author: Gordon, Jr., J.,

text:
    Arch Street Building and Loan Association v. Sook.

      Gerald F. Flood and Charles L. Taylor, for plaintiff.

      Peck & White, for defendant.
    Feb. 5, 1931.
   Gordon, Jr., J.,

This is a bill in equity to remove a cloud upon title. The facts are undisputed, and the case turns upon a question of law. On Feb. 5,1926, William B. Edmondson, being then the owner of a piece of real estate on the west side of Marston Street, in the City of Philadelphia, 320 feet 6 inches south of Allegheny Avenue, and known as No. 3122 North Marston Street, mortgaged the same in the sum of $2500 to Anna B. Sook, the defendant, and, on the same day, placed a second mortgage upon said property in the sum of $1400 in favor of the plaintiff. On July 10, 1928, the plaintiff instituted foreclosure proceedings on its second mortgage, and in July, 1929, bought in the property for $50 at the sheriff’s sale under those proceedings. The sheriff’s advertisement gave notice that the property was being sold under and subject to the first mortgage held by the defendant, and the deed by which the sheriff conveyed the property to the plaintiff recited that it was so conveyed. Thereafter the plaintiff made three payments to the defendant in the aggregate sum of $500 on account of principal of the first mortgage and one on account of interest due on Aug. 5, 1930. It was then discovered that Edmondson, who had originally placed the mortgages on the property, had acquired title to it from Charles W. Geick and Bertha L. Geick, his wife, who had held it as tenants by entireties, and that, on Sept. 5, 1925, while title to the property was in the Geicks, judgments had been entered against them upon a judgment note, which they had signed as Charles W. Geick and Bertha Geick, respectively, and which the prothonotary had indexed against Charles W. Geick and Bertha Geick separately and not jointly, omitting the middle initial of the latter’s name. From these facts the question arises whether the judgment so entered against the Geicks was a lien upon the property. If it was not, the sale by the sheriff under the second mortgage did not discharge the first mortgage held by the defendants. If it was, the sale discharged the lien of the first mortgage, as it was preceded by the judgment.

The authorities which hold that the omission of a middle initial in the recording of a mortgage will not operate to discharge it have no application to the case before us. A sharp distinction is drawn between recorded mortgages and indexed judgments. In the former, the omission of the middle initial of a name does not avoid the lien of the mortgage, for a mere inspection of the recorded instrument itself would disclose whether it was upon the land whose title is being searched. In the latter, however, such an omission is fatal to the lien of the judgment, for an inspection of the files of the case in which the judgment was entered would, in most if not in all instances, fail to disclose the identity of the judgment debtor with the ownership of the land under search. The record of a case in which a judgment is secured against John Smith in an action of trespass or contract would be of no aid in determining whether that John Smith is the John L. Smith who is the registered owner of a particular piece of property. So in Crouse v. Murphy, 140 Pa. 335, the Supreme Court held that, even though an examination of the files might establish the identity of the two, subsequent purchasers are not required to go beyond the lien docket, and may buy unaffected by anything that a further search would disclose. This seems to be the reason for requiring exact correspondence between the names in which the land under search is held and the judgment recorded in order to make the lien of a judgment effective. Indeed, so inflexible is the rule which requires such correspondence between the name of the owner and that of the judgment creditor that the Supreme Court held, in Pennsylvania Co. for Ins. on Lives and Granting Annuities v. Halpern, 273 Pa. 451, that an indexed judgment which omitted the middle initial is not a lien as against a purchaser at a sheriff’s sale, even though the purchaser had actual notice, at the time he bought, of the true identity of the judgment creditor. This rule, which relieves a purchaser at a sheriff’s sale from the consequences of actual knowledge of facts, is rendered necessary because “at the sheriff’s sale the same rule must apply equally to all bidders, the mortgagee as well as others, without regard to what their private information may be of facts dehors the record. This puts them all upon an equal footing, as the bidder is not.bound to look beyond the record, nor has he any right to affect his relation to others by any such evidence:” Reading v. Hopson, 90 Pa. 494; Coyne v. Souther, 61 Pa. 455; Reisinger v. Smokeless Coal Co., 262 Pa. 530.

These principles lead inevitably to the conclusion that, as to all except the judgment debtor and creditor, the omission of a middle initial in the indexing of a judgment is fatal to its lien upon land owned by the judgment debtor if title to the land stands in his name with the middle name or initial included, which was definitely held in Wood v. Reynolds, 7 W. & S. 406, and Hutchinson’s Appeal, 92 Pa. 186.

This being the state of the law upon this question, we see no distinction to be drawn, in its application to the case before us, from the facts that the judgment here was against a husband and wife who held title as tenants by the entirety and that the judgment against the husband was indexed in his correct name, although that against the wife omitted her middle initial. The searcher of the index, not being required to turn from the index itself to the files of the ease, would have been no less misled by the discovery of this situation than if the title had been held by a single individual and the judgment entered with his middle initial omitted. Notwithstanding the searcher’s suspicions might be aroused by the discovery of the husband’s name on the index, the failure to find the wife’s name indexed would lull him into security. If he was justified in assuming, because of the absence of the middle initial, that Bertha Geick was not identical with Bertha L. Geick, as the authorities hold, then he was also justified in assuming that Charles W. and Bertha Geick of the indexed judgments could not be the Charles W. and Bertha L. Geick who held title to the property in question as husband and wife. And even had he special knowledge to the contrary, or been able to discover it from an inspection of the record in the suit which resulted in the judgment, the authorities all agree that, in order to maintain equality between bidders, the law forbids such knowledge to be charged to him. The facts, therefore, that the Geieks were tenants by the entirety and that the husband’s name was correctly indexed does not take the case out of the principles already indicated; and it follows that the defendant’s mortgage was not discharged by the sheriff’s sale and that the plaintiff bought the property at that sale subject to the lien of the mortgage. This being so, we make the following findings of fact in the case:

Findings of fact.

1. The plaintiff is owner of certain premises situated on the west side of Marston Street, 320 feet 6 inches south of Allegheny Avenue, being No. 3122 North Marston Street, in the 38th ward of the City of Philadelphia, State of Pennsylvania.

2. The plaintiff acquired title by deed from Thomas W. Cunningham, High Sheriff of the County of Philadelphia, by deed dated July 8, 1929, recorded at Philadelphia in Deed Book J. M. H., No. 3042, page 276, etc.

3. Charles W. Geick and Bertha L., his wife, were plaintiff’s predecessors in title to the said property and acquired title by entireties from Clara R. Buck, executrix under will of Harvey E. Buck, by deed dated May 3, 1920, and recorded at Philadelphia in Deed Book J. M. H., No. 871, page 28, etc.

4. Charles W. Geick and Bertha L., his wife, by deed bearing date Feb. 5, 1926, and recorded at Philadelphia, granted and conveyed the said premises to William B. Edmondson.

5. William B. Edmondson, on Feb. 5, 1926, while he was the owner of said premises, mortgaged said premises in the sum of $2500 to defendant in return for a loan of said amount, and said mortgage was recorded at Philadelphia on or about Feb. 20, 1926, in Mortgage Book J. M. H., No. 5052, page 439, etc.

6. William B. Edmondson, on Feb. 5, 1926, while he was the owner of said premises, mortgaged the same in the sum of $1400 to the plaintiff, Arch Street Building and Loan Association, now merged into Reserve Fund Building and Loan Association, in return for a loan of said amount, and said mortgage was recorded at Philadelphia on or about Feb. 21, 1926, in Mortgage Book J. M. H., No. 5014, page 463, etc.

7. On Sept. 5, 1925, while title to said premises was held by Charles W. Geick and Bertha L., his wife, as tenants by entireties, the Penn Loan Company entered judgment against Charles W. Geick and Bertha Geick in the sum of $125 in Court of Common Pleas No. 3 of Philadelphia County, as of June Term, 1925, No. 17829. Said judgment is still unsatisfied of record and no part thereof has been paid.

8. On July 10, 1928, the plaintiff entered foreclosure proceedings on its mortgage, and the premises No. 3122 North Marston Street, bound by the lien of its mortgage, were sold by the Sheriff of Philadelphia County on the first Monday of July, 1929, to plaintiff for $50.

9. The sheriff’s deed to the plaintiff was acknowledged on July 9, 1929, and is recorded at Philadelphia in Deed Book J. M. H., No. 3042, page 276, etc.

10. Charles W. Geick and Bertha L., his wife, who acquired title to said premises from Clara R. Buck, executrix, are the same persons against whom Penn Loan Company entered judgment Sept. 5, 1925, and said judgment was unpaid and unsatisfied of record at the time of the sheriff’s sale of said premises on the first Monday of July, 1929, and is still unpaid and unsatisfied of record.

11. After the acquisition of title to said premises at the sheriff’s sale, the plaintiff paid to the defendant various sums, amounting to $721.87, on account of principal and interest on said mortgage, held as aforesaid by the defendant, the last of said payments being made on Aug. 5, 1930.

12. When the aforesaid payments by the plaintiff on account of principal and interest on defendant’s mortgage were made, the plaintiff had no actual knowledge of the existence of the aforesaid judgment against Charles W. Geick and Bertha Geick.

Prom the foregoing facts, we reach the following

Conclusions of law.

