author: Woodward, J.

text:
    Omit versus Commonwealth.
    1. In a conviction under a penal statute the Court will not take notice of a technical irregularity which the defendant does not assign for error.
    2. The proviso of the Act of Assembly of 22d April, 1794, forbidding worldly employment on Sunday, does not except the sale of liquor by an innkeeper to a sojourner on Sunday, but such sale is within the prohibition of the Act.
    3. The Acts of Assembly for licensing inns and taverns have not repealed the Act of 1794 as it respoets innkeepers.

      Certiorari to William Kline, Esq., a justice of the peace.
    This was an information made on the 13th day of June, 1853, against Henry Omit, before William Kline, Esq., a justice of the peace in Harrisburg, for a violation of the provisions of the 1st section of the Act of the 22d April, 1794, entitled “An Act for the prevention of vice and immorality, and of'unlawful gaming, and to restrain disorderly sports and dissipation.”
    In the information the defendant, Henry Omit, a licensed innkeeper, residing and keeping an inn or tavern, in the borough of Harrisburg, county of Dauphin, in the state of Pennsylvania, was charged “ with having done -and performed worldly employment or business, on the Lord’s day, commonly called Sunday, by selling one glass of spirituous liquors to an individual named Leonard J. Wright, a traveller, temporary dweller or sojourner in the house now occupied by the said Henry Omit, in the borough and county aforesaid.” June 13, 1853, warrant issued returnable forthwith. It was added: Same day, defendant appeared — ■ hearing had — and on proof being made, that on Sunday, the 12th day of June, 1853, at the borough of Harrisburg, the said Henry .Omit did sell from his bar one glass of spirituous liquors to a person named Leonard J. Wright, a sojourner, temporary dweller, or traveller: whereupon “ it is considered and adjudged by me, William Kline, a justice of the peace of Dauphin county, that the said Henry Omit be convicted, and is hereby convicted of having done and performed worldly employment, or business, on the Lord’s day, commonly called Sunday, contrary to the Act of the General Assembly of Pennsylvania, passed April 22, 1794 — and I, the said justice, do therefore adjudge the said Henry Omit to pay a fine of four dollars; which sum, by so doing and performing, he hath forfeited, to be distributed as the Act of Assembly directs; but, should the said Henry Omit refuse or neglect to pay the same, with costs, or sufficient goods and chattels cannot be found whereof to levy the same by distress, he, the said Omit, shall suffer six days’ imprisonment in the Dauphin county prison, or until he shall be discharged by due course of law.”
    Exception was filed, to the effect that the justice of the peace erred in deciding that the defendant was guilty of offending against the provisions of the 1st section of the Act of 1794, it being alleged that the Act complained of was not an offence against the said section of the said Act, but was within the Proviso to that section; that the said Act was not applicable to persons licensed to keep an inn or tavern under the Act of 11th March, 1834, and its supplements.
    The preamble to the Act of 22d April, 1794, 3 Smith’s Laws ■177-8, is as follows: Whereas, the Act of Assembly entitled “ An Act for the prevention of vice, immorality, and of unlawful gaming, and to restrain disorderly sports and dissipation,” passed the 25th of September, 1786, will soon expire by its limitation, and it is proper and requisite to continue or supply the same with certain additional alterations and amendments, the .better to secure the execution thereof: Therefore, Section 1. Be it enacted, &c., That from and after the 1st day of. August next, if any person shall do or perform any worldly employment or business whatsoever on the Lord’s day, commonly called Sunday, works of necessity and charity only excepted, or shall use or practise any unlawful game, hunting, shooting, sport, or diversion whatsoever, on the same day, and be convicted thereof, every such person, so offending, shall, for every such offence, forfeit and pay four dollars, to be levied by distress; or in case he or she shall refuse or neglect to pay the said sum, or goods and chattels cannot be found whereof to levy the same by distress, he or she shall suffer six days’ imprisonment in the house of correction of the proper county: Provided, always, That nothing herein contained shall be construed to prohibit the dressing of victuals in private families, bake-houses, lodging-houses, inns, and other houses of entertainment, for the use of sojourners, travellers, or strangers, or to hinder watermen from landing their passengers, or ferrymen from carrying over the water travellers or persons removing with their families on the Lord’s day, commonly called Sunday, nor to the delivery of milk or the necessaries of life before nine of the clock in the forenoon, nor after five of the clock in the afternoon, of the same day.
    For Act of 25th Sept. 1786, see 2 Pallas' Ed. of Laws 474, &c.

      Eisher, with whom was Gfeo. E. Emerson, for plaintiff in, error.
    —It was, inter alia, contended that the words of the Proviso were sufficiently broad to cover the act complained of. That a penal law was not to be extended by construction: Lwarris on Statutes 69. That the object of a proviso is to except something from the enacting clause or to qualify its generality, &c.: 15 Peters 455.
    An innkeeper is the keeper of a public-hpuse for the lodging and entertainment of travellers and passengers, their horses and attendants, for a reasonable compensation, and is bound to receive and accommodate such: Bouv. Law Lie.: and to perform towards them the usual duties of an innkeeper, including the furnishing of liquors: 32 Eng. Com. Law 493, Rex v. Ivens.
    Under the license granted under the Act of 1834 to the defendant as an innkeeper, he was authorized to pursue his occupation on every day, Sunday included.
    Reference was also made to parts of the Act of 1705, viz.:
    Sec. 5. — And be it further enacted, That all persons who are found drinking and tippling in ale-houses, taverns, or other public-house or place, on the first day of the week, commonly ^called Sunday, or any part thereof, shall,.for every offence, forfeit and pay one shilling and six pence, to any constable that shall demand the same, to the use of the poor: And all constables are hereby empowered, and by virtue of their office required to search public-houses and places suspected to entertain such tipplers, and them, when found, quietly to disperse; but in case of refusal, to bring the persons so refusing before the next justice of the peace, who may commit such offenders to the stocks, or bind them to their good behavior, as to him shall seem requisite. And the keepers of-such ale-houses, taverns, or other public-house or place, as shall countenance or tolerate any such practices, being convicted thereof by the view of a single magistrate, his own confession, or the proof of one or more credible witnesses, shall, for every offence, forfeit and pay ten shillings, to be recovered as and for the uses above said:
    Sec. VI. “ Provided always, That nothing in this Act be construed to prevent victualling-houses or other public house or place from supplying the necessary occasions of travellers, inmates, lodgers, or others, on the first day of the week, with victuals and, drink, in moderation, for refreshment only; of which necessary occasion for refreshment, as also moderation, the magistrate before whom complaint is made, shall be judge, any law, usage, or custom in this province to the contrary notwithstanding.” Province Laws.

    It was said that the construction usually given to this Act, was that an innkeeper had the right to sell liquor on Sunday, provided he do not sell in immoderate quantities or to improper persons.

      McAllister, for the Commonwealth.
    — The institution of the Sabbath as a day of rest from all worldly employment, has its origin in the command of the Creator. The obligation was renewed in the decalogue. On this foundation was based the first section of the Act of 1794. This Act prohibits “ any worldly employment or business” on Sunday, “works of necessity and charity .only excepted.” So general was the prohibition, that it was considered necessary to make an exception that persons might not be subjected to penalties for supplying the necessaries of life. The proviso was therefore enacted. Selling liquor is the performing a worldly employment. In the Act of 29th March, 1841, it is enacted that “ no house of entertainment shall be construed to be an inn or tavern, under the provisions of the laws of this Commonwealth, except such as retail vinous, spirituous, or other strong drinks.” It was contended that every worldly employment or business except such as are excepted in the proviso to the first section of the Act of 1794, is forbidden.

