text:
    Commonwealth of Pennsylvania v. William Goldberg, Appellant.

      Criminal law — Province of court and jury.

    It is error for the court to charge the jury that they are not only judges of the facts but the law, accompanying that statement with the declaration that they might disregard anything that the court might say to them as to thé law in the case; and this erroneous instruction is not cured by saying to them that they were not likely to do that; although they were the judges of the law they would -likely take the view as expressed by the court as being correct, because it is presumed that the court would know the law better than they.

      Criminal law — Duty of jury as judges of law and fact.

    In criminal cases the jury has the right to determine the law and the facts under the direction of the court.
    It is the duty of the jury to take the best evidence of the law as it is to take the best evidence of the facts. When they refuse to do either they disregard their duty and their oaths. The statement of the law by the court is the best evidence of the law within the reach of the jury.

      Jurisdiction, Q. S. — Receiving stolen goods.

    The Act of March 81, 1860, P. L. 438 does not confer upon the courts of O. & T. exclusive jurisdiction to try persons charged with the offense of receiving stolen goods, where a count for the same is joined with a count for larceny.

      Practice, Q. S. — Two counts, for larceny and receiving — Sow verdict should be framed.

    Whether an indictment containing two counts, one for larceny and the other for feloniously receiving the same goods knowing them to be stolen, will support a general verdict of guilty, not decided, the court being equally divided in opinion.
    Such difficulty can be avoided by directing the jury to determine by their verdict upon which count if either they find the defendant guilty.

      Practice, G. P. — -Trial—Inadequate charge.

    Giving undue prominence to the evidence on one side of a case, or of a fact in issue in the case, is error.
    A charge is amenable to criticism, where the court having properly and with great care and at considerable length rehearsed the facts which the commonwealth claimed to be corroborative of the testimony of accomplices neglected to make adequate reference to the contradiction to their testimony by disinterested witnesses.

      Criminal law — Evidence—Requisite degree of corroboration of accomplice.

    Where the testimony of an accomplice is corroborated in material parts which affect the defendant and tend to show his connection with the crime, it is not required that the commonwealth shall go further and furnish evidence which, without that of the accomplice, shall be sufficient to lead to the conviction of the defendant’s guilt.

      Practice, Superior Oourt — Defective assignment — Isolated excerpts from charge.

    An assignment will not be sustained which is based upon an excerpt from the charge which does not fairly present the judge’s instructions, although in itself and standing alone it might be misleading, if the law is properly expounded in connection with other portions of the charge.
    Argued Jan. 18, 1897.
    Appeal, No. 124, April T., 1897, by William Goldberg, defendant, from judgment and sentence of Q. S. Mercer Co., June Sess., 1896, No. 6 on verdict of guilty.
    Before Rice, P. J., Willard, Wickham, Reeder, Orlady and Smith, JJ.
    Reversed.
    Indictment for larceny for receiving stolen goods. Before Miller, P. J.
    The defendants, William McCullough and John Hughey withdrew the plea of not guilty and pleaded guilty as indicted. William Goldberg pleaded not guilty. At the trial McCullough turned state’s evidence.
    There was evidence of a corroborating character tending to show the guilt of Goldberg. Goldberg denied, however, any knowledge or commission of the crime and introduced evidence tending to contradict the evidence corroborating the testimony of the accomplices, Hughey and McCullough.
    Verdict of guilty and sentence thereon.

      Errors assigned were:
    (1.) In charging the jury as follows, to wit: “ Under the law of this state you are made the judges not only of the facts but of the law; but inasmuch as you are not supposed to be learned in the law it is the duty of the court in any given criminal case to explain the law to you in order to enable you to arrive at a just conclusion. You could disregard anything that the court might say to you as to the law in this case, but you would not likely do that; while you are the judges of the law you would likely take the view of it as expressed by the court as being correct, as it is presumed that the court would know the law better than the jury.”
    (2.) In charging the jury as follows, to wit: “ A jury embracing twelve citizens as this jury does, is selected without reference to any case which they are called upon to try, and in order to represent, so to speak, the impartial judgment of the community which upon matters of common sense and business is rarely at fault.”
    (8.) In charging the jury as follows, to wit: First, that “ the courts always consider it their duty to advise a jury to acquit where there is no evidence corroborative of the accomplice ” and following this with the statement that “ there is other evidence in the case, however, to submit to you, and it is for you to determine whether or not that evidence is corroborative of the testimony of John Hughey and William McCullough;” then the learned court below proceeds to cite the testimony of the commonwealth and ends with the statement “I believe, gentlemen, I have referred to about all of the corroborating circumstances.”
    (4.) In charging the jury as follows,'to wit: Corroboration need not extend to the whole testimony of the accomplice, but it being shown that he, the accomplice, has testified truly in some particulars the jury may infer that he has in others. That is, if you should find from the evidence that the accomplices in this case were corroborated in some particulars that bear upon this ease, then you might infer as is stated in this opinion, that they have testified truly in some matters in which they are not corroborated by other testimony.”
    (5.) In charging the jury as follows, to wit: In charging the jury that “ An additional fact which the commonwealth asks you to believe corroborates the witnesses Hughey and McCullough, is that the defendant was to meet Hughey and McCullough in Cleveland at a saloon on Broadway, which was either, as one of the witnesses said, No. 96 or No. 69, the witness was not certain which. They state that he was to meet them there on Tuesday afternoon, and in corroboration of that the commonwealth has called witnesses to show that William Goldberg did leave Sharon on Monday morning; that before he left he communicated to two newspaper reporters that he was going first to East Liverpool and thence to Wheeling; but that instead of going to those towns they show that he went to Akron and thence to Cleveland, arriving at Cleveland sometime Tuesday forenoon ; and they say to you that that is corroborative of the statement of Hughey and McCullough that he was to meet them at the latter point; the two witnesses state that he was to meet them at a saloon; and it appears that William Goldberg was in Cleveland on Tuesday, and was at a saloon, not on Broadway, but on Orange street, a street that branches off from Broadway and a short distance from Broadway, and that the number of that saloon was 96. They say that is corroborative of the story told by Hughey and McCullough.”
    (6.) In not affirming, without qualification, the defendant’s first point, said point and answer being as follows: “ That McCullough and Hughey, the two defendants who have entered the plea of guilty in this case, are what the law calls accomplices, and that the source of their testimony in this case is deemed by the law so corrupt that it is the duty of the jury to acquit the defendant, unless the testimony of such accomplices is corroborated by other evidence in some material matter.” Answer: “We affirm that point, as explained in our general charge.”
    (7.) In not calling the attention of the jury to the fact that officer Heasly, a witness called by the commonwealth, testified that Mr. Goldberg had told him on Monday morning that he was going to Cleveland, in 'connection with his comments on the testimony of the two newspaper reporters, Gilbert and Hazen, whom be had previously informed that he expected to go to Liverpool and Wheeling.
    (8.) In not calling the attention of the jury to the testimony of the following named witnesses, who flatly contradicted the evidence of Hughey and McCullough, viz.: David Hays, Calvin Hays, John Holmes, Mrs. Ida Magee, William McCurdy, S. H. Clepper, George Phillips, Joseph Yennig, Mrs. Goldberg and Augustus Hughey.
    (9.) In his charge to the jury as a whole, in that he did not properly direct the attention of the jury to the testimony of the defendant’s witnesses, and entirely omitted to call the attention of the jury to the array of evidence produced contradicting Hughey and McCullough, and in assuming that they were corroborated by other evidence in the case.
    (10.) The learned court below greatly prejudiced the defendant’s case by his language and manner in addressing J. G. McDowell, a witness called by the commonwealth, as follows : The Court: “ Why don’t you answer the questions that are put to you?” A. “I try to.” Q. “ The court thinks you are not trying to. The court knows something about this matter, and would like to have you answer the questions put to you.”
    And again,
    The Court: “ If you do not answer the questions put to you I will commit you to jail. I know that you can answer the questions, that you were in my office and you know what took place there. You must answer the questions or I will commit you. The court will not be trifled with by a man of your age.”
    (11.) In overruling defendant’s motion in arrest of judgment and pronouncing sentence upon him, the said motion and the reasons therefor, with the action of the court thereon, being as follows, to wit:
    “ MOTION IN ABBEST OE JUDGMENT.
    “ And now, June 2T, 1896, comes the defendant, by his attorneys, and files the following reasons in support of the motion in arrest of judgment in this case, filed on the 12th day of June, 1896.”
    . “ SEASONS.
    “ (a.) For the reason that the court of quarter sessions had no jurisdiction to try the defendant on the indictment found in this case and on which his conviction was had; in that said indictment consists of two counts, the first of which charges the defendant with larceny of twenty-four coils of copper wire, and the second count charging him with the crime of receiving the said twenty-four coils of copper wire, knowing the same to have been stolen; the crime charged in the second count being an offense which is triable exclusively in the court of Oyer and Terminer. (5.) For the reason that the verdict rendered by the jury is inconsistent and insensible, (e.) For the reason that there was not sufficient evidence to sustain a verdict of guilty in this case. ( d.) For the reason that the verdict of the jury is irregular and not in accordance with law. And now, August 3, 1896, motion in arrest of judgment overruled. And now, August 3, 1896, at request of defendant’s counsel, exception noted to this action of the court and bill sealed.”
    March 17, 1897:
    (12.) That the learned court below erred in entering judgment against the defendant and imposing the following sentence, to wit:
    “ And now, December 24,1896, the court sentence the defendant, William Goldberg, to pay a fine of five hundred dollars to the commonwealth, the costs of prosecution, return the property stolen if not already done, and undergo an imprisonment in the Western penitentiary of Pennsylvania, situate in the city and county of Allegheny, for and during the period of one year and three months, there to be kept, fed, clothed and treated as the law directs, and stand committed until the sentence be complied with.”

