author: Henderson, J.,

text:
    Phœnixville Borough, Appellant, v. Miller.

      Road law — Curbing—Paving—Boroughs—Question for jury.

    The question whether curbing in a borough is a part of the paving of a gutter is a question of fact for the jury to be determined by what is the usual and customary way of paving a gutter in the borough, taken in connection with the ordinances on the subject.
    Argued Nov. 20, 1906.
    Appeal, No. 162, Oct. T., 1906, by plaintiff, from judgment of C. P. Chester Co., Aug. T., 1905, No. 103, for defendant non obstante veredicto in case of The Burgess and Town Council of Phoenixville Borough v. John B. Miller.
    February 25, 1907 :
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Scire facias sur municipal lien. Before Hemphill, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the judgment of the court.

      Gibbons Gray Cornwell, with him Samuel A. Whitaker, for appellant.
    The resolution of June 1,1904, directing the street committee to notify defendant to curb and gutter his sidewalk, and the borough’s notice of June 17, 1904, to defendant given in pursuance of said resolution, were a full compliance with the act of 1851, and rendered defendant, upon failure to do the work, liable to have it done for him by the borough, and to have a lien entered according to existing law: Black v. Roebuck, 17 Pa. Superior Ct. 324; Angle v. Stroudsburg Boro., 29 Pa. Superior Ct. 601; Howard v. Borough of Olyphant, 181 Pa. 191; State v. Jersey City, 27 N. J. L. 493; Merchants’ Union Barb Wire Co. v. C., B. & Q. Ry. Co., 70 Iowa, 105 (28 N. W. Repr. 494); Butler v. Passaic, 44 N. J. L. 171.
    If it be held that “general regulations ” mean not specifications, but a formal ordinance of general application, requiring owners to curb when ordered, etc, (repeating, in substance, the act of 1851), we have the ordinance of 1874 and its supplement of 1879, supplying all these requirements as to guttering; and as the uncontradicted testimony is, that the necessary, usual and fit method (and the customary method in Phoenix-ville) of constructing a gutter is with a curb; curbing is properly included in guttering, and may be charged as a part thereof. See Schenley v. Com., 36 Pa. 40; O’Leary v. Sloo, 7 La. Ann. 25; McNamara v. Estes, 22 Iowa, 246.

      J. E. E. Eause, for appellee, filed no printed brief.
   Opinion by

Henderson, J.,

The borough of Phoenixville is subject to the general borough Act of- April 3, 1851, P. L. 320. That statute, among other things, gives a borough power “ to require and direct the grading, curbing, paving and guttering” of streets by the owners of the abutting property in accordance with the general regulation instructions prescribed. The second section of an ordinance adopted June 17,1858, enacted “ That on all streets ordered to be curbed and paved, the sidewalks fronting all improved property shall be paved to the full width thereof,” etc. An ordinance adopted July 22,1874, requires that the owner or owners of any lot fronting on any of the streets, lanes, alleys or avenues in said borough shall furnish the necessary materials and pave the gutter or gutters along the said streets, avenues, lanes and alleys in front of' his, her or their lots within thirty days after notice given by the council of the borough requiring said work to be done. The second section of the ordinance provides that the depth of the .gutter from the “ top of curbstone ” shall not be less than seven inches unless otherwise ordered by the town council. A supplement to this ordinance, adopted August 2, 187 9, provides in the first section that gutters shall be paved with good flat stone or hard brick on edge, and in the second section that the gutters shall not be less thau’seven inches deep “ at the curb ” and three inches on the outside unless otherwise ordered by the town council, nor of a less width than eighteen inches. By an ordinance approved August 2, 1893, the width of Bridge street was fixed at thirty feet “ between curb lines,” and the sidewalks at ten feet on each side of the street. On June 1, 1904, a resolution was passed by the borough council instructing the street committee to notify the defendant, among others, to curb and gutter his sidewalk on Bridge street, and notice was given to him to comply with that resolution. The borough performed the work after the defendant neglected so to do, and this action was brought to enforce a lien therefor. The defendant contended at the trial that the borough had no ordinance requiring curbing; that the town council had no power to compel him by resolution to curb, and that the lien was consequently entered without warrant of law. After a verdict for the plaintiff judgment was entered for the defendant non obstante veredicto, the learned judge being of tbe opinion that the borough had no ordinance or legislative enactmént requiring the curbing of its streets by abutting lot owners. This conclusion does not take into consideration the fact that a curb may be a necessary or usual part of a sidewalk or gutter. A borough ordinance required that the gutters along the streets be paved in the manner therein prescribed. What constitutes the pavement of a gutter is a question of fact, and evidence was offered at the trial to show that the usual and customary way of paving a gutter in this borough was with a curb and paving, and that the curb was a proper and fit part of such paving. Among the regulations of the ordinance of July 22, 1874, is the requirement that the depth of the gutter shall not be less than seven inches- from the top of the curbstone. There is both direct evidence as to the use of the curb as a part of the gutter pavement and a clear implication in the ordinance that a curbstone is to be used in connection with such paving. Moreover, it is a matter of common knowledge that curb stones are generally used in paving streets and sidewalks, and that if not absolutely necessary they are convenient and desirable in connection therewith. It is not for the court to say as a matter of law that the curb is not a part of the gutter pavement. Whether it is so is a question for a jury, and the only evidence offered on that subject at the trial was to the effect that the curb was a part of the pavement. It was held in Schenley v. Com., 86 Pa. 29, that the power to pave included the power .to furnish and do all that is necessary, usual or'fit for paving, and that whether a curbstone was usually included in paving was a question of fact. We are of the opinion that both under the ordinances above referred to and the uncontradicted evidence presented at the trial the defendant is liable for the cost of the curbing.

The judgment is, therefore, reversed,' and judgment is now entered on the verdict in favor of the plaintiff.


source: Caselaw Access Project

license: Public Domain

text:
    Phœnixville Borough, Appellant, v. Brownback.
    February 25, 1907:
   Opinion bv

Henderson, J.,

It was agreed by counsel that the decision in this case should follow that of the Burgess and Town Council of the Borough of Phoenixville, against John B. Miller, ante, p. 6, in which an opinion has been this day filed reversing the judgment .and entering judgment in favor of the plaintiff on the verdict. The judgment in this case is therefore reversed and judgment is now entered in favor of the plaintiff on the verdict.


text:
    Phœnixville Borough, Appellant, v. Walters.
    February 25, 1907:
   Opinion by

Henderson, J.,

It was agreed by counsel that the decision in this case should follow that of the Burgess and Town Council of the Borough of Phcenixville, against John B. Miller, ante, p. 6, in which an opinion has been this day filed reversing the judgment and entering judgment in favor of the plaintiff on the verdict. The judgment in this case is therefore revei sed and judgment is now entered in favor of the plaintiff on the verdict.


author: Beaver, J.,

text:
    Kracker, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence■ — Street railways — Summer car — Standing on steps — Contributory negligence.

    In an action against a street railway company by a passenger, to recover damages for personal injuries, it appeared from the plaintiff’s own testimony that he stepped down upon the alighting step of a summer car, and, with his cane in his left hand, grasped the stanchion of the car in order to steady himself upon the step. He turned himself about to catch the stanchion with his right hand, in order'“’to give himself support in re-entering the car, which had not stopped-as he had expected. Instead of catching the stanchion, he caught hold of his cane, which gave him no support, and he was precipitated into the street and injured. Held, that a nonsuit was properly entered.
    Argued March 14, 1907.
    Appeal, No. 13, Oct. T., 1906, by plaintiff, from order of C. P. No. 2, Phila. Co., March T., 1904, No. 828, refusing to take off nonsuit in ease of George Kracker v. Philadelphia Rapid Transit Company.
    April 15, 1907 :
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before WlLTBANK, J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      E. Spencer Miller, for appellant,
    cited: Sharrer v. Paxson, 171 Pa. 26; Kibele v. Philadelphia, 105 Pa. 41; Gannon v. Wilson, 18 W. N. C. 7 ; Penna. R. R. Co. v. McCloskey, 23 Pa. 526; Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306 ; Butterman v. McClintic-Marshall Const. Co., 206 Pa. 82; Gray v. Scott, 66 Pa. 345; R. R. Co. v. Chenewith, 52 Pa. 382; Penna. R. R. Co. v. Werner, 89 Pa. 59 ; Neilson v. Hillside Coal & Iron Co., 168 Pa. 256.

