',■■ J .V 'y> '■ jwi^wBriiMiiaiMawf, I Cornell University y Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024704136 THE Practice in Civil Actions AND PROCEEDINGS IN THE SUPREME COURT OF PENNSYLVANIA, IN THE COURTS OF COMMON PLEAS FOR THE COUNTY OF PHILADELPHIA AND IN THE COURTS OF THE UNITED STATES. ORIGINALLY PREPARED BY FRANCIS J. TROUBAT and WILLIAM W. HALY. FIFTH EDITION: REVISED AND REWRITTEN BY FREDERICK C. BRIGHTLY, Esq., ' AUTHOR OF THE PENNSYLVANIA DIGEST, ETC. IN TWO VOLUMES. VOL I. PHILADELPHIA : KAY & BROTHER, 17 and 19 SOUTH SIXTH STREET, LAW BOOKSELLERS, PUBLISHERS AND IMPORTERS. 1880. Entered, according to the Act of Congress, in the year 1853, hy JAMES KAY, in the Office of the Clerk of the District Coiu-t of the United States in and for the Eastern District of Pennsylvania. Entered, according to Act of Congress, in the year 1867, by KAY & BROTHER, in the Clerk's Office of the District Court of the United States in and for the Eastern District of PennsylTania. Entered, according to Act of Congress, in the year 1879, by KAY & BROTHER, in the Office of the Librarian of Congress, at WasUngton. Hon. GEORGE SHARSWOOD, LL.D. CHIEF JUSTICE OF PENNSYLVANIA, WHILST PRESIDENT JUDGE OF THE DISTRICT COURT OF PHILADELPHIA, DIt3 MORE THAN ANY OTHER JUDGE WITHIN THE COMMONWEALTH TO SETTLE THE PRACTICE OF THE COURTS ON A SOUND BASIS, THIS EDITION OF TROUBAT AND HALT'S PRACTICE IS RESPECTFULLY INSCRIBED THE EDITOR. PREFACE TO THE FIFTH EDITION. This work, originally prepared by Ekancis J. Troubat and Wil- liam W. Halt, two distinguished and learned members of the Phila- delphia Bar, was presented to the Profession in the year 1825, in one thin octavo volume ; a second volume appeared in 1829. It immedi- ately took high rank as a professional text-book; and probably no gentleman has since been admitted to our Bar, who has not drawn from its pages his first knowledge of the intricacies of Practice. In 1837, the same learned gentlemen favored the profession with a second edition, in two volumes. Shortly after the publication of this edition, Mr. Troubat retired from active practice, and Mr. Halt, at the time of his sudden and fearful death, on the 27th of December 1851, in the destructive fire, at Sixth and Chestnut streets, in the City of Phila- delphia, had made great progress in the preparation of a third edition. The materials collected by Mr. Halt were placed in the hands of Dr. Francis Wharton, the well-known legal writer, and by him the third edition was prepared for the press. This edition was enriched by the insertion of the manuscript notes of decisions of the present Chief Justice Sharswood, then President Judge of the District Court of Philadelphia. These valuable cases have been retained in the present edition, with the exception of a small number, which iave been subsequently overruled, or rendered obsolete by legislation. Dr. Wharton's edition was published in 1853. The fourth edition, which appeared in the year 1867, was edited by the late Asa I. Fish, Esq. The lapse of twelve years, during which great changes had been made in the law, rendered the publication of a new edition of this standard work a desideratum to the Profession, and the present Editor (V) Vi PREFACE TO THE FIFTH EDITION. « was applied to, to undertake the task of its revision. He is conscious that his labors will suiFer by comparison with those of the learned gen- tlemen who have preceded him ; but the work was necessary, and for }t, he invokes the favorable judgment of his professional brethren. He has endeavored to make some improvements on the former editions — how he has succeeded, others must be the judges. The work has been divided into sections, in accordance with the modern system ; and new chapters on the Practice in Divorce and Lunacy have been added to the second volume. In the preparation of the third and fourth editions, the editors were assisted by a number of other gentlemen, who con- tributed particular chapters to the work. Though well and learnedly done, these were necessarily variant in style, and sometimes in matter ; and the work had more the appearance of a' series of detached treatises on particular branches of the law, than of a homogeneous production. This defect the present Editor has also attempted to remedy; the whole work has been rewritten by him, with the exception of certain portions of the original book, and whether or not he has succeeded in his design, it, at least, is a connected whole, the result of the labor of a single brain. In referring to Statutes, the page of the Pamphlet Laws, as well as of the 10th edition of Purdon's Digest, has been given; and where a rule of court is cited, it will be understood to refer to Wallace's Rules of the Courts of Common Pleas Nos. 1, 2 and 4. The rules of Court No. 3 vary slightly from those of the other courts, but these varia- tions of practice have been noted in the work. Every authority has been verified, and the Decisions announced whilst the work was passing through the press, as also the Laws enacted at the session of 1879, have been incorporated, so far as possible. The bulk of the work has been much reduced by the omission of many statutes which were incorpo- rated verbatim in the fourth edition, and by the excision of much matter which had been rendered useless and obsolete by the modern changes in the law, by the adoption of the new Constitution, and by the abolition of the former District Court and Court of Nisi Prius. The fact, also, that the book is the work of a single individual enabled him to avoid much useless repetition. PREFACE TO THE FIFTH EDITION. Vll In addition to a very full and complete Index, and a Table of Cases, there has been given, in the present edition, a Table of Constitutional and Statute Law, chronologically arranged, ■which will be found useful as a matter of reference. There are many points of Practice on which there has been no authoritative decision by our Supreme Court, and on which a differ- ence of opinion exists even between the co-ordinate branches of the Court of Common Pleas of Philadelphia. This is much to be re- gretted, as it produces a diversity of practice in the several courts even of the same county : but it naturally results from the fact that these courts are distinct and independent of each other. In such cases, the Editor has given in the text that which he believes to be the better practice, and has referred to the variances in the foot-notes. F. C. E. Germantown, October 1879. TABLE OF CONTENTS. Chapter I.— OF THE COURTS. I. CoNSTITtlTIONAL PROVISIONS, § 1. Diversities of courts, § 2. Common-law pleading and practice, § 3. II. Organization of the supreme court, § 4. Number of judges and tenure of office, § 4. Power to arrange districts and return-days, § 5. Division of the state into districts, § 6. Return-days, § 7-10. III. Jurisdiction of the supreme court, § 11-13 Power to devise new writs, &e., § 14. IV. Common pleas of Philadelphia, § 15. History of the court, § 1 5. Judicial districts, § 16. Organization of the several courts, § 17. Distribution of business, § 18-20. V. Jurisdiction of the common pleas, § 21. Original jurisdiction, § 21. Appellate jurisdiction, § 22-4. Certiorari, § 25-7. Equity jurisdiction, § 28. VI. Administration of equity under the forms of the common LAW, § 29. Equitable actions, § 29-30. Assumpsit, § 31-3. Covenant, § 34. Replevin, § 35. Ejectment, § 36-7. Partition, § 38. Excuse for profert, § 39. Deceased joint-debtors, § 40. Equitable plaintiffs, § 41. Equitable defences, § 42-5. Set-off, § 46-7. (ix) X. TABLE OF CONTENTS. Equitable ejectments, § 48-50, Equitable pleas, § 51-2. Conditional verdicts, § 53-6 Judgments, § 57-60. Audita querela, § 61. Subrogation, § 62-3. VII. Courts of equitable jueisdiction, § 64. Principles of equity, § 64. History of equity in this state, § 65-6. Orphans' courts, § 67. Equity jurisdiction prior to 1790, § 68-9. Subsequent legislation, § 70-3. Eeport of the revisers, § 74. Exclusive jurisdiction of chancery, § 75-83. Assistant jurisdiction of chancery, § 84. Concurrent jurisdiction of chancery, § 85-8. Present equity jurisdiction, § 89. Additional jurisdiction in Philadelphia, § 90. General principles of equity jurisdiction, §91-5. Account, § 96-9. Specific performance, § 100-9. Injunction, § 110-8. Discovery, § 119-24. Election, § 125. Fraud, § 126. Pleading and practice, § 127-35. Appeals, § 136-42. Lien of decree for payment of money, § 143. VIII. General powers of the courts, § 144. To issue process, § 144. To make rules of practice, § 145. To punish contempts, § 146-9. IX. SPECLiL COURTS, 150-2. Chapter II.— OF THE OFFICERS OF THE COURTS. I. Prothonotaries, ceiees, tipstaves, &q., § 153. ' Prothonotaries, § 153-6. Criers and tipstaves, § 157. Commissioners and stenographers, § 158. II. Sheriffs and coroners, § 159-62. Chapter III.— OP THE COURTS OF THE UNITED STATES I. Constitutional peovisions, § 163. Federal courts, § 163. Judicial power, § 164-5. II. District couets of the United States, § 166. Organization, § 166. TABLE OF CONTENTS. Clerks and deputies, § 167. Marshal, § 168. Jurisdictiou, § 169-70. III. ClECUIT COUETS OF THE UnITED StATES, § 171. Organization, § 171. Officers, § 172. Commissioners, § 172. Jurisdiction, § 173-5. Practice, § 176. IV. KeMOVAL OP CAUSES FROM A STATE COUET, § 177. Statutory provisions, § 177. Who may remove the cause, § 178. Local prejudice, § 179. What causes may be removed, § 180. Proceedings to remove, § 181. Within -what time the application must be made, § 182. Petition, § 183. Bond, § 184. V. Supreme court op the United States, § 185. Organization, § 185. Original jurisdiction, § 186. Appellate jurisdiction, § 187. Practice in error, § 188-96. VI. Error to a state court, § 197. Jurisdiction, §197-9. Practice, § 200. Chapter IV.— OF ATTORNEYS. I. Admission op attorneys, § 201. Power to admit attorneys, § 201. Disqualifications, § 201. Board of examiners, § 202. Registry of students, § 203. Course of study, § 204. Conditions of admission, § 205. Graduates of the university, § 206. Attorneys from other counties, § 207. Attorneys from other states, § 208. Oath of office, § 209. Fraudulent admissions, § 210. II. Penalties foe official misconduct, § 211. Powers of the courts, § 211-2. Consequences of disbarment, § 213. Proceedings by attachment, § 214. III. Duties, privileges and liabilities op attorneys, § 215. Responsibility for negligence, § 215-6. Privileges of attorneys, § 217-8. xii TABLE OF CONTENTS. Liabilities of attorneys, § 219. Statute of limitations, § 220. Compensation of attorneys, § 221. IV. Prosecution and defence of actions by attoeneys, § 222. Warrant of attorney, § 222-3. Powers of attorneys, § 224-5. Unauthorized appearance, § 226. Agreements of counsel, § 227. Chapter V.— COMMENCEMENT OF ACTIONS. I. Commencement op actions in general, § 228. What is the commencement of an action, § 228. Mode of commencing an action, § 229. Tax on process, § 230. II. Privilege from suit and from arrest, § 231. Nature of the privilege, § 231. Public ministers, &c., § 232. Members of congress, &c., 233. Soldiers and militiamen, § 234. Freeholders, § 235. Suitors, counsel and witnesses, § 236-40. Women and lunatics, § 241. Nature of the action, § 242-3. III. Summons in personal actions, § 244. Nature and form of the writ, § 244. Mode of issuing the writ, § 245. Eeturn-days, §246. Service of the writ, § 247-8. Service beyond the county, § 249-50. Non-residents of the county, § 251. Non-residents of the state, § 252. Lunatics, § 253. Corporations, § 254r-5. Counties and townships, § 256. Public debtors, § 257. Publication, § 258. Waiver, § 259. Return, § 260-1. Alias, § 262. IV. Summons in real actions, § 263. Commencement of real actions, § 263. Service of the writ, § 264. Appointment of guardian ad litem, 265. Partition and dower, § 266. Ejectment, § 267. Service in another county, § 268. Publication, § 269. Bail and appearance, § 270. TABLE OP CONTENTS. XIU Chapter VI.— APPEAEANCE AND ENTRY OF A DEFAULT. I. Appearance, § 271. Entry of an appearance, § 271. Effect of an appearance, § 272. Appearance de bene esse, § 273. Several defendants, § 274. Time of appearance, § 274. Withdrawal of appearance, § 274. II. Entry of a default, § 275. When a default may be entered, § 275. When the plaintiff entitled to a default, § 276. Entry of a common appearance, § 277. Nature of a judgment by default, § 278. III. Opening of a default, § 279. When a default will be opened, § 279-80. Grounds for opening a default, § 281-2. Imposition of terms, § 283. Practice, § 284. Chapter VII.— OF THE CAPIAS AD RESPONDENDUM. L Commencement of actions by capias, § 285. Nature and form of the writ, § 285. When it lies, § 286. How issued, § 287-8. Service of the writ, § 289. Arrest, § 290. Duties of the sheriff, § 291-4. Escape and rescue, § 295. n. Special capias, § 296. When the defendant is about to quit the state, § 296. When the defendant's bail becomes insolvent, § 297. III. Of bail, § 298. Definition, § 298. Right to hold to bail, § 299-303. Double arrests, § 304. Rule to show cause of action, § 305-7. Hearing, § 308. Entry of bail, § 309-11. Exception to bail, § 312-3. Justification of bail, § 314^6. Deposit in lieu of bail, § 317. Liability of bail, 318. Surrender, § 319. Excuse of performance, § 320-4. How bail are relieved, § 325-6. Proceedings against bail, § 327. xiv TABLE OF CONTENTS. IV. Ketuen and liability of the sheriff, § 328. Return of the capiaa, § 328-9. Effect of the return, § 330. Alias, § 331. Where some of the defendants are not found, § 332. Liability of the sheriff, § 333. Service of the writ, § 334. Eeturn of the writ, § 335. Bail, § 336. Escape, § 337. Proceedings against the sheriff, § 338-40. Chaptee VIII.— op the WAREANT OF AREEST. Nature of the warrant of arrest, § 341. How obtained, § 342. Grounds of arrest, § 343. Effect of the bankrupt law, § 344. Plaintiff's affidavit, § 345. Jurisdiction, § 346. Form of the warrant, § 347. Mode of service, § 348. Hearing, § 349. Adjournment, § 350. Bond for adjournment, § 351. Commitment, § 352-3. Defendant's bond, § 354-6. Discharge, § 357. Costs, § 358. Chaptee IX.— COMMENCEMENT OF ACTIONS BY ATTACH- MENT. Remedy by attachment, § 359. When an attachment lies, § 360. Affidavit, § 361. Issuing of the writ, § 362-3. Service, § 364. Seizure and bond, § 365. Interpleader and lien of attachment, § 366. Dissolution, § 367. Proceedings in the suit, § 368-9. Convicts, §370. Torts, § 371. Chaetee X.— of AMICABLE ACTIONS, § 372-8. Chaptee XI.— OF THE DECLARATION AND STATEMENT. I. Of the beclaeation, § 379. Nature of the declaration, § 379. TABLE OF CONTENTS. Time of filing, §380. Rule to declare, § 381. Practice, § 382. Joinder of counts, § 388. Appeals, § 384. Surplusage, § 385. II. Of the statement, § 386. When a statement may be filed, § 386. Sufliciency of a statement, § 387-9. Variance, § 390. In what actions a statement is allowable, § 391. Rules of pleading, § 392. Chapter XII.— OF JUDGMENT BY DEFAULT AFTER APPEARANCE. I. Judgment by non sum infoematus, or nil digit, § 393. Nature of judgment by default, § 393. Rule to plead, and service, § 394. Judgment for want of a plea, § 395. Irregularities, § 396. Withdrawal of appearance, § 397. Nature of a judgment by default, § 398. II. Judgment for want of an affidavit op defence, § 339. History, § 399-400. Constitutionality, § 401. Statutory provisions, § 402-4. Rule of court, § 405. Parties who must file an affidavit, § 406. By whom the affidavit may be made, § 407. Cause of action, § 408. Instruments for the payment of money, § 409-10. Judgments, § 411. Affidavit of loan, §412. Book-entries, § 413-4. Filing of copies, § 415. Averments dehors the instrument, § 416. Affidavit, § 417. Sufficiency of the affidavit, § 418-9. Form of the affidavit, § 420. Practice, § 421-3. Chapter XIII.— OF JUDGMENT BY CONFESSION, I. Op a cognovit, § 425. Nature of a cognovit, § 425. Entry of a cognovit, § 426. Cautionary judgment, § 427. Statement of cause of action, § 428. gyi TABLE OP CONTENTS. When a cognovit may be entered up, § 429. By attorney for one of several defendants, § 430. By copartners, § 431. Restriction of lien, § 432. Powers of the prothonotary, § 433. II. Op warrants of attorney, § 434. What is a warrant of attorney, § 434 Form and validity of a warrant, § 435. Powers of the prothonotary, § 436-7. Entry of the judgment, § 438-9. Time of entry, § 440. Effect of the entry, § 441. Filing of the warrant, § 442. Collateral agreements, § 442. Opening judgments, §443. Chapter XIV.— OF THE WRIT OF INQUIRY, AND ASSESS MENT OF DAMAGES. I. Writ of inquiry, § 444. Nature of the writ of inquiry, § 444. When requisite, § 445. Notice to the defendant, § 446. Execution at bar, § 447. When unnecessary, § 448. Execution of the writ, §449-51. Proceedings on return of writ, § 452. II. Assessment of damages, § 453. By the prothonotary, § 453. Where one of several defendants makes default, § 454. On bond with collateral condition, § 455-63. Chapter XV.— PROCEEDINGS BETWEEN DECLARATION AND PLEA. I. Op oyer, § 465. Profert, § 465. When oyer is demandable, § 465-6. How made, § 466. In what actions, § 467. Practice on prayer of oyer, § 467-70. Effect of oyer, § 471. II. Op bills op particulars, § 472. Where a bill of particulars is demandable, § 472. Demand of a bill, § 473. Requisites of bill of particulars, § 474. Effect of a bill, § 475. Proceedings on neglect to furnish a bill, § 476 TABLE OF CONTENTS. XVU III. Change of venue, § 477. Constitutional provisions, § 477. "When a matter of right, § 478. When discretionary, § 479. How the venue may be changed, § 480. Proceedings on change of venue, § 481. Costs, § 481. rV. Consolidating actions, § 482. When granted, § 482. When refused, § 483. Motion to consolidate, § 484. Consolidation rule in actions against underwriters, § 485. V. Inteeplbader at common law and under the statute, § 486. At common law, § 487-93. Under the statute, § 494-5. When an interpleader may be granted, § 496. When not allowed, § 497. Practice in interpleader, § 498. VI. Payment of money into court, § 499. When proper, § 499. Statutory provisions, § 500. What is a good tender, § 501. Payment into court, § 502-3. Effect of a payment into court, § 504r-9. Chapter XVI.— OF PLEAS. I. Of dilatory pleas, § 512. Time of filing, §512. Affidavit thereto, § 512. Pleas to the jurisdiction, § 513. Pleas in suspension of the action, § 514. Pleas in abatement of the writ, § 515-6. Pleas in abatement to the person of the plaintiff, § 517. Pleas in abatement to the person of the defendant, § 518, Practice on a plea in abatement, § 519. Judgment, § 520. n. Of peremptory pleas or pleas in bar, § 521. Peremptory pleas in general, § 521. Time and mode of pleading, § 522. Traverse, § 523. Demurrer, § 524. Issue, § 525-7. General issue, § 528. Special issues, § 529-31. Non assumpsit, § 532. Non est factum, nil debet, and covenants performed, § 633^ Nul tiel record, § 534-5. vol. I. — h ypiii TABLE OF CONTENTS. Covenants performed, § 536-7. Nil debet, §538. Payment, &c., § 539-42. Not guilty, non detinet, non cepit, &c., § 543-4. Special matter and set-off, § 545. Defalcation act, § 546. Notice of special matter, § 547-9. What claims may be set off, § 550. Character of the parties, § 551. Practice as to set-off, § 552. Double pleas, § 553. Plea of attachment, § 554. Short pleadings, § 555. Striking off, adding, or altering pleas, § 556-9 When a plea must be supported by affidavit, § 560. Chaptee XVII.— of DISCONTIlSrUANCE AND NOLLE PEOSEQUI. I. Op discontinuance, § 562. When the plaintiff may discontinue, § 562. Payment of costs, § 562. Leave of court, § 563. When not granted, § 563. How obtained, § 564. Effect of, § 565. What is a discontinuance, § 565. II. Nolle peosequi, § 566. Nature of a nolle prosequi, § 566. When a nolle prosequi may be entered, § 567. In actions on contracts, § 568-9. In actions ex delicto, § 570.' Chapter XVIII.— OP THE REPLICATION AND SUBSE- QUENT PLEADINGS. What is a replication, § 571. By way of traverse, § 571. Joinder in issue, § 571. Rejoinder, § 571. Departure in pleading, § 572. Rule to reply, &c., § 573. When want of replication, not error, § 574. Replication de injuria, § 575. Special traverse, § 576. Replication per fraudera, § 576. To plea of attachment, § 576. Want of replication, when cured, § 577. TABLE OF CONTENTS. XIX Chapter XIX.— OF DEMURREES. Nature of a demurrer, § 578. General and special demurrers, § 579. Filing of a demurrer, § 580. Effect of a demurrer, § 581. Judgment on the whole record, § 582. Hearing of a demurrer, where there are issues of fact, § 583. Judgment on demurrer, § 584. Amendment, after demurrer, § 585. Leave to amend, § 586. Costs on demurrer, § 587. Chapter XX.— OF TRIAL BY THS RECORD. Issue of nul tiel record, § 588. How tried, § 588. Requisites of plea of nul tiel record, § 589. When proper, § 589. Replication of nul tiel record, § 590. Bringing in of the record, § 590. How proved, § 591. Effect of variauce, § 591-2. Judgment, § 593-4. Exceptions and error, § 595. Chapter XXL— OF PROCEEDINGS FROM ISSUE TO TRIAL I. Of depositions, § 597. Examination de bene esse, § 597. Rule to take depositions, § 598. Notice of taking depositions, § 699. Service on attorney, § 600. What is a sufficient service, § 601. Sufficiency of the notice, § 602. Waiver of defect of notice, § 603. Certainty requisite as to time and place, § 604-5. Mode of taking a deposition, § 606-10. Return of a deposition, § 611. Filing of a deposition, § 612. When a deposition may be read, § 613-6. Reading of a deposition, § 617. Depositions in a former suit between the parties, § 618. XL Commissions for the examination of witnesses, § 619. Rule for a commission, § 619. Form of a commission, § 620. When a stay of proceedings, § 621. Notice, §622. XX TABLE OF CONTENTS. Execution of a commission, §623. Examination of the witnesess, § 624. Eeturn of a commission, § 625. Filing of exceptions, § 625. III. Of letters kogatoey, § 626. When requisite, § 626. Practice on letters rogatory, § 627. Advantages thereof, § 628. Execution of letters rogatory, § 629. IV. Nonsuit foe not peoceeding to telal, § 630. Trial by proviso, § 630. Rule for trial or non-pros., § 631-2. Nonsuit for not proceeding to trial, § 633-4. "When taken t)ff, § 634. V. Or THE JUEY PE0CE8S, § 635. Of the venire, § 635. Special juries, § 636. Exemption from jury service, § 637-8. Views, § 639-40. VI. Of evidence and ■witnesses, § 641. Evidence in general, § 641. Nature of evidence, § 642. Witnesses, competency, § 643. Effect of the statutes, § 644. Subpoena, § 645. . When to be taken out, § 646. Service of subpoena, § 647. Subpoena duces tecum, § 648. Proceedings against a defaulting witness, § 649. When attachment refused, § 650. Habeas corpus ad testificandum, § 651. VII. Peoduction of documents, § 652. Notice to produce, § 652. Orders for production, § 653. When granted, § 654. Eule to show cause, § 655. Affidavit, § 656. Showing cause against the rule, § 656. Proceedings on the trial, §657. Order for inspection, § 658. Chaptee XXII.— trial AND ITS INCIDENTS. ' I. Op the teial-list, § 659. What causes to be placed on the list, § 659. ^ How the list is to be made up, § 660. Continuance by consent, § 660. Calling of the list, § 660. TABLE OF CONTENTS. 3 Summoning of witnesses, § 660. Cases omitted from the list, § 660. n. Of continuing or leaving open a case on the list, § 661. Matters of discretion, § 661. Absence or engagement of counsel, § 662—4. Absence of witnesses, § 665. Affidavit for continuance, § 666. Absence of a party, § 667. Other grounds of continuance, § 668. Payment of costs, § 669. III. Of pleas puis daeeein coNTiiruANCE, § 670. When to be pleaded, § 670. In abatement, § 671. In bar of the action, § 672. Form of plea, §673. Effect of the plea, § 674. IV. Of impannelling a jury, § 675. Drawing the jury, § 675. Challenges, § 676. Challenges to the array, § 676. Challenges to the polls, § 677. Peremptory challenges, § 677. Challenges for cause, § 678. Challenges to the favor, § 679. Swearing the jury, § 680-1. Talesmen, § 682. V. Of proceedings before the jury, § 683. Opening the case, § 683. Examination of witnesses, § 684. When witnesses are excused from testifying, § 685. Cross-examination, § 686. Striking out evidence, § 687. Order of testimony, § 688. Withdrawing a juror, § 689. Summing up by counsel, § 690. Charging the jury, § 691-8. VI. Bills of exception and filing opinions, § 694. When an exception lies, § 694. When not allowed, § 695. When to be tendered, § 696. Proceedings to compel the sealing of a bill, § 697. Settling of the bill of exceptions, § 698. Form of the bill, § 699. Effect of a bill of exceptions, § 700-1. Filing opinions, § 702-4. VII. Demurrers to evidence and points reserved, § 705. Nature of a demurrer to evidence, § 705. What is admitted thereby, § 706. Xxii TABLE OP CONTENTS. Joinder in demurrer, § 706. Judgment on demurrer, § 706. Points reserved, § 708-9. VIII. Nonsuit and veedict, § 710. Making up the verdict, § 710. What papers may be sent out with the jury, §711. Calculations and statements, § 712. Voluntary nonsuit, § 713. Compulsory nonsuit, § 714-5. Verdict, § 716-8. General verdict, § 719-20. Entering judgment on verdict, § 721. Verdict for defendant for a certain sum, § 722. Interest, lien and jury-fee, § 722. Special verdict, § 723-4. Damages, in general, § 725. On several counts, § 726. Measure of damages, § 727. Double and treble damages, § 728. Chaptee XXIII.— trial BY THE COUET OR A REFEREE I. Teial by the couet, § 729. Constitutional provision, § 729. Proceedings and practice, § 730-1. Eflfect of the finding, § 731. II. Gases stated, § 732. What is a case stated, § 732. What it must contain, § 733. Practice on a case stated, § 734. III. Teial before a eepeeee, § 735. What cases may be referred, § 735. Qualification of the referee, § 735. Proceedings on a reference, § 736. Efiect thereof, § 737. Judgment on the report, § 738. Costs of a reference, § 738. Practice on a reference, § 739. Chaptee XXIV.— NEW TRIAL AND ARREST OF JUDG- MENT. I. Motion foe a new teial oe to take off a nonsuit, § 741. General principles, § 741-3. Motion for a new trial, § 744. Grounds for a new trial, § 745. Misdirection, § 746. Matters respecting the evidence, § 747. Verdict against law, § 748. TABLE OF CONTENTS. XXlll Verdict against evidence, § 749. Matters affecting the jury, § 750-2. Misconduct of a party, § 753. After-discovered evidence, § 754. Must have been discovered since the former trial, § 755. And not attainable by reasonable diligence, § 756. Material and not cumulative, § 757. And ought to produce a different result, § 758. Absence, § 759-61. Want of notice, § 762. Mistake, § 763. Surprise, § 764-5. Excessive or inadequate damages, § 766-7. Practice as to new trials, § 768. II. Aeeest of judgment, § 769. Motion in arrest of judgment, § 769. When judgment will be arrested, § 770. Defects in pleading, § 770. Defects in the verdict, § 770. No cause of action, § 770. Practice, § 771. Costs, § 772. Limitation of new suit, § 772. Chapter XXV.— OF JUDGMENT. I. Entry op judgment, § 773. Definition of judgment, § 773. When judgment may be entered on a verdict, § 774. Entry of judgment by the prothonotary, § 775. Payment of jury-fee, § 775. Judgment-index, § 776. Entry of judgment in court, § 777. Judgment for costs, § 777. Special judgments, § 777. 11. Lien of a judgment, § 778. General principles, § 778, 783. Against equitable interests, § 779, 783. When the lien begins to run, § 780. Priority between judgments, &c., § 781. Purchase-money securities, § 782. Against estate of fraudulent vendee, § 783. On justices' transcripts, § 784. Of special judgments, § 785. Proceeding to determine whether a judgment is a lien, § 786. III. Judgments against decedents, § 787. Entry of judgment, after death of party, § 787. Lien of judgment against lauds of decedent, § 788. Xxiv TABLE OF CONTENTS. Proceedings on death of judgment-debtor, § 789. Actions against executors, § 789. rV. Joint judgments, § 790. Common-law rule, § 790. How altered by statute, § 790. Effect of the statutory provisions, § 791. V. Amendment op judgments, § 792. At common law, § 792. After the end of the term, § 793. Power to modify, on error, § 794-5. VI. Inteeest on judgments, § 796. When recoverable by statute, § 796. Computation of interest, § 796. When interest ceases to run, § 797. Interest on verdict, § 797. VII. Judgment on balance in favoe of the defendant, § 798. Statutory provisions, § 798. When the defendant is entitled to judgment, § 799. VIII. Opening judgments, § 800. General principles, § 800. On whose application, § 801-2. When creditors may apply, § 803-4. Mode of trial, §805. Application for feigned issue, § 806. Effect of fraud, §807. When a judgment may be attacked collaterally, § 808. Practice on a rule to open judgment, § 809 IX. Teansfer of judgments, § 810. When a judgment may be transferred to another county, § 810 Practice on the transfer of a judgment, § 811. Effect of the transfer, § 812. Transfer of an award, § 813. Decree in equity not transferable, § 813. X. Satisfaction op judgments, § 814. When judgment to be satisfied of record, § 814. Who may satisfy a judgment, § 814. What is a sufficient satisftiction, § 815. Effect of satisfaction, § 815. Penalty for not entering satisfaction, § 816. When satisfaction to be entered by the prothonotary, § 817. When the court to order satisfaction, § 817. Power of the court, when a judgment is over ten years old, § 818 When entry of satisfaction may be stricken off, § 819. Chaptee XXVI.— proceedings IN ERROR. I. Jueisdiction in eeeoe, § 820. Authority to review errors, § 820. TABLE OF CONTENTS. XXV When a writ of error lies, § 820. Of the writ of certiorari, § 821. Distinction between the writs, § 822. When the remedy is by appeal, § 823. II. To WHAT JUDGMENT EREOE LIES, § 824. Final judgment, § 824. When error does not lie, § 825. Matters of discretion, § 826. Special statutory regulations, § 827. ni. Who may maintain error, § 827. Party aggrieved, § 828. Release of errors, § 828. Parties in interest, § 829. Several parties, § 830. Several writs of error, § 831. rV. Limitation in error, § 832. Within what time error must be brought, § 832. Practice when sued out too late, § 832. When the judgment void, § 832. Rule to limit error by plaintiff in ejectment, § 838. Limitation of right of appeal, § 833. Powers of the court, § 834. V. Issuing of the writ, § 835. Praecipe for writ of error, § 835. Form of the writ, §836. Special allocatur, § 837. Of the affidavit, §838. VI. Bail in error, § 839. When required, § 839. Amount of security, § 840. Form of recognisance, § 840. By corporations, § 840. Justification of bail, § 841. Eesponsibility of bail in error, § 841. Exception to bail in error, § 842. VII. Supersedeas, § 843. When a writ of error is a supersedeas, § 843. When it supersedes an execution, § 844. Not a bar to an action on the judgment, § 845. VIII. Return of the writ, § 846. How the record is to be made up, § 846. Non-pros, for default, § 846. When the other party may bring up the record, § 846. IX. Amendment and motion to quash, § 847 When the writ is amendable, § 847. Motion to quash, § 848. ' Grounds for quashing the writ, § 848. X. Abatement of the writ, § 848. Xxvi TABLE OF CONTENTS. When a writ of error abates by death, § 849. Or by marriage, § 849. XI. Diminution of eecord, § 850. When a certiorari will be awarded, § 850. Effect of the return, § 850. May be granted after issue joined, § 850. XII. Assignment of eeeoes, § 851. Time for assignment of errors, § 851. How errors are to be assigned, § 851. Sufficiency of assignment of errors, § 852. Errorsof fact, §853-4. Errors in law, § 855-6. Appeal and certiorari, § 857. XIII. Pleadings in eeeoe, § 858. Rule to plead, § 858. Defendant may plead or demur, § 858. In nuUo est erratum, § 858. Special pleas in error, § 859. Pleas to errors in fact, § 860. XIV. Op the heaeing, § 861. Argument-list, § 861. List of short causes, § 862. Hour-list, §863. Paper-books on writ of error, § 864. On case stated," § 864. On appeal, § 865. On certiorari, § 866. History of the case, § 867. Brief of argument, § 867. Defendant's paper-books, § 867. Penalty for default, § 867. Service of paper-books, § 868. XV. Judgment and veniee de novo, § 869. Judgment of affirmance or reversal, § 869. Modification of the judgment, §870. Procedendo, when awarded, § 871. Venire facias de novo, § 872-3. XVI. Remittitue, § 874. Proceedings on a remittitur, § 874. Powers of the court below, § 875. When the record may be recalled, § 875. XVII. Costs in eeeoe and damages, § 876. Statutes giving costs in error, § 876. Do not extend to a reversal, § 877. Damages and expenses, on affirmance, where the writ is sued out for delay, § 878. XVIII. Restitution, § 879. When restitution will be ordered, § 879. TABLE OF CONTENTS. XXVU Form of the writ, § 880. When order to be made, § 880. What will be restored, § 881. Nature of the writ, § 882. Liea, § 882. XIX. Ebeor coeam vobis, § 883. When error coram vobis lies, § 883. Practice and proceedings on the writ, § 884 XX. Eeeoe in ceimtnal cases, § 885. Exceptions in criminal cases, § 885. Eight to writ of error, § 885. When a stay of proceedings, § 885. When special allocatur required, § 885-6. When bail to be given, § 886. Powers and duties of the supreme court, § 887. When special allocatur granted, § 888. Proceedings on affirmance or reversal, § 888. XXL Ceetioeaei to justices, § 889. Nature of the writ, § 889. Exclusive jurisdiction, § 890. Affidavit, § 891. Bail, §892. Limitation, § 893. Service and return, § 894. Assignment of errors, § 895. Grounds of reversal, § 896-8. Hearing, § 899. Judgment, § 900. Execution, § 901. Costs, § 902. Chaptee XXVII.— of costs. I. Op the plaintiff's costs, § 904. Right to costs in general, § 904. Statute of Gloucester, § 905. Costs de incremento, § 906. Costs in scire facias and waste, § 907. In partition, § 908. In foreign attachment, § 909. In feigned issues, § 909. In divorce, § 909. In suits on forfeited recognisances, § 909. In suits for registered taxes, § 909. In lunacy, §909. Judge's certificate in trespass, § 910. In assault and battery, § 911. In trespass quare clausum fregit, § 912. jxviii TABLE OF CONTENTS. In wilful and malicious trespass, § 913. In slander, § 914, Power of the jury over the costs, § 915. Under the statement law, § 916. In case of tender, § 916. Several issues, § 917. Actions within the jurisdiction of a justice, § 918. Jurisdiction of justices, § 919. When costs recoverable without a previous affidavit, § 920. When the demand is reduced by set-off or payment, § 921. II. Of the defendant's costs, § 922. When a defendant recovers costs, § 922. Costs in replevin, § 923. Several defendants, § 924-5. Against equitable plaintiffs, § 926-7. Security for costs, § 928. When security must be given, § 929. When the motion must be made, § 930. Costs of a former suit, § 931. In what cases proceedings will be stayed, § 932. Motion for stay of proceedings, § 932. Tender before suit brought, § 933. Tender after suit brought, § 934. III. Costs on appeal peom a justice's court,' § 935. Act of 1833, § 935. Costs on appeal by the plaintiff, § 936. Appeal by the defendant, § 936 Tender of judgment, § 936. IV. Costs of eefeeence and arbitration, § 937. Voluntary arbitration, § 937. At common law, § 937. Of a pending suit, § 937-8. Compulsory arbitration, § 939. Costs on appeal from an award, § 940. V. Actions by and against particular persons, § 941. Liability of executors and administrators, § 941. When they are liable for costs, § 942. Other representative parties, § 943. Infant plaintiffs and defendants, § 943. VI. Double and treble costs, § 944. When recoverable, § 944r-5. Taxation of double and treble costs, § 945. VII. Taxation and recovery of costs, § 946. Filing of the bill of costs, § 946. Eules of court as to taxation, § 947. Compensatory fees, § 948. Taxation before the prothonotary, § 948. Costs of witnesses, § 949. TABLE OF CONTEKTS. Witnesses attending, in several cases, § 950. Who entitled to witness fees, § 951. Mileage of witnesses, § 952. Wlien costs abide the event, § 952. Expense of documents, &c., § 953. Remedies for costs, § 954. When an action lies, § 955. Fees of officers, § 955. Remedy by set-off, § 956. Chapter XXVIII.— OF EXECUTION. I. Nature, form and properties of execution, § 957. Nature of execution, § 957. When allowable, § 958-9. On justices' transcripts, § 960. Outstanding writs, § 961. Matters subsequent to judgment, § 962. Death of parties, § 963-4. In favor of assignees, § 965. By what court granted, § 966. Different kinds of execution, § .967. Order of executions, § 968-70. Contemporaneous writs, § 971-3. Successive writs, § 974. n. What may be taken in execution, § 975. Personal chattels, § 975. Stocks, § 976. Com and bank-notes, § 977. Chattels bailed, § 978. Goods in the custody of the law, § 978. Goods of a stranger to the writ, § 980. Fraud in law, § 981. Evidence of delivery, § 982. What is not a legal fraud, § 983. Collusive sheriffs' sales, § 984r-5. Actual fraud, § 986-8. Sale after notice of execution, § 989. Goods purchased but not delivered, § 990. Confusion of goods, § 991. Goods of defendant's wife, § 992-3. Partnership goods, § 994. Corporation property, § 995. Fixtures, § 996-9. Growing crops, § 1000. Chattels real, § 1001. Real property, § 1002-3. Lands of a corporation, § 1004. What real interests not liable to execution, § 1005-7. yg-g TABLE OP CONTENTS. • Fraudulent conveyances by defendant, § 1008. Estates of married women, § 1009-10. After-acquired lands, § 1011. Restricted judgments, § 1012. Lands of decedents, § 1013. Lands aliened after judgment, § 1014. Life-estates, § 1015. IIL Exemption, § 1016. Statutory provisions, § 1016. Who entitled to exemption, § 1017. Nature of the action, § 1018. What property may be claimed, § 1019. Claim of exemption, § 1020. When the claim must be made, § 1021. Appraisement, § 1022-3. Eefusal of the exemption, § 1024. Waiver, §1025. Effect of waiver, § 1026. Widow's exemption, § 1027. Who entitled to claim, § 1028. Eight of exemption, § 1029. Of the claim, § 1030. Appraisement, § 1031. . Confirmation, § 1032. rV. Stat of execution, § 1033. By agreement of parties, § 1033-4. By statute, § 1035. Freeholders, § 1036. Special bail, § 1037. Bail for stay of execution, § 1038. Who may enter bail, § 1039. Effect of recognisance, § 1040. V. Issuing and eetuen of the writ, § 1041. When execution may issue, § 1041. Time within which execution must issue, § 1042-3. By whom sued out, § 1044-5. Against whom issued, § 1046-8. Writ and indorsement, § 1049-51. Amount of the execution, § 1052. Power of the court to control execution, § 1053-5. Staying and setting aside execution, § 1056-62. Eelation and effect of the writ, § 1063-5. Of the return, § 1066-7. Amendment of return, § 1068. Effect of return, § 1069-73. Void and voidable process, § 1074r-6. Lost executions, § 1077. Eeversal of judgment, § 1078. TABLE OF CONTENTS. VI. POWEES AND DUTIES OP THE OFFJCEE, § 1079. Of the proper officer, § 1079-80. Distringas, § 1081. Authority of sheriff, § 1082-3. Liability of sheriff, § 1084. Sheriffs' bonds and recognisances, § 1085. Liability to the plaintiff, § 1086. Indemnity, § 1087-90. Abandonment of levy, § 1091. Eefusal to sell, § 1092. Refusal to deliver, § 1093. Non-return of writ, § 1094. On his return, § 1095. Upon receipt of the money, § 1096. On distribution, § 1097. Liability to the defendant, § 1098. Liability to third persons, § 1099-1100. Defences, §1101. Liability of the plaintiff, § 1102-5. Officer's compensation, § 1106. Expenses, § 1107. Illegal fees, § 1108. VII. Execution against goods and chattels, § 1109. Fieri facias, § 1109. How issued, § 1109. Payment to the sheriff, § 1110-1. Of the levy, § 1112-4. Time of levy, § 1115. Mode of levy, § 1116-7. Effect of a levy, § 1118-9. Satisfaction as to debtor, § 1120-2. As to other creditors, § 1123. Custody of the goods, § 1124r-6. Non-removal of the goods, § 1126-8. Interference with the process, § 1129-34. VIII. Inteepladee, § 1135. Sheriff's interpleader act, § 1135. When the sheriff may apply, § 1136. Of the claim, § 1137-8. Return of the rule, § 1139. Rule of court, § 1140. Of the claimant's bond, § 1141. Issue and pleadings, § 1142. Effect of the interpleader, § 1143. Refusal of interpleader, § 1143. IX. Sheeiff's sale of peesonalty, § 1144 Of the sale, § 1144. Mode of sale, §1145-6. Xxxii TABLE OF CONTEBTTH. Notice of sale, § 1145. Of the purchaser, § 1147. Delivery of the goods, § 1148-9. Payment, § 1150. Effect of the sale, §1151. Purchaser's title, § 1152-5. Setting aside sale, § 1156. Eetum of the writ, § 1157-8. Payment by sheriff, § 1159-61. Payment into court, § 1162. Distribution of the fund, § 1163. Wages, §1164-5. Kent, § 1166-8. Between execution-creditors, § 1169. Partnership property, § 1170-2. Surplus, § 1173. Alias fieri facias, § 1174r-5. Venditioni exponas, § 1176-7. X. Execution against choses in action, § 1173. Attachment-execution, §1178. Nature of the process, § 1179. When it lies, § 1180. What may be attached, § 1181. Personal chattels, § 1182. Debts, § 1183-4. Legacies and distributive shares, § 1185. Wages and salaries, § 1186. Ofthe garnishee, §1187. Effect ofthe attachment, § 1188-93. As to the defendant, § 1194. As to strangers, § 1195-6. Practice, § 1197. Of the writ and service, § 1197. Motion to quash, § 1198. Appearance and defence, § 1199, Interrogatories, § 1200. Answers, § 1201. Pleadings, § 1202-3. Trial, § 1204-5. Evidence, § 1206. Verdict, § 1207. Judgment, § 1208-9. Costs and execution, § 1209. Execution against stock, § 1210. When held in the name of the defendant, § 1210-1. When held in the name of another, § 1212-3, XI. Execution against eeal estate, § 1214. Fieri facias, § 1214. TABLE OF CONTENTS. XXXIU Nature and form of the writ, § 1215» Of the levy, § 1216-9. Setting aside a levy, § 1220. Effect of the levy, § 1221. Of the inquisition, § 1222. When dispensed with, § 1223. Waiver of inquisition, § 122-4. Form of waiver, § 1225. How waiver may be shown, § 1226. Holding of the inquisition, § 1227. Proceedings under the inquisition, § 1228-9. Return of the inquisition and fi. fa., § 1230-4. Approval of the condemnation, § 1235. Ofthe extent, §1236. Liberari facias, § 1236-8. Scire facias ad computandum, § 1239. Setting aside an extent, § 1239. Demise to the defendant, § 1240. Notices, §1241. Several liens on the lands, § 1242. Subsequent judgments, § 1243. Failure to pay instalments, § 1244. XII. Sheriff's sale of eeal estate, § 1245. Venditioni exponas, § 1245. Form ofthe writ, §1246. Ofthe proper officer, § 1247. Time of sale, §1248. Notice of sale, §1249-51. Mode of sale, §1252-3. Lumping sales, § 1254-5. Conditions of sale, §1256-7. Notice ofthe sale, § 1258-9. Of the purchaser, § 1260. Parties, § 1260. Lien-creditors, § 1261. Attorneys, § 1262. Trustees, § 1263. Fraud, § 1264. Setting aside the sale, § 1265. Who may apply, § 1266. Paper-books, § 1266. Time of application, §1267. Grounds for setting aside the sale, § 1268. Inadequacy of price, § 1269-70, Misdescription, § 1271. Mistake and surprise, § 1272. Misconduct, § 1273. Irregularity, '§ 1974-7. VOL. I. — C XXxiv TABLE OF COUTBNTS. Defaulting purchqpers, § 1278-9. Keturn of the writ, § 1280-1. XIII. Of sheriffs' deeds, § 1282. What passes by a sheriff's deed, § 1282, Eecitals in the deed, § 1283. Effect as evidence, § 1284. Eecording of the deed, § 1285. Acknowledgment, § 1286. Place of acknowledgment, § 1287. By whom made, § 1288. Time of acknowledgment, § 1289. Mode of acknowledgment, § 1290. How proved, § 1291. Effect of acknowledgment, § 1292-4. Opposing the acknowledgment, § 1295. XIV. Purchase-money and distribution, § 1296. Payment of purchase-money, § 1296-7. Interest, § 1298. Purchase by a lien-creditor, §1299-1305. Distribution by the sheriff, § 1306-8. Payment of money into court, § 1309-11. Distribution by the court, § 1312. Discharge of incumbrances, § 1313-8. Eight to the proceeds, § 1319-22. Mortgages, § 1323. Judgments, § 1324-7. Equitable jurisdiction, § 1328. Order of payment, § 1329. Costs and wages, § 1329. Taxes and municipal claims, § 1330. Ground-rent, § 1331. Mechanics' liens, § 1332. Judgments and mortgages, § 1333-4. Purchase-money judgments, § 1335. Partnership judgments, § 1336. Disposition of the surplus, § 1337-8. Practice before auditors, § 1339. Appointment of auditors, § 1340. Notice of hearing, § 1341. Powers of the auditor, § 1342-3. Auditors' reports, § 1344. Conclusiveness of the report, § 1345. Exceptions and recommitment, §1346. Compensation of auditors, § 1347. Costs of audit, § 1348. Feigned issue, § 1349-50. Error and appeal, § 1351. XV. Title and rights op the furchasek, § 1352. TABLE OF CONTENTS. XSXV Purchaser's title, § 1352. Rule of caveat emptor, § 1353. What will affect the purchaser's title, 1354. Record notice, §1354. Notice by lis pendens, § 1355. Actual notice, § 1356. Constructive notice, § 1357. Effect of irregularities, § 1358-61. Effectof fraud, §1362. Sale under a void judgment, § 1363-4. Sale under an expired judgment, § 1365. What passes by the sale, § 1366-7. Easements, § 1368. Fixtures, § 1369. Growing crops, § 1370. Estate of the purchaser, § 1371-6. Purchaser's relation to a lessee, § 1377-8. Liabilities of the purchaser, § 1379-82. When deemed to hold in trust, § 1383-4. Relation of the purchaser's title, § 1385. Proceedings to obtain possession, § 1386. Notice, § 1387. Petition, § 1388. Warrant to the sheriff, § 1389. Inquisition, § 1390. Defences, § 1391. Damages and costs, § 1392. Record, § 1393. Writ of possession, § 1393. Certiorari, § 1394. Proceedings when the tenant disclaims, § 1395. When he names his grantor or lessor, § 1396. Recognisance, § 1397. Trial of the ejectment, §1398-1406. When the defendant had no notice of the suit, § 1407. XVI. Execution against the person, § 1408. Capias ad satisfaciendum, § 1408. Issuing of the writ, § 1409-11. Form and service of the writ, § 1411. Privilege from arrest, § 1412-3. Escape, § 1414. Sheriff's liability, § 1415. Return, § 1416-7. Satisfaction by payment, § 1418. Discharge from custody, § 1419. Death of defendant, § 1420. Discharge under the insolvent laws, § 1421-4. Xxxvi TABLE OF CONTENTS. Discharge under the bread act, § 1425. Imprisonment under the writ, § 1426-7. XVII. Of certain peculiae kinds of execution, § 1428. Testatum fieri facias, § 1428-31. Execution on a transferred judgment, § 1432. Execution against a tract lying in two counties, § 1433-5. Execution upon restricted judgment, § 1436. Levari facias, § 1437-41. Purchaser's title, § 1442. Distribution of proceeds, § 1443. Contribution between joint defendants, § 1444. Discovery in aid of execution, § 1445-50. Execution against life-estate, § 1451-2. Sequestration of life-estate, § 1453-5. Execution against corporations, § 1456-7. What may be sold on execution, § 1458. Sale of franchises, § 1459-60. Eights of purchasers, § 1461. Attachment-execution, § 1462. Discovery of effects, § 1463. Mandamus execution, § 1464-6. Chaptee XXIX.— of motions AND AUDITA QUERELA, I. Op motions, § 1468. Nature of a motion, § 1468. Motion for rule to show cause, § 1469. Affidavit for motion, § 1469. Service of notice of motion, § 1470. Enlargement of rule, § 1471. How cause to be shown, § 1471. Depositions in support of rule, § 1472. On whom notice to be served, 1473. Summary relief on motion, § 1474. Motion-lists, § 1475. Paper-books, § 1476. Hearing of the motion, § 1477-8. Kules of course, § 1479. n. Audita queeela, § 1480. Nature of the writ, § 1480. Advantages of this proceeding, § 1481-2. When it lies, § 1483. Practice, § 1483. COMMON LAW PEACTICE PENNSYLVANIA. CHAPTER I. Of the Courts. I. Constitutional pkotisions, ? 1. Diversities of courts, J 2. Common-lflW pleading and practice, ?3. II. Organization of the supreme OOUKT, § 4. Number of judges and tenures of of- fice, ^ 4. Power to arrange districts and re- turn-days, § 5. Division of the state into districts. Return-days, J 7-10. III. Jurisdiction op the supreme COURT, § 11-13. Power to devise new writs, &c., J 14. IV. Common pleas op Philadelphia, §15- History of the court, ? 15. Judicial districts, ^ 16. Organization of the several courts, ?17. Distribution of business, ? 18-20. v. Jurisdiction op the common pleas, ?21. Original jurisdiction, §21. Appellate jurisdiction, § 22—4. Certiorari, § 25-7. Equity jurisdiction, J 28. VI. Administration op equity under THE FORMS OF THE COMMON LAW, I 29. Equitable actions, § 29-30. Assumpsit, § 31-3. VOL.. I. — 1 Covenant, § 34. Replevin, § 35.' Ejectment, § 36-7. Partition, § 38. Excuse for profert, § 39. Deceased joint debtors, § 40. Equitable plaintiffs, §41. Equitable defences, § 42-5. Set-off, 1 46-7. Equitable ejectments, § 48-50. Equitable pleas, § 51-2. Conditional verdicts, § 53-6. Judgments, § 57-60. Audita querela, § 61. Subrogation, § 62-3. VII. Courts op equitable jurisdic- tion, § 64. Principles of equity, | 64. History of equity in this state, § 65-6. Orphans' courts, § 67. Equity jm-isdiction prior to 1790, § 68-9. Subsequent legislation, § 70-3. Report of the revisers, | 74. Exclusive jurisdiction of chancery, I 75-83. Assistant jurisdiction of chancery, §84. Concurrent jmisdiction of chancery, I 85-8. Present equity jurisdiction, | 89. Additional jurisdiction in PMladel- phia, § 90. General principles of equity.juris- diction, § 91-5. 2 OF THE COURTS. Account §96-9. "VIII. General powers of the ooukts, Specific pei-fomance, § 100-9. ? 144. Iiiiimction, § 1 10-18. To issue process, ? 144. Discovery, ? 1 19-24. To make rules of practice, i 145. Election, \ 125. To punish contempts, § 146-9. Fraud, §126. IX. Special codets, § 150-2. Pleading and practice, 127-35. Appeals, § 136-42. Lion of decree for payment of money, § 143. I. Constitutional provisions. § 1. By the Constitution of Pennsylvania,' the judicial power is vested in a Supreme Court, in Courts of Common Pleas, Courts of Oyer and Terminer and General Jail Delivery ,2 Courts of Quarter Sessions of the Peace, Orphans' Courts, Magistrates' Courts, and in such other courts as the general assembly may from time to time establish. But the legisla- ture is prohibited from creating other courts, to exercise the powers thereby vested in the judges of the courts of common pleas and orphans' courts;^ and from establishing any court of original jurisdiction, to be presided over by one or more of the judges of the supreme court.* The Constitution further provides that all laws relating to courts shall be general, and of uniform operation ; and that the organization, jurisdic- tion and powers of .all courts of the same class or grade, so far as regu- lated by law, and the force and efiect of the process and judgments of such courts, shall be uniform.^ But this provision has been held not to repeal prior special laws.^ § 2. The present chapter will present a view of the organization and jurisdiction of the supreme court, and of the court of common pleas for the city and county of Philadelphia. If it should be asked, why we thus restrict the consideration of the subject, instead of endeavoring to pro- duce a work which should comprehend the course of practice in the courts of the other counties of the commonwealth, we reply, in the first place, that a great portion of the following pages will be found applicable to those courts ; and in the next place, that we have in this state forty- four separate judicial districts, presided over by judges entirely inde- pendent of each other, and to a considerable extent of the supreme court. This necessarily tends to create diversities of practice, and to interfere with that uniformity which should characterize the administration of justice throughout the commonwealth. The local practice, too, of the different courts, is a circumstance not to be lost sight of. The habits and arrangements of the courts in the cities are widely different from I Art. v. ? 1. ' Ibid. § 26. The legislature cannot, bee Turner v. Commonwealth, 86 under pretext of olassiflcation, pass a ^T a' fKrh na mi. . o. i.t , ^^"^ "^'"'''^ ""'' ^^^^ ^° effect, except Art. V . S 26. The act 24 March m a smgle county of the state. Com- 1877, P. L. 47, creates Recorders' monwealth v. Patton, 7 W. N. C 6 courts for the cities of Harrisburg, It was time that a check should' be Lancaster, Wilkesbarre, Krie, Wil- given to such mischievous special le- liamsport, Allentown, Altoona, Chester gislation, under the thin diseuise of ■md litusville. ^ticEre .? as to its con- classification. Btitirtionality _ e Bright v. Oak Dale Coal and Mia- ^^^- V. J -I. ing Co., 31 Leg. Int. 141. ORGANIZATION OP THE SUPREME COURT. 3 those of the rural districts, and the latter often widely differ from each other in those respects. The system of process and pleadings which might suit very well the convenience of the city courts, might be found to work very badly in the country ; and that which was adapted to a thickly-settled country, might be very inconvenient to a sparsely- settled one. § 3. The courts of Pennsylvania have retained the common-law sys- tem of pleading and practice. This system, matured by the wisdom of ages, and founded on principles of truth and sound reason, has been abolished in many of our states, and, in its stead, they have adopted Codes, which, by attempting to establish a single form of action, have not only destroyed the certainty and simplicity of all pleadings, but have led to more litigation than could possibly have arisen under the well-established system of the common law. The attempt has been found to be even beyond the power of legislative omnipotence.' The Code has not abolished the distinction between legal and equitable remedies ; nor has it affected the fundamental principles which govern the different forms of action. That which is, in reality, an action of trover is as distinct from one of replevin, under the Code, so far as respects the principles of the action, as at common law. The difficulties which have sometimes arisen from a mistake in the form of action, have been reme- died, in this state, by a simple enactment, which authorizes the courts, in a proper case, to allow an amendment of the form of action, in further- ance of the interests of justice.^ Thus we have all the advantages of a Code, without its great want of principle.* n. Organization of the supreme court. § 4. The Constitution provides^ that the supreme court shall consist of seven judges, who shall be elected by the qualified electors of the state at large. They shall hold their offices for the term of twenty-one years, if they so long behave themselves well, but shall not be again eligible. The judge whose commission shall first expire shall be chief justice, and thereafter, each judge whose commission shall first expire, shall, in turn, be chief justice. ' MoFaul V. Ramsey, 20 How. 525. result is, an utter want of precision and See the remarks of Mr. Justice Miller, certainty. It is impossible for any law- of the supreme court of the United yer to advise as to the probable view States, in reference to the Code ; 13 that may be taken of such a case by an Western Jurist 55. The learned judse appellate court, and, therefore, every attributes the number of cases of prao- one is tempted to try his luck and take tice arising under the Code to the bos- the chance. The law is a science, not tility of the common-law practitioners an art. to that system, and points, with much '' Act 10 May 1871, P. L. 265 ; Purd. apparent pride, to its workings in the 70. Western states. But there is another " A practitioner not educated under side to this question : — it cannot be ex- the common-law system of Pleading pected that gentlemen, who have not and Practice, has great difficulty in ap- been educated in the principles of the plying its principles to a suit under the common law, should feel much conti- Code For the Law of Pleading under dence in raising such points ; and as a the Code, the student is referred to the consequence, every kind of pleailing is late work of Judge Bliss, of Missouri, tolerated, whether good or bad, and the * Art. V. ^ 2. OF THE COUETS. § 5. The act of 1834 divided the state into four districts, for the pur- pose of holding the supreme court — the Eastern, Northern, Middle and "Western districts ; but, by the act of 5 May 1876,' the court is author- ized, in its discretion, to change and transfer from one district to another, any county or counties of the commonwealth ; and, for the purpose of expediting the disposal of the business of the county or counties so trans- ferred and changed, to change the return-days of the terms of the several districts in the commonwealth ; to change, increase or diminish the num- ber of weeks of the respective terms in any district ; and to make all the orders, rules and decrees necessary to carry these provisions into effect. § 6. Under the authority thus conferred, the court has made the fol- lowing re-arrangemeut of the several districts, by which the Northern district is virtually abolished. The Eastern district is composed of the counties of — Berks, Lehigh, Pike, Bradford,. Luzerne, Schuylkill, Bucks, Monroe, Susquehanna, Carbon, Montgomery, Wayne, and Chester, Northampton, Wyoming. Delaware, Philadelphia, The Middle district, of the counties of — ' Montour, Northumberland, Perry, Potter, Snyder, Sullivan, Tioga, Union, Warren, York. and Adams, Elk, Bedford, Franklin, Blair, Fulton, Cameron, Huntingdon, Centre, Juniata, Clearfield, Lancaster, Clinton, Lebanon, Columbia, Lycoming, Cumberland, McKean, Dauphin, Mifflin, And the Western district, of the counties of— Allegheny, Erie, Armstrong, Fayette, Beaver, Forest, Butler, Greene, Cambria, Indiana, Clarion, Jefferson, Crawford, § 7. The supreme court holds three terms annually : one, at Phila- delphia, for the Eastern district, on the first Monday of January one at Harrisburg, for the Middle district, on the first Monday of Mav'- and one at Pittsburgh, for the Western district, on the third Mondky of October. The following return-days have been established, in pursu- ance of the act of 1876. There shall be two special return-days for the city and county of Philadelphia, for all writs, process and other pro^ 'P. L. 115: Purd. 2079. Lawrence, Mercer, Somerset, Venango, Washington, and Westmoreland. OEGANIZATION OP THE SUPREME (JOUKT. 5 ceedings issued or begun on or after the last Monday of July in every year, that is to say : the first Monday of January in every year, for writs of error, process and proceedings issued or commenced before the first Monday of December next preceding ; and the first Monday of February next following, for writs of error and other process and proceedings issued and commenced on and after the first Monday of December in every year ; to which return-days respectively all writs of error, process and other proceedings in and for the said city and county, issued or begun on or after the said first Monday of July in every year, shall be returnable ; and the first eight weeks of the term are assigned for the hearing of all cases in and for the said city and county of Phila- delphia. The last Monday in July is also a day for the teste and return of all writs in the Eastern district, in the same manner as at the regular terms of the court.' § 8. For the other counties of the commonwealth the return-days are as follows, viz. : — In the Eastern district, the ninth Monday of the term for the counties of Berks, Bucks and Lehigh ; the tenth Monday of the term for the counties of Bradford and Luzerne ; the eleventh Monday of the term for the counties of Schuylkill, Susquehanna and Wyoming ; the twelfth Monday of the term for the counties of Chester, Delaware and Montgomery ; and the thirteenth Monday of the term for the counties of Northampton, Wayne, Monroe, Pike and Carbon. To which return-days all writs of error, process and other proceedings in and for the said several counties in the Eastern district are to be respectively returnable ; and the causes from the said several counties are heard in the same week to which their writs of error and other process are return- able respectively. § 9. In the Middle district the term commences on the first Monday of May, and the return-days are as follows, viz. : — The first Monday of the term for the counties of Lancaster and York ; the second Monday of the term for the counties of Cumberland, Perry, Fulton and Bedford ; the third Monday of the term for the counties of Dauphin, Lebanon and Adams ; the fourth Monday of the term for the counties of Huntingdon, Blair, Juniata and Mifilin ; the fifth Monday of the term for the counties of Clearfield, Lycoming, Warren and Elk ; the sixth Monday of the term for the counties of Northumberland, Montour, Columbia and Clin- ton ; the seventh Monday of the term for the counties of Franklin, Centre, Union and Snyder ; and the eighth Monday of the term for the counties of Tioga, Potter, McKean, Cameron and Sullivan. To these return-days all process is to be made returnable; and the causes are heard in the same week to which their process is respectively returnable. § 10. In the Western district the following return-days have been fixed : — The first Monday of the term for the county of Allegheny ; the third Monday of the term for the counties of Erie, Venango, Clarion, Jefierson and Forest; the fourth Monday of the term for the counties of Westmoreland, Armstrong, Indiana, Cambria and Somerset ; the > Act 14 April 1834, ^ 13, P. L. 342 ; Purd. 1349. 6 OF THE COURTS. seventh Monday of the term for the counties of Washington, Payette, Greene, Beaver and Butler ; and the eighth Monday of the term for the counties of Mercer, Crawfotd and Lawrence. To which returfl-days all process is to be made returnable ; and the causes from the said several counties (except the county of Allegheny) are heard in the same week to which their process is returnable. The causes from the county of Allegheny are heard in the first, second, fifth and sixth weeks of the term. m. Jurisdiction of tlie supreme court. § 11. By the act of 22 May 1722,' a court of record was established, styled the Supreme Court of Pennsylvania. The 13th section of this act conferred upon the judges power " to hear and determine all causes, matters and things cognisable in the said court ; and also to hear and determine all and all manner of pleas, plaints and causes which shall be removed or brought there from the respective general quarter sessions of the peace, and courts of common pleas, or from any other court of this province, by virtue of any of the said writs ; and to examine and correct all and all manner of errors of the justices and magistrates of this province, in their judgments, process and proceedings in the said courts, as well in all pleas of the crown, as in all pleas, real, personal and mixed ; and thereupon to reverse or affirm the said j udgments, as the law doth or shall direct ; and also to examine, correct and punish the contempts, omissions and neglects, favors, corruptions and defaults of all or any of the justices of the peace, sheriffs, coroners, clerks and other officers, within the respective counties ; and also shall award process for levying as well of such fines, forfeitures and amerciaments, as shall be estreated into the said supreme court, as of the fines, forfeitures' and amerciaments which shall be sent, taxed and set there, and not paid to the uses they are or shall be appropriated ; and generally shall minister justice to all persons, and exercise the jurisdiction and powers hereby granted, concerning all and singular the premises, according to law, as fully and amply, to all intents and purposes whatsoever, as the justices of the court of king's bench, common pleas, and exchequer, at West- minster, or any of them, can or may do." The court still possesses the^e great powers, except so far as they have been limited by subsequent con- stitutional and statutory provisions. It has frequently been determined that the appellate jurisdiction of the supreme court cannot be taken away except by express terms or irresistible implication.^ ' §12. The act of 18363 declares that the supreme court shall have power to hear and determine causes which shall be brought or removed there from any other court of the commonwealth, to examine and correct all errors of justices and courts, as well in criminal as in civil pleas and to reverse, modify or affirm judgments and decrees; and generally, to MSm.LlSl, 140; Purd. 1349, n. 366. Hummel's Case 9 Watts 4^0 J^Burginhofin v. Martin, 3 Yeates Commonwealth «. Betts 76 Penn S^' 479. Overseers v. Smith, 2 S. & R 465 ' -^^^nn. &t. 363. Moore «. Albright, 4 Ibid. 234 ' P. L ■ 784 • Puvd T?4q Commonwealth .. Beaumont, 4 Rawle ' ^" JTJEISDICTION OF THE SUPEEHE COURT. / minister justice to all persons, fully and amply, under the constitution and laws of the commonwealth ; and to issue execution and other process as may be required. The court has inherent power to revise the pro- ceedings of all inferior jurisdictions, and to correct errors in their pro- ceedings.^ § 13. The constitution of 1874^ provides that the jurisdiction of the supreme court shall extend over the state ;•' and the judges thereof shall, by virtue of their offices,* be justices of oyer and terminer and general jail delivery in the several counties ; they shall have original jurisdic- tion in cases of injunction, when a corporation is a party defendant f of habeas corpus, of mayidamus to courts of inferior jurisdiction," and of quo warranto to all officers whose jurisdiction extends over the state; but shall not exercise any other original jurisdiction ; they shall have appel- late jurisdiction, by appeal, certiorari or writ of error, in all cases, as is now or may hereafter be provided by law. But no duties shall be imposed by law upon the supreme court, or any of the judges thereof, except such as are judicial ; nor shall any of the judges thereof exercise any power of appointment, except as therein provided. § 14. The act of 1836 provides that it shall be the duty of the supreme court, at their sessions in banc, from time to time, to devise and establish, by rule of court, such new writs and forms of proceedings, as in their opinion shall be necessary or convenient to the full, direct and uniform execution of the powers and jurisdiction possessed by the said court, or by the courts of common pleas or orphans' courts ; provided, that they shall not enlarge, abridge or alter the jurisdiction of any of the courts, or impair the right of trial by jury, or dispense with or supply the use of any form of proceeding which shall be made necessary by statute. Whenever the court shall devise and establish any new writ or form, or make any rule or order relative thereto, they shall cause notice thereof to be given to the courts, or to the president judges of the courts, for which such writ, form or rule shall be made or appointed ; and also, to ' Daniels v. Commonwealth, 7 Penn. Perm. St. 338. The supreme court St. 371. Torrence v. Commonwealth, will not entertain an injunction bill 9 Ibid. 184. Carpenter's Case, 14 against a corporation, unless special Ibid. 486. ground is laid. Buck Mountain Coal ^ Art. V. 5 3. Co. V. Lehigh Coal and Navigation ' The constitution invests the su- Co., 2 W. N. C. 241. Nor where the preme court with jurisdiction co-ex- prayer for an injunction is merely sub- tensive with the state, and the legisla- sidiary, and not the main object of the ture has no power to limit it, nor to suit. - McClure v. People's Freight prohibit the court from issuing its pro- Railway Co., 32 Leg. Int. 448. Fargo cess, at any time, to all parts of the v. Oil Creek and Allegheny Railroad state; the division of the state into Co., 1 AV. N. C. 611. This provision districts is merely for the convenient of the constitution does not affect the transaction of business. Common- concurrent jurisdiction of the common wealth V. Allegheny County, 37 Penn. pleas. McGeorge v. Hancock Steel St. 237. Hazen ». Commonwealth, 23 and Iron .Co., 32 Leg. Int. 372. Ibid. 355. ^ It has no original jurisdiction, by * See Respublioa v. Cobbet, 3 Yeatea mandamus, except when issued to a 9g. court of inferior jurisdiction. Com- ' This includes municipal corpora- monwealth v. Hartranft, 77 Penn. St. tions. Wheeler v. Philadelphia, 77 154. 8 OF THE COUETS. the governor of the commonwealth, for the information of the legislature at their next meeting ; and the courts, or the president judges of the courts, to which any such rule shall be made known, shall cause the same to be published in open court, and to be recorded with the rules of court ; aud after the expiration of three months from the recording of such rule, the same shall be obligatory and in full effect.^ IV. Court of common pleas of Philadelphia. § 15. In the early times of the Province of Pennsylvania, a civil and criminal jurisdiction was vested in the county courts ; they were founded on a plan similar to that of the county courts of England in their pris- tine greatness. In the year 1722, these jurisdictions were separated; and power was only given to this court to hear and determine all civil pleas and causes, personal, real and mixed. The criminal jurisdiction was, at the same time, transferred to a court, then instituted, and styled the General Quarter Sessions of the Peace and Gaol Delivery. At present, a court of common pleas is established for each county, under the state constitution. The state is divided into judicial districts, in number forty-four, and for each of these districts a president judge, learned in the law, is elected by the qualified electors of the district over which he presides, whose term of office is ten years. Not more than four counties can, by the provisions of the constitution, be included in any one j)idicial district.^ § 16. Whenever a county shall contain forty thousand inhabitants, it shall constitute a separate judicial district, aud shall elect one judge learned in the law ; and the general assembly shall provide for additional judges, as the business of the said district may require.^ Counties con- taining a population less than is sufficient to constitute separate districts, shall be formed into convenient single districts, or, if necessary, may be attached to contiguous districts, as the general assembly may provide. The office of associate judge, not learned in the law, is abolished in counties forming separate districts.^ Where a new county is erected 'by the division of an old one, which was a separate judicial district, it is' the duty of the judge of the court of common pleas of such county to organ- ize the courts of the new county thus erected, though it contain more than forty thousand inhabitants.' § 17. In the counties of Philadelphia and Allegheny, all the jurisdic- tion and powers theretofore vested in the district courts and courts of common pleas are, by the constitution, subject to such changes as thereby made, or which shall be made by law, in Philadelphia, vested in four preme court has power to abrogate any 54 ^'""'"O'^^ealth, 86 Penn. St. of these rules, except through the same « Art V 3 .5 Whties by which they were estab- ^ Comrnon'w;alth «. Harding, 6 W. ''Art. v.? 4. COURT OF COMMON PLEAS OF PHILADELPHIA. 9 and in Allegheny, in two, distinct and separate courts" of equal and CO ordinate jurisdiction, composed of three judges each. The said courts, in Philadelphia, are designated respectively as the court of common pleas No. 1, No. 2, No. 3, and No. 4 ; and in Allegheny, as the court of common pleas No. 1 and No. 2. But the number of said courts may be, by law, increased, from time to time ; and shall be, in like manner, designated by successive numbers. The number of judges in any of said courts, or in any county where an additional court may be authorized by law, may be increased, from time to time ; and whenever such increase shall amount in the whole to three, such three judges shall compose a distinct and separate court, which shall be numbered as aforesaid.^ § 18. In Philadelphia, all suits shall be instituted in the said courts of common pleas, without designating the number of said court ; and the several courts shall distribute and apportion the business among them, in such manner as shall be prescribed by rules of court ; and each court, to which any suit shall be thus assigned, shall have exclusive jurisdiction thereof, subject to change of venue, as shall be provided by law. In Allegheny, each court shall have exclusive jurisdiction of all proceedings at law and in equity, commenced therein, subject to change of venue, as aforesaid.^ § 19. Under these provisions of the constitution, the courts of com- mon pleas of Philadelphia county have made the following distribution of the business of the said courts. All actions at law, proceedings in equity, and all other proceedings of every nature and kind whatsoever, hereafter originated in the courts of common pleas, shall be distributed, apportioned and assigned by the prothonotary to the several courts of common pleas, in the following manner : The first 1000 cases to the court of common pleas No. 1 ; the second 1000 cases to the court of common pleas No. 2 ; the third 1000 cases to the court of common pleas No. 3 ; the fourth 1000 cases to the court of common pleas No. 4 ; the fifth 1000 cases to the court of common pleas No. 1 ; and so on alter- nately, the several cases and proceedings being assigned to each court in succession, in the manner aforesaid ; and the distribution, apportion- ment and assignment, so made by the prothonotary in obedience to this rule, shall be conclusive upon all parties to such actions or proceedings ; and the court to which the said cases shall be respectively distributed and assigned by the prothonotary, shall, as provided by the constitution, have exclusive jurisdiction thereof* The prothonotary shall mark upon each prcBoipe, or other original application or paper which may come into his oiEce, the court to which said suit or proceeding is assigned, and shall enter the same in the proper docket of the court. The constitu- tion provides that each court shall have its separate dockets, except the judgment docket, which shall contain the judgments and liens of all the said courts, as is or may be directed by law.* ' They do not take judicial notice ' Ibid, of each other's records. Seltzer v. * See French v. Railroad Co., 36 Leg. Greenwald, 2 W. N. C. 395, Int. 302. ■■'ArtV. ?6. ' Art. V. ?7. 10 OF THE COURTS. § 20. The foregoing order of court extends only to writs or process whereby actions or other proceedings are originated. Alias and pluries writs, writs of execution, and ot scire facias to revive judgment, writs of scire facias on mechanics' claims, and against garnishees, and all other writs or process of every kind, which are founded upon and ancillary to some other action, judgment, claim or proceeding (by order of the courts), shall not be regarded in the distribution and apportionment of business; but shall be issued from the court in which such original action, judgment, claim or proceeding may be ; and shall be entitled as of the same term and number as said original.' By a subsequent rule, this is extended to all bills in equity, whose object is the enjoining of pending proceedings at law, or in equity, in any of the courts of the said county ; which are to be assigned to the court in which such proceedings in law or equity shall be pending. The prothonotary is required to keep a separate general Appearance Docket for each court, wherein shall be entered all actions and proceedings of every kind assigned to the said courts respectively, except mechanics' liens and proceedings thereon. All subsequent entries relating to any rule, and all ancillary proceedings, by execution or otherwise, are to be docketed in the same docket, and entitled in the same term and number as the original action or proceeding whereon they are founded. Mechauics' claims are to be kept in the Mechanics' Lien Docket of the proper court f and all pro- ceedings relative thereto entered in the same docket, and entitled as of the same term and number. V. Jurisdiction of the common pleas. § 21. Original jurisdiction. By the act of 16 June 1836, § 12,' this court has jurisdiction of all pleas, actions, and suits and causes civil, personal, real and mixed, according to the constitution and laws of this commonwealth. Its original jurisdiction is without limit as to amount ; but, by the act of 1810," if any person shall commence, sue or prosecute any suit, for any debt or demand made cognisable, by that act, before a justice's court, in any other manner than is thereby'directed, and shall obtain a verdict or judgment therein, which, without costs of suit, shall not amount to more than one hundred dollars, not having caused an oath or affirmation to be made, before the obtaining of the writ, and having filed the same in the prothonotary 's office, that he, she or they so making oath or affirmation, did truly believe the debt due, or damages sustained, exceeded the sum of one hundred dollars, he, she or they so prosecuting shall not recover costs in such suit. In actions not within the jurisdic- tion of a justice, the plaintifi; in general, is entitled to costs, without regard to the amount. Justices have no jurisdiction in ejectment- replevm ; slander ; actions on real contracts, where the title to lands may come m question ; actions for breach of promise of marriage • tres- pass, where the defendant makes affidavit that .the title to lands will ' This includes feigned issues under Purd. 1025 the sheriff's interpleader act, and at- « P. L 787- Purd 233 tachments m execution. » 5 Sm L 17-i • Pn^H «48 » Act 16 June 1836, ? 3, P. L. 696 : ^ ^°'- ^' ^ ' - . P">-d- 848. JURISDICTION OF THE COMMON PLEAS. 11 come in question ; assault and battery ; false imprisonment ; and actions for consequential damages, recoverable only by special action on the case. In these cases, no previous affidavit is requisite.^ § 22. Appellate jurisdiction. This court has jurisdiction by appeal from the judgment of a justice's court, -where the amount in controversy exceeds five dollars and thirty-three cents (forty shillings), and the jus- tice has decided against either party to that amount ; or where referees appointed by the justice have decided against either party to the extent of twenty dollars.^ It is the amount of the demand or sum in contro- versy, and not the amount of the judgment, that regulates the right of appeal.^ Thus, if the defendant have a hoiiA fide cross-demand, exceed- ing five dollars and thirty-three cents, and the decision of the justice be against his set-ofi", he is entitled to his appeal.* So, if there be a decision against a portion of the plaintiff''s claim to an extent exceeding five dollars and thirty-three cents, he is entitled to an appeal.' And, by act of 20 March 1845, the defendant is eutitled to an appeal, whenever such right exists in favor of the plaintiff".* § 23. To confer jurisdiction on the common pleas, the appeal must be» entered before the justice, within twenty days after judgment rendered ; in computing which, the day of judgment is to be excluded f and if the twentieth day fall on Sunday, the appeal may be entered on the next day.* In Philadelphia, the defendant, or some one acting in his behalf, having knowledge of the facts of the case, must file with the justice an affidavit, setting forth that the appeal taken is not for the purpose of delay, but that, if the proceedings appealed from are not removed, he, or the defendant, will be required to pay more money, or receive less, than is justly due ; which affidavit must be attached to the justice's transcript, and filed in the court to which the appeal is taken.' The appellant is also required to give bail absolute, in double the probable amouut of costs accrued and likely to accrue, with one or more sufficient sureties, conditioned for the payment of all costs accrued or that may be legally recovered in such case against the appellant.'" Corporations (municipal corporations excepted) must give bail absolute for the payment of the debt, interest and costs, on the affirmance of the judgment." To perfect the appeal, a transcript thereof must be filed in the court of common ' For the cases within the jurisdic- peal collected in 2 Bright. Dig. ]525. tion of a justice's court, consult 2 ' Browne v. Browne, 3 S. & R. 496 Briffht. Dio-. 1510-17. Cromelien v. Brink, 29 Penu. St. 525 ^ Act 20 March 1810, § 3 ; 5 Sm. L. « Goswiler's Estate, 3 P. & W. 201 162 • Purd. 853. Harker v. Addis, 4 Penn. St. 615. ' Downey v. Ferry, 2 Watts 304. « Act 27 March 1865, P. L. 794 Stewart v. Keemle, 4 S. & R. 72. Bon- Purd. 862. ham V. Santee, 1 Luz. L. Reg. 21. "> Act 20 March 1845, P. L. 188 * Klinginsmith v. Nole, 3 P. & W. Purd. 860. 120. Soop V. Coats, 12 S. & R. 388. " Act 15 March 1847, P. L. 361 : McGonnegal v. Hopper, 1 Ash. 195. Purd. 860. This applies to appeals 5 Mack u. Thayre, 2 Phila. 291. from justices' courts. Germantown » Prestly v. Ross, 11 Penn. St. 410. and Perkiomen Turnpike Co. v. Na- And see the oases on the right of ap- glee, 9 S. & B. 227. 12 OF THE COUETS. pleas, on or before the next monthly return-day after the entry of the appeal before the justice.' I 24. On appeal from a justice, the proceedings are de novo, as to the declaration, pleadings and evidence ; but the cause of action must con- tinue the same.^ It is enough, however, that the cause of action appears to be substantially the same as before the justice, though somewhat dif- ferently stated.^ But the common pleas, on an appeal, has no jurisdic- tion of a set-off, beyond the jurisdiction of the justice.^ If the justice have not jurisdiction, the common pleas has none on appeal.' Thus, if a justice give judgment for a certain sum and interest, in the whole above his jurisdietion,*and the defendant appeal to the common pleas, although he there plead the general issue and go to, trial, judgment will be arrested.' The declaration, however, need not show the claim was within the justice's jurisdiction ; it is enough, that it appears on the - trial.' The court has also jurisdiction, on appeal from the judgments of justices, in landlord and tenant proceedings, under the acts of 3 April 18308 and 14 December 1863.^ § 25. Certiorari. The constitution provides'" that the judges of the courts of common pleas, within their respective counties, shall have power to issue writs of certiorari to justices of the peace and other infe- rior courts not of record, and to cause their proceedings to be brought before them, and right and justice to be done. And by the provisions of the act of 1810," no writ of certiorari issued by or out of the supreme court to any justice of the peace,'^ in any civil suit or action,'^ shall be available to remove the proceedings had before a justice of the peace. The writ of certiorari may issue from the common pleas whenever a new jurisdiction is conferred upon magistrates, and the proceeding is sum- mary." Otherwise, where a statute provides that the only remedy of the party aggrieved shall be by appeal." The defendant cannot take both / Act 1 May 1861, P. L. 535; Purd. ^ Wright v. Guy, 10 S. & R 227 802. Smgerfield U.George, 30 Leg. Int. Collins «. Collins, 37 Penn. St 388 ?;^ w^^ "■ McCormick, 1 W. N. C. « Moore v. Wait, 1 Binn. 219 134. When an appeal is entered on a ' Hackmant). Flory, 16 Penn St 196 return-day, it need not be filed until ' P. L. 187- Purd 884 the succeeding one. D wire «. Weber, 1 ° P. L. 1125 • Purd 882 W. N. C. 64. Within the twenty days i" Art. V. §10 the party may withdraw his appeal, " 5 Sra. L. 172 ■ Purd 607 and enter bail de novo, though, a re- " This does not apply to' the pro- sTa:;e7l2Vnn TseS M°*'\" r^i»g? "^ *"° J"^^'''^ -de' 'th^ otaeger, 1^ i^enn St. 363. Murphy landlord and tenant act. Lenox v V. Roberts, 1 W. N. C. 232. The ap- McCall, 3 S. & R 95 ■^ Owen ;.. Shelhamer, 3 Binn 45 tm^ nq"^n.T''- • ^"^T". "" ^^^^' Stehley v. Harp, 5 S. &. R. 544 Cald tflt' III °*^''^'«?- 'f t^e suit be well t,. Thompson, 1 Rawle 370 « *^^ °^*"'-« "^ ^ criminal prosecu- Schlect«.ResteL,3AVl/c95 Penn S^Tfir'^'"''''"' "• ^«"^' "^^ ^;^Bechtol . Cobaugh, 10 S. S. R. ''"Vf^f Philadelphia and Lan- < Walden . Beri^, 48 Penn. St. 456. "'' mK°&t?ad,\^'.Tc'.^l87. JURISDICTION OF THE COMMON PLEAS. 13 an appeal and a certiorari} But the entry of an ineffectual appeal is no bar to a certiorari, within the time prescribed by law.^ § 26. A certiorari does not lie to remove a justice's judgment, under the act of 1810, unless sued out within twenty days from the rendition thereof, unless it be apparent on the face of the record that there was no jurisdiction of the subject-matter,^ or that the summons was not served in the manner directed by statute, and there was no appearance by the defendant.* If, however, the defendant had notice of the decision, he must take his certiorari, within twenty days after such notice.' The applicant for a writ of certiorari must also make affidavit that it is not for the purpose of delay, but that, in his opinion, the cause of action was not cognisable before a justice, or that the proceedings proposed to be removed, are, to the best of his knowledge, unjust and illegal, and if not removed, will oblige him to pay more money, or to receive less from his opponent, than is justly due. The oath may be administered by the prothonotary,' and a copy of it must be filed in his office. The affidavit may be made by the party's agent or attorney f or, in case of a corpo- ration, by the president or chief officer thereof, or, in his absence, by the cashier, treasurer or secretary.' In order to obtain a certiorari, in landlord and tenant proceedings, under the act of 1830, such affidavit is not requisite.' That it may operate as a supersedeas, it is also neces- sary that bail be given, conditioned for the payment of the debt, dam- ages and costs, as in case of a writ of error ; which may be taken by the prothonotary.'" The writ may issue without a special allocatur}^ § 27. A certiorari lies to remove the proceedings in landlord and ten- ant cases ; and, in Philadelphia, such writ is a supersedeas, if sued out within ten days after judgment, the applicant making oath that it is not for the purpose of delay, but that the proceedings are, to the best of his knowledge and belief, unjust and illegal, and will oblige him to pay more money than is justly due ; and also giving security for the pay- ment of all costs that have accrued or may accrue, and of the rent that has already, or may become due, up to the time of the final deter- mination of said certiorari, in the event of the same being determined against him.'^ The. bail is liable for the rent, until the final determina- 1 Philadelphia u. Kendrick, 1 Brewst. 'Act 27 March 1833, ? 2, P. L. 99 ; 406. Ward v. HarUgan, 1 W. N. C. 72. Purd. 604. ^ Commonwealth v. Fiegle, 2 Phila. *Act 22 March 1817, |4; 6 Sm. L. 215. 439 ; Purd. 604. See Washington and ' b'Malley ». Dempsey, 3 Leg. Gaz. Pittsburgh Turnpike Co. v. CuUen, 8 S. 225 Masters v. Turner, 30 Leg. Int. & R. 517. Academy of Fine Arts v. 337! Adams v. Hill, 29 Ibid. 126. Power, 14 Penn. St. 442. Ingham v. Sickler, 2 Luz. L. Reg. 105. ' Rubioum v. Williams, 1 Ash. 230. *^OfFerman v. Downey, 1 Bright. >" Clark ». McCormack, 2 Phila. 68. Dig. 270. Tryon v. Keller, Ibid. " Act 26 April 1855, § 2, P. L. 304. 'bailey v Bartholomew, 1 Ash. MoGinnis v. Vemon, 67 Penn. St. 149. 135. Galley v. Davenport, Ibid. 149. "Act 24 March 1865, P. L. 750; Bro'okfield ». Hill, 1 Phila. 439, and Purd. 609. A certiorari is not a su- numerous other cases collected in 1 persedeas of a writ of possession issued Brif ht. Dig. 270. under the act of 1772, notwithstanding ^iV.et 3 February 1817, 6 Sm. L. this act; such case is removable by 398 • Purd. 609. *he common-law writ of certiorari. De- 14 OP THE COUETS. tion of the case, or the plaintiff obtains possession.' In other parts of the commonwealth, a certiorari in a landlord and tenant case, does not operate as a supersedeas.^ § 28. Equity jurisdiction. The courts of common pleas are like- wise invested with the jurisdiction of a court of chancery, by bill, in many eases specially provided for by statute. But a consideration of the juris- diction of courts of equity, is so obviously foreign to a treatise on common- law practice, that it will not be treated of at large in this work. The courts are also, by many statutes, given jurisdiction, by petition, of special proceedings properly cognisable in equity ; these are for the most part, also foreign to our design. Among them may be enumerated cases of divorce, of lunacy,^ and of assignments in trust for creditors ; all of which belong to the equity side of the court. But, as the courts of Pennsyl- vania, before the conferring of equity jurisdictftn by bill, administered the principles of equity by means of common-law forms and proceed- ings, it will be proper to consider this branch of their jurisdiction ; which will be done in the next section. It has been frequently decided, that the statutes conferring chancery powers upon the courts, do not oust the equitable jurisdiction previously exercised under the forms of the com- mon law.* VI. Administration of equity under the forms of the common law. § 29. Equity is a part of the law of Pennsylvania.' But in conse- quence of the want of appropriate equitable remedies, our supreme court and courts of common pleas exercised, from the beginning, the power of giving relief and administering equity through the ordinary common-law remedies and forms f that is, through the medium of the usual actions ; the pleadings appropriate to each; conditional verdicts; special judgments ; and the final process adequate to obtain and enforce Coursey ». Guarantee Trust and Safe- , powers, like those of the chancery in Deposit Co., 81 Penn. St. 217. And the England, had long been felt in pinn- act does not apply to proceedings by a sylvania. The institution of such a P^7^?fer at shenfif's sale, under the act court, he observed, had once been of 1836. Jackson v. Gleason, 6 Phila. agitated here ; but the houses of as- 1 ni c XT -r -n, •, „, . sembly, antecedent to the revolution ' DuX",; ^T^lJ ?T^'- p*- .0 '^'^'^'^f^^^y opposed it; because they Duddy«.Hill,3Leg.&InsRep.59. were apprehensive of increasing bv Chapters on divorce and lunacy that means, the power and infllence have been added to our second volume, of the governor, who claimed iToMn BmiTmoHrMi- %!■ ni "«'*' *° ^^«taAc:lt'x'th*sTe: Funk" VoneWa illhirt fflQ W °^^J^ "^'^^"^'^ '" """^^^ of covenants, thorL lonson 16 Ibi^^-269 bZ ^* ? P^^^^'y. &«. This defect of berger.. Root 5 Penn. S .'loTchurch fourt nZ f h'""""^'^ °''^'^'^ *'^« V. Euland, 64 Ibid 432 ti, ' V ^""^ occasions, to refer « Mathews «. Stephenson, 6 Penn St Zl'TZ a *° *^-^ ^'^'^' "°'^'"" ^° 498. In Wharton v. Morris f Dal ' t^T^fll ''""^ """^o'^ntT' interpreta. 125-6, McKean, C. J remarked tW IV *l agreement of the parties." " the 'want of a court wXequitaWe ^°8 sT. ?"''°''' '^•?"'"*' ^ ^^^^^^ ^26, wiw equitable 228. Seitzmger v. Ridgway, 9Watt8 498. ADMINISTRATION OF EQUITY. 15 the fruit of them. The common-law remedies that have long been made the vehicles of equitable rights in this state, are the actions of assumpsit, debt, covenant, replevin, ejectment and partition. Perhaps, indeed, all the personal actions may be here called equitable remedies ;' as, from the right of the defendant to plead an equitable defence to any one of them, the reply to such a defence may take the same complexion, and thus, at last, the action may result in procuring for the plaintiff the fruits of a merely equitable right.^ § 30. The mode of administering equitable relief, through the medium of common-law proceedings, is well illustrated by Justice Tod, in Bix- ler V. Kunkle.' The learned judge there said — " To the argument that this demand is founded on mere equity, and cannot be enforced by any form of action of the common law, I would say, that ever since the time of Kennedys. Fury,* in which a cestui que trust maintained an eject- ment in his own name,^ and, I believe, long before, mere equitable rights have been every day recovered in our courts. It seems to me, that the rules of equity have, by immemorial usage, become rules of property in our state, and cannot, I apprehend, be now departed from without legis- lative authority. Cases need not be cited, to show how rights purely equitable have been sued for with success, in the forms of action known only to the common law, and how relief has invariably been granted, whenever it could be granted in any way consistent with these forms; generally, by the courts, with the aid of a jury — often, without. Not only have conditional judgments repeatedly been given, but, in the Lessee of Mathers v. Akewright,^ the court, on a general verdict for the plaintiff, and judgment thereon, ordered a stay of execution, until the defendant should be secured in his title to another piece of land, accord- ing to an article of agreement. In the case of Morris's Executors v. ' The action of trespass for mesne name, either against the trustee him- profits is, with us, an equitable one. self, or any other person. It is only Heokart «. Zerbe, 6 Watts 260. E wait where it is proper that the trustee should V. Gray, Ibid. 427. Means v. Presby- have the possession, for the purpose of terian Church, 3 Penn. St. 97. Zim- enabling him to execute the trust, in mermanw, Eshbaoh, ISIbid. 417. Kille the manner prescribed by the deed de- V. Ege, 82 Ibid. 102. Bge v. Kille, 84 daring it, that he can resist the claim Ibid. 333. of the cestui que trust to it. Presby- ' Sohrader v. Decker, 9 Penn. St. 16. terian Congregation v. Johnston, 1 W. Knox V. Flack, 22 Ibid. 339. Boberts & S. 56. School Directors v. Dunkle- V. Williams, 5 Whart. 184-5. Equita- berger, 6 Penn. St. 29. Caldwell v. bie relief has been invariably granted, Lowden, 3 Brewst. 63. But, if eject- when it could be done consistently with ment be brought in the name of the the forms known to the common law. trustee, a wrongdoer cannot set up the Martzell v. Stauffer, 3 P. & W. 401. title of the cestuis que trust, to defeat a Cope i: Smith, 8 S. & R. 115. recovery. Hunt «. Crawford, 3 P. & ' 17 S & K. 308. W. 426. Huston v. Wickerham, 8 '1 Dall. 72. And see Campbell o. Watts 519. McHenry v. McCall, 10 Galbreath! 1 Watts 78. Power v. Holl- Ibid. 456. Lee v. Parker, 5 Whart. man, 2 Ibid. 221. 342. Heath v. Knap, 1 Penn. St. 482. 5 A cestui que trust, if he be entitled Dull v. Heath, 7 Ibid. 85. Lair v. Hun- to the possession, for the purpose of en- sicker, 28 Ibid. 115. Townsend v. Boy, ablin'^ him to enjoy the trusfr«state in 9 Phila. 120. the manner that was intended, may «2 Binn. 93. And see McCall r. Le- maintain ejectment for it, in his own nox, 9 S. & B. 315. 16 OF THE COUETS. McConaughy's Executors,' the court, on motion, directed a contribution among the several holders of laud bound by the same mortgage." § 31. The action of assumpsit, though in form an action on a promise, gives effect to the same principles that are administered through a bill in equity ; and its sufficiency as a remedy has almost entirely withdrawn parol contracts from the jurisdiction of chancery.'' It is an equitable action, in which a plaintiff can recover only where, in equity and good conscience, he ought to recover.' With us, it is frequently used as a substitute for a bill in equity ; and in such cases, it is to be decided on equitable principles.^ Thus, we permit incorporated religious societies to sue on a contract made with them in their associate capacity, and for the legitimate purposes of their association, even though there be no persons named or described in the contract, as trustees or committee-men on behalf of the society, and if the English common-law forms are insufficient for such cases, we admit of the infusion into our law of the plain equity principle, that allows a committee of a voluntary society to sue and be sued, as representatives of the whole. In the case of Cham- bers V. Calhoun,^ the congregation had been formed, and the contract of subscription was for the purpose of erecting a new church, and it contained a promise to pay to the building committee, which had not then been appointed, and when appointed, the promissor was one of them ; yet ihe action against him, in the name of his fellows, on behalf of the congrega- tion, was sustained.* § 32. The action of assumpsit for money had and received has, in Pennsylvania, been made an ordinary vehicle of equitable jurisdiction. Though there may be some positions in Moses v. Macferlan,' advanced by Lord Mansfield, which his successors have cancelled from it, the lead- ing doctrine of the nature of this action has never been questioned. The great objection to some of his positions is, that they have been laid down too broadly, when he says, that a court of common law may sustain this action wherever one man has money which another ought to have, or wherever one man has an equitable right to the money, he also has a legal action. Since courts of common law cannot administer equity in the same way courts of equity can, we have adopted the most liberal pnnciples in this action ; and because we have no court of chancery, sus- tamed the action, where one man unjustly holds the property of another In every case, the tort may be waived ; where the party has received your money, trespass or trover may be converted into this action. Where the defendant has turned another's article into money or there is reasonable evidence that he has, as in the case of the masquerade ticket the tort may be waived. But when you do this, you ratify the conver- sion ; you adopt his act, and can recover nothing more than he has received. In England, not even interest; but here, the money received, ' 2 Dall. 189 ; s. c.l Yeates 189. Sfc 318 I Menges v. Oyster, 4 W. & S. 23. » 18 Penn. St. 13 Insurance Bank of Columbus v. « Phinps v Jonea 20 Ppt,,, c!t 9R9 Bank of the United States, 4 Clark 125 ' 2 Burr 1 00^ ' A -? >t ?^^- •Gochenauer «. Cooper', 8 S. & R." Harlin'IreExch 349^"' "' ""''' "' 199. And see Work v. Work, 14 Penn. ADMINISTRATION OF EQUITY. 17 with interest, may be recovered. A man may disaffirm the action ab initio, by reason of the fraud, and bring his special action, and recover his actual damages ; or affirm it, and demand his money ; he may make his election.^ § 33. After a recovery in ejectment against the tenants, and .the death of their landlord, indebitatus assumpsit will lie against his executors, to recover the rents and profits received, from the time the plaintiff's title accrued, unless the testator had no notice of the title, or held under a title in which he was mistaken, or there had been laches in the plaintiff. Such action could not be supported at common law, but arises here from the necessary assumption of the powers of courts of equity — ^grounded on their maxims.^ So, if a father hold the legal title of land, in trust for his son, and they agree to sell the land, and the father receive the purchase-money, and promise to pay the debts of his son, a creditor of the son, who had previously obtained judgment against him, and levied on the land, may sustain assumpsit for money had and received against the father.' § 34. The action of covenant may, in some cases, be used as a means of enforcing a purely equitable right. Thus, where, by articles of agree- ment for the sale of land, a deed was to have been delivered at a cer- tain time, and by a subsequent parol agreement, the vendee agreed to receive the deed at a later period, and accepted it accordingly ; it was held, that the vendor, in covenant for non-payment of the purchase- money, might declare according to the circumstances of the case, by setting forth, in the first place, the covenants according to the articles of agreement, and then showing the alterations which had been made by con- sent of parties.* The plaintiff must, in all such cases, set forth the special circumstances on which his equity is supposed to arise.^ So, in covenant, where there has been a mistake in drawing the articles upon which the action is founded, the plaintiff may declare upon the amended ^ Duncan, J., in Lee o. Gibson, M v. Beidleman, 17 Ibid. 43. And see S. & R. 111. And see Finney v. Mc- Kershaw o. Supplee, 1 Rawle 131-4. Mahon, 1 Yeates 248. Miller v. Ord, * Barndollav v. Tate, 1 S. & R. 160. 2 Binn. 382. Mathers b. Pearson, 13 Clarke. Partridge, 2 Penn. St. 13. Par- S. & R. 258. Rees v. Ruth, Ibid. 434. tridge o. Clarke, 4 Ibid. 166. Renshaw Bixlef V. Kunkle, 17 Ibid. 298. Irvine v. Gans, 7 Ibid. 118. Butcher v. Metts, V, Bull, 4 Watts 287. Mussi o. Lo- 1 Miles 153. A plaintiff must lay such rain, 2 Bro. 59. United States Bank a contract as will support his action ; V. Macalester, 9 Penu. St. 479. Mc- and he must, in such cases, lay such CuUough II. McCnllough, 14 Ibid. 295. a contract as a chancellor would exe- Work u. Work, Ibid. 318. Loan Co. w. cute. Irvine v. Bull, 4 Watts 289. Elliott's Executors, 15 Ibid. 227. Thus, if the statute of frauds would Stoner v. Zimmerman, 21 Ibid. 394. otherwise be a bar, there must be an Reese v. Bank of Montgomery County, averment of circumstances to take the 31 Ibid. 78. contract out of the statute. Walter r. ' Haldane v. Fisher, I Yeates 121 ; s. Walter, 1 Whart. 301. And so, a ven- c. 2 Dall. 176. dor, who goes for specific performance, ' Fleming v. Alter, 7 S. & R. 295. must indicate it by his declaration, in- And see Porter v. Brown, Add. 37. stead of laying a cause of action that * Jordan v. Cooper, 3 S. & R. 578. would otherwise entitle him to dam- Bellas V. Hays, 5 Ibid. 441-2. Reichart ages. Huber v.. Bujrke, U S. & R. 238, VOL. I. — 2 ' 18 OF THE COURTS. articles, with proper averments, showing the mistake in the original ; for, in such case, the articles still remain, notwithstanding the error, in full operation between the parties.' But, in covenant upon written articles, the plaintiff is not at liberty to prove, by parol evidence, a different agreement from that on which he declares.^ § 35. The act of replevin, from the liberal extension of it by our courts, has become a very effective vehicle of an equitable right f it may be employed both to prevent and counteract fraud, and to compel the specific execution of a contract relating to personal property. It is applicable to every case in which goods and chattels, in the possession of one person, are claimed by another ; and no distinction is made between those instances in which there has been a tortious deprivation of the possession, and others, in which the dispute is only as to the title or ownership. By means of this action, not only may family pictures, for which an agreement has been made, be obtained, but also merchan- dise, when the particular bale can be distinguished.'' Nor is the plaintiff restricted to the continuance of the possession in the defendant ; he may follow the property through successive transfers, and as the doc- trine of market overt does not hold in Pennsylvania, he may replevy it, wherever found.^ The owner of property may follow and reclaim it, wherever found, until arrested by the countervailing equity of a bond fide purchaser for value.^ § 36. The equitable action of ejectment forms, in this state, an import- ant branch of the law. Through the liberality and ingenuity of the courts, it has become the most important and universal mode of enforc- ing the equity of a plaintiff relating to land.' It is a remedy which has been substituted for the bill in equity ; though it is subject to all those considerations, by which a claim to have the land itself may be defeated. The rule is, that wherever equity will presume a trust to have arisen, and will compel its execution, or will enforce articles of agreement, our courts will, through the application of this remedy, administer the same relief.* ' Goweru. Sterner, 2 Whart. 75, 79. Woods v. Nixon, Add. 134. Stoughton An action of covenant upon articles of v. Rappalo, 3 S. & K. 562. It is well agreement for the sale of laud, to re- settled, as a general principle, that in cover the purchase-money, is, in effect, Pennsylvania, replevin lies wherever an equitable proceeding to compel spe- one man claims goods in the possession cific performance of the contract, and of another, whether the claimant has is governed by the same equitable prin- ever had possession, or not, and wheth- ciples. Nicol u. Carr, 35 Penn. St. er his property in the goods be absolute 3S1. • or qualified, provided he has the riaht " Barndollarw. Tate, 1 S. & R. 160. of possession. Harlan v. Harlan "15 Lehigh Coal and Navigation Co. v. Penn. St. 513. Boyle v. Rankin.' 22 Harlan, 27 Penn. St. 442. Ibid. 170. Young v. Kimball, 23 IbiT ' See Coomalt v. Stanley, 3 Clark 193. , " u. 389-93. « Garrard v. Pittsburgh and Connels- * It has even been held, that replevin ville Railroad Co., 29 Penn. St. 158 will lie for a quantity of oil taken from Wilkinson v. Stewart, 85 Ibid. 260. one tank, and placed in another, though ' See Hawthorn o. Bronson' 16 S & mised with other substances. Wilkin- R. 278. Dickey v. McCuUoun-h 9 W son V. Stewart, 85 Penn. St. 255. & S. 88, 96, 100. Warden v. Efchbaum ' See Weaver ». Lawrence, 1 Dall. 14 Penn. St.' 127. ' 157. Shearick v. Huber, 6 Binn. 3. « Presbyterian Congregation!). John- ADMINISTRATION OF EQUITY. 19 § 37. Thus, the veudee of lands, by articles of agreement, who has complied with his part of the contract, as, by payment or tender of the purchase-money, may, by ejectment, obtain possession, if withheld by the vendor.' On payment or tender of the purchase-money, the vendee is invested with an equitable title, of which- he cannot be divested, and which the law furnishes him with the means to complete, by having the legal title added to it.^ So, an ejectment will lie by a mortgagor against the mortgagee of the land, to recover back the possession, after it shall have been held by the latter long enough to enable him to have received satisfaction of the mortgage-debt from the rents and profits of the land ; or, by vendor against his vendee, in order to be relieved from the sale and conveyance, made either through mistake, or by means of fraud ; and, in efiect, by recovering again the possession of the land, to set aside the sale and deed of conveyance.' In exercising this right, the general form of action in common use is adopted, and the articles, &c., are not required to be spread upon the record. The plaintiff is required to allege and prove no more than would induce a chancellor to decree a specific performance of the agreement, or a reconveyance of the land, as the case may be, though less will not avail him.^ § 38. An equitable estate is sufiicient, in Pennsylvania, to support the action of partition. In the case of Stewart v. Brown,' the defendant had bought lands, under an agreement with the plaintiff, that the pur- chase, when made, should be for their equal mutual interest; the latter had never been in possession ; but the court held, that the agree- ment of the defendant made hira a trustee for the use of the plaintiff, and that the action of partition was maintainable against him to obtain ston, 1 W. & S. 41, 56. Rife v. Geyer, ' Heckart v. Zerbe, 6 Watts 261. 59 Penn. St. 396. If an action of eject- * Stein v. North, 3 Yeates 326-7. ment be brought to enforce the execu- Moody v. Vandyke, 4 Binn. 42. Vin- tion of a trust, there can be no recov- cent v. Huff, 4 S. & R. 301-2. Seit- ery, without an offer to reimburse the zinger v. Ridgway, 9 Watts 498-9. In trustee, the moneys which he has ex- such cases, the judge is bound to weigh pended ; but if a recovery be sought, on the evidence as a chancellor, and where the ground of a fraud practised by the the material facts are not in conflict, to defendant, no such offer is necessary, declare the law as it arises upon them. McKennan v. Pry, 6 Watts 137. Smull Dougan v. Blocher, 24 Penn. St. 28. V. Jones, 1 W. & S. 128. Urket v. If, in his opinion, the facts do not make Coryell, 5 Ibid. 60. McCaskey v. out a case in which a chancellor would Graff, 23 Penn. St. 321. Hall v. Van- grant relief, it is his duty to give bind- ness, 49 Ibid. 457. Keller v. Auble, ing instructions to the jury. Todd v. 58 Ibid. 410. Seylar v. Carson, 69 Campbell, 32 Penn. St. 250. And the Ibid. 81. Duff e. Wilson, 72 Ibid. 442. chancery rule prevails, thatthe condi- ' Hawn V. Norris, 4 Binn. 77. Hen- tion of the parties, at the time of the derson v. Hays, 2 Watts 148. Congre- decree, is to be considered, rather than gation V. Miles, 4 Ibid. 151. Heckart their situation at the commencement V. Zerbe, 6 Ibid. 261. Ejectment to en- of the suit. Devling v. Williamson, 9 force specific performance will lie, not- Watts 319. Lauer v. Lee, 42 Penn. withstandingthegrantof equity powers St. 171. Markley «. Swartzlander, 8 to the courts. Corson v. Mulvany, 49 W. & S. 176. Penn. St. 88. ^ 2 S. & R. 461. And see Longwell '^ Stoever v. Rice, 3 Whart. 25. In- v. Bentley, 23 Penn. St. 103. man v. Kutz, 10 Watts 90. 20 OP THE COUETS. it. A court of chancery would compel a conveyance of the legal title; but having no such court, our practice heretofore has been, to consider that as actually done, which a chancellor would decree to be done ; and, consequently, to assume a conveyance of the legal estate.* § 39. There are other modes by which our courts are in the constant practice of enforcing an equity in favor of the plaintiff, in a common- law action, which, in England, could only be obtained by a recourse to chancery. The first instance is the case of a lost bond, on which the owner could not maintain an action, in a strictly common-law tribunal, because he could not make prof ert of it ; and, therefore, would be obliged to recur to chancery for an injunction to prevent the defendant from taking advantage of its non-production. But, in our courts, the plaintiff may state his claim on the bond, and explain the reasons why he cannot produce it — that is, he may declare without a profert.^ The benefit of the same rule is open to a defendant who may have occasion to plead a lost deed. § 40. Another instance is the case of a plaintiff having a joint demand against several parties, one of whom is dead, and the survivor insolvent. At common law, the plaintiff could only sue the survivor, and to get at the estate of the deceased party, he would have to recur to chancery.* But our system allows suit to be brought against the personal represent- ative of the latter, through whom a judgment may be obtained against the property of the decedent ;* and by act of 11 April 1848, in such action, the insolvency of the survivor need not be averred on the record, nor proved at the trial, to enable the plaintiff to recover.' Where, how- ever, a party, whose obligation to pay arises from contract only (as a surety), is discharged at law, equity will not extend his liability, in a case where there has been neither fraud nor accident.^ And, therefore, if one of two joint payees and indorsers of a note, discounted for the accommodation of the maker, die before the note falls due, his represent- atives are not liable to the holder for any part of the amount.' But, if an obligation be joint and several, it may be enforced against the repre- sentatives of a deceased obligor, though he were only a surety.^ _ § 41. Another mode by which our courts give effect to the equitable rights of a plaintiff, is, by permitting an action at law to be brought in the name of the legal party to a contract, for the use of an equitable assignee. By the common law, no person could sustain an action on a contract, but him who was a privy to it ; in equity, however, an assignee for a valuable consideration was always held to be entitled to sue, as fully and eom- ' Willing V. Brown, 7 S. & R. 469. ' Pecker v. Julius, 2 Bro. 31. Weaver Respublioa v. Coates, 1 Yeates 2. v. Shryook, 6 S. & R. 262. Kennedv Dehuff V. Turbett, 3 Ibid. 162. v. Carpenter, 2 Whart. 344. This rule Hengst s Appeal, 24 Penn. St. 420. has been changed by the act of 1848 • Stiles «. Brock 1 Penn. St. 216. such case, though not within the letter', Lang V Keppele 1 Binn. 123. Welsh is within the spirit of that act. Bow- V. Speakman 8 W. & S 261. man v. Kistler, 33 Penn. St. 106. Kel- 6 ?t' ■^'■/q. ; Purd 1120. ler's Estate, 1 Leg. Chron. 189. United States «. Price, 9 How. 83; » Besore v. Potter, 12 S. & R 154 8. 0. 1 Wall. Jr. C. C. 173. Stewart v. Behm, 2 Watts 356 ADMINISTEATION OP EQUITY. 21 pletely as his assignor. An assignment of a chose in action is considered in equity as a declaration of trust.' And, by our practice, the action, though brought in the name of him who is privy in law, is marked to the use of the party beneficially interested, and throughout the whole proceeding, the latter is so completely regarded as the plaintifi", by the court, that it will sufi'er the suit to.be brought without the consent of the former, and will not permit him, in any case, to discontinue it.^ And, whether named in the record, or not, the party to whose use an action is brought, is liable for the costs. If the assignor die, before suit brought, and no administration be granted upon his estate within three months thereafter, or, if he shall leave the state, or cannot be found, the equita- ble assignee may maintain an action in his own name. And, if the assignor die, after suit brought, the assignee may, notwithstanding, prose- cute his suit to judgment, and have execution thereon, as if the legal plaintiff were still living.' The title of an equitable plaintiff need not be traced from the legal plaintiff, by averment, or otherwise indicated than by marking the suit to his use ;* if there be any conflict of claims to the cause of action, the defendant has nothing to do with the question ; but it is determined by an issue between the parties, after the money is brought into court.^ By the practice of the courts of Philadelphia, the attorney bringing such action may be ruled to file his warrant ; when he must either show an authority from the legal plaintiff, which is con- clusive ; or he must, by deposition, satisfy the court of the right of the equitable plaintiff to maintain the suit.* § 42. A defendant, in this state, is permitted to give evidence of equit- able matters under the general issue -^ or, if this mode be inconvenient or improper in his particular case, he may plead specially his equitable right, and thus obtain the advantages of a chancery answer, so far as they relate to a complete statement of his case. In making, however, an equitable defence in a court of law, he is, in effect, a plaintiff in equity, and is bound to show such a state of things, affirmatively, as would authorize a chancellor to interfere by injunction.' Whenever a court ' Bury ». Hartman, 4 S. & R. 179, practice is, to stay proceedings, not to 184. quash the writ. Meyer u. Littell, 2 ^ Bury w. Hartman, Ji< SMpra. Steele Penn. St. 177. ■0. Phoenix Insurance Co., 3 Binn. 312. ' Sparks v. Garrigues, 1 Binn. 164. McCullum V. Coxe, 1 Dall. 139-40. Steinhauer v. Witman, 1 S. & R. 441. ' Act 23 April 1829, 10 Sm. L. 455 ; Nace v. HoUenbaok, Ibid. 547. Green- Purd. 588. Where suit is brought by wait ». Horner, 6 Ibid. 71. Griffith v. the legal plaintiff, and the cause of ac- Chew, 8 Ibid. 25. Light v. Stoever, 12 tion is subsequently assigned, this act Ibid. 431. does not relieve him from his liability for ' Lewis ». Morgan, 11 S. & R. 236. costs. Kinly J). Donnelly, 6 Phila. 120. McConnel «. Hall, 3 P. & W. 54. * Armstrong v. Lancaster, 5 Watts Bauer ». Roth, 4 Rawle 95. Lehr w. 68. Montgomery v. Cook, 6 Ibid 238. Beaver, 8 W. & S. 106. Wain u. Smith, BerksCountyv.Levan, 86Penn.St. 360. 1 Phila. 362. In England, a defendant ' Commonwealth v. Lightner, 9 W. is now authorized by 17 & 18 Vict. o. & 8. 118. 125, ^83, "in any cause, in any of the ® Mississippi Central Railroad Co. v. superior courts, in which, if judgment Southern Railroad Association, 8 Phila. were obtained, he would be entitled to 107. If the warrant be insufficient, the relief against such judgment, on equit 22 OF THE COTJETS. of equity would decree a conveyance, or enjoin a party from prosecuting his legal right, on account of an existing equity against the existence of the legal right, or of a fraud committed on the party, our courts will, by considering the act to be done which in equity ought to be done, grant as adequate relief as a court of chancery could, by forbidding the party to recover a right, which, in equity, he is considered as having relinquished.' § 43. As our courts are constituted, wherever parol or extrinsic evi- dence would be received to reach a fraud, in equity, the same evidence will be received at law. The relief in equity is not professedly on the ground of contradicting the writing by parol evidence, but in letting in such extrinsic evidence, to raise an equity dehors the instrument, in order to contravene a purpose which no law can or ought to protect ; and it is on this principle, the courts in this state have acted. Cases of trust, to prevent frauds, and correct mistakes, are among the first objects of equity jurisdiction ; and to accomplish this, parol evidence is admitted ; for in no other way can it be accomplished. To attain this great object of distributive justice, the same course has been pursued in our courts, pro- ceeding in a different manner, but terminating in the same point.^ It is to be observed, however, that if the plaintiff have a complete legal cause of action, evidence will not be received, to show that it originated in a fraud, to which the defendant was a party; in such case, a chancellor would grant no relief to a party from the consequences of his own fraud.^ § 44. The usual plea under which a defendant is permitted to establish an equitable defence, is that of payment. The practice of giving in evidence, under the plea of payment, matters relating to a defence whose only foundation is equity, may be traced to the earliest stages of our jurisprudence, and is a branch of the common law that arose out of the peculiar wants of the province of Pennsylvania. The general rule adopted by the courts is, that whatever would be sufficient in equity to protect the party, will be admitted in evidence, under the general plea of payment ; and that shall be presumed to be paid, which, in equity able grounds, to plead the facts which ' Le Fevre v. Le Fevre, 4 S. & R. would entitle him to such relief, by way 244. Lyon v. Huntingdon Bank, 14 of defence." But, under this statute, Ibid. 285-6. Overton v. Tracey, Ibid, it is held, that an equitable defence can 3L>6. Boyee v. McCullooh, 3 W. & s! be pleaded in those oases only, in which 433. Biddle v. Moore, 3 Penn. St. 175*. a court of equity would grant an injuno- No title passes to a vendee who' is guilty tion, absolute and without terms. If a of actual fraud in procuring it whether chancellor would, in such case, impose the sale be private or judicial. Hoffman terms upon the party seeking relief v. Stroheoker, 7 Watts 86. MoCaskev against the judgment, a court of law, v. Graff, 23 Penn. St. 321 having no such power, will not allow ^ jjju ,,_ jjj^^ 5 S. & R. 365-6 Miller the facts to be pleaded as an equitable u. Henderson, 10 Ibid. 292. Bishon v defence ; but will remit the defendant Reed, 3 W. & S. 264. Manhattan In^ to his remedy m a court of equity, surance Co. v. Webster, 59 Penn St where complete justice may be done 230. between the parties. Mines Royal So- ' Evans v. Dravo, 24 Penn St 62 ciety V. Magnay, 10 Exoh 489. Wode- Hendriokson v. Evans, 25 Ibid'. 441. " house V. Farebrother, 5 Ell. &B1. 277. ADMINISTRATION OF EQUITY. 23 aud good conscienco, ought not to be paid. The cases in our reports serve very fully to illustrate and prove this principle, as they include almost every species of defence usually made in a court of cha'ncery. These may be classed under the heads of want of consideration, fraud, mistake and accident ; any of which may be given in evidence, under this general plea.^ To avoid surprise on the trial, our courts have adopted rules requiring a previous notice to be given of the equitable defence intended to be established.^ § 45. This notice, in substance, often amounts to a bill in equity, and if the defendant present and prove a case in which he would be entitled to relief in equity, he will be entitled to a verdict here.^ But, if, in his notice of special matter, he present a case in which equity would afford no relief, the plaintiff, instead of putting the cause to the jury, may object to the evidence, and pray the opinion of the court on it, and if the court be of opinion, that it is a case in which equity would not relieve, the evidence will be rejected in toto, as irrelevant; or, if any part of it be such as would not be received in equity, that part will be rejected.* And, it would seem, that a plaintiff may demur to a notice of special matter." The general pleas of non assumpsit, and of performance or covenants performed, with notice of the special matter intended to be given in evidence under them, are likewise the common vehicles of a purely equitable defence.^ § 46. Under the plea of payment, a defendant may also, under our statute of defalcation, give evidence of any counter-claim against the plaintiff, whether it be legal or merely equitable in its character,' and ' Huber v. Burke, 11 S. & R. 238. required to be done, conditional. And Equitable relief is always accessible to if the jury give an absolute verdict, the a defendant, in an action of assumpsit, court may say it is conditional, and Smith V. Plummer, 5 Whart. 93. withhold the execution. Hawk v. Ged- ^ If the defendant intend to insist on dis, 16 S. & R. 28. fraud in fact, as a defence, it is not suf- * Robinson ». Bldridge, 10 S. & R. ficient to allege in the notice of special 142. Irwin v. Potter, 3 Watts 271. matter, facts from which an inference * Pulhamus v. Pursel, 2 Clark 141. of moral fraud may be drawn. The al- * See Hamilton v. Moore, 4 W. & S. leged fraud should be distinctly charged. 572. Bender v. Promberger, 4 Dall. McCrelish v. Churchman, 4 Rawle 26. 439. The plea of non assumpsit enables And see Hale v. Fenn, 3 W. & S. 361- the party to show anything which, at 4. Moatz II. Knox, 1] Penn. St. 270. law, would defeat and destroy the cause A notice of special matter must state of action ; but when the matter of de- the facts on which the defendant relies ; fence is a pure equity, calling for the hut it need not contain either the evi- interposition, and requiring the aid of dence by which they are to be estab- a court of chancery, the defendant de- lished, or the inferences to be drawn sirous of availing himself of it, must from them. Hartman v. Keystone In- give notice, either by plea or notice : suranoe Co., 21 Penn. St. 466. nothing hut a common-law defence can ' The plea of payment, with leave, be received under such a plea. Taylor and notice, operates substantially as a v. Coryell, 12 S. & R. 251. Dunlap v. bill of injunction. The verdict of the Miles, 4 Yeates 366. jury may be, when the injunction ' Murray ». Williamson, 3 Binn. 135. would he perpetual, absolute and uncon- Passmore v. Insurance Company of ditional ; and when it would only be Pennsylvania, 8 S. & R. 66. Morgan temporary, or until a particular act was v. Bank of North America, Ibid. 73. 24 OF THE COURTS. if the set-off exceed the claim of the plaintiff, the jury may certify a sum to be ^ue from the plaintiff to the defendant, upon which he may have judgment and execution.^ The rules of court require that previous no- tice of the set-off, intended to be proved under the general plea, should be given to the plaintiff; but no other plea than that of payment is ne- cessary to let in a set-off, under our statute.^ And it is to be noted, that there is this difference between the plea of payment, with notice of defal- cation, and that of payment, with notice of an equitable defence, that under the former the defendant may recover a balance against the plain- tiff, whilst, under the latter, he can only have a general verdict.* § 47. The courts of Pennsylvania have adopted to their full extent, all the doctrines of courts of equity with respect to set-off;* and, there- fore, one judgment may be set off against another, where both are in the same right, though in different courts.' Judgments are set off against each other, not by force of the statute of defalcation, but by the inherent powers of the courts, immemorially exercised; being almost the only equitable jurisdiction originally appertaining to them as courts of law. An equitable right of setting off judgments, therefore, is permitted only where it will infringe on no other right of equal grade ; consequently, it is not to affect an equitable assignee for value." To protect an assignee, however, he must have taken the assignment, before the obtaining the judgment which is sought to be set off, otherwise, his equity will not be equal to that of the party obtaining the second judgment.' § 48. As an equitable title may be made the foundation of an action of ejectment, and is syiEcient to ground a recovery, it follows, as a nat- ural consequence, that it may protect the actual possession of a defend- ant ; and, as it is provided by statute, that the general issue of " not guilty " shall be the only plea put in by the defendant, the equitable deTence is receivable under this plea. If the equity of the defendant be merely founded on the non-performance of a particular act by the plain- Gochenauer v. Cooper, Ibid. 187, 202. son, 5 Clark 311. Lorentz v Kino; 38 Stewart v. Coulter, 12 Ibid. 445-7. Penn. St. 97. The application to' set Morrison v. Moreland, 15 Ibid. 63. off judgments must be made in the Smith V. Myler, 22 Penn. St. 40. A court where the judgment against the ■ cross-demand, to be set off, must belong moving party was obtained. Cooke v to the party at the commencement of the Smith, 7 Hill 186. Ross v Hicks 11 suit. Smith t^ Ewer 22 Penn. St. no Barb. 481. Where the application is 4 nf^ll p t' J,^-^- f '%^^t ^^ '^''^^ ^y ^'^ P^^'ty t° ^''O"' the larger April 1848, P L. 539 ; Purd. 487-8 sum is due, the rule is, for a stay of pro- Balsbaugh w. Frazer 19 Penn St. ceedings, on acknowledging for a less 95 Calvin «. McClure 17 S. & R. 385. sum ; but where the less sum is due to » King .. Diehl, 9 S, & R. 409. An- the party applying, the rub is to have derson . Long 10 Ib^. 62. Cook v. it deducted, and fo^ a stay of proceed^ Haggarty 36 Penn. St. 67. Glass., ings on payment of the balano^. ^TFtr^'^'''-^^-'-' BulST^^i^hoXh.'s'll'^ 'Ts 8 a & R 88. Murray v. WiUiamson, Coates's Appeal, 7 W & S. 102 Met ^B:st?Lawson,lMilesll.Hazle- Mi^ Knn' St'lse''^- ^""'"'^ ^ hurst K. Bayard, 3 Yeates 152. Filbert ' Filbert ?; Hnwv" S W„tt„ ^/Iq a - ..Hawk, 8 Watts 444. Prouty.. Hud- see Ja^ : Gurer,1 Kr' V"' ADMINISTRATION OF EQUITY. 25 tiff, sucli as the payment of purchase-money, or making title to a part of the land, it is always a pre-requisite to the recovery of the possession of the land, by the latter, and may be either relied on in the defence, or judgment will be arrested by the court, until it is performed.'^ Where the defendant in ejectment has only an equitable title to hold real estate, until certain moneys are reimbursed, the plaintiff is entitled to recover, if such moneys be reimbursed at the time of the trial ; but, if the defendant have a legal title of that description, the plaintiff cannot recover, unless the moneys are reimbursed at the institution of the ejectment.^ And where the defendant rests his defence upon an agreement to purchase, it is not essential to the plaintiff's right to recover, that he should have ten- dered a deed, before suit brought ; for the jury may, in their verdict, under the direction of the court, do equity as to the costs.^ § 49. A vendee, under an executory agreement for the purchase of land, who has obtained the possession of it, under his contract, can only defend himself upon such ground as would entitle him to a decree of injunction, by a court of equity, against his vendor, who was proceeding, by action at law, to turn him out of the possession. The action of ejectment to enforce payment of the purchase-money, is not founded upon the contract, but rather upon the legal title to the land being still in the plaintiff, who is not bound, by his contract, to part with it, until he shall have received from the defendant the purchase-money ; and the defend- ant, having failed to pay it, according to the terms of his contract, has no claim, even in equity, to hold the possession.* The legal title is always sufficient to maintain an action at law, \^hich chancery never enjoins in favor of a delinquent equitable owner.* And the plaintiff may rebut a countervailing equity set up by the defendant, on the trial.^ § 50. When the equity of a defendant goes to a total denial of the title of the plaintiff, it is supported by a recurrence to the principle which forms the ground-work of the equitable action of ejectment — that every- thing shall be presumed to be done, which in good conscience ought to have been done. If, therefore, the party ought to have received proper title deeds, he will be considered in the same situation as if they had been actually delivered to him ; and the same course will be pursued with respect to every other equity to which he may be entitled.' § 51. Whenever the pleas before enumerated would be inconvenient or improper, from the nature of the action, the defendant may (with the single exception of the actionof the ejectment) state his equity specially, 1 Mathers v. Akewright, 2 Binn. 93. And see Dickey v. MoCulIougli. 2 W. ' Thomas v. Wright, 9 S. & K. 87. & S. 100. Hall v. Holmes, 4 Penn. St. Snyder v. Wolfley, 8 Ibid. 332. Gore 251. V Kinney 10 Watts 139. Altimus v. * Smith v. Webster, 2 Watts 486. Elliott, 2 Penn. St. 62-5. See Eshbaoh Marlin v. Willink,7 S. & R. 297-9. See V. Zimmerman, Ibid. 313. Hauberger Gore u. Kinney, 10 Watts 139. v Root, 5 Ibid. 112. D' Arras v. Key- ' Cook v. Trimble, 9 Watts 16. Heed ser, 26 ibid. 249. «• Murray, 11 Penn. St. 334. ' Devlinf v. Williamson, 9 Watts ' Innis v. Campbell, 1 Rawle 373. 311 319 °Smith v. Webster, 2 Ibid. ' Griffith v. Cochran, 5 Binn. 105. 479.' Hart v. Porter, 5 S. & R. 203. MoCall v. Lennox, 9 S. & R. 315. 26 OF THE COURTS. aud the courts will support it as a sufficient defence. The practice of pleading specially the equity of a defendant, possesses one of the most important advantages of the answer in chancery, in stating at length all the circumstances of the case, without regard to their intricacy or compli- cation. But for this method, the operation of equity would be narrow and restricted; as the rule now is, it supplies all the chasms left by the general pleas, so that no case can possibly occur in which a defendant may not rely upon his equitable right, as fully and completely in a Penn- sylvania court of law, as in an English court of chancery. And so highly is the right of pleading an equitable defence favored by our courts, that' they have determined, after some conflict of decision, that a defendant who has neglected to give notice of the special matter intended to be proved under the plea of payment, may amend on the trial, by filing a plea founded upon such special equity.' If, by such amendment, the plaintiff be taken by surprise, he is entitled to a continuance of the cause.^ § 52. If a plea be put in, founded in equity only, the plaintiff will be permitted to make a replication to it, stating any matter to rebut or destroy that equity. But if, instead of an equitable special plea, the defendant plead payment, and give notice of an, equitable defence, the plaintiff may, under the replication of non sulvit, give evidence of other special matter to rebut the defendant's equity, without notice ; for the defendant might have obviated the charge of surprise, by pleading specially.' It does not seem necessary tRat any equitable pleadings should have been previously put in, to justify the use of non solvit as an equitable replication, for it may happen that the plea of the defendant, which is strictly at common law, may, for the first time, compel the plaintiff to rely upon equitable grounds for the establishment of his action. § 53. Another mode of obviating the want of a court of equity, where such a court would enjoin a party from proceeding at law, or where the specific execution of a contract, or the performance of a trust, is of right due to the plaintiff, is, through the instrumentality of the jury, who may wield the damages so as to effect the desired end. It seems, that in all actions, whether relating to personal or real property, the jury may, when the plaintiff sets out in his declaration the whole ground of his equitable right (for this has been held to be a pre-requisite to secure a conditional verdict),* find large damages conditionally — that is, to be released, on condition that the terms which the jury, and jury alone, prescribe, be complied with.^ Thus, in a case where chancery would enjoin the obligee of a bond from proceeding at law, whilst the obligor is a loser, or in jeopardy, as a surety of the former, the jury may produce the same result by a conditional verdict." Thus, too, a specific perform- 1 Sharp V. Sharp, 13 S. & R. 444. » Decamp v. Feay, 5 S. & R. 323 Yost V. Eby, 23 Penn. St. 327. Coolbaucrh v. Pierce, 8 Ibid. 418 Al- * Act 21 March 1806, § 6 ; 4 Sm. L. len v. Sawyer, 2 P. & W. 325. Crow 329 ; Purd. 68. ». Crow, 29 Penn. St. 216. McCutchen v. Nigh, 10 S. & R. » Frantz v. Brown, 1 P. & W. 257. :\ ■ ^ .. . ^0^5 "• MoKinny, 2 Rawle 227. Bea- Irvine v. Bull, 4 Watts 289. Butch- ver v. Beaver, 23 Penn. St. 167 170 er V. Metts, 1 Miles 153. ADMINISTEATION OF EQUITY. 27 ance of an agreement for the sale of lands, if it be not within the statute of frauds, may be enforced by a conditional verdict.^ And there are many cases of ejectment, where such verdicts have been recommended by the court, in matters of trust, and executory contracts.^ The action itself, as we have seen, approaches very near to a bill in equity ; and the verdict of a jury, imposing conditions on the party in whose favor it is rendered, performs the office, though imperfectly, of the decree.^ In all these cases, the jury are to be governed by the rules and principles of equity, which they are to learn from the charge of the judge/ § 54. If a vendor has covenanted to make a good title, but is unable to do so, and the vendee has been let into possession, and paid a considerable part of the purchase-money, it would be obviously unjust, that the vendor should be permitted, by bringing ejectment on his legal title, to turn the vendee out of possession, and remit him to an action at law for the recovery of the purchase-money. In such a case, the vendor has no equity. He is, therefore, not entitled to a verdict, to be released on pay- ment of the balance of the purchase-money ; but, if he can make title to only a part of the premises, the equities of the parties may be worked out, either by a general verdict for the defendant, if he has paid such portion of the purchase-money as is proportionate to the plaintiff's ability to make title, or by a conditional verdict for the plaintiff, for any unpaid balance of such proportion ; or, if the defendant elect to rescind the contract, as he may do, then, by a verdict for the plaintiff, on condi- tion that he repay such part of the purchase-money as he has received, within a stipulated time, and make compensation for the defendant's improvements.* § 55. Although a verdict in the alternative would be erroneous, there are many instances in practice in which a cautionary verdict is allowed ; as, where a verdict is rendered for the plaintiff in ejectment, or for a penal sum in an action for damages, to be enforced, unless the defend- ant pay a sum of money, or do certain specified acts. The court can judge whether the defendants comply with the terms of the verdict, and mould the judgment accordingly.^ They are, for the most part, obliged 1 Irvine v. Bull, 4 Watts 287. Car- Biddle v. Mo'ore, 3 Penn. St. 172-3. malt V. Piatt, 7 Ibid. 322. Larison v. 175. Burt, 4 W. & S. 27. " He may have * If there be any controverted facts, been a bold lawyer," said Justice Coul- they must be submitted to the jury, ter, in Hauberger v. Root, 5 Penn. St. Williams v. Bentley, 29 Penn. St. 272. ] 12, '' but he was a just and wise one, ' Erwin v. Myers, 46 Penn. St. 96. who first suggested a conditional verdict And see Napier v. Darlington, 70 Ibid, in actions of ejectment, not to assist a 64. plaintiff in a broken or imperfect case, ° An uncertainty in the condition an- but to compel him to do equity, before nexed to the verdict will not vitiate the the law allowed him the benefit of the judgment, at law. In the exercise of verdict." See Kribbs v. Downing, 25 its chancery powers, the court may re- Penn. St. 399. duce the condition to certainty, either 2 Collins V. Rush, 7 S. & R. 155. with or without an issue* for the ' pur- Reinhard v. Keenbartz, 6 Watts 93. pose. Harmar v. Holton, 25 Penn. St. Adams u. Smith, 19 Penn. St. 191. 245. Henry u. Raiman, Ibid. 354. If ' Coolbaugh V. Pierce, 8 S. & R. 419. the time fixed by the jury in a condi- 28 OF THE COUETS. to decide on affidavits and depositions ; and, as these constitute no part of the record, they are, like the granting of a new trial, subjects not inquirable into on error.' In debt on bond for the purchase-money of land, a verdict may be given for the plaintiff, conditional that no execu- tion shall issue for the amount, until he remove an incumbrance on the title.2 And it is to be observed, that, where, in an action of ejectment, a conditional verdict is rendered, it is not of course, as in ordinary cases, to issue an habere facias. This can only be done by leave of the court, which will allow the writ only where it appears that the terms of the verdict have been complied with.^ § 56. If a vendor bring ejectment to compel payment of the purchase- money, and obtain a conditional verdict, to be released upon payment of the balance due, within a prescribed time, and the time is suffered to pass, without payment, the vendor may take possession, as absolute owner.^ In some cases, a rigid adherence to this rule has produced injustice ; for valuable property has been sacrificed, from the inability or neglect of the vendee, or other cause less culpable, to comply with the exact terms of such conditional verdict. For remedy of this, a mo- dification of the practice has been recommended. Instead of framing the verdict in such way, that an absolute title vests in the vendor, on failure to pay, at the time fixed in the verdict, it would be better that, if not paid at the time, it should contain a decree of sale, either by the sheriff, or by a master, under the direction of the court, for the benefit of the vendor and vendee, and all other persons having an interest in the proceeds. A verdict and judgment in this shape would have this advantage, that the vendor would, in due time, receive the unpaid pur- chase-money, and the vendee would receive the surplus, if any ; and, what is of no inconsiderable importance, the purchaser at the sale would obtain a title free from all doubt or difficulty. The sale being made under the order and direction of the court, and the money being substi- tuted for the land, and under their control, in its distribution, substan- tial justice may be done to all.^ § 57. Besides this use of conditional verdicts, in actions at common tional verdict expire, during the pen- Gordonier v. Phillips, 77 Penn. St. 498. den cy of a writ of error, it may be ex- * Hewett v. Huling, 11 Penn. St. tewded by the supreme court, on affirm- 34-5. A verdict in favor of a vendee ance of the judgment. Miles u. "William- is usually, if not always, an absolute Bon, 24 Penn. St. 143. And see Pen- one ; he must show that he has already dleton V. Riohey, 32 Ibid. 58. Webster performed his contract, unless the other «. Webster, 5a Ibid. 161. party has prevented him. Where the Moyer v Germantown _ Railroad vendee has anything to do, before being \'.°-' ^„y;- * *=• l^- ,„9°'''^°°^*''' "• ^'1- authorized to demand possession, he is lings 77 Penn. St 498 not in a situation to bring ejectment ; A ?'°^''l^ f ^w^*"' " ^; 1 ^- ^^°- ^^ '« «°'''l«'i "hither to an uneonditional And see Reed v. Murray 11 Penn. St. verdict, or to none. Patterson v. Wil- 334 Adamy Smith 19 Ibid. 182. son, 19 Penn. St. 383. So, a verdict Patterson v. Wilson, Ibid. 383. against one who has procured the legal ' C.Z "■ f ^J?'-.d. ^P<^""• St- 257-9. title by means of an actual fraud, istl- T,.p„^f m I'"' I w- ^ ^- "'^'^- ^^y^ ""^ ""conditional one. McCaskey Treaster v. Fleisher, 7 W. & S. 137. v. Graff, 23 Penn. St. 321 ' ADMINISTEATION OF EQUITY. 29 law, adopted here to enforce equitable rights, the courts may and must, in suc^ cases, if necessary, mould their judgments and executions to suit 'the case ; and they will render them specially, to aifect certain property only, and allow special executions, to be levied on that property alone.' Thus, the court will enter judgment specially, so as to make it appear that it does not bind the defendant's property, but only such as is held in trust; to reach which was the object of the suit, in the nature of a bill in equity.^ § 58. Equitable rights having thus, by the liberality of the judiciary of Pennsylvania, become vested and tangible interests at law, it was necessary to the complete attainment of justice, that the new advantage, thus vested in the party, should be attended with its corresponding bur- dens. Proceeding upon this just and natural principle, it has been decided in our courts, that every species- of equitable right is subject to the lien of a judgment, ■and may be sold so fully and completely, under an execution, that the sheriff's vendee will stand in precisely the same situation as the original defendant.^ This rule, resulting from a con- nected series of decisions, is thus stated by the late Chief Justice Tilgh- man : — ■" By the law of Pennsylvania, all the real estate of the debtor, whether legal or equitable, is bound by a judgment against him, and may be taken in execution, and sold for the satisfaction of the debt. At common law, an equitable estate is not bound by judgment, nor subject to an execution ; but the creditor may have relief in chancery. We have no court of chancery, and have, therefore, from necessity, established it as a principle, that both judgments and executions have an immediate operation on equitable estates."* The interest of a vendee of land, being in proportion to the amount of purchase-money actually paid, is sepa- rately bound by a judgment, and may be separately sold on an execu- tion, leaving the legal estate, and so much of the equitable estate as has not been paid for, untouched in the vendor ; and a judgment against the vendor binds the legal estate but to the value of the unpaid purchase- money, and just so much can be levied and sold ; consequently, a pur- chaser under a judgment against either, like a purchaser from either by voluntary conveyance, succeeds but to the interest which the debtor had power to incumber or part with.^ ' Pidoock V. Bye, 3 Rawle 194. Mart- sell's Appeal, 15 Ibid. 321. jell V. Stauffer, 3 P. & W. 403. * Auwerter v. Mathiot, 9 S. & R. 402. 2 Ayoinena v. Peries, 2 Penn. St. And see Stiles v. Bradford, 4 Rawle 286 ; s. c, 6 W. & S. 257-8. Steven- 402. Dougan v. Blocher, 24 Penn. St. son V. Matthews, 9 Penn, St. 318. 28. Slater's Appeal, 28 Ibid. 169. Og- ' Carkhuff v. Anderson, 3 Binn. 4. den v. Knepler, 1 Pears. 145. Ely V. Beaumont, 5 S. & R. 126-7. ' Catlin v. Robinson, 2 Watts 373. Semple v. Burd, 7 Ibid. 289. Chahoou McMullen v. Wenner, 16 S. & R. 20. V. HoUenbaok, 16 Ibid. 425. liart- Purviance u. Lemmon, Ibid. 294. Wil- man v. Stahl, 2 P. & W. 223. Brown son v. Stoxe, 10 Watts 436. Carneg- D.Webb, 1 Watts 414. Episcopal Acad- ban v. Brewster, 2 Penn. St. 41. Fos- emy v. Frieze, 2 Ibid 16. Baird v. Lent, ter's Appeal, 3 Ibid. 79. Stewart v. 8 Ibid. 423. Geiger v. Hill, 1 Penn. Coder, 1 1 Ibid. 94. Vierheller's Ap- St. 511. Champlin u. Williams, 9 Ibid, peal, 24 Ibid. 105. Patterson's Estate, 342. Boss's Appeal, Ibid. 497. Rus- 25 Ibid. 73. 30 OP THE COURTS. § 59. The practice of opening a judgment, entered on a warrant of attorney, or by default, to let in a defence, specially sworn to, is peculiar to our jurisprudence ;' it is the only substitute we have for a bill in equity, on which a chancellor would enjoin a perpetual stay of execution, and iit has the advantage of a chancery proceeding, in simplicity, cheap- ness, speed and efficiency.^ We have no traces of such a practice in the English books ; for, where the warrant has been procured from an infant or a, feme covert; or for a usurious consideration; or to secure avoid warranty, or the like ; their practice has been, to order it to be delivered up, and the judgment, if one has been entered on it, to be set aside. And their practice is the same, in the analogous case of a regular judgment, on an affidavit of merits. No instance can be found of a judgment opened, by an English court, in our sense of the term ; on the contrary, their practice is, to award a collateral issue, and only when facts are alleged to be in contest, instead of an issue in the cause.' § 60. Our remedy, also, for irregularity or collusion in the rendition of a judgment, is to overturn it; but for pretermitted matter of defence, it necessarily is, to open it, for it is impossible to say, what may be found due. Our practice, therefore, is, to try collusion by a collateral issue, but matter of defence, by an issue in the cause, which gives the defend- ant all proper advantage of matter of original defence, without loosen- ing the plaintiff's hold on the security gained by the judgment.* In opening a judgment, to let the defendant into a defence on the merits, the court has unlimited power to impose terms,' and should prescribe the issue, so as to draw into contest no more than the matters alleged for ground of defence, in the affidavit.^ The proper practice is, to regulate the issue so as to restrict the contest to the ground of defence sworn to, by prescribing the plea, and the points of fact to be controverted; and. by relieving the plaintiff not only from technical incumbrances, but the useless task of proving anything which the defendant's affidavit had not denied. These conditions are clearly within the chancery powers of the court.' § 61. A defendant may, in many cases, obtain equitable relief, after judgment, either on motion, or-by writ of audita querela. The writ of audita querela is the commencement of an action somewhat in the nature of a bill in equity, to relieve against some oppression of the plaintiff. The liberality of the courts in granting relief on motion, has almost superseded the use of this writ ; but it is not obsolete, and, in many cases, relief may be obtained by means of it, which the courts are incom- petent to grant on motion ; it is in the nature of an action of trespass, "■ Gallup ». Reynolds, '8 Watta 425. Leech, 9 Penn. St. 164. West v. Ir- ^ Laeock v. White, 19 Penn. St. 496. win, 74 Ibid. 258. Collins v. Freas, Ga up V. Reynolds, ut supra. 77 Ibid. 493. Carson v. Coulter, 2 Crallup V. Reynolds, ut supra. Gr. 121. ' Ensly V. Wright, 3 Penn. St. 502. ^ Gilkyson «. Larue, 6 W. & S. 217. It a judgment alleged to be fraudulent, ' Ekel v. Snevily, 3 W. & S '^73 be opened without terms, the plaintiff And see Struthers v. Lloyd. 14 Penn! must establish his case as if no judg- St. 218. McVeagh v. Little, 7 Ibid, ment had been entered. Dennison v. 280. ADMINISTEATION OF EQUITY. 31 and damages may be given for the oppression of the opposite party. The writ of audita querela lies for release, payment, or other discharge, aftei verdict or judgment ;i where the sheriff or bail is made liable by judg- ment, and the principal debt is afterwards satisfied, or judgment reversed ; where there are several judgments for the same claim, and one is satisfied; where judgment is entered against a minor, after two wi/i&; where a party has not been served with process; where an exe- cution is issued on a forged bond and warrant of attorney, or on one tainted with usury, or other matter contrary to public policy, or con- nected with a satisfied defeasance ; where payment is improperly obtained; to release from execution a discharged bankrupt; where a judgment is obtained, in fraud of an existing agreement as to the con- duct of the suit ; where execution is improperly issued, or erroneously executed ; and where one whose lands are equally liable with the lands of another, wishes to obtain contribution. In all these cases, we grant the same relief, on motion.^ The party may, however, resort to his audita querela, after the refusal of summary relief, on motion, upon the same grounds.^ How far a mere equitable defence, such as would not be at all cognisable at law, as an answer to the cause of action, even if it arose before judgment, can be made the ground of an audita querela, has been questioned. In such cases, a party would be driven, in England, into chancery for relief* It does not lie, to show that a judgment con- fessed was to be collateral security only.^ § 62. Another mode of granting equitable relief, under our mixed system of law and equity, is by means of subrogation. In this state, a surety, who has paid a debt secured by judgment against his principal, and who is, in other respects, entitled to be substituted to the rights of the creditor, may be subrogated to his legal position, or may revive the judgment, without first having a decree of subrogation, and try his right on the scire facias. Such proceeding is an appeal to the equitable juris- diction of the court, and must be considered in the light of a bill in chancery for subrogation.^ Subrogation is founded on principles of equity and benevolence, and may be decreed where no contract or privity of any kind exists between the parties. Wherever one, not a mere volunteer, discharges the debt of another, he is entitled to all the reme- dies which the creditor possessed against the debtor.'' Actual payment discharges a judgment or other incumbrance at law, but where justice ^ In debt ou a foreign judgment, if ^ Stephens v. Stephens, 1 Phila. 108. the original judgment be reversed by And see Humphreys v. Leggett, 9 How. the appellate tribunal of the foreign 297, 314. Campbell v. Ooolbaugh, 3 jurisdiction, after judgment thereon in Luz. L. Reg. 93. our courts, the defendants may have ' Boyle v. Zacharie, 6 Pet. 656-7. relief by audita querela. Merchants' Emery v. Patton, 9 Phila. 125. Insurance Co. v. DeWolf, 33 Penn. St. * Schott v. MoFarland, 1 Phila. 53. 45. But an agreement to accept a * Emery v. Patton, ut supra. smaller sum in payment of a larger ^ Baily v. Brownfield, 20 Penn. St. debt, payment of part, and tender of 44-5. the balance, does not entitle the defend- ' See Webster's Appeal, 5 W. N. C. ant to an audita querela. Keen v. 486. Vaughan, 48 Penn. St. 477. 32 OP THE COUKTS. requires it, we Keep it afoot in equity for the benefit of the paying surety.' , i x j? i § 63. It is provided by statute/ that whenever the real estate ot several persons shall be subject to the lien of any judgment, to which they should, by law or equity, contribute, or to which one should have subrogation against another or others, it shall be lawful for any one, having right to have contribution or subrogation, ^n case of payment, upon sugges- tion, by affidavit, and proof of the facts necessary to establish such right, to obtain a rule on the plaintiff to show cause why he should not levy upon and make sale of the real estate liable to execution for the payment of such judgment, in the proportion, or in the succession, in which the properties of the several owners shall, in law or equity, be liable to contribute towards the discharge of the common incumbrance ; otherwise, upon the payment of such judgment, to assign the same for such uses as the court may direct.^* And the court shall have power to direct to what uses the said judgment shall be assigned ;* and, when assigned, direct all executions thereupon, so as to subserve the rights and equities of all parties whose real estate shall be liable thereto. And if the plaintiff shall refuse to accept his debt, and make such assignment of his judgment, the executions thereupon, in the hands of the plaintiff, shall be so controlled and directed by the court, as to subserve such rights and equities.^ Vn. Courts of equitable jurisdiction. § 64. The first settlers of Pennsylvania brought with them the whole body of the English jurisprudence (applicable to, and requisite for their wants and situation), both that which was administered in the courts of chancery, and that which was the guide of the courts of law. The principles of equity, as well as those of law, flowed in upon them from the parent source, but in their simple state, of society, they found but little occasion for distinguishing the channels. Bo lar as regarded those principles or rules of justice, our jurisprudence was not greatly defective. They were always recognised, and pervaded our system as thoroughly, perhaps, though, not in the same manner, as in the English system.* And the whole theory of that equitable jurisprudence became incorpo- rated with our own code, and its principles circulated through all the channels of our judicial system. They were adopted by us as fully as ' Cottrell's Appeal, 23 Penn. St. ' The rule must be in the alternative. 294-5. McCormiok v. Irwin, 35 Ibid. Gunther v. Fuller, 3 Luz. h. Reg. 1. 111. And see Erb's Appeal, 2 P. & Wade v. Filan, o Ibid. 106. W. 296-9. Goswiler'g Estate, 3 Ibid. * See Wilson n. Ritchie 4 W N C. 203. Kyner v. Kyner, 6 Watts 221. 37. Fink V. Mehaffy, 8 Ibid. 384. Bank of <• The act was intended as well to Pennsylvania v. Potius, 10 Ibid. 152. secure the legal rights of the plaintiff, Hastings's Case, Ibid. 303. Coates's as the equities of the terre-tenants. Appeal, 7 W. & S. -103. Morris v. Arna's Appeal, 65 Penn. St. 72. See Oakford, 9 Penn. St. 500. And cases Roddy's Appeal, 72 Ibid. 98. Fessler collected in 2 Bright. Dig. 2208-14, v. Hickernell, 82 Ibid. 150 « Act 22 April 1856, § 9, P. L. 534 -, « Report of the Commissioners on the Purd. 827. Civil Code, 1834-5, p. 5. COURTS OF EQUITABLE JURISDICTION. 33 by any of our sister states in which a regular chancery tribunal exists, and became as binding as those of the common law,' although, up to the time of passing the act of 1836, which will be presently introduced, we had, for the most part, different modes of administering relief^ Equity and law became convertible terms ;' and still are. The power of exer- cising that jurisdiction, in a limited degree, became blended with the power to administer law, under the same forms.'' It was in consequence of this mode of administering justice, that the want of separate equitable modes of procedure was sensibly felt. In order to make the common- law forms of procedure subservient to the purposes of equitable relief, it became necessary, as we have already seen, to resort to fictions, and accordingly fictions became, and are still, the substratum of our equity system. Before the revolution, the means of doing 'justice, for the time being, were withheld from the existing tribunals ; a state of things occa- sioned by the conflict of opinion, first, between the legislature of the province and the privy council in England, and afterwards between the proprietary or royal governors and the legislature, upon the expediency of establishing a separate chancery tribunal.^ And though, since the revolution and the framing of the present constitution, these wants have, from time to time, been in some measure supplied, yet, notwithstanding these defects of form were often lamented by our judges, the jurispru- dence of the commonwealth continued to labor under the reproach of inability to do complete and efiectual justice, until the promulgation of the acts of assembly, commencing with that of 1886, which have established an almost entire equity organization. § 65. Jlistory. An examination of the early legislative history of Pennsylvania proves that equity was, for a long time, considered a necessary ingredient in the administration of justice ; and rj^eated efibrts ajjpear to have been made to unite the chancery powers witll those of the common-law courts ; which were as often frustrated by the para- mount authority of the British government. It appears from the min- utes of the provincial council, that in 1684,^ a court, consisting of five judges, was constituted, " to try all criminals, and titles to land, and to be a court of equity, to decide all differences upon appeals from the county courts." It is believed this court transacted little business. By an act passed in 1690,' the several county courts were empowered to hear and determine " all matters and causes in equity," where the subject in con- troversy was ten pounds sterling in amount or value. In 1701, in an act " for establishing courts of judicature in this province and counties annexed," we find a provision that the judges of the several courts of common pleas should have full power " to hear and decree all such mat- ters and causes of equity as shall come before them in the said courts, ' See Terr's Estate, 2 Rawle 252. lins v. Rush, 7 Ibid. 155. Bbert v. ^ Report of the Commissioners, 15- Wood, 1 Binn. 217. Hawthorn v. 16. ' Bronson, 16 S. & R. 278-9. ' Kuhn V. Nixon, 15 S. & R. 125. ' Report of the Commissioners, ut Hawthorn v. Bronson, 16 Ibid. 278-9. supra. * Shoemaker v. Meyer, 4 S. & R. 455. " 1 Colonial Records 98, 102.. Peebles v. Reading, 8 Ibid. 491. Col- ' See Rawle's Eq^uity 10, VOL. I.— 3 34 OF THE COURTS. wherein the proceedings shall be by bill and answer, with such other pleadings as are necessary in chancery courts, and proper on those points ; with power also in the said justices to force obedience to their decrees in equity, as the case may require." The supreme court had power, by the same act, to hear and determine appeals in equity causes, and to make such decrees thereon as should be agreeable to equity and justice. This act was repealed by the queen in council in 1703. § 66. In 1710, another act was passed " for establishing courts of judi- cature," by which it was provided, that " there shall be a court of equity held by the judges of the respective county courts of common pleas, four times a' year, at the respective places, and near the said time, as the said courts of common pleas are held in every county of this province."' This act shared the fate of its predecessors, having been annulled in England in 1713.2 Two years afterwards, another attempt was made, by the passage of an act " for erecting a supreme or provincial court of law and equity in this province," in which it was provided, that the judges of the supreme court should have authority " to hold pleas in equity, by bill, appeal, petition or suit, to be brought or exhibited in the said court, by, for or against any person or persons whatsoever, for any discovery, or other matters relievable in equity ; and thereupon to issue out process of subpoena or distringas, and all other usual process for compelling the parties defendants in such suit to appear, pufin their answers, and make their defences to such bills, appeals, petitions or suits ; and for the parties to proceed thereon and thereupon, according' to such rules or orders, and in such manner and form, as the courts of chancery and exchequer in Great Britain have used to proceed by," &c. This act was annulled in England in 1719. In the succeeding year, in consequence of a resolu- tion of the assembly. Governor Keith established a separate court of equity, exercising the functions of chancellor in his own person, assisted by certain members of the council ; and this tribunal appears to have existed, nominally at least, until about the year 1736, when, in conse- quence of the determined opposition of the legislature, it was discon- tinued or suppressed.' After that year, no attempt appears to have been made, either to create a distinct court of chancery, or to invest the common-law courts with general chancery powers. § 67. The orphans' court has, indeed, always been essentially a court of equity.^ Its jurisdiction is limited, but within its peculiar range, it has, from the earliest times, exercised many of the functions of a court of chancery. The act of 1713, § 8,^ gave to this court power to compel obedience, by attachment and sequestration, " as fully as any court of equity may or can do." But, although the orphans' court has been called a court of equity, in respect to the few subjects within its juris- diction, the auxiliary powers of such a court have not been given to it. ' Bradford's Laws, 1714, p. 120. appendix to that work. I I ^®^°- ^rohives 158. * Commonwealth v. The Judges. 4 » See Rawle's Equity 19. The Refr- Penn. St. 301. Dundas's Appeal, 64 istrar's Book of Governor Keith's Ibid. 325. court of chancery is puljlished as an « Bradford's Laws, 1714 p 178 CdUETS OF EQUITABLE JUEISDICTION. 35 It is a special tribunal, for specific cases ; and its resemblance to a court of equity consists in its practice of proceeding by petition and answer, containing the substance, but not the technical subtleties and nice dis- tinctions of a bill in equity ; by which, however, justice is obtained more conveniently, and as certainly, as in the courts of equity purely so called.^ § 68. By the act of 1722, § 13, the judges of the supreme court were authorized to " minister justice," and exercise the jurisdiction and powers thereby granted concerning the premises, " as fully and amply, to all intents and purposes whatsoever, as the justices of the court of king's bench, common pleas, and exchequer, at Westminster, or any of them, may or can do."^ The court of exchequer, in England, had chancery powers, until recently, but this section has never been supposed to confer them on our supreme court. By the same act, § 21, the courts of common pleas were authorized to " hear and determine all manner of pleas, actions, suits and causes, civil, personal, real and mixed, accord- ing to the law and constitution of this province." No express authority to exercise chancery powers was given to them by this act, nor can any be implied. In 1772, an act was passed " to oblige the trustees and assignees of insolvent debtors to execute their trusts."^ Commissioners were to be appointed by the court, who had authority to call the trustees before them, and compel them to settle their accounts, and to call before them witnesses, and examine them, &c. This appears to have been the first attempt to give relief as in equity, in the case of trustees, and is the only instance ,of the kind that we have met with prior to the revolution. This act was repealed in 1818.^ § 69. The constitution of 1790 declared, that " the supreme court and the several courts of common pleas of this commonwealth, shall, besides the powers usually exercised by such courts, have the powers of a court of chancery, so far as relates to the perpetuating testimony ; obtaining evidence from places not within this state ; and the care of the persons and estates of those who are. non compotes mentis ; and such other powers as may be found necessary by future general assemblies, not inconsistent with this constitution." The first grant of equity powers, subsequently to this constitution, appears to have been occasioned by the frequent complaints of the loss of deeds, during the revolution. By an act passed the 28 March 1786,' power was given to the supreme court, upon bill or petition filed, setting forth the loss of deeds, or other writings, to issue a subpoena, requiring the persons named to appear, and make answer, on oath, &c. ; to refer to a master, and, upon his report, to make such order and decree in the premises as to justice and equity shall appertain. This act was limited to continue in force five years, and consequently, expired in 1791. But, in 1793, it was revived, and extended to the respective courts of common pleas ; and is yet in force, being made perpetual.* The 1 Brinker v. Brinker, 7 Penn. St. 53. » 2 Ibid. 375 ; Purd. 476. » 1 Sm. L. 140. « Act 16 February 1866, P. L. 50 ; « Ibid. 414. Purd. 477. ♦ 7 Ibid. 133. 36 OP THE COUETS. next instance of the grant of equity powers was in 1789, when proceed- ings in the nature of a bill of discovery were authorized in the case of foreign attachment.' These are all the powers of relief in equity that appear to have been granted or exercised, previously to the constitution of 1790. § 70. We now proceed to inquire, what powers were conferred by the constitution, or have since been granted ? By express grant in the con- stitution,^ the supreme court and the several courts of common pleas have power to grant relief in equity, so far as relates — 1. To the perpetu- ation of testimony : 2. To the obtaining evidence from places out of the state : 3. To the care of the persons and estates of those who are non compotes mentis : 4. Such other powers to grant relief in equity as may be necessary. The first of these powers has been exercised by the courts directly under the constitution, without any legislative provision respect- ing it. The proceedings are in accordance with the English chancery practice. The second is exercised by these courts, and, indeed, by all the courts of the commonwealth, without any chancery forms, in the way of commissions, and by rule of court.' The power of determining upon the alleged insanity of persons is exercised upon petition, and through the medium of commissioners and an inquest, according to the practice of chancery ; and the appointment of committees of the person and estate, is according to the same rules. The legislature has given au- thority to the courts of common pleas to allow the sale or mortgage of the. real estate of a lunatic, by two acts — one passed in 1814,^ and the other in 1818 f and by the act of 13 June 1836, an entire system for the management and control of lunatics' estates has been established. § 71. Besides the powers expressly given by the constitution, the legis- lature has, from time to time, granted authority to the courts to admin- ister relief in equity, in the" following cases: The act of 31 March 1792,^ provides for the specific performance of written contracts to sell lands, in cases where the vendor has died. The proceedings are by petition to the supreme court or common pleas, in the chancery form ; and the court is authorized to make an order empowering the executors or administrators to execute a deed. The act of 1804' extended the authority to the case of executors of executors, and administrators de bonis non. The act of 18188 authorized similar proceedings in the case of parol contracts; and the act of 1821' applied the remedy to the case of cov- enants for the release or extinguishment of ground-rents And now bv the act of 24 February 1834,i» it is directed, that the proceedings in' the ^ Act 28 September 1789, 2 Sm. L. derive authority to administer oaths r \ .. V ,a ^.^^ ■ . Vvnuk V. Colhoun. 59 Penn. St 386 ^ Art. V. §6. The constitution of * 6 Sm. L. 104 ^c-^8D. 18Y4 confers upon the several courts ' 7 Ibid. 136 of common pleas, such equity powers « 3 Ibid' 66 ■' Purd 274 as are now vested by law in the said ' 4 Ibid 158 • Purd 27^ courts, or as may hereafter be con- s 7 Ibid. 79 • Purd 27^ ferred upon them by law. Art. V. § 20. " Ibid. 355 ;' Purd 748 / It 18 under this clause that commis- " P L 75 • P.,rH Wfl sioners appointed to take depositions, ' COURTS OF EQUITABLE JUEISDICTION. 37 caso of a contract by a decedent, shall be in the orphans' court, who have power to decree the specific performance of the contract. By the act 1794,^ the same proceedings are authorized against the committee of a lunatic. § 72. Very important and useful powers have also been granted in cases of trusts and trustees, by several acts of assembly. Power has been given to bring actions against executors for the recovery of lega- cies, which places these actions on the footing of a bill in equity f to compel a settlement of accounts by assignees of debtors,' and other trus- tees,* the proceedings being according to the chancery practice, by cita- tion and answer, interrogatories in place of bill of discovery, &c. ; to remove assignees who are in failing circumstances, or wasting the estate, or neglecting the trust, or about to remove, and to appoint others in their place f to remove trustees, created by conveyance, &c., under similar circumstances, and to appoint others f to appoint trustees, in all cases where the duties of the trust cannot be performed, by reason of death, infancy, lunacy, or other inability, or where a trustee named in any deed or will refuses to act, or where one of several is dead f to discharge trus- tees, on their own application, after settlement of accounts, &c. ;^ to com- pel trustees to convey the legal estate, where the trust has expired ;' to compel trustees in domestic attachment to settle their accounts, and to dismiss or discharge them f to dismiss assignees under a voluntary assign- ment, and appoint others ;" to compel trustees for religious and char- itable societies to account ; and to dismiss them and appoint others in their stead.'^ These powers are now vested in the respective courts of common pleas. § 73. Besides these general authorities, there are many special acts of assembly, giving powers to the courts to grant relief in equity, in par- ticular cases of trust. Power has been conferred on the courts to give relief in certain cases, by compelling answers on oath to interrogatories in the nature of a bill of discovery. In the case of stock in a body cor- porate, owned by a debtor, the act of 1819 authorizes interrogatories to be administered to the person in whose name the stock is held, and requires answers on oath.^* In the case of assignees' accounts, by the act of 1828, auditors are authorized to examine them on oath touching their account. In the case of corporations against whom a judgment may be obtained, with a return of nulla bona to an execution, citation may issue to any officer or member, and answers on oath to interrogatories may be required and compelled." Analogous to the proceedings in chancery, I 3 Sm. L. 129. ' Ibid. ' Act 21 March 1772, 1 Sm. L. 383. = Ibid. See Dunlop v. Bard, 2 P. & W. 307. " Act 23 April 1829, P. L. 328. 3 Act 24 March 1818, 7 Sm. L. 131. " Act 21 March 1831, P. L. 193. * Acts 22 March 1825, 8 Sm. L. 405, " Act 17 February 1818, 7 Sm. L. aod 14 April 1828, 10 Ibid. 222 ; Purd. 43. 1420-1. ^ ' 13 ^gt 29 March 1819, 7 Sm. L. 218 ; 6 Act of 1818, ut supra. Purd. 642. « Act of 1828, ut supra. " Act 14 April 1828, 10 Sm. L. 213. » Acts of 1818 and 1828, ut supra. 38 OF THE COURTS. though the cases are not within the jurisdiction of the English chancel- lor, are the proceedings in cases of divorce^ and habitual drunkards.^ § 74. Meport of the revisers. In 1830, a commission was appointed to revise the statute laws of the state.' On the 9 January 1835, this commission made a report on the Administration of Justice, from which the following extracts on the subject of equity jurisdiction are given : The jurisdiction of the chancery in England, say the commissioners in their report, is divided, by a late writer of authority,* into three branches ; a division which it is convenient to adopt here, to avail our- selves of in another part of this inquiry. I. Exclusive. II. Assistant. III. ConiMrrent. I. The ea;c&tMve jurisdiction embraces, 1. Trusts. 2. Mortgages. 3. Equities of married women. 4. Idiots and lunatics. 5. Infants. 6. Charities. 7. Receivers. II. The assistowi jurisdiction, 1. Discovery of facts material at law from parties. 2. Obtaining evidence from persons not parties. 3. Compelling suppression of facts, &c., not affecting merits. III. The corecMrrew^ jurisdiction, A. Peculiar means of administering distributive justice. 1. By reference to masters. 2. By directing trials and issues. 3. By its mode of executing certain special decrees. § 1. In ascertaining boundaries. § 2. In making partition. § 3. In setting out dower. B. Peculiar means of administering ^everaiwe justice. 1. By injunctions. § 1. To restrain nuisance. § 2. To restrain trespass. § 3. To restrain waste. § 4. To restrain proceedings at law. 2. By decrees upon bills quia timet. 0. General means of administering justice 1. In cases of accident. 2. In cases of mistake. 3. In cases of fraud. Purd^''507^ ^""""^ ^^^^' ® ^"'- ^- ^^ ' .; "^.^^ commission was composed of ;nr25 .e._y m, VS.. .. ^t=.s:^,^^' ^^— ^ COUETS OF EQUITABLE JURISDICTION. 39 4. In cases where the remedies afforded by the courts of law are inappropriate. § 1. By compelling specific performance of agreements. § 2. By enforcing delivery of specific chattels. § 3. By relieving against forfeitures and penalties. § 4. By rescinding agreements. § 5. By preventing abuses of the rules and practice of the courts of law. 5. In cases of account. Taking this enumeration of the powers of chancery to be sufficiently full and comprehensive, let us see to what extent our courts possess these powers, and whether they are exercised as such, and according to the forms of chancery proceedings, or through the common-law channels. § 76. I. Of the exclusive jurisdiction of chancery, aud herein — 1. Of trusts. The principles of our law, upon the subject both of express and implied trusts, are believed to be precisely the same as those of chancery, and we are not aware that any difficulty is experienced in the application of those principles to the cases arising in the courts. It is in the direct and visitatorial pow*r of chancery over trustees, that its superiority over our courts was, until within a few years, very apparent. These powers consist in — (1.) The removal of trustees for misconduct, and other causes which render them unfit to execute the trust. (2.) The discharge of trustees, at their own request. (3.) The appointment of new trustees, in all cases of vacancy or inability, whether by death, removal or otherwise. (4.) To give relief in the cases of infant, idiot, insolvent or absent trustees, by directing conveyances, &c. (5.) To compel conveyance of the legal estate to the cestui que trust, ' when the trust has expired. To what extent have these powers been imparted to our courts ? 1. The acts of 1823, 1825 and 1828, give power to remove trustees appointed by deed, will or other instrument, in case of misconduct, incapacity, &c. Some doubt has been expressed whether the provisions of these acts extend to the case of a trustee, who has in part executed the trust ; and the case of implied trusts is not provided for at all. 2 & 3. The discharge of trustees, and the appointment of others, are also fully provided for by the above-mentioned acts. 4. We have no provision precisely of this kind. The object is attained, however, by the appointment of a trustee for the purpose.^ In England, it appears to be thought that a trustee ought not to be removed, merely by reason of infancy or lunacy ; but that the court ought to have the power of directing the infant, or the committee of the lunatic, to con- vey, in cases where a conveyance by the trustee is required.^ We think, upon the whole, that our law is broad enough for every valuable pur- pose, and that the authority to appoint a new trustee, which might per- 1 See act 1 May 1861, P. L. 680; is not void. Eyrick «. Hetriok, 13 Penn. Purd. 1424. _ _ St. 488. ' A conveyance to a lunatic, in trust, 40 OF THE COUETS. haps be extended to the appointment of temporary trustees, during the minority or absence of the nominal trustee, is sufficient, and more conve- nient in its operation.^ 5. The acts of 1825 and 1828 give express authority to the courts to compel trustees to convey the legal estate, when the trust has expired. Little, therefore, seems to be wanted to complete the powers of our courts to give relief in equity, in this branch of its jurisdiction, except- ing the application of them to the case of implied trusts, and the other cases to which we have adverted. § 76. 2. In the case of mortgages. Here, we have a system of our own, which possesses advantages of a peculiar kind, and, it appears to us, is preferable, in all respects, to the artificial and complicated system, which has grown up in England. We find- no defects in our law upon this point, and have no occasion to borrow any of the powers of the English chancery. The recording acts have relieved us from many embarrassing questions of frequent occurrence in England ; and the proceeding by scire facias has rendered obsolete most of the law about foreclosure and equity of redemption.^ § 77. 3. Equitable rights of nfarried women. No doubt is enter- tained that the principles of equity upon this subject are the same in our courts as in chancery. The doctrines respecting the separate estates'of married women, their rights and liabilities, have been recognised in this commonwealth, from the earliest dates. Upon the subject, however, of the equity of a married woman to a settlement or provision out of pro- perty devolving upon her husband or his assignees, in her right, the case is somewhat different. In Yohe v. Barnet,' Chief Justice Tilghman said : " It is to be regretted that the courts of this state are not vested with the power exercised by the court of chancery in England, of insisting on some provision for the wife, when the husband applies to them for the purpose of getting possession of her personal property. But we have no trace of any such exercise of power by our courts. It must be taken for granted,_then, that they possess no such power." So, in Slifer v. Beates,* Judge Duncan said : " In our last inquiry, the difficulty arises from the want of adequate chancery powers ; and this court has, on various occa- sions, been distressed in the distribution of the wife's real estate, converted by the act of the law into personal ; for, if the husbands of these two femes covert, who have brought this action, came into a court of chan- cery against the trustees, for the trust-money arising from the sale under the decree of the orphans' court, that court, where there was such, would fi^\ \T^ Ml /""'' ^^^^' ^ ^^' P- ^- '^°'"«f*''' corporation, or any foreign cor- , ^ Th^;|t5^Sl87e,P.L.123,Purd. ^7^: UntSS^^S^a^ 2009,confer8uponthecourtsof common decree a sale, under a corporation m"rt^ pleas all the powers of a court of chan- gage. McElrath v. Pittsburgh and Steu- cery m reference to mortgages of the pro- benville Railroad Co., 55 Penn St 189 perty or franchises of any canal railroad McCurdy's Appeal, 65 Ibid. 290 Bv act or navigation corporation, where the 23 March 1877, this is extended toother same,oranypartthereof,issituateorex- corporationmortgages P L 32 Purd ercisible within the limits of this state, 2115 & b "■ •^ • ^^oi. , j-ura. and belonging to or exercisible by any » 1 Binn. 365. 'i 9 S. & R. 182. COURTS OF EQUITABLE JURISDICTION. 41 be the only tribunal. Here, there is no such authority exercised by the court. Chancery would compel a reasonable settlement on the wives," &c. § 78. By the act of 29 March 1832, § 48, power has been given to the orphans' court to make provision for the wife, in all cases in which money shall be awarded to her by that court, for her share or portion of the estate of an intestate. It seems to us, to be proper to give similar authority to the common-law courts in cases of partition, and in all other cases in which the wife's real estate may be converted into personal, as in the case of the surplus proceeds of a sale of the wife's land under an execution, and we think, that so far the legislature is called upon to go, by obvious principles of justice and expediency. But, do these prin- ciples require us to carry the rule to the extent of compelling the hus- band to make provision for his wife, in every case in which he seeks the aid of the court to recover her money or property? The rule in Eng- land is by no means a satisfactory one. If the husband is obliged to go into the court of chancery to recover his wife's choses in action, that court will require him to make a reasonable settlement upon her. But, if he can recover them through the means of the common-law courts, chan- cery will not interfere. With us, however, there is but one species of tribunal for the recovery of property, whether in possession or action. No distinction can, therefore, be made which can be sustained upon any clear principles. § 79. We incline, upon the whole, to think that, in such questions, it will be better to let them take their course, without interfering between husband and wife, with the exception only of the case in which the wife's real estate has been converted into personal, by process or operation of law, when, we think, that she should not stand in a worse situation than if the property had continued to be real ; unless, upon a separate exam- ination, she should consent to the appropriation of the fund to her hus- band. If, therefore, we extend to the common-law courts the power which has been given to the orphans' court in this respect, it appears to us, that we shall confer as much additional chancery power, with regard to this subject, as is desirable, at present. We wish to limit this remark, however, to the particular question we have been considering. There are difficulties and hardships arising out of the present law, and powers of the courts, relating to divorce and insolvency, which require serious consideration ; and we have before us some plans upon these subjects, which we expect to submit to the legislature, intended to secure to mar- ried women a suitable portion of their personal property, in the event of a divorce, or of the insolvency of their husbands, without impairing the marital authority, or interfering with the just claims of creditors. Per- haps, the act of 11 April 1848' makes ample provision for the protec- tion of the rights of married women. And this act, together with the recent enlarged chancery powers, by legislation, furnish remedies in most cases. § 80. 4. Idiots and lunatics. The next subject of chancery juris- 1 P. L. 536 ; Purd. 1005. 42 OF THE COTJETS. diction is contained under the head of idiots and lunatics. Here, as has been already shown, the general jurisdiction is given by the constitution, in express terms : " the care of the persons and estates of those who are non compotes mentis." These expressions would seem, from the context, to give the court all the powers usually exercised by the chancellor in England ; and such, doubtless, was the intention of the framers of the constitution. It is not necessary, therefore, in reference to our present object, to inquire what were the powers of the court of chancery, or rather, of the chancellor in person, in England, in respect to idiots and lunatics, at the date of the constitution, since they have passed, of course, to our courts. But since that date, important alterations have been made in the English law, respecting both the method of proceeding upon com- missions of lunacy, and the care and treatment of this unfortunate class of persons, some of which deserve to be incorporated with our code. We have prepared a bill on this subject, which, we think, will be found to contain some essential improvements of the law. § 81. 5. Infants. The power of the English chancery to appoint and control guardians, and to regulate the maintenance of infants, is vested, in its fullest extent, in our orphans' court ; which also possesses authority to allow the sale or mortgage of their real estate, to an extent which, it is believed, the English chancery does not possess ; but our orphans' court has never interfered on the subject of their marriage, as has been done in England. It does not appear to be expedient, to incor- porate this part of their equity jurisprudence with ours. Another branch of chancery power, arising from their general jurisdiction over infants, viz., the control of the parents' custody of them,' has been exercised by the supreme court on habeas corpus,^ and by the common pleas ;^ and probably no additional power is required. § 82. 6. Charities, The chancellor, in England, exercises a general superintendence over charitable corporations and societies, and controls trustees appointed for such purposes, in the same manner as others. One of his most important functions, in this capacity, is the direction of such trustees in the execution of the trust, keeping them in the channel of the donor's intention, where it is practicable, and where that is not the case, making new channels for them cw near that as possible, or, in the technical language, cy pres. So far as regards the appointment, removal or discharge of trustees, our courts have now the same powers as the chancery, and may exercise them in the case of charities, as in other cases. The act of 17 February 1818 gives express authority to the courts to call to account and remove trustees holding propertyfor reli- gious, literary or charitable purposes, and the acts of 1825 and 1828 extend the authority to all cases of trusts. These powers will probably be found sufficient to keep trustees to their duty, and to prevent the trust failmg for want of a suitable trustee. But in regard to the other branch ' Wellesley v. Duke of Beaufort, 2 wealth v. Reed, .^9 Penn. St. 425. lo uu AJJ-, .„ ' Commonwealth B.Nurt,i Bro.143. Commonwealth ». Addicks, 5 Binn. Commonwealth v. Anderson, 1 Ash. 55. tloif^"" °'i A TU-; lit- H"°'°'°"- ^"^^ ^y 'h« <=0"rt of quarter sessions. wealth V. Fee, 6 Ibid. 255. Common- Commonwealth v. Smith, 1 Brewst. 547. COURTS OF EQUITABLE JUEISDICTION. 43 of the chancellor's jurisdiction and powers, which we have mentioned, his interference, namely, in relation to the fulfilment of the charitable purposes, the case is different. It is believed, that no instance has occurred in this state of a similar exercise of authority by our courts ; and their power to interfere, under existing laws, may well be questioned. If, for example, a testator should bequeath funds for charitable purposes, gen- erally, without mentioning the particular objects, or for some chari- table purpose which cannot be attained, or the like, and the trustees should be willing and competent to act, has any court in this common- wealth power to direct, a prion, the application of the fund to a pur- pose near to that which may be supposed to have been intended, or to direct it at all?^ We say a priori, because, doubtless, when the execu- tor or trustee, as the case may be, comes to settle his accounts, the court which has jurisdiction of his accounts will determine whether Kis appli- cation of the funds has been in conformity with the directions in the will. We think, that our courts do not possess the power of controlling such trustees, otherwise than as just mentioned, and indirectly, by the power to dismiss them if they shall mismanage the trust-funds ; and it appears to us, upon the whole, that, considering the delicate nature of many ques- tions arising upon trusts for religious and charitable purposes, it is as well to leave the law on its present footing. § 83. 7. Receivers, The court of chancery also exercises the power of taking charge of property, both real and personal, for the benefit of the parties interested therein, wherever this is necessary for the due administration of justice ; and this is done through the medium of a receiver, appointed for the purpose. The power to interfere, in cases of this description, has rarely been exercised by our courts. It is, never- theless, a most salutary attribute of preventive justice ; and if any doubt should exist, respecting the jurisdiction of the courts, we think it ought to be at once removed. We can see no reasonable objection to giving all the courts express authority for this purpose. There are cases in which it may be absolutely necessary, as in the instance of an insolvent corporation,^ which will be remarked upon hereafter, and we think that, to prevent abuses, it may be well to provide that security shall be required, in all cases, from receivers. ' See act 26 May 1876, P. L. 21 1 ; unless under urgent and peculiar oir- Purd. 1986. eumstaEces. The plaintiff must show a ^ The appointment of a receiver is clear right, in such a case, or a primd the exercise of a power in aid of a pro- facie one, with such attending circum- ceeding in equity, and is the subject of stances of danger or probable loss, as sound discretion ; the court must be will move the conscience of a chancel- convinced that it is needful, and is the lor to interfere. Chicago and Alleghe- appropriate means of securing a proper ny Oil and Mining Co. v. United States end ; such an appointment is a strong Petroleum Co., 57 Penn. St. 83, 91. measure, and not to be exercised doub(> Where a person is in possession of real ingly. Where a party is clothed with estate under a primd facie legal title, title and possession, such as are con- a court has no power to appoint a re- ferred by a lease in writing, and is in ceiver of the rents and profits, at the the enjoyment of rights apparently le- suit of an adverse claimant. Sohlecht's gal, a receiver will not be appointed, Appeal, 60 Ibid. 172. 