      W. S. Cochran and A. W. Williams, with them Jos. N. McClure and Q. A. Gordon, for appellants.

      William C. Saus, for appellee.
   Opinion by

Rice, P. J.,

In Hutchinson v. Commonwealth, 82 Pa. 472-478, Mr. Justice Panson, speaking of the effect of a demurrer to the evidence, said incidentally: “ It is true a jury are not only judges of the facts in a criminal case, but they are also judges of the law under the advice and instruction of the court.” In Kane v. Commonwealth, 89 Pa. 522, the judge was requested to charge: “ The jury are the judges of the law and the fact; ” to which he answered: “We decline to affirm this point, and as to it refer to the general charge.” In his general charge the judge said, inter alia: “You are the exclusive judges of the facts, they are for you alone. The law is for the court, and you will be governed bjr it, or you will not, as you have sworn to do, try the case ‘by the law and the evidence.’ Ido not assert that I am infallible. It is human to err, but it is not for you to declare my error.” In sustaining the assignment of error to the refusal of the point, Chief Justice Shakswood said: “ It has been strongly contended that though the jury have the power they have not the ■ right to give a verdict contrary to the instruction of the court upon the law; in other words that to do so would be a breach of their duty and a violation of their oath. The distinction between power and right, whatever may be its value in ethics, in law is very shadowy and unsubstantial. . He who has legal power to do anything has the legal right. No court should give a binding instruction to a jury which they are powerless to enforce by granting a new trial if it should be disregarded. They may present to them the obvious considerations which should induce them to receive and follow their instruction, but beyond this they have no right to go.” This language, severed from the context, has led to much misunderstanding ; for, as was clearly pointed out by Mr. Justice Mitchell, in his learned and exhaustive discussion of this question in Commonwealth v. McManus, 143 Pa. 64-93: “ If legal power means legal right, then a jury has a right to acquit any prisoner without regard to either law or evidence; for their power to do so is beyond question. ... A jury may disregard the evidence, but no judge has ever said it had the legal right to do so.” . . . The language of the Bill of Rights, which is supposed to recognize the power of the jury to determine the law in criminal cases, is : “ And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court as in other cases.” But this implies that the duty of the court is not merely to counsel but to instruct, and Chief Justice Shakswood, in immediate connection with what we have quoted, said: “ The court is appointed to instruct them, and their opinion is the best evidence of what the law is.” But if the jury are bound by their oaths to determine the facts by the best evidence of them it would seem equally to be their duty to determine the law by the best evidence before them of what it is. And this, as we understand the decision in Commonwealth v. McManus, is the law. A request for the instruction that the jury are the judges of the law as well as the fact was answered thus: “ I would say this: That you have been sworn to decide this case on the law and the evidence; that the statement of the law by the court is the best evidence of the law within your reach, and that, therefore, in view of that evidence and viewing it as evidence only, you are to be guided by what the court has said with reference to the law.”

On appeal it was held that this was an accurate and carefully considered answer to the point; and was entirely in harmony with Kane v. Commonwealth. Said Chief Justice Paxson: “ It left the jury to decide the whole case upon the law and the evidence, — not upon the law as distinct from the evidence; and they were instructed as to what was the best evidence of the law. That is to say, in the language of the constitution, they were to determine ‘ the law and the facts, as in other cases,’ under the advice and direction of the court; they were to look to the court for the best evidence of the law, just as they look to the witnesses for the best evidence of the facts. Thus interpreted and thus administered, this seeming paradox in our criminal law becomes intelligible. A judge who instructs a jury, in a criminal case, that they may disregard the law as laid down by the court, errs as widely as the judge who gives them a binding instruction upon the law. It is the duty of the jury to take the best evidence of the law, as it is to take the best evidence of the facts. When they refuse to do either, they disregard their duty and their oaths.” Just how much of substance this interpretation leaves of the doctrine that the jury are the judges of the law as well as of the fact in criminal cases is a question we need not discuss; it is sufficient for present purposes, to say that whenever it is invoked it is to be applied subject to the explanation and qualification that the jury are bound by their oaths to decide the case on the law and the evidence, and that the statement of the law by the court is the best evidence before them of what the law is. A judge’s statement of the law should be so accepted by the jury, not merely because he is presumed, to be better acquainted with the law than they— for that would be true of counsel in the case — but because he speaks authoritatively; for the time being, he is the mouthpiece of the law; he is the person appointed under the constitution to instruct them as to the law, and to decide when it is in dispute, and they are to determine the law under his advice and direction. It follows that the court committed error in charging the jury that they were judges not only of the facts but the law, and accompanying that statement with the declaration that they might disregard anything that the court might say to them as to the law in the case; and this erroneous instruction was not cured by saying to them that they were not likely to do that, and that although they were judges of the law they would likely take the view of it as expressed by the court as being correct because it is presumed that the court would know the law better than they. This falls very far short of an instruction that the statement of the law given by the court is the best evidence of what it is. It belittles the true functions of the court; it places the opinion of the court upon no higher ground than that of counsel in the cause. It is an expression of a belief that the jury will accept the judge’s statement of the law as correct, but does not suggest that they ought to do so, or that they would be acting in disregard of their duty if they disregarded it, and decided the case upon their own notions of the law. A jury swayed by .passion, prejudice or popular clamor, or disposed to decide a case according to. their ideas of abstract justice would find a plausible excuse in such instructions for rendering a verdict flagrantly contrary to, law, if counsel could be retained willing to advise them that the law is not as the judge declares it to be. We do not mean to intimate that that happened in the present case, but it might happen under the instructions complained of. To overrule the assignment would be to establish a precedent dangerous in the extreme, and contrary to sound principle. We are unwilling to give our assent to it.

In disposing of the rule for new trial the learned trial judge very frankly conceded that he stated the law incorrectly when lie instructed the jury that they might disregard anything the court might say to them as to the law, but expressed the opinion that the defendant was not prejudiced thereby because the verdict was not contrary to the law as charged by the court. This would be true if there were any way to ascertain the fact. But how could he know, and how are we to know, that the jury did not disregard his instructions as to the law ? How are we to know, for example, that the jury accepted the judge’s instructions as to the measure of proof required to convict of a crime, and did not decide the case upon the mere preponderance of testimony? There were other legal principles upon which the court instructed the jury at the defendants’ request. It was important for him that the jury should be guided by those instructions. Whether they were so guided or disregarded them-,' as under the instruction as to their functions as judges of the law they were at liberty to do, is a matter of conjecture. It could only be ascertained by a tribunal having power to determine the facts as well as the law, and neither the trial judge nor we have such power. If the jury disregarded the court’s instructions as to the law their error is hidden under the general verdict. All that we know, — and it is enough — is that the charge made it possible for them to commit the error: therefore it cannot be safely asserted that the erroneous instruction was not prejudicial. The defendant is equally interested with the commonwealth in having the jury clearly understand, that although, in a sense, they are judges of the law as well as the fact, they are also bound to decide the case on the law and the evidence, and that the statement of the law as given by the court is the best evidence before them of what the law is. In many kinds of cases this might be his greatest and perhaps only safeguard against an illegal and unjust conviction. The first assignment of error is sustained.

The second assignment is not sustained. The language does not necessarily require the construction which the defendant’s counsel put upon it; and construed in the light of other instructions the jury could not have understood the judge to mean that they were to voice public sentiment by their verdict.

The third assignment is without merit. The judge fairly left it to the jury to say whether the facts were as alleged by the commonwealth and whether they were corroborative.