      Rawn, also for Commonwealth.
    — The Act of 1705 was altered and supplied by the Act of 1779; the latter by the Act of 1786, and this by the Act of 1794. The last Act is comprehensive in its terms. Buying and selling is worldly business, and the selling of liquor on Sunday is not excepted by the proviso. It was intended to be denounced, for by the 6th section of the Act of 1705 public-houses were permitted to supply the necessary occasions of travellers with victuals and drinle, in moderation, for refreshment only. This provision is omitted in the subsequent Acts on the subject. Such selling or supplying is therefore in violation of law. For convictions under statutes of a similar character, reference was made to several authorities: Oowper 640, case of a conviction under statute 29 Oar. 2, ch. 7, for selling hot loaves of bread, under a provision that no tradesman or other person shall exercise any worldly labor, business, or work of their ordinary calling, on the Lord’s day, works of necessity and charity only excepted: 15 Ohio 225; 10 Met. 363; 3 Ser. & R. 48 ; 8 Barr 312. Christianity is part of the common law of Pennsylvania: 11 Ser. & R. 401.
    Sept. 6, 1853,
   The opinion of the Court, filed was delivered by

Woodward, J.

— This is a certiorari to bring up the proceedings of Justice Kline, in the matter of the conviction of Henry Omit, an innkeeper of Harrisburg, “ for having done and performed worldly employment or business on the Lord’s day, commonly called Sunday.” From the return of the justice it appears, that on complaint made before him, on the 13th day of June, 1853, he issued his warrant against the defendant returnable forthwith — that the same day, the defendant appearing, a hearing was had — and on proof being made “ that on Sunday, the 12th day of June, 1853, the said Henry Omit did sell from his bar one glass of spirituous liquor to a person named Leonard J. Wright, a sojourner, temporary dweller, or traveller,” the justice proceeded to convict him “ of having done and performed worldly employment or business on the Lord’s day, commonly called Sunday, contrary to the Act of General Assembly of Pennsylvania, passed April 22, 1794, and thereupon adjudged him to pay a fine of four dollars and the costs.

The Act of Assembly under which this proceeding was had, i.s entitled “An Act for the prevention of vice and immorality, and of unlawful gaming, and to restrain disorderly sports and dissipation the first section of which (the only one material to the present case) is in the following words: “If any person shall do or perform any worldly employment or business whatever on the Lord’s day, commonly called Sunday, works of charity and necessity only excepted, or shall use or practise any unlawful game, shooting, sport or diversion whatsoever, on the same day, and be convicted thereof, every such person so offending, shall for every such offence forfeit and pay four dollars, to be levied by distress; or in case he or she shall neglect or refuse to pay the said sum, or goods and chattels cannot be found, whereof to levy the same by distress, he or she shall suffer six days’ imprisonment in the house of correction of the proper county; provided always, that nothing herein contained, shall be construed to prohibit the dressing of victuals in private families, bake-houses, lodging-houses, inns, and other houses of entertainment for the use of sojourners, travellers, or strangers, or to hinder watermen from landing their passengers, or ferrymen from carrying over the water travellers or persons removing with their families on the Lord’s day, commonly called Sunday, nor to the delivery of milk or the necessaries of life before nine o’clock in the forenoon, nor after five of the clock in the afternoon of the same day.”

To this conviction the defendant has assigned on the record a single error, which is divisible into two propositions.

1st. That the sale of the liquor to Wright was not an offence against the Act, because it was within the proviso.

2d. That the Act is not applicable to persons licensed to keep an inn or tavern under the Act of 11th March, 1834, and its supplements.

Some of our number are of opinion that the conviction is defective in that it does not set out that the selling the liquor was not a “ worh of charity or necessity,” whilst others think that the averment that it was “ contrary to the Act of Assembly,” sufficiently negatives the saving clause in favor of works of charity or necessity; but the majority hold, that whether the conviction be defective or not, in this particular, it is not our duty to assign errors for the defendant, nor to reverse for a mere technicality which he has chosen to waive. When the attention of his counsel was called to this point on the argument he declined to avail himself of it, intimating that Mr. Omit preferred a decision on the main quéstion in the cause. It would, therefore, be an excess of judicial refinement to force on him a defence which touches not the merits, and which he desires not to appropriate. We assume that it was not a work of necessity or charity, because the defendant does not allege that it was, and because the conviction characterizes it as contrary to the Act of Assembly.

Addressing ourselves, then, to the errors assigned, we are to consider, first, whether selling liquor on Sunday, by a licensed innkeeper to a sojourner, be within the proviso of the section quoted.

The argument is, that such selling of liquor falls within the exception in favor of inns and other houses of entertainment, and was so understood, as language was used at the time of the enactment.-

But what is the exception ? The right to dress victuals in lodging-houses, inns, and other houses of entertainment for the use of sojourners, travellers, and strangers. To dress victuals, is to prepare food fit for consumption; and hence the table or bench on which the meat or other things are dressed, or prepared for use, is sometimes called a dresser, from the French dressoir. But we know of no figure of speech, and no rule of construction, either in grammar or law, that can make the selling of liquor the dressing of victuals. That the language of the Act of 1794 was not understood or intended in the sense contended for, will appear from comparing its provisions with those of prior statutes on the same subject. Before Wm. Penn obtained his charter, the statute of 29 Ch. 11, cap. 7, had been enacted, the 3d section of which provided, “ That no tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor, business or work, of their ordinary callings, upon the Lord’s day, or any part thereof, works of necessity and charity only excepted. Provided, that nothing in this act contained shall extend to the dressing of meat in families, or dressing or selling of meat in inns, cookshops, or victualling-houses, for such as cannot be otherwise provided.”

This statute, enacted in 1667, and brought over by Penn, was evidently the model of our Pennsylvania legislation; but it will be observed that its prohibition was limited to labor in the ordinary callings of men, whilst the exceptions embraced “inns,” and “ victualling-housesthus marking a distinction between them. The word “meat,” in this proviso, is exactly equivalent to “victuals” in ours; but the privilege was larger, for it extended not only to the dressing for sojourners, but to the selling of meat to all such as could not be otherwise provided. Many questions have arisen and been adjudged under this statute in England, but I have found no case in which anybody alleged that the right to dress and sell meat comprehended a traffic in liquors.

The first legislation had, here, on this subject, was in 1705, by the provincial legislature. The Act is entitled “ An act to restrain people from labor on the first day of the week,” and the material provisions are worth copying, not only for the light they throw on the question under consideration, but as exhibiting the state of public opinion on this interesting subject:

“ To the end that all people within this province may with greater freedom devote themselves to religious and pious exercises, be it enacted by John Evans, Esquire, by the Queen’s royal approbation, Lieutenant-Governor under William Penn, Esq., absolute proprietary and governor-in-chief of the Province of Pennsylvania and territories, by and with the advice and consent of the freemen of said Province in General Assembly met, that according to the example of the primitive Christians, and for the ease of the creation,. every first day of the week, commonly called Sunday, all the people shall abstain from toil and labor, that whether masters, parents, children, servants or others, they may the better dispose themselves to read and hear the holy scriptures of truth at home, and frequent such meetings of religious worship abroad as may best suit their respective persuasions. And that no tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly business, or work of their ordinary callings on the first day or any part thereof (works of necessity and charity only excepted], upon pain that every person so offending shall for every offence forfeit the sum of twenty shillings to the use of the poor of the place where the offence was committed, being thereof convicted before any justice, either upon his view, confession of the party, or proof of one or more witnesses. Provided, always, that nothing in this Act contained, shall extend to prohibit the dressing of victuals in families, cookshops, and victualling-houses.”

The 3d section punishes all persons who are found drinking or tippling in ale-houses, taverns, or other public-house or place on Sunday, with a fine of one shilling and six-pence, and the keepers of such ale-houses and taverns, who countenance or tolerate such practices, in a fine of ten shillings, and the Act concludes with this proviso: “ Provided, always, that nothing in this Act be construed to prevent victualling-houses or other public-house or place from supplying the necessary occasions for travellers, inmates, lodgers, or others," on the first day of the week, with victuals and drink in moderation, for refreshment only, of which necessary occasion for refreshment, as also moderation, the magistrate before whom complaint is made shall be judge.” See Vol. 1 of the Charters and Acts of Pennsylvania, printed by Peter Miller, 1762, pp. 19 and 20. Here we have victuals and drink cautiously licensed on Sunday, which "shows that our ancestors understood the distinction between them.