44 OF THE COURTS. § 84. II. Assistant jurisdiction of the chancery. 1. Discovery of facts, material at law, from parties. It has been already shown, that the power of compelling a discovery from parties has been given by our courts — (1.) In the case of garnishees in foreign attachment. (2.) In' the case of lost deeds. (3.) In the case of stock, held in a corporate body, in the name of a third person. (4.) In the case of the accounts of assignees. (5.) In the case of suits against corporations, to discover their pro- perty. To which may be added — (6.) The power of compelling the production of books and papers, ^ given by the act of 1798. (7.) In the orphans' court, the power of compelling answers in the case of executors, administrators and guardians. And anal- ogous to this, is the power requiring answers upon oath, by persons applying for the benefit of the insolvent laws. It remains to be considered, whether this power ought to be enlarged, so as to embrace the whole sphere of litigation ; namely, to compel dis- covery, in all cases, from parties to a suit, where, by the rules of equity, they may be required to answer. We think, that there is no substantial reason in the way of our adoption of this practice. The march of justice is often interrupted, and sometimes defeated, in our courts, for want of this important aid ; and, although there is alleged to be danger of per- jury, we think that the experience of the courts of equity proves that this is very small. Under the restrictions, and with the exceptions, with which it is exercised in the English chancery, we cannot but think that it will be found a very useful addition to the means possessed by our courts of doing justice, and, therefore, that it is proper to introduce it into our system. The commissioners, appointed by the British govern- ment, to inquire into the practice of the courts of common law, have proposed to give those courts power to examine the parties, in all cases, upon interrogatories, as an equivalent to the bill of discovery. 2. Discovery of facts from persons not parties. The powers exer- cised by chancery, and classed under this head, viz. — (1.) Examining witnesses, out of the jurisdiction of the courts, by means of commissions, &c. (2.) For the perpetuation of testimony — Are already possessed, and constantly exercised, by our courts. The first in the court, whatever it may be, in which the evidence may be required ; and the second, in the supreme court and common pleas, in the regular chancery form, by bill and answer. We propose, in a bill relating to the action of ejectment, which accompanies this report, an additional method of securing the perpetuation of testimony, in certain cases. Nothing further seems necessary to be suggested upon these points. 3. Another of the powers of chancery is said to be exerted, in' com- pellmg the suppression of facts and circumstances, which do not affect the merits of the question at law. This is one of the titles, into which COURTS OF EQUITABLE JURISDICTION. 45 the head of the assistant jurisdiction of chancery is divided in the trea- tises upon equity ; but it is not perceived that it is, in reality, a distinct branch. It is connected with the subject of notice and attendant terms, which have little or no significance or value iu our law ; and, at all events, the power of suppression, here alluded to, is sufficiently possessed by our courts, on the trial of questions in which it may arise. Thus, it is said, that if a person,entitled to real estate, fears that some mere legal obstacle will be set up by his opponent, he may file a bill of discovery ; and, if it shall appear, upon the answer and hearing, that the plaintiif has greater equity, and the defendant a naked legal title, the court will enjoin him against using it, to prevent the plaintifi''s recovery at law. The principles of law and equity being amalgamated in our jurispru- dence, our courts reach the same result, by considering the legal title conveyed to the plaintiff, and thus save the expense and trouble of a proceeding in equity. No addition to our law appears to be necessary, therefore, in this respect. § 85. III. Concurrent jurisdiction of the chancery. A. Peculiar means of administering distributive justice. 1. By reference to masters. The advantages of a reference to masters are obtained in our courts by the appointment of auditors or commissioners. In the orphans' court, audi- tors are as essential a part of the machinery as masters are of the English chancery. In the supreme court and common pleas, they are usually ap- pointed on questions relating to the distribution of money paid into court, and upon the accounts of trustees, and occasionally for other purposes. No addition to the power of the courts, in this respect, seems necessary. 2. Trials and issues in courts of law. One mode of administering justice in chancery is by directing trials at law, to determine particular facts in litigation. This, of course, it is not necessary to consider here, since, by our system, the trial is in the court possessing chancery powers. 3. There are certain special decrees made by chancery, in which relief is given in a peculiar manner. (1.) By commissions to ascertain boundaries. These are believed to be seldom resorted to, and not of sufficient im- portance to make their extension to our courts desirable.' (2.) Commissions to make partition. The proceedings in the orphans' court, to make partition between the heirs of an intestate, are believed to be sufficient to enable the court to do justice to all parties. In the common-law courts, however, inconve- niences are sometimes experienced, from the difficulty of proving the titles of the parties interested. In chancery, the answer of the defendants sets forth their title, and a reference to the master ascertains it ; and upon his report, the court dismisses the petition, as against those who do ' Chancery jurisdiction in case of 267, and 5 April 1859, P. L. 359 ; and disputed boundaries has been conferred upon the common pleas of Allegheny, upon the common pleas of Philadel- by act 15 April 1863, P. L. 499 ; Purd. phia, by acts 15 April 1858, P. L. 596. 46 OF THE COURTS. not appear eDtitled. The appointment of commissioners, to set out the respective portions, appears to be, in some respect, better than the pro- ceeding before a jury. We think.that some advantages would be gained for the administration of justice, by the adoption of the chancery prac- tice upon these points, at least, so far as to substitute commissioners for an inquest, where the parties assent to it.' (3.) Commissions to set out dower. The same remark may be made upon this point as under the preced- ing head, viz. : That the commission to set out dower is more convenient, in general, than the proceeding before an inquest, because the commis- sioners are fewer in number, and selected with more especial reference to their competency for the task.^ § 86. B. Peculiar means of administering preventive justice. 1. It is here that the powers of the courts of equity appear to possess a decided superiority over those of the courts of common law, and that instances most frequently occur of defects in our administration of justice. The principal cases mentioned in the chancery books, in which the court interferes by its writ of injunction to prevent or restrain the commission of acts injurious to others, are — (1.) In case of nuisances. (2.) In case of trespass. (3.) In case of waste. In all these cases, the power is most important and valuable. Indeed, no system of justice can be considered to be complete, without the means of prevention and restraint. In the case of waste, our courts have been invested with such powers to the fullest extent, and there appears no rea- son why they should not be extended to the other cases mentioned. It will be seen that, in the bill relating to estrepement, we have suggested a method of restraining the commission of trespass upon lands, in certain cases. (4.) lo restvean proceedmffs at law. The courts of chancery interfere by injunction to restrain proceedings in the courts of common law, whenever the result of such proceedings would be contrary to equity. The objects obtained by this method of chancery procedure are effected, in many cases, in our courts, in the ordi- nary mode of administering justice, on the trial of the action. There are two classes of cases, however, coming under this head, in respect to which our courts are deficient in the means possessed by chabcery, in conse- quence of the inflexibility of the rule of law relating to the parties to suits, viz., bills of peace and bills of interpleader. In both these casas, it is necessary to introduce other persons than those who are parties to the record at law, and in both, the right or title is settled in one proceed- ' See aot 14 April 1857. P. L. 97, Purd. 595, the common pleas of Phil- Purd. 595, conferring such power, in adelphia is invested with all the power Philadelphia; act 13 April 1859, P. L. and jurisdiction of a court of equity 605, as to Allegheny county ; and aot in oases of dower and partition. And 12 March 1807, P. L. 35, as to Craw- this jurisdiction is extended tlirouah- ford, Erie and Warren counties. out the state, by act 14 February 1857 ' By act 17 March 1845, P. L. 160, P. L. 39 ; Purd. 592. ^ ' COURTS OF EQUITABLE JURISDICTION. 47 ing, and costs saved, and further litigation prevented. Among the pro- visions intended to be submitted to the legislature, in this connection, we shall suggest some methods of supplying the deficiencies in our practice, and completing the means of doing justice to the extent possessed by the oouxts of chancery. 2. Preventive justice, by means of a bill quia timet. We have nothing of this kind in our jurisprudence, except so far as relates to threatened waste, in which case, the acts of assembly, as we have seen, authorize the issuing of a writ of estrepement. In the case of chattels or funds, of which the party is not entitled to the immediate possession, we have no means of securing his rights, except so far as the 40th sec- tion of the act of 1834, relating to executors and administrators, has supplied the defect. This is one of the " powers to grant relief in equity," which, it appears to us, ought no longer to be withheld from our courts. We have, accordingly, made some provisions upon the subject, in some of the bills relating to particular actions, as ejectment and contribution ; and we intend to submit to the legislature other suggestions designed to complete the measure of relief.' § 87. C. General means of administering justice by decrees better adapted to the case, or administered in a more satisfactory manner than can be obtained in the courts of law. 1. In case of accident, as in the instances of lost deeds, bonds, &c. In these and similar cases the principles of equity are recognised by our courts, and satisfactorily enforced through the medium of their ordinary power and practice. 2. In case of mistahe. 3. In case of fraud. The same remarks may be made of the chancery rules upon these subjects. They require no exercise of power different from those which have been already noticed, and the principles upon which they rest are familiar to our jurisprudence. 4. Means of administering justice where the remedies alEforded by the courts of law are inadequate. (1.) By compelling the specific performance of agreements. This is a highly important part of the chancery jurisdiction, one in which its superiority over the common law is most frequently alleged, and in which the exercise of its powers is very frequently invoked. We possess, nevertheless, in our Pennsylvania practice, remedies which some eminent jurists have considered to be quite equal, in their results, to those of chancery. The value of the chancery proceeding consists in its compelling the thing to be done which has been contracted to be done, viz., the conveyance of land, or the delivery of a chattel. The method of compulsion consists in punishment by attachment and sequestration, if the decree of the court is not carried into effect by the defendant. If he should prefer to lie in prison rather than execute a deed, the English court of chancery could do no more. With us, the proceeding is by 1 See O'Neil v. Hamilton, 44 Penn. Ibid. 413. Morris v. Boley, 1 W. N. St. 18. Kennedy v. Kennedy, 43 C. 303. 48 OF THE COUKTS. ^'ectment, under which actual possession of the premises is recovered ; and nothing is wanted but the deed, which may sometimes be obtained from the defendant by the compulsion of damages assessed by a jury. It may be proper, however, to enlarge the existing powers of the courts, so far as to authorize them, after judgment in ejectment, to make an order upon the defendant for the execution of the necessary conveyauce, and to enforce Buch order in the manner of a court of equity. The remedy by ejectment, however, is believed not to be altogether adequate to the purpose of compelling specific performance, and, at the same time, of compensating the plaintiff for the damages which he may have sus- tained in consequence of the non-performance of the agreement. To complete the remedial law in this respect, we propose an enlargement of the action of covenant, by giving it, in some respects, the properties of a bill in equity, and enabling the court to enforce specific execution of the covenant, by a writ of habere facias possessionem. By the alteration proposed, it is not intended to dispense with the accustomed proceeding by ejectment, but merely to increase the number of remedies designed to supply the place of the bill for specific performance. We have thus far considered agreements for the specific execution of contracts for the conveyance of land, as in writing, and, therefore, within the provisions of the statute of frauds. There are instances, however, in which agree- ments of this description have been made by words only ; and in such cases, if there has been a part performance in conformity with the agreement, our courts, as well as most of those admiilistering similar laws, have compelled the execution of them so far as their means ad- mitted. Where the chancery method prevails, no great difficulty exists, because the /acte are admitted by the defendant's answer to the bill of discovery, and this is taken to be equivalent to an agreement by him in writing ; but no similar authority having heretofore been exercised by our courts, cases have occurred of inability to do complete justice in this respect. The addition to the powers of our courts which we have already mentioned, to compel answers to bills of discovery, or interrogatories, upon that head, will, we think, remove the only remaining defect in our law relative to the specific performance of agreements for the conveyance of real estate. (2.) By enforcing delivery of »pedjic chattek. We arrive at the same result, or rather possess a more certain and speedy remedy, by means of the action of replevin, which has been extended, by our prac- tice, to all cases in which goods are detained from the rightful owner; though by the modern English practice (at least), this action is confined to the case of goods unlawfully taken by the defendant. There does not seem tobe any necessity, therefore, for incorporating the chancery pro- cedure, in this respect, with ours.' (3). By relieving against forfeitures and penalties. The principles of chancery, in respect to this subject, are adopted in our code, and • See McGowin v. Remington, 12 was exercised. And see Mange v Penn. St. 56, where this jurisdiction Guenat, 6 Whart, 141. C0UET8 OF EQUITABLE JURISDICTION. 49 administered in the courts in which the forfeiture or penalty is sought to be enforced. This is a much more simple and convenient mode of proceeding, the symmetry of which would be impaired by the introduc- tion of the chancery remedies. (4.) By rescinding agreements, where there was no consideration, or where it would be unconscientious to require the performance of them. The remarks upon the last head apply to this, with the addition, that we are deficient in the chancery method of compelling the delivery up of an agreement, to be cancelled. Perhaps, this is not of much import- ance, since the possession of the paper containing the agreement would be of little value to the party, if the contract is declared to be void. If the possession of the paper should, however, be deemed to be mate- rial, we are not deficient in the means of compulsion, since the action of detinue or trover, or perhaps replevin, may be brought for the pur- pose. It may be proper also to confer upon the courts express power to order the delivery up of instruments, in all cases in which it would be contrary to equity to enforce them. (5.) By preventing abuses of the rules and practice of the courts of law. Everything which can be procured in a bill of chancery for this pur- pose, is, with us, obtained by application to the court in which the pro- ceedings took place. 5. In cases of account. "The ground upon which chancery has assumed a concurrent juris- diction with the courts of law, in matters of account, has been said to be, that the remedy which it is capable of affording is much more com- plete than that which may be obtained by action." The superiority of the proceedings in chancery, in this respect, has been denied by some writers, who contend that the action of account-render is as comprehen- sive in its nature, as speedy in its operation, and as complete in its results, as the bill in chancery for an account. It is certain, however, that if a defendant in the action of account-render, choose to avail him- self of the power which the law gives him, he may involve the plaintiff in considerable expense, procrastinate greatly the decision of the cause, and produce a series of issues of a complicated and difficult character. The chief advantages of the chancery proceeding appear to be : 1st. In the means of obtaining the answer of the defendant on oath. It is true, that by the statute 4 & 5 Ann. c. 16, § 27, the auditors at law are em- powered to interrogate the parties on oath, yet the chancery proceeding is superior in convenience, by reason of its application to the conscience of the defendant, in the first stage of the cause. A plaintiff in the action of account-render, may be embarrassed at the outset, and unable to obtain a judgment quod computet, for want of evidence which he might obtain from the defendant, if entitled to his answer. 2d. In chancery, the proceedings, after an account is ordered, are generally more expeditious and easily managed, than in the action at common law. Auditors in account-render being looked upon as mere clerks, and incompetent to VOL. I. — 4 50 OF THE C0UET8. determine any question of fact, it frequently becomes necessary to raise a series of issues, by which great delay is occasioned. In a former report, ■we expressed the belief that this action is susceptible of great improve- ment. We have now under consideration a bill in which we have attempted to carry into effect the suggestions there made. We hope to be able to introduce into our practice some of the advantageous methods of the chancery proceeding, either by engrafting them upon the action of account-render, or by establishing them as distinct and substantive modes of proceeding. « § 88. There remain to be noticed two important cases, in which relief is given in equity, and which have not been enumerated under either of the foregoing heads, viz. : — 6. Contribution. The nature of chancery proceedings renders them peculiarly proper to give a remedy in cases of this kind. Every profes- sional person is acquainted with the difficulties that surround the action for contribution, in the common-law courts, and knows how entirely inad- equate the remedy is, where there are many parties.' In Nailer v. Stan- ley,^ Judge Duncan, speaking of a case of contribution, ?aid : " This is one among some other instances in which our jurisprudence is defective, for want of chancery powers." In the orphans' court, we have a pro- ceeding similar to that in equity, to obtain contribution between heirs and devisees, which requires only a conformity with the rules of chancery, in relation to pleadings and practice, to be equally beneficial. In cases not within the jurisdiction of the orphans' court, we propose to enlarge the power of the common-law tribunals, so as to enable them to mete out an equal measure of justice. We have prepared a bill, regulating the method of proceeding in the action of contribution, which, we hope, will be found to remove most of the existing objections. 7. Partnership, In the case of Gratz v. Bayard,' in which ques- tions arose concerning the power of tbe courts to interfere to restrain a partner from carrying on the business against the consent of the other partner or his representative. Chief Justice Tilghman said : " In the argument of this case, several points of great moment were suggested, which must add to the regret we all feel at the want of a chancery juris- diction. If prospects had so changed, after Carroll's death, as to render it manifestly advisable to relinquish the plan, and Connell had refused to relinquish it, contrary to the advice of the administrator of Carrell, I know not how he could have been restrained. But chancery, in such case, would interfere, without hesitation ; and in many other cases it would interfere, where there was strong probability that the salvation of the firm and the rights of creditors depended upon such interference. If the surviving partner acted with gross impropriety, his hands would be tied, and an agent appointed to collect the debts and distribute the effects, under the direction of the court. These are powers which, how- ever desirable, are possessed by no court of this commonwealth."' The 1 See act 22 April 1856, § 9, P. L. MO S. & R. 454 534, Pui-d. 827, for oompellirif; con- Ml S. & R. 47-^. tribution between joint defendants. PRESENT EQUITY JURISDICTION. 61 powers which the eiuiaeut and lamented magistrate, whose words we have quoted, considered to be wanting in our jurisprudence, are exer- cised in the equity courts, by the means of the writ of injunction, and through the agency of receivers. Some remarks upon these points h^ve already been made. If the legislature shall see fit to confer upon our courts general authority to give relief in the case of partners, in like manner, and with like effect, as is practised and allowed in courts of equity, they would possess the means of doing substantial and efficient justice. But the case of partners, in the ordinary acceptation of the word, is far from being that in which an enlargement of this kind of power is most needed. There exists in this commonwealth a great num- ber of societies or associations of persons, incorporated and unincorpo- rated, for the proper supervision and control over which adequate powers are not to be found, at present, in our courts. What is wanting for the due administration of justice, is authority to restrain their proceedings, when the continuance of them would be prejudicial to the interests of the creditors, or of the members ; to appoint receivers to take charge of the funds, and protect them from misapplication ; and to distribute their assets among creditors, according to the rules established in the case of the insolvency of individuals. In most of the states, these powers are believed to exist in the courts, and, of late years, have been exercised beneficially for the community. § 89. Present equity jurisdiction. In pursuance of the recom- mendation of the commission, the legislature, by the act of 1836, greatly enlarged the jurisdiction of our courts, as courts of equity. The 13th section' confers upon the courts of common pleas the jurisdiction and powers of a court of chancery, so far as relates to — I. The perpetuation of testimony :^ II. The obtaining of evidence from places not within the state : III. The care of the persons and estates of those who are non compotes mentis : IV. The control, removal and discharge of trustees, and the appoint- ment of trustees, and the settlement of their accounts : V. The supervision and control of all corporations, other than those of a municipal character, and unincorporated societies or asso- ciations, and partnerships : VI. The care of trust moneys and property, and other moneys and property, made liable to the control of the said courts : VII. And in such other cases as the said courts have heretofore pos- sessed such jurisdiction and powers, under the constitution and laws of this commonwealth. And in every case in which any 'PL. 789 ; Purd. 589. Our courts old and infirm. Blaine v. Chambers, havenoequityjurisdiotion.bybill, ex- cited 1 Whart. 278. Where the state cept such as is given by statute. My- is a necessary party, the process is to lin ». Mylin, 10 L. Bar 129. be served on the attorney-general, or 2 A demurrer will lie to a bill to his deputy for the county where the perpetuate testimony, if there be no lands are situate. Act 6 April 1844, impediment to the plaintiff trying his P. L. 213; Purd. 598. light at law, unless the witnesses be 62 OP THE COUBTS. court, as aforesaid, shall exercise any of the powers of a court of chancery, the same shall be exercised according to the practice in equity, prescribed or adopted by the supreme court of the United States, unless it be otherwise provided by act of assembly, or the same shall be altered by the supreme court of this commonwealth, by general rules and regulations, made and published as herein provided.' And it was thereby further provided, that the court of common pleas of Philadelphia (since extended^ to all the courts of the state) shall, besides the powers and jurisdiction aforesaid, have the power and juris- diction of courts of chancery, so far as relates to — VIII. The discovery of facts material to a just determination of issues, and other questions arising or depending in the said courts :^ IX. The determination of rights to property or money claimed by two or more persons, in the hands or possession of a person claiming no right of property therein : X. The prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the interests of the community, or the rights of individuals : XI. The affording specific relief, when a recovery in damages would be an inadequate remedy. And, by subsequent acts, the several courts of common pleas are invested with the power and jurisdiction of courts of chancery — XII. In all cases over which courts of chancery entertain jurisdiction on the grounds of fraud, accident; mistake or account ;* and whether such fraud be actual or constructive.' XIII. The same jurisdiction and power, in all suits to be brought for the discovery of facts, that is possessed by courts of chancery.* XIV. The perpetuation of testimony in cases of the lost or destroyed ' The power to make rules of prac- aidof anexecution,8eeireyra,§1445-51. tioe is conferred by §| 3-6 of this act. * Act 13 June 1840, § 39, P. L. 671 ; In pursuance of the power thus con- Purd. 591. The power and jurisdiction ferred, the supreme court, on the 9 of courts of chancery in settling partner- March 1864, appointed a committee to ship accounts, and such other accounts revise the rules of equity practice, con- and claims, as by the common law and sisting of the Hon. Geo. Sharswood, the usages of this commonwealth, have Hon. Oswald Thompson, St. Geo. T. heretofore been settled by the action Campbell, George W. Biddle, R. C. of account-render, was conferred upon McMurtrie, Fred. C. Brightly and the courts, by the act 13 October 1840, Henry Wharton, who reported a body § 19, P. L. 7 ; Purd. 591. And the jur- of rules of practice, which was isdiction in account was extended to adopted by the court on the 27 May controversies between tenants in com- 1865, and having been duly promul- mon of coal or iron-ore mines or miner- gated, as provided by the statute, has als, by act 25 April 1850 3 24 P L the force of law ^„^^ „ ^ „ 573 ; Purd. 596. See Coleman's Apl T, Py.nS"*^'''""^''^^^^^'^-^-^^; E«^l' *52 Penn. St. 252. Grubb «! ^TtrL„.„ ....:„.:..._ . &rubb,30Leg. Int._241. Coleman «. Full equity jurisdiction in cases Coleman, 1 Pears. 470 01 discovery was conferred by the act " Act 16 Amil 1845 23 P L 10 April 1848, §4, P- L. 449; Purd. Purd. 592. ^ ' ^ ' 592. For the proceedings in discovery in « Act 10 April 1848, ut supra. GENERAL PRINCIPLES OF EQUITY. 53 records of any of the courts of record of the comni on wealth ; the application to be made in the same court in which the record may be lost or destroyed.' XV. In all cases of dower and partition.^ XVI. The settlement of disputed claims between parties claiming to be tenants in common of mines.^ XVII. In suits for the foreclosure of mortgages of railroad, canal and navigation companies.* § 90. In addition to these general equity powers, the common pleas of Philadelphia has jurisdiction of suits for the apportionment of wharfage;^ for the ascertainment and adjustment of disputed boundaries between adjoining owners f and in eases arising under the plank-road law, where the plaintiff shall make oath that the remedy at law is inadequate.^ § 91. General principles. The extention of the remedy by action at law to cases originally within the jurisdiction of equity, particularly in the system adopted in Pennsylvania, of administering equitable relief through the medium of the common-law forms, is no bar to the equitable jurisdiction of courts for the same cause. * Whether a case may be brought in the chancery form, is only a question of form and not of juris- diction ; and the objection is waived, if not made in due season,^ and must be taken advantage of by demurrer, and not by objection to the jurisdiction of the court.'*" Whether or no, in this state, the legal tribu- nals ought, in the exercise of the chancery powers recently conferred, to assume cognisance of those cases where the action for money had and received affords a full remedy, there can be no objection, where the equi- table remedy is the more convenient — as, where an account is incidentally requisite. And where a trustee has duties to perform other than of mere ' Act 25 April 1850, | 26, P. L. 573 ; the property or franchises of any coal, Purd. 592. A like power is conferred iron, steel, lumber or oil, or any min- upon the orphans' courts, by act 1 April ing, manufacturing or transportation 1863, P. L. 205 ; Purd. 1110. And see company. P. L. 32; Purd. 2115. act 30 April 1850, P. L. 640, Purd. 896, * Act 24 April 1854, P. L. 485 j Purd. as to the lost dockets of justices of the 597. This jurisdiction is exercised on peace. appeal from the board of wardens, who ^ Act 17 March 1845, ^ 3, P. L. 160 ; have original jurisdiction under the Purd. 594. The common pleas has act 8 April 1851, P. L. 354 ; Purd. jurisdiction to decree an annual sum 597. in lieu of dower, and to charge the * Act 15 April 1858, P. L. 267 same upon particular real estate of the Purd. 596 ; extended to Allegheny deceased husband. Borland v. Mur- county, by act 15 "April 1863, P. L, phy, 4 W. N. C. 472. 499 ; Purd. 596. See Boyd v. Dowie » Act 22 April 1856, P. L. 602 ; 65 Barb. 237. Purd. 597. The act 14 February 1857, ' Act 14 April 1863, P. L. 374 P. L. 39, Purd. 592, extended to all Purd. 597. the courts of common pleas, the equity ' Wesley Church v. Moore, 10 Penn jurisdiction theretofore conferred upon St. 273. Painter v. Harding, 3 Phila the courts of Philadelphia. 59. * Act 5 May 1876, P. L. 123 ; Purd. » Neel v. Neel, Dist. Court, AUeghe- 2009. By act 23 March 1877, this ju- ny ; Lowrie, J. ' risdiotion is extended to mortgages of "' Adams v. Beach, 1 Phila. 99. 54 OP THE COTIETS. disbursement, a technical and continuing trust is presented, which can be satisfactorily treated only in equity.^ § 92. " For myself," says Judge Bell, in Yard v. Patton,^ " I may be permitted to express my strong inclination to give a liberal construction to the several acts of assembly conferring equity jurisdiction upon our common-law courts, as the exercise of this jurisdiction is found to be necessary to the furtherance of justice, in a great variety of instances, in which the principles and practice of the courts of law fail to afford ade- quate relief." It is not sufficient, to oust the jurisdiction of a court of equity, that the complainant has a remedy at law, unless that remedy be complete and adequate." The remedy at law must be as practical and efficient to the ends of justice, and its prompt administration, as that in equity.* " To induce equity to refuse its aid to a suitor," says Judge King, in Bank of Virginia v. Adams,^ " it is not sufficient, that he may have some remedy at law. An existing remedy at law, to induce equity to decline the exercise of its jurisdiction in favor of a suitor, must be an adequate and complete one. And where, from the nature and compli- cations of a given case, its justice can best be reached by means of the flexible machinery of a court of equity — in short, where a full, perfect and complete remedy cannot be afforded at law, equity extends its juris- diction, in furtherance of justice." "The jurisdiction for compensation or damages," he said, in another case, " does not ordinarily attach in equity, except as ancillary to a specific performance, or some other relief. If it does attach in any other cases, it must be under very special circum- stances, and upon peculiar equities ; as, for instance, in cases of fraud, or where the party has disabled himself, by matters ex post facto, from a specific performance ; or in cases where there is no adequate remedy at law."* A decree in equity produces its effect by controlling the course of the person, not by controlling a court of law, or any part of its ma- chinery ; a party may proceed at law, in the face of an injunction, and the court of law will adjudicate, if he will brave the consequences of the contempt.'' § 93. To induce the court to interfere in causes of action arising in a foreign jurisdiction, it must be competent to administer the appropriate equity required by the case, and capable of giving effect to its decree.* The court of common pleas has no jurisdiction of a suit for an injunc- tion to restrain the defendant from diverting a watercourse in an adjoin- ing county, although the defendant was regularly served with process in the county where the suit was brought, and though the watercourse was regulated by a personal agreement between the parties.' Nor can the ^ Kirkpatrick v. McDonald, 11 Penn. Bank, ut supra. '' ]K"st282. 68' '''P^'"' " ^°"^*'' ^' ^^'^^ '*• y^.^X^I^ti'::;^^:'^': ""'■ 5,;.B-^ofVirginia.Ada^B,lPa.s. k1v''?p'5 ^^n^i'}7 ^^ ScWlkill ' Morris v. Remington, 1 Pars. 387. Bank, 1 Pars 180, 220 ; King, P. J. s. p. Thompson v. Noble, 3 Pitts. 201 8 x> ^^ f !>■ . , o , ^®« Munson v. Tryon, 6 Phila. 395. » Bank of Kentucky v. Schuylkill ' GENERAL PRINCIPLES OF EQUITY. 55 same court take jurisdiction of a proceeding against a foreign corporation, where the decree asked for requires compulsory process against the officers of the corporation.' Where once a court of equity takes cognisance of a litigation, it will dispose of every subject embraced within the circle of contest ; and where various chattels, some of which can, and others cannot, be adequately compensated for in damages, in a suit at law, are the subjects of the same dispute, and make part of the same transaction, equity will decree the delivery up of the whole.^ § 94. Ignorance or mistake of law, with a full knowledge of the facts, is, in no case, per se, a ground of equitable relief;* but where there is a mistake of a clear, well-established and well-known principle of law, whether common or statute law, equity will lay hold of slight circum- stances to raise a presumption that there has been some undue influence, imposition, mental imbecility, surprise or confidence abused.* Equity will not relieve in consequence of a mistake of law, when both parties have the means of knowing the facts, and there is no fraud f but will grant relief, when an act is done, or a contract made, under a mistake or ignorance of a material fact.^ It is a general principle, that equity follows the law, and where right does not exist at law, a court of chan- cery will not afibrd the party equitable relief.' Where one party induces another to expend his money on the faith of an arrangement, by which the first is to give land for the erection of a joint mill, if the other give the water-power, the attempt of the former to disavow the contract, is such a fraud as will induce a chancellor to declare him trustee.* § 95. Equity disregards preferences which cannot be enforced at law, wherever it has exclusive control of the fund on which they seem to act ; and it respects them only where to do otherwise would merely turn the party around to another tribunal.' Equitable conversion takes place, although the election to purchase rests solely with the purchaser, whose optional right may be transmitted to his vendee ; and notice of this right will be imputed to a second purchaser from the original vendor, through an actual possession of land agreed to be sold, consistent with the con- tract.'" A party cannot have the aid of a chancellor, in executing a contract, when, by his own laches, rights of the third parties, without notice, have intervened, which will be prejudiced by the action asked for." ' Bank of Virginia u. Adams, 1 Pars. 89. Naoe ». Boyer, Ibid. 99. 547. ^ Jenks v. Fritz, 7 W. & S. 201. ^ McGowin V. Remington, 12 Penn. Insurance Co. v. Union Canal Co., St. 56. Shollenberger's Appeal, 21 Bright. 48. Holbach v. Gray, 8 Watts Ibid. 340. A court of equity has 492. power to determine a question of title ' Rittenhouse v. Levering, 6 W. & which incidentally arises. Wilhelm's S. 190. Appeal, 79 Ibid. 120. See Winton v. ' Swartz ». Swartz, 4 Penn. St. 353. Morss, 8 Luz. L. Reg. 61. ' Insurance Co. v. Union Canal Co., ' Rankin v. Mortimere, 7 "Watts 372. Bright. 48. •Good V. Herr, 7 W. & S. 253. '» Kerr ». Day, 14 Penn. St. 115 ; Bell, And see Gross v. Leber, 47 Penn. St. J. 520. " Insurance Co. i>. Union Canal Co., ' McAninch ». Laughlin, 13 Penn. ut supra; Gibson, C. J. Neely's Ap- St. 371. Graham v. Pancoast, 30 Ibid, peal, 85 Penn. St. 387. 56 OF THE COURTS. And where one of two innocent persons must suffer by the fraud of a third, he whose misplaced confidence has enabled the latter to commit the fraud j must bear the loss.' In equity, a written agreement may be rescinded by parol ; but in order to do so, the parties must be placed in the same situa- tion that they occupied before the contract was made.^ Equity will relieve against a penalty ; but not against stipulated damages.' " Where the covenant," says Lord Mansfield,* " is to pay a particular liquidated sum, a court of equity cannot make a new covenant for a man ; nor is there any room for compensation or relief." The cases in which equity jurisdic- tion, in bills for specific performance, is properly exercised, are reducible to one of the four heads of fraud, mistake, turpitude of consideration, and circumstances entitling to relief upon the principle of quia timet, and each of these should be established by positive and definite proof.® § 96. Account. A bill in equity lies by a principal to recover com- pensation from an agent, where the alleged infractions of duty are so multifarious, and the procedure so complicated, as to make the remedy at law inadequate, both from the confusion of the subject-matter, and the necessary multiplicity of suits.' It is not necessary, in a bill for an account, it was ruled by Judge Lowrie, when sitting in the district court of Allegheny county, to call upon the defendant to set forth, in his answer, the state of the account ; this object is better obtained, after decree, before the master.' A bill, it was ruled by Judge King, may be entertained between partners for an account, though no dissolution be prayed.* It is not necessary now, it is said by the same judge, that a bill for an account should contain an offer, on the part of the plaintiff, to pay the balance, if found against him.' Where there are several per- sons claiming rent in the hands of an assignee of a term, it is said by Judge Lowrie, the controversy may be settled by a bill in equity."* A Pennsylvania tribunal, it is declared by the same judge, having jurisdic- tion of cases both in the chancery and the common-law forms, the fact that a case is brought in the chancery, instead of the common-law form, should be taken advantage of by demurrer, and not by an objection to the jurisdiction of the court." ' Pennsylvania Railroad Company's syunk Building Association's Appeal, Appeal, 86 Penn. St. 80. 83 Penn. St. 441. Gloninger ». Hazard = Espy V. Anderson, 14 Penn. St. 42 Ibid. 389. 308- ' Porter v. English, 1 Phila. 85. Solomon v. Wilson, 1 Whart. 241. » Hudson v. Barrett, 1 Pars 418 Westerman v. Means, 12 Penn. St. 97. A court of equity has iurisdiction of a Remington » Irwin, 14 Ibid. 145. Kem- bill for the settlement of an account ble V Graff, 6 Phila. 402. between the joint owners of a vessel. Lowe V. Peers, 4 Burr. 2228. And Endsor v. Simpson, 5 W N C 232 see Brown v. Vandergrift, 80 Penn. St. » Hudson v. Barrett, ut supra. sV .q T> ^. 19T, c ncr, '" Adams ». Beach, 1 Phila. 99. And . I"""*^ "• ?^ °°; , ^*°°c ^^- ^^h, " ^'^°'^ ^^° declines to take under the « Bank of Ken ucky v. Schuylkill will, may maintain a bill for an ac- r^^r P ™«. 9^7 i?T '':.'^'"-?; count of the rents and profits of the gle, 57 Penn. St. 247. But equity will real estate. McNickle w. Henrv 8 not entertain jurisdiction of a bill for Phila. 87 an account unless the accounts be mu- " Adams v. Beach, ui supra tual, or a discovery be material. Pas- ACCOUNT. 57 § 97. In a leading case, it appeared, that C. having united with S. and others for the erection of a church edifice, C, before a charter was obtained, at the request of the association, and for its benefit, borrowed money from P., giving therefor his own bond and mortgage, and receiv- ing from S. and two others, members of the association, their mortgage as an indemnity. The society having obtained a charter, the church was conveyed to it, as incorporated. The corporation making default in the payment of the interest on the mortgage given by C, after the latter's death, the mortgaged premises were sold, and proving insufficient to pay the debt, other lands devised by C. were sold to pay the judgment on the bond. It was held, that a bill in equity lay by the devisees of C, whose land was thus sold, against the corporation, for reimbursement, and that the statute of limitation did not begin to run, until C's property was sold.^ § 98. Perhaps, however, in the long-litigated case of the Bank of Ken- tucky against the Schuylkill Bank, the most authoritative statement may be found of the Pennsylvania practice in this species of equity procedure. The directors of the Bank of Kentucky having, by resolution, in 1835, authorized the president and cashier to establish transfer agencies in New York and Philadelphia, a negotiation was entered into by the president and cashier with L., the cashier of the Schuylkill Bank, in Philadelphia, by which the latter agreed to undertake such agency. In 1839, it was discovered that L. had fraudulently issued spurious certificates of stock in the Bank of Kentucky to the amount of a million and a quarter of dollars, and to prevent the discovery of the fraud, had paid regular div- idends on the same. In 1842, the bank having been sued by holders of the forged certificates, and having no means of escaping its liability on the same, procured an act of the legislature of Kentucky, authorizing it to enlarge its stock, and thus to issue new certificates, in place of those fraudulently uttered, to innocent holders. It was held by Judge King, and afterwards affirmed in the supreme court, that the Bank of Ken- tucky was entitled to compensation from the Schuylkill Bank for the damages so accruing.^ § 99. In a case before the same judge, it appeared that the plaintiflp, when in a state of temporary insanity, induced by habits of excessive intoxication, conveyed all his estate to D., in trust : 1st, to pay his debts ; 2d, to pay him, the plaintiff, during life, out of the net income, a sum not exceeding two-thirds, the balance to be paid to his two minor step- daughters, E. and A. ; and 3d, after his death, to pay the principal to E. and A., as tenants in common. The plaintiff had a wife, at the time, the mother of E. and A., and, except when under the effects of intoxication, was industrious and prudent. It was ruled, that a bill in equity lay by him, to set aside the deed.' In Waring v. Cram,* it appeared, that a number of individuals having formed an association, for a specified term, ' Wesley Church v. Moore, 10 Penn. Allegheny River Railroad Co., 5 W. gt. 274. N. C. 144. Willis v. Philadelphia and 2 Bank of Kentucky b. Schuylkill Darby Railroad Co., 6 Ibid. 461. Bank, 1 Pars. 180. And see Kersey ' Clifton v. Davis, 1 Pars. 31. Oil and Mineral Co. v. Oil Creek and 1 Pars. 51b. 58 OF THE COUETS. to engage in mining for gold in California, one advanced money, and the others agreed to proceed to the mines and engage in the digging for gold When they arrived, the capital advanced being exhausted, all abandoned the enterprise as fruitless, and two of them engaged in another and dif- ferent employment of their labor. The court determined that the asso- ciate who advanced the money had no such specific lien on the profits produced by such labor, as could be enforced in a court of equity. §100. Specific perfm-mance. The ordinary power of a chancellor extends no further than the execution of a trust sufficiently formed to put the legal title out of the grantor, or to the execution of an agreement formed for a trust founded upon a valuable consideration ; and equity will not execute an assignment for the benefit of creditors, as an agree- ment, where the assignee rejected the assignment, because creditors are only volunteers.' A chancellor may refuse to lend his assistance to consummate an unconscionable bargain, accompanied by circumstances of suspicion, though not positively unfair ; but it by no means follows, that hardship, or even suspicion of unfairness, is always sufficient to move him to action ; and a consequence of this distinction is, that though equity will refuse to interfere to execute, wherever it would revoke, it may refuse to revoke, where it would decline to execute.^ Equity will not decree one, who has purchased land under a parol agreement to con- vey a portion thereof to another, to be a trustee, and compel perform- ance, unless there has been fraud or mala fides attending the transac- tion.^ If it appear that a misrepresentation of a vendor was the operative cause to the contract, he will be compelled, when specific performance is sought, to make good the representation.* § 101. "Where the law does not afibrd an adequate redress by compen- sation in damages, for the detention of a personal chattel, as in the cases of articles which are objects of attachment or curiosity, or where there is no convenient standard of damages, as in the case of possible injuries from the detention m futuro, a court of equity will compel a return of the thing itself. Thus, where certain maps, plans and drafts, made by the complainant, or copied from private sources, essential to the prosecution of his business as a surveyor, were detained by the defendant, in breach of trust, a decree was made for their delivery, and a. perpetual injunction granted against their use, or from copying them ; and the former I'ule applies, where some of the articles embraced in the same dispute aie not susceptible of compensation in damages, though others are— equity will decree the return of the whole. Where an article IS detamed, in violation of a trust or confidence, though in itself suscep- tible of compensation by damages, a bill for its return will be sus- tamed." ^ SwarU.Swart.J^pTnn^t ^\^^:;^tTlA& the delivery of specific shares of stock, SPECIFIC PEEPOKMANCE. 59 § 102. Where an applicant for specific performance has neglected to perform his own part, without being able to assign a justification or excuse for it, and where there is nothing in the acts and conduct of the other party which amounts to an acquiescence in the delay, the court will not interfere.' Where a vendee has performed so much of his part of an agreement for the sale of lands, that he cannot be put in statu quo, and fails to perform the remainder, without default on his part, or is prevented from completing it, by default of the vendor, he will, never- theless, be entitled to specific performance.^ The court will not compel a vendee to receive a title resting on a conveyance to one of several creditors, where there is ground for suspicion that the object of the con- veyance was to delay other creditors of the vendor. "A purchaser," said Gibson, C. J., " is not bound to take a doubtful title ; and why should the defendant below have been bound to take the property under something more than a suspicion that the conveyance was tainted with fraud by the 13 Eliz. T'^ On bill by the vendor for the specific per- formance of a contract, the question is not so much whether the vendor's title is good, as whether it is so clearly so as to justify the court in directing the vendee to take the estate and pay his money for it.* The specific execution of a contract in equity, as will presently be seen, is not of absolute right in the party asking it, but of sound discretion in the court. Hence, it requires a much less strength of case, on the part of the defendant, to resist a bill to perform a contract, than it does, on the part of the plaintiff, to maintain a bill to enforce a specific perform- ance.° A recovery in damages, in Pennsylvania, is not an adequate remedy for the vendor of land, where the cash payments by the vendee are to be made by instalments, and the property is sold subject to exist- ing incumbrances.* § 103. The contract admitted by an answer, must not essentially vary from the contract set forth in the bill ; unless they correspond, a specific performance will not be decreed.^ Though an agreement, which is to be perfected by the execution of an instrument, is among the few excep- tions to the rule, that equity does not decree specific performance of 3, contract relating exclusively to a personal chattel, it is, nevertheless, open to all the objections that could, in like circumstances, be made to the execution of a contract for the purchase of lands, and agaiust a bill to enforce such a purchase, a delay of fifteen years would be decisive.' where there is an adequate remedy at S. 311. Creigh v. Shatto, 9 Ibid. 83. law. Dull V. Culrer, 24 Pitts. L, J. 86. * Dalzell v. Crawford, 1 Pars. 45. Neither will a court of equity compel " Ibid. 42. a party in possession to deliver up his ' Parrish v. Koons, 1 Pars. 97. And title deeds, until his opponent has es- if an amendment set up a contract in- tablished a title to the land. Mange v. consistent with that stated in the orig- Guenat, 6 Whart. 141. inal bill, there can be no decree for spe- ' Fisher v. Worrall, 5 W. & S. 478. cific performance. Geissler v. Scott, 13 Tyson v. Passmore, 2 Penn. St. 122. Leg. Int. 212. ' Larison v. Burt, 4 W. & S. 27. ^Insurance Co. v. Union Canal Co., » Gans V. Bonshaw, 2 Penn. St. 34. Bright. 48. * Bumberger v. Clippinger, 5 W. & 60 OF THE COURTS. Though a petition praying for a decree of specific performance of a con- tract for the purchase and sale of real estate, should state either that the petitioner has performed the agreement on his part, or that he is willing and prepared to perform it ; yet, an omission to make such statement is a defect in matter of form merely, and may be amended.* § 104. A father and son purchased jointly a tract of land, each con- tributing a moiety of the purchase-money, the purchase being followed by an informal partition of the tracts, and a distinct possession of the pur- parts, the legal title remaining in the father. The son continued for twenty years to improve his portion, when the father died, without executing a deed or transferring the legal title. It was held by the supreme court, that this was a case where equity would enforce the trust, by directing a specific execution by conveyance.^ In a contract for the sale of land, no time was fixed for the execution thereof, nor was there any express stipulation that it should be material; the vendee afterwards' died ; no actual tender of a conveyance was made, but there was no laches on the part of the vendor : specific performance was decreed, on a bill filed more than five years after the making of the contract. It was thought by Judge Bell, not to be an objection to the specific performance of the contract, that the vendee, who was to execute, on such conveyance, a bond and mortgage, payable before a certain day, had died since the agree- ment. The heirs or devisees of the vendee, being made parties to the bill, it was said, might be compelled to perform the contract in this respect. And a bill having been filed under such circumstances, after the day on which the bond and mortgage were to be made payable, it was held, that the objection, were it otherwise valid, had ceased to exist, as the payment of the purchase-money could be at once decreed.* On bill, answer and proofs, in the court of common pleas for Philadelphia county, it appeared, that S., being the owner of an unfinished house, agreed, by parol, to lease it to the plaintifi" for ten years, at a progressively increasing rent ; that, in pursuance of this agreement, the plaintifi" entered into possession, and made considerable improvements suitable to his business ; and that, pend- ing this lease, S. conveyed the premises in fee to T., who had notice of the parol lease. An injunction was decreed to restrain S. and T. from disturbing the plaintifi" in his possession, and 8. was ordered to execute, and T. to confirm, a written lease to the plaintifi", on the principles pro- vided for by the parol agreement.* § 105. Equity will not compel a vendee to take a bad title ; but a pecuniary charge against a good title presents no objection, provided the purchaser can be protected against it f and therefore, where a vendor of land under contract, who had, at the time of sale, only an equitable title under articles, subsequently acquired the legal title, at the same time giving a mortgage for the purchase-money, but the mortgage was released betore bill filed, it was held by the supreme court, that specific perform- ■ Chess's Appeal, 4 Penn. St. 52. 429 440 ^^^ McEarson's Appeal, 11 Penn. St. ^'Parl'ey v. Stokes, 1 Pars. 422. »'Tiernan „. Roland, 15 Penn. St. St'lS"^'"" "^ ^"'P'''*""' ^ ^'''"' SPECIFIC PEEFOEMANCE. 61 ance might be decreed in his favor. It was held, also, that notice that the vendee refused to consider the contract binding, and repudiated the same, on account of such incumbrance (given through an affidavit of defence, made by him in a suit on a note given for a part of the purchase- money), before the charge was removed, did not amount to a rescission, no demand having been made for the execution of a conveyance. A purchaser of an estate in fee, said Judge Bell, in the same case, will not be compelled to take a life-estate only, nor an estate in which the vendor had no interest as owner, at the time of sale.' But while a court of equity, in short, will not compel a purchaser to accept a doubtful title,^ the cases in which courts have refused their aid to a vendor, where they have con- sidered his title good, though disputable, are cases of real and serious difficulty.' The doubts, however, which will operate on a court of equity, are not doubts made up for the occasion ; not based on captious, frivolous and astute niceties ; but such as produce real, bond fide hesitation in the mind of the chancellor. Omissions in the judicial process through which the title passed, which omissions could be supplied, by amendment, by the court in which the proceedings were had, will not be considered as sufficient.'' § 106. If, in the progress of a suit for specific performance of a real contract, objections to a title are discovered, never made during the negotiation, the defendant cannot insist on such objections as excusing him from performance, if the plaintiff be able and willing to remove them, when first pointed out. Adverse opinions of conveyancers and counsel alone, are not sufficient ground for a court of equity to refuse a decree for specific performance of a contract for the purchase of land.° While a purchaser is not bound to accept title from any one but him from whom he bought, or his representatives, the mere transmission of the legal title to another, subject to the equity of the purchaser, creates no impediment to a decree for a specific performance, especially, where the parties had the previous sale in view, at the time of the transmission.' Where the vendor, though not the owner of the fee, has an equitable estate in the premises, under articles of agreement for its purchase, and the right to acquire the legal title, and actually acquires it, after the sale by him, but before laches can be imputed, he may compel specific performance.'' " A court of equity," to adopt the language of Judge King, " has no power, in suits for specific performance, except on the ' Tieraan ». Roland, 15Penn. St. 429. the statute of limitations for its valid- ' Wetherill v. Mecke, Bright. 135. ity. Shober v. Dutton, 6 Phila. 185. As where the validity of the title de- If it clearly appears that the entry of pends on the question of notice of an the real owner is barred. Pratt v. Eby, unrecorded deed. Speakman v. Fore- 67 Penn. St. 896. paugh, 44 Penn. St. 363. Or, the birth * Dalzellw. Crawford, 1 Pars. 37, 46. of future issue, though the woman have ^ Ibid. 37-56. attained the age of 75 years. List v. " Tiernan v. Roland, 15 Penn. St. Rodney, 83 Idid. 483. 436-7. DeChaumont v. Forsyth, 2 P. ' Dalzell V. Crawford, 1 Pars. 57; &W. 507. King, P. J. A vendee may be com- ' Tiernanu.Eoland, 15 Penn. !5t.4J9. pelled to accept a title, dependent on Ley v. Huber, 3 Watts 367. 62 OF THE COUETS. application and consent of all parties, to direct an issue for the deter- mination of a matter of fact ; nor can it, without such an application or consent, direct a case or an action, for the purpose of satisfying itself on a matter of law."' § 107. A vendor, after a contract of sale of certain premises by him, conveyed a moiety of his interest in a larger tract of land, comprehend- ing the premises in question, to a third person, subject to the previous contract of sale, and with an understanding that it was to be carried out by such third person. It was held, that such conveyance was no aban- donment of the first contract, on the part of the vendor, and furnished no ground for the purchaser to resist specific performance.^ An agent created by parol cannot bind his principal by a written contract for the .sale of lands; and hence, the vendor cannot have specific performance of the contract of sale, even though it were signed by the vendee.^ "The ground upon which a chancellor executes an executory contract for the sale of lands," says Judge Bell, " is, that equity looks upon things agreed to be done, as actually performed ; consequently, when an agree- ment is made for the sale of an estate, the vendor is considered as a trustee for the purchaser of the estate sold, and the purchaser as a trustee of the purchase-money for the vendor. As a result of this prin- ciple, which seems to be of general application, it is settled, that an estate under contract of sale is regarded as converted into personalty, from the time of the contract, notwithstanding an election to complete the pur- chase rests entirely with the purchaser ; and if the seller die, before the election be exercised, the purchase-money, when paid, will go to his, executors, as assets."^ § 108. Although the subject and import of the written contract are clear, so that there is no necessity to resort to evidence for its construc- tion, yet, if the defendant can show any circumstances dehors, independ- ent of the writing, making it inequitable to interpose for the purpose of a specific performance, a court of equity, having satisfactory information on the subject, will not interpose. This discretion is not, however, arbi- trary, but exercised in a judicial manner, according to established rules.* In respect to voluntary contracts inter vivos, courts of equity will not interfere, but will leave the parties where the kw finds them.« Although chancery will withhold its aid to consummate a voluntary agreement unexecuted, where something remains to be done by the contracting parties, yet, where it is executed, equity will give effect to all its conse- quences. In such a case, a consideration is unnecessary .' If a mistake exist, not in an instrument which is intended to give effect to a prelimi- nary agreement, but in the agreement itself, and it is shown to have I Dalzell V. Crawford, 1 Pars. 45. Bell, J. Read v. Robinson, 6 W. & S. ^ Tiernan v. Roland, 15 Penn. St. 331. Carson v. Potter, 18 Penn. St ,• 457. Pamsh r^ Koons 1 Pars. 79 ' Yard v. Patton, 13 Penn. St. -85- Yard V. Patton, 13 Penn. St. 288, St. 212. -Duntrng, /a i:'enn. SPECIFIC PEKFORMANCE. 63 been produced by ignorance of a material fact, equity will relieve according to the nature of the case ; but if the agreement was not founded on such mistake, equity will not decree another security to be given, different from that which had been agreed upon, nor treat the case as if the other security had been actually executed.^ Equity will in no shape lend itself to assist a gambling transaction, nor in any way to vin- dicate a contract of which gaming is the object.^ § 109. The duty of promptness of action, as it was determined by Judge King, does not only rest on the vendor, where the time within which the contract must be closed is not fixed by its terms. In such a case, if any unnecessary delay is created by one party, the other has a right to limit a reasonable time within which the contract shall be per- fected by the former, by a notice, stating, that within such a period that which is required must be done, or otherwise the contract will be con- sidered at an end.^ A party cannot have the aid of a chancellor in exe- cuting a contract, when, by his own laches, the rights of thi^-d persons, without notice, have intervened, which will be prejudiced by the action asked for.* Specific performance will not be decreed in favor of a party who has slept on his rights ; due diligence is necessary to call the court into action, and where it does not exist, a court of equity W'U not lend its assistance." A purchaser will not be assisted, when hu has made frivolous objections to the title, and trifled or shown back^yardness to perform his part of the agreement ; especially, if circumstances are altered.* A bill for specific performance will not be entertained, unless it set forth a contract, in which the parties have described and identified the land mentioned and intended to be conveyed, or the means of iden- tifying it are mentioned in the agreement.' Though a court of equity will not, in general, decree specific execution of contracts in regard to per- sonal property, this rule is limited to cases where compensation in dam- ages furnishes a complete and satisfactory remedy.^ A naked covenant to pay money at a particular day has never, of itself, been held to make time essential ; for the plain reason, that it admits of adequate compen- sation, ascertained by law, in the payment of interest.' Sound reason, operating through equitable maxims, has relaxed the rigidity of the ancient common law, which insisted upon time as an essential in all cases ; and now, he who would object a disregard of it, must, generally, do so at the earliest opportunity afforded.'" Even where the time within which certain acts are to be done has been fixed in the contract, a party who is ' Insurance Co. 'v. Union Canal Co., ^ Dalzell v. Crawford, 1 Pars. 56. Bright. 48. ' Parrish v. Koons, ut supra. '' Lessig V. Langton, Bright. 191. * Palmer v. Graham, 1 Pars. 476. ' Parrish v. Koons, 1 Pars. 93. ' Westerman v. Means, 12 Penn. * Insurance Co. v. Union Canal Co., St. 97. Remington v. Irwin, 14 Ibid. Bright. 48. Churcher v. Guernsey, 39 145. Penn. St. 84. '" Shields v. Miltenberger, 14 Penn. 5 Parrish v. Koons, 1 Pars. 79. Cal- St. 81 ; Bell, J. Vint v. King, 2 Am. len V. Ferguson, 29 Penn. St. 247. L. Keg. 745 Dohnert's Appeal, 64 Ibid. 311. 64 OF THE COURTS. to be benefiied by such acts will be considered as waiving them, if he do not require their completion within the time fixed.' § 110. Injunction. The courts of Pennsylvania have power to grant injunctions, to restrain acts which are contrary to equity, as well as those which are contrary to law.^ But an injunction bill will not lie to enforce a penal statute ^ nor can it be made to serve the purpose of a quo war- ranto.* In Philadelphia, an injunction cannot be granted against the erection or use of public works of any kind, erected, or in progress of erection, under the authority of an act of the legislature.* It lies to restrain an abuse of the franchises of a railroad company f to restrain a misapplication of corporation funds f to restrain a breach of contract, where a recovery of damages would be an inadequate remedy;" to restrain a trespass of a permanent nature, destructive of the freehold ;' to restrain the erection of a public nuisance ;'" aiid to restrain waste." § 111. Where the plaintiff's title is doubtful, or the court is in its conscience satisfied that the case is not one of nuisance, according to the legal acceptation, it will not interfere, even to put the question in a course of trial. But in a plain case of public nuisance, the court will inter- pose and determine the question, without a trial by jury.'^ It is no longer necessary that the attorney-general shall be a party to proceed- ings in equity, in cases of public nuisance." A court of equity may not only restrain the erection of a nuisance, but direct its abatement, and give compensation in damages, for injuries resulting therefrom." Where the matter complained of is not i};so facto a nuisance, but may be so, according to circumstances, it generally becomes necessary to ascertain those circumstances by a verdict ; but where it is, in itself, a nuisance (if there be satisfactory proof of its existence), the court can, and often will, restrain, without a verdict first being had.'^ Persons injured have a remedy in a court of equity, by injunction, against the prosecution of a nuisance, when, from its locality, it is injurious to the health or comfort ' Shields v. Miltenberger, 14 Penn. contract for cleaning the streets. City St. 81. Parrish v. Koona, 1 Pars. 93. Sewage Utilization Co. v. Davis, 8 '•^ Stockdale v. Ullery, 37 Peun. St. Phila. 625. 486. Wister v. McManes, 54 Ibid. 328. » Edgewood Railroad Company's ' Sparhawk v. Union Passenger Rail- Appeal, 79 Penn. St. 257. way Co. 54 Penn. St. 401 . ' Commonwealth i\ Bank of Penn- • Campbell v. Taggart, 2 W. N. C. sylvania, 3 W. , •■ ..^ ^^^ ^^® Cumberland Valley Railroad i-qiuty Rules, u., § 12. Company's Appeal, 62 Penn. St. 218 * Hirst u. Lehigh and Delaware Wa- ' Bank of Kentucky v. Sohuvlkill ter-Gap Railroad Co., 6 Phila. 93. Bank, 1 Pars. 222; Kine P. J Stack V. O'Hara, 5 Leg. Ga^. 97. '» Langolf v. Seiberlitoh, 2 Pars. 80 ■ Huntzmger w. Philadelphia Coal King, P. J. An injunction will be o.,ddLeg int.178. granted, to maintain the statu quo, Coleman s Appeal, 75 Penn. St. pending an ejectment between joint ' Eby's Appeal, 70 Penn. St. 311. Tro^m^'"''''''"''' "' "^^^P^"^' ' EQUITY PLEADING AND PEACTICE. 77 entered immediately after an appearance by the defendant.' If a de- murrer be too general, it will be overruled ; for it cannot be good as to a part which it covers, and bad as to the rest ; therefore, it must stand or fall altogether.^ § 131. If a bill require an answer which may subject the defendant to any pains or penalties, he is not bound to answer it ; and in such a case, if he is not bound to answer the facts, he need not answer the circum- stances, though t^ey have not an immediate tendency to criminate.^ A chancellor will make no decree where the respondent swears directly in answer, and in opposition to the allegations of the bill ; in such cases, there must be another witness, or else corroborating circumstances to overbear the defendant's answer ; where it is oath against oath, they stand in equilibrio.* In equity proceedings, the distinction seems to be, that an answer, if responsive, is evidence of the fact it alleges^ requiring testimony to rebut it ; but if the matter set forth be not responsive, it is not evidence of that matter at all, but must be proved.^ A court of equity will not allow a plaintiff to read a passage from a defendant's answer, for the purpose of fixing the latter with an admission, without reading the explanations and qualifications by which tho admission may be accompanied, even though such explanations and qualifications be contained in a distinct part of the bill.^ § 132. In all equity proceedings, the courts may permit, in their dis- cretioii, and when in their opinion the same will affect the merits, and expedite justice, amendments to be made in bills, answers, pleas or other matters, in the same manner as in common-law cases, on proper notice to the adverse party.' After answer, the plaintiff will be allowed to amend his bill, on paying the costs occasioned by such amendment.^ New matter introduced by way of amendment, instead of supplemental bill, is demurrable.' When plaintiff's amended bill is such as to render > Equity Rules vi., ? 29. St. 143 ; Bell, J. Coleman v. Rosa, 2 Bank of United States v. Biddle, 46 Ibid. 180. Vollmer's Appeal, §1 2 Pars. 32. Everhart v. Everhart, 4 Ibid. 118. Luz. L. Reg. 259. After answer filed * Parrish v. Koons, 1 Pars. 97. A and amendment of the bill, the defend- responsive denial of indebtedness will anta cannot demur generally to the not prevail against an admission of amended bUl. Evans v. Dunning, 3 facts which show the plaintiff's right Phila. 410. A plea to the whole bill, to an account. Koons v. Bute, 2 overrules a demurrer to a part of it. Phila. 170. Nor against the conflict- Brooke V. Phillips, 6 Ibid. 392. ing testimony of the defendant, when ' Hill V. Kensington, 1 Pars. 501. examined as a witness. Spencer's See Equity Rules vii., HO. Appeal, 80 Penn. St. 317. And see * Horton's Appeal, 13 Penn. St. 67. Ressler v. "Witmer, 1 Pears. 174. Greenlee v. Greenlee, 22 Ibid. 225. ' Act 4 May 1864, 1 2, P. L. 775 ; Paul V. Canrer, 24 Ibid. 207. Pusey Purd. 601. V. Wrio-ht, 31 Ibid. 387. Hassler w. ^ Porter «. English, 1 Phila. 85. But Bittingf 40 Ibid. 68. Slemmer's Ap- see Rose v. Rose, Ibid. 365, where it is peal, 58 Ibid. 155. The testimony of said that the payment of costs is not a husband and wife is deemed but that required under our practice of a single witness, in opposition to a * Bank of Kentucky v. Schuylkill responsive answer. Sower v. Weaver, Bank, 1 Pars. 222. And see Chambers r8 Ibid. 443. ^- Waterman, 1 Leg. Gaz. R. 60. * Commonwealth v. CuUen, 13 Penn; 78 OP THE COURTS. a large part of the answer useless, he must pay the defendant the costs of drawing the whole answer, and defendant will be allowed to withdraw it from the files, and plead or answer de novo} To enable a complain- ant in equity to file a supplemental bill, introducing matters which have arisen since the filing of the original bill, the original bill must be one on which some valid decree could be made by the court. If wholly defective, it cannot be made the basis of a supplemental bill ; for if the complainant had no ground for proceeding originally, „he should file a new bill, showing a cause entitling him to relief. But if his original bill was sufiicient to entitle him to one kind of relief, and facts subsequently occur which entitle him to other or more extensive relief, he may have such relief, by setting out such new matter in the form of a supplemental bill.^ § 133. Where a plaintiff sets down his case for argument on bill and answer, without going into any proofs of his case, the plaintiff admits the answer to be true in all points, and no other evidence is admitted, unless it be matters of record to which the answer refers. Even where the defendant states he hopes to be able to prove such and such matters, they must be considered as proved.^ The effect of a plaintiff setting down a cause for hearing on bill and answer, would seem to be analogous to a common-law demurrer to evidence, where the party tendering the demurrer not only concedes the correctness of the testimony as given, but admits every reasonable conclusion a jury might fairly draw from such testimony.* § 134. A party should not be permitted to lie by with a technical objec- tion to the suflaciency of a pleading, and to spring it upon his adversary, when the latter has, on the answer meeting the case on the merits, with time, labor and expense, prepared his case for a final hearing.^ Under a prayer for general relief, a mortgagor is not entitled to a decree for the redemption of the mortgaged premises.^ "Where a prayer does not cover all the relief to which the plaintiff may be entitled, the bill may b^ so amended as to include the wanting prayer, provided such amend- ment be consistent with the original prayer ; but this cannot be done, where such amendment is incompatible, as is a prayer for restoration to membership in an unincorporated charitable association, with a previous prayer for a dissolution and account.'' The rule on the subject is, that, although where the prayer does not extend to embrace all the relief to 1 Porter tJ. English, 1 Phila. 85. But ' Lanning v. Smith, 1 Pars. 17 see Rose v. Rose, Ibid. 365. Thomas v. Ellmaker, Ibid. 98. Rus- ' Bank of Kentucky v. Schuylkill sell's Appeal, 34 Penn. St. 258. Bank, 1 Pars. 222. An original bill, * Ibid. The court wiU not allow a which 18 fatally defective, cannot be replication to be filed, after notice that made the basis of a supplemental bill, the case has been set down for hearing Mitcheson v. Harlan, 3 Phila. 885. on bill and answer. Jones v. Park 1 AH the persons interested in the sub- W. N. C. 17. See Equity Rules ix ject>matter must be made parties to §47. ' a supplemental bill Coursiu's Ap- ^ -q^^^ ^f Kentucky v. Schuylkill peal, 79 Penn. St. 220. Under the new Bank, 1 Pars 218 equity rules, supplementary matter « Lanning v. Smith, 1 Pars. 13 may be introduced by amendment. ' Thomas v. Ellmaker, 1 Pars. 99 Equity Rules x., § 54. Under a prayer for general relief, the EQUITY PLEADING AND PEAOTICB. 79 which the plaintiff may, at the hearing, show a right, the deficient relief may be supplied under the general prayer ; yet, such relief must be con- sistent with that specifically prayed, as well as with the case made by the bill.' A court of equity may decree the sale of partnership stock, in all cases of partnerships at will.^ If one of two co-defendants in a case of equity dies, the court can decree as to the survivor, but not as to the deceased, until his representatives are brought in.^ § 135. The court is not restricted, in decreeing costs, to the items of the common-law fee-bill, but may allow to the party the reasonable cost of preparing his pleadings and evidence.* But where a pleading is chargeable with prolixity, the court will allow costs only for such part of it as is proper. For very great prolixity, all costs may be disallowed.' It is contrary to the policy of Pennsylvania to allow a party, in ordinary cases, any compensation for his expenses in providing counsel to advise upon and try his case.' A decree, with costs, does not include counsel fees.' The several courts of common pleas are now required, by statute, to make and establish, for their respective courts, a tariff of fees and costs in equity pi'oceedings and cases.* § 136. An appeal lies to the supreme court from any final decree in equity made by a court of common pleas ;^ and an appeal also lies from an interlocutory decree, granting a special injunction, without affidavit or security, but it does not suspend the operation of the judgment, nor the proceedings in the suit.'" jS^o appeal lies from an order refusing an injuuc- tiou." To obtain an appeal from a definitive decree, the appellant must give security, by recognisance, with sufficient surety, in the court below, or before one of the judges thereof, conditioned to prosecute such appeal with effect, and to pay all costs that may be adjudged against him, and must make oath or affirmation that such appeal is not intended for delay.^^ § 137. In addition thereto, if an appeal be made from any order or plaintiff is entitled to such relief as is '1 Phila. 85. agreeable to the case made by the Bill, ' Marvine u. Drexel, 1 W. N. C. 323. though different from the special relief And see Insurance Co. v. Corbin, 34 prayed. Slemmer's Appeal, 58 Penn. Leg. Int. 36. St. 155. The court, having acquired * Act 4 May 1864, P. L. 775 ; Purd. jurisdiction of the subject-matter, may 601. proceed to make a proper decree, to do ° Acts 17 March 1845, P. L. 158 ; justice between the parties, though the Purd. 600; and 14 February 1857, P. bill be misconceived. Danzeisen's Ap- L. 39 ; Purd. 592. The act of 1845, peal, 73 Penn. St. 65. s. p. Wilhelm's so far as it related to appeals from inter- Appeal, 79 Ibid. 120. If the court ob- locutory decrees, was repealed by act 16 tain jurisdiction for purposes of gen- April 1845, 1 4, P. L. 543. eral relief, it may proceed to decree '° Act 14 February 1866,. P. L. 28 ; compensation for a past injury. Alii- Purd. 600. son's Appeal, 77 Ibid. 221. " Hilbishw. Catherman, 60Penn. St. ' Thomas v. Ellmaker, 1 Pars. 115. 444. The act 12 June 1879 gives an ap- * Holden v. McMakin, 1 Pars. 278. peal from an order refusing an injunc- ' Bank of Kentucky v. Schuylkill tion. Bank, I Pars. 218. See Equity Rules ^\ Acts 29 March 1832, ?59, P. L, X. g54. 213; Purd. 1110; 17 March 1845, P. * Porter v. English, 1 Phila. 85. L. 158 ; Purd. 600; and 14 February 5 Ibid. 1857, P. L. 39 ; Purd. 592. 80 OF THE COURTS. decree directing the payment of money, such appeal shall not stay the issuing of execution or other process to enforce the decree, or any pro- ceedings thereon, unless a bond be given by, or on behalf of, the appel- lant, to the adverse party, in a penalty at least double the sum decreed to be paid, with two sufficient sureties, to be approved by the court of common pleas, or one of the judges thereof, conditioned that, if the appellant shall fail to prosecute his appeal, or if the same be dismissed or discontinued, or if the decree appealed from, or any part thereof, be affirmed, then, that such appellant will pay and satisfy the amount directed to be paid by such decree, or the part of such amount as to which the decree shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant by the supreme court, upon such appeal.' § 138. If the decree appealed from direct the assignment or delivery of any securities, evidences of debt, documents, chattels or things in action, the issuing and execution of process to enforce such decree shall not be stayed by such appeal, unless the articles required to be assigned or delivered be brought into court, or placed in the custody of such officers or receivers as the court of common pleas shall appoint; or unless a bond, in a penalty at least double the value of the articles so directed to be delivered or assigned, be given to the adverse party, with two sufficient sureties, to be approved as above directed, conditioned that the appellant will abide and obey the order of the supreme court made upon the subject of such appeal.^ § 139. If the decree appealed from direct the execution of a convey- ance or other instrument by any party, the issuing and execution of pro- cess to enforce such decree, shall not be stayed by such appeal, until the appellant shall have executed the conveyance or instrument directed, and deposited the same with such officers or receivers, as shall be desig- nated by the court of common pleas.^ § 140. If the decree or order appealed from direct the sale or delivery of the possession of any real property, the issuing and execution of pro- cess to enforce the same shall not be stayed, until a bond be given, with sureties, as above directed, in such penalty as the court of common pleas shall deem sufficient, conditioned, that during the possession of such real property by such appellant, he will not commit or suffer any waste to be committed thereon ; and in case such -appeal be dis- missed or discontinued, or such order or decree be affirmed, such appel- lant will pay the value of the use and occupation of such property, from the time of such appeal, until the delivery of the possession thereof, pur- suant to such order or decree.* § 141. "Whenever, in the foregoing cases, an appeal shall be perfected by bringing into court, or depositing, pursuant to its order, any articles required to be so deposited, or any instruments required to be executed, • Acts of 1845 and 1857, ut supra. Underkoffer, 1 W. N. C. 480. An appeal, with security, is a super- ^ Acts of 1845 and 1857, ut supra. sedeas, though not taken within three ' Ibid, weeks after the decree. Brooks v. * Ibid. EQUITY PLEADING AND PRACTICE. 81 or by the giving a bond as prescribed by the statute, such appeal shall stay all further proceedings in the court of common pleas upon the order or decree appealed from, and upon the subject-matter embraced in such order or decree; but shall not prevent the court of common pleas from proceeding upon any other matter included in the bill and not affected by such order or decree. But whenever the order or decree appealed from directs the sale of perishable property, notwithstanding any such appeal, and the compliance with the foregoing directions, such property may be sold by final order of the court of common pleas, after tlie making of such appeal ; and the proceeds of such sale shall be brought into the said court, to abide the final order and decree of the supreme court.^ § 142. Except in the case of an order for a special injunction, an appeal only lies from a final decree.^ An order refusing specific per- formance, and referring the cause to a master, to ascertain the plaintiff's damages, is not a final one, from which an appeal lies.^ So, no appeal lies from a decree to account ;* nor from the refusal of an issue f nor from an order refusing an injunction f nor from an interlocutory decree, on a bill for partition f nor from a decree upon a demurrer for want of parties, " with leave to amend ;"* nor from the taxation of costs.' On appeal from an order granting an interlocutory injunction, the court will not regard an answer subsequently filed.'" But in such case, the affi- davits should be sent up with the record ; the supreme court rehears the case upon the merits." § 143. A final decree in equity, for the payment of money, is a lien upon the real estate of the debtor, for a like period, and with the same force and effect, as a judgment at common law ; and the plaintiff is entitled to the same remedy, by scire facias or otherwise, for the revival and continuance thereof; and should any issue of fact arise in the course of such proceeding of revival, it is to be determined by an issue, accord- ing to the practice of courts of equity.'^ Final process to enforce such decree is by the ordinary writ of execution in actions of debt or as- sumpsit." Vm. General powers of the courts. § 144. The act of 1836 provides, that the courts of common pleas shall have power to award process to levy and recover such fines, forfeitures and amercements as shall be imposed, taxed or adjudged by them respectively ; to issue writs of subpana, under their official seal, into any county of the commonwealth, to summon and bring before the court ' Acta of 1845 and 1857, ui supra. ' Persch v. Qui^gle, 57 Penn. St. ' Hope Hose Company's Appeal, 2 247. The court will not reverse on a W. N. C. 451. question of costs, unless the error be a " Kimmel's Appeal, 2 W. N. C. 138. glarinfr one. Hepburn's Appeal, 65 * Cooper V. Vanfleet, 2W. N. C. 241. Ibid. 468. 5 Scheetz's Appeal, 35 Penn. St. 88. '» Lyon's Appeal, 6] Penn. St. 15. ' Hilbish v. Catherman, 60 Penn. St. " Schleoht's Appeal, 60 Penn. St. 172. 444. " Act 29 March 1859, P. L. 289 ; ' Robinson's Appeal, 1 W. N. 0. 239. Purd. 601. » Bishop V. Culver, 1 W. N. C. 272. '' Equity Rules xiv., ^ 83. VOL. I. — 6 82 OF THE COURTS. any person, to give testimony in any cause or matter depending before them, under the penalties appointed and allowed in such case by the laws of this commonwealth.' The courts will not enforce the personal attendance of a witness residing more than forty miles from the place of trial.^ Nor will they compel public officers to bring into court original office-papers, by a subpoena duces tecum?- A defaulting witness, however, may be attached, though the subpoena were not served, five days before the trial ; that rule only applies to an application for a continuance.* The constitution of 1790 likewise conferred upon the courts the powers of a court of chancery, so far as relates to the perpetuation of testimony, and the obtaining of evidence from places not within the state ; confirmed by the general words of the present instrument ; this is done, either by the issuing of a commission for the examination of the witness, or, if the laws of the place do not permit the execution of such commission, by letters rogatory to one of the local foreign courts. It is under this clause, that commissioners appointed to take depositions, derive their authority to administer oaths.^ § 145. Power is also conferred upon them, by the statute, to establish rules for regulating the practice of the respective courts, and for expe- diting the determination of suits, causes and proceedings therein, as, in their discretion, they shall judge necessary and proper ; provided the same be not inconsistent with the constitution and laws of the commonwealth.^ The power to make rules of practice is inherent in every court of record.'^ They may make a rule requiring defendants to file an affidavit of defence f for the affirmance of a justice's judgment, if no legal reason be assigned for a continuance f requiring a defendant to deny, by affidavit, the execu- tion of the instrument on which suit is brought; and in suits by or against partners, the existence of the partnership, or that the same shall be deemed admitted ;"" authorizing a plaintiff' to take judgment for a sum admitted to be due, and to proceed for the residue ;'^ requiring a party, appealing from an award, to give notice of the time and place of entering the appeal, and the name of his surety j'^ as to the presentation of points to charge upon ; and may refuse instructions, where the rule has not been complied with.'^ And they may establish a rule requiring the pub- ' By act 22 May 1722, § 23, under ' Vanatta v. Anderson, 3 Binn. 417. such pains and penalties as, by the Mylin's Estate, 7 Watts 64. Wilkins rules of the common law and course of v. Anderson, 11 Penn. St. 405. Elkin- praotioe in the king's courts at West- ton v. Pennimore, 13 Ibid. 173. minster, are usually appointed. 1 Sm. * Vanatta v. Anderson, ut supra. I'- 143. 9 Kuhn e. Kisterbock, 6 Whart. 166. 2 Pennock ». Freeman, 1 Watts 401. Frost v. Roatch, Ibid. 359. Elkintou ' Delaney v. Regulators of Philadel- v. Fennimore, 13 Penn. St. 173. Lloyd pWa, 1 Yeates 403. And see Shippen v. Toudy, 4 W. N. 0. 225. V. Wells, 2 Ibid. 260. " Odenheimer v. Stokes, 5 W & S * Scriber v. Reeves, 1 Phila. 284. 175. McAdams u. Stilwell 13 Penn ' Frank v. Colhoun, 59 Penn. St. 386. St. 90. « See Act 24 May 1878, P. L. 135, " Russell e. Archer, 76 Penn. St. 473. Purd. 2097, as to counties forming ^'^ Barry v. Randolph, 3 Binn 277 separate judicial districts, with but one " Haines v. Stauffer, 13 Penn St judge. 541. GENERAL POWERS OF THE COURTS. 83 lication of the trial-list, at the expense of the county.' The several courts are the most proper judges of the extent and application of their own rules.^ A mistake by the court below, in the construction of one of its rules, must be very obvious, to induce the supreme court to reverse for that reason.' The several courts have also power to fix the number of their regular terms, and the times for holding the same.* § 146. The courts have also power to punish contempts in a summary manner ; but the power to issue attachments for contempt of court is restricted by statute to the following cases : 1. To the official misconduct of the officers of such courts respectively :^ 2. To disobedience or ne- glect by officers, parties, jurors or witnesses, of or to the lawful process of the court : 3. To the misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.' The punishment of imprisonment for contempt extends only to such contempts as are committed in open court ;' all other contempts are to be punished by fine only. The party, however, may be committed for non-payment of his fine, for any time not exceeding three months. The court will not punish, as a contempt, an act not committed in its presence, where there is another remedy.* Before a party can be held guilty of a contempt, some order of court must be made, and personally served on him." A rule is generally granted, in the first instance, on affidavits, upon the return of which, the defendant answers on oath, the evidence is heard, and if the court be of opinion, that the fact on which the rule was taken is not sufficiently answered or excused, and that, in point of law, a contempt has been incurred, an attachment is awarded, when the defendant is brought in on this writ to answer interrogatories propounded to him on behalf of the commonwealth, in whose name the writ always issues ; and if he give such answers as purge him from criminality, he must be discharged.'" A justice, appointed by rule of court to take depositions, may commit a witness who contumaciously refuses to be sworn." Nevertheless, where the right to compel the witness to answer is a doubtful one, the proper course ' Venango County ». Durban, 3 Grr. be made returnable on the first day of 66. the nest term, or on the second, third ^ Snyder v. Bauchman, 8 S. & R. or fourth Monday of any intermediate 336. Umberger ». Zearing, Ibid. 163. month. Act 11 June 1879. Road from Jonestown, 1 P. & W. * This extends to county commis- 243. Rundel v. Keeler, 7 Watts 237. sioners. Hummel's Case 9 Watts 416. Wickersham v. Russell, 51 Penn. St. * See Commonwealth v. Wilson, 1 71. Coleman ». 'Nantz, 63 Ibid. 178. Phila. 83. Gannon v. Fritz, 79 Ibid. 303. , Carey ' See Commonwealth v. Davis, 1 W. V. Commonwealth, 4 Brewst. 62. An- N. C. 18. drews i;, Bank of Titusville, 23 Pitts. « Ex parte Hirst, 9 Phila. 216. L. J. 133. ° Pierffe v. Post, 6 Phila. 494. Pat- ' Grove v. Donaldson, 15 Penn. St. terson v. Patterson, 1 W. N. C. 374. 128. McKinney's Estate, 2 Ibid. 156. Chew's ♦ Act 18 March 1875, P. L. 28 ; Purd. Estate, 3 Ibid. 392. 2052. And they may, by standing order, ^"Commonwealth v. Snowden, 1 direct that all writs used for the com- Brewst. 219. HoUingsworth v. Duane, mencement of actions, and all writs and Wall. C. C. 78. process of every kind, at the election " Commonwealth v. Roberts, 2 Clark of the party suing out the same, may 340. 84 OF THE COURTS. is, to report the question for the action of the court, where the party, laying a proper ground by affidavit, may obtain, by special motion, a subpoena, directed to the witness, to appear and testify at the bar of the court ; upon which an attachment may issue, or the witness be committed, according as the circumstances require.' § 147. The statute further provides, that no publication out of court, respecting the conduct of the judges, officers of the court, jurors, wit- nesses, parties, or any of them, of, in or concerning any cause depending in such court, shall be construed into a contempt of the said court, so as to render the author, printer, publisher, or either of them, liable to attachment and summary punishment for the same. But if such publi- cation shall improperly tend to bias the minds of the public, or of the court, the officers, jurors, witnesses, or any of them, on a question depend- ing before the court, it shall be lawful for any person aggrieved thereby, to proceed against the author, printer and publisher thereof, or either of them, by indictment ; or,^ he may bring an action at law against them, or either of them, and recover such damages as a jury may think fit to award. The constitution of 1874 provides,^ that no conviction shall be had, in any prosecution for the publication of papers relating to the official conduct of officers, or men in public capacity, or any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made, shall be established to the satisfaction of the jury."* § 148. The several courts, nevertheless, have power to make rules on sheriffs and coroners, for the return of all process in their hands, and for the payment of money, or delivery of any article of value in their possession, according to their respective duties ; and also to make rules upon attorneys, for the payment of money, and the delivery of deeds and other papers in their hands, belonging to their clients, and, in every such case, to enforce obedience to such rules by attachment. And the courts possess the same power against former sheriffs and coroners, if application be made for the purpose, within two years after the termina- tion of their offices respectively.* § 149. A conviction for contempt is a substantive criminal offence ; and, therefore, subject to the revision of the supreme court on certiorari or writ of error; and, if the court below were without jurisdiction . in the matter — as, if it assume to punish as a criminal contempt, the disobedience of a witness to a writ of subpwna — flhe proceedings will be reversed.^ But if the court has iurisdiction, its adjudication of a contempt is conclusive, and cannot be re-examined in any other court.^ , ' Pfiel «. Elmes, Dist. Court, Phila., 449. Commonwealth u. McClure SW 24 March 1848. And see Brophy's N. C. 58. Struthers v. Evening Bulle- Bstate, 3 W. N. C. 306. tin, Ibid. 21.5. ^ See Foster v. Commonwealth, 8 * Act 16 June 1836, P. L. 793 • Purd. W. & S. 77. 273. ' 'Art. I., ^7. / Commonwealth i>. Newton, 1 Gr. * bee Eespublica u, Dennie, 4 Yeates 453. 267. Commonwealth v. OdeU, 3 Pitts. ' Williamson's Case, 26 Penn. St. 9. SPECIAL COURTS. 85 IX. Special courts. § 150. The act of 14 April 1834' provides, that special courts of com- mon pleas^ shall be holden in the several coanties of this commonwealth, at the respective places appointed by law for holding courts of common pleas, in every of the cases following, to wit : I. Whenever the president judge of any of the said courts shall be personally interested in the event of any cause depending in any county of his district :' II. Whenever the title, under which the parties, or either of them, claim, in any cause depending as aforesaid, shall have been derived from or through such president ; or, whenever the presi- dent shall hold under the same title with either of the parties in the cause : III. Whenever any near relative of the president judge of any of the said courts shall be a party to any cause depending as aforesaid, or interested in the event thereof : IV. Whenever the president judge of any of the said courts shall have been concerned, as an attorney or counsel, for either of the par- ties, in any suit depending as aforesaid, or in any other cause touching the same subject-matter; or for any other person, under whom said parties, or either of them, claim :* The parties may, however, agree in writing, to be filed of record, in any of such cases, to a trial before such president, or before him or any one or more of his associates, or before the associates. § 151. Whenever any special court shall be necessary for the trial of any cause or causes depending as aforesaid, it shall be the duty of the president of the court in which such cause shall be depending, to give notice thereof to the prothonotary of such court ; who shall forthwith make out a list of all such causes, and transmit the same to the presi- dent judge who may reside nearest to the place where such cause is to be tried.' On the receipt of such list, it shall be the duty of such presi- ' P. L. 349 ; Purd. 230. question of interest cannot be reviewed ' Extended to orphans' courts, and on error ; it is a matter entirely within courts of quarter sessions and oyer and his discretion. Philadelphia Library terminer, by act 4 April 1843, P. L. Co. v. Ingham, 1 Whart. 72. Barring- 133; Purd. 1105. In case of the ina- ton v. Bank of Washington, 14 S. & bility of a judge of the orphans' court K. 419. His certificate is evidence to sit in any matter depending therein, of his interest, and conclusive. Voris he may call upon any other orphans' v. Smith, 13 S. & R. 334. Ellmaker v. court judge, or judge of any court of Buckley, 16 Ibid. 76-7. common pleas, to preside and determine * Where one of the judges is related the same. Act 4 March 1875, P. L. 5 j to a party, and the other has been Purd. 2050. But this act does not em- counsel in the cause, it is a case for a power a judge of a separate orphans' special court. Spoul v. Ihmsen, 6 W. court to hold a special court, in another & S. 525. county, in which no separate orphans' ^ By act 22 April, 1856, P. L. 500 ; court has been established; such case Purd. 232, the nearest judge, who shall is provided for by the act of 1843. Liv- be disinterested. And see Act 18 ingston's Apijeal, 6 W. N. 0. 310. March 1840,P. L. 153 ; Purd. 231. * The decision of the judge upon the 86 OF THE COUETS. dent, to appoint a time for holding a special court in the county where such cause or causes ought to be tried ; and at the time so appointed, to hold the said court, with one or more of the associate judges of the county ; and courts so holden may be adjourned, from time to time, until all such causes shall be finally determined. Sixty days' public notice must be given of the time of holding such court. All proceedings before such special court have the same force and effect, as if before the proper president, and are, in like manner, subject to appeal or writ of error. § 152. By act 10 April 1849,' whenever it shall be necessary to hold a special court, an arrangement may be made between the president judge of such district and the president of another^ district, to hold the regular term of his court, or any adjourned term thereof, without addi- tional notice, or special venire.* And the judge whose place is thus sup- plied, may take the place of the other judge, and hold the courts in the district of the latter. And by act 2 April 1860,^ in case of the inability of a president judge, from any cause whatever, to hold the regular terms of his court, he may call upon any president judge of the commonwealth, who may be disengaged, to hold the same. A judge who holds a special court may determine questions holden under advisement, in vacation, and transmit his decision in writing to the prothonotary of the proper county, to be by him filed of record ; but notice must be given to the opposite party, before issuing execution on such judgment' Where a case is tried before the president judge of an adjoining district, who, after- wards, in vacation, files an opinion, granting a new trial, unless the plain- tiff release all subsequently accruing damages, the associate judges of the proper county have no power to set aside his decision, and enter judgment on the verdict.* > P. L. 619 ; Purd. 231. * P. L. 552 ; Purd. 232. 2 By act 18 April 1853, P. L. 573, = _^ot 5 May 1864, P. L. 829 ; Purd. it need not be the president of an ad- 232. joining district. i Glamorgan Iron Co. v. Snvder, 84 ' Traoey v. Pendleton, 23 Penn. St. Penn. St. 397. 171. CHAPTEK II. Of the Officers of the Courts. I. Pkothonotaeies, crieks, tip Commissioners and stenographers, STATES, &c., ? l53. J 158. Prothonotaries, ^ 153-6. Criers and tipstaves, J 157. 11. Sheriffs and cokonebs, § 159-62. I. Prothonotaries, criers, tipstaves, &c. § 153. The constitution of 1838 provided, that the prothouotaries of the supreme court should be appointed by the said court, for the term of three years, if they should so long behave themselves well. That of 1874 provides that all officers whose selection is not thereby provided for, shall be elected or appointed as may be directed by law ; but it also pro- vides that none of the judges of the supreme court shall exercise any power of appointment, except as therein provided. Prothonotaries of the courts of common pleas are county officers, to be elected at the general election, and to hold their offices for the term of three years, from the first Mon- day of January next succeeding, and until their successors shall be duly qualified.' They are required, by the act of 1834,^ to give bond, in such sum as the governor shall direct, with condition faithfully to execute the duties of their office, and well and truly to account for and pay, accord- ing to law, all moneys which shall be received by them in their official capacity, and to deliver the books, seals, records, writings and papers, belonging to their respective offices, whole, safe and undefaced, to their successors therein.' The constitution provides that they shall keep their offices in the proper county town.* § 154. It is further provided by the constitution,^ that, in Philadelphia, there shall be one prothouotary's office, and one prothonotary for all the courts of common pleas, to be appointed by the judges thereof, and to hold office for three years, subject to a removal by a majority of the said judges. He shall appoint such assistants as may be necessary, and authorized by said courts ; and he and his assistants shall receive fixed salaries, to be determined by law, and paid by the county. All fees col- ' In case of a tie vote, the incumbent ^ P. L. 355; Purd. 1182. holds over ; there is no vacancy, which ' See Younf; v. Commonwealth, 6 the governor can fill by appointment. Binn. 88. McKeehan v. Common- Commonwealth V. Barnett, 8 Luz. L. wealth, 3 Penn. St. 152. Common- Reg. 81. So also, if the officer elect die, wealth ». Conard, 1 Rawle 249. Zieg- before he has qualified. Commonwealth ler v. Commonwealth, 12 Penn. St. V. Hanley, 9 Penn. St. 513. And so 227. Watson v. Smith, 26 Ibid. 395. also, the incumbent holds over, pending * Art. XIV., 1 4: a contested election. Barber's Case, 5 ' Art. V., g 7. W. N. C. 350. (87) 88 OFFICERS OF THE COURTS. lected in said office, except such as may be, by law, due to the common- wealth, shall be paid by the prothonotary into the county treasury. By the act of 31 March 1876,' his salary is fixed__^at the sum of ten thous- and dollars per annum. § 155. Prothonotaries are empowered, by statute,^ to sign and affix the seal of the court to all writs and process, and also to the exemplifica- tions of all records and process, in their respective courts ; to take bail in civil actions depending therein ; to enter judgments, at the instance of plaintiffs, upon the confession of defendants ; to sign all judgments ; to take the acknowledgment of satisfaction of judgments or decrees entered on the record of the respective court; and by act 22 March 1859,^ they have a general power to administer oaths and affirmations.^ § 156. In Philadelphia, it is provided by statute,' that the prothonotary shall be responsible for any loss or damage which may happen by reason of any false or erroneous certificate of search, made or given by him, for a period of five years from the giving of such certificate, not only to the person or persons for or upon whose order such certificate of search was made or given, but also to any person or persons claiming title through, from or under him or them, who may suffer loss by reason of the making of any such false or erroneous certificate of search. This act repeals the provision of the common law, that a right of action for a tort is not assignable. The law is otherwise, outside the city of Philadelphia.* §157. The judges of the respective courts have power to appoint a crier for the court, and so many tipstaves or constables as may be necessary to attend upon the court ; and the said ofiicers are entitled to such com- pensation, for each day's attendance, as the judges shall allow.' The courts have the exclusive right to fix the daily pay of the criers and tip- staves.' The criers in the different courts of Philadelphia are likewise entitled to a fee of twelve and a half cents, to be taxed on every bill of costs.' § 158. The courts of Philadelphia are authorized to appoint a certain number of commissioners, to take depositions, under such regulations as '/■ -^ Iv' ?",^fi^^J-.^?''®T.^^®P" °^ *® prothonotary, to appoint such pard V Collis, 1 W N C. 494. Perot's principal deputy ; and when the latter Appeal, 8b 1 enn. bt. 335. acts as prothonotary, he is required to Act 14 April 1834, § 77, P. L. 355 ; give bond, similar to that of his prin- s li T in^ „ , ,,on oipal, to be approved by one of the P. L 194 ; Purd. 1182. judges of the court. Act 12 February Prothonotaries cannot practise as 1874, P. L. 43 ; Purd 1941 attorneys in their own courts, Act 14 M3 April 1872, p'. L 1140- Purd April 1834, §75, P. L. 355; Purd. 100. 1183. ' ' "• But they may appoint deputies, who may « Commonwealth v. Harmer 6 Phila do all the acts that their principal could 90. And see Kimball v ConnoUv 3 ?f «°T-TJ Commonwealth « Finney, Keyes 57. Wells v. Cook, 16 Ohio St. 17 S. & R. 285. Reigart v. McGrath, 67. Ware ». Brown, 2 Bond 267 16 Ibid 65 Drumheller v. Mumaw, 9 ' Act 14 April 1834, P. L 355 • Purd Penn. St. 19. In ease of a vacancy 310. ■ ,j;"iu. in the office of prothonotary, his prin- ^ Commonwealth v. Pattison 35 Lesr cipal deputy is empowered to discharge Int. 120. ' ^" all the duties of the office, until the » Act 4 April 1837, PL 378 • Purd appointment and qualification of a 310.- " '°'^"™- Buccessor in the office ; it is the duty SHERIFFS AND CORONERS. 89 the courts shall deem expedient ; such commissioners have power to administer oaths and affirmations, to certify affidavits, and take testi- mony to be read in evidence in any court of the commonwealth.' The several courts of common pleas are also empowered to appoint steno- graphic reporters (and are required to do so, upon the written request of two-thirds of the members of the bar), whose duty it shall be to take full stenographic notes of the testimony, in all proceedings in any trial of facts, together with the charge of the judge ; such notes are to be deemed official, and the best authoritj^ in any matter of dispute ; copies are to be furnished, on request, at a rate of compensation provided by the statute.^ n. Sheriffs and coroners. § 159. Sheriffs and coroners are chosen by the qualified electors of each county, at the general election held in such county ; they hold their offices for the term of three years from the first Monday of January next succeed- ing, and until their successors are duly qualified." But the sherifi" is ineli- gible to a re-election.* They are required by law to give security, by bond and recognisance, for the faithful performance of the duties of their respective offices^ the sheriff of Philadelphia in the sum of eighty thous- and dollars, and the coroner in one-fourth of that amount.' The pro- ceedings on a sherifT's bond and recognisance will be considered in a future chapter of the work.* § 160. The sheriff is, by the common law, the officer to whom all pro- cess ought to be directed ; and he cannot be passed by without cause ; but if there be just cause of exception to him, the prothonotary may direct the process to the coroner.' The sheriff", however, is the proper officer to execute all writs, except a case of partiality, or where he is himself the defendant. Thus, if the action be against the sureties of the yieriff for his neglect of duty, it would be improper to trust him with the service of the process, whether original or final. So, too, it seems, that process against the sheriff's sureties, which is not founded on his default or delinquency, should be directed to the coroner. But whether the sheriff be or be not incompetent, by reason of partiality, the coroner is bound to execute the process directed to him by a court having juris- diction, even though such direction be erroneous. The process is not void, but, when issued to the coroner, when it ought not to be, it is aided by the statutes of jeofail, and the obligation of the coroner's sureties comprehends such process, when executed by him.* If the sheriff be a party, and there be no coroner in commission, the process may be exe- ' See Purd. 1170 ; Act 28 April 1876, for a longer period than the unexpired P L 62 • Purd. 2054. term. Commonwealth v. King, 85 2 Act 8 May 1876, P. L. 140 ; Purd. Penn. St. 103. 2054. See Taylor v. Preston, 79 Penn. * Constitution, Art. XIV., | 1. St 436 » Act 15 April 1834, P. L. 547 ; Purd. ' Constitution, Art. XIV., 1% If a 1304. sheriff die, in the last year of his term, * See vol. ii., | 2055. though within three months of the gen- ' Rex v. Burridge, 8 Mod. 248. eralelection, the governor has no power »• Beale w. Commonwealth, 11 S. & to fill the vacancy, by an appointment R. 299, 302. 90 OFFICEES OF THE COUKTS. cuted by any constable of the proper county." Out-going sheriffi are required by law to hand over to their successors in office, all unexecuted process.^ § 161. A sheriff is bound to execute his writ, according to its exigency, without inquiring into the regularity of the proceedings.^ If an adverse claim be made to goods levied on by him, of such a nature as would raise a reasonable doubt as to the title, the sheriff may call on the plaintiff for an indemnity.* And if the plaintiff Refuse to respond, the court will enlarge the time for making return to the writ, until such indemnity be given,'' and he is not absolutely bound to levy, even upon a tender of indemnity ; he may show that the defendant was not the owner of the property, in an action against him for a false return.^ § 162. The sheriff of Philadelphia is a salaried officer ; all fees received by him are to be paid into the county or state treasury, as the case may be.^ - His compensation is fifteen thousand dollars per annum.* He has power to appoint so many deputies and clerks, for the proper despatch of business, as shall be determined by the city commissioners and con- troller ; for whose misconduct he is responsible, in his official capacity;* If any deputy, or other officer appointed by him, shall be guilty of extor- tion in taking illegal fees, the court is authorized, by the act of 31 March 1843,^" to grant a rule on the sheriff to dismiss said officer, and if the fact be proved, to make such rule absolute, and enforce it by attachment. And it shall not be lawful for him to re-appoint such officer, during his term of service. This act is constitutional, and in furtherance of the bill of rights ; it is not a criminal proceeding, but in the nature of a civil remedy."" The proceedings must be commenced by a petition from a responsible party, containing a specification of the charges ; to which an answer may be filed."^ And no appeal lies from the decree of the com- mon pleas on the merits."' • 1 Aet 22 April 1850, § 19, P. L. 553 ; « Act 31 March 1876, P. L. 16 ; Purd. Purd. 269. ]997. 2 Act 18 March 1875, P. L. 27; Purd. 'Hazard v. Israel, 1 Binn. 240. 2077. Wilbur v. Strickland, 1 Rawle 458. ' Ricketson v. Commonwealth, 51 Overholzer ». McMichael, 1 Penn. St. Penn. St. 155. 139. * Spangler v. Commonwealth, 16 S. "" P. L. 122 ; Purd. 1310. & R- 68. " Leeds's Appeal, 75 Penn. St. 75. 5 Nagle V. Stroh, 4 Watts 124. " Ex parte Sheriff of Philadelphia, 8 • Commonwealth v. Watmough, 6 Phila. 266. Whart. 117. Commonwealth d. A'an- • " Leeds's Appeal, m< «r They have jurisdiction in suits to attachment for not paying over upon bonds of deputy-collectors of moneys collected on an execution in internal revenue, by act 8 Februarv h^_ hands Bagley «. Yates, 3 McLean 1875, 1 12, Jg Stat. 309. And the cS =' R^v" stt f/sq"- ^'°°' ' ^'°'^- ^- ?"'' 'T'' ^^^« concurrent jurisdiction 4 iHd ffnJ ^^^- ''I ™«h oases. Ibid. The United States 6 ma V7si « 1 -. ^ """y '''® ™ ^ ^^^^^ '^o^rt, for duties on Wnif-^ • .^"cli suit may be imported goods. United States «. Graff brought in a circuit court, without re- 4 Hun 634. ' gard to the citizenship of the parties. DISTRICT COURTS. • 95 VI. Of all suits for the recovery of any forfeiture or damages, undei § 3490, for making or presenting false claims against the gov- ernment ; and such suits are triable by any district court with- in whose jurisdictional limits the defendant may be found. VII. Of all causes of action arising under the postal laws of the United States. VIII. Of all civil causes of admiralty and maritime jurisdiction ; sav- ing to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it ; and of all seizures on land, and on waters not within admiralty and maritime jurisdiction. And such jurisdiction shall be exclu- sive, except in the particular cases where jurisdiction of such causes and seizures is given to the circuit courts. And shall liave original and exclusive cognisance of all prizes brought into the United States. TX. Of all proceedings for the condemnation of property taken as prize, under the confiscation law, § 5308.^ X. Of all suits by the assignee of any debenture for drawback of duties, issued under any law for the collection of duties, • against the person to whom such debenture was originally granted, or against any indorser thereof, to recover the amount of such debenture. XI. Of all suits authorized by law to be brought by any person, for the recovery of damages on account of any injury to his per- son or property, or of the deprivation of any right or privi- lege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in the " civil rights" law, § 1980. XII. Of all suits at law or in equity authorized by law to be brought, by any person, to redress the deprivation, under color of any law, ordinance, regulation, custom or usage of any state, of any right, privilege or immunity secured by the constitution of the United States, or of any right secured by any law of the United States, to persons within the jurisdiction thereof.^ XIII. Of suits to recover possession of any office, except that of presi- dential elector, representative or delegate in congress, or member of a state legislature, authorized by law to be brought, wherein it appears that the sole question touching thfi title to such office arises out of the denial of the right to vote, to any citizen offering to vote, on account of race, color or previous condition of servitude. The jurisdiction is restricted to the determination of such question. XIV. Of all proceedings by writ of quo warranto, prosecuted by any * The circuit court has concurrent an action for damages for excluding iurisdiction in such oases. JRev. Stat, colored persons from the cabin of a s 529. vessel, set apart for the use of white * They have iurisdiction, concurrent- passengers, is unconstitutional, so far Iv with the circuit courts, under the as it is a regulation of inter-state com- " civil rights" act of 1 March 1875, 18 merce. Hall v. DeCuir, 5 Otto 4S5. Stat. 336. A state law which gives 96 CODBTS OF THE UNITED STATES. district-attorney, for the removal from office of any person holding office, except as a member of congress, or of a state legislature, contrary to the 3d section of the 14th amend- ment to the constitution XV. Of all suits by or against any national banking association, established within the district for which the court is held. XVI. Of all suits brought by any alien for a tort only in violation of the law of nations, or of a treaty of the United States. XVII. Of all suits against consuls or vice-consuls, except for offences above the description aforesaid.^ XVIII. The district courts are constituted courts of bankruptcy, and shall have, in their respective districts, original jurisdiction in all matters and proceedings in bankruptcy.^ § 170. It is not within the scope of the present work, to treat of the criminal jurisdiction of this court, nor of its jurisdiction as a court of admiralty, or of bankruptcy.. Matters relating to its common-law juris- diction will be considered, when we come to the question of the powers of the circuit court ; it is only necessary here to remark, that it is to conform, as near as may be, to the practice, in like cases, in the courts of record of the state within which the court is held.* TTT. Circuit courts of the United States. § 171. Organization. The judicial districts of the United States are divided into nine circuits, the third of which includes the districts of Pennsylvania, New Jersey and Delaware.* The circuit court is held by one of the justices of the supreme court, allotted to such circuit, and by a circuit judge appointed therefor, who is required to reside within his circuit.^ Circuit courts may be held by the justice of the supreme court assigned to such circuit, or by the circuit judge, or by the district judge sitting alone, or by any two of the said judges sitting together.^ Cases may be heard and tried by each of the judges holding a circuit court, sitting apart, by direction of the presiding justice or judge, who shall designate the business to be done by each.'' And circuit courts may be held, at the same time, in the different districts of the same circuit.^ In Pennsylvania, the regular terms of the circuit court for the eastern dis- trict are held at Philadelphia, on the first Mondays in April and October ; and for the western district, at Erie, on the second Monday in January and third Monday in July; at Pittsburgh, on the second Mondays in May and November ; and at Williamsport, on the third Mondays in ^ A state court has no jurisdiction Wheelock v. Lee, 5 Abb. N. C. 72. of a suit against a consul. Manhardt And he may sue for property alleged I). Soderstrom, 1 Binn. 138. Nor of a to have been conveyed in fraud of cred- criminal prosecution against such offi- itors. Wente i'. loung, 12 Hun 220. cer. Commonwealth v. Kosloff, 5 S. & Olcott v. Maclean, 72 n' Y "''S ^- 545. _ _ 8 Rev. Stat. ^914. '^ An assignee in bankruptcy may sue * Ibid. J 604. in the state courts to recover the assets ^ Ibid. § 606-7. of the bankrupt. Claflin v. Houseman, « Ibid. I 609. 3 Otto 130. Peiperc. Harmer, 8 Phila. ' Ibid. §61L 100. Burlingame ». Faroe, 12 Hun 144. " Ibid. 2612. CIRCUIT COURTS. 97 Juue and September.' If neither of the judges be present to open the sessions, the marshal maj' adjourn the court from day to day ; or, if neither of them attend before the close of the fourth day, the marshal may adjourn the court to the next regular term f or the court may be adjourned by the marshal or clerk, on a written order directed to them alternately, by either of the judges, to a day before the next regular term.' The pre- siding judge may appoint special sessions of the court to be held at the place for holding the regular terms ;* and the court may, in its discretion, or, at the discretion of the supreme court, hold special sessions for the trial of criminal cases f and such special sessions may be directed to be holden at any convenient place within the district, nearest to the place where the offences are said to have been committed.^ § 172. Officers, The marshal of the district is the ministerial officer of the circuit court. In case of a vacancy in the office of marshal, the justice of the supreme court, allotted to such circuit, has power to fill the same, until an appointment shall have been made by the president, and the appointee is duly qualified.^ The clerk is appointed by the cir- cuit judge,' and must give bond, for the faithful performance of the duties of his office, in a sum of not less than .$5000, nor more than $20,000, to be fixed by the attorney-general, and with sureties to be approved by the court ; a new bond may be required, whenever the attorney-general deems it proper that such bond should be given, in an amount not exceeding $40,000.' The court may appoint one or more deputy-clerks, on the application of the clerk, removable at the pleasure of the judges ; and the clerk is responsible for their defaults or misfeasances.'" Such deputies may be required to give bond, with security, as in ease of the clerk." The circuit courts are likewise empowered to appoint so many commis- sioners, in different parts of the district, as they may deem necessary, '^ who are authorized to act as committing magistrates in criminal cases ;'^ to hold to bail to keep the peace, and for good behavior ;" to take bail and affidavits in civil cases ;'' to discharge indigent convicts imprisoned for non-payment of fines to the United States ;'^ and to perform various other duties imposed upon them by law. They are empowered by the state law to administer oaths and affirmations, and to take depositions, to be used in any court of the commonwealth."' Attorneys are admitted to practice in the circuit court, on certificate of their previous admission 1 Rev Stat, i 658. ' Act 22 February 1875, 18 Stat. 333. Mbid. |671. i» Rev. Stat. § 624. 3 Ibid, i 672. " Ibid. § 796. * Ibid. §669. "Ibid.? 627. 6 Ibid. I 661. '' Ibid. 1 1014. ' Ibid. I 662. The revised statutes " Ibid. I Tli. also provide for the transfer of causes " Ibid. | 945. to another circuit, in certain cases, '" Ibid. ?J 1042. 5296. a 615-6 : and for the holding of circuit " Act 21 April 1869, P. L. 86 ; Purd. courts by the judges of other circuits, 625. They are empowered^ to take upon request, ? 617. acknowledgments of deeds, in Brad- 7 Ibid. 2 79*3. ford county, by act 1 March 1870, P. 8 Ibidl i 619. He is removable by L. 277 ; and in Lycoming county, by the president for certain causes: see act 26 February 1872^ P. L. 157.. act 22 February 1S75, 18 Stat. 334. VOL. I.— 7 98 COUETS OF THE UNITED STATES. in the supreme court of the state, and satisfactory evidence of good moral character.' § 173. Jurisdiction. The act of congress of 1875,^ which, to a great extent, has supplied the provisions of the revised statutes, provides, that the circuit courts of the United States shall have original cognisance, concurrently with the courts of the several states,^ of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars,* and arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority ; or in which the United States are plaintiffs or petitioners f or in which there shall be a con- troversy between citizens of different states f or a controversy between citizens of the same state, claiming lands under grants of different states f or a controversy between citizens of a state and foreign states, citizens or subjects f and shall have exclusive jurisdiction of all crimes and offences cognisable under the authority of the United States, except as otherwise provided by law, and concurrent jurisdiction with the district courts of the crimes and offences cognisable therein.^ But no person shall be arrested in one district, fpr trial in another, in any civil action before a circuit or district court.'" And no civil suit shall be brought, before either of said courts, against any person, by any original process or proceeding, in any other district than that whereof he is an inhabit- ant, or in which he shall be found, at the time of serving such process, or their own name, as assignees of a chose in action. United States v. Buford, 3 Pet. 12. " This clause is in the words of the constitution, which imposes no limita- tion upon the federal jurisdiction, in controversies between citizens of the different states. Under its provisions, any suit, which can be maintained in any state court, if the matter in dis- pute exceed S500 in value, and the parties are citizens of different states, may be brought in a circuit court. Gaines v. Fuentes, 2 Otto 10. ' See Town of Pawlet v. Clark, 9 Cr. 292. Colson v. Lewis, 2 Wheat. 377. * When both parties are aliens, the federal courts have no jurisdiction. Montalet v. Murray, 4 Cr.' 46. Hincls- ley V. Byrne, 1 Deady 224. But an alien resident may sue in a circuit court. Bonaparte v. Camden and Am- boy Railroad Co., Bald. 205. ' See svpra, | 169. This clause em- braces offences created by a subsequent -'"'■-'- United States v. Holliday, » Rule of Court v., § 10. 2 Act 3 March 1875, 18 Stat. 470. The circuit court is not an inferior court, so as to render it necessary that the jurisdiction should appear upon the face of the record. Malson v. Burt, 9 Hun 470. ' If a case be within the ordinary jurisdiction of a state court, the court may take cognisance of it, though the cause of action arise under rights acquired by a statute of the United States, provided there be no restriction under the constitution or the statute of the United States, confining the jurisdiction to the federal courts. Ward V. Mann, 9 Law Rep. 493, cited 1 Kent, Com. 397 n. And see Bletz o. Columbia Bank, 6 AY. N. C. 1. Gruber V. Bank of Clarion, 26 Pitts. L. .J. 97. Kidder v. Horribin, 17 Alb. L. J. 433. * In an action sounding in tort, the damages claimed in the declaration are the teste of jurisdiction. Ilulsecamp V. Teel, 2 Ball. 358. Gordon v. Long- est, 16 Pet. 97. Sherman v. Clark, 3 McLean 91. And after verdict in eject- ment, the value of the land may be shown, in order to sustain the juris- diction. Hartshorn v. Wright, Pet. C. C. 64. ' The United States may sue, in statute. 3 Wall. 407. '" The federal courts cannot issue their process into another district, unless spe- cially authorized by law. Ex parte Graham, 3 W. C. C. 456 : 4 Ibid. 211 Wilson w. Graham, Ibid. 53. CIRCUIT COURTS. 99 commencing such proceedings, except as hereinafter provided ;' nor shall any circuit or district court have cognisance of any suit founded on con- tract, in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon, if no assignment had been made, except in cases of promissory notes, negotiable by the law-merchant, and bills of exchange.^ And the circuit courts shall also have appellate jurisdic- tion fi-om the district courts, under the regulations and restrictions pre- scribed by law.' § 174. This statute has greatly enlarged the jurisdiction of the circuit courts ; and appears also to have inferentially extended the concurrent jurisdiction of the state courts to many cases arising under the laws of the United States, as to which the federal jurisdiction was formerly held to be exclusive. The revised statutes also confer jurisdiction upon the circuit courts in all cases, at iaw or in equity, arising under the revenue laws ; of suits for the enforcement of certain penal laws therein specially mentioned ; of suits by the assignees of debentures ; by or against banking associations ;* and of proceedings to test the right to office, under the same restrictions as are provided in regard to the district courts.^ Their jurisdiction under the patent, copyright, and trade-mark laws,*^ appears to be included within the general grant of power by the act of 1875 ; these cases all arise under the laws of the United States. The revised statutes provided that the federal jurisdiction should be exclusive — 1. Of all crimes and offences cognisable under the authority of the United States : 2. Of all suits for penalties and forfeitures incurred under the laws of the United States : 3. Of all civil causes of admiralty and maritime jurisdiction ; saving to suitors, in all cases, the right to a common-law remedy, where the common law is competent to give it : * ^ This refers to the remoyal of causes White 11. Vermont and JIassachusetts against a non-resident, commenoed by Railroad Co., 21 How. 575. Or the attachment, in a state court. A federal holder of a coupon, payable to bearer, court cannot acquire original jurisdic- Thomson ti. Lee County 3 Wall. 327. tion by process of foreign attachment ' They have appellate jurisdiction in against a non-resident. Chaffee v. Hay- such actions, where the matter in dis- ward, 20 How. 208. A circuit court pute, exclusive of costs, exceeds the may acquire jurisdiction, by service of sum or value of fifty dollars. Rev. process upon the resident agent of a Stat. § 633. corporation chartered by another state, * The circuit courts have uncondi- designated under the state law as a tional jurisdiction of all ^ suits by and party upon whom process may be served, against national banks, "within their as a condition for transacting business respective districts." Mitchell u. Wal- therein. Ex parte Schollenberger, 6 ker, 36 Leg. Int. 74. Otto 369 : s. c, 5 W. N. C. 405. Knott » See supra, § 169. V. Southern Life Ins. Co., 2 Woods 479. = It has been determined, that the Albright v. Empire Transportation Co. , act of congress, which confers jurisdic- 26 Am. L. R. 698. And a foreign cor- tion upon the circuit courts, m cases poratio'n doing business in another respecting trade-marks, without refer- state may be sued in a circuit court for ence to the citizenship of the parties, the latter state, though the state law is withoift support from the constitu- eontain no such provision. Wilson tion. Leidersdorf « Elmt 27 Am. L. Packing Co. V. Hunter, 11 Chicago Reg. 37. Day a Walls, 35 Leg. Int. L News 207. 468. Contr^., Duwell v. Bohmer, 10 2*The holder of a railroad bond, pay- Chicago L. News 356. able in blank, may sue in a circuit court. 100 COURTS OF THE ITfTITED STATES. 4. Of all seizures under the laws of the United States, on land, or on ■waters not within the admiralty and maritime jurisdiction : 5. Of all cases arising under the patent or copyright laws of the United States : 6. Of all matters and proceedings in bankruptcy : 7. Of all controver- sies of a civil nature, where a state is a party, except between a state and its citizens, or between a state and citizens of other states or aliens : 8. Of all suits or proceedings against ambassadors or other public min- isters, or their domestics or dotnestic servants, or against, consuls or vice- consuls.' § 175. A corporation is deemed a citizen of the state, by whose laws it was created, for purposes of federal jurisdiction.^ And a corporation created by the laws of another state, though associated with one in the state of the former, and having a common interest with it, may sue in a circuit court for the protection of its rights.^ A wife cannot be a citizen of a state different from that in which her husband is domiciled, so as to maintain a bill in equity against him, in a federal court.* It is other- wise, after a divorce ci mensa et thoro; if, in such case, the husband remove to another state, the domicil of the wife is not thereby changed, and she may sue him in a circuit court.^ A municipal corporation created by a state, within its own limits, may be sued in a court of the United States, by a citizen of another state, notwithstanding a provision in the state law that it shall be suable only in the courts of the proper county; such provision cannot affect the jurisdiction of the federal courts." The jurisdiction of the courts of the United States over con- troversies between citizens of different states, cannot be impaired by the laws of the states, which prescribe the modes of redress In their own courts, or which regulate the distribution of their judicial power.^ § 176. Practice. The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding, existing at the time, in like causes, in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding.* In common- law causes, in the circuit court and district courts, the plaintiff shall be entitled to similar remedies, by attachment or other process, against the property of the defendant, which are now provided by the laws of the state in which such court is held for the courts thereof ; and such circuit and district courts may, from time to time, by general rules, adopt such state laws as may be in force in the states in which they are held in relation to attachments and other process ; provided that similar affidavits or proofs, and similar security, as required by such state laws, shall be first furnished by the party asking such attachment or other ' Rev. Stat. | 711. 84, 90. ^ Chicago and Northwestern Railway ^ Barber v. Barber, 21 How. 582. Co. V. Whltton, 13 Wall. 270.' Vose v. " Cowles v. Mercer County, 7 Wall. Reed, 1 Woods 647. 118. McCoy v. Washington County, ' Chicago and Northwestern Rail- 3Wall. Jr. C. C. 381. road Go. v. Chicago and Pacific Railroad ' Hyde v. Stone, 20 How. 170. Co., 6 Biss. 219. » Rev. Stat. J 914. * Dougherty v. Snyder, 15 S. & R. EEMOVAL FROM A STATE COURT. 101 remedy.' The party recovering a judgment in any common-law cause, in any circuit or district court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judg- ment-debtor, as are now provided, in like causes, by the laws of the state in which such court is held, or by any such laws hereafter enacted, which may be adopted by general rules of such circuit or district court ; and such courts may, from time to time, by general rules, adopt such state laws as may hereafter be in force in such state, in relation to reme- dies upon judgments, as aforesaid, by execution or otherwise.^ Writs of execution upon judgments obtained in a circuit or district court, in any state which is divided into two or more districts, may run and be exe- cuted in any part of such state.^ n. Removal of causes from a state court. § 177. The act of congress of 3 March 1875* provides, that in any suit of a civil nature, at law or in equity, now pending or hereafter brought in any state court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars,^ and arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States shall be plaintifi" or petitioner, or in which there shall be a controversy between citizens of different states, or a controversy between citizens of the same state, claiming lands under grants of difierent states, or a con- troversy between titizens of a state and foreign states, citizens or sub- jects, either party may remove said suit into the circuit court of the United States for the proper district. And when, in any suit mentioned in this section, there shall be a controversy which is wholly between citizens of difierent states, and which can be fully determined as between them, then, either one or more of the plaintiffs or defendants actually interested in such controversy, may remove such suit to the circuit court • of the United States for the proper district.^ The revised statutes, § 639,' also provide, that when a suit is between a citizen of the state in ' Rev. Stat. 915. another state, it may be removed, upon 2 n,i(j. 2 916. the petition of such defendant, filed at • Ibid.'pSS.' The effect of this pro- any time before the trial or final hear- vision is' to make a judgment obtained ing of the cause, if, so far as relates to in a circuit court a lien upon lands in him, it is brought for the_ purpose of anv part of the state. Prevost v. Gor- restraining or enjoining him, or is a rell 5 W N. C. 151. suit in which there can be a final de- I'lg gj^^ 4Y0 ' termination of the controversy, so far 5 Therefore it is said, an application as concerns him, without the presence for removal before declaration filed, is of the other defendants as parties m nremature. Shepard v. Conrad, 4 Abb. the cause. But such removal shall not ^N C 254 And see Gordons. Longest, take away or prejudice the right of 1 fi p' f 9'' *^^ plaintiff to proceed, at the same « The ''d subdivision of § 639 of the time, in the state court, as against the revised statutes provides, that when the other defendants. It has been held, s^t is a..ainst an alien and a citizen that this clause is not repealed by the onhe state wherein it is brought, or is act of 1875 New Jersey Zinc Co. .. by a citizen of such state against a Trotter, 26 Am. L. K. 376 jUizen of the same and a citizen of ' The 3d subdivision of 2 639 is not 102 COURTS OF THE UmTED STATES. ■whicli it is brought, and a citizen of another state, it may be removed, on the petition of the latter, whether he be plaintiff or defendant, filed at any time before the trial or final hearing of the suit, if, before or at the time of filing said petition, he makes and files in the state court, an afiidavit, stating that he has reason to believe, and does believe, that from prejudice or local influence, he will not be able to obtain justice in said state court. There are other statutes giving the right of removal, in cases of the denial of civil rights ;' in suits against revenue ofiScers, and persons acting under the registration laws f in suits by aliens against civil officers of the United States ;* and in suits against certain federal corporations,^ which do not need a particular discussion. § 178. Under the act of 1875, it would seem, that any cause may be removed from a state court, which, by reason either of its subject- matter, or the citizenship of the parties, might have been instituted originally in the federal court. This act is in the words of the constitu- tion, which imposes no limitation upon the federal jurisdiction, in con- troversies between citizens of difierent states f and, under it, either party may remove the record.*. Under the latter clause of the statute, it has been held, that where the main and essential controversy is between citizens of the same sta^,e, a non-resident defendant, interested in a col- lateral branch of the case, cannot remove it into the circuit court.' But where a complaint against several defendants is dismissed, as to all of them, and, on appeal, there is a reversal as to one, who thus becomes sole defendant, he has the right to remove the cause, if a citizen of another state.* It seems, however, that an injunction suit, to re- strain the act of several trustees, jointly responsible, as such, is not repealed by the act of ] 875. Cooke u. ferent states from those on the other Ford, 25 Am. L. R. 417. New Jersey side. Frazer's Estate, 10 Chicago L. Zinc Co. V. Trotter, 26 Ibid. 376. News 390, Swayne, J. ; s. c. 18 Alb. • Ber. Stat. § 641-2. L. J. 353. But although some of the ^ Ibid. § 643. formal or nominal plaintiffs or defend- ' Ibid. J 644. A case is removable, ants may be citizens of the same state, underthis act, though the plaintiff is yet, if it appears to be a controversy an assignee of a chose in action, and the wholly between citizens of different circuit court would not have had origi- states, and can be fully determined as nal jurisdiction, by reason of the citi between them, the cause is removable zenship of his assignor. Leutze ». into a circuit court. Taylor v Booke- Butterfield, 1 Abb. N. C. 367. A for- feller, 6 W. N. C. 283. The judicial eign corporation, sued by a citizen of competency of a circuit court does not the state, may remove the cause. Erie depend upon the description of the par- Bailway Co. v. Stringer, 26 Am. L. B. ties, as citizens of different states, but It, o. .,<,.« upon the fact that they are so. Kill- Bev. Stat. § 640. patriok v. Frost, 2 Gr. 168. 5 Gaines v. Fuentes, 2 Otto 10. But « Gillespie u. Jamieson, 34 Leg. where a citizen is sued in his own state Int. 58. court, by a citizen of another state, he ' Chicago v. Gage, 6 Biss 467 See does not possess the right of removal, Osgood, v. Chicago', Danville and Vin- under the act of 1875. Dunham v. cennes Railroad' Co., Ibid. 330. BI- Baird, 1 W N. C. 493. In order to a lerman v. New Orleans, Mobile and removal under that act, all the parties Texas Bailroad Co., 2 Woods 120 on each side must be citizens of dif- « Yulee v. Vose, 19 Alb. L. J 299 EEMOVAL FEOM A STATE COURT. 103 removable, on the petition of one of them, who is a citizen of another state.' § 179. Where a suit is sought to be removed, under the revised sta- tutes, on the ground of local prejudice, it cannot be removed on the application of the plaintiff, who is a citizen of the forum, though, it may be, on the petition of the non-resident defendant.^ In such cases, the right of removal depends on the citizenship of the parties.' Such suit is not removable, at the instance of one of several defendants, unless the others are mere nominal or formal parties.* Under this act, a cause is not removable, after a final decision by an appellate court;'' nor after a trial on the merits, where a new trial is a matter of right, under the state law f nor where a motion for a new trial is pending, and undis- posed of;' nor where, after an adverse decision in an appellate court, a petition for a rehearing is filed, and a suspension of the decision is granted f nor where a suit is pending in an appellate court, after it has been prosecuted to final judgment in a court of original jurisdiction.' A corporation aggregate may remove a suit against it, into the circuit court, on the ground of local prejudice.'" § 180. The act of 1875 only applies to suits of a civil nature, in law or at equity. This includes a suit pending in a state court, between a land-owner and an incorporated company, seeking to appropriate his private property, under the right of eminent domain, where the question to be tried is the value of the land, though originally commenced by an appraisement by commissioners, appointed under the charter of the cor- poration." So is a suit to annul a will, as a muniment of title, and to restrain the enforcement of a decree admitting it to probate ; it is essen- tially a suit in equity.'^ But a proceeding merely incidental and ancil- lary to the principal cause, is not removable into a circuit court." ' Clark V. Opdyke, 10 Hun 383. ' Chicago and Northwestern Railway Under the Act of 1875, an action be- Co. v. McKinley, 19 Alb. L. J. 214. tween citizens of different states is re- ' Lowe v. Williams, 4 Otto 650. movable into the circuit court, though Stevenson v. Williams, 19 Wall. 572. some of the defendants are citizens of Frazer's Estate, 10 Chicago L. News, the state in which the suit is brought. 390 ; s. c. 18 Alb. L. J. 353. And see Taylor v. Rockefeller, 6 W. N. C. 283. Sweetzer v. Jiff kins, 3 Luz. L. Reg. 221. ^ Hurst V. Western and Atlantic '" Farmers' Loan and Trust Co. v. Railroad Co., 3 Otto 71. See Johnson Maquillan,,3 Dill. 379. Mix y. Andes V. Monell, 1 Wool. 390. Insurance Co., 17 Alb. Law J. 475. ' Fisk V. Union Pacific Railroad Co., " Patterson v. Mississippi and Rum 6 Bl. C. C. 362. Case of the Sewing River Boom Co., 3 Dill. 465 ; affirmed Machine Companies, 18 Wall. 553. by the supreme court of the United Vannevar v. Bryant, 21 Ibid. 41. States, 11 Chicago L. News 319. War- Knapp V. Railroad Co., 20 Ibid. 117. ren v. Wisconsin Valley Railroad Co., Belt V. Montgomery, 1 W. N. C. 265. 6 Biss. 425. But see White v. Phila- * Cooke u.°Bank of Boston, 52 N. Y. delphia, 8 Phila. 241. 96 • s. 0. 1 Lans. 494. Bixby v. Couse, '^ Gaines v. Fuentes, 2 Otto 10. 8 Bl. C. C. 73. Otherwise, of a suit to establish a will. * Waggener v. Cheek, 2 Dill. 560. Fraser's Estate, 10 Chicago L. News Bogcrs i; Willard, 3 Biss. 256. 390 ; s. c. 18 Alb. L. J. 353. 'Insurance Co. v. Dunn, 19 Wall. '' Bank v. Turnbull, 16 Wall. 190. 2J4_ And see Weeks v. Billings, 55 N, H. ' Vannevar v. Bryant, 21 Wall. 41. 371. 104 COUETS OF THE UNITED STATES. Where the right of removal depends upon the subject-matter, in order to sustain the federal jurisdiction, there must be some question actually involved in the case, depending for its determination upon the correct construction of the constitution, or of some law of congress, or some treaty of the United States. Thus, where the only questions to be liti- gated, in suits to determine the right to mining claims, are the local laws, rules, regulations and customs by which the rights of the parties are governed, and whether they have, in fact, conformed to such local laws and customs, they are not removable to a circuit court, though the title was originally derived under an act of congress.' But a suit in- volving the construction of the bankrupt law, may be removed.^ § 181. The act of 1875 further provides, that whenever either party, or any one or more of the plaintiffs or defendants, entitled to remove any such suit, shall desire to remove the same from a state court to the circuit court of the United States, he or they may make and file a petition in such suit, in such state court,^ before or at the term at which said cause could be first tried, and before the trial thereof, for the removal of such suit into the circuit court, to be held in the district where such suit is pending ; and shall make and file therewith a bond, with good and suffi- cient surety, for his or their entering in such circuit court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said circuit court, if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit, if special bail was originally requisite therein. It shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit, and any bail that may have been originally taken, shall be discharged ; and the said copy being entered as aforesaid in the circuit court of the United States, the cause shall then proceed in the same manner as if it had been originally commenced in the said circuit court. The act further provides, that the circuit court to which any cause shall be removable, under its provisions, shall have power to issue a writ of certiorari to the state court, commanding that court to make return of the record in the cause ; and the clerk of the state court is subjected to criminal punishment, who refuses, after tender of fees, to the party applying for the removal, a copy of the record. § 182. The application for removal, under the act of 1875, must be made " before or at the term at which said cause could be first tried, and before the trial thereof"* It is obvious, that this includes the term at which the cause is put at issue ; if a replication be necessary under the local law, and there is no default in making up the issue, no time has passed within which the cause could have been tried, within the meaning ' Trafton «. Nogues, 13 Pacific L. Railway Co. v. McKinley, 19 Alb. L. J. Rep. 49. 214. ^ Connor ». Scott, 3 Cent. L. J. 305. « That is, the first term at which the Whether it is sufficient to file a cause is triable on its merits. Ames v. petition for removal, in the clerk's Colorado Central Railroad Co., 4 Cent. office, when the court is not in session, L. J. 199. Huddy v. Havens, 3 W. N. qumref See Chicago and Northwestern C. 432. REMOVAL FROM A STATE COURT. 105 of the act.' So, a chancery case cannot be tried, until the issues are made up ; but, if the cause be at issue, and is continued by consent, the right of removal is at an end;^ and the application must be made, before the trial has commenced.' In New York, it has been held to be too late to apply for a removal, after the cause has been noticed for trial and placed upon the calendar.* A cause is not removable, after a trial on the merits, and new trial granted ; nor after a trial on the mer- its, and disagreement of the jury f nor after a judgment by default, in an issue of law, raised by a demurrer.' § 183. The petition for removal must contain such averments as show the right of the applicant to remove the cause f this cannot be done without showing that the circuit court would have jurisdiction of the suit, when transferred.^ It must state the citizenship of the parties, at the time the suit was commenced ; it is not sufficient, to state their citi- zenship at the time of exhibiting the petition, or to aver that the party was a resident of the state.'" And if the right of removal depends, not upon the citizenship of the parties, but upon the nature of the contro- versy, the petition must show, in clear and logical form, such as is required in good pleading, that the cause is one which really and sub- stantially involves a dispute or controversy as to a right, which depends upon the construction or eifect of the constitution, or some law or treaty of the United States ; unless this fact elsewhere appears upon the record." The averments of the petition are not conclusive upon the state court ;'^ the plaintiff's affidavit that she is not a citizen of the state in which the suit is brought, but the subject of a foreign government, will defeat the right of removal, unless disproved." The following form of petition, under the act of 1875, on the ground of citizenship, may be varied to suit the circumstances of the particular case : 1 Michigan Central Railroad Co. v. removal, an unverified petition is not Andes Insurance Co., 9 Chicago L. sufficient ; the facts must be established News 34. See Taylor v. Rockefeller, 6 by affidavit, or otherwise Groddard v. W N C 283 Bosson. 18 Alb. L. J. 512. ^ Scott v'. Clinton and Springfield " Railway Co. v. Ramsey, 22 Wall. Railroad Co., 6 Biss. 529. • 328. -ou ■ t n ^ Lewis V. Smythe, 2 Woods 117. ^ '^ l^'^'^'^L^^ Vh^^r.,^ Insurance Co., * Warner v. Pennsylvania Railroad 65 NY. 195; s. c. 6 Lans. 411 ; 5 Co., 6 Han 1 97. But see Yulee v. Voee, Otto 1 83 Holden v Putnam Fire In- 19 41b L J -'99 suranoe Co., 46 N. Y. 1. Railroad Co. ^^Yonng «." Andes Insurance Co., «^ Risler, 50 Ind. 60 Savings Bankj 3 Cent. L J. 719. ' Chandler .. Coe, 24 Benton, 2 Mete [fj-) If- Peopl^ Am L R .540. But see Insurance Co. «. Superior Court, 34 111. 356. lapleyj,. V Dunn 19 Wall. 214; and Chicago Martin, 116 Mass. 2/5 rPt^'l Kailroad Co. . Mc- ^'^^Oo^a?! 1 1^1^^ to^d°o s^i _;c7aipin „. Critchlo;, 22 Am. L. R. anjf^ -^^dT^n Sotn" ^ t ;. -Bright . Milwaukee and St. Paul Dunning, 56 IW Pr 209. ^^^^ ^^^_ ^-'^I7c:^,' t^lslJj Mutual But see Shaft -Phoenix Mutual Life Life InsuranL Co 2 Sw. 48L Amory I"--;,- ^"^J,,.^!^ '^^,^^,, Co. o;/E' ^ if a p^roS- -e for . Gorbach, 70 Penn. St. 150. 106 COUETS OF THE UNITED STATES. In the Court of Common Pleas No. 3, for the County of Philadelphia. Adam Smith ) V. \ Of March Term 1879, No. 940. John Johnson. j To the Honorable the Judges of the said Court. The petition of John Johnson, the above-named defendant, respectfully represents, that the controversy in this suit is between citizens of different states ; that your petitioner was, at the time of the commencement of this suit, and still is, a citizen of the state of New Jersey ; and that the said plaintiff, Adam Smith, was then, and still is, a citizen of the state of Pennsylvania ; and that the matter and amount in dispute in the said suit, exceeds, exclu- sive of costs, the sum or value of five hundred dollars. Your petitioner herewith offers a bond, with good and sufficient surety, conditioned for his entering in the circuit court of the United States, for the third cir- cuit, in and for the eastern district, on the first day of its next session, a copy of the record in this suit, and for the payment of all costs that may be awarded by said circuit court, if the said court shall hold that this suit was wrongfully or improperly removed thereto. He, therefore, prays this honorable court to proceed no further therein, except to make the order of removal required by law, and to accept the said bond and surety, and cause the record herein to be removed into the said circuit court. And he will ever pray, &c. A. B., John Johnson. Attorney for petitioner. § 184. The statute does not require this petition to be verified.' But under the revised statutes, where the removal is sought on the ground of local prejudice, an aflidavit to that effect must be appended. Accom- panying a petition under the act of 1875, the petitioner must present a bond in the following form : Know all men by these presents, that we, John Johnson, of the state of New Jersey, and , as surety, are held and firmly bound unto Adam Smith, of the city of Philadelphia, in the sum of five hundred dollars lawful money, to be paid to the ^aid Adam Smith, his cer- tain attorney, executors, administrators and assigns ; to which pay- ment well and truly to be made, we do bind ourselves, our heirs, execu- tors and administrators, and every of them, jointly and severally, firmly by these presents. Sealed with our seals; and dated the day of A. D. 1879. The condition of this obligation is such, that if the above-bounden John Johnson, who is the defendant in a certain action now pending in the court of common pleas No. 3, for the county of Phila- delphia, at the suit of the said Adam Smith, and who has petitioned the said court for a removal of the said suit into the circuit court of the United States for the third circuit, in and for the eastern district thereof, shall enter in the said circuit court, on the first day of its 'next session, ' Osgood V. Chicago, Danville and a case within the statute, an unverified Vmcennes Railroad Co., 6 Biss. 330. petition is not sufficient per se. God- But unless the record show that it is dard v. Bosson, 18 Alb. L. J 512 SUPREME COURT. 107 a copy of the record in said suit, and shall well and truly pay all costs that may be awarded by the said circuit court, if said court shall hold that said suit was wrongfully or improperly removed thereto ;' then this obligation to be void ; otherwise, to remain in full force and virttie. The mere filing of the petition and bond does not remove the cause; the state court has power to decide upon the sufficiency of the bond, and of the sureties.^ It will not oust its own jurisdiction, in a doubtful case ; but will put the petitioner to his remedy by mandate from the circuit court for a stay of proceedings.' If the case be improperly removed, the circuit court will remand the cause ; and in such case, its decision against its own jurisdiction is conclusive upon the state court.^ An appeal to a higher state court from an order of removal, will not be effectual to pre- vent it.* And under the act of 1875, the removal of the record may be enforced by certiorari.^ If the petition for removal be denied, in a pro- per case, the defendant does not waive his rights, by taking defence in the state court.' When, however, the cause is effectually removed, by the approval of the bond in the state court, though the defendant is not bound to file the record in the circuit court, until the first day of its next term, yet, as the jurisdiction of the state court is determined, it is com- petent for the other party, at any time, to file a copy of the record, and to rule the defendant to plead to issue, so as to secure to himself the right to try at the next term of the court. ^ V. Supreme court of the United States. § 185. Organisation. The supreme court is established by the con- stitution, and consists of a chief justice and eight associate justices, any six of whom constitute a quorum.' They are appointed by the president and senate, and hold their offices during good behavior.^" The associate justices take precedence according to the date of their commissions, or, where they bear date the same day, according to their ages." In case of a vacancy occurring in the office of chief justice, or of his disability to perform the duties and power of his office, they devolve upon the associ- ate justice who is first in precedence, until such disability is removed, or another chief justice is appointed and duly qualified.'^ It has power to appoint a clerk and marshal for the said court, and a reporter of its de- ' If special bail have been given, add, * Jifkins v. Sweetzer, 2 W. N. C. "and shall then and there appear and 591. enter special bail in said suit." * Ellerman v. New Orleans, Mobile ' Vose V. Tulee, 4 Hun 628 ; s. c. 64 and Texas Railroad Co., 2 Woods 120. N. Y. 449.' Mayo v. Taylor, 8 Chicago * See Taylor v. Kockefeller, 6 W. N. L News 10. Goddard v. Bosson, 18 C. 283. Alb. L. J. 512. Contra,, Osgood v. ' Erie Railway Co. v. Stringer, 26 Chicago, Danville and Vincennes Rail- Am. L. R. 763. road Co. 6 Biss. 330. See O'Malia v. » Arthur v. New England Mutual Home Inurance Co., 4 Luz. L. Reg. Life Insurance Co., 6 W. N. C. 403. 63 Jones ». Amazon Insurance Co., ' Rev. Stat. § 673. 5 ibid. 29 : 8. c, 8 Leg. Gaz. 59. i" Const., Art. XL, ? 1-2. » Vose V. Yulee, ut supra. Taylor " Rev. Stat. § 674 y. Rockefeller, 25 Pitts. L. J. 137. " Ibid. § 675. 108 COUEXS OF THE UNITED STATES. cisions.' The clerk gives bond, with sufficient sureties, to be approved by the court, in a sum of not less than $5000, nor more than $20,000, to be fixed by the attorney-general.^ One or more deputies may be ap- pointed, on the application of the clerk, who are removable at the pleasure of the court ; and for their acts, the clerk and the sureties are responsi- ble.^ The court holds, annually, one session, at the seat of government, commencing on the second Monday in October ; and such adjourned or special terms as it may find necessary for the dispatch of business.* At au early period, the court adopted the practice of the king's bench as its guide, subject to such alterations as circumstances might render necessa- ry.^ Its practice is regulated by the common law and acts of congress only,^ and no state legislation can be applied to the practice of this court.^ § 186. Original jurisdiction. This court has exclusive jurisdiction of all controversies of a civil nature wherein a state is a party, except between a state and its citizens, or between a state and citizens of other states, or aliens, in which latter cases, it has original, but not exclusive jurisdiction f and it has exclusively all such jurisdiction of suits or pro- ceedings against ambassadors, or other public ministers, or their domes- tics or domestic servants, as a court of law can have consistently with the law of nations ; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul is a party.' It has power to issue writs of habeas corpus z'" and writs of prohibition to the district courts, when proceeding as^courts of admiralty and maritime jurisdiction ; and also writs of mandamus, in cases warranted by tlie usages of law, to any courts appointed under authority of the United States, or to persons holding office under the au- thority of the United States, where a state, or an ambassador or other public minister, or a consul or vice-consul is a party." The trial of issues of fact in the supreme court, in all actions at law against citizens of the United States, is to be by jury.'^ § 187. Appellate jurisdiction. Though the appellate powers of the supreme court are conferred by the constitution, yet, it was determined, in au early case,'' that they are limited and regulated by the acts of con- gress upon the subject ; and therefore, we must look to the statute book for the actual appellate jurisdiction exercisible by the court. It is pro- vided by law," that all judgments of any circuit court, or of any district court acting as a circuit court, in civil actions brought there by original process, or removed there from the courts of the several states, and all ' Rev. Stat. | 677. complainant. 'Wisoonsin «. Duluth, 2 2 Act 22 February 1875, 18 Stat. 333. Dill. 406. North Carolina v. Trustees ' Rev. Stat. I 678. of the University, b Bank. Reg. 466. * Ibid. ?684. Contr^, Georgia v. Atkins, 1 Abb. ' Rule of August 1792. U. S. 22. ' Bayard v. Lombard, 9 How. 530. " Rev. Stat. | 751. 'Graham v. Bayne, 18 How. 60. " Ibid. § 688. Guild 0. Frontin, Ibid. 135. " i^n^ ^ ggg_ ' Rev. Stat. §687. is Durosseau " !>. United States, 6 Cr. A circuit court has no jurisdiction 307. of a Buit, in which a state is plaintiff or " Rev. Stat. 691. SUPREME COURT. 109 final judgmeuts of any circuit court, in civil actions removed there from auy district court, by appeal or writ of error, where the matter in dis- pute, exclusive of costs, exceeds the sum or value of five thousand dollars,' may be re-examined and reversed or affirmed in the supreme court upon a writ of error. An appeal lies from any decree in equity or admiralty, under the like conditions as to amount or value ;^ and also in prize causes ; but in the latter case, an appeal may be allowed, with- out regard to value, on the certificate of the district judge that the adju- dication involves a question of general importance.^ A writ of error also lies, without regard to the sum or value in dispute, in cases touching patent-rights or copyrights ; in civil actions for the enforcement of the revenue laws ; in actions against revenue officers, for any act done in the performance of their official duty, or for the recovery of any money ex- acted by them, and paid into the treasury; in actions founded on the deprivation of any right, privilege or immunity secured by the con- stitution, or of any right or privilege of a citizen of the United States; and of actions for conspiracy, under the civil rights law;* or under the act of 1875.' The court has likewise jurisdiction on a certificate of division of opinion between the two judges of the circuit court.^ § 188. Practice in error. A writ of error to a circuit or district court, must be sued out, on an appeal taken from the decree of such court, within two years after the entry thereof, unless the party be under disability.'' The time runs from the entry of a formal decree, though entered as of a prior day, when the cause was actually decided.^ All the parties against whom a joint judgment or decree is rendered, must join in the writ of error or appeal, or it will be dismissed, unless suffi- cient cause for the non-joinder be shown ;' but if one of the parties be notified or requested, in writing, to join in the writ of error or appeal, and refuse to do so, it will have the same effect as the ancient remedy by summons and severance ;'" and if only one of several joint defend- ants be personally aflfected by the judgment or decree below, he alone may sue out a writ of error, without joining his co-defendants." The writ of error must name all the parties to the judgment ;'2 if some of the plaintiffs in error be described as " others," without naming them, the -writ will be dismissed.'^ So, a writ of error sued out in the name of " the heirs" of a decedent, is defective ;'* and a writ of error cannot be sus- tained in the name of a steamboat, though the state law authorize a suit 1 Act 16 February 1875, §3. 18 416. Hampton u. Rouse, 13 Ibid. 187. Stat. 316. Simpson v. Greeley, 20 Ibid. 152. 2 kev. Stat. § 692. '" Masterson v. Herndon, ] "Wall. 3 Ibid". 1 695. 416. O'Dowd v. Russell, 14 Ibid. ' Ibid 699 402. 5 Act'l March 1875, ? 5, 18 Stat. " Germain w. Mason, 12 Wall. 259. Qoy ^^ Davenport v. Fletcher, 16 How. "Rev. Stat. ? 697. 142. , „^ s p f .^or 7 ii3i(j a JOGS Deneale v. Stump, 8 Pet. olb. 8 United States v. Gomez, 1 Wall. Smyth «. Strader, 12 How. 327. Mil 690. See Brooks v. Norris, 11 How. ler v. MoKenzie, 10 Wall. 58i 2Q4 " Wilson's Heirs v. Life and Fire In- » Masterson v. Herndon, 10 Wall, suranoe Co., 12 Pet. 140. 110 COUETS OF THE UNITED STATES. against her, by name ; the writ must be sued out by some person who has substantially made himself a party to the cause.' A party who un- successfully petitioned to be allowed to intervene, cannot have a writ of error to the judgment.^ § 189. A writ of error, returnable to the supreme court, may be issued, either by the clerk thereof, or by the clerk of the circuit court, under its seal.' It is issued on a prcBoipe, in the usual manner ; and does not require a judge's allocatur.^ It is tested in the name of the chief justice of the United States, or of the first associate justice,^ as of the day on which it issues.^ It is served, by lodging a copy thereof, for the adverse party, in the clerk's office where the record remains,'' and by serving upon him a citation to appear in the appellate court at the return-term of the writ ; this is a substitute for the old writ of saire facias ad audi- endum errores ; and the same purpose is effected in the state court, by a rule to appear and plead to the assignment of errors, at the return of the writ. The citation is signed by a judge of the circuit court, and the adverse party is entitled to at least thirty days' notice.* If there be no service of the citation, the writ must be dismissed f but an irregularity in the citation is waived, by an acceptance of service.'" The plaintiff in error, or appellant, must also, except in the case of the government, give good and sufficient security, to be approved by the judge signing the citation, to prosecute his writ of error or appeal with effect, and if he fail to make his plea good, to answer all damages and costs, where the writ is a supersedeas, or costs only, where it is not a supersedeas}^ And to obtain a supersedeas, the writ must be lodged in the clerk's office, within sixty days (Sundays exclusive) after the rendering of the judgment complained of, and the giving of the security required by law. But if the party desire to stay process on the judgment, he may, after having served his writ of error, as aforesaid, give the security required by law, within sixty days after the rendition of the judgment, or afterwards, with the permission of a judge of the appellate court. And where a writ of error maybe a supersedeas, execution cannot issue, until after the expiration of ten days.'^ § 190. There must be annexed to, and returned with the writ of error, an authenticated transcript of the record, and assignment of errors, and prayer for reversal, with the citation to the adverse party.'' The writ of error or appeal must be docketed at the term to which it is returna- ble, otherwise it will be non-prossed.'* The original writ should always ' The Burns, 9 Wall. 2S7. And see 355. The Spark v. Lee Choi Chum, 1 Saw. * Rev. Stat. | 799. 713. » Brown v. Union Bank, 4 How. ^ Payne v. Niles, 20 How. 219. 465. Hogan v. Ross, 9 Ibid. 602. Ba- ' Rev. Stat. § 1004. con u. Hart, 1 Black 38. * Davidson v. Lanier, 4 Wall. 447. '» Bitjler v. Waller 12 Wall 14'^ 5 Rev. Stat. 1 911. n Rev. Stat. I 1000. ' ■" " Ibid. § 912. A clerical mistake in ''' Ibid. | 1007. the date of the writ will not vitiate it. '' Ibid § 997 DavWson^ Lanier 4 WalL 447 '* Hamilton «. Moore, 3 Dall. 371. Rev. Stat. §1007. Wood «• Lide 4 Blair v. Miller, 4 Ibid. 21. Castro «. Cr. 180. Mussina ». Cavazos, 6 Wall. United States, 3 Wall. 46. SUPREME COUET. Ill be sent up with the transcript.' If the plaintiff in error or appellant omit to file the transcript, within the first six days of the term, the oppo- site party may file a copy of the record, and move to dismiss f the court will not entertain a motion to dismiss, until the cause is regularly docketed ;' and the opposite party cannot move to dismiss, after the record has been returned, though not within the time prescribed.'' The supreme court has power, in its discretion, and upon terms, to allow au amendment of a writ of error, where there is a mistake in the teste of the writ, or a seal to the writ is wanting, or where the writ is made return- able to a wrong day, or vvhere the statement of the title of the action or parties thereto in the writ, is defective, if the defect can be remedied by reference to the accompanying record, and in all other particulars of form ; provided the defect has not prejudiced, and the amendment will not injure, the defendant in error.' Being a matter of discretion, the court will not allow an amendment in the names of the parties, where the question attempted to be raised, has been settled by repeated deci- sions.^ If the record be defective or incorrect, the remedy is by certio- rari, on a suggestion of diminution."' The certiorari, it seems, is to be returned ia the same manner as a writ of error.* If either party die, pending the writ of error, his representatives may voluntarily become parties, or may be compelled to do so f if they neglect to do so, within the time allowed, the writ will be abated.^" § 191. The counsel for the plaintiff" in error or appellant, must file with the clerk of the court, at least six days before the case is called for argument, twenty copies of a printed brief, one of which shall, on appli- cation, be furnished to each of the counsel engaged upon the opposite side ; in default of which, the case will be dismissed." The brief must contain, in the following order: — 1. A concise abstract, or statement of the case, presenting succinctly the questions involved, and the manner in which they were raised : 2. An assignment of errors relied upon, which, in cases brought up by writ of error, shall set out, separately and speci- fically, each error asserted and intended to be urged ; and in cases brought up by appeal, the assignment shall state, as specifically as may be, in what the decree is alleged to be erroneous ; if error is assigned to the ruling upon the report of a master, the specification shall state the 1 Mussina ». Cavazos, 6 Wall. 355. Fowler, 1 Otto 143. 2 United State.i v. Fremont, 18 How. * Pearson v. Yewdall, 5 Otto 294. 30. German v. United States, 5 Wall. ' Field v. Milton, 3 Or. 514. Hud- 825: The defendant in error or appel- gins v. Kemp, 18 How. 530. United lee, on a motion to docket and dismiss, States v. Gomez, 1 Wall. 690. must produce a certificate from the ' Fenemore v. United States, 3 Dall. clerk of the court below, that such 360 n. writ of error or appeal has been duly ' Green v. Watkins, 6 AVheat. 260. sued out and allowed. Rule ix., 1 Abb. See McNuttu. Bland, 2 How. 1. Bar- U. S. Pr. 126. ribeau t'. Brant, 17 Ibid. 43. McOlane ' Stafford V. Union Bank, 16 How. v. Boon, 6 Wall. 244. 135_ 10 Phillips V. Preston, ]1 How. 294. * Pickett V. Legerwood, 7 Pet. 144. " Portland jOo. v. United States, 15 Sparrow v. Strong, 3 Wall. 97. Wall. 1. s Rev. Stat. ^ 1005. Atherton v. 112 COUETS OF THE UNITED STATES. exception to the report, and the action of the court upon it : 3. A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the pages of the record, and the authorities relied upon in support of each point ; where a statute of a state is cited, so much thereof as may be deemed necessary to the deci- sion of the case, shall be printed at length. When the error alleged is to the charge of the court, the specification shall set out the part referred to, totidem verbis, whether it be instructions given, or instructions refused. When the error alleged is to the admission or rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected.' § 192. Counsel for a defendant in error or an appellee shall file with the clerk twenty printed copies of his argument, at least three days before the case is called for hearing. His brief shall be of a like char- acter with that required of a plaintifi" or appellant, except that no assign- ment of errors is required, and no statement of the case, unless that presented for the plaintiff or appellant is controverted.^ § 193. Without such an assignment of errors, counsel will not be heard, except at the request of the court ; and errors not assigned accord- ing to this rule, will be disregarded, though the court, at its option, may notice a plain error not assigned.^- There shall be no reversal for ruling any plea in abatement, other than a plea to the jurisdiction of the court ; nor for any error in fact.* When, according to the rule of court, a plaintiff in error or appellant is in default, the case may be dismissed, on motion ; and when a defendant in error or appellee is in default, he will not be heard, except on consent of his adversary, and with request of the court. Where no counsel appears for one of the parties, and no printed brief or argument is filed, only one counsel will be heard for the adverse party ; but if a printed brief or argument is filed, the adverse party will be entitled to be heard by two counsel. Only two counsel shall be heard for each party on the argument of a cause. Two hours on each side shall be allowed for the argument, and no more, without special leave of the court, granted before the argument begins ; the time thus allowed may be apportioned between the counsel on the same side, at their discretion. But a fair opening of the case shall be made by the party having the opening and closing argument.' § 194. Cases on writ of error to review the judgment of a state court, in any criminal case, have precedence on the docket of the supreme court, of all cases to which the government of the. United States is net a party, excepting only such cases as the court, in its discretion, may decide to be of public importance." And where a state is a party, or the exe- cution of the revenue laws of a state is enjoined or stayed, in any suit in a court of the United States, such state, or the party claiming under the revenue laws of a state, the execution whereof is enjoined or stayed, is > Rule of 16 Nov. 1872, U Wall. xi. * Rev. Stat. ? 1011. ^ Ibid. 6 i:iu]g r,f 1,5 j;q^,_ j^.72, 14 Wall. xi. 'Ibid. ' Rev. Stat. ^710. SUPREME COURT. 113 entitled, on showing sufficient reason, to have the cause heard, at any time after it is docketed, in preference to any civil cause pending in the court between private parties.' The court will not give priority to a cause, under this section, in which a state is only nominally a party.^ A motion to advance the cause can only be made on behalf of a state, or a party claiming under its laws ; such motion is in the discretion of the court.^ A cause involving the legality of a municipal tax, is not entitled to a priority of hearing.* § 195. The supreme court may affirm, modify or reverse the judgment or decree ; or may direct such judgment, decree or order to be made, or such further proceedings to be had, in the court below, as the justice of the case may require.^ If the matter assigned for error be insufficient, the judgment will be affirmed f if there be no bill of exceptions, and nothing upon the record upon which error can be assigned, the regular practice is, to affirm the judgment, not to dismiss.^ If any erroneous ruling appear by the record to have been given, the judgment must be reversed.* On a reversal for a defect of pleading, the case is remanded for further proceedings f but if the error be in the judgment, the court, instead of awarding a venire de novo, will enter such judgment on the verdict as the court below ought to have rendered.'" Though in each of the principal objections relied on, as showing error in the proceedings of the court below, a majority of the judges think there is no error, yet, tha judgment may be reversed; since, on the question of reversal, the minorities unite and constitute a majority of the court." The court will not order a re-argument, after a cause has been decided, unless desired by some member of the court, who concurred in the judgment.'^ Where counsel desire to have a case reheard, they may (if the court do not, of its own motion, order a rehearing) submit, without argument, a brief written or printed petition or suggestion of the point or points which they think important ; if, upon such petition or suggestion, any judge who con- curred in the decision, think proper to move for a rehearing, the motion will be considered ; otherwise, the rehearing will be denied, as of course.'^ § 196. Where, upon a writ of error, judgment is affirmed, the court 1 Rev. Stat. ? 949. '" Insurance Co. v. Boykin, 12 Wall. 2 MiUer v. New York, 12 Wall. 433. 159. " Smith v. United States, 5 Pet. 294. ' Ward V. Maryland, 12 Wall. 163. Such reversal is not an authority. In * Davenport City v. Dows, 15 Wall. Burd v. Smith, 4 Dall. 76, the high 390. court of errors and appeals reversed the ' Rev. Stat. | 701. judgment of the supreme court. But * Welch V. Mandeville, 7 Cr. 152. in reference to that case, Gibson, C. J., Stevens v. Gladding, 19 How. 64. said, that the reasons of the judges were Lawler v. Claflin, 22 Ibid. 23. New so indistinctly set forth, and the dis- Orleans v. Gaines, Ibid. 141. Taylor crepance of their views was so remai-k- V. Morton, 2 Black 481. Pomeroy v. able, as to render it of little value for Bank of Indiana, 1 Wall. 592. anything. Thomas v. Jenks, 5 Rawle ' James v. Bank, 7 Wall. 692. 225. * McLanahani!. Universal Insurance " Brown v. Aspden, 14 How. 25. Co 1 Pet. 170. " Public Schools v^ Walker, 9 Wall. s'Garlandu. Davis, 4How. 131. 603. VOL. I. — 8 114 COURTS OP THE UNITED STATES. shall adjudge to the respondent in error, just damages for his delay, and single or double costs, at its discretion." If it appear, from the character of the pleadings, that the writ of error must have been taken only for delay, ten per cent, damages will be awarded.^ But such damages will not be awarded, where the principle has not been previously adjudged by the supreme court ;' in such case, six per cent, interest is allowed, on affirmance.* The court, however, has no power to award penal damages, on an appeal.^ AVhen the supreme court has given judgment on error or appeal from a circuit or district court, it is provided by law, that it shall not issue execution, but shall send a special mandate to the inferior court to award execution thereupon.* If the direction' contained in the mandate be precise and unambiguous, it is the duty of the circuit court to carry it into execution literally ; but if the court below be referred to testimony to ascertain the amount to be decreed, and be authorized to take more testimony on the point, and thus raise an ambiguity in the mandate, they may look into the opinion of the supreme court, to assist them in expounding it.' A mandate is to be executed according to its subject-matter, so as not to work injustice.' And if the mandate do not conform to the decree, and provide for its entire and correct execution, a new mandate will be issued, on petition, at a subsequent term ;' but the court has no power to alter a former mandate, on petition, at a sub- sequent term.'" "VI. Error to a state court. § 197. The United States revised statutes provide, that a final judg- ment or decree, in any suit in the highest court of a state, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity ; or where is drawn in question the validity of a statute of, or an authority exercised under, any state; on the ground of their being repugnant to the constitu- tion, treaties or laws of the United States, and the decision is in favor of their validity ; or where any title, right, privilege or immunity is claimed under the constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege or immunity, specially set up or claimed by either party, under such constitution, treaty, statute, commission or authority, may be re-examined, and reversed or affirmed, iu the supreme court, upon a writ of error. The writ shall have the same effect as if 1 Rev. Stat. § 1010. e ^^^ g^^^_ ^ ^q^_ ''Prentice v. Piokersgill, 6 Wall. ' West )j. Brashear, 14 Pet. 5 1 . Wil- 511. Merchants' Insurance Co. v. liams v. Gibbes, 20 IIow. 535. See Hijoliberger, 12 Ibid. 164. Henneasy Ex parte Howard, 9 Wall. 175. " V. Sheldon, Ibid. 440. Pennywit v. » Story w. Livingston, 13 Pet. 359. Eaton 15 Ibid 382. Railroad Co. v. Soutter, 2 Wall. 510. McKee v Rains, 10 Wall. 22. » Sibbald v. United States, 12 Pet. * Bank of Kentucky v. Wistar, 3 488. Pet. 431. Barrow v. Hill, 13 How. 54. "> Sibbald v. United States, 2 How Lathrop v. Judson. 19 Ibid. 66. 455 ' » The Douro, 3 Wall'. 564. EKEOE TO A STATE COUKT. 115 the judgment or decree complained of had been rendered or passed in a court of the United States. The supreme court may reverse, modify or affirm the judgment or decree of such state court ; and may, at their discretion, award execution, or remand the same to the court from which it was removed by the writ.' § 198. To confer jurisdiction under this statute, it must appear on the record, that one of the specified questions was raised in the state court, and actually decided by it ; it is not enough, that such question might have arisen, or been applicable.^ It is sufficient, however, that it appear by clear and necessary intendment from the record, that the question must have been raised and decided ; it need not appear in terms.^ But if the judgment of the state court might have proceeded on some ground of general law, independently of the statute alleged to be repugnant to the constitution, a writ of error will not lie.* And where a state law is admitted to be valid, and the only question is, whether it has been cor- rectly construed, the supreme court has no jurisdiction ;^ nor where the decision of the state court is against the legality of the consideration of a contract ;^ nor where the decision is against a right or title under a statute of the United States, unless such right and title be specially set up and claimed by the party himself, and not for a third person, under whom he does not claim f^nov where the decision of the highest state court involves nothing but the propriety of dissolving an ordinary injunction, though in the inferior court a federal question may have been involved.^ § 199. The judgment to be examined must be that of the highest state court having cognisance of the case ; but the writ may be directed to any court which has the custody of the record, though not the court in which the judgment was rendered ;' and the writ need not purport on its face to be directed to the highest court of the state.^" The chief jus- tice of the court in which the judgment was rendered may allow the writ of error, though the record have been remitted to an inferior state court.^' The judgment to be reviewed must be a final one ; but it is only neces- sary that it determine the particular cause ; it is not required that it should finally decide upon the rights litigated.'^ A writ of error does not lie to a judgment reversing that of an inferior court, and awarding a venire de novo ;'* nor to one affirming that of the inferior court, and awarding a procedendo ;" nor to re-examine a decision, on a motion for a rehearing in equity.'^ But the judgment of a state court in favor of the validity of a 1 Rev. Stat. ^ 709. » Fashnaoht v. Frank, 23 Wall. 416. ' Hamilton Co. v. Massachusetts, 6 Moser ». Mayor, 15 Ibid. 387. Wall. 632. Gibson v. Chouteau, 8 Ibid. " Gelston v. Hoyt, 3 Wheat. 246. 314. Commercial Bank v. Rochester, Webster v. Reid, 11 How. 437. Mc- 1.5 Ibid. 639. Brown v. Atwell, 2 Otto Guire v. Massachusetts, 3 Wall. 382. 327. And see the cases collected in '» Buel v. Van Ness, 8 Wheat. 312. Bright. Fed. Digest. " Aldrich v. ^Etna Co., 8 Wall. 491. ' Furman v. Nichol, 8 Wall. 44. '^ Weston v. City Council of Charles- * Klinger v. Missouri, 13 Wall. 257. ton, 2 Pet. 449. ^ Commercial Bank of Cincinnati v. " Houston v. Moore, 3 Wheat. 433. Buckingham's Executors, 5 How. 317. " Reddall v. Bryan, 24 How. 420. « Bethell v. Demaret, 10 Wall. 537. '* Steines v. Franklin County, 14 ' Long V. Converse, 1 Otto 105. Wall. 15. 116 COUETS OF THE UNITED STATES. statute, alleged to be repugnant to the constitution, is a final one, though the cause be remanded to an inferior court, for further proceedings.' So is a judgment in a court of last resort, that the judgment of the court below be reversed as to one of the defendants, on the ground of his discharge in bankruptcy, and afiirmed as to the other defendant.^ § 200. The revised statutes further provide, that writs of error from the supreme court to a state court, in cases authorized by law, shall be issued in the same manner, and under the same regulations, and shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a court of the United States.^ The writ must be sued out within two years after the entry of the judgment,^ unless the party was under disability; and in such case, within two years exclusive of the term of such disability.^ The citation must be signed by the chief justice, or judge or chancellor of the state court, rendering the judgment or passing the decree complained of,^ or by a justice of the supreme court of the United States ; and the adverse party shall have at least thirty days' notice.^ Every justice or judge sign- ing a citation shall take good and sufficient security,* that the plain- tiff in error shall prosecute his writ of error to effect, and if he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only, where it is not a supersedeas as aforesaid.' In any case where a writ of error may be a supersedeas, the defendant may obtain such supersedeas, by serving the writ of error, by lodging a copy thereof, for the adverse party, in the clerk's office where the record remains, within sixty days (Sundays exclusive) after the rendering of the judgment complained of, and giv- ing the security required by law on the issuing of the citation. But, if he desires to stay process on the judgment, he may, having served his writ of error as aforesaid, give the security required by law, within sixty days after the rendering of such judgment, or afterwards, with the per- mission of a justice or judge of the appellate court ;'" and in such cases, where a writ of error may be a supersedeas, execution shall not issue, until the expiration of ten days." Writs of error may be issued by the clerks of the circuit courts, under the seal thereof, or by the clerk of the supreme court.'^ There must be annexed to and returned with the writ of error, at the day and place therein mentioned, an authenti- cated transcript of the record ;'^ an assignment of errors, and a prayer for reversal, with a citation to the adverse party." 1 Winn's Heirs ». Jackson, 12 ' Rev. Stat. ? 1000. Wheat. 135. i» See Pennsylvania Railroad Co. v. ^ O'Dowd V. Russell, 14 Wall. 402. Commonwealth, 39 Penn. St. 406. ' Rev. Stat. § 1003. " Rev. Stat. § 1007. See Adams v. * See Brooks v. Norris, 11 How. 204. Law, 16 How. 144. This section is * Rev. Stat. § 1008. very obscurely drawn ; the revised stat- * See Bartemeyer v. Iowa, 14 Wall, utes are certainly not an improvement 26. on the judiciary act, which was pre- ' Rev. Stat. § 999. pared by the best lawyers in the land. ' The judge cannot delegate such " Rev. Stat. § 1004. power to the clerk. O'Reilly v. Ed- " See Worcester v. Georgia, 6 Pet. rington, 6 Otto 724. National Bank 515. V. Omaha, Ibid. 737. " Rev. Stat. ? 997. CHAPTER IV. Of Attorneys. I. Admission of attoknets, ?201. Power to admit attorneys, g 201. Disqualifications, § 201. Board of examiners, § 202. Registry of students, g 203. Course of study, ^ 204. Conditions of admission, § 205. Graduates of the university, § 206. Attorneys from other counties, ?207. Attorneys from other states, § 208. Oath of office, ? 209. fraudulent admissions, § 210. II. Penalties for official miscon- duct, ^ 211. Powers of the courts, I 211-12. Consequences of disbarment, § 213, Proceedings by attaclunent, § 214. HI. Duties, peitileges and liabili- ties OF ATTOHNETS, ? 215. Responsibility for negligence, 5 215 -16. Privileges of attorneys, § 217-18. Liabilities of attorneys, |219. Statute of limitations, § 220. Compensation of attorneys, § 221. IV. Pkosecution and defence of ac- tions BT ATTOKNETS, § 222. Warrant of attorney, § 222-3. Powers of attorneys, 2224-5. Unauthorized appearance, § 226. Agi'eements of counsel, § 227. I. Admission of attorneys. § 201. An attorney-at-law is a person put in the place, stead or turn of another, to manage his matters of law.^ In this state, the two capa- cities of counsel and attorney are combined.^ By the act of 1806,' "in all civil suits or proceedings, every suitor and party concerned shall have a right to be heard, by himself or counsel, or either of them."* And the act of 1834^ provides, that the judges of the several courts of record of this commonwealth shall respectively have power to admit a competent number of persons, of an honest disposition, and learned in the law, to practise as attorneys in their respective courts. It is not every person indiscriminately, that is capable of exercising the functions of an attorney ; it is necessary for that purpose, to possess certain quali- fications, and to have conformed to certain regulations, prescribed as well by the statute, as by the rules of the court in which he is admitted to practise. The statute provides that no judge of any court of this com- monwealth shall practise as attorney or counsellor in any court of justice in this commonwealth or elsewhere ; nor shall any alderman or justice practise as aforesaid, in any case which has been or may be removed from before him, by appeal or writ of certiorari, nor act as agent in any such ' 3 Bl. Com. 25. ' Lynch v. Commonwealth, 16 S. & R. 369. ' 4 Sm. L. 330 ; Purd. 99. * The right of a party to be heard by himself or counsel, was originally con- ferred by the provincial act of 1700, which enacted, " that in all courts, all persons, of all persuasions, may freely appear in their own way, and accord- ing to their own manner, and there personally plead their own cause, themselves, or, if unable, , by their friends." Franklin's Laws 34. For a remarkable instance of the little regard then paid to the rights of parties in the provincial courts, see Bradford's Trial, for publishing a seditious paper. 