The excerpt from the charge quoted in the fourth assignment, of error does not fairly present the judge’s instructions as to the law regarding the corroboration of accomplices. Standing by itself it might be misleading but the judge immediately proceeds to say: “ Some facts should be proved by testimony independently of what they have testified, which taken by itself leads to the inference, not the conviction but the inference, not only that the crime has been committed, but that the defendant in this case is implicated in the commission of the crime charged in the indictment.” The duty of the commonwealth to corroborate the accomplices as to material matters was further emphasizedby the affirmance of the defendant’s points. The instruction as a whole was in the language, substantially, of Mr. Justice Trunkey, in Watson v. Com., 95 Pa. 418, and was quite as favorable to the defendant as that approved in Kilrow v. Com., 89 Pa. 480. Complaint is made that the court modified the rule as stated in Watson v. Com. by the words “not the conviction but the inference.” This was an entirely proper explanation of the language quoted. It is not necessary that an accomplice shall be corroborated upon every material part of his testimony, for if this were required it would be necessary for the commonwealth to prove the whole case without his testimony. Where his testimony is corroborated in material parts which affect the defendant and tend to show his connection with the crime, it is not required that the commonwealth shall go further and furnish evidence which, without that of the accomplice, shall be sufficient to lead to the conviction of the defendant’s guilt. This would be absurd. The fourth and sixth assignments are overruled.

The learned judge’s recital of the evidence relative to the defendant’s trip to Cleveland was a substantially correct statement of the material facts testified to. The inaccuracies, if so they may be called, were so slight and were in such immaterial particulars as not to prejudice the defendant. After a very thorough examination of the evidence it seems to us that the judge’s summary was about as fair and accurate a presentation of it as could have been made without reciting it at length. The fifth assignment does not require further notice and is overruled.

The seventh, eighth and ninth assignments relate to the omission of the court to call the jury’s attention to the testimony of certain witnesses called by tbe defendant, and especially the testimony contradictory of Hughey and McCullough. It could hardly be expected that the court would refer at length to every small detail in which the testimony of these witnesses was contradicted. But as the court, very properly, had with much care and at considerable length rehearsed the facts which the commonwealth claimed to be corroborative of their testimony it was due to the defendant that some reference should be made to the contradictions of their testimony by disinterested witnesses. Giving undue prominence to the evidence on one side of a case, or of a fact in issue in the case, is error. This has been very emphatically declared in some very recent decisions: Phila. Trust etc. Co. v. P. & E. R. R. Co., 177 Pa. 38; Herrington v. Guernsey, 177 Pa. 175; Lerch v. Bard, 177 Pa. 197; Minick v. Gring, 1 Pa. Superior Ct. 484; Larzelere v. Tooley, 3 Pa. Superior Ct. 109. We are of opinion that the learned judge unintentionally fell into this error and that the charge is amenable to this criticism.

The tenth assignment relates to the remarks made by the court in the presence of the jury to the witness McDowell. But, as no exception was taken at the time, the assignment could not be considered even if it had merit, and is dismissed.

The eleventh- assignment raises a question as to the jurisdiction of the court of quarter sessions to try the indictment because it contained a count for receiving stolen goods knowing them to have been stolen. The same question was raised in Holmes v. Commonwealth, 25 Pa. 221, and again in Fulmer v. Commonwealth, 97 Pa. 503, and in both cases it was held that the quarter sessions had jurisdiction. The latter case was decided after the repeal of the Act of May 25, 1878, P. L. 147, by the Act of May 13, 1879, P. L. 54; therefore we need not now consider what effect, if any, that legislation had. The jurisdiction conferred on the quarter sessions by the act of 1860, as construed in Fulmer v. Commonwealth has not been taken away. The assignment is overruled.

This indictment was drawn under the 24th section of the Act of March 31, 1860, P. L. 436, which provides that “in every indictment for feloniously stealing property it shall be lawful to add a count for feloniously receiving the said property knowing it to have been stolen.” In the case of Com. v. Stahl, 1 Pa. Superior Ct. 496, the indictment did not show on its face that it was drawn under the statute, and in that respect the case is distinguishable from the present. In the case at bar the question 'is squarely raised whether an indictment containing two counts, one for larceny and the other for feloniously receiving the same goods knowing them to have been stolen will support a general verdict of guilty. Upon this question the judges of this court who heard the case are equally divided in opinion ; therefore the assignment of error is not sustained, and we refrain from any discussion of the question. But as the judgment and verdict must be set aside upon other grounds, we remark that upon the retrial of the case the difficulty can be avoided by directing the jury to determine by their verdict upon which count, if either, they find the defendant guilty.

The judgment is reversed and a venire facias de novo is awarded.


source: Caselaw Access Project

author: Wickham, J.,

license: Public Domain

text:
    W. J. Johnston and N. H. White, partners, trading and doing business under the firm name of W. J. Johnston & Co., Appellants, v. J. C. Menagh.

      Attachment Act of 1869 — Discretion of court — Dissolution of attachment— Review.

    Where there is nothing to show any abuse of discretion, the order dissolving an attachment under the Fraudulent Debtor’s Act of 1869, being interlocutory, is not reviewable by the appellate court.
    Argued Feb. 17, 1897.
    - Appeal, No. 29, Feb. T., 1897, by plaintiffs, from order of C. P., Northumberland Co., Sept. T., 1896, No. 544, dissolving attachment under Fraudulent Debtor’s Act.
    Before Willard, Wickham, Beaver, Reeder, Or-lad y and Smith, JJ.
    Affirmed.
    Attachment in assumpsit under Fraudulent Debtor’s Act of March 17, 1869. Before McClure, P. J., 17th Judicial District, specially presiding.
    The attachment issued August 27, 1896. Same day bond filed. On August 31, 1896, a rule was granted to show cause why the attachment should, not be dissolved. On September 10, 1896, affidavit of defense filed. On September 14, 1896, the court, McCltjbe, P. J., dissolved the attachment in the following opinion:
    [This motion is not too late. The execution of a delivery bond does not effect a dissolution of the attachment, nor will it be a bar to a subsequent motion to dissolve.] [6] 3 Ency. of Plead. & Practice, p. 87. No issue has been raised either by plea or answer by which it can be said that defects in the process have been waived or the defendant estopped from asserting them.
    [A motion of this land raising pure questions of law does not require an oath to support it.] [7] An affidavit of the defendant thereto could be no more than the qualified belief of a man who may not have, or be entitled to, an opinion on the subject.
    The conditional part of the plaintiffs’ bond is as follows: “Now the condition of this obligation is such that, if said plaintiffs shall fail to prosecute such attachment with effect, and recover a judgment against the said defendant, and shall pay to the said defendant all legal costs and damages which the said defendant may sustain by reason of the said attachment, then the foregoing obligation is to be void; otherwise the same shall be and remain in full force and virtue.”
    It will thus be seen that it is in the form required by the act of 1869, with the exception that the word “attachment” is used instead of “ action,” and differs from the amendment of 1887 in that the clause “ or in case such attachments be quashed, dissolved or ended,” and the word “fees ” are omitted, and the clause “ and recover a judgment against the said defendant ” is inserted. Counsel have urged that these are matters of form, not of substance, and the bond good; that the words “ or in ’case such attachment be quashed, dissolved or ended” add nothing to the strength of the instrument, as if either of these 'events happen the attachment is not “prosecuted with effect,’ the condition is broken, and the sureties liable; that the words “ and recover a judgment against the defendant ” are surplus-age in no way affecting the bond; and that fees and costs being identical, the omission of the former is of no consequence.
    [ The act of 1869 provides an extraordinary remedy for a simple contract creditor. It enables him to seize the goods of his alleged fraudulent debtor, and hold them for execution before the adjudication of his claim. For an act of bankruptcy it takes the property not for the benefit of all the creditors as it should, but for the one who first gets his writ in the hands of the sheriff. The courts have accordingly put a strict construction on all the provisions of the act, holding, for example, in Hoppes v. Houtz, 138 Pa. 34, that the omission of the words “ for the use of the parties interested,” which seem to be but declaratory of the purpose for which the bond is given to the commonwealth, to be fatal; and in Parks v. Watts, 112 Pa. 4, an attachment was quashed because made returnable to the next term when a monthly return day intervened, a departure from the requirements of the act to be sure, but one that could not affect the merits of the cause, or injure the defendant.
    The act is mandatory that a bond shall be filed by the plaintiff as a prerequisite to the issuance of the writ, and sets forth the conditions to be inserted therein. While it may be true, as contended by plaintiffs’ counsel that the words “ or in case such attachment be quashed, dissolved or ended ” could have been omitted without prejudicing the rights of the defendant, by reason of the previous clause “ if the said plaintiffs shall fail to prosecute such attachment with effect” covering the same ground, evidently the legislature did not think so, for they were inserted for the purpose of supplying the defect in the act of 1869 as developed in Harbert v. Gormley, 115 Pa. 237, and to make it sure that upon the happening of either event the defendant would have a remedy for the wrongs done him by the attachment.] [8]
    [The inserted clause “and recover a judgment against the defendant ” may be regarded as surplusage, but the omission of the word “ fees ” we think a matter of substance. The introduction of this word in the amended act must have been for some purpose, and the mere fact of its introduction is evidence that the legislature considered it of importance. Costs and fees are different in their nature. Costs are an allowance to a successful party for expenses incurred in conducting his suit, and are in the nature of a penalty on the party failing in the cause; fees are a compensation to an officer for services rendered in its progress: Musser v. Good, 11 S. & R. 247; Ramsey v. Alexander, 5 S. & R. 338; Beale v. Com., 7 Watts, 183.