This Act was superseded by that of the 25th of September, 1786, which is substantially the same in title and terms, so far as relates to Sunday, as the Act of 1794, and in both these Acts, “ any worldly employment or business whatsoever,” instead of business or work of the ordinary calling,” is the thing forbidden, and dressing victuals for the use_of sojourners, travellers, or strangers, is the thing excepted, instead of “ victuals and drink for travellers, inmates, lodgers, and others.”

Where there is a material alteration in the language used in statutes which are in pari materia, it is to be inferred that the legislature knew how to use terms applicable to the subject-matter. “ The several indicting and penning of the different branches,” said the judges in Edriek’s Case, 5 Hep. 119, “ doth argue that the maker did intend a difference of the purview and remedies.”

We think it is clear from the course of legislation, that the meaning and extent of the terms used in the proviso to the Act of 1794, were well understood, and were not intended to legalize the sale of liquor on Sunday. It was an Act “for the prevention of vice and immorality, and to restrain dissipation,” and doubtless the experience of that day had proved, what all subsequent expe-, rience has confirmed, that interdiction of the Sunday traffic in liquors was indispensable to the attainment of these objects.

2d. The next objection urged against this conviction is, that the Act of 1794 is not applicable to persons licensed to keep an inn or tavern under the Act of 11th March, 1834, and its supplements.

Our system of licensed inns and taverns is founded in the just idea that it is the duty of every community to provide for the accommodation of strangers and travellers who come into their midst. Individual hospitality, always ready in a civilized state to relieve the wants of the wayfarer who is poor or in distress, is incompetent to accommodate all the strangers and travellers whom business or pleasure carry abroad. Inns, or places of rest and refreshment, must be furnished and kept in readiness for this purpose, and to induce persons to establish such houses, and to maintain the requisite arrangements and attendants, a monopoly is offered them in the exclusive right to retail, by small measure, vinous and spirituous liquors. Twelve reputable citizens of the neighborhood are to certify that an inn or tavern, in the place proposed, is necessary to accommodate the public, and entertain strangers and travellers, and that the applicant for license is a person of good repute for honesty and temperance, and is well provided with house-room and conveniences for the acéommodation of strangers and travellers. The Quarter Sessions, in their discretion, then grant or withhold the licenses. Under various penalties, all persons not thus licensed, are forbidden to sell vinous or spirituous liquors by less measure than a quart. Such is the system for fulfilling the duties which the-community owe to strangers and travellers.

On first principles, monopolies are odious. Freedom of trade is a natural right which government has no authority to interfere with, except under pressure of some great public exigency; and discriminations made by law, in favor of classes, are peculiarly in need of a public object for their justification. The accommodation of the public and the entertainment of strangers and travellers, are, in the judgment of the legislature, objects of sufficient importance — exigencies imperative enough — to justify legislation that gives to a small and select class of men a monopoly in the most profitable branch of thp trade in liquors. But this is all the legislature have done in these license laws.

They have secured these public objects in what seemed the best way, but they have not abolished the institution of Sunday, which from the beginning has been, as we have seen, sedulously guarded by legal enactments. The prevention of vice and immorality, and the suppression of dissipation, are state objects.also, and in legislative judgment these are to be promoted by a suspension of all worldly employments on Sunday, except in certain instances, which we have shown do not embrace the sale of liquors. Are the purposes of the two enactments inconsistent ? Will not six days’ enjoyment, in each week, of the licensed monopoly suffice to provide strangers with that measure of accommodation which the community are bound to furnish ? There is no ground to doubt it. But if not sufficient, some other expedient must be devised. Sunday cannot be given up. Strangers and travellers have no right to demand hospitality at such a price. Rest one day in seven was enjoined by the precept and example of the Author of our existence, and government, founding itself on Divine appointment, has made it a civil institution. “Eor the ease of the creation,” said our old Act of 1*S®5, as well as that people may enjoy religious privileges, the first day of the week shall be observed. They justly regarded it as essential to religious freedom, as well as to physical health and strength. It is an institution deeply seated in the religious affections of the community, and one of the foundations of public morals, and of our political fabric. The policy of no such system as that of licensed inns can prevail to abridge it of its proportions or its power.

But it is said the licensing of taverns for a year gives the right to sell for each of the three hundred and sixty-five days, and hence it is inferred that the Act of 1794 is repealed as to such taverns.

As well might it be argued that a contract for hiring for a year would compel a laborer to work on Sundays — or that an auctioneer who is licensed under Acts of Assembly for a year, might pursue his business on the fifty-two Sundays in the year — or that public officers who are elected for a period of years under our constitution and laws, might perform their duties on Sundays. A year is not more a period in law than Sunday is. The law takes notice of both. The legislature have forbidden worldly employment and business on Sunday — and they have created a monopoly in a certain branch of business, and licensed it to individuals for a year. There is not a word in the latter Act that imports an intention to repeal the former. Both enactments, then, must be so construed that both may stand. It is a rule in the construction of statutes (see Dwarris on Statutes 659), that where the intention of the legislature is not apparent to that purpose, the general words of another and later statute shall not repeal the particular provisions of a former one. Effect is given to both enactments when we hold that licensed innkeepers have the right to sell liquor six days in the week, but that it is worldly employment, or business within the prohibition of the Act of 1794, not a work of charity or necessity, nor falling within the proviso of the Act, and therefore not lawful to be done on Sunday.

It' follows from all this that the defendant was properly convicted, and the judgment is affirmed.


source: Caselaw Access Project

author: Lowrie, J.

license: Public Domain

text:
    McCullough versus Wilson.
    1. A mortgage by a husband and wife, of the separate estate of the wife secured to her by marriage articles not recorded, is invalid against the wife and her heirs as to the mortgagee having actual notice of the marriage articles.

    2. But though the mortgage were invalid as to the interest of the wife, and a judgment thereon invalid for want of description of the premises, yet, after levari facias and alias levari facias issued thereon describing the premises, if the husband and wife procure a person to purchase the mortgage, they and their heirs are estopped from denying the validity of the mortgage an.d judgment thereon, and are concluded by a sheriff's sale of the premises under-such proceedings.
    3. In a proceeding against the husband and wife on a mortgage ,by both of the wife's land, the husband may employ counsel to appear for both and confess judgment.
    Error to the Common Pleas of Cumberland county.

    This was an action of ejectment to November Term, 1848, by Thomas S. Wilson, Ann D. Wilson, and others, v. David W. McCullough and others, for 2050 acres of land, called The Cumberland Furnace Estate.
    The case was up before, and a report of it exists in 7 Harris 77, &c. _
    _ The plaintiffs, except one, claimed as children and heirs of Eliza Wilson, formerly Eliza Ege. By marriage articles between James Wilson, her intended husband, and the guardians of Eliza Ege, then a minor, dated 21st July, 1817, Wilson covenanted to settle upon her, after her becoming of legal age, the one-half of her personal and real estate, for her use during life, with remainder to her offspring. She was married and came of full age in December, 1817. Whether she was of lawful age at the time cf her marriage, it was stated did not appear.
    On the 12th December, 1821, Wilson and wife, to secure a debt of the husband, mortgaged the whole estate to the Harrisburg Banh. The mortgage was recorded on 21st December, 1821. The marriage articles were not then on record; they were not recorded till 22d July, 1823. The lands in controversy were described in the mortgage.