2 Haz. Pa. Reg. 55. 6 P. L. 354 ; Purd. 99. (117) 118 OF ATTORNEYS. case ;i nor shall any protlionotary or clerk practise as aforesaid, in the court of which he shall be prothonotary or clerk ; nor shall the register of wills of any county practise as aforesaid, in the orphans' court of the same county. § 202. The rules of court in force in the city of Philadelphia, make the following regulations in regard to the admission of attorneys. The board of examiners consists of ten members of the bar, one of whom, according to seniority of appointment, retires at the end of each month ; in his place a new member is appointed alternately by each of the four courts of common pleas, and the orphans' court. The oldest member, accord- ing to the date of admission to the bar, who has served two months on the board, is chairman thereof ; the youngest member who has so served for two months is the secretary. The board of examiners may, subject to the approval of the courts, prescribe a course of study for the examina- tion of applicants for admission to the bar.^ Six members of the board are" necessary to constitute a quorum for the examination of students. The board is required to keep regular minutes of its proceedings, and to hand them over to their successors ; and no inspection, copy or certificate thereof is allowed, except upon the order of the court, on special motion.^ § 203. It is the duty of every attorney of the courts, to register with the prothonotary, the name, age and place of residence, of every person studying the law under his direction ; and the time of clerkship is com- puted from the date of such registry.* But no person can be registered as a student at law, until he has undergone an examination in all the branches of a good English education, by the board of examiners, and produced and filed with the prothonotary a certificate, signed by all the examiners who were present at his examination, that he was sufficiently prepared and ,qualified to commence the study of the law. The applicant must give twenty days' notice in writing to the secretary of the board, of his desire to be registered, before he comes before them for examination.' § 204. The board of examiners, with the approval of the courts, has prescribed the following course of study for applicants for admission to the bar : Obligatory. Introduction to Eobertson's Charles V. Blackstone's Commentaries — Sharswood's Edition. Kent's Commentaries. Greenleaf on Evidence, vol. I.° Stephen on Pleading. Constitution of the United States. Acts of Congress relating to the Judiciary. ' It is » high misdemeanor for a jus- roy, Com. Pleas, Phila. June 1869. MS. tice to act as agent of a plaintiff in his ^ Rule xii. § 34. court. Boyer v. Potts, 14 S. & R. 158 ; » Ibid. ^ 37. Gibson, J. The judgment of a justice * Rule vii. I 9. in a landlord and tenant case, was ^ Ibid. § 10. reversed on certiorari, because the jus- « Wharton's Evidence is better tice had signed the notice to quit, as adapted to the modern practice of the the plaintiff's agent. Wistar v. Coa- law. COURSE OF STUDY. 119 Bankrupt act. Constitutiou of Pennsylvania. Rules of Equity Practice. Troubat and Haly's Practice. Acts iu Purdon's Digest relating to — Actions personal. Actions real. Amendment. Assignments. Bills of exchange. Bonds. Contracts of decedents. Crimes. Decedents' estates. Deeds and mortgages. Defalcation, District court. Dower. Ejectment. Equity. Estates-tail. Execution. Factors. Foreign attachment. Frauds and perjuries. Ground-rents. Habeas corpus. Intestates. Joint-tenancy. Judgments. . Landlord and tenant. Liens. Limitation of actions. Marriage. Orphans' court. Partition. Promissory notes. Real estate. Register and register's court. Replevin. Trespass. Trustees. Wills. Secommended. Smith on Contracts. Williams on Real Property. Greenleaf on Evidence, vols. II. and III. Starkie on Evidence, vol. I. Wharton's Criminal Law. Acts in Purdon's Digest relating to — Aliens. Attorneys-at-law. Charities. Collateral inheritances. Criminal procedure. Divorce. Equitable plaintiffs. Evidence. § 205. The rules of court further provide, that no person shall be per- mitted to practise as an attorney of the courts of common pleas, except upon the following conditions: (1) He shall be a citizen of the United States, and of full age. (2) He shall have served a regular clerkship in the office, and under the direction of a practising attorney of this, or some other court of this commonwealth, for three years ;' the last year 1 Two years, in court No. 3, by rule Also adopted in No. 4. It is to be re- ef 23 June 1873. 32 Leg. Int. 260. gretted, that the rules of the several Feme sole traders. Interest. Limited partnership. Lunatics and habitual drunk- ards. Mechanics' liens. Practice. Verdict. 120 OF ATTOENEYS. of which clerkship shall have been in the office, and under the direction of a practising attorney, residing within the city and county of Phila- delphia : provided, that if the applicant shall have been, for a part of the said time, in the office of a practising attorney of any other state, and the remaining part, not being less than eighteen months, in the office and under the direction of a practising attorney, residing within the city and county of Philadelphia, the court may, in its discretion, allow him to be examined and admitted, as if he had studied three years in the city and county of Philadelphia. (3) He shall have undergone an examination before the board of examiners, appointed for such purpose, and shall produce and file with the prothonotary, a certificate, signed by all the examiners who were present at his examination, that he is suffi- ciently qualified for admission to the bar, and that they have received satisfactory evidence, in writing, of his good moral character ; which evidence of moral character shall also be, at the same time, produced and filed as aforesaid.' Persons, in other respects qualified, who shall have studied the law in the office and under the direction of a practising attorney of the city, and county of Philadelphia, two years after attain- ing the age of twenty-one years, shall be entitled to admission as attor- neys, on complying with the other rules of the court.^ § 206. Any citizen of the United States, of full age, who shall have been graduated Bachelor of Laws, by the University of Pennsylvania, after the course of study required in the university, may be admitted to practise as an attorney, if he shall have complied with the rule as to the preliminary examination, and been registered for one year in the pro- thonotary's office, as a student of law in said university, by the Dean of the Law Faculty thereof.^ § 207. Persons already admitted to practise in other courts of the commonwealth, may, at the discretion of the court, be admitted, without an examination, on the production of a certificate, by the presiding judge of the court of common pleas wherein such person has been last admitted and practised, of the good moral character of the applicant for admission. But no person shall be admitted, without the examination and registries before mentioned, who has studied law in the city and county of Philadelphia, and has procured his admission elsewhere, as a mere preliminary to his admission to this court.* Attorneys from other courts, applying for admission to practise in Philadelphia, shall, in the first instance, present their papers to the board of examiners ; which courts are not uniform on this sub- in the court of common pleas. Rule ject. vi. ' Rule vii. ? 11. Applications for ' Rule of June 1875. 32 Leg. Int. examination must be made to the chair- 222. manof the hoard; and four weeks' pre- * The admission of an attorney in vious notice thereof must be given in the the supreme court does not necessarily Legal Intelligencer. Rule xii. §§ 36, 38. entitle him to admission in the com- * Rule vu. § 13. In the supreme mon pleas, if there be objections to court, such persons as have complied his moral character. Ex parte Derin- with the foregoing rules, are entitled eer, 4 W. N. C. 200. See Ex parte to admission, after two years' practice Lewis, 8 Leg. Gaz. 76. ADMISSION OF ATTORNEYS. 121 board shall report to the court on the propriety of the admission of such attorneys.' § 208. Attorneys from other states may be admitted, after a residence of two years within the state, the last year of which residence shall have been passed within the city and county of Philadelphia, upon producing satisfactory evidence of their admission into the supreme or superior court of the state from which they came ; and a certificate, signed by the chief justice or presiding judge of such court, that they are of good standing at the bar, and of good moral character. Such persons may also be admitted, upon the recommendation of the board of examiners, and producing satisfactory evidence of their admission into the supreme or superior court of the state from which they came ; and of their hav- ing practised in one or more of the courts of record of that state, during seven years or more.^ § 209. On the admission of an attorney, he is required, by statute, to take the following oath or affirmation : — " You do swear (or affirm) that you will support the constitution of the United States, and the constitution of this 'commonwealth, and that you will behave yourself in the office of attorney within this court, according to the best of your learning and ability, and with all good fidelity, as well to the court as to the client ; that you will use no false- hood, nor delay any person's cause, for lucre or malice." An attorney is bound by his official oath to behave himself in his office of attorney, with all fidelity to the court, as well as the client ; and he violates it, when he consciously presses for an unjust judgment ; much more so, when he presses for the conviction of an innocent man.' § 210. If a citizen and resident of this state fraudulently procure admission to the bar of another state, and on a certificate thereof, is admitted in this state, the court, on the facts coming to its knowledge, will strike his name from the roll of attorneys.* So, where an applicant for admission, pending an inquiry into his moral character by a com- mittee of the board of examiners, procured himself to be admitted in a court of another state, on a certificate from which he was admitted into the supreme court of this state, and on its certificate, into the court of common pleas, suppressing the facts of the case, the court vacated the entry of his admission, of its own motion f and punished the attorney, by suspension, who had moved his admission, with full knowledge of the circumstances.^ The admission of an attorney being a judicial, not a ministerial act, is not the subject of a writ of mandamusJ 1 j^uJq yij 2 16. * Ex parte Brown, 2 Pitts. 152. 2 Rule vii §§ 13, 15. In the supreme * Ex parte O'Grady, 4 W. N. C. 199. court, such attorneys can only be ad- " Ex parte Deringer, 4 W. N. C. mitted, on proof of reciprocity on the 200. . , , „ i o >l t> part of the courts of the state from ' Braokenridge s Case, 1 S. & R. which thev came. Rule vii. 1^7. And see McLaughlin's Case, 5 » Rush V. Cavenaugh, 2 Penn. St. W. & S. 272. Ex parte Beggs, 67 N. 189. Y. 120. 122 OF ATTOENEYS. II. Penalties for ofQcial misconduct. § 211. The act of 1834' provides, that if any attorney-at-law shall misbehave himself in his office of attorney, he shall be liable to suspen- sion, removal from office, or such other penalties as have been allowed in such cases by the laws of this commonwealth. Under the power thus conferred, an attornoy may be attached and committed for misconduct in the presence of the court.^ An attorney was fined for contempt, for charging a witness with perjury, whilst under examination.^ It is gross misbehavior, for an attorney to converse with the jury, after they have retired ; for which he may be suspended or removed.^ So, if an attorney undertake to procure bail for a client, he will be punished for any fraud or deception practiced on the court.^ And gross misconduct on the part of an attorney acting in his official capacity, is ground for striking him from the roll, though the party injured be not a client.' The conviction of an attorney for an offence involving moral turpitude, is a sufficient cause for his removal from the bar ; as he obtains admission through the court, so it is the right and duty of the court, to remove him, if it appear, from his subsequent conduct, that their confidence was ill placed. The community may, therefore, regard his continuance in office as an assur- ance that nothing has been brought to the judicial knowledge of the court which renders him unfit for the grave responsibility attached to such a calling.^ § 212. An attorney, however, holds his office during good behavior, and is not professionally responsible for a scrutiny into the official conduct of the judges, which would not expose him to legal animadversion as a citi- zen.* But if an attorney, in his capacity as editor and publisher of a news- paper, publish a report of a pending trial, in language tending to bring the judge into public odium, the court has power to disbar him.' An attorney cannot be disbarred, for a contempt, in not appearing as a wit- ness, in obedience to a sv^pcena}" So, an act, discreditable, but not infa- mous, and not connected with an attorney's professional duties, is not ground of removal ; but to make the opposing attorney drunk, in order to obtain an advantage of him in the trial of a cause, is good ground for striking him from the roll.'' § 213. By a rule of the courts of common pleas, any attorney, who shall be stricken from the rolls of any of the courts of Philadelphia county, shall be thereby disqualified from practising in any other of the courts, unless the court making the order, shall, in its decree, recommend that the punishment be limited to the said court ; and any attorney who shall be convicted of any infamous ofi'ence, shall be thereby disqualified 1 P. L. 354; Purd. 100. ' Ingersoll's Case, 9 Phila. 216. '' Heverin's Case, 32 Leg. Int. 188. ' Austin's Case, 5 Rawle 191. And see Selden's Case, 6 Pitts. L. .J. 18. » Ex parte Greevy, 4 W. N. C. 308. ' Ex parte Chipman, 3 L. Bar, 7 " Commonwealth v. Newton, 1 Gr Oct. 1871. 4fi3 ; s. c, 2 Phila. 262. * Ex parte Carter, 1 Phila. 507. " Dickens's Case, 67 Penn. St 169. ^ Ex parte Hirst, 9 Phila. 216. And see Ex parte Gale, 19 Alb. L. J. " Ex parte Orwig, 31 Leg. Int. 20. 95. DUTIES OF ATTOENEYS. 123 from practising as an attorney in either of the said courts.^ An attorney who has been suspended for misbehavior, will not be allowed to issue a writ, on his order as attorney in fact.^ And where he has been removed for such cause, the supreme coiirt has no power to revise the proceeding, or to give relief in any form, either by certiorari, appeal or mandamus.^ § 214. The act of 1834 further provides, that if any attorney shall retain money belonging to his client, after demand made by the client for pay- ment thereof, it shall be the duty of the court to cause the name of such attorney to be stricken from the record of the attorneys, and to prevent him from prosecuting longer in the said court. And by the act of 1836,^ the several courts shall have power to make rules upon attorneys for the payment of money, and for the delivery of deeds and other papers in their hands ; and in every such case, to enforce obedience to such rules by attachment. Under this act, it has been held, that an attorney, who has collected money for his client, has a right to deduct his fees from the amount in his hands. If a rule be taken on him to pay over the money, the court will compel immediate justice, or inflict summary punishment on the attorney, if the sum retained be such as to show a fraudulent intent ; and, in such case, he forfeits all claim to compensation. But if the answer to the rule, satisfy the court, that it was held back in good faith, and believed by the attorney not to be more than an honest com- pensation, the rule will be discharged, and the client remitted to his action. So, he may pay to his colleagues their fees out of the fund col- lected ; and if such payment be made in good faith, the client must look to the recipients, for any excess above a proper compensation.^ HI. Duties, privileges and liabilities of attorneys. § 215. The principal duties of an attorney are care, skill and integ- rity ; he will be protected, where he acts to the best of his skill and know- ledge, and is not answerable for error or mistake, in cases where there is just room for doubt ; he is only bound to use reasonable care and skill, in managing the business of his client, and is not liable, unless he has been, grossly negligent or ignorant.* But, in ordinary cases, where there is no room for difficulty or doubt, if an attorney be deficient in skill or care, by which a loss arises to his client, he is liable to a special action on the case for damages.'^ An attorney impliedly undertakes, and is bound to use skill and diligence in the management of the business in which he is employed by his client. It would, indeed, be very difficult to define the exact limit by which the skill and diligence which an • Rule vii. § 18. by a formal action. Foster v. Towns *■ Paul V. Purcell, 1 Bro. 348. hend, 68 N. Y. 203. » McLaughlin's Case, 5 W. & S. 272. « Pitt v. Yalden, 4 Burr. 2061 ; Lord The act 13 May 18 79 gives a writ of error, Mansfield, C. J. Watson w. Muirhead, on which the proceedings are de novo. 57 Penu. St. 167 ; Sharswood, J. Lynch * P. L. 793 ; Purd. 273. ». Commonwealth, 16 S. & R. 368. 5 Balsbaugh v. Frazer, 19 Penn. St. ' Bussel v. Palmer, 2 Wils. 325. 99. The remedy for an act inconsistent Godefroy v. Dalton, 5 Bing. 460. Bai- with the attorney's relation to the kie ». Chandles, 3 Camp. 20. Hopping court, is by summary proceeding; not v. Quin, 12 Wend. 517. 124 OF ATTORNEYS. attorney undertakes to furnish in the conduct of a cause is bounded, or to trace precisely the dividing line between that reasonable skill and diligence which appears to satisiy his undertaking, and that crassa negli- gentia, or lata culpa, mentioned in some of the cases, for which he is undoubtedly responsible. The cases, however, appear to establish, that an attorney is liable for the consequences of ignorance or non-observance of the rules of practice of the court ; for want of care in the prepara- tion of a cause for trial, and of attendance thereon with his witnesses ; and for the management of so much of the conduct of a cause as is usually and ordinarily allotted to his department of the profession. But, on the other hand, he is not answerable for error in judgment upon points of new occurrence, or of nice and doubtful construction, or of such as are usually intrusted to men in the higher branch of the profession of the law.^ § 216. An attorney is responsible to his client for neglect of duty, though there be an incurable defect which would have defeated the action, had it been set up by the defendant;^ but he may show that the claim was really owing to a third person.^ If a loss occur in conse- quence of his negligence, the negligence of a succeeding attorney is no defence;* but the continued employment of an attorney, after know- , ledge of an act of negligence, is material, on the question of damages.* Where an attorney has been guilty of malpractice, and a judgment, obtained by him, has been opened for gross irregularities, the compensa- tion agreed to be paid, and which has been paid, in obtaining the judg- ment, may be recovered back by the client, as having been paid without consideration, and in ignorance of the irregularities complained of ^ Aa attorney, however, is not liable for the neglect of the prothonotary to enter a judgment upon the judgment-docket, whereby its lien is lost.^ If an attorney appears for a party, without authority, the court, on striking off an award of arbitrators, cannot enter a summary judgment against the attorney for costs.' § 217. At common law, attorneys were entitled to a variety of privi- leges, which do not prevail in this state ; they must sue, and be sued, by ' 1 Arch. Pr, 67 (8th Lond. Ed.), without consulting the statute book of An attorney ought not to be liable, in the preceding year ; the judge remark- cases of reasonable doubt. Pitt v. Yal- ing, that it was negligence, to fon^et den, 4 Burr. 2061. " No attorney," said that " no man's life.liberty or property Abbott, C. J., "is bound to know all the are safe, while the legislature is in law ; God forbid ! that it should be ima- session." Estate of A. B. 1 Tuck. 247 gined that an attorney or a counsel, or 249. ' ' even a judge, is bound to know all the ^ McWilliams v. Hopkins, 4 Eawle law ; or that an attorney is to lose his 382. fair recompense, on account of an error; ' Jackson v. Tilghman, 1 Miles 31. being such an error as a cautious man * Livingston v. Cox, 6 Penn St 360 S"^^.' ^^^'.\°o°-". Montriou V. Jefiferys, ^ Derriokson v. Cady, 7 Penn. St. 27^ 7 S- . ;i fo/"l-fv ^^"""P "• ^"'■'' ° Vo" Wallhoffen v. Newcombe, 10 4 B. & Ad. 424. Williams v. Gibbs, 6 Hun 236. Nev. & M. 788. On the other hand, ' Stephens v. Downey, 53 Penn St. an attorney of acknowledged skill and 424. long experience in his profession, was » Patterson v. MoPherson, 1 W N, held responsible for advising a client, 0. 454. PRIVILEGES OF ATTORNEYS. 125 the same process as other persons.^ As officers of the court, however, they are privileged from service on juries •? and from serving as overseer of the poor ; and, it seems, as supervisor, constable, and in similar offices ; but not from arrest, or militia duty.' An attorney from another state, attending upon a notice to take depositions, in a cause depending in the supreme court of the United States, is privileged from the service of a summons.* But, where an attorney came to Philadelphia, to advise with associate counsel, and whilst there was served with a summons, it was held, not to be such active pendency of the case, requiring his pro- fessional services, as would privilege him from the service of process.' The rules of court provide, that no attorney of any court shall be per- mitted or suffered to become special bail, in any action or suit depending in the court, unless by leave of the court. § 218. An attorney or counsellor at law cannot be permitted to dis- close confidential communications made to him by his client ; the privi- lege is that of the client, not of the attorney, and it never ceases.* An attorney is privileged from divulging a confidential communication, though no suit was pending.^ But facts stated to an attorney, to show that the cause in which he is sought to be retained, do not conffict with the inter- ests of another client, are not confidential communications f the rule is confined to cases in which the client is interested.' An attorney may testify against his client, as to matters which occurred in open court ;'" and he is not privileged from disclosing the name of the person by whom he is retained." So, an attorney may be examined as to a collateral fact, within his own knowledge ; such as, the imbecility of his client, on an issue demsavit vel non}^ He is not the judge of his own privilege, but must disclose the occasion and circumstances of the act or communica- tion, and the general nature of the matter alleged to be privileged, so that the court may decide whether it be privileged or not.'' An attor- ney who has opened his client's case, and cross-examined witnesses, is nevertheless a competent witness for the client ;'* it is grossly indelicate to do so, unless for the purpose of making merely formal proof; but the remedy for any abuse of the discretion is, by granting a new trial. § 219. The responsibility of an attorney is, in general, to his own client ; he cannot be subjected to an action for money collected by him, at the suit of a third person, by an arrangement between the latter and the client, to divide the fundi notwithstanding notice of such agreement, he is justified in paying over the whole of it to the client.'^ But an ' Kobinson's Case, 1 Yeates 351. 304. 2 3 Bac. Abr. 758. ' Hamilton «. Neel, 7 Watts 517. » Respublioa v. Fisher, 1 Yeates 350. " Levers v. Van Buskirk, 4 Penn. St. * Holmes v. Nelson, 1 Phila. 217. 309. ' Birkinbine v. Beyer, 5 Leg. Gaz. 2. " Faroe v. Stetson, 2 W. N. C. 110. • Heister v. Davis, 3 Yeates 4. Mil- ^' Daniel v. Daniel, 39 Penn^ St. 191. ler V. Weeks, 22 Penn. St. 89. And see Beeson w. Beeson 9 Ibid. 179. ' Beltzhoover v. Blackstock, 3 Watts " Jeanes v. Fridenberg, 3 Clark 199 2Q Hill's Estate, 9 Phila. 355. Moore " Follansbee v. Walker, 72 Penn. fst. ''■fRlkZ^rmlS!i2 Penn. St. '■'Boulden .. Hebel, 17 S. & R. 312. 126 OF ATTORNEYS. attorney who collects money for four persons, is protected in a payment to three of them, by an arrangement between the parties, though with- out consideration.^ If directed to remit by draft, he is not liable as indorser, on a failure of the drawer ; his indorsement is a mere transfer of the title.^ An attorney is not liable to an action for money collected for his client, until after a demand, unless under special circumstances ;' and he is not chargeable with interest on the moneys of his principal, unless he be in default, or have employed the money for the purpose of gain to himself.* A mercantile agency of attorneys that receives a draft for collection, is responsible for the failure of its agent to pay over the proceeds, in the absence of any restriction of its liability f but, in general, he is liable only to the extent of his client's damages by his alleged negligence.^ § 220. In an action against an attorney for negligence, the statute of limitations runs in his favor from the time such negligence came to the knowledge of the client.^ But it is the duty of the client to take notice of the neglect of his attorney, after a reasonable time has elapsed ; and the statute begins to run in his favor, against a claim for a failure to col- lect, after the lapse of such reasonable time f and when he collects money for his principal, and neglects to pay it over, the statute begins to run, as soon as the right of action accrues, if there be no fraudulent con- cealment.^ Where, however, an attorney, who has transmitted a claim to another state for collection, which has been actually collected by his agent, informs the client, on inquiry, that the claim is " uncollectible," the statute only begins to run against the client, from the time of his discovery of the fraud ; and this, whether the answer was given in good faith, or otherwise.'" § 221. An attorney may recover a quantum meruit for his services as counsel, beyond the amount given by the fee-bill,^' in a common-law action of asswiyjsit -j^^ and, after a demand and refusal, he is also entitled to recover interest on the amount due.'^ He may stipulate for But see Sims v. Brown, 6 T. & C. (N. And see Riddle v. Poorman, 3 P. & Y.) 5, where it is held, that there is no W. 224. difference between the nature and ex- * Bullitt v. Baird, 27 Leg. Int. 171. tent of the liability of an attorney and ' Derriokson v. Cady. 7 Penn. St. that of any other agent, in respect to 27. moneys collected by him for his prin- » Rhingg „_ Clark, 66 Penn. St. 192. cipal, and claimed by a third person ; » Glenn v. Cuttle, 2 Gr. 273. An he should protect himself by demand- investment in his own name, is not ins an indemnity. such fraudulent concealment.' Flem- Stroheckeri). Hoffman, 19 Penn. St. ing v. Culbert, 46 Penn. St, 498 223. '« Morgan v. Tener, 83 Penn. St. Kemmell v. Bittner, 62 Penn. St. 305. Wickevsham v. Lee, Ibid, 416, 203- " Brackenridge v. McParlane, Add. » Krause v. Dorranoe, 10 Penn. St. 49. Balsbaugh v. Prazier, 19 Penn. ^^?'„7-„- c St. 9.'5. Gray u. Brackenridge, 2 P, & « Williams V. Storrs, 6 Johns. Ch. W. 75, 353, s " Foster v. Jack, 4 Watts 334. Bradstreet v. Everson, 72 Penn. St. " Gray v. Van Amrinee 2 W & S, 124. Morgan v. Tener, 83 Ibid. 305. 128. POWERS OF ATTOENEYS. 127 a contingent fee, dependent on the fact and amount of the recovery •} but, in such case, he will be held, with the utmost strictness, to the terms of his contract.^ Such agreement to pay a contingent fee, on the reco- very of damages for a personal tort, will not bar a settlement between the parties, even though the plaintiff be a married woman ; the attorney must look to his client for his compensation.^ An attorney has no lien on a fund raised through his instrumentality ; his claim on money in his hands, is rather in the nature of a right of defalcation, than of lien.* The statute of limitations does not run against an attorney's claim for professional services, so long as the debt which he seeks to recover for his client remains unpaid.* An attorney who collects money, aud refuses to pay it over, until sued, forfeits his claim to compensation ;'' so, also, if he do not offer to pay to his client, in a reasonable time, all that he is bound to pay.' IV. Prosecution and defence of actions by attorneys. § 222. The authority of an attorney to prosecute or defend a suit, is derived from his warrant of attorney ; or rather, is supposed to be thus derived ; for, in fact, such warrant is never given, unless specially required. It is not the practice, in Pennsylvania, to file warrants of attorney;^ the act of 1834' provides, that every attorney shall have power to commence, prosecute and defend all actions and suits in which he may be retained or concerned, in the manner, and with the effect, hitherto allowed and practised. But the attorney for the plaintiff shall, " if required," file his warrant of attorney, in the office of the prothonotary or clerk of the court, in which the action is de- pending, at the term of the court in which he declares ; and the attor- ney for the defendant shall, " if required," file, in like manner, his war- rant of attorney, at the term of the court at which he appears. And if any attorney shall neglect or refuse to file his warrant of attorney, in the manner required by law, he shall not be allowed a fee in the bill of costs, nor be suffered to speak in the cause, until he shall have filed his warrant. § 223. A rule on the plaintiff's attorney to file his warrant, must be moved for, before plea pleaded ;" it is too late, after the cause is at issue." In a suit brought for the use of an equitable plaintiff, the attorney may be required to show his authority to use the name of the legal plaintiff'.'^ For a failure to file the plaintiffs warrant of attorney the proper course 1 Stroheeker v. Hoffman, 19 Penn. Balsbaugh v. Frazier, 19 Penn. St. 95. St. 227. ' Fisher v. Knox, 13 Penn. St. 622. 2 Diokerson v. Pyle, 4 Phila. 259. ' Coxe v. Nioholls, 2 Yeates 547. • 3 Britten V. Bese, 23 Pitts. L. J. ' P. L. 354 ; Purd. 100. 181. " Mercier v. Mercier, 2 Dall. 142. * Dubois's Appeal, 38 Penn. St. 231. " Campbell v. Galbreath, 5 Watts ' Foster v. Jack, 4 Watts 334. See 423. Hale V. Ard, 44 Penn. St. 22. Lichty " Mississippi Central Railroad Co. V Hueus 55 Ibid. 434. v. Southern Railroad Association. 8 ' e Bredi'n v. Kingland, 4 Watts 420. Phila. 107. 128 OF ATTORNEYS. is, to Stay prooeediDgs ;^ and not to quash the writ, even in replevin.' The warrant of attorney must be executed in accordance with the law of the jwum? § 224. An attorney, in Pennsylvania, has very extensive powers in conducting a suit ;* it is not limited, here, in the same manner that it is in England.' He has power to enter an amicable action, independently of the act of 1806 f his agreement to refer the cause, binds the client ;'' and he may agree that the award shall be final f he may enlarge the jurisdiction of arbitrators, under the compulsory arbitration law, to all matters in variance between the parties^ and waive the right of appeal 'f he may agree to submit to arbitrators chosen in the suit, a question of boundary ;"• and he may submit a question of boundary to arbitration, no independent title to the land being involved in the contest." An attorney has authority to restore an action, after non-pros., without the consent of his client ;^^ and, under a written authority from one of two defendants, he may agree to an amicable revival of a judgment against both.^^ The authority of an attorney does not cease with the judgment ; his directions to the sheriff, as to the mode and time of sale, are binding, and a full authority, if obeyed in good faith ;" he has power to make an arrangement with the sheriff, as to a different mode of sale from that pre- scribed by law.'' He has power to stay execution upon a judgment, in con- sideration of the promise of a third person to pay the debt;'* and he may discharge a defendant from arrest on a ca. sa., but cannot relieve the sheriff from the consequences of an escape, by a subsequent order.'' His receipt, without actual payment, will not bind the client ;'' but an attorney, retained to foreclose a mortgage, by one who is authorized, for a good consideration, to release the mortgage-debt, may receipt to the sheriff for the same, without actual payment." The sheriff is not justified in paying the proceeds of an execution to the attorney, after notice of a revocation of his authority.^" § 225. An attorney has no authority to make a compromise, by which land is to be taken instead of money f^ he cannot, by agreement, bind his client's title to land, so as to work a conversion of the same;^^ ^^^ ^^^ ^le ' King of Spain v. Oliver, 2 W. C. " Reinholdt v. Alberti, 1 Binn. 469 C- 429. 13 King v. Cartee, 1 Penn. St. 147. ^ Meyer u. Littell, 7 Penn. St. 181. " Lynch v. Commonwealth, 16 S. & ' Commonwealth w. Peterson, 1 Clark R. 368. Patterson v Cummin 2 P 482. & W. 520. ' * Staokhouse v. O'Hara, 14 Penn. St. '^ Reamer's Appeal, 18 Penn. St. 510. 88- '" Silvis V. Ely, 3 W. & S. 420 ' Reinholdt v. Alberti, 1 Binn. 470. " Soott v. Seller, 5 Watts 235 ^ Cook u. Gilbert, 8 S. & R. 567. '« Chambers v. Miller, 7 Watts 63 ] Seiners ». Balabrega, 1 Dall. 164. '» Thomas u. Jarden, 57 Penn. St 331 « Wilson V. Young, 9 Penn. St. 101. » Irwin v. Workman, 3 Watts 357 Bingham v. Guthrie, 19 Penn. St. " Huston v. Mitchell, 14 S & R lo'ui,,, o. ,, .A -n c l^^- Staokhouse w. O'llara, 14 Penn! i» Babb V. Stromberg, 14 Penn. St. St. 88. Stokely v. Robinson, 34 Ibid. ''"'• 315. " Evars v. Kamphaus, 59 Penn. St. '^ Naglee v. IngereoU, 7 Penn, St. POWERS OF ATTORNEYS. 129 bind his client, by an agreement for the sale of land ;^ or release the real estate of a defendant from the lien of his client's judgment.^ Where time is made of the essence of a contract, an attorney has no power to waive his client's rights, by accepting payment, after the day f nor can he, by virtue of his general authority, ratify the unauthorized payment of a judgment to the prothonotary/ Nor can he compromise the rights of his client, by agreeing to enlarge the powers of an auditor over a claim, not within the scope of the powers originally conferred upon such auditor.'' An attorney, as such, has no power to sell his client's judg- ment;' nor to substitute one judgment for another;' nor can he assign a judgment for arrears of ground-rent, to the prejudice of his client's lien for subsequent arrears.* § 226. If an attorney enter his appearance, without restriction, oppo- site the names of two defendants, on the docket, it is a good appearance for both, though one of them be not served f and, in such case, a judg- ment against all the defendants, is valid ;'" but the plaintiff may treat a general appearance as for those only who were served ;" or, the court may so restrict it, on motion.^^ The court will, in general, grant relief against the consequences of an unauthorized appearance ;'^ especially, if ihe attorney be not clearly able to respond in damages ;'^ in such case, the practice is, to open the judgment, and let the defendant into a defence on original grounds ; leaving the judgment to stand as security.'^ An unauthorized acceptance of service of process, however, by an attorney, will not support a judgment; such judgment will be vacated, notwith- standing the lapse of several years, and an assignment of it to a third person, without notice.'^ § 227. To avoid the consequences of mistake and difference of recol- lection, the courts have adopted a rule that " all agreements of attorneys, touching the business of the court, shall be in writing ; otherwise, they will be considered of no validity ."''' The rule is a wise and salutary one, and ought to be strictly enforced, not only for the sake of the suitors, but of the members of the bar themselves ; if it were always borne in mind, it would prevent four-fifths of the unpleasant difficulties which ' Burkhardt v. Schmidt, 31 Log. ' MoCullough v. Guetner, 1 Binn. Int 92 214. Scott v. Israel, 2 Ibid. 145. ' Dollar Savings Bank v. Robb, 4 '» Hatch v. Stitt, 66 Penn. St. 264. Brewst. 106. " Lentz v. Stroh, 6 S. & R. 34. Erd- ' Gable v. Hain, 1 P. & W. 264. man v. Stahlnecker, 12 Ibid. 325. * TomnkinB v. "Woodford, 1 Penn. St. " Jones v. Orum, 5 Rawle 249. Gers- 156. tie V. Grubb, 18 Leg. Int. 173. 5 Willis V 'Willis, 12 Penn. St. 159. '' Compher v. Anawalt, 2 Watts 492. « Campbell's Appeal, 29 Penn. St. " Field v. Gibbs, Pet. C. C. 158. 401. Rowland v. Slate, 58 Ibid. 196. " Coxe v. NichoUs, 2 Yeates 546. ' Cake V. Olmstead, 1 Am. L. J. '° Lawrence v. Rutherford, I Peara. 169. And see Irvine v. Henderson, 555. Ibid. 269. " I^"l^ "^- ? 4- -^^^ 8®® Shippen v. 8 Fassitt V. Middleton, 47 Penn. St. Bush, 1 Ball. 251. 214 ; s. c. 5 Phila. 196. VOL. I. — 9 130 OF ATTOKNEYS. often arise from forgetfulness and misunderstanding.' It does not, how- ever, extend to an agreement between the attorneys of execution-credit- ors and the sheriff, as to the mode of sale.^ And an order of court, made on motion, cannot be nullified by an agreement filed of record.^ ' Powell V. Tobias, 2 Phila. 274. » Miller v. Gallagher, 1 W. N. C. ' Reamer's Appeal, 18 Penn. St. 510. 374 ; s. g. 4 Ibid. 165. CHAPTER V. Commencement of Actions. I. CoMMENCEMENX OF ACTIONS IN Service of the writ, J 247-8. GENERAL, J 228. Service beyond tlie county, ? 249 What is the commencement of an -50. action, § 228. Non-residents of the county, §251, Mode of commencing an action, Non-residents of the state, § 252. ? 229. Lunatics, § 253. Tax on process, § 230. Corporations, J 254-5. „ T. Counties and townships, B 256. II. Pkivilege fkom suit and from pubUc debtors, a 257. ARREST, I 231. Publication, § 258. Nature of the privilege, § 231. Waiver, 3 259. Public ministers, &c., ? 232 Ug^um, ? 260-1. Members of congi-ess, &c., ? 233. ^^^g j 262. Soldiers and militiamen, J 234. Freeholders, § 235. Suitors, counsel and witnesses, ^^- Summons in real actions, § 263. ? 236^0. Commencement of real actions, Women and lunatics, ?241. §263. Nature of the action, § 242-3. Service of the writ, § 264. Appointment of guardian ad III. Summons in personal actions, litem, § 265. § 244. Partition and dower, § 266. Nature and form of the writ. Ejectment, §267. § 244. Service in another county, § 268. Mode of issuing the writ, § 245. Pubhcation, § 269. Eetum-days, § 246. Bail and appearance, § 270. I. Commenceineiit of actions in general. § 228. Actions in this state are usually commenced by issuing a writ of summons, capias or attachment, out of the office of the prothonotary of the proper court. The issuing of such writ is, in a technical and limited sense of the word, the commencement of the action, for the legal status of the action does not commence merely from the service of the writ ; it is a suit, from the moment of its entry, certainly, from the mo- ment of the exitus of the writ into the hands of the sheriff.* Thus, the issuing of a summons, though it be returned " not served," is a suit brought, and will release a guarantor, who has stipulated, in considera- tion of total forbearance f and the issuing of a capias, and having it returned non est inventus, is such a commencement of a suit, as will pre- vent the bar of the statute of limitations, provided it be properly con- tinued down f but an alias must be taken out and served within six years thereafter.* The cause of action must exist before the impetration of the writ.* The term " commencement of actions," is, however, used ' HertzogB. Ellis, 3 Binn. 209. Fehr * Cureier's Estate, 28 Penn. St. 261. V. Reich, 36 Penn. St. 474. * Duncan v. Lawrence, 24 Penn. St. 2 Caldwell V. Heitshu. 9 W. & S. 51. 154. » McClurg V. Fryer, 15 Penn. St. 293. (131) 132 COMMENCEMENT OF ACTIONS. in this chapter, iu a more comprehensive sense, and embraces the steps necessary to be taken, in order to bring the defendant into court. § 229. The ordinary modes of commencing actions, in Pennsylvania, are, by summons, by capias, by attachment, or by amicable agreement of the parties, without writ.* Besides these, there are several other modes, which are confined to special cases, or to particular forms of action, which will be more appropriately reserved for the second volume of this work. In general (with the exception of amicable agreements), the first step to be taken by the party instituting the suit, or his attor- ney, is to address a prmcipe' to the prothonotary of the court in which he intends, to proceed. This is a mandate to the prothonotary, directing him to issue a writ (summons, capias, &c., as the case may be) between the parties (naming them carefully), and signed by the attorney, or by the party, if he conducts his own case. It is entitled of the court and term to which the writ issues ; it is tire foundation of the proceedings, is considered part of the record, and the subsequent proceedings may be amended by it.' The following is a form of proeeipe for a writ of sum- mons, in an action of assumpsit : In the Court of Common Pleas for the county of Philadelphia. Adam Smith "j V. V Of March term, 1879. John Johnson. j Issue Summons in Case, returnable the first Monday of March next. To C. D., Esq., A. B., Prothonotary. Attorney for plaintiflT. 20 Feb. 1879. § 230. Tax on process. The prothonotaries of the several courts of this commonwealth are directed by statute,^ to collect for the state, on every original writ issued (except habeas corpus), and on every amicable action entered, the sum of fifty cents. And in Philadelphia, the pro- thonotary is also directed to collect the sum of twenty-five cents, in each of such cases, for the use of the Law Association of Philadelphia." n. Privilege from suit and from arrest. § 231. Upon grounds of public policyi certain persons, by virtue of their office, their dignity, or their circumstances, are, by the laws of the ' The warrant of arrest is mesne pro- certiorari, or when referred to and read cess, issued with, or after the service below for some purpose. Jones v of t^ie summons. Hartley, 3 Whart. 189. rhisis the term given, in this state, ' Guhr v. Chambers, 8 S. & R. 157 to the attorney's mandate to the pro- Fitzsimmons v. Salomon, 2 Binn. 439 thonotary. It is not only an order to Moss «. Herring, 2 Miles 93 issue the original process, whether * Act 6 April 1830, P. L. 272 Purd capias or summons, and whether in con- 1390. tract or in tort, but is likewise the name ^ Act 2 April 1860 P L 594 The given to the order to issue any other constitutionality of this tax is very process, mesne or final. It is not usually doubtful ; see Philadelphia Association returned, as part of the record, to the for the Relief of Disabled Firemen v supreme court, unless brought up on Wood, 39 Penn. St. 73. PRIVILEGE FEOM SUIT. 133 State, exempted from liability to suit, or arrest in civil actions. This immunity is either a privilege from suit, in which case, it is temporary, or local, or both ; or it is merely a privilege from arrest, in which case, it is sometimes, though not always, permanent. In addition to this per- sonal privilege, there has been introduced by statute, a privilege from arrest only, dependent upon the nature of the action, and not upon the person. These two classes of privilege (personal and dependent upon the nature of the action) will be considered in the present chapter. It should be remembered, however, that these privileges may, in general, be waived by the party entitled to them ; in fact, they are held by the courts to be thus waived, unless expressly claimed in due time. If, then, instead of asserting his privilege, at the earliest opportunity, the party who has been wrongfully sued or arrested, take any step in the cause, or do any other act amounting to a recognition of the plaintiff's right to sue or arrest him, he cannot, in general, afterwards avail himself of his privilege.^ § 232. Ambassadors. By the law of nations, the ambassador of a foreign state is privileged from arrest, for any cause whatsoever, and his goods and chattels are privileged from distress, seizure or attachment,^ and the same privilege is extended to his domestics and domestic ser- vants. These privileges are recognised, regulated and enforced by the statutes of the United States.^ An attaohh to a foreign legation is a public minister within the act •* so is a secretary of legation.^ A min- ister whose functions have ceased, by the termination of the government which appointed him, and who has received his passports, retains his privilege f and so does a chargh dea affaires, whose official functions ceased on the arrival of the minister of his government.' The minister of a foreign state, whilst travelling through the territories of a state to which he not accredited, is privileged; the privileges of foreign ministers have their origin and support in the law of nations ; the act of congress was not necessary, or intended, to confer privileges, nor does it limit their extent ; its object was, to enforce the privileges of ambassadors, and to punish all violations of them.* The privilege does not extend to a citi- zen or inhabitant of the United States, in the service of a public minister, where the process is founded upon a debt contracted before he entered upon such service ; nor to any domestic servant of a public minister, unless his name has been registered as such in the department of state.^ The recognition, by the president, of a foreign minister, is conclusive 1 Winder v. Smith, 6 "W. & S. 424. ■* United States v. Banner, Bald. 234. Johnston v. Coleman, 8 Ibid. 69. Ken- ^ Ex parte Cabrera, 1 W. C. C. 232. sington Bank u. "Wilkinson, 2 Miles And see Taylor v. Best, 14 C. B. 487. leg" Respublica v, De Longohamps, 1 Dall. 2 It has been held, that a foreign 111. minister is not exempt from the opera- * D'Azambuja v. Pareira, I Miles tion of the mechanics' hen law, except 366. as to a building erected for his personal ' Dupont v. Pichon, 4 Dall. 321. residence. Borne v. Herran, 1 Daly * Holbrook v. Henderson, 4 Sandf, 344 S. C. 619. » Rev. Stat. ^063-6. » Kev. Stat. H065. 134 COMMENCEMENT OP ACTIONS. upon the courts.' Foreign consuls, however, are not entitled to the pri- vilege of public ministers ; but they are suable only in the federal courts.^ § 233. Members of congress, &c. By the federal constitution,' sen- ators and representatives in congress are privileged from arrest, in all cases, except treason, felony and breach of the peace, during their attendance at the sessions of their respective houses, and in going to, and returning from, the same. The privilege extends to one who goes to the seat of government, duly commissioned to represent a state in congress, though it be subsequently decided that he is not entitled to a seat.* Members of congress are privileged, not only from arrest on judicial and mesne process, but also from the service of a summons, whilst in attend- ance on their public duties.^ The like privilege from arrest is conferred upon members of the general assembly, by the state constitution f and upon electors, during their attendance on elections, and in going to, and returning therefrom.' The privilege has been held to extend to a member of a state convention, so far as to privilege him from the service of a summons.' It must, however, be claimed in due season, or it is waived.' § 234. Soldiers and miMtiamen, The laws of congress provide that no enlisted man shall, during his term of service, be arrested on mesne process, nor taken or charged in execution for any debt, unless it was con- tracted before his enlistment, and amounted to twenty dollars, when first contracted.'" And marines, while enlisted in the service, are exempted from all personal arrest for debt or contract." The enlistment of a per- son under arrest, will not, however, relieve him from the civil process.'^ By the act of 18 April 1861,'^ no civil process shall issue o'r be enforced against any person mustered into the service of this state, or of the United States," during the term for which he shall be engaged in such service, nor until thirty days after he shall be discharged therefrom ; but the statute of limitations shall be suspended during such term.'^ This statute extends to proceedings on a mortgage ;"" but it does not prevent ' United States v. Ortega, 4 W. C. ' Bolton u. Martin, 1 Dall. 296. C. 531. United States v. Benner, ' Geyer v. Irwin, 4 Dall. 107. Bald. 234. Ex parte Anfrye, 3 W. N. '» Rev. Stat. § 1337. C. 188. " Ibid. 1 1610. ' United States v. Ravara, 2 Dall. '" Field's Case, 5 Hall L. J. 474. Soo 297-9, n. Commonwealth v. Kosloff, 5 Roode's Case, 2 Wh. C. Cas. 541. S. & R. 545. >» P. L. 409 ; Purd. 1061. ^ Art. I., i 6. " See Ex parte Gilmore, 24 Law ' Dunton v. Halstead, 2 Clark 450. Rep. 218. See Respublica v. Duane, 4 Yeates '* This act is constitutional, as to per- 347. Hoppin w. Jenckes, 8 R. I. 453. sons enlisted or mustered in for a dpfin- '^ Geyer u. Irwin, 4 Dall. 107. Nones ite term of service. Breitenbach v. w.Edsall, 1 Wall. .Jr. C.C. 191. Contril, Bush, 44 Penn. St. 313. Othe-wise, Kimberly v. Butler, 1 Chicago L. Ne^s when the term of service is indefinite, 245; Chase, C. J. Merrick v. Gid- as "for the war." Clark v. Martin, dingo, 7 Wash. L. Rep. 176. 49 Ibid. 299; s. c. 3 Gr. 393. « Art. 11., ^ 15. 16 Coxe v. Martin, 44 Penn. St. 322, ' Art. VIII., § 5. Drexel v. Miller, 49 Ibid. 246. PEIVILEOE FROM AEEEST. 135 final process going against a co-defendant.* The privilege only dates from the time when the defendant is actually sworn into the service.^ § 235. Freeholders. No freeholder inhabiting any part of this pro- vince, who hath resided therein for the space of two years, and has fifty acres of land, or more, in fee-simple, well seated, and twelve acres thereof, or more, well cleared or improved, or hath a dwelling-house, worth fifty pounds current money of America, in some city or township within this province, clear estate, or hath unimproved land to the value of fifty pounds like money, shall be arrested or detained in person, by any writ of arrest, or capias ad respondendum, in any civil action, unless it be in the king's case, or where a fine is or shall be due to the king, his heirs or successors ; or, unless they be such freeholders as, by this act are made liable to be arrested.^ The privilege of ^ freeholder to be sued by summons, extends to actions of trespass vi et armia* and slander f a capias cannot issue, even though the plaintifi" direct the sheriff to accept his ap- pearance.' If a freeholder be wrongfully arrested, the court will inquire into the fact of his residence f and relieve him from arrest f but they will not hear evidence to contradict the plaintift^'s affidavit.' A freeholder is privileged from arrest, if his freehold be unincumbered, and of the value of 50/., without regard to the amount of the plaintifl^'s claim ;'" but a judgment before a justice is sufficient to defeat the privilege ;'' and in such case, the court will not go into the question of value.'^ The defendant, in order to claim his privilege, need not show title, as in ejectment; possession, under color of title, is, in general, sufficient.'" And if the defendant ' Sheetz V. 'Wynkoop, 74 Penn. St. As to what is such residence as will en- 19g. title the defendant to his privilege, see ^ Rank v. Wenger, 1 Pears. 532. Penman v. "Wayne, 1 Dall. 348. 3 Act 20 March 1725, 1 Sm. L. 164; * Hudson v. Howell, 1 Dall. 310. revived by Act 14 April 1838, P. L. Corcoran v. Kegrize, 29 Leg. Int. 324. 458 ; Purd. 48. See Lynd v. Biggs, 1 ' McGuigan v. McCarthy, 6 W. N. C. Clark 18. The second section of the 253. act renders a freeholder liable to ar- ^ Barnard v. Field, 1 Dall. 348. rest, on affidavit, that he has signified ' Penman v. Wayne, 1 Dall. 241. his intention of removing out of the ' Jack v. Shoemaker, 3 Binn. 280. state ; or that he has absconded, or Fitler ». La Breure, 1 S. & R. 363. conceals himself; or that he has re- » Fillers. Harman, 2 Yeates 280. fused, on demand, to give security for "" Fitler v. La Breure, 1 S. & R. 363. the debt ; or refused to appear without Hill v. Ramsey, 2 Miles 342. process, and put in special bail to the " Quesnel v. Mussi, 1 Dall. 436. action ; or has suffered himself to be " Foy v. Simpson, 3 Am. L. J. 522. arrested or judgment to be entered " Bidiohimer v. Sterne, Dist. Court, ao-ainsthim; or has made over his pro- Phila., 19 June 1852. Rule to show perty to others, or suffered it to be at- cause why the capias should not be tached and made no proper defence to quashed. Per curiam. The defend- euch proceeding ; or where the plain- ant's freehold has been clearly made tiff can show, from records, or other- out by the deeds and depositions. We wise that the defendant's estate is so have never required a defendant in incumbered that its value will not suf- these cases to deduce and prove title fice as deponent believes, to satisfy the as in ejectment ; possession, under col- debt ■ or where the defendant has not or of title is, in general, all that has been' a resident of the state for two been required. Rule absolute, with years, prior to the date of the writ, costs. 136 COMMENCEMENT OF ACTIONS. have a freehold within the county, he need only show its existence anrl v^alue ; it then rests on the plaintiff, if he object, to show an incumbrance ; but if the freehold be in another county, the defendant must not only show its existence and value, but must produce evidence, by the usual certificates of search, of its being clear from incumbrances.' The court may decide on the value, from an inspection of the title papers, or may order additional evidence to be taken.^ The defendant does not waive his privilege, by moving to reduce the bail.^ But if he join with an unprivileged person in the commission of a trespass, he loses his privi- lege and is liable to arrest.* When a freeholder receives notice to enter bail, he may cite the plaintiff to show cause of action ; and if the judge be of opinion that the defendant ought not to be held to bail, he may order that his appearance J)e accepted.' § 236. Suitors, counsel and witnesses. The parties to a suit, their attorneys, counsel and witnesses, are, for the sake of public justice, privi- leged from arrest, in coming to, attending upon, and returning from the court ; or, as it is usually termed, eundo, morundo et redeundo. This is not an immunity of particular individuals, but of all persons, under cer- tain circumstances, on the principle, that where the law requires any duty of the citizen, it will protect him in the discharge of that duty ; and that no person can demand the use of public civil process, so as to arrest or interfere with others in the performance of public duties, or of duties required by public process. On these grounds, the privilege is secured to all jurors, parties, witnesses, law-agents, and even common agents of the parties, while hon&jide attending the court, in relation to any pending judicial proceeding, and in going thither and returning thence.^ And the privilege extends to the service of a summons as well as a capias.'' The common-law term " privilege from arrest," is, with us, substantially the same as " privilege from suit."* A summons cannot be served upon one who is attending before a justice, for the purpose of having his deposition taken ; he is constructively in the presence of the court.' J Hill V. Ramsey, 2 Miles 342. Bidi- 217. Holmes v. Nelson, ut supra. chimer v. Sterne, ut supra. ' Souder y. Burling, Dist. Court, ^ Hill ». Ramsey, «< swpm. Phila,, 24 April 1852. Rule to set aside ' Dobson V. Fitzpatriok, 2 W. N. C. service of summons. Pei- curiam. The 186. defendant, a non-resident, was attend- • Fife 0. Keating, 2 Bro. 135; re- ing before an alderman, to have his cognised in Robinson v. Narber, 65 deposition taken, when the summons Penn. St. 85. But see Buckman v. was served. It may be considered, Jones, 3 W. N. C. 302, and Mc- perhaps, as having been made consirac- Guigan v. McCarthy, 6 Ibid. 253, where tively in the presence of the court ; the court abated the writ as to the otherwise, as the defendant does not freeholder only. appear to have come into the state for * Jack V. Shoemaker, 3 Binn. 283 ; the purpose of giving his testimony, it Tilghman, C. J. would have been no breach of privi- « Holmes v. Nelson, 1 Phila. 217. lege, within the principles settled by ' Hayes v. Shields, 2 Yeates 222. our decisions. However, the defend- Miles V. MoCullough, 1 Binn. 77. Par- ant did not apply, until he had left ker V. Ilotchkiss, 1 Wall. Jr. C. C. the state, though he bad the opportu- 269. Torry v. Bast, 3 W. N. C. 63. nity. This would h.ave made no dif- Wicks V. Brown, cited 1 Phila. ference, if he had had his privile.Te, PRIVILEGE FKOM AEREST. 137 A suitor is privileged from arrest on a capias, whilst attending before an examiner;* and also from the service of a summons;^ and if he hand, fide attend for the purpose of taking a deposition, he is privileged from the service of a summons, though he determine not to have it taken." § 237. One in custody on civil process, is not privileged from the ser- vice of a summons.* And the privilege of a suitor does not hold, where he has been surrendered by his bail in another cause, and is in actual custody." And, though attending court, he may be taken and surren- dered by his bail f or arrested on a ca. saj The privilege from arrest is confined to parties to civil proceedings ; unless it appear that the arrest on the criminal charge was a contrivance to get the defendant into cus- tody in the civil suit.' A person charged with a criminal offence, and discharged on bail for a further hearing, is not privileged redeundo, from arrest on civil process f nor, whilst attending a criminal court, is he privileged from the service of a capias, without bail." But though in custody on criminal process, he is privileged from the service of civil process, as against those who are parties to the prosecution.*' § 238. A counsellor at law coming from another county, to attend the cause of his client before the supreme court, is exempt from the service during his reasonable stay, as if he had come expressly to be examined ; but here, it was all-important to the plain- tiff to be at once informed that he meant to insist on his privilege ; for tie might have had the process legally served afterwards, and before he left. Rule dismissed. ' Steinmetz v. Wade, 3 "W. N. C. 187. ^ Huddeson u. Prizer, 9 Phila. 65. Eby V. Demuth, 1 L. Bar, 12 Feb. 1870. » "Wetherill v. Seitzinger, 1 Miles 237. Trine v. Winton, 3 Luz. L. Reg. 216. * Stryker v. Patterson, Baum v. Pat- terson, Dist. Court, Phila., 10 Feb. 1849. Why the service of the alias summons should not be set aside. Per curiam. It appears, that the writ in these cases was served on the defendant, after he had been arrested and was in custody on warrant of arrest, under the act of 1842, issued in the same cases. It is not pretended, that the defendant, when arrested and in custody under a war- the summons in the same case ; but it rant of arrest, cannot be served with is contended, that being under arrest in the one suit, he is privileged from the service of a summons in another suit. This is a misunderstanding of the doc- trine of privilege ; which entitles a per- son to be free from molestation, when in actual attendance upon the court, either as party or witness, but does not extend to exempt him, when he is merely attending to his law business ; for the reason of it would then extend to his going and returning from the office of his counsel. It is plain, that when a party is arrested under process, he may be properly served with any other process in the hands of the sher- iff. Several writs of capias may be placed together in the sheriff's hands, and the sheriff may arrest the defend- ant upon all of them ; and cannot safely let him go, until he has given bail in all of them : d, fortiori, he cannot claim exemption from the service of a sum- mons. Rules dischai-ged. * Davis V. Cummins, 3 Yeates 387. ^ Broome v. Hurst, 4 Yeatea 123. Mason's Petition, 6 Leg. Gaz. 110 ; s. c. 3 Luz. L. Reg. 54. ' Starrett's Case,.l Ball. 356. Han- num V. Askew, 1 Yeates 25. But see Ex parte Hurst, I W. C. C. 186. * Commonwealth v. Daniel, 4 Clark 49. Addioks v. Bush, 1 Phila. 19. ' Key V. Jetto, 1 Pitts. 117. But see Addieks v. Bush, ut supra. "• Treichler v. Hauok, 1 Leg. Chron. 98 ; s. 0. 7 Luz. L. Reg. 155. " Foreman b. Morrow, Dist. Court, Phila., 26 March 1853. MS. 138 COMMENCEMENT OF ACTIONS. of a summous in a civil action, in going, remaining and returning.' And it makes no difference, as to the privilege, that the attorney is not a resi- dent of the state ; nor that the proceeding in which he is attending is pending in the supreme court of the United States ; that tribunal is not a foreign court.^ But whilst within the jurisdiction merely for the pur- pose of advising with associate counsel, he is not privileged from the ser- vice of process.^ § 239. The privilege of a witness from arrest is to be construed liber- ally. Originally, it embraced only attendance on courts, but it has extended itself, in process of time, to every case where the attendance was a duty in conducting any proceeding of a judicial nature, as com- missions of bankrupt, or before a judge at chambers ; and whatever doubts may have been entertained as to a witness attending arbitrations under a rule of court, he is now just as much protected, as a witness attending a judge at nidprius^ A witness attending without subpoma is equally privileged f so, in general, all persons who have relation to a cause which calls for their attendance in court, and who attend in the course of that cause, though not compelled by process to do so, are privi- leged from arrest, provided their attendance be not for any unfair pur- pose.^ Nor have the court? been nice in scanning this privilege, whether relating to the coming, attendance or returning of any one concerned in the trial, but have given it a large and liberal construction ; wherever it exists eundo, it exists redeundoj Thus, a witness attending from another county is privileged from the service of a summons ; and he is not obliged to return by the next train, after being discharged from attendance; he is entitled to a reasonable time, according to the circum- stances.^ § 240. When a party, counsel or witness, in attendance upon a suit or trial, has been arrested or served with a summons, in derogation of his privilege, he may apply in person, by bail, or by attorney, either to the court from which the process issued, or to that in contempt of which the arrest or service has been made, to set aside the service, or discharge him ; but not to quash the writ. It is not the issuing of the writ, but the service, which is the breach of privilege.' The court in which the '■ Wicks V. Brown, cited 1 Phila. 217. ' Johannet v. Lloyd, Barnes 27. Austin V. Brown, Dist. Court, Phila., ' Holiday v. Pitt, 2 Str. 986. Dun- 9 Dec. 1848. In this case, the court ton v. Hafstead, 2 Clark 450. Smythe said : — " It is too well settled, to be now v. Banks, 4 Dall. 329. questioned with us, that a witness, ' Wilbur v. Boyer, 1 W. N. C. 154. party or attorney, attending the trial If a witness, attending court, voiunta- of a cause, at a distance from his home, rily leave the place of trial, during a and in another jurisdiction, is privileged recess of the court, from Friday until as well from the service of a summons Monday, for his own pleasure, he is not as a capias." privileged from the service of process. Holmes v. Nelson, 1 Phila. 217. Rex v. Piatt, 3 W. N. C. 187. See Birkinbine v. Boyer, 5 Leg. Gaz. 2. Hurst's Case, 4 Dall. 387. Hayes v. United States v. Bdme, 9 S. & R. Shields, 2 Yeates 222. ^^I't.--. . ,. ™ ° In Austin v. Brown, Dist. Ccart, =o. ^^f- ^'■'^™S "• Flower, 8 T. R. Phila., 9 Dec. 1848, the court said:— 536. See Anon., 2 Salk. 544. « The question has been made, what, ia PSIVILEGE FROM AEEEST. 139 party is attending as a suitor, is the proper one to apply to, for a dis- charge from an illegal arrest;^ but where that court has refused to discharge one of its own suitors from arrest, on the ground of privilege, no other court will interfere.^ It is a matter of discretion, not the sub- ject of review by the supreme court.' The court will not grant relief in such case, if the defendant have taken any step in the cause ; such as, a rule to show cause of action ;* or, if he have omitted to move, until after he has left the jurisdiction.' The court will not discharge, without a previous notice of the application ; but will only grant a rule to show cause, with a stay of proceedings f and if a party attending a criminal practice, is the proper order — to quash the writ, or set aside the service. In Wetherill v. Seitzinger, 1 Miles 240, the rule was, as in this case, to show cause why the writ should not be quashed ; this point was not raised, and the rule was made absolute. In Miles V. McCullough, 1 Binn. 77, the eminent counsel for the defendant (the late Judge Hopkinson) moved to set aside the service, upon the ground of privi- lege ; and the order of the court was made accordingly. In Hayes v. Shields, 2 Yeates '222 (a case which was at nisi prius, in Greensburg, held by two of the justices of the supreme court, and in which the defendant, a suitor, was served with a summons issuing out of the common pleas of Westmoreland county), the motion, by Mr. Ross, was, that the defendant should be discharged from the action ; and the order was made in the terms of the motion. In Bolton V. Martin, 1 Dall. 296, which is the only other, and earliest, case re- ported, the rule was, to show cause why the process should not be quashed ; but the order of the court was, that he should be discharged from the action. It appears to us, upon reflection, that the most proper practice is that pur- sued in Miles v. McCuUough, which is the last decision of the supreme court. The writ itself was not irregular. If, after having completed his business as attorney, the defendant had unneces- sarily remained for his pleasure or pri- vate affairs, he surely could have been served the process ; or, if he had gone, and returned before the return-day. It 18 not the issuing of the writ, but the service, which is the breach of privilege. Thus, it would be competent, as well for the court issuing the process, as the court in contempt of whom it was served, to set it aside, and to enforce their order, in the case of the latter court, by an attachment against the officer; but to quash the writ could only be done by the court issuing it. This makes me think, that both Hayes v. Shields, and Bolton v. Martin, are authorities in favor of the practice of simply s&t- ting aside the service ; in the latter case, though the rule was, to quash the writ, the order was that the defendant should be discharged from the action : and in the former case, the order was made by a different court from that which issued the writ ; and, of course, had no power to quash it. In oases of privileged persons, the universal prac- tice, in England, as well as this country, appears to be, not to quash the writ, but to discharge the defendant from the custody of the sheriif, or order the bail-bond to be delivered up, to be can- celled. See 6 Taunt. .356 ; Childerston V. Barrett, U East 439; Lightfoot v. Cameron, 2 Bl. Kep. 1113; Ex parte Edme, 9 S. & K. 147. It is true, that in Kinsman v. Reinex, 2 Miles 200, the rule was, to show cause why the capias should not be quashed ; but there the court discharged the rule, referring the defendant for redress, to the court upon which the contempt had been commit- ted, whose power, surely, could not ex- tend to quashing the process of another court." ' Commonwealth v. Daniel, 4 Clark 49. A party arrested on a capias, whilst attending, as plaintiff, before referees appointed by a j ustice, will be discharg- ed by the court out of which the writ issued, and the bail-bond cancelled. Webb V. Carter, 9 L. Bar 6.5. ^ Commonwealth v. Hambright, 4 S. & R. 149. ' Roberts v. Austin, 5 Whart. 313. * Green v. Bonaffon, 2 Miles 219. ' Souder v. Burling, vt supra, § 336. ^ Grover v. Green, 1 Gaines 115. 140 COMMENCEMENT OF ACTIONS. court, as prosecutor, be arrested on a capias, he cannot be discharged, on habeas corpus, by a judge in vacation; but must make his application to the court.^ § 241. Women and lunatics. Women are exempted from impris- onment for debt, by the act of 1819 f and, therefore, a woman is not liable to a warrant of arrest, under the act of 1842,' which only extends to cases in which the exemption is conferred by that act.^ And lunatics are exempted from arrest, on mesne and final process, in any civil action, so long as they remain of unsound mind, by the act of 1836.^ If so arrested, the court, or any judge, in vacation, is required, by the same act, on production of a certified copy of the proceedings in lunacy, to discharge him, without bail ; first appointing some suitable person of his kindred to appear for him, and directing his appearance to be entered. If, however, the plaintiff make afiidavit that he verily believes the inquisition was unduly found, or that the defendant is restored to a sound state of mind, the court may, in its discretion, order him to be held to bail. § 242. Nattire of the action. The act of 1842, to abolish imprison- ment for debt,' provides, that " no person shall be arrested or imprisoned on any civil process, issuing out of any court of this commonwealth, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon any con- tract, express or implied, or for the recovery of any damages for the non- performance of any contract, excepting in proceeding as for contempt, to enforce civil remedies, action for fines or penalties, or on promises to marry, on moneys collected by any public ofiicer, or for any misconduct or neglect in office, or in any professional employment, Ln which cases the remedies shall remain as heretofore." Under this act, defendants are privileged from arrest in nearly every case which can arise ex con- tractu; but they may still be held to bail in actions ex delicto;'' as, in an action of deceit,^ or of trover.' Where, however, a debt is fraudulently contracted, the remedy is, by warrant of arrest ; not by capias to hold to bail ;'" and if the tort be barred by the statute of limitations, a subse- quent promise to pay, will not render the party liable to arrest on a capias}^ § 243. Notwithstanding the act of 1842, bail from another state may arrest their principal, and remove him from the commonwealth,'^ and an attachment may issue against an assignee for the benefit of creditors, to ^ Commonwealth v. Adams, 3 Am. Hopper v. Williams, Ibid. 379. L. J. 134. 9 Lopemanti. Henderson, 4 Penn. St. ^ 7 Sm.L. 150; Purd. 49; re-enacted 232. by act 13 June 1836, §6, P. L. 573. i« Bowen v. Burdiek, 3 Clark 2'26. P. L. 339 ; Purd. 49. Gallagher v. Noroross, 7 Phila. 623. ' Morns v. Hofheimer, Dist. Court, Philadelphia Coal Co. v. Huntzin£rer,6 Phila., 6 June I860. MS. See infra, W. N. C. 300. Otherwise, if the pro- K ". %; -r „^ ^ ceeding were fraudulent throughout. „ P. L. 601 ; Purd. 986. Eager v. Radley, 1 Phila. 47. , %■ L- 339 ; Purd. 49. ir Murfjhy v. Elder, 4 W. N. C. 212. ' Sedgebeer v. Moore, Bright. 197. '^ jMason's Petition, 6 Leg. Gaz. 110 : Iryon v. Hassinger, 1 Clark 184. s. c. 7 Luz. L. Reg. 155. OF THE SUMMONS. 141 nompel payment of moneys in his hands.^ So, it is held, that an admin- istratrix may be attached to compel the payment of trust-moneys, belonging to the estate, notwithstanding the act of 1819.^ And that a decree in equity, for costs, may be enforced by attachment of the body.' An attorney, who collects money for his client, and neglects to pay it over, is within the exception of the act ;* and so is a state agent, who collects money for the commonwealth.' UUL. Summons in personal actions. § 244. The summons, in Pennsylvania, is a mandate issued in the name of the commonwealth, directed to the sheriff or coroner of the county in which the action is brought, commanding him to summon the defendant to appear in the court, at a day named, and respond to the action instituted by the plaintiff; and also to produce the writ in court, on the day named for the defendant's appearance. It is tested in the name of the president or other judge of the court; signed by the prothonotary ; and to bear date on the day it issues. The form of the writ is pre- scribed by statute,^ as follows : — [L. S.] The Commonwealth of Pennsylvania : county, ss. To the sheriff of said county, greeting : We command you, that you sum- mon , so that he be and appear before our court of , to be holden at , in and for said county, on the day of next, there to answer , of a plea of debt [or as the case may be], and have you then and there this writ ; Witness -, president [or as the case may be] judge of our said court, the day of . , Prothonotary. § 245. This mode of commencing personal actions had been in use long before the act of 1836, and must be adopted in all cases in which it is not allowable to arrest the defendant, or where the writ is dispensed with by agreement. To sue out a writ of summons (in assumpsit), make out a prceeipe, in the form given above f hand it to the writ-clerk in the prothonotary's office ; pay him a fee of one dollar and twenty-five C€nts ; and when received, indorse the residence of the defendant, or other directions for service ; and deliver it to the appearance-clerk in the sheriff's office, paying him the fee of eighty-seven and a half cents for service, with the additional sum of twenty-five cents for each defend- ant besides the first.' • Hueg's Estate, 1 Clark 237. Chew's McCain v. Jewell, 24 Pitts. L. J. 185. Appeal, 44 Penn. St. 247. The mere * Wills v. Kane, 2Gr. 60. riving of a note expressed to be "for ' Commonwealth v. Evans, 74 Penn. money held in trust, will not render St. 139. the maker liable to arrest as a default- « Act 13 June 1836, P. L. 672 ; Purd. in? trustee. Dav v. Merchant, 1 Phila. 42, as explained by act 4 April 1837, 573 P. L. 378 ; Purd. 43. ^ Klein's Estate, 32 Leg. Int. 75 ; s. c. ' Snpra^^ 229 W N C 250. Gilchrist's Estate,- 6 ^Thesefer-- az. L. Reg. 57. 22 Februarv ' Beidler w. Howell, 8 Phila. 273; which is still control, Cochran v. Gowen, 9 Ibid. 299. Philadelphia 1 W l\r n 250 Gilchrist's Estate, 6 « These fees are prescribed by the act Luz ' L Rea. 57. 22 February 1821, 7 Sm. L. 368, 370, » Beidler w. Howell, 8 Phila. 273 ; which is still in force in the county of 142 COMMENCEMENT OF ACTIONS. § 246. Refu/rn-days. The day named in the writ for the defendant's appearance, and for the sheriff's producing the writ in court, is the re- turu-day. In this state, the return-days are fixed by law ; the judicial year is divided into terras, four in number, the first day of each term being a return-day. In Philadelphia, the terms commence on the firwt Mondays of March and June, the third Monday of September, and the first Mon- day of December ; and the duration thereof is not fixed by law ;^ the courts sit continuously, until the business of the term is disposed of; or until the Saturday preceding the commencement of the next term. In addition to the first day of term, the first Monday of each month is also a return-day for all process f so that there are two return-days in the month of September.^ Process may be made returnable either on the first day of the next term, or on the first Monday of any intermediate month, at the election of the party suing out the writ.* But he cannot thus pass over the first day of the term, and make his writ returnable to a subsequent return-day in that term, unless, perhaps, where the writ is issued within ten days of the commencement of a term.' The summons may issue within less than ten days before the commencement of the term, returnable to such return-day f but it cannot be issued on the return-day, returnable on the same day f and in a court whose terms are without fixed duration, a writ cannot be made returnable to the last day of term, as it may in other counties.* § 247. Service. The mode of complying with the mandate of the writ is called its service, which, in the case of a summons, means the manner of notifying the defendant of the action brought against him, and of the day fixed for his appearance in response thereto. With some exceptions provided by statute, the sherifi" cannot serve process beyond the bounda- ' By act 18 March 1875, P. L. 28, day of the next term, or on the first Purd. 2052, the judges of the several Monday of any intermediate month, the courts have power to make orders, fix- word " intermediate" being construed ing the number of the regular terms, to mean intermediate between the and the time for holding the same, exitus of the writ, and the first day And by act 11 June 1879, the courts of the next term ; and also on the may, by standing order, direct that all -words of the act of 1835, P. L. 88 • writs issued for the commencement of Purd. 495 ; that writs may be made re- actions, and all writs and process of turnable " to either of the said monthly every kind, at the election of the person return-days, which may happen before suing out the same, may be made re- the next term, or to the first return- turnable on the first day of the next day of the next term," at the option term, or on the second, third or fourth of the plaintiff. Monday of any intermediate month. 6 Kgher v. Potter, 2 Miles 147 But D ^"aJ-^ "^f ^ l*^^i®; ^F^' •?--,^-. a'^'l} «''<=«P' •" Philadelphia and Allegheny! f "ooQ^i """^.fL^^ ^P"^ ^^*^' ^- ^e'^e °i"«* ^^ «■' least ten days from J A ' -l- n J- o w ,vT ^^^ *este to the return of a summons. 'Association v. Gardiner, 2 W. N. Hatfield v. Swiler, 28 Penn. St. 522 • V. 95. g_ p J pga^rg J 30 ' c. ' ^f oi'y^^^o^?'^ l^*^' "* *"-P^"- " ' Dyo" w.'Pennock, 2 Miles 213. It See act 24 May 1878, ut mpra is otherwise as to a capias. Cashee v. ihis practice is grounded on the Wisner 2 Bro 245 words of the act of 1836, that writs ^ Thompson v. Patterson, 2 Miles may be made returnable on the first 146, SEBVICE OF PEOCESS. 143 ries of his bailiwick. If previously issued, he may serve a summons at any time on the return-day, without regard to the sitting of the court.' The act of 1836 has prescribed four modes for the service of a summons : (1) By reading the writ in the hearing of the defendant: (2) By giving the defendant notice of the contents of the writ, and by giving him a true and attested copy of it : (3) By leaving a true and attested copy at the defendant's dwelling-house, in the presence of one of the adult mem- bers of his family : (4) If the defendant reside in the family of another, by leaving a true and attested copy at the house in which he resides, with one of the adult members of the family in which he resides. And the sheriff must state in his return, not only the time, but the mode of service.^ § 248. If the sheriff read the summons in the hearing of the defendant, it is sufficient, without leaving a copy with him ;' though a return of ser- vice, by " reading and copy," is good f so is a return of service, by pro- ducing the writ and " making known " the contents to the defendant f but a return of " copy served personally on the defendant," is not a com- pliance with the directions of the act ;' nor is a return of " summoned by leaving a copy at the place of residence."^ Where the service is by copy, it must appear that it was " attested " by the officer.* And if the service be at the defendant's residence, the return must show that the copy was left with an aduU member of his family.' A return of service, by " leaving a true and attested copy at the counting-room of the defend- ant, with his agent or clerk," was set aside, on motion.^" But a return of service on the defendant, " by leaving a copy at his boarding-house, in the presence of one of the adult members of the family, and by leaving a copy at the store of the defendant, and by leaving a copy at the dwell- ing-house of the defendant's father, in the presence of adult members of the family," was held sufficient, although it appeared that the defendant, a few days before the service of the summons, had left the country, and gone on a temporary visit to Europe.'' Nihil habet is a good return to a summons.'^ A defective return of service will be set aside, on motion, leaving the writ to stand ;'' but an appearance, after an ineffectual motion to quash, will cure a defective service." § 249. Service beyona the county. In cases of trespass or nuisance on real estate, by non-residents of the county wherein such real estate is situated, the sheriff may to go beyond his bailiwick, into any other > Boyd V. Serrill, 2 Clark 327. Wood '» "Winrow v. Raymond, 4 Penn. St. V. Foster, cited Ibid. 328. Heberton v. 501. Stockton, 2 Miles 164. " Farnum v. Walton, Dist. Court., 2 Weaver v. Springer, 2 Miles 42. Phila., January 1847. MS. And see ' Kleckner v. Lehigh County, 6 Bujao v. Morgan, 3 Yeates 258. Whart. 66. " Sherer v. Easton Bank, 33 Penn. * Wilson V. Hayes, 18 Penn. St. 354. St. 134. 5 Skilton V. M^son,24 Leg. Int. 228. " Winrow v. Raymond, 4 Penn. St. " Lenore v. Ingram, 1 Phila. 519. 501. See Austin v. Brown, supra, ' Weaver v. Springer, 2 Miles 42. ? 240. 8 Bank V. Perdriaux, Bright. 67. " Smith v. Hewson, 1 Am. L. Reg. » Hiester v. Muhlenburg, 1 Leg. 441. Chron. 61. 144 COJIMENCEMENT OF ACTIONS. county, for the purpose of serving any process which may be issued out of the court of the proper county, in suits instituted for the recovery of damages, or abatement of the nuisance.' In such action, the plaintiff may recover, not only damages ibr the trespass to his property, but also for an asportavit of the goods and chattels, which constituted a part of the same act.^ § 250. Where executors, administrators, assignees or other trustees do not reside within the jurisdiction of the court having control of their accounts, proceedings may be instituted and suits brought against them, by creditors and others interested, and process may be served by the proper officers of such county, beyond the limits thereof, or upon any surety on their official bond, with like effect as if they resided within the jurisdiction. So also, equity process may be served beyond the proper county upon non-resident mortgagees and judgment-creditors, or their assignees or legal representatives, in suits to compel the entry of sat- isfaction, or to . open a judgment for the purpose of defence ; or such process may be served upon any resident agent or attorney of record of such party.' A subsequent act provides for the service of a scire facias to make executors or administrators parties to a pending suit, where they reside in another county, without the jurisdiction of the court.'' § 251. Non-residents of the county. It is provided by statute,^ that where any person or persons, being residents of this commonwealth, shall engage in business^ in any other county than the one in which he, she or they shall reside, and not being in the county at the time of the issuing of such writ or process, it shall be lawful for the officer charged with the service thereof, to serve any writ of summons, or any other mesne process, upon the agent or clerk of any such defendant, at the usual place of business or residence of such agent or clerk, with the same effect as if served upon the principal, personally.' Under this act, service must be made " at the usual place of business or residence " of the agent, and in no other way ; a return of personal service upon the agent is not suf- ficient.* ' Act 13 June 1836, ? 37, P. L. 579, through an agent, town-lots situate in Purd. 43, as amended by act 4 March the county in which the suit is broueht. 1862, P. L. 79 ; Purd. 44. By act 14 Vankirk v. Wetherill, 1 Leg. Gaz. 131. April 1851, P. L. 612, Purd. 43, the And see Gilbough v. KeUer, 3 W. N. same remedy is given, in actions by C. 78. mortgagees, for injuries in the nature ' The return must show upon its of waste, committed on the mortgaged face a legal service. Lehigh Valley premises. Insurance Co. v. Fuller, 81 Penn. St. Guffey V. Free, 19 Penn. St. 384. 398. Yeich v. Peterson, 2 Leg. Chron. » Act 27 March 1854, P. L. 214; 269. It seems, that the sheriff should Purd. 598. set forth in his return, that the defend- Act 6 April 1859, P. L. 384 ; Purd. ant is not a resident of, but is engaged ■^^J- . , , in business in, his bailiwick. Vankirk J Aot4Mayl852, P. L. 574; Purd. v. Wetherill, 1 Leg. Gaz. 131. And ^3- see Oulligan u. Russell, 2 W. N. C. 440. This means, engaged in merchan- « Lehigh Valley Insurance Co. v. dismg, manufacturing, or the pursuit Fuller, 81 Penn. St. 398. And see of the mechanic arts; it does not in- Culligan v. Russell, 2 W. N. C 440. olude one who merely offers for sale, The sheriff is not liable for a defective SEEVICE OF PEOCES8. 145 § 252. Noil-residents of the state. The act of 21 April 1858^ pro- vides, that when any person or persons, not being residents of this com- monwealth, shall engage in business in any county thereof, it shall and may be lawful for the officer charged with the execution of any writ or process issued out of any of the courts of this commonwealth, to serve the same upon any clerk or agent of such person or persons, at the usual place of business or residence of such agent or clerk, with like effect as though such writ or process was served personally upon the principal. "Under this act, there must be a personal service upon the agent, at his place of business or residence ; a service by leaving a copy at the agent's place of business, is not sufficient.^ The statute only applies to permanent non-residents, it does not authorize a service upon the clerk of a defendant, who is temporarily absent from the state, retaining the animus revertendi? § 253. Lunatics, The act of 1836* provides, that every writ for the commencement of an action against a person found to be a lunatic, shall be served on the committee of the estate of such person, or upon the committee of the person, if there be no committee of the estate; and proceedings may thereupon be had, in like manner as if ser- vice had been made upon the defendant, being of sound mind. Before the writ issues, there should be a suggestion of record, of the inquisition of lunacy, and of the name of the committee ; a writ against a lunatic, without such suggestion, is irregular, and the service of it void, even though made on the committee.' § 254. Corporations. By the act of 1836,^ every corporation, aggre- gate or sole, may be sued by writ of summons ; and in case of a corpo- ration aggregate (except counties and townships), service may be made upon the president or principal officer, or on the cashier, treasurer, secretary or chief clerk thereof, in the mode provided by the statute." Except when otherwise provided by statute, such service must be made at the place where the corporation is located.^ But in actions for dam- ages, arising from trespass or injury done by a corporation, if none of such officers reside within the county where the tort was committed, the service, if he obeyed the plaintiff's in- ' Lanahan v. Collins, 6 W. N. C. struotiona. Hamilton v. Lyle, 9 Phila. 253. 98. ■* P- L. 601 ; Purd. 986. • P. L. 403; Purd. 44. The act 2 ' Hulings v. Laird, 21 Peim. St. April 1856, P. L. 219; Purd. 43, re- 265. enacted by the act in the text, con- ' P. L. 579 ; Purd. 286. tained a proviso, that before final judg- ' Brobst v. Bank of Pennsylvania, 5 ment was entered, actual notice in writ- W. & S. 379. Nash »; Evangelical Lu- ing should be given to the party defend- theran Church, 1 Miles 78. See act ant, of such action, and the nature 4 April 1843, P. I,. 132; which, how- thereof ; proof of which notice must ever, is obsolete, since the passage of be made by the production of a copy the act forbidding the establishment thereof, and the oath or aifirmation of of branch banks, the plaintiff, or other person, to its ' The act 16 March 1833, P, L. 78 ; service. Purd. 286, authorized service upon the ^ Culligan v. Russell, 2 TV. N. C. toll-gathererof any corporation, next to 440. See Koecker v. Thompson, Ibid, the place where the damage complained, 487. of was compiitted_; butt tliis appears to-. VOL. r— 10 146 COMMENCEMENT OP ACTIONS. summons may be served upon any officer or agent of the corporation, at any office or place of business thereof, within the county ; or, if there be no such office or place of business, service may be made upon the president or other principal officer, cashier, treasurer, secretary or chief clerk, in any county or place where they may be found.* And if a suit against any corporation be brought in a county where its property is wholly or in part situated, and none of such officers reside or can be found in the county, service may be made 'upon any manager or director, within the county ; and in case no director or manager can be found within the county, the officer to whom the process is directed, may go into any county to serve the same ;^ and such service need not be a personal one, upon the officer.' So also, a suit may be brought against a corporation, in any county where it has an agency, or transacts any business ; and service of the summons may be made upon the president, cashier, agent, chief or any other clerk, any of the directors, or any agent of the company, within the county.^ Under these statutes, in a transitory action against a corporation, service of process upon the pro- per officer is good, wherever he may be found within the state.* The sheriff's return is conclusive as to the official character of the person upon whom the service was effected.^ § 255. In the case of a company incorporated by this commonwealth, but having its principal office for the transaction of business out of the state, or where its president, treasurer, cashier, or other principal officer, resides out of the state, suit may be brought where its works are located, or adjoining thereto, or where any director, manager or other officer of the company resides ; and service may be made upon such director, manager or other officer.' And in case the principal office of such com- pany be located out of the state, and none of the officers, upon whom process may be served, reside in the state, suit may be commenced be supplied by the act of 1836, except, 28. This act does not authorize the perhaps, as to proceedings before jus- commencement of a suit by a corpora- tices. tion, outside the place of its location, ' Act 13 June 1836, § 42, P. L. 579 ; by service upon a resident stockholder, Purd. 286. Lehigh Coal and Naviga- in its home jurisdiction. Hanover tion Co. V. Lehigh Boom Co., 6 W. N. Junction and Susquehanna Railroad C. 222. Co. «. Haldeman, 6 L. Bar 113. ^ Act 17 March 1856, P. L. 388 ; » Hughart v. Bedford and Bridgeport Purd. 287. Railroad Co., 2 Leg. Opin. 63. Lehigh ' Grub u. Lancaster Manufacturing Coal and Navigation Co. v. Lehigh Co., 1 W. N. C. 264. Boom Co., 6 W. N. C. 222. Eby v. * Act 8 April 1851, P. L. 354 ; Purd. Northern Pacific Railroad Co., Ibid. 287. A service upon the travelling 385. agent of an insurance company is not ' Commonwealth v. Catawissa, Wil- good, under this act. Parke v. Com- liamsport and Erie Railroad Co., 1 monwealth Insurance Co., 44 Penn. St. Pears. 341. See Liblong v. Kansas 422. See Cochran v. Library Co., 6 Fire Insurance Co., 82 Penn. St. 413. Phila. 492. The act 14 May 1874, P. Alexandria, Georgetown and "Wash- L. 146 ; Purd. 1847, provides for service ington Railroad Co. v. Brown, 17 WaU. upon the stockholders of a corporation, 445. in suits to enforce a personal liability. ' Act 11 April 1862, P. L. 449 ; Purd. See Brainard v. Stout, 8 Luz. L. Reg. 287. SERVICE OF PROCESS. 147 against such company, in any county where the business of such com- pany, at any time, was transacted, or its works or real estate were located. Ajid service may be made by publication of a copy of the process, in such newspaper as the court may direct, for six weeks prior to the return-day.' A suit against a foreign corporation may be commenced by the service of a summons upon any officer, agent or engineer thereof, either personally, or by copy, or by leaving a certified copy at 'jhe office, depot or usual place of business of the company.^ A writ of foreign attachment cannot be served upon the agent of a foreign corporation, so as to bind property in its hands as garnishee.^ Foreign insurance com- panies are required by law,* to appoint a resident agent, upon whom process can be served ; and service must be made upon the agent so des- ignated.' Service upon an agent sent to solicit risks, is not good ; nor is the sheriff's return conclusive of the agency, where it neither sets forth the character of the agent, nor the place or office where the service was made.^ § 256. Counties and townships. In suits against a county or town- ship, it is provided by statute, that process shall be served upon, and defence made by, the commissioners or supervisors thereof, respectively.' Service on two of the commissioners is good, although one of them had not taken the oath of offi.ee ; and, it seems, that service upon one would be sufficient.* § 257. Public debtors. Suits by the commonwealth against public defaulters, and their sureties, may be instituted by the attorney-general, in the court of common pleas of Dauphin county, in the same manner as if the defendants were residents of that county ; and process may issue into any county, and, at the same time, into several counties, to be trans- mitted by mail to the sheriff or coroner, whose duty it is to execute and ' Act 15 March 1847, ? 2, P. L. 361 ; Purd. 1798. Purd 286. ° Liblong v. Kansas Fire Insurance 2 Act 2i March 1849, §3, P. L. 216 ; Co., 82 Penn. St. 413. Diffenderfer v. Purd. 287. By act 15 ApriI1851,|24, North America Life Insurance Co., 5 P. L. 675 ; Purd. 43, the provisions of L. Bar, 25 April 1874. Under this act, this section are extended to stage com- a foreign _ insurance company may be panics, and all unincorporated jointr served with an attachment, as gar- stook companies, whose members do nishee. Darlington v. Rogers, 36 Leg. not reside within the state ; but service Int. 115. must be made upon the principal agent * Liblong v. Kansas Fire Insurance having charge of the business of such Co., 82 Penn. St. 413. Service may be company, in the county where any office made upon the resident agent of any may be located. It is competent for the other foreign corporation (other than legislature to provide for the commence- an insurance company), though it have ment of a suit against a foreign corpora- appointed and registered another person tion by such service. Weymouth v. as its authorized agent, under the act Railroad Company, 1 McArthur 19. 22 April 1874, P. L. 108 ; Purd. 1851. See Kennard v. Railroad, 1 Phila. 41 ; Retterly v. Howe Machme Co., 4 W. Patton V. Insurance Co., Ibid. 396, as N. C. 525. to what is a good service under this act. ' Act 15 April 1834, § 5, P. L. 538 ; ' State Fire and Marine Insurance Purd. 295. Co. V. The Oglesby, 1 Pears. 152. ' Kleckner v. Lehigh County, 6 « Act 4 April 1873, g 13, P. L. 27 ; Whart. 66. 148 COMMENCEMENT OF ACTIONS. return such process, in the manner provided in relation to testatum writs.' And this is now extended to all suits by the commonwealth against counties, corporations and all persons whatsoever.^ § 258. Publication. In some cases, the officer is required, by statute or rule of court, to make publication of the writ. Thus, as has been seen, in actions against a domestic corporation, whose principal office is located without the state, and all of whose officers are non-residents, he is required to make publication of the writ, in such newspaper as the court may direct, for six weeks prior to the return-day.^ So, in covenant for ground-rent, where there is no tenant in possession,* the sheriff is required to post a copy of the alias writ on some conapieuotis part of the premises, and also to publish it in one or more newspapers, in such man- ner, and for such time, as the court, by rule or otherwise, shall direct.' So, in suits for taxes, in Philadelphia,* and to enforce municipal claims,' the process is to be served, by posting on some conspicuous* part of the premises, for a certain time prior to the return-day, and by publication thereof. A return to a writ, ordered to be served by publication in cer- tain papers, that it was published " pursuant to the order of the court," is sufficient.^ § 259. Waiver. An irregularity in the service of a summons will be cured by a general appearance ; and, therefore, objections to the process or return, must be made before appearance, or they will be considered as waived ;'" so, after a writ of inquiry executed, judgment thereon, and a long acquiescence, it will not be presumed, that the summons was irreg- ularly served.^' But an appearance de bene esse reserves exceptions.'^ In Philadelphia, however, an appearance de bene esse is not allowed.'' § 260. IReturn. The return is an indorsement made on the writ, by the officer, specifying the time and manner of service, or the fact of non- service, which he is required to do, by the act of 1836.'* It should be precise in designating which of the four modes of service prescribed by • Act 16 April 1845, ^ 12, P. L. 535 ; Penn. St. 62. Philadelphia v. Wistar, Purd. 488. 2 W. N. C. 370. ' Act 7 April 1862. P. L. 304 ; Purd. ' Biddle v. Starr, 9 Penn. St. 461. A 489. See Commonwealth v. Hutchin- statute authorizing suit to be corn- son, 10 Penn. St. 466. menoed against a non-resident, by ' Supra, 1 255. _ . means of service by publication, being • If there be a tenant in possession, in derogation of the common law, must a copy of the alias summons must be be strictly pursued. Gray v. Larremore, served on him. 2 Abb. D. S. 542. • Act 8 April 1840, P. L. 249 ; Purd. "> Zion Church v. St. Peter's Church, 751. The rule of court requires, that 5 W. & S. 215. Dickerson's Appeal, 7 such writ be published in the Legal Penn. St. 255. Dewart u. Purdy, 29 Ibid. Intelligencer, and such daily newspa- 113. Sherer v. Baston Bank, 33 Ibid, per as the sheriff may choose, once a 134. Schober v. Mather, 49 Ibid. 21. week, for two successive weeks, prior to Large v. Bristol Steam Tow-boat Co., the return-day. Rule xxx. § 109. 2 Ash. 394. And see Cooper v. Mas- « Act 16 April 1845, § 5, P. L. 496 ; laughlin, 1 Pears. 166. Purd. 1087. " Morrison v. Wetherill, 8 S. & R. 502, ' Act 11 March 1846, § 3, P. L. 115 ; " Blair v. Weaver, 11 S. & R. 84. Purd. 1089. " Rule xxix. g 105. « See Philadelphia v. Edwards, 78 " P. L. 579 ; Purd. 44. EETUKN OF PROCESS. 149 the act, has been pursued ; therefore, the return " summoned by leaving a copy at place of residence," is not sufficient, because it does not appear from the return, which of the two modes of service, by leaving a copy, was followed.' If the officer be unable to serve the writ in one of the prescribed modes, he must return that fact. There is no prescribed form of a return in such a case ; nihil habet is a good return to a summons, when not served; non est inventus is properly applicable only to a capias? The return is conclusive as to the facts stated therein, in the suit in which it is made ; if defective, the sheriff must be ruled to amend it ;^ or the court will set it aside, on motion.* But, if good on its face, the court, on a motion to set it aside, will not admit extraneous evidence to contradict it f though a judgment -will be opened, and the defendant let into a defence, if he show, as an excuse for non-appearance, that the return was false, and that he never had notice of the proceeding.^ If the facts stated in the return be false, the remedy is, by action against the sheriff.' § 261. A return by the sheriff's general deputy, in the name of his principal, is sufficient ;' but a return in the name of the deputy-sheriff, is insufficient to authorize the entry of a default.' The sheriff will be per- mitted to amend his return, when the application is made in a reasonable time, and the return was made by a mistake as to a matter of fact, out of his personal knowledge.'" The sheriff has even been permitted to ' Weaver v. Springer, 2 Miles 42. A formal defect, however, in the return, as to the mode of service, is waived, unless the objection be promptly made. Cooper V. Maglaughlin, 1 Pears. 166. ^ Sherer v. Easton Bank, 33 Penn. St. 134. ' Zion Church v. St. Peter's Church, 5 W. & S. 215. Freeman v. Caldwell, 10 Watts 11. Flick v. Troxsell, 7 W. 6 S. 65. * Winrow v. Raymond, 4 Penn. St. 501. ^ Kleckner v. Lehigh County, 6 Whart. 70. Kennard v. Railroad 1 Phila. 41. Patton v. Insurance Co., Ibid. 396. " Kennard v. Railroad, 1 Phila. 41. ' Ibid. 8 Emley v. Drum, 36 Penn. St. 123. » Bolard ». Mason, 66 Penn. St. 138 '» Scott V. Seller, 5 Watts 235. In Anspach v. Carr, Dist. Court, Phila., 9 Dec. 1848, on a motion for leave to alter a return of "served" to '■'nihil habet," the court said : — " It appears clearly in this case, by depositions, that the sheriff, by mistake, served the sum- mons upon the wrong person. It may be, that he did not exercise due dili- gence to ascertain and serve it upon the right one ; if so, the plaintiff has his remedy against him, if he has suf- fered damage ; it is not right, that this judgment should be enforced, either against the person who really was not intended to be served, or the real de- fendant, who was served with no pro- cess ; and turn them round to an action against the sheriff. The case of Ibbot- son V. Tindal, 1 Bing. 156, cited and relied on by the plaintiff's counsel, and which comes nearest to the point before us, does not sustain his position. In that case, a capias was placed in the sheriff's hands against a defendant, who was clearly in custody under other process, but who subsequently escaped ; the sheriff had returned cepi corpus, but afterwards asked to be permitted to amend his return, by setting out the facts specially ; the court refused to do this, deeming the first return substan- tially correct. On the other hand, in Scott V. Seller, 5 Watts 235, in which it was recognised as the practice, that sheriffs, upon application made to the court, within a reasonable time, have been permitted frequently to amend their returns to writs, where it has been shown clearly that they were 150 COMMENCEMENT OF ACTIONS. amend his return, after the commencement of an action against him for a false return.^ The application for leave to amend, should be accom- panied by an affidavit of the grounds therefor f which, if denied, must be supported by depositions ;' and the amendment will be restricted to the grounds so laid.* An omission of the sheriff to indorse the return, is amendable f and a return to a foreign attachment may be amended.* If the mode of service be irregular, the proper form of the rule is, " why the return should not be set aside," not the service ; the service is an act en pais, with which the court have no concern ; they can only consider the record.' In such case, the return will be set aside, leaving the writ to stand.' A return may be made to the writ, to cure apparent irregu- larities, though several years have elapsed since the return-day.' § 262. Alias. Where the officer has failed to serve the writ, and has so returned, a second writ, called an alias, may issue. In strict practice, an alias should recite the mandate and return of the former writ; yet, an alias which is a mere transcript of the original, though docketed as an alias, will be sustained.'" An alias is, in general, looked upon as a con- tinuance of the original action ; thus, an alias summons, issued within six years after the original, may be connected with it, so as to save the bar of the statute of limitations ;*' but when judgment is obtained against one of several joint-debtors, upon whom alone the original is served, it is irregular, subsequently, to bring in the other joint-debtors, by alias, under the act of 1830 ;'^ a new suit should be brought against them." In some cases, such as sdre faaias, covenant for ground-rent, and actions for per- sonal taxes, in Philadelphia, when the original and alias are both returned nihil, it is equivalent to service.'* made through mistake in regard to ' Winrow ». Eaymond, 4 Penn. St. some matter of fact, which might not 501. be within their own notice, Judge Ken- ' West v. Nixon, 3 Gr. 236. nedy puts the very case of the arrest '" Davidson v. Thornton, 7 Penn. St. and return of the wrong person, as de- 128. fendant, as within the rule." And " McClurg v. Fryer, 15 Penn. St. see Reiif v. Insurance Co., 2 W. N. C. 293. Logan v. Green, 1 Pitta. 43. An 383. alias cannot be engrafted upon an orig- ' Justice Building Association v. inal summons, which has been returned Battles, 2 W. N. 0. 492. " not served, by order of plaintiff's at- ^ Lowry v. Coulter, 9 Penn. St. 353. torney." McCann v. Hosie, 1 Lack. L. Scott V. Seller, 5 Watts 242. Rec. 19. But, in Philadelphia, it is ' Justice Building Association v. held, that an alias may be founded on Battles, ut supra. an original, not taken out of the office. * Lowry d.- Coulter, 9 Penn. St. 353. Herz v. Weil, 2 W. N. C. 50. ^ Dewar v. Spence, 2 Whart. 211. " p ^ 277 ; Purd. 826. * Maris v. Shermerhorn, 3 Whart. " Myers v. Nell, 84 Penn. St. 369. 13. " Warder v. Tainter, 4 Watts 270. ' Patton V. Insurance Co., 1 Phila. Chambers v. Carson, 2 Whart. 365 396. Taylor v. Young, 71 Penn. St. 81. PROCESS IN REAL ACTIONS. 151 IV. Summons in real actions. § 263. The actions of dower, partition, ejectment, waste, nuisance, and all other pleas of land, may be commenced, either by agreement of par- ties, as in personal actions, or by writ, in any court of the county where the lands or tenements in question are situate, having original jurisdiction thereof' If the tract of land^ or other single tenement, which is the subject of controversy, be situated in different counties, the action may be commenced in either of them.'' But, in such case, if suit be com- menced in one of such counties, no other action, between the same par- ties, for the same cause, can be instituted in any other county, during the pendency of such suit.* The practice in real actions will be treated in the second volume, under the respective titles ; the subject of the present chapter will be merely the process for the commencement of real actions, its form, nature, service and return. § 264. The form of the writ, its manner of service, and the return, are, in general, the same as in personal actions.* But where the defendant is a minor, the service is to be as follows: (1) If the defendant has a guardian of his estate, the service is to be made upon such guardian, in the usual manner : (2) If the defendant is above the age of fourteen years, service is also to be made upon him, in the same manner as in case of an adult : (3) If the defendant is under fourteen years of age, and has no guardian of his estate, service is to be made, in the usual way, upon his next of kin, residing in the county where the defendant resides. But whenever the defendant shall not have a guardian, it is the duty of the plaintiff, upon or after the day when he might take judgment by default, if the defendant was an adult, and before any plea pleaded, or rule taken in the action, to make application to the court where the action is pending, for the appointment of a guardian ad litem, unless the defendant has already appeared by guardian ; and upon such appoint- ment being made, to give notice to the person appointed.' § 265. To obtain the appointment of a guardian ad litem, present a petition to the court, in the following form : In the Court of Common Pleas No. 4, for the county of Philadelphia. Adam Jones ) Of March term 1879, V. V No. 750. John Jones and Kichard Jones, a minor, j Partition. To the Honorable the Judges of the said Court. The petition of Adam Jones, the plaintiff in this action, respectfully represents : That the above- named Richard Jones, one of the defendants, is a minor, under the age of fourteen years, and has no guardian ; that service of the writ in said action has been duly made upon Eobert Jones, the uncle and next of kin of said minor, residing in the city and county of Philadelphia, which is also the residence of said minor ; that the day on which judgment by ' Act 13 June 1836, 1 79, P. L. 587 ; » Ibid. § 81. Purd. 55. ' Ibid. ? 82. Mbid. 280.^ 'Ibid. 283. 152 COMMENCEMENT OF ACTIONS. default might have Deen taken against such minor, if he was of full age, has passed. Your petitioner, therefore, prays the court to appoint a guardian ad litem for such minor. And he will ever pray, &c. If the minor be above the age of fourteen years, the petition should state that "service of the writ has been duly made on such minor." The petition should be verified by affidavit; and upon presentation to the court, an appointment will be made, in the following form : " And now, this seventh day of April 1879, the petition of Adam Jones being duly read and considered, the court, on motion of A. B., Esquire, of counsel for the plaintifi", appoint Robert Jones guardian ad litem of the said Richard Jones." Notice in writing must be given to the guardian ad litem, of such appointment. § 266. Partition and dower. Service of a summons in partition, on parties resident in the county where the land lies, must be made, person- ally, or by leaving a copy at their place of abode, at least twenty days before the return-day ; and on parties residing out of the county, by publication in such newspaper as the court may direct, for six weeks prior to the return-day.' The act of 1836, with respect to service upon minor defendants, only extends to a personal service ; a non-resident minor defendant may be served by publication.^ The court is not required, in any way to pass upon the question of title in such non-resident defendant, before making an order of publication.' Service of a summons in parti- tion may be made upon the committee of a lunatic defendant.* If the lands lie in more than one county, service of process in dower and par- tition, may be made by any sheriff where the real estate to be divided or recovered is situated, or any defendant may be found.* § 267. Ejectment. Where it appears to the sheriff, on the service of a writ of ejectment, that other persons, not named in the writ, are in pos- session of the premises, or a part thereof, it is the duty of the sheriff to add the names of such persons to the writ, and serve them ; and on the return, it is the duty of the prothonotary to add such additional defendants to the action, and they become parties thereto.* And such parties may be added, after statement, plea, verdict and judgment.' But the plaintiff may waive proceeding against the parties so added.* In ejectment by a vendor, to enforce specific performance of a sale of land, on which no person resides, the writ may be served on the vendee or vendees, or per- sons claiming under them;' but if such vendee cannot be found by the sheriff, a rule may, after the return-day, be made on the defendant ' Act 11 April 1835, ? 4, P. L. 200 ; tion, and of the affidavit ofj)ublication, Purd. 1115. will be found in Smith's Forms 40-1, ^ Girard Life Insurance Co. v. Far- pi. 2-3. mers' and Mechanics' Bank, 57 Penn. « Act 13 April 1807, ? 2: 4 Sm L. St. 388. 476; Purd. 533. » Biddle V. Starr, 9 Penn. St. 461. ' Irish v. Scovil, 6 Binn. 55. * Snowden v. Dunlavey, 11 Penn. » Freedly v. Mitchell, 2 Penn. St St. 522. 100. 6 Act 20 February 1854, P. L. 89 ; » Act 14 April 1851, ? 11, P. L. 614 : Purd. 1113. See vol. ii.,H815. Forms Purd. 533. ' of the return to a summons in parti- PROCESS IN EEAL ACTIONS. 153 (describing the premises) to appear and plead ; which rule is to be published, sixty days before the return-day thereof, at least three times ; and if the defendant do not appear, judgment by default may, on proof of the pub- lication, be given against him. This has been extended, by a subsequent act,' to all cases in -which claimants or mortgagees may desire to bring actions of ejectment for unseated or unoccupied lands, and the adverse claimant or mortgagor does not reside in the county where the lands are situate, and has no known agent or person having charge or superintend- ence of such lands residing therein. The same act provides that, before trial or judgment, it must be made to appear to the satisfaction of the court, that the defendant had actual notice of the suit, in time to appear and defend ; and in ease of a corporation, such notice may be given to the presi- dent or chief officer. This provision for actual notice extends as well to cases brought under the act of 1851, to enforce specific performance of a contract, as to suits under the act of 1858.^ If the defendant have a known agent, having charge of the land, service may be made upon such agent ; actual notice being also given.^ And similar proceedings may be had against an absent purchaser at a tax sale.* § 268. Service in another county. Where the tract of land, or other single tenement, which is the subject of controversy, is situate in difierent counties, and the action is commenced in either of them, the sheriff of the county in which the writ issues, may execute it, and all other process, whether original or final, issued in such action, in like manner, and with like effect, as if the counties where the land lies were within his proper bailiwick.'' And whenever service may be lawfully made upon a defendant, out of the county in which the action is com- menced, the sheriff of the county in which such defendant resides, or is found, has, by virtue of his office, within his county, the power of a deputy to the sheriff of the county in which the writ issued, for the pur- pose of executing such writ, without any special deputation for the purpose.^ But this provision is confined to actions in regard to lands lying in two counties, where the suit is commenced in one of them, and it is necessary to serve the writ upon a non-resident ; it does not author- ize the commencement of an ejectment, by serving a writ upon the defendant, in a county where no part of the lands lie.' § 269. Publication. As a general rule, whenever, in a real action, the defendant in interest is unknown, or cannot be found, publication of the writ is required by statute ; as, we have seen-,^ in reference to the action of partition, by the act of 1835 ; and in ejectment, in certain cases.' And, in partition, if it appear, on oath or affirmation, that the names or > Ant 13 Acril 1858, P. L. 256 : Purd. 291 ; Purd. 533. 534 ^"^ ^^ ^P" ' ' ^ Act of 1836, 1 80, P. L. 587 ; Purd. 2 Haslett V. Foster, 46 Penn. St. 55 471 Roberts B. Orr, 56 Ibid. 176. See Mbid. ? 88. Davidson « Barclay: 63 Ibid. 406. ; Bellas v. Houtz, 8 Watts 373. 3 Act 18 April 1853, P. L. 467; f"?.^"' ^ 266. Purd. 533. . ,. „ « T ^ * Act 29 March 1824, §4 ; 8 Sm. L. 154 COMMENCEMENT OF ACTIONS. residence of any of the parties are unknown to the plaintiff, the court may direct notice to be given to such parties, by publication in one or more newspapers, describing the parties as far as practicable, as shall appear to the court reasonable and proper ; and the proceedings shall be as effective, to all intents and purposes, as if all the parties had been named in the proceedings.' The omission of the Christian name of one of the defendants, does not affect the jurisdiction, where the writ is served by publication.^ § 270. Bail and appearance. Where damages are recoverable in a real action, and the defendant would be liable to arrest in a personal suit, he may be held to bail, or required to give security for the damages and costs ; and judgment may be had against him for default of appear- ance, without other process.^ The defendant in an ejectment cannot be required to give security, for the mesne profits to be recovered in the action, by way of damages.* 1 Act 25 April 1850, § 9, P. L. 571 ; St. 388. Purd. 1115. ' Act of 1836, ?§ 85, 87. * Girard Life Insurance Co. v. Far- * Young v. Cooper, 6 W. N. C. 206. mers' and Mechanics' Bank, 57 Penn. CHAPTER VI. Appearance and Entry of a Default. I. Appearance, §271. » Entry of a common appeai-ance, Entry of an appearance, § 271. § 277. Effect of an appearance, § 272. Nature of a judgment by default, Appearance de bene esse, §273. §278. Several defendants, § 274. Time of appearance, § 274. HI- Opening of a default, § 279. "Withdrawal of appearance, 2 274 Wben a default will be opened, ' * ■ § 279-80. n. Entet op a default, § 275. Grounds for opening a default, When a default may be entered, § 281—2. § 275. Imposition of terms, § 283. When the plaintiff entitled to a de- Practice, § 284. fault, §276. I. Appearance. § 271. It is the duty of a defendant, who has been regularly served, to enter an appearance, either personally, or by his attorney, upon the docket of the prothonotary. The rules of court provide that appear- ' ances shall be entered, by a paper filed, and indorsed by the prothono- tary, or one of his clerks, with the time of filing the same.^ An appearance may be entered in the following form : In the Court of Common Pleas No. 1, for the county of Philadelphia. Adam^ Jones | Of March term 1879, Eichard Smith and Thomas Jenkins. j I appear for the defendants (or for Richard Smith, one of the above- named defendants, as the case may be). A. B. Where one appears by attorney, the name of the attorney should be entered of record ; when a party appears in person; it is only necessary that some act should be done, admitting that he is regularly in court, and bound to answer to the writ : an appeal by a defendant from an award, is such an act f so is the filing of an affidavit of defence, in per- son.^ But an acceptance of service by the defendant, or his attorney, is not deemed an appearance ;* nor is the mere acting by an attorney in the cause, for the defendant — as, the making of a motion to set aside a default — an appearance for such defendant.* The entry of an attorney's * Rule xxix. § 105. the within writ, and appear for the ^ Weaver v. Stone, 2 Gr. 422. defendant." Where an appearance is ' Morton v. Hoodless, 1 Miles 46. indorsed on the writ, it is the duty of * 2 Nott & McCord 548. But see the prothonotary to enter it upon the Crosby v. Massey, 1 P. & W. 231. An docket. Ross v. Hubble, 1 Gaines 512. acceptance of service should be in the * Chahoon v. Hollenbaok, 16 S. & following form : " I accept service of R. 425. (155) 156 APPEAEANCE AND DEFAULT. name on the margin of the docket, is not a sufficient appearance, where, by the practice of the court, an appearance must be made in the docket.^ § 272. If an attorney enter his appearance, without restriction, oppo- site the names of two defendants, in the docket, this is a good appearance for both, though one of them be not served with process f and, in such case, there may be a judgment against all of the defendants.* It is optional, however, with the plaintiff, to treat a general appearance as one only for those defendants who were served f and, by leave of court, a general appearance may be restricted to one only of the defendants.' A defendamt, not served, has a right to appear ; and, in such case, there must be a general judgment against all of the defendants who have appeared.^ But an appearance to a writ which has been returned tarde venit, is a nullity, unless the plaintiif accept the appearance.' In a suit against husband and wife, not respecting her separate estate, the husband has power to constitute an attorney to appear for both of them.* So, an appearance by a corporation is binding on the shareholders.' I 273. By a practice peculiar to the courts of this state, the defendant is allowed to enter an appearance de bene esse, conditionally, that is, if the writ be returned served ■^'' after such an appearance, the defendant may apply to have the writ or service set aside, for his appearance de bene esse was, provided it was a good writ and good service ; if the writ and service be good, the party is considered in court, unless, on or before the return, he enter a retraxit of his appearance ; an appearance de bene esse is sufficient to prevent a judgment by default." The practice is, to enter an appearance de bene esse, and ask the judgment of the court as to the legality of the service." In Philadelphia, however, it is provided, by rule of court, that no appearance de bene esse shall be allowed ;'* in this county, therefore, if there be a defect in the service, the defendant must first apply for a rule to show cause why the return should not be set aside. § 274. Where there are several defendants, it may happen, that some are not served, and that, of the others, some do not appear. In such case, the regular mode of proceeding is, to take judgment by default against those served, but not appearing, and to proceed in the cause ' Lyon V. Waldron, 13 S. & R. 164. 402. McCullough v. Wilson, 21 Ibid. ^ McCullough V. Guetner, 1 Binn. • 436. Morris v. Garrison, 27 Ibid. 226. 214. Scott V. Israel, 2 Ibid. 145. Hall '■• Philadelphia v. Olive Cemetery V. Law, 2 W. & S. 121. Co., 6 W. N. C. 238. » Hatch V. Stitt, 66 Penn. St. 264. '» Bolard v. Mason, 66 Penn. St. See the dissenting opinion of Agnew, 138. J., in 18 Pitts. L. J. 170. " Blair v. Weaver, 11 S. & R. 84. ' Lentz V. Stroh, 6 S. & R. 34. Erd- Judge Duncan said, in this case, that man v. Stahlnecker, 12 Ibid. 325. the practice was borrowed from the ' Jones V. Drum, 5 Rawle 249. Gers- filing of a declaration de bene esse, tie V. Grubb, 18 Leg. Int. 173. , and that he had (in 1824) known it to * Mosher v. Small, 5 Penn. St. 221. prevail for more than forty years. ' Davidson v. Thornton, 7 Penn. St. " Winrow v. Raymond, 4 Penn. St. 128. 501. Bank v. Perdriaux, Bright. 68. 8 Evans v. Meylert, 19 Penn. St. " Rule xxix. J 105. ENTRY OF DEFAULT. 157 against those who do appear.^ It would be erroneous to go on to trial, without first taking judgment by default against the delinquents.^ For- merly, in the case of a joint contract, by proceeding against the defendants who were served, the plaintiff would have lost his remedy against the other joint-contractors, not served ; but this has been remedied by legis- lation,' which reserves the right to recover in a new action against those not originally served. In Philadelphia, to prevent the entry of a default, an appearance must be entered within fourteen days after the service of the writ, though it may not have been served ten days before the return-day.'' But if the plaintiff omit to enter a default, an appearance at any time is sufficient to prevent it. If an attorney appear for the defendant, and plead to issue, and afterwards, by leave of the court, the appearance and pleas are withdrawn, the case stands as if there had been no appearance.^ n. Entry of a default. § 275. If the defendant do not appear in court, in compliance with the mandate of the writ, he renders himself liable to a judgment against him for his default. This judgment is not merely founded on an im- plied confession of the defendant that the plaintiff's claim is just, but it is a penalty imposed on him for non-compliance with the terms of the summons ; and it is so viewed by the court, in the exercise of its power of opening or setting aside the judgment, to let the defendant into a defence on the merits. A judgment for want of an appearance cannot be entered in an action of replevin f in such case, it is provided, by rule of court, that the plaintiff, having filed his declaration, may file a com- mon appearance for the defendant, and proceed in the cause, by ruling him to plead, as in other cases.'' But, on appeal from a justice, a default may be entered for want of an appearance, if the defendant cannot be found, in order to serve a rule to plead.^ § 276. The act of 1836 provides, that if the defendant shall not appear ' Bennet v. Reed, 10 Watts 396. This, in England, is the first day of the Marshall v. Gougler, 10 S. & R. 164. term on which the court sits for busi- * Nelson v. Lloyd, 9 Watts 22. Mar- ness, except in Trinity term, when the shall V Lowry, 6 S. & R. 281. court, by act of parliament, does not sit » Acts of 6 April 1830, P. L. 277 ; till the fifth day. Tidd 107. With us, and 11 April 1848, P. L. 536 ; Purd. the practice of taking judgment on the g26. fifth day, or Saturday, has resulted from * Foster v. Reynolds, 1 Phila. 241. the fact of its being the first general Buckley c. Eastman, Dist. Court, Phila., motion-day ; but a judgment entered on 8 Sept. 1849. Rule to set aside judg- Friday is, nevertheless, regular. Ap- ment. Per curiam. The summons plying the same rule to the case before was served on the 2d July, and the us, judgment on the 14th day, exclu- iudgment signed in the office on the sive of the day of service, was not prema- 14th day, according to our practice, ture. See Fishers. Potter, 2 Miles 148. adopted in conformity to the practice ^ Michew v. McCoy, 3 W. & S. 501. where the service was required to have Dubois v. Glaub, 52 Penn. St. 238, 242. been ten days before the return, and ^ Crofut v. Chichester, 3 Phila. 457. the English rule, which, ex gratia curid ' Rule xxxiv. § 114. allowed the party until the fourth day * Foelker v. Cunningham, 1 W. N. after the return-day — quarto die post. C. 444. 158 APPEARANCE AND DEFAULT. at the return-day, and the officer shall make return that the writ waa served ten days before the return-day, the plaintiff, having filed his declaration, may take judgment thereon, for default of appearance, according to the rules of practice established by the court. And if the writ be not served ten days before the return-day, and the defendant shall not appear, ten days after the service, the plaintiff, having filed his declaration, may take judgment, at a subsequent day in term. Under this act, to entitle a plaintiff to judgment by default, he must have filed his declaration, within the time ptescribed by the statute ;' that is, before the return-day.^ A default cannot be entered, until the expiration of full fourteen days from the time of service f nor, in case of substituted ser- vice, until the expiration of fourteen days from the return-day.* After three years' delay, a default cannot be entered, without notice.^ A judg- ment by default, without filing a declaration, though erroneous, cannot be treated as a nullity.^ The proper practice is, to enter a default in the office of the prothonotary ; it is an office judgment.' This may be done in the following form : In the Court of Common Pleas No. 1, for the county of Philadelphia. Adam Jones "j V. I Of March term 1879, No. 571. Thomas Jenkins. j Enter judgment against the defendant, Thoinas Jenkins, for want of an appearance, see. leg. To C. D., Esq., A. B., Prothonotary. Attorney for plaintiff. 10 March 1879. § 277. If the defendants do not appear before the quarto die post, and the plaintiff have not filed his declaration, within the time prescribed by law, this does not amount to a discontinuance of the action ; the plaintiff may still proceed, as if he had declared at common law,' by ruling the defendant to plead,' and serving him with a copy of the declaration, as ' Foreman v. Schricon, 8 W. & S. by the plaintiffs attorney, in the office. 43. Black v. Johns, 68 Penn. St. 83. It Has been objected, that it is irregular ^ Dennison v. Leech, 9 Penn. St. 164. on that account ; we are, however, of Kohler v. Luckenbaugh, 84 Ibid. 258. a different opinion. It is the most con- Thomas V. Lance, 3 Luz. L. Reg. 92. venient and proper practice, to take Hiester v. Muhlenburg, 1 Leg. Chrou. such a judgment, as well as a judgment 61- . for want of a plea, in the office ; the Association v. Gardiner, 2 "W. N. C. prothonotary is entirely competent to 95- see that such a judgment is not entered, ^ Phipps V. Cresson, 2 W. N. 0. 334. where, in point of fact, there is an ap- » Hersch v. Groff, 2 W. & S. 449. pearance or a plea. » Haven v. Campbell, 4 W. N. C. 216. » Foreman v. McFerrin, 13 S. & R ' Sheerer v. Adams, Dist. Court, 290. Phila., 6 March 1848. Why judgment » Marberry v. Freno, 3 W. N. C. 563. should not be opened. Per curiam. It would seem to be more regular first This was a judgment taken for want to enter a common appearance for the of an appearance, which was entered defendant. See Col. & Gaines 3 n ENTRY OF DEFAULT. 159 prescribed by rule of court.^ But if the defendant liave removed from the jurisdiction, or cannot be found, in order to serve him with a rule to plead, the plaintiff's only recourse is, to file a common appearance, and enter a rule to plead, on or before the quarto die post of the next term, of which the defendant is bound to take notice. The right to enter a common appearance for the defendant was first given by the statute 12 Geo. I., c. 29, which, though not reported by the judges to be in force in this state, appears to have been silently adopted in practice. This statute provides, that "in case the defendant shall not appear," within the time prescribed by law, " the plaintiff, upon making and filing an affidavit of the personal service of such writ or process, may enter a common appearance for the defendant, and proceed thereon, as if such defendant had entered the same." This practice is recognised by the act of 1725,^ and by the supreme court, in Michew v. McCoy ,^ in which Chief Justice Gibson says, that a judgment for want of an appearance is un- known to the common law, and can only be supported under the provi- sions of some statute. The common appearance is entered in the usual form, with the addition of the words " pursuant to the statute." The first rules of the district court, which gave the rule to plead, on four weeks' notice, where the defendant's appearance was recorded, also pro- vided that rules to declare and plead might likewise be taken at the set- tlement of' the docket, according to the usual practice.^ And this, it would seem, may still be done, in case of a common appearance, and judgment taken at the quarto die post of the succeeding term, without fiirther notice ; though it would be advisable, to post a notice to plead in the prothonotary's office.' § 278. A judgment by default for a greater sum than is declared for, is erroneous, and cannot be cured by an amendment of the narr.^ If there be nothing to indicate the amount, it is interlocutory, in the first instance ; and only becomes final, when the amount is settled and entered on the record.^ The court may, in its discretion, amend a judgment by default; and the exercise of such discretionary power will not be reviewed on error.* The time and manner of filing a narr., of appearing and pleading by defendant, and of signing judgment for want of a plea, are matters of practice, regulated by the rules and practice of the court, and any irregularities therein are to be remedied by application to the court, whose rules or practice are supposed to have been violated ; and the person complaining of the irregularity must apply promptly for redress.' • Rule xxviii. ? 102. '^fw-,,- tt iv ^w ^ « 2 1 Sm. L. 165. Philhps v. HeUmgs, 5 W. & S. s 3 W."& S. 503. 44. See McCune v. Hogan, 3 Pitta. L. * 2 Bro. app. 7. J- 70. s See Melchior v. Ralston, 2 Teates ^ Latshaw v. Steinman, 11 S. & R. 154 Jeisley v. Haiter, 4 Ibid. 337. 357. 3 Chit. Gen. Pr. 289. Tidd 242. » Crosby v. Massey, 1 P. & W. 229. « Dennison v. Leech, 9 Penn. St. IGO APPEARANCE AND DEFAULT. m. Opening of a default. § 279. A. default may be opened, for one or other of two reasons : (1) Because of some formal irregularity in its entry — as, for instance, where the plaintiff has neglected to file his declaration : (2) Because of some good defence, upon the merits of the cause, resident in the defendant, which, by his own neglect or carelessness, or ignorance of the fact of the existence of the suit against him, he has been deprived of the power of set- ting up, and which, in justice, he ought to have the opportunity of estab- lishing before a jury. In the first case, the default will be set aside for irregularity ;' in the second, the judgment will be opened, to let the de- fendant into a defence on the merits, leaving the judgment to stand as security.^ If a default and appearance be entered on the same day, the default will be set aside.' § 280. A default will not be opened, as of course ; some good excuse must be shown by the defendant.^ Thus, for example, though a default has been regularly entered, yet, if the defendant comes into court with the excuse that he was absent from home at the proper time for appear- ing, he will be permitted to have the judgment opened, upon disclosing a good primd facie defence ; so, where a judgment has been entered, and regularly, upon two returns of nihil, the defendant, if he comes before the court with an affidavit of a legal defence, will be given the opportu- nity of establishing it before a jury. So also, a default will be opened, on an affidavit that the defendant was not served with process.' § 281. The court has power to open a judgment for default of appear- ance, after the expiration of the term." There is no limitation of its power to do so ; otherwise, irreparable injury might be done to a defend- ant, who was entirely ignorant that any proceeding had been instituted against him.^ But, as a general rule, a default will not be taken off, unless the defendant come in promptly, and excuse it.* If, however, the ' Saylorw.Moms,2Leg. Chrou. 231. ' Peacock v. Keystone Mutual Life Marshall v. Dennison, 2 Luz. L. Eeg. and Health Insurance Co., 1 Pears 87. 132. '' In Sheerer v. Adams, Dist. Court, * McQuillan v. Hunter, 1 Phila. 49. Phila., 6 March 1848, the court said : — * Tatham v. Austin, 1 W, N. C. 96. It has been the uniform practice of this ' Riegel v. Wilson, 60 Penn. St. court to open even regular judgments 388. See Smyser v. Brooks, 1 Pears. by default, where the defendant comes 228. Bull «. Nicholson Ibid. 285. in promptly, excuses his default, and ' Breden v. Gilliland' 67 Penn. St. shows that he has a defence. Here, the 34. And see Kalbaoh v. Fisher 1 defendant says, he was absent from Rawle 323. Pereival e. Fuller 5 W. home at the proper time for appearing ; N. C. 273. ' and though he was served before he " In May b. Sharp, Dist. Court Phila went away, that he was detained unex- 23 Sept. 1848, the court said : It is pectedly; he has also sworn to a de- true, that inordinary cases of judfment fence. The plaintiff here has lost noth- by default, for want of appearance mg ; he could not have had a trial ; the the court will open the judgment upon judgment will stand as security for a sufficient affidavit of defence and ex- what may ultimately be recovered ; and cusing the default, without goino; into the defendant must pay the costs of the the question of merits. But that is execution. where the application is made within OPENING OF DEFAULT. 161 defendant come forward in a reasonable time, and make a proper excuse for his non-appearance, it is the settled practice, to open the judgment, and let him into a defence.' And an application of this kind, made by a garnishee in attachment, is looked upon with even greater favor, than where the original defendant has suffered a default.^ The courts have always dealt with liberality towards garnishees against whom a judg- ment by default may be entered.' § 282. A default will be opened, to let in a plea of bankruptcy, if excused ;* and also, it seems, to let in a plea of the statute of limitations, which is no longer considered an unconscionable defence.® And a judg- ment of revival, entered on two nihiU, has been opened, on the ground a reasonable time, when, if the appear- ance had been entered, the plaintiff, in the ordinary course of the court, would not have had a trial. Here, however, more than two years have elapsed, since the judgment was ren- dered. The allegation of the defend- ant's affidavit, that he was incapable, from intemperate habits, of attending to business, at the time the settlement was made, and notice given upon which the suit was brought, is not sustained by the deposition. 1 Emerson v. Knight. 1 Phila. 121. Martin v. HaU, Ibid. 233. " Nicholson v. Fitzpatriok, 2 Phila. 205. In Carlin v. Cavenaugh, Dist. Court, Phila., 18 March 1848, the court said : — This was an attachment of exe- cution, which, upon the 24th December 1847, was served on the Franklin Fire Ins. Co. No appearance was entered, and upon the 28th February 1848, a judgment was rendered against the garnishees for want of appearance. The affidavit shows a defence by the gar- nishees, and the application by them to open the judgment is in time. It is barely possible, that the plaintiff, by waiving interrogatories, could have had a trial at December term ; but it is not the ordinary course. Besides, the court will exercise more liberality in favorof a garnishee (who is a stranger, and in- volved in a litigation between the de- fendant and his creditors, without any default on his part) than of an original party. ' Wray ». Winner, 1 Phila. 336. Small V. Hurlbut. Dist Court., Phila., 10 March 1849. Why judgment should not be opened. Per curiam. This was attachment of execution, and judgment by default was entered against the gar- nishee for want of appearance. '''■ '° VOL. I. — 11 ft the practice of the court, in all cases of judgment by default, to open them, where the defendant comes in promptly, makes some excuse for his default, and shows a good defence. The court is even more liberal in regard to garnishees than other defendants ; for they are strangers to the controversy, and made parties to a law-suit, from the mere fact that they happen to have, or the plain- tiff supposes they have, money which belongs to the defendant, and which, if they have, they may be ready and willing to pay, on demand. Here, the garnishee says, he knew neither of the parties, had no knowledge of defendant, and, of course, no knowledge of any money belonging to him, in his hands. In point of fact, the allegation is, that he is the maker of a promissory note, of which the defendant is the holder, which might very well be, without gar- nishee knowing it. The excuse for not appearing is, indeed, a very slight one — perhaps, badly expressed, viz., that it was more from inadvertence, than any other cause, that he did. not appear. But we are never very strict in these cases ; the neglect or inadvertence of counsel has, time and again, been ad- mitted as an excuse, and we see not why the same privilege should not be allowed to the party, where, as here, he is not sued for a debt or tort of his own, but dragged into a controversy between other persons. Rule absolute. * Commonwealth v. Huber, 3 Clark 383 6 Ekel V. Snevily, 3 W. & S. 273, Gib- son, C. J. The court will not open a judgment to try a disputed set-off, which may be subject of an independent suit. Worthline v. Bisbing, 1 W. N. C. 92. 162 APPEAEANCE AUD DEFAULT. of the presumption of payment, arising from the lapse of twenty years.* But a default will not be opened to let in a plea of infancy, when the defendant was of full age, at the time it was taken.^ And the court has ' jMaitland v. MoGonigle, Dist. Court, Phila., 17 June 1848. Per curiam. This was a judgment obtained upon two returns of nihil to a sci. fa. to re- vive a judgment. The judgment was originally entered upon a bond and warrant of attorney, upon the 30 De- cember 1816, against John and Ber- nard MoGonigle. This was revived by'a sci. fa. returned, "made known," and a j udgment by default, for want of appearance, 26 July 1822. It was again revived by a sci. fa., and a judgment taken upon two nihils, upon the 20 May 1825. The sci. fa. upon the judgment which we are now asked to open, was issued upon the 29 Decem- ber 1847. In the meantime, John, one of the defendants, died — say in June 1827. The courts will always open a judgment upon two returns of nihil, where timely application, after knowl- edge, is made by defendant, and a prob- able prima facie defence is made out. Here, even from the last movement in the cause, the motion to set aside the alias fi. fa. levied upon the goods of John McGonigle, the deceased defend- ant, which motion was made 13 June 1827, more than twenty years elapsed. This is a legal presumption of pay- ment. If we refuse to open this judg- ment, the defendant will be debarred from a perfectly legal defence, and, from aught that appears, and we can possibly know, from loss of vouchers and death of witnesses, a perfectly just defence ; and that, too, without any fault or negligence on his part. He has resided, during all this period, in another country. It is true, that there is a short note of a case, decided in the common pleas of this county, in 1788 (Brown u. Sutter, 1 Dall. 239), in which President Shippen is reported to have said, that the court would never open a regular judgment to let in a plea of the statute of limitations. It was held, however, in this court, in 1813, during the presidency of Judge Hemphill, in Dutilh ». Miller, 2 Bro. 311, that the court would exercise a discretion on this subject, and would not restrict a defendant from pleading the statute in such cases, provided he would declare, on oath, the nature of his defence, and showed that he had just ground for putting in the plea. They affirmed the case of Brown v. Sutter, however, so far as to say, the court ought not to in- terfere to give defendant the advantage of the plea, upon a general affidavit of defence. However, the present chief justice, in the recent case of Ekel v. Snevily, 3 W. & S. 272, uses the fol- lowing language on this subject : — " It was said in Brown v. Sutter, 1 Dall. 239, that a judgment will not be opened to let in the statute of limita- tions, but as the plea of that statute has since been considered, in Shock v. McChesney, 4 Yeates 507. and Bank V. Israel, 6 S. & R. 294, to be no longer an unconscionable one, the rule of practice would scarcely be held so now." So that Brown «. Sutter is to be considered as considerably shaken, if not overruled. The case before us is much stronger (the lapse of time being so much greater) and the defence aris- ing from presumption of payment equally a legal defence as the statute of limitations, though the one has been introduced, and makes a part of the common law, by the decisions of the courts, and the other by the enactment of the legislature. Judgment opened, and defendant let into defence. ^ Poulson V. Addis, Dist. Court, Phila., 4 Nov. 1848. Why judgment should not" be set aside. Per airiam. The defendant appeared by attorney and suffered judgment to be entered against him, for want of affidavit of defence, 24th January 1848. He was then of full age. Kfi.fa. issued ; the property was condemned ; a nend. exp. and a sale ; and now defendant asks to be let in to take the defence that he was a minor, when the deed was executed upon which the suit was brought. We think he is too late. The judgment is regular; for although the entry on the appearance-docket is simply " copy of f round-rent deed filed," yet the copy led was indorsed, " copy of ground- rent and other deeds," and the other deeds were the assignments of the ground-rent. Rule dismissed. OPENING OF DEFAULT. 163 no power to open a judgment, entered on a justice's transcript, for the purpose of creating a lien, though obtained by default ;' the defendant must first obtain a reversal, by certiorari ; after which the judgment will be stricken ofi".^ § 283. In opening a judgment by default, the court has power to im- pose terms, so as to restrict the defence to the merits, and gxclude mere technical objections.^ In one case, where a defendant, after a judgment was opened, put in a plea in abatement, with the general issue, the court struck off the former plea, saying that they would have put the defend- ant on terms, had their attention been called to it ; and that they had no doubt of their power subsequently to modify the order.* If, however, a judgment be opened, without terms, the burden of proof is on the plain- tiff, as in other cases.^ The court may also impose terms as to the pay- ment of the expenses incurred in resisting the motion.^ § 284. To obtain the opening of a default, prepare an affidavit, stat- ing, in the first place, an excuse for the default, and then the nature of ■ the defence, which should be positively averred, but the evidence to sus- tain it need not be set forth ; present the affidavit to a judge in court, or at chambers, who will, in a proper case, grant a rule to show cause, returnable on the next motion-day ; of which, notice in writing must be given to the plaintiff's attorney ; this rule will be placed by the pro- thonotary upon the current motion-list ; and on the calling of the list, on the following Saturday, the rule will be heard, either on the appearance of the plaintiff's counsel to oppose, or ex parte, on making proof of notice. ' DaUey «. Gifford, 12 S. & R. 72. 223. Gilliland w.Bredin, 63 Ibid. 393. Lacook V. White, 19 Penn. St. 495. Bailey v. Clayton, 20 Ibid. 295. Boyd V. Miller, 52 Ibid. 431. Camp- * Maitland t). McGonigle, Dist. Court, bell V. Penn District, 10 Leg. Int. 46. Phila., 1848. MS. Burton v. Sulger, 7 Phila. 407. Peters ' Dennison v. Leach, 9 Penn. St. 164. V. Coby, 24 Pitts. L. J. 99. Moran v. West v. Irwin, 74 Ibid. 258. CoUinB Stewart, 1 W. N. C. 159. v. Freas, 77 Ibid. 493. 2 Pinkerton v. Lafferty, 2 W. N. C. « Strauch v. Royal Land Co., 5 W. 274. N. C. 473. • MoMurray v. Erie, 59 Penn. St. CHAPTER VII. Of the Capias ad respondendum. 1. CoMSTENOEMENT OF ACTIONS BY CA- Exception to bail, ? 312-3. PIAS, § 285. Justification of bail, ^ 3U-6. Natm-e and form of the writ, ^ 285. Deposit in lieu of bail, | 317. When it lies, § 286. Liability of bail, § 318. How issued, § 287-8. Sui-rendcr, § 319. SerTice of flie writ, ? 289. Excuse of performance, ? 320-4. Arrest, ? 290. How bail are reliered, § 325-6. Duties of the sheriff, ? 291-4. Proceedings against bail, § 327. Escape and rescue, | 295. IV. Ketukn, and liability op the II. SpECIAi capias, ? 296. SHEKIFP, ^ 328. When the defendant is about to Eetui-n of the capias, ? 328-9. quit the state, | 296. Effect of the return, ? 330. When the defendant's bail becomes Ahas, § 331. insolTent, § 297. "Where some of the defendants are not found, § 332. III. Op bail, ? 29b. Liability of the sheriff, § 333. Definition, § 298. Service of the writ, ? 334. Eight to hold to bail, ? 299-303. Eeturn of the writ, |335. Double arrests, 304. Bail, ^ 336. Eule to show cause of action, Escape, 3 337. i 305-7. Proceedings against the sheriflf, Hearing, § 308. 2 338-40. Entiry of baU, ? 309-11. I. Coniniencemeiit of actions by capias. § 285. A capias ad respondendum is a writ directed to the sheriff, com- manding him to arrest the defendant therein named, and hold him, until he shall have given bail to appear and answer the suit of the plaintiff. The form of the writ is prescribed by the act of 1836, as follows : [L. S.] C!ounty of : The Commonwealth of Pennsylvania, To the sheriff of county, greeting : We command you, that you take , if he shall be found in your bailiwick, and him safely keep, until he shall have given bail, or made deposit, according to law, so that he be and appear in our court of , on the day of next, then and there to answer , in an action of debt [or as the case may be], in our court of , at the suit of , or until the gaid shall, by other lawful means, be discharged from your cus- tody ; and have you then there this writ : Witness , president of said court [or as the case may be], the day of , a. d. , Prothonotary. The statute further provides, that whenever the cause of action shall be founded upon an injury done to the person or property of the plain- tiff, by a person whose name is unknown to him, or upon a fraud practised by such person, to the prejudice of the plaintiff, the plaintiff may, upon •(165) \QQ CAPIAS AD RESPONDENDUM. affidavit of the fact, have a writ of capias against such person, without naming him ; but such writ shall be executed by the officer only under the plaintiff's direction, and at his risk ; and the officer, upon making the arrest, must inquire the name of the party arrested, and, if given, must insert the name in the writ ; after which, the case proceeds in the ordinary mode.' § 286. Since the passage of the act of 1842, to abolish imprisonment for debt, and subject to the privileges from arrest, already noticed,^ a capias ad respondendum can only issue, in actions in form ex delicto ; in actions on promises to marry; in actions for fines and penalties; in actions to recover moneys collected by any public officer ; and in actions for any misconduct or neglect in office, or in any professional employ- ment. In cases of fraud, the proceeding must be by warrant of arrest (which will be subsequently considered), not by capias.^ § 287. The writ issues from the office of the prothonotary, on the prwdpe of the plaintiff, or his attorney, which should specify the amount of bail required, and which must be indorsed on the writ, for the guidance of the sheriff. The following is a form oi praecipe in trespass m et amis : In the Court of Common Pleas for the County of Philadelphia. Joseph Thomas, ") V. y Of March term 1879. Adam Smith. j Issue Capias in Trespass to et armis : Bail 8500 : returnable the first Monday of March next. A. B., To C. D., Esq., Attorney for plaintiff. Prothonotary. 16 Feb. 1879.* § 288. It is provided by rule of court, that the prothonotary shall issue no capias ad respondendum, indorsed with bail in more than $500, without a special alhcatiir by one of the judges.^ That no bail shall be required iu actions of trespass to et armis, in actions for libel, slanderous words, malicious prosecution or false imprisonment, unless an affidavit of the cause of action be made and filed, before the issuing of the writ.* And that in all actions of trover and conversion, the affidavit to hold the bail shall fully set forth the circumstances under which the defendant has pos- sessed himself of the goods ; the particulars of which they consist ; and the value of them ; and in what manner the defendant has converted them to his own use.^ The deponent must swear positively to a conver- sion ; or to an unqualified refusal to deliver the chattels, on demand, which is evidence of it.* ' P. L. 573 ; Purd. 45. " Rule ix. § 28. = Supra, §231. « Ibid. §23. ' Bowen v. Burdiok, 3 Clark 226. ' Ibid. § 29. The rule renders obso- Gallagher v. Noroross, 7 Phila. 623. lete the oases of Carey v. Henry, 2 * An attorney should never file a Miles 295 ; and George v. Graham, prwcipe., or any other paper, without a 1 Phila. 69. date. He will be sure to find out the * Newall v. Stiles, Dist. Court, Phila., advantage of this, in the course of his 2 February 1850. Rule to show cause practice. of action. Per curiam. This is an AEEEST ON CAPIAS. 167 § 289. The capias may be sued out on the very return-day, and the defendant be arrested on the same day, after the rising of the court.^ And as we have seen,^ in certain enumerated cases, the sheriff may go out of his bailiwick, and make the arrest in another county. If the defendant be a prisoner in confinement in the county jail, a copy of the writ is to be delivered to the defendant, by the officer, and another copy is to be left, by the officer, with the jailer, and thereupon such writ operates to detain the defendant, after the other causes of his confinement have ceased, in like manner as .if he had been arrested and imprisoned by vir- tue of such writ.' The mode of proceeding where the defendant is a lunatic has already been considered.* If bail be not demanded, the prcBcipe should be marked, "no bail required;" this is to be indorsed on the writ, which is then to be served like a summons, and the defend- ant must subscribe a note to the prothonotary, empowering him to enter an appearance ; which subscription is to be attested by the officer. § 290. A.f^est. The usual mode of executing the writ of capias is, by an arrest of the defendant. The officer, having received special direc- tions from the plaintiff, or his attorney, either in writing or by parol, is bound to arrest the defendant, if to be found within his precinct. For a return that the defendant cannot be arrested, or, that the precept cannot be served, for resistance, can never be justified, inasmuch as the officer, in the execution of such process, may command the posse comitatus f for action of trover, to recover damages for the eonversion of a paper, belonging to defendants, purporting to be a certificate of the interest of plaintiff in the pro- ceeds of certain lands, and which is al- leged to be of the value of S5000. The affidavit states a demand and refusal, without adding the deponent's oath as to the fact of conversion. It is said, in one part, that defendant has admitted the right of plaintiff, but, upon demand, refused to deliver it up, " and again, through his agent, deponent, on the 23d day of November 1849, demanded of said Stiles to deliver up to him posses- sion of said certificate, but said Stiles refused to do so, pretending that he had sent it to some person in New York." Now, putting aside the ques- tion, whether it is sufficient to swear to a simple demand and refusal (that be- ing mere evidence of conversion), and whether the affiant must not take upon himself to swear to the conversion, it is clear, that there is here no unqualified refusal stated. The defendant gives as a reason for his refusal, that he was not ia possession. It is true, the de- ponent goes on to allege Ms_ belief t\i3.t this was untrue ; but this is not suffi- cient, in an affidavit to hold the bail, which, as to all material facts, must be direct and positive. Therefore, in Thynne v. Protheroe, 2 M. & S. 563, it was decided, that an affidavit to hold to bail in trover, by the assignees of a bankrupt, stating that " the defendant possessed himself of the goods, which he refused to deliver, and has converted them to his own use, as appears by the ■ bankrupt's books of account, and by the letters of S. (the agent), and letters of the plaintiff, as deponent believes,'" was not sufficiently certain, to show a conversion ; and, therefore, the court discharged the defendant on common bail. Rule absolute. 1 Cashee v. Wisner, 2 Bro. 245. ' Supra, I 249. » Act of 1836, § 36, P. L. 578 ; Purd. 47. * Supra, ?241. 5 2 Inst. 193, 453. Bac. Abr. Sheriff, N. 2. In case of resistance, by a de- fendant, to a constable, in the service of a capias ad respondendum for debt, issued by a justice of the peace, under the act of 20 March 1810, the consta- ble may raise the power of the county for his assistance, m the same manner as the sheriff may do, on writs of mesne process to him directed, and a pei>on 168 CAPIAS AD EESPONDENDUM. the same reason, an officer, when he has once arrested, must, at his peril, retain the defendant. It is presumed, however, that in both cases, were the officer overcome by the actual force of the defendant, he would be liable to nominal damages only.' § 291. If the defendant be known, or can be easily ascertained, the officer must arrest him, Upon the mere direction of the plaintiff If otherwise, and there be a question as to the identity of the defendant, the plaintiff is bound, as in the attachment of property, upon demand, to point him out, and to indemnify the officer against the consequences of a mistake.^ Should there be several persons, of precisely the same name and occupation^ in his precinct, and the officer be unable, by any means, to ascertain which is the defendant named in the writ, the safest return for him to make would be, that he did not know upon whom to serve, for a return of " non est inventus" would be false.' If the defendant be rightly named in the writ, but the sheriff execute his process upon the wrong person, though of the same name with the right one, he will be a trespasser ; and it would be the same, though the person arrested declared that he was the individual named in the writ.* If the writ describe the defendant by a wrong name, unless he be known as well by that given him' as by his true one, the officer cannot arrest him ; if he do, the defendant may not only plead in abatement, but may also main- tain an action of trespass against the officer for false imprisonment :^ in one such case, the court discharged the defendant, upon motion.* The difference between the names, however, must be a material one; for when there is only an inaccuracy in the spelling, so that the name is still idem sonans, the rule does not apply.' § 292. Except in the cases specially provided for by statute, the sheriff can only make the arrest within his bailiwick.' It cannot be made on Sunday ; the service of civil process on that day being prohib- ited by the act of 1705 ;' and if a person be detained against his will, on Sunday, to be served with process on Monday, the arrest will be void.'" An actual touching of the defendant's body, does not seem to be abso- lutely necessary to constitute an arrest ; for, if the defendant submit himself to the arrest, or be completely in the power of the officer, it is sufficient ; as, if an officer come into a room, and tell the defendant that he arrests him, and lock the door, that is held to be an arrest." If the refusing to assist the constable, when ' Ahitbol v. Benedetto, 2 Taunt. 401. required, on resistance being made, is ' Williams v. Gregg, 7 Taunt. 233". indictable for such refusal. Comfort v. Devenege v. Dalby, Doug. 369. Bor- Commonwealth, 5 Whart. 437. man v. Bellamy, 1 T. R. 187. Willis v. ' Howe's Prao. 151. Penchill, 5 Bos. & Pul. 167. ^ Marsh u. Gold, 2 Pick. 285. » 1 Sm. L. 25 : Purd 1345 » Dalt. Shff. 112, 113. i« Lyford v. Tyrrel, 1 Anstr: 85. Griswold V. Sedgwick, 6 Cow. 456 ; " Wilson v. Jones, Cas. T. Hard. 301. s. 0. 1 Wend. 126. Mead v. Haws, 7 Genner v. Sparks, 6 Mod. 173. 2 Cow. 332. Scott V. Ely, 4 Wend, 555. Hawk. P. C. ch. 19, g 1. Whether an ' Cole w. Hindson, 6 T. R, 234. Shad- arrest has actually been made, becomes §ett V. Chpson, 8 East 238. Rex v. a question of importance, in case of a urrey, 1 Marsh. 75. subsequent rescue or escape. • Wilks V. Lorck, 2 Taunt. 400. AEREST ON CAPIAS. 169 defendant resist, some touching of the body is necessary; but if he submit, it can be dispensed with.' § 293. No man can be arrested in his own house, provided the outer door be shut ; but if the outer door be open, the officer, having gained admittance, may break open an inner door, to arrest the defendant f and if a man let out part of his house, reserving for himself and occupying an inner room, an officer entering through the outer door of the house, being open, may break open the inner door to arrest him.' Yet, he can- not break open the inner door of the house of a third person, on suspi- cion that the defendant is there, in order to arrest him.* But bail may break open the outer door of their principal, in order to arrest, as may a sheriff, to take a prisoner who has escaped from arrest* An officer, generally known as such, is not bound to show his writ, before he serves it ; but after service, or when the defendant has submitted to the arrest, if the defendant demand it, and not otherwise, he is bound to make known the cause of the arrest.^ A speeial deputy, however, and per- haps, a newly-appointed officer, also, ought to show the writ before exe- cuting it.^ The refusal of the officer to show his writ, when bound so to do, will not make him a trespasser ah initio ; but the service, in such a case, may be set aside for irregularity.' The sheriff canno't give a depu- tation in blank to the plaintiff's attorney, so as to enable the latter to appoint a person to serve the writ.^ § 294. When the defendant is arrested, by virtue of any writ, process or warrant, it is unlawful for the officer to take or convey him to any tavern, or other public victualling or drinking-house, or to the private house of the officer, without the prisoner's voluntary consent ; or, with his consent, to keep him above twenty days at either of those places ; or to demand or receive, directly or indirectly, any greater sum of money than is allowed by law, for the arrest, or waiting till the prisoner shall have given in an appearance or bail, as the case shall require, or agreed with the person, at whose snit or prosecution he shall be arrested, or until he shall be sent to the proper jail ; or to take any reward, gratuity or money, for keeping the prisoner out of jail ; or to receive any greater sum of money, for each night's lodging, or for a day's diet, or other expenses, than what shall be allowed as reasonable, in such cases, by some order to be made by the justices of the respective courts of common pleas, at some court to be held for such place where the arrest may be.'" And in all cases of imprisonment for debt, the plaintiff or plaintiffs are 1 McCracken v. Ansley, 4 Strob. 1. Field, 13 Mass. 321. Counties of Rut- ^ Lee V. Gansel, Cowp. 1. Haggerty land's Case, 6 Co. 53. V. Wilber, 16 Johns. 287. ' Bac. Abr. Sheriff, N. 1. 3 i]r,i(i. * Thomas v. Pearce, 2 Barn. & Cress. * Johnson v. Leio;h, 6 Taunt. 246. 761. ' NicoUs V. Ingei-soll, 7 Johns. 156. ' Western Iron Co. v. Phelps, 23 « Blatch V. Archer, 1 Cowp. 63. Pitts. L. J. 197. Crowther v. Ramsbottom, 7 T. R. 654. '» Act of 1729-30, 1 14, 1 Sm. L. 186 ; Bac. Abr. Sheriff, N. 1. Maokalley's Purd. 775. Case, 9 Co. 66. Commonwealth v. 170 CAPIAS AD RESPONDENDUM. liable for the boarding and jailer's fees, from the time of the commit- ment, if the defendant shall make affidavit that he is unable to support himself; and the sheriff or jailer may recover the same as debts of sim- ilar amount are by law recoverable.^ § 295. Escape and rescue. If the sheriff, after arresting the de- fendant, suffer him to go at large, without bail, he is liable in an action for an escape ; so, if he did not arrest him, when he might, and had him in view. But in an action for an escape on mesne process, the sheriff may set up any defence that the defendant could have made ;^ the plaintiff can only recover the actual damages sustained.' And where a defendant, arrested on mesne process, is rescued, as he is going to prison, the sheriff may return the rescue, and it is a good defence to an ^ action for an escape.* n. Special capias. § 296. Where a personal action, in which the defendant is liable to arrest, has been commenced by summons, and the defendant is about to quit the commonwealth, without leaving sufficient real or personal estate therein to satisfy the demand, the plaintiff, on making affidavit of such fact, and of hjs cause of action, may have a special capias against the defendant, in the form prescribed by the statute.^ Since the passage of the act of 1842, such writ cannot be issued in an action ex contractu ;* but the plaintiff may still have this special remedy, in an action of tres- pass, on making the requisite affidavit.'^ § 297. The statute further provides, that whenever any person, who shall have become bail for the defendant in any action, shall, pending the same, assign his effects for the benefit of creditors, or make applica- tion for the benefit of the insolvent laws of this commonwealth, or give bond for such purpose, or shall remove from this commonwealth, or signify an intention so to do, it shall be lawful for the plaintiff in such action, to require the defendant, by a rule to be entered by the pro- thonotary, as of course, in term-time or vacation, to find additional bail, and in case of his default, to issue a special writ of capias against him, reciting briefly the circumstances, and detain him thereon, until he shall comply with such requisition. Every such rule shall be entered, after an affidavit of the fact upon which it is grounded f it shall stipulate that three days' notice thereof be given by the plaintiff to the defendant, unless other notice shall be directed by a rule of court, and shall other- wise be subject, in all respects, to such restrictions and regulations as the court shall make in that behalf The proceedings on a special capias, after the issuing of the writ, are the same as in other cases. 1 Act 16 July 1842, P. L. 395 ; Purd. ^ Act 13 June 1836, § 24, P. L. 576 ; 777. Pui-d. 47. ' Fitler v. Beckley, 2 W. & S. 458. « Nebenzahl v. Saberlowitz, 1 Luz. Shuler v. Garrison, 5 W. & S. 455. L. Reg. 595. Blanco v. Lauradon, 3 * Cro. Eliz. 868. Cro. Jac. 419. 3 W. N. C. 171. Lev. 46. Str. 434. Gilb. C. P. 23. ror ' Borckman v. Rick, 1 Leg. Gaz. 22. the law of escape in civil cases, see " See Smith's Forms 25, pi 14 26 Am. L. Reg. 345. BAIL. 171 m. Of baU. § 298. Bail has been defined, an undertaking of a man's friends, before certain persons for that purpose authorized, that he shall appear at a certain day, and answer any legal charge to be exhibited against him. Bail in civil cases is the means of giving liberty to a prisoner, and, at the same time, securing the extent of the law to compel satisfaction to his creditor. The right of the plaintiff to exact substantial bail from the defendant depends upon two considerations : (1) Is the defendant privi- leged from arrest? for, if so, his arrest is clearly unlawful, and he is entitled to an absolute discharge. (2) If not so privileged, is he, never- theless, entitled to be discharged, upon giving merely nominal security, or, as it is termed, to be discharged upon common bail ? If both these questions must be answered in the negative, the plaintiff may require substantial bail, and not otherwise. The question of privilege is to be determined by counsel, before the adoption of the form of process, and has already been discussed.' The question, whether, having been lawfully arrested, the defendant may be required to enter bail, can arise only after the arrest, and is raised by a rule taken by defendant, requiring the plaintiff "to show his cause of action, and why the defend- ant should not be discharged on common bail." We shall discuss here, first, the right to hold to bail, and then, the mode of proceeding under the rule. § 299. Might to hold to bail. Since the act of 1842, abolishing im- prisonment for debt, bail is demandable only in actions ex delicto, and in cases within the exceptions of that statute, namely, suits for fines and penalties, for breach of promise of marriage, for moneys collected by a public officer, or for misconduct or neglect in office, or in any profes- sional employment.^ A defendant, notwithstanding this act, may be held to bail, in an action founded on a tort, though the plaintiff might have waived the tort, and sued in contract. It must, however, be a pure tort, or where the proceeding is fraudulent throughout;' for, if the alleged tort has its foundation in a contract, a capias will not lie; the remedy, in such case, is by warrant of arrest.^ § 300. In trespass, the general rule is, that bail is not demandable, because there is no standard by which damages can be measured.^ But to this there are exceptions ; one is, where the defendant is about to depart out of the jurisdiction of the court ; another is, where there has been a violent battery, in which the plaintiff may sometimes swear to damages to a certain amount, and it may be evident from a view of the wounds, that considerable damage must have been sustained. There are also other exceptions, as, where it is presumable that large damages will be given, because the subject may have been discussed in an action against others for a similar trespass.^ Bail is generally demandable in 1 Suwa. ?231, et seq. Philadelphia Coal Co. v. Huntzinger. ^ P. L. 339 ; Purd. 49. 6 W. N. C. 300. » Baser v. Radley, 1 Phila. 47. ^ Hopper v. Williams, 2 Clark 448. ♦ Bowen v. Burdick, 3 Clark 226 " Duffield v. Smith, 6 Binn. 304. 172 CAPIAS AD EESPONDENDUM. actions of trover ;' but where the tort is barred by the statute of limi- tations, a subsequent promise to pay will not render the defendant liable to be held to bail.^ § 301. In slander, bail is not demandable of course f but the court will hold to bail, if the plaintiff swear positively to special damage, although the amount of damage be not specified.* But the court will uniformly discharge a defendant in slander, on common bail, unless special damage be alleged, or the words charge the plaintiff with a crime of a gross nature," or the defendant is about to leave the state.* Bail may be demanded in actions for libel, malicious prosecution, conspiracy or false imprisonment ; but an af&davit of the cause of action must be filed, before the issuing of the writ.^ § 302. An attorney who collects money for a client, and neglects to pay it over, is within the exception of the act of 1842, and may be held to bail, in an action of assumpsit ; it is diflSicult to conceive any more gross neglect in a professional employment, than the making use of a client's money, after collection; 'hardly any palliating circumstances for such act can be imagined.' So also, a special agent for the collection of claims in favor of the commonwealth, is within the excepting clause of the act ; it embraces all persons who, by authority of law, are intrusted with the receipt of public moneys, through whose hands money due to the public, or belonging to it, passes, on its way to the public treasury, by whatever name or title they may be designated in the law authorizing their appointment, and whether the service be special or general, tran- sient or permanent.' § 303. The defendant cannot, iu general, be held to bail in an action on a penal statute, for it is a maxim, that every man shall be presumed innocent of an offence, till he be found guilty.'" But in an action on a remedial statute, as for money won at play," or on a horse-race,'^ the defendant may be held to bail.'' And such cases are expressly excepted from the operation of the act of 1842. So also, of an action for breach of promise of marriage; but the affidavit must state a demand and" refusal.'* § 304. Double arrests. It is a general rule, that a defendant shall not be twice held to bail, for the same cause of action, unless under very special circumstances ;" nor in two places, at the same time." And, there- fore, a defendant who has been arrested and held to bail, in another state, ' Rule ix. i 29. Mundel, 6 Call 246. ^ Murphy V. Elder, 4 W. N. C. 212. " Act 22 April 1794, ^ 9 ; 3 Sm. L. ' ' Jack !>. Shoemaker, 3 Binn. 285. 182; Purd. 728. * Charles v. Holmes, 1 Bro. 297. '^ Act 17 February 1820, H ; 7 Sm. 5 McCawley v. Smith, 4 Yeates 193. L. 245 ; Purd. 759. A. B. V. R., 4 W. N. C. 185. " Turner v. Warren, 2 Str. 1079. Scott V. Crum, 1 Pears, 196. Bristow v. James, 7 T. R. 259. ' 5;"}f ^^- J ^^- " '^^^^^ "■ Bolivar, Dist. Court, Phila., Wills V. Kane, 2 Gr. 60. 20 January 1849 ; infrd, § 309, n Commonwealth v. Evans, 74 Penn. '^ cj^rk v. Weldo, 4 Yeates 206. li 1?mI /I ti ,, „ . " Bingham v. Wilkins, Crabbe 50. Uilb. C. P. 37. United States v. Hernandez v. Carnobeli, 4 Duer 642. RULE TO SHOW CAUSE OF ACTION. 173 for the same cause of action, and on the charge that the debt was fraudu- lently contracted, cannot be arrested in this state, under the act of 1842.' A defendant will not be held to bail a second time, for the same matter, though the form of action be changed.^ But where bail was not demanded in the former suit, the defendant may be held to bail in a second action.^ So, where, through inadvertence or mistake in the plaintiff's affidavit, the defendant has been discharged from a former arrest, and there appears no actual oppression or design to harass, the court may, in its discretion, allow the defendant to be held to bail in a second action.* It is not every discontinuance that will disable a plaintiff from holding a defend- ant to bail a second time ; that will depend on the circumstances of vexation attending the case.' § 305. Rule to show cause of action. If the defendant conceive that substantial bail should not be exacted of him, he should, at an early day after his arrest, take a rule upon the plaintiff to show his cause of action, and why he, the defendant, should not be discharged on common bail. And if there be no affidavit to hold to bail, or if the affidavit be defect- ive or insufficient in any particular, the' proper way to take advantage of this, is to take out such rule. The power of the courts to inquire into the cause of action, to quash the writ, with or without costs, to reduce the amount of bail, or to discharge without bail, are the same under the act of 1836 as before.* Even where an affidavit to hold to bail has been filed with the prothonotary, previously to taking out the writ, the defend- ant, in order to obtain his discharge without bail, or to obtain a reduction of the amount of bail, must cite the plaintiff to show his cause of action.' § 306. A rule to show cause of action and why the defendant should not be discharged on common bail, must be moved within six days of the return-day of the process. Such rule may be heard and decided by a single judge, at such time and place as he may appoint.* This rule may ' Farmers' and Mechanics' Bank v. ous. In the case of specific articles Crane, 27 Leg. Int. 197. And see attached, a stranger's ship, or other Clark V. Weldo, 4 Yeates 206. effects, may be taken out of his hands, * Koons V. Patterson, 1 Phila. 288. and detained for such a length of time, ' Field V. Colerick, 3 Yeates 56. as to ruin his voyage and embarrass his * Butterworth v. White, 2 Miles 141. affairs beyond redress. So, in the case And see Parasset v. Gautier, 2 Dall. of debts attached, his property may be 330. looked up, his remittances prevented, * Doane «. Penhallow, 1 Dall. 220 ; and the injury nearly as great as in the Shippen, P. J. And see Robinett v. other case. The bail marked by an at- PoUard, 2 Miles 99. tornoy, or a malicious plaintiff, may be ' P. L. 577 ; Purd. 46. out of all bounds disproportioned to ' And this privilege so to cite the the debt ; and if there were no way of plaintiff, may be asserted in the case examining into the justice or extent of of attachments of the property of an the demand, a defendant might be at absent debtor, and the court will in- the mercy of the plaintiff, to be ruined quire into the cause of action, in the at his pleasure. Vienne v. McCarty, same manner as is done in oases of 1 Dall. 154. Garnishee in foreign at- capias, as the abuse of process may be taohment may rule the plaintiff to show as great, and the necessity of providing his cause of action. Brb v. Landis, 3 against a wanton and groundless seiz- Clark 226. ure of the defendant's effects, as obvi- * Rule ix. ^ 27. 174 CAPIAS AD EESPONDENDtna. be relaxed, under special circumstances ; as, in case where the defendant had been confined in jail, and had no counsel, until after the expiration of the first week of term.' And though the motion be not in time, the court may subsequently reduce the amount of bail, if deemed excessive.^ § 307. Affidavit to hold to bail. The only mode of showing cause of action, is by affidavit f which may be sworn to before an officer in a foreign country.^ But it must be sworn to, within a year before the issu- ing of the process ; if, however, the process were issued immediately, and regularly continued, it matters not, that the defendant was not arrested within the year.^ The defendant must be named in the body of the affi- davit; it is not sufficient, to refer to him as "the said defendant.'" And an interlineation in a material matter, is ground for discharging the defendant on common baU.^ The affidavit must be positive; swearing to the best of the plaintiflT's knowledge and belief is not sufficient f it must set forth the cause of action with certainty ;' or the defendant will be discharged on common bail.'" But, in trespass, the plaintifi" is not required to swear to the precise amount of damages, so that the facts be explicitly and distinctly stated." If, however, the plaintiff''s affidavit be positive, he cannot be cross-examined ;'^ nor will the court inquire into the source of his knowledge.'^ In slander, the affidavit must either set forth the identical words spoken, or must aver, with distinctness, the substance of the charge made.''' In an action for conspiracy to defame, it is necessary to show the conspiracy to hefabe; but this may be made to appear by the whole affidavit taken together." In an action ' Sohroeder v. Morrison, 2 Bro. 261. v. Grady, 1 W. N. C. 313. ' Rice V. Stacy, 9 L. Bar 81. ' Delaware Mutual Insurance Co. v. ' Towers v. Kingston, 1 Bro. 33. Walker, 1 Phila. 104. Donahue v. * Walker v. Bamber, 8 S. & R. 61. Keller, Ibid. 106. PhUadelphia Coal Baker v. Croft, Dist. Court, Phila., 1825. Co. v. Huntzinger, 6 W. N. C. 300. s Corrin v. Millington, 2 Miles 267. '" Chase v. Eicketts, 8 Luz. L. Obs. 6 Smith V. Bible, 1 Phila. 91. Mar- 110. quis V. Goldstein, 2 W. N. C. 112. " Pontingen v. Williams, 1 Bro. 206. ' Berryw.Carman,Dist. Court, Phila., The rule is the same, in slander. 17 March 1849. Rule to show cause Charles v. Holmes, Ibid. 297. The of action. Per curiam. We adhere, damage may be stated, on information after the fullest reflection, to the rule and belief. Nevins v. Merrie, 2 Whart. of practice which we have adopted and 499. followed for some time past, that a ma- '^ Comely v. Knight, 1 Bro. 286. terial interlineation or erasure in an " Samson v. Kilse, 1 Bro. 341. affidavit to hold to bail, not noted in '* Vanderslioe v. Spear, 2 Miles 392. the jurat, is a sufficient reason to make Carvill v. Cochran, 1 Phila. 399. But, the rule absolute. If one result of the it seems, there must be, at least, a gen- practice should be, to oblige the attorney eral averment of special damage. Mar- to take a little more time, before issuing quis B. Goldstein, 2 W. N. G. 112. the capias, we do not know that that Charles v. Holmes, 1 Bro. 297. forms any objection to the rule. Rule '* Gruninger v. Culbertson, Dist. absolute. Court, Phila., 16 Deo. 1848. Rule to And see Boyle v. Grady, 1 W. N. C. show cause of action. Per curiam, 313; contril, Sedgebeer v. Moore, The affidavit sets forth a conspiracy to Bright. 197. defame and destroy the reputation of ' Towers v. Kingston, 1 Bro. 33. plaintiff's wife, by accusing her of a Young V. Corder, 2 Miles 155. Hewitt want of chastity. If there was a cou- V. Nicholson, Ibid. 322. And see Boyle spiracy to accomplish this object, by the EULE TO SHOW CAUSE OF ACTION. 175 for malicious prosecution before an alderman, an affidavit which sets forth that the defendant, after the arrest, neglected to prosecute his suit, and that it was ended and determined, is insufficient; it should state what action was taken by the alderman, and leave it to the court to say whether the suit was ended and determined.^ And in an action for Oreach of promise of marriage, a precedent request and refusal must be stated.^ In trover, it is provided by rule of court,* that the affidavit must set forth the circumstances under which the defendant has pos- sessed himself of the goods, the particulars of which they consist, their value, and the manner of conversion.* § 308. Searing. The parties are to appear before the judge, or in court, at the tisBe fixed for the hearing. In accordance with the terms of the- rule, the plaintifi" must proceed to show his cause of action, which can only be done by affidavit. If that be insufficient, th6 judge will order the defendant to be discharged on common bail ; if the cause of action be sufficient, but the facts set forth show that the amount of bail demanded is excessive, the judge will order it to be reduced ; and when, after fixing bail at a particular amount, the court, by a subsequent order, reduces it. means set forth in the affidavit, it cer- tainly presents an aggravated case. That such an action lies, we have no doubt. The case of Mott v. Danforth, 6 Watts 304, establishes the general principle, that an action on the case lies, wherever the plaintiff is aggrieved or damnified by unlawful acts done by the defendants, in pursuance of a combina- tion or conspiracy for that purpose. It comprehends any confederacy to the pre- judiceof athird person. It is objected, that the affidavit does not use the word false, as applied to the conspiracy. Un- doubtedly, the declaration in this action must aver the fact to be false and ma- licious I but it is sufficient, if it appear upon the whole declaration taken to- gether, to be so. Thus, where the declaration was, that the defendant, maliciously intending to defame the plaintiff, caused Mm to he indicted, and falsely deposed, dec. : 1 Leon. 108 ; 1 Com. JDig. 343, " Action on the Case for Conspiracy," C. 3. Applying this rule to the affidavit before us, it begins, by the usual averment of chastity and in- nocence of the plaintiff's wife of the alleged crime, and avers, that the de- fendants conspired and combined, of their mere malice, &c., and then that, in pursuance of the said conspiracy, one of the defendants did falsely, mali- ciously, and without any reasonable or probable cause, accuse her, &c. We hold the affidavit, therefore, to be suf- ficient. Rule discharged. 1 Walker v. Curran, 1 Phila. U3. ^ Parke v. Bolivar, Dist. Court, Phila., 20 January 1849. Rule to show cause of action. Per curiam. This is an action for a breach of promise of mar- riage. The affidavit is defective, in not stating any request by the plaintiff, and refusal by the defendant, to marry her. It is perfectly clear, that to sup- port an action for a breach of promise of marriage, if the defendant has not married another, there must be evi- dence of an offer to marry on the part of the plaintiff, and a refusal by the defendant. Gough v. Far, 2 C. & P. 631. The affidavit before us avers that "the defendant, wishing to deceive this plaintiff, does now maliciously and falsely, and without any cause, refuse to marry this plaintiff, and declares that he never will marry her." We are not informed how, when, to whom, or under what circumstances, this declaration was, or rather is made (for the plain- tiff, making use of a figure, very allow- able in fine writing, but not at all pro- per in an affidavit, has employed the present tense). Without a knowledge of the circumstances, it is impossible to say, whether it is such as to dispense with the necessity of an offer. Rule absolute. ' Rule ix. 5 29. * Philadelphia Coal Co. v. Huntzin- ger, 6 W. N. C. 300. 176 CAPIAS AD EESPONDENDUM. the latter is the only one which can be recognised as obligatory;' if neither of these is the case, the defendant's rule will be discharged, and he will then, if he wishes to obtain his liberty, be obliged to put in bail in the amount indorsed on the writ. If the affidavit be properly framed, and the facts contained in it sustain the plaintiff's case, it is so far conclusive, that no counter-affidavits will be admitted ; if insufficient, supplementary affidavits will not be received.^ Where common bail is ordered by a judge at chambers, his action will not be reviewed by the court, in term, though the plaintiff give notice of his intention to apply .^ § 309. Entry of bail. The act of 1836 has made an entire change in the practice of entering bail ; instead of bail to the sheriff for appear- ance, and b^il to the action, commonly called bail above, that act pro- vides, that the sheriff shall let the defendant to bail, taking from him a bond, with reasonable sureties, having sufficient estate within the county, conditioned that, if the defendant shall be condemned in the action, at the suit of the plaintiff, he shall satisfy the condemnation-money and costs, or surrender himself into the custody of the sheriff of the county, or, in default thereof, that the bail will do so for him ; and such bond shall be for the use of the plaintiff in the action, or of the sheriff, or other officer, as the case may be.* But if the defendant be committed, or surrendered by his bail, he may enter special bail to the action, according to the former practice, before a commissioner of bail.^ If the sheriff refuse to admit the party to bail, he is liable to him in treble damages. § 310. In order to meet the requisitions of the act, it is not necessary that the virit should be recited in the bond ; a reference to the action, and such a description of it, as will render the application of the bond to it certain, is all that is required. Therefore, where one of two defend- ants, named in the writ, cannot be found, and the bond omits the name of such defendant, in referring to the action, and in the condition of the bond, the bond is good and well taken ; for the one taken and named in the bond, may, with strict propriety, be regarded as the only defendant.^ In an action on a bail-bond, reciting the arrest to have been under a capias ad respondendum, in an action of trespass on the case, where the record given in evidence showed the action was trespass vi el armis, the variance was held immaterial.^ A bond with one surety is not void, and the court, in such case, will not grant a rule on the sheriff, to bring in the body, but the plaintiff may except to the bail, in the usual manner.' § 311. The officer taking a bail-bond, under the act of 1836, must return it, along with the capias, at or before the return-day, to the office ' Potts V. Fitch, 2 Penn. St. 173. » Ibid. ^ 19. ' Eldridge v. Robinson, 4 S. & R. • Kelly v. Commonwealth, 9 Watts 548. -43. ' Chryster ». Jackson, Supreme ' Devereaux v. Esling, 7 Penn. St. Court, Dec. 1774. MS. 883. ♦ Act 13 June 1836, §§ 9, 10, P. L. « Cummings v. Meeker, 2 Miles 83. 574 : Purd. 46. EXCEPTION TO BAIL. 177 of the prothonotary, who must file the bond, and enter on the docket the names of the bail. And, besides this, the sherifi", who takes the bail- bond, must give notice, iu writing, of the names and places of residence of the bail, to the plaintiff, his agent or attorney. This notice should designate the place of residence of the bail, with sufficient particularity to enable the plaintiff to make inquiries as to his sufficiency, and so as to his addition or description.^ § 312. Exception to bail. The bail taken by the sheriff, may be excepted to, by the plaintifi", his agent or attorney, at any time within twenty days after the return-day of the writ, and notice given to him by the sheriff; and the bail, so entered, may justify, or new bail be added or substituted, and justify, within ten days after notice of the exception, according to the practice hitherto allowed with respect to special bail. But the courts may make such rules, respecting the time and manner of giving notice of bail, excepting to bail, and justifying bail, as the convenient administration of justice, in such court, may require.^ By rule of court,^ exceptions to bail must be made in writing, and filed with the prothonotary ; and notice thereof, in writing, must be given by the plaintiff, to the defendant or his attorney, and to the sheriff, within forty- eight hours from the filing of such exceptions. § 313. The plaintiff may except to the bail, whenever he conceives that they do not possess the necessary qualifications. The general qualification is, that they should have a sufficient estate within the county, commensu- rate with the amount of bail required, after payment of all their debts.* It is a rule of court,^ that no attorney of any court, nor sherifiT's officer, bailiff or other person concerned in the execution of process, shall be received as special bail, in any action, unless by leave of the court.