      While the distinction between costs and fees is not generally-made, and the latter are usually recoverable under a decree for costs, and if recovered by the party he holds them in trust for the officer (Janes’ Appeal, 87 Pa. 428); nevertheless the distinction does exist, and that distinction seems to be here made by the legislature in prescribing the conditions of the bond. The act of 1869 reads “costs and damages,” but in order to make it perfectly clear that in case the attachment be quashed, dissolved or ended, the officers would get their fees whether they had been previously paid by the defendant, and thus come strictly under the denomination of “ costs,” or not, this clause was by the amendment of 1887 made to read “ costs, fees and damages.” The different nature of costs and fees being thus recognized and the distinction marked, we do not see why the sureties could not take advantage of the omission and defend against the recovery of the latter in an action on this bond.] [9]
    The proper practice is to comply strictly with the act and have the bond drawn in conformity with its provisions. Any other rule must lead to doubt and conjecture as to whether or not the conditions of the bond will meet every emergency likely to arise. This uncertainty should not be tolerated, and the decisions of the courts are uniformly against it.
    Want of authority to execute the bond by the attorney in fact for the plaintiffs is not raised by the motion, hence will not be considered. The allegation of fraud in the affidavit seems to meet the requirements of the act, and the description of the property sold the defendant, and for which the debt was contracted is in our judgment sufficient.
    September 14, 1896, the attachment is dissolved.

      Errors assigned were (1) the learned court below erred and abused its discretion in granting a rule to show cause why the attachment should not be dissolved, on a mere motion, which does not contain a denial of any material allegation in the plaintiff’s affidavit, made by the defendant’s attorneys without being sworn to; (2) the learned court erred and abused its discretion in granting a rule to show cause why the attachment should not be dissolved on a mere motion which does not contain a denial of the fraud alleged by the plaintiff; (8) the learned court-erred and abused its discretion in dissolving the attachment after the defendant filed an affidavit of defense to the merits of the plaintiffs’ claim; (4) in dissolving the attachment after the defendant filed a bond; (5) in dissolving the attachment after inquiring into the truth of the allegations contained in the affidavit upon which the writ issued; (6-9) portions of the opinion of the court below, reciting same; (10, 11) in dissolving the attachment.
    March 17, 1897:

      J. W. Grillespie and Lewis Dewart, for appellant.

      Voris Auten, with him L. S. Walter and Preston A. Vought, for appellee.
   Opinion by

Wickham, J.,

In this case the court below dissolved the attachment, for the reason that the condition of the bond, given by the plaintiffs, ■ was not in accordance with the requirements of the act of assembly.

If called on to consider the merits of the case, as revealed by the record, and we could in no event go further, we would be compelled to say, that the proceedings in the court below are free from error. It is enough, however, to hold, as was done in the very similar case of Hoppes v. Houtz, 133 Pa. 34, that the order dissolving the attachment is interlocutory and not reviewable here, there being nothing to show any abuse of discretion.

Order affirmed.


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    N. H. White, A. V. Huyler and M. DeH. Mason, partners trading and doing business under the firm name of N. H. White & Co., Appellants, v. J. C. Menagh.
    Argued Feb. 17, 1897.
    Appeal, No. 30, Feb. T., 1897, by plaintiffs, from order of C.P. Northumberland Co., Sept. T., 1896, No. 545, dissolving attachment under Fraudulent Debtor’s Act.
    Before Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.

      March 17, 1897:
   Opinion by

Wickham, J.,

For the reasons assigned, in the opinion, this day filed, in the case of W. J. Johnston & Co. v. J. C. Menagh, the order of the court below dissolving the attachment in the present case is affirmed.


author: Smith, J.,

text:
    Commonwealth of Pennsylvania v. F. Frank Tragle, Appellant.

      Husband and wife — Desertion—Jurisdiction, Q. S.

    Under the Act of April 13, 1867, P. L. 78, the court of quarter sessions of any county where complaint is made has jurisdiction of the proceedings to enforce support of the deserted wife, without regard to the settlement or residence of the defendant husband and without reference to where the original desertion took place.
    The main question is whether the exigence and wrongful neglect contemplated by the statute exist. The action must be bona fide and within the spirit and meaning of the law. The proceeding 'however is out of the course of the common law and no appeal is given by statute. The case only comes before the appellate court as if on a writ of certiorari, and is governed by analogous principles.

      Jurisdiction, Superior Gourt — Review on appeal.

    The act of June 24, 1895, P. L. 212, creating the Superior Court did not alter the existing method of presenting cases for review, nor change, the legal effect. The Act of May 20,1891, P. L. 101, under which similar and additional powers are vested in the Supreme Court, has not been regarded by that tribunal as affecting the established method of presenting questions on appeal.
    The Act of May 9, 1889, P. L. 158 does not extend the right of review, it simply directs that all appellate proceedings shall be called appeals, but in no sense enlarges or modifies the povvers of the appellate court; because of that statute it is now necessary first to examine the record of each case and determine whether it is in fact an appeal, a writ of error, or a writ of certiorari, under the former practice, and deal with it accordingly.
    Argued Feb. 17, 1897.
    Appeal, No. 26, Feb. T., 1897, by defendant, from judgment and sentence of Q. S. Northumberland Co., Sept. Sess. 1896, No. 33 on verdict of guilty.
    Before Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Warrant of arrest, surcharge of non-support. Before SayIDGE, P. J.

      The defendant, residing at Reading, Pa., was arrested on a warrant of arrest in Reading, and held for appearance at Northumberland county.
    There was evidence tending to show that Lizzie W. Tragle, wife of the defendant, had been deserted by her husband in the city of Reading where they had been living for some five years. Thereafter her husband remained a resident of Reading and the wife returned to live with her brother in Milton, Northumberland county, Pa.
    The defendant introduced evidence tending to show abuse by the wife and threats to kill him. It appeared also that the prosecutrix swore at the trial that she would not live with the defendant, without giving any reason for the refusal. Defendant pleaded to the jurisdiction. The answer in the court below to the charges was that the wife was insane and therefore irresponsible, as was apparent to a casual observer and so remarked by the court and found as a fact in disposing of the case.
    Defendant moved in arrest of judgment assigning for reasons that the desertion having been committed, if at all, in the county of Berks, and the defendant having resided in said county of Berks at the time, the court of Northumberland county did not have jurisdiction in the case; second, that the prosecutrix having testified at the trial that she would not live with the defendant, the case should be dismissed and the defendant discharged.
    The motion in arrest of judgment was dismissed in the following opinion by Savidge, P. J.
    The only legal question arising is one of jurisdiction. This is not a case of desertion, but one of nonsupport, under the statute. I am of opinion we have jurisdiction, and finding against the defendant on the questions of fact, do order and decree that he pay the costs, and pay to his wife for her support the sum of five dollars ($5.00) per week until further ordered, and enter into recognizance in the usual manner in the sum of two hundred dollars ($200) for the faithful compliance of this order, and stand committed; to which defendant excepts and. bill sealed.

      Errors assigned were (1) in entertaining jurisdiction of the case; (2) it appearing upon the hearing of the case that the common domicil of both the prosecutrix and the defendant was in the city of Reading, Berks county, and that the defendant had never left, but still resided in said county of Berks, the court erred in overruling defendant’s motion in arrest of judgment for want of jurisdiction, and in sentencing the defendant to pay for the support and maintenance of his wife; (3) in finding as follows : “ This is not a case of desertion, but one of nonsupport, under the statute ; ” (4) in sentencing the defendant to pay for the support of the prosecutrix, after she swore upon the hearing of the case that she would not live with defendant, there not appearing any cause for her refusal to live with him; (5) in sentencing defendant to pay for the support of the prosecutrix, it appearing that her treatment of him was cruel and barbarous, endangering his life and health, and that defendant really left because he was afraid of his life; (6) in sentencing defendant to pay for the support of the prosecutrix, it appearing that defendant had not separated himself from his wife without reasonable cause, and, therefore, did not fall within the provisions of the act of assembly regulating desertion; (7) in entering the following sentence: “ I do order and decree that he pay the costs and pay to his wife for her support the sum of five ($5.00) dollars per week until further ordered, and enter into recognizance in the usual manner in the sum of two hundred dollars ($200) for the faithful compliance of this order and stand committed.”

      E. H. Deysher of O'Reilly $ Deysher, with him H. 8. Knight, for appellant.
    — -The proceeding is in the nature of a criminal charge and is subject to the general laws governing criminal procedure: Demott v. Com., 64 Pa. 302; Com. v. Douglas, 15 P. L. J. N. S. 368.
    It has been frequently held that the cause which would absolve a husband from his duty to support his wife is only such as would entitle him to a divorce: Sterling v. Com. 2 Grant, 162; Com. v. Boetcher, 5 Luz. L. R. 539.
    One of the causes which would entitle a husband to a divorce is cruel and barbarous treatment: Act of May 8, 1854, P. L. 644; Butler v. Butler, 1 Parsons, 345; Gordon v. Gordon, 48 Pa. 226; Jones v. Jones, 66 Pa. 494.