      In 1828 a precipe was filed for a scire facias against Wilson and wife, on the mortgage. The scire facias did not actually issue, but an entry on the record, as follows, was made: — ■
    I appear to this case for defendant, without service of writ with the same effect as if a writ had been issued and served; but no other. Signed by “ J. B. Parker, for defendant.”
    A plea was entered for Eliza'Wilson that the lands mortgaged were her estate, and that at the time of the execution of the mortgage she was married. The plaintiff demurred generally, and a joinder in demurrer was had. The plea of payment was also put in. The Court rendered a judgment on the demurrer for Eliza Wilson; upon which the plea of payment was withdrawn, and verdict was rendered against James Wilson, the husband, for $8649.31. A writ of error was sued out, and it was assigned for error, 1. The Court erred in receiving the plea of Eliza Wilson; • 2. In giving judgment for the defendant instead of plaintiff. On 13th October, 1832, the judgment was reversed and judgment entered for the plaintiff. See the judgment referred to in the case of Jamison v. Jamison, 3 Wharton 457.
    After this, viz. to January T. 1833, No. 292, an amicable scire facias issued to revive the judgment in favor of Harrisburg Bank v. James Wilson and Eliza his wife. The docket entry was to this effect — “ Defendants by their agreement in writing, dated 30th March, 1833, appear and revive judgment for $10,302.76. It was stated that it was proved that the original paper was lost.
    Upon this judgment of revival a levari facias issued to April Term, 1833, in which the mortgaged premises were particularly described. The writ was returned sold, but conditions of sale not complied with. An alias writ of lev. facias was issued, in which the premises were also described, and the property advertised to be sold, when the following agreement with Jacob Albert was made: We agree that if an arrangement be made by Mr. Jacob Albert with the Harrisburg Bank, so that the said Albert procures a transfer of the judgment of the Bank against James Wilson and wife, and has the sale of the property of said Wilson and wife postponed until Thursday next, to permit the sheriff to go on and sell the said property on said judgment on Thursday next, in case the agreement between Jacob Albert and James Wilson and wife be not carried into effect before that day. It was dated 13th July, 1833, and signed Jambs Wilson.
    Eliza Wilson.
    Five days afterwards, viz. on the 18th July, 1833, an agreement was entered into, signed by James Wilson, Eliza Wilson, and Jacob Albert, in which it was stated that the sale of the mortgaged premises was postponed in consequence of Albert, with their know■ledge and consent, having advanced the sum of $9,673.89, the balance of the judgment to the Harrisburg Bank, with interest, &c.; that the bank has assigned to him the judgment, and it was agreed, in consideration of such payment and agreement, to stay the sale of the property, that in case of default being made in making certain specified payments by Wilson, Albert might be at liberty to sell the said mortgaged premises, they waiving all objections to the estate being sold on the ground “of any arrangement,” before made by the Harrisburg Bank or its attorney with the said Wilson and wife or any person in their behalf “ respecting said judgment.” Dated 18th July, 1833, and signed by James and Eliza Wilson, and Jacob Albert.
    On the same day, viz. 18th July, 1833, the judgment on the mortgage was assigned to Albert, and the levari facias was returned, the premises not being sold.
    There was no further proceeding on the judgment until 1835, when to April Term, 1835, a pluries writ of levari facias was issued, in which the premises were described; and on the 11th July, 1835, the sheriff returned, “ Sold to Frederick Watts, Esq., on the 22d April, 1835, for $13,700, and paid the same over to attorney Lyon.”
    5th April, 1835, sheriff’s deed. 9th April, 1835, deed by F. Watts and wife to Miller and Cooper. 10th October, 1837, deed Cooper and wife to Miller. 19th December, 1848, deed Miller and wife to Green and McCullough.
    The recorder of deeds testified that there was in the recorder’s office, no other mortgage of James Wilson and wife on the lands in dispute, or on any other lands at the time of the judgment on the mortgage in evidence, or before or after the date of that judgment till the time when Albert became the purchaser of the said mortgage ; and no other mortgage by Wilson and wife to the Harrisburg Bank. This was to show that the sei. fa. to January Term, 1828, No. 40, was issued upon the mortgage in question.
    , The plaintiffs offered to show that upon the faith of the record, judgments, and proceedings thereon, the lands in dispute had passed by conveyances to 48 purchasers who were then in possession, though not parties to the suit. This was rejected.
    On part of the plaintiffs, John Foster, Esq., former cashier of the Harrisburg Bank, was examined to show that the marriage articles were known to the bank at the time of the taking of the mortgage of Wilson and wife; and he stated that the existence of the articles was known to all the' directors. Nothing of it, however, existed on the minutes of the bank.
    A number of points were proposed on the part of the defendants.
    Graham, J., observed to the jury, that the plaintiffs allege that there was nothing connecting the judgment in the Common Pleas with the mortgage in the recorder’s office, and consequently that the title of Mrs. Wilson was not divested by the sheriff’s sale. That if the former decision of this case was understood by him, the lev. facias on the mortgage was not only irregular, but void, and therefore the sale did not divest the title of Mrs. Wilson; and he instructed the jury that the verdict should be for the plaintiffs. This instruction was the principal matter assigned for error.

      Biddle and Watts, with whom was Miller, for plaintiffs in error.
    —It was contended that the marriage articles were invalid for want of proper parties. Eliza Ege was no party to them; 1 Southard 84; 2 U. S. Dig. 503; and her guardians exceeded their authority: McPherson on Infants 278; Id. 202; Id. 447—8; Lewin on Trusts 92, &c. That if not binding on her part, they were not binding on James Wilson.

    It was said on the part of the plaintiffs, that there was notice to the Harrisburg Bank of the marriage articles; but if the bank had notice, there was none to subsequent purchasers: 9 Barr 399; 1 Washington 4; 2 Bin. 40; 8 Ser. & R. 496; 2 Rawle 215; also the Recording Act of 1755, sec. 1.
    It has been decided by this Court, that the mortgage executed by Wilson and wife is valid-, also cited 4 Pa. Law J. 373: 8 W. & Ser. 413.
    Having pledged her land by mortgage, she became a party who must be sued in case of proceedings upon it: 2 Roper on Hus. and Wife 265. The scire facias was waived. By the plea put in the want of a set. fa. was supplied, and by it the record could be amended. The Supreme Court entered judgment on the demurrer for the plaintiff. Such a judgment should not he reversed collaterally : 4 Rawle 401; 6 Watts 410; 10 Id. 101. There was but one mortgage on record between Wilson and wife and the Harrisburg Bank. The lands were described in the levari and alias lev. facias: 2 Jones 217; 10 Barr 495-6; 4 Watts 424; 1 Rawle 225.
    The purchaser is protected by the 9th sect, of the Act of 1705, in case of the reversal of the judgment: also 4 Watts 286, Tainter v. Warder; 6 Watts 295.
    As to acquiescence of Wilson and wife. 1 Rawle 162; 1 Com. Rep. 470; 14 Mass. 405; 9 Barr 144; 2 Id. 165; 13 Ser. & R. 306.
    Wilson and wife were' estopped by the agreement between them and Albert: 1 Story’s Eq. 385; 6 Barr 425; 5 Harris 275.

      Bonham and Williamson, with whom were Hepburn and Moore, for defendants in error.
    — The heirs claim one-half of the premises in dispute under the marriage settlement, and the whole at law.

      It was said that the whole case was decided by this Court on the former hearing. Wilson covenanted in consideration of marriage, that the guardian of his intended wife should have a conveyance; and in violation of it he procured his wife to join him in a mortgage of land included in the settlement. It was contended that such a mortgage to one having notice of the settlement did not' affect the equity of the wife: 2 Roper 27; Atherly 49; McQueen 252; 1 Bro. C. C. 117; 18 Ves. 275; 2 Leigh 76.
    Eliza Ege was a witness to the marriage articles. Signing as a witness with a knowledge of the contents of the instrument is sufficient to bind a party: 1 Wilson 118—19; 8 Atkins 503; 1 Ves. Sen. 8; 9 Ves. Jr. 234.
    It was said that the marriage settlement was a valid settlement, and bound one-half of the real estate. That it was effectual against the Harrisburg Bank, which it was said had actual notice of the articles. The articles were recorded on 22d July, 1823. The assignment to Jacob Albert is dated 18th July, 1833, nearly ten years afterwards. It was said that a recording under the Registry Act was notice to all who take an interest in the property after the date of the recording.