^ It seems, that the sheriff ought not to take bail domiciled in another county, on account of the difficulty of proceeding against them.' If but one surety have been taken by the sheriff, though the bond is not therefore void, yet it is defective, and the plaintiff may except to the bail, and have new bail added or substituted, so as to give the requisite number of sureties.' In England, uncertificated bankrupts and discharged insol- vents are disqualified as bail, for want of property f and there it is also a fatal objection to bail, that they have been indemnified by defendant's attorney.'" Any act, on the part of the plaintiff, whereby he recognises ' See Smith's Forms 21, pi. 6. ■ had been put in ? In B. R., he cannot. 2 Act of 1836, II 14, 15, P. L. 575 ; Doug. 450, n. 1 ; 2 East 181. In C. B., Purd. 46. t5^6 bail are regarded as an absolute s j^uie ix 2 25 nullity, and no exception is necessary. ♦ Act of i836, I 9, P. L. 574 ; Purd. 1 Bos. & P. 356 ; 2 Ibid. 49, 564 ; 1 4g Taunt. 162, 164. But it is said, such ' Rule ix. I 24. b^il is good in B. R., if not excepted * If a person, who is not permitted to. Tidd 247-8. by these rules, which have been copied '-The rejection of such bail was sanc- from the English rule, be put into the tioned by the late district court, bail-piece, and not excepted to, can the * Cummings v. Meeker, 2 Miles 83. plaintiff take an assignment of the bail- " Tidd 247. bond, and proceed upon it, as if no bail '" Ibid. 268. VOL. I. — 12 178 CAPIAS AD RESPONDENDUM. the sufficiency of the bail, is held to be a -waiver of exceptions ; such as, the filing of a declaration;^ but the bail are not discharged.^ The sheriff, however, is thereby released from responsibility .^ § 314. Justification of bail. Upon due notice of the exception, the bail must justify, within ten days after such notice ; or, if they cannot, the defendant must add new bail, who must justify in that time.* By rule of court,^ notice of the justification, addition or substitution of bail, must be given, in writing, to the plaintiff or his attorney, at least forty- eight hours before the time designated in the notice, for such justifica- tion, addition or substitution ; and where bail is to be added or substi- tuted, the notice must state the name, occupation or profession, and place of residence of such proposed bail. The justification is to be made before the prothonotary, or a commissioner of bail ; and the bail may be exam- ined viva voce, as to his sufficiency, by the plaintiff's attorney. Where the amount is considerable, three or more bail may justify, and in differ- ent sums.^ § 315. Opposition to the bail must be made before they justify. The common grounds of opposition are, defect in the bail-piece ; defect in the notice of bail, where the plaintiff's attorney has, from that cause, been unable to find them ; defect in the notice of justification, or its service; that the bail is a person privileged from arrest, or excluded by rule of court ; or that he is otherwise disqualified.^ The bail may be opposed, either by their personal examination, or by affidavit. When the former method is adopted, the counsel should endeavor, by a rigid examination, to obtain from the bail an acknowledgment of their real situation. When the latter mode is pursued, an affidavit should be pro- duced, disclosing such facts as will convince the court that there has been some defect or irregularity in the proceedings, or that the bail are incapable of fulfilling their engagement. Affidavits containing general statements of slanderous matter, injurious to the character of the bail, cannot be received.^ § 316. If the bail be excepted to, and fail to justify, the sheriff remains liable for their sufficiency;" and the proper course is, to rule him to bring in the body, and compel him to put in unexceptionable bail, or pay the sum sworn to into court ;'" and the court will enforce obedience to the rule by attachment." When bail are excepted to, and do not justify, the court may order their names to be stricken out of the bail-piece; but until this is done, they continue liable.'^ § 317. Deposit in lieu of bail. The defendant, in lieu of bail, may ' AVhite V. Fitter, 7 Perm. St. 5.33. special bail? ^ Commonwealth v. Heilman, 4 ^1 Chit. Rep. 601. Penn. St. 455. ' See Tidd 264-72. ^ Fitler v. Bryson, 6 W. & S. 566. ' 1 Chit. Rep. 676. Act of 1S36, § 16, P. L. 575 ; Purd. 46. » Act of 1836, § 16, P. L. 575 : Purd. * Actof 1836, |14,P. L.575;Purd. 46. 46. i» Fitler v. Bryson, 6 W. & S. 566. ' Rule ix. I 26. See infra, § 1038, as Littleboy v. Blankman, 1 Miles 279. .to the mode of justifying bail for stay " White v. Fitler, 7 Penn. St. 533. of execution. Qvcere? Whether the " Tidd 258-9. Commonwealth v rule of court extends to the case of v. Heilman, 4 Penn. St. 455. BAIL-PIECE AND SUEEENDEK. 179 deposit, in the hands of the sheriff, the sum in which bail is demanded ; which it is the duty of the officer to pay into court, to abide the result of the suit. If judgment be recovered against the defendant, so much of it as may be necessary, is to be applied in satisfaction thereof; if otherwise, it is to be forthwith returned to him, on application for that purpose. Such deposit may be made, after the return of the writ, and it operates as an appearance for the defendant, in like manner as if he had entered special bail to the action.^ § 318. Hability of bail. If judgment be recovered against the de- fendant, the bail are liable to the plaintiff for the damages and costs, unless discharged in some manner recognised by law. But, in order to fix special bail, a ca. sa. must first be issued against the principal, which must lie in the sherifif's office four days, exclusive of Sundays, before the return-day.^ The bail, however, can only avail himself of the omission, by a motion to quash ; it is no defence to an action on the bond.' The bail cannot be fixed by the issuing of a ca. sa. for an amount differing from the judgment ; but such matter must be pleaded.* And the bail are not liable, where judgment is entered by agreement against one only of the original defendants; and the judgment is, in efiect, a contract to deliver stock.'' Bail, in trover, for three defendants, are responsible for the appearance of them all.^ § 319. Surrender. Bail are discharged by a surrender of their prin- cipal. They are entitled to a bail-piece from the prothonotary/ in the following form : County, ss. In the Court of , C D., of the county aforesaid, delivered to bail upon a bond taken by me, J. S., sheriff [or other officer, as the case may be] of said county, the day of , to E. F., of the township of , in said county [yeoman], and G. H., of the township of- , in said county [merchant], at the suit of A. B., in a plea of [describing the action as described in the bond]. The defendant may surrender himself in any stage of the cause f or the bail may discharge themselves, by a surrender of their principal, at any time, within the fourteen days after the service of a scire facias or summons upon them.' And where it appears that the defendant was, in fact, surrendered before the return-day of the process against the bail, the court will order an exoneretur to be entered nunc pro tunc.^" In order to • Act of 1836, §? 20-2, 35, P. L. Bombaugh v. Robinson, 1 ^V. & S. 159. 576, 578 ; Purd. 47. See Commercial ' Walker v. Folsom, 2 Miles 102. Warehouse Co. v. Graber, 45 N. Y. * Ilighmore on Bail 70. 393_ Still V. Howard, 2 Miles 274. Casey ^ Johnson u. Rea, 1 Miles 159. v. Henry, 3 Clark 32. Commonwealth j). » Rodney v. Hoskins, 2 Miles 465. Malony, 3 W. N. C. 407. The first day Welsh V. Mead, 9 Phila. 261. of the term is included in the com- * Brotherline v. Mallory, 8 Watts putation of the four days allowed ex J 32 (/ratid. Cowles v, Brawley, 4 Watts "^Commonwealth v. Clay, 9 Phila. 358. 221 '" Harrison v. Jacquett, 3 Phila. 325. "« 'Briggs V. Wolf, 34 Leg. Int. 222. 180 CAPIAS AD EESPONDENDTJM. a surrender, the bail may depute another to execute a bail-piece.* They may take their principal, whilst attending court as a suitor ;^ and in another state ; but not as against a bond fide arrest in such state, by another creditor ;' and when the principal has been convicted by court- martial, in another state, the bail cannot take him out of the custody of the military authorities, until the sentence has been executed.* Bail from another state may arrest their principal, notwithstanding our act to abolish imprisonment for debt f and the principal cannot be taken out of the custody of his bail, by virtue of a domestic ca. sa.^ And where the bail has paid the debt, the court will not order an exoneretur, at the instance of the principal, before the latter has been taken.' After a sur- render, the bail, for his protection, should procure the entry of an exon- eretur, which he is entitled to, on a certificate of the keeper of the prison.' If the defendant be actually taken on a ea. sa., the bail is discharged ; and it is not usual or necessary to enter an exoneretur in such case. § 320. JExcuse of performance. The bail to the action are excused from the performance of the condition of the recognisance — by the act of God, as by defendant's death before the return of the capias ad satisfaci- endum; or by act of law, as by his becoming a bankrupt and obtaining his certificate, or being discharged under the insolvent debtors' act, &c. ; or by act or default of the plaintiff.^ § 321. Act of God. When the defendant dies before the return of the capias ad satisfaciendum, as it is impossible for the bail to render him, they are discharged from their recognisance ;'" but not, if the death happen after the return of the ca. sa. and before it is filed.'' And in this state, the bail of a lunatic may apply for a discharge, and upon showing the finding of an inquisition of lunacy, and that a surrender to prison would be prejudicial to the health of defendant, the court may order an exoneretur to be entered on the bail-piece.'^ § 322. Act of the law. The general rule by which the courts are governed, in the exercise of an equitable interference in these cases, is said to be this — that wherever, by the act of the law, a total impossibility or temporary impracticability to render a defendant has been occasioned, ' Holsey v. Trevillo, 6 Watts 402. after a compromise, by summons before " Broome v. Hurst, 4 Yeates 123. a judge. Notice must be given thereof, '_ Respublica v. Gaoler of Philadel- if done at the time of surrender, or phia, 2 Yeates 263. without a summons, and the bail-piece * United States v. Bishop, 3 Yeates 37. be discharged altogether, else the plain- ^ Mason's Petition, 6 Leg. Gaz. 110 ; tiff is right in proceeding even to a sci. s. c. 3 Luz. L. Reg. 54. fa., and the bail may be put to their " Holsey v. Trevillo, 6 Watts 402. audita querela. Highmore on Bail 79. ' Ketland ». Medford, 1 Binn. 497. » Tidd 289. " Williams v. Williams, 1 Salk. 98, '" Hayes v. Carrington, 21 How. Pr. pi. 3. Wild U.Harding, 8 Mod. 281. The 143. exoneretur is an entry on the bail-piece, " Olcott v. Lilly, 4 Johns. 407. Da- in all cases of surrender, or even com- vidson v. Taylor, 12 Wheat. 604. promise of a bailable action, essentially " Act 13 June 1836, g 56. P. L. 603 ■ necessary for the future safety of the Purd. 987. For the forms of the peti- bail ; and may be done, at the time of tion and order, see Smith's Forma surrender, or at any time after that, or 511-4. EXCUSE OF PEEFOEMANCE. 181 the courts will relieve the bail from the unforeseen consequences of hav- ing become bound for a party, whose condition has been so changed, by- operation of law, as to put it out of their power to perform the alterna- tive of their obligation, without any default, laches or possible collusion on their part.^ Thus, if before the return of the ca. sa., the principal be convicted in a criminal court, and imprisoned for life, an exoneretur will be entered.^ So, if he be convicted of a felony and sentenced to impris- onment for a long term of years.* And so also, it was held, that special bail might plead the effect of the act to abolish imprisonment for debt, which had taken away the right of surrender.* And a writ of error, with security, which operates as a supersedeas, discharges the special bail.° § 323. Bunkruptcy. When the defendant has become a bankrupt and obtained his certificate, before the expiration of the time allowed to the bail, by the indulgence of the court, for surrendering him, the court, on motion, supported by an affidavit of the facts, will order an exoner- etur to be entered on the bail-piece.^ The bail cannot plead the bank- ruptcy and certificate of their principal in their own discharge, but must apply to the court, on that ground, to be relieved on motion.' If the bail do not apply to enter an exoneretur on the bail-piece, till after proceed- ings have been had against them, they can only be relieved on payment of costs.' If the principal be discharged before the bail are fixed, an ex- oneretur may be entered at any time ; a delay in making the application only subjects the bail to the costs of the suit against them.' § 324. Insolvency. Generally, a discharge of the principal under the insolvent or bankrupt law, before the bail are fixed, entitles them to an exon&retur, without a surrender. And on payment of costs of the suit against the bail (not of the original suit), the court will order the exoner- etur to be entered, without the formality of a surrender, to avoid the unnecessary circuity of surrendering a person who would be immediately entitled to his liberation. Before the act of 1836, where the defendant, after being arrested and giving bail-bond, was discharged by the insol- vent act, it was not necessary to enter special bail ; the proper course was, to enter a common appearance; though special bail might have been entered, it would have been useless, as they would, at the same instant, have been entitled to an exoneretur}" The application, in case of the discharge of the defendant under the insolvent law, may be made by the bail, at any time before the return of the scire facias against them." § 325. Sow bail are relieved in such cases. The practical modes of relief, which the courts have adopted in such cases, are these three : (1.) In cases of total impossibility to render the defendant, arising ' 13 Price 525 n 383. » Cathcart v. Cannon, 1 Johns. Cas. ' 2 Chit. 104. 14 East 599. 1 B. & og Ad. 332. 8 Taunt. 28. » Loflin V. Fowler, 18 Johns. 335. « Boggs v. Teackle, 5 Binn. 332, 338. * Kelly V. Henderson, 1 Penn. St. ' Boggs «. Bancker, 5 Bmn. 507. 495. Gillespie v. Hewlings, 2 Ibid. 492. Thomae v. Brown 9 Watts 288 s Johnson v. Boyer, 3 Watts 379; '» Kmg «. Bank of Gettysburg, 2 Gibson C J Rawle 197. » Commonwealth v. Huber, 3 Clark " Boggs «. Teaokle, 5 Binn. 332, 338. 182 CAPIAS AD EESPONDENDUM. from an act of the law, relief is effected, by ordering an exoneretur to be entered ou the bail-piece, on motion for that purpose ; or, in the case of bail below, that the bail-bond be delivered up to be cancelled.^ (2.) In cases of temporary impracticability, arising from .the defend, ant being, at the time when he should be rendered, in legal criminal cus- tody, by ordering him to be brought up by habeas corpus, in order that he may be formally rendered in discharge of his bail.^ (3.) By enlarging the time for making the render, which is done in all practicable cases of temporary impossibility, occasioned by act of law, and even, perhaps, in other cases, under special circumstances, when the court cannot absolutely exonerate the bail, and, either from the consti- tution of the court itself, or the circumstances of the particular case, cannot enable them at once to make a formal render.' § 326. Aet or default of the plaititiff. If the plaintiff do not declare against the defendant in due time, so that the cause is out of court, his bail are discharged. By a rule of court, unless a declaration be filed within twelve months from the first day of the term to which an action is brought, or an appeal is entered, a non-pros, shall be entered by the prothonotary, as a matter of course, unless the parties otherwise agree in writing, or the court, upon cause shown, shall extend the time." The bail are not discharged by the issuing of a fi. fa. against the principal, and levying part of the debt f so, a temporary stay of execution, by agreement of the plaintiff, in consideration of a confession of judgment by the defendant, will not exonerate the special bail ; they are not thereby deprived of the right of surrender.' But it is a good plea to an action on a recognisance of special bail, that the principal departed from the state, with the license of the plaintiff, under an agreement that all pro- ceedings on the judgment against him should be stayed, until his return.^ And the entry of bail for stay of execution, operates as a discharge of the special bail. * § 327. Proceedings against the bail. After the bail are fixed, the plaintiff, having failed to obtain satisfaction from the principal, may proceed upon the bail-bond, to recover from the bail the amount of the judgment, with costs. No form of action is prescribed by the statute ; and, therefore, the proper mode of proceeding is, by action of debt, in the name of the commonwealth, for the use of the party aggrieved. An immaterial variance between the capias and the bond, is no defence to such action f as, the recital of an action of trespass on the case, instead of an action of trespass vi et armis.^ ,10 1 Postel «. "Williams, 7 T. R. 517. ' Niblo v. Clark, 3 "Wend. 24: s. c. ^ Tidd 293. 6 Ibid. 236. ' 13 Price 532-8 n. » Roup v. "Waldhouer, 12 S. & R. 24. * Rule xxvii. § 95. It seems, that Crutoher v. Commonwealth, 6 ^hart. the defendant is not actually out of 340. court, until the entry of a non-proa. ' Kelly v. Commonwealth, 9 Watts Dole V. Young, 11 Johns. 90. 43. ' Oloott V. Lilly, 4 Johns. 407. " Devereaux c. Esling, 7 Penn. St. ' Johnson v. Boyer, 3 Watts 376. 383. RETURN OF CAPIAS. 183 IV. Keturn and liability of tlie sheriff. § 328. Mettirn of the cajtias. It is the duty of the sheriff to return the writ at the return-day ; and if he fail to do so, he may be ruled to return it, aud proceeded against by attachment ; or, without being ruled to return the writ, he is liable to an action of case, for not returning it.' Ij tlie officer is unable to find the defendant, the return must be, non est inventus, or " N. E. I." But the officer should not make this return, when there are several persons in his bailiwick of the same name, so that he is at a loss whom to arrest ; in such case, the safest return would be, that he did not know whom to serve.^ If he make a false return of non est inventus, when he might have taken the defendant, he is liable to the plaintiff, in an action for a false return.^ If the sheriff be unable to find the defendant, and it is aeertained that he is not in the county, the pro- ceedings must be dropped, for a testatum capias does not lie in this state, as in Eugland ; in such case, a new action must be commenced in the proper county. § 829. When the defendant has been arrested, the return indorsed upon the writ is, " cepi corpus;" or, if bail has been taken, " cepi corpus and bail-bond."^ Under the act of 1836, the officer must return, along with the writ, at or before the return-day, the bail-bond, and must give notice, in writing, of the names and places of residence of the bail, to the plain- tiff, his agent or attorney.^ The prothonotary must file the bond and docket the names of the bail.^ If the defendant be arrested, and do not give bail, the officer must state that fact in his return.'' When the sheriff has arrested the defendant, he may return that he has him ready, or in custody, to answer the plaintiff; or, by way of excuse, he may return that the defendant is sick (languidus est), or has escaped, or been rescued ; or that the sheriff has discharged him, or delivered him over to another custody, by direction of the plaintiff, or by order of the court, or that he has been discharged from the arrest, under the act of assem- bly," by depositing a sum of money in lieu of bail.^ Although, when the sheriff has let the defendant go at large upon bail, the return " cepi cor- pus etparatum habeo," is not strictly true, yet it has been sustained in England.'" In this state, the return, in such case, has always been, " cepi corpus and bail-bond."" § 330. Effect of the return. If the officer, who is charged with the execution of the writ, return that he has taken the body of the defend- ant, or that the defendant has surrendered himself to his custody, he becomes chargeable to have the body of the defendant at the day of the return of the writ.'^ Where the plaintiff proceeded originally by capias, 1 See infra, 1 335. ' Ibid. ? 17. ^ Dalt, Sheriff 112-13. ' Ibid. ^ 20. ' Beokford v. Wilts, 2 Esp. 475. ' Tidd 308. ' White V. Fitler, 7 Penn. St. 534 ; "> Ibid 309. Ibid. 306 n. Gibson, C. J. " White v. Fitler, ut supra. ■ » Act of 1836, II 12, 13, P. L. 574 '" Act of 1836, 1 18, P. L. 575 ; Purd. Purd. 46. 47, • Ibid. P2. 184 CAPIAS AD EESPONDENDITM. indorsed " no bail required," which was not served according to the rule of court, the defendants not having subscribed a note in writing, empow- ering the prothonotary to enter their appearance, and the sheriff returned " cepi corpus, and defendants discharged on cominon bail," it was held, that the return was nugatory, and did not authorize an appearance to be entered.' § 331. Alias. If the sheriff, after receiving the writ, cannot find the defendant, he returns it non est inventus, in which case, the plaintiff may sue out an alias capias, commanding him, as before he had been com- manded, to take the defendant, or a pluries capias, commanding him, as oftentimes he had been commanded, into the same county ; and the plvr ries may be repeated, from time to time, until the defendant be arrested.^ It is the rule, in the practice of some states, that a second writ cannot be considered as an alias, if it be issued more than a year and a day after the first writ ; and it has been held, that an alias must be tested of the term to which the original was returnable, and be made returnable to the next ensuing term.* § 332. Where some of the defendants are not found. In such case, our practice differs from that of England, where process of out- lawry issues against the absent defendants ; in this state, we have no such process in civil actions, but the return of non est inventus has, for all the purposes of pleading, the same effect ; the plaintiff may declare against the defendant who has been served, stating that he is sued with the other defendants, " as to whom the sheriff has returned that they are not found in his bailiwick."^ But this is a matter of no practical im- portance, since the passage of the act of 1842, which has taken away the right to a capias, in joint actions ex contractu. The plaintiff, however, is not bound to drop a defendant who has not been taken ; but may bring him in by an alias, engrafted on the original writ.* In Philadelphia, the alias is entitled as of the same term and number as the original, and all proceedings are so entered upon the docket.' § 333. Liability of the sheriff. The general subject of the sheriff's liability for his acts and omissions, will be more fully considered here- after. It is sufficient to say here, that he is liable in damages for all improper acts, omissions and neglects of duty, whereby either party to the suit is prejudiced. His liability in respect to the Qxecution of the capias ad respondendum, may be conveniently divided into matters relat- ing : (1) To the service ; (2) To the return of the writ ; (3) Matters relating to bail ; (4) Escape. § 334. Service of the writ. When process against the body of the • Jones V. Orum, 5 Rawle 249. But " 1 Dunl. Pr. 119. in New York, where a defendant, upon » 1 Nott & McCord 171. an arrest on non-bailable process, re- * United States v. Parker, 2 DalL fused to indorse an appearance, and the 373. sheriff suffered her to go at large, and ' Dillmau v. Schultz, 5 S. & R. 36. returned cepi corpus, the court ordered Taylor v. Henderson, 17 Ibid. 456 common bail to be filed. Emmet v. ^ Stewart v. Abrams, 7 Watts 448 Bradstreet, 2 Cow. 449. ' Rule xxxii. §112. lilABILITY OF THE SHERIFF. 185 defendant has been issued, and delivered to the sheriff, he is bound to cause the arrest to be made ; and the day on which the writ is return- able, is the latest period allowed for making the arrest.'- If, by any cor- rupt practice, he omit to serve the writ, he is liable to an attachment, which will be awarded by the court, in which the writ is returnable, upon a bare suggestion, or its own knowledge. This, however, is alto- gether an unusual course, in our practice f if the sheriff were known to have corruptly omitted to serve the writ, the remedy here would be, by action. Should he refuse to arrest a defendant, who claims privilege, by reason of dignity, station or other circumstance, the plaintiff may main- tain an action against him, or rule him to return the writ ; and in either case, the question of the defendant's title to the privilege he claims, will be brought fully before the court.* § 335. Return of the ivrif. If the sheriff make no return to the writ, he may be proceeded against by attachment, after being ruled to return the writ f the object of this rule being to bring him into con- tempt. It is, however, the duty of the sheriff to return the writ, without being ruled to do it ; and, in case of his neglect, the party is not con- fined to his remedy by attachment, but may, at his election, bring an action on the case, for not returning it ; to which the sheriff cannot plead that he had never been ruled to return it.^ If the sheriff make a false return, that is, if he return non est inventus to the writ, where he might have taken, but has neglected to take, the defendant, he is liable to an action for a false return, at the suit of the plaintiff in the writ." The informal return, "served and delivered to court," is, in substance, the formal return, in the English practice, where the prisoner is not too sick to be removed. It would seem, that it is better than the one established by our practice, although loosely worded ; and is sutficient, in case of an escape, to fix the sheriff's sureties.^ § 336. Bail. After taking bail on an arrest upon original process, and complying with the injunction contained in the 13th section of the Act of 1836, to return the bond along with the writ, and give notice in writing of the names and places of residence of the bail to the plaintiff, his agent or attorney, the liability of the sheriff ceases, so far as the sufiiciency of the bail is concerned, if the plaintiff shall not except to the bail, within the time allowed for that purpose; or, if, upon excep- tion made, the bail shall justify to the satisfaction of the court, or of the commissioner appointed for that purpose ; or, if, upon such excep- tion, other bail shall be added or substituted, and so justify.* If the bail fail to justify, the sheriff continues liable; and such liability may ' Adams v. Freeman, 9 Johns. 117. '1 Arch. Pr. 140. Maud V. Barnard, 2 Burr. 812. Rob- * 2 Saund. 61 e. ertson v. Douglas, 1 T. R. 191. * Bank v. Campbell, 15. Johns. 4.56. * A rule of the court No. 3, provides ' Beckford v. Wilts, 2 Esp. 475. for the punishment of the officer in ' Beale v. Commonwealth, 7 Watta such cases, by attachment, informa- 187. tion, commitment or fine, as the case ' Act of 1836, 1 16, P. L. 575 ; Purd may require. Rule xxxvii. ^ 121. 46. 186 CAPIAS AD EESPONBENDUM. be enforced, by a rule to bring in the body, followed by an attachment in case of non-compliance.^ § 337. Escape, Where there has been no omission or neglect to arrest, or to return the writ, but the sheriff has discharged the defendant, without taking a bail-bond, or the latter has escaped from the sheriff's custody, without giving bail, it is a breach of his duty ; for which he is answerable in an action for an escape.^ If the officer charged with the execution of the capias return that he has taken the body of the defend- ant, or that the defendant has surrendered himself to his custody, he becomes responsible for the production of the body of such defendant at the return-day.^ In this action, if the escape were involuntary, evidence of the original defendant's circumstances or insolvency, at the time of the escape, would be competent, in order to show the extent of the plain- tiff's actual loss,* and nominal damages may be given.^ This doctrine applies only to escapes or false returns on mesne process, and not on final,^ when the plaintiff sues in debt f but, if the plaintiff bring an action on the case, as he may do, he can only recover the actual dam- ages sustained.* § 338. Proceedings against sheriff. If there be no bail-bond, or if there be one, but the bail, being excepted to, do not justify, the plaintiff proceeds to compel the sheriff to bring in the defendant's body. This course, however, can only be pursued, after the writ has been returned, and, therefore, if the sheriff has not returned it, he must be ruled to do so.' When a rule is taken against the sheriff to return the writ, a copy of the rule, which is obtained on motion of counsel, must be served on the sheriffj or one of his deputies or officers. The sheriff must return the writ, on or before the day on which the rule expires, otherwise, the plaintiff may move for an attachment ; this attachment is moved for, upon an affidavit stating a personal service of a copy of the rule, and that the writ has not been filed.'" But he has the whole of the day on which the rule to bring in the body expires, to bring it in ; therefore, the contempt is not incurred, till that day be past, and, of course, an attachment cannot be moved for, until the next day." § 339. The usual proceeding, in our practice, to compel the sheriff to return the writ, or to bring in the body, is by attachment ; which process will lie against a former sheriff, at any time within two years after the termination of his term of office.'^ But the plaintiff may also proceed by distringas (or distress), under the act of 1803,'* which provides, that the ' Fitler V. Bryson, 6 W. & S. 566. & B. 273. Smith ». Commonwealth, White V. Fitler, 7 Penn, St. 533. Lit- 59 Penn. St. 320. tleboy V. Blankman,-! Miles 279. ' Shewell t). Pell, 3 Yeates 17 : s. c. Cummings v. Meeker, 2 Ibid. 83. 4 Ibid. 47. Duncan v. KUnefelter, 5 2 Sauud. 61 c. Watts 141. J Act of 1836, i 18, P. L. 575 ; Purd. « Shuler v. Garrison, 5 W. & S. 455. 4': „ » 3 Bl. Com. 291. Huron v. Proctor, Sup. Court, '» 1 Arch. Pr. 95. ^^f.J]f ^ " 2 Saund. 61 e. Weld V. Bartlett, 10 Mass. 470. " Act 16 June 1836. i 28, P. L. 793 i Kussell V. Turner, 7 Johns. 189. Purd. 273. * Wolverton v. Commonwealth, 7 S. '» 4 Sm. L. 49; Purd. 1307 PEOCEEDINGS AGAINST THE SHERIFF. 187 30urt may, by a rule for that purpose made, order and direct that the issues levied, from time to time, shall be sold, aud the money arising thereby be applied, in the first instance, to pay such costs to the plain- tiff as the said court shall think just, under all the circumstances, to order, aud have the remainder thereof in court, to be retained until the defendant shall have appeared, or other purpose of the writ be answered, or to be rendered to the plaintiff for his debt, damages aud costs, where the same shall be ascertained ; provided that where the purpose of a writ is answered, the said issues shall be returned, or, if sold, ^^•hat shall remain of the money arising by.such sale, shall be repaid to the party distrained upon. § 340. The attachment, either for not returning the writ, or not bring- ing in the body, is a criminal process, directed to the coroner, when it issues against the present sheriff; or, when against the late one, to his successor ;' commanding him to attach the sheriff The sheriff cannot be discharged from the attachment for not bringing in the body, except upon the payment of the whole debt and costs f neither can he be relieved, on the ground of the defendant's death, after the contempt was incurred, and before the attachment issued.^ But he is not liable beyond the penalty of the bail-bond.* The proceedings against the sheriff may be stayed, upon terms, in order to let in a trial on the merits ; but where the sheriff has been guilty of a breach of duty, in discharging the defendant from custody, without the plaintiff's assent, upon his own undertaking to appear and put in bail, instead of taking a bail-bond, the court will not assist him, by staying the proceedings, in an action for an escape, or by setting aside the attachment." The sheriff, after being obliged to pay the debt aud costs, may put the bail-bond in suit against the bail ; though, in general, he is reimbursed by his officer, and the latter then brings the action in the sherifi"'s name. ' 1 Sell. Pr. 201. R. 133. ^ 2 Saund. 61 f. Heppel v. King, * King v. Sheriff of Middlesex, 3 7 T. R. 370. Towlds v. Mackintosh, 1 East 604. II Bl 233. * Fuller v. Prest, 7 T. R. 109. ' King V. Sheriff of Middlesex, 3 T. CHAPTER VIII. Of the Warrant of Arrest. Natoi-e of the -warrant of arrest, J 341. Hearing, ^ 349. How obtained, § 342. Artjournment, j 350. Grounds of arrest, g 343. . Bond for adjournment, § 351. Effect of the bankrupt law, § 344. Commitment, § 352-3. Plaintiff's affidavit, §345. Defendant's bond, §354-6. Jurisdiction, § 346. Discharge, | 357. Form of the warrant, § 347. Costs, | 358. Mode of service, § 348. § 341. The act of 1842, by which imprisonment for debt is abolished, in certain cases, has given a new form of process, under which a defendant may be arrested, in case of fraud, termed a warrant of arrest ; it does not supersede the writ of capias, but is employed in cases to which that writ does not apply, by the terms of the statute. It is a remedy, purely civil, to enforce a debt or demand ; and is for the benefit solely of the pursu- ing creditor.' Its great and leading object is, to constrain the defendant to pay the debt, give security therefor, or take the benefit of the insol- vent laws ; the arrest and subsequent proceedings are but the means to accomplish these objects.^ The intention of the legislature was to supply a remedy, to take the place of the arrest upon original or final process, in the cases in which such arrest was abolished by the act ; and the pro- ceeding is, therefore, confined to those cases only where the defendant is exempted from arrest by the first section of the statute.' It cannot issue against a female ; they are exempted from arrest, not by the act of 1842, but by that of 1836 ; and, therefore, the statute has no application.^ Its purpose is to limit arrests to cases where there appears to be a strong pre- sumption of some kind of fraud on the creditor, or on creditors generally ; and this presumption is sufficiently shown, when a judge, on hearing the case, is satisfied that the fraud described in the act has been proved.' § 342. The action must be commenced by summons, in the ordinary way, after which, the plaintifi!" may have a warrant of arrest, at any stage of the action, and even after final judgment. . To obtain such warrant, the plaintiff" must apply to a judge of the court in which the action is pending, and must establish, to the satisfaction of the judge, either by his own affidavit, or by that of some other person, the existence and charac- ter of the debt or demand, and its amount, as near as may be.'' The affi- davit may be sworn to before a justice of the peace, or other magistrate.^ 1 Neal V. Perry, 3 Clark 65. Com- * Qosline v. Place, 32 Peun. St. 52G ; monwealth !). Daniel, 4 Ibid. 49. Gos- Lowrie, J. line «. Place, 32 Penn. St. 520. « Act of 1842,J 2, P. L. 339 ; Purd. '' Bishop V. Loewen, 1 Clark 371. 50. The affidavit must show a good ' Neal V. Perry, 3 Clark 67. cause of action. Bell v. Mali, 11 How. * Morria v. Hof heimer, Dist. Court, Pr. 254. Phila., 6 June 1860. MS. ' Wagner v. Baker, 2 Am. L. J. 224. (189) 190 WAEEANT OF AEEEST. § 343. If the demand be one of such a nature that the defendant would be otherwise privileged from arrest, by virtue of the provisions of the first section of the statute, the affidavit must then establish, to the satisfaction of the judge, one or more of the following particulars : (1.) That the defendant is about to remove any of his property out of the jurisdiction of the court, in which suit is brought, with intent to defraud his creditors :^ (2.) That he has property which he fraudulently conceals •? (3.) That he has rights in action, or some interest in any public or corporate stock, money, or evidence of debt, which he unjustly refuses to apply to the payment of any judgment that may have been rendered against him, belonging to the complainant •? (4.) That he has assigned, removed, or disposed of any of his property, with the intent to defraud bis creditors :* (6.) That he fraudulently contracted the debt, or incurred the obliga- tion, respecting which suit is brought.' Upon these facts, or any of them, being established, the judge is bound to issue the warrant. § 844. It was formerly held, that since the passage of the bankrupt law of the United States, a warrant of arrest could Bot issue for any cause which would amount to an act of bankruptcy, under that act.* But it has since been decided by the supreme court, that, inasmuch as a fraudulent debtor cannot entitle himself to a discharge under the bank- rupt law, that statute does not supersede the remedy by warrant of arrest under the act of 1842.^ Nor will an injunction issued by the ' An open change of residence to wealth v. Duncan, 1 Pitts. 207. Under another state, without proof of an in- this clause, the fraudulent intent must tent to defraud, does not render the besatisfaetorilyshown ; itisnotenough, party liable to arrest. Flour City Bank that the removal would be enjoined in !). Hall, 33 How. Pr. 1. Anon., 2 Code equity. Neitlinger v. Wetzel, Com. R. 51. But see Norman v. Manciette, Pleas, Schuylkill, March 1875. MS. 1 Saw. 484. ' Under this clause, the fraud must ^ Money is not property within the have been in the contracting of the meaning of this clause. Asbury v. debt ; for a subsequently fraudulent em- Strickler, Com. Pleas, Lancaster, Feb- bezzlement, the remedy is by capias, ruary 1849. MS. Hamill v. Rawlston, 9 Phila. 52. ' The officer who grants the warrant Fraudulent representations, inducing a is to judge whether the refusal is un- sale to the defendant, are within this just. Hall 0. McKnight, 3 Am. L. J. clause. Gallagher u. Norcross, 7 Phila. 374. And it is not a just cause of re- 623. In an action upon a judgment, fusal, that the judgment was obtained the plaintiff cannot have a warrant of against the defendant as an indorser, arrest, on the ground of fraud in con- and that his assets are not more than traoting the original debt. Mallory v. sufficient to satisfy his personal obliga- Leach, 23 How. Pr. 507. McButt tions. McClurkan v. Simpson, 1 Pitts, v. Hirsch, 4 Abb. Pr. 44L 171. See Steward v. Biddlecum, 2 N. " Commonwealth jj. O'Hara, 6 Phila. Y. 103. People i'. Recorder of Albany, 402. s. p. Tobiu u. Trump, 3 Brew.st. 6 Hill 429. 288. * If a defendant, who has reduced ' Scully u. Kirkpatrick, 79 Penn. St. his wife's choses into possession, subse- 324. s. p. Bates «. Rowley, 33 Loi;. quently purchase real estate in her Int. 22. Gregg u. Hilsen, 34 Ibid. 20. name, it is a fraudulent di.sposal of his Ex parte Migel, 2 Bank. Reg. lo.-i. property, within the act. Common- Ex parte Kimball, 2 Ben. 38. LIABILITY TO AEEEST. 191 court of bankruptcy suspend proceedings in the state court, against the bankrupt, for fraud or embezzlement.^ But if one who has been arrested, and given bond to apply for his discharge as an insolvent, be subse- quently adjudicated a bankrupt, the proceedings in insolvency are at an end, and the sureties are released — the party having already been divested of all his property by the decree in bankruptcy.^ These decis- ions, however, have been rendered obsolete, by the repeal of the bank- rupt law. § 345. The fraud contemplated by the act, as sufficient to justify an arrest, must be actual not constructive ; and, therefore, one cannot be arrested for fraud committed by his copartner, without his actual parti- cipation.* It is sufficient, that the affidavit set forth a case of fraud in general terms ; it is enough, in the first instance, that it show probable cause to the satisfaction of the judge; for, ou the hearing, the defendant may, on oath, deny all the allegations, and demand full proof of the facts.* An affidavit disclosing the nature and amount of the debt, and charging that the defendant has property which he fraudulently con- ceals and unjustly refuses to apply to the payment of his indebtedness, and that he has removed and disposed of large amounts of property to defraud his creditors, is sufficient.^ It is not material, that the fraud was not alleged in the declaration ; the act does not require the fraud to be alleged in the pleadings, but in the affidavit;* and it is immaterial whether the fraud was committed in or out of the state.' § 346. A justice of the peace or alderman has no jurisdiction to issue a warrant of arrest, under the act of 1842.' Nor can a judge of the court of common pleas issue such warrant, upon a justice's transcript filed for the purpose of creating a lien on real estate.' Nor can such warrant issue, pending proceedings under a fieri facias on the complain- ant's judgment;'" nor pending a levy on real estate.'' § 347. The statute provides a form of warrant, as follows : County, ss. The Commonwealth of Pennsylvania : To the sheriff, or any constable of county, greeting : Whereas, com- plaint has this day been made before me, on the oath [or affirmation, as ' Horter v. Harlan, 9 Phila. 63. 5 Barb. 575. Blason v. Bruno, 33 Ibid. ^ Barber v. Rodgers, 71 Penn. St. 520. See Hitohoock v. Peterson, 14 362. And see Goodwin v. Sharkey, Hun 389. 5 Abb. Pr. (N. S ) 64. * Commonwealth ». Christopher, 22 ' Bassett v. Davis, 1 Clark 310. Penn. St. 450. Corwin v. Freeland, And see Hefner v. Kantner, 4 Le^. 6 N. Y. 560. 6az. 249. Hitohoock v. Peterson, 14 '' Gosline v. Place, ut supra. John- Hun 389. son V. Whitman, 10 Abb. Pr. (N. S.) * Gosline v. Place, 32 Penn. St. 111. Brown u. Ashbough, 40 How. 520. Pr. 226. 5 Berger v. Small, 39 Penn. St. 302. ' Woodt). Bell, 1 Pitts. 180. The affidavit must state that a suit has ' Wraith v. Vandewater, 2 Pars, been commenced. Hefner v. Kantner, 251. Wade v. Butcher, Com. Pleas, 4 Leg. Gaz. 249. It must be positive Phila., 25 March 1848. MS. as to 'the facts and circumstances relied 'o Commonwealth v. O'Hara, 6 Phila. on ; but the intent of the debtor may 402. he stated ou belief. Mosher v. People, " Neal v. Perry, 3 Clark 65, 192 WARRANT OF ARREST. the case may be] of [here insert the name of the party making the affi- davit], setting forth [here briefly set forth the complaint.] These are, therefore, to command you to arrest the said , and bring him [or them, as the case may be] before me, at my office in [here insert the resi- dence of the judge], without delay, to be dealt with according to law. And have you there also this precept. Witness my hand, at , this day of . , Judge. After a hearing and commitment, it is too late to take exception to the form of the warrant.' § 348. The warrant is to be accompanied by copies of all the affidavits presented to the judge, which are to be certified by him, and be delivered to the defendant by the officer, at the time of making the arrest. The defendant, when arrested, is to be brought before the judge who issued the writ ; and the officer is required to keep him in custody, until fully discharged or committed.^ . The proceedings on the warrant are not part of the record in the cause, but merely incidental and collateral thereto. The warrant does not issue from the office of the prothonotary, and is not under the seal of the court. It is issued by the judge himself to the sheriff, or any constable, who is nowhere required to make any return into the office, or to the court, but who executes the warrant, by arresting the defendant, and bringing him before the judge who issued it, and keeping him in custody, until he is duly discharged.' § 349. Hearing. The defendant, on his appearance before the judge, may controvert any of the allegations in the plaintifi"s affidavits ; and may, at his option, verify his statement by his own affidavit ; and in that case, the complainant may examine him on oath, touching any fact or circumstance material to the inquiry, and the answers, on such examina- tion, are to be reduced to writing, and subscribed by the deponent.* The affidavit on which the warrant is founded, is primd facie evidence on the hearing, so as to cast the burden of proof on the defendant.' And the act requires something more from a defendant than his simple denial of the facts and circumstances on which the warrant was issued ; there should be an answer, plea, excuse or justification given to the charge made against him, to entitle him to a discharge.^ The judge may receive such other proof as the parties may offer, either at the first appearance or at any adjourned hearing.' And he has the same power to subpoena witnesses, and to compel them to testify, as is vested in the ' Commonwealth v. Christopher, 22 230. For form of counter-affidavit, see Penn. St. 450. Smith's Forms i!9, pi, 20. ^ If the officer permit the defendant ^ Berger v. Small, 39 Penn. St. 302. to go at large, without bail, he is liable Spencer v. Hilton, 10 Wend. 608. for an escape, Latham v. Westervelt, " Ilall v. McKnight, 3 Am. L. .J. 374. 16 Barb. 421 ; s. c. 26 Ibid. 256. ' Act of 1842, _| 6, P. L. 340, Puvd. ' Scully V. Kirkpatrick, 79 Penn. St. 51. The plaintiff may show other 330 ; Sharswood, J. contemporaneous frauds of the de- * Act of 1842, § 6, P. L. 340 ; Purd. fendant. Scott v. Williams, 23 How 51. Johnson v. Florence, 32 How. Pr. Pr. 393. ADJOUENMENT AND HEARING. 193 court of whicli he is a judge.' The examination of the debtor, or the answer of a witness, in this proceeding, are, by the twenty-second section of the act, inadmissible in evidence against the witness, in a subsequent action against him.^ § 350. Adjournment. When the judge adjourns the hearing, he may take a bond, with or without surety, conditioned for the appearance of the party arrested, at the adjourned hearing.^ This bond is well taken in the name of the judge.* The act requires the defendant to give bond to appear, but not to appear, answer and abide the decision ; if, there- fore, he appears on the day fixed, the condition is complied with, and his surety discharged ; in case of a second adjournment, there should be a second bond.° And this is so, even in case of a necessary adjournment of the hearing from one evening until the following morning.^ A bond conditioned for the debtor's appearance, from time to time, and from place to place, is void7 If the defendant do not appear, in pursuance of his bond, the judge has no power to declare a forfeiture thereof; that is a matter en pais ; and, therefore, the defendant, in a suit on the bond, may show that performance of the condition became impossible by the act of God ; as, by his being stricken down by sickness, at a distance from the place of hearing.* § 351. The following condition of such bond may be adopted : — " Whereas, the said A. hath been arrested, by virtue of a warrant of arrest, issued by the Honorable John Jones, president judge of the said court, on the complaint of B., that the said A. is indebted to him, the said B., in the sum of dollars, for which he hath commenced suit in the said court, and that the said A. fraudulently contracted the said debt ; and the said judge, on the said A. being brought before him, by virtue of the said warrant, hath adjourned the further hearing of the said complaiat, until the day of instant, at ten o'clock in the forenoon of that day, at the chambers of the said judge, No. street, in the city of Philadelphia : Now the condition of this obligation is such that, if the above-bounden A. shall appear at the said adjourned hearing, at the time and place aforesaid, then this obligation to be void." The defendant's attorney, on appearing before the judge, should be pre- pared with a bond for adjournment, in blank, to avoid the delay incident to drawing it at the judge's chambers. § 352. Commitment. If the judge be satisfied that the allegations ot the complainant are substantiated, and that the party arrested has done, or is about to do, any of the acts specified in the third section, he is to issue a commitment, under his hand, reciting the facts of the case, and directing that the defendant be committed to the jail of the county 1 Act of 1842, § 7. 303. ' Dhler v. Maulfair, 23 Penn. St. ' Ibid. 481. See Union Bank v. Barker, 3 « Noble v. Long, 4 W. N. C. 61. Barb. Ch. 358. Siffkin ». Manning, ' People v. Locke, 3 Sand. 443. 4 Edw. Ch. 37. * Scully v. Kirkpatrick, 79 Penn. ' Act of 1842, ? 6. St. 324. * McClelland v. Smith, 12 Penn. St. VOL. I. — 13 194 WAEEANT OF AEEEST. where the hearing is had, to be detained until discharged by law ; and thereupon, the defendant is to be so committed, and to remain in custody, until so discharged.' A commitment is sufficient, which recites the alle- gations of the affidavit, the arrest and hearing of the parties ; and sets forth that, after hearing, the judge was satisfied that the demand of the plaintiff was on contract, and that the allegations were substantiated, " in that the said defendant had assigned and disposed of his property, with the intent to defraud his creditors," or " that he had fraudulently contracted the debt respecting which the suit was brought;" it is not necessary to specify in the commitment, the particular forms in which the defendant had assigned and disposed of his property, or perpetrated the frauds charged against him.^ So, a warrant of commitment, reciting a warrant of arrest, founded on satisfactory proof that defendant fraudu- lently contracted the debt, and that, after his arrest, the evidence and proofs of the parties were heard, which satisfied the judge that the debt had been fraudulently contracted, is sufficient.^ § 353. If the commitment be deemed erroneous by the defendant, he may have a certiorari to bring the matter for review by the supreme court ; with a common-law habeas corpus cum causd, to remove the body ; and the court, on the return of the habeas corpus, may admit him to bail, to appear at the hearing of the certiorari, and abide the event ; and will direct the recognisance of bail to be so framed as to be adapted to the exigencies of the case.* The supreme court, on certiorari, will not review the opinion of the judge who granted the warrant of commit- ment, in regard to the proofs before him, but only the regularity of the proceedings ; if these be in all respects regular, his judgment must be executed." When the defendant has been committed, he must remain in custody, until discharged in one of the modes hereafter mentioned. § 354. Defendant's bond. Besides the obvious course of payment of the debt and costs, the defendant may avoid a commitment, by giving bond, in the mode provided by the act, either for the security of the debt ; the non-removal of his property, pending the suit ; or that he will apply for the benefit of the insolvent laws. If he elect to give security, for a judgment already obtained, and the legal stay of execution has expired, the security must be for the payment of the debt, interest and costs, within sixty days ; if, however, the legal stay of execution has not expired, and will not expire for more than sixty days after the giving of security, then the time of payment is to be fixed for the expiration of the stay of execution ; and if the legal stay of execution has not expired, but will expire within sixty days from the giving of security, then the time of payment is to be fixed for the expiration of sixty days ' Act of 1842, I 8. 6 Berger v. SmaU, 39 Penn. St. 302. = Gosline v. Place, 32 Penn. St. 520. A defendant will not be committed, if ' Commonwealth «. Christopher, 22 he has already given a bond to apply Penn. St. 450. See Smith's Forms 31, for the benefit of the insolvent law ; a pl- 22. new bond would be nugatory. Bassett * Gosline v. Place, 32 Penn. St. 520 : v. Davis, 1 Clark 310. for form of recognisance, see Ibid. 524. defendant's bond. 195 from the giving of security.* Where the plaintiff has not yet obtained judgment, at the time of giving security, the day of payment is to be regulated by the same rule ; but in no case can security to pay the debt, before the recovery of judgment, be required.^ § 355. Where the only fraudulent design established against the defendant, at the hearing, is, that he is about to remove his property out of the jurisdiction of the court in which suit is brought, with in- tent to defraud his creditors, he may execute a bond to the complain- ant, in a penalty not less than twice the amount of the debt or demand, with such sureties as shall be approved by the judge, at the hearing, con- ditioned that he will not remove any property which he then has, out of the jurisdiction of the court in which suit is brought, with intent to defraud any of his creditors ; and that he will not assign, sell, convey or dispose of, any of his property, with such intent, or with a view to give a preference to any creditor, for any debt antecedent to such assignment, sale, conveyance or disposition, until the demand of the complainant shall be satisfied, with costs, or until thirty days after final judgment shall be rendered, in the suit brought for the recovery of such demand.* § 356. He may enter into a bond to the complainant, in a penalty not less than twice the amount of the debt or demand, with such sureties as shall be approved by the judge, at the hearing, conditioned that he will, within thirty days, apply by petition to the court of common pleas of the county, or to a judge thereof, if the court shall not, within that time, be in session, for the benefit of the insolvent laws of the state ; and that he wiU comply with all the requisitions of such laws, and abide all orders of the court in that behalf, or, in default thereof, and if he fail in obtaining his discharge as an insolvent debtor, that, on the day of his 60 failing, he will surrender himself to the jail of the county.^ After executing such bond, the defendant must not sell, assign or dispose of any part of his property, not exempted by law from execution, except so far as may be necessary for the support of himself and family, until he is discharged.* The application for the benefit of the insolvent laws may be made in the usual form f but the bond is forfeited by an omis- sion to apply within thirty days from its date ; it is not enough, that the application be made at the next term of the common pleas.^ § 357. Discharge. After a commitment, the defendant may be dis- charged, either by obtaining a final judgment in his favor in the suit, or by an assignment of his property to trustees for the benefit of his cred- itors, and obtaining a discharge in insolvency.* Upon the presentation 1 Act of 1842, ? 9, uU supra. The see Smith's Forms 32-7, pi. 23-7. stay allowed by law is six months on ' Act of 1842, g 10. judgments not exceeding $200, nine * Ibid. § 11. months on those over $200 and less than * Ibid. § 35. If it appear that he $500, and twelve months on those ex- has done so, he cannot be discharged, ceeding $500, to be computed from the « Beale v. Sparks, 1 Phila. 18. But first day of the term to which the ac- see People v. Bancker, 5 N. T. 106. tion was commenced. Act 16 June ' Haviland t>. Hayward, 35 Penn. St. 1836, § 3, P. L. 762 ; Purd. 634. 459. * For forms of bonds under this act, ' Act of 1842, § 13. 196 WARRANT OF ARREST. of a petition for the benefit of the insolvent laws, in the usual form, the court or judge is required to fix a time for the hearing, which must be during the next session of the common pleas, and at least thirty days after the presentation of the petition ; and the petitioner and his creditors are to be heard before the court, unless it shall make an order for a hearing before a single judge, who, in such case, has all the powers con- ferred by the statute.' The proceedings are to be, in all respects, as provided by the act of 1836, relating to insolvent debtors, as to notice to the creditors ; in deciding upon the case ; in making orders ; directing an assignment by the petitioner; and in all proceedings touching his property. And the court or judge has the same power over the trustees appointed in pursuance thereof.^ If the defendant be bound over and convicted of fraudulent insolvency, and his petition be thereupon dis- missed by the court of common pleas, and he do not surrender himself, an action will lie upon the bond, though there be a motion in arrest of iudgment, in the criminal case, which is undisposed of.' The defendant may also be discharged, at any time, by giving security, or executing bond, as mentioned above.* § 358. Costs. If the complaint be dismissed, on the hearing, the com- plainant is liable for all fees to officers, and for all costs incurred by the party arrested ; the fees of officers are the same as for similar services in other eases, and those of witnesses the same as are allowed in suits before justices of the peace ; if the complaint be sustained, the com- plainant recovers costs of the party arrested, which are to be taxed or allowed by the proper officer, and to be recovered with the other costs of the suit. 1 Act of 1842, § 14. « Power I). Graydon, 53 Penn. St. 198. ^ Ibid. ? 15-16. * Act of 1842, g 12. CHAPTER IX. Commencement of Actions by Attachment. Remedy by attachment, § 359. Interpleader and lien of attachment, When an attachment lies, J 360. § 366. Affidavit, §361. Dissolution, § 367. Issuing of the writ, ? 362-3. Proceedings in the suit, ? 368-9. Service, ? 364. Convicts, § 370. Seizure and bond, § 365. Torts, ? 371. § 359. The ancient mode of commencing personal actions was by sum- mons, attachment and distringas} In practice, there was no actual ser- vice of the summons, so that the first process by which the defendant was notified of the pendency of the suit against him, was by an attach- ment of his goods. This process, however, gradually fell into disuse, and personal actions were commenced by capias or summons f but we still retain a vestige of the old common-law practice, in the form of a declaration, in a personal action, which recites that A. B. was attached to answer C. D. of a plea of trespass on the case, &c. The writ of capias, however, having been taken away by the act of 1842, and the warrant of arrest proving an insufficient remedy for the pursuing creditor, the legislature, by statute, has given the attachment, as original process for the commencement of actions, in certain cases. This will be the subject of the present chapter ; the special remedies by foreign and domestic attachment will be separately considered in the second volume. § 360. The act 17 March 1869^ provides, that the prothonotary of any court of record in this commonwealth, shall issue an attachment against any defendant or defendants, upon proof, by the affidavit of the plaintiff or plaintiffs, or any of them, or of any other person for him, her or them, that the defendant or defendants are justly indebted to him, her or them, in a sum exceeding one hundred dollars, the nature and amount of such indebtedness being set forth in said affidavit;* and also — (1.) That said party defendant is about to iemove his, her or their property out of the jurisdiction of the court in which said attachment is applied for, with intent' to defraud his, her or their creditors : or — (2.) That said party defendant has property, rights in action, or inter- est in any public or corporate stock, money, or evidences of debt, which he, she or they fraudulently conceal ■? or — 1 3 Bl. Com. 279-80. Gilb. C. P. 7. ' P. L. 8 ; Purd. 53. 1 Reeves 452. * This excludes actions ex delicto. ' Prior to the statute 12 Geo. I., con- Shaffer v. Mason, 43 Barb. 501. At- ferring the right to enter a common lantic Mutual Insurance Co. v. Mo- appearance for the defendant, the only Loon, 48 Ibid. 27. mode of compelling an appearance was * See Treadwell v. Lawlor, 15 How. by summons and distringas. 1 Sell. Pr. 8. Pr. Introd. 62. (197) 198 ATTACHMENT. (3.) That said party defendant has or have assigned, disposed of, or removed, or is about to assign, dispose of, or remove, any such property, money, rights in action, interest in public or corpor- ate stock, or evidences of debt, with intent to defraud his, her or their creditors :' or — (4.) That he, she or they fraudulently contracted the debt, or incurred the obligation for which such claim is made.' § 361. Affidavit. The attachment is a returnable writ, issued out of the prothonotary's office, under the seal of the court, not, as in case of a warrant of arrest, on the production of evidence to the satisfaction of a judicial officer, but as a matter of course, on the praecipe of the plaintiff's attorney, and the £ling of the affidavit required by the statute ; it is, therefore, held, in Philadelphia, that the affidavit must set out, with par- ticularity, the facts establishing the complaint ; and that a mere allega- tion of fraud, or fraudulent intent, in the words of the statute, is not sufficient to sustain the proceeding f and the practice is the same in Dauphin county.* But other judges have held that an affidavit drawn in the words of the act, is sufficient.' Under the former practice, a supplemental affidavit is not allowed ; the proceedings must stand or fall on the original affidavit.^ But where the writ is founded on an affidavit in the words of the statute, it is held, that a supplementary affidavit may be filed, on a motion to dissolve f in such case, the court will permit the plaintiff to prove specific acts of fraud, or acts indicating a fraudu- lent intent on the part of the defendant.' § 362. Issuing of the writ. To obtain a writ of attachment, the plaintiff must file a praeipe with the prothonotary, directing him to issue the writ, in case, debt, or as the case may be, returnable as any other writ; to which must be appended an affidavit, setting forth a good cause of action, and one or more of the special causes for the issuing .of the writ, specified in the act. He is also required by the statute to exe- cute and file with the prothonotary, a bond, in a penalty of at least double the amount claimed, with good and sufficient surety (to be approved by the prothonotary or one of the judges of the court of com- mon pleas of the county'), conditioned that if the plaintiff or plaintiffi ^ See Skinner v. Oettinger, 14 Abb. 111. Miller v. Smith, 34 Leg. Int. 68. Pr. 109. Greenleaf v. Mumford, 30 ' Rheiustrom v. Green, 7 Leg. Gaz. How. Pr. 30. 254. 2 See Glaflin v. Einstein, 6 "W. N. C. » Ferris v. Carleton, 8 Phila. 549. 398. Hepler v. Kehler, 1 Leg. Chrou. 47. ' Bom V. Zimmerman, 8 Phila. 233. " So amended by act 25 May 1878, Moyer v. Kellogg, 1 W. N. C. 134. P. L. 147 ; Purd. 2085. It is provided Bond V. Wheeler, Ibid. 282. Wald- by rule of court, that in every case man ». Fisher, Ibid. 360. Teneyck v. where, by act of assembly or rule of Hoffman, 2 Ibid. 82. Robinson v. At- court, surety is required to be approved kins, Ibid. 111. by a judge or the prothonotary, the * Miller u. Smith, 34 Leg. Int. 68. party presenting such surety for ap- * Ferris v. Carleton, 8 Phila. 549. proval, shall, at the same time, present Richards v. Donaugheyj 34 Leg. Int. to the judge or the prothonotary, an 98. Hepleru. Kehler, 1 Leg. Chrou. 47. alEdavit, signed by the surety offered, ' Robinson v. Atkins, 2 W. N. C. and duly sworn or af5rmed. plaintiff's bond. 199 shall fail to prosecute his, her or their action with effect, and recover a judgment against said defendant or defendants, he, she or they shall pay to said defendant or defendants all legal costs and damages which said party defendant may sustain by reason of said attachment ; which bond is to remain in the office of said prothonotary, for the use of any party injured.' § 363. An attachment may issue, under this act, notwithstanding the pendency of a suit in another court for the price of the goods, which has not been prosecuted to judgment.^ It cannot, however, be issued for unliquidated damages arising from contract.^ It may be sued out in a case of the fraudulent purchase of goods in another state; and against a feme sole trader, for fraudulent representations made by her husband, as her agent, in the course of an agency, on the faith of which goods are purchased.* The simple fact of insolvency, at the time of the purchase of goods, is not, however, a fraud within the act ;^ nor is it sufficient, to show that the defendant is about to sell and dispose of his property. I. If real estate security is required by the court, the form of blank used to take the affidavits of persons who go surety is as follows : Com. Pleas, No. — V. )■ term, 187 — No. — Surety for Amount $ being about to become surety in the above-entitled case, and being duly according to law, deposes and says : 1st. I reside at and my occupation is . '2d. I am the owner of real estate in the county of Philadelphia, as follows ; 3d. The value of the said real estate is , and the rent . It is as- sessed for the purposes of taxation, at the value of , and is so assessed in my name. 4th. There are incumbrances against the said real estate as follows : , and there is no other judgment binding the said land, mortgage, ground-rent or other incumbrance of any kind, except those above named. 5th. The title to the said real estate is in my own name, and the same is not subject to any trust. 6th. I obtained the said real estate m ., by ■ from , and my deed therefor is recorded. 7th. There are • judgments against me. 8th. I am not surety in any other case, or for any public officer. N. B. — This affidavit must be sworn to before the prothonotary, or a com- missioner of bail appointed by him. and subscribed, this day of 187 — -, before m^ - Notice of this application for proval of surety was given to the — by writing, on the day of — 187- ap The above named - - is approved as surety in dae above case. II. If personal security is accepted by the court, the affidavit shall set forth the nature, character and amount of the personal property owned by the surety. III. The foregoing affidavits must be made upon the regular printed blanks furnished by the prothonotary, unless, for cause shown, a judge shall dispense with this requisition. Rule of 2 Oct, 1875. 1 Act of 1869, P. L. 8 ; Purd. 53. See Miles v. Brown, 6 J. & Sp. 400. ' Swartz V. Lawrence, 34 Leg. Int. 114. Rheinstrom v. Green, 7 Leg. Gaz. 254. ' Rauoh V. Good, 5 Leg. Gaz. 62. * Rheinstrom v. Green, 7 Leg. Gaz. 254. See Schwartz v. Lawrence, 1 W. N. C. 131. Anderson v. O'Reilly, 54 Barb. 620. 5 McGlensey v. Landis, 3 W. N. C 240. 200 ATTACHMENT. witliout any circumstances indicating a fraudulent intent ;^ nor that he has made an assignment in trust for the benefit of particular creditors.^ But an affidavit that a defendant, heavily indebted, has disposed of all of his real and personal estate, and conceals the proceeds, renders him liable to this process.' A mere threat, however, to sell out, "and put agent over his door," so as to keep the plaintifi" out of his money, is not suffi- cient ; such expressions being apparently the result of anger and excite- ment at being repeatedly dunned by the plaintiff* So, also, it is not sufficient, merely to aver that the defendant is about to remove from the county.^ § 364. Service. The statute further provides, that every such attach- ment shall be made returnable on the first return-day of said court, next after the time of issuing thereof, and be served by the sherifi' of the proper county,^ or by some general or special deputy by him made, by attaching so much of the money, stocks, rights in action, evidences of debt, or other property of the party defendant, not exempt by law from sale upon execution, as will be sufficient to pay the debt demanded, with costs ; and shall deliver to the defendant or defendants, or one of them, a copy of such attachment, with an inventory of the property or other thing attached, if the party defendant can be found within the county, and if not found, then by leaving a copy of the same, at his, her or their residence, with some adult member of the family where he, she or they reside ; or if the party defendant do not reside in the county and can- not be found, then by leaving a copy of such attachment and inventory with the person in whose possession or care said property may be, or in whose hands it may be attached f and in case such money, rights in action, interest in public or corporate stock, evidences of debt, or other property, shall be found in the hands or possession of any person, per- sons or corporation other than the party defendant, such person, persons or corporation shall be summoned as garnishee.' § 365. Seizv/re and bond. It is further provided, that it shall be the duty of the officer serving such attachment to take the property attached into his possession, when the same is capable of manual seizure, and when not, the same shall be bound by such attachment in the hands or possession of such party from whom it is due or owing, or whose duty it is to account for the same, unless the pai:ty defendant, or some one for him, her or them, shall enter into a bond, with sufficient surety, to ^ Wightman v. Henry, 1 W. N. C. * Money in the hands of the sheriff 74. Waldman v. Fisher, Ibid. 360. cannot be attached. Supplee v. Hughes, Frank v. Levie, 5 Rob. 599. 2 W. N. C. 352. = McCallum v. Hodder, 2 W. N. C. ' See Orser v. Grossman, 4 E. D. Sm. 185. 443. Miles v. Brown, 6 J. & Sp. 400. ' » Whildin V. Smith, 4 W. N. 0. 88. « ^^j ^f iggg^ § 2, P. L. 9 ; Purd. And see Gillingham v. Kiehl, 1 Ibid. 54. The return must show what was 146. attached; and an inventory thereof * Quay V. Robbins, 1 W. N. 0. 154. must be delivered to the defendant. See Oasherie v. Apple, 14 Abb. Pr. Nebenzahl v. Saberlowitz, 1 Luz. L. 64. Livermore u. Rhodes, 3 Rob. 626. Reg. 595. ' Miller v. Smith, 34 Leg. Int. 68. SERVICE OP THE WEIT. 201 be approved by the court from which said attachment shall issue, or the prothonotary thereof, in double the amount of the debt or demand claimed, conditioned that, in the event of the plaintiff or plaintiffs recovering judgment in said attachment, he, she or they will pay the debt and costs, at the expiration of the stay of execution on sums of like amount, given to freeholders, or that he, she or they will surrender up the said property, in as good condition as when attached, to any officer having an execution against the said party defendant on any judgment rendered in such attachment in favor of the plaintiff.' § 366. If there be an adverse claim to the goods attached, by a third person, the sheriff may obtain a rule of court upon the claimant and the plaintiff in the attachment, to interplead, which may be granted and determined by a single judge, at chambers, when the court is not in session ; and upon the rule being made absolute, and the claimant giving bond for the forthcoming of the goods, in case an issue awarded by the court be determined against him, the sheriff will be ordered to withdraw from the possession of the goods ; but if the claimant fail to give bond, the sheriff is protected, and the claimant must look to the plaintiff for his damages.^ If there be two or more attachments against the same party, in the hands of the officer, they have priority of lien, in the order in- which they came into his hands f and the priority of lien, thus acquired by the first attaching-creditor, is not impaired, by a subsequent voluntary assignment, for the benefit of the defendant's creditors.* The act, however, does not interfere with the exemption laws of the common- wealth f the defendant is entitled to the benefit of the exemption law, as against an attachment issued under the act, if the original demand be founded on contract.^ § 367. Dissolution, The defendant may apply to the court, when in session, or to a judge thereof, in vacation, to dissolve the attachment ; and upon the hearing of such application, the court or judge has power to hear evidence to determine the truth of the allegations contained in the affidavit upon which the writ issued ; and to dissolve or continue the lien of such attachment, according as he shall find the allegations of such affidavit sustained, or otherwise.' It is too late to move to quash the attachment, after filing an affidavit of defence to the merits of the plaintiff's claim.' If the defendant's answer, on oath, positively and circumstantially deny the fraud charged, the attachment will be dis- ' Act of 1869, ? 3. See Moses v. "Wa- time, if made with the filing of the an- terbury Button Co., 46 How. Pr. 528. swers of the garnishee. Ililbronner v. Spencer v. Rogers Locomotive Works, Sternberger, 4 W. N. C. 186. 13 Abb. Pr. 180. ' Act of 1869, ? 6. The court will ^ Act 30 January 1871, P. L. 12; sometimes 'dissolve, on terms that no Purd. 54. suit shall be brought on the plaintiff's ' Act of 1869, g 5. And see Yale v. bond. Quay v. Bobbins, 1 W. N. C. Matthews, 20 How. Pr. 430. 154. * Conway v. Butcher, 8 Phila. 272. ' Laewenstein «. Sheetz, 7 Phila. 361. 5 Act of 1869, § 6. . See Wright v. Rowland, 4 Abb. Dec. « Washburn v. Baldwin, 30 Leg. Int. 649. 21. The claim for exemption is in 202 ATTACHMENT. solved.' If the attachment be dissolved before judgment, the plaintiff is out of court, and cannot have judgment for want of an affidavit of defence f but a dissolution after judgment, does not affect it.^ If, how- ever, the defendant be a corporation, a judgment in a suit commenced by attachment, falls with the dissolution of the corporation and the appointment of a receiver.^ § 368. Proceedings in the suit. The act of 1869 provides that, in case of a personal service of the attachment upon the defendant, or, if he, she or they shall be residents of the county, at the time the attachment was issued, or shall appear to the action, the court shall proceed in the case, in like manner as in a case of summons for debt, regularly issued and duly served ; and in case there shall not be a personal service, residence or appearance, the plaintiff or plaintiffs may, at any time after the first day of the second term after the issuing of such attachment, proceed in like manner against the party defendant and against the garnishee or garnishees, by rules, interrogatories or otherwise, as is practised in cases of foreign attachment and attachment-execution; and the court shall have like powers to decree the sale of perishable pro- perty, as they have in cases of foreign attachment." § 369. Interrogatories to the garnishee may be exhibited immediately after the entry of judgment against the defendant.* And the next term after that to which the writ is returnable, is deemed the second term, at which judgment may be entered by default.' The court will make an order for the sale of the goods attached, as perishable, where they con- sist of the stock of a grocery-store, which is deteriorating by lapse of time, and subject to accumulating expenses for rent, watchman, &c. — the defendant having absconded.* And, after judgment, a fi. fa. may issue to sell the goods attached.' § 370. Convicts. A writ of attachment may be issued against a per- son under sentence of imprisonment, upon conviction of a crime by a court of competent jurisdiction, and such attachment may be dissolved only in the manner provided in the case of a foreign corporation ; but if, in such case, the term of imprisonment of the defendant shall elapse, or if he shall be otherwise legally discharged therefrom, before the money shall be paid, he may put in and perfect special bail to the plain- tiff's action, and thereupon, the security which may have been given by him in lieu of the bail, shall cease and become void, and any deposit which may have been made shall be restored to him.'" ' Gaulbert v. Atwater, 2 W. N. C. « Klett v. Craig, 1 W. N. C. 129. 644. Ferris v. Carleton, 8 Phila. 549. ' Yerkes v. Craig, 1 W. N. C. 157. See Dodge v. Kedington, 2 Luz. L. * Martin v. Malseed, 1 W. N. C. 82. Reg. 115. 9 Gould V. Walker, 2 W. N. C. 81. '^ AtlasWorks C.Blair Iron and Steel And see Goodkind v. Strickland, 3 Co., 7 Leg. Gaz. 403. And see Ehein- Daly 420. Strom V. Green, Ibid. 254. i« The act 20 March 1845, § 2, pro- ^ McCallum v. Hodder, 2 W. N. C. vides that the bail for dissolving a 185. _ foreign attachment shall be absolute * Frailey v. Central Fire Insurance security for the payment of the debt, Co., 9 Phila. 219. interest and costs to be recovered. P, " Act of 1869 a 4. L. 189 ; Purd. 721. ATTACHMENT. ' 203 § 371. Torts. In Philadelphia, it is provided by the act of 6 April 1870,' that in all cases of arrest for homicide, or for assault and battery, resulting in great bodily harm to the person assaulted, so that his or her life is thereby imperilled, wherein the person arrested shall be held to bail, and shall make default, whereby his or her recognisance shall be forfeited, and shall flee the jurisdiction of the court, it shall and may be lawful for the person injured, his or her executors or administrators, to begin his, her or their action for damages, by filing, in the proper court, a certified copy of the record in such criminal proceeding, together with an afiidavit that the defendant has left or is about to leave the jurisdic- tion of the court ; whereupon, the court shall award and issue an attach- ment against all and singular the goods and chattels, lands and tenements, rights and credits of the defendant, or any part thereof, within the jurisdiction of the said court; which attachment shall be served and shall have the same eflTect, and the proceedings thereunder against the defendant, and against any garnishee or garnishees, shall be the same, as in cases of foreign attachment. 1 P. L. 960 ; Purd. 54. CHAPTER X. Of Amicable Actions. § 372. There is, in Pennsylvania, a mode of instituting an action, without the intervention of the sheriff, which seems peculiar to our prac- tice, by amicable agreement signed by the parties or their attorneys, and filed in the prothonotary's office, to be by him entered on record. The act of 1836' provides, that it shall be lawful for any persons, willing to become parties to an amicable action, to enter into an agreement, in writing, for that purpose, either in their proper persons, or by their respective agents or attorneys, and on the production of such agreement to the prothonotary of any court having jurisdiction of the subject- matter, he shall enter the same on his docket, and from the time of such entry, the action shall be deemed to be depending, in like manner as if the defendant had appeared to a summons issued against him by the plaintiff. The seventy-ninth section of the same act provides, that real actions may be commenced by agreement, in like manner and with like effect as personal actions. Independently of this act, an amicable action might be entered by attorney.^ § 373. The following is the usual form of an agreement for the entry of an amicable action, under the statute : In the Court of Common Pleas for the county of Philadelphia. John Jones 1 Qf March term 1879. . 1 . , o -ii C Amicable action. Case. Adam Bmith. ) It is agreed, that the above-stated amicable action be entered on the docket of the said court, as of the term above stated, to have the same effect and legal operation, as if a summons had actually issued, returnable the first Monday of March 1879, been served personally on the defend- ant, and duly so returned by the sheriff. 20 Feb. 1879. A. B., Attorney for plaintiff. C. D., Attorney for defendant. § 374. The act of 1806^ provides, that " it shall be the duty of the pro- thonotaries, respectively, on the application of any persons willing to become parties in an amicable suit, to enter the same, without the agency of an attorney; and when thereunto required, and on confession in writing, executed in presence of two or more witnesses, expressing the amount due to the plaintiff (which confession shall be filed in his office), 1 P. L. 579; Purd. 45. ' 4 Sm. L. 330 ; Purd. 45. » Cook V. Gilbert. 8 S. & R. 567. (205) 206 AMICABLE ACTIONS. he shall enter judgment against the defendant, for the amount expressed as aforesaid, with stay of execution as may be agreed upon by the par- ties ; and when any suit is ended, the clerk of the court before which it was pending, shall, on the request of the plaintiff, expressed in writing, enter satisfaction thereon." This act is affirmative, and does not pro- hibit the entry of judgments, according to the practice then existing ; and, therefore, judgment may be entered by the prothonotary, upon the defendant's written order, confessing judgment in an action of debt, and directing judgment to be entered against him, though not executed in the presence of two witnesses.^ § 375. It is provided by rule of court, that no judgment by confession shall be entered, in any amicable action, unless there be filed, at the time of filing the agreement, a specific statement of the cause of action, signed by the parties, or their attorneys ; and where said statement is signed by the attorney of the defendant, there shall also be filed with the same, his warrant of attorney ; it being understood, that this rule does not apply to judgments on warrants of attorney, nor to revivals of judgments by agreement.^ § 376. An amicable action of ejectment is good, although the twelfth section of the act declares that all writs of ejectment shall be in the form prescribed therein, and not otherwise/ ; because this is to be understood as applicable only to cases in which the suit is commenced by writ, and by no means as impairing the force of those sections by which all persons are permitted to enter suits without writ. By such entry of an amicable action, the defendant waives the necessity of issuing a writ, and, of course, everything contained in it.^ But it does not also follow, that he has waived the filing of a declaration or statement, by the mere agreement to enter an amicable action. § 377. An amicable action may be entered, whenever a husband and wife can sue or be sued by adversary process ; and she and her rights are as much bound, as if the proceeding had been adverse.* An agree- ment for an amicable action is, in effect, an appearance by the defendant f after the filing of it, a case may be stated for the opinion of the court, and set down for argument. When judgment is confessed in an amicable action, the defendant is entitled to a like stay of execution, counting from its date, as in other cases, unless otherwise provided by the parties, by the terms of their agreement.^ § 378. All that remains to be said on the subject of amicable actions, is, that it is a mode to which frequent recurrence is had, in beginning suits in this state, because it not only comports with the milder feelings of parties, but it is a saving of the expense of an original writ, and the sheriff's fees for serving it. It is also said to be a very ancient practice ' McCalmont v. Peters, 13 S. & R. Philadelphia, 51 Penn. St. 491. 196. And see Wall v. Fife, 37 Penn. ' Massey v. Ttajmas, 6 Binn. 333. St. 398. Flanigen v. Philadelphia, 51 * Gratz v. Philips, 2 P. & W. 410. Ibid. 491. Association v. Grardiner, ' Crosby v. Massey, 1 P. & W. 229. 2 W. N. C. 96. 6 Act 16 June 1836, g 5, P. L 762: ' Rule XX. ? 71. See Flanigen v. Purd. 635. AMICABLE ACTIONS. 207 in Pennsylvania. Though the issuing of the writ is dispensed with, it is considered as having been issued, and may be filed at any time. Upon this principle, it was determined, that where an amicable action of scire facias upon a mortgage was entered, by the agreement of the parties, which agreement contained a description of the mortgage, it was not error, that the cause had been tried without writ, declaration or state- ment.^ For the writ being supposed to be filed, and it being the con- stant practice to plead to the scire facias, without a declaration, in which writ, the cause of action is always sufficiently described, it cannot be said, that there is no writ upon which issue could be well joined. The inference from this case is, that amicable agreements, in actions wherein the writ does not contain the substance of the declaration, are no waiver of the necessity of a declaration. When this is omitted to be put in, therefore, either party, who has not relinquished the exception, by some subsequent act, such as, for example, putting the cause at issue, or call- ing for a plea or replication, may make the omission ground of error. It is, however, perfectly competent for the parties to stipulate, in the ami- cable agreement, for such an omission ; and it might, in the majority of cases, be found most convenient to state the cause of action in the amicable writing, with a view to such a convention. Morris ». Buckley, 11 S. & E. 168, 173. CHAPTER XI. Of the Declaration and Statement. I. Of the BECLAiLiTios, § 379. U. Of the statement, § 386. Nature of the declaration, J 379. When a statement may be filed, Time of filing, § 380. ? 386. Enle to declare, § 381. Sufficiency of a statement, ^ 387-9. Practice, § 382. Variance, i 390, Joinder of counts, ^ 383. In ■H'hat actions a statement is Appeals, ^ 384. allowable, | 391. Sui-plusage, ^ 385. Rules of pleading, g 392. I. Of the declaration. § 379. The defendant being in court, by an appearance, or by the filing of a bail-bond, or as a prisoner, the next step in the cause is, for the plaintiff to file his declaration, or a statement under the act of 1806. The declaration is a specification, in a methodical and legal form, of the circumstances which constitute the plaintiff's cause of action.^ A description of its general requisites or qualities, and of its nature and form, belongs properly to treatises on the science of pleading, and can- not be attempted in a work on practice, without swelling it to an incon- venient bulk; and after touching briefly upon one or two points of prac- tice connected with the narr. generally, we shall proceed to the consider- ation of the statement. § 380. Time of filing. It is provided, in Philadelphia, by rule of court, that unless a declaration be filed within twelve months from the first day of the term to which an action is brought, or an appeal is entered, a non-pros, shall be entered by the prothonotary, as a matter of course; unless the parties otherwise agree in writing, or the court, upon cause shown, shall extend the time.^ But though the rule provides that a non-pros, shall be entered, as of course, yet, the practice is, to give an order in writing to the prothonotary, to enter a non-pros, for want of a narr.; for, the plaintiff is not out of court, until the non-pros, is actually entered, and, therefore, he may declare, after the year, unless this has been done.' And a non-pros, for want of a narr. cannot be entered, pend- ing exceptions to bail, of which the defendant has had notice.^ The ^ Dixon V. Sturgeon, 6 S. & R. 28. a motion to quash. Craig v. Brown, ^ Rule xxvii. § 95. On appeal from 48 Penn. St. 202. Nor when the ap- a justice, the plaintiff may be non- peal is not taken within the twenty pressed, under the rule ; he cannot, for days. Carothers v. Cummings, 03 Ibid. such purpose, treat the transcript as a 199. narr. Ellis v. Penington, 2 "W. N. C. ' Cheetham v. Lewis, 3 Caines 257. 29. Paris v. Hein, 6 Ibid. 124. Sei- Dole v. Young, 11 Johns. 90. del V. Brecker, Ibid. 135. But an * Hanbest v. Donnelly, 1 Leg. Gaz. appeal cannot be non-prossed, pending B. 10. And see Tidd 460. VOL. 1—14 (209) 210 DECLAEATION AND STATEMENT. time of filing the declaration, pleas, replications, and all other pleadings and papers, shall be distinctly marked in the prothonotary's docket.' And a copy of the declaration, and every subsequent pleading, must be served, by the party, or his attorney filing the same, on the opposite party, or his attorney of record ; otherwise, it may be treated as a nullity. It is not necessary, however, to serve a copy upon a defendant who has not appeared. But notwithstanding no appearance may have been en- tered, at the time of filing the declaration, no judgment for want of a plea can be entered, unless a copy of the declaration have been served with the rule to plead.^ § 381. If the defendant, after an appearance, desire to put the cause at issue, at an earlier period, he may, at any time after the return-day of the process, enter a rule to declare, in the prothonotary's ofiice, on eight days' notice thereof in writing to the adverse party, or his, her or their attorney of record ; and, on a failure to declare accordingly, a judgment of non-pros, may be entered; which judgment may be opened or set aside, at the discretion of the court, when deemed necessary for the purposes of justice. The plaintifi", however, in special cases, may apply to the court, or a single judge, to enlarge the time to declare, on forty-eight hours' notice to the opposite party or attorney.^ If the plain- tiff omit to declare within the time prescribed by the rule, and do not obtain an enlargement thereof, the defendant, on filing an affidavit of service of the rule, may enter a non-pros, in the prothonotary's office. The entry of a nonsuit would be irregular; they are different judg- ments.* The court will not take off a non-pros., in a landlord and tenant case, where the rights of third parties will be seriously compromised.' If a declaration appear upon the record, an affidavit of the omission to serve a copy is essential, to support a non-pros.' A rule to declare may be in the following form : In the Court of Common Pleas No. 4, for the county of Philadelphia. George Thomas I Of March term 1879. EichardAbel. )_ ^°- 650- Enter rule on the plaintiff to declare in eight days, or non-pros., sec req To C. D., Esq., A. B., Prothonotary. Attorney for defendant. 10 March 1879. § 382. There is nothing in our practice, to prevent the plaintiff from declaring before the return-day of the writ. And if judgment by default be entered, without a declaration, though irregular, it may, nevertheless be cured, by a declaration subsequently filed, which will be deemed part of the record.' If the plaintiff file two declarations, the court may eom- ' Rule xxviii. ? 101. s Gamble v. Greaves, 7 Phila. 433 "^ Ibid. I 102. 6 Somers v. Craig, 1 W. N. C. 6. ' Ibid. ^96. . ' Commonwealth v. Schaeffer, 9 * MoElroy v. Reading, 7 Phila. 433. Watts 251. JOINDER OF COUNTS. 211 pel him to elect which he will go to trial on.' But where judgment was arrested below, because a substituted declaration, filed as a supposed copy of one that had been mislaid, showed no title to sue, the supreme court, on the original narr. being found, which contained the proper averments, treated the substituted one as a second count, and entered judgment ou the original declaration.^ § 383. tToinder of counts. Counts which contain no inconsistent averments, are properly joined.' Thus, a count in the nature of deceit, may be joined with the common counts in as.sumjjsit;* and trover may be joined with case for negligence f and slander may be joined with malicious prosecution." But counts in debt and covenant cannot be joined -J nor counts in assumpsit and deceit f nor trespass and case.' So, a count on the statute giving double damages for distraining, where no rent is in arrear, cannot be joined with trover, in which only single damages are recoverable.'" And a count for taking illegal fees cannot be joined with other counts in case, for a tort.'' § 384. Appeals. In several districts, a practice prevails, originating in an agreement of the bar, and confirmed by rule of court, to try all appeals from justices' courts, on a declaration for money had and received. Such an agreement, of thirty years' standing, made by the members of the bar, and filed of record, was held to be binding on their successors, unless they gave previous notice of their dissent.'^ In other districts, it is the practice to go to trial on the transcript, without any declaration ;'^ and this is deemed equivalent to a declaration in proper form.'* In Philadelphia, the plaintiff, at his election, may file a formal declaration, or he may rule the plaintifiP to plead to the transcript ;'^ .but, in such case, he nmst serve a copy of the transcript, in lieu of a declara- tion, with his rule to plead.'* If the defendant consider the transcript an insufiicient statement of the cause of action, he should demur. '^ § 385. Surplusage. Immaterial averments in a declaration, which have no necessary connection with the plaintiff's right to sue, may be rejected as surplusage ; but immaterial averments connected with the cause of action, though unnecessarily introduced, must be established by ' Gould V. Crawford, 2 Penti. St. 89. " Denoon v. Binns, 2 Clark 397. ' Catherwood v. Kohn, 7 Penn. St. '^ Hallowell v. Williams, 4 Penn. St. 392. 339. And see Bshev v. FIac;lei-, 17 S. ' Lippinoott v. Hopkins, 57 Perm. St. & K. 141. Steokel v. "Weber, 20 Penn. 328. St. 432. Kraft v. Gilchrist, 31 Ibid. * Jones V. Conoway, 4 Yeates 109. 470. 5 McCahan v. Hirst, 7 Watts 175. " Rundell v. Keeler, 7 Watts 237. « Miles V. Oldfiold, 4 Yeates 423. '* Megargell v. Hazleton Coal Co., 8 ' Brumbaugh v Keith, 31 Penn. St. W. & S. 342. Cunningham v. McCue, 327. 31 Penn. St. 469. 8 Pennsylvania Railroad Co. ». Zug, '^ Doerle v. Johnson, 7 Phila. 393. 47 Penn. St. 480. Noble v. Laley, 50 Nathans v. Cummings, 1 W. N. C. Ibid. 281. 416. ' Brant v. Lorenze, 34 Leg. Int. 115. '* Union Transfer Co.«. Copeland, 33 SoUenberger v. Schnader, 4 L. Bar, 14 Leg. Int. 391. And see Simons v. Deo. 18727 Kutz-, 1 W. N. C. 553. '» Smith V. Meaner, 16 S. & R. 375. " Levy v. Mustin, 3 W. N. C. 220. 212 DECLARATION AND STATEMENT. evidence, under the penalty of failure." Thus, a description of the char- acter in which the plaintiff sues, is treated as surplusage, if he establish a right or duty, independently -of the description.^ And if two consider- ations be laid, the one frivolous, and the other good, the former will be disregarded.^ So, also, if matter laid under a scilicet contradict that which went before, it must be rejected as surplusage.^ A protestando, ^ however idle, repugnant or inconsistent, is mere surplusage, and does not vitiate.' The defendant cannot demur to that which is merely surplusage.^ II. Of the statement. § 386. The act of 1806 provides, that in all cases where a suit is, or may be, brought in any court of record within this commonwealth, for the recovery of any debt, founded on a verbal promise, book-account, note, bond, penal or single bill, or all or any of them, and which, from the amount thereof, may not be cognisable before a justice of the peace, it shall be the duty of the plaintiff, either by himself, his agent or attor- ney, to file in the office of the prothonotary, a statement of his, her or their demand, on or before the third day of the term to which the pro- cess issued is returnable, particularly specifying the date of the promise, book-account, note, bond, penal or single bill, or all or any of them, on which the demand is founded, and the whole amount which he, she or they believe is justly due to him, her or them from the defendant.^ § 387. This act of assembly, it has been said, was intended by the legislature to enable suitors, if they should think proper, to conduct their causes, in plain cases, without the intervention of counsel. They have, therefore, so far from intending that a plaintiff should disclose his cause of action in a statement, with the same nicety and precision of aver- ment that is necessary in a declaration, only required the plaintiff to specify " the date of the promise, book-account, penal or single bill, and the whole amount that he may believe is justly due."^ When a state- ment is filed in an action on a contract, if it follow the directions of the act, it is good, although the plaintiff do not state performance on his part,^ or do not aver performance of precedent conditions ; for that is implied by the very act of bringing suit for money that could not other- wise be demandable.'" If it give such information of the plaintiff's claim as to enable the defendant to plead the judgment in bar of another action, it is sufficient." In a suit against the maker of a note, a state- ' Grubb V. Mahoning Navigation ' Commercial Bank of Buffalo v. Co., 14 Penn. St. 302, 305. Grannis Sparrow, 2 Den. 97. V. Clark, 8 Cow. 36. Polly u. Sara- « Williams v. Maden, 9 Wend. 240. toga and Washington Railroad Co., 9 ' Act 21 March 1806, ? 5 ; 4 Sm. L. Barb. 449. And see Wissler v. Her- 328; Purd. 1166. shey, 23 Pemi. St. 333. « Boyd v. Gordon, 6 S. & R. 53. See 2 Filson V. Dunbar, 26 Penn. St. 475. Cook v. Gilbert, 8 Ibid. 567. ' Reeside v. Hadden, 12 Penn. St. " Riddle v. Stevens, 2 S. & R. 537. 243. And see Freeland v. McCuUough, Snevely v. Jones, 9 Watts 433. 1 Den. 414. "> Dixon v. Sturgeon, 6 S. & R. 2S * Haak v. Breidenbach, 6 Binn. 12. Boyd v. Gordon, Ibid. 54. Lester v. Jewett, 11 N. Y. 453. " Reed v. Pedan, 8 S, & R. 263, OF THE STATEMENT. 213 ment, setting forth a copy, need not aver a promise to pay.^ But an averment of the amount which the plaintiff believes is justly due, is indispensable.^ § 388. If a statement, within the meaning of this act, be filed, and it set forth no cause of action, the plaintiff cannot recover,^ though, if it be merely too general,^ or not sufficiently explicit to enable a defendant to meet a demand, the courts would, both before and since this act, direct a special statement of the items, or a bill of particulars to be filed ; and this, in matters of account, was always done, if the party required it ;* but when a statement alone does not contain a sufficiently accurate speci- fication of the plaintiff's demand, the court would only compel him to file a more accurate and particular statement f and would stay the pro- ceedings until a proper statement was furnished,' for an imperfect state- ment is not to be scanned as minutely, nor examined as critically, as a declaration.^ Yet, if it appear on its face, that the plaintiff has no cause of action at all, he cannot recover.' § 389. In one case, it would seem, that the statement ought to be full and certain, in order to insure the plaintiff a benefit under the act, to which he would not otherwise be so certainly entitled. In a suit on a bond conditioned for the payment of money by instalments, judgment may be rendered for the penalty, notwithstanding the act directs judg- ment to be entered for the sum that is due. The reason is, that as the act comprehends a suit on such an obligation, and as there can be but one action brought upon it, the court, in entering judgment, must pro- tect the party, and this could not be done, without entering a judgment for the penalty ; for, if it be entered only for the instalment due, all fur- ther right of action would be gone, and the residue would be lost. The court would take care of the defendant, by requiring that their leave should be first asked to take out execution, and by letting him into a trial, if he alleged payment of subsequent instalments. But in addition to this, it would seem, that the statement filed by the plaintiff should be in every respect certain and consistent with the obligation, spreading on the record the real nature of the obligation, and thus putting it out of his power to misuse the judgment for the penalty.'" § 390. The statement must, however, accord with the evidence, for a variance between them would be as fatal as a variance between a decla- Morgan v. Farmers' Bank, 3 P. & W. Cook v. Gilbert, Ibid. 567. Bailey v. 391. See Camp w. Bank of Owego, 10 Bailey, 14 Ibid. 195. Snevely w. Jones, Watts 130. Fresher v. Palmer, 4 Luz. 9 Watts 433. Camp v. Bank of Owe- L. Keg. 251. go. 10 Ibid. 130. ' Bailey v. Bailey. 14 S. & R. 195. * McCarney v. MoCamm, 2 Bro. 46. ' Shallcross v. Kohl, 3 AV. N. C. 272. * Brack. L. Mis. 461. For forms of statement, which have * McCarney v. McCamm, 2 Bro. 46. been held good, see Purviance v. Dry- ' Girard v. Rhodes, Dist. Court, den, 3 S. & R. 402 ; Schlatter v. Etter, Phila., 18 Feb. 1823. MS. 13 Ibid. 36 ; Bailey v. Bailey, 14 Ibid. ' Reed v. Pedan, 8 S. & R. 263. 199 • Morgan v. Farmers' Bank, 3 P. ' Buck v. Nicholas, 8 S. & R. 317. & W 391. " See Underwood v. Lilly, 10 S. & R. » Buck V. Nicholas, 8 S. & R. 316. lOO-l. 214 DECLAEATION AND STATEMENT. ration and the evidence.' But the rule is not stricter in the former case than in the latter; thus, if the plaintiff state an agreement, he must prove it; but whether he prove an agreement express or implied, is immaterial ; for, a declaration, in an action on an implied assumption, avers a positive assumption.^ So also, the evidence, though agreeing with the statement, should not vary from the writ ; but where the writ stated the plaintiff to be executor of A., who was a surviving obligee with B., it is no variance, though the statement describe the bond as given to A. and B., executors of C, and the bond is in that form.^ If the plaintiff set forth in his statement matters which are not necessary, he is not bound to prove them.* § 391. The act of 1806 applies to actions instituted by attorney ; but a declaration is a sufficient statement.^ A statement may be filed in an action on an award f on a money-bond f an insolvent bond ;** a recogni- sance of nail in error ;' a contract in consideration of forbearance ;'" or to pay the interest on a sum of money, during life ;" and, generally, in any case which is subject to the compulsory arbitration law.'^ It extends to executors and administrators ;^^ and to appeals from justices of the peace ;" and if, in such ease, the transcript show a good cause of action, it is a sufficient statement.'' But an action on a bail-bond is not within the act ;'^ nor an action on a bond with a collateral condition ;'' nor an action for a legacy ;'^ or for rent due on a lease, under seal ;'^ or for a penalty f or on a contract for the delivery of specific articles,^' unless the time of delivery be nast, and there has been no tender of the specific goods.^^ § 392. When a statement is filed by the plaintiff, it appears not to be obligatory on the defendant to put in a counter-statement, within the meaning of the act of assembly; and, it seems, that he can plead, technically, to it, as he could to a declaration ; it has also been said, in a recent case, in error, that a plea of payment, to a statement, with notice of the special matter, which special matter was proved at the trial, with- out objection, would be considered as a counter-statement. The rules of pleading seem to apply to statements as well as to declarations ; aver- ments in the former may be admitted, unless met by the form of the ' Church V. Feterow, 2 P. & "W. 301. " Bowman v. Shaa-p, 6 Watts 325. '' Slaymaker v. Gundaoker, 10 S. & " Dixon v. Sturgeon, 6 S. & R. 25. R. 83. " Thompson ». Gifford, 12 S. & R. ' Grotzer v. Russel, 9 S. & R. 78. 74. Church v. Feterow, 2 P. & W. 301. See Graff v. Graybill, 1 Watts 430. »' Holden ». Wiggins, 3 P. & W 469 * Sidwell V. Evans, 1 P. & W. 383. '« Boas v. Nagle, 3 S. & R. 250. * McCarney v. McCamm, 2 Bro. 40. Hersberger v. Venus, 3 P. & W. 396. Pedan u. Hopkins, 13 S. & R. 45. Bowman v. Sharp, 6 Watts 325. « Grace v. Sutton, 5 Watts 540. " Boas v. Na^le, 3 S. & R. 250-4. ' Underwood D. Lilly, 10 S. & R. 97. " Meals v. Wiley, 12 S. & R. 96. Stubbs V. King, 14 Ibid. 206. Doebler v. Snavely, 5 Watts 225. * Bowman v. Sharp, 6 Watts 324. " Loomis v. Ruetter, 9 Watts 516. ' Geary v. Cunningham, 17 S. & R. 2» Donahue v. Dougherty, 5 Rawle 474. 124. '» Sidwell V. Evans, 1 P. & W. 383. " Roberts v. Beatty, 2 P. & W. 63. " Knettle v. Crouse, 6 Watts 123. " Church v. Feterow, 2 P. & W. 301. OF THE STATEMENT. 215 counter-statement ; and, on the other hand, the latter will not admit any facts, not mentioned in the statement, by implication. Defects in state- ments may also be cured by a verdict ; thus, a statement, in an action of assumpsit, which is defective, for want of the date of the assumption, or of an averment of the consideration for it, is cured by a verdict.' It is agreed in this case, that a statement may be demurred to, but it is, at the same time, intimated that, from the scope for amendment under the act of 1806, a demurrer would be of little use. This, of course, cannot apply to cases wherein the statement on its face shows no cause of action. 1 Schlatter v. Etter, 13 S. & R. 36. See Graff v. GraybUl, 1 Watts 430 CHAPTER XII. Of Judgment Iby Default after Appearance. I. Judgment BY NON SUM iNroKMATUs, OK NIL DICIT, J 393. Nature of judgment by default, p93. Rule to plead, and serrice, ? 394. Judgment for want of a plea, ^395. Irregularities, § 396. Withdrawal of appearance, § 397. Nature of a judgment by default, ^398. n. Judgment for want op an affi- davit OF defence, ^ 399. History, ^ 399-400. Constitutionality, ?401. Statutory provisions, J 402-4. Rule of court, ^ 405. Parties who must file an affidavit, I 406. By whom the affidavit may be made, §407. Cause of action, § 408. Instruments for the payment of money, § 409-10. Judgments, § 411. Affidavit of loan, § 412. Book-entries, J 413-4. KUng of copies, § 415. Averments dehors the instrument, ^16. Affidavit, ? 417. Sufficiency of the affidavit, § 418-9. Form of the affidavit, J 420. Practice, § 421-3. I. Judgment by non sum Informatus or nil dicit. § 393. In the present chapter, we shall consider the subject of judg- ment by default, after appearance ; which is, either by non sum infor- matus, where the defendant's attorney, having appeared, says that he is not informed of any answer to be given to the action ; by nil didt, where the defendant himself appears, but says nothing in bar or preclusion thereof; or, in this state, for want of an affidavit of defence. When judg- ment by default on non sum informatus is taken (for it is said to be now seldom or never used), it is only in cases where judgment is entered in pursuance of a previous agreement between the parties ; or when the plaintiff's attorney accepts a judgment of this kind, after a plea put in by the defendant, which he allows the latter to retract.' This form of judgment is unknown in practice here. Judgment by nil didt is either for want of any plea at all, or for want of a plea adapted to the nature of the action or circumstances of the case, or for not pleading in a pro- per manner, or within the time limited by the rules of the court. § 394. At any time after the return-day, where the defendant's appear- ance is recorded, the plaintiff, on filing a declaration, may enter a rule of course in the prothonotary's office, upon the defendant, to plead on eight days' notice ; and on a failure to put in his plea, within the time limited, a judgment, in the nature of a judgment by default, may be entered against him.^ And no dilatory plea will be received, unless the 1 Vasse V. Spicer, 2 Dall. 111. _ ' Rule xxviii. § 96. In the circuit court of the United States, the defend- ant may be ruled to plead on two weeks' notice, and on failure to do so, judgment nisi may be entered, on mo- (217) 218 DEFAULT ATTEK APPEAEANCE. same be filed within four days from the service of a copy of the declaration ; nor, unless the defendant, by affidavit, show the truth thereof, or some probable matter to induce the court to believe that the fact of such dilatory plea is true.' A copy of the plea must be served on the plaintiif, or his attorney of record, or it may be treated as a nullity.^ § 395. A judgment by default cannot be entered for want of a plea, unless the rule to plead have been entered upon the docket;' but, if such rule appear upon the record, a default is regular ; it will not be presumed, that the prothonotary entered the rule of his own motion,* If, however, the rules of court require two consecutive rules to plead, to entitle the plaintifi" to judgment by default, a default cannot be entered on one rule.' A notice to plead is equivalent to notice of a rule to plead, so as to authorize the entry of a default.^ A default cannot be entered for want of a plea, without service of a copy of the declaration f and where the defendant files a plea, but neglects to serve a copy on the plaintifi", or his attorney, a judgment for want of a plea, is irregular ; it should be entered for want of service of a copy, on affidavit of the omission.^ § 396. If any of the proceedings on the part of the plaintiff" be irre- gular, and the irregularity be not waived, by any act of the defendant, or, if judgment be signed when, in fact, the defendant has not been guilty of any default, the court, upon motion, will set aside the judg- ment.' But, if the defendant, being informed of a judgment irregularly entered for want of an appearance, neglect, for two terms, and until after writ of inquiry executed, to make such motion, it will not be reversed on error.'" The plaintiff also may waive or relinquish judgment by default, whether irregularly or regularly entered, by getting the clerk to strike it out. § 397. After appearance and plea, if the court, without objection by the plaintiff", permit the defendant's attorney to withdraw his appearance and plea, no judgment can be given, until a new appearance is entered by or for him ; and, for that purpose, a rule may be obtained by the plaintiff". No judgment is authorized by the common law or statute, in such a state of the case. As the court would not allow an appearance to be retracted, against the plaintiff's consent, nothing remains for him, in such case, but to rule the defendant into court, to try the cause in the usual way." § 398. A judgment by default has been regarded as interlocutory, in assumpsit, covenant, trespass, case and replevin, where the sole object of tion, either in court, or before a judge date. Stokes ». Kyle, 2 W. N. C. 427. at chambers. Rule xvi. ' Kuhnle v. Moran, 1 W. N. C. 19. ' Rule xxviii. ? 97. » Limon v. Howard, 1 "W. N. C. 389. ' Ibid. ? 102. 9 Otherwise, if the defendant's attor- ' Bisbingu. Albertson, 6W.&S.450. ney make no excuse for his laches. • Shaffer v. Brobst, 9 S. & R. 85. Association v. McBride, 4 W. N. C. ° Green v. Hallowell, 9 Penn. St. 53. 477. " Stroop V. Gross, 1 W. & S. 139. '» Crosby v. Massey, 1 P. & W. 229. Notice of a rule to plead should have a " Michew v. McCoy, 3 W. & S. 502. DEFAULT AFTER APPEARANCE. 219 the action is damages ; but in debt and ejectment, damages not being the principal object of the action, the plaintiff usually signs final judg- ment in the first instance,' except in actions of debt within the statute 8 & 9 Wm. III., c. 11, §8, which is in force in this state. The supreme court, in a recent case, have determined that a judgment for want of a plea, is final, and a lien upon real estate of the defendant, from the date of the entry, though the damages may not be assessed, if the claim in the action be for a sum certain, or the amount may be ascertained by calcu- lation, from the demand set forth in the pleadings. The question raised in this case was, whether a judgment for want of a plea was inter- locutory or final.^ But a judgment by default, in an action on the case, without anything in the declaration to indicate the amount, is but interlocutory.' II. Judgment for want of an afS davit of defence. § 399. Mistory. No part of our system is more eflTective to the speedy administration of justice, than the one now to be considered. Its origin Avas an agreement of the members of the bar, in 1795, with the excep- tion of two (who neither gave nor took judgments under it), that judg- ments should be confessed, unless the defendant in the action made an affidavit, " that, to the best of his knowledge and belief, there was a just defence to the action."^ Some years after the making of this agree- ment, with full experience of its efi'ects, the judges of the supreme court made a similar rule for the circuit court, then held by them, and it was practised under, for many years, without objection.* A similar rule was adopted by the court of common pleas, in 1809 f and by the district court, on its organization, in 1812.^ The validity and constitutionality of this rule was fully sustained by the supreme court.* § 400. Whilst a very large number of suits were thus terminated, it is obvious, that two classes of cases, and those very extensive, were with- drawn from its operation — those in which a supposed defence existed ; and those in which a defendant, who might hesitate to misstate partic- ular facts, saw but little risk of a prosecution for perjury, from the vagueness and generality required by the rule. To compel the defend- ant, against whom a primd fade obligation was shown, to exhibit, under oath, the facts on which he rested his defence, and allow the court to draw the legal conclusions, was very desirable, and was at length accorded by the legislature, in 1835, to the district court of Philadel- 1 2 Arch. Pr. 9. « 1 Bro. 237. ' Sellers v. Burk, 47 Penn. St. 344. ' 1 Milea 447. Ulshafer v. Stewart, 71 Ibid. 170. * Vanatta v. Anderson, 3 Binn. 417. ' Phillips V. Hellings, 5 W. & S. A rule of the quarter sessions, author- 44. See MoCune v. Hogan, 3 Pitts, izing judgment for want of an affida- L. J. 70. Winrow v. Duncan, Bright, vit of defence, in suits on forfeited Costs 312. recognisances, was sustained by the * Vanatta v. Anderson, 3 Binn. supreme court. Harres v. Common- 423. 3 W. N. C. 567. wealth, 35 Penn. St. 416. ' Ibid. 220 AFFIDAVIT OF DEFENCE. phia. The system is so useful, and so free from all objections, that it has gradually been extended to embrace new subjects, and to other counties and courts of the state.* § 401. The constitutionality of this legislation was questioned, but sustained by the supreme court.^ " What provision is there in the con- stitution," said Chief Justice Black, " forbidding the supreme authority of the state to make a regulation for the suppression of that most mis- chievous, most demoralizing, and most loathsome of all practices — the making of false defences to honest claims in courts of justice? None. Then, in nothing does this law violate the constitution." — " Nobody has yet invented a better mode of testing a party's belief than his oath. It is not always effectual ; but, wherever it has been adopted, it has done much to purify the stream of justice, and to remove obstructions from it."^ And, in another case, the same learned chief justice said : — " The affidavit of defence law is a just and necessary one, and its influence on the administration of justice has been most salutary ; the only regret of those who are well informed on the subject is, that it is not universally adopted in all the courts of the state."* § 402. Statutory provisions. In all actions instituted on bills, notes, bonds or other instruments of writing for the payment of money, and for the recovery of book-debts, and in all actions oi scire facias on judg- ments, and on liens of mechanics and material-men, the plaintiff may, on or at any time after the third Saturday succeeding the return-day, on motion, enter a judgment by default, notwithstanding an appearance by attorney, unless the defendant shall previously have filed an affidavit of defence, stating therein the nature and character of the same : pro- vided that, in all such cases, no judgment shall be entered, unless the plaintiff shall, within two weeks after the return of the original pro- cess, file in the office of the prothonotary of the court, a copy of the instrument of writing, book- entries, record or claim on which the action has been brought.^ This section has been extended to all actions brought on contracts for the loan or advance of money, whether the same be reduced to writing or not : provided that, in all such cases, no judgment shall be entered, unless the plaintiff, within two weeks after the return of the original process, have filed in the office of the prothonotary of the court, an affidavit, setting forth the terms of such loan or advance, with the date thereof.^ ' It waa extended to the court of Lawrance v. Borm, 86 Ibid. 225. Ran- common pleas of Philadelphia, by act dall v. Weld, Ibid. 357. Lawrance r. 14 April 1846, P. L. 328 ; Purd. 1165 ; Smedley, 6 W. N. 0. 42. and to all the courts of common pleas ' Taggart v. Fox, 1 Qt. 190. of the commonwealth, by act 3 April * Lord v. Ocean Bank, 20 Penn. St. 1851, I 8, P. L. 307, but this salutary 387. law was repealed, in the following * Act 28 March 1835, ? 2, P. L. 89; year, by iict 8 March 1852, P. L. 121. Purd 495. Act 12 March 1842, P. L. For the several special acts, relating 66 ; Purd. 497. to the courts of particular counties, see • Act 11 March 1836, ? 14, P. L. 79 : Purd. 1165. Purd. 496. ' Hoffman v. Locke, 19 Penn. St. 57. STATUTOEY PROVISIONS. 221 §403. By a subsequent act, it is declared to embrace all actions brought on bonds or recognisances of bail in error, or bonds of sureties for stay of execution ; and is extended to all actions on bonds or recogni- sances of special bail, or bonds given by debtors and their sureties, with the condition prescribed in the act relating to insolvent debtors.^ And by a recent statute, it is enacted, that it shall not be lawful, in any civil suit or action in any court in this commonwealth, wherein an affidavit of claim is or may be required, and in which the plaintiff, by himself, or his agent or attorney, shall have filed an affidavit of claim, setting forth the nature and amount thereof, and shall Jiave also filed a declaration or statement, for the defendant to enter a rule of reference, unless he shall have previously filed an affidavit of defence, specifi- cally setting forth the nature and character of the same; and a rule of reference shall in no case prevent the plaintiff from moving for, or the court from entering, judgment for want of sufficient affidavit of defence.^ § 404. It is provided by the act of 1836, that in all actions upon any record of the same court, it shall not be necessary to file a copy of such record in the prothonotary's office, to enable the plaintiff to enter judg- ment for want of an affidavit of defence, if he shall have complied with the other requisitions of the act.^ And by the act of 1842, that in actions of saire facias upon mortgage, it shall not be necessary to file a copy of the mortgage, if the writ of scire facias shall contain a state- ment of the date of recording the same.^ And that where the plaintiff sues as assignee, in fact or in law, of an instrument of writing for the payment of money, it shall not be necessary for him to file a copy of the assignment, provided he shall, within two weeks after the return-day, have filed a sufficient declaration, setting forth the grounds of his claim, and of the defendant's liability.^ So, it is provided by the act of 1857, that in actions brought for the recovery of ground-rents, in the county of Philadelphia, judgment may be entered as in case of suits upon mortgages, provided the plaintiff shall file a statement, referring to the book and page of the recorder's office where the ground-rent deed is recorded ; and if the ground-rent has been assigned, shall also file a statement, referring in like manner to where the assignment or assignments are recorded; which recording shall be recited in the pracipe and summons, together with the names of the parties to such deed or deeds ; in which case, the plaintiff shall be entitled to judgment, without filing copies or a declaration.* ' Act 12 March 1842, P. L. 66 ; the usual practice. Purd 497. * Act 12 March 1842, P. L. 66 ; ' Act 14 May 1874, P. L. 159 ; Purd. Purd. 497. 1826. This is merely a declaratory " Act 8 April 1857,.? 2, P. L. 175; statute. Hoffman v. Looke, 19 Penn. Purd. 751. In the other counties of St 57. Taggart v. Fox, 1 Gr. 190. the state, the act 8 April 1840, P. L. ' Act 11 March 1836, P. L. 76; 249; Purd. 751, requires the filing of Purd. 496. a copy of the deed on which the suit ■* It would seem, that the place of re- is brought, cord should also he stated : and this is 222 AFFIDAVIT OF DEFENCE. § 405. By the act of 1836, any one of the judges is authorized to enter judgment for want of an affidavit of defence. And it is provided by rule of court, that whenever the plaintiff has not filed in the office of the prothonotary, within one week after the return of the original process, a copy of the bill, note, bond, book-entries, or instrument of writing, required) by the act of 1835, or an affidavit of loan or advance, re- quired by the act of 1836, but has filed the same, within two weeks after the return-day, he shall give written notice thereof to the defend- ant, or his attorney, at least forty-eight hours before applying to the court for judgment for want of an affidavit of defence ; and in default of such notice, the plaintiff will not be allowed to enter judg- ment.^ § 406. Parties who must file an affidavit. Though the words of the statute are general, certain exceptions have been engrafted on it by construction, in analogy to the practice under the former rule of court. Thus, in an action against an executor, upon the contract of his testator, an affidavit of defence cannot be required f but in debt upon aa award, under a submission "voluntarily entered into by an executor, he must make an affidavit of defence f and on a scire facias upon a judg- ment, obtained against an executor, an affidavit is required.^ Judgment will not be given for want of an affidavit of defence, in a scire facias on a mechanic's claim, where the contractor is dead, and his administrator is sued.' Nor on a scire facias against the heirs of a decedent, to show cause why execution should not be levied of their lands.* Nor in an action against a lunatic,- or his committee ;'^ neither can judg- ment be entered against a feme covert, for want of an affidavit of de- fence f nor against an infant defendant f where the infancy is set up by affidavit.'" But in a suit on a mortgage, an assignee in bank- ruptcy must file an affidavit, in order to prevent judgment." The affida- vit of defence law does not apply to a defendant in foreign attachment, who dissolves the attachment, by putting in special bail.'^ Nor does it extend to municipal corporations.'^ An affidavit is not required, where ' Rule ii. I 3. to have been a lunatic, at the time of '^ Edwards v. Ewing, 4 Yeates 235. the execution of the mortgage sued on, Parker v. Farr, 2 Bro. 39. Blair v. Arm- • though no fraud be alleged. Philadel- strong, cited Ibid. Leibert v. Hooker, phia Trust Co. v. Kneedler, 35 Leg. 1 Miles 263. Vaudusen v. Graham, 1 Int. 234. W. N. C. 103. Seymour v. Hubert, « Scott u. Wilmer, 1 W. N. C. 41. 83 Penn. St. 346. Orne v. Ritchie, See Town k. Mollvaine, 2 Ibid. 428. 4 W. N. C. 477. Wright ». Cheney, Eisenbery ». Negus, Ibid. 445. Schlecht 30 Leg. Int. 77. v. Watson, 3 Ibid. 43. Debraham a. ' Bayard v. Gillasspy, 1 Miles 256. Walker, Ibid. 26. * Dmberger v. Zearing, 8 S. & R. » Read v. Bush, 5 Binn. 455. 163. 10 "Walker v. Morgan, 2 W. N. C. 173. ' Richards v. Reed, 1 Phila. 220. But see Charlton v. Allegheny, 1 Gr. ' Stadelman v. Pennsylvania Trust 208. Co., 6 W. N. 0. 134. " Hogg v. Braddock, 1 W. N. C. 147. ' Alexander v. Ticknor, 1 Phila. 1 20. " Roberts v. Hugg, 2 Miles 283. The court will not give judgment for " Act 21 April 1858, I 8, P. L. 387 ; want of an affidavit of defence, against Purd. 1 165. Halsey v. Denison Town- one who has been found by inquisition ship, 2 Luz. L. Obs. 212. CAUSE OF ACTION. 223 the plaintiff appeals from the judgment of a justice in favor of the defendant.' § 407. By whom the affidavit may be made. In general, the affi- davit of defence must be made by the defendant, or by some one in his behalf.^ The affidavit of any other person than the defendant is not sufficient, unless he be absent or sick f even though the facts are pecu- liarly within the knowledge of the affiant ; in such case, the defendant should make the affidavit, on information and belief^ Nor can the affidavit be made by the defendant's attorney, on the information of his client.' But an affidavit may be made by a third person, who is inter- ested in the event of the suit ; as, by an attachin^-creditor f or, in a scire faeias on a mortgage, a purchaser at sheriff's sale, who, since the commencement of the suit, has sold the premises, with a covenant against the mortgage.' An affidavit, however, by a mere stranger to the con- test, who shows no interest in the question, will be disregarded f thus, in an ^etion against the indorser of a note, an affidavit by the maker, averring, on information and belief, a failure to give notice of non-pay- ment, is not sufficient — he showing no interest in the question.^ § 408. Cause of action. The statute enumerates bills, notes and bonds, as instruments requiring an affidavit of defence ; which includes checks.'" And it is settled, that all the parties to negotiable instruments are within the act, as well the drawers of bills and checks, and the indorsers of notes, as the acceptors and makers ; and this, though they are but contingently liable, and the fact of dishonor and notice is not averred in the copy filed.'' It also includes bank-bills and bank post- notes.'^ But a legal liability must appear on the face of the instrument ; hence, the indorsement of a non-negotiable instrument is not within the act." A due-bill, signed by an agent of the defendant, requires from ' Teese v. Leiper, Com. Pleas, Phila., '" Walker v. Geisse, 4 Whart. 252. 24 April 1847. MS. Giffordi;. Bockius, Hill v. Gaw, 4 Penn. St. 493. Ibid., 23 Oct. 1847. MS. " Sleeper v. Dougherty, 2 Whart. ' Marshall v. Witte, 1 Phila. 117. 177. MoConeghy i;. Kirk, 68 Penn. St. Clyiner v. Pitler, 1 W. N. C. 626. 200. The careful practitioner, however, ' Clyiner v. Fitler, ut supra. See will always add to his copy a memo- Sleeper V. Dougherty, 2 Whart. 177. randum : " Protested for non-payment, ♦ Philadelphia v. Peterson, 3 W. N. the — day of 1878, hy J. S., no- C. 292. And see Cumberland Building tary-public." and Loan Association v. Brown, 4 Ibid. ^'' Hall v. Bank of the United States, 494. 6 Whart. 585. Bank of the United = Crine v. Wallace, 1 W. N. C. 292. States v. Thayer, 2 W. & S. 443. A * Sleeper v. Dougherty, 2 Whart. premium-note given to a mutual insur- 177. s. p. Hunter v. Beilly, 36 Penn. ance company requires an affidavit. St. 509. West Branch Insurance Co. ». Smith, ' Fraley v. Steinmetz, 22 Penn. St. 3 Leg. Chron. 165. 437. " Patterson v. Poindexter, 6 W. & S. ' Bancroft v. Sterr, 1 W. N. C. 132. 227. An order drawn on the defend- Gross V. Painter, Ibid. 154. Stollaker ant's tenant, directing him to pay rent V. Lardner, Ibid. 169. Philadelphia v. to a third person, is not within the act ; Devine Ibid. 358. Bussell t;. Foran, it is an assignment of a particular fund, Ibid. 470. Philadelphia v. Gross, 2 Ibid, not a general promise to pay. Stephen- 42a. son V. Acton, 1 W. N. C. 105. But a ' Blew V. Shock, 1 W. N. C. 612. coupon, detached from the bond, is 224 AFFIDAVIT OF DEFENCE. him a denial of the fact of agency.* The word " bonds," by the explan- atory act of 1842, is construed to embrace recognisances of bail in error,^ and bonds for stay of execution ; and the law is extended to bail-bonds and insolvent bonds. It embraces a bond given for the release of a vessel from attachment f but not an interpleader bond •* nor a replevin bond ;° or other bond with a collateral condition.^ A sheriff's recogni- sance is not within the statute.' § 409. Instruments for tJie payment of money. Under the term " other instruments of writing for the payment of money," is included a lease reserving a pecuniary rent f . a ground-rent deed f a grant of the right to take clay out of the plaintiff's land, for a certain period, at a fixed rate per ton ;'" the contract of a surety for the payment of rent reserved by lease ;'* a submission and award ;'^ a bank-book in which a balance is struck ;'^ and an absolute undertaking in writing to pay the debt of another, on a day certain.'* But a guarantee, if contingent, does not require an affidavit of defence.'^ An affidavit, however, is reqjiisite, whenever the defendant has bound himself to pay a sum of money, on within the statute. Megargee v. Dan- ville, Hazleton and Wilkesbarre Rail- road Co., 2 Ibid. 535. ' Hunter v. Reilly, 36 Penn. St. 509. s. p. Montour Iron Go. v. Coleman, 31 Ibid. 80. 2 See Baker v. Olwyne, 2 Miles 404. Keyser v. Dialogue, 4 W. N. C. 11. Griffith ». Salter, 3 Ibid. 433. ' Selser v. Dialogue, 4 W. N. C. 12. ' Eldred v. Richardson, 7 W. N. C. 130. See Brenizer v. Cahill, 6 Ibid. 147. * McFate v. Shallcross, 1 Phila. 40. Sands V. Fritz, 3 W. N. 0. 531. « Smith V. Harley, 1 W. N. C. 111. Koelle V. Engbert, 4 Ibid. 202. Dau- phin and Susquehanna Coal Co. v. Dasher, 1 Pears. 148. ' Commonwealth v. Hoffman, 74 Penn. St. 105. The filing of an affi- davit is not a waiver of an objection to the sufficiency of the plaintiff's claim. Mifflin ». Railroad Co., 10 L. Bar 128. ' Frank v. Maguire, 42 Penn. St. 77. Dewey v. Dupuy, 2 W. & S. 553. And no declaration of statement need be filed with the copy. Ibid. But where a tenant holds over, after the expira- tion of his term, the lessor, in an action for rent, cannot, by filing a copy of the lease, entitle himself to judgment for want of an affidavit ; in such case, the lease is not the foundation of the ac- tion, but merely evidence of the amount of rent payable by the defendant, for the use and occupation of the premises. Petroleum Co. v. Logan, 6 W. N. C. 502. « Watkins v. Phillips, 2 Whart. 209. Hansen v. Nelson, 1 Miles 340. But judgment cannot be taken against an alienee of the land, who has not signed the deed. Garrison v. Bunting, 2 W. N. C. 14. "* Johnston v. Cowan, 59 Penn. St. 275. " Schuylkill County v. Buckholtz, 1 Leg. Chron. 276. But not an award under a parol submission. Fox v. Philadelphia and Reading Railroad Co., 1 Pears. 156. '^ Bayard v. Gillasspy, 1 Miles 256. " Harley v. Caldwell, 2 Miles 334. " Blackburn v. Boker, 1 Clark 15. Girard Life Insurance Co. v. Finley, 1 Phila, 70. Korn v. Hohl, 80 Penn. St. 333. Audibert v. Young, 1 W. N. C. 276. Heiskell v. Winpenny, Ibid. 146. Seltzer v. Greenwald, 2 Ibid. 395. Sitgreaves v. Griffith, Ibid. 705. Howell V. Herold, 6 Ibid. 431. '* Ogden V. Root, Dist. Court, Phila.. 10 March 1849. MS. Artisans' Loan Association v. Noris, 1 W. N. C. 110. Wurtz V. Potts, Ibid. 375. Berustine !). Gavaghan, Ibid. 506. Bronson v. Shepperson, Ibid. 625. Lloyd i>. Thay- er, 2 Ibid. 291. Bunting e. Allen, 6 W. N. C. 157. A bond conditioned to indemnify the plaintiff against certain mortgages, does not entitle the plaintiff to a summary judgment, Landon v. Carlisle, Dist. Court, Phila., 18 March 1848. MS. And see Gercke v. Mont- gomery, 6 W. N. C. 238. CAUSE OF ACTION. 225 the performance of certain acts by the defendant, if, at the time of suit brought, the time of payment have elapsed.^ Thus, where the plaintiff filed a copy of an agreement, signed by the defendant, whereby he bound himself, in the event of certain securities not being sufficient to pay the plaintiff's claim in full, "to account for the balance in a way that should be mutually satisfactory," and also a copy of an account indorsed thereon, showing a balance in favor of the plaintifi', with an averment that the same was made by the defendant, but which was not signed by him, it was held, that together they constituted a sufficient instrument of writing for the payment of money, to require an affidavit of defence to prevent judgment.^ A contract in writing to pay a cer- tain sum of money, is within the statute, though the option be given to pay in mortgages.^ § 410. An instrument, not signed by the defendant, does not require an affidavit •* as, an acknowledgment of indebtedness, signed by an attor- ney-at-law.^ In a suit on an executory contract, an affidavit of defence is not required.^ A policy of insurance against fire, is not within the act ;'' nor a policy of life-insurance f nor is a receipt for city loan f nor a due-bill for specific articles, at a stated price.'" An agreement to pay a sum of money, on a condition to be performed by the plaintiff, is not one calling for an affidavit of defence ; nor will an averment of performance entitle him to judgment." An agreement to " settle" an unascertained amount of interest due on a mortgage, is not within the statute ;'^ nor a contract to pay a sum of money, for certain stock, to be delivered at a future day.'' In a suit against a depositor in a bank, for an accidental overdraft, an affidavit is not required." A letter to the plaintiff's coun- sel, acknowledging the indebtedness, and ofiering terms of compromise, 1 Sutton V. Athletic Base-Ball Club, son, 4 W. N. C. 271. 4 W. N. C. 90. See Titus v. Bell, * Morton v. Mutual Life Insurance Ibid. 380. Rile v. Worl, 1 Phila. 45. Co., 35 Leg. Int. 282. Fertig v. Maley, 5 W. N. C. 133. " Craig v. Rushton, 1 W. N. C. 82. '' Hallowellu.Wliiteman,Dist. Court, '» Gould- u. Richardson, 33 Leg. Int. Phila., 4 Nov. 1848. MS. 158. Cozens v. Thayer, 1 W. N. C. 267. ^ Caldwell v. Singerly, 34 Leg. Int. Fox v. Mausman, 5 Ibid. 511. 437 • s. 0. 36 Ibid. 74. " Dugan v. Loyd, 2 Miles 259. Scott ' Blkington v. Farmers' Bone Co., v. Loughery, 6 W. N. C. 123. A re- 1 W. N. C. 636. Sayers v. Patterson, 2 oeipt for a sum of money "which I hold Ibid. 334. 'o P^y '^''^^ *" -'^•' ^^ certain liens, for *• Bradford v. Bradford, 1 Clark 209. which said^ money is retained, are re- And see Morris v. Guier, 5 W. N. 0. moved from the record," is within the ]^32 act. Frazer v. Fitler, Dist. Court, ' «"MoNarr v. "Winpenny, 1 W. N. C. Phila., 24 January 1850. MS. 29. Hutchinson v. Weir, Ibid. 267. " Kearney v. Collins, 2 Miles 13. ' Makin v. Insurance Co., 1 W. N. C. And see Dickson v. Buchanan, 5 W. N. 101. Karthanst). State Mutual Fire In- C. 192. suranoe Co., 1 Pears. 104. Miller v. State '' Montgomery v. Johnston, . 1 Miles Mutual Insurance Co., Ibid. 106. In 324. Dickson v. Shaw, 2 Ibid. 262. Blair county, a policy of insurance See Bishop v. De Normandie, 1 Pitts, against fire iswithin their rule of court, 145. . , t. , relatino- to affidavits of defence. Ly- " Farmers' and Mechanics' Bank v. coming" Fire Insurance Co. v. Dickin- Sellers, 2 Miles 329. VOL. I. — 15 226 AFFIDAVIT OF DEFENCE. will not entitle him to judgment.^ Nor will an agreement to accept drafts, to be drawn by a third person, entitle the holder to call for an affidavit of defence.^ / § 411. Judgments. The record of a judgment of a court of another state, is an instrument requiring an affidavit of defence, whether the original cause of action were within the statute, or otherwise.^ So, of a judgment against the plaintiff for costs.* In an action on such judg- ment, the insufficiency of the authentication of the record, will not pre- vent judgment f the same strictness is not required, as when the record is offered in evidentje on the trial f nor will the supreme court, on error, notice an objection to the exemplification, which is not made below, by affidavit.' § 412. Affidavit of loan. The act of 1836 only extends to express contracts for the loan of money.* No affidavit is required where a man receives the money of another, without any direct authority.^ An affi- davit of loan can only be filed, where there is no written evidence of the loan.'" And in such case, an affidavit, denying that any terms of repay- ment were agreed on, is sufficient to prevent judgment.'^ The affidavit must state clearly the date, amount and terms of the loan.'^ § 413. JBook-entries. Book-entries, to call for an affidavit of defence. 1 Hennessy v. Muller, 1 W. N. C. 106. ' Miners' Bank v. , Blackiston, 2 !Miles 358. And see Dundore v. Dob- son, 6 W. N. v.. 2y9. » MoCleary v. Faber, 6 Penn. St. 476. Hofcg V. Charlton, 25 Ibid. 200. Moore V. Fields, 42 Ibid. 467. Luokenbaoh V. Anderson, 47 Ibid. 123. Palmer t. March, 64 Ibid. 239. Winner v. Car- ter, 16 Leg. Int. 20. Power v. Win- sor, 3 W. N. C. 360. The cases hold- ing the contrary doctrine have been overruled. * Parker Mills D.Krause, lPears.531. 5 Packer «. Boyer, 1 W. N. C. 130. New York Sanitary and Chemical Co. V. Hartman. 33 Leg. Int. 264. Hart- man V. New York Manufacturing Co., 5 W. N. C. 502. ° Winsor v. Warehouse Co., 1 W. N. C. 403. ■ ' Power V. Winsor, 3 W. N. C. 360. And see Wethorill v. Stillman, 65 Penn. St. 105. « Sylva V. Bond, 2 Miles 421. And see De Castro v. Costas, 1 W. N. C. 156. ' Peebles v. Kerr, 1 Pears. 69. Lan- dis V. Kirk, Ibid. 77. '» Ohman v. Winsmore, 3 W. N. C. 157. Raible v. Schall, 5 W. N. C. 149. " George I'. Lewis, Dist. Court, Phila., 10 March 1849. Rule for judgment. Per curiam. The plaintiff has filed an affidavit of loan. Although he avers that he lent and advanced to the de- fendant, at his express request, the money in question, yet the defendant denies, positively, that there was any express contract by him to repay the money, and that, though he received the money, it was not as a loan or ad- vance. ■ It may be that, upon the case as presented by these two affidavits, the plaintiff, on the trial, would be en- titled to have the instruction of the court, that the evidence is sufficient to authorize a verdict in his favor, upon a count for money lent and advanced. But that is a different question from the one now presented — whether the court can enter judgment, for want of an affidavit of defence, under the 14th section of the Act of 11 March 1836 ? That section provides that the affidavit shall set forth the terms of the loan or advance, evidently looking to the case of an express contract, and not one to be merely implied from the receipt of the money at defendant's request. Such have been the decisions of this court, heretofore, in Farmers' and Me- chanics' Bank i: Sellers, 2 Miles 329, and Sylva v. Bond, Ibid. 421. The defendant has distinctly denied that he received this money as a loan or ad- vance, or with any agreement to repay it. Rule discharged" " Landis v. Kirk, 1 Pears. 77. BOOK-ENTEIES. 227 must be copies of an original book, which would be competent evidence to a jury of the plaintiff's claim ;' that is, of work and labor done, or goods sold and delivered. Brokers' commissions are not the subject of a book-entry;^ nor are "legal services;"^ nor the services of a convey- ancer ;* nor the labor of an author f nor a claim for wharfage.^ A book-entry is not evidence of a payment of money ;' nor is a charge of " cash ;"* nor a charge of board and cash ; or for . refreshments fur- nished to a seaman.' It is no objection, however, to a book of original entries, that it was kept in ledger form ;'" nor that the charges were made at the end of each week, under a continuous employment." The paper filed must purport, on its face, to he a copy of " book-entries ;"'^ it need not, however, show that the goods charged were sold on a credit.^' If part of the book-account is barred by the statute of limitations, the defence must be set up by affidavit.^'' An entry, charging goods fur- nished " according to contract," will not support a motion for judgment ;" nor an entry charging goods to be delivered at a future day.^' Where the charge is against one, and the process is served on another, as agent, there can be no judgment against the latter, under the statute.*' So, a charge against a vessel and owner, is not sufficient to authorize a judg- ment against owners not named.'* § 414. A day-book, shop-book, or any book of original entry, should contain the name of the buyer, the dates of the delivery of the goods, and the prices for which they were sold. A copy of these entries, accompanied by an averment that they were taken from the books of original entry, and constitute the deiuand of the plaintiff, upon which suit is brought, is enough to put the defendant upon his affidavit of defence. The use of the terms debtor and creditor, is not essential ■ anything that shows an intent to charge the defendant, is sufficient.'' 1 "Wall V. Dovey, 60 Penn. St. 212. But see Ferris v. Philadelphia Cham- Hataill v. O'Donnell, 2 Miles 101. pion Brick-Machine Co., Ibid. 441. Harbison v. Hawkins, 6 Leg. Gaz. Gardiner v. Dodd, 1 Ibid. 146. A 157. Jackson ». Garrigues, 1 W. N. lumping charge is not sufficient. C. 403. Middleton v. Morris, Ibid. 432. White v. Wright, Ibid. 283. Longest 2 Greall d. Noll, 1 W. N, C. 26. Mo- v. Sobey, Ibid. 402. Stay V. Dugan, 2 Ibid. 226. See Pei- '^ Berrell v. Burgin, Dist. Court, per V. Hershman, 1 Ibid. 103. Phila., March 1848. MS. See Hunt v. ' Atwood c. Caverly, 1 W. N, 0. 82. Clark, 1 W. N. C. 28. Becker v. Louch- Eogers v. SouUins, 2 ibid. 535. Meany heim, Ibid. 429. Williams v. Davis, V. Kleine. 3 Ibid. 474, 2 Ibid. 97. * Thorne r. Noel, 5 W. N. C. 566. " Morgan v. Rhoads, Dist. Court, 5 Hirst ». Clarke, 1 Clark 398. Phila., July 1848. MS. See Louch- « Lennig v. Quaker City Steamboat heim v. Becker, 3 W. N. C. 449. Co., 3 W. N. C. 434. And see Wilmer " Wilson v. Hayes, 18 Penn. St. 354. V. Israel, 1 Bro. 257. " Atkinson v. Carson, 1 W. N. C. ' Saam v. Saam, 4 Watts 432. 110. See Bickell v. Wood, Ibid. 282. 8 Hoe V. Seitz, I W. N. C. 429. " Rheem v. Snodgrass, 2 Gr. 379. Fisher v. Binswanger, 2 Ibid. 97 ; s. c. " Herron v. Miner, 4 W. N. C. 226. 3 Ibid. 340. '* Julius v. Comly, 1 W. N. C. 95. " Gibbons's Estate, 1 Leg. Gaz. R. 10. Powel v. Laughlin, 2 Ibid.-446. i» Hoover v. Gehr, 62 Penn. St. 136. '» Orth v. Saylor, 2 W. N. C. 349. " Keys V. Eryin, 4 W. N. C. 382. Charles v. Gillespie, 1 Ibid. 115. See 228 AFFIDAVIT OF DEFENCE. An entry in which the defendants were charged with articles (parasols) described only by trade-numbers and size, but which did not state that they were parasols, was held suificient to entitle the plaintiff to judg- ment, on the theory that it could be readily understood by persons in the trade in which both the parties were engaged.* The dates, however, are a material part of the book-entry.^ A copy of a book-entry is not vitiated by having a bill-heading ; that is mere surplusage f and it is not essential, that the copy filed be signed by counsel.* § 415. Filing of copies. The plaintiff may file a copy of the instru- ment sued on, with .his 2^i'(BGipe.'' When the defendant is brought in, on a pluries summons, it is sufficient to have filed a copy, within two weeks after the return-day of the alias;^ and where a partner, not served with the original process, is brought in, on an alias, after judgment against his copartner, it is sufficient, that a copy of the instrument was filed in the original case.'' The copy must show the defendant's liability upon its face;^ it is sufficient, however, that a prima fade liability be shown.' A variance between the instrument and copy filed will pre- vent judgment;^" but to take advantage of a variance, the defendant must move for an inspection." If the statement misrecite a record Moore v. Humphreys, Ibid. 157. Kalin V. Marquis, Ibid. 2:21. Carr v. Mount- joy, Ibid. 360. Cooper u. Kanakin, 2 Ibid. 428. ' Barraos v. Brandeis, 1 W. N. C. 7. Miller v. Brandeis, Ibid. 62. s. p. Catherwood v. Moore, Ibid. 109. See Miller v. Brandeis, Ibid. 3. Middle- ton V. Morris, Ibid. 432. Graff ». Criss- man, 2 Ibid. 66. Uhler v. Kohler, Ibid. 67. If the abbreviations used, be unin- telligible to the defendant, he must so aver in his affidavit; a general allegar tion of the insufficiency of the copy filed, is not enough. Brown v. Dupuy, 4 W. N. C. 491. 2 Rich V. McLane, 1 "W. N. 0. 469. ' Richardson v. Snyder, 6 W. N. C. 414; s. c. 3 Ibid. 272. Greenfield v. Gill, 2 Ibid. 184. * Logan V. Quigley, 2 W. N. 0. 380. ^ Lawrance v. Fussell, 77 Penn. St. 460. « Mclnnis v. Smith, 9 Phila. 222. ' Hunsicker v. McLoughlin, I W. N. C. 27. ' Lippencott u. Mordecai, 3 Luz. L. Obs. 394. ' Karthaus Coal and Lumber Co. v. Given, 1 W. N. C. 366. Vandike v. McConnell, Ibid. 276. " Reigel v. Breidenhart, Dist. Court, Phila., 16 Dec. 1848. Rule for judg- ment. Per curiam. The proper prac- tice, where there is a variance between the copy filed and the original, is, to call for the production of the original. Here, the afiidavit sets up the variance, and although it presents the case of a necessary admission of the fact, that de- fendant knew what the instrument was upon which she was sued, and was not taken by surprise, yet, we are not dis- posed to say, that defendant is thereby estopped from taking advantage of it. It would undoubtedly be a variance, if the note was described in the narr. as indorsed E. A. Breidenhart, and it ap- peared, on the trial, as indorsed E. Brei- denhart. Chitty on Bills 560. We con- sider it of the highest importance, to lay down and maintain a strict rule in re- quiring that the copy filed should be a true copy of the instrument sued upon. If we should begin to relax it, who can say where we would be landed ? Rule discharged. And see "Wilson v. Kahn, 1 W. N. C. 444. " Shaw 0. Baildon, Dist. Court, Phila., 16 Sept. 1848. Rule for judgment. Po- curiam. When a defendant wishes to take advantage of an alleged differ- ence between the paper filed and the instrument or book of which it purports to be a copy, his proper course is, to take a rule on him to produce the orig- inal in court, on the return-day of the rule for judgment. The court must AVEEMENTS DEHOES. 229 in the recorder's office, the plaintiff cannot have judgment.' The copy cannot be amended, after the expiration of two weeks from the return- day.^ In an action on a lost note, the plaintiff cannot file what pur- ports to be a copy, "as near as can be ascertained," and take judg- ment for want of an affidavit of defence.' And if the clerk, by mis- take, omit to docket the filing of the copy, the plaintiff cannot have judgment.* §416. Avei'ments dehors the instrument. The defendant maybe required to answer an averment dehors the instrument, a copy of which is filed : such as presentment on a day anterior to the commencement of the suit f where the note sued on is signed by an agent, the authority of such agent f where the agreement is to pay an amount to be recovered by verdict and judgment, the amount of such recovery;^ and where the condition of a mortgage is obscure, the terms of the bond recited in it, though no copy of the bond be filed.* But such averment must be suf- ficient to complete the plaintiff's title ;' and must be restricted to a state- ment of the plaintiff's claim, and his title to sue upon the instrument.'" In an action against a married woman upon a promissory note, it is suffi- cient, in the affidavit of defence, to set up the coverture, and aver that otherwise act upon the assumption that the copy filed is a true copy. Here, the defect suggested in the copy is the want of the day in the year, and it is said, the date at the top, is the date of the bill or account, and is no part of the entries, because the month and day there given are subsequent to the other entries, on the supposition that the year is the same. We must take it, however, that the whole is a copy, and if so, the year sufficiently appears. It is to be regretted, that counsel are in the habit of filing accounts and copies fur- nished by their clients, without them- selves examining to see if they are cor- rect. The filing of a copy ought to be what it purports to be on its face — a professional affirmation that it is a copy, where the original is in the attor- ney's possession, or within his reach. Rule absolute. And see Kelly u. Liv- ingston, 1 W. N. C. 95. Wilson v. Kahn, Ibid. 444. Snyder v. Richard- son, 3 Ibid. 272 : s. c. 6 Ibid. 414. ' Croasdale v. Brown, 30 Leg. Int. 84. ' Guskey v. Sparter, 1 W. N. C. 470. Osmer v. Souder, 3 Ibid. 155. Jones V. Gibson, Ibid. 329. Held v. Clemens, Ibid. 475. In one case, it was held, that a mere clerical error in the copy, in the year of the date of the instrument, might be amended, after the expiration of the two weeks. Guth V. Anderson, 3 W. N. C. 133. But this was denied to be law, in Jones v. Gib- son, Ibid. 329. 3 Jordan v. Keller, 5 W. N. C. 341. * Laird v. Potts, 6 W. N. C. 56. * Bank of the United States v. Thayer, 2 W. & S. 443. And see Rile V. Worl, 1 Phila. 45. Newbold v. Com- fort. 2 Clark 331. Rhoads v. Third National Bank, 2 W. N. C. 140. * Montour Iron Co. v. Coleman, 31 Penn. St. 80. See Jacoby v. Mueller, 4 W. N. C. 478. ' Montayne v. Carey, 1 W. N. C. 311. s. p. Frazer v. Fitler, ut supra, i 410 n. Allen v. Patton. 1 W. N. C. 614. « Kennedy v. Ross, 25 Penn. St. 256. ' Lee V. Trimble, Dist. Court, Phila., July 1848. MS. Maule v. Ardley, 3 Clark 28. '» Imhoff V. Brown, 30 Penn. St. 504 ; s. c. 3 Phila. 45. An averment dehors the instrument may show to whom, and to what amount, the defendant is liable ; but the instrument itself must create the liability. Morris v. Guier, 5 W. N. C. 132. Strauch i). Royal Land Co., 35 Leg. Int. 78. It seems, that the plaintiff may have judgment upon a sheriff's interpleader bond, with an averment of a breach. Brenizer v. Car hill, 6 W. N. C. 147. 230 AFFIDAVIT OF DEFENCE. it was not given for necessaries ; she is not bound to deny an affidavit, filed with the copy, that she carried on business as a jeme sole trader ;' but she must deny an averment, that the goods purchased were for the improvement of her separate estate.^ And where the defendant's lia- bility is not absolute, on the face of the instrument, but depends on the happening of a contingency, he is not bound to deny the happening of such contingency, an averment of which is filed with the copy.' "Where a copy of the instrument is filed, it is in the power of the defendant to deny 'all indebtedness upon it, or to explain the nature of his defence against all or any claims that might arise upon the face of the instru- ment. It would seem as if the legislature intended, that the propriety of entering a judgment was to be tested, not so much by the plaintiff's claim, as by the defendant's afBdavit."^ § 417. Affidavit. The affidavit may be sworn to before any officer empowered to administer an oath ; as, before a notary-public of another state.' And it may be filed, at any time before motion for judgment f add though the plaintiflP might have been entitled to judgment, on motion, yet, if he take a rule, the defendant may file an affidavit of defence, at any time before the return of the rule.'' If the defence depend upon books and papers in the hands of the plaintiff, and the defendant show that he has demanded an inspection of them 'and been refused, the rule for judgment will be indefinitely suspended ; since all presumptions are against a party who has evidence in his exclusive pos- session, and conceals it.^ And the court will grant inspection of the plaintiff's book of original entries, a copy of which purports to be filed, to enable the defendant to prepare his affidavit of defence ;' and this will be enforced, by enlarging the time for filing an affidavit, until an inspec- tion is' given.^" § 418. Sufficiency of the affidavit. It is sufficient, that the defence be stated with certainty to a common intent.'^ But the defendant must distinctly set forth the facts on which the defence must turn.^^ The affi- davit should state specifically, and at length, the nature and character of the defence relied on ; and should set forth such facts as will warrant 1 Imhoff V. Brown, 30 Penn. St. 504. " Gillespie v. Smith, 13 Penn. St. 65. ^ Harper ». Graham, 4 W. N. C. 183. ' Ritter v. Leonard, 2 Pars. 255. Allen V. Graham, 3 Ibid. 493. See Duncan v. Bell, 28 Penn. St. 516. ' Dickerson v. McCausland, 3 W. N. ' Lord v. Ocean Bank, 20 Penn. St. C. 327. It is difficult to reconcile this 387 ; Black, C. J. ease with Montayne v. Carey, 1 Ibid. ^ Shawu. Baildon, ut supra, ^415 n. 311. See Dugan v. Loyd, 2 Miles 259. Reigel v. Breidenhart, Ibid. Johnson v. Hille, 2 Clark 274. Fertig '" 'Taylor v. Montgomery, Dist. Coui-t, V. Malay 5 W. N. C. 133. Scott v. Phila., S. '51, 19197 MS. Loughery, 6 Ibid. 123. " Hugg v. Scott, 6 Whart. 274. * Dewey v. Dupuy, 2 W. & S. 556 ; Thompson v. Clark, 56 Penn. St. 33. Sergeant, J. Caldwell v. West, 1 Phila. 288. Grie.- * Champion v. Harthill, 1 W. N. C. v. Philadelphia, 29 Leg. Int. 52. 331. It is irregular, to swear to the " Comly v. Bryan, 5 Whart. 261. affidavit before the prothonotary of Rising v. Patterson, Ibid. 316. Dows another court. Flinn v. Graff, Dist. v. White, 2 Miles 140. Hi'ncklev v Court, Phila., 11 March 1848. MS. Shope, 1 Leg. Gaz. 54 SUFFICIENCY. 231 tlie legal inference of a full defence to the plaintiff's cause of action.' Thus, in an action on a note, a mere denial that there was any con- sideration, is not sufficient f nor, is an averment that ' the charges in a physician's bill are too high f nor, an averment of a payment on account, without specifying time, place and manner.* The affidavit should dis- tinctly aver every fact necessary to constitute a defence; nothing should be left to inference ;^ thus, in an action by the indorsee of a promissory note, if it be intended to deny that the plaintiff is a hon& fide holder for value, it is not enough, to aver that he received it for an " antecedent debt ;" it must be further avei-red, that he took it as collateral security ; otherwise, it will be presumed to have been received in payment.^ And the affidavit must be positive, as to the facts or denial of the cause of action;' an affidavit in the alternative is insufficient.' § 419. An affidavit is sufficient, if it set forth in words, or by neces- sary inference, the indispensable elements of a good defence f it need not negative every objection which fine critical skill may deduce.'" If it put the plaintiff upon proof of any matters dehors the instrument sued on, it is sufficient to prevent judgment.'' If fraud be set up as a ' Bryar ». Harrison, 37 Penn. St. 233. Black V. Halstead, 39 Ibid. 64. Woods r. Watkins,40 Ibid. 458. Blackburn i\ Ormsby, 4l Ibid. 97. Anspach v. Bast, 52 Ibid. 356. Bronson r. Silverman, 32 Leg. Int. 30. Bright v. Hewitt, 2 W. i\. C. 62(3. 2 Riley v. Bullock, Dist. Court, Phila., 23 Sept. 1848. MS. ' Thompson v. Daniels, Dist. Court, Phila., 9 Dec. 1848. MS. But see Thomas v. Askin, 6 W. N. C. 500. * Fisher v. Stokes. Dist. Court, Phila., 21 Oct. 1848. MS. " Brick V. Coster, 4 "VV. & S. 494. Moore v. Somerset, 6 Ibid. 262. Peck V. Jones, 70 Penn. St. 83. O^den v. Offerman, 2 Miles 40. Forchheimer V. Peistman, Bright. 86. Bruner w.Wal- lace, 4 "W. N. C. 53. Martieu v. Wood- ruff, Ibid. 211. Warner v. Wenrich, 34 Leg, Int. 297. Fox v. Horstman, Ibid. 313. Gaskill V. Lynch, 4 W. N. C. 542. " Bardsley v. Delp, 6 W. N. C. 479. ' Harris v. Mason, 2 Miles 270. * Boston Bank v. Bartholomew, 2 W. N. C. 445. ' Selden v. Neemes, 43 Penn. St. 421. Twitchell v. McMurtrie, 77 Ibid. 383. Delp V. Sowers, 5 W. N. C. 167. Thus, in an • action against a second indorser, an affidavit averring that the defendant is informed and believes, and expects to be able to prove, that the payee is the real owner of the note, and that the suit is brought for his benefit, is sufficient to prevent judg- ment. Oberle v. Schmidt, 86 Penn. St. 221. It is sufiicient, that it set forth a primd facie defence. Sixth National Bank V. Harkness, 6 W. N. C. 108. '" Leibersperger v. Reading Savings Bank, 30 Penn. St. 531. Christy v. Bohlen, 5 Ibid. 38. Grier v. Philadel phia, 29 Leg. Int. 52. " Hunter v. Reilly, 36 Penn. St 509. Purves v. Corfield, 1 Phila. 174 Donnely v. Robeno, 23 Leg. Int 117. Orth V. Baker, 3 Leg. Chron. 197, Woolverton v. Smith, 4 W. N. C. 442. Eggler V. Fleishman, Ibid. 574. Prahl Smaltz, 26 Pitts. L. J. 127. Brown v. Merriweather, Dist. Court, Phila.. 17 June 1848. MS. Kaulter v. United States Bank, Ibid., 14 Ju#e 1851. Rule for j udgment. Per curiam. It seems clear, from the affidavit, and from the statement of the balance by the plain- tiff, that some of the collaterals depos- ited by defendants have been realized, and defendant is certainly entitled to have an account of them. Indeed, it would seem by far the best practice, for a plaintiff to state on the face of his copy filed, the securities which he still holds, in order to enable the court to exercise that proper control over the money raised by the execution which it has been held that they have. Without it, the grossest injustice might be per- petrated, through the instrumentality of legal proceedings, and without it,-a 232 AFFIDAVIT OF DEFENCE. defence, the affidavit must show in what it consisted;' so, as to the special circumstances constituting the defence of usury.^ It is not suf- iicient, to swear to a conclusion of law; all the facts must be set forth, that the court may draw the proper conclusion.' If a set-off be sworn to, the items and amount need not be stated ; provided it be said to exceed the plaintiff's claim ;'' but the facts and circumstances of a right of recoupment must be distinctly averred f and a set-off must be alleged to be due and unpaid.^ If a part of the set-off be apparently barred by the statute of limitation, but is not separated from the rest, the affidavit is insufficient.' Where the affidavit sets forth a prima facie defence, the court will not decide further upon the law of the case.* § 420. Form of the affidavit. If the facts constituting a part of the defence be not within the defendant's own knowledge, it is sufficient to aver that he believes and expects to be able to prove the same.' An affidavit that the defendant " avers and expects to be able to prove" the facts constituting a good defence, is sufficient.'" If the affidavit be posi- tive, an averment of the defendant's ability to prove the facts on the trial, is unnecessary ; especially, where he is a competent witness in his own behalf." But if a fact be averred upon information and belief, the defendant must state that he expects to be able to prove the same ; or set forth specially the sources of his information, or the facts upon which his belief rests ;'^ he is not required, however, to make a disclosure of the defendant, ignorant of what a plaintiff has received on collaterals, and what he still holds, is necessarily embar- rassed in his defence. We think, there- fore, this case ou^ht to go to a jury. ' Sterling v. Mercantile Mutual In- surance Co., 32 Penn. St. 75. Mat- thews V. Long, 3 W. N. C. 512. ^ E. kstein i. Harland, 4 W. N. C. 1 50. ' Stitt V. Garrett, 3 Whart. 281. Dewey v. Dupuy, 2 W. &, S. 553. Marsh v. Marshall, 53 Penn. St. 396. Penn v. Auer, 6 W. N. C. 447. * Runyan *. Crawford, Dist. Court, Phila., 1 April 1848. MS. Fletcher v. Baneroft,Ibid., UOct. 1848. MS. And see Lawrance v. Smedley, 6 W. N. C. 42. * Louchheim v. Becker, 3 W. N. C. 449 ; s. c. 1 Ibid. 429. * Smyth V. Armstrong, 2 W. N. 0. Ooi, ' Hines v. Porter, 1 Pears. 155. * Chartiers Railway Co. v. Hodgens, 77 Penn. St. 187. Pittsburgh, Fort Wayne and Chicago Railway Co. v. Horbaugh, 4 Brewst. 115. Conrad V. Rodgers, 3 W. N. 0. 157. ' Reznor ». Supplee, 81 Penn. St. 180. "I Moeck V. Littell, 82 Penn. St. 354. " Byre v. Yohe, 67 Penn. St. 477. Ellison V. Freiling, 1 W. N. C. 109. '^ Black V. Halstead, 39 Penn. St. 64. Thompson v. Clark, 56 Ibid. 33. Brown «. Street, 6 W. & S. 222. Moore V. Somerset, Ibid. 263. Ball v. Mona- gan, 1 W. N. C. 188. Salter v. Askin, Ibid. 388. Hermann v. Ramsey, 5 Ibid. 188. McLaughlin v. Dimond, Dist. Court, Phila., 23 Dec. 1848. Rule for judgment. Per curiam. Where a party defendant says, he is informed of and verily believes a certain state of facts, constituting a defence, he is bound either to add, that he expects to be able to prove the defence, or show the court specially the grounds of his belief, when, if those grounds are such as are reasonably calculated to raise such belief, the court will give him the de- lay the law allows, even though he may not be able to say, at present, that he expects to be able to make out his defence. Time may help him to the evidence, and he is entitled, in an honest case, to the benefit of it. In this case, the defendant, after setting out his de- fence, evidently aware of the rule, says he will endeavor to prove it ; but he may not have been aware, that if he could not say he expected to prove it, it was lawful for him to adopt the FORM OF AFFIDAVIT. 233 svidence by which he expects to establish his defence.' In an action on a promissory note, an affidavit denying the holder's title, to the best of the defendant's knowledge and belief, is not enough f nor is a general allegation, on information, that another than the plaintiff is the owner of the note ;^ nor an averment, " as the defendant believes," that the note sued on was held by the payee at maturity.* But in an action on a note, with a special indorsement, an affidavit, alleging fraud, and denying the plaintiff's title, is sufficient to put him on proof that he is a honA fide holder f so, an affidavit, averring that suit is brought in the name of one who is not the real holder, in order to shut out a set- off, is sufficient.* And in an action for purchase-money, an averment of a defect of title, and a pending suit to determine it, is sufficient to prevent judgment.' If the subject-matter of defence be matter of record, a copy of the record must be set forth, or be referred to by a prout f and where it depends upon the terms of a collateral agreement, it must be set forth in exteiiso, or it is not before the court for interpretation.' But an affidavit averring a warranty, need not set out at length the words of the alleged warranty.'" The affidavit will not be so construed as directly to contradict the terms of the instrument." § 421. Practice. Judgment may be given for want of an affidavit of defence, though there be neither appearance nor declaration ;'^ but two returns of nihil do not authorize such a judgment ; the plaintiff should, in such case, take judgment for want of an appearance.'^ Judg- ment may be entered for want of an affidavit, though the suit be com- menced by capias, and the defendant have not put in special bail.'^ By taking any step in the cause, however, the plaintiff waives his right to move for judgment ;'^ he cannot have such judgment, after an arbitration and appeal from an award."" Nor can such judgment be entered, when the plaintiff was dead, at the impetration of the writ, and the record was not amended, until after the day for judgment."^ The propriety of other, and inform the court why he ' Richards w. Bisler, 3 W. N. C. 485. enterta,ined the belief to which he has ° Birkey v. Whitaker, 4 W. N. C. sworn. 137. McClure v. Bringham, Dist. Court, "> Potts v. Erb, 4 W. N. C. 542. Phila., 25 JNIarch 1848. MS. " DaCosta v. O'Rourke, 34 Leg. Int. ' Bank of Clarion v. Grigg, 79 Penn. 338. St. 384. " Clark v. Better, 54 Penn. St. 215. ' Gowen v. McPherson, 32 Leg. Int. " Jliner v. Graham. 24 Penn. St. 491. 248. '* Barbe v. Davis, 1 Miles 118. * Berrill o. Zeigefaus, Com. Pleas, '* O'Neal v. Rupp, 22 Penn. St. 395. Phila., Nov. 1847. MS. Brown v. .Johnston v. Ballentine, 1 W. N. C. Street, 6 W. & S. 222. 626. Filing a declaration with the ^ Reamer v. Bell, 79 Penn. St. 292. copy, is not a waiver of the affidavit of Osraer v. Souder, 3 W. N. C. 155. defence. Brobston v. Campbell, 5 W. Hackettstown Bank v. Matthews, Ibid. N. C. 273. And the plaintiff may 25f^_ withdraw a rule to plead, before plea ' Graphic Co. v. Marcy, 4 W. N. C. filed, and move for judgment for want 239 s P Eyre v. Yohe, 67 Penn. St. of an affidavit. Jones v. Kohler, 35 477! Kirk V. Keebler, 4 W. N. C. 369. Leg. Int 396. ' Mossu. Hanson, Dist. Court, Phila., '* Lusk v. Garrett, 6 W. & S. 89. 21 June 1848. MS. " Lynch v. Kerns, 32 Leg. Int. 116. 234 AFFIDAVIT OF DEFENCE. the discontinuance of a former suit before a justice, cannot be inquired into, on a motion for judgment.^ " § 422. If the affidavit be insufficient on its face, the court may give judgment.^ If the affidavit filed be deemed insufficient, the plaintiff's counsel must move for a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence ; this is granted of course, but must be put in writing, and delivered to the prothonotary, who is required to file and enter the same upon the minutes, and indorse the time of delivery thereon.^ Such rule is returnable on the next mo- tion-day ;* and is placed by the prothonotary upon the current motion- list. Notice in writing must be given to the defendant, or his attorney of record ; and paper-books prepared for the judges, as no motion will be heard without a paper-book. Upon every such rule, the plaintiff must furnish to each of the judges, before the hearing, a copy of the bill, note, bond, book-entries, claim or other instrument of writing, or affidavit of loan, filed by the plaintiff; and also a copy of the affidavit of defence filed by the defendant ; in default of which, the rule will be discharged.' Paper-books must be written in a plain, legible hand, or printed ; and indorsed with the names of the plaintiff and defendant, and also the names of the counsel furnishing the same ; if made of a press-copy, the paper-book must be backed with foolscap-paper, and the copy trimmed to correspond in size.^ Unless specially directed, not more than two counsel will be heard ; the plaintiff's counsel, having the right to begin, must state the grounds relied on, and cite all the authorities intended to be adduced in their support ; the counsel for the defendant will then be fully heard ; if two, in the order of seniority ; the counsel who began, if alone, will reply ; if two are concerned, that duty devolves upon his colleague. The reply is to be confined to the points made by the oppo- site counsel.^ § 423. If the court deem the defence to be probably good, but defect- ively stated ; or where the defence is set up in such general terms, that the court cannot determine whether a defence exists, it is the practice, to allow a supplemental affidavit to be filed.;* and, indeed, the court has no right to disregard a supplemental affidavit, though filed after a rule for judgment.' Where, however, a supplemental affidavit is ordered, and none is filed, judgment on the original affidavitis not of course ; the ' Lancaster Bank v. McCall, 2 Clark lists. Rule xxiv. § 79. 498. 6 Rule xxiv. § 85. 2 West V. Simmons, 2 Whart. 261. « jyj ^ g4 Bishop V. De Normandie, 1 Pitts. 145. ' Ibid, i 82. If the defendant's attorney, after filing " Riley v. Bullock, Dist. Court, Phila., an affidavit, withdraw it from the office, 23 Sept. 1 848. MS. It seems that a sup- the court will give judgment as for plemcnt affidavit may introduce a new want of an affidavit, leaving him to defence. Callen v. Lukens, 7 W. N. C. his motion to open. Thompson v. Gal- 28. See Stockham v. Mitchell, 35 Lee. loway, 35 Leg. Int. 133. Woodside v. Int. 181. Stevenson, 5 W. N. C. 235. » West v. Simmons, 2 Whart. 261. ' Rule xxiv. § 80. The courtwill not notice a supplemen- * The Saturdays of each week are tal affidavit, filed after judgment. Stern appointed for the hearing of motions v. Probst, 26 Pitts. L. J. 48. and rules on the current and deferred MOTION FOli JUDGMENT. 235 case may be called up, on any motion-day, after the deferred list, giving forty-eight hours' notice to the other side, when the court will re-examine the original affidavit and decide accordingly ; the defendant has a right to rest his ease on the original affidavit, and no inference ought to be made against him on that account.^ If the paper termed an affidavit of defence be frivolous, upon its face, the court will give judgment, without a rule to show cause.^ If it merely set up a misnomer, the plaintiff may have leave to amend at bar, and then take judgment ;^ so, of a mistake in the defendant's firm-name f or, of an omission to name the particular partners composing the firm.^ So, if the affidavit allege that the note sued upon is the renewal of a former one, which has not been surrendered, judgment may be. given, on a surrender thereof at bar.^ If the affidavit admit a certain amount to be due, and take defence as to the residue, the plaintiff may take judgment for such sum ; but to enable him to do so, a certain amount must be distinctly admitted to be due ;'' in such case, he cannot, after a voluntary payment thereof, proceed for the balance of his claim.^ Where, however, an affidavit of defence is filed to one of several items of a book-account, the plaintifi" may have leave to withdraw such item, without prejudice, and take judgment for the amount of the undisputed items.' And the plaintiflf may take judgment for want of an affidavit, or for want of a sufficient affidavit,'" against one of several defepdants, and proceed to trial against the others.'^ If the court refuse judgment, an exception and writ of error lies to their decision ;'^ but, in such case, the supreme court will not reverse, except for a clear mistake of law.'^ The affidavit will not serve as a notice of special matter, where one is required by the rules of law ;'^ but it may be read in evidence on the trial, as an admission of the facts therein stated ; it is not in the nature of a plea.'' This, how- ever, is a dangerous experiment, as the affidavit will generally contain ' Hill V. Gaw, 4 Penn. St. 495. On ' Kuhnle v. MoKeever, 1 W. N. C. a motion for judgment, the aifidavit 19. The court will not, however, give cannot be contradicted, even by matter judgment for an amount admitted to of record. Feust v. Fell, 6 W. N. C. be due in another transaction. Rand 43. V. Lore, 5 Ibid. 236. 2 Taylor v. Nyce, 3 W. N. C. 433. * Brazier v. Banning, 20 Penn. St. ' Gustine v. Cummings, 1 W. N. C. 345. Bradford v. Bradford, 1 Clark 105. 388. * Megargee v. Souder, 2 W. N. C. ' Johnson v. Bazin,4 W. N. 0. 171. 15 See Richards v. Bisler, 3 Ibid. 485. 5 Bold V. Harrison, 1 W. N. C. 154. i" Bean v. Seyfert, 34 Leg. Int. 338. Lippincott V. Hopple, 2 Ibid. 186. The " Act 4 April 1877, P. L. 52 ; Purd. old cases to the contrary are overruled. 2134. If the affidavit set up the omission of " Act 18 April 1874, P. L. 64 ; Purd. a co-contractor, jointly liable, the court 1873. may amend the record, by inserting ,'' Griffith v. Sitgreaves, 2 W. N. C. such person's name; but judgment 707. cannot be entered, until after the return " Sullivan v. Johns, 5 Whart. 366. of process against him. Dusenberry v. Erwin v. Leibert, 5 W. & S. 103. Sim- Bradley, 6 W. N. C. 413. mons v. West, 2 Miles 196. And see ^ Henry v. Musselman, 4 W. N. C. Finlay v. Stewart, 56 Penn. St. 183. 429. '* Bowen v. De Lattre, 6 Whart. 430. 236 AFFIDAVIT OF DEFENCE. something adverse to the plaintiff's case ; and, if offered in evidence, the whole of it must be taken together. A judgment for want of an affidavit of defence is final, not interlocutory, though the damages have not been ' McClung V. Murphy, 2 Miles 177. CHAPTER XIII. Of Judgment by Confession. I. Of a cognovit, ?425. II. Of warrants op attorney, §434. Nature of a cognovit, § 425. What is a warrant of attorney, Entry of a cognovit, § 426. § 434. Cautionary judgment, ^427. Form and validity of a. warrant. Statement of cause of action, J 435. § 428. Powers of tlie prothonotary, Wlien a cognovit may be entered §436-7. up, I 429. Eutry of the judgment, § 438-9. By attorney for one of several de- Time of entry, § 440. fendants, § 430. Etfect of the entry, § 441. By copartners, § 431. Filing of the warrant, § 442. Kestrietion of Uen, § 432 Collateral agreements, \ 442. Powers of the prothonotary, § 433. Opening judgments, I 443. § 424. Judgment by confession is either by cognovit actionem, or by warrant of attorney; the former applying where an action has been commenced, and the latter being generally given as a security for a debt, where no suit is pending, though sometimes given on compromis- ing a suit. In the present chapter, we will treat first of the cognovit, and secondly, of the warrant of attorney. I. Of a cognovit. § 425. Where the defendant has no available defence to make to the action, it is usual for him, instead of proceeding to trial, or of allowing judgment to pass against him by default, to give the plaintiff a cognovit, or written confession of the action, usually, upon condition that he shall be allowed a certain time for the payment of the debt or damages, the amount of such debt and damages being first ascertained and agreed upon.' If no time be stipulated, in the cognovit, for payment, the defend- ant, is entitled to the usual stay of execution, under the act of 1836,^ whether the suit were instituted by writ, or by amicable action.^ The cognovit also generally contains an agreement upon the part of the defendant that no writ of error shall be brought.^ § 426. A cognovit, in the English practice, is given either where there has been no plea, or after plea pleaded. If given before plea, it merely ' 2 Arch. Pr. 5. torney, except when stay of execution ^ P. L. 761 ; Purd. 634. is waived by the contract. Griffith v. " The defendant in a judgment en- Thomas, 34 Leg. Int. 150. Gardiner tered on a warrant of attorney, is not v. Grazier, 25 Pitts. L. J. 53. And see entitled to a stay of execution. Slone Allison v. Bradley, 4 W. N. C. 150. V Kino- 35 Penn. St. 270. The stay Gordon v. Green, 34 Leg. Int. 1 34. law of"l877 (P. L. 29, Purd. 2116), ex- * 2 Arch. Pr. 5. tends to iudgments on warrants of at- ^ (237) 238 JUDGMENT BY CONFESSION. states the confession, the amount of the debt or damages, the terms upon which the confession is given, and the defendant's agreement not to bring a writ of error ;^ but if given after plea pleaded, it also contains an agreement to withdraw the plea; in which case, it is termed a cognovit actionem relictd verificatione, from the form of the entry of it upon the roll.^ The confession of the action may, it is said, be given before the plaintiff has declared, particularly, where the cause of action is expressed in the process (which original writs, in Pennsylvania, always do), but, in England, it is more regular, if the parties compromise before declaration, to take a warrant of attorney to confess judgment, as security for the debt and costs.' When the defendant has appeared by attorney, and judgment is entered against him, it will be taken to be by confession.* If the amount of damages be not ascertained by the cognovit, the plain- tiff must enter interlocutory judgment, and proceed to assess his damages as on a default.^ "If the plaintiff's demand is in nature of a debt, which may be ascertained by calculation, whether it arise on a note or other writing, or on an account, it is sufficient to enter judgvient gener- ally ; the judgment is supposed to be for the amount of damages laid in the declaration, and the execution issues accordingly. But the plain- tiff indorses on the execution the amount of the actual debt, and if the defendant complain that injustice has been done, the court is always ready to give immediate and liberal relief, on motion; relief may like- wise be given by a judge, at his chambers, before the return of the exe- cution, a proper case being laid before him, verified by oath."^ § 427. A judgment confessed by the defendant, with an agreement that he be at liberty to have a trial, whether anything, and liow much, may be due, admits nothing, but the plaintiff is, nevertheless bound to prove his case as laid in the declaration.'' It has been usual at the bar, thus to enter judgments, in order to bind lands, or for the purpose of proceed- ing to charge the special bail, and, under these judgments, to try or refer the suits. In many instances, after such judgments confessed to plain- 1 2 Arch. Pr. 5. infra, § 1041. ' Ihid., citing 7 Taunt. 701. "♦ Barde v. Wilson, 3 Yeates 149. ^ Tidd 559. The practice in re- * A judgment by confession, for a ferenoe to the form and nature of a sum to be ascertained by the protho- cognomt, as above stated, is that which notary, is a lien only from the time of prevails in England, and would be reg- its liquidation. Philadelphia Bank v. ular in Pennsylvania, but it is seldom Craft. 16 S. & R. 347. But a judgment that the same practice is observed here, by confession, in debt, " sum "to be either as to the form of a confession of liquidated by attorney," is a lien on judgment, or as to the entering of it on the defendant's real estate, though not record. Frequently, immediately after liquidated. Commonwealth v. Bald- tlie institution of an action, both before win, 1 Watts 54. s. p. Hays v. Tryon and after the return of the writ, the 2 Miles l2(.>8. Though, at first blushj defendant's attorney confesses judg- these oases would appear to be exactly ment, generally, in words to the follow- similar, the court has pointed out the ing effect: "I appear for the defend- distinction, ant, and confess judgment to the plain- « Lewis r. Smith, 2 S. k R. 155- tiff for the sum of , to take effect Tilghman, 0. J. ' as if given on an award of arbitrators ' Gorgerat v. McCarty, 1 Yeates 253 for the same sum, filed this day." See COGNOVIT. 239 tiff, verdicts, reports of references, and judgments for the defendants have succeeded. § 428. It is provided by rule of court,* that no judgment by confes- sion shall be entered, in any amicable suit, unless there be filed, at the time of filing the agreement, a specific statement of the cause of action, signed by the parties or their attorneys; and where said statement is signed by the attorney of the defendant, there shall also be filed with the same, his warrant of attorney ; it being understood, that this rule does not apply to judgments on warrants of attorney, or to revivals of judgments by agreement. A judgment entered by agreement, without ii specific statement of the cause of action, is, under this rule, an absolute nullity ; and will be set aside, at the instance of any person interested.- So, a judgment entered by cognovit, will be stricken ofi", if the cognovit be not signed by the attorney f but the court will not strike ofi" a judg- ment, confessed by an attorney, by virtue of a warrant, executed with a blank, which he has properly filled up ; the remedy, if any, is against the attorney.* § 429. If a defendant give a confession of judgment, in a pending suit, with a stay of execution, it may be entered up, after his decease, with a suggestion of the names of the executors ; but execution cannot issue, without a scire facias to his representatives^' If, however, such judgment be entered up, without any substitution of representatives, it is absolutely void, even as to third persons coUaterall}' interested in the payment thereof.' A defendant may appear before the prothonotary, in person, and confess judgment ; such judgments have been frequent, from time immemorial, and their validity has never been questioned ; the power of the prothonotary to sign judgment, rests on a statutory grant of it, when he was ex officio a judge of the common pleas, which has never been revoked.' An agreement to enter judgment as of a particular term, is complied with, by an entry of judgment as of a subsequent term, if no third person be injured thereby.* § 430. Where an attorney appears specially for one defendant, in a suit against two, and afterwards, as attorney "for the defendant," acknowledges judgment in favor of the plaintiff, it is a good judgment only as to the defendant for whom such attorney appeared, and a joint execution is erroneous. Although the acknowledgment is made in behalf of the " defendant," in the singular number, which in strictness is applicable only to one, yet, if the attorney who confessed the judg- ment had appeared for both, there might perhaps be a difference.' 1 Rule XX. § 71. ' Philadelphia v. Toll, 2 W. N. C. 2 Baider v. Murray, 1 Phila. 273. 226. And see Lytle v. Colts, 27 Penn. The statement need not be as precise as St. 193. a bill of particulars ; it is enough, that * Sweesey v. Kitchen, 80 Penn. St. the nature and consideration of the 160. debt, the time when it was incurred, * Webb v. Wiltbank, 1 Clark 324. and that it is due and unpaid, be con- " Finney v. Ferguson, 3 W. & S. 413. cisely stated. Gandall v. Finn, 2 Abb. ' Reed v. Hamet, 4 Watts 441. Deo. 232. And see the cases collected ^ Lewis v. Smith, 2 S. & R. 142. in Brio-ht. N. Y. Dig. 2279-80. ' Kimmel v. Kimmel, 5 S. & R. 224. 240 JUDGMENT BY CONFESSION. § 431. -A judgment which, on its face, is confessed by one partner, is a nullity as to the other, and the court will set it aside, together with a fi. fa. issued on it against the firm.' A partner cannot bind his copartner, by a confession of judgment against the firm; such judgment only binds the individual who confessed it;^ no one, however, but the other partner can contest its validity f and the defect is cured, by a subsequent revi- val by the attorney of the firm.* A surviving partner cannot confess a judgment against the late firm, for a partnership debt ; such judgment is void." Under a judgment confessed by one partner for a firm debt, the goods of the firm may, nevertheless, be taken in execution, though it does not bind his copartners personally;' and if such judgment be paid by the firm, under the pressure of an execution, though subsequently set aside as to the other partner, the plaintiflT is entitled to the money.' § 432. A judgment by confession, with a stipulation that the lien shall be restricted to certain specified real estate, subsequently revived, gener- ally, by confession, after the expiration of the five years from the date of the original judgment, is without restriction as 'to the defendant's real estate.* Such a stipulation, though it restricts the lien of the judg- ment, does not exempt the other real and personal property of the defendant from liability for the debt ; the lien is merely an incident to the judgment, and the restriction does not afiect the judgment as a per- sonal security.' An agreement made by a creditor with his debtor, at the time of executing a judgment-note, that the former would not issue execution, until another designated creditor should enter judgment and issue execution thereon, will be enforced against the creditor, and his judgment will be postponed in favor of the first creditor, on distribution of the proceeds of a sherifi''s sale of the debtor's personalty.'" § 433. Independently of the act of 1806, the prothonotary is author- ized to enter an amicable confession of judgment; and the agreement need not be under seal ; it is not considered a warrant of attorney.*' He may enter up judgment, upon a written order, sent to him by the defendant, in an action of debt, and directing him to enter judgment.'^ ' Walker v. Bradley, Diet. Court, as to Williams, andj^./a. quashed. Phila., 16 Sept. 1848. Why judgment ^ ^itzer u. Shunk, 1 W. & S. 340. should not be opened, and fi. fa. set Quillen v. Lawrence, 4 W. N. C. 239. aside. Per curiam. The judgment was ' Grier w. Hood, 25 Penn. St. 430. confessed, as appears by the record, by Knight v. Watrous, 1 Luz. L. Reft. 110. one member of the firm, and, of course, * Cash v. Tozer, 1 W. &. S. 519. the judgment against the other is a * Castle u. Reynolds, 10 Watts 51. nullity, and must be set aside. The 7?. ^ Corson u. Beans, 3 Phila. 433. ya.-of course, reoitesajudgment against Ross v. Howell, 4 W. N. C. 25. Koh- tlie firm, which never existed, and is, ler v. Sees, Ibid. 348. therefore, irregular. It is said, how- ' Harper v. Fox, 7 W. & S. 142. ever, to have been levied only on Brad- " Dean's Appeal, 35 Penu. St. 405. ley's interest, and we are asked to ' Stanton v. White, 32 Penn. St. 358. amend: this wo think we ought not " Ayer's Appeal, 28 Penn. St. 179. to do. The writ is in the sheriff''s " Cook v. Gilbert, 8 S. & R. 567. hands, and, without consent, it is ques- " McCalmont v. Peters, 13 S. & R. tionable whether we can amend. How- 196. See Ely v. Karmanv, 23 Penn. ever that may be, we think we ought St. 314. Association v. Gardiner, 2 not to amend, and thereby encourage W. N. C. 96. such irregularities. Judgment set aside WARRANT OF ATTORNEY. 241 n. Of warrants of attorney. § 434. A warrant of attorney is a written authority to the attorney or attorneys to whom it is directed, to appear for the party executing it, receive a declaration for him in an action, at the suit of a person therein mentioned, and thereupon to confess the action, or suffer judgment to pass by default ; and to sign a release of all errors and defects, touching such proceedings.' Where a party gives a warrant of attorney, as secu- rity for a debt on which no suit is pending, it is usual, at the same time, to execute a bond, conditioned for the payment of the debt, with inter- est, either immediately, or within a stipulated time after the date, to which bond the warrant refers, and authorizes a confession of judgment for the penalty.^ The person to whom the warrant of attorney is given, has all the benefit of a judgment and execution against the debtor's per- son and property, without being delayed by any intermediate process, as in the case of a regular suit.^ It is as much an act of the court, as if it were formally pronounced on nil didt or a cognovit; and, until it is reversed or set aside, it has all the qualities and effect of a judgment on verdict ;* and if it be given .to confess a judgment unconditionally, or without delay of execution, judgment may be signed, and execution may be taken out, upon the same day it is given ; and thus, a debtor may give one creditor a preference over another, who has obtained a judgment after long litigation.^ Great frauds are often committed under color of these bonds and warrants of attorney, and in some of the states, they are absolutely prohibited, on experience of the abuse made of them ; they could be nowhere tolerated, without the exercise of a liberal discretion by the court in inquiring into them.^ § 435. A warrant to confess judgment should contain not only a grant of the authority, clearly and intelligibly expressed, but a designation, by name or description, of the person who is to execute it. The warrant of attorney must be subscribed by the defendant, and is generally by deed, with an attesting witness ; though it has been held, that an attest- ing witness is not necessary, and that it was not even requisite it should be by deed.'' A warrant given by a feme covert is absolutely void ;' and ' 2 Aroh. Pr. 12. Bingham on Judg- dice. Bunn u. Ahl, 29Penn. St.390-1. ments 38. Smith v. Smith, 21 Ibid. 370. And ^ 1 Dunl. Pr. 359. Shoemaker v. such judfi;raeiit is open to impeaoh- ShirtliiFe, 1 Dall. 133. ment hy pargl evidence. Ayer's Ap- ' 1 Cromp. Pr. 316. peal, 28 Penn. St. 179. Blakey's Ap- ' Braddeeu. Brownfield,4Watts474. peal, 7 Ibid. 450. St. Bartholomew's Church v. Wood, 61 ' Kinnersley v. Mussen, 5 Taunt. Penn. St. 96. Hageman w. Salisberry, 264. Otherwise, if it contain a release 74 Ibid, 280. of errors. Brutton v. Burton, 1 Chit. 707. 5 Holbird v. Anderson, 5 T. R. 235. ^ Caldwell v. Walters, 18 Penn. St. 5 Kellogg JJ.Krauser, 14 8. &R. 143; 79. Ware v. Henry, I Pears. 75. Tilghman, C. J. A judgment confess- Quinn's Appeal, 86 Penn. St. 447. But ed, though for an amount honestly due, the warrant of attorney of a husband if given for the purpose of defrauding and wife, though void as to the wife, creditors, by forcing them into a com- is valid as to the husband. Shall- promise, is voidable by them, in what- cross v. Smith, 81 Penn. St. 132. ever way it may be used to their preju- Watkins v. Abrahams, 24 N. Y. 72. VOL. I. — 16 242 JUDGMENT BY CONFESSION. a purchaser at sheriff's sale, under a judgment entered upon it, takes no title ; so is a warrant of attorney given by a minor.' § 436. Judgment may be entered up by the prothonotary, on a war- rant of attorney, without the intervention of an attorney. The act of 1806^^ provides, that it shall be the duty of the prothonotary of any court of record within this commonwealth, on the application of any person, being the original holder (or assignee of such holder) of a note, bond or other instrument of writing, in which judgment is confessed, or contain- ing a warrant for an attorney-at-law, or other person, to confess judgment, to enter judgment against the person or persons who executed the same, for the amount which, from the face of the instrument, may appear to be due, without the agency of an attorney, or declaration filed, with such 'stay of execution as may be therein mentioned ; particularly entering on his docket the date and tenor of the instrument of writing on which the judgment may be founded, which shall have the same force and effect as if a declaration had been filed and judgment confessed by an attorney, or judgment obtained in open court, and in term-time. § 437. Under this act, the prothonotary cannot enter judgment on an instrument which contains no express wartant to any person, either by name or description ; the act merely substitutes the prothonotary, though not named or described, for an attorney of the court ; but it supplies no deficiency in the power given in the first instance." Neither can he enter judgment upon an instrument which does not show upon its face the amount due, unless it can be rendered certain by mere calculation.