      March 17, 1897:

      Wm. H. Hackenberg, with, him D. Webster Shipman, district attorney, for appellee.
    — -The Act of assembly of April 13,1867, P. L. 78, has been three times before the Supreme Court on the question of jurisdiction, and it has been uniformly held that the courts have jurisdiction whenever the husband may neglect to maintain his wife and children without reference as to where the original desertion may have taken place: Demott v. Com., 64 Pa. 302; Keller v. Com., 71 Pa. 413; Barnes v. Com., 2 Penny. 606.
   Opinion by

Smith, J.,

The appellant was arrested upon a warrant issued by a justice of the peace of Northumberland county on complaint of his wife charging him with desertion and neglecting to maintain her. After hearing, the court below found against the defendant on the facts and ordered him to pay five dollars per week for the support of his wife; whereupon this appeal was taken. The action of the court in assuming jurisdiction of the case and in finding against the defendant, is assigned for error, in six specifications.

The proceedings were instituted under act of April 13,1867. Under its terms, “ in addition to the remedies now provided by the law, if any husband or father, being within the limits of this commonwealth” shall separate himself from his wife or children without reasonable cause, or shall neglect to maintain her or them, he may be arrested on a warrant issued by “ any alderman, justice of the peace or magistrate of this commonwealth,” and held to answer therefor at the next court of quarter sessions. The proceedings are to be in the name of the commonwealth, and if the husband “abscond, remove or be found in any other county of the commonwealth, than the one in which the warrant issued ” it maybe executed in such county, on being backed as prescribed by the third section of the act of March 31, 1860.

The argument that the proceeding under the statute is in effect a criminal prosecution and therefore subject to the rules of criminal procedure is not sustainable. No offense is defined, and no punishment is prescribed. It is more analogous to a proceeding by capias under the act of 1836, than to a prosecution under the criminal code. The purpose of the act is not to punish criminals, but to reheve dependent wives and children by providing for their maintenance. Under its provisions the court of quarter sessions of any county where the complaint is made has jurisdiction of the proceedings, without regard to the residence or settlement of the defendant, and without reference to where the original desertion took place: Demott v. Com., 64 Pa. 302; Keller v. Com., 71 Pa. 413; Barnes v. Com., 2 Penny. 506. The main inquiry is whether the exigence and wrongful neglect contemplated by the statute exist.

The contention that the proceeding must have its inception in the county where the defendant has his residence, contravenes the terms of the act and would defeat its manifest purpose. It expressly authorizes the information to be made before “ any alderman or justice of the peace of the commonwealth,” thus making the boundaries of the state the territorial limits within which the proceeding may be instituted. The only subdivisional restriction is that the cause shall be heard and disposed of by the court of the county wherein the complaint was lodged. Of course the court would not sustain a proceeding if instituted at a distance from the county where the defendant resides for the purpose of persecution or annoyance. The action must loe bona fide and within the spirit and meaning of the law.

The evidence in the present case warrants the finding of the court, and we would not disturb it — even had we undoubted authority to do so. The appellant admits that he concluded to abandon his wife in April, 1895, while they were boarding at a hotel in the city of Reading, Berks county, and that he wrote her a note to that effect, in which he also advised her to go to her folks as there was no use in her remaining in Reading. He left this message in their room at the hotel in her absence, and thereupon departed to live with his parents. After being thus abandoned, his wife returned to her former home in Milton, Northumberland county, and has since resided there with her brothers. Having removed to the place designated by her husband, his argument here against the jurisdiction of the court of Northumberland county comes with a bad grace, and well illustrates the wisdom of the statute in allowing the proceedings to be instituted wherever the relief may be needed.

The appellant deliberately abandoned his wife and on the hearing in the court below declared that he would not live with her. Since the desertion he has made no bona fide offer to support her, although he may have contributed something for that purpose. Under these circumstances the fact that his wife may have said she would not live with him does not absolve him from his marital duty. It is not pretended that his failure to live with his wife or to maintain her is the result of that statement by her, or that his course has been in any way affected by it. His contention in the court below and here is that his wife’s improper conduct justified him in the course he has pursued, and this was made the controlling issue of fact. But the trial judge, after hearing the evidence, has determined that question against him.

In so far as the review of the facts goes beyond the scope of the inquiry as to the jurisdiction of the court below, and the regularity of the proceedings, it must be regarded as ex gratia. The proceeding is out of the course of the common law and no appeal is given by statute. The case is to be treated as before us on a writ of certiorari, which is a substitute for the writ of error, and is therefore to be governed by analogous principles: Phila. & Trenton Railroad, 6 Whar. 41; Barnes v. Commonwealth, supra; Overseers v. Overseers, 2 Pa. Superior Ct. 397. The act of May 9, 1889, does not extend the right of review; it simply directs that all appellate proceedings shall be called appeals, but it in no sense enlarges or modifies the powers of the appellate court. Because of that statute it is now necessary to first examine the record of each case and determine whether it is in fact an appeal, a writ of error, or a writ of certiorari, under the former practice, and deal with it accordingly: Rand v. King, 134 Pa. 641; Camp Hill Borough, 142 Pa. 511.

The act of June 24, 1895, creating the Superior Court, did not alter the existing method of presenting cases for review, or change its legal effect. While the 8th section of that statute confers very extensive powers upon this court in the disposition of eases, it does not authorize us to decide questions of fact not brought before us in the regular manner. The act of May 20, 1891, under which similar and additional powers are vested in the Supreme Court, has not been regarded by that tribunal as affecting the established method of presenting questions on appeal. In the recent case of Smith v. Times Publishing Company, 178 Pa. 481, where that statute was considered and applied, it was held that matters not brought upon the record for review, by exceptions in the usual manner, would not be considered, and the strictness theretofore required in this respect was rigidly observed.

The specifications of error are overruled and the proceedings are affirmed.


author: Orlady, J.,

text:
    Frank B. Thrall et al., Appellants, v. The City of Williamsport.
    Practice, equity — Preliminary injunction — Injunction affidavits.

    A mere general affidavit to the truth of the facts is entirely insufficient to support an application for a preliminary injunction made under a bill which was not supported by injunction affidavits or evidence.
    Such practice does not conform to the amended equity rules adopted January 29, 1894.
    Argued Feb. 16, 1897.
    Appeal, No. 21, Feb.. T., 1897, by plaintiff, from order of C. P. Lycoming Co., June T., 1896, No. 2, dismissing bill for preliminary injunction.
    Before Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Bill for preliminary injunction. Before Metzger, P. J.
    The abstract of the bill disclosed the following conditions:
    1. Copy of ordinance approved March 27,1895, providing for letting the contract for certain sewers, among which is the Louisa street sewer in question.
    2. The awarding of said contract, April 29, 1895.
    8. Confirmation of the report of the viewers appointed to assess costs and damages, March 2,1896.
    4. Joint resolutions of councils on July 8,1887, granting permission to lay a drain in Louisa street, with which the one now in controversy is parallel, on condition that the city shall become the owner of the same when a drainage or sewerage system for the locality is adopted, and the bona fide subscribers to the cost of the same shall be exempt from further payment for sewerage privilege.

      March 17, 1897:
    5. The petition of the people of Louisa street to councils for said drain.
    6. The list of the names and the amounts of the subscriptions to cost of the said drain.
    7. The fulfilment of the terms of the agreement on the part of the people.
    8. The failure of the city to keep faith with the people after the drain was constructed, and the assessment for the new sewer.
    9. The prayer for injunction and other relief.
    10. The affidavit to the bill.
    The court dismissed the bill assigning as reason, inter alia, that no evidence had been taken.in .support of the bill and no injunction affidavits were produced. Nothing is before the court except the bill and the general affidavit thereto.

      Error assigned was refusal to grant preliminary injunction as prayed for in the bill.

      W. M. Stephens, for appellants.

      W. E. Crocker, city solicitor, for appellee.
   Opinion by

Orlady, J.,

This appeal cannot be sustained as the reasons given by the learned judge who entered the decree are conclusive against it. There was an application for a preliminary injunction made under a bill which was' not supported by injunction affidavits or evidence.

The process of injunction should be applied with the utmost caution, and the discretion of the judge acting as a chancellor in granting or refusing a preliminary injunction, will not be controlled by an appellate court unless abused or some well recognized principle of law or equity is violated.

In this case as in Kincaid’s Appeal, 66 Pa. 411, the motion was upon a bill filed and sworn to, but without injunction affidavit or affidavits, of which the Supreme Court says, “ This is a practice which ought not to be countenanced.” A mere general affidavit to the truth of the facts is entirely insufficient, and it is clearly error to grant a preliminary injunction without affidavits supporting the facts stated in tire bill: Gilroy’s Appeal, 100 Pa. 5.

The amended equity rules, adopted January 15, 1894, provide, “ Preliminary injunctions may be granted in accordance witli the present practice, on bill and injunction affidavits, but upon the hearing, at the end of four days, or such other time as may be fixed, the evidence must be taken subject to cross-examination, and ex-parte affidavits will not be received:” 159 Pa. xxvii.