    It was said that the judgment against Mrs. Wilson was void for want of jurisdiction. That the land was not described in the record of the suit. The authority of the Court to act upon the particular subject should appear by the record; any writ of execution issued must be authorized by the record, and in proceedings in rem the judgment of the Court is required to be concerning the specific land.
    Mrs. AVilson as a feme covert could not waive the scire facias. She could waive nothing except in the way provided by law: 7 Watts 228. It was contended that she could not appoint an attorney except to dispose of her lands, and it must be duly acknowledged: 3 Taunton 361. But the writing did not refer to any particular land. As to the plea, it was submitted whether there was anything in it which showed what lands were the subject-matter of the suit.
    It was further said, that the record not showing what land was the subject of the proceeding, the judgment of the Supreme Court did not cure the defect. The judgment was for no sum: 16 Ser. & R. 348. The revival of it made it no better, as Mrs. Wilson was a feme covert: 3 Wharton 313; Dorrance v. Scott, 2 Campb. 272; 2 P. Wms. 144; 6 Harris 79, Caldwell v. Walters.
    As to the writs. The prothonotary had no proper data foi describing the premises in the writ of levari facias. Ho application was made to amend the record. There was no judgment of the Court to warrant an execution describing the premises.
    A void judgment will not warrant an execution, and a sale under it confers no title; Caldwell v. Walters, before cited. Such deficiency as existed in this record could not be supplied by parol proof: 10 Watts 23.
    The agreements with Albert were invalid as to Mrs. Wilson by reason of her coverture: 6 Wend. 13; 16 Johns. 114; 17 Id. 167; 6 Barr 414; 2 Jones 274; 12 Ser. & R. 403.
    September 6,
   The opinion of the Court, filed was delivered by

Lowrie, J.

— This cause was before us last year, when all the points then raised were decided. We have now heard the same points again discussed, and, in relation to them, it is sufficient to say that we perceive no error in the conclusions to which we were led. by the former argument. To our minds it is clear that the mortgage in question and the proceedings under it, have not at all affected the title to the half of this land that was included in the marriage settlement, and this the plaintiffs below have properly recovered. They insist moreover that, because the judgment was void under which the other half- was sold, therefore they are entitled to that also. The judgment is certainly void for the reasons assigned here on the former argument.

Now, however, the defendants below allege and show that this property was the very property mortgaged by Wilson and his wife, and was in fact the subject-matter of the suit and judgment; that it was fully described in the writs of lev. fa. issued upon the judgment ; and that, after those writs were issued, the defendants in that suit, the ancestors of the present plaintiffs below, in order to obtain indulgence, procured Jacob Albert to buy the judgment and stay the proceedings; and they insist that, by reason of those facts, Wilson and his wife are both estopped from denying that the judgment sustained the lev. fa., and was good against the land described in it. This is the question of the cause, and we proceed to consider it.

We have lately decided, in Evans v. Mylert, that where a suit is brought against husband and wife on a mortgage of the wife’s land, the husband may employ counsel to appear and confess judgment for both. In this case there was an appearance and judgment thus obtained; and Mrs. Wilson was thus made a party to the proceeding for all its legitimate purposes, up to its final termination. She could have been made a, party to a correction of the error in the-record, and she would - have been had it been discovered. As matter of fact, her rights under this mortgage were litigated and decided; but by reason of an omission, this does not appear as matter of record. As matter of record, therefore, there was no judgment, while as matter of fact one had been confessed, and could have been made perfect on the record by an amendment or correction. Have the defendants in that proceeding so acted that equity requires us to consider that as done which ought to have been done ? They did so when they procured a friend to buy the judgment for their benefit, as a good one: and we do no more than enforce the agreement of the parties, and prevent them from repudiating a transaction from which they have derived the stipulated advantage, when we refuse, under such circumstances, to hear their objection to the validity of the judgment. We must presume that if this question had been raised when a lev. fa. was issued by Albert, the Court would have found means to correct their judgement so as to be a good foundation for the writ. Where a judgment is not incurably defective, a plaintiff may preclude himself from taking advantage of its defects, by getting another to buy it for his benefit.

May a married woman thus bind herself by acting with her husband ? Why not ? The fact that she can be sued with her husband, entitles her, with him, to do all proper acts relative to the defence of her rights that are involved in the suit. It was proper for her interests that she and her husband should make an arrangement for time, in order to prevent a sacrifice of her property. Both are therefore bound to all the consequences of the arrangement. True, she did not bind herself by a separate acknowledgment, but that form of proceeding does not apply to such an act. True, also, a door is here open through which the wife may be imposed upon by her husband; but we find it open and would not shut it, for it is opened by the very confidence that ought to exist between husband and wife; and confidence will hold it open so long as pure affection is allowed to be a legitimate element of the marriage relation. In this relation we find the highest, and noblest, and purest, and therefore the most civilizing illustration of the confidence of human beings in each other; and such can never be reposed without the risk of imposition. Let it remain, for the good it does, and notwithstanding its dangers. When the law invades the sacred confidence of the marriage relation in order to save the wife from the faults or misfortunes of the husband, it, in some measure, loosens the bond whose principal virtue consists in its closeness.

We are of opinion that the defendants below made good their defence to one-half of this land. The other exceptions of the plaintiffs in error are not sustained.

Judgment reversed and new trial awarded.


author: Lewis, J.

text:
    Anderson versus Young’s Executors.
    1. A witness is not to be permitted, at the instance of the party calling him to repel an objection to his competency on the ground of interest established by other evidence.
    2. A garnishee in whose hands a note is attached is protected by the judgment against all claim to it on the part of an assignee, though the latter was not a party to the proceeding or had not actual notice of it.
    3. The law only requires of the garnishee that in good faith he shall see that the money is recovered against him in due course of law. Where there is no fraud or collusion on the part of the garnishee, a recovery against him in the foreign attachment is a good defence to an action against him by the defendant in the attachment or by one claiming as assignee of the note attached.
    4. In the case of a scire facias against a garnishee in a foreign attachment, where the garnishee had possession of the note, alleging payment,"one who appeared on the note as the second and last assignee of it,_ is, on the ground of interest, an incompetent witness on the part of the garnishee to prove that the first assignment of the note took place before the attachment issued, and was for value.
    5. The admissions of the payee of a note attached as his property, made whilst he had the note in his possession, that it had been attached, are not to be rejected on the assumption that they were made after the assignment of the note, the witness stating that the note had no assignment on it at that time.
    Error to the Common Pleas of Bedford county. ■