* It does not confer upon him the general authority of an attoraey of the court, who may appear and confess judgment, and arrange the details thereof:' and, therefore, he cannot, without the intervention of an attor- ney, enter a waiver of inquisition and exemption, though contained in the instrument, so as to make the same a part of the record f but an attorney has power to enter such waiver, by virtue of his extensive authority as such.'' The prothonotary is not authorized by the statute to enter a judgment, on the application of the obligor, without authority from the obligee ; such judgment will be stricken ofi", on motion." He may receive and file a warrant of attorney, and enter judgment thereon, at his residence, after office-hours ; and may docket it the next day, as of the time when filed f but parol evidence is admissible, as to the precise time in the day on which a judgment was entered by warrant of attorney, in order to avoid it, by proof of the prior death of the defendant.'" ' Knox V. Flaok, 22 Penn. St. 337. " Hops v. Everhart, 70 Penn. St. Cole V. Cole, 9 L. Bar 105. 231. And see Commonwealth u. Con- '' Act 24 February 1806, § 28 ; 4 Sm. ard, 1 Rawle 249. L. 278 ; Purd. 825. ' Hageman v. Sahsberrv, 74 Penn. » Rabe v. Heslip, 4 Penn. St. 139. St. 280. * Connay v. Halstead, 73 Penn. St. « IngersoU v. Dyott, 1 Miles 245. 354. Gordon v. Bai-tley, 4 W. N. 0. » Polhemus's Appeal, 32 Penn. St. 37. Hoskins v. Building Association, 1 328. Ibid. 156. And see White v. Shriver, " Lanning v. Pawson, 38 Penn S^ 2 Watts 474. 480 * Ibid. WAEEANT OF ATTOENET. 243 § 438. An eutry by the protlionotary, on his docket, of a suit, and that a judgment-bond was filed of record therein, stating the particulars, and the date of entry, is a good entry of judgment, under the statute. "^ He complies substantially with the directions of the act, when he enters on his docket, the names of the obligor and obligee, in the form of an action, as partners, the date of the bond and warrant of attorney, the penal sum, the real debt, the time of entering judgment, and the date of the judgment, on the margin of the record.^ As between the parties, his omission to note on his docket, the date and tenor of the instrument on which the judgment is founded, will not vitiate.^ If the warrant pro- vide that the creditor shall recover an attorney's fee for collection, it must be included in the judgment, or it cannot be collected by execu- tion ;'' but, in such case, an entry of judgment for the real debt, "with costs of suit, and attorney's commissions of five per cent," is sufficient.^ Judgment, however, cannot be entered, before the warrant is actually filed.6 § 439. On a joint warrant of attorney, the prothonotary may enter judgment against the surviving obligors ;^ but, if, in such case, he enter a judgment against all the obligors, it is irregular, and will be wholly set aside.* So, a judgment entered against a defendant whom the record shows to have been dead at the time of entry, will be stricken ofi!' If a. feme give a warrant of attorney, and marry, judgment may be entered against husband and wife, on motion and afiidavit •^'^ but such judgment should be restricted in its operation to the property of the wife.^"^ And on a bond and warrant given to a. feme, dum sola, who afterwards marries, judgment may be entered in favor of baron and feme?'^ A judgment may be entered on a warrant of attorney, conditioned for the payment of an unascertained sum; but the amount must be liquidated, before execution can issue ;^^ so, a judgment may be confessed, to secure the plaintiff against a future contingent liability ; and execution may issue thereon, as soon as such liability becomes absolute, without actual pay- ment by the plaintiff." §440. Our rule of court provides, that if a warrant of attorney to enter judgment be above ten years old, and under twenty, the court, or a judge thereof, must be moved for leave to enter judgment ; which motion must be grounded on an affidavit of the due execution of the warrant, that the money is unpaid, and the party living; but if the war- 1 Helvete v. Rapp, 7 S. & R. 306. ' Croasdell a Tallant, 83 Penn. St. * Commonwealth v. Conard, 1 Rawle 193. 249. ' Lewis v. Ash, 2 Miles 110. ' Montelius v. Montelius, Bright. 79. » Tobias v. Dorsey, 2 W. N. C. 15. •• McAllister's Appeal, 59 Penn. St. " Eneu v. Clark, 2 Penn. St. 234. 204. s. p. Mahoning County Bank's Baring v. Burnet, 2 Clark 399. Appeal, 32 Ibid. 158. Faulkner v. Wil- " Baker v. Lukens, 35 Penn. St. 146. son 3 W N. C. 339. " Sheble v. Cummins, 1 Bro. 253. 5 Schmidt's Appeal, 82 Penn. St. " Holden v. Bull, 1 P. & W. 460. 524. " Miller v. Howry, 3 P. & W. 374, ^ Chambers v. Denie, 2 Penn. St. Stewart v. Stooker, 1 Watts 135. 421. 244 JUDGMENT BY CONFESSION. rant be above twenty years old, there must be a rule to show cause, and that must be served on the party, if he is to be found within the state.' In such case, something must be shown to rebut the presumption of pay- ment arising from the lapse of time; such as, a demand of payment, and acknowledgment of the debt.^ The English decisions on this subject do not appear to be applicable in this state, and a statement of them might only serve to mislead.^ § 441. After the entry of a judgment, by virtue of a warrant of attor- ney, it is functus officio, and no other judgment can be entered on it;* the debt is then merged in a security of a higher nature, and the judgment must be pursued, either by bringing an action on it, or by issuing a tes- tatum execution f and this is so, though the warrant of attorney be to confess a judgment " or judgments."' And in such case, it seems, the burden of proving which judgment was first entered, is upon the plain- tiff, where both were entered on the same day.^ And the irregularity may be taken advantage of, by a terre-tenant, brought in by scire facias.^ On entering a judgment, by warrant of attorney, the prothonotary should file the same of record, and not redeliver it to the plaintiff'; this is a bad practice, which should be abolished.^ The practice, in Philadelphia, is, to file the warrant, and indorse the entry of judgment upon the accom- panying bond, which is handed back to the party ; in case of a judg- ment-note, or other instrument containing an authority to enter judg- ment, the prothonotary files the instrument, and gives a receipt therefor, stating the entry of judgment. § 442. When an agreement in restraint or enlargement of the right of execution, takes place between the parties, it should be made part of the condition of the bond, or of the warrant," or the subject of a sepa- rate instrument under seal ; for, parol evidence, to contradict or to con- strue the bond differently from the plain import of the condition or indorsement, cannot be admitted." Thus, on a motion to set aside an execution, which had issued on a judgment entered up on a bond, by warrant of attorney, on the ground that the first instalment was paid, evidence to prove that it had been verbally agreed by the parties, that execution might issue for protecting the whole sum, was rejected by the court.'^ So, in an action for malicious abuse of legal process, where the plaintiff" was allowed, in support of his declaration, to give evidence of a 1 Rule xl. ? ]35. ' Neff I). Barr, 14 S. & R. 166. ^ Clark «. Hopkins, 7 Johns. 556. » Uh-ioh v. Newman, 1 P. & W. 245. See Manufacturers' and Mechanics' ' Fraley's Appeal, 76 Penn. St. 42. Bank v. St. John, 5 Hill 497. See Banning v. Taylor. 24 Ibid. 289. ' See 3 Moore, C. P., 606. 1 Chit., '" See Shoemaker v. Shirtliffe, 1 Dall. K. B., 617, 743-4. 2 B. & C. 556. 133. Stanton v. White, 32 Penn. St. * Martin v. Rex, 6 S. & R. 296. 358. Campbell v. Canon, Add. 267. Ely v. " See supra, § 432. But the later Karmany, 23 Penn. St. 314. Manu- cases of Greenawaltu. Kohne, 85 Penn. faeturers' and Mechanics' Bank v. Cow- St. 369 ; and Baillie v. Kessler, 6 W. den, 3 Hill 461. N. C. 527, appear to have almost abro- Livezly v. Pennock, 2 Bro. 321. gated this wholesome rule of law. " Adams v. Bush, 5 Watts 289. " Plaukinhorn v. Cave, 2 Yeates 370. WARRANT OF ATTORNEY. 245 parol agreement not to issue execution on a bond with a warrant of attorney, until after notice, the court said, that whether such an agree- ment is a good cause of action was another matter, of which the defend- ant may avail himself by demurrer, or motion in arrest of judgment.^ Any agreement between the original parties, inconsistent with the pur- port or legal effect of the warrant, will not affect the assignee of the bond ; the assignee is not bound to call on the obligor for information about matters, the existence of which he has no reason to suspect, such as collateral agreements ; the necessity of inquiry being limited, by the act authorizing the assignment of bonds, to want of consideration and set-off. § 443. The courts have power to strike off or open a judgment entered on warrant of attorney, or to award an issue to ascertain the facts f and this power may be exercised, either for cause appearing on the record, or for such as is established by deposition.' The proper practice is, to try the validity of the judgment by a collateral issue ; but pretermitted matter of defence, by an issue in the case itself* And it is provided by statute,' that in all cases of application to have any judgment which has been entered by virtue of a warrant of attorney, or on a judgment-note, opened, and defendant or defendants let into a defence, the party or par- ties aggrieved by the decision of the court thereon, may have the same reviewed in the supreme court, by appeal, in like manner as appeals in equity ; but to operate as a supersedeas, the appellant must give bail absolute, with two sufficient sureties, for the payment of the debt, inter- est and costs, in case of the plaintiff's final recovery, or if the judgment is not opened or set aside. The refusal of the court to open a void judgment, on insufficient evidence, does not give it the character of res adjudicata.^ » Sommer v. Wilt, 4 S. & R. 19. See, Brown v. Simpson, 2 Ibid. 233. Clark as to an agreement in restraint of the v. Douglass, 62 Penn. St. 408. Where right to enter up judgment, Davis v. a defendant had paid usurious interest, Barr, 9 S. & R. 137. See also Ander- in consideration of forbearance on a son V. Neff, 11 S. & R. 220-1, particu- judgment, and had given an amicable larly. confession of judgment of revival, the ^ Kellogg V. Krauser, 14 S. & R. 1 37. court opened the latter judgment, to let ' Hutchinson v. Ledlie, 36 Penn. St. in the defence of usury. Walter v. 112. See Banning v. Taylor, 24 Ibid. Breisch, 86 Penn. St. 457. 2S9. This subject will be more fully * Act 4 April 1877, P. L. 53 ; Purd. considered hereafter. 2115. * GaUup V. Reynolds. 8 Watts 424. « Quinn's Appeal, 86 Penn. St. 447. CHAPTER XIV. Of th.e Writ of Inquiry, and Assessment of Damages. I. Wkit op inquikt, §444. II. Assessment of damages, ?453. Nature of the writ of inquiry, g 444. By the protlionotary, § 453. When requisite, § 445. Where one of several defendants Notice to the defendant, § 446. makes default, § 454. Execution at har, J 447. On bond with collateral condition, When unnecessary, | 448. § 455-63. Execution of the writ, § 449-5 1 . Proceedings on return of writ, § 452. I. "Writ of inquiry. §444. After an interlocutory judgment, a writ of inquiry of damages is, in general, awarded; which is a judicial writ, directed to the sheriff of the county where the action is laid, setting forth the proceedings which have been had in the cause, " and that the plaintiff ought to recover his damages by occasion of the premises; but, because it is unknown what damages he hath sustained by occasion" thereof, the sheriff is communded, that, by the oath of twelve honest and lawful men, he diligently inquire the same, and return the inquisition into court, at the next term. This writ is sued out by prcecipe to the pro- thonotary.' § 445. The practice used to be pretty general, to issue writs of inquiry even in cases where the damages were capable of arithmetical computa- tion. But the unbroken practice of the courts now authorizes the pro- thonotary to ascertain the damages in all cases of judgment by default, where the suit is on a promissory note, bill of exchange or book-account ; and, also, in all other cases founded on contract, and sounding in dam- age?, when the defendant does not object.^ If, however, the defendant object in the two last-mentioned cases, or if the action be founded on a tort, the damages must be ascertained by a jury of inquiry.^ § 446. The defendant is entitled to eight days' notice, at least, of the execution of the writ ; the notice, if practicable, must be served on him in person ; or, if not, by reason of his absence or concealment, by leaving it with his family, or at his usual place of residence ; if he is not in the bailiwick, and has no family or residence therein, the notice may be posted in the prothonotary's office, as in case of a foreign attachment.^ By a rule of the court of common pleas No. 3, four days' notice is suffi- cient of the execution of a writ of inquiry.* If due notice of the time and place of executing the writ be not given, the court, on motion, and ' See 2 Grayd. Forms 232. hare a rule to this effect. Rule xxi. 2 Bank of the United States w. Thay- § 73. er, 2 W. & S. 449. Watkins v. Phil- * Duncan v. Lloyd, 1 Miles 350. lips, 2 Whart. 209. Moore v. Heiss, 4 Yeates 261. ' The court of common pleas No. 8, * Kule xxi. 1 73. (247) 248 WRIT OP INQUIRT. affidavit of the fact, will set aside the writ, and all the subsequent pro- ceedings ;^ but, it seems, that it would not invalidate a sheriff's sale, after the execution of a deed, and payment of the purchase-money.^ It is customary to execute together all writs of inquiry awarded at the same term ; the time fixed being usually some few days before the next return-day. § 447. The act of 1722 provides, " that the justices who give any inter- locutory judgment shall, at the motion of the plaintiff, or his attorney in the action where such judgment is given, make an order, in the nature of a writ of inquiry, to charge the jury attending at the same or next court after such judgment is given, to inquire of the damages and costs sustained by the plaintiff in such action, which inquiry shall be made and evidence given in open court ; and after the inquest consider thereof, they shall forthwith return their inquisition, under their hands and seals ; whereupon, the court may proceed to judgment, as upon inquisitions of that kind returned by the sheriff."^ This act is not obsolete ;* but, in Philadelphia, it is the uniform practice, not to assess damages under it, except where there is an issue as to some of the defendants.' § 448. A writ of inquiry is unnecessary, after an appeal by the defendant from an award of arbitrators, and judgment by default, for want of a plea.^ And it has never been the practice, to issue writs of inquiry, after judgment by default, in an action of debt ; but, when the demand can be ascertained by calculation, execution issues for the amount laid in the declaration, and the plaintiff's attorney indorses on the writ the amount of the real debt.^ Nor can a writ of inquiry issue where there are issues upon some of the pleas.^ § 449. After giving notice of inquiry, the next step to be taken is, for each party to subpcena his witnesses. At the time appointed, the inquest will be taken by the sheriff and jury, in nearly the same manner as at a trial in court, except that the jurors cannot be challenged.^ They must hear the evidence on both sides, and if the sheriff should refuse to ' Sheetz v. Hopkins, Com. Pleas, ° In 3 Salk. 81 (a book of noauthor- Phila., June 1784. MS. ity), it is said to have been ruled, tliat '' See Spragg v. Shriver, 25 Penn. where there is a writ of inquiry for St. 282. Meanor v. Hamilton, 27 Ibid, damages, the jurors cannot be ohal- 137. lenged, as other jurors may, because ' 1 Sm. L. 144 ; Purd. 1168. this is only an inquest of office ; but ' Wright D. Crane, 13 S. & R. 447. yet 'tis in the discretion of the sheriff Tuttle V. Mechanics' and Tradesman's to admit such a challenge, if it appears Loan Co., 3 Whart. 216. to be a good cause of challenge. And * Sully V. Baum, 1 W. N. C. 115. see Butler v. Kelsev, 15 Johns. 177. And see Parley v. Hare, Ibid. Koh- In Bell v. Bell, 9 Watts 47, the chief ler V. Luckenbaugh, 84 Penn. St, 258. justice remarked, that even where a « Green v. Hallowell, 9 Penn. St. 54. writ of inquiry is executed at bar, un- And see Lewis v. Smith, 2 S. & R. 142. der the statute, it is no more than an ' Gray v. Coulter, 4 Penn. St. 190; inquest of office, in which, by legal Buruside, J. See Boaz v. Heister, 6 S. intendment, the sheriff sits as judge ; p ^' }'^' *^°°'^y "• Plieasant, 2 Bos. & and, therefore, it was ruled, that a bill Pul. 446. of exceptions would not lie. * Nathans v. Meredith, 1 Clark 360. EXECUTION OF THE WRIT. 249 admit such evidence, the, court will direct a new writ of inquiry ;' excepting in foreign attachment, when the defendant is not entitled to produce evidence before the jury on the execution of a writ of inquiry,^ because the purpose of the proceedings is merely to compel an appear- ance. § 450. All the plaintiff has to prove, or the defendant is permitted to controvert, is the amount of the damages f for the cause of action itself, as stated in the declaration, is impliedly admitted by the defendant, by his suffering judgment to pass against him by default.^ Thus, in an action on a bill of exchange, against the defendant as acceptor, it admits that he accepted it, and that the bill is as stated in the declaration ; and he cannot afterwards show, on the execution of a writ of inquiry, that he has not accepted it ; the bill must, indeed, be produced, for the purpose of seeing whether there is any indorsement of money having been paid upon it.° So, in an action for goods sold and delivered, or for money had and received, the defendant, by suffering judgment to go by default, admits that something is due ; and he cannot afterwards dispute the contract of sale, or show fraud on the part of the plaintiff, in making the contract.* So, in case for words, the plaintiff need not, at the exe- cution of the writ of inquiry, offer any evidence ; neither is the jury bound to assess nominal damages only, but may measure them by the enormity of the charge declared on, and admitted by the judgment by default.' So, the defendant will not be allowed to give in evidence, in mitigation of damages, any matter which might have been made the subject of a set-off.* § 451. It is said that, in this state, facts may be determined by a majority of the jury of inquiry, though their verdict should be signed by them all ; but this is questionable. The proper method seems to be this — the return and verdict must be the act of at least twelve ; there- fore, the sheriff must at least summon twelve jurors, but he may sum- mon as many more as he chooses ; provided the whole number do not exceed twenty-three, so that twelve will always be a majority. The verdicts of juries of inquiry, when rendered, are much respected by the courts ; for it has been decided, that they will not set them aside on frivolous grounds, and that they will not examine into the effect of any particular piece of evidence upon the mind of the jury; for, unless it appear that there was no proper evidence before them, the court will presume that they had sufficient grounds for their inquest.' In Leib V. Bolton, two of the jurors were admitted to depose, what kind of evidence had been submitted on the inquest. 1 McClenachan v. McCarty, 1 Dall. see 1 Doug. 302 n. 377. ' East India Co. v. Glover, 1 Str. 2 Sers. Attach. 21. 612. » De Gaillon v. L'Aigle, 1 Bos. & ' Tripp «. Thomas, 3 B. & 0. 427. Pul. 368. s. P. Thompson v. Lumley, 7 Daly 74. * East India Co. v. Glover, 1 Str. « 14 East 548. 612. And see 2 Saund. 107, n. 2. ' Leib v. Bolton, 1 Dall. 82. And ° Green v. Hearne, 3 T. R. 301. And see Bender w. Gibson, 4 W. N. C. 513 250 ASSESSMENT OF DAJIAGES. § 452. Upon the return of the writ and inquisition, the prothonotary will enter judgment nisi causa within four days. The defendant is allowed these four days to move to set aside the inquisition, or in arrest of judgment. If that time expire, and the defendant have not moved to set aside the inquisition, or ia arrest of judgment ; or if he have moved, and the inquisition be not set aside, nor the judgment arrested, the plaintiflT may have the costs taxed, and proceed to sue out execution.' If the inquisition be defective, it is amendable ; and, upon a rule to show cause, the court Will allow it to go back to the sheriff, to be amended according to the truth of the case f even after exception taken to the inquisition. Where more damages are found by the jury than are laid in the declaration, the plaintiff may release the excess.^ Upon motion to set aside a writ of inquiry, for excessive damages, in an action for a trifling assault, the court of king's bench imposed the terms of bringing part into court, where a long interval must occur before cause could be shown against the rule.* Such terms are extremely equitable, and might be insisted on with advantage, in many cases, in our practice. II. Assessment of damagres. § 453. As a writ of inquiry is a mere inquest of office, to inform the conscience of the court, thej"- may, if they deem it proper, dispense with such writ, and themselves assess the damages.^ And, accordingly, it has been the practice, instead of executing a writ of inquiry, and without any previous application to the court, in actions on promissory notes, bills of exchange, covenants for the payment of a sum certain, or on an award, and, indeed, in all cases where the court have nothing more to do than to calculate the interest upon a sum previously ascertained and fixed, to refer the assessment to the prothonotary. If either party be dissat- isfied with the assessment of damages, the error may be corrected, by appeal to the court.' The prothonotary may assess damages, in cove- nant for arrears of ground-rent f but he has no power to assess dam- ages, not liquidated by the contract.' If there have been a mistake in the assessment of damages, as where damages have been assessed on one only out of several notes, the court will, on motion, vacate it, and permit the damages to be re-assessed.' § 454. If there be judgment by default as to part, and issue joined as to the residue, a special venire is awarded tam ad triandum quam ad inquirendum, as well to try the issue as to inquire of the damages ; and the jury who try the issue, in that case, assess the damages.'" So, where there are several defendants, if some let judgment go by default, either 1 1 Arch. Pr. 24. « Ibid. ^ Moore v. Heiss, 4 Yeates 378. ' Ibid. And see Johnston v. Cowan ' Lewis V. Cooke, 1 H. & MoHen. 59 Penn. St. 275. 1^^- ' Siner ». Hendrickson, 1 W. N. C Williams v. Reeves, 1 Chit. 729. 94. See Chambers v. Harger 18 Penn' ' Watkins i>. Phillips, 2 Whart. 211. St. 15. Bank of the United States v. Thayer, ' Kensington v. Vandusen, District 2 W. & S. 449. Renner v. Marshall, 1 Court, Phila., Sept. 1848. MS Wheat. 215. lo 2 Arch. Pr. 9. AGAINST ONE OF SEVERAL DEFENDANTS. 251 of appearance or plea, and some plead to issue, the present uniform prac- tice is, for the jury who try the issue to assess the damages against all the defendants.^ Thus, in an action on a penal bond, against two, where one suffers judgment by default, and the other pleads to issue, the judg- ment against the former is interlocutory, and damages for breaches are assessed against both, on the trial of the issue.^ In such cases, says Gibson, C J., where the judgment by default has been given erroneously for the penalty, but special damages are assessed on the trial of the issue, it seems, that the court may strike off the sum added to the first judgment, take the damages assessed on the trial to be the amount for which each is liable, and give final judgment against them jointly. But in actions in which the plea of one defendant inures to the benefit of all, as in actions upon contract, if the plaintiff fail in obtaining a ver- dict against those who have pleaded, he caunot have damages assessed against the others who let judgment go by default ; for the contract being entire, the plaintiffs must succeed against all the defendants or none.' In actions ex delicto, on the contrary, if the plaintiff do not suc- ceed against the defendants who plead, he may still have his damages assessed against those who allowed judgment to go by default,^ unless the plea of those who pleaded prove that the plaintiff could have no cause of action against any of them ;' for the tort is several as well as joint. So, also, where one of the defendants demurs, a venire is awarded as well to try the issue as to assess contingent damages f and if issue be joined on one of the pleas, and judgment be entered by default on two others, the plaintiff cannot execute a writ of inquiry on those pleas on which he has judgment, but the court must award jury process tam ad triandum quam inquirendum.'' If joint defendants suffer judgment by default, and the plaintiff execute several writs of inquiry, and several damages are given, judgment for such damages would be erroneous ; but before final judgment, the court will suffer a plaintiff to cure the defect, by setting aside his own proceedings and issuing a new writ of inquiry.' § 455. By the stat. 8 & 9 Wm. III., c. 11, § 8,' "in all actions in any court of record, upon any bond, or on any penal sum, for non-perform- ance of any covenants or agreements contained in any indenture, deed or writing," (whether the covenant, &c., be contained in the same, or any other deed or writing ;^'' and the statute extends to bonds, &c., for the payment of money by instalments," for the payment of an annuity ,^^ for the performance of an award,'' or for the performance of any other 1 Cridland v. Floyd, 6 S. & R. =2 Ld. Raym. 1372. 414-18. Bidgely v. Dobson, 3 W. & « 2 Arch. Pr. 20, 21. S. 118. Noble V. Laley, 50 Penn. St. ' Cridland v. Floyd, 6 S. & R. 414. 281. See Breidenthal v. McKenna, 14 ' Ibid. Ibid. 1-60. ' Rob. Dig. 142. " O'Neal V. O'Neal, 4 W. & S. 130. "> Collins v. Collins, 2 Burr. 824, ' 2 Arch. Pr. 9. And see Day v. 826. Brawley, 1 Penn. St. 429. " Willoughby v. Swinton, 6 East 550. * .Jones V. Harris, 2 Str. 1108. " Walcot w. Goulding, 8 T. R. 126. Cressy v. Webb, Ibid. 1222. Cridland " Welsh v. Ireland, 6 East 613. Han- V. Floyd, 6 S. &. E. 416. bury v. Guest, 14 Ibid. 401. 252 ASSESSMENT OF DAMAGES. specific act, excepting for the payment of a sum of money in gross, and excepting the case of a bail-bond,^ and replevin bond),' "the plaintiff may assign as many breaches as he shall think fit ; and the jury shall assess not only such damages and costs as have heretofore been usually done, but also damages for such of the breaches of covenant, &c., as the plain- tifl^, upon the trial of the issues, shall prove to have been broken ; and the like judgment shall be entered on such verdict, as heretofore has been usually done. And if judgment shall be given for the plaintiff, on demurrer, or by confession, or nil didt, he may suggest upon the roll, as many breaches as he shall think fit ; upon which a writ shall issue to the sheriff of the county where the action is brought, to summon a jury before the justices of assize of that county, to inquire of the truth of those breaches and to assess the damages; in which writ, the said justices of assize shall be commanded to make return thereof to the court whence the same shall issue, at the time mentioned in such writ. And in case the defendant, after such judgment, and before execution, shall pay into court, to the use of the plaintiff, the damages assessed and costs, a stay of execution shall be entered on the record ; or, if by reason of an execu- tion, the plaintiff shall be fully paid all the damages and costs, and the charges of the execution, the defendant's body, land or goods shall be thereupon forthwith discharged from the execution, which shall like- wise be entered upon the record ; but, in each case, the judgment shall, notwithstanding, remain as a further security to answer to the plaintiff such damages as he may sustain by any further breach of a covenant contained in the same indenture, deed or writing', upon which the plain- tiff may have a scire facias upon the said judgment, against the defend- ant, his heirs, terre-tenants, or executors or administrators, suggesting other breaches of the said covenants or agreements, and to summon him or them, respectively, to show cause why execution should not be awarded upon the said judgment, in which there shall be the same proceeding as there was in the action of debt upon the said bond, for assessing of damages upon the trial of issues joined upon such breaches, or inquiring thereof, upon a writ to be awarded in manner aforesaid, and upon pay- ment or satisfaction as aforesaid, of such further damages, costs and charges as aforesaid, all further proceedings on the judgment aforesaid are again to be stayed, and so toties quoties, and the defendant's body, land or goods shall be discharged out of execution as aforesaid." § 456. The defendant, however, is accountable only to the extent of the penalty ; and as soon as that is recovered, or, if the defendant choose to pay it into court, the plaintiff can proceed no further ; but, on the contrary, may be compelled to enter satisfaction on the record.^ It has also been ruled, that the statute is obligatory ; and, although it enacts that the plaintiff " may" suggest, &c., yet the word " may" is compul- sory, and the plaintiff must assign or suggest the breaches ; otherwise, ' Moody V. Pheasant, 2 Bos. & Pul. ^ 2 Saund. 187 n. 446. s I Saund. 58 q. ox PENAL BONDS. 263 the proceedings will be erroneous.^ Before this statute, the plaintiff, in an action on a penalty for the performance of covenants, not only had judgment to recover the penalty, but was entitled to take out execution for the whole ; but the statute introduced a new practice — the assign- ment of breaches, and damages to be assessed thereon.^ The great object of the statute was, to take away the necessity of applying for relief to a court of equity ; and, on this principle, replevin-bonds and bail-bonds are held not to be within this act, because the court can there relieve the defendant, without his being compelled to file a bill in' equity ; and, on the same ground, money-bonds are not within it, against the penalty of which the courts give relief, by the statute of 4 Ann., c. 16, § 13, which empowers the court, pending an action on a money-bond, if the defendant bring into court the principal and interest due on such bond, and all costs incurred, to discharge him from such bond alto- gether. Where a bond was conditioned for the payment of money, puj - suant to the stipulations of an indenture, bearing even date with it, which bond was put in suit, after both interest and principal became due, it was held not to be within the statute, and that breaches need not be assigned.^ § 457. If the plaintiff, instead of the usual mode of declaring as on a common money-bond, have set forth the condition of the bond in the declaration, and assigned the breaches (which is advisable, for the sake of expedition), there is no necessity for a suggestion of breaches on the roll, as directed by the statute.* Actions on official bonds ought to be brought under, and conducted according to the provisions of this statute, and, in truth, are, but not in the regular manner. An action is brought in the name of the commonwealth, and, if no defence be made to this action, the course of proceeding under the statute would be, to suggest breaches and issue a writ of inquiry ; but, instead of this, a soire facias is, in our practice, issued on the judgment thus obtained by default, in order to ascertain the damages sustained, for which execution is taken out, and the judgment stands as security for further breaches.' § 458. If, after the first inquisition or trial, the defendant be guilty of any further breaches, as the statute says that, in such a case, the judgment already signed shall remain as a security to the plaintiff, the plaintiff, in order to obtain damages, may sue out a scire facias on the judgment, and thereupon suggest the further breaches f or, as it appears from the case of Sparks v. Garrigues,' the plaintiff may move for leave 1 Roles V. Rosewbll, 5 T. R. 538. Har- * 2 Arch. Pr. 29. dy V. Bern, Ibid. 636. Drage v. Brand, * As to the practice in suits on ad- 2 Wils. 377. See the proceedings, after ministration-bonds, and on sheriff's the judgment by default, under this bonds, in which judgment is not en- statute, fiilly stated in 2 Arch. Pr. 28, tered up for the penalty, but the ver- 29. diet and judgment pass for whatever ' Dunn V. Commonwealth, 14 S. & damages are proved to have been suf- jj. 431. fared, see vol. ii,, under those titles. '* Smith V. Bond, 10 Bing. 133. See Also title "Scire Facias." Arrison v. Commonwealth, 1 "Watts * 2 Arch. Pr. 30. 378-9, as to the judgment. ' 1 Binn. 152. 254 ASSESSMENT OP DAMAGES. to take out execution for the principal, and interest accruing since the action, when the defendant may make any defence (on an issue framed, if necessary), other than that which has been tried. However, this, the old practice in this state, was afterwards reconsidered and condemned by a decision of the supreme court. This decision"^ (Rogers, J., strongly objecting to it) was as follows : " In an action on a bond, conditioned for the payment of several suras, at different times, in which breaches bad not been assigned, judgment was signed for want of an affidavit of defence, upon which the plaintiff took out execution, as well for the instalments due at the time suit was brought, as for those not then due, but which had become due afterwards ; this execution was set aside, and the plaintiff's motion for execution, for the sums which became due after suit brought, was refused, and he was put to a scire facias." § 459. It may now be considered as settled that judgments entered by virtue of warrants of attorney, are not within the statute 8 & 9 Wm. III.^ But it is otherwise upon a judgment entered on warrant of attorney with- out writ, for the payment of money by instalments ; for there, though the better course is to move the court for leave to issue execution for a par- ticular sum, in the first instance, yet, this is not the only course, and an inquiry as to whether too much is demanded, is equally open to the defendant, after execution, as before.' § 460. An action was brought against A., a surety on an assignee's bond, and a verdict and judgment had for certain damages; A. there- upon brought suit, and obtained a verdict against one who had promised to idemnify him against loss as surety ; entry of judgment on this ver- dict was opposed, because the judgment against A. was irregular, for want of the cautionary judgment prescribed by the act of 1836 ; but it was held, that the court would have entered the proper judgment for the penalty, and also judgment for the damages, had A. sued out a writ of error in the original action, and what would have been done would be considered as done, to effect the justice of the case.* After a judgment was entered on a bond and warrant of attorney, which stipulated that execution should not issue, before default in the payment of several promissory notes, unless the partnership existing between defendant and A. should be dissolved, it was held, that an execution issued before the maturity of the notes, without a scire facias having been first sued out, to ascertain whether the partnership had been dissolved, was irregu- lar, and it was accordingly set aside.° § 461. Upon a bond of indemnity, there can be but one judgment against the same party ; and that must be for the amount of penalty, with an assessment of damages upon the breaches assigned. If subse- quent breaches occur, the remedy is by scire facias upon that judgment, the assignment of additional breaches, and the assessment of damages 1 Longstreth v. Gray, 1 Watts 60. worth, 63 Ibid. 447. '' Ibid. Harger v. Commissioners of ' Skidmore v. Bradford, 4 Penn. St Washington, 12 Penn. St. 253. Mc- 296. Cann u. Farley, 26 Ibid. 173. Weikel * Carman v. Noble, 9 Penn. St. 366. U.Long, 55 Ibid. 238. Jones v. Dil- <• Montelius ». Montelius, Bright. 79 ASSIGNMENT OF BKEACHES. 255 upou them.^ Where a bond was given to the guardians of the poor, in a cei'tain penalty, for which judgment might be entered and execution issued, and the judgment afterwards to remain as security, with condi- tion for the payment of a weekly sum for the support of the obligor's wife ; and judgment was entered upon the bond, and the obligor had made divers weekly payments; after which his real estate was sold under execution upon a subsequent mortgage — it was held, that the mortgagee was not entitled to receive, out of the proceeds, the amount of the payments so made ; but that the judgment was in the nature of a continuing security, and to stand as a security for the performance of the condition, after payments made.^ In another case, it appeared, that L., a retiring partner, received from the other members of the firm, a bond, with warrant of attorney, &c., conditioned to pay the debts of the firm, and to indemnify and keep the said L. harmless ; the bond also contained an agreement, that, on failure of the obligors to indemnify the said L., he should be at liberty, as often as he should pay, or become liable to pay, any of the debts, to file a statement with the record of the judgment, and to issue execution and collect the amount; judgment was entered on the bond, in May 1846, and in Atigust following, a state- ment of debts which L. was liable to pay, as one of the firm, was filed, and execution issued ; it was held by the supreme court, that as judg- ment was entered on a warrant of attorney, without writ, no scire facias, or application to the court for leave to issue execution for the instal- ment, was necessary.^ § 462. On the death of either of the parties, between interlocutory and final judgment, a scire facias against his personal representatives must first issue, to show cause why damages should not be assessed, under the sixth section of this statute of "William, before a writ of inquiry can be awarded.^ §463. The plaintifi" need not assign breaches in his scire facias; the defendant should crave oyer of the condition, and plead performance, and then the plaintiflT may assign breaches in his replication.^ He can- not, however, suggest breaches and issue execution, without giving the defendant a day in court.' The plaintiff" may assign as many breaches as he pleases; if his pleading be vicious, the defendant must demur.' The assignment of breaches must be specific ; if it be general and indefinite, the defendant may plead performance and non dmnnificatm f and if several be assigned, a distinct claim must be made for each of them.^ 1 Duify V. Lytle, 5 Watts 120. Ad- See Commonwealth v. Kobinson, 3 ams V Bush 5 Ibid. 2S9. Ibid. 546. Commonwealth v. Speclit, 2 Yogel u,' Hughes, 2 Miles 379. 23 Pitts. L. J. 67. Diller v. Wetzler, 10 ' Reynolds v. Lowry, 6 Penn. St. L. Bar 5. 4g5^ ^ ' Kerr v. JNIeredith, 4 Yeates 283. * See 2 Arch. Pr. 79; and vol. ii. ' Rees v. Tiohenor, 1 Miles 183. tit " Scire Facias." " Commonwealth v. Pray, 1 Phila. * Curtis V. Kearney, 2 Pitts. 87. 58. « Magill V. Higgins, 2 Pitts. 107. CHAPTER XV. Proceedings between Declaration and Plea. I. Of otek, 1 465. Profert, ? 465. When oyer is demandable, 465-6. How made, 466. In what actions, § 467. Practice on prayer of oyer, § 467-70. Effect of oyer, ?471- II. Of bills of particulaks, § 472. Where a till of particulars is de- mandable, § 472. Demand of a bill, ? 473. Requisites of bill of pai-ticulars, §474. Effect of a bill, §475. Proceedings on neglect to furnish a biU, §476. III. Change op tenue, §477. Constitutional provisions, § 477. When a matter of right, § 478. When discretionary, § 479. How the venue may be changed, §480. Proceedings on change of venue, §481. Costs, § 481. IV. Consolidating aciions, § 482. When granted, § 482. When- refused, 483. Motion to consolidate, § 484. Consolidation rule in actions against underwriters, § 485. v. Inteepleader at common law and UNDER THE STATUTE, §486. At common law, § 487—93. Under the statute, § 494-5. When an interpleader may be granted, § 496. When not allowed, § 497. Practice in interpleader, § 498. VI. Payment of money into court, §499. When proper, §499. Statutoiy provisions, § 500. "What is a good tender, § 501. Payment into court, § 502-3. Effect of a payment into coml;, § 504-9. § 464. Where the defendant intends to contest the plaintiff's action, he may find it necessary or convenient, before pleading, to take certain intermediate steps, in order the better to prepare himself for his defence. These vary according to circumstances : thus, where the plaintiff declares upon a deed, it may be requisite for him to obtain a copy of the deed, which he does by craving oyer ; or, if the declaration be not sufficiently explicit to apprise him of the precise items of the plaintiff's claim, he may call upon him for the particulars of his demand, which are fur- nished in a hill of particulars; or he may move to change the venue into a county where it is more proper that it should be tried, than where the plaintiff has brought his action.' Another step which the defendant may take before pleading, is, to move to consolidate aetions unnecessarily divided ; he may also require the plaintiff to interplead with a third party, in respect to funds of which he may allege he is a mere stake- holder. And, if he do not deny the plaintiff's right to recover to a cer- ' For a very full and satisfactory history and explanation of the doc- tiine of venue, see Stephen on Plead- VOL. I.— 17 ing (3d edit.) 280-291 ; also Oliphant a Smith, 3 P. & W. 180. (257) 258 PEOFEET AND OYEE. tain amount, he may, by paying that amount into court, discharge him- self of all fiirther costs, unless the plaintiff can show a right to more than the defendant has admitted to be due. These several subjects will be briefly treated in this chapter. I. Of oyer. § 465. Wherever the plaintiff, in his declaration, necessarily makes a projert in cwiam (which is an allegation by a party, who states a deed in pleading, that he brings it into court)' of any deed, writing, letters of administration, or the like, the defendant may crave oyer; that is, may pray or request that he may hear the deed read to him (which is done by directing the prothonotary, in writing, so to enter the request on his docket, and giving notice of it), and it is accordingly supposed to be read in court ;^ but, in practice, oyer is usually given by delivering a copy of the deed. But profert ought only to be made of a deed or grant of administration, and oyer cannot be demanded of a private statute, even where profert is made of it f nor of a record stated in the plead- ings.^ The entry on the docket of the demand of oyer, is, it is appre- hended, only to enable the party to plead a short plea ; for instance, in an action on a bond, if it be wished to plead performance of the condi- tion, an entry may be made on the docket in these words : — " Defendant craves oyer of bond and condition," — the instantaneous effect of which entry is fictione legis, to spread the bond and its condition upon the record ; the defendant has, therefore, merely to plead, in short, "performance," when the record is thus far complete. But, by thus craving oyer, the defendant precludes himself from excepting to any variance, on the trial, between the bond and declaration,' although he do not choose to avail himself of the oyer. If the supposition be correct, that this practice is the result of, and subsidiary to, short pleading,* it will follow, that it may be dropped, where the privilege of short pleading is not used. The course then would be, for the defendant to make a demand of oyer, in writing, of the plaintiff's attorney, who will give him a copy of the instrument, which he may use or not, as he thinks proper ; if used, he states in his plea the oyer and the words of the deed ; if not used, he takes no notice of the deed or oyer in his plfia, and may take advantage of any variance between the deed and declaration, on the trial, where it is necessary to produce the deed, to show that there are no indorse- ments of payment.^ § 466. In a suit by an administrator, projert of his letters is essential ; 2 o'^ff ^^' '^'^' °^^^ ^® prayed, the deed does not be- 3 Salk. 119, pi. 2, 5. come part of the record. Bender u. Zion Church v. St. Peter's Church, Fromberger, 4 Dall. 436. Mansley 5 W. & S. 215. „. Smith, 6 Phila. 223. * Noble « Thompson Oil Co., 79 « On the subject of short pleading, Penn. St. 354. see post, i 555. ^ Douglass V. Beam, 2 Binn. 76. ' Weavers' Co. v. Forrest, 2 Str, Ihough profert be made, yet, unless 1241. PEOFEET AND OYER. 259 otherwise, the declaration is demurrable -^ but the want of profert of letters of administration can only be taken advantage of by special demurrer.^ JProfert of a deed is unnecessary, where it is stated only as inducement, and the plaintiff is neither a party nor privy to it.' It is, how- ever, no excuse for an omission to make profert, that the deed had been delivered to a third person for the benefit of the parties.* But profert is unnecessary of a guardian's bond, which is not in the custody of the plaintiff, but is filed in the orphans' court, in trust for all persons inter- ested.' A general profert of letters testamentary is sufficient; if the defendant would object to their sufficiency, he must crave oyer f and where profert is made of a bond, and the declaration goes on to state the condition and assign a breach, it is not necessary to make a separate profert of the condition, for the whole bond is already before the court.^ § 467. By the English practice, the attorney for the party by whom oyer is demanded, before he answers the pleading in which the profert is made, sends a note to the attorney on the other side, containing a demand of oyer ; on which, the latter is bound to carry him the deed, and deliver to him a copy of it, if required, at the expense of the party demanding ; and this is considered as oyer, or an actual reading of the deed in court f and the party demanding is entitled to a copy of the attestation and names of the witnesses f but not of the acknowledgment.'" A party bound to give oyer of a deed, must furnish not only a true copy of the instrument itself, but of all indorsements and memoranda upon it, and of papers attached to it ; so that his adversary may have the same view of the matter, as if the deed had been brought into court." And if the plaintiff make profert of the bond declared on, and also of a collateral agreement, necessary to establish his right to recover on the bond, the defendant is entitled to oyer both of the bond and agreement.^^ § 468. Oyer is demandable in all actions, real, personal and mixed. It is said to have been formerly demandable not only of deeds, but of records alleged in pleading ; but, by the present practice, it is not now granted of a record ; and can be had only in the cases of deeds, probates and letters of administration, &c., of which profert is made on the other side. Of private writings, not under seal, oyer has never been demand- able ;^' but where an action is founded on a written instrument, not under seal, though the defendant cannot pray oyer, yet the court will, in some cases, make an order for delivery of a copy of it to the defendant, or his attorney, and that all proceedings, in the meantime, be stayed." It 1 McDonald v. Browning, 4 Phila. " Steph. Plead. (3d ed.) 68. Page v. 21. Divine, 2 T. R. 40. Tidd 587. 2 Allison V. Wilkin, 1 Wend. 153. » Smith v. Alworth, 18 Johns. 445. ' Duvall 0. Craig, '2 Wheat. 45. Longman v. Rogers, Barnes 263. * Wheeler v. Miller, 2 Den. 172. " Miner v. Clark, 15 Wend. 425. ' Commonwealth ». Pray, 1 Phila. ^' Van Rensselaer v. Pouoher, 24 58. And see Rockhill v. Hanna, 4 Wend. 316. McLean 200. '' Hammer v. Klein, 1 Bond 590. « Childress v. Emory, 8 Wheat. 642. " Steph. Plead. (3d ed.) 69. ' United States v. Spalding, 2 Mason " Tidd 591. 478. 260 PEOFEET AND OYEE. seems, that oyer is not demandable of a private statute ;^ nor of letters- patent f nor of a recognisance ;' but it is demandable of a deed enrolled, or of the exemplification of the enrolment, according to the terms of the profert} § 469. Oyer can be demanded only where a profert is made/ In all cases where prof ert is necessary, and where it is also, in fact, made, the opposite party has a right, if he pleases, to demand oyer ;^ but if it be unnecessarily made, this does not entitle to oyer; and so, if profert be omitted where it ought to have been made, the adversary cannot have oyer, but must demur/ A- party having a right to demand oyer, is yet not obliged, in all cases, to exercise that right ; nor is he obliged, in all cases, after demanding it, to notice it in the pleading that he afterwards files or delivers ;' sometimes, however, he is obliged to do both ; as, where he has occasion to found his answer upon any matter contained in the deed of which profert is made, and not set forth by his adversary ;' in these cases, the only admissible method of making such matter appear to the court, is to demand oyer, and from the copy given, set forth the whole deed verbatim in his pleading.'" The defendant may file a copy of the deed, and demur ;" this is the proper mode of taking advantage of a variance between the condition of a bond, as stated in the declaration, and as set forth on oyerP If the plaintifli" declare upon the p^nal part of a bond, and the defendant mean to plead performance of the condition, he must bring it upon the record by craving oyer of the bond and its condition ;'■' and if the defendant, in his plea, neces- sarily make profert of a deed, the plaintifi" is, in like manner, entitled to crave oyer}^ > Zion Church v. St. Peter's Church, ' Steph. Plead. (3d ed.) 69. If oyer 5 "W. & S. 217. Jeffery v. White, 2 he improperly demanded, the objection Doug. 459. Pitt V. Knight, 1 Saund. 96. must be made by special demurrer. 2 Zion Church v. St. Peter's Church, Sneed v. Wister, 8 Wheat 690. ut supra. Smith w. Ely, 5 McLean 76. ^ The defendant cannot avail him- Rex V. Amery, 1 T. R. 149. Pitt v. self of oyer, unless he set it forth in Knight, 1 Saund. 96. In a patent case, his plea. Allen v. Bishop, 25 Wend, the defendant may have oyer of the 414. specification. Gray v. James, Pet. C. 'A plea of performance of the con- C. 476. Cutting v. Myers, 4 W. C. C. dition of a bond, without oyer, is bad, 220. on demurrer. United States v. Arthur, ' 1 Arch. Pr. 164. 5 Cr, 257. • Ibid. '" Where the defendant craves oyer ' Van Rensselaer v. Saunders, 2 of a bond, and pleads payment, it is How. Pr. 250. Campbell v. Strong, considered as spread upon the record. Hemp. 265. Mason v. Lawrason, 1 Cr. Douglass v. Beam, 2 Binn. 76. C. C. 190. " Roberts v. Dobbins, 3 W. N. 0. ' Oyer must precede the matter of 494. defence, whether by plea or demurrer ; " Douglass v. Rathbone, 5 Hill 143. and, regulai'ly, it should precede the '^ Burkholder v. Lapp, 31 Penn. St. entry of imparlance. Dufau u. Wright, 322. 25 Wend. 636. After issue joined, " 6 Mod. 122. It seems, that if the oyer will not be granted. Grahame v. defendant do not give oyer, when de- Cooke, 1 Cr. C. C. 116. A plea of cove- manded, the plaintiff may treat his nants performed, is a waiver of oyer, plea as a nullity, and enter a default. Litle V. Henderson, 2 Yeates 295. Field v. Goodman, 4 Wend. 214. PROFEET AND OYER. 36t § 470. The demand of oyer is a kind of plea,^ and should regularly be made in writing, before the time for pleading has expired f for, if made afterwards, the demand is a nullity, and the other party may sign judg- ment.^ If the plaintiff will not give oyer, when demanded, he may counterplead or demur to the defendant's prayer, and the court will give judgment thereupon. If the court deny oyer when it ought to be granted, it is error, and a writ of error lies upon their judgment ; but it is no error, to grant oyer where it ought not to be.^ There is no settled time prescribed for the plaintiff to give oyer ; but the defendant has the same time to plead, after the delivery of oyer, as he had when he demanded it f therefore, it is generally the plaintiff's interest to grant it without delay.* The time allowed the defendant to give oyer to the plaintiff, is, according to the practice of the English courts, two days, which are both reckoned exclusive ;'' and if it be not given in that time, the plaintiff may sign judgment, as for want of a plea.^ Where there is a demand of oyer on the part of the defendant, the plaintiff cannot move for judgment for want of a plea ; the proper practice is, to enter up judgment, and put the defendant to his motion to strike it off.' § 471. When the oyer varies from the instrument declared on, the defendant may set it forth in his plea, and demur ; or, he may, without setting it forth, plead non est factum, and avail himself of the variance on the trial.'" In debt on an award, if the award set forth in the declara- tion vary from that given on oyer, the defendant must demur specially ; he cannot take advantage of the variance, on the plea of "no award."'' If one party defectively set forth a deed, the other may crave oyer of it, s6t forth the whole, and then demur.'^ And, it seems, that a trifling variance between the oyer of a bond and the declaration, is immaterial. '^ II. Of bills of particulars. § 472. If the plaintiff's declaration be not sufficiently explicit in dis- closing the particulars of the demand, it is the right of the defendant to call upon his adversary to furnish a bill of particulars ;'^ this is peculi- arly proper in actions of assumpsit, or debt, for goods sold and delivered, for work and labor done, &c., since, from the general manner in which the plaintiff is allowed to declare, the defendant cannot be apprised of the items which constitute the demand. The defendant, however, is entitled to a bill of particulars, under special counts, if they do not fur- nish specific information of the cause of action.'^ And even in an action 1 3 Palk. 119, pi. 4. " Philadelphia v. Donahue, 1 W. N. 2 Tidd 588. C. 160. i Ibid. " Ehle V. Purdy, 6 Wend. 629. * 1 Saund. 9 6. 2 Ibid. 46, note 7. " James v. Walruth, 8 Johns. 410. 2 Salk. 498. See Jansen v. Ostrander, 1 Cow. 670. * Read v. Patterson, 14 Johns. 328. " Hobson v. McArthur, 3 McLean MulhoUand v. Van Fine, 8 Cow. 132. 241. Warren v. Cammack, 7 Halst. 178. " Henry v, Brown, 19 Johns. 49. Webber v. Austin, 8 T. R. 356. See Dunbar v. Jumper, 2 Yeates 74. ' 2 Arch. Pr. 195. " MoCarney v. McCamm, 2 Bro. 47. ' Page V. Divine, 2 T. R. 40. '* Norris v. Hanson, 1 W. N. C. 507. * See^Frey v. Wells, 4 Yeates 505. Wetmore v. Jennys, 1 Barb. 53. 262 BILLS OF PAETICULAES. for a tort, the defendant may have a rule for a bill of particulars, unless the declaration set forth the demand specifically.' In such cases, how- ever, it is not a matter of right, but rests in the sound discretion of the court.^ It is only demandable of right, when the action is based on a specific account.' § 473. The general rule is, that a bill of particulars must be demanded before plea pleaded, yet, the court has undoubtedly the power to inter- fere, at any stage of the cause, where they see that justice demands it.* The usual form of a demand for a bill of particulars is, in short — "Please furnish a bill of particulars of the plaintifi''s demand, under the common counts" (or, as the case may be) ; and it operates as a stay of proceedings, until complied with. If insufficient, the plaintifi" may be ruled to furnish a more specific one.' And if the plaintiff be conscious that his bill of particulars does not disclose his entire cause of action, he may, on application and notice, have leave to amend, by furnishing a more specific claim :^ an insufficient amendment will not be allowed.' § 474. A bill of particulars should be as precise as a special declara- tion, and is insufficient, if it fail to disclose the gist of the plaintiff's action.* It should state the transaction with sufficient explicitness, to inform the defendant of the claim he is to meet.' The office of the bill, however, is merely to limit the generality of the declaration, and to pre- vent a surprise on the trial ; not to furnish evidence,'" It need not state the grounds upon which the plaintiff claims to recover ; its office is merely to identify the items embraced in the claim.''^ It should state the items of the demand, when and how it arose, and the sum claimed.'^ If the claim be for professional services, the bill of particulars must state ' Borda v. Philadelphia and Reading too late to demand a bill of particulars, Railroad Co., 1 W. N. C. 314; 3 Ibid, after issue joined. Marcus v. Boling, 351. Furbush v. Phillips, 2 Ibid. 198. 5 W. N. C. 542. New York v. Tweed, 48 How. Pr. 36. ^ Hunter v. Burnham, 1 W. N. C. Tilton V. Beecher, 59 N. Y. 176. 74. Titus v. Baird, Ibid. 81. Win- ^ Blaokie «. Neilson, 6 Bos. 681. penny v. Winpenny, Ibid. 90. O'Con- Schile V. Brokhahne, 9 J. & Sp. 353. nell v. Summers, 5 Ibid. 149. ' Moore !). Belloni, 10 J. & Sp. 184. " Hartell v. Seybert, Dist. Court, Where the ordering of a bill of partiou- Phila., 11 March 1848. MS. Bowen lars is matter of discretion, it will v. Bleim, 1 W. N. C. 331. Phillips v. not be ordered, when for anything that Negus, 2 Ibid. 508. A second bill of appears, the defendant is as well ao- particulars, not delivered under a quainted with the nature and particu- judge's order, has been held, in Eng- lars of the claim as the plaintiff, and land, not to cure a defect in a previous has all the knowledge necessary to en- one. Brown v. Watts, 1 Taunt. 353. able him to prepare his defence. Pow- ' Hartell «. Seybert, id supra. ers V. Hughes, 7 J. & Sp. 482. And « Gilpin v. Howell, 5 Penn. St. 41. see Young v. De Mott, 1 Barb. 30. " Patterson v. Jones, 1 W. N. C. 153. Brooks V. Chitty, 3 Chit. Gen. Pr. 614 n. '» Drake v. Thayer, 5 Rob. 694. Ful- A bill iif particulars will be ordered, lerton v. Gaylord, 7 Ibid. 551. It is even in a criminal case, if shown to be sufficient, if it fairly apprise the party necessary to the defence. Common- of the nature of the claim against him. wealth V. Maize, 7 Leg. Gaz. 199 ; s. c. Bangs v. Ocean Bank, 53 How. Pr. 51. 4 Luz. L. Reg. 171. " Seaman v. Low, 4 Bos. 337. * McClain v. Henry, Dist. Court, '" Moran v. Morrissey, 28 How. Pr. Phila., 21 .Sept. 1850, MS. It is not 100. BILLS OF PARTICULARS. 263 their nature and character ;i it ought not to be a mere echo of the com- mon counts -^ where the claim is susceptible of it, it must give particu- lars.' It must give dates with particularity;* but it may state the same claim to have arisen in several ways, in the alternative, in the same manner as the different counts of a narr.^ In an action for fees earned, a bill of particulars, containing abbreviations, was held suiB- cient.^ On a bill of particulars, stating items, of various dates, of " money advanced by plaintiff to defendant," the plaintiff will be re- stricted to proof of a technical loan of money.^ And a bill com- mencing with a " balance from former account," is insufficient.' Under leave to amend a bill of particulars, a new cause of action cannot be introduced.^ §475. At the trial, the particulars of the plaintiff's demand, if delivered, are considered as incorporated with the declaration, and then he is not allowed to give any evidence out of the bill ;^° but, though he cannot himself give evidence out of it, yet, if the defendant's evidence show that there were other items which he might have included in his demand, he is entitled to recover all that appears due him." In case of a slight discrepancy between the dates of a bill of particulars, and the original entries offered in evidence, where there is nothing to show sur- prise, the jury are to decide on tht identity of the transaction.'^ A vari- ance must be taken advantage of, by objection to the evidence; it can- not be made the ground of a motion for a new trial.'^* It seems, that a bill of particulars is a mere pleading ; and, therefore, where an amend- ment has been allowed, the original bill is not evidence against the plaintiff.'* ' Cummings v. Thomas, 1 W. N. C. Chew, 15 Penn. St. 323. 311. WmiamsB.Huidekoper, Ibid. 376. " Holland v. Hopkins, 2 Bos. & Pul. ^ Kartell v. Seybert, Dist. Court, 243. A charge for interest, is no part Pbila., 11 March 1848. MS. of a bill of particulars. Lanning v. ' Sargent ». Gilbert, Dist. Court, Swarts, 9 How. Pr, 434. Nor need Phila., 30 March 1850. MS. it state any credits or payments. * Graham v. Graham, 1 W. N. C. 416. IWckman v. Haight, 15 Johns. 222. Livingston u. Enochs, 2 Ibid. 244. Hum- " Day v. Bower, 1 Campb. 69. phrey w. Oortelyou, 4 Cow. 54. Quin u. " Imhoff ». Fleurer, 2 Phila. 35. Astor, 2 Wend. 577. If the plaintiff '■■' Grosholtz v. Stifel, 4 Phila. 16. give a date and amount for each item, " Kartell v. Seybert, Dist. Court, it is enough, without regard to the Phila., 25 March 1848. Why plaintiff question of proof, on the trial. Brown should not amend his bill of particulars. V. Bradford, Dist. Court, Phila., 29 Dec. Pet- curiam. The authorities are by no 1849. MS. means clear upon this question. A bill * Howell V. Gilpin, Dist. Court, of particulars is a mere creature of the Phila., 20 May 1848. MS. court, and is no part of the record. ' Karris v. Christian, 10 Penn. St. Blunt v. Cooke,_4 Man. & Grang. 458. 233. The object of it is, to give the defendant ' Stineman o. Slaymaker, 1 W. N. more specific and precise information as Q ]32, to the nature and extent of the demand * Buckner v. Meredith, 1 Brewst. 306. made upon him by the plaintiff, tahn is And see the cases collected in Bright, announced by the declaration, in a mode N Y. Dig. 2919-20. unincumbered by the technical formal- ° Spencer v. Tarns, Dist. Court, ities of pleading. 3 Starkie 1055. It Phila. 24 June 1848. MS. Wager v. ought to be as certain, and convey as 264 BILLS OF PAETICULAES. § 476. According to the practice formerly prevailiug in New York, if the plaintiff failed to furnish a sufficient bill of particulars, on demand, the defendant might move the court for judgment as in case of non-pros., and a rule was then granted on the plaintiff to furnish a sufficient bill, within a time specified, or non-pros} And our supreme court, before its original jurisdiction was taken away, had an express rule, requiring the prothonotary to enter a non-pros., on proof of three months' notice to fur- nish a bill of particulars, and non-compliance therewith. Under the present practice of the courts of common pleas, if the plaintiff, in any suit in which the defendant is entitled to a bill of particulars, do not, within the space of three months after demand, furnish the same, the court may order the common counts to be stricken from the declaration ; or, if there be none but the common counts, may order a non-pros., upon motion of the defendant, and no sufficient cause shown to the contrary.^ much information, as a special declar- ation, (jilpin V. Howell, 5 Penn. St. 53. Thus, it has been held, that if a bill of particulars state the plaintiff's demand to be for goods sold and delivered to the defendant, no eyidence can be re- ceived of goods sold by the defendant, as plaintiff's agent. Holland v. Hop- kins, 2 Bos. & Pul. 243. Hence, Mr. Chitty recommends the practitioner to describe the claim in the particulars, in every possible shape that could be admissible under the counts in the de- claration. 3 Chit. Gen. Pr. 616. Yet, this and other elementary writers seem to consider that, like every other matter en pais, the bill of particulars may be used against th'e party who has fur- nished it ; and there are reported cases which sustain this view. Ibid. 617. 3 Starkie 1058. Colson v. Selby, 1 Esp. 452. Rymer v. Cook, Moody & Malkin 86. In the case of Harring- ton V. MacMorris, 5 Taunt. 228, how- ever, it was decided, that the plaintiff cannot use one plea of a defendant as evidence of the fact which the de- fendant denies in another plea. Nor can he use a notice of set-off as evi- dence of the debt, on the issue of nnn assumpsit, because the statute gives the notice of set-off in the nature and place of a plea ; nor can he use a particular of set-off lor that purpose, because it is incorporated with the notice of set-off. See also, Miller v. Johnson, 2 Esp. 602. Short o. Edward, 1 Ibid. 374. So, it has been held in other cases, that one count of a declaration cannot be called in as proof, by the defendant, to contDadict or affect the evidence in respect to another. Cowen & Hill's Notes to Phillips on Evid. 331, and the (jaees there cited. Upon these groTinds, and considering the bill of particulars as a part of the pleadings, a very re- spectable court in New York has denied any effect to them as evidence. Brit- tingham v. Stevens, 1 Hall 379. Cowen & Hill's Notes to PhiUips on Evid. 361, and cases there referred to. We think this is the sounder and, practically, the more just and convenient doctrine. In providing that defendant shall be fur- nished with a previous knowledge of the nature of the claim which he must prepare to meet on the trial, we must take care that the plaintiff be not tram- melled by the mere forms of the pro- ceedings, so that substantial justice may, in all cases, so far as possible, be attained. Rule absolute. ' Fleurot v. Durand, 14 Johns. 329. Ryckman v. Haight, 15 Ibid. 222. ' Rule xxix. 'i 104. In the circuit court of the United States, it is provided by rule, that, after appearance, the de- fendant may call for a bill of particu- lars, and until it is furnished, lie pro- ceedings shall stay ; should tiie plain- tiff not furnish it for two calendar months, a non-pros, may be entered by the clerk, on notice of two weeks. Rule vii. CHANGE OF VENUE. 265 III. Change of venue. § 477. Until the adoption of the constitution of 1874, the statutory- provisions on the subject of a change of venue, were very imperfect and incomplete ; but it was thereby provided, that the power to change the venue in civil and criminal cases should be vested in the courts, to be exercised in such manner as should be provided by law.-* The power of changing the venue is not inherent in our county courts, as it is in those whose jurisdiction extends over greater areas; without such grant of power, they could not transfer their jurisdiction to another tribunal.^ This clause of the constitution did not execute itself; but all former laws remained in force, until the legislature had taken action on the subject.^ The act of 1875, however, expressly repealed all former laws relative to change of venue in civil cases.* § 478. That .act provides, that a change of venue shall be made (as matter of right) in either of the following cases : — I. Whenever the judge, who, by law, is required to try or hear the same, shall be personally interested in the event of such cause, or in the question to be determined thereby : II. Whenever the title under which the parties, or either of them, claim, in any such cause, shall have been derived from or through such judge, and he shall be liable thereunder, or when- ever he shall hold under the same title with either of the par- ties in the cause : III. Whenever any near relative of such judge shall be a party to any such cause, or interested in the event thereof; unless the judge so> interested shall select another judge, learned in the law, not so related, to hear and determine the same :° IV. Whenever the county in which such cause is pending, or any muni- cipality therein, or the officials of any such couiity or munici- pality, are parties thereto, and it shall appear, by the oath of the party desiring such change of venue, that local prejudice exists, and that a fair trial cannot be had in such county : V. Whenever a large number of the inhabitants of the county in which such cause is pending, have an interest in the question involved therein, adverse to the applicant, and it shall appear, by the oath of such applicant, that he believes he cannot have a fair and impartial trial. VI. A change of venue is also a matter of right, whenever an action is brought for the recovery of the purchase-money of real estate, in any other court than that of the county where such real estate is situate, on affidavit being made that the question at issue involves an inquiry into, and an adjudication of, the title, bound- aries, location or value of such real estate.' 1 j^ iiJ^. g 23 Purd. 2053. 2 Wattson V. Chester and Delaware * Aet 25 May 1878, P. L. 154 ; Purd. River Raiboad Co., 83 Penn. St. 254. 2053. ^ Ibid « Act 22 May 1878, P. L. 98 ; Purd. ♦ Act ' 30 March 1875. P. L. 35 ; 2153. 266 CHANGE OF VENUE. § 479. The act of 1875 also gives the courts a discretionary power to- change the venue : — I. Whenever it shall appear, to the satisfaction of the court ia which such cause is depending, that any party to such cause hath an undue influence over the minds of the inhabitants of the said county, or that they are prejudiced against the applicant, so that a fair and impartial trial cannot be had : II. Whenever, in any plea of land, two juries of such county have failed to agree, and have been discharged without rendering a verdict therein : III. Whenever it shall be made to appear to the court, that a fair and impartial trial cannot be had in the county in which any such cause is depending. § 480. In the first class of cases, the applicant for any such change of venue, may apply to the court, in term-time, or to any law-judge thereof, in vacation, by petition, setting forth the cause of the applica- tion, which must be accompanied by his afiidavit of the truth of the facts alleged therein, and that the said application is not made for the purpose of delay, and praying a change of venue ; and after reasonable notice thereof having been given to the opposite party, or his attorney, the court or judge is required, if satisfied of the truth of the facts alleged, to award a change of venue of the said cause, to some county where the cause complained of does not exist. In the second class of cases, on a similar application and notice, the court proceeds to hear the parties by counsel, and affidavits, if necessary ; and may refuse or award such change of venue, as, in its discretion, it shall see fit. § 481. Whenever the court orders a change of venue, in any cause in law or in equity, it is made the duty of the prothonotary of the court in which such cause is pending, to forward to the prothonotary of the county to which the same shall be removed, certified copies of all docket- entries, processes, pleadings, depositions and other papers pertaining to such cause ; and the said certified copies, being duly filed and entered in the court to which the cause is removed, it proceeds in like manner as if such cause had been brought therein by original process against the defend- ant or defendants ; and the said court is required to proceed to trial in the same manner, and give judgment and award execution with like effect, as though the cause had not been removed ; and the records and copies filed in the court to which such cause is removed, have the same force and effect, in every respect and for every purpose, as the original would have had in the court from which such cause shall have been removed. The costs and fees attending the application for a change of venue and the removal of the record, are to be paid by the party applying for such change of venue, and to be taxed as a part of the costs, and abide the event of the cause. CONSOLIDATING ACTIONS. 267 rv. Consolidating: actions. § 482. The consolidation of actions is intended to save expense, and may be ordered by the court, on motion.' Where the plaintiff has several causes of action, which may be joined, one suit only should be brought ; otherwise, the court will compel a consolidation, with costs of the application f but such consolidation will never be directed, without the consent of the defendant, who may have good reasons for withhold- ing it.^ A consolidation of several actions ma^ be ordered, after appeal from the judgments of a justice of the peace ;^ and several actions may be consolidated, though one suit was commenced before the cause of action accrued in the other.^ Where several suits are brought between the same parties, on separate promissory notes, of the same date, the court will order them to be consolidated into one, on the ground of vexation and oppres- sion.^ But the court, in its discretion, may order the consolidation of several actions into one or more ; thus, seven suits on protested bills were ordered, in view of the length of the declarations, to be consolidated into three.' § 483. Several actions upon separate and independent contracts, can- not be consolidated f thus, several actions upon several promissory notes, of different dates, by the indorser against the maker, will not be consolidated ;^ nor will several actions be consolidated, where the claims have been guarantied by different persons.'" And where two suits are brought, one upon a promissory note, and the other upon a book-account, giving credit for the unpaid note, which had been given on account thereof, the court refused to order a consolidation.'' A consolidation will never be ordered, where the effect would be to dispense with an affi- davit of defence, and thus delay a recovery in the first action.'^ Numer- ous actions for distinct penalties will not be consolidated ; but until one of them has been tried, proceedings will be stayed in the others, if they all involve the same questions.'^ And two actions for the same libel, one against the editor, and the other against the publisher of a newspaper, cannot be consolidated.'^ So, also, several issues on sheriff's interpleaders, will not be consolidated ;'' nor several judgments between the same parties.'^ § 484. On a motion for consolidation, the defendant must show that the causes of action are such as may be joined in the same declaration ; 1 Brown v. Soott, 1 Dall. 147. And see Prior v. Kelly, 4 Ibid. 128. ''■ Wolverton v. Laoey, 18 Law Rep. * Camman x>. New York Insurance 672. Towanda Bank m. Ballard, 7 Co., 1 Caines 114. W. & S. 434. Brewster b. Stewart, 3 ' Thompson v. Shepherd, 9 Johns. Wend 441. 262. And see Bank of Alexandria v. ' Groff V. Musser, 3 S. & R. 262. Young, 1 Cr. C. C. 458. * Boyle ». Grant, 18 Penn. St. 162. '° Potter d. Patteugille, 8 Abb. Pr. (N. * Dunning v. Bank of Auburn, 19 S.) 189. Wend. 23. " Stanley v. Garrigues, 1 W. N. C. 28. « Merrihew ». Taylor, 1 Bro. app. '^ Pierce v. Lyon, 3 Hill 450. Ixvii. Two actions by the same plain- " Clark ». Metropolitan Bank, 5 tiff, upon the same administration-bond Sand. 665. will be consolidated. People v. Mc- " Cooper v. Weed, 2 How. Pr. 40. Donald, 1 Cow. 189. '' Uhler «. Selfridge, 1 W. N. C. 61. ' Rumsey v. Wyncoop, 1 Yeates 5. " Banku. Hunsicker, 2 W. N. C. 381. 268 INTERPLEADER. that the questions which will arise in both actions are substantially the same ; that no defence is intended on either of them ; or that the defence will be substantially the same in both actions ;^ and the nature of the defence must be disclosed.^ § 485. In actions upon a policy of insurance, against several under- writers, the court, upon application of the defendants, and with the con- sent of the plaintiff, will grant a rule, called the consolidation rule, to stay the proceedings in all the actions but one, the defendants undertak- ing to be bound by the verdict in such action, and to pay the amount of their several subscriptions and costs, if the plaintiff should recover ; together with such other terms as the court may think proper to impose upon them.^ Or, if the plaintiff refuse his consent,* the court will then grant imparlances in all the actions but one, until that one have been determined f and, if determined in favor of the plaintiff, the other defendants may (if necessary) obtain a stay of proceedings in their several actions, upon payment of their subscriptions and costs.^ And where several actions on policies of insurance are brought by the same plaintiffs, against different companies, and the questions are the same, the evidence the same, and the counsel the same, the court may order them to be tried by the same jury.' V. Interpleader at common law and under tlie statute. § 486. The remedy by interpleader was not altogether unknown at common law ; but it was very narrow in its application, and was con- fined to the actions of detinue, quare impedit, and writs of right of ward. In the action of detinue, it was restricted to cases of joint bailment by both claimants.* It would seem, that the doctrine of interpleader exists in Pennsylvania, at common law.' Thus, as far back as 1833, Judge Huston'" said : — " There was certainly a time, in England, when the prac- tice in the courts of law was very different from what it always was and is here ; that practice gave constant employment to the courts of chan- cery; and even the courts of chancery have extended their powers, and applied them to subjects not formerly known. "When bills of inter- pleader were first used, I shall not inquire : Lord Hardwicke speaks of • Farmers' and Manufacturers' Bank unless by consent. Bell v. Hamiltou, V. Tracy, 19 Wend. 23. Wilkinson v. 1 Bro. 303. Johnson, 4 Hill 46. s Clason v. Church, 1 Johns. Cas. 29. ■' Crane v. Koehler, 6 Abb. Pr. 328 n. « 2 Arch. Pr. 180. And see Morris v. Knox, Ibid. ' Weide v. Insurance Co., 3 Chicago ' Parke Ins. Introd. xliv. This rule, L. News 353. though attempted before, without sue- " For the ancient learning on this cess, was introduced by Lord Mansfield subject, see 2 D'Anv. Abr. tit. " Enter- into general use, to avoid the expense pleader." and delay arising from the trial of a » Taylor v. Carryl, 24 Penn. St. 259. multiplicity of actions upon the same Brownfield v. Canon, 25 Ibid. 301. question. Irwin v. Pittsburgh and Connellsville * The court cannot direct that a ver- Railroad Co., 43 Ibid. 490. diet in one cause shall be decisive of " Coates v. Roberts, 4 Rawle 109. another suit between the same parties, INTERPLEADEE. 269 them, in 1 Ves. 249, as a new invention, and not to be encouraged ; they have, however, been applied much more extensively than in his time, and now parties are compelled to interplead by the courts of law, with- out the trouble, delay and expense of a bill in chancery. § 487. "We are told,' a bill of interpleader lies, where a person claim- ing no right in the subject, not knowing to whom to render a debt or duty, apprehends injury from claims made by two or more, claiming in different rights, the same debt or duty. A mere claim is now the sub- ject of such bill, and that the one claims in a legal and the other an equitable right. It is granted, on an aiEdavit that the bill is not exhibited by fraud or collusion, but for his own security ; but it need not state, it is done at his own expense, nor that it is filed without the knowledge of the other party. The bill must show that there are two persons in exist- ence, each of whom claims the property; if one of them do not appear, or will not support his claim, the debt is given to the one who does appear, and a perpetual injunction is granted as to the other. I shall not go into the inquiry as to all the cases to which it applies ; it is the appropriate remedy for a mere stakeholder. Sometimes, a trial at law is directed ; and after the plaintiff in the bill has no more concern in the matter, his death does not stay the proceedings, and the cause will be decided between the claimants, without a bill of revivor.^ § 488. "We have no court of chancery; but as it often happens that more than one person claims an interest in, or right to the same goods or money, and as it would be a disgrace to the administration of justice, that the law should levy a sum of money from a defendant for one person, and the same law should, without any fault of the defendant, compel him to pay the same debt to another — the practice of permitting a party to interplead has long been well known, and in some cases, the courts compel a person to interplead, or more properly, to appear and take defence in a suit, or to be for ever barred. And by the act of assembly,^ for distributing money raised by sales on execution, the court are required to give notice to all who may claim ; and if any person neglect to appear and take defence against any claimant, such person is for ever barred ; and by the decision of this court, it is not necessary nor proper that each claimant should bring an action ; if one sue, and an issue is directed, every claimant must interplead, or be for ever barred.^ This act of assembly is only a recognition of what was always the law and the practice, with the addition of prescribing what shall be notice to all concerned, and of giving an appeal to the supreme court. So, under the 14th section of the act of 20th March 1810, giving juris- diction to justices of the peace, it is provided, that a judgment may be entered before a justice by confession, &c., for a sum exceeding $100; if, however, any creditor of the defendant shall make oath before the jus- tice, that there is just cause to believe such judgment was confessed with a view to defraud creditors, it is made the duty of the justice to transmit a » Madd. Ch. 173. * Boal's Appeal, 2 Rawle 37. Wal- ^ Anon., 1 Vern. 351. lace v. Clingen, 9 Penn. St. 52; Bel), » Act 16 April 1827, P. L. 472. J. 270 INTEEPLEADEE. transcript of his judgment to the prothonotary of the common pleas, whose adjudication thereon shall be final. Under this act, the practice has been, in some counties, to order a feigned issue; in others, the courts, on proper affidavits, open the judgment, and permit the creditor or cred- itors to plead, and the plea is entered as being made by some creditors ; the verdict and judgment in either form, in the words of the act, are final. § 489. " The case of Heller v. Jones' is the earliest recognition I have found in our books, of interpleading and the effects of it. The pro- ceeding began, by a judgment confessed in 1787 ; on a seire facias tc revive this judgment. Miller, who claimed under a younger judgment, on which he had sold the land, was permitted to enter a plea, and he gave notice of special matter : this was before Eush, then president of that district, and who had been a justice of the supreme court, under the for- mer constitution. The cause was removed to the supreme court, and tried at nisi privs, in 1795 ; no objection was made to his right to inter- plead, though eminent counsel were concerned ; but, for some cause, he did not appear at the trial ; no witnesses were examined, and a verdict and judgment were rendered for the plaintifi", who levied on and sold the land, and brought ejectment against Heller, who had bought from Miller. Heller offered to prove the same matter which Miller had alleged in his plea, aud it was held, he could not ; that Miller, under whom he claimed, having been admitted to interplead, and put in a plea, &c., was barred, although he afterwards neglected the defence ; and Heller, claiming under him, was also barred. In the argument, the right of Miller to appear and interplead was denied, and also the efiect of it, if he had been heard, and Judge Breckenridge was with them ; but the Chief Justice and Judge Yeates, whose practice began in 1762, and had been, perhaps, more extensive than that of any other man, then or since, in this state, had no doubt as to this point ; and I have never heard the right of a party interested to interplead, denied since. The acts of assembly above referred to are predicated on the existence of such practice ; they did not introduce it. § 490. " The only difference between the practice here and in England is, that there, when one claimant sues, and interpleading is ordered, the name of the other claimant is substituted as defendant, and the name of the bail or stakeholder is stricken out ; here, so far as I have known the practice, one claimant sues him who has the money or property, and the other claimant is permitted or compelled to defend the suit, and show his right. If, after appearing and pleading, the defence is neg- lected or abandoned, the party is for ever barred ; much more will this be the case, if a party defends the cause and loses it." § 491. The same doctrine was held by Judge Lowrie, when sitting in the district court of Allegheny county f and by Judge Sharswood, in Philadelphia. "I conceive," said he, "that by the common law of Pennsylvania, of which equity is a part, a stakeholder could protect himself by a notice en pais to the adverse claimant, in every case in ' 4 Binn. 61. ^ McMunn v. Carothers, 4 Clark 354. INTEEPLEADEE. 271 which a chancellor would decree ^n interpleader. The advantages of the interpleader act are, first, that he is relieved by its provisions from primary liability for costs; and, secondly, from the contingency and risks of his defence, in a subsequent action by the adverse claimant."' The case of Brownfield v. Canon^ is valuable, as pointing out the correct practice. The material parts of the opinion by Mr. Justice Lowrie are here given : — " The old common-law process of interpleader is not much used with us, but it is not abolished, for we never consider an old remedy abandoned, until we have an adequate substitute for it. While, how- ever, we receive the old forms, we modify them according to the analogies of our own general practice, and even enlarge their sphere, according to the equitable principles of our common law. § 492. " The principles of interpleading, and the cases in which it may be applied, are best exemplified in the practice in equity ; but the form of the procedure, in a common-law case, is very simple, and requires but little modification. The principle appears in various forms in our law ; as, where heirs, devisees or alienees come in, on notice by writ, or by the party, to defend for their interests ; where a warrantor or landlord comes in, on notice, to defend an action of ejectment, and other cases. Under our practice, where the middleman or stakeholder is sued, he may take the simple course of giving notice to the other claimant of the money or thing in controversy, to come and defend the action, or be barred of his claim; but this does not conclusively save the middleman from his liability to action by the other claimant ; for the latter, not being a party on the record, is not held barred by the judgment, until the fact of notice is properly proved. The middleman is not, therefore, conclusively protected by such judgment, for his proof of notice may fail him ; besides, if the middleman fail, he will have to pay the costs himself, and may have no available recourse. § 493. " It would, therefore, seem more prudent for the defendant to pursue the regular common-law form of filing his suggestion, admitting the debt or duty, and his willingness to pay or perform, and stating the claims of third persons ; and, therefore, pray for a scire facias to bring him in to interplead. Thus, the third person, called, from his being warned, the garnishee, or, in other forms of procedure, the intervener, is compelled to come in as a party and set up his claim, and is concluded by the record ; by the service of the scire fcicias, the intervener or gar- nishee actually becomes a party, and if he makes default, the plaintiff will have judgment to recover the money or thing claimed from the defendant, and his damages and costs from the garnishee. If he comes in and disclaims, the plaintifi" recovers, of course, from the defendant ; if he defends unsuccessfully, the plaintiff will have judgment for the thing claimed against the defendant, and against the garnishee for dam- ages, or interest and costs. If the intervener plead, the issue to the court or jury is between him and the plaintiff, and the defendant stands aside altogether, and has nothing further to do, but to pay the money, or 1 Bird V. Neff, infrd, | 497. " 25 Penn. St. 299. 272 INTEEPLEADEE. deliver the thing sued for, according to the judgment of the court. If the intervener recover, he shall have judgment against the defendant for the thing claimed, and against the plaintiff' for his damages and costs. If, however, the money be in court, the judgment, of course, is that the party recovering shall take it out of court ; if it has been delivered to one of the claimants, the judgment will accord with the fact. Usually, when the suit is for money, the defendant offers to bring it into court, and does so ; and if it is for some other thing, he keeps it safely, to abide the order or judgment of the court. If the middleman be sued by two claimants severally, he must sue out his seire facias to interplead, in the suit first brought; or,if they are both brought at once, then in theonein which the declaration shall be first filed, or which the court shall direct."^ § 494. The practice of interpleading in the county of Philadelphia, is now regulated by the act of 1836,^ which provides that the defendant in any action which shall be brought for the recovery of money, or of any goods, chattels, or the value thereof in damages, which shall have come lawfully to his hands or possession, may, at any time after the declara- tion filed, and before plea pleaded, by a suggestion to be filed of record, disclaim all interest in the subject-matter of such action, and offer to bring the same into court, or to pay or dispose thereof as the court shall order ; and if he shall also allege, under oath or aflSrmation, that the right thereto is claimed by, or supposed to belong to some person not party to the action (naming him or them), who has sued or is expected to sue for the same, or shall show some probable matter to the court to believe that such suggestion is true, the court may, thereupon, order the plaintiff" to interplead with such third person, and make such rules and orders in the cause, and issue such process for the purpose of making such third person party to the action, and for carrying such proceeding to interplead into full and complete effect, and may render such judg- ment or judgments thereon, as shall be agreeable to the rules and prac- tices of the law in like cases. ' § 495. If the process issued upon an order to interplead, shall not be actually served, or personal notice thereof shall not be given to such third person, the court shall have power, upon giving judgment for the plaintiff", to require him to enter into a recognisance, and, if they shall think it necessary, with sufficient surety, to interplead with' such third person, if afterwards and before the expiration of the time which would be allowed to him to prosecute his claim against the defendant, such third person shall appear in the said court, and claim such money, or such goods or chattels, or the value thereof. §496. Under this act, there may be an interpleader in an action of ' The defendant only can ask for an 77 ; Purd. 499. Extended to Berks and interpleader at common law ; a third Schuylkill counties by act 27 March party cannot come in and interplead. 1848, P. L. 265. This act was founded Russell V. Presbyterian Church, 65 on the British statute of 1 & 2 Wm. Penn. St. 9. And see Allison v. El- IV. c. 28, the decisions under which berson, 1 W. N. C. 388. are applicable to our practice. « Act 11 March 1836, ?§4-5, P. L. INTEEPLEAUEE. 273 trover ; but, in such case, it is essential, that the goods or chattels for which the action is brought, came lawfully into the hands of the defend- ant ; and that he offer to bring them into court, or dispose thereof as the court shall order.' So, au interpleader will lie, under the statute, where money is deposited by the agent of a corporation, in his own name, and other persons claim to be trustees of the corporation ;^ where two per- sons claim a deposit in the hands of an auctioneer ;' where two persons claim a sum of money deposited by a decedent with a third person — one as donee, and the other as administratrix ;* and where rent is claimed from a tenant by two persons in privity with the lease — as, mortgagor and mortgagee.^ And so, it appears to be settled, by the modern decisions, that a garnishee in attachment-execution may have an inter- pleader, where there are conflicting claims to the fund in his hands.^ § 4:97. An action against the holder of a stake, deposited with him to abide the event of an illegal race, was held not to be within the British ' TiemauD. Stille, Dist.Court, Phila., 22 April 1848. Motion for rule to interplead. Per curiam. This is an action of trover, and the defendants have filed a petition, disclaiming all title or interest in the goods, and set- ting forth that they are claimed by one Jones, to whom, it seems, they had been delivered by a writ of replevin, before this action of trover was com- menced. The petition then proceeds to pray, that an order may be made on the plaintiff and Jones, to interplead, con- formable with the 4th and 5th sections of the act of 11th March 1836, relating to this court, commonly called the inter- pleader act. There is no donbt, the provisions of that act extend to the ac- tion of trover ; but to entitle a party to the benefit of them, two things are absolutely essential : — 1. That the goods or chattels for which the action is brought, came law- fully to the hands or possession of the defendant. 2. That he shall oifer to bring them into court, or to dispose thereof as the court shall order. Neither of these are set forth in the petition and affidavit ; and, indeed, if the goods have been delivered on the replevin, to the plaintiff in that suit, it is plainly no longer in the power of the defendant to bring them into court, or dispose of them as the court shall di- rect. Motion refused. ^ Ware v. Western Bank, Dist. Court, Phila., 5 May 1849. Rule_ to inter- plead. Per curiam. The plaintiff sues for the use of the trustees of a certain VOL. I. — 18 corporation ; the defendant shows that the debt sued for was a deposit speci- ally made by the plaintiff, -as secretary of that corporation. The corporation might have sued in its own name. The defendant avers that other persons claim to be the trustees of that corpora- tion. It is said, that this is a mere mat- ter of use, and that the plaintiff, having made the deposit in his own name, is entitled to recover, at all events, which- ever party may be the true corporation. We consider, however, the act of the plaintiff^ as that of a mere agent ; his agency known and avowed at the time, and that the corporation, his constitu- ent, could, at any time, revoke his authority and sue for the money them- selves. The money being theirs, and, without question, traced and identified as theirs, unmixed with any of the agent's, they have a right to receive and recover it from the depositary, without the intervention of the agent, or the use of his name. It is, then, we conceive, a case for an interpleader. Rule absolute. ' Vandegrift v. Freeman, I W. N. 0. 109. Bleeker v. Graham, 2 Edw. Ch. 047. * Loughlin v. McGormick, 2 W. N. C. 352. ^ McCoy V. McMurtrie, 34 Leg. Int. 58. Badeau v. Tylee, 1 Sand. Ch. 270. « Pratt V. Kratz, 2 W. N. C. 521. Wasserman v. Bank, 3 Ibid. 475. Moore V. Moore, 34 Leg. Int. 12. But see Snyder v. Wetherly, 1 Phila. 325. Evans v. Matlack, 8 Ibid. 271. 274 INTERPLEADER. statute ;^ nor are adverse claims set up in respect of a sum of monej due upon a contract for work and labor ;^ nor, where the plaintiff's claim against the defendant rests, not merely upon the right of property, but also on the personal contract of the defendant f nor where a pur- chaser of goods is sued by the seller for the price, and in trover, by a third person, who claims them ;' nor where two persons claim to be entitled to a reward f nor, where a company has registered what is alleged to be a forged transfer of shares, and an action is brought against it by the original stockholder, for dividends, and another is threatened by the alleged transferree." An interpleader will not be granted, unless the entire claim of the plaintiff be admitted; as, where the defendant sets up a claim to a part of the fund, for commissions/ § 498. The application for an interpleader must be by the defendant of record ; an adverse claimant of the fund will not be allowed to inter- vene." The petition must state that the third party, who claims the fund, has sued, or is expected to sue.^ Before an interpleader can be granted, a declaration or statement must be filed ; a copy of book-entries, filed as such, is not enough.'" But, on affidavit of an adverse claim, the ^ Applegarth v. Colley, 2 Dowl. (N. S.) 223. 2 Turner v. Kendall, 13 M. & W. 171. ' Lindsay v. Barron, 6 C. B. 291. Horton v. Devon, 4 Exch. 497. Craw- shay «. Thornton, 2 Milne & Or. 1. Patorni v. Campbell, 12 M. & "W. 277. Belcher v. Smith, 9 Bing. 82. Sher- man V. Partridge, 4 Duer 646. * Slanoy v. Sidney, 14 M. &W. 800. And see Tritt v. liitz, 17 Abb. P. 436. * OoUis V. Lee, I Hodges 204. s. p. Grant v. Fry, 4 Dowl. P. C. 135. But see Fargo v, Arthur, 43 How. Pr. 193. " Dalton V. Midland Railway Co., 12 C. B. 4.58. ' Bird V. Nefif, Dist. Court, Phila., 25 Sept. 1852. Rule for interpleader. Per curiam. The plaintiff's claim is 1448.06 ; the defendant admits but $337.85. A certain amount of this difference is commissions ; the residue, however, is said to be a distinct claim. It appears to us, that there would be a great dificulty in holding the inter- pleader act applicable, except where the defendant admits the entire amount of plaintiff's claim; the act does not con- template that the action should branch off into several issues with different parties. Even the payment of the whole sum into court, unaccompanied by a disclaimer of interest in the whole of it, would not meet the difiiculty. Indeed, it is questionable, whether an agent or commission-merchant can turn his acknowledged constituent over to a contest with a third person, having or making a claim. Such a power might be used very unjustly and disastrously ; especially, if we allow the question of commissions to be reserved and decided separately. I conceive, that by the common law of Pennsylvania, of which equity is_ a part, a stakeholder could protect himself by a notice en pais to the adverse claimant, in every ease in which a chancellor would decree an interpleader. The advantages of the interpleader act are, first, that he is relieved by its provisions from primary liability for costs, and secondly, from the contingency and risks of liis defence, in a subsequent action by the adverse claimant. But the reason does not hold, in the case of an agent sued by his principal, especially, whel-e it may pos- sibly be, that the adverse claim is founded on the agent's own acts or ad- missions. And see Wakeman v. Dickey, 19 Abb. Pr. 24. Woodruff v. United States, 4 N. & H. 486. * Allison V. Elberson, 1 W. N. C. 388. ' Stewart v. Smith, 1 Phila. 43. " Howell V. Farmers' and Mechanics' Bank, Dist. Court, Phila., 6 March 1848. Why suggestion and prayer of inter- pleader should not be allowed. Pa- INTEEPLEADEE. 275 court will refuse to give judgment for want of an affidavit of defence, in order to give the defendant an opportunity of applying for an inter- pleader, when a declaration shall be filed.* It is too late, to apply for an order to interplead, after the case is at issue ;^ and the affidavit must show that the application is made before plea pleaded.^ The affidavit should be entitled in the original cause ;* and where money has been paid into court, and the issue has been tried and determined in favor of the plaintiff, the order to take the money out of court must be made in the original suit, and not in the issue framed under the order of interpleader.' The present practice is, not to award a soire facias against the claimant, curiam. The words of the 4th seotion of the act of 11th March 1836, under which this court possesses the power of awarding an interpleader, are ex- press, that the suggestion and proceed- ings thereon are to be '' after the declar- ation filed, and before plea pleaded." No declaration has been filed in this case ; but a copy of entries in a bank- book have been filed, under the 2d sec- tion of the act of 28th March 1835, and it is contended, that such a copy takes the place of a declaration, is a sufiicient statement of the plaintiff's demand, under the 5th section of the act of 2lst March 1806, puts the de- fendant and court in as complete pos- session of the nature of the plaintiff's claim, as a declaration would do ; that the reason of the provision of the law is thereby satisfied, and that otherwise the defendant upon whom a bo?id fide adverse claim is made, would be sub- jected to a judgment for want of an afiidavit of defence, and thus be left without remedy. These arguments have not convinced us, that we ought to depart, in our practice, from the ex- press words of the law. No doubt, a statement under the act of 1806 would be a declaration within the interpleader act, and as little doubt, that the copy filed in this case, had it been filed as a statement, would have been sufficient, under the decisions, particularly, Bai- ley V. Bailey, 14 S. & R. 199. But the plaintiff has not filed it as a statement, nor has he taken any step, such as a rule to plead, which shows that he re- gards it in any other light, than as a copy under the 2d section of the act of 28th March 1835. Nor is there any difficulty in practice, arising from the right of the plaintiff to demand a judg- ment for want of an affidavit of defence. We have held, in many cases, that we will not give a judgment against one who shows, by his own affidavit, or that of others cognisant of the facts, that there is an adverse claim made to the subject-matter of the suit, and it does not appear on its face to be wanton and collusive. It is competent for the court, in such oases, to suspend their decision of the rule for judgment, until a declar- ation is filed, in order that the defend- ant may have the opportunity of suii;- gesting his interpleader, and paying the money into court. Prior to the in- terpleader act, it may have been ne- cessary for the defendant, in his affida- vit of defence, to show the court that the adverse claim was valid, or some probable ground for so believing. The check to collusive claims set up for the purpose of delaying judgment, in the provision for the payment of money into court, was not then in existence. The plaintiff may prevent any delay, by filing his narr. with his copy. There is now no difficulty whatever, in doing entire justice to both parties, and no reason why in this, or any other case, the words of the act should not be the rule of our practice. Rule dismissed. 1 Pratt V. Kratz, 2 W. N. C. 521. ^ Butt V. Jenks, Dist. Court, Phila., 12 Feb. 1853. MS. And see Evans v. Matlack, 8 Phila. 271. » Frost V. Heywood, 1 Dowl. (N. S.) 801. * Pariente v. Pennell, 7 Scott, N. R. 834. * Stewart v. Smith, 1 Phila. 171. Levy V. Coyle, 2 Dowl. (N. S.) 932. And see Cooper v. Lead Smelting Co., 2 Man. & Scott 810. Duear v. Mac- intosh, 3 Ibid. 174. Reeves v. Barrand, 7 Scott 581. 276 PAYMENT INTO COURT. but to direct an issue to be framed between him and the plaintiff, which is tried in the usual manner.' VI. Payment of money into court. § 499. A defendant may answer the merits of an action, by confessing or denying it ; but a confession of the whole complaint is not very usual, for then the defendant would probably end the matter sooner ; or not plead at all, but suffer judgment by default. Yet, sometimes, after tender and refusal of a debt, if the creditor harasses his debtor with an action, it becomes necessary for the defendant to acknowledge the debt, and plead the tender,^ adding that he has always been and still is ready to pay it ; which is called a plea of tender and toujours et uncore prist, from these words having been used in the plea, when the proceeding were in the French language ;^ for a tender by the debtor and refusal by the creditor will, in all cases, discharge the costs, but not the debt itself. " The prudence of paying money into court, is one of the most anxious points on which counsel can be asked to advise ; between the care lest the party should admit the tSrms of a special contract, on the one hand ; or, on the other, lest he should proceed, with a consciousness that some- thing must ultimately be recovered ; but whatever course be adopted, it must be followed by all its legal consequences."^ § 500. The act of 1705' provides, " that in all cases where a tender shall be made, and full payment offered, by discount or otherwise, in such specie as the party by contract ought to do, and the party to whom such tender shall be made, refuses the same, and yet afterwards will sue for the debt or goods so tendered, the plaintiff shall not recover any costs in such suit." And the act of 1867'' enacts, that "in all actions for the recovery of money, founded on contract, brought in any of the courts of this commonwealth, or before any of the justices of the peace or aldermen thereof, the defendant or defendants therein shall have the right, at any time before trial in court, to make to the plaintiff or plain- tiffs a tender of lawful money, equal to the amount he or they shall admit to be due, with all lawful costs incurred in said action, up to the date of making such tender ; and if the party to whom such tender shall be made, refuses to accept the same, then, in the event of the plaintiff or plaintiffs failing to recover more than the principal sum so tendered, with legal interest thereon, he or they shall pay all the costs legally incurred in the said action, after the time of such tender: provided that the said defendant or defendants shall be required to keep up such tender, at every trial of the action, and may pay the money into court, on leave obtained, but shall not be required to preserve or pay in the identical money originally tendered." § 501. A mere offer to pay money is not, in legal strictness, a tender, and of a legal tender, the defendant is not entitled to take advantage, ' See Hoffman v. MoBride, 2 Miles 24. win, 4 Price 64. 2 3 Bl. Com. 303. 6 1 Sm. L. 49 ; Purd. 487. ' Lawes Plead. 124. « 12 March 1867, P. L. 35 ; Purd. * Garrow, B., in Broadhurst v. Bald- 1395. PAYMENT INTO COURT. 277 unless he plead it, and bring money into court.' No tender is a sub- stantial one but a legal tender, and the only effect of a tender and refusal, where the plaintiff has a direct cause of action, is to expose him to the loss of the costs, if the defendant plead the tender, and bring the money into court.^ Gold and silver coin, and United States treasury notes are the only legal tender ; but where current bank- notes are tendered, and the plaintiff makes no objection to the tender on that account, but refuses it on another, the proffered notes will be considered as an equitable tender, in the courts of Pennsylvania.^ It is necessary, that the difference between a tender before and after suit brought should be always adverted to ; for, in the latter case, the costs must be paid up to the time of paying the money into court; in the former, if the plaintiff do not recover beyond the tender, he loses all claim to costs. § 502. But, frequently, the defendant confesses one part of the com- plaint, by payment of money into court, and pleads to the residue of it, which is, for the most part, necessary, upon pleading a tender, and is of itself a kind of tender to the plaintiff, by paying into the hands of the proper officer of the court, as much as the defendant acknowledges to be due, together with the costs hitherto incurred, in order to prevent the expense of any further proceedings. This may be done upon motion.* The practice of bringing money into court is said to have been intro- duced, to avoid the hazard and difficulty of pleading a tender.^ " The only payment by which a party is bound," says Mr. Justice Buller, in Malcom v. Fullarton,^ " is that which is made into court ; that is a pay- ment of record, and the party can never recover it back again, though it afterwards appear that he paid it wrongfully ; but that does not extend to payments between party and party."' This " difficulty and hazard" would seem to attend rather the proving of a tender, and a legal tender, too, than the pleading of one ; for, as there is no complexity or intri- cacy in the construction of such a plea, it is not easy to see how the mere pleading of it can be difficult or hazardous. But the tender must be proved as any other fact ; while the paying of money into court, which is tantamount to a tender, is a fact that proves itself. And when a tender is proved as a fact, a question may arise as to its being a legal tender : as, whether the kind of money tendered were proper and sufficient ; whether, when bank-notes are offered, the party waived his objection to the tender not being in coin ; whether the defendant did not impose lerms on his antagonist (such as the giving of a receipt in full), which destroyed the validity of the tender ; whether the tender were made on ' Sheredine v. Gaul, 2 Dall. 190. A tender to a bank, in its own notes, Seibert v. Kline, 1 Penn. St. 38. Wil- is a legal one. Northampton Bank v. liams V. Bentley, 27 Ibid. 301. Balliet, 8 W. & S. 311. 2 Cornell v. Green, 10 S. & R. 14. » 3 Bl. Com. 301. ' Decamp v. Feay, 5 S. & R. 323. * ^idd 619. Brown v. Dysinger, 1 Rawie 408. Ap- « 2 T. R. 648 pleton V. Donaldson, 3 Penn. St. 381. ' McDonald v. Todd, 1 Gr. 18. 278 PAYMENT INTO COUET. behalf of the defendant ; and finally, whether the plaintiff refused the tender which his antagonist has set up.^ § 503. The practice of bringing money into court, is allowed, as a general rule, in cases where an action is brought upon contract, for the recovery of a debt, which is either certain or capable of being ascer- tained by mere computation, without leaving any other sort of discre- tion to be exercised by the jury.^ In these cases, when the dispute is not, whether anything, but how much is due to the plaintiff, the defend- ant may have leave to bring into court any sum of money he thints fit f and where there are several counts or breaches in the declaration, and the defendant may bring money into court as to some of them, but not as to others, he may obtain a rule for bringing it in specially, upon some of the counts or breaches only.* Where, however, the action is for a tort, or for general unliquidated damages, it cannot be allowed.' § 504. Bringing money into court is an acknowledgment of the right of action, to the amount of the sum brought in,^ which the plaintiff is entitled to receive, at all events, whether he proceed in the action or not, and even though he be nonsuited, or have a verdict against him ; and being an acknowledgment of record, the party can never recover it back again, though it afterwards appear that he paid it wrongfully.' A defendant cannot take advantage of a tender, unless he pleads it and pays the money into court, with the costs to that time.* But beyond the amount of the sum brought in, bringing money into court is no acknow- ^ Cheminant v. Thornton, 2 C. & P. ° Johnston v. Columbian Insurance 50. Peacock v. Diokerson, Ibid. 51. Co., 7 Johns. 315. It is otherwise, in Harding v. Davis, Ibid. 77. If a creditor case of a scire facias on a mortgage ; the remove to another state, the debtor is mortgagee may pay money into court, not bound to follow him to make a ten- have satisfaction entered, and there- der. AUahouse v. Ramsay, 6 Whart. after contest the right of the mortgagee 331. to the amount so paid in. Act 3 April 2 Hallet V. East India Co., 2 Burr. 1851, § 14, P. L. 871 ; Purd. 481. 1120. ' If a defendant pay money into ' Tidd 619. court, on a plea of tender, it is an a^- * Ibid. 621. And see 2 Arch. Pr. 182. mission that so much is due, and though ^ McArthur v. McRean, Dist. Court, there be a subsequent award for a less Phila., 21 Feb. 1852. Why defendant sum, this is simply a finding against should not have leave to pay money the tender ; the plaintiff, in such case, into court. Per curiam. In assumpsit is entitled to the sum paid in, and re- or covenant for the payment of money, covers his costs. Berkheimer v. Geise, the defendant may bring money into 82 Penn. St. 64. This old rule of the court ; but in an action for general common law has been swept away by damages upon a contract, or for a a recent decision of the English court tort, as a tender cannot be pleaded, so of appeal, in Berden v. Greenwood. the defendant is not allowed to bring See 10 Chicago L. News 351. money into court. Tidd 619, 620. This » Sheredine v. Gaul, 2 Ball. 190. general principle is well settled. It Harvey v. Hackley, 6 Watts 2C5. And was stated in the argument, that this see Seibert c. Kline, 1 Penn. St. 38. was an action for general unliquidated In replevin, where there has been a damages ; we were not furnished, how- prior tender of the rent due, the plain- ever, with a copy of the narr. ; and all tiff need not bring the money into that we can do, therefore, is to dismiss court. Whitehead w.Jones, Dist. Court, the rule. Phila., 31 March 1849. MS. PAYMENT INTO COURT. 279 ledgment of tlie right of action f- and, therefore, if the plaintiff proceed further, it is at his peril. If he proceed to trial otherwise than for the non-payment of costs, and do not prove more to be due to him than the sum brought in, he shall be nonsuited or have a verdict against him, and pay costs to the defendant f but if more appear to be due to him, he shall have a verdict for the overplus and costs.^ § 505. The payment of money into court on several general counts, one of which only is applicable to the plaintiff"s demand, admits a right of action on that count only.* It must be observed, too, that where the declaration is on a special contract, payment of money into court, gener- ally, admits the contract, and is conclusive on the defendant ; such pay- ment is an acknowledgment of the specialties of the declaration, and an admission of the plaintiff''s right to recover such amount, at least, upon the contract he has set forth." A voluntary payment into court by the garnishee of a debt or claim which has been attached in his hands, is no discharge ; it is without authority of law, and equivalent to. a payment to the original creditor.^ § 506. It used to be thought, that the plaintiff cannot become volun- tarily nonsuit, after a plea of tender, sufficient to cover the debt proved on the trial; otherwise, he might take the money out of court, and renew the action, with a view to adduce additional testimony / but such is not now the law, it being held, that, under such circumstances, the plaintiff" may become nonsuit.* Though after the payment of money into court the defendant can never afterwards take it out, even though it were paid by mistake,^ yet, the court, it should seem, if the • plaintiff failed in his action, and the money had not been already taken out of court by him, would impound it to answer the defendant's costs.^" And a payment into court, under a plea of tender, by one of several joint defendants, is a payment for all, and the money may be impounded, in such case, for the costs of all." § 507. In a case in the supreme court, it appeared, that under a mis- take as to the amount of the debts against an estate, money was lent on ' Elliott V. Lycoming County Mutual it out, but not in satisfaction, the court Insurance Co., 66 Penn. St. 22. Spald- cannot subsequently change its applioa- ing V. Vandercook, 2 Wend. 431. tion, on its appearing that the defend- ^ Pennypacker v. Umberger, 22 ant paid more on the second count than Penn. St. 495. Wheeler v. Woodward, he was liable for. Kead v. Mutual 66 Ibid. 158. Donnell v. Columbian Safety Insurance Co., 3 Sand. 54. Insurance Co.,. 2 Sum. 366. Bank of " Broadhurst v. Baldwin, 4 Price 58. Columbia v. Southerland, 3 Cow. 336. " Daly v. Derringer, 1 Phila. 324. ' Tidd 627. In New York, it has And see Baldy v. Brady, 15 Penn. St. been ruled, that if a payment into court 103. Goepp's Appeal, Ibid. 427. be insufficient, there must be a verdict ' Lewis v. Culbertson, 11 S. & R. 60. for the whole demand ; but the defend- ' McCredy v. Fey, 7 Watts 496, ant is entitled to a credit on the execu- 498. tion Dakin v. Banning, 7 Hill 30. ' Vaughan v. Barnes, 2 Bos. & Pul. * Stafford V. Clark, 2 Bing. 377. 392. Malcolm v. Fullarton, 2 T. R. Where money is paid into court on 645. several counts, each claiming a distinct '" Jenkins v. Cutchens, 2 Miles 65. cause of action, and the plaintiff takes " Ibid. 280 PAYMENT INTO COUET. bond and mortgage, by a third person, to one of the heirs, who had taken the real estate at the valuation, and entered into a recognisance for the payment of the distributive shares of his co-heirs, the mortgage being given on such real estate, and a part of the mortgage-money was paid into court to the use of one of the heirs, a married woman ; the whole of the estate was subsequently sold to pay after-accruing debts of the decedent, and the mortgagor became insolvent : it was held, that the party to whose use the money was paid into court, not being entitled by law to take it out, it should be decreed to the mortgagor, unless he had made fraudulent representations as to the solvency of the estate to the mortgagee, ignorant of the facts, in which case, the latter would be enti- tled to follow the money as though surreptitiously obtained.' § 508. In an action of ejectment by a vendor, to compel specific per- formance of a contract for the sale of land, where there has been a tender of the purchase-money, the defendant may bring the money into court, and entitle himself to costs, even, perhaps, without pleading the tender.^ And where ejectment is brought to enforce specific performance, or to execute a trust, the money to be pai 1 by the plaintiff must be brought into court on the trial.^ § 509. In order to entitle himself to costs, the defendant must not only have, tendered the amount, but also have obtained a rule to pay it into court ; otherwise, such a payment is irregular, and not to be recognised ;* and hence, where, on a plea of tender, and other pleas, there was a ver- dict for the defendant, " the plaintiff to receive $26, tendered before suit brought, and now in court," but no rule of court appeared for the pur- pose, and the plaintiff took the money out of court, judgment was entered for the defendant, without costs.* ' Goepp's Appeal, 15 Penn. St. 421. The court will not make an order for ^ Cornell v. Green, 10 S. & R. 17 ; the payment of any particular kind of Gibson, J. money, on a plea of tender. Stokes v. ' Peebles v. Beading, 8 S. & R. 484. Harrison, 2 W. N. C. 382. See Shelby See Diermond v. Robinson, 2 Yeates u. Boyd 3 Yeates 321. When money is 329. SmuU v. Jones, 1 W. & S. 128. paid into court, in gold, the prothono- The court may order money paid into tary becomes an involuntary deposita- court, to be invested pendente lite. Act ry ; he is only bound to ordinary care in 25 May 1878, P. L. 156 ; Purd. 2153. taking charge of it, and may pay it in * Baker v. Hunt, 1 Wend. 103. And legal-tender notes. Aurentz v. Porter, see Tompkins v. Woodford, 1 Penn. St. 56 Penn. St. 115. See Rule xxiii. of 156. Wells V. Baird, 3 Ibid; 351. the courts of common pleas, as to the * Harvey v. Hackley, 6 Watts 264. custody of money paid into court. CHAPTER XVI. Of Pleas. I. Op dilatory pleas, | 512. Timeof fiUng, §512. Affidavit thereto, § 512. Pleas to the jm-isdiction, ^513. Pleas in suspension of the action, ^514. Pleas in abatement of the writ, §515-6. Pleas in abatement to the person of the plaintitt', § 517. Pleas in abatement to the person of the defendant, § 518. Practice on a plea in abatement, 1519. Judgment, § 520. II. Of peremptoet pleas ok pleas in BAR, §521. Peremptory pleas in general, | 521. Time and mode of pleading, § 522. Traverse, § 523. Demm-rer, § 524. Issue, §525-7. General issue, § 528. Special issues, §529-31. Non assumpsit, § 532. Non est factum, nil debet, and cov- enants performed, § 533. Nul tiel record, § 534-5. Covenants performed, § 536-7. Nil debet, § 538. Payment, &c., § 539-42 Not guilty, non detinet, non ccpit, &c., 543-4. Special matter and set-off, § 545. Defalcation act, § 546. Notice of special matter, § 547-9. What claims may be set off, § 550. Character of the parties, § 551. Practice as to set-off, § 552. Double pleas, § 553. Plea of attachment, § 554. Short pleadings, § 555. Sti'iking off, adding, or altering pleas, § 556-9. When a plea must be supported by affidavit, § 560. § 510. The plaintiff having declared, and every precautionary mea- sure in proceedings between the declaration and plea being first taken, it is for the defendant to determine the manner of his defence. For this purpose, he considers whether, on the face of the declaration, and sup- posing the facts to be true, the plaintiff appears to be entitled, in point of law, to the redress he seeks, and in the form of action which he has chosen. K he appears to be not so entitled in point of law, and this by defect either in the substance or the form of the declaration, that is, as disclosing a case insufficient on the merits, or as framed in violation of any of the rules of pleading, the defendant is entitled to except to the declaration on such ground ; in so doing, he is said to demur ; and this kind of objection is called a demurrer. If the defendant do not demur, his only alternative method of defence is, to oppose or answer the declaration by matter of fact ; in doing so, he is said to plead (by way of distinction from demurring), and the answer of fact, so made, is called the plea. § 511. Pleas are divided into pleas dilatory and peremptory ; and this is the most general division to which they are subject. Subordinate to this is another division — pleas to the jurisdiction of the court; pleas in suspension of the action ; pleas in abatement of the writ ; and pleas in (281) 282 PLEAS. bar — the first three belong to the dilatory class ; . the last is peremptory. In the following sections we shall consider so much of the nature of these pleas as is connected with their use in practice. I. Of dilatory pleas. § 512. It is provided by rule of court/ that no dilatory plea shall be received, unless the same be filed within four days from the service of ■ the copy of the declaration on the defendant; nor, unless the defendant offering such plea do, by affidavit, prove the truth thereof, or show some probable matter to the court to induce them to believe that the fact of such dilatory plea is true. § 613. Fleas to the jurisdiction. As our courts of common pleas have general jurisdiction in all civil cases, without regard to the amount in controversy, and we have no exempt jurisdictions, as in England, pleas to the jurisdiction have no further place in our system. If the federal courts have exclusive jurisdiction of the subject-matter, or if the subject- matter of the action be a local one, the objection goes to the judicial power of the court, and may be taken advantage of, in any stage of the cause, even on appeal. A want of jurisdiction of the subject-matter is an inherent and incurable defect, which cannot be waived by any acqui- escence of the parties. § 514. Pleas in suspension of the action. The number of these pleas is small ; and the necessity of them can seldom arise in this state ; consequeutly, they are not known in its practice. Among them is the nonage or infancy of either of the parties in a real action ; or the infancy of the defendant, in a personal action against him as heir of a deceased ancestor. § 515. Fleas in abatement of the writ, A plea in abatement of the writ is one that is founded on an objection to the writ itself; as, that in an action on a joint contract, it does not name, as defendants, all the joint-contractors, but omits one or more of them ; this is an objection that can only be taken by plea in abatement.^ In an action against the heirs of a decedent, the non-joinder of one of them, can only be pleaded in abatement.^ And where a partner in a known ostensible firm, purchases goods for the firm, and the transaction is within the scope of his authority, he may, when sued alone, plead in abatement, the non- joinder of his copartner.^ But in order to take advantage of the non-joinder of a partner, the partnership must be registered, pursuant to the statute f otherwise, of a foreign partnership.* A garnishee in for- eign attachment cannot plead in abatement of the scire facias, that another person is jointly liable with him to the original defendant.^ And, ' Rule xxviii. i 97. 78 Ibid. 423. 2 Wilkins v. Boyoe, 3 "Watta 39. ' Schwartz's Estate, 14 Penn. St. Murphy v. Cress, 2 Whart. 33. Grubb 42. V. Foltz, 4 W. & S. 548. Bellas v. * Alexander v. McGinn, 3 Watts 220. Fagely, 19 Penn. St. 273. Good Intent ' Pleasant Valley Wine Co. v. Wil- Co. V. Hartzell, 22 Ibid. 277. Potter u. son, 1 W. N. C. 5. McCoy, 26 Ibid. 458. Means v. MilH- « Shumway v. Chrisman, 2 W. N. ken, 33 Ibid. 617. Chorpenning v. C. 65. Royoe, 58 Ibid. 474. Collins v. Smith, ' Brealsford v. Meade, 1 Yeates 488. DILATOEY PLEAS. 283 where the defendants have, in one action, abated the suit, by pleading the non-joinder of other persons jointly liable, a similar plea will not be allowed in a second suit, though put in by defendants who were not parties to the first.'' § 516. Another plea of like character is that of lis pendens. The defendant may plead in abatement the pendency of another suit, for the same cause of action, in the same or another tribunal ; but such plea must aver that the former suit remains depending and undetermined, at the time of plea pleaded f and the plaintiff may discontinue the former suit, after plea pleaded, and reply that no such action is pending. In a gui tarn action, the pendency of a former suit for the recovery of the same penalty, may be pleaded in bar.* A misnomer of the plaintiff or defendant, may also be pleaded in abatement of the writ f but in case of the insertion of an erroneous initial in the defendant's name, the plaintiff may declare against him, by his true name, without an amend- ment f and after an amendment allowed, the original misnomer cannot be pleaded, though the record be not actually amended.' § 517. Pleas in abatement to tlie person of the plaintiff are, either that he is dead before suit brought f or that he is a fictitious person,^ or an alien enemy ;^'' but if such plea be put in puis darrien continuance, the subse- quent restoration of peace' may be replied." An objection that the plaintiffs, suing as executors, are not executors, may be taken by plea in abatement ;'^ so, it may be pleaded that their alleged testator is in full life.'^ In an action by a corporation, the plea of mil tiel corporation is in bar, not in abatement.'* That the plaintiff is a feme covert, and sues without joining her husband, is a good plea in abatement ;'° and if such coverture go to the disability of the plaintiff to contract, it may be pleaded in bar.'^ ' Witmer v. Schlatter, 15 S. & R. any erasure or alteration of the record 150: see s. c. Rawle 359. of the court; the entry of the allow- '' Toland v. Tichenor, 3 Rawle 320. ance of the amendment is all that is ' Findlay v. Keim, 62 Penn. St. necessary, and the amendment is con- 112. sidered as actually made accordingly. * Balnea v. Blackbourne, Sayer 216. Rule absolute. 5 Whittier v. Gould, 8 Watts 485. ^ Sandback v. Quigley, 8 Watts 460. ' Hartshorne v. Mercer, 3 Clark 505. Patterson v. Brindle, 9 Ibid. 98. ' Owen V. Hackney, Dist. Court, ' Campbell v. Galbreath, 5 Watts Phila., 20 May 1848. Why the plea. 423. Doe v. Penfield, 19 Johns. 308. in abatement should not be stricken off. " Russel v. Skipwith, 6 Binn. 241. Per curiam. In this case, the defend- '' Russel v. Skipwith, 1 h. & R. 310. ant was sued by the name of J. N. " Childress v. Emory, 8 Wheat. 642. Hackney ; he filed an afidavit of de- Kane v. Paul, 14 Pet. 33. Thomas fence, that his name was Joseph N. v. Cameron, 16 Wend. 579. Varick v. Hackney ; under the act of 16th April Bodine, 3 Hill 444. 1846, the court allowed the record " Hummel v. Brown, 24 Penn. St. to be amended ; no actual alteration 310. was made in the narr., however, and " Northumberland County Bank v. the plaintiff pleaded the matter of his Ever, 60 Penn. St. 436. affidavit in abatement. No actual al- " Perry v. Boileau, 10 S. & R. 208. teration of the record was necessary ; Ranffler v. Hummel, 37 Penn. St. 130. nor is it proper, that there should be " Steer v. Steer, 14 S. & R. 379. 284 PLEAS. § 518. Pleats in abatement to the person of the defendant are, either that he is privileged, or that he is an infant.* So, a married woman may plead her coverture in abatement ; and even since the act of 1848, if the plaintiff declare generally, the plea of coverture is primd facie a bar ; if he intend to charge her separate estate, he must, either in his declara- tion or replication, set forth such facts as bring the case within some one of the exceptions of the act.^ § 519. The actual power of using these pleas in abatement, has been much curtailed, by the modern rule, that oyer shall not be granted of the original writ ;' and the effect of them has been still further abridged, by the recent statutes of amendments. A plea in abatement cannot be joined with one in bar ;^ in such case, the former will be stricken off;' nor can a plea in abatement be put in, after pleas in bar, unless under special circumstances, of which the court must judge ;^ so, the putting in a plea in bar, is a waiver of a pending plea in abatement.' But a plea to the further maintenance of the action, may be put in, after the general issue f as, in a suit on a mechanic's claim, that since the issuing ^ In an action on a judgment con- fessed before a justice, the defendant may interpose the defence of infancy, at the time such judgment was ob- tained. Etter V. Curtis, 7 W. & S. 170. The defence of infancy may be inter- posed to an 'action of tort, whenever the tort is founded on a contract, and an action ex contractu would have been maintainable. Penrose v. Curren, 3 Rawle 351. Doran v. Smith, 26 Am. L. Reg. 42. ^ Murray v. Keyes, 35 Penn. St. 384. Imhoff V. Brown, 30 Ibid. 504. Park V. Kleeber, 37 Ibid. 251. Berger v. Clark, 79 Ibid. 340. ' Hinckley v. Smith, 4 Watts 433. * Lindsley c.'Malone, 23 Penn. St. 24. Reimer v. Philadelphia, 5 W. N. C. 449. ^ Maitlaud v. McGonigle, Dist. Court, Phila., 30 Sept. 1848. Why defendant's plea should not be stricken off. Per curiam. When the court opened the judgment in this case, they decided that the defence of presumption of payment from the lapse of time, was (like the statute of limitations) a de- fence upon the merits. Had their at- tention been called to it, they certainly would have placed this defendant upon the terms of not pleading the death of one of the defendants, in abatement. The court have the power, no doubt, of still 80 modifying their former order ; but it is not necessary to exercise it, in this case. The defendant has pleaded the death of his co-defendant in abate- ment, together with non assumpsit and payment — pleas in bar. It is perfectly clear, that a plea in abatement cannot be pleaded at the same time with a plea in bar. 1 Bac. Abr. tit. "Abate- ment," A. If issue be taken upon a plea in abatement, and it is found for plaintiff, the jury proceed at once to assess the damages, without an inquiry into the merits ; it is the first penalty which the law annexes to a false dila- tory plea. On the other hand, a ver- dict for defendant ends the case. It is evident, then, that a plea in bar is in- congruous and inconsistent with a plea in abatement, and the plaintiff may elect which he will have stricken off. The supreme court of the state of New York has refused to permit the general issue to be withdrawn, to let in a plea of coverture in abatement, though the defendant swore that the general issue was pleaded, without his knowledge, by a person whom he never meant to re- tain as attorney. Anon., 3 Caines 102. Nor is the power of our courts affected, in this respect, by the 6th section of the act of 21st March 1806, which was only intended to compel the allowance of amendments of infor- malities affecting the merits of the cause in controversy. Rule absolute. « Riddle v. Stevens, 2 S. & R. 537. Good Intent Co. v. Hartzell, 22 Penn. St. 277. Green v. North Buffalo, 56 Ibid. 110. ' Potter w. McCoy, 26 Penn. St. 458. ' Folwell V. Norwell, Dist^ Court, DILATORY PLEAS. 285 of the writ, the premises have been sold under judicial process, and tho lieu thereby divested ;' or that, pending the proceedings, the building has been destroyed by fire.^ A plea in abatement, if pleaded out of time, may be stricken ofi'; but not merely for insufficiency ; and if matter in abatement be pleaded, in form, in bar of the action, the plaintiff must demur.^ A plea in abatement must give the plaintiff a better writ.'' § 520. After a plea in abatement, if it be sufficient in form, and the plaintiff cannot contest the facts which it alleges, he may discontinue, on payment of costs ; otherwise, he must reply or demur. If he reply, and take issue upon the plea, and it be found in his favor, the judgment is final for the plaintiff, that he recover,^ and the jury ought to assess the damages •] if he demur to the defendant's plea,* or the defendant demur to the plaintiff's replication,' and the issue in law be, in either case, decided in favor of the plaintiff, the judgment quad respondeat mtster, that he (the defendant) answer over, only is awarded. On a plea in abatement, that one of the defendants was dead, when the writ issued, the judgment is respondeat ouster}" After judgment of respondeat ouster, the defendant may be ruled de novo, within the time indicated by the rule of court, or within such shorter time as the court (who are not bound by their rule) may prescribe, on application. The defendant can have no other judgment than that the writ be quashed.^' n. Of peremptory pleas or pleas in bar. § 521. Peremptory pleas. A peremptory plea, or plea in bar of the action, may be defined as one which shows some ground for barring or defeating the action ; and makes prayer to that eflect. A plea in bar is, therefore, distinguished from all pleas of the dilatory class, as impugn- ing the right of action altogether, instead of merely tending to divert the proceedings to another jurisdiction, or to abate the particular writ ; it is, in short, a substantial and conclusive answer to the action. It follows Phila., 30 Dec. 1848. Why the plea And see Brownfield w. Braddee, 9 Watts should not be stricken off. Per curiam. 149. In this case, after the action was com- " Presbyterian Church v. Stettler, 26 menced, and before the declaration was Penn. St. 246. filed, a foreign attachment was com- ' Ralph v. Brown, 3 W. & S. 39.5. menced against the plaintiff, and the And see Beitler v. Study, 10 Penn. St. defendant was served as garnishee. 418. Stoekle v. Stoekle, 2 W. N. C. Defendant has pleaded it, not in abate- 534. ment, which it is not, because there * Maohette B. Musgrave, 1 Phila. 186. was no disability to sue when the suit ^ Witmer v. Schlatter, 15 S. & R. was brought, nor in bar, generally, 150. Evans v. Stevens, 4 T. R. 227. because the mere pendency of a foreign ° 2 Saund. 210, note 3. attachment cannot be pleaded in bar; ' Mehaffy v. Share, 2 P. & W. 361. but he has pleaded it in bar to the fur- Hollingsworth v. Duane, Wall. 57-8. ther maintenance of the suit. It ap- ^ 2 Saund. 210, note 3. pears to us that, according to the case ' 1 East 542. of Le Brett v. Papillon, 4 East 502, " MoCabe v. United States, 4 Watts that is the proper mode of pleading in 325. such cases. Rule discharged. " Blackburn v. Watson, 85 Penn. St. 1 Johns V. Bolton, 12 Penn. St. 339. 241. 286 PLEAS. from this property, that, in general, it must either deny all, or some essen- tial part, of the averment of facts in the declaration, or, admitting them to be true, allege new facts, which obviate or repel their legal effect. In the first case, the defendant is said, in the language of pleading, to tra- verse, that is, deny, the matter of the declaration ; in the latter to confess and avoid it. Pleas in bar are, consequently, divided into pleas by way of traverse, and pleas by way of confession and avoidance. § 522. The defendant, as we have seen,' may be ruled to plead in eight days, under the penalty of judgment by nil dieit for want of a plea.^ And where a statement is filed in lieu of a declaration, under the act of 1806, unless the defendant appear at the second term and make defence, judgment may be entered against him, without a rule to plead ; in such case, he is presumed not to gainsay the plaintiff's demand, but to confess it.^ The time and manner of appearing, pleading and signing judg- ment for want of a plea, &c., are matters of practice regulated by the rules of the various courts, and irregularities therein must be sought to be remedied by application to the court, whose rules of practice have been violated, as soon as the complainant has notice of the injury.* § 523. If the defendant plead in bar to the declaration, by way of traverse, a question is at once raised between the parties, and it is a ques- tion of fact, viz., whether the facts in the declaration, which the traverse denies, be true. A question being thus raised, or, in other words, the parties having arrived at a specific point or matter, affirmed on the oue side and denied on the other, the defendant is, in general, obliged to offer to refer this question to some mode of trial, and does this, by annexing to the traverse an appropriate formula proposing either a trial by the country {i. e. by a jury), or such other method of decision as by law belongs to the particular point. If this be accepted by his adversary, the parties are then said to be at issue, and the question itself is called the issue. Consequently, the party who thus traverses, annexing such formula, is said to tender issue, and the issue so tendered, is called an issue in fact. This practice, it will be observed, is that which is pursued in England, and would be regular here ; though it is by no means actu- ally adopted ; for, as will be subsequently shown, the defendant, on pleading a general plea, may merely plead the plea by name, thus : " defendant pleads non assumpsit," or, " non culpahilis," without tendering issue, and the prothonotary is then authorized by rule of court, to put the cause at issue ; or the defendant may simply add to the above plea " and issue " without, as in England,- traversing at length and annexing & formula proposing a trial by jury. But though it is not usual to con- ' Ante, ^394. strument of writing, a copy of which ^ See Shafifer t)..Brobpt, 9 S. &R. 85. has been filed, withm two weeks from ' Boaz V. Heister, 6 S. & R. 18. The the return-day, the plea must be aooom- form of action prescribed by the act of panied by an affidavit, denying the 1806, may be pursued or not, at the execution thereof; otherwise, it is election of the plaintiff. Miles v. taken to be admitted. Rulei. |1. And O'Hara, 1 S. & R. 32. in suits by or against partners, tlie part * Crosby v. Massey, 1 P. & W. 231. nership must be traversed on oath, or Where the suit is brought upon an in- it is deemed admitted. Ibid. 1 2. PLEAS IN BAE. 287 elude pleas to the country or to the court, the court will direct them to be put into legal form, if the. plaintiff require it.^ § 524. If, instead of traversing, the defendant demur, a question of law is raised, whether the declaration be sufficient, in point of law, to maintain the action, which is referred to the judgment of the court ; and as the plaintiff cannot object to this question, he is obliged to accept or join in the issue in law, which is tendered by a set form of words, called a joinder in demurrer. But the tender of the issue in fact is not neces- sarily accepted by the plaintiff; for, first, he may consider the traverse itself as insufficient in law. It must be understood that, by the traverse, the defendant may deny either the whole or a part of the declaration ; and, in the latter case, the traverse may, in the opinion of the plaintiff, be so framed as to involve a part immaterial or insufficient to decide the action. Again, he may consider the traverse as defective in point of form, and object to its sufficiency in law on that ground ; so, in his opinion, the mode of trial proposed, may, in point of law, be inapplicable to the particular kind of issue. On such grounds, therefore, he has an option to demur to the traverse, as insufficient in law. The effect of this demurrer, however, would only be to postpone the acceptance of issue by a single stage ; for, by the demurrer, he tenders an issue in law, and his adversary would be obliged to join in demurrer, that is, to accept the issue in law, in the next pleading. On the other hand, supposing a demurrer not to be adopted, the alternative course will be, to accept the tendered issue of fact, and also the mode of trial which the traverse pro- poses ; and this is done (in case of trial by jury) by a set form of words, called a joinder in issue, or a similiter; that is, the defendant having put himself upon the country, the plaintiff doth the like. The issue in law or fact being thus tendered, and accepted on the other side, the parties are at issue, and the pleading is at an end.^ § 525. The making up of issue and the settling of the record, is, in our practice, simple, when compared with that prevailing in England. Thus, to exhibit a common example, when the declaration is drawn (suppose it to be in debt on a bond), the plaintiff's attorney may file it, and lay a rule to plead ; or, before filing it, may take it to the attorney for the defendant, and request him to plead to it. If the latter will give a plea, he may indorse the plea on the declaration ; thus, if the plea be pay- ment, " the defendant pleads payment," and then signs it for the defend- ant. The former then indorses his replication under this plea, thus : " the plaintiff replies non solvit, and issue," which he likewise signs as attorney for the plaintiff. These pleadings are then filed by him in the prothonotary's office, the cause goes on to trial in due time, at which this record is alone produced.^ It may sometimes happen, that even this short form of pleading is not observed, and a plea may have been put 1 Share v. Becker, 8 S. & R. 241. holder, 7 S. & R. 228. Carl o. Com- 2 Steph. Plead. 55-7. monwealth, 9 Ibid. 63. Roth i\ Miller, ' The words " and issue," are deemed 15 Ibid. 100. And see Brown v. Bar- a direction to the prothonotary to enter nett, 2 Binn. 33. Dickey v. Schreider, a formal joinder. Hanna v. Burk- 3 S. & R. 413. 288 PLEAS. in, after the declaration lias been filed, which has not been replied to, and, of course, no joinder in issue entered ; but this will not retard the proceedings. Except where a special plea is drawn by counsel and filed, the plea is entered on the docket, which is, for many purposes, the record, in this state. § 526. A party cannot be compelled to try, until the cause is put into legal form, by an issue properly framed between all the parties on the record ; and if it be not at issue as to any one defendant, whose plea has been overruled by the court irregularly, it is error, to proceed to trial against him ; he does not thereby necessarily adopt the pleas of the other defendants.^ But the non-joinder of issue, discovered after trial, would not, in this state, be sufiicient to reverse a judgment, if the parties had gone on to trial, upon the presumption that it was joined, where the prothonotary is directed, by rule of court, to join issue, without preju- dice to the parties, after a plea is put in ; as they may, if they please, join issue in a different manner.^ And it is now settled, that after a trial on the merits, the supreme court will not reverse for want of a plea or issue.^ Notwithstanding this, however, it has never been supposed that a party can be compelled to try, until the cause is put into legal form, by an issue properly formed between the parties on the record. Where an objection is made, there is no room for presumption of any kind, and it would be against right and justice, to infer an agreement to waive form, in opposition to the protestation of the party against the trial f or, in his absence.'* There is no occasion, under the act of 1806, for a formal joinder of issue, where the cause goes to trial on the state- ment and counter-statement of the parties.* § 527. Issues, which may be divided into general and special, result from traverses, and these are of various kinds. The most ordinary kind is that which may be called a common traverse ; it consists of a tender of issue ; that is, of a denial, accompanied by a formal offer of the point denied for decision ; and the denial that it makes is by way of express contradiction, in terms, of the allegation traversed. § 528. Besides this, the common kind, there is a class of traverses both frequent and important in practice, which is that of the general issues. In most of the usual actions, there is an appropriate plea, fixed by ancient usage, as the proper method of traversing the declaration, in cases where the defendant means to deny the whole or the principal part of its allegations. This form of plea, or traverse, is called the general issue in that action; and it appears to be so called, because the issue that it tenders, involving the whole declaration, or the principal part of it, ' Bratton v. Mitchell, 5 Watts 69. St. 29. Clement u. Hayden, Ibid. 138. Roberts v. Williams, 5 Whart. 186. Barker v. McCreary, 66 Ibid. 162. Swanzey v. Parker, 59 Penn. St. 441. Jones v. Freyer, 3 W. N. C. 365. '' Jordan v. Cooper, 3 S. & R. 577. * Bratton v. Mitchell, 5 Watts 70; ' Sauerman v. Weckerly, 17 S. & R. Rogers, J. And see Maxwell v. Boltz- 116. Baxter » Graham, 5 Watts 418. hover, 9 Penn. St. 139. Jones V. Hartley, 3 Whart. 178. Hall ^ Ensly v. Wright, 3 Penn. St. 501. V. Law, 2 W. & S. 121. Glenn ». Cope- « Riddle v. Stevens, 2 S. & R. 544. land, Ibid. 261. Long v. Long,4Penil. Reed v. Pedan, 8 Ibid. 266. GENERAL ISSUE. 289 is of a more general and compreiieiisive kind from that usually tendered on a common traverse, and also differs from it somewhat in point of form ; for though, like the common traverse, it tenders issue, yet, in several instances, it does not contradict in terms of the allegation traversed, but in a more general form of expression. As, in personal actions, where the defendant pleads nil debet, that he owes the plaintiff nothing, or non culpabills, that he is not guilty of the facts alleged in the declaration. § 529. Other pleas are ordinarily distinguished from general issues by the appellation of special pleas ; and when resort is had to the latter kind, the party is said to plead specially, in opposition to pleading the general issue. So, the issues produced upon special pleas, as being usu- ally more specific and particular than those of not guilty, nil debet, &c., are sometimes described as special issues, by way of distinction from the others, which were called general issues ; the latter term having been afterwards applied, not only to the issues themselves, but to the pleas which tendered and produced them. § 530. Formerly, the general issue was seldom pleaded, except where the defendant meant wholly to deny the charge alleged against him ; for, when he meant to avoid or justify the charge, it was usual for him to set forth the particular ground of his defence in a special plea, which appears to have been necessary to apprise the court and the plaintiff of the par- ticular nature and circumstances of the defendant's case, and was origi- nally intended to keep the law and the fact distinct. And even now, as it is an invariable rule, that every defence which cannot be specially pleaded, may be given in evidence at the trial, upon the general issue ; so, the defendant is, in many cases, e. g., fraud in altering an instrument,' obliged to plead the particular circumstances of his defence specially, and cannot give them in evidence on that general plea.^ But the science of special pleading having been frequently perverted to the purposes of chicane and delay, the courts have, in some instances, and the legisla- ture in others, permitted the general issue to be pleaded, and special matter to be given in evidence under it, at the trial; which at once includes the facts, the equity and the law of the case.^ § 531. It is a rule in pleading, that a special plea which amounts to the general issue, is bad ;* and such plea will be stricken off, where no real benefit is thereby obtained by the pleader.^ A plea amounts to the general issue, when it puts in issue specially one of the material facts alleged by the plaintiff, and which he must prove to entitle him to 1 Clark V. Partridge, 2 Penn. St. 13. * Strawn ?-. Park, 8 Leg. Int. 63. Renshaw v. Gans, 7 Ibid. 117. This case is defectively reported in 1 ■■^ But see Boomer v. Koon, 6 Hun Phila. 178. Stotesbury v. Insurance 64.5 ; and Schwartz v. Oppold, 56 How. Co., 9 Ibid. 210. In an action of de- Pr. 'l56- where it is held, that the ceit, a special plea which merely denies fraudulent alteration of a promissory facts stated as matter of inducement, note, after execution, may be shown will be stricken off. Keen v. Bockius, under the general issue. The plea of 6 W. N. C. 135. non assumpsit modo ei formd, of * McBride v. Duncan, 1 Whart. 269. course, involves the allegation, non in Patterson «. Clyde, 6 Phila. 391. Sei- hcec fced(n-d veni. denbach v. Lippmcott, 1 W. N. C, 388. s 3 Bi_ Com. 306. Nichuals v. Mills, 2 Ibid. 80.. VOL. I. — 19 290 PLEAS. recover ; but it is not the rule, that no facts which can be given in evi- dence under the general issue, can be specially pleaded -^ a special plea is not demurrable on that ground.^ Matters in discharge may be so pleaded, though admissible in evidence under the general issue :' thus, in assumpsit, a former recovery may be specially pleaded, though it may be given in evidence on the general issue ;* so also, in trespass quare clausum fregit, the defendant may plead liberum tenementum, though such defence may be given in evidence on the general issue of "not guilty." It does not follow, that because it may be given in evidence under the general issue, it cannot be pleaded specially ; in this respect it resem- bles the pleas of release, payment and others, which are admissible on rwn assumpsit, but yet do not amount to non assumpsit, and may be speci- ally pleaded.^ "But where justice may be fully attained without it; where special pleading involves the cause in prolixity and delay, with- out conferring any real benefit on him who resorts to it, the court ought, in the exercise of its legal discretion, and for the preveation of the evils that would result, to enforce the rule, that the defendant shall not plead specially what amounts to the general issue."" § 532. Non assumpsit. In assumpsit, the general issue is non assumpsit, under which the defendant may give in evidence everything (even a general release) which shows that the plaintiff has no right to recover, not- withstanding that no notice has been given, under the rule of the court.^ Under the plea of non assumpsit to a declaration for work and labor done, the defendant, without notice of special matter, may prove that the work was done in au unworkmanlike manner.' By this plea, says Judge Bell, the defendant puts his antagonist upon proving his whole case, and enti- tles himself to give in evidence anything which shows that, at the time the action was commenced, the plaintiff, ex cequo et bono, ought not to recover ; this is especially true of everything going to the consideration, which is the gist of the action.' In indebitatus assumpsit, the defendant may demand of the plaintiff to specify the nature of the evidence he means to offer ; and until this is done, the court will not suffer the plaintiff to bring on the trial.'" § 533. Kon est factum, nil debet, and covenants performed. In debt on specialty, and in covenant, the general issue is non est factum, which denies that the deed mentioned in the declaration is the deed of ' Strawn v. Park, 8 Leg. Int. 63. Marks, 4 Dall. 130. So may a former ' Bauer v. Roth, 4 Rawle 83. Leeds recovery. Carvill v. Garrigues, 5. Perm. ■0. Dedrick, 2 W. N. C. 427. St. i52. Finley v. Hanbest, 30 Ibid. ' Main v. Bayard, 8 Phila. 629. 190. And see Kennedy v. Ferris, 5 S. • Carvill v. Garrigues, 5 Penn. St. & R. 393. 153. Finley v. Hanbest, 30 Ibid. 190. " Gaw v. Woloott, 10 Penn. St. 43. ^ Fislier v. Morris, 5 Whart. 358, And see Beals v. See, Ibid. 56. Scott 360. V. Province, 1 Pitts. 189. " McBrideu. Duncan,! Whart. 274; » Ibid. And see Dawson v. Tibbs, Sergeant, J. See Milligan v. Linnard, 4 Yeates 349. Greenwalt v. Horner, 4 W. N. C. 508. 6 S. & R. 71. Von Storoh v. Griffin, 77 ^ Lyon V. Marclay, 1 Watts 271. Penn. St. 504. Infancy may be given in evidence un- " Kelly v. Foster, 2 Binn. 7. And der the general issue. Stansbury v. see Dunlap v. Miles, 4 Yeates 366. GENERAL ISSUE. 291 the defendant. Under this plea, the defendant, at the trial, may contend, either that he never executed such deed as alleged, or that its execution was absolutely void in law; as for example, on the ground that the alleged obligor or covenantor was a married woman or a lunatic ; but if the defendant's case consist of anything but the denial of the execu- tion of the deed, or some fact impeaching the validity of its execution, the plea will be improper.' Under a rule of court requiring the plea of non est factum to be verified, under oath, a plea without such affidavit is a nullity.'^ The plea of non est factum is a nullity, in an action of debt on simple contract.' Where interlineations or erasures appear in a bond, and the defendant would oblige the plaintifi" to show, before read- ing it in evidence, that they were made before execution, he ought to plead non est factum — nil debet admits the execution of the bond.^ In our practice, the most efficacious and frequent plea to a declaration in debt on a specialty, is that of payment, under which the same advan- tages, together with many more, may be had, as under the general issue of non est factum; as, under the plea of payment, with notice, it has been decided, that fraud in its execution may be given in evidence.^ § 534. In debt on matter of record, as a judgment, the general issue is nul tiel record, that there is no such record. This plea merely puts in issue the existence of the record, and, therefore, is only proper, where there is either no record at all, or one different from that which the plaintiff has declared on ; and any matter in discharge of the action, as payment or a release, must be specially pleaded.^ The general rule of law is, that a plea which contradicts a record is bad ; therefore, nil debet cannot be pleaded to a judgment ; and as a judgment rendered in another state, if a record there, must, under the constitution of the United States,' and the act of congress, have the same force and effect in the courts of this state,' it follows, that the only plea by which the existence of the record can be put in issue, is not nil debet, but nul tiel record.^ The effect of the act of 1851, on this point, will be considered in the second volume.'" § 535. Though non est factum is, in most cases, the general issue in debt on a specialty ; and nul tiel record, in debt on a record ; yet when the deed or the record is only inducement to the action, that is, introduc- ' Bradley v. Grosh, 8 Penn. St. 45. 83. See Association v. Maxwell, 1 "W. 2 McAdams v. Stilwell, 13 Penn. St. N. C. 222. 90. * Baring b. Shippen, 2 Binn. 154. ' Gebbart v. Francis, 32 Penn. St. And see Sharp v. United States, 4 78. Watts 21. * Zeigler v. Sprenkle, 7 W. & S. 175. « 1 Chit. PI. 481. Parkinson v. Parker, 85 Penn. St. 313. ' Art. IV. § 1. And see Barrington v. Bank of Wash- * Rev. Stat. | 905. ington, 14 S. . 2 Green v. Ferguson, 14 Johns. 389. Stewart, 63 Penn. St. 30. ' Bird V. Randall, 3 Burr. 1353. » gge Kerlin v. Heacock, 3 Binn. 215. ' Updegroveu. Zimmerman, 13 Penn. Fisher v. Johnson, 1 Bro. 197. St. 619. Smith v. Smith, 39 Ibid. 441. » Steph. Plead. 161-2. De Bidder Porter v. Botkins, 59 Ibid. 484. v. Rogers, 11 Johns. 33. Williams v. s 1 Chit. Plead. 490. And see Sylves- Welch, 5 Wend. 290. ter V. Girard, 4 Rawle 1 85. '" Cummings v. Gann, 52 Penn. St. • Co. Lit. 283 a. Detinue is an ao 484. Shuter v. Page, 11 Johns. 196. tion in form ex contractu not ex delicto. " Murray v. Paisley, 1 Yeates 197 Maynadier v. Duff, 4 Cr. C. C. 4. See Buckley v. Handy, 2 Miles 449. 296 PLEAS. § 545. Special matter and set-off. Besides tlie instances already mentioned, in which the defendant, under the rules of court, is allowed to give the special matter of his defence in evidence, under the general issue, on giving to the opposite party notice of the particulars of his defence, he is allowed, under a similar notice, to avail himself of debts and demands which he may have against the plaintiff, by way of set-off (which is in the nature of an action), or defalcation,' unless he prefer to plead it specially, when notice is not required.^ By rule of court, it is provided, that " where the defendant pleads a set-off, unless the matter be fully and specially set forth in the plea, or where he intends, under the plea of payment, to defalk his own account or claim against the plaintiff's demand,' or any part of it, he shall give a full and particular notice, in writing, of such intended set-off, at least ten days before the first day of the period for which the cause is set down for trial ; or he shall not be allowed to give in evidence, under such plea, any set-off, nor under such notice, any matter of set-off not therein particularly set forth."^ The rule that the allegata andprobata must agree, is as imperative in respect to notice of special matter, as it is when applied to formal special pleas.* § 546. It is enacted by the first section of the act of 1705,° that " if two or more persons, dealing together, be indebted to each other upon bonds, bills, bargains, promises, accounts or the like, and one of them commence an action in any court of this province, if the defendant can- not gainsay the deed, bargain or assumption upon which he is sued, it shall be lawful for such defendant to plead payment of all or part of the debt or sum demanded, and give any bond, bill, receipt, account or bar- gain in evidence ; and if it shall appear, that the defendant hath fully paid or satisfied the debt or sum demanded, the jury shall find for the defendant; and judgment shall be entered, that the plaintiff shall stake nothing by his writ, and shall pa}' the costs. And if it shall appear that any part of the sum demanded be paid, then so much as is found to be paid shall be defalked, and the plaintiff shall have judgment for the residue only, with costs of suit. But if it appear to the jury that the plaintiff is overpaid, then they shall give in their verdict for the defend- ant, and withal certify to the court how much they find the plaintiff to be indebted or in arrears to the defendant, more than will answer the debt or sum demanded ; and the sum or sums so certified shall be recorded with the verdict, and shall be deemed as a debt of record." ' Glazier v. Lowrie, 8 S. & R. 499. amend, on the trial, by putting in a spe- ' Berks County w. Ross, 3 Binn. 539. cial plea; subject to the plaintiff's Jacks V. Moore, 1 Yeates 391. And right to a continuance, in case of sur- see Boyd v. Thompson, 2 Ibid. 217. prise. Yost v. Eby, 23 Ponn. St. 327. The only effect of an omission to give Sharp v. Sharp, 13 S. & R. 444. The notice of special matter, is to confine allowance, however, of a special plea the party to proof of matters strictly of set-off, on the trial, is within the admissible under the general issue, discretion of the court ; it is not em- Moyer v. Fisher, 24 Penn. St. 513. braced by the act of 1806. Scott ». Daniel v. Wilver, Ibid. 516. But Kittanning Coal Co., 36 Leg. Int. 236. though the defendant have omitted to ' Rule xxviii. J 100. give notice of special matter, under the * Thomas v. Mann, 28 Penn. St. 520, plea of payment, with leave, he may ' 1 Sm. L. 49 ; Purd. 487. DEFALCATION. 297 The act of 1836^ provides, that the same right of set-off shall exist in favor of the trustees of insolvent debtors, where there are mutual accounts between the insolvent and his debtors, as in other cases.^ § 547. It will be observed, that the terms defalcation and set-off are used as convertible, in the present discussion, as, in all the cases on the subject they are generally used without discrimination ; and, therefore, it may be taken as a general rule, that the defendant has the same right and remedy under a plea of set-off, as under a plea of defalcation, except where the set-off is what the books denominate an equitable one, when he may defeat the plaintiff's claim, but can recover nothing from him.' The difference between the British and Pennsylvania defalcation sta- tutes is, that under the former, the defendant cannot have a verdict for the balance due him, as he may under the latter ; if, therefore, the .plaintiff fail to make out his claim, the defendant may still go on and establish his set-off, and take a verdict.* The tendency of the supreme court is to encourage the method of pleading provided for by the rules ; Gibson, C. J., in one case, going so far as to say, that policy requires that special pleading be abolished, and the general issue, with notice of special matter, substituted, as less cumbrous and better suited to the habits of the bar.^ § 548. Notice of special matter must be given, notwithstanding an agreement by an attorney employed by the plaintiff, for the purpose of attending at the taking of a deposition which contains the special mat- ter, that it may be read in evidence f notwithstanding an affidavit of defence has been filed, setting forth, in substance, the matter offered in evidence f and notwithstanding that the evidence offered to establish such matter has been given on a former trial of the cause before arbi- trators.* Neither a deposit of a formal notice of special matter in the office of the prothonotary, nor au informal suggestion in the pleadings, by reference to the affidavit of defence filed, is a compliance with the rule of court.' § 549. Certainty to a common intent is sufficient in a notice of special matter •'■'' but it should specify the main facts relied on, so as to give the opposite party an opportunity of examination and scrutiny.^' Under a 1 P. L. 735; Purd. 780. ' Sullivan v. Johns, 5 Whart. 366; ^ As to set-off before a justice of the Erwin «. Leibert, 5 W. & S. 103. Sim' peace, see § 7 of the act of 1810, 5 Sm. mens v. West, 2 Miles 196. Finlay v. L. 165 ; Purd. 854. Stewart, 56 Penn. St. 193 (1867). The ' See Morgan v. Bank of North contrary doctrine was held in Lycom America, 8 S. & R. 73. Glass v. Blair, ing Insurance Co. v. Hakes, 12 Leg. Int. 4 Penn. St. 196. 270 (1855) ; since recognised in Rod- * See Lewis v. Culbertson, 11 S. & gers v. Kichline, 28 Penn. St. 232 R. 59. By act 12 April 1848, i 12, P. (18.57). L. 537 ; Purd. 488, the defendant is en- * Beyer v. Penstermacher, 2 Whart. titled to judgment and execution upon 95. Rentzheimer v. Bush, 2 Penn. St. a verdict in his favor, without a, scire 88. Rodgers v. Kichline, 28 Ibid. 231. facias, as was required by the act of ' Erwin w Leibert, 5 W. & S. 103. 1705. '° Appleton v. Donaldson, 3 Penn. St. 5 Sherk v. Endress, 3 W. & S. 257. 381. s McClurg V. Willard, 5 Watts 275. " Moatz v. Knox, 11 Penn. St. 268. 298 PLEAS. general plea of fraud, the party may be compelled to specify the facts on which he relies to support it ;' and under a short plea of set-off, a specifica- tion of the items must be given.^ A notice of special matter may cure a defect in the declaration ;' and, if itself defective, the plaintiff may demur to it, as if it were a plea.* If the set-off is to be proved by the plaintiff's acknowledgment, it must be so expressed in the notice;' and where books and papers are produced on the trial, in answer to a call upon the plaintiff, the defendant cannot go into evidence of their contents, to prove a set-off, unless previous notice have been given.* To take advan- tage, on error, of the admission of evidence, of which no prior special notice was given, a specific objection to it must be taken on that ground.' In giving special notice, under the plea of payment, the distinction between notice of defalcation, and notice of an equitable defence, must ever be borne in mind ; the rules of court upon the subject are different, and the consequences are different, with respect to the right to have a verdict for a balance.' § 550. What claims may he set off. Mutual demands do not necessarily extinguish each other, by operation of law ; set-off is permis- sive, not compulsory.' And the recoupment of damages arising out of the same transaction is matter of equitable defence, not strictly of set- off.'" Under our statute, unliquidated damages, arising ex contractu, may be set off, whenever they are capable of liquidation by any known standard ; and the defendant may have a certificate of a balance in his favor," though such damages arise out of a distinct and independent contract.'^ In an action on a note, the maker may set off usurious interest taken in another transaction.'' A debt for which a verdict has been obtained may be set off;'* and a balance certified in favor of the defendant, in another suit between the parties ;" so may a debt which is in judgment.'* But a debt not due at the time of suit brought, can- ' Commonwealth v. Brenneman, 1 '" See Shaw u. Badger, 12 S.&K. 275. Rawle 311. See McDowell v. Mere- Hubler u. Tamney, 5 Watts 51. Pat- dith, 4 Whart. 311. terson v. Hulings, 10 Penn. St. 508. '' Rogers v. Old, 5 S. & R. 404. Hunt v. Gilmore, 59 Ibid. 450. * Priedly u. Scheetz, 9 S. & R. 156. " Carman!). Franklin Fire Insurance * Pulhamus v. Pursel, 2 Clark 141. Co., 6 W. & S. 155. Shoup v. Shoup, 15 Notice of special matter does not re- Penn. St. 361. Hunt ». Gilmore, 59 Ibid, quire the joinder of a formal issue. 450. Biswangor v. Stocker, 2 W. N. C. Bruner v. Gregg, 4 W. N. C. 368. 407. Stover v. Hotel Co., 3 Ibid. 156. ' Beatty v. Smith, 4 Yeates 102. '^ Ellmaker v. Franklin Fire Insur- « Latimer u. Hodgdon, 5 S. &R. 514. ance Co., 6 W. & S. 439. Speers v. In such case, the defendant's proper Sterrett, 29 Penn. St. 192. Half- course is, to file a special plea of set-off, penny v. Bell, 82 Ibid. 128. Domestic on the trial, which he may do, under Sewing-Machine Co. v. Saylor, 5 W. the recent decisions. N. C. 286. ' Rearioh v. Swinehart, 11 Penn. St. " Thomas v. Shoemaker, 6 "W. & S. 233. • 179. Brown v. Bank of Erie, 72 Penn. ' See supra, I 46, § 547. St. 209. Lucas f Bank of Pottsville, » I-Iimes V. Barnitz, 8 Watts 39. 78 Ibid. 228. Hinkley v. Walters, Ibid. 260 ; s. c. 9 '* Bell v. Cowgill, 1 Ash. 7. Ibid. itg. Carmalt v. Post, 8 Ibid. 406 ; '^ Galloney's-Appeal, 6 Penn. St. 37. s. 0. 2 W. & S. 70. " Metzgar v. Metzgar, 1 Rawle 227. SET-OFF. 299 not be set off;' nor a liability incurred, but which has not accrued.^ A cause of action, void by the statute of frauds, cannot be used as a set- off;' nor one barred by the statute of limitations, without evidence to take it out of the statute ;* nor an unsettled partnership account f nor a claim recoverable only by action of account, or bill in equity;^ nor profits, not realized J So, damages sounding in tort arising out of a dis- tinct transaction, cannot be defalked, under the plea of payment,^ unless the party has the election to waive the tort and sue in assumpsit.^ § 551. Character of the parties, A set-off is not allowable, unless the debts be due in the same right.^" In an action by A., a claim against A. and B., as partners, cannot be set off ;'^ but in an action by a surviving partner, for a firm debt, the defendant may set off a debt due to him by the plaintiff, in his individual capacity ;" where, however, an insolvent surviving partner has obtained judgment, and the state of the accounts does not appear, the defendant will not be permitted to set off a judgment for a separate debt, against the plaintiff.'^ In an action against one of several partners, the defendant, with the assent of his copartners, may use a debt owing by the plaintiff to the firm, not as a set- off, but by way of equitable defence ; but such assent must be shown." Two defendants, jointly sued, may set off a debt owing by the plaintiff to one of them ;'° so, the defendants may set off a debt owing by the plaintiff to a firm of which they are members, with the assent of the other partners.'' A defendant, sued with another, may set off a debt due to him by the plaintiff, unless there be some superior equity in a third person f but a debt owing by the plaintiff to a co-obligor, not summoned, cannot be set off against a joint demand ;'* and damages for a breach of a partnership 1 Morrison v. Moreland, 15 S. & R. Wain v. Wilkins, 4 Ibid. 461. Potter 61. Ruling V. Hugg, 1 W. & S. 418. v. Burd, 4 Watta 15. Minich k. Cozier, " Sennett u. Johnson, 9 Penn. St. 335. 2 Rawle 111. Carman v. Garrison, s Ibid. 13 Penn. St. 158. Haage's Appeal, 17 * Taylor v. Gould, 57 Penn. St. 152. Ibid. 181. Singerly v. Swain, 33 Ibid. 5 Wharton v. Douglass, 76 Penn. St. 102. McCraoken v. Elder, 34 Ibid. 239. 273. Stiles v. Dougherty, 16 Leg. Milliken v. Gardner, 37 Ibid. 456. Lo- Jnt. 132. Hains «. Eapp, 2 W. N. C. renz v. King, 38 Ibid. 93. Scott m. Fritz, 595. Craig v. Ruahton, 1 Ibid. 29. Dov- 51 Ibid 418. ell V. Zulich, Ibid. 264. " McDowell v. Tyson, 14 S. & R. 300. « Russell V. Miller, 54 Penn. St. 154. " Lewis v. Culbertson, 11 S. & R. 48. ' Mackey v. Millar, 6 Phila. 527. " Wain v. Hewes, 5 S. & R. 468. Bunting v. Hopple, 2 W. N. C. 445 ; " Wrenshall v. Cook, 7 Watta 464. s. c. 3 Ibid. 472. And see Craig v. Henderson, 2 Penn. » Kachlin v. Mulhallon, 2 Dall. 237 ; St. 262. SoUiday v. Bissey, 12 Ibid, s. c. 1 Yeates 571. Gogel v. Jaooby, 5 347. Silberburg v. Pincus, 6 Phila. S. & R. 117. Brotherton v. Haslet, 533. Ibid. 334. Cornell v. Green, 10 Ibid. '* Childerston v. Hammon, 9 S. & R. 14. Wright V. Smyth, 4 W. & S. 527. 68. Miller v. Kreiter, 76 Penn. St. 78. Commonwealth v. Schultz, Bright. 29. '^ Tustin v. Cameron, 5 Whart. 379. Charlton ». Allegheny City, 1 Gr. " Stewart v. Coulter, 12 S. & R. 252. 208. Aokerman v. Smith, 1 Pears. Crist v. Brindle, 2 Rawle 121. Balsley 302. Lehmaier v. Born, 1 W. N. C. v. Hoffman, 13 Penn. St. 603. 444. Thomson's Estate, 5 Ibid. 14. '* Henderson v. Lewis, 9 S. &R. 379. » Nickle V. Baldwin, 4 W. & S. 290. Archer v. Dunn, 2 W. & S. 327. Fargo '' Darroch v. Hay, 2 Yeates 208. v. Brown, 4 Leg. Gaz. 197. 300 PLEAS. contract cannot be set off against a demand by one of the partners, in a suit founded on his original contract.' In an action for the use of three, the defendant cannot set off separate claims against each of them.^ In a suit against principal and surety, a debt owing by the plaintiff to the principal may be set off;^ and in a scire facias on a mechanic's claim, the contractor may set off a claim against the plaintiff.* Where " a debt is attached, the garnishee cannot set off a claim against the attaching-creditor.^ In an action by an executor, where the estate is notoriously insolvent, a debt not due at the death of the testator, cannot be set off; the rights of creditors are fixed by that event f but a debt due at the death of the decedent may be set off, though the estate be insolvent.^ § 552. Practice. Under the act of 1705, no other plea than payment is necessary to let in a set-off;^ the addition to it of the special plea of set-off, is only warranted by long practice.^ A set-off is in the nature of a cross-action, and may be withdrawn, after the evidence is closed, and before the case is submitted to the jury ;'" but the withdrawal of it ought to be explicit.". The pendency of a suit is no objection to a set-off of the debt upon which it is founded, in another action between the same parties ;'^ it is otherwise, however, if an appeal from an award of arbitrators be pending in the first action ; this is an exception to the rule, depending on the provisions of the statute, which makes the award a lien on the defendant's real estate.^' The holder of a note, in which two persons are interested in unequal amounts, may use it as a set-off against each, to the extent of their respective interests ;" but where a negotiable note is offered as a set-off, the defendant has the burden of proving that he was the holder of it, at the commencement of the suit ; the mere possession is not enough.'^ The plaintiff cannot evade the effect of a set-off, by giving credit for the amount on another claim.'? A bal- ance may be certified in favor of the defendant, in an action of cove- nant ;'' and in debt, on bond, conditioned for the performance of covenants ;'* but the jury cannot find a sum due from the plaintiff to the defendant, to be deducted from another claim.'^ In a justice's court, set-off is compulsory f if the defendant neglect to set off a cross-demand, * Jackson V. Clymer, 43 Penn. St. 79. '» Gallagher v. Thomas, 2 Brewst. 2 Watson V. Hensel, 7 Watts 344. 531. ' HoUister v. Davis, 54 Penn. St. 508. " Muirhead ». Kirkpatrick, 5 W. & * Gable v. Parry, 13 Penn. St. 181. S. 506. * Yerkes v. Simons, 1 W. N. C. 473. " gj^^jj „^ uhrioh, 1 W. & S. 57. And see Cramond v. Bank of the United " Good v. Good, 5 Watts 116. States, 4 Dall. 291 ; s. c. 1 Binn. 64. " Smith v. Myler, 22 Penn. St. 36. " Bosler v. Exchange Bank, 4 Penn. '* Smith v. Ewer, 22 Penn. St. 116. St. 32. Farmers' and Mechanics' Bank's " Moloney o. Davis, 48 Penn. St. Appeal, 48 Ibid. 57. 512. ' Light V. Leininger, 8 Penn. St. 403. " Vicary v. Moore, 2 Watts 451. And see Beaver v. Beaver, 23 Ibid. 167. " Le Barron v. Harriott, 2 P. & W. * Balsbaugh v. Frazier, 19 Penn. St. 154. Pride v. Thompson, Ibid. 158. 9o- " Anderson v. Long, 10 S. & R. 55. » Coulter V. Repplier, 15 Penn. St. ™ Act of 1810, 3 7:5 Sm. L. 165: 211 ; Gibson, 0. .J. Purd. 854. DOUBLE PLEADING. 301 not exceeding one hundred dollars^ he is for ever barred ;' he may, nevertheless, prove such set-off, on the trial of an appeal from the judg^ ment of the justice ;^ and he is not compelled to split up a claim exceeding one hundred dollars, and offer any portion of it as a set-off.' § 553. Double pleas. At common law, the defendant could only plead cue plea to the whole declaration ; though, if it consisted of differ- ent counts, he might plead a distinct answer to each of them f but by statute 4 Ann., c. 16, the defendant may plead as many several matters as he shall think necessary for his defence f and, in practice, this is done without applying to the court for leave ; subject, however, if his pleas be inconsistent, and such as ought not to be joined, to be compelled to elect between them." This statute giving the courts a discretionary power to permit several matters to be pleaded, they have determined, that, in a qui tarn action, the defendant cannot plead double ;' so, in au action on a penal statute,^ and in an information in the nature of a quo viarranto? So, at one time, the defendant was often refused leave to plead several pleas, where the proposed subject of plea appeared to be inconsistent ; hwt, in modern practice, such pleas, notwithstanding the apparent repugnancy between them, are permitted. Therefore, with non assumpsit, he may plead the statute of limitations, or a discharge in bankruptcy, or infancy ; or, with non est factum, payment, or a discharge in bankruptcy ;'" and in trespass, " not guilty, with leave to justify."" So, other defences may be combined ; and the only pleas, perhaps, which are now disallowed, on the mere ground of inconsistency, are those of the general issue, and a tender ;'^ otherwise, if a verdict were found for the defendant, on the general issue, this incongruity would appear upon the record — that nothing was due, when the defendant himself admitted that there was something due from him.^^ A defendant cannot both ' Herring v. Adams, 5 W. & S. 4.')9. manner, unless the judge who tried the Shoup V. Slioup, 15 Penn. St. 361. Sly- said issue shall oertify, that the said hoof V. Flitcraft, 1 Ash. 171. White defendant or tenant, or plaintiff in re- V. Johnson, 2 Ibid. 146. plevin, had a probable cause to plead '' Tate V. Tate, 2 Gr. 150. Cook v. such matter, which, upon the said Shirley, 4 "W. N. C. 560. issue, shall be found against him." Eob. ^ Simpson v. Lapsley, 3 Penn. St. Dig. 44. .i59_ " Carnes v. Duncan, Col. & Caines * Steph. Plead. 269. 41. Le Conte u. Pendleton, 1 Johns. * This statute provides, that "it shall Cas. 104. be lawful for any defendant or tenant, ' Law v. Crowther, 2 Wils. 21. in any action or suit, or for any plain- ' Anon., Barnes 15. tiif in replevin, in any court of record, ' People v. Jones, 18 Wend. 601 . with leave of the court, to plead as '" Com. Dig. " Pleading," E. 2. Wil- many several matters as he shall think son v. Ames, 5 Taunt. 340. necessary for his defence : provided, " Kerlin v. Heacook, 3 Binn. 215. nevertheless, if any such matter shall, " Steph. Plead. 275. Chew v. Close, upon a demurrer joined, be judged in- 9 Phila., 211. sufficient, costs shall be given at the '^ Maolellan v. Howard, 4 T. R. 194. discretion of the court ; or, if a verdict The pleas of nul tiel record and pay- sliall be found upon any issue in the ment cannot be joined, as they require said cause for the plaintiff or demand- different modes of trial. Riley «. Riley, ant, costs shall also be given in the like Spencer 114. 302 PLEAS. plead and demur to the same count ;' nor will he be permitted to plead and give notice of the same special matter.^ But a plea is not bad for duplicity, if all the matters pleaded go to make up but a single defence/'' And it is to be observed, that the power of pleading several matters extends to pleas in bar only, and not to those of the dilatory class.* § 554. Attachment. A plea, that the claim in suit has been attached in the hands of the defendant, as garnishee, is one of an anomalous char- acter; it is neither in abatement, nor in bar;^ its only effect is, to give notice of the claim of the attaching-creditor, to enable the court so to mould the judgment, as to protect the rights of the parties.^ It does not prevent the recoverj^ of judgment, but merely suspends the right to execution.' Where a judgment is attached, proceedings on it will be stayed.' § 555. Short pleadings. It may be proper here to notice a very common but informal practice prevailing in this state, which consists in the entry of short pleadings, as they are called, or " memoranda of the substance of the defence,"^ and which is allowed for the sake of brevity and dispatch. Thus, we plead non assumpsit; nil debet; non cul.; usury; the statute of limitations, &c.; no award; set-off; and other pleas of a similar form ;'° and sometimes several pleas are thus pleaded together in short entries. And when a special defence is intended to be set up, under a plea of the general issue, after notice according to the rules of court, the plea is accompanied with a declaration of such inten- tion, in the following manner : " defendant pleads non assumpsit, with leave to give the special matter in evidence," or, "defendant pleads nmi ml, with leave to justify," and so in other cases. It is a course of pleading in Pennsylvania, too long established, now to be overturned, to plead in short." As this mode does not always conduce to certainty, but often causes confusion, and sometimes injustice,^^ short pleas ought notto be received but by consent. If either party request his adversary to draw up his plea at large, and it is refused, it will be good cause of demurrer, assigning the same specially for cause ;^' or, on "motion, the court would enter a rule to draw up the pleadings at large."" But, in order to support the ' JleFate p. Shallcross, 1 Phila. 75. " Daly v. Derringer, 1 Phila. 324. Commonwealth v. Houskeeper, 6 L. Bar Herbert v. Williams, 8 Leg. Gaz. 107. 105. Snyder v. Hearman, 2 ilow. Pr. " See Sauerman v. Weckerly, 17 S. 279. & R. 117. Sherk v. Bndress, 3 W. & ' Ripley v. Burgess, 2 Hill 360. S. 257. Watts V. Ward, 6 W. N. C. 206. '» If the parties go to trial on a short ' Brown v. Young, 1 Phila. 75. plea of set-off, the plaintiff may avail Blair v. Singerly, 7 Ibid. 230. himself of the statute of limitations, * Kase V. Kase, 34 Penn. St. 128. or any other answer to the alleged set- ' Steph. Plead. 276. off, without a replication. Coulter v. ' Brown v. Soott, 51 Penn. St. 362. Repplier, 15 Penn. St. 208. Roekhill V. Burden, 1 Clark 391. " Brooks v. Miller, 1 Gr. 202. ' Hepburn a. Mans, 31 Leg. Int. " Weidel v. Rosebury, 13 S. & R. 356. Hicks ». Brinkworth, 1 W. N. C. 180. 90. Selfridge J). Dickinson, Ibid. 158. " Haak w. Breidenbaoh, 6 Binn. 12. Hampton v. Laverty, Ibid. 49. Bank " Jordan v. Cooper, 3 S. & R. 583. V. Cummings, Ibid. 313. Tunis v. Ba- Weidel v. Rosebury, ut supra. ker, 3 Ibid. 368. ^ STRIKING OFF PLEAS. 303 judgments of the inferior courts, which have been given after a trial of the merits, the supreme court will consider the short entries of plead' ings in the same light as if they were formally drawn up, provided there be enough to show the meaning of the parties.^ In pleading such pleas, therefore, the defendant should guard against a brevity, which may obscure their meaning or render them insensible ; thus, a plea of " the lottery act," without more, is an insensible plea, and need not be replied to.^ §556. Striking off , adding or altering pleas. To induce a court to strike off a plea, it must be clearly frivolous, that is, unsuited to the form of action ;* or must be irregular in time or place ;* a plea of the statute of limitations will not be stricken off, unless clearly frivolous f and where a plea is adapted, to the nature of the action, though bad on demurrer, it cannot be disregarded;^ a plea will not be stricken off. ' Jordan v. Cooper, 3 S. & R. 583. Sauerman v. Weckerly, 17 Ibid. 116. ^ Reed v. Pedan, 8 S. & R. 263. ' A sham plea will be stricken off, even after demurrer. Hays v. Sample, 1 Pitts. 269. And see Wilson U.Jones, 6 W. N. C. 157. * Ralph V. Brown, 3 W. & S. 398. Where a plea in abatement and one in bar are pleaded together, the former will be stricken off. Maitland v. Mo- Gonigle, supra, ^ 519 n. So, a special plea which states no other matters of defence, than those of which notice has been given, under the plea of payment, &c., will be stricken off, on motion. Watts V. Ward, 6 W. N. C. 206. ' Marseilles v. Kenton, Dist. Court, Phila., 16 Sept. 1848. Rule to show cause why defendant's plea of the statute of limitations, should not be stricken off. Per curiam. There may be cases in our practice, in which the court would strike off pleas as impertinent and frivolous ; it would have to be, however, in a very clear case, such as a plea not adapted to the form of action, as non assumpsit to an action of trespass, and where the plaintiff might regard it as a n ullity , and sign judgment for want of a plea. Per- haps, moreover, there might be other cases ; we do not mean to lay down any general rule. Here, to a count alleging that the plaintiff was a merchant, and the defendant his factor, and a promise to account, the defendant has pleaded the statute — non assumpsit infra sex annos, and actio non accredit infra — -and these pleas the defendant asks leave to strike off. The exception in the statute of " such accounts as concern the trade of merchandise between merchant and merchant, their factors and servants," has rarely been presented to the con- sideration of the courts, either of this country or England. The cases of what are termed mutual accounts, in which some of the items, being within six years, are held to save the bar of the statute, seem referable to the head of implied acknowledgment, rather than to the saving clause of merchants' ac- counts. In many of the cases, these two claims are evidently confounded, and it would require much considera- tion and examination, to determine whether these pleas to this count are insufficient pleas. It is, therefore, clearly a case in which the court ought not summarily to interfere, on motion. Rule dismissed. ^ Commonwealth v. Smiley, Dist. Court, Phila., 21 Oct. 1848. AVhy judgment should not be entered for want of a proper plea. Per curiam. This is an action of debt upon the offi- cial bond of a constable, in which the narr. sets out the breaches. Upon a rule to plead, the defendant has pleaded nil debet. When the defendant pleads a plea not adapted to the action, as nil debet in assumpsit, or non assumpsit in debt, the plaintiff may either move the court to strike it off, or treat it as a nul- lity. If he elect the latter course, and the defendant is under a rule, he may enter judgment for want of a plea ; if not, he must put him under a rule. The more usual practice with us has been, to move the court to strike off the plea. Where, however, the plea is adapted to the nature of the action. 304 PLEAS. because bad on special demurrer.' When one of several pleas is thus insensible and void, or, when sufficient and proper, the defendant is pur- suaded that he cannot support it, he may, either with leave of the court or consent of the adverse party, alter or strike it out. But without this leave or this consent, he cannot withdraw any of his pleas, where it may be supposed that he gains any advantage thereby:^ therefore, where issue was joined on the pleas of no7i assumpsit and payment, and the jury was about to be impannelled, the court refused the defendant leave to strike out the former plea, the plaintiff having been put to expense in obtain- ing proof of the assumption.^ If this wei-e not the practice, such pleas " would be put in by defendants, as stratagems to take the chance of the plaintiffs not being able to procure witnesses to prove the issue, and, after putting them to the expense and trouble of bringing their wit' nesses, would all at once assume the appearance of candor, in relin- quishing a defence which could not in reality be supported."^ It has also been ruled, that the defendant cannot withdraw a plea, at the time of trial, to give him the benefit of the conclusion to the jury.^ But where the plaintiff had not been put to any inconvenience in procuring testimony to prove the assumpsit, the court allowed the plea to be stricken out, after the jury was sworn.^ So, likewise, where the defendant tenders full compensation to the plaintiff for the trouble and expense which he has incurred by reason of any plea upon which issue has been taken, the court will permit him to retract the plea.' When the witnesses for the defendant, on the closing of the evidence, have been dismissed, it is too late for the defendant to add a plea, requiring new evidence on the part of the plaintiff to repel it.* § 557. " If a defendant, in the progress of the cause, find that one of his pleas will not serve him, and that, in all probability, he will be sub- jected to an increase of costs, by insisting on it, he may apply to the court, at a previous term, to strike out the plea, and the plaintiff, on such leave being granted, is saved the trouble and expense of adducing proof in support of that issue."^ He may also, on a rule to show cause, obtain leave to add a plea ;"• and on such a rule, a plea of the act of limitations was allowed to be added, in trespass for mesne profits." though it may be bad on demurrer, or " Jackson v. Winchester, ut supra, informal and irregular, it is not such a But see Vuyton v. Brenell, 1 W. C. 0. nullity, as will warrant the plaintiff in 467. signing judgment. Thus, it has been * Waggoner v. Line, 3 Binn. 590. held in the K. B., in England, that?iiZ ^ Wikoff v. Perot, 1 Yeates 38. debet to an action of debt on a judg- * Rankin v. Cooper, 2 Bro. 13. ment, though a bad plea, is not to be ' Jackson v. Winchester, 2 Yeatea treated as a nullity. Anon., 2 Chit. 529. 