution claimed under these assignments.
    The auditor, after further discussing the facts and examining the law, proceeded: “ From this review of the cases, the auditor finds: that a mortgage or judgment may be given to cover future advances, and as between mortgagor and mortgagee such advances will be covered, no matter when made. If there be no binding agreement to advance, and the rights of third parties have intervened, then only such advances will be covered as have been made prior to intervening encumbrances; subsequent advances only having a lien from the date of their payment; but if there be an agreement obligatory upon the mortgagee or judgment-creditor, executed contemporaneously with the mortgage or entering of the judgment, all advances made in pursuance of this agreement and conformably to it, will have a lien as of the date of the record of the mortgage or entering of the judgment. There is no distinction in this respect between encumbrances arising by judgment and those by claim filed under the laws relating to mechanics and material-men; and this whether the claim be filed prior or subsequently to the advance made, for the claim reverts to the commencement of the building and takes precedence of everything that was not a valid subsisting lien at the time the ground was broken.
    “ Now, to apply these principles to the facts of the present case. As between Mullison and Stevenson there can be no question. But the rights of three judgment-creditors and many mechanics and material-men who did work and furnished materials upon the credit of these buildings have intervened. Stevenson stands exactly as Kaas stood; he took the mortgages subject to every defence that could be made against them when they were in the hands of Kaas. The auditor does not think that the notice given to Stevenson, that the payment of these mortgages would be contested, can enter into the present consideration. Notwithstanding this notice he acquired all the rights of Kaas, to whom no such notice had been given prior to the assignment to him by Butter-worth.” * * *
    “Kaas acquired a good and valid title to the mortgages, subject to the payment of Mr. Willis’s judgment. The auditor further decides that as against the mortgagor and as against encumbrancers whose liens take effect as of a date subsequent to May 9th 1869, the day of the advance made by Kaas to Mullison, the holder of the mortgages would be entitled to receive from the fund for distribution the full sum advanced with interest. But, inasmuch as certain judgments were entered and certain mechanics’ liens accrued in the interval between the creation of these mortgages and their negotiation to Kaas, the lien of these mortgages must be postponed so as to allow priority of lien to said judgment and lien creditors. As the judgment of Willis is thus entitled to priority it relieves the ease of the discussion of the effect of the assignment of the mortgages to him as collateral security. The distribution of the fund will therefore be made according to the following scheme:—
    March 30th 1871,
    “1. To the liens of mechanics and material-men.
    “ 2. To the judgments entered prior to May 9th 1869, according to their seniority, as far as the fund reaches.”
    The auditor reported a schedule of distribution in accordance with the foregoing principles; and therefore excluded Stevenson from the fund.
    After exceptions by Stevenson to the report it was confirmed by the Court of Common Pleas. Stevenson appealed to the Supreme Court, and assigned the decree of confirmation for error.

      J. O’Byrne and B. W. Sellers, for appellant.

      B. Brady, <7. B. Downing, T. J. Barger and 6r. W. Thorn, for the several judgment and lien creditors to whom the fund was awarded, appellees.
   The opinion of the court was delivered,

by Sharswood, J.

When the five mortgages bearing date September 21st 1868 were executed by John R. Mullison in favor of Thomas J. Butterworth, without consideration, but for the purpose of being subsequently sold to raise money upon for the use of the mortgagor, Butterworth held them merely as a trustee for Mullison, bound to dispose of them according to his direction. There was no agreement by Butterworth to advance the money, and even if there had been a positive undertaking by him to sell the mortgages and hold the proceeds for Mullison’s use, it would have been only a gratuitous promise to perform the duty of the trust which he at the same time assumed. It would not give consideration to the mortgages themselves as would a personal engagement by the mortgagee to advance the money in the future. It would not, therefore, make the mortgages available as against subsequent lien-creditors of the mortgagor, at least not from their date, though it may be conceded that they would be valid securities from the time of the advances, whether made by the mortgagee or his assignee. This seems to be the clear result of all the cases: Terhoven v. Kerns, 2 Barr 96; Parmentier v. Gillespie, 9 Id. 86; Moroney’s Appeal, 12 Harris 372, s. c. 3 American Law Reg. 169.