1. The judgments entered against Charles W. Geick and Bertha Geick are not liens against real estate, the title of which is held in the name of Charles W. Geick and Bertha L. Geick, his wife, as tenants by entireties.

2. Arch Street Building and Loan Association, a corporation, now merged into Reserve Fund Building and Loan Association, the plaintiff, holds title to premises No. 3122 North Marston Street, in the City of Philadelphia, herein-above referred to, under and subject to a certain mortgage in the sum of $2500 executed and delivered on Feb. 5,1926, to, and now owned by, Anna B. Sook, the defendant. Said mortgage is recorded in Mortgage Book J. M. H., No. 5052, page 439, etc.

3. The bill should be dismissed.

4. The plaintiff should pay the costs of this proceeding.

Accordingly, we enter the following

Decree.

And now, to wit, Feb. 5, 1931, this cause having come on to be heard upon bill, answer and proofs, upon consideration thereof it is ordered, adjudged and decreed:

1. That Arch Street Building and Loan Association, a corporation, now merged into Reserve Fund Building and Loan Association, the plaintiff, holds title to premises No. 3122 North Marston Street, in the City of Philadelphia, under and subject to a certain mortgage in the sum of $2500 executed and delivered on Feb. 5,1926, to, and now owned by, Anna B. Sook, the defendant, which said mortgage is recorded in Mortgage Book J. M. H., No. 5052, page 439, etc.

2. That the bill be dismissed.

3. That the plaintiff pay the costs of this proceeding.

The prothonotary will enter this decree nisi and give notice thereof to the parties or to their counsel, and, unless exceptions are filed thereto within ten days, either party may present to the court a form of final decree to be entered in the case.


source: Caselaw Access Project

author: Lewis, J.,

license: Public Domain

text:
    Dintenfass, to use, v. Wirkman.

      J. A. Keough, for plaintiff; Peter P. Zion, for'defendant.
    Dec. 24, 1930.
   Lewis, J.,

This is a rule for judgment for want of a sufficient affidavit of defense. The statement of claim avers that on Aug. 24, 1928, Benjamin Dintenfass, agent, entered into a written lease with Emanuel W. Wirkman, the defendant, providing for a demise of the second floor of premises No. 350 South 15th Street, Philadelphia, to the defendant, for the term of three years from Sept. 15, 1928, for the total amount of $2700, payable monthly, in advance, in the sum of $75 per month. The lease provided, inter alia:

“Lessee further agrees that the lessee will not assign this lease nor under-let the said premises or any part thereof, or use and occupy the same other than as insurance offices, without the written consent of the lessor first had and obtained,” and further provided:

“Lessor does hereby give to lessee the right and privilege to sublet a portion of the within premises during the term of this lease or any renewal thereof, provided, however, lessee shall have first obtained the written consent of lessor, in writing, to do so.”

The use-plaintiff, being the assignee of the lease and owner of the demised premises, brought this action to recover the accelerated rental payable by reason of the alleged removal, on Feb. 13, 1930, of all of the goods and effects of the lessee from the rented premises. The affidavit of defense relies upon the following allegations as a defense to plaintiff’s claim:

“At the time the lease agreement was entered into and signed, the Insurance Company of Philadelphia, a corporation created and existing under the laws of the State of Pennsylvania, was being formed and was not yet licensed to do business as an insurance company. The legal plaintiff was informed of this by the defendant, and it was agreed between the legal plaintiff and defendant that an agreement be drawn up in the form in which it was finally drawn and signed, but that the defendant was acting as agent for the Insurance Company of Philadelphia, who were to occupy the premises and who were to pay the rent to the plaintiff and the plaintiff was to look for the payment of the rentals from the Insurance Company of Philadelphia. This was agreed upon prior to and on this condition only did the defendant sign the agreement of lease with the legal plaintiff.”

It is further averred in the affidavit of defense that the premises were occupied solely “by and for the benefit of the Insurance Company of Philadelphia;” that all payments of rent were made by the Insurance Company of Philadelphia; “that the said premises were so occupied by the Insurance Company of Philadelphia, with the knowledge and consent of the legal plaintiff;” and that defendant had assigned all his right in the lease to the alleged principal and “had, with the knowledge and consent of the legal plaintiff, entered into this agreement solely for the benefit of the Insurance Company of Philadelphia at the time the corporation was not yet formed or ready to do business.”

Has the defendant set forth a sufficient defense to plaintiff’s claim?

It is to be noted that no proper averment of a complete novation, under which an alleged assignee bound itself for the performance of the covenants of a written lease, is set forth. Is an allegation of a parol agreement which authorizes the defendant to substitute a third party for himself as the responsible party sufficient upon the record as disclosed in this case?

The general rule is that if an agent contracts in his own name he cannot escape liability on the plea that he acted only as agent for another, nor can parol evidence be introduced to show that he disclosed his agency and mentioned the name of his principal at the time the contract was executed: 21 Ruling Case Law, 896, § 70. The legal relationship of the defendant to the Insurance Company of Philadelphia, in the process of organization and yet unincorporated at the date of the execution of the lease, was that of promoter.

“The most common case of one assuming to act in behalf of a principal not yet in existence is that of a person often called a ‘promoter,’ who undertakes to act on behalf of a corporation not yet formed, and such a person obviously cannot be the agent of a coloration hereafter to be created, and, as has often been pointed out, his acts and contracts, without something more, cannot impose any liability on the corporation when created. If the person who deals with him knows that the corporation is not yet organized, as is the fact in the majority of cases, there is no room for the doctrine of the warranty of authority. The question in such a case becomes simply, to whom was credit extended? It is, of course, true that the other party dealing in anticipation of the creation of the corporation may be willing to take his chances that the corporation when created will adopt the act, or he may be willing to rely upon funds raised or to be raised. But if, on the other hand, he relies upon any present personal responsibility, it must usually be the responsibility of the person who so assumes to act:” 1 Mechem on Agency, 1014, § 1383.

The fact that the corporation was subsequently formed and accepted the benefits of the lease does not of itself effect a release of the lessee named in the lease, unless there is a novation or an assumption by the corporation, with the consent of the landlord, of the promoter’s liability under the lease. This rule is well stated in 14 Corpus Juris, 269, § 312:

“Of course, promoters of a corporation are personally liable on contracts which they have entered into personally, even though they have contracted for the benefit of the projected corporation and although the corporation has been formed and has received the benefit of the contract; and they are not •discharged from liability from the subsequent adoption of the contract when formed, unless there is a novation or other agreement to such effect.”

The principal question in this case is not the possible liability of the alleged transferee of the lease by virtue of its actual occupancy of the demised premises, but whether an alleged parol agreement that the defendant was acting for and on behalf of the corporation in the process of formation is available as a defense in this action.

In the absence of any allegation of fraud, accident or mistake in the execution of the lease, which provides that the covenants of the lessee are to be performed by the defendant individually, can the terms and effect of the written lease be added to, contradicted or varied by parol or extrinsic evidence of the alleged preliminary disclosed intentions of the parties? We think not.

In Hamilton v. Fleck, 249 Pa. 607, the defendants claimed that the written lease between the plaintiffs and Edward T. Comfort, although signed by the latter, was really made for the Paxson & Comfort Company, which, they alleged, was the real tenant of the premises. Parol testimony was admitted by the court below. It sustained the defendant’s contention and found that the tenant named in the lease was acting for and on behalf of the Paxson & Comfort Company; that the fact was known to the lessors at the time the lease was executed, and that Comfort’s name as lessee was used as the means by which the lease was made to the Paxson & Comfort Company, the real tenant of the property. This ruling was, on appeal, reversed by the Supreme Court, which held the court below in error in refusing to strike out the parol testimony offered. Mr. Justice Mestrezat, speaking for the court, said:

“The covenants of the lessee are to be performed by Comfort individually and not by the Paxson & Comfort Company. So far as the lease discloses, the company is not a party to it, has no rights under it, and is not obligated to perform any covenants contained in it. No reference is made to the lease of 1902 nor to any of its terms or provisions. In other words, the lease of 1913, executed by Comfort as lessee, so far as its written terms disclose, was not intended to be and is not a renewal of the lease of 1902 or any renewals of that lease. It is clear, therefore, that the parol evidence admitted by the learned court and on which it based its findings of fact and conclusions of law was incompetent and the motion to strike it out should have prevailed. It established a parol agreement in direct conflict with the terms of the written contract, without any evidence or even any allegation of fraud, accident or mistake. The well recognized rule in such cases is stated with the authorities, including our own decisions, sustaining it in 17 Cye. of L. & P. 622, as follows: ‘The terms and effect of a written lease cannot be added to, contradicted or varied by parol or extrinsic evidence of the intentions of the parties, their negotiations leading up to the lease, or what was said and done prior to and at the time of executing the instrument.’ ”

See, also, Hall v. Phillips, 164 Pa. 494; Becker v. Second Active Building Ass’n, 239 Pa. 580, and Crelier v. Mackey, 243 Pa. 363.

The written terms of the lease we are construing negative the existence of any agreement to relieve the lessee of liability upon a transfer or assignment, for the lease expressly provides that the lessee shall not assign the same without the written consent of the owner first had and obtained, and emphasizes the proviso that he may sublet a portion of the demised premises provided he obtains the written consent of the lessor. Neither fraud, accident nor mistake are averred, and no reason is given why the verbal understanding alleged in the affidavit of defense was not incorporated in the writing.