239. Rule dismissed. » Ridgely v. Dobson, 3 W. & S. IIS. 1 Philadelphia v. CoUom, 1 W. N. C. Foster v. Pox, 4 Penn. St. 122. 404. A plea containing scandalous « Waggoner v. Line, 3 Binn. 591 ; matter, which, if true, can be given in Yeates, " J. Richards v. Nixon, 20 evidence under the general issue, will Penn. St. 19. Brooks v. Miller. 1 Gr. be stricken out, on motion. Wilkin- 202. son V. Pomeroy, 9 Bl. C. C. 513. >« Smith v. Kessler, 44 Penn. St. 142. ^ Jackson v. Winchester, 2 Yeates " Peaceable v. Whitehill, 2 Yeates 529 ; s. 0. 4 Dall. 205. 279. ADDITIONAL PLEAS. 305 § 558. In many of the cases upon the subject of withdrawing and adding pleas, it appears, that the 6th section of the act of 1806 has been relied on by practitioners, as countenancing a system of amendment it never intended. This section provides, that when any informality in entering a plea will, in the opinion of the court, affect the merits of the cause, the defendant may alter his plea or defence, on or before the trial of the cause ; and if, by such alteration, the plaintiff is taken by surprise, the trial shall be postponed to the next court : and the construction of it is, that when the plea is not sufficient to cover the merits of the case, an amendment may be made, before or even dJring the trial ;' but the court are to judge whether the amendment be necessary,^ and it is not in every instance that it will or must be granted, and many cases may occur, not within the scope and intent of the act. Thus, " where a plea in abatement is kept back, until after the swearing of the jury, it was not the intention of the act, that the defendant should be permitted to alter his plea, and thus defeat the plaintiff's action; so, where a plea is kept back, which ought to have been put in since the last continuance ;"^ so, where the defendant offers a plea of set-off, after the plaintiff has closed his evidence* — the defendant having a remedy by an action on his claim of set-off. And where the defendant offers to plead specially a matter of law necessary to his defence, after having already pleaded, it is not error to refuse it, when it is put in, at such a time, as shows that the object is delay .° So, likewise, this act does not extend to actions upon penal statutes, but only to actions for money owing or due, or for dam- ages by trespass or otherwise.* § 559. The defendant is entitled to add a plea, after issue joined, though he might prove the same fact under a general plea on the record ; as, where to a sci. fa. on a mechanic's claim, the defendant pleaded payment, and the terre-tenant, no lien, it was held to be error, to refuse, after issue joined thereon, to permit the terre-tenant to plead, that since the issuing of the writ, the land had been sold under judicial process.^ Where a plaintiff in his replication had admitted rent to be due, but when the case was called for trial, asked to put in a plea of no rent in arrear, it was held, that the judge was right in refusing permission so to do, as the amendment would have changed the whole nature of the proceeding, and forced the defendant to a continuance.* On an appeal from an award of arbitrators, the defendants may be permitted to withdraw their general plea of not guilty, and may sever in their pleas, and take sep- arate defences for the portions of the premises they respectively claim.' If the parties to an action enter into an agreement that the cause shall ' 4 Sm. L. 329 ; Purd. 68. by verdict. Flemming v. Reading Rail- " Wagaon'er v. Line, 3 Binn. 590. road Co., 35 Leg. Int. 438. ' Clvmer v Thomas, 7 S. & R. 181. " Buokwalter v. United States, 11 * Glazier v. Lowrie, 8 S. & R. 499. S. & R. 197 ; Duncan, J. ■• Young V. Commonwealth, 6 Binn. ' Johns v. Bolton, 12 Penn. St. 339. 88. A defendant will not be permitted, « Crowell v. Vandyke, Dist. Court, at "the trial, to withdraw the general Phila., Dec. 1848. MS. issue, and put in a demurrer going to ' Keeler v. Vantuyle, 6 Penn. St. matters of form, which would be cured 250. VOL. I. — 20 306 PLEAS. be tried upon a certain plea, it is not in the power of the court, afterwards, to admit any other plea, without the consent of both parties.' § 560. By the act of 1836,^ the courts of Philadelphia are empowered to make general rules in respect to the time and manner of pleading, the form and effect of pleadings, and the verification and amendment thereof, and to variances between the allegata and probata; and such rules for carrying the same into effect, either by stay of proceedings, payment of costs, or otherwise, as shall be conducive to fairness, economy and dispatch of business.^ In pursuance of this power, the courts have provided by rule, that in all actions upon any deed, bond, bill, note or other instrument of writing, a copy of which shall have been filed within two weeks of the return-day, it shall not be necessary for the plaintiff, on the trial, to prove the execution thereof, unless the defendant, by affidavit, filed at or before the time of filing his plea, shall have denied the execution thereof by him.^ And that in all actions by or against partners, it shall not be necessary to prove the partnership, unless one or more of the defendants, or some person for him or them, shall, at or before the time of filing the plea, file an affidavit, denying the existence of the partnership, in relation to the subject-matter of the action, and stating, to the best of his or their knowledge and belief, whether there is any such partnership, and who are parties to it.^ Under a rule of court, requiring a plea of non est factum to be verified by affidavit, the execu- tion of the instrument is admitted, unless so denied f and in an action upon a promissory note, an omission to deny execution, by affidavit, dis- penses with proof of the indorsing, as well as of the making.' And the fact that there is an Affidavit of defence upon the record, does not dis- pense with the necessity of supporting a plea denying partnership, by affidavit.^ An omission to deny a partnership by affidavit is a conclusive admission thereof; it cannot be rebutted by evidence.' ' Fursht V. Overdeer, .S W. & S. 470. Payette, Franklin, Mercer, Schuylkill, ^ Act 11 March 1836, I 6, P. L. 76, Somerset and Tioga counties. Purd. Purd. 500, relating to the late district 233 n. court of Philadelphia ; extended to * Rule i. § 1. the district court of Allegheny, by ^ Ibid. | 2. act 29 April 1844, § 3, P. L. 526 ; « McGovern v. Hoesbaok, 53 Penn. Purd. 503. By the constitution of 1874, St. 170. McAdams v. Stilwell, 13 art. V. I 6, all the powers and jurisdic- Ibid. 90. tion of those district courts were vested ' Miller v. Weeks, 22 Penn. St. 89. in the several courts of common * Raine v. Gordon, 5 W. N. C. 292. pleas of Philadelphia and Allegheny Such affidavit must be filed with the counties. plea ; it is too late, after the case has ' A like power has been conferred been upon the trial-list. Vanzandt v. on the courts of Beaver, Bedford, Massey, 35 Leg. Int. 430. Berks, Blair, Butler, Cumberland, ' Muller K. Haggerty, 2 W. N. C. 427. CHAPTEE XVII. Of Discontinuance and Nolle Prosequi. I. Of discontinuance, § 562. Wiat is a discontinuance, | 565. When the plaintiff may discontinue, § 562. II. Nolle prosequi, I 566. Payment of costs, § 562. Nature of a nolle prosequi, § 566. Leave of court, § 563. "Ulien a nolle prosequi may be en- When not granted, § 563. tered, | 567. How ohtained, § 564. In actions on conti'acts, | 568-9. Eifect of, J 565. In actions ex dehcto, | 570. § 561. Where the defendant pleads the general issue, or any other plea which properly concludes to the country, there are no further pleadings between the parties, and an issue is joined in the cause, on which they may proceed to trial. But if the plea present some new fact, it is incumbent on the plaintiff to reply ; or, if he cannot support his action, he may discontinue, or enter a noUe prosequi; and in this chapter, these subjects will be considered at large. Or, in an action against an executor or administrator, where the original cause of action is not denied by the plea, he may take judgment of assets infukiro} So, in an action against an insolvent debtor, whose future effects remain liable to the payment of his debts, the plaintiff may take judgment for his demand, to be levied of those effects.^ I. Of discontinuance. § 562. When the plaintiff finds that he has misconceived his action, sued a wrong party, or that, for some defect in the pleadings, or other reason, he will not be able to maintain it, he may obtain a rule for leave to discontinue ; which, however, is effectual only on payment of costs,^ which should be paid forthwith.* The plaintiff, however, is not liable to an attachment for the non-payment of them.^ An executor or adminis- trator may discontinue, without paying the costs of the opposite party ; though not without paying the fees of the oiBcers of the court, for ser- ' Under our statutes, a judgment ca. sa., the defendant will be discharged against an executor only binds the es- from arrest, on motion. Dorr v. Mc- tate of the testator ; it does not bind Clintock, 2 Miles 190. See Snyder v. the executor personally, though he may Hall, 1 Bro. 215. have omitted to plead that he has fully ' Summy v. Hiestand, 65 Penn. St. administered ; such a plea, if put in, 300. is now never tried in a common-law ac- * McKenster ». Van Zandt, 1 Wend, tion ; the orphans' court has exclusive 13. Pignolet v. Daveau, 2 Hilt. 584. jurisdiction over it. Burd v. McGregor, But though the discontinuance be irre- 2 Gr. 365. gular, it is not a nullity. Grundy v. ^ This is not now the law of this Winner, 1 Phila. 400. state ; the court will not enter a special * Leonard ». Slaughter, 10 Johns, iudement : but, if the plaintiff issue a 367. Stokes v. Woodeson, 7 T. R. 6. •* " ' (307) 308 DISCONTINUANCE. vices rendered.' If a cause be discontinued, and afterwards the defend- ant appear and take defence, he cannot, at the trial, take advantage of the discontinuance.^ § 563. Eegularly, there can be no discontinuance, without leave of the court,^ and this rule holds with peculiar force in replevin ; there, both parties are actors, and yet the avowant cannot discontinue •* and where the goods are delivered to the plaintiif in replevin, he will not be per- mitted to discontinue f so, where the defendant claims property, and the goods remain in his hands, there may be cases in which the court would refuse such leave.^ A plaintiff cannot discontinue his cause, after a hon& fide assignment of the debt, for a valuable consideration, to another person ; in such case, it ought to be mentioned on the docket, for whose use the suit is brought.' After a general verdict, or a writ of inquiry executed and returned,* the plaintiff will not be allowed to discontinue (unless with the defendant's consent) ; for, if he were per- mitted this privilege, it would be granting him as many new trials as he pleased.' The court may probably give this leave, as matter of special favor, after a special verdict, because it is not complete and final ;•" but they will not do so, in a hard action," nor to give the plaintiff an oppor- tunity to adduce fresh proof, in contradiction to the verdict.'^ The court have allowed the plaintiff to discontinue, on payment of costs, after a demurrer argued and allowed, where there was a mistake in the plain- tiff's pleading ; but they now usually give the party leave to amend, upon payment of costs.'' § 564. A discontinuance must be founded on' the express or implied leave of the court. In England, leave is obtained, on motion ; here, it is taken without the formality of an application ;'* but it is subject to be set aside by the court, on cause shown. When the propriety of the dis- continuance is contested, it must have the court's sanction ;"> and this sanction being a matter of discretion, its refusal is not assignable for gj,j.Qj, 16 j^ discontinuance will not be permitted, where it will give the plaintiff an advantage, or tend to oppress the defendant.'^ The court ' Musser v. Good, 11 S. & R. 247. dency of a rule to open. Kennedy v. ' Latapee v. Peoholier, 2 W. C. C. MoNiokle, 2 Brewst. ."JSG. 1^0- ' 1 Salk. 178, pi. 4. ' Evans v. Clover, 1 Gr. 169. Davis '» Ibid. V. Sharpe, 5 W. N. 0. 404. " Boucher v. Lawson, Cas. temp. Broom v. Fox, 2 Yeates 531. 1 Hardw. 85. Str- 112. 12 2 W. Bl. 815. , Ij'jd- " 2 Arch. Pr. 208. 2 Saund. 73, n. 1. 7 T^ n 11 r^ , T. „ , „ " -*■ discontinuance may be entered „ McOallum «. Coxe, 1 Ball. 139. by the plaintiff, or his attorney of re- ni n n' ■'■ Commonwealth cord, but must be attested by the pro- V. Clay, 9 Phila. 121. A disoontinu- thonotary, with the date of the entry, ance will not be allowed, after the cause Rule xxix. ^106. has been referred, and evidence heard '* Schuylkill Bank ». Macalester, 6 by the referees. Pollock v. Hall, 4 ^Y. & S. 147. Ball. 222 ; s. 0. 3 Yeates 42. Nor, '« Evans v. Clover, 1 Gr. 164. after the appointment of arbitrators. " Mechanics' Bank v Fisher 1 Horn V. Roberts, 1 Ash. 45. Nor, after Rawle 341. ' judgment,, notwithstanding the pen- DISCONTINUANCE. 309 will not allow a discontinuance to be entered by one of several plain- tiffs in ejectment, in such manner as to defeat the action as to the other plaintiffs.^ In ordinary cases, however, the plaintiff may, upon payment of the costs, enter a discontinuance, without leave of the court, though after an interlocutory judgment.^ If the plaintiff agree to dis- continue, in consideration of a promise by the defendant not to file a bill against him, and the defendant perform his part, the court will stay proceedings in the suit at common law, and order an exoneretur to be entered on the bail-piece.^ § 565. Before argument on demurrer, verdict or execution of a writ of inquiry, a rule to discontinue is a matter of course; in other cases, it is obtained upon application to the court.* A discontinuance means no more than a declaration of the plaintiff's willingness to stop the pending action; it is neither an adjudication of his cause by the pro- per tribunal, nor an acknowledgment by himself that his claim is not well founded. It implies a judgment for costs, and an express confession of a judgment for costs, makes it no stronger against him.^ After the costs have been taxed and paid, the plaintiff may commence a new action for the same cause, and may again hold the defendant to bail; provided the discontinuance of the first action did not arise from any gross laches on the part of the plaintiff", and the second arrest do not appear to be vexatious.* A plaintiff, before declaration filed, addressed the following authorization and requirement, in writing, signed by her, to the prothono- tary of the court in which her action was brought : " E. McM. v. 3. F. L. In the court of common pleas of H. county : Sir, you are hereby authorized and required to discontinue for ever and withdraw the above- stated suit for ever, on the presentation of this paper." This paper was filed of record by the prothonotary : it was held, that it was not a retraxit, but simply a discontinuance or nonsuit ; and, consequently, neither a bar nor estoppel to a subsequent suit for the same cause of action.' II. Nolle prosequi. § 566. A noUe prosequi is an acknowledgment or agreement by the plaintiff, entered upon the record, that he will not further prosecute his suit as to the whole or a part of the cause of action ; or, as to some one of the counts in his declaration, or, as to some or one of the issues joined ; or, where there are several defendants, against some or one of them.^ A nolle prosequi is not regarded as a confession of the plain- tiff that he has no cause of action, nor is it considered in the nature ' Cooper «. Cooper, 1 Phila. 1 29. 157. The entry of "settled as per ^ Lacroix v. Macquart, 1 Miles 156. agreement filed," amounts to a discon- Tn a proper case, the court will permit tinuanoe. Berks and Dauphin Turn- the entry of a discontinuance WMHC ^ro pike Co. v. Hendel, 11 S. & R. 123. tunc. Harris v. Harris, 1 Phila. 442. And see Hoffman ». Porter, 2 Brock. ' Wilkins v. Burr, 6 Binn. 389. 156. * 2 Arch. Pr. 208. " 2 Rol. Abr. 100, pi. 5. Bing. ' Gibson v. Gibson, 20 Penn. St. 11. Judg. 49. And see Hughes v. Moore, ' Doane v. Penhallow, 1 Dall. 220. 7 Cr. 176. McLain v. Rutherford, ' Lowry v. McMillan, 8 Penn. St. Hemp. 47. 310 NOLLE PROSEQUI. of a retraxit or release, for it may be entered as to one of several defend- ants, and the plaintiff may still proceed against the others ; in which respect it differs from a judgment of non-pros., whereby the plaintiff is put out of court as regards all the defendants.'' But it rather resembles a discontinuance f for, when the plaintiff has misconceived his action, or made a mistake as to the party sued (as where he sues a, feme covert, and she pleads coverture ; or where he discovers that the defendant is an infant, and the action is not for necessaries, or the like), he may enter a nolle prosequi as to the whole cause of action.^ But in cases where both the parties are actors (as in replevin or in a feigned issue),^ the plaintiff cannot defeat the suit by entering a nolle prosequi.^ § 567. Where the defendant pleads one plea to the whole declaration, and that plea happens to be a complete bar to one or more of the counts, but not to others, the plaintiff may enter a nolle prosequi as to the counts to which the plea is a bar. Thus, where assumpsit is brought for goods sold, Ibid. ^ Desler v. Burden, 1 Bro. 214. " Commonwealth v. Primrose, 2 W. ' Rule xxiv. 1 83. If the demurrant & S. 407. ■DEMUEREK. 319 plaintiff, and sucli fraud would be a defence, there can be no recovery, on demurrer ;^ but it is no admission of a fact, not well pleaded.^ A speaking demurrer, or one that sets up grounds of demurrer dehors the declaration, is bad, and will not be entertained.' § 582. It is also a rule that, on demurrer, the court will consider the whole record, and give judgment for the party who, on the whole, ap- pears to be entitled to it.* Thus, on demurrer to the replication, if the court think the replication bad, but perceive a substantial fault in the plea, they will give judgment, not for the defendant, but the plaintiff ;° provided, the declaration be good ; but if the declaration also be bad in substance (and not in form merely),* then, upon the same principle, judg- ment would be given for the defendant.' This rule, however, has refer- ence to pleas in bar only ; for, if the plaintiff demur to a plea in abate- ment, and the court decide against the plea, they will give judgment of respondeat ouster, without regard to any defect in the declaration.' § 583. Where there are several issues, both in law and in fact, the plaintiff may, without waiting for a decision on the issues in law, go to trial on the issues in fact, and, at the same time, have contingent damages assessed on the counts in his declaration, to which the demurrer applies ; or he may await the result of the issue in law, and then proceed to trial, if necessary.' It has been said to be advisable, to determine the demurrer first ; for, if it go to the whole cause of action, and is deter- mined against the plaintiff, it is conclusive; and there is no occasion afterwards to try the issue in fact ; whereas, if the issue in fact be first tried and found for the plaintiff, he must still proceed to the determina- tion of the demurrer, and if that be determined against him, he will not be allowed his costs of the trial of the issue in fact, but final judgment will be entered upon the demurrer against him, notwithstanding a judg- ment on the issue of fact in his favor.^" If the issue be tried before the demurrer is argued, the damages are said to be contingent, depending upon the event of the demurrer, and it is necessary for the jury to assess contingent damages ; and the award of the venire is tarn quam, that is, ' Postmaster General v. Ustick,4W. ' Barnett v. Barnett, 16 S. & R. 51. C. C. 347. Commonwealth v. Pittsburgh and ' Fisher v. Lewis, 1 Clark 422. Connellsville Railroad Co. 58 Penn. Commercial Bank of Manchester v. St. 26. Buckner, 20 How. 108. Greathouse * Allen v. Crofoot, 7 Cow. 46. Tubbs V. Dunlap, 3 McLean 303. v. Caswell, 8 Wend. 129. Roberts v. ' Wyoming County v. Bardwell, 84 Kelly, 2 Hall 307. To invoke this Penn. St. 104. Wingert v. Continental rule, the fault in the prior pleadings Life Insurance Co., 1 "W. N. C. 72. must be one that is fatal on general Dubois V. New York and Harlem Rail- demurrer, and not cured by a ver- road Co., 1 N. Y. Leg. Obs. 362. diet. Jackson v. Rundlet, 1 W. & M. * Murphy v. Richards, 5 W. & S. 382. 279. Hall V. Hurford, 2 Clark 291. ' 5 Rep. 29 a. Wyoming County v. If a plea to the whole declaration be Bardwell, 84 Penn. St. 104. had as to one of the counts, there must * Lutw. 1592, 1667. be judgment for the plaintiff on de- ' 2 Saund. 300, note 3. murrer. Miller v. Merrill, 14 Johns. '» See Willard v. Morris, 2 P. & W. 348. 480. 320 DEMUEEEE. « as well to try tne issue, as to inquire of the contingent damages.^ But notwithstanding the general right of the plaintiff to pursue whichever course he may think proper, yet, in many cases, where there have been issues in law and in fact upon the same record, the demurrer has been ordered to be first argued, in order that the parties might not go to the trial of the issue, under the necessity of assessing the contingent dam- ages; but that the judge who may have to direct the jury may do so, without hesitation as to the final measure of damages.^ It is the better practice, however, first to try the issue of fact, and afterwards to deter- mine the question raised by the demurrer, which then becomes matter of substance, inasmuch as the right to withdraw the demurrer and plead over cannot be exercised after a verdict.' § 584. Judgment upon demurrer is interlocutory or final, in the same manner and in the same cases as judgment by default.^ After judgment on demurrer, the defendant cannot move to arrest the judgment, for an exception that might have been taken on arguing the demurrer, but he may for a fault arising on the writ of inquiry or verdict.' If a defend- ant plead several pleas to the same several counts of a declaration, and the plaintiff demur to some of the pleas, and take issue upon others, if the defendant succeed upon any of the pleas demurred to, and that plea be an answer to the whole action, the plaintiff shall not have judgment upon the issues in fact, should they be found for him ; but the only judg- ment that shall be entered is nil capiat per hreve.^ But where three pleas and demurrers were filed to the same matters, contained in one count, with- out leave of the court, the pleas, on motion, were stricken off.'^ Formal defects in a mechanic's claim, in strict practice, ought to be raised by demurrer, or by moving to strike off the lien.^ Where judgment is given in favor of a plaintiff, on a demurrer to a plea in bar, it should be a judgment quod recuperet, and not quod respondeat ouster ; but if the latter judgment be entered, it is an error of which the defendant cannot complain, for it is in his favor.' Where the action sounds in damages, as in covenant, trover, trespass, &c., judgment for the plaintiff on demurrer is interlocutory, and it is necessary, before final judgment, that damages should be assessed by a jury ; and until final judgment, a writ of error cannot be taken."* § 585. After demurrer, general or special, it is said to be usual to give the other party leave to amend ; and it has been given, even after de- murrer argued, but before judgment, where the justice of the case required it," upon payment of costs. It has been refused, however, to a plaintiff in a qui tarn action ;'^ in an action against bail ;^* and in hard 1 2 Saund. 300, note 3. ' Underwood v. Warner, 3 Phila. 414. 2 SeeEckartu. Wilson, 10 S. & R. 52. » Lybrandt v. Eberly, 36 Penn. St. ' See Marseilles v. Kenton, 17 Penn. 348. St. 248. 9 Bauer v. Roth, 4 Rawle 83. * Tyler v. Hand, 7 How. 573. " Logan v. Jennings, 4 Rawle 355. ' Commonwealth v. Davis, 4 Phila. " Craig v. Brown, Pet. C. C. 442. 95. 12 Evans v. Stevens, 4 T. R. 228; * 1 Saund. 80, note 1. Clearwater BuUer, J. V. Meredith 1 Wall. 26. " Saxby v. Kirkus, Sayer 117. DEMUEEEE. 321 actions ;' and to a defendant, after the plaintiff had lost a trial.^ Under particular circumstances, also, the party has been allowed to withdraw his demurrer, on payment of costs, and plead de novo, even after argu- ment f but not in a case where the court are of opinion, that the party demurring could not plead successfully.* So, if there be issues in law and in fact, and the latter be tried first, and contingent damages assessed as to the demurrer, the court, it seems, will not, in that case, either allow an amendment, or the demurrer to be withdrawn.^ The proper course is, for the court, except under peculiar circumstances, to proceed, after argument, to enter judgment on the demurrer." § 586. Where a demurrer is well founded, it is important for the oppo- site party at once to ask leave to amend, as he cannot patch up the error in his joinder in demurrer ;^ and, as has just been seen, leave to amend, after judgment, will rarely be given. The order sustaining a demurrer, is, in substance, a judgment that the plaintiff take nothing by his writ, and that the defendant go without day. If the plaintiff really have a good cause of action, he should apply to the court for leave to amend, during the term, and before judgment on the demurrer is entered.' And after a verdict upon pleas which had been traversed, instead of being demurred to, and which would have been bad on demurrer, the same effect is to be given to the pleas, as if they had been demurred to, and no more. If the pleas were bad, they are not aided by the fact that immaterial issues have been formed upon them, and found for the defendant. If an immaterial issue be joined upon a good plea, and tried, a repleader will be awarded ; but if the plea contain nothing of sub- stance, if no material issue could be formed on it, a repleader would be useless.' After a party has once amended on a demurrer, the court will not permit him to amend again, on a second demurrer.'" § 587. If either party have judgment upon demurrer, he is entitled to costs, and may have execution for the same, by stat. 8 & 9 Wm. III., c. 11, § 2. This statute, however, does not extend to demurrers to pleas in abatement, its intention being only to give costs, where the merits of the cause are determined upon the demurrer ;" neither does it extend to actions where the plaintiff would not be entitled to damages, if he had a verdict,^^ as in actions of partition.' I 13 1 1 H. Bl. 37. ' Gibson v. Todd, 1 Rawle 452. 2 Hard. 171. Philadelphia v. Wis- * Wood v. Anderson, 25 Penn. St. tar, 6 W. N. C. 136. 409. » King V. Mayor of Stafford, 4 T. " Tarns v. Lewis, 42 Penn. St. 411 ; R. 690. Giddings v. Giddings, Sayer Strong, J. 316. Hunt V. Puokmore, Barnes 155. "• 2 H. Bl. 561. 2 Arch. Pr. 231. Alder v. Chip, 2 Burr. 756. Anon., 2 " Bright. Costs 100-2. Wils. 175. Ayres v. Wilson, 1 Doug. " Ibid. 309. Barnfathert). Jordan, 2 Ibid. 434. " See Watmough u. Francis, 7 Penn. * Broadwell v. Denman, 2 Halst. St. 220, for a form of judgment for 278. plaintiff in error, who succeeded in re- ° Robinson v. Bayley, 1 Burr. 316. versing a judgment against him on de- " Young V. IParham, 1 Phila. 289. murrer to his replication, and where And see Stephens v. Myers, 12 Penn. other issues remained to be tried. St. 302. VOT I 21 CHAPTER XX. Of Trial by the Kecord. Issue of nnl tiel record, g 588. Bringing in of the record, ? 590. How tried, ? 588. How proved, § 591. Requisites of plea of nul tiel reeord, ? 589. Effect of variance, § 591-2. When proper, J 589. Judgment, § 593-4. Replication of nnl tiel record, § 590. Exceptions and error, § 595. § 588. Wherever a record is alleged on one side as the foundation, or in bar or abatement of the action, and the opposite party denies its exist- ence, by pleading or replying that there is no such record, upon which issue is taken {habetur tale recordwn), it is called an issue of nul tiel record, the trial of which must be by the court, and not by the country 'j^ for a record is a monument of so high a nature, and imports in itself such absolute verity, that if it be pleaded there is no such record, it shall not receive a trial by witnesses, jury or arbitrators, but only by itself; and as the evidence of its existence depends, from its nature, on ocular demonstration, the law refers it to the judgment of the court alone.^ But where the plea consists both of matter of fact, and matter of record, the issue must then be to the country f as, for instance, where two persons having committed a joint tort or trespass, and judgment having been recovered against the one, and satisfaction obtained from him, the other pleads the recovery and satisfaction, in bar of a separate action against himself.^ When, however, the judgment of a court of another state, or of a circuit or district court of the United States, is put in issue by the plea of nul tiel reeord, the issue must be to the court, and not to the country ;^ and a plea of nul tiel record to a judgment of an alderman, though not strictly a record, is triable by inspection and not by a jury. ^ § 589. Where the declaration is founded on a matter of record, which ' Share v. Becker, 8 S. & R. 241. 1 ' Share v. Becker, ut supra. Chit. Plead. 480, 571. If the record set * Thomas v. Rumsey, 6 Johns. 26. forth in the declaration be not the ^ Frey v. Wells, 4 Yeates 503 ; Breck- foundation of the action, but only mat- inridge, J. This is the uniform practice ter of conveyance or inducement, nul in this state. But nul tiel record is not tiel record is not a good plea. United a good plea to an action on a foreign States u. Litle, 3 Or. C. C. 251. judgment; it is not considered as a '' Boop V. Meek, 6 8. & R. 545. Mil record. Burnham v. Webster, Daveis tiel record is vot a good plea, in scire 236. Commonwealths. Green, 17 Mass. facias on a mortgage. Frear v. Drin- 537. ker, 8 Penn. St. 520. Roberts v. Hal- » Oliver v. Foster, 3 Clark 388. See stead, 9 Ibid. 34. Snyder ». Wise, 10 Penn. St. 157. (323) 324 NUL TIEL RECOED. is traversed in the plea, the plea should allege that there is no such record, and conclude to the court, and the plaintiff must reply, re-assert- ing the existence of the record, and concluding with a prayer that it may be viewed and inspected by the court, and a day is given to the parties;^ or, if it be the record of another court, the replication re-asserts it, and a day is given to the plaintiff to bring it in.^ If matter of record, as a judgment recovered for the same demand, be pleaded, the plaintiff, instead of replying nul tiel record, may demand of the defend- ant a note in writing of the term and number of the roll whereon such judgment is entered, or, in default thereof, the plea is not to be received, and the plaintiff may sign judgment ; but this cannot be done, when the defendant pleads a record of another court.' As a void record is no record, the plea of nul tiel record to it is sustainable.^ In debt on judg- ment, a variance as to amount is fatal, on nul tiel record.^ In scire facias on a recognisance of bail on appeal from a justice, the transcript filed is conclusive evidence of the record, on an issue upon that point, and can- not be contradicted by the justice's docket, which is no record of the common pleas.' § 590. Where the plaintiff replies nul tiel record, he may obtain a rule on the defendant to produce the record f and when he replies to a plea of nul tiel record, a rule will be granted upon him to bring in the record, and a day to bring it in ;* but the English practice requires notice, in writing, to be given to the defendant's attorney, that he (the plaintiff) will produce the record on a day certain, therein mentioned.' The party on whom it is incumbent to produce the record, may obtain it from the prothonotary, who will have it brought into court ; and upon the day appointed by the rule or notice above mentioned, the crier makes pro- clamation in court for the party to bring forth the record by him in pleading alleged, or else he shall be condemned.'" The plea of nul tid record is dispensed with, and the cause is put on the trial of its merits, by an agreement to try on the plea of payment with leave, &c., or notice of special matter. After such an agreement, the court ought not to allow the plea of nul tiel record to be added, without consent of both parties ; and it is then too late to object, that the writ recites a judgment for $500, when it was, in fact, for $1500 : at most, this is but a clerical error, which the court would allow the plaintiff to amend." § 591. On the trial of the issue oi nul tiel record, the record itself must be produced, if it be a record of the same court, or the tenor of it, sub ' Bobyshall v. Oppenheimer, 4 W. « Bell v. Murphy, 6 W. & S. 50. C. 0. 388. Share u. Becker, 8 S. & R. And see Vail «. Smith, 4 Cow. 71. 241. . ' 2 Arch. Pr. 39. A plea of nul ^ Ibid. 1 Saund. 92, note 3. tiel record, which omits the conclusion, ' 2 Arch. Pr. 38. See 1 Saund. 92, et hoc paratus, is bad, on special de- note 3. murrer. Hawley v. Hanchet, 1 Cow. * Donleye.Brownlee,7Penn. St.l09. 152. » Eichelberger b. Smyser, 8 Watts ' Smith v. Ramsey, 6 S. & S. 576. 181. Walker v. Pennell, 15 S. & R, 68. ' Tidd 743. Richter v. Cummings, 60 Penn. St. "> Smith v. Ramsey, ut supra. 441 . Bibbins v. Nixon, 4 Wend. 207. " Fursht v. Overdeer, 3 W. & S. 47L NDL TIEL EECOED. 326 pede siffilli, if it be the record of another court, within the jorisdiction of this state.i The seals of all public courts established here, are received in evidence, without extrinsic proof of their genuineness.^ If the record of a court of another state be put in issue, it must be exem- plified in the manner pointed out by the act of congress, which provides, that the records and judicial proceedings of the courts of any state shall be proved or admitted in any other court of the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice or presiding magistrate, as the case may be, that the said attestation is in due form.^ But a copy of a record from another state, not certified according to this act, may still be received aaprimdjade evidence.* If the record be not produced, or if there be a material variance between the record produced to the court, and that pleaded, as in the names or numbers of the parties, the amount of damages, &c., it is a failure of the record, and judgment will be rendered in favor of the party pleading nul tiel record.^ It is necessary that the record of a magistrate should show the demand or claim on which the action is brought, sufficiently, at least, to enable the court to ascertain the cause of the controversy, and in such a case, the plea of nul tiel record will be sustained.* § 592. Upon a scire facias to revive a judgment, and nul tiel record pleaded, the original judgment, which was for want of an appearance, and without any declaration, will not be treated as a nullity ; although erroneous, yet the only point to be examined under the issue is, whether there is a substantial variance between the judgment and the scire facias. In the absence of a declaration, the original judgment goes for the sum stated in the writ, and stands as if rendered on a declaration. It is no variance that a different sum was indorsed on the execution on the original judgment, which is immaterial, forming, as it does, no part of the record.^ § 593. On a replication of nul tiel record to a plea in abatement, the judgment for the plaintiff is not final, but only respondeat ouster; for failure of record in this case is not peremptory.* In other cases, the judgment is interlocutory or final, according to the nature of the action. If the former, a writ of inquiry must be executed, or damages assessed by the clerk, in the same manner as on a judgment by default.' Judg- ment for the defendant is, of course, final.'" Where, after an issue on a plea of payment, a plea of nul tiel record was added the day before the trial, to which was replied, quod habetur tale recordum, and issue, and a verdict was found for the plaintiffs, the mere entry of judgment by the court, generally (where the record is of the same court), without its » Bull. N. P. 230. 3 Salk. 276, pi. 5. ' Kirk u. Aechternaoht, 1 Phila. 426. ' Foster v. Shaw, 7 S. & R. 163. Com- ' Hersch v. Groff, 2 W. & S. 449. See monwealth v. Snowden, 1 Brewst. 218. Elchelberger v. Smyser, 8 Wfttts 182. ' Rev. Stat. 1 9X)5. ' Ld. Raym. 550. « Baker v. Field, 2 Yeates 532. ' 2 Arch. Pr. 39. ' Com. Dig. "Record" 6. 2 Root '» Eiohelberger v. Smyser, 8 Watts 90, 437. 182. 326 NUL TIEL BECOED. appearing that a day was given to produce the record, or that the court decided the issue on inspection, is regular, under our practice, though informal.' § 594. Where a defendant pleads former recovery, setting out a record of a judgment, which he avers to have been for the same cause of action, and the plaintiff replies nul iiel record, he admits, by so doing, the aver- ment, in the plea, of the identity of the cause of action, and only puts in issue the existence of the record ; his proper course, if he wish to deny such identity, is to traverse the averment.^ When, after an appeal by defendant from an award of arbitrators, additional plaintiffs were added, and a scire fcudas was issued on the recognisance, reciting them as also parties to the writ, it was held, that no recovery could be had on the plea of nul tiel record.^ If there be pleas concluding to the country, and also a plea of nul tiel record, and it appears that the parties went to trial generally, the supreme court will presume that the issues were respectively decided by the proper tribunal.'' § 595. A bill of exceptions to the judgment of the court, on a plea of nul tiel record, may be taken, it is said, where an exemplification of a record of another state has been offered in evidence, unless the exception has been set forth in the pleadings ; and by this means the paper offered had been tacked to the record.^ Error lies to the judgment of the court below on an issue otnul tiel record; it is too late to doubt the power of the court to review, in such cases, the decisions of inferior tribunals.' When removed, it has been the practice, for the record to be certified by the court below, without a bill of exceptions ; evidence short of record evidence suflices to identify the papers, without requiring the record brought in for inspection, to be made a formal part of the proceedings. This practice has, however, been objected to, as inconvenient, and tlie record on which issue is joined ought, in such cases, to be attached by means of a bill of exceptions, or certificate, or otherwise, so as to form part of the record returned.' • Share v. Hunt, 9 S. & R. 404. ^ Frey v. Wells, 4 Teates 505 ; ' United States v. Ashmtad, Dist. Brackenridge, J. Court, U. S. 1848 ; Kane, J. ' Crutoher v. Commonwealth, 6 ' Fullerton v. Campbell, 25 Penn. St. Whart. 350. 345 ; Lewis, C. J. ' Ibid. * Baxter v. Graham, 5 Watts 418. CHAPTER XXI. Of Proceedings from Issue to Trial. I. Of depositions, ?597. Examination de bene esse, ^ 597. Rule to take depositions, I 598. Notice of taking depositions, ^599. Service on attorney, § 600. Wliat is a suificient service, ^ 601. SuiJSciency of the notice, ? 602. Waiver of defect of notice, § 603. Certainty requisite as to time and place, § 604-5. Mode of taking a deposition, §606-10. Ketum of a deposition, § 611. Filing of a deposition, § 612. When a deposition may be read, g 613-6. Reading of a deposition, ? 617. Depositions in a foimer suit between the parties, J 618. n. Commissions foe the examination OF witnesses, 'i 619. Rule for a commission, § 619. Form of a commission, § 620. When a stay of proceedings, § 621 Notice, §622. Execution of a commission, § 623. Examination of the witnesses, §624. Return of a commission, § 625. Filing of exceptions, § 625. III. Of letters kogatokt, § 626. When requisite, § 626. Practice on letters rogatory, § 627. Advantages thereof, § 628. Execution of letters rogatory, § 629. IV. Nonsuit foe not peoceedino to tkial, § 630. § 596. The cause being at issue, it is incumbent on the plaintiff to proceed to trial at the first opportunity, or in case of his neglect, the defendant may move for judgment as in case of nonsuit, unless the pro- ceedings are suspended by some legal cause, as, by a commission to examine witnesses residing out of the state. The supreme court, and the several courts of common pleas, have the powers of a court of chancery, which relate to the obtaining of evidence from places not within the state. The mode in which this power is exercised, we shall briefly consider in the present chapter, after having, as a preliminary subject, first treated of the rule to take the depositions of witnesses residing within the state. (327) Trial by proviso, § 630. Rule for trial or non-pros., § 631-2. Nonsuit for not proceeding to trial, § 633-4. When taken off, § 634. V. Op the joey process, § 635. Of the venire, §635. Special juries, § 636. Exemption from jury service, § 637-8. Views, § 639-40. VI. Op evidence and witnesses, §641. Evidence in general, § 641. Nature of evidence, § 642. Witnesses, competency, § 643. Effect of the statutes, § 644. Subpoena, § 645. When to be taken out, § 646. Service of subpoena, § 647. Subpoena duces tecum, § 648. Proceedings against a defaulting witness, § 649. When attachment refused, § 650. Habeas corpus ad testificandum, §651. VII. Production op documents, § 652. Notice to produce, § 652. Orders for production, § 653. When granted, § 654. Rule to show cause, ^ 655. Affidavit, § 656. Showing cause against the rule, §656. Proceedings on the trial, § 657. Order for inspection, § 658. 328 DEPOSITIONS. I. Of depositions. § 597. Hide to take depositions. In England, when &, party in a cause is fearful of losing the testimony of a material witness, who is per- haps so old or so infirm that he may not live until the trial takes place (which may be, as is frequently deferred by the other party for his own convenience), or, perhaps, his necessary business, as a trading voyage or employment abroad, obliges him to leave the country immediately, a motion is made in term time, or an application to a judge in vacation, to examine such witnesses de bene esse (that is, conditionally) ; the conse- quence of which is, to admit the depositions so taken as evidence, if the person cannot afterwards be produced and examined in chief at the trial. But in this state, "rules to take the depositions of ancient, infirm and going witnesses, to be read in evidence, on the usual terms, are of course, and may be entered by either party, stipulating a reasonable notice to the adversary."^ In Philadelphia, a rule to take the depositions of ancient, infirm and going witnesses, to be read in evidence, on the usual terms, is of course, and may be entered by either party, stipulating forty- eight hours' notice to the adversary.^ A rule may, in like manner, be entered by either party, to take the depositions of witnesses, without regard to the circumstance of their being ancient, infirm or going wit- nesses, stipulating, however, eight days' notice to the adverse party.^ On cause shown, the court will grant a rule to take the deposition of a going witness, on a shorter notice than that specified in the rule.^ In our practice, a rule to take depositions is entered, by an order to the prothonotary, in the following form : In the Court of Common Pleas No. 4, for the County of Philadelphia. John Jones ■> of March term 1879. Richard Roe. j ^^- 2016- Enter rule to take depositions of witnesses, on behalf of the defendant, on eight days' notice to the plaintiflT, or his attorney. To C. D.; Esq., A. B., Prothonotary. Attorney for defendant. 16 April 1879. ' MoConuell v. McCoy, 7 S. & R. might be entered of course, and the 223. Cunningham v. Irwin, Ibid. 247. depositions taken before any person The rule itself should stipulate the legally authorized to administer oaths time of notice; but the length of notice or affirmations, on fifteen days' notice, depends on the usage and practice of In the revision of the rules of court, the courts. McConnell v. McCoy, ut on the organization of the courts under supra. "Whether the witness is a going the new constitution, this has been one, or not, will not be considered, on omitted ; but it would seem to be covered error. McCormick v. Irwin, 35 Penn. by the rule authorizing the taking of St. 111. the deposition of any witness, on eight Rule XV. § 47. days' notice. If a witness reside more ' Ibid. § 48. Under the old rules of than forty miles from the place of trial, the court of common pleas and of the his deposition may be read without supreme court, rules to take the depo- a subpoena. Pennock v. Freeman, 1 sitions of witnesses within the state, Watts 401. at a greater distance than forty miles, * Armstrong's Estate, 6 Watts 236. DEPOSITIONS. 329 Upon a certified copy of this rule, under the seal of the court, there should be indorsed a notice, to the following effect : Sir : Please take notice that, in pursuance of the foregoing rule, the deposition of G. W., a witness on behalf of the defendant, will be taken before S. T., Esq., a commissioner appointed by the said court, on (Mon- day) the 26th day of April 1879, at four o'clock on the afternoon of that day, at his office. No. 209 North Tenth street, in the city of Philadel- phia, when and where you may attend, if you think proper. To J. K., Esq., A. B., Attorney for plaintiff Attornev for defendant. 17 April 1879. To this should be appended an affidavit of service, which is requisite to enable the commissioner to proceed, in case the plaintiff's attorney fail to attend, at the time and place mentioned in the notice. § 598. A rule may be granted to take the depositions of ancient, infirm and going witnesses, before the return-day of the writ ;^ and after an appeal from a justice, and before the filing of the transcript.^ So, a rule to take depositions, may be entered in the court below, whilst the cause is pending in the supreme court on error ;' the acticjn remains on the docket ; and it is proper that a party should have the power to perpetu- ate his testimony. The deposition of a person lying in prison, awaiting the decision of a criminal court, upon a motion for a new trial, may be taken under the usual rule f and the act of 1869, rendering competent the testimony of parties, provides for the taking of their depositions, in accordance with the usual practice of the court ;-'^ but, under this sta- tute, the opposite party will not be compelled to submit to an examina- tion, on a rule to take his deposition, until after declaration filed.' A party may take a second deposition of the same witness, without previous ' Gilpin V. Semple, 1 Dall. 251. moes v. Bousson, 52 How. Pr. 401. Stotesbury v. Covenhoven, Ibid. 164. Phoenix v. Dupuy, 53 Ibid. 158. A Anon., 1 Yeates 404. party will not be compelled to disclose ^ Harlan v. Stewart, 2 Rawle 333. his own case, nor to produce the evi- ' Huidekoper v. Cotton, 3 Watts 56. dence in his possession. Lorenz v. Le- Act 26 March 1827, 9 Sm. L. 308; hiffh Navigation Co., 5 Leg. Gaz. 174. Purd. 625. The opposite party will not be compel- * Hopper V. Williams, 2 Clark 447. led to submit to an examination, with- * P. L. 30 ; Purd. 624. The oppo- out a special affidavit, setting forth the site party may be compelled to submit grounds for the application, and the to an examination. Yerkes v. Whita- proposed line of examination. Asch ker, 4 W. N. C. 429. Wise v. Phila- v. West Philadelphia Passenger Rail- delphia Dispensary, Ibid. 570. way Co., 4 W. N. C. 571. Yerkes v. « Mills D.Wells, 1 W. N. C. 506. Whitaker, Ibid. Shepmoes w. Bousson, The examination of the opposite party 52 How. Pr. 401. Phoenix v. Dupuy, 53 should be limited to cases in which a Ibid. 158. This is now regulated by discoverv would have been ordered in rule of court of 26 Jannary 1878, equity, in aid of the prosecution or do- which provides that "no party shall fence ; the opposite party cannot be ex- be entitled to compel the deposition of amined as to matters which his adver- the opposite party, in advance of the sary is not bound to prove as part of trial, except upon an order of the court, his own case ; it will never be allowed upon notice, and cause shown.'' 5 W. for mere inquisitorial purposes. Shep- N. C. 14. 330 DEPOSITIONS, leave, or cause shown ; but the court will prevent an abuse of the right.' A rule to take depositions, implies that they are to be taken before a judge or justice of the peace ;^ and the act of 1831 empowers the officer before whom a deposition is to be taken under a rule of court, to enforce the attendance of the witnesses by subpwna and attachment.' § 599. Notice of taking depositions. Where the rules of court re- quire notice to be given to the adverse party, notice to his attorney is not sufficient.* However, in practice, " service of notice on the attorney is held insufficient, in the case of depositions, only where the attorney has objected at the time of service ; to be exempt from the trouble and responsibility of transmitting the notice to his client, is a personal privi- lege, which, if he please, he may waive ; and he does tacitly waive it, by not objecting; otherwise, the adverse party might be taken by surprise; the silence of the attorney, therefore, is equivalent to an agreement, which will bind his client."^ When the rule is entered before the return of the writ, notice should be given to the defendant.^ § 600. It is no objection to the admissibility of a deposition, that notice of the taking of it was served on the attorney on the other side, it appearing that he acquiesced in it, and that the deposition had been admitted on a fornjer trial of the same case, without objection.' Where the rule of court requires service of notice of a rule on the party, service on the attorney, it is true, has been held insufficient, though he do not expressly object to the service at the time ; and it was said, that the general rule to the contrary, stated in Newlin v. Newlin,^ was so laid down for cases in which no such express rule of court intervenes.' But the sound rule seems to be, that, whether a notice to take depositions be rightly served upon the party, or his attorney, depends upon the rule of the court in which the cause is depending, and that, in the absence of proof of any rule on the subject, it will be presumed that the court below decided rightly in respect to it ;'" and the inclination now is, to return to the old rule, that the objection to the service by the attorney ' Martin v. Kaffroth, 16 S. & R. 120. practicable, on such substituted notice, Watson V. Brewster, 1 Penn. St. 381. as any judge authorized to hold courts ^ Keller v. Nutz, 5 S. & R. 246. in such district shall deem reasonable, ' Act 26 February 1831, P. L. 92 ; and direct. The testimony is to be re- Purd. 622. duced to writing by the magistrate, or * Nash V. Gilkeson, 5 S. & R. 352. by the witness in his presence. Ibid. Gracy v. Bailee, 16 Ibid. 126. Cun- §864. And the deposition must be re- ningham v. Jordan, 1 Penn. St. 442. tained by the magistrate, until he de- Fleming V. Beck, 48 Ibid. 309. livers it into the court with his own ' Newlin v. Newlin, 8 S. & R. 41. hands ; or, he may, with a certificate Snyder v. Wilt, 15 Penn. St. 59. But of his reasons for taking it, seal up and see Cunningham v. Jordan, 1 Ibid. 442. direct the deposition to the proper ' Gilpin V. Semple, 1 Dall. 251. In court, by whom alone it is allowed to the circuit court of the United States, be opened. Ibid. § 865. the act of congress (Rev. Stat. §863) ' Snyder v. Wilt, 15 Penn. St. 59. provides for the taking of the deposi- * 8 S. & R. 41. tions de bene esse of witnesses residing ' Cunningham v. Jordan, 1 Penn. St. more than one hundred miles from the 443. place oftrial, on reasonable notice to the '" Ives v. Niles, 5 Watts 323. Hol- party, or his attorney, or, if this be im- frich v. Stem, 17 Penn. St. 144. DEPOSITIONS. 331 must be immediate and unequivocal. In Ptiladelphia, a rule of court expressly authorizes notice to be given to the opposite party, or his attorney.' § 601. Service of notice on the special bail of the defendant, is not good, although he attends and cross-examines the witness, if another person has usually acted as agent, in the absence of the defendant.^ So, service on the plaintiff's wife, though a party to the process, the hus- band being out of the state, is not good, if she have not acted in the business;^ so, service on the defendant's daughter, more than ten days before the appointed time, was held insufficient, both parties living near each other, in the same town, and the defendant being absent at the time of service;* but a service, by leaving notice at the dwelling-house of the party, with his son, is sufficient.' Where the defendant is merely a stakeholder, and the suit is instituted by agreement, to try the right of the plaintiff, or a third person, to money in the defendant's hands, notice of taking a deposition on behalf of the plaintiff should be given to such third person ; a notice to the defendant is not sufficient.^ But notice to an agent has always been considered good ; and where a suit has been marked to the use of another, notice to the plaintiff on the record, of the time and place of taking a deposition, is sufficient, where he has always appeared in the suit, either as party or agent.' § 602. A notice, not signed by any one, though regularly served, is insufficient.' The name of the officer before whom the deposition will be taken, should regularly appear in the notice, to enable the party to send cross-interrogatories to him, in writing ; but where a rule of court empowered depositions to be taken, as of course, providing that either party might send written interrogatories to the commissioner ; and notice was given that depositions would be taken before A., at, &c., or some other person competent to administer an oath, and the depositions were taken before B., a person so qualified, at the time and place appointed, which was the office of A., it was held, that the depositions were regular.' It is unusual, and productive of uncertainty, to assign two days for the attendance of the opposite party, though they be consecutive ; it is better to give notice of the time of commencement, leaving the other side to take notice of the adjournments.'" Such notice is irregular, where there is but a single witness to be examined ;" it may, however, be good where there are many witnesses, and it indicates that the business is to be com- menced on a day certain, and continued throughout a given period.'^ \\' here the sheriff returns that he served the notice on the opposite party, ' Rule XV. § 49. ' Alexander v. Alexander, 5 Penn. ' Weaver v. Cochran, 3 Yeates 168. St. 277. ' Bauman v. Zinn, 3 Yeates 157. '" If the opposite party do not appear * Lemon v. Bishop, 1 P. & W. 485. at the time appointed, the deposition ' Campbell v. Shrum, 3 Watts 60. must then be taken ex parte; he is not " Nicholson v. Eiohelberger, 6 S. & bound to take notice of an adjourn- R. 546. ment. Hamilton v. Menor, 2 S. & R. 73. ' Riohter v. Selin, 6 S. & R. 425. " Carmalt v. Post, 8 Watts 406. » McDonald v. Adams, 8 W. & S. 371. " Phillipi u, Bowen, 2 Penn. St. 20. 332 DEPOSITIONS. by leaving a copy with his wife, it will be presumed that the service was at his dwelling-house.' § 603. A deposition taken without notice to the opposite party, is inadmissible, though a person said to have an interest in the land, attended and cross-examined the witness.^ A misdirection of the notice to the plaintiff instead o'f the defendant, though a clerical error, is cal- culated to mislead, and therefore vitiates the notice.^ But a party, who has requested the justice, in case of his absence, to propound certain ques- tions to the witness, will not be permitted to allege want of notice ;* so, the filing of cross-interrogatories is a waiver.' Where the rule of court does not require the names of the witnesses to be inserted in the notice, depositions taken without it, will be received;' but where a rule of court requires that a copy of the rule shall be prefixed to the notice, an omission to comply with it, will be ground for rejecting the deposition.' § 604. A notice of the taking of depositions of witnesses, under a rule of court, should contain convenient certainty^ as to the time and place of taking them ; and, therefore, a notice that they would be taken "at the house of Thomas Fannegan, in Bedford county, on the 20th of February," is not sufficiently certain.^ Where the rule was for taking depositions on reasonable notice, a notice on the 11th, for taking deposi- tions at ten in the morning of the 13th, was held to be too short, in the country.'" As to the time requisite in a notice in the country, there appears to be no fixed rule or uniform practice throughout the state regulating it ; ten days' notice appears to be the usual time given, and therefore, it might be prudent, ex majore cauteld, always to afibrd this time, if possible ; though a less time, as nine, and even six days' notice, where the parties lived near each other, has been held to be sufficient." A deposition was taken under a rule of court, which provided that notice of taking depositions, without the county, should be sufficient, if it stated particularly the time and place of taking the same, and gave the name of the examining magistrate, or stated generally that the same would be taken by some competent authority in and for the county in which such depositions were to be taken ; the notice was, that the deposition would be taken, at a certain time and place, before P. A. W., Esq., or some Other competent authority ; the caption stated that it was taken at the office of P. A. W., a justice of the peace, at the time specified, in obedi- ence to the rule and notice annexed ; and the certificate was, that the witness had been qualified and examined before " G. H. Starr, J. P. ; ' Snyder v. Wilt, 15 Penn. St. 65. St. 395. 2 Vincent v. Huff, 4 S. & R. 298. A « Cadbury v. Nolen, 5 Penn. St. 320. defect in the notice is cured by the at- ' Alexander v. Alexander, 5 Penn. tendance of the opposite party. Selin St. 277. Otherwise, it is not necessary. V. Snyder, 7 S. & R. 172. Porter v. Goodwin v. White, 1 Bro. 273. Johnson, 2 Yeates 92. McCormick ' Gibson v. Gibson, 20 Penn. St. 9. V. Irwin, 35 Penn. St. 111. ' Sheeler v. Speer, 3 Binn. 130. s.p. ' Adajns v. Easton, 6 Watts 463. Vickroy v. Shelley, 14 S. & R. 372. * Barnet v. School Directors, 6 W. & '» Hamilton v. McGuire, 2 S. & R. S. 46. 478. ^ Insurance Co. v. Francia, 9 Penn. " Carpenter v. Groff, 5 S. & R. 162. • DEPOSITIONS. 333 and it was held, that the official character of G. H. Starr sufficiently appeared, to admit the deposition to be read in evidence.^ § 605. It seems to be, and certainly ought to be, a rule, that, if the party notified has had reasonable time for preparation to attend at the taking of depositions, under a rule of court, they will be received in evidence at the trial. In case, then, a rule be entered in vacation for the taking of depositions, and the notice to the other party stipulate a time which he may think too short, or unreasonable, he ought to apply, to the court, at the next term, to suppress them.^ If objection to the exe- cution of a commission be not made within the period allowed by a rule of the court, the objection, on the trial, is unavailing.^ Where the judge who tries the cause, is satisfied that the party was not really deceived by the alleged defect in the notice, he should admit the deposition.^ Where a notice to take depositions, in pursuance of a rule of court, specifies a particular place for the purpose, the depositions cannot be read in evi- dence, unless it appear, from the certificate of the justice, that they were taken at the place appointed.' § 606. Mode of taking a deposition. It is provided by rule of court, that " all depositions of witnesses, under a rule of court, to be used in evidence on the trial, shall be taken before a judge, magistrate, alderman, notary -public, or a commissioner appointed by the court, upon due notice to the opposite party, or his attorney."* The taking of depo- sitions before commissioners appointed by the court, pursuant to the acts of assembly,^ is now frequent in practice ; and it is expedient, if the tes- timony be perplexed and voluminous, or belong to a cause of an impor- tant character. A deposition taken before one who is actually a justice, is good, though he be not so described on its face f and a deposition taken before the prothonotary of an adjoining county, under the common rule, is good, if the parties attended before him.^ But a rule to take depositions, before any judge or justice, on two days' notice, does not authorize the taking of a deposition ex parte in another county.'" It is irregular, to take a deposition at an adjourned meeting, in the absence of the defendant, without notice to him." A deposition, taken ex parte, not at the time fixed in the notice, cannot be read ;'^ but where notice is ' Wright V. Waters, 32 Penn. St. L. 86 ; Purd. 625. And see Rev. Stat. 514. And see Sample v. Robb, 16 1 863, as to the officers before whom a Ibid. 305. Sweitzer v. Meese, 6 Binn. deposition may be taken, in a federal 500. The court below is, in general, court. the judge of the sufficiency of the * Berks County v. Ross, 3 Binn. 539. notice. Voris ». Smith, 13 S. & R. Dunlop v. Munroe, 1 Cr. C. C. 536. 334. _ The letters J. P. are a sufficient desig- ' Carpenter v. Groff, 5 S. & R.' 162. nation of a justice's official character. ' Perkins v. Johnson, 19 Penn. St. Wright u. Waters, 32 Penn. St. 514. 510. But the official character of the officer * Gibson V. Gibson, 21 Penn. St. 11. must in some way appear. Waugh v. s McCleary v. Sankey, 4 W. & S. 1 13. Shunk, 20 Ibid. 130. See Newlin v. Newlin, 8 S. & R. 41. » Phillipi v. Bowen, 2 Penn. St. 20. 8 Rule XV. ? 49. "" Reese «. Warren, 1 Bro. 255. ' See Purd. 1170, 2054. Depositions " Hamilton v. Menor, 2 S. & R. 70. may also be taken before a United States ''^ Whitehill u. Lousey, 2 Yeates 109. commissioner. Act 21 April 1869, P. Bachman's Case, 2 Binn. 72. 334 DEPOSITIONS. given of the taking of a deposition, between certain hours, the parties are not bound to wait until the expiration of the last named, for a cross- examination, so that reasonable time be given for that purpose.' A copy of the rule need not be produced to the magistrate, unless he require it.^ § 607. A deposition ought to be reduced to writing from the mouth of the witness, in the presence of the justice or magistrate, and in general ought, though it need not, in all cases, be drawn by him. In case of difference of opinion in taking down the words of the witness, the magis- trate should decide. Depositions are sometimes drawn by the counsel of the party, by consent, or where both parties attend ; but without such consent, a deposition in the handwriting of the counsel is inadmissible in evidence.^ In still later decisions, the court lay down the rule to be, that the whole deposition should be in the handwriting of the magis- trate, unless by agreement on its face, it be otherwise provided.* And it is immaterial, whether the counsel who pens the deposition was concerned in the conduct of the cause, or was merely employed to take the deposi- tion, or specially authorized to write it; the magistrate cannot make him his clerk for that purpose, unless by the express consent or acquiescence of the other party .^ So, if it has been drawn by an agent, party, or relation of a party having or feeling an interest in the cause ; and the fact that such a deposition had been filed a number of years, and read on a former trial before arbitrators, and in court, without objection, does not alter the case.* Though the justice may employ the witness to write down his own testimony, it must appear that he actually did so, his testimony being orally delivered in the justice's hearing and pres- ence. A deposition previously written by the witness, the cajJtion being prefixed to it by the justice, is inadmissible.^ Depositions are not ad- missible, if it appear that the witness was not sworn until after his testi- mony had been reduced to writing ; but the error is waived, by the opposite party's not objecting to it, before the justice or examiner.' § 608. Where a deposition is taken before a justice, on interrogatories, it is the duty of the justice, to put the interrogatories severally to the witness, and obtain distinct answers to each ; and if the witness refuse to answer, he must certify the matter at the foot of the deposition.' The ' Bigony v. Stewart, 68 Peiiii. St. ° Swearingen v. Pendleton, 3 P. & W. 318. And see Sweitzer v. Meese, 6 41. Grayson d. Bannon. 8 Watts 524. Binn. 500. ' McEntire v. Henderson, 1 Penn. St. ' Goodwin v. White, 1 Bro. 273. 402. ' Summers v. McKim, 12 S. & B. 405. * Armstrong v. Burrows, 6 Watts Carmalt ». Post, 8 Watts 406. Gray- 266. • The act 16 April 1840, P. L. 411, son V. Bannon, Ibid. 524. A deposi- validated depositions previously so tion may be so taken, by consent. Far- taken. It is a fatal objection, that the mers' and Mechanics' Bank v. Woods, witness was not sworn, until after de- 1 1 Penn. St. 99. Wertz v. May, 21 position taken, when he refused to Ibid. 274. answer, on cross-examination. Mc- ♦ Patterson v. Patterson, 2 P. & W. Donald v. Adams, 7 W. & S. 371. Stone- 200. breaker v. Short, 8 Penn. St. 155. * Addleman e. Masterson, 1 P. & W. " Vincent v. Huff, 4 S. & R. 298. 454. The deposition of a party may be taken, DEPOSITIONS. 335 parties or their counsel, when before the magistrate, may respectively examine and cross-examine the witness, but the questions or interrogato- ries put to him need not be stated in the deposition.' Exhibits spoken of by the deponent should be referred to in the body of the deposition, and either annexed to it, or so marked as to be identified.^ But where such exhibits have been annexed to a previous deposition, and are properly referred to in the subsequent one, and marked by the justice, the identification may be by parol testimony ; and this need not be that of the justice himself.^ The court, on a preliminary rule taken, will strike off depositions, in which there are material interlineations, not noted in the jurat ;* an erasure or interlineation, however, which is shown to have existed at the time the commission was returned and opened by the prothonotary, will be presumed to have been made with the knowledge and consent of the witness, at the time his testimony was taken.^ And the decision of the court below, that an interlineation or erasure in a deposition was made with the consent of the witness, is the determination of a fact, which will not be reviewed on a writ of error, unless the paper-book show that clear and undoubted evidence, tending to repel the presumption, was laid before the court.' § 609. It is no objection to the admissibility jf a deposition, that the witness testifies to its containing the substance of a memorandum, then before him, made to aid his recollection, but which memorandum does not accompany the deposition ; nor will an admission by the witness, that he had made a previous deposition in the case, from a memorandum in the handwriting of one of the parties to the suit, but which was a copy of one of his own, and the substance of which is contained in the deposi- tion in question, invalidate the latter.' The contents of a former depo- sition may, with the consent of the parties, be read to a witness, for the • purpose of refreshing his memory. But the answers to questions put on the taking of a second deposition, must be taken according to the pres- ent recollection of the witness ; and, therefore, if a witness do not recol- lect all the matters contained in a former deposition, and such former without filing interrogatories. Addioks in the notice (in regard to which, also, 0. Carrigan, 1 W. N. C. 358. there is an erasure), the deposition ' 1 Dunl. Pr. 551. would be inadmissible. But the plain- » Petriken v. Collier, 7 W. & S. 392. ti£f has put these exceptions down for Daily v. Green, 15 Penn. St. 127 ; Bell, argument, and, unexplained, they are J. certainly fatal. ' Dailey v. Green, 15 Penn. St. 118. * Wallace v. MoElevy, 2 Gr. 44. A * Williams v. Pool, Dist. Court, deposition is not to be excluded, on ac- Phila., 23 Sept. 1848. Exceptions to count of erasures and interlineations, deposition. Per curiam. There appear unless there be some ground to suspect, to be alterations of which no note or that it has been tampered with. John- memorandum was made by the alder- ston ». Beckham, 3 Ibid. 267. man, as having been made at the time ; " Ibid. they are, also, in very material parts ' These points were decided in the of the testimony. We do not say that, case of Craig v. Sibbett, 15 Penn. St. upon parol evidence of the magistrate, 241 ; but the facts on which the decision at the trial, that these alterations were was based, not appearing in the report, made at the time, and that the deposi- they were taken from the paper-book, tion was duly taken, at the hour named 336 DEPOSITIONS. deposition be, nevertheless, copied into the second deposition, the latter will not be evidence.' A leading interrogatory (that is, one expressed in such manner as to indicate to the witness the answer which it is wished he should make),^ must be objected to, at the time it is put to the witness. If no exception be then taken, the answer of the witness to the leading interrogatory cannot be suppressed on that ground, when his deposition is read on the trial.' § 610. A deposition taken for the purpose of proving the execution of a paper, is not admissible, unless the paper be described with such precision as to identify it with ease and certainty. Thus, where a depo- sition, taken for the purpose of proving the execution of a due-bill, stated, " that the due-bill, dated 28 December 1839, signed P. M. & Co., is in the handwriting of M.," it was held, that the deposition did not describe the due-bill with sufficient certainty, and, therefore, could not be read in evidence.* Where testimony is taken on depositions, as to the genuineness of an instrument, the original must be exhibited to the witness.' The court, as a general rule, will not compel a party to pro- duce books and papers before a magistrate, taking depositions under a pending rule ;' though, where a nominal plaintiff offers himself to testify, he will be compelled to produce his papers.^ § 611. On taking the deposition of a witness, residing more than forty miles distant, or of a going witness, preliminary proof of the witness's disability should be inserted in the deposition itself.' The certificate of a justice, that the witness was duly qualified and examined, at the time ' Bovard v. Wallace, 4 S. & E. 500. are produced before the court and jury, ^ Selin V. Snyder, 7 S. & R. 166. in a public court, there is an evident And see Wogan v. Small, 11 Ibid. 143. restraint upon making a bad use of ' Sheeler v. Speer, 3 Binn. 130. s. p. them. Were we to establish the pre- Snyder v. Snyder, 6 Ibid. 483. Strick- cedent asked for, every defendant who ler V. Todd, 10 S. & R. 63. was unwilling to pay the plaintiff's * Petriken v. Collier, 7 W. & S. 392. demand, would resort to this mode, for And see Christie v. Woods, 2 Yeatea the purpose of fishing up a defence, or 21 3. attack upon the plaintiff, from his books * Weidner v. Conner, 9 Penn. St. and papers. There are few merchants 78. who would be vrilling, with such a * Thomas v. Smith, Dist. Court, power hanging over them, to have all Phila., 27 Oct. 1849. Why plaintiff their letter-books and account-books should not produce books and papers taken to the office of a justice of the before the magistrate who takes the peace, and then overhauled, studied deposition. Per curiam. The act of and copied by their adversary or his 27 Feb. 1798 is a highly penal statute, lawyer. I can only conceive of one and although it does not in terms con- case in which the court might safely fine the rule to produce books and pa- make a rule to produce a paper in pers to the trial of the cause, yet the which the parties had not a common uniform practice under the act has so interest, before a magistrate or commis- confined it. To extend it further would sioner, and that would be, in the case be accompanied with great danger and of a deed or other paper, to which the inconvenience. The right to inspect person proposed to be examined was a books and papers before the trial has, subscribing witness, and necessary to therefore, been confined to the cases prove it. where the parties have a common in- ' Borton v. Streeper, 2 Miles 41. terest in the instrument of evidence ' Poole v. Williams, Dist. Court, called for. Where books and papers Phila., Dec. 1848. MS. DEPOSITIONS. 337 and place stated in the caption, that being in the ordinary form, shows sufficiently that the witness was sworn before he was examined.' It is not necessary, in depositions before a justice, that there should be a certificate at the end of each deposition, that the witness was sworn, and had subscribed it; the general caption and certificate are sufficient.^ Where a witness has been examined on interrogatories, they must be attached to the return, so that the court may see whether the answers are pertinent.^ "When the examination is concluded, the witness signs the deposition, and the judge or magistrate adds his jurat, and delivers the deposition to the party at whose instance it was taken, by whom it must be filed ; as will presently be seen, an omission in this respect is attended with great risk. Although an alderman or commissioner, before whom depositions are taken, under rule of court, may commit a witness who refuses to testify,^ yet the proper course is, for the alderman to report the question to the court, for its action.' § 612. When a deposition has been taken, it ought to be filed in the prothonotary's office ; it is not the property of the party on whose behalf it was taken, nor has he any right to withhold it.^ The depositions belong to neither party, but are for the use of both, and should be deli- vered to the prothonotary, with all convenient speed, as soon as they are taken.' In many of the judicial districts, this is provided for by rule of court ; and if this rule be not complied with, the deposition cannot be read iu evidence.^ This practice was enforced, in Philadelphia, under • Sample v. Robb, 16 Penn. St. 305. ^ Morss V. Palmer, 15 Penn. St. 51. ^ Weidner v. Conner, 9 Penn. St. 78. * Act 26 February 1831, P. L. 92 ; Purd. 622. = Pfiel V. Elmes, Dist. Court, Phila., 24 March 1848. Motion for attach- ment against Charles E. Elmes. Per curiam. In this case, a fl. fa. haying been placed in the hands of the sheriff, against Abner Elmes, and a levy made upon certain personal property, a claim thereto has been made by Charles E. Elmes. The sheriff has a rule pending, to show cause why the time for making return of the fi. fa. should not be en- larged, until he is indemnified by the plaintiff against the claim thus made. Under that rule, the plaintiff is taking depositions before Alderman Thomas D. Smith, and having subpoenaed the claimant, Charles E. Elmes, he appear- ed before the alderman, but refused to give evidence, by the advice of his counsel, upon the ground that, being a party to the proceeding, he could not be compelled to testify against himself. The alderman was thereupon asked , to commit Mr. Elmes, but he refused, and VOL. I.— 22 has certified the proceedings for our de- termination. In this case, the alder- man has acted with entire propriety. However, in cases in which the wit- ness should be compelled to appear and to testify, it is the province of the alderman or commissioner to issue an attachment or commit the witness. Act of 26 Feb. 1831; Purd. 622. Where this is refused by him, the party, laying the proper ground by affidavit, may obtain, by special motion, a subpoena, directed to the witness, to appear and testify at the bar of the court, upon which an attachment may issue, or the witness be committed, according as the circumstances require. So that the motion in this case should have been for a subpoena, and not for an attach- ment. The residue of this opinion has be- come obsolete, since the passage of the act rendering parties competent wit- nesses, and compelling them to testify. » Gordon v. Little, 8 S. & R. 549 ; Tilghman, C. J. ' Nussearu. Arnold, 13 S. & R. 327 ; Tilghman, C. J. 8 Rambler v. Tryon, 9 S. & R. 94. 338 DEPOSITIONS. our rule of court, which appears to contemplate the filing of depositions ;' and the court, on application of the opposite party, may order the filing of depositions, on payment of the costs of taking them.^ If a deposition, though filed under a rule of court, be subsequently taken out of the office, and retained for several years, the court should not permit it to be read.-'' Where notice of the filing is required by the rule, a deposition cannot be read, if no such notice be given ■* otherwise, if the objections would not have availed, had exceptions been taken within the time pre- scribed.' Our rule of court provides, that, within ten days after notice of the filing of a deposition, the opposite party may file with the pro- thonotary a specification of his exceptions, if he have any, to the form or mode of taking the deposition, or to the mode of swearing the wit- nesses, or to any of the acts or omissions of the commissioners, examiners or officers, or of any other person or persons, in and about the same ; and no exception, not included in such specifications, shall be taken on the trial, unless it might have been taken to the evidence, if the witness were ofiered for examination orally in court. Where exceptions are filed, the other party may, before the trial, on motion, obtain a decision of the court upon their sufficiency; and such decision will not be recon- sidered on the trial, but a bill of exceptions will be signed, if requested, in the same manner as if the decision had taken place during the trial. A motion for a decision upon the exceptions, must be made within ten days after the filing thereof; otherwise, a decision thereon can only be had up.on the trial.' § 613. Wlien a deposition may be read. A deposition not taken or filed according to the rules established by the court, is not evidence f and, therefore, if taken ex parte, it is incumbent on the party who ofiers it iu evidence, to show that it was taken according to notice.' A depo- sition, though taken by consent, is open to all legal exceptions, unless the contrary be expressly stipulated f a cross-examination does not pre- clude the taking of any legal exceptions to the competency of the witness ;'" but it is no ground for excluding a deposition, that the wit^ ness refused, on cross-examination, to answer an irrelevant question. '^ After an amendment in the names of the parties, a deposition previously taken cannot be read.'^ That a deposition is not entitled, will not vitiate it, if annexed to a certified copy of the rule under which it was taken ;'' ' Wilson V. Leech, 3 Clark 519. ° Rule xv. § 51. See Cunningham ' Martin o. Dearie, 9 Phila. 186. v. Jordan, 1 Penn. St. 442. Vanarsdalen v. Dickerson, 2 W. N. C. ' Rambler v. Tryon, 7 S. & R. 90. 111. An order for the payment of the * Selin v, Snyder, 7 S. & R. 172. A costs, is a matter of discretion. John- deposition which has been twice read ston V. Pennsylvania Railroad Co., 5 on former trials, without objection, Ibid. 360. Where a rule of court re- cannot be rejected, for want of proof of quires a deposition to be filed, the court notice. Hill v. Myers, 43 Penn. St. 170. will compel a production of it, Ben- ' Burke v. Young, 2 S. & R. 383. nett V. Williams, 57 Penn. St. 404. i" Mifflin v. Bingham, 1 Ball. 272. " Ross V. Barker, 5 Watts 391. " Crossgrove v. Himmelrich, 54 * Ewing V. Alcorn, 40 Penn. St. 492. Penn. St. 203. ' Hagey v. Detweiler, 35 Penn. St. " Horback v. Knox, 6 Penn, St, 377. 409. " Vincent v. Huff, 8 S. & R. 381. DEPOSITIONS. 339 nor is it a valid objection, that the deposition is not in the handwriting of the magistrate, unless it appears to have been written by the party, his agent or attorney j^ and the witness will be presumed to have been sworn, before being examined, in the absence of evidence to the contrary.^ § 614. It is provided by rule of court, that notwithstanding a rule has been obtained for taking the depositions of witnesses, to be read in evi- dence on the trial of the cause, in ca'se of their death, absence from the state, or other inability to attend, yet, in case the witness be resident within the state, and within forty miles of the place of trial, such deposition shall not be read in evidence, unless the party offering it shall satisfy the court that a subpoena has actually been taken out (except the witness is out of the state), and that the witness has been duly subpoenaed, or could not be found, after reasonable pains taken for that purpose.' Under this rule, the mere service of a subpaim on a witness, who resides within forty miles of the place of trial, is not sufficient to admit his deposition ; the party must bring him in by attachment, if he can.* But where a witness, in his deposition, states that he is a resident of another state, it is not necessary to show an attempt to serve him with a subpoena.^ So, if the witness reside more than forty miles from the place of trial, his deposi- tion may be read, without showing a subpoena.^ Where a witness has no home or family, a deposition taken, out of the jurisdiction, at a place where he was at work, when last heard from, may be read.'' And where a witness remained within the jurisdiction, until seven days before the trial, and then went beyond the jurisdiction, without the knowledge of the party, his deposition was admitted.' § 615. It is not necessary to take out a subpoena for a witness who is physically unable to attend, in order to admit his deposition f thus, the deposition of a woman in an advanced stage of pregnancy, may be read, it being shown to be improper for her to attend in person.^" Whether the witness be able to attend in person or not, is a matter for the court below ;" no general rule can be laid down upon the subject ; it must, in some measure, depend upon the sound discretion of the court, and the circumstances of each particular case; subject, however, to review, in case of abuse of the discretion.^^ The deposition of a witness, who has lost his memory from old age, may be read ;^^ and where the deposition * Crossgrove v. Himmelrich, ut siir ' Gould v. Crawford, 2 Peun. St. pra. Piper v. White, 56 Penn. St. 90. 89. ' Sample v. Pobb, 16 Penn. St. 305. « Hamilton v. McGuire, 2 S. & R. 5 Rule XV. §46. And see Mifflin 478. V. Bingham, 1 Dall. 273. Wallace v. ' Covanhoven v. Hart, 21 Penn. St. Mease, 4 Yeates 520. Parker v. Farr, 495. 1 Bro. 252. '" Beitler v. Study, 10 Penn. St. • Whitesell v. Crane, 8 W. & S. 369. 418. Parker v. Farr, 1 Bro. 252. " Vincent v. Huff, 8 S. & R. 381. » Waters v. Wing, 59 Penn. St. '^ Parks v. Bunkle, 3 W. & S. 291. 211. Scott V. Province, 1 Pitts. 189. Dennison v. Fairchild, 7 Watts Rankin v. Cooper, 2 Bro. 13. 309. 0' Conner v. Layton, 2 Am. L. ' Pennock v. Freeman, 1 Watts 401. Reg. 121. Fuller V. Guernsey, 24 Pitts. L. J. 200. " Emigt). Diehl, 76 Penn. St. 359. 340 DEPOSITIONS of a party has been taken, under the act of 1869, it may be read in evi- dence, after his decease, and the substitution of his executors.' But the deposition of a dying man is inadmissible, if his condition precluded the possibility of cyoss-examination.^ The defendant cannot read a deposi- tion taken by the plaintifi", if the witness has been subpoened by neither party, and there be no proof of his inability to attend ;^ and the rule is the same as to the depositiCn of a party f the party seeking to use such deposition, must show that he has used due diligence to procure the personal attendance of the witness.* So, a deposition taken by consent, whilst a cause is depending before arbitrators, from whose award an appeal has been taken, cannot be read on the trial of the appeal, unless the witness be dead, or not within the jurisdiction.^ § 616. A deposition is but secondary evidence, and admissible on proof of its having been taken under a competent authority, on due notice, and in a proper manner ; and, also, on proof that the contin- gency, for which it was intended to provide, has actually happened ; and if it be admitted without this, it is error. Therefore, where a deposition was admitted on the ground of inability to attend, and the proof was, that the witness had broken her leg eight years before, and had again been hurt, the preceding autumn, but was a stout, active woman of her age, and had come, a few days before, to within ten miles of the court- house ; that she was not able to walk to court, nor would it have been prudent to bring her to court on a wet day, such as that on which the cause was tried, unless in a covered carriage, in which she might have been safely brought ; it was held, that the deposition ought to have been rejected.' In cases of secondary evidence (such as a deposition is, as we have just seen), the questio'n, whether a sufficient introductory ground was laid, has always been the subject of a writ of error. In Sanderson V. Lamberton,^ the supreme court reversed the judgment, because the court below had rejected evidence of an obligor's handwriting, although evidence had been given that the subscribing witness was out of the juris- diction ; and that, after diligent inquiry, no person could be found to prove his signature. So, a question of what was reasonable notice, where no particular time was specified in the rule, was entertained in Hamil- ton V. McGuire f and the same principle was involved in Sweitzer v. Meese,'" and also in Carpenter v. Groff,'' where the decision of the court below was reversed. There is an endless list of other cases, where a court of error will inquire into the sufficiency of introductory evidence ; as, for instance, of the existence, loss of, and search for, deeds or other writings ; of the notice to produce them ; of evidence of interest, or an ' Evans v. Reed, 78 Penn. St. 415. « Forney ». Hallagher, 11 S. . Magwire, 6 Bl. C. C. 137. not make out a case. Montgomery's * Pingree v. Griffin, Diet. Court, Estate, 3 Brewst. 306. Phila.. 27 May 1848. Why the inter- 344 COMMISSIONS. rogatories or cross-interrogatories, before the commission issues ;^ these should be referred to a master for settlement, subject to review by the court ; and if there be any doubt of their relevancy, the court will reserve its decision, until the return of the commission.^ After the plaintiff has executed a com'mission, he may have a rule for a new com- mission, to examine the same witnesses on other matters ;' or he may take the deposition of the same witness, within the county.* But a party who has neglected to file cross-interrogatories, cannot take a new commission, and under the pretext of a cross-examination, put leading ■questions to the witness.' § 621. A commission regularly issued, is a stay of all proceedings, so that the plaintiff cannot proceed to trial, or the defendant move for judgment as in case of nonsuit, until the court, on application, vacate the rule,^ though, if the party who sues out a commission do not use due diligence to get it returned in proper time, the court will permit the trial to proceed, notwithstanding the commission.' What shall be a reasonable time for the execution and return of a commission, depends upon the circumstances of the case, such as the remoteness or proximity of the place where the commissioners and witnesses reside, the frequency and facility of intercourse, &c. The period of eight months from the time of obtaining the rule, seems to be sufficient for the return of a commission to be executed in Great Britain, or other maritime country in Europe ; and it has been held, that three months was a sufBcient time for executing and returning a commission arrived in London.' § 622. Notice. A commission to examine witnesses in another state, is governed by the rules of chancery, which require written notice of the order, and of the names of the commissioners, to be served on the adverse party, at least fifteen days befdre the commission issues ; there must be such reasonable designation of them, as will inform the party where they may be found.' Unless such notice be given, the depositions taken under the commission cannot be read.'" Where an executor dies, notice of the execution of a commission cannot be served upon his executor ; 9,n administration de bonis non must be raised." But a hon& fide sub- stantial compliance with the rule as to notice, is sufficient ; if sufficiently described, the omission of the Christian name of the commissioner will not vitiate.'^ And an objection that the commission issued on a shorter notice than required by rule of court, is waived, by filing cross-interro- ' The objections should be taken by ^ MoKinney v. Dows, 3 Watts 250. exception, not by rule. MoCurdy v. « Brain v. Rodelicks, 1 Gaines 73. Connecticut General Life Insurance ' Cooper v. Mitchell, 1 Phila. 73. Co., f> W. N. C. 211. 8 Coles v. Tbompson, 1 Caines 517. ^ Cocker v. Franklin Hemp and Bag- Pell v. Bunker, 2 Ibid. 46. ging Co., 1 Story 169. See Macdon- » Patterson v. Greenland, 37 Penn. aid V. Garrison, 2 Hilt. 510. Blaisdell St. 510. V. Raymond, 9 Abb. Pr. 178 n. " Coxe v. Ewing, 4 Yeates 429. Van » Hook V. Hackney, 16 S. & R. 385. Amringe v. Ellmaker, 4 Penn. St See Fisher v. Dale, 17 Johns 343. Rar 281. ney v. Weed, 1 Barb. 220. " Montgomery's Estate, 3 Brewst. * Hoffman v. Kissinger, 1 W. & S. 306. 277. 1^ KeUum v. Smith, 39 Penn. St. 241. COMMISSIONS. 345 gatories.^ The commissioner may take proof of the due service of notice upon the commissioner named by the other party, of the time and place of executing the commission ; and in such case, notice to the party him- self need not be shown.^ If the commission issue ex parte, notice of the time and place of executing it need not be given.^ A notice of the tak- ing of depositions on a day certain, to be adjourned from day to day, until completed, is valid, and depositions taken under it, at an adjourned day, may be read.'' § 623. Execution of a commission. Commissions for the examina- tion of witnesses now run jointly and severally ; notice is given to all the commissioners, and if any neglect or refuse to attend, or cannot be found, the others are at liberty to proceed without him f but the commission cannot be executed by one of the commissioners and a third pierson.' Where a commission is directed to several commissioners, residing in different counties, one of them may take depositions in a county named, though not that of his residence.' A commission issued to George Dunlair is not well executed by George Dunbar f where, however, a commission is returned by a person of the same name with the commissioner to whom it was directed, there is a presumption of identity.^ If the law of the foreign country prohibit the execution of the commission, by unofficial persons, the depositions may be taken before a judge of the country, in their presence.^" The testimony must be taken in the absence of the attorneys for the respective parties ; if one of them were present, though taking no part in the examination, it viti- ates the execution." The commission confers power to administer an oath to the witnesses ;'^ but it is not necessary the witnesses should be sworn by the commissioners ; if the oath were administered by a justice, it will be presumed to have been done in their presence,'^ and if the caption state that the witness was duly sworn, it is not vitiated by a statement in the certificate, that he was first duly sworn " to testify the truth."" § 624. It is not necessary the interrogatories should be incorporated ' American Insurance Co. ». Francia, Newton v. Porter, 69 N. Y. 133. 9 Penn. St. 390. " Winthrop v. Union Insurance Co., ^ Tussey v. Behmer, 9 L. Bar 45. 2 W. C. C. 7. ' Frevall v. Bache, 5 Cr. C. C. 463. " Hollister v. Hollister, 6 Penn. St. * Knode v. Williamson, 17 Wall. 449. Cunningham v. Otis, 1 Gall. 166. 5S6. See Buddicum v. Kirk, 3 Cr. Otherwise, if the depositions be taken 293. on letters rogatory, in the usual course ^ Berghaus B. Alter, 9 Watts 386. of procedure in the foreign tribunal. Pennock «. Freeman, 1 Ibid. 401. See Kuehling v. Leberman, 9 Phila. 160. Louden v. Blythe, 16 Penn. St. 532. And see Loewenstein v. Biernbaum, 6 » Kingsbury v. Kimball. 32 Penn. St. W. N. C. 452. 518. And see Banert v. Day, 3 W. C. " Frank v. Colhoun, 59 Penn. St. C. 243. Willingsu. Consequa, Pet. C.C. 381. 3Q2 '' Vaughan v. Blanchard, 2 Dall. '"'Nussear J). Arnold, 13 S. & R. 323. 192; S c. 1 Yeates 175. Lincoln «. 8 Brevfoffle v. Beckley, 16 S. & R. Battelle, 6 Wend. 475. 264 " Clarke v. Benford, 22 Penn. St. Wallace v. McElevy, 2 Gr. 44. See 353. See Keene v. Meade, 3 Pet. 1. 346 COMMISSIONS. in the deposition, if severally answered ;' it is enough, that they be substantially answered, in the course of the deposition ;^ but each interrogatory must be separately answered, at least, in substance f inter- rogatories, however, directed to be put to the witnesses of one party, need not be put to those of the other;* and it is sufficient, that the witness refer to his answer to a former interrogatory, as containing all his knowledge on the subject.' It is a fatal objection to the execution of a commission, that the last general interrogatory is not answered f but the court may return the commission for that purpose.^ A paper intended to be given in evidence, must be proved before the commissioners, on oath f to enable the witness to testify to its genuineness, the original must be exhibited to him,' and it must be described in the body of the deposition, and either annexed, or so marked as to be identified ;'" but, if so marked, it may be identified by parol.'' It is not necessary, the depo- sitions should be subscribed by the witnesses ;'^ nor that they should be in the handwriting of the commissioners ; they may employ a clerk for that purpose -^ but the jurat must be signed by the commissioners, with their names of office." It is usual to accompany a commission with minute instructions to the commissioners, both as to the\ manner in which they are to proceed to take the examination of the witnesses, and as to the cautions to be observed in returning the commission, after the depo- sitions have been taken ; commissioners can seldom commit an error, if they read their authority with care, which it is their duty strictly to pur- sue, and recollect that, though nominated by a party, they are not his agents, but are appointed by the court.'' A bond fide substantial compli- ance with the rules of court, is not to be defeated by a mere technicality." § 625. Return. The rules of court in respect to the return of a com- mission, must be strictly complied with ; but if inadvertently omitted, it will be returned to the commissioners for re-execution ;'^ a proper re- turn is indispensable to the reading of the deposition.'* The union of the commissioners in sealing the return, and in indorsing the seals on the envelope, tends to prevent mistake, accident or fraud." That the return, however, was directed to the plaintiff's attorney, and the deposi- ' Clarke v. Benford, 22 Penn. St. 353. Railroad Co. v. Quick, 61 Penn. St. ' Louden v. Blythe, 16 Penn. St. 328. 532. Nelson v. United States, Pet. G. " Dailey ». Green, 15 Penn. St. 118. C. 235. See Brumshill v. James, UN. Y. 294. » Ketland v. Bissett, 1 W. C. C. 144. i^ Moulson v. Hargrave, 1 S. & R. Withers v. Gillespy, 7 S. & R. 10. 201. * Pigott V. Holloway, 1 Binn. 436. " Keene v. Meade, 1 Pet. 1 ; s. c. 3 » Tussey v. Behmer, 9 L. Bar 45. Cr. C. C. 51. ' Riehardson v. Golden, 3 W. 0. C. '* Root v. Stiles, 3 Caines 128. 109. Dodge V. Israel, 4 Ibid. 323. " For letter of instructions, see Dunl. Kimball v. Davis, 19 Wend. 437 ; s. c. Forms 245. 25 Ibid. 259. " Sweitzer v. Meese, 6 Binn. 502. ' Hinkley v. Insurance Co., 4 Penn. Wright v. Waters, 32 Penn. St, 514. St. 470. Kellum v. Smith, 39 Ibid. 241. « Jones V. Ross, 2 Dall. 143. " Wain v. Freedland, 2 Miles 161. » Weidner v. Conner, 9 Penn. St. 78. '» ggotj „ jjo^n, 9 Penn. St. 407. '» Petriken v. Collier, 7 W. & S. 392. '» Wain v. Freedland, ut supra. See Susquehanna and Wyoming Valley Kingston v. Lesley, 10 S. & R. 383. COMMISSIONS. 347 tion was submitted to, and examined by the defendant's attorney, before filing, though irregular, is not ground for excluding the deposition.^ It is the duty of the party to iile the return, where both parties have joined in the execution f but that the return is not marked "filed," is no objec- tion to the deposition, if filed in fact.^ The rules of court provide, that, on the return and opening of any commission, either party may give notice thereof to his opponent, who shall, within ten days after service of such notice, file with the prothonotary a specification of his exceptions, if any he have, to the form or execution of the commission, or to the mode of swearing the witnesses, or to any of the acts or omissions of the commissioners, or any other person or persons in and about the same. And no exceptions to the admissibility of the evidence so returned or filed, not included in such specification, can be taken on the trial of the cause, unless it be an exception that might be taken to the evidence, if the witness were oflTered for examination orally in court. In all cases of exception, so filed by either party, the other party may, on motion, obtain a decision of the court upon the sufficiency or insufficiency of the exceptions ; and such decision will not be reconsidered upon the trial, but a bill of exceptions thereto will be signed, if required, at the trial, in the same manner as if the decision had taken place during the trial. But such motion for a decision must be made within .ten days after the exceptions are filed ; otherwise, a decision thereon can only be had upon the trial.^ A mere formal objection must be made within the time, and in the mode, prescribed by the rule of court f it is too late, on the trial f but if an exception be filed within the time prescribed, an. objection, for irregularity, may be made on the trial.' m. Of letters rog-atory. § 626. Where the government of a foreign country (as, for example, those of Sweden, Cuba, or the island of St. Croix) will not permit a com- mission to be executed,^ the court will issue letters rogatory, after the form and practice of the civil law,' on the application of either party, to take depositions in any cause depending therein.'" But letters rogatory will not be issued where it appears that there is no difficulty in executing a commission.^' § 627. " By the law of nations, the courts of justice of difierent coun- 1 Clarke v. Benford, 22 Penn. St. St. 442. 353, ^ In Prec. Chan. 84, Hutching said, ^ New York State Bank v. "Western he remembered that the Grand Duke Bank, 2 Miles 16. of Tuscany had laid several persons * Summers v. Wallace, 9 Watts 161. by the heels, for executing a' commis- ' Rule XV. ? 51. sion to examine witnesses, in his do- ° Syphers v. Meighen, 22 Penn. St. minions, without his leave. 125. ' The form of letters rogatory is ^ Winans ». New York and Erie prescribed by Rule xxii. I 77. Railroad Co.,, 21 How. 88. York Co. '» Nelson v. United States, Pet. C. C. ». Illinois Central Railroad Co., 3 235. Republic of Mexico v. De Aran- Wall. 107. Blackburn v. Crawford, gois, 3 Abb. Pr. 470. See Hoff. Ch. Ibid. 175. Doane«. Glenn, 21 Ibid. 33. Pr. 481-2. ' Cunningham v. Jordan, 1 Penn. " Froude v. Froude, 1 Hun 76. 348 LETTEKS ROGATORY. tries are bound to be mutually aiding and assisting to each other, for the furtherance of justice ; hence, when the testimony of witnesses, who reside abroad, is necessary in a cause, the court where the action is pending, may send to the court or tribunal within whose jurisdiction the witnesses reside, a writ patent or close, as they may think proper, deno- minated by civilians a commission sub mutuce vieissitudinis, from a clause which it generally contains. By that instrument, the court abroad is informed that a certain claim is pending, in which the testimony of cer- tain witnesses, who reside within its jurisdiction, is required ; and it is requested to take their depositions, or cause them to be taken, in due course and form of law, for the furtherance of justice and svh mutuce vieissitudinis obtentu — that is, with an oifer, on the part of the court mak- ing the request, to do the like for the other in a similar case. If these letters rogatory be received by an inferior judge, he proceeds to call the witnesses before him, by the process commonly employed within his juris- diction, examines them on interrogatories, or takes their depositions, as the case may be ; and the proceedings being filed in the registry of his court, authentic copies thereof, duly certified, are transmitted to the court a quo, and are legal evidence in the cause. If the letters are directed to a court of superior jurisdiction, they appoint an examiner or commissioners for the purpose of executing them, and the proceedings are filed and returned in the same manner.'"^ § 628. " It is to be regretted," it is said, " that the principle of the civil law, with respect to letters rogatory, has not been introduced into our practice. Commissions of dedimus potestatem are liable to great objections ; it is sometimes difficult to procure the names of commis- sioners, and when they are obtained, it is often impossible to prevail upon them to act ; they have no power to compel the attendance of witnesses ; and, as they rarely receive a compensation for their services, they do not care much about attending themselves. Thus, the return of the commission is protracted, the attorney is unable to account for the delay, his opponent is ordered to press for a trial, and an honest creditor is frequently deprived of a just claim. We may add, that the witnesses cannot be prosecuted for perjury before the tribunal of their own country ; nor, while they remain there, can they be prosecuted in that in which the cause was tried. It often happens, too, that the con- stituted authorities of the place consider these commissions as an encroachment upon their jurisdiction, and refuse to permit them to be executed. Instances of this kind have sometimes happened, in cases of commissions which have been issued by the courts of the United States, the commissioners having been threatened with punishment, if they proceeded to act under them."^ § 629. Depositions taken under letters rogatory, will not be excluded, because the plaintifi''s attorney attended at the taking of them, in con- ' Hall Ad. Pr. 37-8 n. 1 Greenl. out of a federal court, where the United Ev. § 320. See Rev. Stat. § 875, as to States are parties in interest, the return of letters rogatory, issued ' Hall Ad. Pr. 41-2. NONSUIT. 349 formity to the usual course of procedure in the foreign tribunal ;^ nor because the interrogatories are not formally, if substantially, answered.^ Where letters rogatory are regularly issued from another state, the court here will compel the witnesses summoned to testify, holding it to be no objection to a witness being compelled to testify, that his testimony is alleged to be irrelevant." If it be objected, that the letters rogatory are not issued according to law and the practice of the court from whence they purport to come, the court executing the commission will not decide the point, but will give an opportunity to the party objecting to apply to that tribunal to have them vacated, holding them to be regular, unless so vacated.* Our courts have power to compel the attendance of wit- nesses for CKamination on letters rogatory.^ v. Nonsuit for not proceeding- to trial. § 630. When assizes were held in the several counties of this state, by the judges of the supreme court, the defendant had no mode, at common law, of compelling the plaintiff to bring on his cause for trial," although he was permitted, in case of the plaintiff's neglect, to proceed himself to trial by proviso. The trial by proviso took its name from a clause in the jury process, which provided that if two writs came to the sheriff, he should only execute and return one of them : that is, if two writs came to him in the same cause (the one being supposed to be delivered on the part of the plaintiff, and the other on the part of the defendant), he should summon but one jury for the trial of the issue ; but the trial should, in all cases, be by the plaintiff's record, if he entered it in time, after giving due notice of trial f the defendant, however, could not carry the cause down by proviso, until there was laches in the plaintiff,* except in a cause where the defendant is regarded as an actor, as in feigned issues or actions of replevin." Where the plaintiff has given notice of trial, the defendant is not bound, under his distringas by proviso, also to give notice.'" § 631. To remedy this inconvenience, it was provided by the act of 1767 (which is substantially a copy of the stat. 14 Geo. II., c. 17), that " where any issue shall be joined in any action or suit at law, and the ' Kuehling v. Leberman, 9 Phila. is said, the plaintiff was not obliged to 160. file his venire, against his will. And = Nelson v. United States, Pet. C. 0. see Welch v. Baker, 1 Ibid. 171. 235. Seely v. Gregory, cited Ibid. » MoKenzie's Case, 2 Pars. 227 ; '1 Bl. Com. 356-7. 2 Saund. 336, 3. 0. 1 Clark 356. note 4. There must be a motion and * Ibid. rule for a trial by proviso. Codwise v. " Act 8 April 1833, | 18, P. L. 308 ; Hacker, 2 Caines 386. Purd. 623. So have the courts of the ' Hannum v. Gregg, 2 Yeates 240. United States. Rev. Stat. § 875. There could not be a trial by proviso " It was held to be a contempt to against the commonwealth. Respub- pocket the venire ; nevertheless, the lioa v. Coates, 2 Ball. 109. Contrk, plaintiff was entitled to a continuance, People v. Bank of Washington, 7 Cow. if the defendant had no proviso rule. 519. Keppele v. Williams, 1 Ball. 29. But ° Leather v. Leather, 2 Yeates 310. in Hannum v. Gregg, 2 Yeates 240, it '° Peelet v. Hess, 1 Yeates 302. 350 NONSUIT. plaintiff in any such action shall neglect to bring such issue on to be tried, according to the course and practice of the court, it shall and may- be lawful for the judges of the said courts, at any time after such neglect, upon motion made in open court, due notice having been given thereof, in open court, the preceding term, to give the like judgment for the defendant, in every such action, as in cases of nonsuit, unless the said judges shall, upon just cause and reasonable terms, allow any further " time for the trial of such issue ; and if the plaintiff shall neglect to try such issues, within the time so allowed, then the said judges shall pro- ceed to give such judgment as aforesaid."^ § 632. Under our statute, the practice is, to obtain, on motion, a rule for trial, at the next term, or non-pros., which will be made absolute, unless sufficient cause be shown.^ The rule for trial or non-proa, is a continuing one ; it remains in force until the cause is concluded, not- withstanding it may have been once tried during the existence of the rule, or continued at the instance of the defendant ;^ it remains in force until expressly discharged.* But where a plea is subsequently added;, and the facts referred, the rule for trial is virtually vacated.' The entry, however, of a continuance, by mistake, which is immediately discovered, and notice given, does not prevent the party from insisting on his rule for trial or non-pros.^ But if the rule have been pending for several years, the defendant ought to give reasonable notice of his intention to proceed under it.^ Such rule does not preclude the plaintiff from show- ing a legal ground for a continuance ;^ but, if the plaintiff in ejectment receive a, plea, he cannot object, when the case is called for trial, under the rule, that he has not filed a declaration.^ Judgment of non-pros. cannot be signed in the prothonotary's office ; it can only be had, on mo- tion and notice i^" and it will then be granted, unless the plaintiff show some precise legal ground for the postponement of the trial, or some cir- cumstances of hardship, ngt arising from his own inattention, or that of his attorney or agent.'" A non-pros., entered by consent, under a mis- apprehension of the existence of a rule for trial, will be taken off, on condition that the defendant consent to the entry of such rule, as of the preceding term.^^ A non-pros., under the rule, by the express terms of 1 Act 21 February 1767," 1 Sm. L. ' Halhead v. Ross, 1 Ball. 405. 271; Purd. 1169. The only material Where the state is plaintiff, and affects difference between this act and the Brit- delay, the court will assign a day for ish statute is, that the latter provides the trial ; and a subsequent amend- for due notice of such intended motion, ment of the declaration will not deprive whereas, our act requires that such no- the defendant of the benefit of the rule, tice should have been given in open Respublica v. Coates, 1 Yeates 35. court, at the preceding term. " Nesbit v. Pope. 2 Ball. 143. ^ A rule for trial or non-pros, can ' Wallace v. Boyd, 1 Sm. L. 153. only be had, where there has been prior ' Schlosser u. Lesher, 1 Ball. 251. laches on the part of the plaintiff. Han- ° Wenn v. Adams, 2 Ball. 156 ; s. c. num V. Gregg, 2 Yeates 241. Todd v. 1 Yeates 156. Galloway v. Saunders, Thompson, 2 Ball. 105. 2 S. & R. 405. » Thurston v. Murray, 3 Binn. 413. >» McKegg v. Crawford, 1 Ball. 347. Smith V. Bavids, 1 Ball. 410. " Hammond ». Haws, Wall. G. 0. 1. * King of Spain v. Oliver, Pet. C. 0. " German v. Wainwright, 2 Ball. 266. 217. NONSUII. 351 the statute, has the effect only of a judgment of nonsuit ; and the defend- ant is entitled to his costs, as in case of a nonsuit. § 633. The practice in this respect, is now regulated by the act of 30 March 1812," whereby it is provided, "that when a cause at issue shall be regularly set down for trial, in any court of record within this com- monwealth, either by the plaintiff or the defendant, and the plaintiff is not ready for trial, when the cause is called up in its order, the court, on motion of the defendant,^ may order a nonsuit to be entered, without previously granting a rule to try or nonpros., unless the plaintiff shall adduce such reasons for postponing the said cause, as would have been a sufficient ground for postponement, if the application therefor had been made on the behalf of the defendant." § 634. Under this statute, a nonsuit cannot be entered, unless the cause were regularly at issue ; otherwise, it is not properly on the trial- list.^ But in ejectment against several defendants, who plead jointly, the plaintiff may be nonsuited, after the death of one of the defendants, without a prior substitution of his represejitatives.^ The commonwealth cannot be nonsuited.* The court will take off a nonsuit, on the ground of surprise f as, where the cause was put down by the clerk, without an order f and where the plaintiff's name is erroneously printed on the list, and the wrong counsel's name is inserted therein.* But although a non- suit will ordinarily be taken off, where there has been an innocent mistake of counsel, it will not be done, where it plainly appears the plaintiff must have been nonsuited on the merits.' ' 5 Sm. L. 361 ; Purd. 1169. clerk was right, for the order was not ' The act 14 April 1846, P. L. 329 ; given, until after the venire had issued. Purd. 1169, authorizes the courts of It went down for the succeeding term, Philadelphia, whenever a cause is without an order, and of this the plain- reached in its order on the trial-list, to tiiFwas ignorant. Nonsuit taken off. enter a nonsuit, without motion, unless * Walter v. Salamander Co., 1 W. N. a legal reason be assigned for a con- C. 285. tinuance ; and such nonsuit cannot be ' Gault v. Mitchell, Dist. Court, be taken off, by agreement, without the Phila., 10 March 1848. Motion to take payment of four dollars to the pro- off nonsuit. Per curiam. We are dis- thonotary, for the use of the county, to posed 'to bo liberal in taking off a non- be taxed as part of the costs, unless suit, where it has been a mere mistake otherwise agreed in writing. of counsel. Here, the nonsuit would ' Taylor v. Pearl, 2 Miles 291. Rule be taken off, on the surmiseof the plain- xxxix. § 132. The cause cannot be put tiff's counsel, that he did not hear or down for trial, whilst a motion to quash understand the direction of the judge an appeal is pending on the argument to call another witness, after he had list. Keller v. Cunningham, 6 Penn. declined stating what he proposed to St, 376. prove by the witness then on the stand, * Niokle V. MoFarland, 7 Watts 406. if there were any evidence that there * People V. Thurman, 3 Cow. 16. was any material witness actually in ' King V. Clendamel, 2 Miles 168. court whom he could have called. But ' Myers v. Riot, Dist. Court, Phila., the truth is, he had called over several 18 March 1848. Motion to take off names on his subpoena, and it was only nonsuit. Per curiam. The plaintiff, upon being urged to proceed that he it appears by the aiBdavit, was led called John J. 'Taylor to the stand — astray by the refusal of the clerk to' and as to him, after having been asked put the cause on the trial-list for the once by defendant's counsel and twice third period of September term. The by the judge — what he proposed to Sa2 JUBT PROCESS. V. Of the jury process. § 635. Venire. The cause being ready for trial, the prothonotary is required to prepare and deliver to the sheriff, as soon as conveniently may be, a venire, commanding him and the jury commissioners to draw and summon a panel of jurors, for the trial of all such causes as are at issue.^ The venire is to be awarded of the body of the county, in a form prescribed by the statute. Forty-eight special jurors are to be summoned, in Philadelphia ; and in the other counties of the state, not less than thirty-six, nor more than sixty. The judges are authorized to issue any number of venires for the attendance of jurors upon their respective courts, during the regular or adjourned terms, as shall be necessary for the prompt disposition of business. The jurors are to be summoned to attend during one or two weeks, as the judges shall direct. The venires may issue at different times ; but at least thirty days before the time at which the jurors are required to attend.^ The rules of court provide that no cause shall be placed on the trial-list, until after issue joined ; nor unless the same shall be at issue, before the issuing of the venire for the period.^ The mode of selecting and drawing jurors in Phila- delphia is prescribed by the act of 1858.^ If a special venire be awarded, the prothonotary is required to indorse the day assigned for the trial of the cause ; and the sheriff is required to summon the jurors for that day.* § 636. Special juries. The jurors contained in the panel are either special or common ; a common jury is one returned for the trial of all causes at issue ; a special jury is one for the trial of a particular cause. With us, the practice of summoning a special jury has fallen into disuse; and in its place, the trial of causes before a struck jury has been adopted. The sheriff returns a panel of forty-eight special jurors, a list of which the prothonotary is required to deliver to the attorney of each of the parties, at least eight days before the time of striking ; to which is to be subjoined a notice of the time and place of striking the same. This notice entitles the plaintiff or defendant to strike from the panel any number not exceeding twelve, names each; which may be done ex par^, at the time appointed, without further notice. The party may strike any less number than twelve; but it must be done at the time appointed, as no jury can be struck at bar.^ The prothonotary draws twelve names prove — either declined to answer or * Act 20 April 1858, P. L. 354; stated that he was endeavoring to ascer- Purd. 838. tain. It is plain, that the case failed ' Rule xxi. ? 75-6. A special venire from no fault of the counsel, but be- is required only in case of a view, cause it was not ready for trial. Mo- McDermott v. Hoffman, 70 Penn. St. ' Act 14 April 1834, § 96, P. L. 358 ; « Rule xxi. § 72-3. See Hall v. Pe- Purd. 832. Act 10 April 1867, ? 3, P. rott, Bald. 123. In practice, the coun- L. 62 ; Purd. 829. sel strikes out the objectionable names, ^ Act 18 April 1876, P. L. 29 ; Purd. signs and indorses the struck list 2028. with the title, term and number of the ' Rule xxxix. § 132. case, and returns it to the court-office. JURY PEOCESS. 353 from the residue of the panel, and these constitute the jury, unless chal- lenged.* A special venire is not necessary, in case of a struck jury.^ § 687. Exemption. No person is exempt from serving as a juror in any of the courts of the city and county of Philadelphia, unless he have filed an affidavit, setting forth the ground for such exemption, with the clerk of the board for selecting and drawing jurors, prior to the 1st day of July, in the year next preceding that for which he claims exemp- tion ; any such affidavit, when filed, is to be submitted to a judge of one of the courts, and if it set forth good and sufficient grounds for exemp- tion, the name of such person is not to be placed in the wheel containing the names of jurors for the next succeeding year ; but it is at the dis- cretion of the judge or judges holding any court in such county, to excuse from service any person summoned as a juror, on application in open court, and good and satisfactory cause shown.* § 638. Certain persons are exempted from serving as jurors, and their names are not to be put in the wheel.^ By act of congress, artificers and workmen employed in the armories and arsenals of the United States are exempt from service as jurors in any court.' Surgeons are exempt by stat. 5 Hen. VIII. c. 6.^ Other persons are privileged on account of their professions or offices, such as attorneys, counsellors and other officers of the courts.' So, persons will be excused from serving as jurors, who hold offices of a public nature, and have no power to act by deputy ; but not if the trust be of a private nature, or the person have power to act by deputy.' And no person is liable to service as a juror more than once in the same year.' § 639. Views, The nature of the cause will sometimes require the jury, or some of them, to see the very spot where the matter in dispute arises ; in which case, after issue joined, either party may move the court for a view. By the act of 1834,*° " where a view shall be allowed in any cause, six of the first twelve of the jurors named in the panel, or ' See Long v. Spencer, 78 Penn. St. '• Rev. Stat. ?1671. 303. That a person stricken from the ' Rob. Dig. 337. Persons above the list of special jurymen was sworn as a age of seventy years, and non-residents talesman, is no ground for a new trial, of the county, are exempted by stat. 13 Jordan v. Meredith, 3 Yeates 318 ; s. c. Bdw. I. st. 1. In a note to Sharswood's 1 Binn. 27. And see Koenig «. Bauer, Blackstone, vol. iii., p. 362, it is said, 1 Brewst. 304. that a person is exempted, if above '' McDermott v. Hoffman, 70 Penn. sixty years of ago. An alien cannot gt. 31. object to serving, though it is ground ' Act 31 March 1870, P. L. 732; of challenge. Lingan v. Marbury, 1 Purd. 840. Byaot 13May 1871,P.L. Cr. C. C. 365. 267, the certificate of the command- ' 3 Bac. Abr. 758. And see Res- ing officer is sufficient evidence of publioa v. Fisher, 1 Yeates 352. Burr's the exemption of a uniformed militia- Trial, 374, 382. man from jury service. They are ex- * Piper's Case, 2 Bro. 59. See Peo- emnt by act 1 April 1867, P, P. L. pie ?;. Holdridge, 4 Lans. 511. 652. ' Act 14 April 1834, ? 136, P. L. * Guardians of the poor, directors of 365 ; Purd. 835. Act 27 March 1865, the public schools, and wardens of the P. L. 799. port of Philadelphia, are exempt from "> P. L. 368 ; Purd. 837. jury service, whilst in office. VOL. I. — 23 354 VIEW. more of them, shall be taken by the sheriff, or other officer, to the place in question, and they shall have view thereof. And at the calling of the jury to try any cause in which a view shall have* been had, those of the viewers who shall appear shall first be sworn or affirmed, and so many jurors only shall be drawn, and added to the said viewers, as shall, after default and challenges allowed, make up the number twelve, to be sworn or affirmed for the trial of such cause."^ The courts have established a regulation with respect to viewers, "that no trial shall be put off, on account of a view not being had by six of the first twelve .of the jury as they stand in the panel, provided any of them have viewed, and some of them do appear to try the cause ; and such of them who have viewed and appear, shall be first sworn on the trial, and the form of venire shall be altered accordingly."^ § 640. A view can only be granted, on special motion f if, however, the other party have participated, without objection, a view had, without motion, will not be held ground for setting aside the proceedings.* It is too late, to move for a view, at the session of the court at which the case is marked for trial f and an order for a view will be discharged, though founded on a certificate of counsel, where it was plainly unnecessary.^ If evidence be laid before the viewers, which is afterwards ruled out by the court, it is ground for a new trial.' The right of peremptory chal- lenge does not extend to viewers.* The expense of a view is costs in the cause, to be paid by the losing party.' VI. Of evidence and -witnesses. § 641. Evidence. Another step, introductory to a trial by jury, is the procuring testimony by the respective parties, in support or denial of the allegations put in issue by the pleadings ; the general rule being, that the proof must conform to the issue,'" and that everything which is put in issue must be proved, and no more." The evidence, also, must be the best of which the nature of the case is susceptible ; secondary evi- dence cannot be given, as long as proof of a better kind can be had ; thus, a copy of an instrument, or parol evidence of its contents, cannot be admitted, if the original be in existence, and capable of being pro- duced by the party who relies upon it.'^ On the general issue, the plain- 1 Stat. 4 Ann. c. 16, ? 8. Rob. Dig. •» Schwenk v. Umsted, 6 S. & R. 351. 45. Schuylkill Navigation Co. v. Farr, 4 ' Schwenk v. Umsted, 6 S. & R. W.& S. 362. 354. And see act 14 April 1834, ? 124, » Sherer v. Hodgson, 1 Bjnn. 535. P. L. 363 ; Purd. 837. " Lee v. Conard, 2 Whart. 155. ' The affidavit for view must state the " Anderson ». Ilayes, 2 Yeates 95. particular circumstances which render Sommer v. Wilt, 4 S. & R. 19. Hake it necessary. Coates v. Gauger, 6 Cow. v. Fink, 9 Watts 336. Hill v. Hill, 32 578. Penn. St. 511. * Brown v. O'Brien, 3 Clark 115. " Campbell v. Walla S. & R. 241. See Geyger v. Geyger, 2 Dall. 332. ' Thomas v. Smith, svpra, ^ 610 n. ' Borton v. Streeper, 2 Miles 41. ' Goldey v. George, Dist. Court, Phila., 13 June 182.5. MS. PRODUCTION OP DOCUMENTS. 363 order should not be made, notice of which should be given to the other party ; and the latter is entitled to the same time to answer the rule, as he would have to prepare for trial ;' he is entitled to thirty days to answer, though the cause be marked for trial in the meantime.^ If the rule be made absolute, and the papers ordered are not produced at the trial, the judge may withdraw a juror; and the whole proceedings appearing on the postea, the court in banc may enter judgment accord- ing to the act of assembly.' Or, if it be the defendant who is in default, the court may discbarge the jury, award judgment against him, and make an order in the nature of a writ of inquiry, under the act of 1722, to assess the plaintiiF's damages ; the judgment is interlocutory.* § 656. An order to produce papers, under this act, must be founded on a previous affidavit; which, as the law is highly penal, should set forth, with precision, every fact necessary to authorize the court to pro- ceed.' It is not requisite, however, that the affidavit be positive ; it is sufficient, that there be shown probable ground for belief; and the party called ou must then produce the writing, or satisfy the court of his ina- bility to do so.^ The paper must be described in the affidavit, with reasonable certainty ;'' but the plaintiff need not state to what part of his demand, the books and papers, whose production is asked, are appli- cable.' As we have seen, the respondent is entitled to thirty days to answer the rule ; but if, at the expiration of that time, no sufficient cause be shown against it, the rule will be made absolute ; which, however, is not peremptory, but in the alternative, to produce the papers, or satisfy the court, at the trial, that it is not in the party's power to do so.' The plaintiff's affidavit is sufficient, in the first place, to put the defendant on his oath, in denial ; if he do so, the plaintiff must support his rule affirmatively, by evidence.'" It is not enough, in answer to the rule, to deny the present possession of the document ;" but the court will not make an order on a receiver, who swears that the books were destroyed by fire, before his appointment.'^ Nor will the court order that the papers produced shall be read, without further authen- tication.'^ § 657. If the rule be made absolute, it is incumbent on the party, if he fail to produce, to satisfy the court, that the books are truly beyond his control ;'* the order is conclusive only as to the pertinency of the docu- ment; the defendant may show his inability to produce. '^ But the judge, at nisi prim cannot inquire whether the documents are pertinent to the ' Rose V. King, 5 S. & R. 241. Cowles, 2 P. & W. 139. ■' Bank v. Power, 2 W. N. C. 275. » Wills v. Kane, 2 Gr. 47. ^ McDermot v. United States Insur- ° Coleman v. Spencer, 1 Phila. 271. ance Co., 1 S. & R. 358-9. " Skinner v. Perot, 1 Ash. 57. * Wright V. Crane, 13 S. & R. 447. " Leonard v. Sharp, 1 W. N. C. 345. See this case for form of order and " Robins v. Hansell, 1 W. N. C. iiidgment. And see Cowles v. Cowles, 314. 2 P. & W. 139. " Strawn v. Park, 1 Phila., 104. 5 Rose t). King, 5 S. & R. 241. See Withers v. Gillespy, 7 S. & R. 11. « Wright V. Crane, 13 S. & R. 447. " Coleman v. Spencer, ] Phila. 271. ' Rose V. King, ut supra. Cowles v, " Gilpin v. Howell, 5 Penn. St. 42. 364 PRODUCTION OF DOCUMENTS. case, or would be evidence, if produced ;' when produced, however, the question of relevancy is open.^ When the case is called for trial, ihe defendant's agent is competent to excuse the non-production f the loss of the paper may be proved by witnesses ; it is not absolutely necessary that the party should be examined ;* but an ex parte affidavit that the books have been accidentally destroyed by fire, is not sufficient ; the opposite party is entitled to a cross-examination.^ A nonsuit will not be granted, if the non-production be satisfactorily explained ; nor where the plaintifi" is entitled to recover upon other counts of his declaration f so, he may answer a rule to produce his books, by swearing that he has none.'^ In case of non-production, a notice of motion for judgment is not requisite f proceedings under this act are so much in the discretion of the court, that it will require a strong case to induce the supreme court to reverse the judgment.^ In replevin, on a distress for rent, where the lease is in the hands of the plaintiff", it will be ordered to be produced and placed in the hands of a proper person, and in default thereof, the defendant will be entitled to judgment in his favor, for the rent due.'" Books, when produced in obedience to an order, are in the custody of the court.^' § 658. In general, a party will be allowed the inspection of a docu- ment wherever he has a common interest in it, without regard to the right of custody, and at a convenient period before the trial. Thus, in an action to recover certain money alleged to have been received by the defendant to the use of the plaintiff", being the proceeds of sale in a for- eign port, of the goods on board of a certain vessel, part of which goods were owned by the plaintiff^, and part by the defendant, the court made an order that the plaintiff" permit the defendant, on reasonable notice, to inspect a certain paper, being the account-sales of the goods on board the vessel, which had been obtained by the plaintiff" from a third person ; ' Tuttle V. Mechanic's and Trades- question of its competenoe. What is man's Loan Co., 6 Whart. 2]6. decided, then, by the rule or order, is, ''^ George v. George, Dist. Court, that the paper ought to be produced or Phila. Rule to produce papers. Per its absence accounted for, and this de- curiam. The answer admits the pos- cision cannot be reviewed on the trial, session of the paper asked to be pro- by arguments addressed to the perti- duced, but denies the materiality or nency of the paper, without the pro- relevancy of it to the issue. Accord- duction of it, though these arguments, ing to Tuttle v. Mechanic's and Trades- urged against its competence, may ex- man's Loan Co., 6 Whart. 216, the rule elude it from the jury. Rule absolute, is conclusive upon the judge, on the " Silliman v. MoUoy, 4'Phila. 44. trial, on the question of pertinency ; * Gilpin v. Howell, 5 Penn. St. 42. but that "whether, on being produced, * McNair v. Wilkins, 3 Whart. 554. it would be competent evidence, is an- * Foster v. Sandeman, 5 Phila. 133. other question, which cannot arise, when ^ Cottrell «. Warren, 18 Penn St. the party withholds the evidence at the 487. But, it would seem, this ought to trial, and refuses to produce it under have been done, in answer to the rule. the rule." It is plain, then, that on « Wills v. Kane, 2 Gr. 47. the trial, the materiality or relevancy ' Cowles v. Cowles, 2 P. & W. 139. of the papers, as well as its proof, if " Hurd v. Ryan, Dist. Court, AUe- the custody from which it comes is not gheny ; Lowrie, J. MS. enough to prove it, must be decided, " Seals v. See, 10 Penn. St. 58. because these are all involved in the INSPECTION. 365 and to have a copy of it made at his (the defendant's) charge, by a per- son designated by the plaintiff;' and the court will make an order for the production of a paper, an inspection of which is necessary to enable the plaintiff to declare.^ And in an action for personal injuries, the court may make an order for a medical examination of the person of the plaintiff, for the purpose of ascertaining the character and extent of his injuries.^ 1 Arrott V. Pratt, 2 Whart. 566. ' Sohroedev v. Railroad Co., 19 Alb. * Murphy v. Morris, 2 Miles 60. L. J. 234 ; s. c. 47 Iowa 875. CHAPTER XXIL Trial and its incidents. I. Op the TRIAI/-LIST, ^ 659. What causes to be placed on the list, I 659. How the list is to be made up, g 660. Continuance by consent, g 660. Calling of the list, § 660. Sunuuoning of witnesses, § 660. Cases omitted from the Ust, § 660. II. Or CONTINUING OE LEAVING OPEN A CASE ON THE LIST, § 661. Matter of discretion, § 661. Absence or engagement of counsel, i 662-4. Absence of witnesses, § 665. Affidavit for continuance, § 666. Absence of a pai-ty, § 667. Other grounds of continuance, 2 668. Payment of costs, § 669. III. Of pleas puis daekein contind- ANCE, § 670. When to be pleaded, J 670. In abatement, | 671. In bar of the action, § 672. Form of plea, § 673. Effect of the plea, ? 674. IV. Of impannelling a juet, § 675. Drawing the jury, ^ 675. Challenges, ? 676. Challenges to the array, § 676. Challenges to the polls, § 677. Peremptory challenges, | 677. Challenges for cause, I 678. Challenges to the favor, § 679. Swearing the jury, J 680-1. Talesmen, J 682. V. Of pkoceedings befoke the juet, ?683. Opening the case, | 683. Examination of witnesses, § 684. When witnesses are excused from testifying, ? 685. Cross-examination, J 686. Striking out evidence, § 687. Order of testimony, ^ 688. Withdrawing a juror, ^ 689. Summing up by counsel, 2 690. Charging the jury, § 69 1-3. VI. Bills of exception and filing opinions, 2 694. When an exception lies, § 694 When not allowed, § 695. When to be tendered, § 696. Proceedings to compel the sealing of a bill, § 697. Settling of tiie bill of exceptions, 2698. Form of the bill, ? 699. Effect of a bill of exceptions, §700-1. Piling opinions, ^ 702-4. VII. Demueeees to evidence and POINTS RESEEVED, § 705. Nature of a demurrer to evidence, ?705. What is admitted thereby, § 706. Joinder in demurrer, § 706. Judgment on demurrer, § 706. Points reserved, g 708-9 VIII. Nonsuit and veedict, § 710. Making up the verdict, § 7 1 0. What papers may be sent out with the jury, §711. Calculations and statements, §712. Voluntary nonsuit, § 7 1 3. Compulsory nonsuit, § 714-5. Verdict, §716-8. General verdict, § 719-20. Entering judgment on verdict, §721. Verdict for defendant for a certain sum, § 722. Interest, lien and jury-fee, § 722. Special verdict, § 723-4. Damages, in general, § 725. On several counts, § 726. Measure of damages, § 727. Double and treble damages, § 728. I. Of the trial-list § 659. The cause being at issue, and all the preliminary steps being finished, it is placed upon Jhe trial-list, by written order of either party (367) 368 TRIAL. or his counsel, entered on tlie trial order-took, in accordance with the rules of court upon the subject. A feigned issue under the sheriff's inter- pleader act, must be placed on the trial-list, in the name of the parties to the issue, with the addition of the term and number of the original case, and the letters F. I., to denote its character. To entitle it to be placed on the trial-list, the cause must be at issue before the issuing of the venire for the period.' Having been placed on the list, it is then to be tried in the order in which it stands thereon, unless the court con- tinue the cause until the next term, on the application of either party, or leave it open until a day subsequent to that on which it ought, ac- cording to the regular course, to be brought on, or unless the plaintiff, being unprepared, at the time the cause is called on by the judge, suffers a non-pros, or nonsuit to be entered against him. And if a matter of defence has arisen subsequent to the commencement of the suit, and after plea pleaded, so that it could not have been set up as a bar to the fur- ther maintenance of the suit, and the defendant has had no opportunity to plead it puis darrein continuance, he may plead it when the cause is called on, and thus prevent the trial. § 660. The prothonotary is required, by the rules of court, to make out the trial-list, at least thirty days before the commencement of the period ; and none of the causes thereon will be continued to another term, unless at the joint request of the counsel, signified by writing, filed with the prothonotary, at least three weeks before the commencement of such period,^ Causes on the trial-list are to be arranged and called in the following order — one-third, consisting of an equal number of old and new cases, and arranged according to seniority, to be assigned to each week ; no causes beyond the first twenty-five on each week's list are to be called for trial on Monday of that week, and none beyond the first fifty on such list, upon the following day ; witnesses are to be subpoe- naed to attend on the several days fixed for trial, as denoted by arrange- ment on the trial-list ; causes not reached on one day have priority on the following day of all later causes on the list.^ Whenever a cause is omitted from the trial-list, by mistake of the clerk, either party may order the same upon the list, on ten days' notice to the opposite party, or his attorney, prior to the day on which the case is marked for trial.'' By the act of 1877, suits for wages are entitled to a priority on the trial-list, provided the plaintiff have filed a statement that his claim is for manual labor only.^ So, also, causes in which the commonwealth is directly interested, are entitled to a preference of trial over other actions f and ' Rule xxxix. § 132. signed for trial, for each day, but causes ' By act 14 April 1846, P. L. 329 ; not reached on the day assigned, have Purd. 1169, a case may be withdrawn priority on the following day. Court from the trial-list, by agreement, at No. 3 has a daily list, and causes not any time before the issuing of the reached on the proper day are made venire ; but cannot be put down for a remanets. subsequent period of the term, without * Rule xxxix. ? 134. a special order of the court. ' Act 22 March 1877, P. li. 329; » Rule xxxix. P33. This is the rule Purd. 2175. in courts No. 2 and No. 4. In court • Respublica v. Cobbet, 3 "Eeates 93. No. 1, a certain number of oases is as- CONTINUANCE. 369 this, on the ground that the commonwealth is entitled to pre-audience in her own courts ; and it is to be presumed, that the prerogative of the commonwealth would prevail over the preference given to suits for wages by the statute. But a preference must be asked in favor of the common- wealth, on the first day of the term, or it is waived -^ and it must be asked for by the attorney-general, on behalf of the commonwealth .^ II. Of continuing or leaving open a case on the list. § 661. The rules for bringing on causes must be influenced by a legal discretion, applicable to the peculiar circumstances of every case ;* by exercising which, care will be taken by the courts that injustice is not done, either by precipitate trials or wanton delays.* Our courts, sitting to do substantial justice, are fully disposed to bring on causes as .early as it may be done ; yet, this must necessarily be, in those cases where the parties are prepared, or have been guilty of manifest negligence. Some of the principal grounds for continuance, however, have been made the subject of rules of court. In the court of common pleas No. 3, continu- ances, by consent, are not allowed ; a legal ground for a continuance, must, in all cases, be shown ;' and in court No. 1, when cases are con- tinued by consent, they must be re-ordered upon the trial-list, by one of the parties ; they are not made remanets. § 662. Absence or engagement of counsel. No cause, when reached in order on the trial-list, will be left open or continued, in consequence of a pending engagement of counsel, in any other than a court of this com- monwealth, of civil jurisdiction, of the city of Philadelphia,^ except in the case of a member of the bar, who shall elect, and so signify in writ- ing, to be filed with the prothonotary, and entered on the minute-book, to substitute for the courts of civil jurisdiction before mentioned, either the courts of oyer and terminer and quarter sessions of such county, or the district or circuit courts of the United States for the eastern district of this state.' § 663. Where more than one counsel are concerned on the same side, the cause will not be left open on account of the sickness or absence of one of them, nor on account of any engagement out of the court in which the trial is to be had ; but in such case, the cause may, by consent, be placed at the foot of the list. And if any counsel be actually engaged before one of the judges of the court, at the time of the calling of a cause for trial before another judge of the same court, in which he is also re- tained as counsel, such cause will be left open, with the privilege of being called on, by either party, immediately after the engagement before such ' Commonwealth v. Pascalis, 1 Binn. * See Fritz v. Church, 3 Phila. 236. 37. Gerlach v. Engelhoffer, 7 Ibid. 241. ^ Turnbullp. Commonwealth, 1 Binn. ' Rule xxxviii. ^ 121. Engagement 45. in another court is the only profes- * Cecil V. Lebenstone, 2 Dall. 96. sional business that constitutes a legal * Symes v. Irvine, 2 Dall. 384. ground for a continuance. Olden ». ' See supra, | 633, note 2. Litzenburg, 1 Phila. 204. VOL. I. — 24 370 CONTmUANCE. other judge is terminated, in preference to any other cause not then under trial, or previously left open under the rule.' § 664. No cause, when reached in its order upon either the trial or argument-list, will be continued, left open or put at the foot of the list, unless no one of the counsel concerned on the same side be able to con- duct the trial or argument, by reason of sickness or occasional absence on public business, or an engagement in another court, or before another judge of the same court ; where, however, more than one counsel are concerned on the same side of a cause on trial before another court, no one will be considered as engaged, within the meaning of the rule, who, having a colleague in the cause, at liberty to remain till the end of the trial, has concluded his address to the jury. And where more than one counsel are concerned on the same side of a cause on trial before another judge of the same court, after the evidence is closed in such cause, no one will be considered as engaged, within the meaning of the rule, except the counsel on whom the duty of addressing the jury devolves : but nothing in this rule contained will prevent the continu- ance of a cause, where the usual legal grounds therefor are laid before the court.^ § 665. Absence of ivitnesses. Subpoenas for witnesses residing within the county of Philadelphia, must be taken out at least five days previously to the day assigned for the trial of the cause ; and no cause will be continued on account of the absence of any such witness, if he were or might be found at his residence, within that period.^ No cause, when reached on the trial-list, will be passed on account of an attachment for witnesses, unless applied for and issued within one hour after the opening of the court, on the day in which the cause is marked for trial, unless it be shown that such witness or witnesses were in attendance at that time, and departed without leave.* The absence of an attorney of the court, who is a material witness, and has promised to attend, is ground for a continuance, though not subpoenaed.^ § 666. Where application is made for the continuance of a cause on the trial-list, because of the absence of a witness, ground must be laid, by affidavit of the party, or his agent, setting forth the fact or facts which it is believed the witness will prove ; the grounds of belief that he will do so ; the efforts made to procure his attendance, specifying the same minutely and particularly; and the grounds for believing that a continuance will enable the party to procure the testimony ; which affi- davit must be filed of record. And an admission in writing, to be read ' Rule xxxviii. § 122. parties knew, previously to the five days, ^ Ibid, g 123. And see infra, | 759. of his intention to be absent at the time This rule applies only to cases in which of trial. See King of Spain v. Oliver, the witness might have been found Pet. C. C. 217. within the reach of process, within the * Rule xxxtiii. § 128. five days. Soriber v. Reeves, 1 Phila. ^ White v. Lynch, 2 DaU. 183. The 284. recent discovery of a material vritness ' Rule xxxviii. § 127. This rule does in another state, is ground of continu- not dispense with the obligation to take anoe. Campbell v. Sproat, 1 Yeates the deposition of a witness, where the 20. CONTINUANCE. 371 in the cause, that the witness, if called, would testify as set forth in the affidavit, will be a sufficient ground for refusing the application.' An ex parte affidavit is ground for a continuance ;^ and it is only necessary to show due diligence to procure the attendance of the absent witness.' It is no objection to a continuance, on the ground of the absence of a material witness, that other witnesses in attendance can, it is supposed, testify to the same facts. ;^ but a cause will not be continued, on account of the non-attendance of a witness, whose deposition has been taken, and can be read f nor of one whose deposition might have been taken f nor on account of the sickness of a material witness, whose deposition can be taken, for which an opportunity is afforded ;^ nor on the ground of the absence of a witness, unquestionably incompetent.* And if the facts stated in the affidavit would not be admissible, the motion for a continu- ance must be overruled.' An affidavit for a continuance, on the ground of the absence of a witness, is not subject to explanation by the other party.'" § 667. Absence of a party. The absence of a party is not ground for a continuance, unless his presence be shown to be essential." In order to a continuance, the same steps must be taken to procure the attendance of a party, as in case of any other witness.'^ It is no ground for a continuance, that one of the parties has been impannelled as a grand juror, in another court;'' but a cause will be continued, where the defendant is absent in the plaintiff's service;'* or, where he is neces- sarily absent, attending to his duties as a member of congress.'^ § 668. Other grounds. An outstanding commission is ground for a continuance ; but no unnecessary delay must be suflPered to intervene, either in taking out or executing it;'^ and in such case, the materiality of the evidence must be shown by affidavit." A continuance will be granted, where the execution of a commission has been prevented by the act or omission of the opposite party, though there were laches in taking it out." So, a cause will be continued, where the plaintiff has not answered a bill of discovery filed against him by the defendant.'^ An amendment at the time of trial, is ground for a continuance, if the oppo- ' Rule xxxviii. § 129. Where such '» Smith v. Barker, 3 Day 280. rule does not prevail, it is unnecessary " Cowperthwaite v. Miller, 2 Phila. to state what would he the testimony 219. And see Jones «. Little, 2 Dall. of the absent witness. Jackson v. 182. Mason, 1 Dall. 135. " Brice v. Sohultz, 6 Phila. 264. 2 Manufacturing Co. v. Cheyney, 7 " Goodwin v. White, 1 Bro. 272. Leg. & Ins. Rep. 125. '* Respublica u. Matlack, 2 Dall. 108. '' Pennington v. Scott, 2 Dall. 94. '* Short Mountain Coal Co. v. Boas, * Comly V. Lloyd, 1 Bro. 375. 1 Pears. 44. * Bond V. Hunter, 1 Yeates 284. '« Cooper v. Mitchell, 1 Phila. 73. Goodwin V. White, 1 Bro. 272. And see Marsh v. Hulbert, 4 McLean * Davidson v. Brown, 4 Binn. 243. 364. Bennett v. Wilson, 1 Cr. C. C. Clark V. Cochran, 1 Miles 282. 446. ' Smith V. Cunningham, 9 Phila. 96. " Morgan v. Voss, 1 Cr. C. C. 134. « Corkrey v. Beideman, 2 Ibid. 236. " United States v. Duane, Wall. C. » Warburtonj). Aken, 1 McLean 460. C. 5. United States v. Toms, 1 Cr. C. C. 607. " Hurst u. Hurst, 3 Dall. 512. 372 PLEAS PUIS DAEEErN CONTINUANCE. site party be thereby surprised ; aud of this the court must judge ;• so, if issue be joined, when the cause is called for trial, the defendant is entitled to a continuance, if surprised ;^ but the plaintiff, by an amend- ment of the declaration, cannot prejudice the defendant's right to a trial ;^ the defendant, however, is entitled to a continuance, if the plaintiff file a new count, to which no plea has been entered.* A party will not be forced to trial, when he has not prepared, expecting a com- promise, from the declarations of his adversary ;' nor is a defendant bound to prepare for trial, pending a motion to quash his appeal from an award.^ It is no ground for a continuance, that the trial of another case, depending on the same facts and principles, has been published.' The death of the defendant is ground for a continuance ; his executors cannot appear gratuitously, and ask for a nonsuit.' § 669. It is too late, to move for a continuance, after the jury are sworn.' A party obtaining a continuance must pay the costs of the term, unless occasioned by an amendment by his adversary ;^'' and, if demanded, the continuance will not be entered, until actual payment." If, however, they be not paid at the time, they may be included in the final judgment ;'^ so also, if there be not a special order for their pay- ment, the costs abide the event.^^ The party putting off" the cause must pay the costs of a special jury ;'* but where the plaintiff has a rule for trial by special jury, and has not proceeded thereon, he is not entitled to the costs of the term, on a continuance, at the application of the defendant.'^ in. Of pleas puis darrein continuance. § 670. When to he plecided. When the cause is called on, the de- fendant may plead any matter of defence arising puis darrein eontimir anee, that is, after the last continuance ; and such a plea may be pleaded, after the jury are gone from the bar, but not after they have given their verdict.^' The general rule is, that it must be pleaded without delay ;'' and, therefore, the defendant must not suffer a term to intervene between the happening and pleading of this new matter ; and this is the rule as to all matters arising after issue joined, whether going to the merits or disclosing a personal disability to maintain the suit.'' But for extrinsic > Polker V. Satterlee, 2 Rawie 213. " Balliet v. Alleutown School Dis- ' Rankin v. Cooper, 1 Bro. 253. triot, 5 Leg. Gaz. 130. Patton v. Black- ° Respublioa ». Coates, 1 Yeates 35. well, 2 Overt. 114. Nor can the defendant, by filing a spe- " See Bagley v. Ostrom, 5 Hill 516. oial plea, to which the plaintiff demurs. '^ Gamble v. Taylor, 43 How. Pr. McMurdy v. Connecticut General Life 375. Insurance Co., 5 W. N. C. 384. " Dyson v. White, 1 Cr. C. C. 359. * Le Roy v. Delaware Insurance Co., " Bayard v. Molnnea, Add. 296 n. 2 W. C. C. 223. 15 Ewing v. Byers, 2 Yeates 128. * Cornogg V. Abraham, 1 Yeates 18. '« Bull. N. P. 310. 1 Chit. Plead. * Keller v. Cunningham, 6 Penn. St. 637. And see Broome v. Beardsley, 3 376, Caines 172. ' Hurst V. Wickerly, 1 W. C. C. 286. " Colden v. Rich, 7 Johns. 194. De ' Hagarty v. Thompson, 1 W. N. C. Forest v. Ramsay, 3 Cow. 75. 576. 18 Wilson V. Ilamilton, 4 S. & R. » Coleman v. Hess, 1 Bro. 240. 239. PLEAS PUIS DAEEEIN CONTINUANCE. 373 reasons, the court may exercise a discretion in receiving such a plea, even after a continuance, and, to preserve consistency, may permit the defend- ant to enter it 7iuno pro tunc, an aiRdavit of the truth of the plea and the extrinsic matter first being made.' The court may, at any time, to pre- vent injustice, or for special reasons, permit a plea to be put in nunc pro tunc, and a plea puis darrein continuance, although a continuance has intervened.^ That it was not put in, at the next term, is not ground of demurrer f it must be replied or demurred to.'* § 671. In abatement. This plea may be either in abatement or in bar. If anything happen, pending the suit, to abate it, this may be pleaded puis darrein continuance, though there be a plea in bar ; for this can only waive all pleas in abatement that were in being at the time of the bar pleaded, but not subsequent matter.^' If a personal action, which does not survive, be brought after the death of the party, the court may abate it, on motion ; or, if there be doubt about the fact, should put the party to his plea, and that without regard to the previous state of the pleadings, whether the defendant had pleaded in bar or not.^ In an action against husband and wife, for a contract of the wife dum sola, the cause of action does not survive against the husband ; and, con- sequently, the death of the wife pendente lite abates the suit;^ so, a divorce pending the suit may be pleaded in abatement.* The commence- ment of a suit for the same cause of action in a court of another state, cannot be pleaded in abatement puis darrein continuance? § 672. In bar. The defendant may plead in bar puis darrein continiir ance, payment,'" a release, a discharge in bankruptcy ,'' a recovery and satisfaction in another suit for the same cause,'^ accord and satisfaction after issue joined ;'' and, in general, any defence arising since the last continuance." Matters which only go to the remedy, may likewise be so pleaded; as, a discharge in insolvency;'^ or, a judgment confessed by an executor after suit brought.'^ And in a suit on a mechanics' claim, the defendant may plead that, since the last continuance, the premises have been sold under judicial process f or that the building has been de- stroyed by fire or tempest, and the lien thereby divested.'* So, an attach- ' Lyon V. Marolay, I Watts 271. puis darrein continuance ; the defend- Hostetter v. Kaufman, 11 S. & R. 146. aut should pay the money into court. '' Lyon V. Marolay, ut supra. See Lambert v. Hyatt, 2 N. Y. Leg. Obs. Sandford v. Sinclair 3 Den. 269. 238. ' Bauer v. Roth, 4 Rawle 83. Mor- " Infralls v. Savage, 4 Penn. St. 224. gan V. Dyer, 10 Johns. 16L Ludlow " Bowne v. Joy, 9 Johns. 221. V. McCrea, 1 Wend. 228. '■' Good v. Davis, Hemp. 14. * Spafford v. "Woodruff, 2 McLean " Brownfield u. Braddee, 9 Watts 191. 149. * Gilb. C. P. 105. '* Rayner v. Dyett, 2 Wend. 300. It ° Sandback v. Quigley, 8 Watts 460. seems, that such plea cannot be pleaded ' 1 Chit. Plead. 43-4. in this state. Dorr v. McClintock, 2 8 Com. Dig. "Abatement" H. 42. Miles 190. » Renner v. Marshall, 1 Wheat. 215. '" Lawrence v. Bush, 3 Wend. 305. '» Chew V. Woolley, 7 Johns. 399. " Johns v. Bolton, 12 Penn. St. 339. A payment in part satisfaction of the " Presbyterian Church v. Stetler, 26 plaintiff's demand, cannot be pleaded Penn. St. 246. 374 PLEAS PUIS DAEEEIN CONTINUANCE. ment of the debt sued for, in the hands of defendant as garnishee, may be pleaded, though neither in abatement nor in bar, in order to place the facts upon the record, in order to mould the judgment accordingly.* § 673. Form, of plea. This plea must be drawn with great certainty, and should contain a precise specification of the day of continuance f a plea that the matter arose since the issue was joined, will be rejected, on motion. It should also be verified by affidavit, if it contain matter in abatement;^ or be put in at nidprius;^ but, if the matter so pleaded be in bar of the action, and is not put in at nisi prius, an affidavit of the truth thereof is not required.^ § 674. Effect of the plea. At common law, the eflfect of the plea was to admit the original merits to be with the plaintiff, and rest 'the defence on something that had occurred, or some act that had been done by the defendant, since the last continuance of the cause.^ It -was held, therefore, that it was a waiver of all other pleas ; that if it were well pleaded, issue must be taken on it, or there would be a mistrial ; if bad, it must be demurred to, or, if out of time, must be set aside on motion ; if put in issue, it would form the only subject of inquiry before the jury ; and judgment on it, whether the plea were of matter in abatement or in bar, if against the defendant, would be peremptory, as well on demurrer as on trial, because, after a bar pleaded, he has answered in chief, and therefore, cannot have judgment to answer over.'^ Since the act of 1806, however, it is doubtful, if the stringency of the common law as to this plea is now applicable in any particular in Pennsylvania, and the more recent opinion has been, that it is a plea in addition, not in substitution, for the others, and therefore, not a waiver of any matter previously set up as a defence.* But even at common law, matter in abatement, or which goes only to the remedy, as a discharge in insolvency, when pleaded puis darrein conUnuanee, does not amount to a waiver of a pending plea in bar; though found against the defendant, the pleas in bar must still be tried.' IV. Of impannellmg a jury. § 675. Drawing tlie jury. On the return of the venire, the prothono- tary is required to cause the names of the jurors impannelled and sum- moned to be written separately, on distinct slips of paper, as nearly alike in size and appearance as may be ; and, by direction and under the notice of the presiding judge, to roll or fold up the said slips separately, and as nearly in the same manner as may be, and put them in a box, to be provided by him for that purpose.'" And when any cause is ready ' Kase 0. Ka.se, 34 Penn. wSt. 128. ^ Bancker v. Ash, 9 Johns. 250. Brown v. Scott, 51 Ibid. 357. Such Jackson v. Peer, 4 Cow. 418. plea may be pleaded puis darrein con- ' Wilson v. Hamilton, ut supra, tinuance. Folwell v. Norwell, Dist. ' Ibid. Bauer v. Roth, 4 Rawle 92. Court. Phila., 30 Dec. 1848. MS. » Johns v. Bolton, 12 Penn. St. 339. ■' Vicary v. Moore, 2 Watts 451. ' Rayner v. Dyett, 2 Wend. 300. ' Wilson V. Hamilton, 4 S. & R. 239. Wood v. White, Anth. N. P. 306-7. Day V. Hamburgh, 1 Bro. 77. "> Act 14 April 18'34, ? 139, P. L. * Abbot V. Rugesley, Preem. 252. 366 ; Purd. 839. CHALLENGES. 375 for trial, some disinterested person shall, by direction of the court, in open court, draw from the said box, after having well mixed the papers deposited therein, twelve of the said papers, one after another; and if any of the jurors whose names are so drawn, do not appear, or are challenged and set aside, such person shall proceed to draw a further number of such papers, until twelve jurors appear and are approved ; and the said jurors, having been sworn or affirmed as the law directs, shall be the jury to try the cause.' If there be a struck jury, the clerk omits the names of the jurors stricken from the list, in calling over the panel. § 676. Challenges, -At the time of calling the jury, either party may exercise the right of challenge. A challenge is either to the array or to the polls ; and the latter may be either peremptory or for cause. A challenge to the array is an exception to whole panel, and may be made on account of partiality or some default of the sheriff who arrayed the panel, and can, of course, only be for cause.^ By a rule of court, such challenge to the array must be made on the first day of the period at which the issue is set down for trial.^ If the array be quashed, the court may, at the instance of either party, award a venire, returnable forth with, for the trial of the cause ; which may be directed to the sheriff or coroner, or, if the case; require it, to two elisors, requiring him or them to summon and return forthwith, twenty jurors, with a panel thereof annexed, from whom the jury is to be selected.* The court may direct a special venire to two elisors, whenever, in their opinion, the nature of the case requires it.^ § 677. A challenge to the polls is an exception to an individual juror, when called. On the trial of all civil suits, the plaintifi" and defendant are each entitled to four peremptory challenges ;* and this right extends to the jurors remaining upon a struck list f but not, it seems, to viewers.^ That the court allowed an erroneous challenge, on the part of the plain- tifi", does not entitle the defendant peremptorily to challenge the new juror called, if his peremptory challenges have been exhausted.' If the mode of alternate challenge be adopted, it must be persevered in to the end ; and if the plaintifi" commence, and then waive his right, when the second challenge comes to him, he cannot again resume it,'" except as to the juror last called.'' A refusal to challenge at the proper time, is a waiver of the right, whether the party's reason be good or otherwise.'^ A peremptory challenge cannot be withdrawn.'* ' Act 14 April 1834, 1 140, P. L. St. 31. 367 ; Purd. 836. * Sohwenk v. Umsted, 6 S. & R. 351. 2 3 Bl. Com. 359. Co. Litt. 156 a. Schuylkill Navigation Co. v. Farr, 4 1 Arch. Pr. 169. See Munshower v. W. & S. 362. Patton, 10 S. & R. 334. Brown o. » Funk v. Ely, 45 Penn. St. 444. Commonwealth, 73 Penn. St. 321. '» Patton v. Ash, 7 S. & R. 116. = Rule xxi. I 74. Wenriok v. Hall, 11 Ibid. 153. * Act 14 April 1834, II 146-7. " Kennedy v. Dale, 4 W. & S. 176. * Commonwealth v. Carson, 3 Phila. Hotz v. Hotz, 2 Ash. 245. Zug v. Prin- 219. ters' Paper Mill, 1 L. Bar, 14 May » Act 29 March 1860, P. L. 344; 1870. Purd. 837. ''^ Miller v. Wilson, 24 Penn. St. 114. ' McDermott v. Hoffman, 70 Penn. " Commonwealth v. Twitohell, 1 376 chalijEnges. § 678. Any number of jurors may be challenged for cause. A person wbo does not understand the English language is not qualified to serve as a juror ;' but a juror cannot be challenged, generally, for lack of learn- ing.^ If juror be identified by name and residence, a misdescription of his occupation, is not ground of challenge.' It is principal ground of challenge, that the juror had acted as an arbitrator in the same cause ;* or that he had been a juror on a former trial of the case.° So, it is ground of principal challenge, that the juror is tenant of one of the plaintiffs f even though but a tenant from year to year.'^ Relationship to an administrator plaintiff, is ground of challenge f but that the juror's sister is the wife of a nephew of the party, is not principal ground of challenge ; but is a ground of challenge to the favor ;' nor is it ground of challenge, that the juror is brother to one of the counsel in the cause ;'" in an action against a corporation, it is ground of challenge, that the juror is son a of stockholder.^* And it is principal cause of challenge, that the juror has been subpoenaed as a witness by one of the parties ;*^ or to impeach the credit of another witness.'' That the juror is a guest at an inn, kept by one of the parties, is not principal ground of challenge.** It has been lately determined by the supreme court of the United States, that, in a federal court, a juror cannot be asked, whether he had incurred any of the disqualifications mentioned in § 830 of the revised statutes, by parti- cipation in the rebellion; though pardoned, he is not bound to disclose, whether or not he has been guilty of an act which would render him infamous at common law, as, treason against the United States ; the challenger must prove it aliunde}^ § 679. A challenge to the favor is allowable in a civil suit :*^ thus, in a prosecution for kidnapping carried on by the society for the abolition Brewst. 551, 559, 601. Rex v. Parry, anon Bank, 1 Pears. 541. 7 Car. & P. 836. State ». Grossman, *« Pipher v. Lodge, 16 S. & R. 214. 10 Ired. 399. Funk v. Ely, 45 Penn. St. 444. ' Fisher v. Philadelphia, 4 Brewst. " Irvine v. Bank, 1 Pitts. 422. 395. Commonwealth!). Jones, 4 W. N. " Commonwealth ». JoUifife, 7 Watts CIS. 585. ' Commonwealth v. Winnemore, 1 " Chess v. Chess, 1 P. & W. 32. It Brewst. 356 ; s. c. 2 Ibid. 378. is not ground of challenge, that the ^ QuigleyM. Commonwealth, 84 Penn. juror has been examined as a witness, St. 18. on a former trial of the same cause be * Lloyd V. Nourse, 2 Rawle 49. fore arbitrators. Harper v. Kean, 11 s Freeman v. Wall, 3 Luz. L. Beg. S. & R. 280. 33. Otherwise, if a second cause be- " Cummings v. Gann, 52 Penn. St. tween the same parties be submitted 484. on different grounds. Smith u. Wageu- '* Burt M. Panjand, Sup. Court, U. S., seller, 21_Penn. St. 495. 28 April 1879. MS. Mr. Justice Field " Harrisburg Bank v. Porster, 8 went further, and held the statute to be Watts 304. unconstitutional, except as a war meas- ' Pipher v. Lodge, 16 S. & R. 214. ure, to be enforced in those parts of the ' Balsbaugh v. Frazier, 19 Penn. St. insurgent states, occupied by the fed- 95. eral forces, during the existence of the ' Rank v. Shewoy, 4 Watts 218. civil war. Ibid. That the juror and one of the parties " Boileau v. Life Insurance Co., 9 are married to first cousins, is ground Phila. 218. of principal challenge. Miley v. Leb- SWEAEING THE JUEY. 377 of slavery, its members were held incompetent to sit as jurors.' And it is good cause of challenge, that the juror has heard the evidence ou a former trial of the cause, and has formed and expressed an opinion on the facts ; though he says his mind is open to conviction on another state of facts.^ But that the juror had formed and expressed an opinion, founded on the statements of others, as to the general state of indebted- ness of one party to the other, without any particular knowledge of the facts, is not ground of challenge.' And, in a criminal case, where a juror has formed an opinion as to the guilt or innocence of the defendant, from rumor or newspaper statements, which he feels conscious he can dis- miss, or has no fixed belief or prejudice, and says that he can fairly try the prisoner on the evidence, freed from the influence of such impressions, he is competent.* Nor is it ground of challenge, that an officer was exam- ined in the presence of the panel, in respect to his efforts to procure the attendance of witnesses.^ § 680. Swearing the jury. The following oath or affirmation is to be administered to the jurors impannelled in the cause : — " You and each of you, do swear [or affirm], that you will well and truly try the issue joined between C. D., plaintiff', and E. F., defendant, and a true verdict give according to the evidence, unless dismissed by the court, or the cause be withdrawn by the parties."" If the jury be sworn irregularly, through the oversight of both parties, and the verdict be rendered, without objec- tion, against two, one of whom had not appeared, or had not pleaded, the supreme court will correct the error, without ordering a new trial, where the merits are not thereby affected.' The presumption is, that a jury is properly sworn ; and where, in an action of trespass against three defendants, only one of whom had pleaded, the entry on loose memo- randa kept by the clerk, and transferred to the docket, that the jury were sworn to try the issue between plaintiflTand the defendant who had pleaded "et al," will not overcome that presumption.^ Jurors are sworn to try not a particular issue, but all the issues, when more than one ; and can be relieved of this duty only by one of the parties, with leave of court to withdraw a count or plea.' § 681. The names of the jurors drawn, and sworn or affirmed, in any cause, are to be written on a panel, and the slips or papers which bear those names kept apart by themselves in some other box, to be provided and kept for that purpose, until such jury give in their verdict and the same is recorded, or until the jury shall, by consent of the parties, or by ' Respublioa v. Richards, 1 Yeates Commonwealth, 84 Ibid. 151. 480. And see People v. Christie, 2 ^ Commonwealth v. Reid, 8 Phila. Park. 579. 385. ■' Irvine v. Kean, 14 S. & R. 292. « Act 14 April 1834, 1 141, P. L. 366 ; ' Irvine v. Lumbermen's Bank, 2 W. Purd. 836. & S. 190. ' Haas v. Evans, 5 W. & S. 252. * Staup V. Commonwealth, 74 Penn. Blaokstock v. Leidy, 19 Penn. St. St. 458. O'Mara ». Commonwealth, 335. 75 Ibid. 424. Ortwein v. Common- * Breidenthal v. MeKenna, 14 Penn. wealth, 76 Ibid. 414. Myers v. Com- St. 160. monwealth,. 79 Ibid. 308. Curley ». " Good v. Good, 9 Watts 570. 378 TALESMEN. the order of the court, be discharged from the cause ;' and thereupon the names of such jurors are to be again rolled up and returned to the box, and mingled with the names of the jurors remaining at that time undrawn; and the like proceedings, in all respects, are to be had so often as any cause is called on for trial, during the holding of the court.^ If a second or any subsequent cause be called for trial, before the jury charged with the first or any formfer cause, have given in their verdict, or been other- wise discharged, the court may proceed as aforesaid to impannel a jury in such second or subsequent cause, of the jurors remaining, for the trial thereof; and so, in like manner, as long as any of the jurors shall remain.^ § 682, Talesmen. At common law, if a sufficient number of jurymen did not appear at the trial, or so many of them were challenged and set aside as that the remainder could not make up a full jury, there issued a writ to the sheriff, of undedm, decern or oeto tales, according to the number that was deficient, in order to complete the jury.* But now, by the act of 1834, "if a sufficient number of the persons summoned and returned, shall not appear as required, or if, by reason of challenges or otherwise, there shall not be a sufficient number of jurors present, com- petent for the trial of any cause which shall be called for trial, the sheriff or coroner, or, if the case require it, two citizens, to be appointed by the court for that purpose, shall, upon the order of the court, imme- diately summon and return from the bystanders, or from the county at large, so many qualified and competent persons as shall be necessary to fill up the jury for the trial of such cause ;"^ and, in case of their neglect to attend, they shall be liable to the same fine as the court would inflict • on jurors regularly summoned who make default; the fine to be collected in like manner.* On a tales de eireumstantibus, bystanders only, or those actually present in court, can be selected or returned as jurors;^ under a general venire for talesmen, they may be selected from the county at large.** V. Of proceedings before the jury. § 683. Opening. " In all civil suits or proceedings in any court within this commonwealth, every suitor or party concerned shall have a right ' If a juror, after being sworn, fail names for every talesman required, to appear, the court cannot swear an- which names so drawn are to be im- other in his place ; they must either mediately noted on the minutes of the compel his attendance, or dismiss the court, whereupon a venire shall be the panel. Pennell v. Percival, 13 issued, requiring the sheriff to bring Penn. St. 197. into court any one of the five persons '^ Act 14 April 1834, ^142, P. L. so drawn to serve as a tales juror; no 366 ; Purd. 836. tales j uror shall be selected or served ' Ibid. § 143. in any other manner. Under this act, * Gilb. C, P. 73. 2 Saund. 349, the court may direct the drawing and note 1. summoning of any number of tales- ' Act 14 April 1834, I 144. By the men, in its discretion. Commonwealth act 20 April 1858, 1 7, P. L. 355 ; Purd. v. Eaton, 8 Phila. 428. Commonwealth 839, whenever talesmen are required in v. Twitchell, 1 Brewst. 551 any of the courts of the city of Philadel- « Act of 1834, ^ 145. phia, the sherifiFis to produce the wheel ' Philips v. Gratz, 2 P. & "W. 412. in open court, and in the presence of ' Brown v. Commonwealth, 76 Penn. the judges thereof, draw therefrom five St. 319. oPExiuG. 379 to be heard by himself and counsel, or either of them."' The origin of this right is to be found in the provincial act of 1700, which enacted " that in all courts, all persons, of all persuasions, may freely appear in their own way, and according to their own manner, and there personally plead their own cause themselves, or, if unable, by their friends.^" When the jury has been sworn, the counsel of the j^arty having the affirmative of the issue, usually the plaintiff,^ states his case to the jury, and then calls and examines his witnesses, who may be cross-examined by the other side. In opening a case to the jury, the counsel should confine himself to a brief statement of the cause of action, the substance of the pleadings, the points in issue, the facts and circumstances of the case, and the substance of the evidence to be adduced in support of it.* After the party commencing has thus gone through with his evidence, and rested his cause, the other party opens his case, and produces and examines his witnesses, who may be cross-examined by the first party. The case is then considered closed as to evidence, though, under some circum- stances, rebutting evidence may be introduced by the plaintiff, to explain points made against him by the evidence for the defendant. § 684. Examination of witnesses. The party calling a witness is required, in all cases, briefly to state the point or points which he pro- poses to establish by his testimony.^ And the detention of a witness under examination, for the purpose of noting his testimony, is regulated by the discretion of the judge in the particular case.^ Before being examined, every witness is to be sworn or affirmed ; and the oath may be administered in such manner as is most obligatory on his conscience.' It is a general rule, that a p^rty cannot put leading questions to his own witness ;^ that is, questions so framed as to indicate the answer desired f to this rule the case of an unwilling witness forms an admitted excep- tion ,•*" and a party is always permitted, in preliminary matters, to lead his witness up to the topic of inquiry.'' A witness under examination may refresh his memory, by the inspection of a paper, if he be then able ' Act 21 March 1806, § 9 ; 4 Sm. L. hoc," is a negative one, which casts the 330 ; Purd. 99. burden of showing performance upon ^ Franklin's Laws 34. the plaintiff. Smith v. Frazier, 53 ' Delaney v. Regulators of Philadel- Penn. St. 226. phia, 1 Yeates 403. Richards v. Nixon, * Ayrault v. Chamberlain, 33 Barb. 20 Penn. St. 19. "Where there are two 229. pleas, one affirmative, and the other ' Rule xxxviii. § 124. He will be negative, the plaintiff has the opening confined to the point so stated. Ben- and conclusion. Inglis v. Inglis, 2 Dall. ner v. Hauser, 11 S. & R. 352. 45. Henderson v. Casteel, 3 Cr. C. C. « Rule xxxviii. § 125. 365. In replevin, though the defend- ' Whart. Bvid. ? 387. See People v. ant plead " property," there is still such Jackson, 3 Park. 590. a burden of proof upon the plaintiff, as ° Ibid. ? 498. to entitle him to the opening and con- ° Snyder v. Snyder, 6 Binn. 483. elusion. Marsh v. Pier, 4 Rawle 273. SeUnu. Snyder, 7 S. & R. 166. Sum- In covenant, on the plea of " covenants mers v. Wallace, 9 Watts 161. Sus- performed," the defendant opens and quehanna and Wyoming Valley Rail- concludes. Norris v. Insurance Co. of road Co. v. Quick, 61 Penn. St. 328. North America, 3 Yeates 84. But the '» Whart. Bvid. § 500. plea of "covenants performed, absque " Ibid. §501. 380 EXAMINATION OF WITNESSES. to testify from recollection.' But a witness cannot be permitted to testify as to a matter of opinion, unless founded on facts and circumstances within his own knowledge.^ § 685. There are certain cases in which a witness is excused from tes- tifying : thus, no one can be compelled to testify to his own turpitude f a witness is not bound to answer a question which will tend to convict him of a crime ;^ but the legislature may compel him to answer a ques- tion, which will not show him to be criminal, but may involve him in shame and reproach f and he may be compelled to answer as to what is an indictable offence, where a statute prohibits the answer from being used in evidence against him.* There are also certain confidential rela- tions which excuse a witness from answering ; such as the disclosure of matters confided to a priest under the seal of sacramental confession f ' Babb V. Clemson, 12 S. & R. 328. King V. Faber, 51 Penn. St. 387. Dodge V. Bache, 57 Ibid. 421. On this subject, see Howard v. McDonough, 19 Alb. L. J. 336. ^ Rouoh V. Zehring, 59 Penn. St. 74. ' Galbreath v. Eiohelberger, 3 Yeates 515. See supra, I 678. * Ex parte Doran, 2 Pars. 467. Cloyes V. Thayer, 3 Hill 564. i" Commonwealth v. Roberts, Bright. 109. A witness is privileged from an- swering a question, when the answer would tend to disgrace him, unless it bear directly upon the issue ; such question cannot be put, merely to dis- credit the witness. Lohman v. People, 1 N. Y. 379. Ex parte Lewis, 39 How. Pr. 155. * Rose ». Savings Fund, 6 Phila. 10. Philadelphia u. Keyser, 30 Leg. Int. 168. And see Uhler v. Maulfair, 23 Penn. St. 481. United States);. Brown, 1 Saw. 531. ' People V. Phillips, Court of Gen- eral Sessions of N. Y. 1813, Phillips's Trial ; approved by Chancellor Des- aussure, iu Farnandis v. Henderson, 1 Carolina Law Journal 213. Smith's Case, Oyer and Terminer of N. Y. 1817; Van Ness, J., 2 City Hall Rec. 77. Commonwealth v. Cronin, Circuit Court of Richmond, Va. 1855, 4 Am. L. Reg. 465. Totten v. United States, 2 Otto 107; Field, J. On the trial of Greaoen, in 1847, in the Baltimore county court, the Rev. Mr. Hickey was called as a witness for the pros- ecution, and refused to testify, the facts having come to his knowledge, under the seal of confession ; and his right was admitted by the court. MS. The contrary opinion is held by some mod- ern writers ; but the authorities gener- ally cited do not, on examination, sus- tain the position. In no case, has one of the superior courts at Westminster decided the point, though there are sev- eral dicta, since the enactment of the British penal laws against catholics. Nor is there any American case which overrules those above quoted. The case of Butler v. Moore, McNally's Evid. 253, did not involve a question of the inviolability of a disclosure to a priest finder the seal of sacramental confession ; but simply whether Lord Dunboyne, iin apostate priest, had, in fact, been reconciled to the catholic church, upon his death-bed. That this point of canon law was in force in England, as part of the common lavr, from the time when the bishop sat as a judge in the coun^ court, down to the reign of Hen. VIII., and was re- ceived without question, will be seen by a reference to Finlason's note to Reeves's History of the English Law, vol. i. p. 106. Penances were then en- joined, for a long term of years, for acts which the civil law punished with death ; and this necessarily implies a non-disclosure on the part of the priest who imposed them. The pretended exceptions to the rule stated by Weisse (Recntslexicon, xv. 259) are entirely without foundation in the canon law. Scavini, in his Moral Theology, vol. iv. p. 167 (Paris 1859), says, the obliga- tion is jure naiurali, jure dioino, et jure ecclesiastico, and that it is binding in all oases, except where the penitent himself freely and explicitly consents to a disclosure : and this, by virtue of EXAMINATION OP WITNESSES. 381 confidential communications between husband and wife;^ or counsel and client f and, in many of the states, those made by a patient to his physi- cian.^ It may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which' would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confi- dence to be violated ; therefore, no action will lie on a contract for secret services, during the war, made between the president and the claimant.^ In a criminal case, the officer who apprehended the prisoner, is not bound to disclose the name of the person who gave the information which led to the arrest.'^ So, the governor, and his subordinate state oflBcers, cannot be compelled to testify as to the discharge of the execu- tory duties confided to him by the constitution." A telegraphic despatch, however, is not privileged, when required to be produced in a court of justice; it is only the voluntary disclosure thereof that is punishable the decree of the Council of Lateran, under Innocent III. The church has no power to dispense with the divine law ; but this exception is founded on the act of the penitent himself, for whose benefit the obligation is imposed. The other alleged exceptions do not exist in the canon law. The obliga- tion is so perfectly binding in consci- ence, that St. John Nepomucen suffered death, in the year 1383, for refusing to disclose the secrets of the confessional. Butler's Lives, ii. 336. The idea thrown out by some writers, that the "forgive- ness of sins" is prejudicial to the morals of the community, inasmuch as it relieves the conscience from the ter- ror of guilt, and sends the guilty man forth upon a new career of crime, is without force. The learned Alban Butler, on the contrary, says : — " this law is expedient to the public weal, for, by it, the minister will often draw sinners from dangerous designs, which otherwise would never have come to his knowledge ; as F. Caton showed to the entire satisfaction of Henry IV. of France." Butler's Lives, ii. 338. With- out this indispensable secrecy, the very precept and obligation ceases. Ibid. This exemption is embodied in the stat- ute law of New York, Missouri, Iowa, Wisconsin, Michigan, and other states of the Union. Such is also the law of Scotland ; and our bill of rights ex- pressly declares, that "no human au- thority can, in any case whatever, con- trol or interfere with the rights of con- science." The confession of a prisoner, induced by a promise of pardon, can never be given in evidence against him, much less a confession made under the expectation of sacramental absolution. ' A wife is not competent, even after the death of her husband, to testify to any matter which came to her know- ledge, through the confidence of the marital relation. Hitner's Appeal, .54 Penn. St. 110. Stein o. Bowman, 13 Pet. 209. Keator v. Dimmick, 46 Barb. 158. ''■ Heister v. Davis, 3 Yeates 4. Pax- ton w. Steckel, 2 Penn. St. 93. Ex parte Martin, 5 Bl. C. C. 303. Such communications are privileged, though no suit was pending. Beltzhoover B. Blackstock, 3 Watts 20. Moore -v. Bray, 10 Penn. St. 519. Hill's Estate, 9 Phila. 355. A conveyancer is not privileged. Matthews's Estate, 5 Clark 149. Nor a confidential agent. Holmes V. Comegys, 1 Dall 439. ' This exception is embodied in the statute law of New York, and of many other states. See Hunn b. Hunn, 1 T. & C. 499. People «. Stout, 3 Park. 670. Sloan v. New York Central Rail- road Co., 45 N. Y. 125. * Totten w. United States, 2 Otto 105. ' United States v. Moses, 4 W. C. C. 726. * Hartranft's Appeal, 85 Penn. St. 433. And see Thompson u. German Valley Railroad Co., 7 C.E. Green 111. Gray v. Pentland, 2 S. & R. 23. 2 Burr's Trial 536. Oliver d. Warmoutli, 22 La. An. 1. 382 EXAMINATION OP WITNESSES. under the statute.^ If one of the jurors impannelled in the cause, know anything relative to the matter in controversy, he must disclose it, in open court, before the jury retire to consider their verdict.^ § 686. The cross-examination of a witness must be confined to mat- ters as to which he has been examined in chief, or to such questions as may tend to show his bias or interest ;^ the defendant is not allowed, under color of a cross-examination, to go into his own case, which he hag not yet opened to the jury;* if the witness be acquainted with other facts than those to which he has been examined in chief, the defendant must call him as his own witness.^ But a witness may be cross-examined as as to everything to which he has testified, or which is closely connected with it;' a party may cross-examine as to the res gestce given in evi- dence, though it be new matter:' thus, a witness called to prove a written contract, may be cross-examined as to circumstances occurring at the time, whereby its legal operation may be restrained;^ and if a witness testify to part of a conversation, the other party is entitled to the whole of it, on the cross-examination.' A witness may be asked any question, on cross-examination, which bears on his credibility;'" or which is relevant to show his capacity, intelligence or bias.^^ On the cross- examination, it is allowable to put leading questions to the witness ; but this should be confined to the subject as to which he has testified in chief '^ And the extent to which irrelevant questions may be put to a witness, on cross-examination, in order to test his accuracy, is a matter in the discretion of the judge.'' § 687. It has grown into practice, within these few years, for counsel to propose a chain of evidence, the first links of which depend on those that follow, and would not be supportable without them. When, there- fore, evidence, in itself irrelevant, has been given to the jury, with a promise that it should be followed by other evidence, connected with which, it would be relevant, but such evidence is not given, the former ' Henisleru. Freedman, 2 Pars. 274. 451. Henderson v. Hydraulic Works, ^ Act 14 April 1834, 1 160, P. L. 369 ; 9 Phila. 100. Purd. 838. The examinatioaof ajuror, ' Markley fc. Swartzlander, 8 W. & in the interest of one of the parties, S. 172. Covenhovan v. Hart, 21 Penn. who, by accident, has gotten upon the St. 495. panel, is an effectual way of disarm- * Bank ». Fordyce,9 Penn. St. 275. ing his hostility — it destroys his influ- ' Gordon v. Preston, 1 Watts 385. ence with his fellow-jurymen ; and if Stevenson v. Hoy, 43 Penn. St. 191. he make any deolara.tions in the jury- Jackson v. Litch, 62 Ibid. 451. room, which he has not disclosed in '" Commonwealth v. Eaton, 8 Phila. court, he places himself at their mercy. 428. ^ Hopkinson «. Leeds, 78 Penn. St. " Yeaser u. Weaver, 1 Leg. Gaz. 156. 396. Houghton i'. Jones, 1 Wall. 702. Ott v. Houghton, 30 Penn. St. 451. * Ellmaker v. Buckley, 16 S. & R. Lefler v. Field, 50 Barb. 407. 72. Breinig v. Jleitzler, 23 Penn. St. " Helfrich v. Stem, 17 Penn. St. 143. 156. Helser v. McGrath, 52 Ibid. 531. Turner v. Reynolds, 23 Ibid. 199. Har- Jackson v. Litch, 62 Ibid. 451. rison v. Rowan, 3 W. C. C. 580. ' Floyd V. Bovard, 6 W. & S. 75. '» Clark v. Trinity Church, 5 W. & Mitchell V. Welch, 17 Penn. St. 339. S. 266. Johnston v. Jones, 1 Black " Hoffman v. Stroheoker, 9 Watts 210. Fry v. Bennet, 3 Bos. 200. Le 183. Jackson v. Litch, 62 Penn. St. Beau v. People, 34 N. Y. 223. EXAMINATION OF WITNESSES. 383 cannot be argued upon by counsel, or, if written, be taken out by the jury, and the court should instruct the jury to pay, no regard to it in making up their verdict.^ But if illegal evidence has been improperly admitted, the mistake can only be cured, by striking it out, at or before the close of the testimony;^ the error is not cured, by an instruction in the charge to disregard it ; it should be withdrawn immediately on the discovery of its illegality;^ The court has no power to receive coun- tervailing proof on the part of the defendant, so as to withdraw the plaintiff's evidence from the jury.^ § 688. The time and manner of examining witnesses is a matter very much in the discretion of the court before whom the trial is had.^ After a witness has been examined and cross-examiued, the court may, in their discretion, permit either party to examine him again, even as to new matter, at any time during the trial.* It is not regular, to introduce evi- dence, after the counsel have begun their address to the jury, although, where circumstances render it proper, the court may permit it:' thus, it seems, if a new witness arrived, who had been subpoenaed and failed to appear, before the evidence was closed, his evidence should be admitted f aud where the evidence was not discovered, before the time it was offered, it ought to be admitted.' The law, however, leaves this case wholly to the discretion of the court by whom the cause is tried ; and whether that discretion be exercised one way or the other, it is not the subject of a writ of error ; therefore, where an attachment of contempt had issued against a witness who had been subpcsnaed on the part of the defendant, and being brought in, after the evidence was closed and one counsel on each side had spoken, the court rejected his testimony, on error alleged, the supreme court refused to interfere.^" If, after the plaintiff has closed his evidence, without having made out such a case as will entitle him to recover, evidence be given on the part of the defendant, the plaintiff may give evidence to rebut that of the defendant, although, by so doing, he cure the defects of the case on which he originally rested." ' Stewart J). Huntingdon Bank, 11 S. Moloney v. Davis, 48 Penn. St. 512. & R. 267. Collins v. Freas, 77 Ibid. 493. '' Delaware and Hudson Canal Co. v. * Ourren v. Connery, 5 Binn. 488. Barnes, 31 Penn. St. 193. Pennsylva- ' Fredrick v. Gray, 10 S. & R. 182. nia Railroad Co. v. Butler, 57" Ibid. Hake u. Fink, 9 Watts 336. Barnhart 335. Yeager v. Weaver, 64 Ibid. 425. v. Pettit, 22 Penn. St. 135. ' Huntingdon and Broad Top Moun- ^ Duncan v. McCuUough, 4 S. & R. tain Railroad and Coal Co. v. Decker, 480. 82 Penn. St. 119. ° Mercer v. Sayre, 7 Johns. 306. * Scott V. Gallagher, 11 S. & B. 347. And see Richardson u. Stewart, 4 Binn. Rainey «. Black, 3 P. & W. 40. Fisher 198, V. Kean, 1 Watts 278. Day v. Sharp, '" Fredrick v. Gray, ut supra. 4 Whart. 339. Roland j). Miller, 3 W. " Cutbush v. Gilbert, 4 S. & R. 551. & S. 390. Cummings v. Cummings, 5 And if, after the evidence is closed, the Ibid. 553. Moore v. Pearson, 6 Ibid, plaintiff recall a witness, who testifies 51. Lee v. Lee, 9 Penn. St, 169. to the defendant's admission of indebt- Smith V. Myler, 22 Ibid. 36. Rider v. edness, it is error, to refuse a re-exam- Maul, 70 Ibid. 15. ination of the defendant, in explana- * Duncan v. MoCullough, 4 S. & R. tion of the alleged admission. Asay 480. Deyallu.Burbridge, 6 W. &S. 529. v. Hay, 36 Leg. Int. 116. 