      Thomas Learning, with him Thad. L. Vanderslice, for appellee,
    cited: Rice v. Philadelphia Rapid Transit Co., 214 Pa. 147 ; Bainbridge v. Union Traction Co., 206 Pa. 71; Gaffney v. Union Traction Co., 211 Pa. 91.
   Opinion by

Beaver, J.,

The negligence of which the plaintiff complains is thus set forth in his statement:

“ When the said car was close to Wolf street, on its way south, plaintiff arose and called the attention of the conductor of the said car to the fact that he desired the same to stop, in order that he might alight. The conductor undertook, proceeded to, and in fact began to bring the car to a halt, and by so doing invited plaintiff to proceed to the lowest step at the side of the said car, which was of the construction known as a summer car, and stand upon the said lowest step, prepared to alight when the car should come to a full stop, but the said conductor, being the agent for that purpose of the said defendant, failed and neglected to bring the car to a stop, but carelesslyand. negligently directed the motorman, who was controlling the motive power of the said car, and was also the agent thereon for the said Philadelphia Rapid Transit Co., and subjected to the directions of the said conductor, that he should again put speed upon the said car, which the said motorman therefore did. Plaintiff was thereby under the necessity of turning around upon the lowest alighting step of the said car and returning into the same. In attempting to do so, plaintiff lost his footing and handhold upon the car, in spite of using full care, and was consequently thrown with great violence upon the cartway of the said Sixth street, by the force whereof he broke his arm and severely bruised and lacerated the same and sustained shock and other injury to his body, etc.”

What we regard as the crucial fact in the case is entirely omitted by the appellant’from his statement of the question involved and also from the history of the case. From his statement of claim, it appears that, being upon the alighting step of a summer car, he turned about when the car failed to come to a full stop and attempted to re-enter the car. What he did in this effort is brought out by a question of the court addressed to the plaintiff when upon the witness stand. By the Court: “Q. You say you had hold of the brass upright with your left hand and in the same hand was' your cane, and you found you had to re-enter the car and used your right hand, which was free, to catch the stanchion, and, in the act of catching the stanchion, you caught your cane ? A. That is correct.” The situation then was this: The plaintiff, with his cane in his left hand, grasped the stanchion of the car, in order to steady himself upon the step. lie turned himself about to catch -the stanchion with his right hand, in order to give himself support in re-entering the car. Instead of catching the stanchion, he caught hold of his cane which, of course, gave him no support and he was precipitated to the street. This is clearly brought out in his cross-examination, when the question was asked : “ Then you went to go back again in the car. What did you do with your right hand ? A. I reached over to the handle and I thought I had the handle. Q. Did you catch the handle ? A. I catched my cane. Q. You caught your left hand ? A. With the left hand I had the handle from the car, and with the right hand I reached over, and I thought I had the handle from the ear, and it was only a moment, you cannot tell, this is so quick. This was done, I was down in the street and was injured.” It is clearly evident, from the plaintiff’s own statement, that the proximate cause of the accident was his catching hold of his own cane which was held in his left hand, instead of the stanchion of the car for which he reached, and which, if caught, would have given him the support which he required to find his way back into the car. Under these circumstances, the court was not in error in “entering judgment of nonsuit and in refusing to take it off on motion,” which is the only alleged error assigned.

The ease is much stronger for the defendant than that of Rice v. Philadelphia Rapid Transit Co., 214 Pa. 147, in which the plaintiff, having taken a position on the outside of an open car, with one foot on the running board and the other on the body of the car, -was, by a sudden jerk, thrown from her position into the middle of the street.

It is similar, in some respects, to Bainbridge v. Union Traction Co., 206 Pa. 71, in which these facts are stated in the opinion of the court:

“The plaintiff below got on a car of the defendant company at Twelfth’and Walnut streets, in the city of Philadelphia, and took a seat about the middle of it. When it was approaching Sixty-third street, of his own motion he left his seat and stepped down on the running board, holding the rail with his left hand and having in his right a bag containing tools. While in this position he says the car stopped with a sudden and violent jerk on the west side of Sixty-third street, and he was thrown off, sustaining the injuries for which he is seeking compensation.

“ When the appellant left his seat, where he was safe, and stepped down on the running board of the car, and remained there while it was in motion, he voluntarily put himself in a place of danger and took upon himself the risk of his position from any cause: Thane v. Scranton Traction Co., 191 Pa. 249; Bumbear v. United Traction Co., 198 Pa. 198; Woodroffe v. Roxborough, etc., Railway Co., 201 Pa. 521. With one hand grasping the rail and another holding on to the bag of tools, the risk which he took of being .thrown from ’ the car while so standing on the running board by its sudden stopping was most imminent, and for his negligence in the assumption of such a risk he alone must bear the consequences.”

That the appellant stepped down on the running board of the moving car because he intended to get off at W olf street in no manner excuses his negligence. If, therefore, the plaintiff was negligent in putting himself in a place of peril upon the running board of the car, he was still more negligent in the manner in which he attempted to regain a place of safety. Without discussing, therefore, the question of the negligence of the defendant, it is very clear that the plaintiff was guilty of contributory negligence in placing himself in a situation which was in itself dangerous and, in endeavoring to extricate himself from which, by his own act, the injury of which he complains was caused.

The plaintiff, in endeavoring to regain a safe position, mistook his cane for the stanchion. It cannot be said to have been an error of judgment in extricating himself from a hazardous position. It was clear mistake of fact — a misapprehension of existing surroundings — which may have been explained in a greater or less degree by conditions for which the defendant was in no way responsible.

We are of opinion that this was not a case for the jury and that the nonsuit was properly entered.

Judgment affirmed.


text:
    Commonwealth v. Walker, Appellant.

      Criminal law — Taking a child for purpose of prostitution.

    The Act of May 28, 1885, P. L. 27, relating to taking a woman child under sixteen years of age for the purpose of prostitution, is not repealed by the Act of May 19, 1887, P. L. 128, by which section 91 of the crimes act of March 31, 1860, was amended.
    The word “takes,” in the first section of the act of May 28, 1885, does not mean merely a taking of a woman child by force, but it means a taking by artifice, cajolery, craft, persuasion or promise, or by the purely voluntary surrender of the person taken.
    Argued March 14, 1907.
    Appeal, No. 141, April T., 1907, by defendant, from judgment of Q. S. Allegheny Co., Sept. T., 1906, No. 1,396, on verdict of guilty in case of Commonwealth. v. William Walker.
    April 15, 1907 :
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Indictment for rape. Before Young, J.
    Verdict of guilty, upon which judgment of sentence was passed.

      ¡Errors assigned are indicated in the opinion of the Superior Court.

      Body ¡P. Marshall, W. J. ¡Brennen and William Hunter, for appellant.

      H. L. Groebrurg, district attorney, and John Marrón, for appellee.
   Opinion by

Beaver, J.,

The defendant was charged in an indictment with three several offenses, fully described in the charge to the jury of the trial judge in the court below. He was acquitted of the offenses charged in the first and second counts and convicted of the third, under the provisions of section 1 of the Act of May 28, 1885, P. L. 27.

We have a number of assignments of error, the most of them relating to the admission and rejection of evidence.

The first, second and third specifications are not assigned in accordance with our rule XVI. The rulings of the court on the several offers are not quoted, as required. Independently of this, however, we see nothing in the assignments requiring comment or any interference on our part.

The fourth, fifth and sixth assignments relate to the refusal of the court to arrest judgment, for the reasons therein assigned. .

The act of 1885, above referred to, was not, in our opinion, repealed by the act of May 19,1887, P. L. 128 in and by which section 91 of the Crimes Act of March 31,1860, P. L. 382 was amended. There is no repealing clause in this act of 1887 and there is nothing therein inconsistent with the provisions of the first section of the act of 1885 above referred to.

There is nothing inconsistent between the offense charged in the first count of the indictment, upon which the defendant was acquitted and that charged in the third count, upon which he was convicted, and the acquittal upon the one did not necessarily, directly or by implication, render a conviction upon the other impossible, under the evidence.

We are entirely satisfied with the charge of the court, specially complained of in the seventh assignment of error, in regard to the meaning of the word “ talcing,” which constitutes the gravamen of the offense of which he was convicted. The word take,” in popular phrase, has over 100 different applications. A fortress may be taken by force, and that is the usual significance of the word, but its taking will be none the less complete if by craft or strategy; so in the use of the word in the act of assembly under consideration, the taking may be by force and against the will of the person taken, but, as the court below very correctly, as we think, states, the taking may be by artifice, cajolery, craft, persuasion or promises, or by the purely voluntary surrender of the person taken. The meaning of the statute was clearly defined by the court in its charge. The rights of the defendant were fully protected. The case was laboriously tried and the charge to the jury clear, full and unbiased.