In Crelier v. Mackey, supra, there was an action brought on an agreement signed by the defendant. He offered to prove at the trial, as a defense to the action, that he sighed the contract merely as the representative of the Thomas R. Mackey Baking Company, of which he was the president, and that this fact was known to the other party to the agreement at the time that it was executed. Mr. Justice Brown, in affirming the action of the trial court which refused the offer, said:

“If the offer had been allowed, permission would have been given the defendant to vary and contradict the terms of a plain contract and to substitute for it another, upon which the appellee would have no cause of action against the appellant. With no averment in the affidavit of defense and with no offer on the trial to prove that there had been any fraud, accident or mistake in the execution of the agreement, its plain terms were not to be radically •changed by parol: Hunter v. McHose, 100 Pa. 38; Wodock v. Robinson, 148 Pa. 503; Krueger v. Nicola, 205 Pa. 38; Lowry v. Roy, 238 Pa. 9. The meaning of the parties to the agreement is conclusively presumed to have been set forth in its written words, and, as they speak for themselves, their meaning was for the trial judge.”

In Sanders v. Sharp, 153 Pa. 555, it was held, upon a rule for judgment for want of a sufficient affidavit of defense, that a lessee, in the face of the terms of a written lease, cannot relieve himself of personal liability by showing by parol evidence that he was acting as the agent of a proposed corporation or the persons who were about to organize such company, at least without showing that the execution of the lease was induced by fraud or misrepresentation.

The affidavit of defense does not plead an acceptance by the Insurance Company of Philadelphia of the provisions of the lease or an assumption by the corporation of the defendant’s liability thereunder. This is one of the valid essentials of a legal novation. If the defendant were not the lessee and the proposed company only held as assignee or transferee of the lease, then no one sustained a contractual relationship to the plaintiff which could be made the basis of a suit to enforce the performance of the covenants of the lease; only through the privity of estate could he call any one to account in an action at law. It is hardly to be presumed that, in the face of the provisions of the written lease, the plaintiff would so contract for the demise of his property as to leave no one responsible to him as a lessee. Having taken the lease in his own name, the defendant cannot rid himself of liability by showing the agency alleged.

“Where parties contracted as the agents and for the benefit of a company, but the contract was under their own hands and seals, they were individually liable, and an action of covenant was properly brought against them as individuals:” Quigley v. De Haas, 82 Pa. 267.

Heckman’s Estate, 172 Pa. 185, cited by counsel for the defendant, is not controlling. In that case, the agent for the lessor himself was a member of the company for whose use and benefit the lessee became obligated on the lease, and the court properly held that it would have been a fraud on the lessee for the lessor to attempt to hold him personally responsible.

The facts there disclosed a recognition by the lessor of the liability of the company plus an assumption by the company of the tenant’s liability under the lease. When the corporation was organized, the lessee assigned the lease to the corporation, which took possession and paid the rent, the bills being made out in the name of and being presented to the corporation.

It is apparent that this case is distinguishable on its facts, and although Mr. Machen, in his treatise on Corporations, section 336, believes that the case is against the current of authority, it is evident that the decision there was based on its own peculiar facts.

Part of plaintiff’s claim is grounded upon the removal “from said demised premises of all of his goods and effects” and by virtue of one of the provisions of the lease the entire rental for the remainder of the term became accelerated and immediately “due and payable.” What goods and effects belonging to the defendant were on the demised premises is not stated. The defendant asserts that “he at no time occupied the premises,” and he denies that “he removed from said premises his goods on Feb. 13, 1930.” Neither the use-plaintiff’s pleading with reference to a removal of goods (which would bring about an acceleration of rent) nor the defendant’s answer thereto measures up to the legal requisites of orderly pleading.

The language of the lease plainly means the tenant’s removal. It would require a straining of that language beyond its plain meaning to make the mere attempt of a third person to remove his own goods, happening to be on ’ the premises, “as effectual to advance the time of payment of rent, as would be a similar attempt as to goods he owned or controlled:” Shoop v. Fee, 57 Pa. Superior Ct. 585. See note in 58 Am. Law Reps. 300.

To entitle a plaintiff to judgment for want of an affidavit or a sufficient affidavit of defense, all the essential ingredients of a complete cause of action must affirmatively appear in the statement and the exhibits which are made part thereof; the statement of the demand must be self-sustaining; that is to say, it must set forth in clear and concise terms a good cause of action, by which is meant such averments of fact as, if not controverted, would entitle him to a verdict for the amount of his claim. See Parry v. Bank, 270 Pa. 557; Lederle v. Kaplan, 93 Pa. Superior Ct. 147.

This action was instituted June 9, 1930. The use-plaintiff would, under the pleadings filed, be entitled, as the record stands at the present time, to judgment for the rental which became due Feb. 15, March 15, April 15 and May 15, 1930; in other words, to a judgment in the sum of $300.

The fact that a larger sum may have become due when the use-plaintiff took the rule for judgment is no reason for awarding it to the use-plaintiff, if, in the first instance, it had no right to sue for it: Columbia National Bank v. Dunn, 207 Pa. 548.

Under the Practice Act of May 14, 1915, P. L. 483, upon a rule for judgment for want of a sufficient affidavit of defense, judgment may be entered for part of a claim, with leave to proceed for the balance. See Fulton Farmers’ Ass’n v. Bomberger, 262 Pa. 43.

And now, Dec. 24, 1930, the rule for judgment for want of a sufficient affidavit of defense is made absolute in the sum of $300, without prejudice to the right of the use-plaintiff to proceed for the balance of the claim.


author: Ferguson, P. J.,

text:
    Commonwealth v. Zussman et al.

      John H. Maurer and Clare G. Fenerty, Assistant District Attorneys, for Commonwealth.

      Abraham Wernick, for defendants.
    March 27, 1931.
   Ferguson, P. J.,

Herman and Alexander Zussman, the defendants, were indicted for the murder of Anna Thunn. To this bill they entered a plea of not guilty. On the same day this plea was entered defendants were also arraigned on another bill, charging them with a felonious assault upon the said Anna Thunn and with robbery. To this bill defendants pleaded guilty and they were thereupon sentenced. Subsequently defendants were called for trial on the murder bill, when they interposed a plea of autrefois convict. This plea recited the proceedings above narrated, and also that, in response to a rule for a bill of particulars, the district attorney replied that the Commonwealth would show that the murder of Anna Thunn was committed in and about the perpetration of a robbery. To this plea of autrefois convict the Commonwealth demurred.

A plea of guilty is a confession of guilt and is equivalent to conviction, and the court must pronounce judgment and sentence as upon a verdict of guilty. The demurrer in this case admits the conviction upon the robbery bill.

It is contended that a man may not be tried upon a bill charging murder in connection with a robbery, who has entered a plea of guilty upon a bill charging felonious assault upon and robbery from the same person. We cannot concur in this view.

In the case at bar there is no suggestion of a killing in the bill charging robbery, and it is obvious defendants on that bill could not have been convicted of murder. By our statutes, the concurrence of the crimes may fix the degree of murder, but they do not make robbery the crime of murder. It is certain there may be robbery without murder and murder without robbery. Both crimes cannot be based on the same act.

There have been authorities cited to us from many jurisdictions, and they are not in harmony, and while a number of cases appear in Pennsylvania decisions, in which pleas of autrefois acquit or convict are dealt with, there is none that deals with the precise one here presented. We have many sex cases in which more than one offense has been found to grow out of one illegal sexual act. A conviction or acquittal of one offense has been held a bar to a trial on another, but one act was the basis for both charges, and the evidence to convict on one would support a conviction on the other. An acquittal on one charge would show that the* defendant could not have been guilty of the other. Such a conclusion could not be made with respect to the felonies of robbery and murder. An acquittal of murder would not show that no robbery had been committed, and the converse is as true. In dealing with a plea of autrefois convict, the test is whether or not the two felonies grow out of the same identical act: Com. v. Ramunno, 219 Pa. 204.

“It is not in all cases necessary that the two charges should be precisely the same in point of degree, for it is sufficient, if an acquittal of the one would show that the defendant could not have been guilty of the other. Thus a general acquittal of murder is a discharge upon an indictment for manslaughter upon the same person, because the latter charge was included in the former, and if it had so appeared on the trial the defendant might have been convicted of the inferior offense, and, on the other hand, an acquittal of manslaughter will preclude a future prosecution for murder, for if he were innocent of the modified crime, he could not be guilty of the same fact, with the addition of malice and design:” Chitty on Criminal Law, 455.