384 SUMMING UP. § 689. Withdrawing a juror. During the trial, either after the jury are sworn, and have heard the evidence, or before it has been submitted to them, parties sometimes agree to withdraw a juror; the effect of which is, that the cause goes off, without impairing the rights of either party, until the next term. This is usually done at the recommendation of the judge, in cases where it is doubtful whether the action will lie, or where the judge intimates an opinion, that, under the peculiar circumstauces of the case, the action should proceed no further.' It seems to have been once doubted, whether, in civil cases, the court had power to direct a juror to be withdrawn, without consent of the parties ; but it is now settled, that this may be done, in the exercise of a sound discretion, instead of nonsuiting the plaintiff; thus saving him from the conse- quences of a fatal defect in his testimony ; and it is proper to do so, in case of a surprise or mistake on his part, in the preparation of his cause for trial, even where he has not been wilfully misled by the defendant.^ Where the interest of a party is in danger of being sacrificed, the court can prevent injustice, by withdrawing a juror — a power which, in the opinion of able judges, should be liberally, but judiciously, exercised;' where a cause had been tried before arbitrators, and a deed admitted without objection, and on appeal, the same deed being offered, was rejected by the court, on the ground that the seal of a foreign corpora- tion, attesting its acknowledgment, was not proved ; this is not sufficient reason for withdrawing a juror, on the ground of surprise.* In our practice, where a juror is withdrawn, the costs abide the event of the suit. § 690. Summing up. After the evidence is closed, neither party is entitled to address the jury by more than one counsel. If evidence have been received on behalf of each party, the counsel having the right, on the pleadings, to begin, must sum up, stating explicitly the grounds upon which he intends to rely, and citing such authorities as he may deem pertinent ; one of the counsel of the opposite party may then ad- dress the jury, as fully as the nature of the defence may require ; after- wards, the counsel who commenced the summing up, may conclude, restricting himself to enforcing the ground previously taken by him, and combating the views of the opposite counsel. When the party not entitled to begin, produces no testimony, the counsel of the other party is confined to his address in summing up, and will not be heard in reply .^ Counsel may withdraw part of a claim in summing up.' In an action for negligence, if the counsel, in summing up, refer to a sim- ilar case, in which large damages were given, it is ground for withdraw- ing a juror.^ so, where the counsel commented on facts not in evi- dence, and spoke of the defendant as the "most litigious company in > 1 Arch. Pr. 196. ♦ Chew v. Keek, 4 Rawle 163. ^ People V. The Judges,. 8 Cow. 127. ' Rule xxxviii. | 126. And see Chandler v. Bicknell, 5 Ibid. 30. * Kearney v. Tanner, 17 S. & R. 94. ' Rentzheimer v. Bush, 2 Penn. St. ' Stern v. Germantown Passenger 89. Railway Co., 28 Leg. Int. 30. CHARGE OF THE COURT. 885 the city ;"' and where papers, irrelevant per se, have been read, with the understanding that they should be followed up by other evidence, in connection with which they would be relevant, but which is not given, they cannot be commented on by counsel.^ § 691. Charging the jury. After the evidence on both sides has been closed, and the counsel have summed up, the judge usually charges or instructs the jury. The court has a right to instruct the jury as to all questions of law growing out of the facts of the cause; a party, also, has a right to ask the opinion of the court on any point of law relevant to the issue ;^ and it is the duty of the court, to answer fully the points upon which they are requested by counsel to charge the jury;* but it is not necessary that they should answer the propositions submitted, in the very words of the proposition ; it is enough, if the answers be sufficiently full to be understood. Nor is it necessary, when the same proposition is repeated, though in different words, to answer every repetition of it ; one full answer is enough.^ § 692. By the rules of court, points upon which the opinion of the court is desired, on the trial of the cause, must be plainly written, and so framed that the answer of the court will be full,' direct and explicit, by a simple affirmation or negation f and it is provided by statute, that when points are so drawn up in writing and handed to the court, before the close of the argument to the jury, it shall be the duty of the judge to reduce his answers to the points to writing, and read them to the jury, before they retire from the bar to consider their verdict ; and that the said points and answers thereto shall be filed immediately, by the court or judge, and shall become part of the record, for the purposes of error.' Either party excepting to the charge of the court to the jury, must, before the rendition of the verdict, state distinctly the several matters of law in such charge to which he excepts ; and no general exception to the whole of the charge will be allowed by the court, but the excep- tions to the matters of law so distinctly stated, and those only, will be allowed in the bill of exceptions.* § 693. The court is not bound to give an opinion on the facts f nor to say what the law is, upon the whole evidence, for this would involve the decision of facts ; but the specific facts on which the court is requested to charge, must be agreed or supposed.^" The court, however, may give an 1 Mills V. Trankliu Fire Insurance ' Act 24 March 1877, P. L. 38; Purd. Co., 4 Leg. & Ins. Kep. 73. 2153. The omission of the judge, how- ^ Stewart v. Huntingdon Bank, 11 ever, to comply with the directions of S. it R. 267. the statute, is not ground of reversal, ' Shaeffer v. Landis, 1 S. & R. 449. if the points were sufficiently answered Hamilton v. Menor, 2 Ibid. 70. Vin- in the charge. Scheuing v. Yard, cent V. Huff, 4 Ibid. 298. Pedan v. W. N. G. 454. Hopkins, 13 Ibid. 45. Bemus v. How- * Rule xxxviii. § 131. ard, 3 Watts 255. Robeson v. Gibbons, ' Galbraith v. Black, 4 S. & R. 207. 2 Rawle 45. Pennsylvania Railroad ^^ Zerger u. Sailer, 6 Binn. 24. White Co. V. Zebe, 33 Penn. St. 318. v. Kyle, 1 S. & R. 515. Spangler v. * See Bright. Dig. " Error," IX. d. Hummer, 3 P. & W. 370. Fish v. 5 Ibid. Brown, 5 Watts 441. 8 Rule xxxviii. ? 130. VOL. I. — 25 386 BILLS OP EXCEPTION. opinion to the jury on the weight of evidence, or may decline to do so, as it thinks proper ; if it be doubtful, it is, in general, most proper to leave it to the jury ;' but nothing should appear in the charge from which the jury might reasonably infer they were precluded from considering the facts.^ When the whole case is mixed up of law and fact, the judge may leave the whole to the jury, unless the counsel select some particular point for his opinion.' A tendency to mislead the jury, in the general tenor of the charge, though no particular portion of it be clearly erro- neous, is ground of reversal.* VI. Bills of exception and filing opinions. § 694. Bills of exception. If, on the trial of a cause, the judge de- liver an erroneous opinion, on some matters of law properly within the decision of the court, and which would not otherwise appear upon the record, the party aggrieved, although he may, in general, avail himself of the error, by moving for a new trial, has, notwithstanding, an option to tender a bill of exceptions, which may become parcel of the record, and on which a writ of error will lie. A bill of exceptions ought to be on some point of law, either in admitting improper,^ or rejecting proper evidence f or on a challenge to the jury, or in refusing to allow an amendment at the trial, under the act of 1806 f or on some matter of law, arising upon a fact not denied, in which either party is overruled by the court;" or where the court, in charging the jury, expresses an incorrect opinion upon a question of law f in these and other cases, it is enacted by stat. 13 Edw. I., c. 31,^" that " if one impleaded before any of the justices allege an exception, praying that the justices will allow it, if they will not, and if he write the exception and require the justices to put their seals to it, the justices shall do so, and if one will not, another shall."" If the record then be brought into a court of error, " and the same exceptions be not found in the roll, and the plaintiiF show the ex- ception written, with the seal of a justice put to it, the justice shall be commanded that he appear at a certain day, either to confess or deny his seal ; if he cannot deny it, they shall proceed to judgment according to the same exception, as it ought to be allowed or disallowed."'^ ' Burr V. Sim, 4 Whart. 150. Ha- at once, of want of respect to the court, met V. Dundass, 4 Penn. St. 178. Bitner and of confidence in the couneel's abil- V. Bitner, 65 Ibid. 347. ity to discriminate between what is and '' Sampson v. Sampson, 4 S. & R. what is not legal testimony. Of twenty 239. bills in that case, one or two only de- ' Poorman v. Smith, 2 S. & R. 464. served even notice. * Washington Mutual Life Insurance ' Clymer d. Thomas, 7 S. & R. 178. Co. V. Rosenberger, 3 W. N. C. 16. Mans v. Montgomery, 10 Ibid. 192. And see Stall u. Meek, 70 Penn. St. 181. * 2 Dunl. Pr. 641. Bull. N. P. 316. * Thurston v. Slatford, 1 Salk. 284 ; ' Smith v. Carrington, 4 Cr. 62. Holt C. J. i» Rob. Dig. 93. * See Zeigler v. Houtz, 1 W. & S. " See Wolverton v. Commonwealth, 7 537, _ for a merited rebuke, by Mr. S. & R. 277. A bill of exceptions only Justice Huston, to the practice of tak- lies to a court of record. McKeon v. ing bills of exception to all evidence King, 9 Penn St. 213. offered, which he characterizes, justly, " See Downing v. Baldwin, 1 S. &R. as absurd in every aspect, and indicative, 302. And Bright. Dig. "Error," V. BILLS OF EXCEPTION. 387 § 695. The statute, which gives a bill of exceptions to " auy one impleaded before the judges," does not extend to an inquiry of damage.s executed at the bar ; the absence of any precedent proves that the statute has been restrained in practice to the letter, which embraces no more than a proceeding in which the party is " impleaded" — that is, the trial of an issue of fact. Although the execution of a writ of inquiry at bar resembles such a trial, yet it is only an inquest in which, by legal intendment, the sheriff- sits as judge; and there is nothing in the 27th section of the act of 1722 giving a bill of exceptions in such a proceed- ing.' A bill of exceptions does not lie to the opinion of the court in receiving or rejecting testimony on a motion for summary relief;^ neither is the granting or refusal of the court to order a new trial,^ or the refusal to direct a nonsuit,'' the subject of a bill of exceptions. At common law, if it be wished to have the opinion of the common pleas examined on a writ of error, it will be necessary, instead of asking for a .nonsuit, to state some specific point, and pray their opinion on it to be given in charge to the jury f if the judge, in his charge, express an opinion on facts not warranted by the evidence, the only remedy is by a motion for a new trial.' § 696. The statute does not expressly mention at what time the excep- tion is to be tendered, but the reason of the thing, the practice of most courts, and the precedents and authorities on the subject, prove that it must be at the time of the trial.^ Exceptions to evidence must be taken, as soon as the court has decided to admit or reject the evidence ; it is sufficient, however, if a note be made of the exception, and submitted to the court at the time it is taken ; it may afterwards be reduced to form.^ If the evidence be withdrawn, after the court has decided to admit it, that should be stated in the bill of exceptions ; for, if the bill state that the court permitted evidence to be given, and then exception was taken, on error brought, it cannot be alleged, that no such evidence was afterwards given.' If an exception be taken to the opinion of the court in rejecting evidence, and the evidence is afterwards admitted, the exception cannot avail the party.'" A bill of exceptions to the charge of the court, may be tendered, at any time before the jury have delivered their verdict in open court, even after they have agreed upon it and sealed it up ;" in that case, also, it will be sufficient, if the substance of 1 Bell V. Bell, 9 Watts 47. 2 Ibid. 70. Renn v. Pennsylvania Hos- ^ Shortz V. Quigley, 1 Binn. 222. pital, Ibid. 413. Poorman v. Smith, And see Miller v. Sprecher, 2 Yeates Ibid. 464. Henwood v. Cheeseman, 164. 3 Ibid. 500. ' Burke v. Young, 2 S. &, R. 383. ' Morris v. Buckley, 8 S. & R. 211. Wright V. Small, 2 Binn. 93. « Ibid. Eokert v. Bckert, 3 P. &, W. • Girard v. Gettig, 2 Binn. 234. Bal- 332. lentine v. White, 77 Penn. St. 20. " Brindle v. Mcllvaine, 9 S. & R. 5 Widdifield v. Widdifield, 2 Binn. 74. 249. '° Crouse v. Miller, 10 S. & R. 155. ' Burd V. Dansdale, 2 Binn. 80. '' Jones v. Insurance Co. of N. Am- Long !). Ramsay, 1 S. &R. 72. Brown erica, 4 Dall. 249; s. c. 1 Binn. 38. V. Campbell, Ibid. 176. Graham v. Norris u. Insurance Co. of N. America, Graham, Ibid. 330. Hamilton v. Menor, 3 Yeates 84, 92. 388 BILLS OF EXCEPTION. the exception be reduced to writing and tendered to the court at the time, which may afterwards be reduced to form ;' but in all such cases, the bill of exceptions is signed nunc pro tunc; and it purports ou its face to be the same as if actually reduced to form and signed, pending the trial. And it would be a fatal error, if it were to appear otherwise; for the original authority under which bills of exception are allowed, has always been considered to be restricted to matters of exception taken pending the trial, and ascertained before the verdict.^ But the court is not bound to suspend the trial of a cause, until a bill is drawn in form and sealed ; a note in writing, made at the time the exception is taken, containing the substance of the exception, to be reduced to form after- wards, is sufficient.^ A bill of exceptions to the charge, if taken after verdict, is in time, if sealed by the court and sent up with the record.* § 697. On tendering the bill, if the exceptions therein be truly stated, the judges ought to set their seals in testimony that such exceptions were taken at the trial ; but if the bill contain matter false or untruly stated, or matters wherein the party was not overruled, the judges are not obliged to affix their seals ; for that would be to command them to attest a falsity.'' Where a party, at the trial, takes an exception to the ruling of the court, and puts the same in writing, before the jury retire to deliberate, the judge is bound to seal the exception, without regard to its nature or materiality. If he decline so to do, the remedy is by a special writ, framed under the statute of West. II. (13 Edw. I., c. 31), setting forth the circumstances of the case, and commanding the judge, if they be true, to affix his seal ; if the judge, in his return, confess the facts and seal the bill, the exceptions become part of the record ; if he deny them, the party has his action for a false return.^ If the judge's term of office expire, the mode of procuring the return of a bill of exceptions, is by certiorari f if he die, before the bill is actually sealed, though prepared and tendered, the court will order his notes to be filed f or the bill may be sealed by the court, or the judge's successor in office; the facts being shown by testimony.' In such case, the proper practice is, to prepare a bill of exceptions, and annex it to a petition to have it supplied, as in the ordinary case of amendments ; the petition should account for the delay in sealing the bill, aver the correctness of the one annexed, and that it was taken at the trial, according to the usual practice ; and be verified by affidavit. Then, the petition should be answered, and if the facts be disputed, a time for the hearing appointed, when the evidence may be presented in the form of affidavits, depositions, oral testimony, the notes of counsel, or of the former judge or his associate ; and after the hear- ' Morris v. Buckley, 8 S. & R. 211. » Bull. N. P. 316. 3 Bl. Com. 362. Bratton v. Mitchell, 3 Penn. St. 44. ^ Conrow v. Schloss, 55 Penn. St. Meese v. Lewis, 13 Ibid. 384. 28. 2 Walton V. United States, 9 Wheat. ' Galbraith v. Green. 13 S. & R. 85. 651. Burk v. McMuUin, 4 Penn. St. ' Stewart ». Huntingdon Bank, 11 S. 317. & R. 267. » MoCandless v. MeWha, 20 Penn. * Dock V. Hart, 7 W. & S. 172. St. 183. BILLS OF EXCEPTION. 389 iiig, the court will direct the bill to be prepared according to the evi- rtence, and seal it. The object is to supply a defect in the record.' § 698. In every case where a bill of exceptions is tendered, it must be prepared in form, and presented to the judge, within ten days after the verdict ; in case of a compulsory nonsuit, under the statute, within ten days after the entry of the nonsuit. In case of reserved points, the party against whom the verdict is rendered must prepare and present his bill, within ten days from the verdict ; but in case the verdict be set aside or reduced, upon a reserved point, the party against whom the decision is made, must prepare and present his bill, within ten days from such order. And in all cases, it is the duty of the party presenting the bill, within twenty days thereafter, to have the same settled by the judge before whom the case was tried, on forty-eight hours' notice, with a copy of the bill served on the opposite party; otherwise, the judge will not be required to seal the same.^ § 699. A bill of exceptions, it is said, may recite the evidence in extenso, or consist of a condensed statement of the facts proved, or which the evidence tended to prove, sufficient to comprehend the rulings of the court.^ The latter is the preferable form ; the bill ought regularly to contain only so much of the evidence as is necessary to present the legal question raised.* So, the charge in extenso ought not to be spread upon the record ; its substance only is to be examined f and, therefore, only so much should be set forth, as is pertinent to the error assigned.^ But on error to a judgment of nonsuit, all the evidence must be inserted in the bill f and an offer of evidence, which is rejected, inust embody the evidence proposed to be given, and inserted in the bill of exceptions.'* And where it is objected, that evidence was inadmissible for want of notice of special matter, the fact that such notice was not given, should appear in the bill of exceptions.' So, on an exception to the admission of an improper question, the party who put it has a right to have the witness's negative answer placed upon the record ;'" and if improper evidence be admitted, the fact that the offer was withdrawn should be stated." All writings admitted or rejected, to which an exception is taken, must be referred to with a prouV^ ' McCandless v. McWha, 20 Penn. ' Baker v. Lewis, 33 Penn. St. 301. St. 183. ° Williams v. AVilliams, 34 Penn. '' Rule xi. § 31-3. See Kirkpatriok St. 312. Lothrop v. Wightman, 41 V. Lex, 49 Penn. St. 122. Ibid. 297. Kiel v. Commonwealth, 1 W. ' Forsyth v. Matthews, 14 Penn. St. N. C. 347. 100. " Hobson v. Croft, 9 Penn. St. 363. * Johnstonu.Janes,lBlaok209. And Rearich v. Swinehart, 11 Ibid. 233. see Hamilton v. Moore, 4 W. & S. 570. Miller v. Stem, 12 Ibid. 383. Hill v. 5 Evans v. Eaton, 7 Wheat. 356. Hill, 42 Ibid. 198. Zeller v. Eokert, 4 How. 289. " Allen v. Rostain, 11 S. & R. 362. " Carver v. Aster, 4 Pet. 1. Ex parte " Brindle v. Mcllvaine, 9 S. c& R. 74. Crane, 5 Ibid. 190. Magniac v. Thomp- '' Wilson v. Horner, 59 Penn. St. 155. son, 7 Ibid. 348. Stimpson v. West Edwards v. Tracy, 62 Ibid. 374. See the Chester Railroad Co., 3 How. 553. See remarks of Duncan, J., in Thomas v. Raydure v. Knight, 2 W. N. C. 713; Wright, 9 S. & R. 91-2; and the cases s. c. 3 Ibid. 109. collected in Bright. Dig. " Error," V. 390 FILING OPINIONS. § 700. After the bill is sealed, and judgment has been rendered in the cause,' a writ of error is brought to remove the proceedings into the supreme court, upon which the points excepted to may be argued and decided in that court. In England, upon the return of the writ of error, the judge is called upon, by writ, to come in and confess or deny his seal -^ but in our practice, the bill of exceptions is part of the record, aud always comes up with it ; and for that reason, the judge is never called on to acknowledge his seal, which is necessary only where the bill of exceptions has not been tacked to the record.^ § 701. A bill of exceptions* does not draw the whole matter again into examination, but only the specific points, to which the attention of the court is directed, by their having been the subject of exception at the trial ;^ and when several exceptions are taken by the same party at the trial, all are not included in the same bill of exceptions, but are separately stated.^ All discussions must be confined to, and no notice can be taken of, matter not appearing on the face of the bill of excep- tions f in examining the admissibility of evidence in the court above, the party excepting is to be confined to the specific objection taken at the trial.* § 702. Filing opinions. By act 24 February 1806,' " in all cases in which presidents of the courts of common pleas, shall deliver the opinion of the court, if either party, by himself or counsel, require it, it shall be the duty of the said judges, respectively, to reduce the opinion so given, with their reasons therefor, to writing, and file the same of record in the cause." And by act 15 April 1856,'" "the president judges of the several courts of common pleas shall, in every case tried before them, respectively, upon request of any party or attorney concerned .therein, reduce the whole opinion and charge of the court, as delivered to the jury, to writing, at the time of the delivery of the same, and shall forth- with file the same of record." § 703. These acts do not prevent counsel from proceeding by bill of exceptions, although the opinion is filed, and the evidence may always be put on the record in that way, if counsel prefer it," but the opinion being thus made part of the record, a bill of exceptions is not necessary, and any error may be taken advantage of, when brought before the supreme court on a writ of error.'^ The opinion, however, should always be ' See Eichelberger v. Nicholson, 1 S. ' Bingham v. Cabot, 3 Dall. 382. & R. 430. Bull. N. P. 317. Clarke v. Russel, Ibid. 422 n. Baring ^ Money v. Leach, 3 Burr. 1692. v. Shippen, 2 Binn. 168. 8 East 280". * Withers v. Gillespy, 7 S. & R. 15. See Withers v. Gillespy, 7 S. & R. 1.5. Clarke v. Russel, 3 Dall. 419 n. Bull. * Hinde v. Longworth, 11 Wheat. N. P. 317. 209. And see Bright. Dig. "Error," V. * Thomas v. Wright, 9 S. & R. 91-92. » 4 Sm. L. 276 ; Purd. 1168. And see Bright. Dig. "Error," V. "> P. L. 337 ; Purd. 1168. s Frier* v. Jackson, 8 Johns. 495. " Bassler v. Niesly, 1 S. & R. 431. Bull. N. P. 316. 12 Downing v. Baldwin, 1 S. &R. 298. ' 2 Dunl. Pr. 644. Rogers v. The Wheeler v. Winn, 53 Penn. St. 122. Marshall, 1 Wall. 645. Harvey v. Northumberland County Bank u. Ever, Tyler, 2 Ibid. 328. 58 Ibid. 97. FILING OF OPINIONS. 391 accompanied by a statement of such facts as are necessary to understand it, and it is the business of the party who objects, to see that the necessary facts are placed on the record.^ The judge is not bound to return the evidence on which his opinion is founded ;^ nor to annex to the record, a copy of the evidence taken by him, and transcribed by the party making the request ; but it is his duty, if requested, to permit so much of the evidence as may be necessary to understand his opinion, to be placed on the record, without a formal bill of exceptions.' Such request, however, should be made immediately on the delivery of the opinion, and the statement of the evidence should be prepared by the counsel, and submitted to the court, in the same manner as in a bill of exceptions.* In many instances, the judge's notes have been sent up, with consent of both parties ; this practice was introduced to save trouble, and in that respect, is said to have its use ; but the supreme court have frequently expressed their disapprobation of it ; because it presents a mass of useless matter, which must be separated from that which is relevant, and thus increases the labor and expense of the pro- ceedings. When it is intended to have the opinion of a court of common pleas reviewed in the supreme court, it should be the object of the counsel to have the necessary evidence stated as clearly and con- cisely as possible, and no more need ever be stated than is necessary for the elucidation of the opinion to which exception is taken.^ § 704. To bring the opinion of the court properly on the record, it must appear to have been filed by the judge, at the express request of -a party to the action, preferred at the time of the trial ; a subsequent prayer comes too late, though only a day intervene.^ This request may appear by a certificate of the judge, filed with his opinion, or a memo- randum at the foot of it ; and it is the business of counsel, to see that the proper evidence is sent up.'' The act of 1806 does not apply to the rejecting or admitting of evidence, so as to oblige a judge to file his rea- sons, in writing, for such rejection or admission f and in other cases, if the opinion, when requested to be filed, be not accompanied with reasons therefor, it will not be held as error, in the supreme court ; but as the act is positive in that particular, every judge, in executing it, acts on his own responsibility.' These acts make no alteration as to those matters ' Downing v. Baldwin, 1 S. & R. Lancaster v. De Normandie, 1 Whart. 298. And see Bassler v. Niesly, 49. Holden v. Cole, 1 Penn. St. 303. Ibid. 431. Munderbach v. Lutz, 14 Ibid. A charge, never filed by the judge, will 126. not be considered by the supreme court. ' Bassler v. Niesly, ut supra. But Koons v. Steele, 19 Ibid. 204. And the facts stated in the opinion, as ad- see Lehigh Valley Railroad Co. v. mitted or proved, must be taken to be Hall, 61 Ibid. 361. Alexanderu. Weid- true, unless contradicted by the evi- ner, 82 Ibid. 452. Lanbach v. Rhiel, 33 dence brought up by bill of exceptions. Leg. Int. 281. McNairi). McLennan, 24 Penn. St. 384. ' Bratton v. Mitchell, 5 "Watts 69. * Bassler v. Niesly, ut supra. Rei- ' Morrison v. Moreland, 15 S. & R. gart V. Ellmaker, 14 S. & R. 121. 61. An opinion filed, on confirming an * Ibid. award, is no part of the record. Bar- 5 Ibid. And see Wenrick v. Hall, 11 tolett v. Dixon, 73 Penn. St. 129. S. & R. 154. ' Morberger v. Hackenberg, 13 S. & » Meese v. Levis, 13 Penn. St. 384. R. 26, 28. 392 DEMUEEEE TO EVIDENCE. which are the subject of revision in the supreme court, by writ of error ; therefore, the decision of a subordinate court, on a motion for a new trial, is not the subject of a writ of error, although the reasons of the judges may be filed of record.' VII. Demurrers to evidence and points i-eserved. § 705. Demurrer to evidence. Where the evidence in a cause is such, that the counsel of the opposite party thinks it insufficient in law, to maintain or overthrow the issue, as the case may be, he may, if he choose, demur to it. By this proceeding, he admits the truth of all the facts alleged, withdraws the case from the consideration of the jury, and submits the application of the law upon the facts, to the court.^ The demurrer to evidence originally grew out of necessity, and fell into dis- use only when the increasing liberality of the English judges, in granting new trials, aflfbrded a more convenient method of obtaining ^he judg- ment of the superior courts at Westminster. With us, there is, perhaps, some reason why it should be retained, and even encouraged, inasmuch as the opinion of the court of last resort cannot be had on a motion for a new trial in the common pleas.^ § 706. As it is the peculiar province of the jury to ascertain the triith of facts, and the credibility of witnesses, the party ought not to be allowed, by a demurrer to evidence, or any other means, to take that province from them, and draw such questions ad aliud examen* The riile, therefore, is, that the demurrer must admit the truth of all facts, which the jury might find in favor of the other party, upon the evidence laid before them, whatever the nature of that evidence may be, whether of record, in writing or by parol.' Where the evidence is written, and where, though parol, it is certain, the party who offers it must join in the demurrer, or waive the testimony; if the plaintiff refuse to join in demurrer, except on terms which the court disapproves, the plaintiff's evidence is considered as withdrawn, and the jury must find a verdict for the defendant.* But where the evidence is uncertain or circumstantial, the party by whom it is oflfered, may specify the facts which he wishes to be expressly admitted, before he joins in the demurrer ; the judge must decide upon that matter, and every fact should be ad- ^ Burd V. Dansdale, 2 Binn. 80. of sound discretion, under all tne oir- Wright V. Small, Ibid. 93. cumstances of the case ; and that, as it '' 3 Bl. Com. 372. seems, the exercise of this discretion ' Crawford «. Jackson, 1 Rawle 431 ; cannot be made the foundation of a writ Gibson, C. J. See Bank U. S. v. Smith, of error. See also, the case of Fowle o. 11 Wheat. 172, and the reporter's note, Alexandria, Ibid. 320 .• and in criminal p. 183, where it is said, that the demur- cases, Commonwealth ». Parr, 5 W. & rer to evidence is an unusual and auti- S. 345. quated practice, which the courts have * Cooksedge v. Fanshaw, 1 Doug. recently endeavored to discourage, as 129. inconvenient, and calculated to suppress ' Ross v. Eason, 4 Yeates 54. Dickey the truth and justice of the cause ; also, v. Schreider, 3 S. & R. 413. McKowen that it is allowed ordenied by the court v. McDonald, 43 Penn. St. 441. where the cause is tried, in the exercise * Crawford v. Jackson, 1 Rawle 427. DEMUEEEB TO EVIDESTCE. 393 mitted which the evidence conduces to prove, though but in a slight degree.^ So, if the evidence conflict, the party demurring must admit that of his adversary to be true, so far as it conflicts with his own f so, if the plaintiff call several witnesses to prove the same transaction, some of whom testify unfavorably to him, and others in his favor, the defend- ant, by demurring to the. evidence, admits that the latter have told the truth, and so the court must take it, though the jury would have believed the former f so, if one fact tend to the induction of another, the last fact should also be admitted. Under these restrictions, it is the right of the party demurring to insist on the demurrer being joined.^ Where there is parol evidence of a fact, which is not evidence of any other fact, but itself a substantive ingredient in the case, a party may be required to join in demurrer.'^ It is the duty of the judge to be liberal in direct- ing the admission of facts ; and if he err in judgment, it will be good cause for the court in banc to order a venire facias de novo.^ The court will, also, on the argument of the demurrer, make every inference of fact in favor of the party ofiering the evidence, which it war- rants, and which the jury might, with the least degree of propriety, have inferred f but they ought not to make forced inferences f and if, upon consideration of the record, the court should be of opinion, that there are not facts sufficient to warrant a judgment, they may order a venire de novo? § 707. Where a party asks the court to direct the jury that the evi- dence of the other party is not sufficient in point of law, the latter may compel him to demur to the evidence ; or, if he will not, the case must be allowed to go to the jury on the arguments of counsel.*" On a demurrer to evidence, the damages may be assessed conditionally by the principal jury, before they are discharged ; or they may be assessed by another jury, upon a writ of inquiry, after the demurrer is determined.'' The judgment of the court in banc on such demurrer, is, that the evidence is, or is not, sufficient to maintain the issue joined.'^ The judgment of the court stands in the place of the verdict of the jury, and the defendant may take advantage of any defects in the declaration, by motion in arrest of judgment, or by writ of error.'^ Though judgment will not be ' Snowden v. Phoenix Insurance Co., son, 20 How. 428. 3 Binn. 457. Duerhagen v. United ^ Crawford v. Jackson, 1 Rawle 427. States Insurance Co., 2 S. & R. 185. ^ Ibid. Smith V. Merchand, 7 Ibid. 260. Feay ' Maus v. Montgomery, 11 S. & R. V. Decamp, 15 Ibid. 227. Caldwell v. 329. Stileman, 1 Rawle 212. Maokinley * Morrison v. Berkey, 7 S. & R. 245. V. McGregor, 3 VVhart. 369. Davis v. United States v. Williams, 1 Ware 175. Steiner, 14 Penn. St. 275. Tucker ' Duerhagen v. United States Insur- V. Bitting, 32 Ibid. 428. ranee Co., 2 S. & R. 185. 2 Morrison v. Berkey, 7 S. & R. 245. '» Lee v. Lee, 9 Penn. St. 174. Young V. Black, 7 Cr. 565. " Bull. N. P. 313. ' Feay v. Decamp, 1 5 S. & R. 228. ^'' Ibid. See Form of demurrer and * Duerhagen v. United States Insur- joinder therein, Ibid. 314. ance Co., 2 S. & R. 185. A demurrer '^ Bank U. S. v. Smith, 11 Wheat. to evidence makes the evidence a po,rt 17'. Sutsii Ci/ii,u. LincDeoK, x Doug. of the record. Suydam v. William- 208. 394 POINTS RESERVED. given, if the declaration set forth an illegal cause of action, or no cause of action at all, yet it waives all objections merely formal ; what would be cured by verdict, is also cured by a demurrer to evidence,' and a variance between the declaration and proof, will not be considered very critically.^ § 708. Points reserved.- The judge before whom the case is tried, may, if he think it expedient, reserve questions of law, which may arise on the trial of the cause, for the consideration of the judgment of all the judges of the court, sitting together ; and either party may take a bill of exceptions to the opinion of the court, as if the point had been ruled and decided on the trial of the cause.' Points reserved must be purely questions of law, and such as rule the case ;^ the court cannot reserve a mixed question of law and fact — as, whether a certain building was a trade-fixture f nor can the decision of the facts be withdrawn from the jury, by reserving as a point, whether, under all the evidence in the cause, the plaintiff is entitled to recover.^ The facts out of which the point arises, must be stated on the record, as found by the jury or admitted ; the supreme court cannot draw a conclusion of fact from the evidence." All the facts should be distinctly stated, as well as the ques- tions raised upon them ; and the judgment which is to be alternately pro- nounced, should be specified, as in a case stated.* § 709. When a point of law is reserved, the verdict must be in favor of the plaintiff;' and by the rules of court, the defendant must move for a new trial, and judgment non obstante veredicto, within four days there- after ;'" and, as we have seen, a bill of exceptions must be presented within ten days.'' If no exception be taken to a point reserved, it will be presumed to contain a true statement of the facts ;'^ and, on the argument, the court will confine itself strictly to the matter reserved.'* It is error, after submitting a fact to the jury, to enter judgment non obstante veredicto against the party in whose favor it is found, on the ground that the evidence is insufficient to establish' it ; the remedy is, by ' Caldwell v. Stileman, 1 Rawle 212. ' Winchester v. Bennett, 54 Penn. ^ Emerickc. Kroh, 14 Penn. St. 315. St. 510. Miller v. Bedford, 86 Ibid. » Act 28 March 1835, | 5, P. L. 90 : 454. Purd. 497 ; extended to all the courts of * Edmonson v. Nichols, 22 Penn. St. common pleas, by act 22 April 1863, 74. Stewart v. Freeman, Ibid. 120. P. L. 554; Purd. 1168. Lyons v. Divelbis, Ibid. 185. Kobin- * Wilde V. Trainor, 59 Penn. St. 439. son v. Myers, 67 Ibid. 9. Commonwealth t>. McDowell, 86 Ibid. ' Lippincott r. Mine Hill and Schuyl- 377. kill Haven Railroad Co., 2 Leg. Chron. * Campbell v. O'Neill, 64 Penn. St. 337. Glading i: Irick, 7 W. N. C. 134. 290. Commonwealth v. McDowell, ut '" Rule xxv. § 90. A judgment non supra. obstante veredicto will not be entered, * Clark V. Wilder, 25 Penn. St. unless a question has been reserved. 314. Irwin v. Wickersham, Ibid. 316. PhiladelphiaM.Donath,36Leg.Int. 156. Wilson V. The Tuscarora, Ibid. 317. " See supra, i 698. Wilde V. Trainor, 59 Ibid. 439. Fergu- " Insurance Co. of Pennsylvania v. son V. Wright, 61 Ibid. 258. And see Phoenix Insurance Co., 71 Penn. St. 31. Roberts v. Hopkins, 11 S. & R. 202. Smith v. Van Home, 72 Ibid. 207. The court cannot draw conclusions of And see Leach v. Ansbacher, 28 Leg. fact from the evidence. Common- Int. 22". wealth V. MoDowell, 86 Penn. St. 377. " Snyder v. Castor, 4 Yeates 353. MAKING UP THE VERDICT. 395 motion for a new trial.^ The entry of judgment or a reserved point, it has been said, is a virtual overruling of the pending motion for a new trial ;^ but where the supreme court reversed a judgment for the defendant, on a point reserved, and a motion for a new trial remained undisposed of, a procedendo was awarded.^ So, where the court below, on a point reserved, sets aside the verdict, and enters judgment of non- suit, the supreme court, on reversing such judgment, will award a venire de novo f otherwise, where, without setting aside the verdict, there is judgment for the defendant on the points reserved/ VIII. Nonsuit and verdict. § 710. Making up the verdict. After listening to the judge's charge, the jury may, if they think proper, withdraw from the bar, to deliberate on their verdict. Before retiring, they are placed iu charge of an officer of the court, who is sworn " to keep them in some private and conve- nient place, until they shall have agreed upon their verdict ; and not to permit any person to speak to them, nor to speak to them himself, with- out leave of the court, except to ask if they have agreed upon their verdict." If the jury desire further instructions, they may come into court for that purpose; but such instruction must be given in the pres- ence of the respective counsel for the parties. § 711. The jury are allowed, by the practice of this state, to take out ■with them any written papers which have been given in evidence, though not under seal, except the depositions of witnesses;^ these have been withheld, because it would be unequal, that while the jury were not per- mitted to call the witnesses before them who had been examined in court, they should take with them the depositions of other witnesses not so examined,^ Where, therefore, an important deposition was sent out with the jury, by accident, without fault or knowledge of either counsel, a new trial was granted.' The jury have no right to take out a record containing depositions ;' to this rule, however, there is one exception — the jury may take out a record of proceedings in bankruptcy, though it include the depositions relative to the bankruptcy, if they be immaterial to the controversy ;'" and a paper may be detached from a deposition, and handed to the jury." As a general rule, the sending out of ' North American Oil Co. «. Forsyth, St. 416. TJdderzook ». Commonwealth, 48 Penn. St. 291. 76 Ibid. 340. The English practice of ^ Pennsylvania Salt Manufacturing sending out only sealed papers, was Co. V. Neel, 54 Penn. St. 9. never adopted in this state. Foy v. * Harper o. Keely, 17 Penn. St. 234. Insurance Co., 4 Luz. L. Reg. 165. Leach v. Ansbacher, 28 Leg. Int. ' Alexander ». Jameson, ut supra. 227. " Carson v. Watson, 4 Phila. 88. * Wharton v. Williamson, 13 Penn. ° Union Petroleum Co. v. Bliven St. 273. Petroleum Co., 72 Penn. St. 173. 5 Klett ». Claridge, 31 Penn. St. 106. " Shomo v. Zeigler, 10 Phila. 611. * Alexander v. Jameson, 5 Binn. 238. This case was affirmed by the supreme Hendel v. Berks and Dauphin Turn- court ; but the point was not there pike Koad, 16 S. & R. 92. Seibert v. raised. 78 Penn. St. 357. Price, 5 W. & S. 438. Riddlesburg " McKelvy v. De Wolfe, 20 Penn. St. Iron and Coal Cc. ;. P.cgc: . vw J. CllU. 396 VOLUNTARY NONSUIT. papers with the jury, is a matter of sound discretion, not reviewable on error.' § 712. It is also the practice, to send out with the jury, calculations made by the parties, showing the items on which they rely, where calcu- lation is requisite in making up the verdict;^ but a statement of items, as to some of which there is no proof, cannot be handed to the jury ;' it is error, to permit it to be done.* In action on a mechanic's claim, it is not error, to permit the claim, which contains a bill of particulars, to go out with the jury f but they ought not to take out with them a withdrawn declaration, and bill of particulars under it.^ It is the duty of' counsel, to examine such statements, and if there be anything wrong in any item or number of items, to call the attention of the court to it, on the trial, and request them to be stricken out ; unless this be done, the supreme courtwill not reverse for error, on such ground.' In an action for a tort, it is not illegal, to hand to the jury an itemized statement of the plaintiff's claim for damages ; though the practice is not t(j be com- mended.^ § 713. Voluntary nonsuit. At common law, before the jury deliver their verdict, the plaintiff is bound to appear in court, by himself or counsel, in order to answer the amercement, to which, by the old law, he was liable (in case he failed in his suit), as a punishment for his false claim. The amercement is disused, but the form still continues ; and, if the plaintiff do not appear, no verdict can be given, but the plaintiff is said td be nonsuit — not to follow up his claim. Therefore, it is usual for a plaintiff, when he, or rather his counsel, perceives that he has not given evidence sufficient to maintain the issue, to be voluntarily non- suited, or withdraw himself; whereupon, the crier is ordered to call the plaintiff; and if neither he nor anybody for him appears, he is nonsuited, the jurors are discharged, the action is at an end, and the defendant recovers his costs.' In this state, by act of 1814,'^" it is declared, that, "whenever, on the trial of any cause, the jury shall be ready to give in their verdict, the plaintiff shall not be called, nor shall he then be per- mitted to suffer a nonsuit." At any previous stage of the trial, however, and at any time before the jury have signified to the court their readi- ness to give their verdict,'^ the plaintiff may suffer a nonsuit for defect of ' Spence v. Spence, 4 AVatts 16.5. Penn. St. 507. Hamilton v. Glenn, 1 Penn. St. 341. « Hall w. Rupley, 10 Penn. St. 231. Little Schuylkill Navigation Co. v. ' Kline v. Gundrum, 11 Penn. St. Richards, 57 Ibid. 142. And see O'Hara 253. V. Richardson, 46 Ibid. 385. « Rowand v. Clark, 34 Leg. Int. 232. ' Commonwealth ». Lebo, 13 S. & R. And see Ege v. Kille, 84 Penn. St. 175. Frazier v. Funk, 15 Ibid. 26. 333. ' Morrison v. Moreland, 15 S. & R. ' Franklin v. Mackey, 16 S. & R. 61. 117. * Musser v. Brabenstadt, 3 Leg. Gaz. 'o Act 28 March 1814, § 2 ; 6 Sm. L. 210. Otherwise, if there be any evi- 208; Purd. 1169. dence tending to prove such items. " McLughn jj. Bovard, 4 Watts 308. Foy V. Insurance Co., 4 Luz. L. Reg. The plaintiff may suffer a nonsuit, at 165. Wilman v. Wagner, Ibid. 252.- anytime before the clerk has put to the * Odd Fellows' Hall i). Masser, 24 jury the question, " have you agreed COMPUtSOEY NONSUIT. 397 evidence. In our practice, the plaintiff may suffer a nonsuit at any time during the trial, and just as the jury are about to deliver their verdict, although the defendant has pleaded a set-off, and given evidence of it.' And the privilege was held rightly allowed, where the jury had repaired to the box, and when some of them had been called.^ And, under the act of 1836,' the court may, after appeal from an award of arbitratorSi 1 allow the plaintiff to suffer a nonsuit, with like effect as if the cause had not been referred, if the special circumstances seem to require it ; by which, it is said, great hardships have been experienced by both parties.^ Where the defendant is substantially the actor (as, in an issue to determine the validity of a mechanic's claim), the plaintiff cannot suffer a nonsuit f but after judgment by default against one of several defendants, the plain- tiff may suffer a nonsuit, on the trial of the issue joined by the others.'' § 714. Compulsory nonsuit. At common law, the court could not compel a plaintiff who had given evidence, to submit to a nonsuit ; he had a right to insist on taking the verdict.'^ But the act of 1875 pro- vides^ " that whenever the defendant, upon the trial of a cause, in any court of common pleas of this commonwealth, shall offer no evidence, it shall be lawful for the judge presiding at the trial to order a judgment of nonsuit to be entered, if in his opinion, the plaintiff shall have given no such evidence as, in law, is sufficient to maintain the action, with leave, nevertheless, to move the court in banc to set aside such judgment of nonsuit ; and in case the said court in banc shall refuse to set aside the nonsuit, the plaintiff may remove the record, by writ of error, into the supreme court, for revision and review, in like manner and with like effect as he might remove a judgment rendered against him upon a demurrer to evidence." § 715. Under this statute, if, on the whole of the plaintiff's, evidence, the jury would not be justified in finding a verdict against the defend- ant, it is the duty of the court to order a nonsuit f but, if there be any question of fact for the jury, it is error, to enter a compulsory nonsuit ;'" as the prayer for a nonsuit is, in effect, a demurrer to evidence," if there be any evidence, however slight, from which a jury might draw an infer- ence favorable to the plaintiff, it must be submitted to them.'^ Whether upon your verdict?" Kates v. Lewis, iels, 14 Penn. St. 198. 2 Clark 53. ' Act 11 March 1875, P. L. 6 ; Purd. ' McCredy v. Fey, 7 Watts 496. 2054. This power had already been Shannon v. Truefit, 1 W. N. C. 248. conferred by act 22 April 1863, P. L. 2 Easton Bank v, Coryell, 9 W. & S. 354 ; Purd. 1168. 153. See Lawrence v. Burns, 2 Bro. 60. ' Pittsburgh and Steubenville Rail- ' Act 16 June 1836, J 25, P. L. 721 ; road Co. v. Gazzam, 32 Penn. St. 340. Purd. 85. Howard Express Co. v. Wile, 64 Ibid. * McKennan v. Henderson, 5 W. & S. 201. 371. i" Berg ». Abbott, 83 Penn. St. 177. ^ Walter v. Streeper, 2 Miles 348. Prutzman v. Bushong, Ibid. 526. 6 Miller V. Knaufif, 2 Clark 11. " Smyth v. Craig, 3 W. & S. 18. ' Girard v. Gettig, 2 Binn. 234. Fleming v. Insurance Co., Bright. 104. Widdifield v. Widdifield, Ibid. 245. '^ Bevan v. Insurance Co., 9 W. & S. Hayes v. Grier, 4 Ibid. 84. Irving v. 187. Maynes v. Atwater, 6 W. N. C. Taggart, 1 S. & R. 360. Lyon v. Dan- 535. 398 VERDICT. the judge can enter a compulsory nonsuit, on the trial, where the plain- tiff has given evidence in support of the issue, but the declaration discloses no cause of action, has been made a question.' A motion to take off such nonsuit must be made within four days;^ for a writ of error does not lie to the compulsory nonsuit, but only to the refusal of the court in banc to take it off, on motion.^ A nonsuit for a variance between the aUegaia and probata will not be taken off;* nor to enable the plaintiff to supply a defect in his testimony.^ A compulsory nonsuit, under the statute, is not conclusive of the rights of the parties ; it is not a bar to another action for the same cause.^ § 716. Verdict, When the jury have agreed, they return to the bar, and, by their foreman, publicly give their verdict, which is recorded by the clerk in his minutes, who then reads the entry to the jury, in order that, if he has made a mistake in taking down the verdict, it may immediately be corrected. There is no verdict of any force except a public verdict, given openly in court;' but the jurors are allowed, in civil cases, when the court has risen, before they are agreed, to give a privy verdict before any of the judges of the court ; if, however, the court be adjourned to the judge's chambers, it is not privy, but public. At the subsequent meeting of the court, the jury may either affirm or alter their privy verdict, and that which is thus given in open court, shall stand ; so that, as Black- stone remarks, the privy verdict is a mere nullity ; and it is a dangerous practice, allowing time for the parties to tamper with the jury, and, therefore, very seldom indulged.^ " With us, a practice has obtained, of permitting the jury to reduce their finding to writing, and, after sealing it up, to separate till the meeting of the court, when, the paper being handed to the judge, their verdict is received from the lips of the fore- man, and recorded in the usual way ; but this difference is unimportant, for neither in the one case nor the other, is a privy verdict, thus deliv- ered, recorded. As the jury may depart from it, their finding in court is what decides the rights of the parties, and what is admitted of record ; the paper delivered to the judge, having performed its office, is never filed or preserved ; and even if it should be, it would form no part of the record."' After the verdict is received, the jury may be polled, that is, by each juror being separately examined and interrogated as to his con- currence in the verdict delivered by the foreman, and then either of the jurors may disagree to the verdict.'" ' Stanly «. Southwood, 4 Phila. 291, 257. Adams v. Adams, 1 "W. N. C. 279. 305. The judges were divided on this Short v. Willing, Ibid. 460. question. Our own opinion is, that a * Jenneson v. Camden and Amhoy nonsuit cannot be entered under such Railroad Co., 5 Clark 409. circumstances ; the plaintiff has a right ^ Walton v. Heald, 1 Phila. 1 32. to support the issue, without regard to * Bournonville ». Goodall, 10 Penn. the sufficiency of the declaration ; and St. 133. Fleming v. Insurance Co., many defects of pleading are cured by Bright. 102. a verdict. See Safford v. Stevens, 2 ' 3 Bl. Com. 377. Wend. 158. Kelly v. Kelly, 3 Barb. » Ibid. 419. 9 Dornick v. Reiohenback, 10 S. & ■' Rule XXV. I 33. R. 84. Rees v. StiUe, 38 Penn. St. 138. ' Haverly v. Mercur, 78 Penn. St. "> Hause v. Fuuston, 1 W. N. C. 73. VERDICT. 399 § 717. The court may, also, of its own accord, send the jury back to reconsider their verdict, if it appear to be a mistaken one, before it is received and recorded.' And where a jury, tlirough mistake or per- versity, brings in a verdict against the charge of the court, or not in due form, the court will send them out again to reconsider their verdict, not- withstanding they had separated and sent a sealed verdict into court.^ So, where, on the jury's being polled, some of them dissent from the verdict, or where they come into court and declare that they cannot agree, the judge may again send them out, to deliberate further.^ A verdict may be received on Sunday.^ But, after the jury have rendered their verdict, which is received and recorded, and they are dismissed, they cannot alter their verdict, on a certificate of mistake in making it f nor can the court do it, upon such certificate; should they do so, it would be the ground for a motion in arrest of judgment, or for a writ of - error to the supreme court.^ But a recorded verdict may be amended by the court, so as to make it conform to that actually rendered by the jury.' § 718. When the court adjourns, no one is bound to appear until the time of meeting fixed by them ; consequently, the judge cannot, without consent, receive and enter a verdict of a jury in the interval; the losing party has a right to be there, and tender a bill of exceptions at the last moment, before verdict is taken, or to poll the jury, before it is recorded.' The court may, however, receive a verdict after the an- nouncement of an adjournment, the judges being still on the bench, and the counsel present ; the act of adjournment, iu such case, is not com- plete, and may be recalled.' So, though the court have ordered the jury to be discharged, in consequence of inability to agree, they may render a verdict, at any time before they have actually separated — the discharge not having been recorded ;'" and where, after sealing their verdict, one of the jurors is taken sick, the court may adjourn to his residence and take the verdict.^' A sealed verdict, read openly by the prothonotary, assented to by the. jury, and recorded by the clerk, is valid.'^ § 719. A general verdict is a finding by the jury in the terms of the issue or issues referred to them ; and it is either, wholly or in part, for Root V. Sherwood, 6 Johns. 68. Black- Commonweath v. Mara, 3 Brewst. 402. ley i). Sheldon, 7 Ibid. 32. Fink v. Commonwealth v. Earl, Lewis's Or. L. Hawks, 2 Wend: 649. The jury may 421. be polled, at any time before the ver- ^ Walters v. Junkins, 16 S. & R. 414. diet is recorded. Fox v. Smith, 3 Cow. * Ibid. 23. In polling the jury, the only in- ' Friedly v. Scheetz, 9 S. & R. 156. quiryis — " Is this your verdict ?" La- Pedan u. Hopkins, 13 Ibid. 45. Ivens's bar V. Coplin, 4N. Y. 547. Appeal, 33 Penn. St. 237. Haycock w, 1 Blackley v. Sheldon, 7 Johns. 32. Greup, 57 Ibid. 438. ^ Wolfran v. Eyster, 7 Watts 38. * Shamokin Coal and Iron Co. v. Ramage v. Peterman, 25 Penn. St. Mitman, 3 Penn. St. 379. People 349. Reitenbaugh v. Ludwick, 31 Ibid. v. Mayor's Court, 1 Wend. 36. 131. » Person v. Neigh, 52 Penn. St. 199. ^ Bunn V. Hoyt, 3 Johns. 255. War- '» Keontz v. Hammond, 62 Penn. St. ner ». New York Central Railroad Co., 177. 62 N. Y. 437. " King v. Faber, 51 Penn. St. 387. « Huidekoper v. Cotton, 3 Watts 56. " Willard v. Shaffer. 6 Phila. 520. 400 VERDICT. the plaintiff or for the defendant.' Where the general issue and several special pleas are pleaded, there ought to be a separate finding on each issue f jurors are sworn to try, not a particular issue, but all the issues, where there are more than one ; and, therefore, where some of them are to be found for the one party, and some for the other, they must be disposed of in detail;' and, it seems, the counsel on each side have a right to inquire, when a jury finds generally for the plaintiff or the defendant, which precise issue or issues they find in the affirmative or negative.* Under our loose practice, a general finding of damages in favor of the plaintiff, is considered a negation of any special pleas upon the record f but even with us, it would seem, that if the defendant, as he may do, plead matter in abatement, 'puis darrein continuance, there must be a special finding on such issue, as it is not a waiver of the former pleas upon the record.' § 720. A verdict must be certain f though certainty to a common" intent is sufficient,* it must conform to the issue joined between the par- ties,' or, at least, must find the substance of it,^" and it must be such that the court can compel performance." It must not contradict facts admitted by the parties on record ;^^ and it must determine all the mat- ters put in issue by the pleadings ;'' but, if, in addition to their verdict, the jury find matter merely superfluous, such finding does not affect the verdict." At the request of the parties, the jury may express an opinion distinct from their verdict.^^ § 721. It is the practice of the English and American courts, where evidence has not been given on bad counts, to enter the verdict on those which are good, and supported by the proof; it is a matter of legal dis- cretion, of which, where the whole evidence is not embodied in the bill of exceptions, a court of error cannot judge.'" And even where the evi- dence was applicable to both the good and the bad counts, the court may enter the verdict and judgment on the good ones."' So, where the counts were incongruous;^* and where all the counts are good, the verdict may be entered generally, though the evidence was not applicable to some of them." And where, in an action on the case, the general issue is pleaded, ^ As to conditional verdicts, see su- '" Glass v. Blair, 4 Penn. St. 196. pra, I 53. ^"^ McFerran v. Taylor, 3 Cr. 270. '' Tibbs o. Brown, 2 Gr. 39. " Kerr v. Meredith, 4 Yeates 295. * Good V. Good, 9 Watts 570, Fairfax v. Fairfax, 5 Cr. 19. « 3 Chit. Gen. Pr. 921. See United " Cavene v. McMichael, 8 S. & R. States V. Smith, 4 Otto 214. . 441. Fisher «. Kean, 1 Watts 259. * Strohecker v. Drinkle, 16 S. & R. Bickham ». Smith, 62 Penn. St. 45. 38. And see Hawks u. Crofton, 2 Burr. '^ Hartshorn ». Wright, Pet. C. C. 64. 698. Thompson w. Button, 14 Johns. 84. " Haldeman w. Martin, 10 Penn. St. " See SMpra, 2 674. Gardners. Clark, 372. 21 N. Y. 399. " Smith v. Latour, IS Penn. St. 243. ' See Bright. Dig. 696-7. " Sergeant v. Ewing, 30 Penn. St. 75. ' Liter .D.Green, 2 Wheat. 306. Dow- " Steph. Plead. 112. A general vcr- ■ney v. Ilicks, 14 How. 240. diet on several counts, some of which ' Patterson v. United States, 2 are not within the jurisdiction, is bad Wheat. 221. in toto. Kline v. Wood, 9 S. & R. "• Duane v. Simmons, 4 Yeates 441. 294. SPECIAL VEEDICT. 401 and afterwards other counts are filed, which are demurred to, and the case is tried, before a judgment on the demurrers, it will be considered that the verdict is rendered on the first count only, though in fact given generally.^ § 722. At common law, a verdict cannot find a sum of money to be recovered by the defendant of the plaintiff; but, by the act of 1705,^ for defalcation, "if it appear to the jury that the plaintiff is overpaid, they shall give their verdict for the defendant, and withal certify to the court how much they find the plaintiff to be indebted or in arrear to the de- fendant, more than will answer the debt or sum demanded, and the sum so certified shall be recorded with the verdict, and deemed a debt of record."^ This, however, supposes the defalcation to have been pleaded, or notice given of it, under the plea of payment. But the jury can- not, under any plea or notice, find a sum due from the plaintiff to the defendant, to be deducted from another debt due from the defendant to the plaintiff.* A verdict bears interest f and it is a lien on real estate, from the time of its rendition, unless a new trial be granted, or the judg- ment arrested f but no judgment can be entered thereon, until payment of the sum of four dollars to the sheriff, for the use of the county, to be appropriated to the jury fund.' The payment of this sum may be enforced by rule upon the party.* § 723. Special verdict. The jury have no right to throw the decision of the facts, even as mixed with the law, on the court ; therefore, a verdict for a party " subject to the opinion of the court," without any mention of facts ; or where they find " subject to the opinion of the court on the facts proved," without stating those facts, is defective, and will be set aside.' Where, therefore, the jury are in doubt about the application of the law to the facts, the proper course is, to find a special verdict, which is grounded on the statute West. II. (13 Edw. I., c. 30, § 2),'° and is a finding by the jury of all the facts of the case, as disclosed upon the evidence before them; and, after setting them forth, concludes, when formally drawn up, to the following effect : — " that they are ignorant, in point of law, on which side they ought, upon these facts, to find the issue ; that if, upon the whole matter, the court shall be of opinion, that the issue is proved for the plaintiff, they find for the plaintiff accord- ingly, and assess the damages at such a sum, &c.; but if the court are of an opposite opinion, then vice versd."^^ On a special verdict, the court are confined to the facts found therein, and will render judgment on it, if it be substantially good, though inartificially worded -^^ but they can- ' In2ersollu.Blanchard,2Teates543. « Act 23 March 1877, P. L. 34; 2 1 Sm. L. 49; Purd. 487. Purd. 2134. » By the act 11 April 1848, 1 12, the ' Act? 29 March 1805, 4 Sm. L. 242 ; defendant may have judgment and Purd. 1168. execution on such finding, without a ^ Evans v. Reed, 22 Pitts. L. J. 79. scire facias P. L. 537 ; Purd. 488. ' Roberts v. Hopkins, 11 S. & R. 202. ' Anderson v. Long, 10 S. & R. 55. '" Rob. Dig. 326. «!pp •urnra 2 550-2. " See Peterson v. United States, 3 ' Art 6 'April 1859, P. L. 381 ; Purd. W. C. C. 36. gQ^ " IngersoU v. Blanchard, 2 Yeates 543. VOL. I. — 26 402 SPECIAL VERDICT. not supply the want of facts, by any argument or implication from what is expressly found ; for whatever is not found, must be taken not to exist.' Therefore, undisputed as well as disputed facts, should be stated in the verdict.^ But where the verdict is defective, the court may, upon mo- tion, and in order to sustain the merits, amend it ; and the practice is to move to amend from notes of counsel, or on affidavit.' If, however, it be so defective that the court cannot give judgment, they will grant a new trial, in order to have it restated.^ § 724. If the jury, in a special v,erdict, find the issue, all that they find afterwards is surplusage ; but if, meaning to find a special verdict, they introduce words which would amount to a general verdict, con- trary to their intention, the court will grant a new trial.' However, as on a general verdict, the jury do not themselves actually frame the postea, so they have, for the most part, nothing to do with the formal preparation of the special verdict. When it is agreed that a verdict of that kind is to be given, the jury merely declare their opinion as to any fact remaining in doubt ; and then the verdict is adjusted without their further interference. It is settled, under the correction of the judge, by the counsel on either side, according to the state of facts as found by the jury, with respect to all particulars on which they have delivered an opinion, and with respect to other particulars, according to the state of facts which, it is agreed, that they ought to find upon the evidence before them. The special verdict, when its form is thus settled, is, together with the whole proceedings on the trial, then entered on record ; and the question of law arising on the facts found, is argued before the court in banc, and decided by that court as in case of demurrer. If the party be dissatisfied with their decision, he may afterwards resort to a court of error.^ § 725. Damages. On a verdict for the plaintifi", or, in replevin, for the defendant, the jury should regularly assess the damages. This sub- ject will be more particularly considered in the second volume, under the heads of the several forms of action in which damages are sought ; at present, attention is called to a few general observations only. Damages are a pecuniary compensation for an injury, and may be recovered in all personal actions,' with the exception of actions upon » Crouaillat v. Ball, 3 Yeates 375. dam v. Williamson, 20 Ibid. 427. Thayer v. Society of United Brethren, United States v. Jaokalow, 1 Black 20 Penn. St. 60. Pittsburgh, Fort 484. Fuller v. Van Geesen, 4 Hill 171. Wayne and Chicago Railroad Co. «. Hill v. Covell, 1 N. Y. .')22. Evans, 53 Ibid. 250. Loew v. Stocker, » Morse v. Chase, 4 Watts 458. Wal- 61 Ibid. 347. lingford v. Dimlap, 14 Penn. St 31. ^ WallingfordB.Dunlap, 14 Penn. St. * Whitesides v. Russell, 8 W. & S. 31. Spath V. Bryan, 18 Pitts. L. J. 79. 44. Loew v. Stocker, 61 Penn. St. 347. Craven v. Gearhart, 1 W. N. C. 257. * United States v. Bright, Bright's If a special verdict find the evidence, Trial 199. not the facts, a new trial must be or- ' Steph. Plead. 112. dered. Clark v. Halberstadt, 1 Miles ' For every breach of contract, the 26. Porter v. Coleman, 1 Pitts. 252. law implies damages, of the measure Prentice v. Zane, 8 How. 470. Suy- of which the jury are the judges, under _ DAMAGES. 403 statutes, by common informers, for penalties.' In most cases, damages are the sole object of the action ; in some, however, they are merely nominal. In assumpsit, covenant, case, trover and trespass, damages are the sole object of the action. In debt, the damages are in general merely nominal, the recovery of the debt itself being the principal object of the action.^ In detinue, the damages are merely nominal ; but the jury find the value of the articles detained, and the judgment is, that the plaintifi" recover the articles, or their value, together with the damages and costs found by the verdict, and the costs of increase. In replevin, a verdict for the plaintifi" gives damages precisely as in trespass ; if the verdict be for the defendant, damages are given as in a verdict for a plaintifi" in trespass.* § 726. When the declaration contains several counts, the jury may assess either entire damages upon all, or any of the counts, or several damages upon each ;* but it is a settled rule, that if a verdict be entered generally on all the counts, and entire damages given, and one count be bad, it is fatal, and judgment will be arrested f and it will be arrested in toto, and no venire de novo awarded.^ However, where a general verdict has been taken, and evidence given only on the good counts, the court has permitted the verdict to be amended by the judge's notes ; so, where it appears by the judge's notes, that the jury calculated the damages on evidence applicable to the good counts only, the court will amend the verdict, by entering it on those counts, though evidence was given applicable to the bad count also.'' The court will not allow a verdict to be entered on a particular count, where the jury have given their verdict on the whole matter, and no one of the other counts is bad or inconsistent.* When the action sounds iu damages, the plaintifi" may recover up to the time of trial, on giving fifteen days' previous notice of his intention so to claim. ^ § 727. As to the measure of the damages, it must be observed, that where there is a penalty expressed for the non-performance of a contract, and it appears evident that such penalty is the precise sum fixed and agreed upon between the parties, as liquidated damages for the non-per- formance of the contract, the jury are confined to that sum.'" But where the supervision of the court. Holler v. zell v. Reynolds, 59 Ibid. 488. Wiener, 15 Penn. St. 242. So, any * 2 Saund. 171 b. See Butcher v. encroachment on the legal rights of Metts, 1 Miles 233. another, entitles him to recover dam- ' See supra, I 721. Burrall v. Du ages. Hutchinson v. Sohimmelfeder, Blois, 2 Dall. 229. 4 Ibid. 396. ' Desoamps v. Dutihl, 4 Yeates ' Frederick v. Lookup, 4 Burr. 2018. 442. Cuming V. Sibly, Ibid. 2489. _ " Act 2 May 1876, P. L. 95 ; Purd. ^ A verdict must be in a sum certain, 2002. thouo-h the action be debt, and the plea '" Westerman v. Means, 12 Penn. St. navment Pulhamus w. Pursel, 2 Clark 97. Faunce v. Burke, 16 Ibid. 469. J41_ Wilson V. Horstman, 2 Phila. 296. ' 1 Arch. Pr. 193. And see Streeper v. Williams, 48 Penn. * 1 Rol. Abr. 570, P. pi. 1- St. 450. Powell ». Burroughs, 54 Ibid. 5 Ruth u Kiitz, 1 Watts 489. Luke- 329. Wolf Creek Dianiond Coal Co. w. hart V Byerly, 53 Penn. St. 418. Stit- Sohultz, 71 Ibid. 180. 404 DAMAGES. it does not appear clear that the parties intended the sum stated in the agreement, as liquidated damages, it must then be deemed a mere penalty, in which case, the jury may find a less sum, as a measure of the damages the plaintiff has sustained ;' or they may go beyond the penalty.^ In all other cases, the jury are at liberty to give what damages they may think proper, proportioned to the degree of injury they may judge the plaintiff to have sustained from the tort or technical breach of contract com- plained of.^ And in an action for seduction, in ascertaining the dam- ages, they are not obliged to confine themselves to such a sum as would be a sufiicient compensation for the mere loss of service complained of, but they may also allow damages for the injury sustained by the daugh- ter, and inflicted on the feelings of her parent.* On the other hand, it is a general rule, that the jury cannot take into consideration, in mitiga- tion of damages, any fact or circumstance not pleaded, which could and should have been pleaded, as a defence to the action.^ It is also a gen- eral rule, that the jury can in no case exceed the damages laid in the declaration f but if a verdict be found for more, the plaintiff may release the overplus, and take judgment for the amount declared for. If judgment be entered for a greater amount, it is error ;^ and the court will not, on the removal of the record by writ of error, suffer a remittitur of the suj^lus damages to be entered ; but will, without reversing the judgment, send back the record to the court below, to be amended, if they think proper ; and if it be returned to the court above, amended by a release of the excess of damages, they will affirm the judgment.^ When damages or costs, or both, ought to be assessed, if the jury omit to assess either, the plaintiff may still make the verdict good, by releas- ing his right to either or both ;' and where the jury omit to give costs only, being bound to give them, the court will supply the deficiency.^" § 728. At common law, single damages only are recoverable ; but in certain cases, which will be noticed hereafter, under their appropriate heads, double, and even treble, damages have been given by statute. The proper course, in such case, is, for the jury to find the single dam- ages, and the court will then double or treble them ;" it seems, however that a verdict for double or treble damages will be good, if expressly so found by the jury.^^ When the plaintiff counts on the statute, with a demand for double damages, the presumption is, that the jury have doubled them ; and this presumption can only be negatived, by a special finding of the jury themselves. The court have the power to double ^ Robeson v. Whitesides, 16 S. & E,. * Updegroveu. Zimmerman, ISPenn. 320. Curry v. Larer, 7 Penu. St. 470. St. 619. Smith v. Smith, 39 Ibid. 441. Burr w. Todd, 41 Ibid. 206. Bigonyu. Porter w. Botkins, 59 Ibid. 484. Tyson, 75 Ibid. 157. " Gratz v. Phillips, 5 Binn. 564. '' Shreve v. Brereton, 51 Penn. St. ' Ibid. 175. Trenwith v. Meeser, 34 Leg. ^ Spackman v. Byers, 6 S. & R. 385. Int. 140. » Allen v. Flock, 2 P. & "W. 159 ^ Douglas V. "Wilbur, 6 Phila. 540. "> Zell v. Arnold, 3 P. & "W. 292 * Hornketh v. Barr, 8 S. & R. 39. " Hughes v. Stevens, 36 Penn. St. Phelin v. Kenderdine, 20 Penn. St. 320. 3.54. " Campbell o. Finney, 3 Watts 84. DAMAGES. 405 the damages only where they are not doubled by the jury ; but the jury must find the facts by which it is to be determined whether the defend- ant be liable to double damages.^ Treble damages are three times the amount of single damages.^ ' Campbell v. Knney, 3 "Watts 84. Watson «. Rynd, 76 Ibid. 59. See Welsh v. Anthony, 16 Penn. St. = Welsh v. Anthony, 16 Penn. St. 254. O'Reilly v. Shadle, 33 Ibid. 489. 254. CHAPTER XXIII. Trial by the Court or a Referee. I. Tkial by the court, 5 729. III. Trial before a referee, § 735. Constitutional provision, J 729. What cases may be referred, § 735, Proceedings and practice, | 730-1. Qualification of the referee, § 735. Effect of the finding, § 731. Proceedings on a reference, § 736. Effect thereof, | 737. II. Cases stated, § 732. Judgment on the report, ? 738. What is a case stated, § 732. Costs of a reference, g 738. What it must contain, I 733. Practice on a reference, § 739. Practice on a case stated, § 734. I. Trial by tb.e court. § 729. It is provided by the constitution,' that the parties, by agree- ment filed, may, in any civil case, dispense with trial by jury,^ and sub- mit the decision of such case to the court having jurisdiction thereof, and such court shall hear and determine the same; and the judg- ment thereon shall be subject to writ of error, as in other cases. To carry out this constitutional provision, it is enacted by the act of 1874,^ that in any civil case, in any of the courts of this commonwealth, after issue joined, the parties thereto, excepting those acting in a fiduciary capacity, may, by agreement filed in the proper ofiice where such suit is pending, dispense with trial by a jury, and submit to the decision of such cases to the court having jurisdiction thereof; and such court shall hear and determine the same, and the judgment shall be subject to writ of error or appeal, as in other cases at law or in equity, at the option of either party. § 730. The statute further provides that the decision of the court shall be in writing, stating separately and distinctly the facts found, the answers to any points submitted in writing by counsel, and the conclu- sions of law,'' and shall be filed in the ofiice of the prothonotary or clerk of the proper court where the case is pending, as early as practicable, not exceeding sixty days after such decision shall have been made from the termination of the trial ; and notice thereof shall be forthwith given, by the prothonotary or clerk, to the parties or their attorneys ; and if no exceptions thereto be filed in the proper office, within thirty days after 1 Art. V. i 27. lated by the act of 1874. Common- '' An agreement to submit, under wealth v. Mitchell, 80 Penn. St. 57. the statute, is a waiver of the right of * For the form of a finding by the trial by jury. Act 22 April 1874, § 4, judge, see Jamison v. GoUina, 33 Leg. P. L. 109 ; Purd. 1940. Int. 83. And, as to what is a substan- ' P. L. 109; Purd. 1939. This pro- tial compliance with the requirements vision of the constitution does not exe- of the act, Ellis v. Lane, 85 Penn. St. cute itself, the practice under it is regu- 265. (407) 408 TRIAL BY THE COURT. service of such notice, judgment shall be entered thereon by the pro- thonotary or clerk ; if exceptions to the finding of facts or conclusions of law be filed within said thirty days, the court, or the judge thereof who tried the case, in vacation, may, upon argument, order judgment to be entered according to the decision previously filed, or make such modi- fications thereof as in justice and right shall seem proper, subject always, nevertheless, to review by writ of error or appeal in the supreme court ; such writ of error or appeal to be taken in the time and manner, and with the effect, prescribed by law. And every such case taken to the supreme court upon writ of error shall be heard and determined therein as writs of error are therein heard and determined ; and every such case taken to the supreme court by appeal shall be heard and determined therein as cases of appeal in equity proceedings ; and in case a new trial is ordered, it shall be proceeded with before the same court, in the same manner as therein provided for. § 731. It has been held, under a similar statute, that the provision that the judge before whom the cause is tried, shall file his decision within a certain number of days, is merely directory.^ When a case is so tried, a bill of exceptions brings up nothing but what it would have done, had there been a jury trial ;^ the supreme court cannot go behind the findings of fact, except where, in a common-law trial before a jury, the assignments of error are such as could be heard and determined by it.'' A special finding of the facts by the court, is equivalent to a special verdict, and the supreme court will not go into an examination of the evidence on which it was founded ;* but a refusal to find a material fact, of which there is legal- proof, and where there is no proof to the con- trary, nor proof of facts or circumstances showing its improbability, is an error of law, and the subject of exception.^ A writ of error will not lie to the determination of the judge, to which exceptions are taken and sealed, without further proceedings ; such writ is premature, and will be quashed.* Where a jury-trial is waived, the court will hold the parties to a reasonably strict conformity to the regulations of the act, if they desire to avail themselves of the rights and privileges which appertain to trials by jury at common law.^ II. Gases stated. § 732. Another mode by which a case may be submitted to the deci- sion of the court, without the intervention of a jury, is by a case stated. ^ Stewart v. Slater, 6 Duer 83. Hup- the facts, and no exception to the rul- fel V. Sohoemig, 2 J. & Sp. 476. Peo- ings on the trial, the only question, on pie V. Dodge, 5 How. Pr. 47. Burger error, is the sufficiency of the facts to V. Baker, 4 Abb. Pr. 11. Lewis v. support the judgment. Jamison v. Jones, 13 Ibid. 427. Leonard, 21 Ibid. 302. = Norris v. Jackson, 9 Wall. 125. ^ Beck v. Sheldon, 48 N. T. 365. Coddington jj.Eichardson, lOIbid. 516. 'Commonwealth v. Mitchell, 80 Miller v. Life Insurance Co., 12 Ibid. Penn. St. 57. 285. ' Flanders v. Tweed, 9 Wall. 425. ^ Jamison ». Collins, 83 Penn. St. 359. Coddington v. Richardson, 10 Ibid. 516. * Copelin v. Insurance Co., 9 Wall. Miller v. Life Insurance Co., 12 Ibid. 461. If there be a special finding of 285. CASE STATED. 409 Where there is a suit actually pending in court, whether commenced by amicable agreement, or by the suing out of original process, the parties or their counsel may, without proceeding to trial, state a case, by con- sent, for the opinion and decision of the court. This may consist either of one written statement of all the facts of the case, or of several state- ments of the facts, each involving a different question of law,' drawn up for the opinion of the court in banc, and signed by the parties or their counsel. It must show that the dispute is a real, not a colorable one f and the jurisdiction over the parties.^ § 733. A case stated is a substitute for a special verdict, and the same general rules apply to both.* It is resorted to, for convenience, and to save the expense of a trial ; its purpose being, not to make evidence for a jury, but to supersede the action of a jury altogether, by imparting to facts ascertained by consent the judicial certainty requisite to enable the court to pass upon the law, and give judgment on the whole. There- fore, the facts must be agreed upon, and stated fully ; for, as in a special verdict, what is not stated, is taken not to exist f and the facts them- selves must be stated as facts, not merely as evidence f where the evi- dence of facts is stated, instead of the facts themselves, the court may refuse to hear the case, or may treat it as a demurrer to evidence.' So, if a judgment has been entered by the court on a case that is defective in substance (as, where there is no sum fixed for damages, in case of the plaintifi''s success), it will be reversed, and a procedendo awarded.' § 734. A case stated may be agreed on and submitted before an issue is attained ; and, indeed, before any of the pleadings have been filed ; though, in general, a declaration is previously filed.' An agreement to a case stated may be rescinded, either by tacit or express consent ; the abandonment of it is satisfactorily evinced, by the parties subsequently pleading to issue ; and when thus abandoned, it is not evidence, which may be given to the jury upon the trial of the cause.'" And if the state- ment be lost, the counsel must agree upon another, or the cause must go to a jury, as if none had ever been made ; it is not proper to receive evidence of its contents." The statement of a case being agreed on and signed, it is filed in the office of the prothonotary ; after which, it is placed, as an issue in law, upon the list, and comes on for argument as soon as reached ; when the questions of law, arising on the facts found, ' See Da Costa v. Guien, 6 S. & R. 1850. MS. 462. ' Ament v. Sarver, 2 Gr. 34. Parker " Berks County «. Jones, 21 Penn. St. v. Urie, 21 Penn. St. 305. See Melick 413. • V. Smith, 1 Leg. Opin. 157. 'Pittsburgh v. Allegheny,! Pitts. » Whitesides u. Russell, 8 "W. & S. 44. 97. Holmes v. Wallace, 49 Penn. St. 266. * See supra, ? 723. Wfaitesides ». Kinsley «. Coy le, 58 Ibid. 461. Thomp- Russell, 8 W. & S. 44. son v. Miller, 14 Leg. Int. 132. Lip- * Diehla. Ihi-ie, 3 Whart. 143. Berks pincottc. Ledyard, 8 Phila. 18. County V. Pile, 18 Penn. St. 493. Phil- ' Bixler v. Kunkle, 17 S. & R. 310. adelphia and Reading Railroad Co. v. '" McLughn v. Bovard, 4 Watts 308. Waterman, 54 Ibid. 337. Hart's Appeal, 8 Penn. St. 32. Kinsley «. Coyle, 58 Penn. St. 461. " Cook v. Shrauder, 25 Penn. St. Long V. Thomley, Dist. Court, Phila., 312. 410 TRIAL BEFORE A REFEREE. are discussed by the respective counsel and decided by the court ; and this decision is final, unless the agreement to the case expressly reserve the right to a writ of error.^ The rules of court, as to paper-books, number and order of counsel heard, &c., are the same, in cases stated, as in those relating to motions and rules generally. III. Trial before a referee. § 735. The act of 1874 provides,^ that, in all civil suits or cases, which the parties may, legally, by agreement iu writing, submit to the decision of the court, in any county or city of ttis. commonwealth, the parties may, in like manner, by written agreement, submit the case to the deci- sion of any person learned in the law, who is authorized to act as an attorney in the supreme court of the state. Such submission must be filed of record in the oifice of the prothonotary or clerk of the court in which the suit is pending ; and notice thereof, in writing, be duly served on the person thus selected as referee ; if he accept, he must do so within twenty days after such service, by filing in the office of the prothonotary or clerk his written acceptance, with his oath or affirmation, faithfully and impartially to perform his duties as referee, to the best of his ability ; otherwise, the appointment may be regarded as not accepted, and the submission as void ; and the referee must, also, within the said twenty days, by writing, filed in the office, appoint the time and place of hearing ; but the place must be at the court-house of the county or city where the case is pending, unless the parties and referee agree upon a difierent place. § 736. The act further provides, that such referee shall proceed, with- out undue delay, to perform the duties of his appointment ; and shall, in all things pertaining to the trial and decision of the case, have the powers, and perform the duties, that would belong to the court under a like submission. The decision, together with what pertains to it, must be filed of record in the case, and is, in like manner and to the same extent, subject to exception, and writ of error or appeal, as in cases submitted to the court ; but this is not to be construed to prevent the parties from waiving the right to a writ of error or appeal. And the supreme court may, after the decision or judgment of such referee has been, by due course of law, brought before them, remit the case for further hearing before the referee, or make such other or further order as may be proper to protect the rights of the parties. The referee, so far as relates to the case and the duties he is to perform as referee, is, after acceptance of his appointment, subject to the same control by the supreme court, as the court below would be in regard to a cause sub- mitted to them in like manner. § 737. An agreement to submit under this act, is a waiver of the right of trial by jury; but, if the referee die before rendering his ' Fuller V. Trevoir, 8 S. & R. 529. prior local statutes on the same sub- See Brack. L. M. 193-4. jeot. Adleman v. Steel, 34 Lee. Int. ■' Act 14 May 1874, P. L. 166 ; Purd. 134. 1940. This act does not repeal the TRIAL BEFORE A EEFEEEE. 411 aecision, or if it become impossible for him to act, or for the parties to obtain hLs decision in a reasonable time, through the fault of such referee, the court in which the suit is pending, upon proper application by a party in interest, may, after due notice to the other parties, set aside the agreement of submission ; and, in such case, the costs accrued are to be treated, in all respects, as part of the docket-costs. § 738. The judgment rendered upon the decision of such referee, is considered a judgment of the court; and thereafter the power of the referee in regard to it is at an end, unless, by order of the supreme court, the case is referred back to such referee. The referee is entitled to receive the sum of ten dollars per day for the time he is engaged in the perform- ance of his duties as such, to be taxed and paid as part of the costs of the cause ; and he is required to make out his bill, with affidavit attached, and submit the same to the court ; and thereupon the court will, after due examination, direct the taxation of so much costs as the referee is, by law, entitled to have. § 739. Under this act, a cause cannot be referred, until after issue joined.' The report of the referee must have all the requisites of a special verdict ; it must find all the material facts, and be self-sustain- ing;^ it must have the same fulness and certainty, so that the judgment on the report shall be the conclusion of law from the fact ;' the find- ings of fact and conclusions of law must be separately stated.* Excep- tions to the rulings of a referee, on questions of evidence, must be taken at the time they are made ; on review, his findings as to the facts are as conclusive as a verdict.' A request for a finding of fact or law, with an adverse finding by the referee, does not take the place of an exception, so as to enable the court to review the decision ,^ which will only be set aside for plain mistake or palpable abuse of power ■} the court will not disturb a finding upon the facts, if based on evidence before the referee, though it be conflicting.* The exceptions to the report are a substitute for bills of exception to the charge of the court, and to answers to points.' It seems, that the common pleas has no power over the decision of the referee ;'" and, on error, the supreme court has no power to review ' See gwpra, |? 729, 735. Weil v. and Coal Co. v. Pales, 5 Ibid. 14. Long Frauenthal, 2 Luz. L. Reg. 96. Singer i;. Davis, 5 Luz. L. Reg. 66. Pinoli ». Manufacturing Co. w. Koons, 6 Ibid. 83. Heermans, Ibid. 125. Stowers u. Caw- ''■ Vansyckel m, Stewart, 77 Penn. St. ley, 8 Ibid. 76. 124. And see Lackawanna Iron and * Adleman u. Steel, 34 Leg. Int. 1 34. Coal Co. ». Pales, 5 Leg. Gaz. 14. Ste- Jayne ». Central Railroad Co., 25 Pitta, vena ». MoAlpin, 4 Luz. L. Reg. 97. L. J. 23. Bubble v. Susquehanna Coal ' Butterfieldi). Lathrop,71Penn. St. Co., Ibid. 23; s. c. 6 Luz. L. Reg. 225. 198. * Weil I). Prauenthal, 2 Luz. L. Reg. ' Butterfield v. Lathrop, 71 Penn. 96. St. 225. Pall Creek Iron and Coal Co. 5 Butterfield ». Lathrop, ut supra, v. Smith, Ibid. 230. Pall Creek Coal and Iron Co. v. Smith, '» Ibid. It required a special statute, 71 Penn. St. 230. to confer this power over a reference, ' Warner v. Sax, 4 Luz. L. Reg. 7. under the act of 1870. See act 22 June ' Enterprise Insurance Co. v. Thorn- 1871, P. L. 1363. Thornton v. Enter- ton, 4 Leg. Gaz. 34. Lackawanna Iron prise Insurance Co., 71 Penn. St. 239. 412 TEIAL BEFORE A EEFEEEE. the evidence, and re-examine the decision of the court below as to the facts, where such power is conferred upon the latter court by act of assembly.^ In Philadelphia, notice of the filing of the report .is not requisite, under the rule of court.^ ' Thornton v. Enterprise Insurance ' Eyster v. MoOuUa, 3 W. N. C. 219, Co., 71 Penn. St. 234. Rule xxxiii. ^ 113. CHAPTER XXIV. New Trial and Arrest of Judgment. I. Motion for a new trial or to result, § 758. TAKE OFF A NONSDiT, § 741. Absence, ^ 759-61. General principles, § 741-3. "Want of notice, ^ 762. Motion for a new trial, § 744. Mistake, ? 76.3. Grounds for a new trial, § 745. Surprise, § 764-5. Misdirection, ^ 746. Excessive or inadequate damages, Matters respecting the evidence, § 766-7. § 747. Practice as to new trials, § 768. Verdict against law, § 748. Verdict against evidence, § 749. II. Akrest of judgment, § 769. Matters affecting the jury, g 750-2. Motion in arrest of judgment, § 769. Misconduct of a party, § 753. When judgment will be arrested. After-discovered evidence, § 754. ^ 770. Must have been discovered since Defects in pleading, | 770. the foiTuer trial, § 755. Defects in the verdict, § 770 And not attainable by reasonable No cause of action, § 770. diligence, § 756. Practice, | 771. Material and not cumulative, § 757. Costs, § 772. And ought to produce a different Limitation of new suit, ? 772. § 740. The party who has obtained a verdict is entitled to judgment, but before he can avail himself of it, a period of four days must, by the practice of the courts, elapse. And, during this period, certain proceed- ings must be taken by the unsuccessful party to avoid the effect of the verdict, the principal of which is, in our practice, a motion for a new trial, or in arrest of judgment. I. Motion for a new trial or to take off a nonsuit. § 741. " It may happen, that one of the parties may be dissatisfied with the opinion of the judge expressed on the trial, whether relating to the effect or the admissibility of evidence; or may think the evidence against him insufficient in law, where no adverse opinion has been expressed by the judge, and yet maynot have obtained a special verdict, or demurred to the evidence, or tendered a bill of exceptions. He is at liberty, therefore, after the trial, and during the period above men- tioned, to move the court in banc to grant a new trial, on the ground of the judge's having misdirected the jury, or having admitted or refused evidence, contrary to law ; or, where there was no adverse direc- tion of the judge, on the ground that the jury gave their verdict contrary to the evidence, or on evidence insufficient in law. And resort may be had to the same remedy, in other cases, where justice appears not to have been done at the first trial; as, where the verdict, though not (413) 414 NEW TEIAL. wholly contrary to evidence, or on insufficient evidence in point of law, is manifestly wrong in point of discretion, as contrary to the weight of the evidence, and on that ground disapproved by the judge at the trial. So, a new trial may be moved for, where a new and material fact has come to light since the trial, which the party did not know, and had not the means of proving before the jury ; or, where the damages given by the verdict are excessive, or, where the jury have misconducted them- selves, as by casting lots to determine their verdict, &c. In these and the like instances, the court will, on motion, and in the exercise of their discretion, under all the circumstances of the case, grant a new trial, that opportunity may be given for a more satisfactory decision of the issue. A new j ury process, consequently, issues, and the cause comes to be tried de novo. But, except on such grounds as these, tending mani- festly to show that the discretion of the jury has not been legally or properly exercised, a new trial can never be obtained; for it is a great principle of law, that the decision of a jury, upon an issue in fact, is, in general, irreversible and conclusive."' § 742. In considering the general question, there are two classes of cases to be considered, in which there is an inflection of the rules by which, as will presently be seen, the discretion of the court is governed. The first class comprises those cases where a .nonsuit is entered, and where the only injury to the plaintiff, from continuing it, will be the loss of costs, in which case, the court will adhere with the greater rigor to its rules, unless it should appear that intermediately the statute of limita- tions will bar the claim.^ The other class is thus described by Judge Sharswood ■? — " It is evident, that if a new trial were granted, in every case in which a party should think that he might have presented his case more advantageously, we might as well say, that we would grant a new trial, in every case in which either plaintiff or defendant is dissatisfied. There are cases, however, in which a party has been surprised by evi- dence which he had no reason to expect, in which a new trial will be granted. There is an evident distinction to be drawn, however, between the case of a plaintiff against whose claim the statute of limitations has not run, and a defendant ; the former has the game in his own hands ; if surprised by evidence from the defendant, which he is not prepared to meet and rebut, he can, and, therefore, ought to suffer a nonsuit. A defendant has no privilege of that character ; and his application to the court for a new trial, under such circumstances, stands upon a different footing. The party plaintiff, here, elected to take his chance with the jury upon the evidence as it stood, and hence is bound by that election." S 743. "Cases upon the subject of new trials," said the same learned judge, "are not, in the nature of things, of much authority, except as to the mere laying'down of the general principles. The general prin- ciple upon which this decision rests, has been recognised, and it by no means weakens it, to show that, in some cases, a new trial has been » Steph. Plead. 94-6. infra, 1 761. ^ See Vandegrift v. Malcomson, ° Martin v. Marvine, 1 Phila. 280. MOTION FOE NEW TRIAL. 415 awarded to a plaintiff, on the ground of.surprise. Wherever a plaintiff is so situated that he cannot bring a new action (as, when the defendant is beyond the jurisdiction 'of the court, or his claim is barred by the statute, or any other cause), he may show that, by suffering a nonsuit, he would have irreparably lost the case ; it may be, in a case in which the costs have been unusually heavy, when, especially, if they were incurred by the fault or delays of the opposite party, the rule ought not to be applied. In short, to make a case in regard to the rules of granting new trials of binding authority, we should have to know a variety of cir- cumstances in regard to it, which cannot always be gathered from the printed report." § 7^-1. Of the motion, A motion for a new trial must be made within four days after the verdict ;^ in computing the time, according to the practice of the courts of Philadelphia, the day on which the verdict is rendered, is to be excluded, and if Sunday intervene, being dies non juridicus, it is not included in the four days.^ The court will not allow the motion to be made nune pro tunc, after the expiration of the four days, where no excuse is shown ;^ though it may be allowed, where the court sees that injustice has been done.* To entitle the party to such relief, it must appear that he has been guilty of no laches.^ It is a gen- eral rule, that a motion for a new trial shall not be made, after a motion in arrest of judgment.^ And though a bill of exceptions have been taken on the trial, the court may, in its discretion, permit a motion for a new trial to be made and argued upon the same grounds ; but this is entirely discretionary, and, in general, will not be allowed, unless the court desire a further argument, or wish further time for deliberation f ' Rule XXV. I 90. Phila., 29 Dee. 1848. Why a rule for '' Golder V. Blaokstone, Dist. Court, a new trial should not be entered nunc Phila., 1820. MS. Maguire v. Burton, pro tunc. Per curiam. The rule, that 1 Miles 14. The practice was other- a new trial must be moved for within wise in the supreme court, vinder its four days, is an invaluable one ; but to original j urisdiction. Lane k. Shreiner, say that it may be dispensed with, in 1 Binn. 292. every case of forgetfulness or inatten- ' Wetherill v, Woodruif, Dist. Court, tion, would be, practically, to repeal it. Phila., 23 Dec. 1848. Why a motion No doubt, the court can order a new for a new trial shall not be entered trial, after four days, where they see nunc pro tunc. Per curiam. We mast that injustice has been done. Here, adhere to the old and well-established however, no reasons for a new trial rules of the court, unless the circum- have been shown, which we think re- stances of the particular case address quire the unusual interposition of the themselves to our legal discretion, court. Rule discharged. Though the depositions might show ^ Winslow v. Brenneman, 1 Pitts, some ground for the absence of both 416. A motion for a new trial cannot the counsel, when the cause was tried, be entertained, after judgment, and the yet, no reason whatever is assigned lapse of two terms. Syracuse Pit Hole for not having made the motion for a Oil Co. v. Carothers, 63 Peun. St. new trial, within the four days. The 379. fact of the trial having taken place, " Respublica u. Laoaze, 2 Dall. 118: was known to one of the counsel on the s. c. 1 Yeates 55. Philpot v. Page, 4 same dav, and to the other, on the day B. & C. 160. See Phillips v. Fowler, after. Rule discharged. Prac. Ca. C. P. 124. * Smith V. Pauner, District Court, ' Rule xxv. ^ 92. 416 NEW TEIAL. the motion for a new trial is not a waiver of the bill of exceptions.' The reasons filed must specifically set forth the grounds on which the application rests.^ § 745. CrTounds for a new trial. The court will not, in general, grant a new trial, unless satisfied that injustice has been done ;' as, on a technical exception to the form of action •* nor for a slight variance between the allegata and probata f but where substantial justice has not been reached, the court may grant a new trial, on a ground not taken before the jury f the party, however, must be otherwise without remedy.^ A new trial will not ordinarily be granted, where there has been a ver- dict for the defendant, in a penal action;^ nor to enable the plaintifi" to recover nominal damages, where no question of right or title is involved;' otherwise, where the action is brought to determine a mere question of right.'" If counsel state to the jury, the result of a former arbitration, a new trial will be granted ;" so, if he improperly state a fact, as of his own knowledge, not proved in the case ;'^ otherwise, if this irregularity be induced by the prior irregularity of the opposite party .'^ So, also, 1 Shaeffer v. Landis, 1 S. & R. 494. United States v. Dashiel, 4 Wall. 182. ^ Knorr «. Beck, 1 Phila. 145. Car- nivan ». Repplier, Ibid. 70. Swee- ney V. Hamblin, Dist. Court, Phila., 16 March 1850. Motion for a new trial. Per curiam. This case, not being answered to on the third calling of the list, was marked submitted. Of course, in such case, we have no guide but the report of the judge before whom the cause was tried, and the rea- sons. It is especially important, there- fore, under the present practice, that the reasons filed should be special, and explain the grounds meant to be pre- sented, In the case before us, the judge reports that it was an action of assumpsit, and involved a matter of ac- count between the plaintiff and defend- ant, which was submitted to the jury without any charge ; and he sees no reason to be dissatisfied with the result. The reasons filed are: (1) The verdict of the jury was contrary to the weight of the evidence : (2) The jury erred in their calculation of the accounts be- tween the plaintiff and defendant: (3) That the accounts in the books sub- mitted to the jury were miscalculated, and, therefore, the jury were misled. These reasons afford no clue to enable us to understand the defendant's ob- jections. We take this occasion, once again, to give a caution to gentlemen of the bar, as we have done before, on this subject. Itmay happen to the most careful and attentive practitioner, to be absent on the third calling, and have his case marked submitted. If his reasons are specially set forth, his chance of success, in such case, on having his rule, at least, granted, is considerably increased. Rule refused. ' Jordan v. Meredith, 3 Yeates 318. * Ralston v. Cummins, 2 Yeates 436. Nor because some of the defend- ants, who were infants, appeared by attorney, fiercer v. Watson, 9 L. Bar 53. 5 Shunk V. Propeller Co., 6 Phila. 231. ^ Moloney v. Mintzer, 6 Phila. 221. ' Peters v. Phoenix Insurance Co., 3 S. & R. 25. IMcDermott w. [Jnited States Insurance Co., Ibid. 604. 8 Wright V. Beatty, 7 PhUa. 162. But the court has power to do so. United States v. Halberstadt, Gilp. 262. » Allen V. Sawyer, 2 P. & W. 325. Todd V. Jones, 1 Phila. 45. Nolan v. Harris, 52 How. Pr. 409. " Shenk v. Mundorf, 2 Bro. 106. " Hyslop V. Crozier, 1 Miles 267. 1^ Fulmer v. Scott, Dist. Court, Phila., Dec. 1848. MS. But where the defend- ant tries his case in propria personA, his statements to the jury, in summing up, are not ground for a new trial. Brown v. Tees, 2 Phila. 161. " Hart V. Dickerson, Dist. Court, Phila., 8 July 1848. Rule for a new trial. Per curiam. We have had con- siderable difficulty in this case, arising GEOUNDS FOE A NEW TEIAL. 417 if counsel argue from excluded evidence, contrary to the admonition of the judge, it is ground for setting aside the verdict.^ After two verdicts in favor of the same party, on a question of fact, it must be an extraor- dinary case in which the court will grant a third trial ; but they will do so, where matter of law has been disregarded by the jury f or, if it be not sustained by the evidence;^ and even a third verdict may be set aside, if there be no evidence to sustain it> It must be a very strong case, to justify a court in setting aside a verdict in favor of innocence, and against fraud.' not so much from the verdict itself, as from the irregular introduction of a fact in the course of the trial, which was cal- culated to have undue weight with the jury, but which really had nothing to do with the merits. Where the plain- tiif is guilty of such an irregularity, as, for example, by stating a former ver- dict or award in his favor, the proper remedy of a defendant is, to ask that the jury may be discharged and the cause continued. It is evident, how- ever, that this cannot be applied to the case of a, defendant, who, by that means, may for ever postpone the trial. However, in such a case, it ought to appear, that the immaterial fact had been before the jury only in conse- quence of the irregularity committed by the party. Here, the irregular state- ment was made by the defendant, in his opening ; and as a mere statement, without any evidence to support it, we are bound to suppose, would have had but little, if any, weight. Still, if it stood upon that alone, we would feel disposed to listen to the objection. When Birkey, however, was on the stand as a witness for the defendant, he was asked, in cross-examination, whether he had not paid the note which he had given, being a part of the same transaction for which the note in suit was in question. This, undoubtedly, gave the defendant a right to ask why he had paid the note ; and his answer, that he had paid it, under the terror of a prosecution for perjury, to calm the natural ainxieties of an aged parent, thus brought the fact clearly before the jury. Uninfluenced, then, by any con- siderations arising out of this irregu- larity, we see no sufficient cause to disturb the verdict. It was put to the jury mainly upon a question of fact, whether Niohuals had possession of the articles sold as agent for the de- fendant ; both parties agreed in going VOL. I.— 27 to the jury upon that question ; and in regard to it, the evidence was contra- dictory. It appeared that, when the bill of sale was handed to defendant, he demanded possession, and the answer made by plaintiff's agent, according to his own testimony, was, that he had all the possession he could give him. The possession which Nichuals had, was under a prior contract with Badger, in which he did not act as defendant's agent, but as vendee himself. It may be doubted, whether, with such posses- sion continued in Nichuals, the bill of sale would have protected it from execution for his debts ; the bill of sale was not a mere conveyance of the right of the vendor to the chattels, but of the chattels themselves ; and in such a case, the vendee has a right to object, unless possession can be immediately delivered. He is not bound to accept a lawsuit, even though the right of the vendor be unquestionable. It was, then, the true question, whether Nichuals, to whom alone possession had been given, was the agent of defendant. This it was incumbent on the plaintiff to make out. We cannot say, consistently with the principles upon which the court have hitherto acted, that the weight of the evidence so preponderates, that the verdict should be set aside on that account. Rule dismissed. ' Emery v. Christman, 4 Phila. 118. " Keble v. Arthurs, 3 Binn. 26. Berks County v. Puiss, Ibid. 52U. Bell V. Reed, 4 Ibid. 127. Mitchell v. Mit- chell, Ibid. 180. Clemson v. Davidson, 5 Ibid. 392. Mui-ray v. Simpson, 2 Phila. 174. Church v. Pharo, 3 Ibid. 545. Baker v. Lewis, 1 Pitts. 382. ' Wamsher v. Shoemaker, 4 W. N. C.73. * Lodge «. Railroad Co., 10 Phila. 153. Parker v. Lewis, Hemp. 72. 5 Waldron v. Craycroft, 2 Phila. 33. And see Wright v. Heft, 5 Ibid. 447. 418 NEW TEIAL. § 746. Misdirection. Any misdirection by the court trying the ease, in matters material to the issue, is a good ground for a new trial ;' and if the jury be instructed that they may find for the defendant upon either of two distinct grounds, and as to one the charge is erroneous in point of law, a new trial must be granted.^ So, if the court submit to the jury that which is a question of law, it is ground for a new trial.' A misconstruction by the court, in their charge, of a written agreement, is ground for setting aside the verdict f- and so, in case of a misapprehen- ' sion as to the meaning of a witness, and a direction to the jury in accordance with it.' But, if a point of law be correctly given to the jury, it is immaterial that the judge gave a wrong reason for it.^ If, however, the general charge, though not erroneous, were calculated to mislead the jury, a new trial will be granted ;' as, if the language of the court, taken in connection with the circumstances of the case, may have misled them as to the law.' A new trial will not be granted, on account of a misdirection, which does not go to the merits,' where it is apparent that justice has been done by the verdict.^" Where the court has misdirected the jury, a new trial will be granted without terms.^' § 747. Matters respecting tJie evidence. The admission of impro- per evidence, whenever it may have injured a party, is ground for a new trial,'^ though there were no exception.'^ So, a new trial will be granted for the admission of clearly immaterial evidenee ;" but not for the admis- sion of irrelevant testimony, by which the party could not have been injured ;^' and that a witness stated as a fact, what afterwards turned ' Warden v. Hughes, 3 "Wend. 418. v. Berry. 68 Ibid. 272. Stall v. Meek, Archer v. Hubbell, 4 Ibid. 514. Peo- 70 Ibid. 181. pie V. Holmes, 5 Ibid. 191. Benedict ' Depeyster v. Columbian Insurance V Johnson, 2 Lans. 94. Lattimer v. Co., 2 Caines 85. Mansfield v. Wheeler, Hill, 8 Hun 171. 23 Wend. 79. Hunt v. Fish, 4 Barb. ^ Sayre v. Townsend, 15 Wend. 647. 324. '' McFaden ». Parker, 3 Yeates 496. •" Snyder v. Findley, Coxe 78. State Miller v. Church, 4 Phila. 4. Sprong v. Wells, Ibid. 424. Joslin v. New V. Boston and Albany Railroad Co., 60 Jersey Car-Spring Co., 7 Vroom 14], Barb. 30. Potter v. Hopkins, 25 Wend. 417. ' Stroh V. Hess, 1 W. & S. 147. Stimpson v. The Railroads, 1 WaU. 5 Edwards v. Edwards, 4 Phila. 11. Jr. C. C. 164. And see Bodine v. Railroad Co., 1 Ibid. " United States «. Beaty, Hemp. 487. 28. And see Anderson v. Railroad Co., 54 « Porter v. Seller, 23 Penn. St. 424. N. Y. 334. Rupp V. Orr, 31 Ibid. 517. " Anderson u. Railroad Qo.,ut supra. ' Water Commissioners v. Burr, 2 Underbill ii. Railroad Co., 21 Barb. Sw. 25. Washington Mutual Eire In- 489. Bennett v. McGuire, 58 Ibid, surance Co. v. Rosenberger, 3 W. N. C. 625. 16. And see Pistorius v. Common- '' Miller ». Church, 4 Phila. 4. wealth, 84 Penn. St. 158. " Similroth v. Lehr, 5 Phila. 87. ' Kissinger v. Thompson, 12 S & R. Clark v. Vorce, 19 Wend. 232. Boyle 44. Ilersheaur v. Hocker, 9 Watts v. Colman, 13 Barb. 42. Erie Rail- 445. Relf V. Rapp, 3 W. & S. 21. way Co. v. Decker, 78 Penn. St. 293. Wenger v. Barnhart, 55 Penn. St. '* Boyd i). Boyd, 1 Watts 365. And 300. Gregg Township v. Jamison, see Allen v. Blunt, 2 W. & M. 121. Ibid. 468. Pennsylvania Railroad Co. VERDICT AGAINST LAW OE EVIDENCE. 419 out to be mere hearsay, is not ground for setting aside the verdict.^ A new trial will not be granted, because of the erroneous rejection of evi- dence, which ought not, if received, to have produced a different result f if, however, the evidence in any way tended to prove the issue, however inconclusive, the rejection of it is error.' Where one jury are impan- nelled to try three causes, the admission of evidence not applicable to all of them, has been held ground for a new trial in them all.* § 748. Verdict against law. If the jury render a perverse verdict, that is, one against the charge of the court in point of law, it must be set aside,^ whether the judge were right or wrong f otherwise, great injus- tice might be done, the party against whom the verdict is given, being deprived of his writ of error, as the charge was in his favor in point of law. So, a new trial ought to be granted, where the jury disregard the instruction of the judge, not to consider a piece of evidence which has been improperly admitted.^ So, also, if it be apparent, that the jury, in rendering their verdict, must have fallen into some important mistake, or must have departed from some rule of law, or have made deductions from the evidence which are plainly not warranted by it.* But jurors cannot be examined, for the purpose of showing that they misunderstood the instructions of the court ; such fact must be estab- lished aliunde? § 749. Verdict against evidence. Unless the judge be dissatisfied with the verdict, it must be a very clear case, to warrant a new trial on questions of fact ;'" but, nevertheless, a verdict not warranted by the evidence, will be set aside." And a new trial will be granted where the verdict is against the weight of evidence.'^ A new trial, however, will not be granted, merely because the verdict was against the weight of evi- ' McGee v. Kinsey, 1 Phila. 326. ^ Cadyw. Phoenix Fire Insurance Co., '' Commonwealth, v. Irwin, 1 Clark 18 Int. R. Rec. 30. 344. ' Field v. Datesman, 4 Leg. Gaz. ' Allen V. Rostain, 11 S. & R. 362. 213. Ring v. Baker, 4 W. N. C. 185. Batdorff v. Farmers' Bank, 61 Penn. '"' Ludlow v. Union Insurance Co., 2 St. 179. S. & R. 119. Bartholomew v. Gudy- * Consequa v. WilUngs, Pet. C. C. kunst, 3 P. & W. 493. Baugh v. Mon- 225. aghan, 2 Phila. 90. Wharton v. Wil- * Ross V. Eason, 1 Yeates 14. Smith son, Ibid. 267. Busick v. Shaw, 7 Ibid. ». McCormick, 2 Ibid. 164. Emmet u. 91. Razer u. Kain, Ibid. 238. Robinson, Ibid. 514. Cresman v. Cas- " Zuber v. Geigar, 2 Yeates 522. ter, 2 Bro. 123. Kutz v. Binns, 13 Duane v. Miercken, 4 Ibid. 437. An- Leg. Int. 148. Denkla i;. Insurance dritz u. Wolf, 7 Phila. 106. Donath i'. Co., 6 Phila. 233. Watts v. Fox, 1 W. Ohle, Ibid. 240. Grubb v. Insurance N. C. ii. Co., 8 Ibid. 29. Levy v. Mercantile * Flemmingv. Marine Insurance Co., Mutual Insurance Co., 5 Clark 284. 4 Whart. 59. "A perverse verdict is " Stemmetz v. Currey, 1 Dall. 234 where a jury refuses to take the law Swearingen v. Birch, 4 Yeates 322 from the judge, but act, through honest Pringle v. Gaw, 6 S. & R. 298. Will intentions, upon their own erroneous ing v. Brown, Ibid. 457. Mcintosh v view of the law." Pollock, C. B., in Church, 3 Phila. 33. Emlen v. Robin- Saunders v. Davies, 14 Eng. L. & Eq. son, 4 Ibid. 92. Rothermel v. Michler, 532. Ibid. 117. Buggy u. Welling, 5 Ibid- ' Unangstu.Kraemer,8W. &S. 391. 365. Smith v. Lancaster, 7 Ibid. 120. See Wood v. Belden, 54 N. Y. 658. Machette v. Lessig, 9 Ibid. 132. 420 NEW TRIAL. dence, where there was conflicting testimony ; for this would be usurping- the functions of the jury ;' nor where the cause was submitted on the credibility of the testimony.^ Where evidence has been improperly admitted, and the 90urt instruct the jury to disregard it, if the other tew- timony be nearly equipoised, a new trial will be granted.^ § 750. Matters aff'ectinff the jury. In the absence of merits, the court will not set aside a verdict, because of the misdescription of one of the persons named in a list of special jurors f nor because a person stricken ofl!" the list of special jurors, was sworn as a talesman.' So, where a relation of one of the plaintiffs was sworn on the jury, and the plaintiffs' attorney, on being informed of it, offered to accept another juror, to which the defendant declined to assent, it is no ground for a new trial — the defendant having taken full defence on the merits.^ And if, after the jury are sworn, one of the parties learn that a juror has pre- judged the case, he must make it known at once; he cannot take his chance of a verdict, and rely upon it for a new trial.' But it is ground for a new trial, that the jury received new evidence, after leaving the bar f and that improper evidence, overruled on the trial, had been dis- closed to the viewers, on a previous view.' § 751. Any attempt improperly to influence the jury, is ground for a new trial ;'" as, to converse with a juryman respecting the case he is try- ing, before the verdict is delivered.^' It is ground for setting aside the ver- dict, that friends of the prevailing party held conversation with a juror, in relation to the case on trial, though it be not shown that such conversation actually influenced the verdict, or was at the instance of the party.'^ So, where a witness for the prevailing party conversed with one of the jurors, during the progress of the trial, relative to matters connected with the case, and the same juror made statements to his fellow-jurymen, after they had retired for deliberation, as to facts which were not in evidence.'* ' Leaoh v. Armitage, 1 Yeates 104. similar name innocently answered to Campbell v. Sproat, Ibid. 327. Mcln- that of a juror who had been drawn, tyre ». Cunningham, Ibid. 363. Star- and served on the panel, is not neces- rett V. Douglass, 2 Ibid. 46. Cain sarily ground for setting aside the ver- V. Henderson, 2 Binn. 108. Hanseli v. diet j it is matter of discretion. Beyer Lutz, 1 Phila. 340. Heft v. Griswold, v. Philadelphia and Reading Railroad 5 Ibid. 365. Gabrylewitz v. Philadel- Co., 35 Leg. Int. 163. See Field v. phia, 9 Ibid. 271. Washington Bank- Johnson, 5 W. N. C. 404. ins Co. V. King, 2 Green 45. ^ Spong v. Lesher, 1 Yeates 326. ^ Turnbull v. O'Hara, 4 Yeates 446. And see Cole v. Van Keuren, 51 How. Bonham w. Belong, 2 Luz.L. Reg. 45. Pr. 451. » Rahlfing v. Heidriek, 4 Phila. 3. ' McCorkle v. Binns, 5 Binn. 340. * Sparks v. Plankinhorne, 4 Yeates ° Brunson v. Graham, 2 Yeates 166. 384. The statute requiring the juror's ' Stewart v. Richardson, 3 Yeates addition to be returned, is merely di- 200. rectory. Clark w. Commonwealth, 29 ^^ Chahoon v. Hackley, 2 Luz. L. Obs. Penn. St. 129. It is enough, that the 83. Johnson v. Root, 2 Clifif. 108. juror be sufficiently identified by name '^ Lacoe v. Sherwood, 6 Luz. L. Reg. and residence, though his occupation 147. be not accurately stated. Quigley v. '^ Loomis v. Rockwell, 2 Leg. Gaz. Commonwealth, 84 Ibid. 18. 165. * Jordan v. Meredith, 3 Yeates 318 ; " Simpson v, Kent, 9 Phila. 30. And 8. c. 1 Binn. 127. That a person of a see Ritchie v. Holbrooke, 7 S. & R. 45S. MISCONDUCT. 421 Aad where a juror, after twelve had been called into the l)0"s, talked with one of the plaintiif's witnesses, a new trial was granted — the juror having been subsequently called in place of another, who was chal- lenged.' But, it has been held, that the misconduct of a juror, in con- versing with a witness, is not per se ground for a new trial, where no improper influence is shown, and the party did not participate in such misconduct.^ It is ground for a new trial, that the jurors have eaten or drunk at the expense of the party for whom the verdict is given f but, it is said, that, in such case, there must be clear evidence of undue man- agement, or criminal intention."* The court will not set aside a verdict, merely because two of the jurors separated from their fellows — there appearing to have been no probability of abuse f otherwise, if there be the least suspicion of it.* § 752. That the verdict appears to have been the result of a compro- mise, is no ground for a new trial.^ So, in an action of toi:t, a verdict will not be set aside, on the ground that the jurors each set down a par- ticular sum, divided it by twelve, and returned the quotient as their ver- dict, in the absence of any fraudulent abuse of the mode adopted.* The rule appears to be otherwise, in an action ex contractu-^ unless this be done merely for the purpose of approximation, without any agreement to abide by the result.'" The testimony of the jurors themselves, how- ever, is not admissible, to impeach their verdict, on the ground of their own misconduct," or that of their fellows;'^ but their affidavits are admissible, in their own exculpation, to sustain the verdict ;" or to prove the misconduct of one of the parties to the suit.'* § 753. Misconduct of a party. Any misconduct by the prevailing party, intended to affect the jury, and tending to do so, will be cause for ' Mench V. Bolbach, 4 Phila. 68. ance Co., 1 Alb. L. J. 300, where it is ^ Shomo V. Zeigler, 10 Phila. 611. said, the verdict must have the unani- Koeher v. Miller, 3 Luz. L. Reg. 44. mous conourrence of the twelve jurors, And see Willing v. Swasey, ] Bro. and not be the result of a compromise. 123. s. p. Biggs V. Barry, 2 Curt. 259. * Redmond u. Royal Insurance Co., ^ Cowperthwaite u. Jones, 2 Dall. 55. 7 Phila. 167. Keegan v. McCandless, But see Smith v. Cheetham, 3 Caines Ibid. 248. Elkins v. Gaff, 2 W. N. C. 57. Harvey v. Rickett, 15 Johns. 586. Drake v. Newton, 3 Zab. 111. 87. Mitchell v. Ehle, 10 Wend. 595. * McCausland v. McCausland, 1 Kennedy v. Kennedy, 3 Harrison Yeates 372. See Harrison v. Rowan, 450. 4 W. C. C. 32. Gale v. New York Cen- ' Zuber v. Geigar, 2 Yeates 522. tral Railroad Co., 53 How. Pr. 385. '" Conklin v. Hill, 2 How. Pr. 6. ^ Smith V. Thompson, 1 Cow. 221. " Cluggase v. Swan, 4 Binn. 150. Horton v. Horton, 2 Ibid. 589. Willing v. Swasey, 1 Bro. 123. Reeden ' People V. Douglass, 4 Cow. 26. Oli- v. Corson, Lewis's Cr. L. 407. ver V. Presbyterian Church, 5 Ibid. '^ White u. White, 5 Rawle 61. Brew- 283. And see Commonwealth v. Hel- ster v. Thompson, Coxe 32. Norton v. Jer, 5 Phila. 123. Commonwealth v. Breitenbach, 1 Pears. 467. Britton, 1 Leg. Gaz. R. 513. Burrill '* Kennedy v. Kennedy, 3 Harrison V. Phillips, 1 Gall. 360. Lester v. Stan- 450. Hutchinson ads. Consumers' ley, 3 Day 287. Howard v. Cobb, Ibid. Coal Co., 7 Vroom 24. 310. '* Ritchie v. Holbrooke, 7 S. & R. 458. ' Coyle v. Gorman, 1 Phila. 326. Hutchinson v. Sandt, 4 Rawle 240. But see Wolf v. Goodline Fire Insur- Thomas v. Chapman, 45 Barb. 98. 422 NEW TEIAL. a new trial ;' as, if he deliver a paper to the jury (not a mere calcula]> tion), without leave of the court.'' So, if an important deposition be sent out with the jury, even by accident.' Any improper interference with the jurors, is sufficient ground for setting aside a verdict; it is not necessary, that an attempt to influence the jurors should be made by one of the parties, or even by his agent :^ thus, if persons claiming under the same title with a party, in his presence, and without objection by him, endeavor to prejudice a juror in favor of the title, it is ground for setting aside a verdict in favor of such party .° A verdict will not be permitted to stand, which has been in any degree affected by artifice and deception.* § 754. After-discovered evidence. A new trial will be granted, on the ground of the discovery of new and material evidence, since the trial.' A motion for a new trial, on this ground, must be based on affi- davit,^ containing the names of the witnesses, and what they are expected to prove f and the rule must be sustained by deposition,'" with oppor- tunity for cross-examination;" and the opposite party may show, by counter-depositions, that the proposed witnesses are wholly unworthy of credit.'^ According to our practice, the affidavit, if full and sufficient, is ground for a rule to show cause why a new trial should not be granted ; but, on the hearing of the rule, ex parte affidavits are not admissible ; it must be sustained by depositions, taken on notice. § 755. 27te evidence must have been discovered since tlie former trial. It is incumbent on the party who moves for a new trial, on the ground of newly-discovered evidence, to satisfy the court that it came to his knowledge since the trial.'* It must have been discovered since the trial ; it is not enough, that it has been since received.'* The want of recollection of a fact, which, by due attention, the party might have remembered, is not ground for a new trial ;" nor, if such evidence might, with ordinary diligence, have been discovered previously to the trial.'* If the evidence were known to the plaintifi", at the time of trial, a new trial will not be granted, though he allege surprise as to the testimony ' Blaine v. Chambers, 1 S. & R. 169. " Kenderdine v. Phelin, 1 Phila. 343. Phillipsburgh Bank v. Fulmer, 2 Vroom '^ Pomeroy v. Columbian Insurance 52. Co., 2 Caines 260. Williams v. Bald- ^ Sheaff ti. Gray, 2 Yeates 273. Jes- win, 18 Johns. 489. Parkeru. Hardy, BUT) V. Eldridge, Coxe 401. 24 Pick. 246. ' Carson v. Watson, 4 Phila. 88. " Moore v. Philadelphia Bank, 5 S. Lonsdale v. Brown, 4 W. C. C. 149. & R. 41. Commonwealth •«. Murray, 2 * Johnson v. Root, 2 Cliff. 108. Ash. 41. Commonwealth v. Williams, ■' * Chews V. Driver, Coxe 166. Ibid. 69. Norton v. Breitenbach, 1 « Hastings v. McKinley, 2 E. D. Sm. Pears. 467. 45. " Vandervoort v. Smith, 2 Caines ' Marshall v. Union Insurance Co., 1 55. Palmer v. Mulligan, 3 Ibid. 308. 2W.C. C. 411. Dundee Manufacturing '' Fleming «.Hollenback, 7 Barb. 271. Co. ads. Van Riper, 4 Vroom 152. Hatfield v. Macy, 52 How. Pr. 193. " Knorr u. Beck, 1 Phila. 145. " Sheppard v. Sheppard, 5 Halst. » Kenderdine v. Phelin, 1 Phila. 343. 250. Deacon v. Allen, 1 South. 338. '" Paul V. Casselberry, 3 W. N. C. 343. Servis ads. Cooper, 4 Vroom 273. Greenwood n, Iddings, 1 Phila. 68. AFTEE-DISCOVERED EVIDENCE. 423 of the defendant's witnesses ;^ nor, in any case, where the non-production, on the trial, was the .party's own fault or negligence.^ Evidence disco- vered by, and within the reach of, a party, after the close of the evidence, and before the submission of the case to the jury, is not ground for a new trial, unless he first move for leave to introduce the evidence, and such leave is denied.^ § 756. It must he such as could not have been secured at the former trial by reasonable diligence. The party moving for a new trial, on the ground of after-discovered testimony, must show that it was not owing to the want of due diligence that it did not sooner come to his knowledge;* he must not have been guilty of any laches? If, by the exercise of reasonable diligence, the evidence could have been pre- viously obtained, a new trial will not be granted.^ It is no ground for a new trial, that important evidence was unknown to the counsel who tried the case, if it were known to the party, though the latter was ig- norant of its value ;^ nor is the absence of a witness who had not been subpoenaed.' § 757. It must be material and not merely cumulative. The next requisite is, that such evidence must be material;' it must clearly relate to the subject of controversy;^" and must tend to show that injus- tice has been done by the verdict.^' After-discovered evidence, which is merely cumulative, is not ground for a new trial ;'^ nor evidence which is • AVithers «. Ralston, 3 Phila. 412. 2 Turnbull v. O'Hara, 4 Yeates 446. Wain V. Wilkins, Ibid. 461. Knox v. Work, 2 Binn, 582. Fey t. Ryan, 3 Phila. 406. Dodson v. Branson, 7 Ibid. 193. Edwards v. Nichols, Diet. Court, Phila., 14 June 1851. Motion for new trial. Per curiam. We are asked to grant a new trial in this case, mainly on the ground of after-discovered evi- dence. But it could not, and has not been pretended, that the alleged evi- dence could not have been produced at the trial, for though the defendant might not have known what the wit- ness, Glenn, would testify, or, indeed, that he would be called to give evidence at all, he undoubtedly did know that the note sued upon had passed through his hands, and that he alleged that he bought it and sold it to plaintiff. He knew, then, or ought to have known, that his bona fides, as the holder, might just as well arise in the case, as the bona ■fides of the plaintiff. The rule being perfectly well settled, that an indorsee, who has taken a note with full notice of the equities between the original parties, can shield himself under the bona fides of any previous holder. Rule refuse.d. ' Dodge V. New York and Washing- ton Steamship Co., 1 Sw. 453. * Moore v. Philadelphia Bank, 5 S. &R. 41. 5 Peck V. Hiler, 30 Barb. 655. Shel- don V. Stryker, 42 Ibid. 284. And see Fiss V. Smith, 1 Bro. app. Ixxi. « Washburn v. Gould, 3 Story 122. Macy V. DeWolf, 3 W. & M. 194. Whetmore v. Murdoch, Ibid. 380. Pal- mer V. Fiske, 2 Curt. 14. ' Armstrong u. United States, 6 N. & H. 226. F'ikes v. Bentley, Hemp. 61. And see Weston v. New York Elevated Railroad Co., 10 J. & Sp. 156. 8 Kelly V. Holdship, 1 Bro. 36. » Macy V. DeWolf, 3 W. & M. 213. Marshall v. Union Insurance Co., 2 W. C. C. 411. Tuttle V. Cooper, 5 Pick. 414. Carr v. Gale, 1 Curt. 384. Sproul V. Resolute Fire Insurance Co., 1 Lans. 71. i» Rodel V. Bell, 6 Phila. 207. " Jessup V. Cook, 1 Halst. 434. ^'' Commonwealth v. Flanagan, 7 W. & S. 415. Commonwealth v. Murray, 2 Ash. 41. Commonwealth v. Thomp- son, 4 Phila. 215. -Potts v. Coal Co., 6 Ibid. 249. If it be of a different character, it is not deemed cumulative. Guyott V. Butts, 4 Wend. 579. 424 NEW TEIAL. merely explanatory of what was given at the trial ;^ nor is evidence which merely goes to discredit witnesses previously examined.^ But a new trial may be granted, on the subsequent discovery of evidence which tends to prove that a material part of the plaintiff's testimony was false.' § 758. It must he siich as ought to produce a different result. To justify the granting of a new trial, on the ground of after-discovered evidence, it must afford sufficient ground for the belief, that the verdict rendered was erroneous ;* it must be so material that it would probably produce a different verdict.^ It should be manifest that injustice has been done to the party, or that the new evidence would materially vary the complexion of the cause.* In considering the motion, the court will not inquire whether, taking the newly-discovered testimony in connec- tion with that exhibited on the trial, a jury might be induced to give a different verdict, but whether the legitimate effect of such evidence would require a different verdict.^ The question, therefore, is (supposing all the testimony, new and old, before another jury), not whether they might, but whether they ought to give another verdict.^ § 759. A.bsenc6. The sudden illness of counsel, as well as the sudden illness of a witness, would be a good reason for a new trial.' Where the defendant was out of the commonwealth, his witnesses absent, and his attorney prevented, by sudden indisposition, from being present, it was held that a new trial should be granted •^'^ but a new trial was refused, where a verdict had passed for the plaintiff, on the evidence of one wit- ness ; and the defendant being absent from home, at the time of the trial, was unprepared to meet it.^^ It is a general rule, that neither the mis- take nor the absence of counsel, if voluntary or accidental, is a ground for a new trial.'^ Where, however, the defendant's attorney had con- versed with the partner of the plaintiff's attorney, whom he supposed to be also attorney for the plaintiff, and was misled by him as to the time when the case would be called on, a new trial was ordered, on payment of all the costs by the defendant.'* § 760. It is no ground, however, for a new trial, that the defendant did not know on what day of the term his case would be tried ; nor that the defendant's attorney was absent, when the case went to the jury, and the plaintiff's counsel agreed, before the recording of the verdict, to open the case." No mere engagement of a business character will be received ' Thomas w. French, 6 Phila. 539. White u. Arleth, 1 Bond 319. See Simmons v. Pay, 1 E. D. Sm. ' United States v. Cornell, 2 Mason 107. 110. '' Ream v. Oldweiler, 2 Leg. Gaz. ' Ludlow w. Parke, 4 Ham. (Ohio) 5. 147. Etting V. Imlay, 3 Leg. & Ins. ' Commonwealth «. Flanagan, 7 W. Rep. 10. & S. 424. ' Struthers v. Wagner, 6 Phila. 262. ' Fiss v. Smith, 1 Bro. app. Ixxi. Wurts V. Walton, Ibid. .^78. " Honore v. Murray, 3 Dana 31. * Moore f. Philadelphia Bank, 5 S. '' Leedomw. Pancake, 4 Teates 183. & R. 41. Wolfinger v. Fenton, 2 Phila. '' Fiss v. Smith, ut supra, Gorgerat 19. Commonwealth v. Thompson, 4 ». McCarty, 1 Yeates 253. Ibid. 215. Commonwealth v. Thomas, '' Saver v. Finck, 2 Caines 336. . 1 Pitts. 279. " Allen v. Donelly, 1 McCord 1 13. ' United States v. Smith, 1 Saw. 277. Greatwood v. Sims, 2 Chit. 269. ABSENCE. 425 as an excuse for the non-appearance of counsel. Thus, where the counsel for the defendant made oath, that in his capacity as counsel for the Humane Society of New York, he was obliged to visit the jail, on the very day that the trial took place, and offered to pay all costs, a new trial was refused.' Absence of counsel, to be a good ground, must be- on an engagement in another court ; a new trial was consequently refused, where counsel was telegraphed for to Harrisburg from Philadelphia, "on professional business," and had communicated the fact (though not the cause) to the judge.^ § 761. Motions were refused, where the attorney of one party was, by an accidental interchange of cases, misled as to the position of his cause, and was thus absent f where the plaintiff took a verdict in the absence of the defendant and his attorney, who were out of court, endeavoring to obtain the christian name of a material witness in the case, when it was called f where the defendant's counsel was absent at the time of the trial of a case, relying on the promise of his adversary to notify him f where the defendant, his attorney and witnesses were absent at the time of the verdict, in consequence of an erroneous impression that the case was continued f and where the verdict was taken when the ^ Post t>. Wright, 1 Gaines 111. 2 Olden V. Liteenburg, 1 Phila. 204. ' Vandegrift v. Maloomson, District Court, Phila. Motion to take off non- suit. Pa- curiam. With every dispo- sition to assist counsel, where a mistake has occurred, by which a nonsuit has been entered, we cannot do so, in this case. It might present a diiferentcase, were it shown to us, that the claim is now barred by the statute of limita- tions : that, however, is not the case, and the only matter is merely one of costs. We think it best, to adhere strictly to rule. The counsel left the court, while the first case was on trial ; he left no one in charge of the case ; no memorandum of where he was go- ing; it was said, he went to his office; when he returned, No. 10 was on trial; when concluded, he was told that No. 11 had been nonsuited. AH this was true ; No. 10 had been reached and passed, on account of the engagement of counsel, or some other cause ; No. 11 was called, no one answered for plaintiff; plaintiff's counsel was sent for in the other courts, without success ; and a nonsuit was entered ; and then, the counsel in No. 10 having come in, or other reason for its having been Sassed removed, the judge returned to o. 10. It is a lesson which, perhaps, it may require some time and experi- ence thoroughly to teach, that counsel cannot safely leave the court, for any space of time, or for any purpose, with- out fjaking the precaution to leave their oases in care of somebody. Motion dismissed. * Field V. Sergeant, 1 Phila. 72. * Taras y. Graeff, 1 Phila. 70. ^ Duffy V. McGettigan, Dist. Court, Phila., 15 June 1850. Motion for a rule for a new trial. Per curiam. The rea- son assigned for a new trial is, that the case was called up and tried by plain- tiff's attorney, in the absence of the defendant's attorney, defendant and his witnesses, after the plaintiff's attor- ney had requested defendant's attorney to have the cause continued, on account of the inability of plaintiff's attorney to try, and the case had been accord- ingly so continued. The fact appears, by the record, to be, that when the case was called, it was left open, on account of the engagement of plaintiff's attor- ney, and never was continued ; such is the well-established practice of the court, nor would a case be continued, on account of the engagement of coun- sel, without the payment of the con- tinuance fee, unless it appeared highly probable, that the engagement would continue for the whole period assigned for the trial of the case. It is clear, therefore, that defendant's attorney acted under a mistake, in dismissing his client and witnesses. It would be dan- 426 NEW TRIAL. defendant and his wituesses went, by mistake, into the wrong court-room, while his counsel was absent in another court, under the promise of plaintiff's counsel to send for him, when the case was called.' Nor is it a good reason, that the verdict was taken during the temporary absence of counsel, who was waiting for a cause in another court.^ § 762. Want of notice. Where the party or his counsel have had no notice of the trial, or such notice has been imperfect, or had a tendency to mislead, or been insufficient for their information, a new trial should be granted ;' but where the party has gone astray, from his own negli- gence, or appeared and taken defence, without notice, the practice is otherwise.^ Where, in a feigned issue on a sheriff's levy, the case was put down on the trial-list under the name of the original execution and not of the issue, with the word ex. and the name of counsel subjoined, and the verdict was entered, on the trial, for defendant, the plaintiff not appearing, it was held no ground for a new trial f and so, where the defendant's name was misspelled on the trial-list f and where, the defend- gerous, to give effect to sueh a ground for a new trial ; in oases of this char- acter, the counsel must necessarily be thrown upon the courtesy of his oppo- nent. Rule refused. Rambo «. Chambers, 20 March 1852. Motion to take off nonsuit. Per curiam. This is a case in which, however disposed to relieve parties who have lost a trial, we do not feel at liberty to interfere, when the defendant objects. No deposi- tions have been taken, and we have been compelled to rely on the statements of counsel at the bar. A gentleman who leaves the court-room on an errand of business, ought to take the precaution to mention where he is going. Here, indeed, the plaintiff's attorney took that precaution, but the nonsuit oc- curred from the ignorance or mistake of his client. The defendant and his counsel were in no default, and their statement does not, in all respects, ac- cord with that of the plaintiff. Motion dismissed. ' Woodward v. Hindley, Dist. Court, Phila., 15 June 1850. Motion for a rule for a new trial. Per curiam. The allegation is, that the defendant went, by mistake, to the wrong court-room, with his witnesses, and that his coun- sel, being engaged in the criminal court, depended upon the promise of plaintiff's counsel to send for him, in the event of the case being called. Neither reason is of any avail, and both together make the case no stronger. If we aim at regularity, certainty and dispatch in the trial of causes, we must have rigid rules, and rigidly adhere to them. Rule refused. ^ Dickson v. Elson, District Court, Phila., 23 Dec. 1848. Motion for a rule for a new trial. Per curiam. We should be glad to help the plaintiff in this case, but it would be too dangerous a precedent to establish, that a coun- sel waiting for a cause in another court, should be deemed a sufficient apology for not answering to the cause here. The proper mode of avoiding all diffi- culty is, to let his client, or some one else, answer to the case, and then send for him. Motion dismissed. " Bingley v. Morrison, 3 Doug. 402. Lisher v. Parmelee, 1 Wend. 22. See Lincoln v. Parmentier, 1 Phila. 25. Jackson v. Vanhorn, 1 Dall. 241. The trial-list is sufficient notice to the parties. Whitaker y. Terry, 4 W. N. C. 526. * Wolfe V. Horton, 3 Caines 86. Bander v. Covill, 4 Cow. 60. ' Lincoln v. Parmentier, ut supra. See supra, I 659, as to the mode of put- ting such issues on the list. ' Ivins V. Huber, Dist. Court, Phila,, 15 March 1851. Motion for new trial. Per curiam. The defendant's name was misspelled on the trial-list; the plaintiff's name and both the counsel were printed correctly. Were we to listen to such reasons, as grounds for a new trial, there is no case in which a new trial might not be had — when the party had neglected to attend to his case. Rule refused. MISTAKE AND SUEPEISE. 427 ant having made an assignment, his assignees received the notice of trial, but did not forward it to him.^ But where the cause was put on the trial-list without an order, and without the plaintiff's knowledge, the court took off a nonsuit.^ § 763. jyiistaJce, Where the cause has been prejudiced, from some misconception of the judge, or mistake of the party or his counsel, which could not have been avoided, by ordinary prudence and care, a new trial will be allowed. Thus, where the counsel were misled by a positive inti- mation from the court, and refrained from offering evidence f and where the judge misapprehended a material fact, and misdirected the jury ; a new trial has been granted.^ A verdict, in a penal action, however, will not be set aside, when given for the defendant, unless it has been pro- cured by mistake of the judge.^ A new trial will be granted, where it appears that there was such a mistake in the bill of particulars as to mislead the defendant;' and a new trial was granted, for a mistake by the jury, in the value of foreign money .^ The court will not, however, grant a new trial on the ground of a claim, which the party might have brought forward at the trial, but did not.^ Although relief will be granted when an innocent mistake of counsel is made, this will not be the case, when it appears that the same result would have taken place, from a want of evidence on the merits.' § 764. Surprise. Where a party or his counsel has been taken by surprise, by some accidental circumstance, which could not have been foreseen, and in which no laches could be ascribed to either of them, a new trial will be awarded ; particularly, if the court think the verdict against the weight of evidence. Thus, where the plaintiff's witness has made a different statement to him, before the trial, a new trial will be granted, on the ground of surprise;'" so, where there is strong reason to believe that two witnesses, who had sworn to a payment, had been tam- pered with.'' Where a party is surprised, by an unexpected attack upon the character of one of his most important witnesses, made near the close of the trial, and in the absence of the witness, a new trial will be granted ;'^ and so also, where the pleadings are general, and the plain- tiff, in conclusion to the jury, relies upon an entirely different case, arising out of the whole testimony, a new trial will be awarded to the 1 Mussi V. Lorain, 2 Bro. 99. to prove a breach of the convoy act, ^ Myers v. Riot, supra, § 634 n. a new trial was granted, to let him into ' Dunham u. Baxter, 4 Mass. 97. But this defence, after a verdict for the plain- see Beekman v. Bemus, 7 Cow. 30. tiff on the merits. D' Aguilar v. Tobin, * Johnson v. Harth, 1 Bailey 482. 2 Marsh. 265. ' Clay V. Sweet, 4 Bibb 255. » Gault «. Mitchell, District Court, " Pfeffer v. Martin, District Court, Phila., sitpra, | 634 n. A new trial has Phila., July 1848. MS. been granted, on the affidavit of a mate- ' Betts V. Death, Add. 267. rial witness, that he had made a mis- ' McDermott v. United States Insur- take in giving his testimony. Rich- ance Co., 3 S. & R. 604 ; and see Wright ardson v. Fisher, 1 Bing. 145. V. Milbank, 9 Bos. 672. In an action '" Betts v. Hayward, 7 Phila. 158. on a policy of insurance, where the de- " Peterson v. Barry, 4 Binn. 481. fendant, by mistake of his witness, ^'^ Bishop v. Lehman, 9 Phila. 112. failed to produce a necessary document, 428 NEW TRIAL. defendant, on the ground of surprise.^ But the granting of a new trial, on the ground of surprise, is a matter of sound discretion f it will not be allowed, where the party has taken his chance of a verdict, without asking for a continuance f nor where the defence consists of a set-off, which may be recovered in another action.^ That a witness stated as a fact, what afterwards turned out to be mere hearsay, is not ground for a new trial f but where the plaintiff, on the trial, was led to believe that to the plea of non eat factum, an affidavit denying execution had been added, and being surprised, was unable to give proof of execution, and it turned out that no denial had been made of execution, the court granted a new trial.^ Where, however, the plaintiff, having produced, on the trial, an agreement by the defendant to settle and pay costs, of which the defendant's counsel denied all knowledge, and required proof, which the plaintiff was unable to give, and was consequently nonsuited, the court refused to take off the nonsuit/ § 765. A verdict will not be set aside, merely because the party went to trial unprepared f as, where an unsubpoenaed witness was not present at the trial.' The mere absence of the defendant, or his counsel, is not ground for a new trial;'" but a new trial was granted, where the plaintiff's counsel had been under the erroneous impression that the case was undefended, which he communicated to the court, who would other- wise have sent or waited for the defendant's attorney;^' a new trial, however, will never be granted, on the ground of the absence of counsel, ' Bittins; v. Mowry, 1 Miles 216. ^ Martin v. Marvine, 1 Phila. 280. ' Beaumont v. Gray, 3 Luz. L. Reg. 129. Can- v. Gale, 1 Curt. 384. * Rhoads v. Jermon, 25 Leg. Int. 28. s McGee v. Kinsey, 1 Phila. 326. ' Commonwealth v. Farrell, District Court, Phila., April 1847. MS. ' Milke V. Kurlbaum, Dist. Court, Phila., 18 March 1848. Motion to take off' nonsuit. Per curiam. We would be glad to help the plaintiff' in this case, but we cannot do so. On the trial, he produced an agreement by the defendant to settle and pay the costs ; he had no proof of the agreement; defendant's counsel denied all know- ledge of his client's signature ; the plaintiff had no evidence to prove his case, and, of course, was nonsuited. He ought to have been ready, at all events, to have proved the settlement; it is absolutely necessary to enforce upon parties and their counsel, active vigi- lance in preparation for and attention to their cases on the list ; the rights of other suitors as well as their own are involved. Motion refused. ' Leedom v. Pancake, 4 Yeates 183. Hillary v. Duross, .5 Phila. 170. Gray V. Singerly, 6 Ibid. 539. » Kelly V. Holdship, 1 Bro. 36. Rob- inett v>. Lair, District Court, Phila., 23 Dec. 1848. Motion for a rule for a new trial. Per curiam. This motion is made because of the temporary absence of a witness, who was attending volun- tarily without a subpoena. It is clear, that a party, under our system, is never safe, unless he has all witnesses under subpoena. Here, no attachment would have been sent, and to have continued the cause on such ground, would be to open the doors to an evasion of all the rules which have been made for the purpose of enforcing a trial of a cause, and of obviating, to some extent, at least, the vexatious delays in the ad- ministration of justice, of which so much just complaint has been made. Rule refused. " Fiss V. Smith, 1 Bro, app. Ixxi. Field V. Sergeant, 1 Phila. 72. Tarns V. Graeff', Ibid. 70. Meyer v. Smith, 7 Ibid. 105. Harris v. Govett, 3 W. N. C. 560. " Hanbest v. Ilinkle, 5 Phila. 17. DAMAGES. 429 unless it be clearly shown that a different result would have been reached, had the counsel been present.'^ § 766. Excessive or inadequate damages. Where the damages given are either so large or so small, as to force upon the mind the con- viction that, by some means, the jury have acted under the influence of a perverted judgment, it is the duty of the court to grant a new trial.^. In an action ex contractu, if the damages be clearly larger than is war- ranted by the evidence, a new trial is a matter of right,^ unless the plaintifi" will remit the excess ;■* but, in an action on a quantum meruit, tlie verdict will not be set aside, because the damages are liberal, if not outrageous.^ When the damages exceed those laid in the declaration, a remittitur may be entered for the excess, even after error brought.^ If, however, the jury disregard the measure of damages clearly laid down by the court, a new trial must be granted.'' In all cases of tort (except erim. con.^, the court has power to grant a new trial, where the damages are excessive;^ and it will do so, wherever the verdict is manifestly the result of passion, prejudice, partiality or corruption.' But in an action of tort, the verdict will not be set aside, on the ground of excessive damages, unless they are plainly exorbitant •?" thus, in trover, the court will not grant a new trial, on the ground that the damages are excessive, where the value of the property is incapable of being ascertained, with anything like precision ;^^ nor, in malicious prosecution, merely because the court consider the damages unnecessarily liigh.'^ But in all such cases, the court may make an order for a new trial, unless the plaintifi" stipulate to remit a portion of the verdict.^' ' Brock V. Richardson, 9 Phila. 233. 1 Phila. 20. Le Van i\ Pennsylvania Prowattain v. Townsend, Ibid. Railroad Co., 3 \V. N. C. 496. A new * Clapp V. Hudson River Raih'oad trial is never srranted for excessive Co, 19 Barb. 461. Potter v. Thomp- damages, in a case of crm. eo/(. Smith son, 22 Ibid. 87. Tinney v. New -Jer- v. Master, 15 ^Vend. 270. Nor, in an sey Steamboat Co., 5 Lans. .507. Price action for breach of promise, unless V. Murray, 10 Bos. 248. Ellsworth v. the jury were mistaken or ]ivejndiced. Central Railroad Co., 5 Vroom 93. Smith v. Woodtine, 1 U. B. (iX.'S.) 660. ' Eastwick v. Hugg, 1 Dall. 222. » steever v. Beehler, 1 Miles 146. Hunt V. Bruner, 6 Phila. 204. Nunan Reuck v. McGregor, 3 Vroom 70. ». Bourquin, 7 Ibid. 239. Doddw. Pier- "Coleman «." Southwiok, 9 Johns, son, 6 Halst. 284. 4."^. Bump v. Betts, 23 Wend. 8.5. * Hill V. Philadelphia, 2 Phila. 351. Travis v. Barger, 24 Barb. 614. Walker New Jersey Flax Co. v. Mills, ^ Dutch, v. Erie Railway Co., 63 Ibid. 260. 60. Jansen v. Ball, 6 Cow. 629. Sears v. Wightman v. City of Providence, 1 Conover, 3Keyesll3. Hayden u. Flor- Cliff. 524. Aiken v. Bemis, 3 W. & ence Sewing-Machine Co., 54N. Y. 221. M. 348. To be forced to submit to a * Roberts v. Swift, 1 Yeates 209. wrong, or incur the expense and trouble And see White v. Arleth, 1 Bond 319. of a lawsuit, is always a damage. « Fury V. Stone, 2 Dall. 184 ; s. c. Bedford v. McWiUiams, 3 Phila. 137. 1 Yeates 186. And see Hill v. Milligan, " Dennis v. Barber, 6 S. & R. 420. 38 Penn. St. 237. ^ " Sommer D. Wilt, 4 S. & R. 19. ' Wilson V. Whittaker, 5 Phila. 358. " Yeager v. Yeager, 25 -Leg. Int. 21. Youqua v. Nixon, Pet. C. C. 224. Krebs o. Ewing, 7 Leg. & Ins. Rep 26. * Shoemaker v. Livezely, 2 Bro. 286. Williams v. Philadelphia, 8 Phila. 30. Sommer K. Wilt, 4 S. & R. 19. Kuhn w. Commonwealth v. Credit Mobilier, 1 North, 10 Ibid. 399. Hallett v Lelar, Leg. Opin. 57. 430 NEW TEIAL. § 767. The court will not grant a new trial, on the ground of the inadequacy of the damages, though the jury were instructed they might give exemplary damages.' The decision of the jury in an action for tort should be final, unless it be at variance, not only with the weight of evi- dence, but with all the evidence by which they should have been , guided f' they may have taken into consideration mitigating circum- stances, which the court would not have regarded.^ Thus, in an action to recover damages for overflowing the plaintiff's lands, a verdict for nominal damages will not be set aside, if the jury had reason to believe, from the evidence, that some part of the injury complained of, was occa- sioned by the unlawful act of the defendant, but that the damages resulting from such act bore no appreciable proportion to those actually sustained by the plaintiff, and resulting from other causes.^ But in a gross case, the court will set aside a verdict in slander, for inadequacy of damages f no verdict ought to be permitted to stand, by which the plain and obvious principles of law have been violated.^ § 768. Practice. A motion for a rule to show cause_ why a new trial should not be granted, having been made within the time prescribed, and specific reasons for a new trial having been filed, the case is placed upon the motion-list by the prothonotary, as of course. But in a special case, the court will order a cautionary judgment to be entered, in the mean- time, to stand as security;^ no such judgment, however, will be entered, unless some unforeseen occurrence has taken place, which has put the debt in jeopardy, which must be specially shown.* By rule of court, the party who moves for a new trial, is required to furilish to each of the judges a copy of the reasons filed, with such a statement of the case or evidence as may be necessary to enable the court to understand the rea- sons ; such copy of the reasons to be furnished to the judge before whom the cause was tried, within four days after the trial.' Causes upon the motion-list rank by the date of the motions ; not by their terms and numbers. On the calling of the list, one counsel only is heard in sup- port of the motion. If the court decline granting the rule (after hearing ' Kennedy u. Way, Bright. 186. mechanic's claim, where tl;e lien will Preston v. Hunt, 1 Phila. 122. expire before the motion for a new trial ^ Molntire v. Stringer, 3 Phila. 302. is disposed of. ^ Walker v. Smith, 1 W. 0. 0. 202. » Horbach v. Reeside, 5 Whart. 223. * Phillips V. Phillips, 5 Vroom 209. » Rule xxiv. ? 86. The paper-book * Cooper V. Keeler, 1 W. N. C. 116. should 'contain a summary or abstract And see Armytagew. -Haly, 4 Q. B. 917. of the testimony, documents and con- " Shenk v. Murdorf, 2 Bro. 110. tested points, necessary to give the ' Arnold v. Jones, Bee 104. The judge an outline of the case. One chief supreme court had, under its original object of the paper-book is to give in- jurisdiotion, a special rule upon this formation to those of the judges who subject; and although the act 23 March were not present at the trial; and, 1877, P. L. 34, Purd. 2134, requiring a of course, it ought to contain matter verdict to be' entered on the lien-docket, enough to prepare their minds for the has, in most cases, rendered the entry of argument, and refresh their memory such cautionaryjudgmentunimportant, upon a review in chambers. Shars- there are still cases in which it may be wood J., Dist. Court, Phila., 7 March advisable ; as, in case of a verdict on a 1848. MS. PEACTICE. 431 the applicant only), it is marked refused ; if granted, it is immediately transferred to the argument-list, according to its term and number ; and when reached in its order, the party who is to show cause against the rule is heard by one counsel only in reply; but the court will order a further argument by other counsel, in cases, which, in their judgment, require it.^ The counsel supporting the rule concludes the argument ; the party moving for a new trial will be confined to the grounds of objection taken at the trial.^ The court, on granting a new trial, may impose terms upon the party ;' such as, the payment of costs ;* that he shall try on the merits, without regard to the form of the pleadings f or that the verdict shall shall stand as security for the damages to be reco- vered on another trial, and that the action shall not abate by the death of either party." Where a new trial is granted, on conditions precedent, they must be performed within a reasonable time, or the right is gone ;'' but if the plaintiff proceed to trial, without exacting performance, it is a waiver of the terms imposed.* The court, however, may strike off the order allowing a new trial, after the cause has been down for trial, at several subsequent terms.^ After a judge's term of office has expired, he cannot, at chambers, make absolute a rule for a new trial, in a case tried before him." H. Arrest of judgment. § 769. An unsuccessful defendant may also, within four days after the verdict, move an arrest of judgment : that is, that the judgment for the plaintiff ma'y be arrested or withheld, on the ground that there is some error appearing on the face of the record, which vitiates the proceedings. In consequence of such error, on whatever part of the record it may arise, from the commencement of the suit to this period, the court are bound to arrest the judgment. It is, however, only with respect to objections apparent on the record, that such motion can be made ; nor can it be made, generally speaking, in respect to formal objections. This was formerly otherwise, and judgments were constantly arrested for errors of mere form ; but this abuse has been long remedied, by certain statutes, passed at different periods, to correct inconveniences of this kind, and commonly called the statutes of amendment and jeofails, by the effect of which, judgment, at the present day, cannot, in general, be arrested for any objection of form." § 770. The reasons or causes appearing on the record which will suffice to arrest a judgment, are : (1) Where the declaration varies totally from ' Rule XXV. § 91. ' Ward v. Patterson, 46 Penn. St. 372. ' Cooper V. Abrahams, 9 Phila. 165. ^ Devinney v. Reeder, 1 P. & W. 399. ' Clark V. Manufacturers' Insurance ' Clouser v. Hill, 33 Leg. Int. 297. Co 2 W. & M. 473. Law v. Kennedy, 24 Pitts. L. J. 112. *' Devinney v. Reeder, 1 P. & W. i" Bartolett w. Faust, .5 Phila, 316. 399. Roth V. Steffe, 9 L. Bar 77. " Steph. Plead. 96-7. Judgment " Welsh V. Dusar, 3 Binn. 329. cannot be arrested for matter dehors Walker v. Long, 2 Bro. 125. the record. Skinner v. Robeson, 4 " Kuhn ». North, 10 S. & R. 411. Yeates 375. Aronson v. Cleveland & Zantzinger v. Weightman, 2 Cr. C. C. Pittsburgh Railroad Co., 70 Penn. St. 478. 68. 432 AEEEST OP JUDGMENT. the original writ, as where the writ is in debt, and the plaiutiflf declares in an action on the ease for an asaum/psit} The defendant cannot move in arrest of judgment for anything which might Jiave been pleaded in abatement f and if there be a misjoinder of counts, and a verdict for the plaintiff on the counts well joined, and for the defendant on the other, the misjoinder is not a cause for arresting the judgment.' (2) Where the verdict materially differs from the pleadings and issu-e thereon.* (3) If it appear by the declaration, that the plaintiff had not a cause of action, as, if he declare as indorsee, on a promissory note, which he stated to have been made payable to one V., and not to order.° This defect of title (which will always be apparent from the record) would likewise cause the judgment to be arrested in a court of error; therefore, it is a general rule, that any exception which may be taken advantage of, on a writ of error, may also be taken advantage of, on a motion in arrest of judgment'.' It is also a general and invariable rule, with regard to arrests of judgments, upon matter of law, that whatever is alleged in arrest of judgment must be such matter as would, upon demurrer, have been suiBcient to overturn the action or plea : therefore, in slander, judgment cannot be arrested, because the words were proved, on the trial, to have been spoken after the writ issued.' But the rule will not hold h converso, " that everything that may be alleged as cause of demurrer will be good in arrest of judgment ;" for, if a declaration or plea omit to state some particular circumstance, without proof of which, at the trial, it is impossible to support the action or defence, this omission will be aided by a verdict.* For a verdict ascertains those facts, which before, from the inaccuracy of the pleadings might be dubious ; since the law will not suppose that a jury, under the direction of the judge, would find a verdict for the plaintiff or defendant, unless he had proved those circumstances, without which his general allegation is defective. Exceptions, therefore, that are moved in arrest of judg- ment, must be much more material and glaring than such as will sustain a demurrer ; or, in other words, many inaccuracies and omis- sions, which would be fatal, if early observed, are cured by a subsequent verdict ; and not suffered, in the last stage of a cause, to unravel the 3 Bl. Com. 393. A variance be- * Barriere v. Nairac, 2 Dall. 252. tween the capias and declaration, ia " Ibid. not ground for arresting the judgment. ' Skinner v. Robeson, 4 Yeates 375. Wilson V. Berry, 2 Cr. C. C. 707. And » 3 bi_ Com. 394. United States v. see Shenk v. Mingle, 13 S. & R. 29. White, 5 Cr. C. C. 73. It is not ground ^ Bing. Judg. 80. for arrest of judgment, in an action upon ' Wenberg'c. Homer, 6 Binn. 307. a special warranty, broken by the Miller v. Loekwood, 17 Penn. St. grantor's giving a mortgage, after his 248. conveyance to the plaintiif, under which * 3 Bl. Com. 393. Lathrop v. Allen, mortgage, the premises were sold, that 19 Johns. 229. Where judgment is the declaration does not state the plain- arrested on account of the insufficiency tiif 's failure to record his deed, though, of the verdict, the plaintiff is entitled without such failure, the sale under the to a venire de novo, if he apply at the mortgage would not have harmed the same term. Butcher v, Metts, 1 Miles plaintiff. Lukens v. Nicholson, 4 Phila. 233. 22. ARREST OF JUDGMENT. 433 \vli(jle proceediugs. But if the thing omitted be essential to the action or del'ence, as, if the plaintiff do not merely state his title in a defective manner, but set forth a title that is totally defective in itself, or if, to an action of debt, the defendant pleads not guilty instead of nil debet, these defects cannot be cured by a verdict for the plaintiff, in the first case, or for the defendant, in the second.* But the plea of not guilty in assumpsit, is cured by a verdict for the plaintiff;^ for the defendant cannot take advantage of his own mispleading, to arrest the judgment.' § 771. After judgment on a demurrer, the judgment cannot be arrested, whether the demurrer were argued or not ;* but it is otherwise, in case of judgment by default.' Where the declaration consists of two counts, and there is a general verdict for the plaintiff, and the action can be maintained only on one, the court will allow the plaintiff, after motion in arrest of judgment, to enter the verdict on the proper count.*" If the judg- ment be arrested erroneously, the supreme court will, on error, enter judgment upon the verdict.' Judgment may be arrested, for an objec- tion on the face of the record, though it were not assigned at the time of filing the motion.' The day on which the verdict is entered is one of the four days, within which a motion in arrest of judgment must be made.' A writ of error will lie on a judgment arrested ; because the order to arrest the judgment is in nature of a judgment.*" § 772. In all cases where judgment is arrested on account of the insufficiency of the declaration, a new suit cannot be commenced, until the costs are paid in the first suit." And where judgment is given for the plaintiff, and the same is reversed by error, or a verdict passed for the plaintiff, and upon matter alleged in arrest of judgment, the judgment is given against the plaintiff, he must commence a new action within a year after such reversal or arrest of judgment, and not after.*^ ' 3 Bl. Com. 394-5. An objection Byerly, 58 Penn. St. 418. Stetzell v. to the declaration, which ■might have Reynolds, 59 Ibid. 488. heen taken on a previous demurrer, ' Wilson v. Gray, 8 Watts 25. Pang- cannot be urged in arrest of judgment, burn v. Ramsey, 11 Johns. 141. Commonwealth v. Davia, 4 Phila. 95. ^ (Irasser v. Eokart, 1 Binn. 575. ' Cavene v. McMichael, 8 S. & R. » Burrall v. Du Blois, 2 Dall. 229. 441 . But see supra, § 744. ■ ^ Coan V. Whitmore, 12 Johns. 353. ^'^ Benjamin v. Armstrong, 2 S. & R. * Edwards v. Blunt, 1 Str. 425. 392. .On a motion in arrest of judg- ' Callagan v. Hallett, 1 Caines 104. ment, there cannot be a judgment for « Burrall v. Du Blois, 2 Dall. 229. the defendant. KaufFman v. Kauff- But if one of two counts in slander man, 2 Whart. 139. state no cause of action, and, there be " Act 2 August 1842,_ § 12, P. L. 460 ; a general verdict, the judgment must Purd. 1170. See Smith v. Sharp, 5 be arrested ; the court cannot enter Watts 292. rtid^ent upon the good count. Ruth " Act 27 March 1713, §2; 1 Sm. V. Kutz, 1 Watts 489. Lukehart v. L. 76 ; Purd. 932. VOL. I. — 28 CHAPTER XXV. Of Judgment. I. Entet op judgment, § 773. Definition of judgment, ? 773. When judgment may be entered on a verdict, f 774. Enti-y of judgnient by the prothon- otary, J 775. Payment of jury fee, § 775. Judgment-index, §776. Entiy of judgment in court, § 777. Judgment for costs, § 777. Special judgments, | 777. II. Lien of a judgment, § 778. General principles, § 778, 783. Against equitable interests, J 779, 783. When the lien begins to run, § 780. Priority between judgments, &c., §781. Purchase-money securities, § 782. Against estate of fraudulent ven- dee, § 783. On justices' transcripts, § 784. Of special judgments, ^ 785. Proceeding to determine whether a judgment is a lien, § 786. III. Judgments against decedents, §787. Entry of judgment, after death of party, § 787. Lden of judgment against lands of decedent, 788. Proceedings on death of judgment- debtor, § 789. Actions against executors, § 789. IV. Joint judgments, § 790. Common-law nile, § 790. How altered by statute, § 790. Effect of the statutory provisions, §791. V. Amendment op judgments, § 792. At common law, § 792. After the end of the tei-m, § 793. Power to modify, on en-or, § 794—5. VI. Interest on judgments, § 796. When recoverable by statute, § 796. Computation of interest, § 796. When interest ceases to run, § 797. Interest on verdicts, § 797. Vll. Judgment on balance in favok OF the defendant, § 798. Statutory provisions, § 798. When tlie defendant is entitled to judgment, § 799. VIII. Opening judgments, § 800. General principles, § 800. On whose application, § 801-2. When creditors may apply, § 803-4. Mode of trial, § 805. Application for feigned issue, § 806. Effect of fraud, § 807. When a judgment may be attacked collaterally, § 808. Practice on a rule to open judg- ment, § 809. IX. Transfer op judgments, § 810. When a judgment may be trans- ferred to another county, § 810. Practice on the transfer of a judg- ment, §811. Effect of the ti-ansfer, § 812. Transfer of an award, §813. Decree in equity not transferable, §813. X. Satisfaction of judgments, §814. When judgment to be satisfied of record, § 814. Who may satisfy a judgment, § 814. What is a suiSicient satisfaction, §815. Effect of satisfaction, § 815. Penalty for not entering satisfac- tion, §816. When satisfaction to be entered by the prothonotary, § 817. When the court to order satisfac- tion, § 817. Power of the court, when a judg- ment is over ten years old, § 818. When entry of satisfaction may be stricken ofi^, § 819. I. Entry of judgment. § 773. A judgnient is the sentence of the law, pronounced by the court upon the matter contained in the record — the final proceeding by which (435) 436 JUDGMENT. the court applies the law to the particular case, and specifically grants or denies to the plaintiff the remedy which he has sought by the action ;' and, therefore, an action is deemed " pending," until final judgment.^ Having already considered the question of the entry of judgment by confessiou,^ and by warrant of attorney;* and also the entry of a judg- ment for default of appearance,' or of a plea,® and for want of an affi- davit of defence,' we propose, in the present chapter^ to consider the subject of adversary judgments after verdict. § 774. It is a doctrine of the common law, that a reasonable delay after verdict shoul,d be allowed, before judgment is signed.' By our prac- tice, four days are allowed for the entry of a motion for a new trial, or in arrest of judgment, exclusive of the day on which the verdict is ren- dered, and if a Sunday intervene, it is also excluded from the computa- tion.' For, whenever, by rule of court, or by statute, a certain number of days is allowed to do an act, or it is said, an act may be done within a given number of days, the day on which the rule is taken, or the deci- sion made, is to be excluded in the computation of time.'" § 775. After the expiration of the four days, if no motion be made for a new trial, or in arrest of judgment, the prevailing party is entitled to have judgment signed, in the office, by the prothonotary ; this power is specially conferred upon that officer, by statute ;'' and he may exercise it, by signing judgment upon a verdict, in vacation.'^ But no such judg- ment can be entered, without a special order of the court, until payment of the jury fee of four dollars, directed by the act of 1805.'' The judgment entered by the prothonotary is an absolute one ; the entry of an interlocutory judgment, or judgment nisi, is unknown to our practice ; neither is a rule for judgment required, as in England.'* The officer who signs a judgment, is required, by statute,^' to set down the day of the month and year of his so doing, upon the docket ; which date is also to be entered upon the margin of the record ; and the rule of court requires that the judgment shall be dated on the day it is entered." ^ 3 Bl. Com. 395-6. But, except where authorized by stat- ^ Hinckle «. Riifert, 6 Penn. St. 196. ute, judgment in a controverted case, * Supra, i 425. must be pronounced in open court ; the ' Supra, 1 434. clerk cannot enter such judgment, on " Supra, 1 275. the written order of the judge. Asp- « Supra, 1 393. den's Appeal, 24 Ibid. 182. ' Supra, \ 399. " Act 29 March 1805, 1 13 ; 4 Sm. L. « Maguire v. Burton, 1 Miles 17. 242; Purd. 1168. Rule xx. §70. ' Ibid. Golder v. Blackstone, Dist. " Maguire v. Burton, 1 Miles 17-8. Court, Phila., Dec. 1820. MS. '' Act 21 March 1772, §2; 1 Sm. L, •° Goswiler's Estate, 3 P. & W. 200. 390; Purd. 818. Cromelien v. Brink, 29 Penn. St. 522. '« Rule xx. |70. If the defendant Marks v. Russell, 40 Ibid. 372. Duify die, pending a rule for a new trial, the V. Ogden, 64 Ibid. 240. Black v. Johns, court will order judgment to be entered 68 Ibid. 83. nunc pro tunc, as of a terra when it " Act 14 April 1834, ? 77, P. L. 355 ; might have been entered up, in his life- Purd. 1182. The prothonotary was time, had it not been for the delay originally the puisnejudgeofthecourt, caused by the action of the court, and he still exercises many judicial Tooker v. Duke of Beaufort, 1 Burr. functions. 146. Trelawney v. Bishop of Winches- " Beyerle v. Hain, 61 Penn. St. 226. ter, Ibid. 226. Cumber v. Wane, I ENTET OF JUDGMENT. 437 ' According to our practice, the prothonotary simply enters the word "judgment," upon the record ; noting, also, the payment of the jury fee. The short entry of "judgment on verdict," is deemed, on a scire facias, such judgment as the plaintiff was entitled to ;^ such entry is made to serve as a memorandum for making up the record in form, which, how- ever, is seldom, if ever, done.^ In general, the pleadings, issue and ver- dict show plainly enough what the judgment ought to be ; and what the judgment is, the courts, as they are called on, from time to time, must explain.' In an action against an executor on the contract of his tes- tator, the judgment is de bonis testatoris ; in one founded upon his per- sonal contract, since the testator's death, it is de bonis propriis} The issue of plene administravit is exclusively within the jurisdiction of the orphans' court, in which alone he can be fixed with a devastavit, upon which a scire facias lies.' § 776. In Philadelphia, all the proceedings in the cause, including the judgment, are entered upon the appearance docket :" no separate judg- ment-docket is kept ; but _after the entry of judgment, it is entered upon the judgment-index, which is kept in very minute alphabetical order,' so as to afford ready access to information, stating first the name of the judgment-debtor, then, the name of the plaintiff, followed by the term and number of the case upon the appearance docket, the date of the judgment, and its amount, when liquidated.* It is the duty of the plain- tiff, to see that his judgment is rightly entered ; for, though the pro- thonotary is responsible for the consequences of his negligence in the performance of this duty, subsequent purchasers or judgment-creditors are not bound to look beyond the judgment-index.' Thus, if one initial letter of the defendant's name, which distinguishes him from others, be omitted, whereby a purchaser is deceived, there can be no recovery against him as terre-tenant.^" But an entry on the judgment-docket against A. Jones, whose name is Abel Jones, is sufficient ; he being well known by the abbreviated designation, uniformly signing in that way, and there being no other person in the county who would answer the description." The principle of idem sonans applies ta the entry of the defendant's name on the judgment-docket ;^^ but not ^here the name is Str. 427. Teneick ads. Plagg, 5 Dutch, and sub-division C. This, of course, 35. increases the number of books, but ' Shirtz V. Shirtz, 5 Watts 255. enables a party, with very Httle trouble, ^ Hussey v. White, 10 S. & R. 347. and in a brief time, to acquire the ' Coyle V. Reynolds, 7 S. & R. 329- needed information. 30. And see Reidenauer v. Killinger, " See act 22 April 1856, ^ 3, P. L. 11 Ibid. 119, 121. 532; Purd. 824. * Seip V. Drach, 14 Penn. St. 352. ' Ridgway's Appeal, 15 Penn. St. 117. * Burd V. McGregor, 2 Gr. 353. Barry's Estate, 3 Luz, L. Reg. 141. « Rule xxxii. § 112. ■» Wood v. Reynolds, 6 W. & S. 406. ' In the judgment-index, each letter '^ Jones's Estate, 27 Penn. St. 336. of the alphabet is again subdivided " Myer v. Fegaly, 39 Penn. St. 429. alphabetically, by the christian name And .see Bergman's Appeal, 26 Pitts. of the defendant; thus, in searching L. J. 93. Cadden'a Estate, 8 Luz. L. for judgments or other liens against Reg. 109. Charles Brown, consult the division B, 438 JUDGMENT. differently spelled, as Joest for Yoest ; this is no notice to a purchaser, for it would not be indexed under the same letter.^ And a judgment entered against a firm, by the firm name, without setting forth the names of the several partners, creates no lien as against subsequent purchasers and incumbrancers, unless they have actual notice.^ The judgment- docket is primd fade evidence of the order in which liens are entered.' A recent statute requires assignments of judgments to be indexed.* § 777. Where the presiding judge marked on the margin of the trial- list, "judgment for plaintiff, sum to be liquidated by the prothonotary," it will be presumed, that the judgment was entered with the assent and acquiescence of the defendant.^ So, where the record stated that " a jury was called and sworn, and the same day, the jury was dis- charged, and judgment given for the plaintiff," it was held, on error, that the court below had given judgment, after argument, or with the acquiescence of the parties.^ Whilst a plea of nul tiel record remains undisposed of, judgment on a verdict is not final ;^ but a judgment on demurrer to the declaration is final, and puts- the case out of court.' The defendant is entitled to judgment, if he has succeeded on any one issue, going to the whole cause of action.' If, when a case is called for trial, it is stated by the counsel to be " settled," the proper practice is, to enter a formal judgment for the costs, if there be an agreement to that effect; if not, the plaintiff must be nonsuited, unless a legal ground for continu- ance be shown.^" The court will enter judgment specially, so as to show 1 Hell's Appeal, 40 Penn. St. 453. ^ York Bank's Appeal, 36 Penn. St. 458. Smith's Appeal, 47 Ibid. 128. ^ Polhemus's Appeal, 32 Penn. St. 3'^8 "* Act 24 May 1878, P. L. 138 ; Purd. 2134. * Hays «. Commonwealth, 14 Penn. St. 39. « Seyhert u. Bank, 5 Watts 307. ' Beale v. Buchajian, 9 Penn. St. 123. ' Woodu. Anderson, 25 Penn. St. 407. ' Newlin v. Insurance Co., 20 Penn. St. 312. Coleman v. Grubb, 23 Ibid. 393. '" Thomas v. Kast, Dist. Court, Phila., 26 February 1848. Why./?. /a. should not be set aside and judgment opened. Per curiam. When this case was called for trial, durinj; the present term, it was stated to the court, by the plain- tiif's counsel, that it had been settled; that entry was accordingly made on the judge's trial-list. One of the judges of the supreme court, in delivering the opinion of that court (Moore «. Kline, 1 P. & W. 133), has condemned this as " certainly a loose mode of doing busi- ness," though, he adds, that he i.? not prepared to say, it is a nullity, when on the record. " It would, perhaps, amount to an entry of satisfaction, or a discon- tinuance." It is on this account, that the judge before whom this cause was called, when such a suggestion is made, requires to be informed by the counsel, " if any agreement has been made as to the costs, and enters a formal judgment for the costs accordingly. Otherwise, he nonsuits the plaintiff, under the 2d section of the act of 14 April 1846, unless a legal cause for continuance is shown. In this way, all doubt as to the character of the entry is avoided, and the suit is finally and conclusively determined and ended. In accordance with this practice, in the case before us, the counsel for plaintiff' informed the judge, that the defendant was to pay the costs, and taking it for granted that such was the arrangement, judgment was entered accordingly. It now ap- pears, that this was a misapprehension on the part of the plaintiff's counsel, and that the case had been settled by the parties, out of court, without their counsel, and a receipt in full given by the plaintiff, without any mention of the subject of costs. It is clear, tha';, in such a case, each party bears his own costs : Watson v. bepeyster, 1 Caines LIEN OF JUDGMENT. 439 that it binds only property held in trust by the defendant, and which was the sole purpose of the suit.^ The court will also, in certain cases, annex conditions to judgments ; and a condition accompanying a judg- ment, by which it is to be released on the payment of a sum of money, &c., is in the nature of an injunction to stay proceedings at law. But where time is given for the payment of purchase-money, by the judg- ment of the court, in an action of ejectment, the amount should be ascer- tained and stated on the record, before the time begins to run.^ II. Hen of a judgment. § 778. A judgment regularly entered has a preference over subsequent judgments against the same defendant, as a lien upon his lauds.^ In Pennsylvania, the lieu of judgments embraces every kind of equitable and even an inchoate interest in land, and every right vested in the debtor at the time of the judgment f but that interest must be an estate in the land ;' and one that can be taken in execution.* It does not attach to lands acquired by the defendant after judgment, and aliened bond fide before execution.' This latter doctrine, however, rests solely on a supposed general understanding, and a silent practice prevailing in this state ; and though the question is at rest, the rule, being considered an innovation on the law, rather than an improvement, is confined most strictly to the point decided, and to the circumstances under which it was established. It has been, therefore, held, that a judgment binds land, for the sale of which articles of agreement have been entered into before, but which have not been conveyed, until after judgment.^ And the 66 ; Johnston v. Brannan, 5 Johns, v. Good, 3 W. & S. 56. Williams v. 268 ; Herkimer Manufacturing Co. i). Downing, 18 Penn. St. 60. Sample «. Small, 2 Hill 127. Such a settlement Mown, I Phila. 85. is, in effect, an agreement to discon- ^ Schaffer j). Cadwallader, 36 Penn. tinue, and judgment might be entered, St. 126. Beam's Appeal, 19 Ibid. 453. that the plaintiff pay the costs of the * Morrow v. Brenizer, 2 Kawle 188. office, that is, those which have not A vendee who has paid no portion of been already advanced as the suit the purchase-money, has no interest to proceeded, but not the costs of the which a judgment can attach. Deitzler defendant or his attorney. The entry v. Mishler, 37 Penn. St. 82. in this case, then, is clearly wrong. ' Colhoun v. Snider, 6 Binn. 135. The court, therefore, make absolute this Rundle v. Ettwein, 2 Yeates 23. Ex rule, so far as regards setting aside the parte Vandevender, 2 Bro. 304. Den- execution issued by the plaintiff for nison's Appeal, 1 Penn. St. 201. Ab- costs, and instead of opening the judg- bott v. Remington, 4 Phila. 34. The ment, as asked for, they direct it " to judgment against an equitable vendee be set ajside, as having been improvi- must be regarded an exception from dently rendered." Execution and judg- the general principle that limits judg- ment against defendant for costs set menHiens to such estate as the debtor aside. had at the date of this entry. But ' Aycinena w. Peries, 2 Penn. St. notwithstanding the dissatisfaction ex- 286. pressed with the doctrine of Colhoun v. ' Harmar ». Holton, 25 Penn. St. Snider, it is too firmly rooted in oux 245. law, to be shaken at this day. "Wood- ' Thelusson v. Smith, 2 Wheat. 396. ward, J., in Waters's Appeal, 35 Penn * Carkhuff v. Anderson, 3 Binn. 4. St. 524. Lynch v. Dearth, 2 P. & W. lOt. Pugh ' Richter v. Selin, 8 S. & R. 440. 440 JUDGMENT. revival of a judgment by scire faeias post annmn et diem creates a lien ou real property of the defendant, acquired after the entry of the original judgment' § 779. A judgment against the equitable estate, which a vendee holds under articles of agreement for the sale and purchase of lands, attaches to and binds the legal estate, the instant it vests in the vendee ; and there is no difference in this respect, between a judgment in favor of the vendor and one in favor of a stranger. This doctrine is an exception to the general rule established in Pennsylvania, that the lien of a judgment does not affect a subsequently-acquired interest of the debtor, without revival.^ The interest of an assignor in the estate, which remains unconverted in the hands of his assignee, after the satisfaction of the debts, is bound by the lien of judgments against him, and is the subject of levy and sale.^ But a judgment against a purchaser, under an order of sale directed by the orphans' court, who has failed to comply with the terms of sale, does not bind the premises as a lien.* Under this head, it is not intended to consider fully what interest a judgment binds, or the extent and duration of the lien ; the authorities on these points will be found collected elsewhere.^ The present object is, to touch particularly on those decisions which concern the practical duties of counsel in per- fecting judgment. § 780. By the third section of the Act of 1772, it is enacted, that such judgments, as against purchasers bond fide, for valuable consideration, of lands, tenements or hereditaments, to be charged thereby, shall, in con- sideration of law, be judgments only from such time as they shall be so signed, and shall not relate to the first day of the term whereof they are entered, or the day of return of the original, or filing of the bail, any law, usage or course of any court to the contrary notwithstanding.^ It would appear that- this provision, originally copied from the fifteenth section of the statute 29 Car. II. c. 3, is merely intended for the protec- tion nt bona fide purchasers, and not to prevent the technical relation of the judgment to the first day of the term, in a contest between the judgment-creditor and the plaintiff in a domestic attachment ; and it has been decided, that, in such a case, the judgment does relate back to the first day of the term, so as to exclude a domestic attachment.' As between conflicting creditors, the priority of their judgments is governed by the times of their entry, and not by relation to the preceding term ; the uniform, uninterrupted practice in Pennsylvania has been, to consider ' Clippinger v. Miller, 1 P. & W. 64. The lien of a judgment is co-extensive '' "Waters's Appeal, 35 Penn. St. 523. with the right to issue execution; a Zeigler's Appeal, 69 Ibid. 471. If the judgment in the circuit court of the defendant has any interest in land, as, United States binds all the defendant's by executory devise or contingent re- lands within the state, though it be mainder. the lien attaches to the entire divided into several districts ; there- title, when it comes into possession, fore, a judgment docketed in Pitts- Ogden V. Knepler, 1 Pears. 145. burgh binds lands in Philadelphia. ■' Webb V. Dean, 21 Penn. St. 29. Prevost v. Qorrell, 5 W. N. C. 151. * Jacob's Appeal, 23 Penn. St. 477. « 1 Sm. L. 390 ; Purd. 818. ' Bright. Dig. tit. "Judgment," V. ' Hooton v. Will, 1 Dall. 4.50, LIEN or JUDGMENT. 441 the binding effect of judgments upon lands, to take place only from the actual entry of the judgments, and thus entered, they have never been supposed liable to be affected by fictions or relations.' Between judg- ments entered on the same day, there is no priority, and, therefore, the proceeds of sale under them are divided pro rata? In regard to the entry of judgments and their priority of lien, a day is not susceptible of judicial division ; therefore, it gives one no priority, that his judgment appears to have been entered at an hour earlier than the others ; con- sequently, they must be paid pro rata, if the fund be insufficient.' And it makes no difference, that the prothonotary has made an entry of the hour of entering judgment in each case.* § 781. Whether the judgment-docket be a part of the record or not, it is primd facie evidence of the order in which liens are entered. It is com- petent for the prothonotary to receive and file a warrant of attorney, at his residence, after ofBce-hours, and to enter judgment thereon ; and if such judgment be docketed the next day, as of the day when filed, it becomes a lien as of that date.' But, where two judgments have been entered on the same day, in different counties, by virtue of the same war- rant of attorney, evidence is admissible of the exact time at which the first was entered ; and, for this purpose, an entry on the docket, made in pur- suance of instructions from the plaintiff, is competent evidence.' Though, as between two judgments entered on tlie same day, parol evidence is inadmissible, to show that one was taken before the other ; yet, the prin- ciple is different, when a conveyance and a judgment conflict, in which case, evidence en pais is receivable, to show that, though both bear date on the same day, one was in point of time prior to the other ;'' as between a judgment and a deed, of the same date, the priority depends upon proof of the actual time of the entry and execution ;"^ if, however, there be no proof of the time, the judgment will have priority.^ But there is no priority between a judgment entered and a mortgage recorded on the same day,'" § 782. The lien of judgments against the vendee of land, entered before the conveyance of the legal title, is extended to the whole estate in the premises, on the union of the legal and equitable title, effected by the conveyance of the former. When the vendee receives a deed, and, at the same time, gives a mortgage for the purchase-money, a judgment entered against him binds his entire interest ; and, if the mortgage be not placed in the proper office, to be recorded, within the time prescribed by the statute, the judgment will take precedence of it." A judgment 1 Welsh V. Murray, 4 Dall. 320 ; s. c. c% S. 304. 4 Yeates 197. ' York Bank's Appeal, 36 Penn. St. ^ Emerick v. Garwood, 1 Bro. 20; 4.58. s. c. 4 Dall. 321 n. Steele v. Taggert, * Ladley v. Creighton, 70 Penn. St. 1 Bro. 20 n. 490. ' Metzler v. Kilgore, 3 P. & W. 245. » Boyer'e Estate, 51 Penn. St. 432. 4 Ibid. '° Claasou's Appeal, 22 Penn. St. 359. 5 Polhemus's Appeal, 32 Penn. St. Hendrickson's Appeal, 24 Ibid. 363. 328. " Foster's Appeal, 3 Penn. St. 79. A * Mechanics' Bank v. Gorman, 8 W. judgment recovered after a general as- 442 JUDGMENT. against the vendee, entered several days after the delivery of the convey- ance, though confessed for money used in paying a portion of the pur- chase-moiley of the land, is not entitled to payment in preference to prior judgments against him, entered after the purchase of the premises, but before the conveyance of the legal title. A mortgage for the residue of purchase-money of land, executed at the time of the delivery of the conveyance of the legal title, and duly recorded, has priority of lien on the land conveyed, over judgments against the vendee, entered after the purchase of the land and before the conveyance.^ A judgment entered after the recording of a mortgage for purchase-money, acquires no pri- ority over the mortgage, by reason of its being entered before the judg- ment on the bond or notes secured by the mortgage.^ In order, however, to give a judgment for purchase-money any peculiar merit, it must be entered at the same time the deed is delivered, or so near it as to consti- tute one transaction ; otherwise, it will have no precedence of lien on the equitable estate held by the defendant under articles, or on the subse- quently-acquired legal estate.' Where a vendee of land under articles, commenced to build a saw-mill, and afterwards received a deed for the land, giving a judgment for the unpaid purchase-money, which was entered on the same day, it was held, that the lien of the purchase- money judgment had priority over a mechanic's lien, filed for materials furnished for the mill, and was entitled to be first paid out of the pro- ceeds of the sale of the land under execution.* § 783. Judgments against an equitable estate rank, like all others, according to their dates.^ A judgment entered on the day on which the defendant's land is sold by the sheriff, though at a later hour than the sale, attaches to the proceeds, and the judgment-creditor is entitled to participate in the distribution." A judgment for arrears of ground-rent creates no new lien, and is without limitation, except the common-law presumption of payment.^ Where a debtor conveys land in fraud of his creditors, a judgment subsequently obtained against him, only binds the title of the fraudulent grantee ; and a sale under it does not disturb prior liens ;^ and this, it seems, though the legal estate was never in the judgment-debtor, who was only entitled to a resulting trust, by reason of payment of the purchase-money.' § 784. When transcripts of judgments, obtained before a magistrate, are filed in the prothonotary's ofiice of the court of common pleas, they become liens on lands, and are on a footing with judgments in courts of signment for the benefit of creditors, ^ Small's Appeal, 24 Penn. St. 398. has no preference over an unrecorded ' Wills v. Gibson, 7 Penn. St. 156. mortgage. Mellon's Appeal, 32 Ibid. ^ Byrod's Appeal, 31 Penn. St. 241. 121. Fisher's Appeal, 33 Ibid. 294. Hoff- * Cake's Appeal, 23 Penn. St. 186. man's Appeal, 44 Ibid. 95. Wiehl v. Eckert V. Lewis, 4 Phila. 422. Distche, 34 Leg. Int. 338. And see ^ Larimer's Appeal, 22 Penn. St. 41. Beekman's Appeal, 38 Penn. St. 385. " Lyon V. MoGuffey, 4 Penn. St. 126. Ecker v. Lafferty, 3 Pitts. 500. Watt V. Steel, 1 Ibid. 386. » Fisher v. Lyle, 8 Phila. I. See * Stoner v. Neff, 50 Penn. St. 258. Vanaradalen's Appeal, 3 W. N. C. * Wilson V. Stoxe, 10 Watts 434. 463.' LIES OF JUDGMENT. 