On a review of the whole case, we see nothing erroneous of which the defendant can justly complain.

Judgment affirmed and the record remitted to the court below to the end that the sentence of the court may be enforced.


author: Rice, P. J.,

text:
    Peoples’ Trust, Savings & Deposit Company v. Ehrhar, Appellant.

      Justice of the peace — Judgment—Transcript—Execution—Proceedings to obtain possession — Sheriff’s sale — Acts of June 16, 1836, P. L. 755, March 20, 1810, 5 Sm. L. 161, June 24, 1885, P. L. 160, and May 9, 1889, P. L. 176.
    '■ A judgment in a proceeding before a justice of the peace or alderman and a sheriff’s-jury under the act of June 16, 1836, to obtain.possession of premises by a purchaser at sheriff’s sale, is not'within the meaning of the statutes authorizing transcripts of judgments of justices of the peace to be filed in the office of the prothonotary, and providing that such judgments shall thereafter have all the force and effect of judgments originally obtained in the court of common pleas.

      Statutes — Construction—Repeal.
    Later statutes which do not abrogate settled practice or repeal former statutes are to be expounded as near to the use and reason of the prior law as can be, without violation of their intent. “ • v
    Argued Nov. 14, 1906.
    Appeal, No. 101, Oct. T., 1906, by defendant, from order of C. P. Lancaster Co., Nov. T., 1905, No. 43, Dec. T., 1905, discharging rule to strike off. judgment in case of The Peoples’ Trust, Savings & Deposit Company of Lancaster v. Hyman Ehrhart.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Rule to strike off judgment and dissolve attachment. Before Hassler, J.
    The petition for the rule was as follows:
    “ The petition of Hyman Ehrhart, defendant above named, respectfully represents:
    “That the said alleged judgment is a transcript of the docket of the late Jacob Halbach, Esq., Alderman of the City of,Lancaster, deceased, filed under the hand of Chas. F. Stauffer, Esq., Alderman, and the same were proceedings instituted before said Jacob Halbach, Esq., Alderman, by the said plaintiff, after notice of three months, on the 17th day of August, 1900, for the purpose or ostensible purpose of obtaining possession of lands sold by Sheriff’s sale, and purchased by the said The Peoples’Trust, Savings and.Deposit Company of Lancaster, Pa., which lands were sold as the lands of your petitioner, as defendant, and are described in said transcript. That according to the said transcript the following was the verdict of the jury and alderman in said case: ' .
    “ ‘ And the said jury do assess the sum of f3.15.00 for the damages of the said Peoples’ Trust, Savings and Deposit Company occasioned by the unjust detention of the premises, from the date of the Sheriff’s Deed April 28th, 1900.
    “ ‘ Therefore it is considered and adjudged by me the said Alderman that the said Peoples’ Trust, Savings and Deposit Company shall recover and have of the said Hyman Ehrhart, as well the sum of $315.00 for their damages aforesaid, as $26.40 for their reasonable costs, by them in and about their suit in this behalf expended.
    May 12, 1907 :
    “‘In Witness whereof, I, the said Alderman, to this my record, have set my hand and official seal this 22d day of August, 1900.
    “ ‘ August 22d, 1900, Warrant of Restitution issued to the Sheriff to forthwith deliver possession of premises The Peoples’ Trust, Savings and Deposit Company.
    “ * August 23d, 1900, Writ returned by Sheriff. Possession given to Plaintiff.’
    “ That the said transcript of said proceedings has been entered as a judgment in the Court of Common Pleas to No. 150, November Term, 1905, and attachment issued thereon to No. 43, December Term, 1905, by the said plaintiff, against your petitioner, the defendant named therein.”
    The court granted a rule to show cause which it subsequently discharged.

      Error assigned was the order of the court.

      B. E. Davis, for appellant.
    The rule should have been made absolute: Amos v. Stiles, 1 W. N. C. 414; Bodkin v. McDonald, 2 W. N. C. 478 ; Kern v. Coyle, 12 Phila. 227 ; Heermans v. Griffin, 3 Luz. L. Reg. 223 ; Moyer v. Kirby, 14 S. & R. 162; Chestnut Hill Turnpike Co. v. Martin, 12 Pa. 361; Beltzhoover Borough v. Gollings, 101 Pa. 293; Bannan v. Rathbone, 3 Grant, 259; Smith v. Wehrly, 157 Pa. 407; Franklin v. Rush, 1 Phila. 571; Carter v. Wallace, 9 Phila. 221; Sheaffer v. Wilson, 1 Chester County Rep. 161; Sweeting v. Wanamaker, 4 Pa. Dist. Rep. 246 ; Kelly v. Creen, 53 Pa. 302.

      William U. Keller, with him John A. Coyle, for appellee.
   Opinion by

Rice, P. J.,

The first question to be considered is, whether a judgment in a proceeding before a justice of the peace or alderman and a sheriff’s jury, under the act of J une 16,1836, P. L. 755, to obtain possession of premises by a purchaser at sheriff’s sale, is within the meaning of the statutes authorizing transcripts of judgments of justices of the peace to be filed in the office of the prothonotary, and providing that such judgments shall thereafter have all the force and effect of'judgments originally obtained in the court of common pleas. We need not take up time in discussing the tenth section of the act of March 20, 1810, 5 Sm. L. 161, because it is conceded, properly we think, by the learned counsel for the appellant that a transcript of the judgment of a justice of the peace in such proceeding could not be filed in the prothonotary’s office under that act. But they contend that the Act of June 24,1885, P. L. 160 has changed the law; that this statute is general in character and applies to all judgments obtained before a justice of the peace, alderman or any lesser magistrate. The act is in these words: “ That in all cases, where a judgment has been obtained before a justice of the peace, city recorder, magistrate or alderman of this commonwealth, and no appeal or certiorari has been taken to said judgment, and a transcript of said judgment has been filed in the office of the prothonotary of the county, where said judgment is obtained, such judgments shall thereafter be and have all the force and effect of a judgment originally obtained in the court of common pleas of said county. Provided, that before any execution shall be issued in the court of common pleas on such transcript, the city recorder, magistrate, justice of the peace or alderman before whom such judgment shall have been obtained, shall first certify that an execution has been issued on said judgment, and the constable, to whom the same was directed, has made return that no goods could be found sufficient to satisfy said demand.”

Prior to this act there was a conflict of opinion in the courts of common pleas, as shown by the cases referred to by Justice Dean in Smith v. Wehrly, 157 Pa. 407, as to the effect of filing a transcript under the act of 1810. Some courts, following what seemed to be indicated by Justice Rodgers in Hitchcock v. Long, 2 W. & S. 169, held that the transcript when filed became, so far as concerned execution, a judgment of the common pleas and the levy was not restricted to real estate, whilst other courts held differently. Justice Dean, speaking of this condition of the law, said: “ Such was the unsettled state’ of the law when the act of 1885 was passed, and it was obviously framed to end all doubt raised by the contradictory decisions under the act of 1810. While a much broader meaning can be given its words, as was done in the court below, we are not bound to give them such meaning, unless that was their obvious intent. We do not think it was. The act of 1810 says, the transcript from the time of filing ‘ shall bind the real estate of defendant; ’ the act of 1885 says, the transcript shall, after filing, ‘ have all the force and effect of a judgment originally obtained in the court of common pleas of said county.’ That is, whereas, by the act of 1810, it was a subject of doubt whether execution could be had on other than real estate, it is now enacted that execution may be levied on both personalty and realty, as if the judgment were a judgment of the common pleas.”»