Upon the facts as reported by the auditor below and not the subject of exception, Kaas, the assignee of Butterworth, must be held to have taken the mortgages with notice that they were without consideration but made for the mere purpose of raising money by the sale of them — that they were not owned by the mortgagee but by the mortgagor. This was quite sufficient to put him upon inquiry as to whether there were any intervening liens or encumbrances, between the date of the mortgages and his purchase. For in what is an entirely analogous case it has always been held that when the maker of an endorsed note offers it for discount, that is not in the usual course of business, and is primá facie evidence that it is an accommodation note. If the transaction were real the payee would be the owner of the note — he alone would have a right to sell and dispose of it: Parke v. Smith, 4 W. & S. 287; Eckert v. Cameron, 7 Wright 121; Byles on Bills 126, note 1. So if the mortgagor negotiates the sale of a mortgage it is a circumstance which ought to put the purchaser upon inquiry. The auditor reports, “ that the whole transaction of the sale of the mortgages to Kaas was carried on by Mullison. He had possession of the mortgages. He gave information as to the condition of the property. He produced the surveyor’s certificate of survey. Pie obtained from Butterworth assignments in blank, in which afterwards the name of Kaas was inserted. He signed the collateral agreement with Kaas, and finally upon a written order of Butterworth’s received the whole $2800, consideration-money, and receipted for Butterworth for the same.” There was certainly in all this sufficient to put Kaas upon inquiry as to what the true relation was between Butterworth and Mullison. No inquiry was ever made upon the subject. Washington J. Stevenson, the present appellant, who is the assignee of Kaas, stands in no better position than his assignor. The auditor reports it as a fact that “ prior to the execution and delivery of this last assignment, Mr. Stevenson was notified by Richardson L. Wright, Jr., Esq., — the attorney in fact of the mortgagor — that the creditors of the latter would contest the payment of the mortgages.”

The assignee of a mortgage takes it subject to all equities between the original parties, but not to any secret equities of strangers, not arising out of the instrument: Mott v. Clark, 9 Barr 399; Taylor v. Gitt, 10 Id. 428; McConnell v. Wenrich, 4 Harris 365. It is unnecessary to decide in this case, and we do not decide, that if Kaas or Stevenson had, either of them, fairly stood in the position of bon& fide purchasers of the mortgages without notice that they were originally executed without consideration, for the purpose of raising money by their subsequent sale, but had become assignee under circumstances which would have estopped the mortgagor as by a declaration by him of no defence or set-off — that the appellant would have been affected by the liens subsequent to the date of record of the mortgages, whether of judgments or mechanics’ claims upon the property. A person to whom a mortgage is offered for sale, either by the mortgagee, his agent or broker, and who makes due inquiry of the mortgagor, and receives from him a declaration that he has no defence or set-off, and then in good faith pays his money, would present, perhaps, a different case for the consideration of a court of equity from that which is presented by this appellant.