These rules were formulated and adopted to regulate the practice of equity in the several courts of common pleas in the Commonweath, and went into effect on the first Monday of March, 1894. They were established under the direction and by the authority of an act of the legislature, and have all the force and effect of a positive enactment. All the proceedings in equity which are not in conformity with them are irregular and void: Cassidy v. Knapp, 167 Pa. 305.

It is not necessary to consider the case further, and the several assignments of error are overruled.

The decree of the court below is affirmed.


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    Jesse Goss, Appellant, v. The Woodland Fire Brick Company, Limited.

      Landlord and, tenant — Privity of estate — Assignment of leasehold,.

    Where a lease contains no stipulation against assignment by the lessee one acquiring the leasehold by assignment is fixed with notice of its covenants and takes the estate of his assignor cum onere; his liability grows out of privity of estate and closes when the privity ceases; while he holds the estate and enjoys its benefits he bears its burdens but he lays down both the estate and its burdens by an assignment, even though his assignment be to a beggar.

      Landlord and tenant — Assignment of leasehold — Evidence—Fraud.
    A lessee of a leasehold estate, unfettered as to assignment, having assigned to an insolvent, evidence is inadmissible, as to his knowledge of such insolvency and intent in assigning, for the purpose of showing that the assignment is fraudulent and void as against the lessor seeking, to recover for royalties reserved in the lease.

      Argued Feb. 11, 1897.
    Appeal, No. 36, Feb. T., 1897, by plaintiff, from judgment of C. P. Clearfield Co., Sept. T., 1895, No. 225, on verdict for defendant.
    Before Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit to recover royalties due on a lease. Before Gordon, P. J.
    Plaintiff in 1887 owned a tract of land in Clearfield county underlaid with a deposit of fire clay, and by contract he leased the land with mining rights to one Troxell, without any limitation on the right of the lessee to assign the leasehold. By various assignments the leasehold passed into possession of the defendant company, which, after operating the mine for some time, during which period it paid royalty or rent to the plaintiff, on the 27th óf October, 1894, assigned the same to one Aaron Peters who at once took possession of the property, and defendant withdrew its possession and subsequently had nothing more to do with the mining operations or leasehold estate.
    The court directed a verdict for defendant on which judgment was entered. Plaintiff appealed.

      Errors assigned were (1) overruling plaintiff’s offer of evidence which proposed to show by witness on the stand that defendant had consulted counsel and made the assignment with a view to avoiding the payment of royalty and to prevent plaintiff from collecting the same from defendant company ; (2) overruling plaintiff’s offer which proposed to show by witness on the stand 'that Aaron Peters was insolvent, and that the purpose of assigning the leasehold to him was to prevent Jesse Goss from collecting royalty from the defendant company; (3, 4) rejecting offers of like purport.

      David L. Krebs, with him William Paterson, for appellant.—
    The several assignments of error raising but a single question may be properly discussed together. The entire defense is based on the validity and legal effect of the transfer, and under the statute of 13 Elizabeth, chap. V, (vide Roberts Digest of British Statutes, in force in Pennsylvania), page 295, this transfer will not relieve the defendant company. See also Walker v. Physick, 5 Pa. 193.

      March 17, 1897:
    On the question of fraudulent intent, see Academy of Music v. Smith, 54 Pa. 130.

      Thomas H. Murray, with him Allison O. Smith, for appellee.—
    The legal effect of the execution, acknowledgment and registry of the deed of assignment from defendant company to Peters under the fifth section of the Act of May 28, 1715, 1 Sm. L. 95, was to vest in the grantee the immediate right: Blight v. Schenck, 10 Pa. 285; Caldwell v. Fulton, 31 Pa. 475; Eckman v. Eckman, 68 Pa. 460.
    The character of testimony necessary to establish fraud to affect the express terms of a deed is well defined in Thorne, McFarlane & Co. v. Warfflein, 100 Pa. 526. To the same effect is Philips v. Meily, 106 Pa. 536; Hoffman v. Railroad, 157 Pa. 174.
    It is well settled that when an assignee of a lease lays down the estate he lays down its burdens even though the assignment be to a beggar: Negley v. Morgan, 46 Pa. 281; Borland’s Appeal, 66 Pa. 470; Washington N. G. Co. v. Johnson, 123 Pa. 576.
   Opinion by

Orlady, J.,

On June 30, 1888, Jesse Goss leased, demised and granted unto Zeigler & Martyn, their executors, administrators and assigns, by a written agreement, duly executed and recorded, all the stone and mineral generally known as fire clay, including all its different kinds and varieties, together with all the stone, clay and other mineral underlying the entire surface of a tract of land containing fifty-one acres, described by courses and disstanees, for and during the term of twenty years then next ensuing. The manner of operation, payment of royalty, rights of the lessees to purchase during the term, or renew at its expiration, provisions for ownership of improvements made on the property, and forfeiture under violations, were fully set out in the agreement, which was without limitation of the lessees’ right to sell, transfer and assign their interest in it.

On September 6, 1888, Martjm assigned all his interest in the lease to J. M. Troxell. On October 26, 1888, Zeigler assigned all his interest in the lease to the same person, both of which assignments were acknowledged and placed on record.

The interest in the leasehold estate, the improvements and the personal property necessary for its operation as a fire clay works, then owned hy Troxell, were taken in execution by the sheriff of Clearfield county and sold to the Woodland Fire Brick Company, Limited, on March 4, 1891.

This purchaser took possession of the premises after the sale, mined clay, paid the royalty .thereon and performed all the conditions mentioned in the lease until October, 1894. On October 27, 1894, the Woodland Fire Brick Company, Limited, sold, assigned^ transferred and set over to Aaron Peters all its rights, title, and interest in and to the lease and messuage therein described aiid term yet to go, for the consideration of 125.00 which was paid, and possession of the property surrendered by the appellee and delivered to Peters; after which date the mines were not operated. This action of assumpsit was brought by Jesse Goss to recover the royalties due for the months following October, 1894.

■ On the trial, when the secretary for the limited partnership was on the stand, being called by the defendant, the plaintiff proposed to ask on cross-examination, “whether the-company did not consult counsel how it or they could get rid of the liability to pay the royalty under this lease to the plaintiff, and that they were advised to transfer it to someone; and to show further by the cross-examination of this witness that the real purpose of the transfer was to avoid payment of the royalty and to prevent Mr. Goss, the plaintiff, from collecting the same from the defendant company.” (First assignment of error.)

“And whether or not he did not know at that time, and whether the company did not know that Aaron Peters was insolvent, and whether the purpose of assigning this lease to him was to prevent Jesse Goss from collecting his royalty from the defendant company, and also to ask him the further question whether the defendant company did not assign the lease to Aaron Peters for the reason that they wanted to avoid further payment of royalty to Jesse Goss, the plaintiff, under the lease, this for the purpose of showing that the assignment or transfer to Aaron Peters is fraudulent and void as against Jesse Goss.” (Second assignment of error.)

By other witnesses plaintiff offered to prove “ that on the 27th of October, 1894, when the defendant transferred this lease to Aaron Peters, the leasehold interest was worth a much larger amount of money, and that L. A. Ross, a stockholder of the defendant company, and its mine superintendent, tried to sell the leasehold interest to witness on more than one occasion at a large price, this for the purpose of showing, in connection with the proof already in the case, .that there was a large amount of clay in sight, that the transfer on the 27th of October, 1894, was in fraud of Jesse Goss, the plaintiff, and intended only to defeat and hinder him from collecting further royalty from defendant, and to avoid any further liability under the lease under which they had taken possession and enjoyed the property from March 4,1891, to the 27th of October, 1894.” (Third assignment of error.)

And by same witness “ that a short time prior to the transfer of the lease to Aaron Peters, the defendant company tried to sell it, with the improvements, etc., to witness at the sum of $8,000, and subsequently for $5,500, and in fact the interest was worth much more than $25.00, the amount for which it was ostensibly transferred to Peters; that at the time of the transfer to Peters he did not own any real estate, and was largely in debt, and in fact was insolvent, and also to prove, if it has not already been proven, that Peters was an employee of the defendant company at the time of the transfer to him, and is now an employee. This with the other testimony already in the case is offered to prove that the assignment by the defendant company was intended to avoid the further payment of royalties to Goss, the plaintiff, and prevent him from collecting the same from them, and to show that the transaction is fraudulent in law and void.” (Fourth assignment of error.)