    A writ of foreign attachment was issued on the 23d January, 1843, out of the Common Pleas of Bedford county, in favor of Robertson and Lind, executors of the will of S. Young, deceased, against Alfred Cline. Espy L. Anderson was made garnishee. The attachment was served on Anderson on the 30th January, 1843. The claim of the plaintiffs was founded on a note as follows:
    $5000. Hagerstown, July 8, 1839.
    Ninety days after date, we, or either of us, promise to pay to the order of John Robertson and J. Lind, executors of S. Young, for value received, five thousand dollars.
    Signed Alfred Cline,
    Erederick Dorsey, William Price.
    After plea, verdict was rendered against Cline, on 12th Nov., 1844, for $6603.34. Eeb. 17, 1847, judgment on the verdict.
    On 3d March, 1847, a seire facias was issued against Anderson, the garnishee — who pleaded nulla bona. The property attached in the hands of Anderson, was a promissory note by Anderson to Cline, elated 1st January, 1842, for $1500, payable six months after date, with interest from the date. The note was in the possession of Anderson. It was produced on the trial, and it had upon it endorsements, viz.:
    Received, August 16, 1842, of E. L. Anderson, two hundred and fifty dolllars on the within note.
    Signed A. Cline.
    I assign all my right, title, and claim to the within note to E.
    D. Eouke, for value received. Jan. 22, 1843.
    Signed Alfred Cline. '
    On this 12th day of October, 1843, I assign all my right and claim to the within to E. M. Mealy, for value received, without recourse. Signed E. D. Eouke.
    On the trial it was objected, on the part of Anderson, that the note attached in his hands had been thus assigned by Cline before the service of the attachment, viz., on the day next before the writ issued. In support of the objection was offered the deposition of
    E. M. Mealy, the assignee of the note, to which it was objected, on part of the plaintiffs, that the witness, on the 12th October, 1843, was the assignee of the note. The deposition was rejected. The witness testified, in the deposition, that he was present in Hagerstown at the assignment of the note by Cline to Eouke, and that it was made on the 22d January, 1843, when it purported to have been made. That Eouke at the time alleged that Cline was indebted to him. The witness said that he himself had no interest in the event of the suit. He further said that the assignment of the note on 12th October, 1843, to him, was made by Eouke solely to enable the witness to collect the money for Eouke; that he did not collect any money from Anderson, and returned the note to Eouke. That Cline and Eouke are both dead.
    On the part of the plaintiffs it was alleged that the assignment by Cline to Eouke was fraudulent; and that it was not upon the note when the attachment was served. To prove the allegation, was offered the deposition of William Price, one of the makers of the note to the plaintiffs. The deposition was objected to, but was admitted.
    The witness stated that it was at his instance that the note to which he was a party, was placed in the hands of counsel for the plaintiffs, and the attachment in question sued out. That after the attachment against Cline was issued, he thought about six months thereafter, Cline came to his office in Cumberland, and showed him the note of Anderson, saying at the time, that it

      was the note of Mr. Anderson of Bedford, upon the debt due to him, on which the attachment in Bedford had been laid. Deponent examined the note. That Cline proposed to assign the note to deponent, <fc., as it was already bound by the attachment, under which assignment, as he said, deponent would get the money from Anderson and save all further costs and trouble in prosecuting the attachment. He said there was no assignment at that time on the note. That Cline at the same time remarked, “ that although the attachment was laid on other property or credits, supposed to be his, in Bedford, yet that this debt due him by Anderson was all that the plaintiffs in the attachment would get, and he thought, therefore, deponent had better take the note and strike off the attachment.”

    He added that he refused to have anything to do with the note, and returned it to Cline. He further stated that he had been released by the plaintiffs from liability on the note, to which he had been a .party, and the release was produced.
    On the part of the plaintiffs, an almanac for the year 1843 was produced, from which it appeared that the 22d January, 1843, the date of the assignment by Cline to Fouke, was Sunday.

    Kimmel, President Judge, observed to the jury: that there was evidence of the payment of the note by Anderson, in the fact of his being in possession of it; but that there was no evidence showing when or to whom he paid it, whether before or after the service of the attachment.
    Also; that if the assignment of the note by Cline to Fouke was fraudulently made, and the note was still unpaid, then the plaintiffs were entitled to a verdict; the -credit of $250, endorsed on the note, being allowed.
    He further charged that if the note had been assigned by Cline to Fouke on Sunday, the assignment on that day would have only rendered it void as between Oline and Fouke, and that notwithstanding this, the defendant would be entitled to a verdict, unless the assignment were fraudulently made or made after the service of the attachment.
    May 6, 1852. The jury found that E. L. Anderson had in his hands at the time the attachment was executed, the amount of the note upon which there was a credit, dated 16th August, 1852, for $250, the same being of the value on the day of the verdict, of
    Error was assigned: 1. To the rejection of the deposition of Mealy. 2. To the admission of the deposition of Price, the same having been objected to generally, and also specially to the part of the deposition relating to the declarations of Cline; the same being printed in italics. 3. To the charge that the assignment of the note being made on Sunday, rendered the note void only as between Cline and Eouke. 4.' In submitting to tbe jury whether there was fraud in the assignment by, Cline to Eouke.

      King, for plaintiff in error.
    — He contended that Mealy was a competent witness — that he was not interested. He was the last endorsee by transfer made after the maturity of the note. He was no party to the suit, and it was contended that the note had been paid: Bank v. Forster, 8 Watts 304; 5 Barr 52-3, Gilpin v. Howell; Story on Pro. Notes 372; 9 Barr 507.
    The deposition of Price was not admissible. It was said that it was admitted on the ground of a privity between Gline and Anderson ; but it was contended that their interests were hostile: 2 Barr 310. Cline’s declarations were not admissible. He had an interest in swelling the fund in the hands of Anderson the garnishee.
    It was said that the note and the assignment were both made in Maryland, and though the assignment was made on Sunday, it was not within the Act of 1794. A bond executed on Sunday is not void at common law: 3 W. & Ser. 444.

      Russell, contra.
    — It was contended that, primd facie, Mealy was interested, and that he was therefore incompetent to show that he had no interest in the note: 1 Rawle 196, Griffith v. Reford; 10 Barr 167, Thomas v. Brady. If the note were paid by a. new mote or otherwise, there was no evidence when it was paid or arranged.
    The deposition of Price was admissible to prove the declarations of Cline made after the attachment and whilst Cline had the note attached in his possession — the note being then overdue. The testimony was material as tending to show that there was then no assignment on the note — instead of its being made on the 22d January, 1843, the day before the issuing of the attachment, that it was not on it about six months afterwards. It was said that the declarations of Cline were evidence against a fraudulent assignee: Greenleaf on Ev. 190-1; 13 Ser. & R. 107; 2 Starkie 261, 326; 5 Harris 345.
    September 6,
   The opinion of the Court, filed was delivered by

Lewis, J.

— On the 23d January, 1843, a foreign attachment was issued by Young’s executors against David Cline, which was executed on the 30th January, 1843, by attaching the amount of a promissory note due by Espy L. Anderson to Alfred Cline, in the hands of Anderson as garnishee. On the 7th February, 1847, judgment was obtained against Cline, the defendant in the attachment. A scire facias thereupon issued against Anderson the garnishee, who pleaded nulla bona, on which issue was joined. On the trial of this issue it appeared in evidence that on 1st January, 1842, Anderson gave a promissory note for $1500, payable to Alfred Cline, or order, six months after date. • On 22d January, 1843, Alfred Cline assigned the note to P. D. Poulke. On the 12th October, 1843, P. D. Poulke assigned it to E. M. Mealy. These assignments were endorsed on the note and purported to be for value received. The note, at the time of the trial, was in the possession of Anderson.

The deposition of E. M. Mealy was offered by the garnishee, to prove that the assignment from Cline to Poulke was made before the issuing of the attachment, and was for a valuable consideration, and to prove further, that the assignment to the witness was made solely to enable him to collect the note. The deposition was rejected, and this is the first error assigned.

The party objecting to a witness may examine him on his voir dire, or resort to other evidence to establish the objection; but after electing one of these courses he cannot resort to the other. Nor can the witness himself be received at the instance of the party offering him, to repel the objections on the ground of interest established by other evidence. As the evidence stood when the deposition of E. M. Mealy was offered, he appeared to be the equitable assignee of the note in controversy. As the possession of it by Anderson is relied upon as primd facie evidence of its payment, it is proper to examine the case in that aspect. The competency of the witness may be decided upon by considering the effect which the verdict may have upon his interest.