Counsel for defendants leans heavily upon two decisions in New Jersey: State v. Cooper, 13 N. J. L. 361, and State v. Mowser, 92 N. J. L. 474. In State v. Cooper, defendant was indicted and convicted of arson. He was subsequently indicted for murder, because in the building burned a human being lost his life. It was held that the conviction on the arson bill was a bar to a trial on the murder bill. A careful reading indicates clearly that the court held as it did because two felonies were founded upon one act — the setting fire to the building. This case was followed by State v. Rosa, 72 N. J. L. 462. In State v. Mowser, supra, there was a killing in connection with a robbery. The lower court held that such conviction was no bar to a trial on the murder charge. This was reversed, with a dissenting opinion, it being held that the former conviction was a bar. We have great respect for the decisions of the New Jersey courts, but we cannot follow the reasoning in the Mowser case. On page 479 it is said: “To be consistent with the legal rule enunciated by this court in State v. Rosa, and in the Supreme Court in State v. Cooper, the prime inquiry in the present case must be whether or not the murder was the result of the criminal act of the accused done in the perpetration of the robbery, to which he had pleaded guilty. If it was, then upon principle and authority of the cases just cited, the prosecution for murder is barred.” The court, in State v. Cooper and State v. Rosa, had declared that the pleas must be upon a prosecution for the same act, and this doctrine is affirmed in State v. Mowser, and yet, as appears by the above quotation, the court holds that the matter to be determined is not whether the two felonies grew out of the same act, but whether or not one was the result of the criminal act. What act is referred to? The murder was one act; the robbery was another. We fail to see how either murder or robbery could be said to be the result one of the other. Notwithstanding this doctrine, the opinion cites, with approval, the declaration in State v. Rosa, to the effect that where crimes arise out of the same transaction it is the character of the act, not the results which grow from it, which determines the question of guilt. We cannot regard State v. Mowser as a precedent. In that case, as in our case, the two crimes of robbery and murder did not grow out of the same act. The act that caused the death of the deceased was a blow given by the defendant, as the act causing the death of deceased in State v. Cooper was the applying of the torch, but the blow given in State v. Mowser and in our case (which we are informed was a bullet from a pistol) did not constitute the robbery as the setting fire constituted arson in State v. Cooper. Another and quite distinct act was necessary besides the blow; that is to say, the taking of property from the victim, either before or after the blow, which resulted in death, had been given. In our opinion, the crime of murder cannot grow out of that of robbery, nor is it the result of robbery.

In Wharton’s Criminal Law, the correctness of the decision in State v. Cooper, supra, is questioned. The author says [§ 563]: “The true test is, could there have been a conviction of the major offense at the time of the conviction or acquittal of the minor? If so, then such conviction or acquittal of the minor is a bar. The reason is, that by convicting or acquitting of the minor, on a count in which the major is contained, the defendant is virtually acquitted of the major. Thus, on a count for murder, when the defendant is either convicted or acquitted of manslaughter, he is acquitted of murder. The verdict is, as given in full, ‘We find the defendant guilty (or not guilty) of manslaughter; and, hence, not guilty of murder.’ On the same reasoning may we justify a much contested case in Connecticut, where, after a conviction of assault with intent to ravish, under a count of rape, the defendant was indicted a second time for rape, when it was held that his conviction on the first trial of the assault with intent, on a count on which he could have been convicted of rape, was virtually an acquittal of rape, and was consequently a bar to the second prosecution for rape. The same reasoning, where there is a verdict of conviction of assault, on a count for assault and battery, makes such conviction a bar to a second prosecution for the battery; for the conviction of the assault, at the first trial, is virtually an acquittal of the battery. But, on the other hand, when, on the first suit, the defendant could not, on the then pending indictment, have been convicted of the major offense, then his conviction or acquittal, at such first trial, of such minor offense, does not necessarily pass on the major, and is no bar to his subsequent prosecution for the major.” “It may be generally said [§ 565] that the fact that the two offenses form part of the same transaction is no defense when the' defendant could not have been convicted, at the first trial, on the indictment then pending, of the offense charged in the second indictment.”

We conclude that the evidence necessary to secure a conviction of murder, even though it showed the concurrence of robbery, would not have been sufficient to procure a legal conviction of murder upon the trial qf the robbery bill. It follows that defendants have never been in jeopardy on the charge of murder.'

For these reasons the plea of autrefois convict in the present cause must be denied. The demurrer of the Commonwealth must be sustained and judgment must be entered for the Commonwealth on the plea and demurrer.


author: Hicks, J.,

text:
    Schuylkill County Commissioners' Appeal.

      C. E. Berger, for appellants.

      B. A. Freiler and J. A. Adamson, for county controller and minority commissioner.
    May 26, 1930.
   Hicks, J.,

This is an appeal by the county commissioners from the action of the salary board in failing to fix the salaries of five additional clerks, employed temporarily by the county commissioners, and is brought in accordance with section 7 of the Act of March 31, 1876, P. L. 13, and was heard by the court in banc.

From the pleadings and the evidence, we make the following

Findings of fact.

1. The appellants, James R. Walton and James H. Kirehner, are the majority members of the board of county commissioners, R. E. Brownmiller is the minority member, and William R. Adamson is county controller.

2. At a meeting of the board of county commissioners held on March 3, 1930, all the commissioners being present, a motion that five temporary clerks be added to the present force in the commissioners’ office for the purpose of assisting in getting out the precepts and tax duplicates as required by law, their work to commence March 4, 1930, was adopted.

3. On March 3, 1930, and March 5, 1930, five competent persons, resident freeholders, were appointed in pursuance of the foregoing resolution.

4. The salary board, at meetings held on March 3, 1930, and March 31, 1930, failed and refused to fix the salaries of the temporary clerks, Commissioners Walton and Kirehner voting in favor of fixing the salaries at $160 per month, and Commissioner Brownmiller and Controller Adamson voting against the same.

5. The county commissioners, at a meeting with all present on April 2, 1930, fixing the salaries of the additional and temporary clerks at $160 per month, drew warrants in payment thereof to April 1, 1930, but the county controller disapproved them.

6. The five temporary clerks additionally employed by the county commissioners have been and are now engaged in preparing and sending out to all the assessors of the county, 107 in number, the precepts for the making of the triennial assessment in 1930 and the sending to them of the proper assessment books for the respective districts, into which the temporary clerks have written the names of the taxables, location, general description and size of the taxable property and such other information as the county commissioners have of taxables and taxable property in the assessor’s district.

7. The valuations are left blank for insertion by the assessors and spaces allowed in the assessment books for additional discoveries and valuations by the assessors.

8. The employment of these additional clerks would not be necessary if the county commissioners simply transmitted the precepts to the assessors for the making of the triennial assessment and the blank assessment book in which to list the taxables and set out the valuations.

9. It is admitted by counsel for the county controller and minority commissioner that the practice in this eounty from time immemorial has been to furnish the assessors in the triennial years with assessment books containing the information now being inserted by the additional clerks.

10. In pursuance of said practice of former county commissioners, as set out in the foregoing paragraph, five extra clerks have heretofore been employed in former triennial years.

11. Prior to the triennial assessment to be made in 1930, the precepts were issued to make the triennial assessment on or before the second Monday of September and the assessors were required to complete the assessment and make return thereof not later than Dec. 31st; now, the precepts must be issued on or before June 1st and the assessors are required to complete and return the same not later than Sept. 1st.

12. The preparing and sending out of the precepts and triennial assessment books must be performed by the clerks in the commissioners’ office at the same time as the extra work of preparing for the spring primaries and the five additional clerks were necessary to do this work; heretofore the regular office force would have had no additional labor to perform while preparing and sending out the precepts and assessment books, since they could have been prepared after the spring primaries and before the second Monday of September when they had to be sent to the assessors.

13. All the clerks employed in the eounty offices, except some employed in the prothonotary’s office at $4.50 a day, receive a minimum monthly salary of $160 a month, which is a reasonable sum.

14. For accuracy and comprehensiveness of triennial assessment, its completion and return when required by law, it is needful that the assessors be given all helpful information as to taxables and taxable property in the possession of the county commissioners, especially since the triennial assessment is the basis for taxation for three years in the entire county, subject to restricted statutory changes between the triennials.

15. No necessity exists for the employment of the additional clerks after June 1, 1930, the last day for the transmittal of the precepts and assessment books to the assessors. If any additional clerks are needed after Sept. 1,1930, when the assessment books are returned by the assessors, to assist the eounty commissioners as a board of revision for the adjutment and revision of the assessments, additional clerks may then be properly employed. The evidence shows no necessity for these additional clerks between June 1st and Sept. 1st.

16. No evidence of any kind was introduced by the minority commissioner and the controller.

Discussion.

The assessment of property for the purpose of taxation and the levy and collection of taxes are under the complete supervision of the county commissioners. It is their most important official duty. County taxes are levied in Pennsylvania on the basis of assessments made triennially, supplemented between the periods of such assessments by assessment of persons and property becoming taxable since the last preceding triennial assessment, and by reassessment of property which has increased or deteriorated in value since such assessments: 1 Eastman on Taxation in Pennsylvania, §122, pages 109, 110. Assessment involves two distinct acts, first, the preparation of a roll or a list of áll the property subject to the tax, and, second, the valuation of such property. The assessment of a tax must be the act of the person chosen to act as assessor, though, of course, it is not required that the officer personally perform every act connected with the assessment and the making of the tax roll, as many of these acts are of a clerical nature, involving no exercise of discretion, and having no relation to any right of the taxpayer: 26 Ruling Case Law, § 311, page 354.