The several offers were met by the defendant, first, as incompetent and irrelevant; second, as not competent or material for the purpose stated, and were excluded on the following ruling by the court: “ I am of the opinion that under the authority of Borland’s Appeal, 66 Pa., 470, Washington Natural Gas Company v. Johnson, 123 Pa. 576, and Fennell v. Guffey, 139 Pa. 341, the proposed evidence is not admissible. The defendant’s liability is not by virtue of any privity of contract between them, but is one based solely upon the privity of estate which arises upon their acquisition of title to the leasehold estate in-question by purchase at sheriff’s sale and possession taken in pursuance thereof. The liability continued only during defendant’s ownership and possession, and ceased when they parted with the title. Such being the law the purpose of parting with the title is immaterial. There is no allegation of actual fraud being perpetrated upon the plaintiff by defendant. The proposed evidence does not in my opinion constitute fraud. The claim in suit being for rent or royalty accruing after defendants had parted with their title, the proposed evidence is immaterial.”

The royalty named in the lease was 25 cents for each and every ton of 2240 pounds weight merchantable fire clay, and by one of the covenants it was provided that the parties of the second part “shall pay the aforesaid royalty during the first year of the operation of this indenture on at least 3,000 tons of fire clay and thereafter each year on at least 6,000 tons.”

The sole question under the offers was as to the character of evidence suggested by them to make the appellee liable for the royalty on the minimum mentioned after the lease had been transferred and possession delivered.

• The purpose, as disclosed, was to show that the transfer was for the purpose of hindering and delaying Goss in the collection of royalty, and that it was fraudulent in law and void.

The lease when executed was left open for transfer without notice to or assent of the lessor, and the assignment to Troxell or the sale of his interest by the sheriff to the appellee did not change in any way the extent of any covenant under the lease. There was no limitation or restriction as to who should be assignee or purchaser of the leasehold interest. Its value, manner of transfer or continuing liability of 'any one in the line of title, performance of any condition by anyone acting under it, after the transfer, was not mentioned in the lease, so that the price paid, the personnel of the purchaser, the amount of fire clay in place, its value, or the motive of the sale was not material to the inquiry before the, court.

The appellees were not required to remain the owners until the expiration of the term, nor could the appellant limit their right to sell their interest, as there was no privity of contract between them. Assuming that the price was low, that there was plenty of unmined clay, that the purchaser had been their employee, that they desired to sell the property for any reason sufficient to a manufacturer’s mind, it would not follow that the act was fraudulent in law, because it was profitable to operate at another place and abandon this, or that they could not legally sell that which was not in any way limited by restrictions. The offers did not suggest that the transfer was a trick or artifice by which appellee retained any title or interest in or to the leasehold after the transfer to Peters, or was fraudulent in fact.

The danger of possible injury from this source could have been avoided by providing for such a contingency in the writing itself.

The measure of liability is distinctly stated in Washington Natural Gas Co. v. Johnson, 123 Pa. 576, “ Acquiring the leasehold by an assignment of the lease he is fixed with notice of its covenants, and he takes the estate of his assignor cum onere. But as his liability grows out of privity of estate, it ceases when the privity ceases. If he had assigned before the time for performance, his liability would have ceased with his title, and liability would have attached to his assignee by reason of privity of estate, and so on toties quoties. Each successive assignee would be liable for covenants maturing while the title was held by him because of privity of estate, but he would not be liable for those previously broken or subsequently maturing, because of the absence of any contract relations with the lessor; while he holds the estate and enjoys its benefits, he bears its burdens, but he lays down both thé estate and its burdens by an assignment, even though, as is said in some of the cases, his assignment be to a beggar: Negley v. Morgan, 46 Pa. 281; Borland’s Appeal, 66 Pa. 470.”

It is well settled law that covenants to pay rent or royalty run with the land, and the assignee of a lease is liable for the payment of all rents and royalties which accrue while he holds the assignment of the lease. It is admitted in this case that all royalties accruing during the time the leasehold estate was held by the appellees were promptly paid, and all conditions were performed by them, and under the above decisions, the evidence was properly excluded, the assignments of error are overruled, and the judgment is affirmed.


text:
    James H. Dunham, W. T. Buckley, Chas. H. Webb and W. E. Webb, doing business as Dunham, Buckley & Co., Appellants, v. Mary A. Rundle, Thomas Rundle, Samuel Rundle, O. E. Reynolds and Gilmore & Duffy.

      Execution — Legitimate purpose is satisfaction of debt.

    The purpose of an execution is to obtain satisfaction not security of a debt, and the employment of an execution for any other purpose than satisfaction is a perversion of its design, and a fraud against third persons.

      Execution — Postponement on ground of fraud.

    The ground on which an execution may be postponed to a subsequent levy is that the prior one is not used in good faith for its legal purpose but in fraud of the right of others.
    An agreement by a senior execution creditor which permits the possession and control of the property to remain with defendant after levy as before, so that private sales were made in contravention of law is a fraud in law, and will postpone such execution to the junior execution of a more vigilant creditor.
    Argued Jan. 20, 1897.
    Appeal, No. 27, Jan. T., 1897, by plaintiffs, from decree of C. P. Wyoming Co., Auditor’s Report Docket, Book 2, p. 216, sustaining exceptions to auditor’s distribution, and decreeing distribution.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Exception to auditor’s report decreeing distribution of a fund derived by sheriff’s sale of personal property. Before Dun-ham, P. J.
    The facts sufficiently appear in the opinion of the Superior Court.

      Errors assigned were (1) in not awarding to Dunham, Buckley. & Co. the sum of $785.50 on their execution, out of the proceeds of the sheriff’s sale of the personal property of A. Rundle; (2) in decreeing distribution to Mary Rundle, Thomas Rundle, Samuel Rundle, and to Gilmore & Duffy, of so much of the fund derived from the sheriff’s sale of the property of A. Rundle, as was necessary to satisfy the writ of Dunham, Buckley & Co., to wit, the sum of $785.50; (8) in holding that the executions of Mary Rundle, Thus. Rundle, Sam’l Rundle and Gilmore & Duffy, did not lose their priority upon the fund produced by the sheriff’s sale of the personal property of' A. Rundle; (4) in not holding that the direction to the sheriff, by Mary Rundle, Thomas Rundle, Samuel Rundle and Gilmore & Duffy, after he had seized the goods of A. Rundle- and locked up the store, to allow the store to remain. open until the day of sale, did not postpone their writs to the subsequent execution of Dunham, Buckley & Co.; (5) in holding that no question of fraud arises in this case; (6) in holding that there must be an express agreement and understanding that the store should not only remain open, but that sales should be made; (7) in not holding that the withdrawal of the property from the custody of the sheriff, constituted legal fraud; (8) in holding that the store of A. Rundle was never open nor any goods sold after the Dunham, Buckley & Co. writ came into the sheriff’s hands;
    (9) in holding that the store of A. Rundle was not reclosed by virtue of directions also received from Dunham, Buckley & Co.;
    (10) in holding that the revocation of the notice to allow the store to be open until the day of sale, by O. E. Reynolds and by James W. Piatt, Esq., was a revocation of the same for all who had signed the notice to allow it to be reopened; (11) in holding that there was no evidence that Mary A. Rundle knew that sales were made after the store had been reopened; (12) in not holding that in a contest between Mary A. Rundle (who is the wife of A. Rundle), and other execution creditors of her said husband, over a fund produced by a sheriff’s sale of the husband’s property, that she was bound to prove the bona fides of her judgment.

      W. E. Little and Charles E. Welles, with them C. A. Little, for appellants.
    — The appellees’ executions had priority, but that priority was lost by their own conduct. The control and direction of the writ was wantonly taken out of the hands of the sheriff: Keyser’s Appeal, 13 Pa. 409; Com. v. Contner, 18 Pa. 439.
    Possession and control remaining after- levy as before, and private sales are both in contravention of law: Parys & Co.’s Appeal, 41 Pa. 273.
    A joint possession by the defendant with the sheriff’s deputy is not sufficient to preserve the priority of execution: Bingham v. Young, 10 Pa. 395.
    March 17, 1897:
    Whether fraud in fact exists or not, the law stamps it as fraud, because the tendency is to invite fraud, and hence it is against public policy: Pierce v. Evans, 61 Pa. 415.

      E. J. Jordan and A. A. Vosburg, with them W. S. Hulslander, for appellees.
    — The appellees did nothing which would postpone their rights. The mere fact that the store was allowed to remain open will not postpone a writ in the absence of an intent to use the writ as a security: Keyser’s Appeal, 13 Pa. 409; Landis v. Evans, 113 Pa. 332; Broadhead v. Cornman, 171 Pa. 322.
    It cannot be presumed that Mary A. Rundle knew of the private sales: Bears’ Est., 60 Pa. 430.
    There must be an express assent to such sales, or the writ is not postponed: Parys & Co.’s Appeal, 41 Pa. 273.
    Even in such case it is not a conclusive presumption of fraud: Broadhead v. Cornman, 171 Pa. 322.
   Opinion by

Orlady, J.,

On April 12,1895, E. O. Reynolds issued an execution against A. Rundle, and the sheriff by virtue thereof levied upon and took under execution a stock of general merchandise owned by the defendant. On April 18, 1895, the sheriff received two writs of testatum fieri facias from Lackawanna county in one ot' which Thomas Rundle was plaintiff, and the other in favor of Samuel Rundle, which writs were delivered to him at the same time as a fieri facias in favor of Mrs. Mary A. Rundle, the wife of the defendant. On April 19, 1895, a fieri facias in favor of Gilmore & Duffy was issued and the day following one in favor of James W. Piatt, trustee, came to the sheriff’s hands. These executions were followed on April 29 by one in favor of Dunham, Buckley & Co., the appellants herein.