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


text:
    McCarthy’s Appeal.
    1. During tbe temporary absence of a debtor, bis wife or other person left in charge is authorized to claim the benefit of the exemption laws for him.
    2. If a debtor has fraudulently concealed or removed any of his other property, it will bar his claim to the exemption.
    3. The Exemption Law does not extend to cases of persons the subject of foreign attachment, nor, it seems, of those subject to domestic attachment.
    March 20th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Lehigh county: No. 30, to July Term 1870.
    The appeal in this case was from the decree of the court below, distributing the proceeds of the sale of the real estate of Charles B. McCarthy in Allentown, under an execution at the suit of Miller, Fetherwolf & Co. The contention was between the defendant under the Exemption Law and S: A. Bridges, Esq., a judgment-creditor.
    The appraisers “ summoned by the sheriff to appraise the property retained by the defendant,” under the exemption laws, certified that it could not be divided, and valued it at $600. After deducting mechanics’ lien, costs, &c., the balance for distribution was $127.79. Mr. Bridges’ judgment amounted to $382.11.
    The auditor, J. W. Wood, Esq., reported that amongst the claimants who appeared at the hearing was “ Mrs. McCarthy by her counsel, H. C. Hunsberger, Esq.”
    There was evidence that the defendant, who was a carpenter, had been living in Allentown, and before the 15th of May had been working for a Mr. Breen; on that day he left the place and took with him only his tool-chest; said he was going to Jersey to build two new houses; his wife remained; he left some furniture. A few days afterwards, persons to whom lie was indebted took some of the furniture; his wife was there and did not object to the removal. Breen, who was a creditor, remonstrated against jts removal, but the wife still allowed it.
    May 8th 1871,
    The auditor reported that the claim for exemption “was resisted by Mr. Bridges, on the ground, first, that McCarthy was an absconding debtor, and second, that he was a non-resident, and therefore liable to foreign attachment.” After the discussing the case the auditor allowed “ Mrs. McCarthy to have the exemption,” and in his schedule, after enumerating prior claims, he stated this claim thus: “Balance allowed defendant under Exemption Law, $127.79.”
    Mr. Bridges excepted to the report of the auditor.
    The court (Longaker, P. J., saying that the only question was whether the wife could claim the exemption for her husband) decided that she could not claim the exemption unless by^the authority of her husband, and that such authority could not be presumed from the relation of husband and wife.
    He further said: * * * “We are therefore of the opinion that the auditor erred in distributing the balance of the proceeds to the defendant. He has taken no part in these proceedings, and having departed from the state as an insolvent debtor, leaving his personal property and real estate at the disposal of his creditors, we are warranted in finding the fact that he never intended to claim the exemption. The defendant therefore having waived his privilege, his wife neither for him nor for herself, without his authority or subsequent ratification, can set it up for him. * * * The distribution must therefore be reformed so far as regards the $127.79 awarded to the defendant in the execution, and the same is hereby awarded to S. A. Bridges, Esq., on account of his judgment.”
    McCarthy appealed, and assigned this decree for error.

      II. 0. Hunsberger and E. J. Moore, for appellant,
    cited Yelverton v. Burton, 2 Casey 351; Huey’s Appeal, 5 Id. 219; Strouse v. Becker, 2 Wright 190; Waugh v. Burkett, 3 Grant 319; Kenyon v. Gould, 11 P. E. Smith 292; Chew’s Appeal, 9 Wright 228; Stewart v. Bowen, 13 Id. 245; Shaw’s Appeal, Id. 180; Wilson v. McElroy, 8 Casey 82.

      C. M. Runic (with whom was E. A. R. Baldwin), for appellee,
    cited Yelverton v. Burton, supra.

   The opinion of the court was delivered,

by Sharswood, J.

The real estate of the defendant was sold by the sheriff and the proceeds paid into court. An auditor was appointed to make distribution, upon whose report, awarding a balance of $127.79 to be paid to tbe defendant under the Act of April 9th 1849, Pamph. L. 533, commonly called the Exemption Law, exceptions were filed by a judgment-creditor, which were sustained by the court and the money awarded to him.

The ground upon which the decree below is based is, that the claim before the auditor was made by the defendant’s wife or an attorney who appeared for her. The defendant was absent from the county, under what circumstances will be presently noticed. The learned judge below thought that the wife of the defendant was not entitled to the exemption in her own right, in which he was clearly right, and also that she could not make the claim for her husband without showing her husband’s assent thereto, in which we think that he was just as clearly wrong. The balance in court should be awarded not to the wife or her attorney, but to the husband. No one can receive it and give a valid discharge to the prothonotary but the husband or an attorney’ duly authorized by him. It was held by this court, in Wilson v. McElroy, 8 Casey 82, that during the temporary absence of the owner any person left in charge of the premises, and especially a child of proper age, is authorized to claim the benefit of the Exemption Law in case of a levy under an execution. “ The undoubted object of the legislature in enlarging the exemption,” said Mr. Justice Church, “was the protection somewhat of the debtor’s family when there is any; and hence the members of it, so far as relates to notice that it is claimed in the temporary absence of the debtor, might almost be considered in the light of cestuis que trust.” The principle applies with equal if not greater force to the wife of the debtor, and it has been expressly held accordingly that she is competent to make the claim: Waugh v. Burkett, 3 Grant 319.