Having regard to the old law and the mischief to be remedied, it would require no straining of the doctrine of this decision to hold that it was not the intention of the legislature to extend the right to file transcripts in the court of common pleas to cases where it did not exist before; in other words, that the right to file the transcript is given and controlled by the act of 1810 and the effect to be given to the transcript, when legally filed, is enlarged by the act of 1885. The words of the latter act are entirely consistent with that view. But, confining our decision to the precise question before us, there are other reasons besides those suggested in the case last cited for holding that the act does not apply to a judgment in a proceeding under the act of 1836. It would be absurd to speak of a judgment of a justice of the peace entered by transcript in the prothonotary’s office, having “ all the force and effect” of a judgment of the common pleas, if no execution could issue upon it out of the common pleas. Whatever else may have been intended by the legislature in the enactment of 1885, we may safely assume, without argument, that the legislature did not intend that any judgment of a justice of the peace thus entered in the common pleas should be in that anomalous condition. It is important, therefore, to notice the nature of the judgment in a proceeding under the act of 1836 and the statutory remedy for enforcing it. The 111th section provides that in case the jury summoned before the justices (now a single justice) shall find for the petitioner, the jury shall assess such damages as they shall think right against the defendant or person in possession for the unjust detention of the premises, and thereupon the said justices shall enter judgment for the damages assessed and reasonable costs, “ and such judgment shall be final and conclusive to the parties ; ” and by the 112th section it is provided that the said justices shall thereupon issue their warrant directed to the sheriff, commanding him forthwith to deliver to the petitioner, his heirs or assigns, full possession of such lands or tenements and to levy the costs taxed by the said justices, and the damages assessed by the jury as aforesaid. The act does not authorize the issuing of a fi. fa. to a constable as in the ordinary case of a money judgment, but the special remedy provided by the act is to be strictly pursued. See opinion of Judge Thayeb in Bodkin v. McDonald, 11 Phila. 342, and opinion of Judge Shabswood in Gault v. McKinney, 2 Phila. 71. The act of 1885 does not purport to change the law in that particular; that is to say, it does not authorize the issuing of an execution to a constable where it was not authorized before, but leaves the special remedy provided by the act of 1836 undisturbed. It was evidently passed with reference to cases where, by the established mode of procedure, executions were issued to constables and the conditions prescribed by the proviso can be complied with. In such cases the filing of the transcript is to give the judgment all the force and effect of a judgment of the common pleas, including the right to issue execution upon it upon compliance with those conditions. But, as we have seen, those conditions cannot be complied with where the judgment is a proceeding under the act of 1836. It is a maxim that later statutes, which do not abrogate settled practice or repeal former statutes, are to be expounded as near to the use and reason of the prior law as can be without violation of their intent: Smith v. Wehrly, supra. The act of 1885 should be construed, if possible, so as to be in harmony with the act of 1836. Reading it as a whole, having regard to the object which it was evidently intended to attain, and having regard also to the prior statute in pari materia, we are led to the conclusion that it was not intended by the legislature that it should apply to a judgment in a proceeding under the act of 1836.

We come then to the Act of May 9, 1889, P. L. 176, which provides, “ that where a judgment has been obtained before a justice of the peace of this commonwealth, to the amount of $100 and upwards it shall and may be lawful for the plaintiff in such judgment, upon filing a transcript thereof in the court of common pleas of the county in which the judgment was obtained, to have execution thereof in said court, without first having an execution issued by the justice and a return of nulla bona by the constable.” The purpose of this act, as indicated by its title as well as by its words, was to enlarge the right to issue execution out of the common pleas in judgments for $100 and upwards, not to enlarge the right to file transcripts of judgments of justices of the peace. It is not supposable that the legislature intended by this act to abrogate or modify the provision of the act of 1886, where the amount of damages assessed by the sheriff’s jury exceeds $100, and enable the plaintiff, forthwith, without having a warrant issued by the justice of the peace as prescribed by that act, to file a transcript of the judgment in the common pleas and issue thereupon an ordinary fi. fa. or an attachment execution.

Upon deliberate consideration of the question from every standpoint, we are of opinion that the rule to strike off the judgment and dissolve the attachment should have been made absolute. •

The order is reversed and the rule to show cause, referred to in the foregoing opinion, is made absolute, the costs of the appeal to be paid by the appellee.


text:
    Monroe County v. Eilenberger, Appellant
    (No. 1).

      Bonds — County treasurer’s bond — County commissioners — Name of obligee.

    It is not an objection to the validity of a county treasurer’s bond that it was given to the commissioners of the county by their official title, instead of the county by its corporate name, nor that it was given to the county, instead of the commonwealth. Com. v. Schadt, 214 Pa. 592, distinguished.
    An action may be brought in the name of the county to the use of a borough and certain townships of a county against a former county treasurer and his sureties upon his official bond given to the county as obligee and conditioned as prescribed in sec. 33 of the Act of April 15, 1834, P-. L. 537.
    May 13, 1907:
    Submitted Feb. 25, 1907.
    Appeal, No. 7, Jan. T., 1907, by defendant, from judgment of C. P. Monroe Co., Dec. T., 1905, No. 24, for plaintiffs on demurrer in case of Monroe Borough to the use of Stroudsburg Borough, Coolbaugh Township of Chestnut Hill, Smithfield Township and Polk Township v. Fred W. Eilenberger, A. Y. Zimmerman, Jacob E. Michaels, James Armitage, A. W. Knapp and Obadiah Zimmerman, who survive Martin Yetter.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a , county treasurer’s bond. Before Staples, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was in overruling demurrers and in entering judgment for plaintiffs.

      Eilenberger Huffman, and Henry J. Kotz, for appellant.—
    In cases of this kind the right of the legal plaintiff is in issue, and the. equitable plaintiff must recover, if at all, through the legal right: Guaranty Trust, etc., Co. v. Powell, 150 Pa. 16.
    The case is ruled by Com. to use v. Schadt, 214 Pa. 592.

      John B. Williams and Frank B. Holmes, for appellees.
    All official bonds, whoever may be named as obligee, are given for the use of the parties having a legal interest in their enforcement: Lehigh County v. Gossler, 24 Pa. Superior Ct. 406; Com. v. Snyder, 1 Pa. Superior Ct. 286; Com. v. Allen, 2 Pa. Superior Ct. 175 ; Kittanning Boro. v. Mast, 15 Pa. Superior Ct. 51.
   Opinion by

Rice, P. J.,

This action was brought in the name of the county to the use of a borough and certain townships of the county against a former county treasurer and his sureties upon his official bond given to the county as obligee and conditioned as prescribed in sec. S3 of the Act of April 15, 1834, P. L. 537. The use parties filed separate declarations or statements, alleging, in substance, that the county treasurer did not faithfully perform the duties of his office, in that he failed to pay to the use plaintiffs their proportion of the retail liquor license fees received by him for their use. The case comes before us upon appeal of the defendants from the action of the court in overruling their demurrers, and entering judgment in favor of the county for the penal sum named in the bond, and assessing damages in favor of each of the use plaintiffs in the amount of its proportion of the license fees which, admittedly, the county treasurer had received for their use and not paid over.