In the building in which the property levied upon was situated, Mrs. Mary A. Rundle, the plaintiff in the fourth writ above mentioned operated a millinery store, access to which was had only through the store room used by her husband. When the levy was made by the sheriff on the first writ, the sheriff closed the store and deposited the key with the deputy “ to see to the goods, to watch the store on account of fire and burglars, to watch the stock,” the effect of which was to prevent access to that part of the building used by Mary A. Bundle. The defendant then requested of the sheriff that some arrangement be made by which his wife could have access to her millinery goods, but was informed that “ unless some arrangement was made with the creditors who had the writs,” he would keep the store closed. During the two following days the store remained closed, and the defendant secured a notice as follows: “ To sheriff Knapp of Wyoming county: You are hereby notified that you may allow the store of A. Bundle, upon the goods in which you have made a levy, to remain open, without risk to yourself, until the date of sale, April 29, 1895,” signed by the counsel of execution plaintiffs, upon the understanding that if any executions were subsequently issued against him, or were likely to be issued, the notice should be revoked, and the sheriff should at once close the store under all the writs in his hands.

This paper was left at the sheriff’s office in the absence of that officer, but he was not made acquainted with the condition under which the signature was secured, and in accordance with its provisions he permitted the defendant to open the store.

The purpose of the execution creditors in assenting to the store being kept open was to permit access to that part of the building in which Mrs. Bundle conducted her millinery store. Without the knowledge of any of the parties interested except his wife, the defendant, from April 24th to April 80th inclusive, sold at private sale of the- goods under levy, and after the sale by the sheriff, accounted to that officer by paying him $42.61, as the net receipts of the sales made by him.

The appellants secured their judgment on April 29th and immediately before their execution was placed in the hands of the sheriff a notice as follows was given: “ To Frank Knapp, sheriff: Judgment and execution being taken by Dunham, Buckley & Co. v. A. Bundle, putting matters in different shape, you are notified to proceed and close up store of A. Bundle, forthwith. I represent' only the one. James W. Piatt, per Jos. Wood Piatt, attorney.” “To the sheriff: You will obey the same as to my writ, O. E. Beynolds.^

The sum realized by the sheriff $2,906.61, and distributed by an auditor to labor claims, costs and executions, and for reasons given in his report, the writ of Mary A. Rundle was postponed to the one of Dunham, Buckley & Co. Exceptions were filed to this report, and after argument the learned judge below changed the distribution so as to give the executions of the three Rundles precedence to that of Dunham, Buckley & Co. The principal reason governing the action of the court in this was “ two of these execution creditors did separately revoke the agreement to open the store,- before the Dunham, Buckley & Co. execution was received by the sheriff, at a time when no other persons had acquired any rights in the property, as no other fi. fas. were in the sheriff’s hands then; and we do not ■see why they should not be held to have revoked the same for all; and when they directed the sheriff to close the store upon their writs, it carried it to all writs in his hands.” “ It required the consent of each and every one of the execution creditors of A. Rundle, to enable the sheriff to allow the store to remain open, but the direction of any one of these creditors closed the store as effectually as though all joined in such direction. We think there is a vast difference between agreements of this kind to allow a store to remain open, and agreements not to levy or directions not to levy, where it requires some further direction from the plaintiffs to enable the officer to act upon the writs.”

Under the report of the auditor, the parties affected were Mary A. Rundle and Dunham, Buckley & Co., as her writ was postponed to all others, and the last execution took the money otherwise due her writ. This distribution was based on the finding of fact that she assented to the private sales made by her husband, and that “ if Mrs. Rundle permitted that to be done, which would postpone the writ of her fellows in the agreement, she was neglecting a duty she owed to them, and it was negligence of a most serious character, if indeed it did not constitute actual fraud. If she understood that the store was to be kept open solely for her convenience, then by not imparting to others her knowledge of what was transpiring in the store, she was imperiling their writs as well as her own.”

In this case we have the auditor and the learned court below drawing opposite conclusions of fact and of law from the testimony and decisions ; and we feel that the legal deductions of the auditor are more in conformity with well established rules, as it must .be borne in mind that tbe rights of the parties to this contest are to be determined as between the Mrs. Rundle and the Dunham, Buckley & Co. writs, they being the only parties before us on this appeal. On April 20th, all executions were secured by a levy on the property of the defendant, and his store locked up. When the defendant secured in writing the consent of the execution plaintiffs that the sheriff “ may allow the store of A. Rundle, upon the goods in which you have made a levy, to remain open without risk to yourself until the day of sale April 29th, 1895,” Mary A. Rundle, the wife of defendant was his largest creditor; and the reason urged to have the store reopened was purely a personal one to her. The written notice to the sheriff did- not contemplate any interference with the goods under levy, as there is no evidence that any of the.other execution plaintiffs knew of such interference with the property; the wife under these circumstances made her husband her agent in securing the indulgence of his other creditors to permit the store room to remain open without risk to the sheriff, and it was her bounden duty not only to exercise perfect good faith, but vigilance in seeing that the goods under levy were kept intact not only for her own writ, but for the other assenting creditors and for any others who would be interested on the day of sale. She could not accomplish her purpose through their favor and so use their consent as to greatly lessen the stock of goods, either through her indifference or by her consent in permitting private sales to be made through six days. The statement furnished by defendant to the sheriff shows only the net receipts, without reference to how the amount of the gross sales as made by him was lessened to determine the amount paid. Through the kindness of the execution creditors the property was practically left under the control of the defendant, who conducted private sales from the store, while his wife, as his largest creditor, was in and out of the store “ the same as anyone else when the store was open.”

The testimony pointed so strongly to her assent to the private sales that her explanation was certainly necessary to relieve her of the charge of bad faith. Instead of relieving herself of this imputation, when it was sought to show her knowledge of the way the business was done, under the notice to reopen, it was met by the objection of being irrelevant and immaterial. The evidence fails to indicate collusion of the other plaintiffs for the purpose of hindering or delaying creditors but as plainly shows that Mrs. Rundle knew, or by reason of her relation to the property and its location should have known that private sales were being made by her husband; and so knowing, or bound to take notice, it was her duty to inform the others who had joined in the notice permitting the store to remain open, of the defendants’ treatment of the goods. The law does not favor an execution for the mere purposes of lien. The ground on which an execution may he postponed to a subsequent levy is that the prior one is not used in good faith for its legal purpose, but in fraud of the rights of the other creditors. The law is thus stated in Corlies v. Stanbridge, 5 R. 286; “ If the plaintiff delivers an execution to the sheriff with direction not to levy at all or not until further orders, it creates no lien upon the defendant’s personal property as against a creditor issuing or proceeding with a subsequent execution. The rule is the same if there is a levy accompanied with instructions to stay proceedings. In both cases the plaintiff’s object is considered to be to obtain security, not satisfaction for his debt, and the employment of an execution for this purpose is a perversion of its design and a fraud against third-persons: ” Broadhead v. Cornman, 171 Pa. 322.

In this case we have the possession and control of the property remaining after levy as before; private sales made in contravention of law under an arrangement with the execution plaintiff and carried on in her presence if not under her supervision; a serious loss made possible if not occasioned by her, and she must bear it rather than the subsequent vigilant creditor. As was said in Parys & Co’s. Appeal, 41 Pa. 273, of such cases, “ They present such a strong temptation to do wrong not only in making sales but to carry off and conceal the property, that the law forbids them altogether, not alone for fraud in fact but as being a fraud in law: ” Pierce v. Evans, 61 Pa. 415.

The first writ in the hands of the sheriff was that of E. O. Reynolds, and all creditors save the appellant, consented that James W. Piatt, trustee, should take precedence to the three Rundle writs. The fact that the counsel representing the Reynolds and Piatt writs gave notice to the sheriff to proceed on their writs cannot be taken advantage of by the subsequent creditors, as tbe notice was to affect these writs separately, and they could withdraw from the arrangement of April 20th at any time, if doing so did not give them an unfair advantage over the others; and as the Gilmore & Duffy writ is paid in full by reason of the fraud in law of Mrs. Bundle it is not necessary to pass upon the effect of the three Bundles agreeing that the Piatt writ should take precedence to theirs; whether that agreement did not by operation of law, place ahead of them all writs which preceded in lien that of Piatt, trustee.

As the controversy over this distribution is narrowed to the executions of Mary A. Bundle and Dunham, Buckley & Co., we feel that her conduct during the time her husband’s store was opened for her convenience was such as to deprive her execution of its place as against Dunham, Buckley & Co.

The decree of the court below is reversed and the schedule of distribution as made by the auditor reinstated and affirmed. Costs to be paid by the appellees.