The'oath required by law to be taken by the assessor before entering upon his duties fully and completely defines his official responsibilities, to wit: to discover, ascertain and take an accurate account of all the real and personal property within his municipal subdivision and all other objects subject to taxation, assess and value the real estate with improvements thereon and all taxable personal property, and rate all offices and posts of profit, trades and occupations. Section 1 of the Act of May 10, 1929, P. L. 1712, requires that the commissioners shall issue their precepts to the assessors to make the triennial assessment of property on or before June 1st, and the assessors are thereby required to complete the said assessment and make return thereof not later than Sept. 1st. An assessor must complete his assessment on both real and personal property and make return thereof within the time limited by law: Voltz v. Erie County, 81 Pa. Superior Ct. 467. Prior to the Act of 1929, supra,, the assessor was allowed four months within which to complete and return his triennial assessment. It has now been reduced to three months, beginning on June 1st and ending on Sept. 1st. By section 1 of the Act of May 12, 1921, P. L. 534, the salary of the assessor is fixed at $5 per day, to be paid by the county commissioners out of the county treasury.

From “time immemorial” it has been the practice of the county commissioners in this county to furnish to the assessors in the triennial years, in addition to the precepts, assessment books to be completed by the assessors, in which the clerical force in the commissioners’ office have written the names of the taxables, location and general description and size of the taxable property taken from the previous assessment. The county commissioners, for the purpose of the triennial assessment to be made in 1930, and which later is to become the subject of the adjustment and revision by them as a board of revision, employ five additional clerks who are presently engaged in preparing and sending out the precepts and of inserting in the triennial assessment books, preliminary to their delivery to the assessors, the information herein-before referred to. The minority commissioner and the controller, as members of the salary board, urge that such employment was illegal and unnecessary because the work being done by these additional clerks should be done by the assessors, and there is no authority for the county commissioners to. do it or have it done. We cannot agree that the assessor must personally perform every act connected with the assessment and the making of the tax list because many of the acts are of a clerical nature, and especially so are those now being performed by the clerks in the commissioners’ office. The appellees would certainly not contend that the assessor must personally write into the assessment book the list of names and the description of the taxable property. This clerical work might be done by any one. The valuation of the property, requiring the exercise of official discretion on the part of the assessor, must, of course, be done by him, and under the system employed by the county commissioners will be done by him.

It is important to the administration of the system of taxation in vogue that there should be comprehensiveness, equality and uniformity of assessment. The final determination whether such characterizes a triennial assessment rests with a board of revision, in this county composed of the county commissioners. Under the law, they are authorized to employ all needful assistants and clerks: Act of May 10, 1929, § 2, P. L. 1712; Pardee et al. v. Schuylkill County et al., 276 Pa. 246. The accuracy of the assessment as-made by the assessor and its return within the time required by law is of the utmost importance to the county commissioners in the performance of their duties, and as public officials they are vested with a reasonable discretion in adopting such necessary and appropriate methods as will enable them to perform a duty imposed upon them. No one would deny the right of the county commissioners, to secure the very best triennial assessment to send out to the assessors with the precept, say, in the City of Pottsville, blue prints of their respective districts to guide them in an accurate and uniform assessment. Yet the doing of such would require employment by the county commissioners ■without exact statutory authority except as inferable as an anticipatory step in the eventual adjustment and revision of the assessments later to be made by the board of revision. Section 2 of the Act of April 15, 1834, P. L. 509, which we cannot find was ever expressly repealed, although amended and supplemented, authorized the commissioners to direct the form of the list of all taxable persons and property, together with a just valuation, to be made by the assessors. Since the assessments made by the assessors in triennial years form the basis and subject-matter of the action of the county commissioners as a board of revision later functioning according to the statute, we conclude that the commissioners have the right to do such clerical work as ■will make for accuracy in the assessors’ work, expedite and guarantee the completion and return of it within the limits required by law. And we, therefore, hold that there is legal authority for the employment of the five additional clerks. And since it is in evidence that this number of additional clerks has always been employed not only by this board of commissioners but by previous ones, of which the minority commissioner as well as the county controller were members, it is some evidence of the necessity of the employment. And because of the change of time in which the triennial assessment must be made since the Act of 1929, supra,, we have found they are now necessary. Not only do we deem the method employed by the county commissioners to make for greater accuracy and comprehensiveness of assessment, but we believe that it is as economical to the county, since the listing of the taxables and taxable property, as contended for by the appellees, would require a greater time on the part of the 107 assessors in the county at a daily cost of $5.

We, however, believe that the necessity for the employment of these five additional clerks, under the evidence, ends on June 1,1930, as by that time the assessment books and the precept books must be in the hands of the assessors. Until Sept. 1st, after June 1st, the evidence shows no need of them. We can readily see that additioaal clerks would be needed during the time of preparation for and the doing of the work of the board of revision after Sept. 1st.

Conclusions of law.

1. The employment by the county commissioners of the five temporary clerks for the purposes herein found, four from March 4, 1930, and one from March .5, 1930, is legally warranted.

2. There being no evidence of necessity thereafter, the employment should legally cease on June 1, 1930.

Order.

And now, May 19, 1930, the county commissioners are allowed four additional clerks from March 4, 1930, and one additional clerk from March 5, 1930, to June 1, 1930, at $160 per month, for the purposes of preparing and sending out precepts to the assessors for the triennial assessment in 1930 and the insertion into the assessment books to be delivered to the respective assessors of such information as is hereinbefore referred to, and such other information as will assist the assessors in accurately, uniformly and expeditiously making the triennial assessment.

Prom M. M. Burke, Shenandoah, Pa.


author: Schaeffer, P. J.,

text:
    McCormick, Executor, v. Perry et al.

      Stevens & Lee, for plaintiff; R. G. Bushong, for petitioner.
    June 11, 1930.
   Schaeffer, P. J.,

In the above suit the sheriff has made return that he served “the within defendants, John H. Perry and Richard Lloyd Jones, trading as Perry Lloyd Jones Newspapers, nonresidents of the State of Pennsylvania, doing business in the County of Berks but not residents therein by giving” copies “to Joe Homstein, the agent of said defendants at the usual place of business of said agent, Sixth and Walnut Streets, in the City of Reading,” etc.

Thereupon Mr. Homstein presented his petition, under the Act of March 5, 1925, P. L. 23, to this court, averring that he is the general manager of the Reading Times Publishing Company, a corporation, with offices at Sixth and Walnut Streets, that service of the writ and statement had been made upon him, that John H. Perry is a citizen of the State of New York and Richard Lloyd Jones is a citizen of the State of Oklahoma, and that he, Homstein, is not the agent of either Perry or Jones, whereupon a rule was issued to show cause why said service should not be set aside.

In answer to said petition and rule, the plaintiff, by his attorneys, filed a demurrer upon the ground that the petition is not made by either of the defendants named in the writ, that it is not made by any duly authorized agent of the defendants, and that the petitioner has no right or interest to make any objection to the service.

But we are of the opinion that the demurrer must be overruled. The petition to set aside the service is made by the very party upon whom the service was made. He certainly had an interest in the proceeding, if only to see that no liability accrues to himself by reason of the service upon him. He may not believe himself to be the agent of Messrs. Perry & Jones, or of either of them, and yet in fact and law it may be that he is. He has such an interest that warrants him, in our estimation, in presenting the petition in question.

By the provisions of the Act of March 5, 1925, P. L. 23, “whenever in any proceeding . . . jurisdiction over the defendant ... is raised in the court of first instance, it shall be preliminarily determined by the court upon the pleadings or with depositions.” The act does not deny to one whom the sheriff has attempted to serve as the agent of the defendants the right to raise the question of jurisdiction. In a case such as the present, where both defendants are nonresidents, it would seem that the one served as agent of the defendants, if he be in fact not their agent, would be the only person interested to question the validity of the proceeding.

The alleged agent here has moved promptly to raise the question. His petition was presented five days after the alleged service upon him — in fact, before the sheriff had made his return of such service. There are no facts such as existed in Daley v. Iselin, 212 Pa. 279, which can be construed as a waiver of the issue of jurisdiction.

In O’Brien v. Bartlett, Hayward & Co., 12 Dist. R. 746, the present Chief Justice, then a Common Pleas judge, said: “The rule that a sheriff’s return cannot be contradicted is true only as to matter returned which the officer knows of his own knowledge, such as the time, place, manner of service, and the person upon whom made, but does not apply to facts returned, the truth of which he could only know from hearsay, such as the defendant is a nonresident doing business within the county and that the person upon whom service was made is his agent.” To the same effect is Buckley v. Shuler, 12 D. & C. 298.

It is true that the burden here of proving the fact that Mr. Hornstein is not the agent of the defendants rests upon the petitioner, even though that amounts to proving a negative: Daley v. Iselin, supra (page 285).

And now, June 21, 1930, the demurrer is overruled.

From Charles K. Derr, Reading, Pa.


author: Groff, J.,

text:
    Commonwealth v. Hastings.

      Robert Ruppin and Jacob Hill Byrne, for rule.