It is not an objection to the validity of a county treasurer’s bond that it was given to the commissioners of the county by their official title, instead of the county by its corporate name, nor that it was given to the county, instead of the commonwealth : Clarke v. Potter County, 1 Pa. 159. In a case where action to recover the city’s portion of liquor license money which the defendant had received and not paid over, brought by the county to the use of the city against the county treasurer alone upon his official bond given to the county commissioners by their official title, in compliance with the requirements of the 33d section of the act of 1834, Judge Smith, speaking for this court, said: that all official bonds, whoever may be named as obligee, are given for the use of the parties having a legal interest in their enforcement; that though, technically, the bond in that case was not given to the commonwealth, it was given for the performance of a public trust; and that “ to the extent of the money in the treasurer’s hands by law payable to the city of Allentown, the city has a legal interest in the enforcement of the bond: ” Lehigh County v. Gossler, 24 Pa. Superior Ct. 406. We think it needs no further argument to show that the correct decision of the question of the liability of the defendants to action on the bond in suit for the money due the use plaintiffs does not depend upon the fact that no money is due the county, the obligee named in the bond, but is controlled by the proper construction of the condition of the bond, called for convenience the county bond, of the county treasurer. The question was j)ractically decided in the case just cited, and we should not deem it necessary to discuss it further, were it not for the contention that the.later decision of the Supreme Court in Commonwealth v. Schadt, 214 Pa. 592, requires, a different ruling so far as the sureties are concerned. By the act of 1834 a county treasurer is required to give two bonds, one commonly called the county bond, and the other the commonwealth bond. The condition of the former is prescribed by the 33d section, and the condition of the latter by the 34th section. "We cannot better show that the case last cited does not rule the case at bar than by quoting in juxtaposition the material parts of these two sections. The former reads: “ Each county treasurer shall give bond, with sureties, to the satisfaction of the commissioners, conditioned for the faithful performance of the duties of his office, for a just account of all moneys that may come into his hands on behalf of the county, for the delivery to his successor in office of all books, papers, documents and other things, held in right of his office, and for the payment to him of any balance of money belonging to the county remaining in his hands.” The latter reads: “ Each county treasurer shall also, before entering on the duties of his office, give a bond with sufficient security, to be approved, etc., . . . conditioned for the faithful discharge of all duties enjoined upon him by law in behalf of the commonwealth, and for the payment, according to law, of all moneys received by him for the use of the commonwealth,” etc. The case of Commonwealth v. Schadt was an action upon the commonwealth bond to the use of the city of Scranton to recover the citj^’s share of liquor license fees received by the county treasurer, and it was held upon a construction of the condition that there could be no recovery. We quote from the opinion of Justice Eiurasr: “In other words, the plaintiff who declares on such a bond must set out the breach of the condition on which he relies' to recover. This brings us to the inquiry, Was there any breach of the bond to the injury of the equitable plaintiff in the case? The condition of the bond is that the treasurer ‘shall well and truly and faithfully discharge all the duties enjoined upon him by law in behalf of the commonwealth of Pennsylvania, and shall make payment according to law of all moneys received by him for the use of the said commonwealth.’ The bond in express terms is conditioned for the protection of the commonwealth, in so far as the treasurer is enjoined by law to discharge a duty to the state and to make payment of all moneys received by him for its use. There has been no breach of either of these conditions. The duty of paying over liquor license moneys to the city of Scranton is not enjoined in behalf of the commonwealth. It is conceded in the case stated that the defendant Schadt paid over to the commonwealth all moneys collected for its use and for which he was accountable to it. There was, therefore, no breach of the bond, and consequently no injury to the equitable plaintiff about which it can complain.” In short, the commonwealth’s bond, by its express terms, is conditioned solely for the protection of the commonwealth. It is contended that the county bond is required and given solely for the protection of the county and for the performance of certain expressly specified duties. If this construction be correct, then no bond is required by law for the performance of his duties to safely keep and pay over to the proper municipalities the money he receives for their use from these sources. While this is not, in itself, a conclusive reason which would justify the courts in extending the statutory condition by construction so as to embrace a liability not within the meaning of the words, it is a proper matter to be considered when it is sought to relieve from a liability which the words are comprehensive enough to cover. It is to be observed that section 33 does not declare who shall be the obligee. We entertain no doubt that the bond in question— conditioned as it is in strict accordance with the provisions of the section — would be a valid bond though the commonwealth, instead of the county, were named as obligee. In that case the objection to a construction which would practically render nugatory the words “faithfully perform the duties of his office,” or would restrict them to such duties as pertain to the county, would be more apparent but not more substantial than it is in the present case. Unquestionably the neglect or refusal of a county treasurer to pay over such money to the municipal divisions of the county entitled to it is a failure to faithfully perform a duty of his office ; the condition of the bond is broad enough in terms to cover such a breach of official duty, and there is every reason for believing that the legislature intended these words to cover such duties as were then imposed upon the office and similar duties that might thereafter be imposed upon the office by legislation. “ The liability of sureties for the faithful performance of official duties is not generally measured by the law requiring the surety, but by that imposing the duties : ” Dyer v. Covington Twp., 28 Pa. 186 ; Com. to the use, etc., v. Singer et al., 81 Pa. Superior Ct. 597. Upon full reconsideration, we adhere to our former decision of tbe questions distinctly raised by the demurrer of the sureties.

But the demurrer filed by Fred W. Eilenberger, the principal in the bond, raises the question, whether the money for which he is liable to the several use plaintiffs is recoverable in an action brought in the name of the county to their use upon his official bond in which the county is named as obligee. A recovery in this form of action was sustained in Lehigh Co. to the use of Lehigh County v. Gossler, 24 Pa. Superior Ct. 406, where the county treasurer was the sole defendant and there was a single plaintiff. And in Com. to the use, etc., v. Singer et al., 31 Pa. Superior Ct. 597, where a tax collector’s bond was taken in the name of the county commissioners, instead of the commonwealth as reqtdred by statute, and, in an action on the bond, brought in the name of the commonwealth to the use of a school district against the collector and his sureties, judgment was entered upon verdict for the commonwealth for the penal sum, and damages were assessed in favor of the school district in the amount due to it from the collector, it was held on appeal: first, that the sureties were bound notwithstanding the fact that the county and not the commonwealth was the obligee in the bond; second that, the action should have been brought in the name of the obligee instead of the commonwealth as legal plaintiff; third, that this was a purely formal defect which, not having been objected to by demurrer, would be cured by amendment in this court after a trial upon the merits, by substituting the county for the commonwealth as the legal plaintiff. Jt must be conceded that the question raised here by the separate demurrer of Fred W. Eilenberger, the principal in the bond, is not free from technical difficulty ; but we cannot convict the court below of error in overruling his objection without at the same time overruling the two cases last cited, and we are not convinced that this ought to be done.

Judgment affirmed.


text:
    Monroe County v. Eilenberger, Appellant
    (No. 2).
    May 13, 1907 :

      Bond — Official bonds — Judgment—Act of June 14, 1836, P. L. 637, sec. 6, par. 11.
    Under a proper construction of the Act of June 14, 1836, P. L. 637, sec. 6, par. 11, a party for whose protection the bond required by the act was given, whose cause of action accrued before a judgment on the bond, and who did not avail himself of the right given by paragraph 3 of the same section to be made a party to the writ, is not barred by the judgment. The act is not to be construed as affording a remedy only to plaintiff in the original suit, and for breaches to his injury occurring after judgment for the penalty, and to others whose causes of action matured after such judgment.
    A bond given by a county treasurer and conditioned in strict accordance with sec. 33 of the Act of April 15, 1834, P. L. 537, stands for the protection of the several municipal divisions of the county which are entitled to portions of the liquor license fees received by him.
    Submitted Feb. 25, 1907.
    Appeal, No. 32, Jan. T., 1907, by-defendant, from judgment of G. P. Monroe Co., Dec. T., 1905, No. 24, for plaintiff on demurrer in case of Monroe County ex rel. Hamilton Township v. Fred Eilenberger, A. Y. Zimmerman, Jacob E. Michaels, James Armitage, A. W. Knapp and Obadiah Zimmerman, who survive Martin Yetter.
    Before Rice, P. J., Porter, Henderson, 0ready, Head and Beater, JJ.
    Affirmed.
    Assumpsit on a county treasurer’s bond. Before Staples, P. J.
    The opinion of the Superior Court states the case.

      Eilenberger $ Huffman and Henry J. Kotz, for appellants.—
    The relator plaintiff was not entitled to the writ of. scire facias sued out, on all the facts and circumstances of this case: Gross v. Partenheimer, 159 Pa. 556 ; Com. v. Cope, 45 Pa. 161.

      John B. Williams and Frank B. Holmes, for appellees.
   Opinion by

Rice, P. J.,

The principal question argued in this case arises upon the construction of paragraph 11 of see. 6 of the Act of June 14, 1836, P. L. 637, relating to actions upon official bonds, which provides as follows: “In all cases where the condition of any such bond shall be broken, after a judgment for the commonwealth as aforesaid, it shall be lawful for the party aggrieved to proceed by scire facias upon such judgment, suggesting his interest therein, to assess and recover the damages which he shall have sustained,” etc. It is argued that this section must be construed to afford a remedy only to plaintiffs in the original suit and for breaches to their injury occurring after judgment for the penalty, and to others whose causes of action matured after such judgment. According to this construction a party for whose protection the bond was given, whose cause of action accrued before such judgment, and who did not avail himself of the right given by paragraph 3 of • the same section to be made a party to the writ, is barred by the judgment. This is not the unavoidable implication from the words “ after a judgment rendered for the commonwealth” in the section of the statute above quoted. The counsel for the appellees contends that this clause will apply equally to the time when the condition is broken and to the time when the writ of scire facias is to be sued out. Being a remedial statute it is to be construed, if the words permit, so as to advance the remedy and cure the mischiefs had in view by the legislature. The construction of the paragraph which would include one who, perchance through ignorance of the pendency of the original suit, had not availed himself of the right conferred by the third paragraph, does no violence to the language, and is more consistent than that contended for by the appellant’s counsel with the provision of the ninth paragraph,' that “ the judgment of the commonwealth, as aforesaid, shall remain for the satisfaction of all persons entitled to the benefit of the bond or obligation upon which it was rendered, and for all and singular the like uses and purposes.” The mischievous consequences which might ensue from the other construction are well pointed out in the opinion of the learned judge below from which we quote: “ There was a continuing breach of the condition of the 'bond down to the time of suit and, if the contention of the defendants were sustained and held to be the law, it would result in great injury to all classes of persons who might have the right of action upon official bonds. It would put it within the power of evil disposed persons to quietly bring suit upon the official bond of a defaulting officer and obtain judgment and thereby deprive all other persons having claims for breaches previous to the judgment of obtaining what was justly due them. The act did not contemplate any such restriction as this, nor do the cases cited sustain any such contention.”