Undoubtedly if the debtor has fraudulently concealed or removed any of his other property it would bar him of all claim to exemption: Emerson v. Smith, 1 P. F. Smith 90. If a man absconds, having turned his property into cash, or taken with him in specie any part of it, so as to show clearly a design to defraud his creditors, the case would be very plain. “If,” said Mr. Justice Agnew, “ a debtor can hide his property or keep it under cover so as to conceal its knowledge from the officer, and thereby assist himself to retain that which he finds it convenient or necessary to keep openly, his fraud bears directly upon the latter, for it is because the former is unknown or out of the way, the latter is suffered to remain with him.” Mr. Justice Woodward was warranted in the remark made by him in Yelverton v. Burton, 2 Casey 354: “ We do not legislate for men beyond our jurisdiction, and certainly not for absconding debtors; but the Act of 1849 was designed for our own citizens — for the families of the poor who are with us — that the rapacity of creditors might not strip them of every comfort and convenience.” This is said of persons non-residents, subject to the process of foreign attachment, but it is applicable as well to those who are the subjects of a domestic attachment. It is true, that by the 20th section of the Act of June 13th 1836, entitled “ An Act relating to Domestic Attachments,” Pamph. L. 611, it is provided, “ that the wife and family, if any, of such debtor shall be entitled to retain for their own use, such articles as may be exempted from levy and sale upon execution.” This provision is unaffected by the Act of 1849, which gives the $300 in lieu of the property now exempt by law from levy and sale on execution, issued upon any judgment obtained upon contract and distress for rent.” I am not aware of any act extending the $300 exemption to the case of a domestic attachment.

The auditor reported that the defendant below was not an absconding debtor, and we cannot say, upon an examination of the evidence, that he therein committed a plain mistake. McCarthy was a house carpenter. He evidently became embarrassed with debts. He had some furniture; perhaps more than was necessary and of better quality. According to the testimony of Thomas Breen, “ Michael Corbett and Mrs. Gallagher took furniture away; the parties taking it claimed it as payment for their debts; he knew that they had a claim.” They were not produced, nor was any evidence given to show that this was not boná fide on the part of the wife in permitting these persons to have the furniture. When McCarthy left he said he had a job in New Jersey, a contract to put up two houses there. All that he took with him was his chest of tools. There was no evidence that he had sold and converted anything into money. It would be a very harsh application of the rule, even if it exists in regard to all absconding debtors, to apply it in a case of this character — that of a debtor thus struggling with debt, and striving with his tools still to make a living for his family. No evidence was given as to the value of the tool chest and its contents. ■ The great probability is, that it would not, with the balance of $127.79, make up the full $300 to which the law entitled the defendant in the execution. ■

Decree reversed, and now it is ordered and decreed that' the distribution as reported by the auditor be confirmed, and record remitted that this decree may be carried into execution.


author: by Read, J.

text:
    Rockey versus Burkhalter.
    1. Replevin in which, a claim property bond has been given, is a bar to an action of trover for the same goods.
    2. A claim property bond given by the defendant extinguishes the plaintiffs property in the goods.
    March 21st 1871. Before Thompson,C. J., Read, Asnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 452, to January Term 1870.
    On the 9th of February 1869, John Rockey brought an action of trover against Erwin Burkhalter, for a large number of hides alleged to belong to the plaintiff, which he averred the defendant had converted to his own use. The defendant pleaded the general issue.
    The case was tried February 17th 1870, before Hare, P. J. On the trial, after the plaintiff had submitted his case, the defendant offered the record of an action of replevin, commenced to April Term 1869, by the plaintiff in this case against the defendant in the Court of Common Pleas of Lehigh county for the same goods, in which the defendant had given a claim property bond, dated February 13th 1869, and retained the goods. The plaintiff objected to the offer, it was received by the court, and a bill of exceptions sealed. The court then charged the jury “that the action pending in the Court of Common Pleas for the county of Lehigh was a bar to the present suit, and that the jury must therefore find for the defendant.”
    The verdict was for the defendant.
    The plaintiff removed the record to the Supreme Court and assigned for error the admission of the defendant’s offer of evidence and the charge of the court.

      P. Pittman, for plaintiff in error.
    Matters which go merely to the suspension of the action, or which do not determine the merits of the controversy, must be pleaded in abatement: Boyce v. Bayliff, 1 Campb. 60; Sparry’s Case, 5 Coke 61; Bonner v. Hall, 1 Ld. Raym. 338; Parker v. Colcord, 2 N. Hamp. 46; Froq v. Long, 3 Dana 157; Morton v. Ward, 7 Verm. 123; Findlay v. Keim, 12 P. F. Smith 112; Root v. Chandler, 10 Wend. 111; Van Bushkirk v. Irving, 7 Cowen 35; Demick v. Chapman, 11 Johns. 132; Toland v. Tichenor, 3 Rawle 320.