      M. Edna Hurst and S. V. Hosterman, District Attorney, contra.
    Sept. 20, 1930.
   Groff, J.,

An examination of the record in this case discloses that on July 2, 1930, one Leon Templeton appeared before John'F. Burkart, an alderman in and for the City of Lancaster, and complained against H. Charles Hastings, of No. 632 East End Avenue, Lancaster,- Pennsylvania, for having, on June 28, 1930, in the County of Lancaster, unlawfully operated “a Jordan motor vehicle, Pennsylvania license No. U3377, on the above date at 11.55 P. M., at the intersection of Plum and Clay Streets, Lancaster, Pa., recklessly, wilfully and carelessly, disregarding the rights and safety of others, and in a manner endangering the life and property and person of this deponent, and said defendant did unlawfully and recklessly commit assault and battery upon the bodies and person of Bessie Templeton, Mable Templeton, Marian Templeton and Harry Templeton with his motor vehicle, injuring and causing them suffering, said defendant causing an accident,” thereby charging the defendant with reckless driving and assault and battery.

An examination of the record as it appears before us shows that subsequent thereto the alderman issued a warrant to one W. G. Sweigart, constable, who brought the defendant in. The defendant waived the hearing and entered bail for court. There is nothing on the record in reference to the charge of reckless driving, except in the complaint, as above set forth, and in the heading of the bail piece, or recognizance, in which it says: “Commonwealth of Pennsylvania v. H. Charles Hastings, Charge Of Reckless Driving And Assault And Battery With Motor Vehicle.”

Section 1202 of the Act of May 1, 1929, P. L. 905, 993, provides as follows:

“Section 1202. Proceedings by Information and Warrant. — (a,) Summary proceedings under this act, or any violation of a local ordinance, rule or regulation enacted under the authority thereof, except as hereinafter provided, shall be commenced by the filing of information, which information must be filed in the name of the Commonwealth; and within the period of seven (7) days after information has been lodged, the magistrate shall send by registered mail- to the person charged, at the address shown by the records of the department, a notice in writing of the filing of the information, together with a copy thereof and a notice to appear within ten (10) days of the date of the written notice.”

The complaint and proceedings before us show that the provisions of section 1202 of the Motor Vehicle Code just recited have not been complied with, and we, therefore, assume that the charge of reckless driving was not pursued by the complainant. At least, defendant is not properly before us, according to the record, except that the heading of the bail bond, as we said before, says that the bail bond is given on a charge of reckless driving and assault and battery.

We, therefore, feel that the record not showing that notice in writing of the filing of the information, together with a copy thereof and a notice to appear within ten days of the date of the said notice, was served, as required by the act of assembly, the defendant should be discharged from his bond, so far as the reckless driving is concerned: Com. v. Nottage, 11 D. & C. 719.

The complaint for reckless driving having been disregarded, so far as the record is concerned, and a warrant having been issued, on which defendant was arrested for assault and battery, and on Which he entered bail, we feel that the complaint for assault and battery, for that reason, should stand, and that the defendant should continue his recognizance in the sum of $300 to appear at the next Court of Quarter Sessions, to be held the third Monday in November, 1930.

The proceedings, so far as the reckless driving charge is concerned, are hereby quashed and the defendant is released from bail on that charge.

Prom Georgre Ross EJshlenran, Lancaster, Pa.


author: Stewart, P. J.,

text:
    Buono v. McCullough.

      Israel Krohn, for plaintiff; Frank P. McCluskey, for defendant.
    March 24, 1930.
   Stewart, P. J.,

This is a rule to show cause why an attachment, in so far as it attaches money in the hands of an alderman, should not be dissolved and quashed. A number of reasons were given in the petition to quash the attachment, but all were abandoned except the sixth; “That moneys in the custody of the law cannot be attached under the Fraudulent Debtors Act of March 17, 1869, P. L. 8.” The petition sets out that the sum of $200 was deposited by Robert McCullough, the husband of Cora McCullough, as bail for her to appear and answer a criminal charge against her in the case of Commonwealth v. Cora McCullough, wherein the present plaintiff was the prosecutor, and the writ of attachment was served upon the aider-man prior to the hearing of the criminal complaint. The record shows that the attachment was served on Dec. 27, 1929, at 11.25 A. M. It was stated on the argument that the hearing was on that day at 2 P. M. Under the facts, can money deposited as bail be attached? The Act of April 7, 1921, P. L. 1-18, provides “for the depositing of money with magistrates, justices of the peace, and aldermen in lieu of bail or recognizances with surety or sureties in criminal prosecutions, desertion and nonsupport, and surety of the peace.” Surely, when a deposit is made, it is in custodia legis. Under such circumstances, decisions are uniform that it cannot be attached. In Ross v. Clarke, 1 Dallas, 354, money was attached in the hands of the prothonotary. The Supreme Court said: “If a proceeding of this kind were allowed, there could be no end to suits. We are unanimously of opinion that the foreign attachment has issued irregularly and ought to be quashed.” In Corbyn v. Bollman, 4 W. & S. 342, Mr. Justice Sergeant said: “It may be proper to add that considerable doubt exists whether a justice of the peace, who has collected money on judgments rendered before him, can be made a garnishee. It has been decided that a prothonotary cannot be made a garnishee in respect of money which a party to a suit has paid into his hands on a rule of court, nor a sheriff in respect of money raised on a fieri facias: Ross v. Clarke, 1 Dallas, 354. There seems to be a strong analogy between these cases and that of money collected by a magistrate.” In Rockey v. Carson, 4 Pa. C. C. Reps. 543, following that case, President Judge Mcllvaine decided that: “Money received by a justice of the peaee, in his official capacity, cannot be attached in his hands.” In Riley v. Hirst, 2 Pa. 346, it was held that money in the hands of an attorney at law may be attached. Mr. Justice Sergeant pointed out the difference between that case and the case of a public official. He said: “No reason has been suggested why an attorney at law should not be made garnishee in a foreign attachment. Considerations of public policy and convenience require that money in the hands of public officers appointed by law, such as sheriffs, prothonotaries and other depositaries, should not be stopped whilst in custodia legis. But an attorney at law derives his power entirely from his client, and there seems no more reason for his exemption than that of an attorney in fact or other private agent.” In Davies v. Gallagher, 16 W. N. C. 147, it was held by President Judge Thayer that moneys belonging to a convict could not be attached in the hands of the warden of the penitentiary. Judge Thayer reviewed the cases and placed his decision on the ground that the warden was a public official. In Mantua Hall and Market Co. v. Brookes, 4 Dist. R. 5, it was held that money realized from a sale in partition by a master could not be attached in the master’s hands. A case on all fours with the present one is Anders & Co. v. Flore et al., 3 D. & C. 489. The syllabus of that case is: “An attachment execution will not lie against cash in the hands of the Clerk of the Quarter Sessions, deposited originally with a justice of the peace by a defendant for appearance before the justice, which the latter, by defendant’s direction, has transmitted to the clerk to secure defendant’s appearance at the next term of the criminal court. Such a fund is in custodia legis, and this is the case, although it is only a part of the amount which the justice demanded as cash bail for defendant’s appearance at court, and the balance of the amount demanded was not deposited by defendant.”

It was contended on the argument that in law there are no fractions of a day, and that as the defendant was discharged at the hearing, the money could not be said to be in the custody of the law after the discharge. There are two answers to this view; one, that the record shows that she was not discharged as a matter of fact until 2 P. M., when the attachment was served at 11.25 A. M. (this of itself is conclusive); and the other, that money in the hands of the alderman was impressed with the peculiar character of exemption which it received when deposited, and would not lose that character by the discharge, where it was so closely connected in point of time as in the present case. The learned counsel for the plaintiff cites in support of this proposition Piper et al. v. Piper et al., 7 Dist. R. 135. There the master sold real estate. The sale was confirmed absolutely on May 28, 1897. A schedule of distribution was also reported, which was confirmed nisi on Sept. 27, 1897, which was to become absolute in ten days if no exceptions were filed, etc. An attachment was served on the master before the time fixed in the order for the payment. After referring to the authorities that money in custodia legis is not attachable, the court said: “The master, it is true, was appointed by the court and made sale under order of the court, but after the order to pay over was made the master was personally liable to the parties in interest. The schedule of the distribution had been confirmed and the interest of the defendant was determined. The master held for him a specific sum of money. This was the property of the defendant. Whether paid or not was a question between the master and the party in interest. The exact point in this case was determined by the Supreme Court of Illinois in Weaver, Admin’r, v. Davis, 47 Ill. 235. It was there held that money in the hands of a master in chancery, being the proceeds of real estate sold in partition, may be attached after final order of the court distributing said money to the defendant in the attachment.” After carefully considering the matter, we do not agree with the decision in that case. In our judgment, public policy requires that money deposited as this was, to secure an appearance in a criminal case, should be held to be exempt from attachment under the authorities first above cited.

And now, March 24, 1930, the attachment is dissolved and quashed in so far as it attaches money in the hands of John R. Chidsey, alderman.

From Henry D. Maxwell, Easton, Pa.


author: Heiligman, J.,

text:
    Maytag Eastern Sales Company v. Washburn et al.

      Alfred T. Steinmetz, for plaintiff.