A foreign attachment is not altogether a proceeding in personam. It is in the nature of a proceeding in rem, to which, for the purposes of the particular action, all the world are parties. In a writ of foreign attachment, personal notice to the defendant is not required. On the contrary, the action proceeds on the ground that actual notice cannot be given. By the custom of London, from which our proceedings are derived, the garnishee was not warned until the sergeant-at-mace made return to the process awarded against the defendant, that he had nothing in the city or the liberties thereof, whereby he could be summoned, nor toas to le found within the same. After 'this return, and four defaults entered, judgment was rendered against him; under which the money, or effects of the defendant, in the hands of the garnishee, might be levied in satisfaction of the judgment. The domicil of the debtor was immaterial. But in Pennsylvania, the Act of 13th June, 1836, has made a change in this particular. A foreign attachment will not lie here, if the debtor resides within the Commonwealth, or is within the county at the time of the issuing of the writ. It is precisely because actual notice cannot le given, that the law has provided this method for the collection of debts against non-resident debtors without it, and has prescribed what shall be .deemed constructive notice. If the plaintiff, who is to be benefited by the proceeding, be not required to give abtual notice to the defendant, on account of the impossibility or difficulty attending it, the reason against imposing that burden upon the garnishee is much stronger, for he has no interest whatever to be promoted by the proceedings. If the judgment be valid for the purpose of compelling payment of the debt to the plaintiff, it must be equally effective for the garnishee’s protection against a repetition of the demand. We must administer the law as a system intended to promote justice, and not as a snare to entrap the innocent. It may seem hard that the defendant in the attachment shall lose his demand against the garnishee, by a proceeding of which he had no notice. But if he owes the debt claimed by the attaching creditor, there is no hardship in being compelled to pay it; if he does not owe it, the law has provided an ample remedy if he disprove or avoid it within a year and a day after execution awarded against the garnishee. The execution cannot be awarded until the debt is due and payable, so that an action might have been brought for its recovery by the defendant in the attachment. His neglect to pursue his claim bars his right. It is a statute of limitation. The legislative power may fix a longer or shorter period of limitation, as justice or policy may require.. In a case of this kind, after an adjudication, and in support of it, it is as just to bar the right to reverse it or to recover the debt attached, after a year and a day, as it is in ordinary cases to bar an action after six years without an adjudication. All that the law requires from the garnishee is that he shall, in good faith, see that the money is recovered from him by due course of law. Where this is the case, and there is no fraud or collusion, a recovery in foreign attachment is a good defence to an action brought by the defendant in the attachment against the garnishee. If the defendant in the attachment may thus be barred, those who stand in his shoes are in no better predicament. We except, of course, the bond fide holder of negotiable paper, who is protected by the necessary rules of commercial law. But ehoses in action are in general not assignable at common law. The assignee acquires but an equitable right; and where he accepts the assignment of a note, after it is overdue and bears the marks of dishonor on its face, he takes it subject to all the equities or charges to which it was subject in the hands of the original holder. In such cases the assignee is bound by every proceeding which binds the assignor. If one is barred without actual notice, the other is also. If the garnishee is not required to notify the defendant in the attachment, still less is he bound to notify the assignee, of whose rights, or even existence, he may have neither knowledge nor the means of knowledge. We ’determine this question upon the assumption that Mealy had no notice of this attachment, because we are unwilling to lay it down as a general rule that every witness whose deposition is taken in a cause, at a distance from the place and before the time of trial, shall be thereby affected with notice of the subject-matter in dispute. The rule to take depositions does not necessarily give the witness any information of the nature of the controversy. The particular facts to which his attention is called may become incidental matters in controversies which do not affect him. It does not necessarily follow that Mealy had notice of the nature and object of this suit, merely from the fact that his deposition was taken to be read in evidence; although we may have our belief that the parties made him acquainted with the nature of the controversy, we do not feel at liberty to infer it as a fact legally established.

It is true that the case of Fisher v. Lane, as reported in 3 Wilson 297, is occasionally cited to prove that where no notice is given to the defendant of proceedings in foreign attachment, they form no protection to the garnishee. Chancellor Kent disapproved of that decision, when delivering the opinion of the Supreme Court of New York, in Embree et al. v. Hanna, 5 John. R. 102. And Mr. Justice Huston, in delivering the opinion of this Court, in Coats v. Roberts, 4 Rawle 111, declared that Fisher v. Lane differed from “the prior and subsequent cases;” and he there held that “the.decision of a Court of competent jurisdiction, in a proceeding in rem, is conclusive on all the world.” But a decisive answer to the argument founded upon the case of Fisher v. Lane, is that it is misreported in 3 Wilson 297, and that no such principle as that supposed was ever decided in that case. The case is correctly reported in 2 William Blackstone 834, where the true ground of the decision against the validity of the foreign attachment appears. It was held to be invalid, not for want of actual notice, but for want of the constructive notice which the law requires. The issuing of a summons to the defendant, and a return of nihil, are indispensable to this; and for want of these requisites, the proceedings were held to be invalid and no defence to the garnishee: 2 Wm. Bl. 834. The case was decided in the Court of Common Pleas; and the King’s Bench afterwards regarded it as not in any respect standing in the way, when the true principle was affirmed that if a summons was issued and nihil retitrned, the proceedings were regular and barred the action brought by the defendant in the attachment against the garnishee: McDaniel v. Hughes, 3 Bast 367. It follows that if Mealy has not already received the money due on the note, this recovery of it from the garnishee will bar his claim. But Anderson’s possession of it is prima facie evidence of payment to the person appearing to be the owner, and authorizes the presumption that it was paid to Mealy on the footing of his claim under the assignment of 22d January, 1843. It purports on its face to be a fair assignment, for a valuable consideration, and to have been made before this attachment was issued; and the receipt of the money under it is a representation that the facts thus set forth in it are true. This issue is for the very purpose of determining the truth of these representations. If the verdict finds them to be false, or establishes the fact that the assignment, was made without value given for it, or was made after the attachment and ante-dated for the purpose of overreaching it, or was otherwise fraudulent and invalid, it would be prima facie evidence to support the garnishee’s action against the witness, to recover back the money thus paid in mistake under a misrepresentation respecting the facts. If the verdict affirmed the validity of the assignment, it destroys the garnishee’s cause of action, and protects the witness. In one aspect of the case, therefore, the witness would be precluded by this decision from recovering the money. In the other he might be compelled to refund it. In either he is interested to defeat the plaintiff’s action, and was properly rejected.

The objection to William Price’s deposition rests upon the assumption that the declarations of Cline were made after he had assigned the note to Eoulke. But this is the very matter in dispute. If Price be believed, Cline’s declarations were made before this assignment; for Price states that “ Cline had the note in his possession at the time — that he (the witness) took it into his hand and examined it,” and that he is positive that there was no assignment on it at that time.” This evidence was properly received.

The instructions given were quite as favorable to the plaintiff in error as he had a right to demand.

Judgment affirmed.


text:
    Louer versus Hummel.
    1. A justice of the peace has jurisdiction, by virtue of the Act of 1810 and of 22d March, 1814, of an action by the assignee of a ground-rent against the assignee of the ground who is in possession; and therefore in an action of covenant in such a case brought in the Common Pleas, where the recovery was for an amount below $100, no affidavit having been filed, under the 26th section of the Act of 1810, that the debt due or damages sustained exceed $100, it was Held, that the plaintiff was not entitled to recover costs.

    2. The 6th section of the Act of 22d March, 1814, is supplementary to the Act of 1810, and the two sections are to be regarded as if incorporated in one Act.
    3. Disputing the title of the landlord means the setting up of an incompatible and paramount title to defeat it; but requiring proof that the relation has been changed by proper assignments, is but requiring proof of the necessary allegations of the declaration, and such dispute does not oust the justice's jurisdiction and he must inquire into it.
    4. The Act of 25th April, 1850, relative to actions of covenant in any court of record for the recovery of ground-rent, was designed to give an action of covenant for rent reserved by deed which had not been sealed by the defendant. Per Lowrie, J. (See Maulé v. Weaver, 7 Barr 329.)
    Ebbob to the Common Pleas 'of Dauphin county.