The question whether a bond given by a county treasurer, and conditioned in strict accordance with sec. 33 of the act of 1834, stands foi; the protection of the several municipal divisions of the county which are entitled to portions of the liquor license fees received by him, has been discussed in the immediately preceding case, and has been determined in the affirmative.

The only other question discussed in the printed briefs of counsel upon which the case was submitted, which requires notice, is as to the right of the plaintiff to proceed by scire facias upon the judgment referred to in the preceding case, suggesting its interest therein, to assess and recover the damages which it has sustained — that judgment, it will be remembered, being in the name of the county, the obligee in the bond, for the penal sum. This question does not go to the merits, and a careful examination of the pleadings shows that the objection that the original action and judgment were in the name of the county, not in the name of the commonwealth, was not specifically assigned as one of the causes of demurrer. On the contrary, it was distinctly assigned as cause for demurrer that the relator’s cause of action on the official bond of Pred W. Eilenberger, if any it had, appears by its declaration to have existed at the time of the original suit and during the pendency thereof, down to the entry of the judgment therein, and that, “ it was its right and duty to join in that suit, if it had a right to use the above recited security given to the county of Monroe under the statute of this commonwealth in such case made and provided, but not to bring a second suit, or even to make use of the judgment already entered, on the state of facts and other circumstances developed by the pleadings in this case.”

Thus the court was distinctly invited to hold, that if the relator had any interest in the bond, it was precluded by the preceding action and judgment from enforcing its right thereunder. This implied a concession, as plainly as if it had been put in so many words, that the relator’s remedy was to be worked out through the original suit and in no other way, and that in the event of a determination that the bond stood for the protection of the different municipal divisions of the county which were entitled to portions of the liquor license fees received by the treasurer, the question for the court to decide was as to the time when the right of the relator to intervene in the original proceeding upon the bond must be exercised. Having taken this position in the court below, we think it is now too late to take the inconsistent position (which the appellants must take in order to prevail in this appeal) that the act of 1886 does not apply at all, because the original proceeding was not in the name of the commonwealth. In view of the pleadings, and of the conclusion we have reached upon the question of the defendants’ liability under the bond for the relator’s share of the license money, we are of the opinion that the court committed no error in overruling the demurrer of which the appellants can justly complain.

Judgment affirmed.


author: Head, J., Morrison, J.:

text:
    Miller v. Jackson, Appellant.

      Assignment for creditors — Reservation in deed — Debtor’s exemption— Appraisement.

    Where a deed of voluntary assignment for the benefit of creditors excepts and reserves personal property to the value of $300 for the use of the grantor, and immediately thereafter $300 worth of personal property is appraised and set apart, the title to such property remains in the grantor, and it is immaterial whether the property set apart was or was not specifically mentioned and described in the deed of assignment.

      Replevin — Practice, C. P. — Affidavit of defense — Act of April 19, 1901, P. L. 88.
    The affidavit of defense required by the replevin Act of April 19,1901, P. L. 88, to be filed by defendant setting up title, must state frankly and fairly facts that support the claim advanced, and not legal conclusions or mere inferences drawn by the affiant. If the claim made be one of absolute ownership while the supporting facts averred show, at most, but a special or qualified ownership, or right of possession- — -such as would arise from a pledge, or for other form of bailment for instance— without disclosing the additional facts necessary to determine the nature, extent and duration of such special right, such an affidavit will be insufficient.
    An affidavit of defense in an action of replevin is insufficient, which avers that the title to the property was in the defendant, and not the plaintiff, but the other averments of the affidavit and -the papers annexed thereto, show that the defendant had merely a chattel mortgage of the property, and that the property had never been delivered to him by the mortgagor.

      Bankruptcy — Federal act — Pennsylvania act — Farmers.
    The Pennsylvania insolvency Act of June 4, 1901, P. L. 404, is not suspended by the federal bankrupt act as to farmers.
    A statement of claim which describes a person as one who “owned and resided on a farm,” contains a sufficient foundation for the assumption that such a person is a “farmer” within the meaning of the federal bankrupt act of July 1,1898, 30 Statutes at Large, 544.
    Argued Nov. 14, 1906.
    Appeal, No. 94, Oct. T., 1906, by defendant, from order of C. P. Lancaster Co., Dec. T., 1905, No. 37, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John B. Miller, Assignee for Benefit of Creditors, v. Joseph Jackson.
    Before Rick, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed in part.
    Replevin for chattels.
    The plaintiff filed the following statement of claim :
    John B. Miller, assignee of William P. Chubbs and wife, of Little Britain township, Lancaster Co., Pa., says that on November 22, 1905, William P. Chubbs, who owned and resided on a farm at Oak Hill, Little Britain township, this county, with his wife executed a deed of assignment of all his property, real and personal, for the benefit of the creditors of said William P. Chubbs, to him, the said John B. Miller.
    That said deed was properly executed and delivered, and was on November 24, 1905, at 11:30 A. M., entered of record in the recorder’s office of Lancaster county in assignor’s book 6, p. 84.
    That among the personal property transferred to him under this deed of assignment was a gasolene engine, belt and tank, one bay horse, a surrey and top buggy, and all of the above-named articles were on the farm of assignors in Little Britain township, and were in the custody and under the control of this affiant.
    That on November 27, 1905, Joseph Jackson, the defendant, without any warrant or authority of law, and with due notice that the above property had been committed into the care, custody and control of this affiant, came upon the premises in Little Britain township, and took and carried away all of above-named articles, and removed them to his farm in Little Britain township, where he still retains them.
    That at the time of the unlawful seizure and removal of the goods as aforesaid, to wit: one gasoline•• engine, belt and.tank, one bay horse, a surrey and top buggy, the defendant had no claim of title or ownership in or to the said goods, and the removal of the same was without warrant or authority of law.
    The defendant filed the following affidavit of defense :
    The articles enumerated and set forth in plaintiff’s statement, to wit: A gasoline engine, belt and tank, one bay horse, a surrey and top buggy, are not the property of the plaintiff, but are owned by and belong to the deponent, and did belong to deponent as owner thereof at and before the time the writ of replevin in this suit was issued. Defendant obtained said goods from William P. Chubbs, the former owner thereof, who delivered said goods and chattels to deponent before said writ of replevin was issued. The plaintiff has no title to said goods as assignee, unless as assignee for benefit of creditors, and deponent under advice of his counsel denies plaintiff’s right to claim them under any of the acts of assembly relating to assignments for benefit of creditors, as said acts are not in force, but are suspended by reason of the national bankrupt act enacted by congress of the United States on July 1, 1898. The bay horse referred to in plaintiff’s writ and statement does not belong to plaintiff, but the same was retained by said William P. Chubbs under his claim of exemption, which was filed by said plaintiff in the prothonotary’s office of said court on December 4, 1905. See trust book 20, page 77. The said William P. Chubbs by agreement in writing, a copy of which is hereto appended and made part hereof, agreed that said goods were the property of defendant upon the payment of a note of $400, which defendant paid. The note referred to, of $400, was dated September 27, 1905, due in sixty days from date. A hay press, included in said agreement, said Chubbs sold for $150, and turned the money or note over to deponent, who credited the said $150 note on said $400 note.
    All of which he expects to be able to prove upon the trial of the said action, and further saith not.
    COPY.
    “ Know all men by these presents, that I, William P. Chubbs, of Little Britain township, Lancaster county, Pa., do by these presents assign, transfer and set over to Joseph Jackson, of Little Britain township, Lancaster count}', Pa., the following property: Ten cows, gasolene engine, hay press, tank, belt, scales, etc., one bay horse, new top buggy, surrey; said cows are on the property now; said party, namely, William P. Chubbs, is not to sell or dispose of said property until the sum of four hundred dollars is paid in full, or without the consent of said Joseph Jackson ; if said sum is not paid in sixty days then in that case said Joseph Jackson shall have the right to take possession of said property to sell or dispose of it, to apply the proceeds from such sale to payment of said sum; said Wm. P. Chubbs further agrees, with consent of said Joseph Jackson, to have a public sale of said property; in that case he is to receive proceeds of said sale, either in cash or bankable notes, to liquidate or pay said sum or four hundred dollars at time of said sale.
    “ Witness my hand and seal, the 26th day of September, A. D. 1905.
    “ Witness: W. P. Chubbs, [Seal.]
    “W. C. Whiteside.”
    The court in an opinion by Landis, P. J., made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      B. F. Davis, for appellant.
    The plaintiff in replevin must recover upon the strength of his own title, and not upon the weakness of the title of his adversary: Reinheimer v. Hemingway, 35 Pa. 432; Swope v. Crawford, 16 Pa. Superior Ct. 474.