      Henry Arronson and Simon Pearl, for defendants.
    Dec. 24, 1930.
   Heiligman, J.,

This is a rule for judgment for want of a sufficient reply to defendant’s affidavit of defense and counterclaim. The pleadings show that A. B. Moore, constable, one of the defendants, made a distress for rent in arrears upon the goods of the other defendant, Isabella Washburn, on April 11, 1930. On the same day, after the levy, the goods were removed from the premises to a storage warehouse. Among the goods levied upon and removed was a washing machine belonging to the plaintiff. The tenant waived appraisement. On April 22, 1930, plaintiff began this action of replevin and replevied the washing machine, and on April 24, 1930, the other goods of the defendant, Isabella Washburn, were sold, but insufficient funds were realized to pay the rent, costs and other charges. The deficiency amounted to $30.75.

In the affidavit of defense filed by A. B. Moore, one of the defendants, on behalf of himself and the landlord, under.Rule 68, defendant denies the superior title of the plaintiff and in a counterclaim claims from the plaintiff the sum of $30.75, and, further, that he has a lien upon the said washing machine in that sum; the said claim and lien being the amount of the deficiency above mentioned. The plaintiff’s reply to said counterclaim denies that the defendant has any claim upon said washing machine by reason of the fact that no inventory and appraisement of the goods levied upon was ever made and by reason of the fact that the goods were removed immediately from the premises of the defendant, Isabella Washburn, and secretly stored.

In other words, if the facts averred in plaintiff’s reply constitute an illegal distraint, the landlord has no claim upon the plaintiff or its washing machine and the plaintiff is entitled to the washing machine forthwith; if, however, the facts averred in plaintiff’s reply do not affect the legality of the distraint, then the plaintiff is entitled to the washing machine but must pay the landlord’s claim of $30.75.

, A distress is the seizure by a landlord of goods upon the demised premises for security for the payment of rent due in arrears; the right to distrain does not include the right to sell: 16 Ruling Case Law, 1027; Woglam v. Cowperthwaite, 2 Dallas, 68., Section 1 of the Act of March 21, 1772, 1 Sm. Laws, 370, however, gives to the landlord the specific right to sell the goods dis-trained, in addition to the right of distress or seizure. It may be that seizure or distress of goods may be regular while the subsequent steps leading up to, and an exercise of, the right to sell may be irregular. Thus the failure to appraise or a premature appraisement (Brisben v. Wilson, 60 Pa. 452) is a subsequent irregularity, and if a sale follows upon such irregularity, the original seizure is invalid and the landlord is a trespasser ab initio: Esterly Machine Co. v. Spencer, 147 Pa. 466. But if the goods are replevied and a. sale does not follow, the irregularity in the appraisement does not invalidate the original seizure (Johnson v. Black, 15 Phila. 252); which principle of law was expressly followed in Peoples Outfitting Co. v. Mowery, 25 Luzerne Legal Reg. 299, a case similar to the one at bar. See, also, McKinney v. Reader, 6 Watts, 34, 40, 41. It follows that the appraisement is a condition precedent to a sale only and not a necessary step to maintain the validity of the original seizure. No sale of the plaintiff’s goods having taken place, our conclusion is that the failure to appraise said goods in the case at bar does not impair the lien of the original seizure or distress.

The next question is whether or not the removal of the goods immediately after the levy rendered the distress illegal. The Act of 1772 and the amendment thereto do not authorize or forbid such a removal. Prom an examination of the cases of McKinney v. Reader, supra; Waitt v. Ewing, 7 Phila. 195; Woglam v. Cowperthwaite, supra, and Bale v. Hess, 11 Dist. R. 376, it appears that at early common law the landlord was bound to remove the goods taken under a distress, but upon the passage of the Statute of William and Mary, chapter 5, which gave the landlord the added right of selling the goods, the custom or usage arose of impounding the goods upon the premises, which custom later became a statutory enactment in England. That custom is still retained in Pennsylvania, although not embodied in any statute. It clearly appears, however, from the use of the words “might” and “may” (see Waitt v. Ewing, supra; 36 Corpus Juris, 575, note 41 [a]), that both the usage and the English statute relating to the impounding of goods upon the premises were permissive and not mandatory. The custom and the statute gives to the landlord the right to impound the goods on the premises without being liable for a trespass; they do not give the tenant the right to have the goods impounded there. That being so, it follows that the impounding of the goods elsewhere is not a violation of the landlord’s duty to the tenant or owner of the goods, but merely an abandonment or waiver of his right to use the premises as a place of impounding. Judge Elcock in Bale v. Hess, supra, seems to conclude that the tenant has an absolute right to have the goods impounded upon the premises, but that case may be distinguished from the one at bar on the ground that the distraint was ended by a settlement of the landlord’s claim prior to the removal of the goods.

In the case at bar, the removal of plaintiff’s goods was not followed by a sale of them. As pointed out above, an irregularity of subsequent procedure does not invalidate the distress when there is no sale of the goods, so that even if the removal before the expiration of five days were construed as an illegal act, the plaintiff having replevied in time and prevented a sale, the original distress would still be valid.

By virtue of the replevin and the security filed, the security becomes substituted for the goods: Woglam v. Cowperthwaite, supra. Therefore, the plaintiff is entitled to the washing machine, but the security is liable to the extent of the unpaid rent, namely, $30.75. Rule absolute.


text:
    Suttie v. Sun Oil Company.

      W. C. Brown, for plaintiff; Ward G. Henry, for defendant.
    Feb. 28, 1931.
   Gordon, Jr., J.,

This case was tried, by agreement of the parties, by a judge without a jury. The testimony is uncontradieted, and the legal question involved is whether, conceding that the negligence of an owner, of property causes a fire, a municipal fireman is entitled to recover damages for injuries which he suffers in endeavoring to put out the fire and which result from an explosion on the premises caused by the fire.

On the night of April 27-28, 1930, Frank E. Dickson, an employee of the defendant company, was directed by his superior to go with a tank wagon containing about 1500 gallons of gasoline to one of the defendant’s automobile filling stations located at Stenton and Mount Airy Avenues, in the City of Philadelphia, and to fill the tanks at that station. The station did not remain open after. 11 P. M., and when Dickson arrived he found it closed. He was unable to understand a rough diagram of the place with which he had been supplied, showing the location of the intake pipe for the gasoline tanks, and, in searching for it, he came upon the intake for the oil tanks, which were located in the cellar of a small building on the property. Mistaking the oil intake for the gasoline intake pipe, he connected his wagon to the former and proceeded to run gasoline into it. After running in about forty or fifty gallons, he noticed that he could not hear the noise which generally accompanied the running of gasoline into the metal tanks. This was because the oil line had been disconnected from the oil tanks, so that the gasoline was running into the open cellar of the building, where there was at the time a lighted coal stove used for heating purposes. Dickson then went to the back of the building in search of a stick to use in gauging the tanks, and while there heard the noise of breaking glass in the front of the building. Upon hurrying back to the front he saw that a window had been blown or broken out and that smoke was pouring out of the building. This was his first intimation that the stove had ignited the gasoline, which he had been carelessly emptying into the cellar. Realizing the danger, he hastily disconnected his wagon and drove it away to safety and then sought aid in notifying the fire department of the fire. He does not seem to have been present when the firemen arrived, for the plaintiff, who was a fire captain in charge of a squad of men, testified that when he arrived nobody was around and that he, with other firemen, then entered the building. The plaintiff and his companions had been in the single room of which the building consisted for two or three minutes, when, as they were about to descend to the cellar through a trap door in one corner of the room, a violent explosion occurred, which blew one man out of a window and seriously injured and burned the plaintiff and others.

The plaintiff suffered extensive second degree burns of his hands, face and ears, which afterwards became infected and kept him confined, under treatment for his injuries, for about two months. At the end of this period he returned to his duties as a fireman, but was not finally discharged from treatment until a month later. He was under no expense for medical treatment, and at the trial presented no claim for loss of earnings. His only claim for damages, therefore, is for the injuries and the pain and suffering incident to them, together with the fact that, after burns of the character suffered by the plaintiff, the injured parts tend to “break down” in cold weather and to become severely chapped and painful. The recovery of the plaintiff, in view of the extent and gravity of the burning which he suffered, has been excellent. He made no effort to exaggerate his suffering, but there can be no doubt that it was of a most intense and excruciating character, and, in our opinion, the damages which he suffered may fairly, justly and reasonably be placed at the sum of |3500.

These undisputed facts give rise to the question of law already indicated, whether, conceding that the negligence of an owner of property causes a fire, a municipal fireman is entitled to recover damages for injuries which he suffers in endeavoring to put out the fire and which result from an explosion on the premises caused by the fire. There seems to be no authority in this state directly ruling this question. The nearest case upon its facts to the one before us is Drake v. Fenton, 237 Pa. 8, in which a property owner was held liable to a fireman, who had entered a building in the performance of his duty to put out a fire, for injuries sustained by falling down an elevator shaft which had not been protected by guards and gates as required by an act of assembly. The negligence consisted in the maintenance of a defective elevator on the property in violation of a law enacted for the protection of all users of the premises. The dangerous defect existed independently of the fire and was neither created by nor an incident of it, and the entry of the fireman upon the premises merely brought him within the sphere of its influences and operation. That case is, therefore, clearly distinguishable on its facts from the one before us. So, also, those cases in which police officers, constables and other agents of government lawfully entering upon the property of another are held to be entitled to recover for injuries caused by a defective condition of the premises do not rule the question before us. In such situations, the negligence sued upon does not arise out of the conditions which bring about the entry of the person injured upon the property, and exists as a danger, unknown and, therefore, unassumed, which threatens him regardless of the occasion of his presence within its range.