      P. Savvey, for defendant in error.
    By giving the property-bond the property in the goods was changed to the defendant: Fisher v. Whoollery, 1 Casey 199; and all liability is on the bond: Taylor v. The Royal Saxon, 1 Wall. Jr., 331-2; Aurentz v. Porter, 6 P. F. Smith 115; Castor v. McShaffery, 12 Wright 437; Mather v. Trinity Church, 3 S. & R. 512; Fleming v. Bevan, 2 Barr 408; Sylvester v. Girard, 4 Rawle 189; Grubb v. Guilford, 4 Watts 241; Merrick’s Estate, 5 W. & S. 9; Marsh v. Pier, 4 Rawle 285; Cooper v. Chitty, 1 Burr. 31; 2 Hilliard on Torts, p. 108, pl. 8. The right of action could be assailed only under a plea in bar: Stephen on Pl. 432 ; Drew v. Spaulding, 45 N. H. 478; Barber v. Dixon, 1 Wils. R. 45; Birch v. Wilson, 2 Mod. 275; 1 Tidd’s Practice, § 651; 1 Smith’s Lead. Cas. 598 (151), note to Armory v. Delamirie; Webb v. Fox, 7 T. R. 391; Jordan v. Cooper, 3 S. & R. 564.
    March 30th 1871,
    In Pennsylvania replevin lies in all cases where one claims goods in the possession of another and without regard to the manner in which possession was obtained: Weaver v. Lawrence, 1 Dall. 156; Reist v. Heilbrenner, 11 S. & R. 132; Bower v. Tallman, 5 W. & S. 556; Harlan v. Harlan, 3 Harris 513; Hilliard on Torts 5, § 7.
    The claim property-bond changed the title: Taylor v. The Royal Saxon, Fisher v. Whoollery, supra; Ruch v. Morris, 4 Casey 249; Lowry v. Hall, 2 W. & S. 129; Briggs Iron Co. v. North Adams Iron Co., 12 Cush. 114; Fairbank v. Phelps, 22 Pick. 535; Reynolds v. Fisher, 2 Phila. 298; Schofield v. Ferrers, 10 Wright 438; Chaffee v. Sangston, 10 Watts 265; Moore v. Shenk, 3 Barr 21; Hicks v. McBride, 3 Phila. R. 377.
   The opinion of the court was delivered,

by

Read, J.

On the 1st of February 1869, John Roekey brought an action of replevin against Erwin Burkhalter, in the Common Pleas of Lehigh county, to April Term 1869, No. 48, and the return of the sheriff was summoned the defendant February 4th 1869; February 13th 1869, property claimed and bond entered by defendant Erwin Burkhalter, and property left to remain in his hands,” by which the plaintiff’s property in the goods was absolutely gone.

On the 9th of February 1869, the same plaintiff commenced an action of trover and conversion, in the District Court for the city and county of Philadelphia, against the same defendant by capias for the same goods and chattels, which were the subject of the said action of replevin, and this is the case before us.

On the trial under the general issue the learned judge permitted the defendant, under objection, to give in evidence the record of the replevin suit, and it was admitted that the chattels for which this suit was brought, were the same as those in the action of replevin, and the defendant gave in evidence the claim property bond of defendant and others to John P. Miller, sheriff of Lehigh county, dated February 13th 1869, in the penal sum of nine thousand dollars. The learned judge charged the jury “ that the action pending in the Court of Common Pleas for the county of Lehigh was a bar to the present suit, and that the jury must therefore find for the defendant.”

All this evidence was clearly admissible under the general issue: 1 Chitty’s Pl. 498, 472; Hunt v. Cook, 19 Wendell 463. This evidence established the fact, that the property of the plaintiff in the goods, if he had any, was extinguished by the claim made by the defendant and the property-bond given to the sheriff. The property vested in the defendant, and the right of the plaintiff to the property itself was absolutely gone: Fisher v. Whoollery, 1 Casey 197.

The court committed no error, and the judgment is affirmed.