      October 7, 1907:
    In the instrument under seal, signed by Chubbs, the title to the articles included in the writ of replevin was transferred by William P. Chubbs, subsequently the assignor, to Joseph Jackson, now the appellant, which instrument is binding on Chubbs and is valid as between the parties: Swope v. Crawford, 16 Pa. Superior Ct. 474; Raymond v. Schoonover, 181 Pa. 352; Kent, Santee & Co.’s App., 87 Pa. 165; Wright v. Wigton, 84 Pa. 163; Crawford County v. Bank, 164 Pa. 109.
    The plaintiff has no standing in this case as voluntary assignee for the benefit of creditors, because the assignment or insolvency acts of Pennsylvania are superseded by reason of the general bankruptcy law of July 1,1898: Nehf & Son’s Est., 14 Pa. Dist. Rep. 343; Dolhenty’s Est., 11 Pa. Dist. Rep. 187; Potts v. Smith Mfg. Co., 25 Pa. Superior Ct. 206; Parmenter Mfg. Co. v. Hamilton, 172 Mass. 178 (51 N. E. Repr. 529) ; Harbaugh v. Costello, 184 Ill. 110 (56 N. E. Repr. 363) ; Rowe v. Page, 54 N. H. 190; Wescott Co. v. Berry, 4 Am. Bank Rep. 264; Bruss-Ritter Co., 1 Am. Bank Rep. 58; In re Etheridge Furniture Co., 1 Am. Bank Rep. 112.

      Edwin M. Gilbert, for appellee.
    The paper in controversy cannot and did not pass title even as between Chubbs and Jackson, and was not intended to. It comes nearer being a bill of sale than anything else, but lacks the elements of that: Hill v. Leibig Mfg. Co., 3 Pa. Superior Ct. 398; Hastings v. Sprouls, 10 Pa. Superior Ct. 82; Lehr v. Brodbeck, 192 Pa. 535; Barlow v. Fox, 203 Pa. 114.
    The national act, July 1, 1898, has clearly, fully and unqualifiedly excluded a farmer from its operation: Potts v. Smith Mfg. Co., 25 Pa. Superior Ct. 206 ; Climax Road Machine Co. v. Shusley, 30 Pa. C. C. Rep. 201; Citizens’ Nat. Bank of Waynesburg v. Gass, 29 Pa. Superior Ct. 125.
   Opinion by

Head, J.,

On November 22, 1905, W. P. Chubbs executed and delivered unto John B. Miller, the plaintiff, in trust for the benefit of the creditors of the former, a deed of voluntary assignment covering all of his property, real and personal, except personal property to the value of $300 which was reserved in the deed for the use of the grantor.

We cannot determine from the record now before us whether or not the prope rt}r, the title to which was thus retained by the assignor, was specially named or designated in the deed itself. Appraisers were promptly appointed, however, and on December 2, 1905, they appraised and set apart unto the grantor the property which was then certainly identified as that which he had reserved in his deed of assignment, although the language of that instrument may have been general. The list contained but two items, viz.: “ One bay horse, $50.00 ; balance due from Ella Chubbs, $250.”

The claim to this property, first made in the deed itself, perfected by the prompt application for appraisers and their official designation of what was covered by the claim, resulted in leaving the title of the assignor to that property undivested, as if the deed had never been made, or as if these particular items had been specially reserved from the operation of the deed. In Peterman’s Appeal, 76 Pa. 116, Mr. Justice Williams thus describes the effect of the appraisement pursuant to a general reservation in a deed of assignment: “ Is the appellant then entitled to the portion of the fund he claims ? It is clear that he is, unless his right to it was divested by the deed of assignment. Whether it was or not, depends upon the construction to be given to the exception in the deed. He had the undoubted right to reserve, for the use of himself and familjq property to the value of $300. His right to except it out of the assignment is founded on the exemption act of April 9, 1849, but his right to it as against the assignee depends upon the exception of the deed. It is true that the deed does not specify or define the property intended to be excepted, but .leaves it to be selected by the assignor1. But his light of selection is not confined to any particular description of property, nor is it subject to any condition whatever ; and his right to the property, when selected, is as perfect as if it had been specially excepted out of the assignment.” The same principle is declared in McFarland’s Estate, 16 Pa. Superior Ct. 152. Whether, therefore, the bay horse was specially reserved in the deed, as the statement — not questioned — in the history of the case declares, or the reservation, general in the deed, was made specific by the subsequent claim and appraisement, in either event the assignee took no title to the horse as against the assignor or the defendant claiming under and through the assignor. As to the horse, the averment of the affidavit of defense was sufficient to prevent a judgment, and, as to it, the learned court below fell into error in making absolute the rule for judgment for want of a sufficient affidavit of defense. The second assignment of error must be sustained.

At the time of the execution of the deed of assignment Chubbs, the assignor, was the owner of a farm and resided on it.- He had thereon a lot of personal property, including not only the horse already referred to but the other articles named in the writ of replevin. After the deed had been delivered and recorded, to wit: on November 27, 1905, Jackson, the defendant, went to the farm, and, without the knowledge or consent of the assignee, removed therefrom the property embraced in the writ.

The Act of April 19,1901, P. L. 88, provides that a defendant who desires to contest, in court, the title to or right of possession of property replevied, must file an affidavit of defense “ setting up the facts denying the plaintiff’s title and showing his own title to said goods and chattels,” and authorizes the court to enter judgment in favor of the plaintiff “ for such goods and chattels as to which the court may adjudge the affidavit insufficient.” The sufficiency of such an affidavit must be determined by the same rules that control in other actions where like affidavits are required. It must state frankly and fairly facts that support the claim advanced; not legal conclusions or mere inferences drawn by affiant. If the claim made be one of absolute ownership whilst the supporting facts averred show, at most, but a special or qualified ownership or right of possession — such as would arise from a pledge or other form of bailment for instance — without disclosing the additional facts necessary to determine the nature, extent and duration of such special right, such an affidavit would be plainly insufficient.

Turning then to the affidavit we find first, a general averment that the chattels replevied “ are not the property of the plaintiff, but are owned by and belong to deponent as owner thereof.” This is but a conclusion, not more specific than the short plea of “property,” and, of course, valueless. Then follows an averment that the goods were delivered to deponent by Chubbs before the writ issued ; but as such, may, if delivered was made after the execution, delivery and recording of the deed of assignment, of all which Jackson had notice, it could in no way divest the title of the assignee. The only other specific averment in the affidavit, relating to the property replevied except the horse, is the following : “ That said William P. Chubbs by agreement in writing, a copy of which is hereto appended and made part hereof, agreed that said goods were the property of defendant upon the payment of a note of $400, which defendant paid. The note referred to of $400 was dated September 27,1905, due in sixty days from date. A hay press, included in said agreement, said Chubbs sold for $150 and turned the money or note over to deponent, who credited the said $150 on said $400 note.”