The authorities outside of Pennsylvania are not in complete accord upon the question before us, although their overwhelming weight is against the right of recovery by a fireman in such a situation as existed in the present case. (See 2 Cooley on Torts, 3rd ed., page 1268; Meiers v. Koch Brewery, 229 N. Y. 10, at pages 12 and 13.) In all of the cases called to our attention, whether in Pennsylvania or outside of this jurisdiction, the decisions seem to have turned upon whether the person injured was a licensee or invitee at the time the injury was suffered. If the former, it is held that no duty, except that of refraining from intentional and wanton injury, rests upon a property owner; while, if the latter, the property owner is held to a certain measure of care to his invitee. Some of the cases view the agent of government who enters premises in the performance of his duties as a mere licensee, while others consider him to be an invitee, and the decision follows the rules as to liability indicated. We are of the opinion that when an officer of government lawfully enters upon the'premises of a citizen, he is not a mere trespasser, and that the property owner is not relieved of all duties toward him. However that may be, we do not think the true solution of the question before us lies in a determination of the legal status of a fireman in relation to the owner whose property is entered. It is to be found rather in considerations of public policy and in the purpose, with its accompanying assumptions, with which the entry is made. The dangers incident to a fire and the risks involved in the effort to . extinguish it are assumed by a fireman when he enters in the performance of his duty. It is a well known fact that in the great majority of instances fires originate from the negligence of those in possession of property. To impose-upon an owner liability for such negligence in favor of those who voluntarily assume all the dangers growing out of so hazardous an occupation, however commendably courageous and disinterested the assumption may be, would inflict an onerous and unfair risk upon one who is deprived- of all control over the other’s acts, who cannot even prevent him from assuming such risks, who, for the public good, has temporarily lost all control over his property, and who is helpless to protect himself. A police officer who enters a building to make an arrest, an inspector who enters to inspect the condition of the premises, cannot fairly be said to assume the risk of dangers of which he is ignorant, which he has no reason to suspect exist and which are not patently incident to the purpose of his entry. A fireman, however, for the public welfare, goes into the face of a known and obvious danger, and the risks incident to it he must assume.

This position is in accord also with the obvious public policy to which the situation gives rise. An owner, facing knowledge that he risks being mulcted in damages by those whom he summons to aid in the extinguishment of a fire, would be strongly tempted by self-interest to temporize with the dangerous situation, to adopt his own means of saving his property, and to delay summoning aid until perhaps greater danger would be threatened to the public. To avoid this added public hazard, public policy requires those who, in the service of the state, enter premises to extinguish a fire, to look to their employer for proper compensation for injuries suffered in the courageous performance of their public duties. No other workable rule, it seems to us, can be safely adopted. As was said in Lunt v. Post Printing & Publishing Co., 110 Pac. Repr. 203, in which a fireman of the City of Denver, who had entered premises supposed to be on fire and who was injured because of the presence of acid fumes, was denied the right of recovery from the owner: “The rules announced may seem harsh; but they are founded in a public policy for populous districts to which the rights of individuals ought to bend. Fire departments are for the public. The service of its members is purely a public one. It must be so to assure the most effective work in fighting fire. In times of conflagration, or indications thereof, ordinary people lose their power of judgment and are not qualified to direct. Owners of property whereon are indications of fire will and should be, for the time, suspended from control and the trained fireman, as the representative of the public, be in absolute command, unhampered by the wishes or directions of any individual. Firemen must form their judgment quickly from appearances before them and they must swiftly execute this judgment if the best result be reached. Their time ought not to be spent in determining what duties they owe to this or that man. Hence, generally speaking, the law is that, in the discharge of their public duties, they owe no duty to individuals. Their business is to put out fires in the best and quickest way. When they have done this they have performed their duty to the public, to whom alone is any duty due from them. If it be held that duties are due the firemen other than as stated in the quotation from Mr. Elliott’s work, this would call for reciprocal duties from the firemen and thus their work would be hampered and their minds diverted by the consideration of their private duties. The help of a fireman is always needed in times of stress and excitement, when dangers surround the fireman on every hand, when quick destruction of life and property is threatened, when the necessities of the case call for cool, quick judgment and swift, untrammeled action. It is better that the situation be not further confused by the consideration of reciprocal private duties. The life of the fireman is an heroic one. Daily, in the discharge of his duties, he performs acts of the truest heroism which go down unheralded and unsung. He consecrates his life to his work, and, when it becomes necessary, unflinchingly offers up, as a sacrifice to the public, his own well-being, his life and the future welfare of his wife and children. The public, to whom he owes this duty and for whom he performs it, owes to him the reciprocal duty of providing generously, in some proper way, by public taxation, for the care and comfort of the fireman and those dependent on him when, in the discharge of his duties, he becomes disabled, and for the care and comfort of his wife and children when he gives up his life for the public.”

The reasons thus forcefully stated for the principle under consideration seem to us to be conclusive. Not only does the doctrine of assumption of risk defeat the plaintiff’s right in this case, but weighty considerations of public policy prevent the extension of liability by an owner to firemen engaged in an attempt to extinguish fires.

With one exception, the cases cited by the plaintiff in support of the right of recovery here are clearly distinguishable from the case before us upon the various grounds heretofore noted. In Meiers v. Koch Brewery, supra, the fireman was using a private driveway and fell into an open coal hole. Thus the case is analogous to Drake v. Fenton, supra, decided by our Supreme Court, and is distinguishable on the same grounds. In Learoyd v. Godfrey, 138 Mass. 315, the plaintiff was a police officer who went on private property to make an arrest; and Parker v. Barnard, 135 Mass. 116, presents similar distinguishing facts. In Buckeye Cotton Oil Co. v. Campagna, 146 Tenn. 389, recovery was permitted by a fireman because his fire company had gone outside of its territory to put out a fire at the request of an owner, and it was held that the fireman went outside as an individual and not as an official, and that, being invited by the owner, the latter owed him certain duties which would not have existed had he been engaged in putting out a fire within his territorial jurisdiction. There the fireman was held to be an invitee, and the case illustrates the underlying reason for the conclusions we have already stated.

The exception referred to above and the case upon which the plaintiff relies most strongly is Houston Belt & Terminal Ry. Co. v. O’Leary, 136 S. W. Repr. 601. In that case a railroad negligently placed a freight car containing fireworks at a place in its yard where it would be subjected to impact from other cars. As a result of concussion a fire broke out in the car after the explosion of part of its contents, and. the plaintiff’s intestate, the chief engineer of the fire department, approached the burning car to extinguish the fire, and received a serious injury from a further explosion. A recovery was permitted upon the theory that each individual explosion was an independent negligent act, and that the explosion which occurred after the fireman had approached the car was due to a negligent act of the company committed after the fire had started and the injured fireman had arrived on the premises. This reasoning seems to us to be straining for a theory upon which to support a liability. As was said of this case by Prof. Francis H. Bohlen, of the University of Pennsylvania Law School, in a note to an article in the Pennsylvania Law Review of March, 1921, at page 237, entitled “The Duty of a Landowner Toward Those Entering His Premises of Their Own Right:” “It would seem difficult to sustain the court’s view that each explosion of fireworks was a new negligent act occurring while the plaintiff, a fire marshal, was on the premises, though the explosions were not caused by any deliberate or negligent act of the defendant done after his entry, but were due to the same preceding negligence which caused the fire which the fire marshal was called to put out and indeed were themselves part of the same fire.” We have read the opinion in that case with care and find ourselves unable to follow its reasoning or to accept its conclusions. It is against the trend of the decisions and advances a doctrine which, in our judgment, is unsound and would tend' to produce mischievous consequences.

There is nothing in the case before us which could support the conclusion that there was a negligent failure by the defendant’s agent, Dickson, to notify the plaintiff, before he went into the building, of the existence of explosive gasoline in it. It does not appear either that he knew of the exact cause of the explosion (although he may have suspected it), or that he had any knowledge or reason to know, after the first explosion, that unexploded gasoline remained in the cellar. In addition, according to the plaintiff’s evidence, Dickson does not seem to have been present when the plaintiff arrived and entered the building, and the explosion which injured him occurred within two or three minutes of his entry. Neither time, the opportunity nor the knowledge was, therefore, shown to have been possessed by Dickson which would put upon him the duty of notifying the plaintiff of his danger. This is a simple case of a fireman being injured by an incident of a fire which he was endeavoring to put out in a gasoline station; and for the reasons stated we are of opinion that the plaintiff has shown no right of action against the defendant and that we must render a verdict in its favor.

We, therefore, make the following findings of fact in the casé:

Findings of fact.

1. The defendant was negligent in setting fire to the premises.

2. The plaintiff, a city fireman, entered the premises in the performance of his duty as such fireman and as such was not guilty of negligence. •

3. The plaintiff was damaged in the sum of $3500.

The court further reaches the following

Conclusions of law.

1. The plaintiff assumed the risk of the dangers incident to the extinguishment of the fire for which purpose he entered the premises.

2. The defendant is not liable to the plaintiff for the damages suffered by him in connection with his efforts to put out the fire.

Accordingly, verdict is now entered in favor of the defendant.