    This was an action of covenant by Mary Hummel v. Sampson Louer, to recover arrears of ground-rent on certain lots in Hummelstown, Dauphin county. Their liability to ground-rent was decided in the case of Heckerman v. Hummel, 7 Harris 64. The action was not founded on contract, but on privity of estate; the plaintiff in the action being the assignee of the rent, and the defendant the assignee of the ground. It was said that the suit was brought under the provisions of the 8th section of the Act of 25th April, 1850 (Acts 571), by which it is provided: “That in all actions now pending, or hereafter to be brought in any Court of récord in this Commonwealth, to enforce the payment of ground-rent due and owing upon any lands or tenements, held by virtue of any lease for life, or a term of years or in fee, the lessor, his heirs and assigns, shall have a full and complete remedy therefor by action of covenant against the lessee or lessees, his, her, or their heirs, executors, administrators, or assigns, whether the said premises out of which the rent issues be held by deed-poll or otherwise.”
    The plea was nil debet. The plaintiff showed title to the ground-rent and that the defendant claimed and occupied the lots. The title was not contested. November 24, 1852, verdict was rendered for $13.66 damages. A motion was made that judgment be entered without costs.

    As to actions for recovery of ground-rent see Irish v. Johnston, 1 Jones 488-9; 2 Harris 112 ; Id. 157; 2 Harris 108,112; Id. 157; 3 Harris 195.
    By the first section of the Act of 20th March, 1810, it is provided that justices of the peace shall have jurisdiction of all causes of action arising from contract either express or implied, in all cases where the sum demanded is not above $100 ; except in cases of real contract where the title to lands or tenements may come in question; or action upon promise of marriage.”
    ’ By the 20 th section it was provided that the power of justices shall extend to all cases of rent, not exceeding $100, so far as to compel the landlord to defalcate or set off the just account of the tenant out of the same,” &c. By the 26th section it is provided, in effect, that if any person sue in the Common Pleas for a debt or demand made cognisable by this Act, without having filed an affidavit of his belief that the debt or damages sustained exceed $100, and shall obtain a judgment which without costs shall not exceed $100, he shall not recover costs.
    By the 6th section of the Act 22d March, 1814, it was provided that justices of the peace and aldermen “shall have original jurisdiction of all cases of rent, not exceeding $100, to be recovered as debts of similar amount are recoverable.”

    Pearson, J., was of opinion that the plaintiff was entitled to full costs, and discharged the rule.
    Error was assigned to the refusal to enter judgment without costs.

      McCormick, for plaintiff in error.
    — The sixth section of the Act of 1814, extending the jurisdiction of justices to cases of rent, directs the mode in which such rents are recoverable, viz.; “.as debts of similar amount are recoverable.” Debts of similar amount might be recovered in the Oommon Pleas; but according to the Act of 1810, such recovery is to be without costs. If these words do not extend the provisions of the Act of 1810, in reference to costs, to cases of rent, they are without meaning.
    The previous portion of the 6th section gives the jurisdiction expressly ; and it was contended that the words “ to be recovered as debts of similar amount are recoverable,” were intended to place claims for rent not exceeding $100, on the same footing, in all respects, as other debts of the like amount: 7 Watts 491, McConahy v. Courtney. If a justice could have entertained a suit for arrears of rent claimed in this action, as for “a debt.of similar amount,” it follows, that the plaintiff is not entitled to recover costs, when he sues in the Common Pleas without affidavit being made.

      Fisher, contra.
    — By the word contract, to which the jurisdiction of justices is limited by the first section of the Act of 1810, was meant those contracts which arise out of a course of dealing between the parties: 13 Ser. & R. 102; 2 Pa. Rep. 292—5, Zell v. Arnold. It was contended that this action was not founded on a contract, but on privity of estate: that the ground-rent was secured by “ a real contract where the title to land may come in question,” and that a justice of the peace had not jurisdiction of it.
    It has been decided in Royer v. Ake, 3 Pa. Rep. 461, that a justice has jurisdiction in covenant on a ground-rent deed of an action against the assignee of the grantee; but it was said that it was not decided that the Common Pleas have not also jurisdiction in cases below $100: 6 Ser. & R. 88. Its jurisdiction is not to be taken away by conjecture.
    But the 8th section of the Act of 25th April, 1850, is sufficiently comprehensive to embrace all cases of ground-rent, whatever may be the amount in controversy; and it was contended that this Act did not give to justices of the peace jurisdiction of an action of covenant to enforce the payment of ground-rent, for the reason that judicial tribunals are distinguished into courts of general jurisdiction, and of limited jurisdiction; and that justices belong to the latter class. Nothing is presumed to be within their jurisdiction unless it appear: 2 Bac. Abr. 102; 2 Pa. Blade. 389; 8 Ser. JR. 343; 13 Id. 44.

      Pawn, in reply.
    — He cited Camp v. Walker, 5 Watts 482.
    September 6,
   The opinion of the Court was delivered, by

Lowrie, J.

— This is an action by the assignee of a ground-rent against the assignee of the ground, and, the amount claimed and recovered being less than $100, the question is raised, whether a justice of the peace has jurisdiction. If he has not, the plaintiff 'was right in bringing the suit in the Common Pleas, and may recover costs. If otherwise, he may not. We say he may not, because the $100 Act of 1810, s. 26, says so, and the Act of 1814, s. 6, is really a mere supplement to that Act, referring directly to its title, when it declares that áll rents under a hundred dollars shall be “recovered as debts of'similar amount are recoverable.” The two Acts are therefore on the same general subject, and are to be regarded as if the first were incorporated with the second.

Now it has been decided that the Act of 1814 includes ground-rents as well as rents for a term of years, even where the ground has been assigned and the claim is against the assignee: 3 Pa. B. 461. And this decision really includes the present case; for it requires no more investigation into land titles and no more judicial skill, to decide upon the legal or equitable ownership of the land, sometimes disputed because the rent exceeds the true value, 14 State Rep. 108, than it does to decide upon the title to the rent.

In this case both are assignees, and it is certain that the titles of both may come in question. What titles ? That of one to the rent, and that of the other to the land. It is true therefore that the title of real estate may come in question; but not more so than in any action of rent, when the lease or any of its legal or equitable assignments are disputed. One may not get possession as a tenant, and then, to get clear of a tenant’s duties, set up that the landlord had no tenancy to grant. But he may deny that he is tenant or that the plaintiff is landlord, if ho is willing to venture upon that. He may deny that the assignee of the rent has any valid title as assignee; and this is not disputing the title under which he holds. It is not at all different from a rent for years, where the land has been sold subject to the rent. Disputing the title of the landlord means the setting up of an incompatible and paramount title to defeat it. But requiring proof that the relation has been changed by proper assignments, is requiring proof of the necessary allegations of the declaration. Such dispute doe3 not oust the justice's jurisdiction, and he must ibquire into it. In this the inquiry is substantially the same as when suit is brought by the assignee of a bond or the endorsee of a note. And when appeals are allowed on such easy terms, we see no use in being jealous of the jurisdiction of justices. It is a most valuable jurisdiction for both plaintiffs and defendants, and not one out of a hundred of such cases is likely to be appealed from.

The Act of 25th April, 1850, sec. 8, Pl. 575, was designed to give the action of covenant for rent reserved by a deed-poll, and seems to have been suggested by the ease of Maulé v. Weaver, 7 State Rep. 329. Where both parties seal a ground-rent deed, a covenant running with the land is created; and now, if not before the Act, it is the same in the case of a deed-poll.

Judgment reversed so far as it allows costs to the plaintiff below, and affirmed as to the residue.

The dissenting opinion of Knox, J., was filed, in which Black, O. J., concurred.