A careful examination of the written agreement referred to discloses no support for the averment of absolute ownership in defendant. It does not evidence an intention on the part of Chubbs to divest himself of the title to, and ownership of, the personal property therein mentioned. On the contrary, it clearly indicates that the beneficial ownership was to remain in him. No transfer of possession accompanied or followed the agreement or was intended to, but the possession remained as before, with the right of the owner to(fully use and enjoy the property without rent, service or condition except the promise that he would not “ sell or dispose of it until the sum of $400 is paid in full or without the consent of said Joseph Jackson.” We think the plain purpose of the paper was to create a chattel mortgage, a pledge of the property specified as security for the performance of the primary obligation referred to in the paper, viz.: the payment of a sum of money. But as the pledge was not completed by the delivery of the property the contract, as to this, remained executory and conditional, and the defendant could not execute it himself. The affidavit does not aver that Jackson had taken the property mentioned in the writ for the purpose of selling it and applying the proceeds to the payment of the balance of his debt, returning the surplus, if any, to Chubbs or his assignee. Indeed, he does not aver that at the time of the seizure any of the debt of $400 remained unpaid. The agreement covered a considerable amount of property not embraced in the writ of replevin, to wit: “ Ten cows, a hay press, scales, etc.” The affidavit admits that Chubbs, after the agreement, had sold the hay press, and reduced the debt $150. It does not aver this was the only sum paid. It gives no information as to what had become of the “ ten cows, scales,” etc., which were not on the farm when the deed was made, and is silent, as already observed, as to the amount of the debt, if any, still actually existing at the time of the seizure. The averment of the defendant that he was the absolute and unconditional owner of the property replevied was not, therefore, supported by the agreement. No other warrant for sucli a claim is shown. If there were any facts from which a court could determine that some qualified right of possession still existed to secure the payment of a certain sum of money, no such facts are averred. We think the learned court below was right in making absolute the rule for judgment as to all of the property embraced in the writ except the bay horse.

It is‘argued by the learned counsel for the appellant that the deed of assignment under which the plaintiff claims was a nullity, because the operation of our insolvent act of 1901 has been held to be suspended whilst the national bankrupt act of July 1, 1898, remains in force: Potts v. Smith Mfg. Co., 25 Pa. Superior Ct. 206 ; Bank v. Gass, 29 Pa. Superior Ct. 125. But the act of congress excepts from its operations certain classes of persons, viz.: wage earners and farmers, “ and as to such persons the Act of June 4, 1901, P. L. 404, is in force : ” Bank v. Gass, supra. In the present case it is averred in the plaintiff’s statement that “ W. P. Cliubbs owned and resided on a farm.” In the absence of any denial this ought to be a sufficient foundation for the assumption that he was a “ farmer,” and hence our statute would be operative. But it has not been made clear to us, nor was it to the court below, why the deed of assignment depended for its vitality on the act of 1901, or why it is not just as effective now as it would have been before the passage of that act.

As to ail property mentioned in the writ except the bay horse the judgment is affirmed; as to the horse, the judgment is reversed and a procedendo is awarded. The costs of this appeal to be paid by appellee.

Dissenting Opinion by

Morrison, J.:

I agree with the majority opinion reversing the judgment as to the bay horse, but I would go further and reverse the judgment generally.

The plaintiff having declared for the property as assignee of William P. Chubbs and wife, for the benefit of creditors, defendant filed an affidavit of defense setting up ownership and right of possession, and actual possession of the property replevied, before the writ issued. But on motion and argument the court held the affidavit of defense insufficient, and directed judgment against the defendant, and our question is, ought this judgment to be sustained?

The defendant’s claim to the property was under the writing executed and delivered by W. P. Chubbs to him, as follows:

“ Know all men by these presents, that I, William P. Chubbs, of Little Britain township, Lancaster county, Penna., do, by these presents, assign, transfer and set over to Joseph Jackson, of Little Britain township, Lancaster county, Penna., the'following property : Ten cows, gasolene engine, hay press, tank, belt, scales, etc.; one bay horse, new top buggy, surry; said cows are on the property now ; said party, namely, Wm. P. Chubbs, is not to sell or dispose of said property until the sum of $400 is paid in full, or without the consent of said Joseph Jackson ; if said sum is not paid in sixty days, then in that case said Joseph Jackson shall have the right to take possession of said property to sell or dispose of it, to apply the proceeds from such sale to payment of said sum ; said Wm. P. Chubbs further agrees with consent of said Joseph Jackson, to have a public sale of said property; in that case he is to receive proceeds of said sale, either in cash or bankable notes to liquidate or pay said sum of $400 at time of said sale. Witness my hand and seal, the 26th day of Sept., A. d. 1905. W. P. Chubbs, Seal.”

Jackson avers in his affidavit of defense that he paid the $400 referred to in the above writing, and that on November 27, 1905, Chubbs delivered to him the property in question and he took and retained possession thereof. It further appears that on November 22, 1905, Chubbs and wife made a deed of voluntary assignment to John B. Miller, the plaintiff, for the benefit of creditors. This assignment gives rise to the questions in dispute in this case.

The learned court, in the opinion holding that the affidavit of defense was insufficient, said: “ It is not denied that at the date of the assignment the property which is here in dispute was in possession of the assignor. The moment the deed of assignment was executed and delivered, whatever property then stood in his name passed to his assignee for the benefit of creditors. If, at that time, the defendant had no right to the possession of the property, he could not thereafter summarily go upon the lands of the assigned estate and take it away without process of law, nor could the assignee then give him a right so to do. Under the agreement which he has presented, and which is recited above, if the $400 therein mentioned was not paid in sixty days Joseph Jackson had the right to take possession of said property, to sell or dispose of it; but that time did not expire till November 26, 1905, whereas the deed of assignment was executed and delivered on November 24, 1905. I am of the opinion that, from the agreement and giving it its proper construction, Jackson had no authority to take the property from the' Chubbs farm, and it follows, as a consequence, that he had no right to retain it under his counter bond.”

The question then is, can this doctrine of the court be sustained? It is true that Jackson did not have a right to the possession of the property in question till November 26, 1905, and he did not get possession of it until November 27, 1905, and this was several days after the execution and delivery of the assignment of Chubbs and wife to the plaintiff, but, in my opinion, it does not follow that Jackson obtained the property unlawfully, and that he could not hold it as against the plaintiff, the voluntary assignee of Chubbs and wife. Under the facts stated in his affidavit of defense, which must now be assumed to be true, Jackson had a lawful right to go to Chubbs and take possession of the property in question, unless Chubbs would at once repay him the $400 which he had paid for the benefit of Chubbs, as recited in the writing above quoted. It is not pretended that Jackson had been repaid more than $150 of this sum.

The writing of September 26, 1905, from Chubbs to Jackson, as between them, was valid and enforceable, although it was conditional, and might not have been good as against bona fide purchasers without notice or execution creditors of Chubbs. It has been decided many times by our Supreme Court that an assignee for the benefit of creditors stands in the shoes of the assignor. He is not a purchaser for value, and it seems he is in no better position to avoid the contract in question than Chubbs was if he had not made the assignment. Suppose Chubbs had not assigned to Miller, and Jackson had gone to Chubbs and obtained possession of the property described in the writing and the writ, and retained possession of it, can it be possible that Chubbs could, without paying to Jackson the $400, lawfully recover the property? Certainly not. If we are correct in this position, how can Chubbs’s assignee, standing in his shoes, maintain this replevin? Under all of the decisions it seems that the assignee stands in place of the assignor.

A plaintiff in replevin must recover, if at all, on the strength of his own title, not on the weakness of his adversaries : Reinheimer v. Hemingway, 35 Pa. 432 ; Swope v. Crawford, 16 Pa. Superior Ct. 474.

Under all of the authorities Miller, assignee, is a mere volunteer. It was not in the power of Chubbs to divest Jackson’s rights in the property replevied by assigning to Miller. “ An assignee for creditors is not a purchaser. He is a mere volunteer. The assignee claims through the assignor. His rights rise no higher. The creditors claim through the assignee. They have his title, nothing more : ” Paxson, J., in Kent, Santee & Co.’s App., 87 Pa. 165. See also Wright & Slingluff v. Wigton et al., 84 Pa. 163, and cases therein cited: Crawford County et al. v. Bank, Haskins’s App., 164 Pa. 109, and Smith v. Equitable Trust Co., Appellant, 215 Pa. 418. The latter case seems to me to put this question beyond controversy.

Clearly, under the facts conceded and those averred in* the affidavit of defense, Jackson had the right on November 27, 1905, under the executory contract between him and Chubbs, to the possession of the property in dispute. If no assignment had been made, and Chubbs had refused to deliver the property to Jackson, he could have maintained replevin for it, and if the assignment only placed Miller in the shoes of Chubbs, I cannot see why Jackson was not lawfully entitled to take possession of the property when he did. I am, therefore, of the opinion that the affidavit of defense was sufficient, and that the court erred in directing judgment for the plaintiff. The writing of September 26, 1905, was a pledge of the property from Chubbs to Jackson, and it induced the latter to pay the f400 debt owned by Chubbs, and, in my opinion, this pledge was not weakened or revoked by the voluntary assignment made to Miller.

.1 would reverse the judgment with a procedendo.