443 record, by virtue of the act of 1810.^ They are, in effect, judgments of the court of common pleas, and may be so called in a writ of scire facias to revive them.^ The court has no authority to strike off such judgments from the docket, nor to take any cognisance of the judgments thus entered, for the purpose of reversing them, unless brought before it by appeal or certiorari.^ As regards real estate, it is virtually a judg- ment of that court ■* consequently, it may be set aside, on motion, with or without an issue, where it has been obtained surreptitiously, or it may be opened to let the party into a defence, when he has missed his time, by accident or mistake; a practice extremely beneficial, and founded on the chancery powers which our courts are in the daily habit of exer- cising. The matters, however, which constitute the defendant's title to relief, must have existed previously to, or at the time of rendering judg- ment; if they be subsequent, the court will not interfere in a summary way, further than to stay the execution ; because they may be pleaded to a scire facias, which, if it be necessary, the plaintiff will be ordered to bring.' A transcript, however, creates no lien on the defendant's real estate, if an appeal has been duly entered before the alderman.^ § 785. A judgment entered on a bond and warrant of attorney, with a stipulation that its lien shall be restricted to certain specified real estate, and subsequently revived generally, by confession, after the expiration of five years from the entry of the original judgment, is without limita- tion or restriction, as to its lien on the defendant's lands.^ A stipula- tion in a bond and warrant of attorney, that the judgment to be entered thereon shall be a lien only on certain designated lands, though it restricts the lien of the judgment, does not exempt the other real and personal property of the defendant from liability for the debt; the lien is but an incident to the judgment, and a restriction of it to certain designated lands does not affect the judgment as a personal security;^ a judgment limited " to be a lien" only upon certain real estate, is not satisfied by a sheriff's sale of the property to which its lien is restricted. An uncon- ditional revival of a restricted judgment, during defendant's lifetime, makes it a general lien on all his lands in the county ; but such revival, after his death, against his personal representatives only, simply con- tinues the lien as originally restricted ; to incumber his other real estate with the judgment, as against the widow and heirs, proceedings must be had against them under the provisions of the act of 1834.' § 786. The defendant in a judgment may apply, by petition, to any ' 5 Sm. L. 166 ; Purd. 863. pear, on its face, to have been ob- ' Walker v. Lyon, 3 P. & "W. 98. tained without service of process. Hud- » Dailey v. Gifford, 12 S. & R. 72. dy v. Putt, 34 Leg. Int. 196. Lacock V. White, 19 Penn. St. 495. ■* Brannan v. Kelley, 8 S. & R. 479. Boyd V. Miller, 52 Ibid. 431. Burton * King v. King, 1 P. & W. 20. V. Sulger, 7 Phila. 407. Engard v. ' Hastings v. Lolough, 7 Watts 540. O'Brien, 9 Ibid. 559. Moran v. Stew- ' Dean's Appeal, 35 Penn. St. 405. art, 1 W. N. C. 159. But such judg- « Stanton v. White, 32 Penn. St. ment may be stricken off, after a re- 358. versal on certiorari. Pinkerton v. Laf- ' MoMurray v. Hopper, 43 Penn, ferty, 2 W. N. C. 274. Or, if it ap- St. 468. 444 JUDGMENT. of the courts of the city and county of Philadelphia, setting forth that a judgment in force against him in such court is apparently a lien on real estate, against which the plaintiff or plaintiffs is not equitably entitled to enforce the same, and would not be entitled to claim any part of the pro- ceeds thereof, by virtue of such judgment, if the jiroperty were sold by any judicial sale whatsoever; to which petition must be attached a description of the property so claimed to be exempt from the lien of the judgment ; whereupon, the court is required to issue a citation, directed to the plaintiff or plaintiffs, to show cause why a decree should not be made that the lien of such judgment shall not extend to such property, nor affect the title thereof; and unless the plaintiff or plaintiffs, in answer thereto, aver, under oath or affirmation, that he or they believe the judgment to be an existing lien on such property, or part thereof, specifying what part, which he or they are legally and equitably entitled to enforce as such, and that he or they claim and desire so to hold and enforce such judgment, the court will make a decree, that the property in question shall be and remain for ever discharged from the lien of such judgment. If the plaintiff answer the citation, then the court will order an issue to be formed to try the question, whether the judgment is an existing lien, which the plaintiff is legally and equitably entitled to enforce ; and on the determination of such issue, if decided against the defendant, his petition will be dismissed, and if against the plaintiff, a' decree discharging the property from the lien of the judgment will be made ; if, however, the answer and claim of the plaintiff apply only to part of the property in the defendant's petition mentioned, the issue is only to refer to such part ; and a decree, discharging the residue of the property from the lien of the judgment, will at once be made, without the determination of the issue. If the defendant deposit in court an amount of money sufficient to cover the judgment, interest and costs, or the bonds of the commonwealth to an equal value, in the opinion of the court, from which, in case the issue should be decided against him, the judgment will be paid, or otherwise returned to the defendant or his assigns, the decree discharging the land from the lien of the judgment, will at once be made ; the proceedings in the issue otherwise to proceed, the money or the securities aforesaid being substi- tuted for the land. The defendant making any such application, must pay the costs of such proceedings, including a reasonable fee to the plaintiff's attorney, to be fixed by the court, and give security therefor, before the issuing of the citation.^ III. Judgments against decedents. § 787. By the stat. 17 Car. II., c. 8 (made perpetual by 1 Jac. II., c. 17, § 5, and reported to be in force in Pennsylvania),^ where either party dies between the verdict and judgment, " in any action personal, ' Act 6 September 1860, ? 2, P. L. vision for Berks county. 840; Purd. 840. The act 22 March ^ Rob. Dig. 369. 1865, P. L. 574, makes a similar pro- JUDGMENTS AGAINST DECEDENTS. 445 real or mixed," his death shall not be alleged for error, so that the judg- ment be entered within two terms after verdict. Under this statute, it has been held, in England, that the death of either party before the assizes is not remedied ; but if he die, after their commencement, although before the trial, that is within the remedy of the statute ; for it is a remedial act, and shall be construed favorably; the assizes being considered as but one day.' And even at common law, if either party die, after special verdict, and pending the argument, motion for a new trial or other proceeding, whereby entry of judgment is suspended, judgment may be entered nunc pro tunc, as of the term when the party would have been entitled to it, on the return of theposfea;^ that the act, arising from the delay of the court, may not turn to the prejudice of the party. In the case of Griffith v. Ogle,^ the plaintiff died after verdict, judgment was entered as of a term when he was living, and on an appeal, this proceeding was sustained ; and said Tilghman, C. J., " direct authorities have been cited by the plaintiff's counsel in support of this practice ; it tends much to the attainment of justice, and we have no doubt but it is perfectly regular." Independently of the statute, the court has power to enter judgment, at their discretion, as of a past time, when it ought to have been entered, in order to do justice, without injury to third persons : where, therefore, upon nul iiel record pleaded, the court decided that there was such a record, but the prothonotary omitted to enter judgment, and after this decision, the defendant died, it was held, that the court, in order to do justice, might enter judgment after his death, as of the time when it ought to had been entered, although nearly eight years had elapsed between the determination of the issue and the actual entry of the judgment. The rights of third persons will, however, be protected against any consequences which might result from the entry of the judgment as of a past time.^ So, it was held, that an agreement to enter judgment as of a particular term is complied with, by an entry of judgment as of a subsequent term, provided no third per- son be injured thereby. At all events, a judgment erroneously entered cannot be said to be void, upon a collateral examination ; it is valid until reversed.' If the plaintiff die after verdict for the defendant, and the latter do not enter up judgment within two terms thereafter, the court has no authority to permit it to be entered afterwards nunc pro tunc.^ § 788. Although, at common law, the judgment, being peisonal, sur- vives, when one of the several defendants dies, as to the personalty, yet, it does not survive as to the real estate bound by it. It does not 1 Tidd 933. said, that judgment cannot be entered, ' Fitzgerald v. Stewart, 53 Penn. St. as of a prior term, in the lifetime of 346. Ryghtmyer v. Durham, 12 Wend, the defendant, unless the delay arise 245. from the act of the court. Ogden v. s \ Binn. 172. Lee, 3 How. Pr. 153. Kissam v. Ham- * Murray v. Cooper, 6 S. & R. 126. ilton, 20 Ibid. 369. See Gray v. Brig- 5 Lewis V. Smith, 2 S. & R. 142. nardello, 1 Wall. 627. « Cohley v. Day, 4 Taunt. 702. It is 416 JUDGMENT. He wholly on the survivor, but the lands of all are equally charge- able, and execution must be equally made ; and if one die, the creditor must bring a sei. fa. against his heirs and terre-tenants, and also against the survivors. But it is otherwise, where the lands are not bound ; as if two enter into a bond, and one die before judgment, the sur- vivor shall be charged alone.' The lien of a judgment, though not revived by scire facias within five years, continues against the lands of the debtor in the hands of his heirs or devisees, and is entitled to pri- ority of payment over the general creditors of the debtor, who had not obtained judgments against him in his lifetime. The act of 1798 restrained the lien of a judgment to a period of five years, only in favor of purchasers from the debtor and judgment-creditors in his lifetime, but left it without limit against every one else.^ § 789. There are two sections of the act of 24th February 1834 that relate to the practice with regard to executions issued upon judgments obtained against decedents and their estates ; and they are important to be kept in mind by the practitioner ; the one is the 33d, and the other the 34th section.' The first requires the plaintiff, in any judgment obtained against a decedent in his lifetime, before proceeding to issue execution for the levy or sale of any real or personal estate of such decedent, to proceed by scire facias against his personal representatives, to show cause why the execution should not issue ;* and this step is necessary in a case where the teste of the writ bears date antecedently to the date of the decedent's death. The other section to which we refer requires the widow and heirs or devisees, and the guardians of such as are minors, to be inade parties to a judgment obtained against the personal represen- tatives of a decedent, where the plaintifi" intends to charge the real estate of the decedent with the payment of the judgment.' The object of the framers of the act was, to protect the estates of dead men from collusive judgments obtained by pretended creditors against faithless representa- tives.^ The 34th section does not apply to judgments obtained in the lifetime of the decedent;' but wherever a title derived through a judgment against the personal representatives has been set up to defeat the heirs or devisees of a decedent, it has been required to conform to the statutory rule.^ If land be sold on a judgment obtained against an administrator, in a suit originally brought against -the debtor, who died 1 Stiles V. Brock, 1 Penn. St. 216. 424. Brobst v. Bright, 8 Ibid. 124. The act 11 April 1848, ^ 5, P. L. 536 ; Wells v. Baird, 3 Penn. St. 3.51. Kon- Purd. 826, provides, that the death of igmaker v. Brown, 14 Ibid. 269. Marsh one of several iudgment-debtoi-a shall v. Haldeman, 2 Clark 234. Baxter v. not discharge his estate. This act ren- Allen, 77 Penn. St. 468. ders a deceased partner's estate liable, ' P. L. 78, 80 ; Purd. 425-6. in the first instance, whether the sur- * See vol. ii. § 2093. vivor be solvent or insolvent. Brew- ^ See vol. ii. § 2102. ster V. Sterrett, 32 Penn. St. 115. » SeeChristmanu.Fritz,13S.&R.14. Moore's Appeal, 34 Ibid. 411. And ' McMillan v. Red, 4 W. & S. 237. though the decedent was a mere surety. Eiland v. Bckert, 23 Penn. St. 215. Bowman v. Kistler, 33 Ibid. 106. * Keenan v. Gibson, 9 Penn. St. 249. '' Aurand's Appeal, 34 Penn. St. Kessler's Appeal, 32 Ibid. 390. But 151. Fettermau ;;. Murphy, 4 Watts see Shearer v. Brinley, 76 Ibid. 300. JOINT JUDGMENTS. 447 before judgment, the sale is void as to heirs and devisees, though not so as to strangers and intruders.' The heirs and devisees who are made parties to the scire facias issued upon such a judgment, are not precluded by the judgment, but may contest it; the judgment, however, is con- clusive, where the executor is the sole devisee of the real estate.^ A judgment rendered against a person, after his death, is reversible, if the fact and time of death appear on the record, or, in error coram vohis, if the fact be shown aliunde ; it is voidable, not void, and cannot be im- peached collaterally : still less is a decree in rem, as an order of sale, to be held void or impeached collaterally, when made after the death of the owner of the property.^ The sale of the real estate of a decedent by his ex- ecutor, for the payment of debts, under a power contained in the will, does not divest the lien of a judgment entered in the lifetime of the testator; a sale by an executor, under a testamentary power, is not a judicial one.' rv. Joint judgments. § 790. At common law, in an action on a joint contract, it behove the plaintiff to be careful not to sever the joint action, by proceeding against the defendants separately; he had his election, either to wait until all the defendants came in, and then proceed to recover a joint judgment, or, if he believed either of them sufficient, to proceed against him alone ; but, atter accepting a confession of judgment from one of the defendants he could not go to trial against the others;' so, if he recovered in a several action upon a joint contract.^ To remedy the inconveniences to which plaintiffs were subjected by this rule of the common law, several statutes have been passed in this state. It was first provided by the act of 1830,'' that in joint actions against joint and several co-contractors, where the process was not served on all the defendants, a judgment obtained against the parties served, should not be a bar to a recovery in anoth&r suit against the defendants not served with process; nor should the acceptance of an amicable confession of judgment from one or more of the defendants have such effect.' Then came the act of 1842," which provided for the entry of several judgments against the defendants, at different times, the date of the last judgment to be recited in subsequent process. The act of 1848 provided,'" that a recovery of judgment, • Riland v. Eokert, 23 Penn. St. ' Act 6 April 1830, P. L. 277 ; Purd. 215. 826. ^ Stewart v. Montgomery, 23 Penn. ' The acceptance of a confession of St. 310. Steele v. Lineberger, 59 Ibid, judgment from one of several defend- 308. ants, is a bar to further proceedings in ' Yaple V. Titus, 41 Penn. St. 195. that suit ; another action must be * Fisher v. Kurtz, 28 Penn. St. 47. brought against the other defendants. ' WiUiams v. McPall, 2 S. & R. 280. Welsh i;. Hirst, 1 Phila. 50. Moses Finch V. Lamberton, 62 Penn. St. 372. v. Dulles, Ibid. 146. But see Miller v. A judgment recovered against one of Reed, 27 Penn. St. 244; and Act 4 two joint contractors, without plea in April 1877, P. L. 52 ; Purd. 2134. abatement, is valid. Douglass v. Lacey, ° Act 2 August 1842, I 6, P. L. 549 ; 3 Leg. Gaz. 253. Purd. 826. « Downey u. Farmers' and Mechanics' '» Act 11 April 1848, §5, P. L. 536; Bank, 13 S. & R. 288. Purd. 826. 448 JUDGMENT. whether amicably, or by adversary process, against one or more joint and several co contractors, should not bar a subsequent action against others jointly liable with the defendants, but who were not made parties to the suit. And the act of 1877,^ that the taking of a judgment by default, or is for want of an affidavit of defence against one or more several co- defendants, should not bar a recovery in the same suit against the others. § 791. These statutory provisions appear to have completely deraigned the rule of the common law ;^ and, accordingly, it has been held, that the act of 1830 is a remedial statute, and to be liberally construed f it extends to proceedings in justices' courts, as well as those in courts of record f and to cases not only of joint contract, but also of joint action.^ The act of 1877 embraces the case of a judgment entered for want of a sufficient affidavit of defence.^ By the act of 1861,' the death of one of several defendants, in an action upon a joint contiact, pendente lite, cannot be pleaded to the further prosecution of the action against his personal representatives ; the plaintiff may proceed to a recovery against the survivor and the representatives of the decedent.* But if one of two joint defendants die, after judgment, his personal representa- tives must be brought in, before execution can issue against the survivor.' A second suit against one of several joint-debtors not served in the same action, need not be brought in the same court."" v. Ameiidraent of judgments. § 792. The judgment is amendable at common law, in substance or in form, at any time during the term of which it is signed :^' thus, the court may vacate a judgment on a verdict, at any time during the term, and grant a new trial ;'^ and, in a criminal case, they may reconsider the sentence, during the term, and impose a severer punishment.'' And any misprision, omission or mistake of the clerk in the entry of the judgment, may be corrected, after any lapse of time, where the record shows any- thing to amend by ; this is a power vested in every court, and one which it is their duty to exercise in a proper case, in order that suitors may not suffer by the carelessness or mistakes of clerks and officers ; it is a power committed to the discretion of the court, to be exercised over their own records, and the correct use of that, discretion cannot be ques- tioned by another court, even on a writ of error." The power to amend 1 Act 4 April 1877, P. L. 52; Purd. " Dingman v. Amsink, 77 Penn. St. 2134. See Myers v. Nell, 84 Penn. 114. St. 369. « Bressler v. Miller, 1 Leg. Chron. 127. 2 Weikel v. Long, 55 Penn. St. 238. " Wendill v. Magee, 3 W. N. C. 204. ' Moore u. Hepburn, 5 Penn. St. 401. " Cheang-Kee v. United States, 3 Campbell D. Steele, n Ibid. 394. Ben- Wall. 321. nett V. Cadwell, 70 Ibid. 253. " King v. Brooks, 72 Penn. St. 363. * Vanemen v. Herdman, 3 Watts " Commonwealth v. Brown, 35 Leg. 203. Int. 5. * Lewis V. Williams, 6 Whart. 268. " Cromwell v. Bank of Pittsburgh, " Bean v. Seyfert, 34 Leg. Int. 338. 2 Wall. Jr. C. C. 586-7. Wilkins v. ' Act 22 March 1861, P. L. 186 ; Anderson, 11 Penn. St. 399. Coelle Purd. 39. V. Loekhead, Hemp. 194. AMENDMENT OF JUDGMENTS. 449 for misprision of the clerk, is given by stat. 8 Hen. VI., c. 12 & 15, declared to be principally in force in this state;* thus, where a judgment de bonis propriis was entered against an executor, instead of judgment de bonis testatoris, the court ordered it to be amended, even aft<'r error brought.^ § 793. Although, after the term is ended at which judgment is entered on a case stated, or verdict, the court cannot alter it, so as to correct what, on reconsideration, may be deemed an error ; yet, they may, before error brought, correct a mere mistake in entering it, such as an entry of judgment for one party, where the other party was, in fact, intended. ^Yhenever there is anything to amend by, such as the judge's notes, no danger need be apprehended, and it is justified by the general rule on the subject, as well as by the reason of the thing.^ Even after error brought, the record may be amended, if there be anything on it, or filed with it as part of the proceedings, to justify the amendment; if the record be brought up on error, it will be remitted to the court below for the purpose. There are many illustrations of the rule in the reported cases : a judgment, for example, entered against a defendant by a wrong Christian name, may be amended by the bond and warrant of attorney, as between the parties.* It may be amended from a less to a greater sum, by the paper on file assessing the damages ; as between the parties, such an amendment may be made, after bail given for stay of the exe- cution, ca. sa. issued and returned, and, after an action brought against the bail, a trial had, and writ of error brought ; but it cannot be done, if the amendment affect the rights of the bail, or of creditors or pur- chasers.^ The limitation of the rule, however, is disclosed by the princi- ple, that the court cannot correct a judicial error, after proceedings have been had on the judgment. This principle is exemplified in the case of Ullery v. Clark,* in which it was decided, that where the court had entered judgment without costs, on an award of arbitrators, it could not, after two years, during which an exemplification of the record was filed in another county, and an execution issued and returned, change the judgment, by entering it, with costs ; such a change as this would be rather judicial than clerical. In accordance with the same doctrine, a judgment entered by mistake, upon a warrant of attorney, for a less amount than the obligatibn demands, may be amended by the court, ' See Rob. Dig. 29, 33^, 49. Pierce by. Albers v. Whitney, 1 Story 310. V Turner 1 Or. C. 0. 433. * Crutoher v. Commonwealth, 6 ' ■' Green v. Rennet, 1 T. R. 782. Whart. 349. Maus v. Maus, 5 Watts People ». McDonald, 1 Cow. 189. And 319. The judgment-docket may be see Lansing j;. Lansing, 18 Johns, corrected, as to the amount, saving the 5Q2 rights of intervening incumbrancers. ''"Stephens v. Cowan, 6 Watts 513. Hunt v. Grant, 19 Wend. 90. And see * Zimmerman v. Briggans, 5 Watts Close v. Gillespey, 3 Johns. .526. The 186 And see Bank of Newburgh v. clerk has no power to alter the entry on Seymour 14 Johns. 219. A mistake the judgment-index without the order in the name of a party cannot be of the court. Prowattain, v. MoTier, 1 amended, at a subsequent term, where Phila. 105. there is nothing in the record to amend * 18 Penn. St.. 149. VOL. I.— 29 450 JUDGMENT. after execution issued ; and an alias execution may be awarded for the balance remaining uncollected, if the rights of third persons be not prejudiced by such amendment.^ The regularity of an amendment by a court of competent jurisdiction, cannot be inquired into collaterally.^ § 794. The act of 16th June 1836 gives the supreme court power to modify, as well as to reverse and affirm, judgments. Under it, the court feel authorized to disregard slips in practice, where it is not inconsistent with law and the rights of parties ; such, for example, as a general judg- ment against two, where one had not been served, and had not appeared to the writ, and in which the court reversed the judgment as to him, and affirmed it as to the others.^ But where a party recovers irregularly a judgment against a defendant, which would have been set aside, on application to the court below, the supreme court, on failure to make such an application, will regard the regularity of the judgment admitted, in many cases. Thus, where a scire facias was issued against the defend- ant and terre-tenants, and was returned nihil as to the defendant, and served as to the terre-tenants, and judgment entered generally for want . of an appearance, it was held, that the irregularity of the judgment against the original defendant was unimportant in a court of error, as no application to set it aside had been made in the court below.* There is a clear distinction between void and voidable judgments ; irregu- larities that will enable parties to set judgments aside, on motion, do not vitiate them utterly, and until they are reversed or set aside by legal proceedings, they are binding and conclusive. For example, where a justice rendered judgment against a defendant, in a case in which the docket stated that the summons was "returned on oath," but without returning that it had been served, it was held, that the judgment, in a scire facias thereon, was to be regarded as conclusive.^ § 795. The doctrine of amendments appears to be without limitation in Pennsylvania, and has, in modern practice, been applied upon very liberal principles: thus, an amendment was permitted in the verdict, in an ejectment, although nothing appeared to amend it by, except the implication from the finding.^ So, where the verdict exceeded the amount of damages laid in the declaration, a remittitur for the excess was permitted, although after error brought, and judgment was entered for the residue.^ If, however, the record be removed by writ of error, the supreme court will not suffer a remittitur of the surplus damages to be entered, but will send back the record to the court below for amendment, if they think proper to amend. This objection being removed, and the amended record returned, the judgment will be ' Smith V. Hood, 25 Penn. St. 218. * James v. Jarrett, 17 Penn. St. See Hassler's Appeal, 5 Watts 176. 370. 2 Hamilton v. Seitz, 25 Penn. St. * Sloan v. McKinstry, 18 Penn. St. 226. Murray v. Cooper, 6 S. & R. 126. 120. Rhoads v. Commonwealth, 15 Penn. ' Scott v. Galbraith, cited 1 DaU. St. 272. 134. " Jamieson t). Pomeroy, 9 Penn. St. ' Rapp v. Elliot, 2 Dall. 184; s. C. 231. And see MoCanna t). Johnston, 1 Yeatea 185. Fury w. Stone, Ibid. 186 ; 19 Ibid. 434. s. c. Add. 114. INTEREST ON JUDGMENT. 451 affirmed.' And where a plaintiff obtained a verdict, and the judges being equally divided on a motion for a new trial, the clerk entered judgment, ou the order of one of the judges, but objected to by the other; the judgment was held good, the court presuming that the dis- senting judge merely wished his opinion against the verdict to be entered of record, and not to arrest the course of law.^ Where one defendant died after suit brought, and judgment was entered against both, an amendment was permitted, by entering a suggestion of his death, with the same effect as if entered before judgment, though after error coram vobis, upon which his death before judgment had been assigned : and per Tilghman, C. J. — " The cases cited in support of the motion are suffi- cient to show the power of the court, and it is a power which, generally speaking, tends very much to the promotion of justice ; the court feel themselves bound to adopt amendments of this nature, so far as is con- sistent with their lawful authority, nor will they be disposed to fetter them with conditions, except in extraordinary cases."^ The court will not presume anything against judgments, and do not incline to set them aside, unless for manifest error f and whilst they remain in full force and unreversed, the court cannot collaterally, in a new action brought against a different defendant, declare them to be illegal and of no effect.^ "VI. Interest on judgments. § 796. By the second section of the act of 1700,^ lawful interest is allowed to the creditor on the amount of his judgment, from the time it is obtained, until satisfaction. Interest may, in general, be considered as legally incident to every judgment, in this state;' but where a plaintiff obtained a verdict, and a new trial was granted, upon condition that a judgment should be entered as a security for whatever might be ulti- mately recovered, the court, upon the second trial, instructed the jury, that where a judgment was given merely as a security, the interest ought not to be calculated on the amount of the judgment (which included principal and interest), but only on the sum originally due.* Under our act of assembly, the practice is stated to have been, both before and since the revolution, to ascertain the real debt, at the time of the judg- ment entered, and to calculate interest thereon as a new principal f and when credit for partial payments is allowed, the principle of calculation is thus decided — interest is always calculated on a judgment to the time of the first payment, which is applied, in the first instance, to discharge the interest, and afterwards, if there be a surplus, to sink the principal, and so toties quoties, care being taken that the principal, at any time thus 1 Laussatt v. Lippincott, 6 S. & R. ' Roberts v. Wheelen, 3 Dall. 506. 386. Ajudgment bears interest, though there '' Cahill V. Benn, 6 Binn. 99. be ncesset, until the plaintiff perfect the ' Hill V. West, 1 Binn. 486. title to certain land. Shaller v. Brand, * Bradley v. Flowers, 4 Yeates 436. 6 Binn. 435. And notwithstanding an » Bond V. Gardiner, 4 Binn. 281. attachment of the debt, in the hands ° 1 Sm. L. 7 ; Purd. 804. of the judgment-debtor. Fitzgerald v. 'Commonwealth u. Vanderslice, 8 Caldwell,4 Dall. 251 ;s. c. 1 Yeates 274. S. & R. 452. ■ " Berryhill v. Wells, 5 Binn. 56. 452 JUDGMENT. reduced, be not suffered to accumulate by the accruing interest; this rule is sustained not only by usage, but by decision.^ Interest on a judgment is suspended from the day when land is sold on an execution issued under it ; but the rule is not extended to cases where it would work injustice; therefore, in a case where judgment was taken by con- fession, against the maker of a negotiable note, by the holder, for the pur- pose of securing the indorser, and the real estate of the maker was sold by the sheriff, and the appropriation of the proceeds directed to the judgment was delayed for years, by appeal to the supreme court, it was held, that the interest on the amount appropriated did not cease to run in favor of the indorser, from the sheriff's sale, but ran till actual payment.^ § 797. Where a judgment is revived by repeated writs of sdre facias, the plaintiff has a right to charge interest on the aggregate amount of principal and interest due, at the time of rendering judgment on each scire facias.^ But this rule does not hold, in the case of the appropriation of the proceeds of the land of a decedent ; in such case, simple interest is to be calculated only upon the original judgments ;■* and where a judg- ment is affirmed, on error, the original judgment is the amount on which interest is to be charged.^ As we have seen, a judgment does not bear interest, beyond the return-day of the execution on which the money is made f and the interest on all liens ceases from the day of sale f but, nevertheless, a mortgagee may recover subsequently-accruing interest, by proceeding on his bond.^ In an action on a judgment, interest is not chargeable on the costs, unless previously paid, and then only from the time of payment.^ A verdict now bears interest, by statute.^" Vn. Judgment on balance In favor of the defendant. § 798. Under the defalcation act of 1705,^' if it appear to the jury, in an action wherein the parties have mutual accounts against each other, that the plaintiff is overpaid, they are directed to find their verdict for the defendant, and to certify to the court how much they find the plain- tiff to be indebted ; which sum, so certified, is recorded with the verdict, and deemed a debt of record. If the plaintiff refuse to pay it, the defendant shall have a sdre facias and execution for the same, with the costs of that action. By the third section of the same act, the report of referees, chosen by the parties, in open court, is put on a footing with 1 Penrose «. Hart, 1 Ball. 378. Com- Watts 96. Baohdell's Appeal, 56 Penn. monwealth u. Vanderslice, 8 S. & R. St. 386. 452. Spires v. Hamot, 8 W. & S. 17. ' Siter's Appeal, 26 Penn. St. 178. '' Baker v. Exchange Bank, 24 Penn. s. P. O'Hara's Estate, 4 Leg. Gaz. 130. St. 391. 8 Gordon v. Shallcross, 4 Am. L. ^ Fries v. Watson, 5 S. & R. 220. Reg. 309. * Meason's Estate, 5 Watts 464. » Rogers v. Burns, 27 Penn. St. 5 Kelsey v. Murphy, 30 Penn. St. 525. 340 ; contra,, McCausland v. Bell, 9 S. & " Act 6 April 1859, P. L. 381 : Purd. R. 388. 804. « Strohecker e. Farmers' Bank, 6 "1 Sm. L. 49 ; Purd.'487. OPENING JUDGMENT. 453 the verdict under the former section. If, therefore, on such report, or on a verdict, a sum is found due by the plaintiff to the defendant, the latter, until lately, could not enter judgment and issue execution, but was obliged to take a scire facias, on which he had judgment and execu- tion for the sum found due.^ But now, by the act of 11 April 1848 ^ he is entitled to judgment and execution upon the balance found due him.^ § 799. In an action at the suit of the commonwealth, the defendant cannot have a certificate of a balance in his favor ; he cannot indirectly recover from the state, a substantive, independent claim, by way of set- off, any more than he could directly recover a debt due from the state, by bringing a suit against her.* And if the jury should certify such balance, it could neither be made the basis of a judgment, nor of a sdre facias.^ An assignment of the plaintiff's claim, before the trial, will not deprive the defendant of his right to enter up judgment upon a verdict for a balance in his favor, under the plea of payment — the trial having been between the original parties to the record.* There can be no judg- ment in favor of the defendant, for a sum certain, upon performance of a condition by the plaintiff, which the court has no power to enforce.' Vm. Opening' judgments. § 800. Having already considered the questions of the opening of a judgment by default f and of a judgment entered by virtue of a war- rant of attorney,' we propose now to treat of the opening of an adversary judgment. It has been held, that an adversary judgment cannot be opened, after the expiration of the term, on the application of the de- fendant, even on the ground of fraud ; if he have any matter of defence afiecting the conscience of the plaintiff, he must resort to a court of equity for relief.^" But as equity is a part of the common law of Pennsylvania, it has been decided by the supreme court, that, in case of fraud, the court has power to open a judgment obtained on an award, and let the defendant into a pretermitted defence upon the merits. Our courts have always possessed, and in one form or another exercised, the chancery power of relieving against fraudulent judgments, however obtained.'^ § 801. But as no one is concluded by a judgment, who had not an ' Ramsey's Appeal, 2 Watts 228. No action can be maintained against the Under the Act of 1705, the judgment state, except as authorized by statute, was not quod recuperet, but that the Kiersted v. People, 1 Abb. Pr. 385. defendant go without day. Reeside u. " Klinew.Gundrum, 1] Penn. St. 242. Walker, 11 How. 272. And see Black- ' Glass v. Blair, 4 Penn. St. 196. burn V. Markle, 6 Binn. 174. » See supra, i 279. 2 P. L. 537 ; Purd. 488. ' See supra, § 443. ' See swpra, i 552. '" Dickson v. Whitney, 1 W. N. 0. * Commonwealth ». Matlack, 4 Dall. 51. And see Miller v. Gallagher, Ibid. 303. Schaumberg v. United States, 25 8. Mathers v. Paterson, 33 Penn. St. Pitts. L. J. 99. 487. The court has no power to open * Reeside v. Walker, 11 How. 272. an irregular judgment, after a lapse of And see United States u. Eckford, 6 seven years. Smyser v. Brooks, 1 Pears. Wall. 484. The commonwealth cannot 228. Otherwise, if it were fraudulently be made a defendant to a suit in equity, obtained. Ball v. Nicholson, Ibid. 285. Williamsport and Elmira Railroad Co. " Cochran v. Eldridge, 49 Penn. St. V. Commonwealth, 33 Penn. St. 288. 365, 371. 454 JUDGMENT. opportunity to appear and take defence,' a third person, not a party to the suit, whose interests are affected by the existence or the enforcement of the judgment, may move to have it opened.^ The applicants, in such cases, are not regarded as strangers to the judgments; but they will be permitted to take defence, upon disclosing to the court, by affidavit or depositions, that which would amount to a defence, if established before a jury. A terre-tenant of land charged with a ground-rent, is entitled to be made a party to a suit on the deed ; and if he be not summoned, and a judgment is rendered against the covenantor, he will be entitled to have the judgment opened, upon showing a defence; in the same manner, a judgment, irregularly confessed by a mortgagor, after an assignment, will be opened, on application of the terre-tenant.^ But the court will not open a judgment, to suffer a terre-tenant to try an issue whether the judgment be a lien.* These are common illustrations of the class of cases to which we have referred. § 802. Motions to open judgments on the ground of some formal irregularity, or on the ground of the existence of adequate defence, can generally be made only by the defendants themselves, or by those who, under some statutory law, are entitled to be made parties to the suits. We say, generally, for it has been suggested by high authority,^ that if a defendant were to refuse to move, for the benefit of his creditors, there might be cases in which they would be permitted to move, in his name, to ^ Morrison v. Mullin, 34 Penn. St. 12. Rhoads v. Armstrong County, 41 Ibid. 92. ^ Brown v. Simpson, 2 Watts 239. ' Elkinton v. Fithorn, District Court, Phila., 14 Oct. 1848. Why sheriff's sale should not be set aside, judgment opened and terre-tenant let into de- fence. Per curiam. The mortgage fell due 2d February 1848, and the sci. fa. upon it could not regularly be issued, until after the expiration of twelve months from that day. On the 20th April 1848, the defendant made a deed to John H. Benton, and then agreed to confess a judgment on the mortgage, waiving the privilege given by the law. He could not divest his alienee of his rights under the law, without his con- sent. No evidence has been offered to impeach the deed to Benton ; and the rule itself gave sufficient notice to put the other party upon inquiry as to his rigl t to interfere. Rule absolute. * Darraoh v. Darrach, District Court, Phila., 17 Feb. 1849. Per curiam. The question presented in this case is one of some practical interest. It is, whether, upon a motion to set aside an execution, we will suffer a terre-tenant to try, by an issue, whether the judg- ment upon which the execution has issued, is a lien. After the fullest con- sideration, we are of opinion that we ought not to do so. It comes back, practically, to the question, whether we will direct an issue to try the title of the defendant. There are inconve- niences and risks, undoubtedly, in let- ting the sale go on, and putting the parties to their ejectment ; the proba- bility is, the property will be sacrificed, and some one be a loser. But how can we, in any case, prevent a plaintiff from selling, by execution, the right, title and interest of the defendant in any property ? And were we to order an issue, it might not be conclusive, in an ejectment subsequently brought by the sheriff's vendee ; and thus all the expense, time and trouble of the proceedings would absolutely go for nothing. Rule discharged. The act of 6 September I860, P. L. 840, Purd. 827, has given such right to defendant in the judgment: whether a terre-tenant is within the equity of the statute, does not appear to have been considered. ^ Black, J., in Lewis v. Rogers, 16 Penn. St. 21. OPENING JUDGMENT. 455 open the judgment and let in some subsequent, or, perhaps, some original matter of defence, which the defendant may have refused or neglected to take advantage of; and this application by creditors would be enter- tained, on the principle, that an insolvent man should not be permitted to give his property away, by means of a judgment, which, though proper at first, has become a security for less than its amount. Where, also, the entry of a judgment is an absolute nullity, as in the case of a judgment confessed without a statement of the cause of action, where a rule of court requires such statement to be filed, any one who has an interest may move that the judgment be stricken off.' But until such a motion to open is made, either by the defendant or by some one entitled to be made a party to the suit, or by creditors, under the condition which has been mentioned, every unreversed judgment is conclusive upon antagonistic creditors, and all the world.^ § 803. But it may be asked, when will creditors be permitted to inter- fere directly in regard to a judgment, in the court having control of it, and obtain an order to vacate and annul it between the parties, and as to all third persons ? The general rule is, as we have seen, that every application to open a judgment or set it aside directly, must come either from the defendant, or some one standing in his rights and subject to his obligations. The question now to be answered is, when and under what circumstances will creditors be permitted to interfere, directly and not collaterally, in order to have a judgment opened, in regard to which the parties ask no action? the answer is, in a case of collusion, and under circumstances of fraud. They will not be permitted, either directly or collaterally, to abate, of their own motion, simply an errone- ous or technically defective judgment ; the judgment may be erroneous in every aspect ; it may have been entered irregularly and informally, so that an application by the defendants to set it aside would have been entirely successful; or it may have been obtained, while the defendant was in the possession of a full and adequate defence; but if the debt upon which it was founded was a bond fide one, its erroneousness, in the absence of fraud or collusion, will furnish no basis for an application on the part of creditors to set it aside.' § 804. Judgments which are not fraudulent, but are simply defective, on account of some irregularity in the process by which they were obtained, are voidable ; that is, they may be avoided by the parties, though creditors and third parties will not be allowed, either directly or collaterally, to contest their validity.*' They can only interfere to dis- ' Baider v. Murray, 1 Phila. 273. Rothenhausler v. Rothenhausler, 6 "W. It is too late, to move to strike off a N. C. 560. judgment, after a sheriff's sale of '^ James u. Jarrett, 1 7 Penn. St. 370. land under it, and the execution of Sloan v. McKinstry, 18 Ibid. 122. a deed to the purchaser. TruUinger v. ' Drexel's Appeal, 6 Penn. St. 272. Mauly, 1 Pears. 235. A judgment en- Hauer's Appeal, 5 W. & S. 473. How- tered against a garnishee, in violation land's Estate, 4 Clark 199. of an injunction to stay proceedings at * Hauer's Appeal, 5 W. & S. 473. law, issued out of the equity side of Lowber's Appeal, 8 Ibid. 387. Drexel's the same court, will be stricken off. Appeal, 6 Penn. St. 272. Davidson v. 456 JUDGMENT. turb and contest void judgments, or those which, being founded in fraud, are treated as having no existence, wherever they trench upon the rights of third persons.' A judgment confessed, for example, bj virtue of a power of attorney, which, having been previously employed for the same purpose, is no power at all, is, between the parties, an invalid judgment ; the defendant could at any time interpose, and have it opened by the court ; and yet, so far as third persons may be concerned, in the absence of fraud, the judgment is good and valid ; a purchaser of real estate, upon which such a judgment is a lien, cannot avoid or impeach it,- for where an interest is subsequently acquired by a third person, with his eyes open, he is not defrauded by what has been done before his time. A judgment entered in the way we have supposed, would not be a fraudulent one, under ordinary circumstances, nor would the debt be a pretended one ; the judgment would simply be erroneous, and neither creditor nor terre-tenant, under the rule that we have laid down would have the right to impeach it, either directly or collaterally.^ Tht judg- ment must be collusive and the debt fictitious, in order that third parties may be enabled to invalidate and destroy it. § 805. A creditor who comes into the court which rendered a judg- ment, with an allegation of fraud or collusion between the plaintiff and defendant, asking permission to contest the validity of the judgment, may secure an investigation in one or other of two ways. He may move for the opening of the judgment, and that he may be let in to make defence, by showing the fact that it was coUusively obtained, or entered with an intention to defraud him (which is said by the supreme court to be " a very irregular and slovenly practice"),' or he may apply to the court to order a feigned issue to be instituted and tried, for the purpose of determining the question of fraud or collusion.* When we speak of attacking a judgment directly, we have reference to one or other of these two methods — that of seeking to open, on simple motion, or contesting its validity by an issue in the court which rendered it. The reader will remember this definition in studying the present question. § 806. The application by a creditor for a feigned issue, under the act of assembly relative to the distribution of the proceeds of a sheriff's sale, to try the validity of a judgment entered against his debtor, must be based on an afiidavit, setting forth that there are material facts in dispute, and also the nature and character of such facts. It is not enough, that the deponent alleges collusion and fraud, but the grounds of this belief must be distinctly and specifically disclosed, in order that the court may judge Thornton, 7 Ibid. 12«. Dickerson's * Kellogg ». Krauser, 14 S. &,R. 137. Appeal, Ibid. 255. Roemer v. Denig, Whiting v. Johnson, 1 1 Ibid. 328. The 18 Ibid. 482. Eiland v. Eckert, 23 Ibid, proper practice is, to try the validity 215. of a judgment, by a collateral issue; ' Lewis V. Rogers, 16 Penn. St. 18. but pretermitted matter of defence, by Thompson's Appeal, 57 Ibid. 175. an issue in the case itself. Gallup v. Clark V. Douglass, 62 Ibid. 408. Reynolds, 8 Watts 424. Clark w. Doug- '' Martin v. Rex, 6 S. & R. 296. lass, 62 Penn. St. 408. • Brown v. Simpson, 2 Watts 239. OPENING JUDGMENT. 457 ■whether the belief is warranted, and whether the case is a proper one for a jury to pass upon.' It is competent for the court to direct the question or questions to be tried — the form of the issue, and the parties to it.^ § 807. It ought to be remarked, that the fraud which will enable creditors directly to avoid a judgment entered against a debtor, does not consist merely of a fraudulent intention ; but the intention, if fraudu- lent, must be followed by some act done in pursuance thereof by the debtor. If the fraudulent intention, in any particular case, co-exist with the act resulting in the defraudment of the creditor, the judgment as against him is absolutely void. Even if a judgment be honest in amount, yet, if it were given and received for a fraudulent purpose, it will be re- garded invalid, if it affect the rights of creditors ; for, in such a case, we have something more than a mere fraudulent intention — -we have an act done in pursuance of the intention, viz., the giving and receiving of the judgment. Then, the judgment is an act tainted with a fraudulent intent, and the law will not allow it to be used, so as to affect any rights that are in a position to question it. Even an honest use of such a judgment would not defeat the right of third parties to object to it ; because a judg- ment obtained in order to defraud creditors, cannot be purified, by merely abandoning the fraudulent purpose, and using it for an honest one. All the benefits of the fraudulent arrangement must be foregone; it must not even be used to obtain an unforbidden preference over them ; it is void- able by creditors, whenever and however it may be used to their pre- judice, because it was made to defraud them. The debtor cannot object, but creditors can, whenever it comes in conflict with their rights.'' § 808. Such are the circumstances under which third parties may impeach judgments directly, on the ground which has been mentioned. We have now to consider briefly, in what cases they have the power and the right to impeach judgments collaterally, i. e., in proceedings col- lateral to those by which they were obtained. It may be laid down as a general and fundamental rule, that a third party has the right to inter- fere with a judgment in a collateral proceeding, on one ground only; viz., that of covin or collusion between the parties to it, in fraud of his rights.^ While it stands as a debt of record, unabated in whole or in part, an antagonistic creditor cannot attack it, for such irregularities as would avail the debtor, on a motion to open, or for any matters of defence, original or subsequent, which the debtor would be entitled to set up, after the judgment should be opened.' Even the debtor cannot, in a collateral inquiry, avail himself of any matters which have been pleaded or given in evidence, or which might have been, in bar of the original action ; and much less can third parties. Where, for example, an attorney confesses judgment against several partners, under an authority derived from only one, it is the duty of the others, to make immediate ' Robinson's Appeal, 36 Penn. St. * Dickerson's Appeal, 7 Penn. St. 81. Battin v. Meyer, 5 Phila. 73. 257. Watson v. Willard, 9 Ibid. 04. * Ringwalt v. Ahl, 36 Penn. St. 336. Postens v. Postens, 3 W. & S. 135. Eddy V. Reed, 4 Phila. 116. ' See supra, I 804. » Bunn V. Ahl, 29 Penn. St. 387. 458 JUDGMENT. application to open the judgment, and they cannot avail themselve? of the defect in the attorney's authority to confess the judgment, in an action brought against them by. the sheriff's vendee of their land for the recovery of possession.' Such a judgment is voidable, and every voidable judgment is binding and conclusive, until reversed or set aside by a legal proceeding, through the intervention of parties or privies thereto.^ The ground upon which the courts have proceeded, in holding that creditors cannot impeach a judgment, for irregularities which the judgment-debtor might have taken advantage of, is the simple one, that the erroneousness of the judgment was no wrong to them. If the debt were a bond fide one, they were not entitled to priority to the judgment; because priority is the debtor's gift ; if the creditor preferred "has not thought it worth while to look to it, that his debt was secured by a pro- per judgment, and if the debtor do not choose to take advantage of the irregularity in the proceeding through which the judgment was obtained, then, certainly, it is no business of the creditor, who has not been pre- ferred, to object. The want of an actual debt, as a foundation for a judg- ment, is an incurable vice, which vitiates it, whenever it comes in conflict with the rights of creditors; the judgment may not be absolutely void, for so long as the debtor interposes no objection the judgment stands ; but as soon as its fraudulent purpose comes into operation, creditors may abate it, because it would sweep away their source of payment.' What is fraud in the judicial sense, and what are the tests of it, we have already considered, in speaking of the cases in which creditors are allowed to attack a judgment in the court which rendered it ; and the same principles apply to those cases in which creditors seek to avoid a judgment, entered to defraud them, in some collateral inquiry.* § 809. A rule to show cause why a judgment should not be opened, does not stay proceedings, without a special order.^ Where, however, a prompt application is made, and the party is in no contempt, a judgment for want of an affidavit of defence will be opened, on the ground of mis- take or accident.' But a judgment can be set aside only for matter ■ Cyphert v. McClune, ?2 Penn. St. shows some negligence or stupidityi 197. hut it is evident, that the defendants '■' Sloan V. McKinstry, 18 Penn. St. were embarrassed by the fact of two 122. Breading v. Boggs, 20 Ibid. 33. suits being brought in different courts, ' Hauer's Appeal, 5 W. & S. 473. and thinking they had done all that * Smith V. Smith, 21 Penn. St. 367; was necessary, by retaining counsel, Lowrie, J. And see Bright. Dig. tit. supposed the summons to relate to the "Fraud." first suit, in which there had been no ^ Spang V. Commonwealth, 12 Penn. service. The affidavit shows a setoff, St. 358. and in cases of prompt application for ^ Blackwood v. Pinley, Dist. Court, relief, especially, we make no distino- Phila., 7 Oct. 1848. Why judgment tion between this and any other kind and fi. fa. should not be set aside. Per of defence ; the law of Pennsylvania curiam. This judgment was taken pre-eminently favors defalcation. The 23d September 1848, for want of an plaintiff is in no worse position, than if affidavit of defence. In such cases, defendants had appeared and taken where the application for relief is this defence ; indeed, he is in a better prompt, the court is liberal. It is true, situation, for he has the lien of a judg- the affidavit in excuse of the default ment as a security ; for, in these cases, OPENING JUDGMENT. 459 appearing on the face of the record.' On opening a judgment, the court may, and ought to, impose terms, confining the party to the grounds set forth in liis affidavit;^ the terms on which a judgment is opened, are wholly a matter of discretion, so that the court has jurisdiction of the subject-matter.^ If the judgment be opened without condition, the bur- den of proof is upon the plaintifi", as in other cases f otherwise, where terms are imposed.' An intermediate revival of the lien, will not affect the defence on the trial.^ It is provided by act of assembly,^ that where a judgment, whether obtained by confession, default or otherwise, is opened, or proceedings are pending to annul the same, the defendant may pay into court a sum sufiicient to cover the amount of the judgment, with interest and probable costs, to abide the determination of the suit ; which, if possible, is to be placed at interest, for the benefit of the parties in interest ; on the termination of the proceedings, whatever may be found due to the plaintifi", is to be paid to him, with its accumulations, and the balance, if any, repaid to the defendant. On such payment into court, an order is. made, discharging the lien of the judgment; which is entered by the prothonotary upon the judgment-docket.* A writ of error does not lie to an order opening a judgment,^ or refusing to open it ;'" but the act of 1877 has given an appeal to either party where the proceeding is regular on its face, we do not set aside, but only open the j udgmeut, and let the defendant into a defence. Fi. fa. set aside, judgment opened and defendant let into a defence. ' Uevereux v. Roper, District Court, Phila., 25 January 1851. Rule to set aside judgment. Per curiam. It is the established practice of the court, only to set aside a j udgment, for matter appearing upon the face of the record. It has not been adopted arbitrarily, but has sound reason in its support. An order of a court setting aside a judg- ment, is subject to a writ of error, and if it be done upon matter dehors the record, how can the grounds of it ap- pear to the court above ? It is true, we proceed by depositions, but that is not essential ; we might hear testimony at bar, and there is no bill of exceptions, nor any mode by which, as a matter of right, the party aggrieved could have the evidence spread upon the record. If the depositions were filed, it is doubt- ful, whether the court of errors could or would re-examine the decision as to matters of fact. There are two things which, in all our rules of practice, it is the especial duty of the court to take care of: (1) To maintain in its purity the constitutional right of trial by jury : (2) To preserve carefully to every suitor, his right to have the law in regard to his case determined in the court of the last resort. Any practice which tends to impair either of these must necessarily be bad. The party seeking to have this judgment set aside has his legal remedies, in the pursuit of which, his opponent will have his right of trial by j ury , and his writ of error to the supreme court, with the benefit of a bill of exceptions. Rule discharged. ^ Gilkysou v. Larue, 6 W. & S. 213. McMurray v. Brie, 59 Penn. St. 223. = Putney v. Collins, 3 Gr. 72. GiUi- land V. Bredin, 63 Penn. St. 393 ; s. c. 67 Ibid. 84. * Dennison v. Leech, 9 Penn. St. 164. West V. Irwin, 74 Ibid. 258. Collins v. Freas, 77 Ibid. 493. ' Cannell v. Crawford County, 59 Penn. St. 196. « Eldred v. Hazlett, 38 Penn. St. 16. ' Act 20 June 1873, P. L. 331 ; Purd. 1887. " The money paid into court must be invested, subject to the decree of the court. Act 25 May 1878, P. L. 156 ; Purd. 2153. ' Bower v. Blessing, 8 S. & R. 243. Hill V. Irwin, 32 Penn. St. 314. Put- ney V. Collins, 3 Gr. 72. ^° Compher v. Anawalt, 2 Watts 490. Skidmore v. Bradford, 4 Penn. St. 296. McKee v. Sanford, 25 Ibid. 105. Henry v. Brothers, 48 Ibid. 70. 460 JUDGMENT. aggrieved by the action of the court, in opening a judgment entered on warrant of attorney, or upon a judgment-note, which is to be determined on equitable principles.' If proceedings be stayed, and the defendant do not pay money into court, it seems, that an order may be made for a sale of the property, if of a perishable nature, and a payment of the avails into court.^ IX. Transfer of judgments. § 810. In addition to the other remedies provided by law, it is en- acted by the act of 1840,^ that any judgment obtained in any court of common pleas in Pennsylvania,* may be transferred to any other court of common pleas within the commonwealth, by filing of record therein a certified copy of the whole record in the case. And the prothonotary receiving such certified copy of a judgment of another court, or of a judgment entered therein, by transcript from a justice of the peace, is required to file the same, and forthwith transcribe the docket-entry thereof into his own docket. The case may then be proceeded in, and the judgment and costs collected, by execution, bill of discovery, or attach- ment ; and as to lien, revival, execution, &c., it has the same force and effect, and no other, as if the judgment had been entered, or the transcript had been originally filed, in such court. By another statute,^ it is en- acted, that such transfer shall not impair the lien of the original judgment ; and by the act of 1845,'' that where either of the parties to the judgment has died, such transfer may be made, either before or after the substitution of his personal representatives ; and such substitution may be made in the court to which the judgment is transferred, which may then proceed thereon, as in case of an original judgment entered in such court.^ § 811. It will be perceived, that the act of 1840 requires the whole record to be certified by the prothonotary. The certificate must purport to authenticate an exemplification of the record ; a mere copy of the docket-entry, certified to be as full and complete as the same remains of record in the court, is not such a transcript as the act requires, and a judgment and execution upon it are invalid.^ And upon its being shown to the court, that the whole record was not certified, and that pro- ceedings were pending and undetermined in the county where the judg- ment was obtained, an execution issued upon such certificate will be set aside.' But, if it be duly certified, the court of the county to which the 1 Act 4 April 1877, P. L. 53 ; Purd. Purd. 822. 2115. The plaintiff is not entitled to an " Act 16 April 1845, ? 11, P. L. 540 ; appeal, until after a trial of the issue. Purd. 822. Citizens' Building Association v. Hoag- ' To the same effect is the decision land, 35 Leg. Int. 403. of the supreme court in Waltu. Swine- ^ Spang V. Commonwealth, 12 Penn. hart, 8 Penn. St. 97 ; but the report St. 359. does not show whether the transfer was * Act 16 April 1840, P. L. 410 ; Purd. made before or after the passage of the 821. act of 1845. * Extended to judgments in the su- * Updegraff v. Perry, '4 Penn. St. preme court, by act 2 April 1841, § 11, 291 ; s. c. 1 Clark 365. P. L. 142 ; Purd. 822. » Bank of Chester County v. Olwine, 5 Act 4 April 1843, J 7, P. L. 132 ; 3 Clark 507. THAKSFEB OF JUDGMENT. 461 judgment is transferred, has no jurisdiction over it, except for purposes of execution and satisfaction ; it cannot inquire into its merits at all ; the court in which the primary judgment was obtained, can alone take any action operating on the judgment itself; and if that court direct satisfaction to be entered, on payment of the money into court, all fur- ther process on the secondary judgment must be arrested, except for its own costs, in a. proper case.' The transferred judgment does not become a judgment of the court in which it is entered ; it is but evidence of a judgment in the court in which it was originally obtained ; and the power of the other court is restricted to the enforcement of it;^ it can- not be thence transferred to a third county .•'' Such transfer creates a new lien from the date of its entry ; but it does not carry with it the lien of the original judgment ;■■ and such lien continues for the full period of five years from the filing of the transcript.^ § 812. If the original judgment be stricken ofi", or set aside for irregu- larity, a transferred judgment falls with it ;* and a new judgment obtained in the original case is not a lien in the county in which the transcript was first entered f but a stay of proceedings granted by the court in which the original judgment was obtained, will not affect a pending execution issued on the transferred judgment.* An execution cannot be issued on a judgment so transferred, whilst one is outstanding in another county ; until returned, the law presumes the first execution to be a satisfaction of the debt;' nor can an execution be issued on the transferred judgment, where there has been a levy on real estate, by vir- tue of an execution issued in the original county, which has not been sold under a venditioni exponas, nor the levy set aside.'" § 813. The supreme court having decided that an award of arbitrators could not be transferred, in order to create a lien, before the expiration of the twenty days allowed for an appeal," the act of 1876 was passed, to remedy this defect in the law.'^ It provides, that an award may be transferred, for the purposes of lien, either' before the time limited for an appeal has expired, or after an appeal has been entered, by filing a cer- tified copy of the whole record in the case. If an appeal be entered, after such record has been transferred, it is made the duty of the plain- tifi", within twenty days thereafter, to file with the transferred record, a certificate of the entry of such appeal ; which is to be forthwith tran- scribed upon the docket. Upon judgment entered upon the appeal, or upon a satisfaction of the judgment, the plaintifi" must, within twenty days thereafter, file a certificate of such judgment or satisfaction; and auy neglect on his part to file such certificate, within the time pre- ' King V. Nimiok, 34 Penn. St. 297. « Baker v. King, 2 Gr. 254. '^ Brandt's Appeal, 16 Penn. St. 343. ' Leedom u. Jones, 1 Leg. &Iu8. Rep. Gordon's Estate, 9 Phila. 350. 85. » Mellon V. Guthrie, 5 1 Penn. St. 116. '» Ames Plough Co. v. Lloyd, 2 W . N. * Hays's Appeal, 8 Penn. St. 182. C. 488. * Knauss's Appeal, 49 Penn. St. 419. " Hallman's Appeal, 18 Penn. St. 6 Banning v. Taylor, 24 Penn. St. 310. 297. Brandt's Appeal, 16 Ibid. 343. '■' Act 5 May 1876, P. L. 110; Purd. ' Brandt's Appeal, ut supra. 2027. 462 JUDGMENT. scribed, will entitle the defendant, or anj^ other person interested, to have such transferred record stricken off. After judgment, the plaintiff may proceed upon the transferred record, for its collection, by execution, bill of discovery or attachment, as if it were a judgment of the court to which it had been so transferred.^ A decree in equity for the payment of money, cannot be transferred to another county, for the purpose of creating a lien.^ X. Satisfaction of judgments. § 814. When a judgment is satisfied, by payment, voluntarily made, or enforced by execution, the defendant is entitled to have satisfaction acknowledged and entered of record. The plaintiff's attorney, under his general authority, may receive payment, and enter satisfaction of a judgment; and his authority to do so, is not limited, as in England, to a year and a day after judgment.^ A married woman may enter satisfac- tion on a judgment given to her dum sola.* To enforce this duty, the act of 1791 provides' that every person having received satisfaction for his or their debt or damages, recovered by judgment in any court of record within this commonwealth, shall, at the request of the defendant in the action, or of his legal representatives, or other persons concerned iu interest therein, on payment of the costs of suit, and on tender of his rea- sonable charges, and the costs of office for entering satisfaction, within eighty days after such request made, enter satisfaction of the judgment in the office of the prothonotary of the court where such judgment was entered, which shall for ever thereafter discharge, defeat and release the same. A payment to the prothonotary will not discharge a judg- ment by confession ; he has no authority to receive it ;" but payments made to the sheriff, before the return-day of an execution, and indorsed on the writ, are a satisfaction joro tantoJ § 815. An entry on the docket, by the plaintiff, of "ended and debt and costs paid," is equivalent to an entry of satisfaction, and may be pleaded in bar of another action for the same cause.^ But where a third party pays a judgment, with the intention of taking a transfer of it, though none be taken, it is not a satisfaction.^ And a judgment is not extinguished, as a personal security, by an omission of the plaintiff to claim out of the proceeds of the defendant's lands.'" Where a party recovers the proceeds of an execution in currency, which ought to have ' Act 5 May 1876, P. L. 110; Purd. Purd. 824. 2027. " Baer w, Kistler, 4 Rawle 366. " Brooke D. Phillips, 83 Penn. St. 183. ' Slusher ». Washington County, 27 ' Reinholdt v. Alberti, 1 Binn. 470. Penn. St. 205. And see Wood v. Van- In Philadelphia, the entry of satisfao- arsdale, 3 Rawle 401. tion must be attested by the pro- * Phillips u. Israel, 10 S. & R. 391. thonotary, or one of his clerks, with An entry of the word "settled" upon the date of the entry. Rule xxix. the judge's trial-list, not transferred to 5 106. the record, has not such eflPect. Moore ' Eckert v. Lewis, 4 Phila. 224. Or b. Kline, 1 P. & W. 129. subsequent to her marriage. Act 25 " Campbell's Appeal, 29 Penn. St. Mav 1878, P. L. 152; Purd. 2136. 401. ^'' Act 13 April 1791, ? 14, 3 Sm. L. 32 ; i« Strorble v. Cleaver, 1 Am. L. J. 74. SATISFACTION OF JUDGMENT. 463 been paid in specie, and enters satisfaction, he is concluded.^ And if a trustee, witli funds, pay an execution to the sheriif, who indorses satis- faction on his writ, the trustee cannot subsequently take an assignment of the claim, and enforce the execution.^ § 816. The act of 1791 further provides, that if the party who has recovered judgment, having received satisfaction as aforesaid, by him- self or his attorney, shall not, within eighty days after request, and pay ment of the costs of suit, and tender of charges, repair to the ofBce of the prothonotary, and there enter satisfaction, he shall forfeit and pay to the party aggrieved, any sum of money, not exceeding one-half of the debt or damages adjudged and recovered, to be sued for and de- manded by the defendant, or persons damnified, in like manner as othei debts are recoverable by law. Proof of payment of the debt before the entry up of judgment, by virtue of a warrant of attorney, will not sup- port an action under the statute.^ An action will lie to recover the penalty, notwithstanding an order of court, staying an execution, on payment of the debt and costs to the sheriff; this is not such a satisfac- tion as the statute requires.'' An action lies, under the statute, for not entering satisfaction upon a judgment on scire facias on a mortgage, upon request; and the plaintiff need not show actual damage.^ A justice's court has no jurisdiction of an action for the penalty.^ Where there is a special agreement to satisfy a judgment, the defendant may recover his actual damages for a breach ; he is not restricted to the amount of the statutory penalty.' § 817. It is provided by statute,* that where the amount due on any judgment entered of record, together with interest and costs, shall have been paid to the legal holder thereof, and the judgment-bond or note, indorsed in the presence of two witnesses, that the same is satisfied and discharged, shall be produced to the prothonotary, together with a certi- ficate of the president judge of the county allowing the same, to enter satisfaction on the record and file the papers, including the judgment- bond, &c., in his office. By another act,' it is made the duty of the court, when the money has been made upon an execution, to direct the prothonotary to enter satisfaction upon the judgment-docket, on the application of any party in interest. And by the act of 1876,'° it is pro- vided, that in all cases where a judgment shall be entered in any court of record in this commonwealth, whether originally or by transfer from any other court, the court having jurisdiction shall, upon application by the defendant or defendants in such judgment, or of his, her or their legal representatives, or other person or persons concerned in interest ' De Crano v. Musselman, 7 Phila. * Zeigler v. Gram, 13 S. & R. 102. 208 ' Chamberlain v. Sloan, 3 W. N. C. 2 Kuhn V. North, 10 S. & R. 399. 51S. Keller v. Leib, 1 P. & W. 220. " Act 11 April 1856, P. L. 304; » Braddee v. Brownfield, 4 Watts Purd. 825. 474. » Act 27 March 1865, P. L. 52; * Allen V. Conrad, 51 Penn. St. Purd. 825. 487 '» Act 14 March 1876, P. L. 7 ; Purd. 6 Henry v. Sims, 1 Whart. 187. 2027. 464 JUDGMENT. therein, setting forth, under oath, that the same, with all legal costs accrued thereon, has been fully paid, grant a rule ou the plaintiff or plaintiffs, to show cause why the said judgment should not be marked satisfied of record, at his, her or their costs ; and, upon the hearing of such rule, should it appear, to the satisfaction of the court, that such judgment has been fully paid, as set forth in the application of the defendant or defendants, the court shall direct the prothonotary to mark such judgment satisfied of record ; and also enter a decree, requir- ing the plaintiff or plaintiffs to pay all costs incurred in the premises. It has been decided, that to warrant an order to mark a judgment satisfied, under this act, the evidence of payment must be clear and satisfactory ; otherwise, an issue will be awarded ;' the act is only intended to give a summary remedy, where the facts are not disputed ; where there is a substantial dispute about the facts, the court will not decide it.2 § 818. A further remedy is provided, in the city of Philadelphia, by the act of 1851,^ which enacts, that when it shall be made known, by petition, to any court in the said city and county, in which any judgment or decree for the payment of money has been obtained, that more than ten years have elapsed since the rendition of such judgment, or making of such decree, and that the same has been paid by the defendant or defendants, person or persons against whom the same has been rendered or made, or by some other person, or has been settled or compromised by the payment of a less sum than the amount of such judgment or decree, or by the transfer of property, rights or credits, received in full thereof, or in settlement and satisfaction thereof; it shall be the duty of such court to examine into the facts set forth in the petition, and upon being satisfied of the truth thereof, to direct the prothonotary of such court, upon the payment of the costs, if any, due to him upon such judgment or decree, to enter satisfaction upon the record thereof; which entry of satisfaction shall have the same effect as if made by the plaintiff or plaintiffs in the judgment, or the person or persons entitled to the benefit of the same, or by the complainant or complainants, or person or persons entitled to the benefit of such decree. It is the duty of the court to which any such petition is presented, to direct notice of the presenting of the same to be given to the attorney-at-law by whom the action, suit, bill or proceeding in which such judgment or decree has been obtained, was brought or instituted, and if he be dead, then to the plaintiff or plaintiffs, complainant or complainants, or to his or their executors or administrators, if any there be ; or, if he, she or they cannot be found in the county where such judgment or decree has been obtained, and the fact shall be so returned by the sheriff of said county, notice to all parties interested in such judgment or decree shall be directed by the court to be published in one or more newspapers published in the said county, or in any other place or places in addition thereto, so often as 1 Hawk M.Spade, 24 Pitts. L. J. 200. » Act 14 April 1851, ^ 2, P. L. 612.; = Horton v. Hopf, 4 W. N. C. 381. Purd. 824. SATISFACTION OF JUDGMENT. 465 shall be deemed proper." The court to which any such petition is so presented, may in its discretion, refer the same, and any answer or plea to it which may be filed, to an auditor, to take the testimony and report as to the truth of the facts set forth therein ; or may direct an issue, to ascertain the truth thereof by the verdict of a jury, which issue is subject to all the laws made on the subject of feigned issues.^ § 819. If an entry of satisfaction be made upon the record by mistake, fraud, or by falsely personating the plaintifi", the court has power, upon proof of the facts, and notice to the parties, to strike off such improper entry;' but such order must be made with a saving of the rights of intervening parties.* Thus, where a mortgage had been taken in place of a judgment, under a mistake as to the estate of the mort- gagor, the court struck off the entry of satisfaction, upon a surrender of the mortgage, saving intervening rights.' But the court will not strike off an entry of satisfaction, for matter subsequent, where there was neither fraud nor mistake, without an issue.^ An entry of satisfaction may be impeached by a third person, who was not a party to it.' ' Act 14 AprU 1851, p, P. L. 612; Purd. 825. 2 Ibid. ? 4. » Murphy v. Flood, 2 Gr. 411. Mc- Kinney v. Fritz, 2 W. N. C. 173. But there must be a direct proceeding for that purpose ; the entry of satisfaction cannot be collaterally avoided. Komain V. Garth, 3 Hun 214. * Crouthamel v. Silberman, 1 W. N. C. 131. ' Welsh V. Brown, 1 L. Bar, 10 March 1870. « Schnitzler v. Hammill, 1 W. N. C. 471. ' Stahl V. Jarrett, 2 Rawle 449. VOL. I.- -30 CHAPTER XXVI. Proceedingi^^jn Error. I. JUKISDICTION IN EEEOR, J 820. Authority to review errors, § 820. When a writ of error lies, § 820. Of the writ of certiorari, § 821. Distinction between the writs, §822. When the remedy is by appeal, §823. II. To WHAT JUDGMENT EEROK LIES §824. Final judgment, § 824. When error does not lie, § 825. Matters of discretion, § 826. Special statutory regiUations, § 827. in. Who mat maintain error, § 827. Party aggrieved, § 828. Eelease of errors, § 828. Parties in interest, § 829. Several parties, § 830. Several writs of error, § 831 IV. Limitation in error, § 832. Within what time error must be brought, § 832. Practice when sued out too late, §832. When the judgment void, § 832. Eule to limit error by plaintiff in ejectment, § 833. Limitation of right of appeal, § 833. Powers of the court, § 834. V. Issuing of the "writ, § 835. Praecipe for writ of error, § 835. • Form of the writ, § 836. Special allocatur, § 837. Of the afSdavit, § 838. VI. Bail in error, § 839. When required, § 839. Amount of security, § 840. Form of recognisance, § 840. By corporations, § 840. Justification of bail, § 841. Responsibility of bail in error, §841. Exception to bail in error, § 842. VII. Supersedeas, § 843. When a writ of error is a superse deas, § 843. When it supersedes an execution, §844. Not a bar to an action on the judg- ment, I 845. VIII. Return op the writ, § 846. How the record is to be made up, §846. Non-pros, for default, § 846. When tlie other party may bring up the record, § 846. IX. Amendment and motion to QUASH, § 847. When the writ is amendable, § 847. Motion to quash, § 848. Grounds for quashing the writ, §848. X. Abatement op the writ, § 848. When a writ of error abates by death, § 849. Or by marriage, § 849. XT. DiMiNtjTiON OP record, § 850. When a certiorari will be awarded, §850. Effect of the retm-n, § 850. May be granted after issue joined, §850. XII. Assignment op errors, § 851. Time for assignment of errors, §851. How eiTors are to be assigned, §851. Sufficiency of assignment of errors, §852. Errors of fact, § 853-4 Errors in law, § 855-6. Appeal and certiorari, § 857. XIII. Pleadings in error, § 858. Rule to plead, § 858. Defendant may plead or demur, §858. (467) EEEOE. In nuUo est erratum, § 858. Special pleas in error, J 859. Pleas to errors in fact, | §60. XIV. Of THE HEARING, J 861. Argument-list, g 681. List of short causes, J 862. Hour-list, § 863. Paper-books on writ of error, § 864. On case stated, § 864. On appeal, ? 865. On certiorari, § 866. History of the case, § 867. Brief of argument, § 867. Defendant's paper-books, § 867. Penalty for default, ^ 867. Service of paper-books, § 868. XV. Judgment and venire de novo, §869. Judgment of affiimance or reversal, § 869. Modificationof the judgment, § 870. Procedendo, when awarded, | 871. Venire facias de novo, J 872-3. XVI. Eemittitue, i 874. Proceedings on a remittitor, | 874. Powers of the court below, J 875. When the record may be recalled, §875. XVII. Costs in error and damages, §876. Statutes giving costs in error, § 876. Do not extend to a reversal, | 877. Damages and expenses, on affiiin- ance, where tlie writ is sued out for delay, § 878. XVIII. Restitution, § 879. When restitution will be ordered, §879. Foi-m of the writ, § 880. When order to be made, § 880. What will be restored, § 881. Nature of the writ, § 882. Lien, § 882. XIX. Error coram voeis, § 883. When error coram vobis lies, § 883. Practice and proceedings on the writ, § 884. XX. Error in criminal cases, § 885. Exceptions in criminal cases, § 885. Eight to writ of eiTor, | 885. When a stay of proceedings, J 885. When special allocatur required, § 885-6. When bail to be given, § 886. Powers and duties of the supreme court, § 887. When special allocatur granted, §888. Proceedings on affirmance or re- versal, § 888 XXI. Certiorari to justices, § 889. Nature of the writ, § 889. Exclusive jurisdiction, § 890. Affidavit, § 891. Bail, § 892. Limitation, § 893. Service and retm-n, § 894. Assignment of erroi-s, § 895. Grounds of reversal, § 896-8. Hearing, § 899. Judgment, § 900. Execution, § 901. Costs, §902. I. Jurisdictloii in error. § 820. After an adverse decision in a court of inferior jurisdiction, a party has, in general, a right to a review of the proceedings, and the cor- rection , of any errors therein, by the supreme court. " The judicial authority of this court extends to the review and correction of all pro- ceedings of all inferior courts, excSpt where such a review is expressly excluded by statute, in accordance with the constitution ; and we may issue all sorts of process, and use and adopt all sorts of legal forms that are necessary to give effect to this supervisory authority."' The ordi- nary means of reviewing the judgment of a subordinate court, in a civil case, are by writ of error or certiorari ; the appeal and bill of review are properly equitable remedies, and will only be incidentally noticed. A writ of error is an original writ issuing out of the supreme court ; and lies where a party is aggrieved by any error in the foundation, proceed- > Gosline v. Place, 32 Penn. St. 523 ; Lowrie, C. J. JURISDICTION. 469 ings, judgment or execution of a suit, in a court of record, aud the pro- ceedings to be removed were according to the course of the common law ;' either in the first instance, or have assumed a common-law shape subse- quently.^ And whenever a new jurisdiction is created by statute, and the court or judge that exercises this jurisdiction acts as a judge or court of record, according to the course of the common law, a writ of error lies to their judgment.^ It lies in all cases in which a court of record has given a final judgment, or made an award in the nature of a judgment ;* a judgment of the common pleas can only be reviewed by writ of error.' § 821. A certiorari lies, where the proceedings are not according to the couree of the common law ; or where the court is not one of record.^ Whenever a new jurisdiction is created by statute, and the court or judge exercising it proceeds in a summar)' method, or in a new course different from the common law, a ceHioran lies f as, where summary pro- ceedings are authorized by statute, to be taken before a justice, against a turnpike company, for neglecting to repair.* And it is said, that it lies in all judicial proceedings, where a writ of error does not lie f such as, proceedings for the assessment of damages occasioned by the construc- tion of a railroad ;^'' summary proceedings by landlord against tenant ;" by a purchaser at sheriff's sale, to obtain possession ;'^ against a husband, for the desertion of his wife and family ;'" to review proceedings for cou- ■ tempt ;^* and in insolvency ;'° and to examine into the regularity of the proceedings in a contested election case, but not to rejudge the merits.'* § 822. A writ of error lies, in general, upon every judgment at common law. The only cases of difiiculty are, where the proceedings have been of a mixed character, and in these, it may be said, that the process of re- view is to be determined by the form which the proceedings have assumed, at the time the review is to be had. The judgment of the common pleas, therefore, quashing an inquisition in a case of lunacy is to be reviewed on certiorari, but judgment after issue on a traverse of the inquisition may be reviewed on writ of error.'' So, error lies to the com- mon pleas, in a case brought into that court by certiorari to two justices, under the landlord and tenant act ;'* to judgment on the verdict of a jury 1 Tidd 1134. "* Sohuler v. Northern Liberties and ' Commonwealth v. Beaumont, 4 Penn Township Railroad Co., 3 Whart. Kawle 368. 555. 5 Ruhlmanu. Commonwealth, 5 Binn. " McClure v. AVhite, Add. 192. 24 Baker v. Williamson, 2 Penn. '^ Lenox v. McCall, 3 S. & R. 95. St. 116. " Overseers v. Smith, 2 S. & R. 363. * Commonwealth v. Judges, 3 Binn. " Hummel's Case, 9 Watts 416. 273_ Commonwealth v. Newton, 1 Gr. 453. "* MoClemmons u. Graham, 3 Binn. 88. '* McDonough's Case, 37 Penn. St. " Gosline v. Place, 32 Penn. St. 520. 275. See Ex parte Rosenbach, 34 Leg. ' Ruhlmant). Commonwealth, 5 Binn. Int. 305. Binn, 24. Commissioners' Appeal, 57 " Chase v. Miller, 41 Penn. St. 403. Penn. St. 452. Sheppard's Case, 65 Ibid. 20. 8 Wilt V. Philadelphia and Lancaster " Commonwealth v. Beaumont, 4 Turnpike Co., 1 Brewst. 411. Rawle 356. McGinnis v. Common- ' Philadelphia and Trenton Railroad wealth, 74 Penn. St. 245. Co., 6 Whart. 41 ; Gibson, C. J. '' Clark v. Yeat, 4 Binn. 185. Clark 470 EEEOE. on an appeal from an inquisition finding damages for taking or injury to property, by a corporation, under the act incorporating it ;' in all cases of feigned issue, without prejudice to the right of appeal from the final judgment or decree ;" and to the judgment of the court of quarter sessions, on appeal from an order of removal.' So, a proceeding by attachment against a vessel is a civil suit, and when judgment has been entered on the verdict of a jury, a writ of error lies.* The supreme court cannot acquire jurisdiction in error, by agreement of counsel." § 823. An appeal, on the other hand, lies from a decree of divorce;^ in a case of domestic attachment ;' from a decree distributing the proceeds of a sheriflT's sale, without the intervention of a jury ;' from a decree awarding a sale of real estate, under the act of 1853 ;' from an award of arbitrators, under the compulsory arbitration law ;'" from the settlement of a public account, by the accounting oflScers;" from the reports of • county auditors ;'^ from the decision of the court, on an application to open a judgment, entered by virtue of a warrant of attorney ;" to review a decree of subrogation ;" and in many other cases in which such remedy is specially provided by statute. And this distinction is important, inas- much as on a writ of error or certiorari, nothing can be reviewed but error in law upon the face of the record, whilst an appeal brings up the entire case.'" A writ of error does not lie, where the party might have had a remedy by appeal,'^ except where otherwise provided by statute. But certiorari, not appeal, is the proper means to review a decree of the quarter sessions respecting the expenses of a pauper ;^' so, a certiorari lies, to remove the record of the common pleas, after judgment on a certi- orari to a justice, on a prosecution for a penalty under the road laws.^^ V. Patterson, 6 Ibid. 128. And in pro- Purd. 520. Lewis v. Wallick, 3 S. & ceedings by a purchaser at sheriff's R. 410. sale to obtain possession. Cooke v. * Act 16 June 1836, ? 89, P. L. 777 Rinehart, 1 Rawle 317. Purd. 657. '■ Schuylkill Navigation Co. v. Tho- ' Act 18 April 1853, ? 8, P. L. 508 burn, 7 S. &R. 411. Purd. 1245. ' Act 12 February 1869, P. L. 3 ; '» Act 16 June 1836, ? 27, P. L. 723 Purd. 604. Purd. 85. » Act 16 March 1868, P. L. 46 ; " Act 30 March 1811, ? 11, 5 Sm. L. Purd. 603. This act applies to the trial 230; Purd. 1188. of the issues on the appeal, not to a ^* Act 15 April 1834, § 56, P. L. 547 motion addressed to the discretion of Purd. 301. the court — as, to strike off the appeal. " Act 4 April 1877, P. L. 53 ; Purd, Sugar Creek v. Washington, 62 Penn. 2115. St. 479. » Steele's Appeal, 72 Penn. St. 101 * The Portland, 2 S. & R. 197. '" McClemnionsw.Graham,3Binn.89 " Hutchinson v. Rutledge, 14 Pitts. L. " Elliott v. Sanderson, 1 P. & W. 74, J. 16. McKee v. Sanford, 25 Penn. Snyder v. Kunkleman, 2 Watts 426. St. 105. Kelsey v. Forsyth, 21 How. " Walker v. West Buffalo, 11 Penn 85. St. 95. « Act 13 March 1815, § 13, 6 Sm. L. '» Commonwealth v. Betts, 76 Penn 289; Purd. 511. Miller v. Miller, 3 St. 465. Ruhlman k. Commonwealth, Binn. 30. Robbarts v. Robbarts, 9 S. & 5 Binn. 24. But see Commonwealth v. R. 191. Burkhart, 23 Penn. St. 521, where a ' Act 13 June 1836, J 43, P. L. 615 ; writ of error was sustained. FINAL JUDGMENT. 471 II. To what error judgment lies. § 824. JFinal judgment. A writ of error lies only to a final judg- ment, or what is equivalent thereto,' except in special cases, where it is given by statute, as on a judgment quod partitio fiatf or the refusal of judgment for want of a sufficient affidavit of defence.^ In this respect, it differs from a certiorari, which lies at any stage of the proceedings ; a certiorari, however, from the common pleas to an alderman or justice of the peace, lies only after judgment ; it is, therefore, in the nature of a writ of error, and will be treated of hereafter.^ A final judgment is such a one as will, if undisturbed, preclude further proceedings in the cause ; and the object of the rule is, to prevent a multiplication of suits by a removal to the supreme court, on suggestion of error, in every stage of the proceedings.' A judgment nisi, therefore, is final, though before the expiration of the four days, for the purposes of writ of error. The fol- lowing have also been held to be final judgments for purposes of review: an arrest of judgment ;° an order reducing the amount of judgment;' or making an assignment of a judgment against a principal and bail to the sureties of such principal f an order awarding,' quashing'" or indefinitely staying" execution ; and an order dismissing an appeal from the judg- ment of a justice.'^ In the orphans' court, the words of the statute give an appeal from any "definitive sentence or decree," and this expression is somewhat larger than "final judgment;" accordingly, it is held, that an appeal lies from an order appointing a guardian,'^ an order of sale,'* and an order of confirmation of any account of an executor, &c., whether final or otherwise.'^ § 825. Error will not lie, however, to the action of the court below, in opening,'^ or refusing to open, a judgment f nor on an order to stay pro- ' Co. Litt. 228 b. Hill v. Irwin, 32 « Skinner v. Robeson, 4 Yeates 377. Penn. St. 314; Thompson, J. It does Benjamin ». Armstrong, 2 S. &R. 392. not lie to an interlocutory judgment, ' Fitzgerald «. Caldwell, Add. 119. for want of an appearance, where the ' Burns v. Huntingdon Bank, 1 P. & damages have never been liquidated. W. 395. Snyder v. Flanigan, 6 Leg. & Ins. Rep. ' Harger v. Washington County, 12 11. Nor, until final judgment against Penn. St. 251. Bunce v. Wightman, all the defendants. Chadwiok v. Ober, 29 Ibid. 335. 70 Penn. St. 264. " Pontius v. Nesbit, 40 Penn. St. 309. ^ Act 5 April 1842,^ 15, P. L. 236; " O'Hara v. Pennsylvania Railroad Purd. 603. Co., 2 Gr. 241. ^ Act 18 April 1874, P. L. 64 ; Purd. " Beale v. Dougherty, 3 Binn, 436. 1873. Under this statute, the court will " Senseman's Appeal, 21 Penn. St. not reverse, except for clear error of 331. law. Griffith v. Sitgreaves, 2 W. N. C. " Hess's Appeal, 1 Watts 255. 707. And see Philadelphia ». Phila- '* Rhoads's Appeal, 39 Penn. St. 186. delphia and Reading Railroad Co., 3 ■* Bower v. Blessing, 8 S. & R. 243. Ibid. 492. The practice in such case Hill v. Irwin, 32 Penn. St. 314. Put- is, to dismiss the writ, without preju- ney v. Collins, 3 Gr. 72. dice. Chartiers Railway Co. v. Hod- " Compher v. Anawalt, 2 Watts 490. gens. 77 Penn. St. 187. Nice v. Bovnnan, 6 Ibid. 26. Kalbach ♦ See infra, ? 889. »• Fisher, 1 Rawle 323. Braddee v. " Lewis V. Wallich, 3 S. & R. 411 Brownfield, 2W. & S. 271. Skidmore 472 EEEOE. ceedings on a judgment, until the determination of a pending' proceeding, "subject to such further order of the court as the justice of the case may then require ;"^ an order setting aside a reference and award f a refusal to set aside an execution, where nothing on the record shows irregu- larity f a refusal to appoint auditors, on petition by creditors, against the representatives of a trustee of an insolvent ;* a judgment qaod computet, in an action of account-render f a refusal to strike off an appeal from a justice, or from an award of arbitrators ;* an opinion of a court on a case stated, where it does not appear that any judgment was rendered f a decision upon a plea of nul tiel record, upon which no judgment had been entered ;' a judgment, or even a decree in the orphans' court, entered pro /o»T«d and without prejudice, as this is, in effect, making the supreme court a court of primary jurisdiction f nor on a decree of the orphans' court, ordering a trustee to file an account.^" And on a motion for summary relief, there is no bill of exceptions to evidence, and, there- fore, no writ of error.^^ § 826. Matters of discretion. A writ of error does not lie on any- thing that is matter of discretion in the court below 0-^ therefore, where a case is submitted, by agreement of parties, to the discretion of the court, no writ of error lies ;" and where the decision is committed by the law to the discretion of the primary courts, not even consent of parties can give the supreme court jurisdiction." The principal matters that have been held to be within the discretion of the inferior courts, and, therefore, not reviewable on error, are the allowance or refusal of new trials ;'^ and the reasons are not reviewable, even though the court file V, Bradford, 4 Penn. St. 296. MoKee Nor to the finding of the court, in a case V. Sanford, 25 Ibid. 105. Henry v. tried without a jury, until after final Brothers, 48 Ibid. 70. Jones v. Dil- judgment; the case is subject to exoep- worth, 63 Ibid. 447. The act 4 April tion in the court below. Common- 1877, P. L. 53 ; Purd. 2115, gives an ap- wealth v. Mitchell, 80 Penn. St. 57. peal from the decision of the court, on ' Kerr v. Pittsburgh, 11 S. & R. 359. an application to open a judgment en- West's Appeal, 3 Ibid. 92. These de- tered on a warrant of attorney. oisions have not been expressly over- ^ O'Hara v. Pennsylvania Railroad ruled, but they are disregarded in prac- Co., 2 Gr. 241. tice. ■'■ Erie Bank «. Brawley, 8 Watts 530. "> Eckfeldt's Appeal, 13 Penn. St. Ranck v. Whitaker, 4 W. N. 0. 69. 171. Nor to an order reinstating an appeal ^' Rogers v. RatclifiFe, 23 Penn. St. from an award, which had been stricken 184. Calhoun u. Logan, 22 Ibid. 47. off. Straub v. Smith, 2 S. & R. 382. Aurentz v. Porter, 48 Ibid. 335. ' Neil V. Tate, 27 Penn. St. 208. '^ Renninger v. Thompson, 6 S. & R. Gamble v. Woods, 53 Ibid. 158. 1. Weidkneoht v. Boyer, 2 W. N. C. * WooUey's Estate, 6 Penn. St. 351. 638. Gallagher u. Miller, 4 Ibid. 165;. 5 Beitler v. Zeigler, 1 P. & W. 135. s. c. 34 Leg. Int. 355. « Kendriok v. Overstreet, 3 S, & R, " Rogers v. Whiteley, 38 Penn. St. 357. Gardner v. Lefevre, 1 f . &A¥. 73. 137. Barclay v. Colwell, 4 AV. N. C, 440. » McKee ». Sanford, 25 Penn. St. ' Harper v. Roberts, 22 Penn. St. 105. 194. Nor to a judment on a case stated, •* Werkheiser ». Werkheiser, 6 W. & without a stipulation to that effect. S. 184. Thompson v. Barkley, 27 Hughes V. Peaslee, 50 Ibid. 257. Penn. St. 263. Howser v. Common- " Taggart v. Cooper, 1 S. & R. 502. wealth, 51 Ibid. 332. DISCEETION. 473 them of record under the statute ;^ refusal to take off a nonsuit ;^ the supervision of a sheriff's sale and the acknowledgment of his deed;^ defects of description in a levy;* allowing one judgment to be set off against another f the granting or refusing of an issue to inform the con- science of the court f the amount of security for an appeal from a decree of the orphans' court f refusal of stay of proceedings in a hail- bond suit, or until payment of costs in a former suit f the question of whether its own rules have been obeyed — as, whether the witnesses ex- amined were going witnesses, as specified in the rule ;' the amendment of its own records f^ the allowance or disallowance of change of pleas, and other amendments,*' except amendments of right under the acts of assembly j*^^ and generally, matters of practice, and the control and direc- tion of trial and its incidents, such as the ordering of a cause for trial or continuance ;*' refusal of a continuance, on the allowance of an amend- ment ;'* refusal to postpone the trial of a case, until after that of one lower on the list, on which it is alleged to depend, unless there be a violation of a plain legal right ;'^ allowance or refusal of a discontinuance ;'^ the order of addressing the jury;*'' the course of examination of witnesses ;'' the order of evidence, such as the introduction of rebutting testimony, the reading of a deed, before proof of its execution, &c. ;'' the introduc- 1 Burd V. Dansdale, 2 Binn. 80. AVright V. Small, Ibid. D3. Burke v. Young, 2 S. & R. 3K3. Cathoart v. Commonwealth, 37 Penn. St. 108. Stokes V. Burrell, 3 Gr. 241. ■'■ Wallace v. Cooper, 2 Watts 108. ' Sloan's Case, 8 Watts 194. Bees V. Berryhill, 1 Ibid. 263. Braddee v. Brownfield, 2 W. & S. 271. Laird v. McCarter, 2 W. N. C. 213. The set- ting aside of a sheriff's sale. Young's Appeal, 2 P. & W. 380. Hoffa's Ap- peal, 82 Penn. St. 297. In special cases, the supreme court will review the action of the orphans' court as to their discretion in setting aside a sale ; but in such case, a special allocatur will be re- quired. Haslage's Appeal, 37 Ibid. 440. * Donaldson v. Bank of Danville, 20 Penn. St. 24.5. 5 Wellock V. Cowan, 16 S. & R. 318. Burns v. Thornburgh, 3 Watts 78. « Scheetz's Appeal, 35 Penn. St. 88. ' Koch's Estate, 4 Rawle 268. Chew's Case, 8 W. & S. 375. Com- monwealth V. Judges, 10 Penn. St. 37. 8 Roop V. Meek, 6 S. & R. 542. Withers v. Haines, 2 Penn. St. 435. " McCormick v. Irwin, 35 Penn. St. 118. See Green v. Robertson, 3 Green 124. '" Commonwealth v. Hultz, 6 Penn. St. 469. " Ordroneaux v. Prady, 6 S. & R. 510. Clyraer v. Thomas, 7 Ibid. 178. Burk V. Huber, 2 Watts 306. Caldwell V. Thompson, 1 Rawle 370. Caldwell v. Remington, 2 Whart. 132. Davis v. Church, 1 W. & S. 240. Withers V. Haines, 2 Penn. St. 435. Conroe v. Conroe, 47 Ibid. 198. Mishler u. Com- monwealth, 62 Ibid. 55. 1^ Newlin v. Palmer, 11 S. & R. 98. Clymer v. Thomas, 7 Ibid. 178. Proper V. Luce, 3 P. & W. 65. Common- wealth V. Mechling, 2 Watts 130. Me- chanics' and Tradesmen's Insurance Co. V. Spang, 5 Penn. St. 113. " Porter v. Lee, 26 Penn. St. 412. " Tassey v. Church, 4 W. & S. 141. Farmers' and Jlechanics' Insurance Co. V. Simmons, 30 Penn. St. 299. Wal- thour V. Spangler, 31 Ibid. 523. '5 Postens V. Postens, 3 W. & S. 182. >« Evans v. Clover, 1 Gr. 164. " Richards v. Nixon, 20 Penn. St. 19. Commonwealth v. Contner, 21 Ibid. 274. Hartman v. Keystone Insurance Co., Ibid. 474. Smith v. Frazier, 53 Ibid. 226. '* Schnable v. Doughty, 3 Penn. St. 395. Carey v. Bright, 58 Ibid. 70. " Helfrich v. Stem, 17 Penn. St. 143. Garrigues v. Harris, Ibid. 344. Lauoh- ner «. Rex, 20 Ibid. 464. Smith ». Myler, 22 Ibid. 36. Collins v. Freas, 77 Ibid. 493. Columbia Bridge Co. v. Kline, Bright. 320. 474 EREOE. tion of new evidence, after parties have closed ;' the'number of concur- rent witnesses a party will be allowed to examine on one point ;^ the decision on an application to discharge a jury during a trial f allowing papers to go out with the jury;^ irregularities in the conduct of the jury f putting into form and amending verdicts f and whether a party was, misled by misnomer of the place of taking depositions/ Whether the decision of the court below upon the sufficiency of the proof of a wit- ness's inability to attend, so as to allow his deposition to be read, is reviewable or not, is a question of some doubt ; the later cases appear to affirm that it is.^ But, though error will not lie to the exercise of a judicial discretion, yet for excess of power, the act may be annulled.' § 827. Specific statutory regulations. In addition to these general rules, there are special cases, in which the decision of the lower court is made final by statute ; such as, the decision of the common pleas on cer- tiorari to a justice's court; in such cases, it is provided by the act of 1810,'" that the judgment of the court of common pleas shall be final, and no writ of error shall issue thereon. In such case, an award of execution for the costs on a reversal (though erroneous), is as much a part of the judgment, as the reversal itself, and cannot be reviewed ;" if a writ of error be sued out in such case, it will be quashed, as having improvidently issued.'^ The judgment of the common pleas cannot be reviewed, even on the ground of want of jurisdiction in the justice — ^the court below having passed upon that question, though it was erroneously decided.^' But this provision is confined to cases in which the justice exercises jurisdiction, under the act of 1810 ; where a subsequent statute confers jurisdiction upon justices of the peace, to proceed in a different manner from. that prescribed by that act, the judgment of the common pleas, on certiorari, may be reviewed by the supreme court.'* A writ of error does not lie to a judgment on habeas corpus ;'' nor to an inquisition finding a person to be a lunatic ;'^ nor to a decree distributing the pro- ceeds of a forfeited recognisance in the quarter sessions."' ' Fredrick v. Gray, 10 S. & R. 182. ground that they do not possess it, Hake v. Fink, 9 Watts 336. Barnhart may be assigned for error. Beach V. Pettit, 22 Penn. St. 135. Moloney v. Chamberlain, 3 Wend. 366. Tilton v. V. Davis, 48 Ibid. 512. Beeoher, 59 N. Y. 176. 2 Jatho V. Passenger Railway Co., 4 '"5 Sm. L. 171 ; Purd. 608. Phila. 24. " Silvergood v. Storrick, 1 Watts 532. ^ Evans v. Mengel, 3 Penn. St. 239. " Cozens v. Dewees, 2 S. & R. 112. Winsor v. Regina, 6 B. & S. 298. Johnson v. Hibbard, 3 Whart. 12. Cas- * Spence v. Spence, 4 Watts 165. tor ». Cloud, 2 W. N. C. 252. 5 United States v. Gillies, Pet. C. C. " Borland v. Ealy, 43 Penn. St. HI. 159. '* Commonwealth v. Burkhart, 23 * Keen v. Hopkins, 48 Penn. St. 445. Penn. St. 521. Zimmerlyu.RoadCom- ' Gibson v. Gibson, 20 Penn. St. 11. missiouers, 25 Ibid. 134. * Pipher v. Lodge, 16 S. & R. 214. " Russell v. Commonwealth, 1 P. & Dennison v. Fairchild, 7 Watts 309. W. 82. Beitler v. Study, 10 Penn. St. 418. '« Ex parte Gest, 9 S. &R. 317. See Porter v. Wilson, 13 Ibid. 648. Commonwealth v. Beaumont, 4 Rawle " Catlin e. Robinson, 2 Watts 373. 366. The refusal of the court below to ex- " Commonwealth v. Justice, 34 Penn. ercise a discretionary power, on the St. 165. PARTIES. 475 in. Wlio may maintain error. § 828. The act of 1722 proydes, that if any person or persons shall find him or themselves aggrieved with the judgment of any court of record, it shall and may be lawful to and for the party or parties so aggrieved, to have his or their writ or writs of error; which shall be granted them, of course, in such manner as other writs of error are granted, and made returnable to the supreme court.^ This act, it will be perceived, gives a writ of error, as a matter of right, to " the party aggrieved," and, therefore, the party against whom the judgment is rendered, may sue out a writ of error, as of course, unless he has precluded himself from so doing by a release of errors. But a party may bind himself not to take out a writ of error ;^ and if a writ of error be sued out, in fraud of the agreement, it will be quashed, with costs.^ "It would be a scandal to the administration of justice, if such writ were supported."^ Thus, a writ of error cannot be sustained, where a cause has been referred, with an agreement that no excep- tion should be filed to the award f nor where a case stated is submitted to the court, with an agreement that their opinion shall be conclu- sive between the parties.^ So, an executor cannot sue out a writ of error to a scire facias against him, where his testator has agreed that no writ of error should be brought in that action.^ A party who receives the amount of a judgment in his favor, cannot subsequently have a writ of error to reverse the same;' so, if he enforce his judg- ment by execution ;' but entering security for stay of execution, is not a waiver of the right to bring error;'" nor is an agreement to the entry of a judgment, without prejudice to the rights of the defendant.*^ § 829. As a general rule, a writ of error lies only for a party or privy to the record, or one who is aggrieved by the judgment.'^ When- ever the rights which a third person might have in a judgment, or against it, are open to inquiry in a collateral proceeding, he is excluded 1 1 Sm. L. 138; Purd. 602. « Galbreath v. Colt, 4 Yeates 551. ^ Cunokle v. Dripps, 3 P. & "W. 291. Error does not lie to the judgment on a Philadelphia v. Elvins, 1 W. N. C. 7. casestated, unless therightbeexpressly Atlantic Petroleum Storage Co. v. Kai- reserved. Hughes v. Peaslee, 50 Penn. ser, Ibid. 20. St. 257. » Commonwealth?). Johnson, 6 Penn. ' "Wright v. Nutt, 1 T. R. 388. St. 136. Davis v. Hood, 13 Ibid. 171. ' Laughlin v. Peebles, 1 P. & W. Booleau v. Phillips, 1 Ash. 92. Ames 114. V. Webber, 11 Wend. 186. Bonniwell v. » Smith v. Jack, 2 W. & S. 101. Ul- Hopson, 3 W. N. C. 492. lery v. Clark, 18 Penn. St. 148. Hale * Cunckle v. Dripps, ut supra. But v. Lacy, 37 Ibid. 366. See Meriam v. the rule does not apply to a judgment Haas, 3 Wall. 687. of imprisonment for life, in a criminal '" Ranok v. Becker, 12 S. & R. 412. case. Smith v. Commonwealth, 14 S. " Weidner v. Matthews, 1 1 Penn. St. & R. 69. 339 ; Bell, J. « Andrews v. Lee, 3 P. & W. 99. '^ Steel u. Bridenbaeh, 7 W. & S. 150, Rogers v. Playford, 12 Penn. St. 181. Hylton v. Brown, 1 W. 0. C. 348. And see Keystone Bank v. Ashton, Jaqu,eth v., Jackson, 17 Wend. 434. 34 Leg. Int. 115. 476 EEEOE. from the rigtt of appeal.^ An executor or administrator, however, may have a writ of error on a judgment against his testator or intestate;^ and an assignee for the benefit of crediters, on a judgment against his assignor ;' and the sureties of an administrator may appeal from a decree against him/ So, a terre-tenant, who is aggrieved by the judgment, may sue out a writ of error f and he may do so, in his own name, properly describing the record in the body of the writ.* § 830. Where there are several plaintiffs, they must all join in a writ of error, and the dissent or release of one is a bar to the prosecution of the writ by the others ; but when defendants bring the writ, it is to discharge themselves from the judgment, and there is, therefore, no joint right.' The writ, however, must be brought in the name of all the defendants, if they are all living and aggrieved by the judgment ; and if any of them refuse to join in the prosecution, they must be summoned to the court of error, and severed ; after which, they never again can maintain a writ of error, but he who sued out the writ may go on alone. It does not appear, that the process of Summons and severance has ever been used in the supreme court ; it is probable, that the court would proceed in a less formal way, by laying a rule on those persons named as plaintiffs in the writ of error, and not appearing, either to appear and join in the prosecution, or submit to be severed.' If the writ be brought by one or more only of the defendants, it may be quashed f but if one or more of the defendants be dead, the survivors may bring the writ in their own names.'" So, if there be a nolle prosequi as to one of the defendants, or judgment in his favor, he shall not join in the writ of error ;"■ and where a writ against three was returned served as to one only, and the judgment was obtained generally against the three, a writ of error by the two not served was sustained, after the limitation had expired as to the one served.'^ § 831. The act of 1850 provides,'' that a party may sue out a writ of error, notwithstanding a decision upon a former writ of error obtained by the adverse party ; such judgment is no bar to a subsequent writ, at the suit of the other party, on different grounds.'^ Where both parties ' Morris v. Garrison. 27 Penn. St. ' Gallagher d. Jackson, 1 S.&R. 493. 227 ; Black, J. ' « Fotterall v. Floyd, 6 S. & R. 320. '' Com. Dig. tit. " Pleading." An heir O'Doud ». Russell, 14 Wall. 402. may prosecute a writ of error, to re- ' Ibid. See Fenner v. Bettner, 22 verse a judgment against the estate, in Wend. 621. Williams v. Bank of the favor of the executor. Patterson v. United States, 1 1 Wheat. 414. Wilson Phillips, Hemp. 69. v. Insurance Co., 12 Pet. 140. Todd e. » Act 13 June 1840, ? 9, P. L. 691 ; Daniels, 16 Ibid. 521. Masterson Purd. 603. ». Herndon, lOWall. 416. Hampton ». * Garber ». Commonwealth, 7 Penn. Rouse. 13 Ibid. 187. St. 265. They may also maintain a '" Brewer v. Turner, 1 Str. 234. bill of review. Bishop's Estate, 10 " Fotterall v. Floyd, ut supra. Var Ibid. 469. elst v. Rafael, Cowp. 425. * Cadmus v. Jackson, 52 Penn. St. '^ Brown v. Kelso, 2 P. & W. 429. 295. Read ». Huzolton, 27 Leg. Int. '» Act 22 March 1850, § 2, P. L. 230; 198. Purd. 603. " Finney v. Crawford, 2 Watts 294. " Ormsby v. Ihmsen, 34 Penn. St. LIMITATION. 477 take writs of error on tne same grounds, and the judgment is reversed ou one of them, the other writ will be abated ;' but the same party can have only one writ of error to the same judgment ; after afiBrmance and remittitur, a second writ will not lie to the taxation of costs.^ But a second writ may be sued out, where the iirst was non-prossed, though it is no supersedeas.^ IV. Limitation in error. § 832. It is pro.vided by statute,* that no judgment in any real, per- sonal or mixed action, nor any appeal from a register's court, shall be reversed for error, unless the writ of error be commenced, or the appeal be brought, and prosecuted with effect, or the certiorari^ taken, as the case may be, within two years^ after such judgment signed or entered of record, or decree pronounced. If, however, the person entitled to such writ of error or appeal shall, at the time such right accrued, be within the age of twenty-one years, covert, non compos mentis, in prison, or out of the limits of the United States, then such person, or his legal repre- sentatives, may bring his writ of error or appeal, within two years after the removal of such disability, but not afterwards.^ The period of limit- ation runs from the time the party was legally bound to take notice of the judgment ; thus, where a judgment by default is taken in an eject- ment, without affidavit of service, the limitation runs from the date of the judgment ; the party served with a writ is bound to take notice of the progress of the suit.' On error to a judgment on scire facias, the court will not examine into the regularity of the original judgment, obtained more than two years previously.' If the writ of error be sued out too late, the proper course is, not to quash the writ, but to disregard the assignment of error.'" Where, however, the judgment is not merely erro- neous, but void upon its face, an execution on it will be set aside, on error, though the writ be sued out more than two years after the entry of the judgment.^' 462. The act of 1850 was passed to heen held, that the statute does not ex- meet the case of Henderson v. Irvine, tend to a writ of error coram vobis. 1 Am. L. J. 269, and professed to be Strode v. Stafford Justices, 1 Brock, retrospective ; but it was held to be 162 ; Marshall, C. J. unconstitutional, as to cases in which ' When the statute once begins to there had previously been a final de- run, it is not stopped, by a subsequent cision. McCabe v. Emerson, 18 Penn. disability. Lynch v. Cox, 23 Penn. St. St. 111. 265. The second section of this act ^ Wormcastle v. Negley, Sup. Court, provides that it shall have no retro- 28 March 1853. MS. spective operation. f Gibson v. Cummings, 25 Penn. St. * Camp v. Welles, 11 Penn. St. 231. 206-7. In New York, the time of lim- ' Sheerer ». Grier, 3 Whart. 14. itation only commences to run from * Act 1 April 1874, P. L. 50 ; Purd. the time notice is given of the entry of 1873. the judgment. Pearson v. Lovejoy, 53 * See Young's Petition, 9 Penn. St. Barb. 407. 215. ° Compher v. Anawalt,2 Watts 490. ' Under the act of 1791, the period '" Camp v. Welles, ut supra. of limitation was seven years. It has " Brown v. Kelso, 2 P. & W. 429. 478 EEEOE. § 833. In ejectment, the act of 1872 provides,^ that whenever a non- suit shall be entered, or a verdict found for the defendant, the latter may enter a rule upon the plaintiff to sue out a writ of error to the supreme court, upon such order of nonsuit, or verdict or judgment thereon, within one year from the time of the service of such rule ; and if the plaintiff fail to sue out a writ of error within that time, he shall be there- after for ever debarred from suing out any writ of error, or other writ, upon such order of nonsuit, or verdict or judgment thereon. An appeal from a decree of the orphans' court,^ or from a decree of the common pleas in equity,' must be brought within three years. ' In calculating the time, the day on which the decree is made, is to be excluded.^ An appeal, however, from a decree distributing the proceeds of a sheriff's sale, without the intervention of a jury, is to be taken within twenty days thereafter.' The time for the entry of such appeal begins to run from the entry of the decree, though in vacation ; notice having been given to the counsel of the opposite party ; though, it seems, such notice is not requisite ; if no notice was given, it might, however, be ground for the allowance of an appeal nuno pro tune? § 834. Where the time for taking an appeal is fixed by statute, the court has no power to extend it.'' If an appeal be taken from the judg- ment of a justice, after the expiration of the time allowed by law, the plaintiff is not in court, and, therefore, cannot be non-prossed under the rule.^ But the court may grant relief against an omission to file the appeal in due time, where the party himself is not in default.' "Though a writ of error may issue within two years from the judgment, yet, to save costs, and avoid the enforcement of an execution, it should be sued out within three weeks, or it is no supersedeas}'^ Y. Issuing' of the writ. § 835. A writ of error, in a civil action, is a writ of right, and is issued of course, by the prothonotary of the supreme court, upon a prcecipe. Th^prczeipe should be full and definite,*' naming the court from which the record is to be removed, the parties, number and term of the action 1 Act 3 April 1872, P. L. 33 ; Purd. "Wait v. Van Allen, 22 N. T. 319. .'>37. * Carothers ». Cummings, 63 Penn. ^ Act 29 March 1832, 1 59, P. L. 213 ; St. 1 99. Purd. 1110. » See Bright. Dig. 1532. " Act 17 March 1845, P. L. 158, '» See infra, i 839. Purd. 600 ; and 14 February 1857, P. " Summerville v. Painter, 44 Penn. L. 39, Purd. 592. St. 112. In practice, the term and * Ege's Appeal, 2 Watts 283. number of the case in the court below, 5 Act 16 June 1836, ^ 89, P. L. 777 ; instead of being embodied in the prae- Puvd. 657. cipe, as it ought to be, is usually'in- ° Dawson's Appeal, 15 Penn. St. dorsed by the attorney upon the writ, 480-2. before its delivery to the prothonotary ' Westmoreland County v. Cone- of the latter court. The writ of error maugh Township, 34 Penn. St. 232. must name all the parties to the judg- Hoag V. Allegheny, 21 Pitts. L. J. 46. ment. Davenport v. Fletcher, 16 How. Morgan v. Lackawanna and Blooms- 142. burg Railroad Co., 2 Luz. L. Oba. 194. WRIT OP EEEOE. 479 below, and the parties to the writ of error. The following form may be adopted ■} In the Supreme Court of Pennsylvania, in and for the Eastern District. John Jones, plaintiff in error, "| V. y Of January term 1879. Adam Smith, defendant in error. J Issue Writ of Error to the Court of Common Pleas No. 1, for the County of Philadelphia, to remove the record of said court, of June term 1876, No. 72, returnable the first Monday of January next. To the Prothonotary of the A. B., Att'y for pl'ff in error. Supreme Court. 21 Nov. 1878. § 836. The writ is tested and made returnable to the court as other writs, and is directed to the judges of the court in which the judgment has been rendered, commanding them that, if judgment be rendered, then the record and process and all things touching the same, under their seals, distinctly and openly, they have before the justices of the supreme court, on the next return-day; together with the writ itself; that the record and process being inspected, they may further cause to be done what of right and according to the laws and customs ought. The allow- ance of one of the justices of the supreme court is also marked on it by the prothonotary; but this is merely formal, and if omitted, will be allowed nunc pro tune, on objection made.^ § 837. In some cases, however, a special allocatur is necessary ; as, to a certiorari from the supreme court to a justice of the peace, where the common pleas has concurrent jurisdiction f or a certiorari to remove a road case, in Philadelphia county ;* to remove proceedings against school directors f in a contested election case f and to an appeal from the exer- cise of a discretionary power by the orphans' court, in setting aside or reftising to set aside a sale.' So, a special allocatur is necessary to the suing out of a writ of error in formd pauperis.^ And so, also, a special allocatur is necessary for the removal of a conviction before a justice of a criminal offence, under the act of 1861' and its supplements.^" A cer- tiorari at common law, after judgment, not being of right, may be allowed * One writ of error cannot be issued 37 Penn. St. 385. to bring up the records of several judg- " Ewing v. Thompson, 43 Penn. St. men ts between the same partie8,in which 372. a single affidavit ofdefence has been filed. ' Haslage's Appeal, 37 Penn. St. 440. Hollohan v. McLean, 1 W. N. C. 262. ' In such case, the applicant must ' Eckart v. Wilson, 10 S. & K. 53. present the record, assign errors, and Young's Petition, 9 Penn. St. 215. show that he is entitled to it, when the ' Scully V. Commonwealth, 35 Penn. court will grant a special allocatur. St. 513. Anon., 3 Luz. L. Obs. 226. A party * Road from Thomas's Creek, 3 may be allowed to appeal in /ormS^ait- "Whart. 11. Thirty-fourth Street, 81 ^ei-is, though the owner of real estate, Penn. St. 27. A special allocatur is if it be mortgaged to its full value, not requisite, to remove the proceedings Wendell v. Simpson, 7 W. N. C. 31. for incorporating a borough. Borough ' Act2Mayl861,P.L.682;Purd.396, of West Philadelphia, 5 W. & S. 281. " Commonwealth v. Morey, 10 Phila. ^ Freeman v. Directors of Franklin, 460. 480 EEEOE. upon conditions, and, after allowance, the allocatur may be revised so as to add conditions.^ § 838. The act of 1809 provides,^ that the party appealing or purchas- ing a writ of error, shall make oath or aiSrmation, to be filed with the record, that the same is not intended for delay. This is done, by append- ing to the proBcipe an affidavit in the following form : — " John Jones, the above-named plaintiff in error, being duly sworn, saith, that the writ of error purchased in this case, is not intended for delay." This affidavit may be sworn to, either before the prothonotary or clerk of the court below, or before the prothonotary of the supreme conrt,^ or before any officer having a general power to administer oaths. It may be made either by the party himself, or by his agent or attorney ;* or, in case of a corporation, by the president or other chief officer, or, in his absence, by the cashier, treasurer or secretary .° A corporation, how- ever, is within the statute, authorizing the affidavit to be made by an agent or attorney.* Such affidavit must be made by an administrator, as in case of any other party.' The affidavit may be made before the trial of the cause;* and it must be filed, before the writ 'issues.^ VI. Ball In error. § 839. It is provided by statute,^" that execution shall not be stayed upon any judgment in any civil action or proceeding, by reason of any writ of error from the supreme court to any other court of this common- wealth, unless the plaintiff in such writ, or some one .in his behalf, with sufficient sureties, shall become bound by recognisance to the party in whose favor such judgment shall be given, with condition to prosecute such writ of error with effect, and if the judgment be affirmed or the writ of error be discontinued or non-prossed, to pay the debt, dam- ages and costs (as the case may be) adjudged or accruing upon such judgment, and all other damages and costs that may be awarded upon such writ of error. But executors, administrators, guardians, assignees in voluntary assignments for benefit of creditors, or any other person suing or defending in a representative character, are excepted. A judg- ment, however, against an executor de bonis propriis is not within the act." These provisions are copied from the English statutes of 8 Jac. I., c. 8 ; 13 Car. II., s. 2, c. 2, § 9 ; and 16 & 17 Car. II., c. 8, § 3, all of which are in force in Pennsylvania, and may be resorted to for interpretation, or to supply any casus omissus in our own statute.^^ ' Ewingu.Thompson,43Penii. St. 372. * Academy of Fine Arts ». Power, 14 ^ Act 11 March 1809, ^ 6 ; 5 Sm. L. Perm. St. 442. 17 ; Purd. 604. ' Beale v. Patterson, 6 S. & R. 89. = Act 25 April 1850, J 29, P. L. 574 ; « jy^gg ^ O'Hara, 1 S. & R. 32. Purd. 604. ' Beale v. Patterson, ut supra. * Acts 11 June 1832, P. L. 611 ; and " Act 16 June 1836, 1 7, P. L. 762 ; 27 March 1833, P. L. 99; Purd. 604. Purd. 605. 5 Act 22 March 1817, ?4; 6 Sm. L. " Gebler v. Culin, 6 PHla. 130. 439 ; Purd. 604. This extends to all cor- Fitzwilliams v. Moore, 1 Lev. 245 ; s. c. porations. Washington and Pittsburgh 1 Sid. 368. Turnpike Co. v. Cullum, 8 S. & R. 617. " See Kob. Dig. 41, 137, 245. BAIL IN EEROE. 48] § 840. The practice is, to take bail on error in double the amount of the judgment recovered below. In case of an ejectment, under the Stat. 16 & 17 Car. II., c. 8, the practice is, to require bail in double the annual rent of the premises, and the costs of the ejectment.^ In a scire facias on a mortgage, which contains a special provision, exempting the mortgagors from personal liability, it is only necessary that security be given in a sufficient sum to cover the costs f otherwise, it seems, if there be no such special provision ;' or in an action in the accompanying bond.^ And a plaintiff must give security, not only for costs, but also for the amount of a certificate of a balance in favor of the defendant.'' On a certiorari to remove the proceedings in a landlord and tenant case, in Philadelphia, the party must give security for the payment of all costs that have accrued, or may accrue, and of the rent which has already or may become due, up to the final determination of the case, iu the event of the same being determined against him.^ If, however, the cause be taken to the supreme court, by writ of error, and the judgment there affirmed, he is entitled to subrogation against the bail in error.'' Where a writ of error is sued out by the claimant in a sherifiP's inter- pleader, the bail in error is only liable for the costs.* § 841. By rule of the supreme court,' the recognisance is to be taken in the following form, to wit : — " You severally acknowledge to owe (the plaintiff in the action) the sum of (double the sum recovered) upon con- dition that A. B. prosecute his writ of error with effect; and if judgment be affirmed, or the writ of error be discontinued or non-prossed, to pay the debt, damages or costs (as the case may be), adjudged upon such judgment, and all other damages and costs that may be awarded on such writ of error."^" The recognisance may be taken either by the prothono- tary or clerk of the court below, or by the prothonotary of the supreme court.^' And to operate on a supersedeas, at least two sureties are^ required ;'^ though the recognisance, however, be defective, the cause is well removed, but it is not a supersedeas?^ Whenever a corporation (mu- nicipal corporations excepted) shall appeal or take a writ of error, it i& ' Thomas v. Goodtitle, 4 Burr. 2501. * Guyer v. Spotts, 85 Penn. St. 51. Keane v. Deardon, 8 East 298. Fen- ' Rule iv. wick V. Pearson, Barnes 103. See " See Smith «. Winder, 1 Glark 386. Purd. 605 n. 4Dall. 140. If the recognisance be defective in ^ Hosie V. Gray, 73 Penn. St. 502. form, a new one may be taken iu the Bail in error, in a feigned issue, is supreme court. Hosie v. Gray, 73 only liable for the costs. Guyer v. Penn. St. 502. Bigler v. Waller, 12 Sp6tts, 85Ibid. 51. Wall. 142. * Leach v. Bonsall, 1 W. N. C. 7. " Act 25 April 1850, § 29, P. L. 574; iMcLean v. Mann, Ibid. 62. McCurdy Purd. 604. Smith ». Ramsay, 6 S. & \v. Leslie, 2 Ibid. 381. And see Brown u. B. 573. Lovrein, 25 Pitts. L. J. 98. " Rheem -v. Naugatuck Wheel Co., * Savage v. Kelly, 32 Leg. Int. 5: 33 Penn. St. 3,58. Henry v. Boyle, 1 * Churchman v. Parke, 2 Penn. St. Miles 386. It is so provided, by the 406. statute of 3 Jac. I., c. 8, made perpetual « Act 24 March 1865. P. L. 750: by 3 Car. I., c. 4, H- Purd. 886. ' '' Magill v. Kauffman, 4 S. & R. ' Clapp V. Senneff, 7 Phila. 214. 397. VOL. I. — 31 482 EKEOE. required to give bail absolute for the payment of the debt, interest and costs, on the affirmance of the judgment.^ A corporation may have a writ of error, without bail, but it is no supersedeas.^ But a foreign cor- poration, or a stage company, or unincorporated joint-stock company, whose members do not reside within the commonwealth, must give bail absolute for the payment of such sum as shall he finally adjudged to be due to the plaintiff, with interest thereon and costs.^ A mere clerical mistake in the recognisance may be amended, even after an affirmance of the judgment.* § 842. By a rule of the supreme court^ the counsel of the defendant may, within twenty days after notice of the taking of the bail in error, except to the sufficiency thereof, when the plaintiff in error must either put in new bail, or the old bail must justify, within ten days after excep- tion taken ; in default whereof, the writ of error will not be a superse- deas of the execution. New bail may be put in, or the old justified, before the prothonotary of the court of the proper district, or before the prothonotary of the court below ; and in the latter case, the new recog- nisance, or the affidavit of justification, must be returned to the pro- thonotary of the supreme court, within the ten days allowed, excluding the day on which the exception was taken. At least three days' written notice must be given to the opposite party, or his attorney, of the entry of new bail, or of justifying the old.* The bail in error, however, are not liable, if the writ be non-prossed for their neglect to justify ■/ other- wise, if the writ be non-prossed, by agreement, in the absence of fraud or collusion ;' or if the writ be non-prossed, because there is no final judgment below.' It is not requisite, in order to charge bail in error, to sue out execution against the principal.^" The bail, when sued on his recognisance, may plead a payment of the judgment, under an attachment thereof, in his hands, as garnishee, in another state ; if the judgment had been previously assigned, the plaintiff must reply such assignment.^^ The bail is primd facie entitled to credit for the amount made on an execution, subsequently issued against the principal ;'^ other- wise, if it be shown that no part thereof was applicable to the plaintiff's judgment.^^ And, if compelled to pay the judgment, the bail in error ' Act 15 March 1847, P. L. 361; ' Tildeu i>. Worrell, 30 Penn. St. 272. Purd. 605. But they are liable, though the recogni- 2 Savings Institution v. Smith, 7 sanoe be entered too late to operate as Penn. St. 291. a supersedeas. Mitchell u. Thorp, 5 ' Acts 21 March 1849, P. L. 216; Wend. 287. Purd. 2X7 ; and 15 April 1851, P. L. « Share v. Hunt, 9 S. & R. 404. 675 ; Purd. 43. « Mechling v. Merchants' and Manu- * Welch V. Vanbebber, 4 Yeates 559. facturers' Bank, 34 Leg. Int. 313. 5 Rule of 18 February 1878 ; 5 W. '» Smith v. Ramsay, 6 S. & R. 573. N. C. 81. 11 Noble V. Thompson Oil Co., 69 * The court below will not issue ex- Penn. St. 409. Bosbyshell v. Evans,- eoution, on the ground that the bail in 1 Clark 315. error have not justified in the supreme " Christy v. Bohlen, 5 Penn. St. 38. court ; the suit not having been non- Clayton v. Neff, 1 W. N. C. 247. prossed. Greenough v. Kase, 6 W. N. " Clayton v. Nefif, 1 W. N. C. 430. C. 254. !:< . J , SUPERSEDEAS. 483 may take an assignment thereof, for indemnity, whether in contract or in tort.^ Vn. Supersedeas. § 843. A writ of error or certiorari is a supersedeas, at common law f not in itself, but by implication, since, in theory, it takes the record out of the custody of the inferior court, and leaves nothing there to be prosecuted or enforced by execution.^ But its common-law effect has been restrained by our statute,** which provides that execution shall not be stayed, unless the plaintiff in error give bail in error, with sufficient sureties. If, however, this be done, within three weeks from the day on which the judgment is entered, any writ of execution previously issued thereon, will be stayed and superseded, upon payment of costs, though the service or execution thereof have been begun ; and if it have been fully executed, the defendant may have a writ of restitution of the proceeds thereof. And in order that every party may have sufficient opportunity to take out a writ of error, it is enacted,^ that no execution shall issue upon any judgment on any special verdict, demurrer, or case stated, unless by leave of court, in special cases, for security of the demand, within three weeks from the day on which such judgment shall be pronounced. The writ of error, with security, operates as a super- sedeas, from the time of its delivery to the prothonotary of the court below.^ § 844. A writ of error, with bail, though issued after the lapse of three weeks, is a supersedeas, if execution be not actually executed f that is, actually levied on real or personal estate.^ A fieri facias returned nulla ' Farmers' and Mechanics' Bank v. sheriff had levied on his real estate, Harper, 8 Perm. St. 249. when the present rule was taken ^ People V. Deerfield, 22 Wend. 587. This court has decided, in Bryan v. McDonald v. Gifford, 1 Brewst. 278. Comly, 2 Miles 271, and Adams ' Ewing u. Thompson, 43 Penn. St. Hindmaiv, Ibid. 464, that a writ of error, 372. Patchin U.Brooklyn, 13 Wend. 664. on which bail has been duly entered ■* Act 16 June 1836, P. L. 762; and served at any time before execution Purd. 60.5. issued, or if issued, before it is executed ^ Act 11 March 1809, 5 Sm. L. 17 ; (which, it is said, in the case of a fi. fa., Purd. 604. is so considered, if levied), is a super- ^ Frantz v. Kaser, 3 S. & R. 395. sedeas. It is argued, however, in this 'Bryan v. Comly, 2 Miles 271. case, that, as the judgment was alien, Adams v. Hindman, Ibid. 464. Mc- the delivery to the sheriff is to be con- Donald V. Gilford, 1 Brewst. 278. sidered as ipso facto a levy on real * Pattersons. Juvenal, District Court, estate; and the case of Wood u. Cal- Phila., y Deo. 1848. AYhy the fi. fa. vin, 5 Ilill 228, is cited to that effect, should not be set aside. Per curiam. However it maybe in the state of New A writ of error was issued in this case, York, it is clear, that it cannot be so on the 6th October, and bail in error considered in Pennsylvania ; for, by given ; on the 9th October, it was filed the 43d section of the act of 13th June in the office ; on the same day, a fi. fa. 1836, it is provided that, " if sufficient was issued. Whether it was placed in personal estate cannot be found by the 8herifi''s hands, before or after the such officer, he shall proceed to levy writ of error was lodged in the office, upon the defendant's real estate, or does not appear, nor do we consider it such part thereof as he may deem suffi- material. On the 24th November, no- 'cient to pay the sum to be levied." It tice was given to defendant that the is evident, that no levy had been made, 484 EEEOK. bona, and an alias returned stayed, will not hinder the supersedeas of a writ of error ;' but where there has been a fieri faeias levied on real estate, and condemnation, upon which a venditioni has issued, a writ of error, issued more than three weeks after the judgment, though before a sale, is no supersedeas.^ If, however, the writ of error be directed to the a yard of execution, and the record, including the fi. fa., be removed to the supreme court, a venditioni exponas cannot issue, pending the writ.^ A writ of error, with security, supersedes an attachment-execution,^ and a pending attach- ment for contempt.^ And a writ of error, with recognisance," to the judg- ment of the common pleas, on a certiorari to a justice, under the act of 1863, operates as a supersedeas.^ But the act of 1865 does not make a certiorari a supersedeas to proceedings by a purchaser at sheriff's sale, to obtain possession f nor does it extend to proceedings between landlord and tenant, under the act of 1772 ; a certiorari, in such case, is not a supersedeas.^ A second writ of error is not a supersedeas, where the first was non-prossed f- but a writ of error to the iinal judgment in partition is a supersedeas, though a former writ to the judgment quod partitio fiat, has been non-prossed^ The supreme court will not stay execution on a at the time the writ of error in this case was lodged in the office ; for, on the 4th November, a rule was applied for, "to grant the sheriff four weeks to levy on real estate," which, though inartifi- cially worded, was evidently intended and allowed as an enlargement of the time of making his return, to enable him to make a levy on real estate. Rule absolute. ' Roberts v. Springer, cited 1 Phila. 172. '' Bozarth v. Marshall, 1 Phila. 172 ; s. c. .S Am. L. J. 5t2. ' Byrne v. Building Association, Sup. Court, 4 January 1879. MS. * Supplee !). Reznor, 1 W. N. C. 20. 5 Shaw's Estate, 9 Phila. 347. ° Haines v. Levin, 51 Penn. St. 412. And see Wright v. Clendenning, 1 Brewst. 449. ' Jackson v. Gleason, 6 Phila. 307. ° De Coursey v. Guarantee Trust and Safe-Deposit Co., 81 Penn. St. 217. ' Sheerer v. Grier, 3 Whart. 14. Power V. Prick, 2 6r. 306. "I Wayne v. Duffee, Dist. Court, Phila., 17 Nov. 1849. Why the order of sale should not be set aside. Per curiam. It appears, that there was a writ of error to the judgment quod partitio fiat, which was non-prossed ; pending that writ of error, the defendant in error and plaintiff below had died. It has been contended, that this was ipso facto an abatement of the writ of error : but this is clearly a mistake. " A writ of error," says Mr. Tidd, " does in no case abate by the death of the defendant in error, whether it happ_en before or after errors assigned. If it happen before, and the plaintiff will not assign errors, the executors or administrators of the defendant in error may have a scire fa- cias quare executionem mora, in order to compel him ; or, if it happen after, they must proceed as if the defendant in • error were living, till judgment be affirmed, and then revive by scire facias, but cannot take out execution pending the writ of error. And in order to com- pel the executors or administrators to j oin in error, the plaintiff may sue out a scire facias ad audiendum errores, either generally or naming them." He cites abundant authority in support of this position. It would seem, then, that there is nothing to take this case out of the general rule, that a second writ of error is not a supersedeas of execution, although bail has been given ; if the first writ abated by the act of the party, as by suffering a judgment of non-pros. Sheerer v. Grier, 3 Whart. 14. Afterwards, the heirs or devisees of the original plaintiff sued out a scire faci.is to show cause why a writ de par- titivue facienda should not issue, ac- cording to the practice, as prescribed in Prohock V. Gustine, 8 Watts 121. Pleas were put in, and upon trial, a verdict and judgment for the plaintiffs, that SUPERSEDEAS. 485 judgment, after affirmance, on the ground of a writ of error from the supreme court of the United States, which was not served in time to operate as a supersedeas, under the federal law; but will leave the party to his remedy in the latter court.'- If, however, the court below refuse to give effect to the supersedeas, in a proper case, the supreme court will grant a special stay of proceedings.^ § 845. The pendency of a writ of error, is no bar to a scire facias or action of debt upon the judgment ;' and an action of debt will lie on a foreign judgment, notwithstanding the pendency of an appeal from the decision of the foreign court.'' The remedy in such case, if the judgment be reversed in the foreign appellate court, is by writ of audita querela. In New York, it is held, that the pendency of a writ of error may be they be substituted as plaintiffs, and that a writ of partition issue. Upon this judgment a wi-it of error has been sued out and bail entered. Originally, it was only upon the final judgment in partition that error lay. That was at common law, before the peculiar pro- ceedings introduced by our acts of as- sembly, and especially the writ of sale, existed. As, under these proceedings, the property was converted into money, and the i-ights of the parties to their land irrecoverably divested, if the pro- ceedings were on their face regularly conducted, the legislature very wisely provided by the 15th section of the act of 5th April 1842, that " writs of error may be sued out upon the judgment quod pariitio fiat, in all actions of par- tition, and the supreme court shall hear and determine the same, as if the said writ or writs of error were issued on the final j udgments in the said proceed- ings." Our first impression was, that the judgment upon this scire facias was not within this act, but more mature consideration has led us to a contrary conclusion. It is to be observed, in the first place, that the judgment upon the scire facias is substantially ajudgment quod partiiiofiat, as a scire facias upon a judgment in debt is a judgment q;ii,od recuperet, and not merely an award of execution. Were this a judgment upon a scire facias, before the judgment quod partitio fiat, it would then be merely a judgment that the heirs be admitted to prosecute ; but after the judgment quod partitio fiat, this second judgment is, in effect, of the same nature, to which, doubtless, the defendant might have pleaded matter arising since the former judgment, as a release. It is within the mischief sought to be remedied by the act, which was, that all questions of title or right should be adjusted by the supreme court, before the land itself should be swept away from the parties, by the force of a judicial sale. It is not to be denied, that many such ques- tions might arise for adjudication, upon the trial of a scire facias, by persons claiming to succeed a plaintiff in par- tition. In this suit, the claim of the plaintiffs was as devisees. There is nothing to hinder the factum of the will, the capacity of testator, or the construction of the will, as including or excluding the plaintiffs, or the land in question as being the subject-matter of the devise, from being controverted in such a proceeding, and the most diffi- cult questions of law from arising. It seems to us, therefore, that it will best subserve the intentions of the legisla- ture, to allow the writ in such a case : and that, at all events, it will be better for us to allow the supreme court to decide the point, and not anticipate them by an order of sale, which will convert the estate into money irreversi- bly. Rule absolute. ' Pennsylvania Kailroad Co. v. Com- monwealth, 39 Penn. St. 403. ^ Byrne v. Building Association, Sup. Court, 4 January IKTi. MS. ^ Falkner v. Franklin Insurance Co., 1 Phila. 183. And see Evans v. Tatem, 9 S. & R. 262. So, the pendency of a writ of error does not affect the judgment, as evidence of an attachable debt. Woodward v. Carson, 86 Penn. St. 176. ■* Merchants' Insurance Co. «. De Wolf, 38 Penn. St. 45. Suydam v. Hoyt, 1 Dutch. 230. 486 EEEOE. pleaded in abatement of an action on a judgment recovered in another jurisdiction, with proper averments to show that it was a supersedeas.' Vm. Return of tte writ. § 846. When the writ of error is allowed, and filed with the prothono- tary of the court by which the judgment was rendered, he returns it to the prothonotary of the supreme court, together with the whole record, including the original prcecipe, which constitutes a portion of it. With us, the entire record is uniformly in the custody of the prothonotary of each court, and not in the keeping of the judges.^ If the writ of error be taken to a judgment upon an issue of nul tiel record, it seems, that the record on which issue has been joined, should be attached to the record returned, by certificate from the court, or otherwise, so as to make it a part of the record returned.' On a certiorari to the orphans' court, the original record must be returned.'' It is the duty of the plaintiff in error, to see that the record is returned, in due time, and if he fail to do so, and the record be not returned on the return-day, it is provided by rule of the supreme court, that the prothonotary shall enter a non-pros., which shall not be taken off, except by special order of the court.* In appeal cases, if the appellants neglect to bring up the record at the next term of the court after the appeal is taken, any of the other parties interested may bring it up, and have the case presented and determined • ex parte, or the appeal dismissed at the costs of the appellant.^ If the writ be duly returned, it will be presumed to have been presented to the court below, during its sitting ^ IX. Amendment and motion to quasli. § 847. Ametidment, When the writ is returned, but not before,' the plaintiff in error may move to amend, or the defendant in error to quash or non-pros, the writ ; or it may abate, or be discontinued.* Formerly, great certainty was required in making the writ agree with the record ; nor could any defects therein be amended, before the stat. 5 Geo. I., c. 13, reported to be in force in Pennsylvania ;''' because, by the former statutes of amendment, the judges were only enabled to amend in affirmance of the judgment.^^ Upon this statute, it has become the practice to amend the writ of error, as a matter of course, without costs ;'^ and it has been amended, by striking out the name of one of the plaintiffs in error.^' In ' Jenkins v. Pepoon, 2 Johns. Cas. 251. 3] 2. ^ Quaere? Whether the withdrawal ' Fitzsimmons «. Salomon, 2 Binn. of the writ does not amount to a re- 439. traxit. Laughlin v. Peebles, 1 P. & W. ^ Crutcher v. Commonwealth, 6 114. Whart. 340. United States v. Cook, "> Rob. Dig. 48. 2 Mason 22. " 2 Bao. Abr. 463. * Torr's Appeal, 1 Eawle 76. " Gardner v. Merrett, 2 Str. 902. ° Rule xiii. Aland v. Mason, Ibid. 863. ^ Rule XV. " Guhr v. Chambers, 8 S. & R. 157. ' Gailey v. Beard, 4 Yeates 418. Varelst v. Rafael, Cowp. 425. Clapp * Vandermark v. Ostrander, 1 Caines v. Bromagham, 8 Cow. 746. MOTION TO QUASH. 487 the latter case, however, the recognisance of bail in error must also be amended.' And a blank left in the writ for the mouth in which the court is to be held, is a mere clerical error and amendable.^ So, the description of the parties in the writ may be amended by the record.^ But where there were several plaintiffs or defendants, and the writ is brought by one only, it cannot be amended, by adding the others.* And where a writ of error was returnable before the giving of the judgment on whicli it was brought, this was held to be such a fault as was not amendable under the statute.^ § 848. Motion to quash. Any defect in the writ which is not amend- able, is a ground for quashing it, on motion ; and where there is no juris- diction, as, if the proper record is not brought before the court,^ or the judgment of the court below is final by law f or where the justice of the case requires it f or where a case stated or special verdict is so defective that no means are furnished for determining what judgment should be given,^ the court will quash of its own motion. Where the object is to bar a writ of error by matters of fact not appearing on the record returned, they should be brought before the court by plea or by motion to quash.'" Thus, where the plaintiff has waived his right to a writ of error, expressly or impliedly, as by suing out execution and receiving the amount of his judgment, the writ will be quashed ;'' and this may be done, before the return-day of the writ.'^ But, as a general rule, the court will not quash the writ, before hearing, except for an irregularity.'^ The question whether the writ has been properly sued out, or whether it lies in the particular case, belongs exclusively to the court from which it issues, on a motion made to quash ; and where the motion to quash is too late, as if made after plea in nullo est erratum, and issue joined, the court will, if injustice be likely to be done, quash of its own accord." Where the writ was regularly issued, but served after the return-day, the court will not quash it, but will order a remittitur, if moved for.'' But where the court below struck off an appeal, and afterwards reinstated it, the writ was quashed, as there was no final judgment to which it could lie.'^ On a motion to quash, the court will only look to the parties to the record." 1 2 ^Y. Bl. 1067. See Sampayo r. 299. De Payba, 5 Taunt. 86. Heath v. ' Commonwealth v. Smith, 20 Perm. Wright, 1 How. Pr. 250. St. 104. ^ Reed v. Collins, 5 S. & R. 351. "> Showers v. Showers, 27 Penn. St. Mossman v. Higginson, 4 Ball. 12. 485. ' Finney v. Crawford, 2 Watts 294. " Laughlin v. Peebles, 1 P. & W. 1 14. Dexter v. Hoover, 2 Cow. 526. '' Davis v. Hood, 13 Penn. St. 171. * Fotterall v. Floyd, 6 S. & R. 320. '' Moodie v. Bank of Ashland, 1 W. 5 Wright V. Canning, 2 Str. 807. N. C. 324. Seymour v. Herbert, 2 And see Robinson v. Bulkly, 5 Rawle Ibid. 363. 227. '* Downing v. Baldwin, 1 S. & R. 299. ^ Specht V. Commonwealth, 24 Penn. '^ Jones v. Schook, Sup. Court, Jan. St. 103. 1819. MS. ' Cozens v. Dewees, 2 S. & R. 112. i" Straub v. Smith, 2 S. & R. 382. Johnson v. Hibbard, 3 Whart. 12. " Gallagher v. Miller, 2 W. N. C. 8 Downing v. Baldwin, 1 S &. R. 241. 488 EEEOE. X. Abatement of the writ. 849. At common law, a writ of error abated by the death of the plaintiff in error, before errors assigned ; but h, is not so, under our statutes ; where the cause of action survives, nothing can follow from an abatement, but delay and costs ; and for this it was the object of the legislature to provide a remedv ;' which they have done, by the acts of 13 A.pril 1807,2 and 24 February 1834.3 g^t jf the cause of action do not survive, as where the court below arrest the judgment on a verdict obtained by husband and wife, for slander of the wife, if the wife die, before errors assigned, the writ will abate.'' In no case, however ,_ does the writ abate by the death of the defendant in error, whether before or after errors assigned ; if it happen before, and the plaintiff will not assign errors, the executors may have a scire facias quare executionem non, in order to compel him ; if it happen after, they may proceed as if the defendant in error were still living, until affirmance of the judgment, and then proceed hj scire facias; but they cannot take out execution pending the writ of error ,' and they may be compelled to join in error, by a rule to plead to the assignment of errors.' And under the stat. 8 & 9 Wm. III., c. 12, § 7, reported to be in force in this state,'' the death of one of several plaintiffs or defendants does not abate the writ, but such death being suggested upon the record, the action proceeds ; this statute applies to writs of error.^ Since the passage of the act of 1845,' the marriage of a feme sole plaintiff in error will not abate the writ ; but the husband may make himself a party thereto, and prosecute it to final judgment. XI. Dimmution of record. § 850. Where the whole of the record is not certified by the court below upon the writ of error, the plaintiff may allege diminution of the record, and pray a certiorari to the court below to bring up the part of the record which is wanting •^'' but it is a rule, that a man cannot allege ' Ulshafer v. Stewart, 71 Penn. St. administrator, for the purpose of pros- 172-3. ecuting the same, but the suit shall ' 4 Sm. L. 477 ; Purd. 37. abate, and the prothonotary shall make ' P. L. 77 ; Purd. 38. an entry accordingly ; notice must, * Stroop V. Swarts, 12 S. & R. 76. however, first be given to the executors * Wayne v. Duffee, District Court, or next of kin entitled to administra- Phila., 17 Nov. 1849, supra. ^ 844 n. tion, and an affidavit of service filed. n Commonwealth v. McAllister, 1 » Act 12 April 1845, P. L. 386; Watts 307. Purd. 38. ' Rob. Dig. 142. '" Fitzsimmons v. Salomon, 2 Binn. 8 Clark V. Rippou, 1 B. & Aid. 586. 436. Holmes v. Trout, 7 Pet. 171. Theacto April 1854, P. L. 570, Purd. Hudgins v. Kemp, 18 How. 531. 39, provides, that if a plaintifi' die, United States i. Gomez, 1 Wall. 690. during the pendency of the suit, and Where an important paper appears to no letters testamentary or of adminis- be omitted from the record, and no tration shall be taken out in this state counsel appears for the defendant in within one year after suggestion of the error, the court will, of its own motion, death upon the record, it shall not be award a certiorari. Morgan o. Curte the duty of the defendant to raise an nius, 19 How. 8. ASSIGNMENT OF EEROES. 489 diminution contrary to the record which is certified.^ The certiorari is a judicial writ, issuing out of the court where the vvrit of error is depend- ing, directed commonly to the judges of the court below, but may, by consent, be directed to the president alone.^ The supreme court will not decide whether certain matters ought or ought not to be returned and certified as part of the record, but will leave it to the court below to determine whether the record contains the whole matter f and when it appears by their return, that the whole record has been certified, a second certiorari, upon a similar suggestion, will not be granted."* The prcecipe is part of the record,^ and so is a warrant of attorney to appear and confess judgment.^ By the English practice, it is too late to allege a diminution, or pray a certiorari, after in nulla est erratum pleaded, with- out leave of the court f with us, the certiorari has been granted, upon the application of the plaintifi'in error, after issue joined and diminution alleged.* A return to a certiorari, upon suggestion of diminution in the record, may be made by the clerk, and need not be made by the judge of the court below.' XII. Assignment of errors. § 851. It is provided by rule of the supreme court, that the counsel for the plaintiff in error shall, on or before the thiid day of the term to which the writ is returnable, specify, in writing, the particular errors which he assigns, and file the same in the prothonotary's office ; and on failure to do so, the court may non-^ros. the writ.'" Where there are several plaintiffs in error, they should join in assigning errors.'^ Every error relied on must be specified particularly, and by itself; if any speci- fication embrace more than one point, or refer to more than one bill of exceptions, or raise more than one distinct question, it will be considered a waiver of all the errors so alleged.'^ Where the error-assigned is to the charge of the court, or to answers to points, the part of the charge, or the points and answers referred to, must be quoted totidem verbis in the 1 1 Kol. Abr. 764. Tidd 1167. A there had been a former writ of error, certiorari will not be awarded, on a on which no exception was taken to the suggestion that portions of the charge, record. Jones v. Hartley, 3 Whart. 178. which do not appear to have been ex- * Bassler v. Niesly, ut supra. cepted to, are not on the record. Stimp- * Pitzsimmons v. Salomon, 2 Binn son V. West Chester Railroad Co., 3 436. How. 553. * Banning U.Taylor, 24 Penn. St. 292. 2 Bassler v. Niesly, 1 S. & R. 472. ' 2 Crompt. Pr. 362. Cheetham v. . It seems, that it is to be returned in the Tillotson, 4 Johns. 499. Rew v. Bar- same manner as a writ of error. Pen- ker, 2 Cow. 408. emore v. United States, 3 Ball. 360 n. * Pitzsimmons v. Salomon, ut supra. ' Bassler v. Niesly, ut supra. If, And see Clark v. Hackett, 1 Black 77. in answer to a certiorari, the president ' Stewart v. Ingle, 9 Wheat. 526. judge certify that the record has been '" Rule xii. fully and perfectly returned, it is con- " 2 Bac. Abr. 217. Tidd 1169. elusive ; the only remedy is, by action " Rule xxii. Reimar v. Stuber, 20 for a false return. Plagg u. Searle, 31 Penn. St. 458. Good Intent Co. v. Leg. Int. 101. If portions of the rec- Hartzell, 22 Ibid. 277. Bull's Appeal, ord be lost, the docket-entries will be 24 Ibid. 286. Schwenk v. Jlontgomery assumed to be correct; especially, where County, 2 Ibid. 281. 490 EEEOE. specification.' And when the error assigned is to the admission or rejec- tion of evidence, the specification must quote the full substance of the bill of exceptions, or copy the bill in immediate connection with the spe- cification. When the error is as to the admission or rejection of a writ- ing, a full copy of the writing must be printed in the paper-bdok. ' Any assignment of error not according to these rules, will be held the same as none.' The assignment may, however, be amended, by leave of court, to prevent injustice, if a material matter has been omitted, or the defect is merely formal ;^ and the court always reserves to itself the right to correct an error which stares them in the face, when they think the justice of the case requires it.* They will always notice a point afiecting their jurisdiction;^ so, they will reverse, where it appears by the record, that the plaintifi" has no cause of action, though the point be not specially assigned f but not where the plaintiiF might have been able to answer the objection, had it been taken below.' § 852. Errors not assigned in accordance with the rules of court, are considered waived f or the defendant in error may demur, and the court will enforce its rules.' A general assignment to the charge will be dis- regarded.'" An assignment of error in the answer to a point submitted, must set forth how the court erred in its answer thereto ;'' and must repeat the point.'^ That the court erred in not arresting the judgmeut, because of the insufficiency of the indictment, is not a good assignment of error; it is bad for generality.'^ But on error to a judgment on a case stated, in the nature of a special verdict, it is enough to say, that the judgment is erroneous, without more.'* Additional errors cannot be assigned, without leave of court ; which will not be granted as to mere matters of form.'^ § 853. An assignment of error is in the nature of a declaration,'^ and ' Rule xxiii. Criswell v. Altemus, Smathers, 38 Ibid. 40. 20 Penn. St. 124. Hultz v. Common- » Burkholder v. Stahl, 58 Penn. St. wealth, 3 Gr. 61. 371. And see Neiss v. Foster, 64 '' Rule xxiii. Rice i>. Farmers' and Ibid. 49.5. Thompson v. McConnell, Drovers' Bank, 22 Penn. St. 118. 1 Gr. 396. Schwenk v. Montgomery County, 2 '" Zerbe v. Miller, 16 Penn. St. 488. Ibid. 281. Hultz u. Commonwealth, M< s. P. Snyder w. May, 19 Ibid. 235. Sau- supra. If the plaintiff in error, or ders v. Wagonseller, Ibid. 248. Black- appellant, be in default according to stock v. Leidy, Ibid. 335. Clark v. these rules, he may be nonsuited, on Smith, 25 Ibid. 137. Brown r. Brooks, motion. Rule xxx. Ibid. 210. Hutchinson v. Campbell, " Shenk v. Mingle, 13 S. & R. 32. Ibid. 273. _ Galbraith v. Green, Ibid. 85. Logans). " Franklin Fire Insurance Co. v. Dp- McGinnis, 12 Penn. St. 32. degraff, 43 Penn. St. 350. * Anderson v. Long, 10 S. & R. 55. '^ Ditmars y.Commonwealth, 47 Penn. Berry v. Vantries, 12 Ibid. 91. St. 335. Armstrong's Appeal, 68 Ibid. ^ Hazen v. Commonwealth, 23 Penn. 409. St. 355. " Weaver «. Commonwealth, 29 Penn. 8 Hoffer V. Wightman, 5 Watts 205. St. 445. ' Paull V. Oliphant, 14 Penn. St. 342. '* Rule xxiii. 8 Daniel v. Daniel, 23 Penn. St. 198. '* Shenk v. Mingle, 13 S. & R. ?.9. Bull's Appeal, 24 Ibid. 286. Martin Galbraith v. Green,' Ibid. 85. I). Jackson, 27 Ibid. 504. Arthurs v. " 2 Bac. Abr. 485. ASSIGNMENT OP EEEORS. 491 is either of errors in fact, or of errors in law ; either may be assigned, but not both together, for they are distinct in their nature, and require different trials.^ If errors both in law and in fact be included in one assignment, it is bad for duplicity ; but advantage can only be taken of it by special demurrer.^ An assignment of error in fact may conclude with a verification, for it gives the defendant in error an opportunity to put himself on the country f the plea in nullo est erratum to an assign- ment of error in fact, which is not well pleaded, is not a confession of it ; it only operates as a demurrer.* And the judgment on a demurrer for duplicity is qiiod affirmatur.^ It seems, however, that, as our supreme court has no power to summon a jury to try an issue of fact, errors in fact, requiring such trial, cannot be here assigned f the party must take his writ of error coram vobis, by which he can bring the facts upon the record;^ and then error lies in the supreme court to the judgment of the subordinate court upon such writ.^ Errors in fact are such mat- ters of fact, not appearing on the face of the record, as prove the judgment to be not supportable in law — as, that the defendant in the original action, being an infant, appeared by attorney f or that judgment (except in real actions) was given against an infant who is now of full age;'" or that a feme plaintiff or defendant was covert, at the time of commencing the action ;" or that a sole plaintiff or defendant died, before verdict or interlocutory judgment.'^ But nothing can be assigned for error in fact that might have been taken advantage of in the court below; nor can any fact that contradicts the record, be assigned for error.'^ § 854. Error in law, assignable as ground for reversal, is any substan- tial defect or error in the proceedings, not cured by the common law, or by statute, and not waived by the party complaining, which was injurious to such party, is reviewable by the supreme court, and which appears on the record or bill of exceptions thereto annexed ; as well as any incorrect decision of the court below, on the mere right of the parties, as presented by the pleadings, special verdict, bill of exceptions, or opin- ion filed. They may properly be divided into such as are apparent on the face of the record, and such as are brought up by bill of exceptions. In reference to the former class, it may be stated, as a general rule, that whatever would have been available on general demurrer, or in arrest of judgment, may be assigned for error.'* The latter consist, in the main, of objections to the admission or rejection of evidence, and errors in the charge of the court. § 855. Error in law, to be assignable, must be some defect which is 1 Freeborn v. Denman, 2 Halst. 190. * Wood v. Colwell, 34 Penn. St. 92. Acker v. Ledyard, 1 Den. 677. " Mercer v. Watson, 9 L. Bar 89. ^ Moody V. Vreeland, 7 Wend. 55. '° Sliver v. Slielbaok, 1 Dall. 166. ' Sheepshanks v. Lucas, 1 Burr. 410. Moore v. McEwen, 5 S. .s R. 373. * Moody V. Vreeland. ut supra. " Tidd 1169. 5 Jeffry v. Wood, 1 Str. 439. King '' Ibid. V. Gosper, Telv. 58. " 2 Bac. Abr. 492. * Watson V. Mercer, 17 S. & R. 343. " Northumberland County Bank v. McMurray v. Brie, 59 Penn. St. 223. Eyer, 60 Penn. St. 436. ' Mercer v. Watson, 9 L. Bar 89. 492 ERKOE. not cured by the common law, or by the statutes of jeofail p- and it must be error which has not been waived by the party complaining. Error cannot be assigned on a point not made in the court below ;^ espe- cially, if the exception be a merely formal one.^ And the cases are innumerable, in which the cfturt has decided that an error, by which the plaintiff in error could not possibly have been injured, is not ground of reversal.* Thus, where a witness was improperly rejected, but after- wards admitted,^ the court refused to reverse. So, where the error was in an immaterial part of the trial,^ or where incompetent testimony was admitted, but the fact was also proved by other conclusive evidence ;' or where evidence was improperly admitted, but the jury Rejected the part of the claim to which it related ;" where the judge erroneously charged that plaintiff would not be entitled to interest, but the jury found no principal sum due f or where the court's opinion was favorable to the party complaining,^" or as favorable as he asked for ;'^ or where, if instructions had been given, they would have been unfavorable ;^^ where a judge gives an opinion on an abstract point,'' or assigns erro- neous reasons for a proper conclusion ;^* and numerous other cases. § 856. The alleged error must also be one which is reviewable by the supreme court; not in the exercise of the judicial discretion vested in the court below ;'^ it must be a flagrant abuse of the discretion vested in the court below, which will induce the supreme court to reverse on a mere question of practice.'^ The error assigned must also appear upon the record; the presumption being in favor of the correctness of the action of -the court below, it is not sufficient, that the record does not explicitly show it to have been right, but in order to reverse, the record must show conclusively that the court below was wrong:'' therefore,, as on a motion for summary relief, or rule to show cause, there is no bill of ' Benjamin w. Armstrong, 2 S. & R. Wollenweber v. Ketterliuua, 17 Ibid- 392. As to what defects in pleading 389. Kemmerer v. Edelman, 23 Ibid. are cured by verdict, see Briglit. Dig. 143. Messuer ». Lancaster County, tit. "Pleading," xxvi. Ibid. 291. ' Dorman v. Turnpil^e Co., 3 Watts ^ Bunce v. Stanford, 27 Penn. St. 126. Maus !). Maus, 6 Ibid. 275. Pitt 265. Township v. Leech, 12 Penn. St. 33. » Brady v. Colhoun, 1 P. & W. 140. Uplingor V. Bryan, Ibid. 219. Wright '» Collins v. Bush, 7 S. & R. 147. V. Wood, 23 Ibid. 120. " Hubley v. Vanhorne, 7 S. & R. " Case of Pennsylvania Hall, 5 Penn. 185. St. 204. Rank v. Ranli, Ibid. 211. " Deal v. Bogue, 20 Penn. St. 228. * Sec the cases collected in Bright. " Repsher m. Wattson, 17 Penn. St. Dig. 822. 365. * Rogers v. Kiohline, 36 Penn. St. " Piper's Appeal, 20 Penn. St. 67. 293. Rupp V. Orr, 31 Ibid. 517. Thomas « Edgar v. Boies, 11 S. & R. 445. v. Mann, 28 Ibid. 520. Munderbach v. Lutz. 14 Ibid. 220. '^ See supra, i 826. Williams v. Williams, 34 Penn. St. 315. "> Christine v. Whitehill, 16 S. & R. ' Wolverton v. Commonwealth, 7 S. 98. Robeson v. Whitesides, Ibid. 320. & R. 273. Baliiestoss o. Commonwealth, " Munderbacli v. Lutz, 14 S. cfc R. 8 AVatts 286. Hart v. Gregg, 10 Ibid. 220. Wagner's Appeal, 43 Penn. St. 185. Gaskell v. Morris, 7 W. & S. 32. 102. And numerous other cases col- Evans 0. Mengel, 3 Penn. St. 239. lected in Bright. Dig. 846. PLEADINGS IN EEROE. 493 exceptions to evidence, the testimony is not part of the record, and the action of the court below cannot be reviewed.^ Many defects in the pro- ceedings, which are ground of error, have been noticed in the course of this work; but it would be impossible to enumerate the various other matters on which a writ of error may be founded, since there can be no question of law arising in a cause, which may not be submitted to the appellate court, after the decision of the inferior tribunal, if the party bring it under the conditions already set forth. § 857. An appeal brings up the whole case, but for review only ; the proceedings are not de novo, and no one can be heard except a party affected by the decree, and he only on exception regularly filed below.^ Therefore, no new evidence will be heard unless under very exceptional circumstances ;^ and where the case is not a proper one for appeal, and there is no bill of exceptions that reaches the objection, an assignment of error, dependent on the testimony, will not be considered.'' Appeals from the orphans' court, however, since the act of 1835,^ are to be heard and determined in such manner as to prevent injustice, and, therefore, the supreme court will, when justice requires, hear new evidence, and order the case to stand over in the mean time.^. A certiorari tries only the regularity of the proceedings ;'' and where no appeal was entered from the action of the quarter sessions in refusing to remit a forfeited recog- nisance, the supreme court cannot review it.^ Xm. Pleadings in error. §858. By a rule of the supreme court, "the prothonotary shall in- dorse on each writ of error or certiorari to remove proceedings, a rule to appear and plead at the return-day of the writ ; and in default of appearance, when the cause is called for argument, and on proof of ten days' service on the defendant in error, or his counsel below, the court will proceed ex parte : and it is further ordered, that the court pro- ceed in like manuer, on proof of the like service of notice, in appeal cases."' The defendant may plead or demur to an assignment of errors. Pleas in error are common or special ; the common plea is in nullo est erratum, or that there is no error in the record or proceedings ; which is in the nature of a demurrer, and at once refers the matters of law aris- ing thereon to the judgment of the court.^" This plea is usually put in (or supposed to be put in) by the prothonotary, upon which the case is at issue, and is placed in its order on the argument-list. 1 Brown V. Ridgway, 10 Penn. St. Purd. 1110. 42. Calhoun v. Logan, 22 Ibid. 47. " Bierly's Appeal, 3 W. N. C. 210. Banning v. Taylor, 24 Ibid. 297. Piper's Appeal, 20 Penn. St. 67. ^ Hise's Estate, 5 Watts 157. Bar- ' Commonwealths. Nathans, 5 Penn. ryhill v. Dowding, 8 Ibid. 313. Dyott's St. 124. Derry Overseers v. Brown, 13 Estate, 2 W. & S. 557. Ibid. 389. ' Swoyer's Appeal, 5 Penn. St. 382. ^ Harres v. Commonwealth, 35 Penn. Elmes V. Elmes, 9 Ibid. 166. St. 416. * Sipes V. Mann, 39 Penn. St. 414. » Rule xiv. ' Act 14 April 1835, P. L. 276 ; i» Tidd 1173. 494 EEEOR. § 859. The defenaant may also put in a special plea to the assignment of errors, such as the statute of limitations, but this cannot be joined with in nulla est erratum, since it requires a diiferent conclusion and judgment, namely, that the plaintiff be barred of his writ of error, not that the judgment be affirmed.' But in this state, a special plea of estoppel by matter of record, has been admitted, in connection with the plea of in nullo est erratum, and the former was determined on a demurrer to the plea.^ Special pleas to an assignment of errors contain matters in con- fession and avoidance — -as, a release of errors, or the statute of limita- tions, &c., and are employed wherever the object is to bar a writ of error by matters of fact which do not appear on the record.' The plaintiff in error may reply or demur, and proceed to trial or argument.* § 860. If the defendant in error would put in issue the truth of an error in fact assigned, he should traverse or deny it, and so join issue thereupon, and not plead in nullo est erratum; for, by so doing, he would acknowledge the fact alleged to, be true.^ If he would admit the fact, and yet insist that by law it is not error, he ought to rejoin in nullo est erratum. If an error in fact be assigned, that is not assignable, or be ill assigned, in nullo est erratum is no confession of it, but will be taken only for a demurrer.'' But if errors in fact and in law are assigned, which, we have seen, cannot be assigned together, and the defendant plead in nullo est erratum, this is a confession of the error in fact, and the judgment must be reversed, for he should have demurred for the duplicity.' When a defendant in error demurs to an assignment of errors in fact, the court will allow him, after judgment on the demurrer, to withdraw it, and rejoin to the assignment of errors.* The pleadings on an assignment of errors must be filed with the prothonotary of the supreme court, who, after issue joined, sets down the cause for argument. XIV. Of tlie hearing-. § 861. Arr/wment-Ust. The rules of the supreme court provide, that all cases brought up for review, shall be placed upon the argument-list next succeeding their entry, and in the order in which they stand upon the docket, unless advanced by the special order of the court.' The court will call the cases for argument, in the order in which they stand on the printed argument-list. If neither party be present, or. ready to proceed with the argument, the case will be non-jjrossed, unless reason to the contrary be shown to the satisfaction of the court ;'" and no case can be continued, when reached, without the permission of the court.'' ' Acker v. Ledyard, 1 Den. 677. ing the averment. Acker o. Ledyard, 2 iMartin i>. Ives, 17 S. & R. 364. 2 Am. L. J. a2S. = Showers v. Showers, 27 Penn. St. ^ Moore v. MoEwen, 5 S. & R. 373. 491. Where cross writs of error are Harvey r. Rickett, 15 Johns. 87. taken, the pendency of one cannot be * Moody v. Freeland, 7 Wend. 55. pleaded, to the other. Reynolds v. Da- ' Ibid. Jeffry v. Wood, 1 Str. 439. vis., 2 How. Pr. 103. ' Arnold v. Sandford, 14 Johns. * Tidd 1173. A plea to an assign- 417. ment of error, which merely avers ' Rule ii. evidence of a fact and not the fact " Ibid. i. itself, only requires a replication deny- " Iliid. iii. AEGTJMENT-LIST. 495 § 8()2 Short causes. The prothonotary of eact district is required, by rule of court, to keep a separate list for short causes ; to this list all causes are to be transferred, in which the attorney of either party shall certify that it is a short cause. The causes on this list have precedence on the Wednesday of every week in which they might have been heard, had they remained on the general list, and been reached in their order. On the hearing of short causes, the speeches of counsel are limited to fifteen minutes on each side. The prothonotary is required to post a copy of the short list in. his office, which is to be notice of the transfer of the cases placed thereon. The cause may be retransferred to the general list, if the opposite attorney shall certify that it is not a short cause, and that injustice may be done to his client by placing it on such list ; but such retransfer must be made within three days from the time the case has been placed on the short list. The hearing of short causes is not the exclusive business of Wednesdays ; but after such list is fin- ished, the general list will be called in its order.^ § 863. Sour-list. The prothonotary of the eastern district is also required to make a list of causes taken from the Philadelphia list, to be called the "hour-list." The attorney of either party may order a cause on this list, at any time before or during the term ; and no cause thus ordered thereon, will be stricken therefrom, without permission of the court. The causes on this list are to be heard in the order they were set down thereon ; and have precedence over all other causes, except those on the short list, capital cases, and cases specially placed at the head of the list. In the argument of cases on the hour-list, counsel will be heard one-half hour only on each side.^ § 864. Faper-books. In a case where the writ of error is to a judg- ment on a verdict, the paper-book of the plaintiif in error must contain the following matters, in the specified order: 1. The names of all the parties, as they stood on the record of the court below, at the time of the trial, and the form of the action : 2. An abstract of the proceedings, showing the issue, and how it was made : 3. The verdict of the jury, and the judgment thereon : 4. A history of the case : 5. The points, if any, which were submitted in writing to the court below : 6. The charge of the court : 7. The specifications of error : 8. A brief of the argument for the plaintiff in error : 9. An appendix, containing the evi- dence, and, if necessary, the pleadings in full.^ Where the judgment below is on a case stated, in the nature of a special verdict, the facts, as agreed on by the parties, the opinion of the court, and the argument of counsel, will be sufficient.* ' Rules xxxv.-xl. of trial by jury. Hunt u. State, 49 2 Rule of 4 January 1877; 3 W. N. Geo. 255. People v. Keenan, 13 Cal. C. 245. It has been held, that, in a 581. Meredith v. People, 84 111. 480. criminal case, the limitation of the White v. People, 8 Cent. L. J. 273. right of counsel, in the argument of But see State v. Collins, 70 N. C. the case, to a certain period, insuffi- 241. oient for a full discussion thereof, is ' Rule xvii. a violation of the constitutional right " Ibid, xviii. 496 EREOE. § 865. In appeals, the arrangement of the appellant's paper-book must be as follows : 1. The names of the parties, and the nature of the pro- ceedings : 2. A short abstract of the bill or petition, and answer : 3. A history of the case : 4. The report of the auditor or master, if there was one : 5. The exceptions taken to the report in the court below : 6. The opinion of the court on the exceptions, and the decree made : 7. Assign- ment of error: 8. Argument on part of appellant: 9. Appendix, con- taining such documentary or other evidence as may be necessary.^ § 866. On a certiorari to the court of quarter sessions or oyer and ter- miner, the paper-book must contain : 1. An abstract, list or brief of all the petitions, motions, orders, reports, exceptions, &c., which may be necessary to give the court a full view of the record at once ; and this, in the precise order of their respective dates, and with the date of each prefixed : 2. The exceptions which were overruled or sustained by the final order or judgment of the court : 3. The opinion of the court, if it was filed in writing : 4. Assignments of error : 6. The argument : 6. Appendix, containing the record in fuU.^ § 867. The history of the case must contain a closely-condensed state- ment of all the facts of which a knowledge may be necessary, in order to determine the points in controversy; and the want of such a state- ment cannot be supplied by reference to another part of the paper-book.* The brief of the argument must contain a clear statement of the points on which the party relies, with such reasons and arguments as he may see proper to add, together with all the authorities which he thinks per- tinent.'' Where an authority is cited, the principle intended to be proved by it, must be stated ; a naked reference to the book will not be sufli- cient.^ The paper-book of the defendant in error or appellee may, if he choose, contain no more than his argument ; but he may make it ta embrace a counter-statement, giving such version of the facts as he asserts to be the true one.^ When paper-books are furnished which differ, in any material respect, from those prescribed, the parties furnish- ing them will be considered in the same default as if none had been furnished ; and on a proper occasion, the court will, of its own motion, nonsuit or silence the defaulting party, or suppress the p^per-book.' Paper-books must be furnished in the shape and size of a common octavo pamphlet, on ordinary printing paper.' § 868. In cases originating in the county of Philadelphia, the plaintiff in error or appellant is required to serve a copy of his paper-book on the opposite party or his attorney, at least ten days before the first day of the term to which the writ of error or appeal is entered ; and when the cause is called, must furnish one copy to each of the judges, and file' four with the prothonotary — two for the reporter, one for the Law Asso- ciation, and one to be filed in the office. The defendant in error is required to serve a copy of his paper-book on the opposite party or his ' Rule xix. •■ Rule xxvi. '' Ibid. XX. « Ibid, xxvii. ' Ibid. xxi. ' Ibid. xxxi. * Ibid. XXV. ^ Ibid, xxxii. JUDGMENT. 497 attorney, at least five days before the argument, furnish a copy to each of the judges, and file four with the prothonotary, for the purposes above stated.^ When the plaintiff in error or appellant is in default, accord- ing to these rules, he may be nonsuited, on motion ; and if the defendant in error or appellee be in default, he will not be heard by the court, except on the request of his adversary, and not then, if his negligence have been gross.^ XV. Judgment and venire de novo. § 869. Where there is no error in the proceedings sufiicient to over- turn the judgment of the court below, and the narr. shows a good cause of action,^ the judgment of the court below will be afiirmed; this is the common judgment for the defendant in error.* On the plea, however, of release of errors, or the statute of limitations, found for the defendant, the judgment is, that the plaintiflT be barred of his writ.^ For error in law, the judgment of the supreme court is, that the judgment of the court below be reversed ; for error of fact, that it be recalled.^ § 870. The act of 1836' gives the supreme court the power to modify, as well as to reverse or affirm a judgment. Under this act, where judg- ment is entered generally, and one of the parties was not served, the court may reverse as to him, and affirm as to the others f and, in eject- ment, the court may affirm as to one defendant, and reverse as to another ;' so, the court may affirm the judgment, and quash an assess- ment of the value of improvements, as forming no part of the verdict.'" And where there is an error as to a specific portion of the claim, the defendant in error may remit it, and have judgment of affirmance for the residue ;" thus, where the court below erroneously rejected evidence going to a definite portion of the claim, the court modified the judgment, with the assent of the defendant in error.^^ So, where the plaintiff in error has obtained judgment for too much, under an erroneous charge, or, where he is entitled to recover the principal of his claim, but not the interest, he may remit the excess, and have judgment for the proper amount.^' But, if the court below enter a wrong judgment, at the special * Rule xxxviii. Rule xxix. provides ' Act 16 June 1836, P. L. 785 ; I'urd. for service of paper-books in oases 1349-50. originating outside the county of Phila- * Jameison v. Pomeroy, 9 Penn. St. delphia, which is in the same terms, 230. except as to the time of service. ' McCanna ». Johnston, 19 Penn. St. 2 Ibid. XXX. 434. ' Hoffer V. Wightman, 5 Watts 205. '» Miller v. Keene, 5 Watts 348. "■ Unless the errors assigned be sus- " Glenn v. Davis, 2 Gr. 1 53. tained by a majority of the court, the " Thomas v. Northern Liberties. 13 judgment is affirmed. Shollenberger Penn. St. 117. V. Brinton, 52 Penn. St. 9. " Graham v. Keys, 29 Penn. St. 189. ' Acker v. Ledyard, 1 Den. 677. So, where the jodgment is good as to ' Tidd 1178. After a reversal in a the debt, but is erroneous as to the personal action, a new suit must be costs, ^entzh.eimer v. Bush, 2 Ibid, brought within one year. Actofl713, 88, 1 Sm. L. 76 ; Purd. 932. VOL. I. — 32 498 EEEOK. instance of the defendant in error, the supreme court will not permit him to remit a part, but will reverse in toto} The court, on reversing a judg- ment, may give a correct judgment, according to the substance of the finding of the jury.^ They will enter the right judgment in a special verdict;' and so, if the court below erroneously arrest the judgment, the supreme court will enter judgment on the verdict.^ And the court will pronounce the proper judgment, notwithstanding an erroneous prayer; though the defendant in error pray an affirmance, judgment may be given that the plaintiffs in error be barred of their writ.' Where there have been two judgments relating to the same matter, and the first judgment is reversed, the second, which is founded on it, must also be reversed ; but the reversal of the last, will not affect the first.^ § 871. Procedendo. Where the proper judgment cannot be pro- nounced by the supreme court, or where there remains anything for the court below to do, and a venire de novo is not the proper order, the supreme court will award a procedendo. Thus, where a verdict was for plaintiff, subject to the opinion of the court on a point reserved, on which the court afterwards entered judgment for the defendant, the supreme court, on error, reversed the judgment, and entered judgment for the plaintiff; it being afterwards suggested, that a motion on behalf of the defendant for a new trial was undisposed of, and that the lower court had, notwithstanding its pendency, entered judgment for the defendant, the supreme court, on motion, permitted the reversal of the judgment to stand, but struck off the judgment entered for the plaintiff, and awarded a procedendo.'' So, where there was judgment for plaintiff on the verdict, subject to points reserved, and the court gave defendant leave to move for a new trial nunc pro tunc, on hearing which, they discharged the rule, and entered judgment for the defendant on the points reserved; the supreme court, in reversing this latter judgment, said, the verdict was still standing, and awarded a procedendo.* So, on a reversal for a defect in pleading, a procedendo will be awarded, to give an opportunity to amend.' § 872. Venire de novo. Where, on the reversal of a judgment, it becomes necessary to submit the cause to another jury, the supreme court will, in addition to its judgment, award a venire facias de novo. Thus, where there has been some error in choosing or returning the jury, or some error in law in rejecting competent or admitting incompetent evidence, or the jury have been misled by an erroneous opinion of the ' Pontius V. Commonwealth, 4 W. & ' Wilson v. Gray, 8 Watts 25. S. 52. . 5 Griffith V. Eshelman, 4 Watts 58 ; ^ Easton v. Worthington, 5 S. & R. Kennedy, J. 130. Flanagin v. Wetherill, 5 Whart. « Ranck v. Becker, 12 S. & R. 426. 280. Stewart v. Martin, 2 Watts 200. And see Wills v. Hannen, 22 Penn. St. Carman u. Noble, 9 Penn. St. 366. 334. McMioken v. Commonwealth, 58 Ibid. ' Harper u. Keely, 17 Penn. St. 234. 213. 8 Klett V Claridge, 31 Penn. St. 106. ' Commonwealth ». Haffey, 6 Penn. See supra, § 709. St. 348. Pangborn v. Ramsey, 11 ' Garland !•. Davis, 4 How. 131. And Johns. 141. see Hopkins v. Flynn, 7 Cow. 526. • VENIRE DE NOVO. 499 court, with respect to the law arising from lie evidence,' or where entire damages have been assessed on several counts, some of which are bad, in order that the jury may have an opportunity of assessing the damages on each count severally.^ So, where the court below set aside a verdict and entered judgment of nonsuit, the supreme court, on reversing this judgment, awarded a venire de novo, as, otherwise, the defendant might lose his opportunity for a bill of exceptions.^ And, generally, a venire de novo is awarded, where the narr. contains a good cause of action ; both because the plaintiff may find evidence to support his action, and in order that the defendant may recover his costs, if the plaintiff fail in his suit.'* And where a judgment for the plaintiff has been reversed, for a want of jurisdiction appearing on the case, as left to the jury, he may, notwithstanding, have a venire de novo, if there were other facts in the cause, withdrawn from the jury, by the view taken by the court below, on which the jurisdiction might have been supported.^ And, by the act of 1809,' when the facts in any special verdict may be insufficiently or uncertainly found, the judges may remand the record and direct another trial, to ascertain the facts. § 873. A venire de novo will not be granted, however, unless the error has been committed in the course of the trial : therefore, it was refused, where it appeared, that the plaintiff had no cause of action when the suit was commenced f or, where the plaintiff could not, in any event, recover;' or, where no sufficient consideration was laid for defendant's promise.' Nor will it be granted, where the object of the defendant in error is, to have another and different cause submitted to the jury — as, where his attempt is to expunge from a declaration, drawn in slander of the hus- band and wife, a count for the slander of the husband, and proceed to trial for the slander of the wife only, an error not amendable under the act of 1806." Nor can it be awarded, unless there has been a venire actually issued, or the cause has been tried by a jury; therefore, where a cause was arbitrated, a venire de novo was refused, after reversal upon error ;'' but, by the act 23 February 1824,'^ the supreme court may, in such case, remit the record to the court below, with directions for fur- ther proceedings. The court will always support verdicts, where there have been trials on the merits, when they have it in their power : thus, where a judgment of the common. pleas had been reversed on error, but before the record was actually remitted, or a venire facias de novo ' EbersoU v. Krug, 5 Binn. 51. The * Seltzinger v. Steinberger, 12Penn. power of the supreme court to award St. 379. this process was first discussed and * 5 Sm. L. 17 ; Purd. 604. judicially recognised in the case of ' Miller v. Ralston, 1 S. & E. 309. Sterrett v. Bull, 1 Binn. 238, wherein Reed v. Collins, 5 Ibid. 351. it was said, that it tends to the dispatch * Bellas v. Hays, 5 S. & R. 446. Grif- of justice, as it prevents delay. fith v. Eshelman, 4 Watts 51. Burk- ' Shaffer v. Kintzer, 1 Binn. 537. hardt v. MoClellan, 1 Abb. Dec. 263. ' Wharton v. Williamson, 13 Penn. » Whitall v. Morse, 5 S. & R. 358. St. 273. " Bbersoll v. Krug, 5 Binn. 51. * Little Schuylkill Navigation Co. v. '' Ibid. Norton, 24 Penn. St. 465. Candler " P. L. 27. V. Rossiter, 10 Wend. 487. 500 EREOE. • awarded, the cause was again tried below, the supreme court, after error brought on the second judgment, ordered the record to be remitted, and an award of a venire de novo to be entered, as of the term when the first judgment was reversed, inasmuch as they had power to do so origin- ally, and the cause had been tried on its merits.' X"VT. Remittitur. § 874. By the act of 1836,'' as soon as the supreme court shall have rendered judgment, or made a final decree or decision, in any cause, action or matter brought into the same by writ of error, certiorari or appeal, such court shall order the record thereof, with their judgment or decree thereon written, and duly certified, to be remitted to the appro- priate court; which judgment, decree or decision, such court shall duly carry into execution and efiect ; or the supreme court may, if they see cause, order execution thereof to be done, by process issued out of the same, and thereupon order the record to be so remitted. When, there- fore, judgment is given in the supreme court, or the writ of error abates, or is discontinued, the record is returned to the court whence it was removed, and the entry of this circumstance is termed a remittitur. The party desirous of expediting the return of the record, usually advances the costs accrued upon the writ of error to the prothonotary, who makes out the remittitur or certificate of the decree of the supreme court, attaches it, with a bill of the costs paid, to the record, and imme- diately delivers it to the prothonotary of the court in which the case originated. The matter is then proceeded in, by a venire de novo, execu- tion, or scire fadas against the bail in error, as the case may be, con- foi'mable to the judgment of the supreme court. § 875. But no further proceedings can be had in the court below, until the record is actually remitted ;' though, where there was a second trial, after reversal, but before the award of a venire de novo and remittitur, the supreme court, after error brought on the second judgment, ordered a remittitur and venire de novo to be entered, as of the term when the first judgment was reversed.* And where the record was never actually in the supreme court, the case having been tried on paper-books only, an order of affirmance, and that the record be remitted, will be a construc- tive remittitur, on which the court below may proceed.* Where the supreme court gives judgment in a case on error, and the record is remitted, the judgment becomes of record in the court below, and is to be enforced as if originally entered there.* By rule of court, where a cause goes back to the court below for further proceedings, the prothono- tary certifies and sends back with the order, decree or judgment, a copy of the opinion of the court.'' We have already stated, that the recogni- ' Albright v. McGinnis, 4 Yeates ^ Pennsylvania Railroad Co. ». Com. 518. monwealth, 39 Penn. St. 403. ^ P. L. 27 ; Purd. 606. « Shaw v. Boyd, 12 Penn. St. 215. ' Cox V. Henry, 36 Penn. St. 445. MoMasters v. Blair, 31 Ibid. 467. Burkle V. Luce, 1 N. Y. 239. ' Rule xvi. The fees for such copy Albright V. McGinnis, ut supra. are part of the costs in error. Ibid. • COSTS AND DAMAGES. 501 sance of bail is transmitted with the record, when taken before a judge of the common pleas ; it, therefore, becomes a part of the record, and is, on the affirmance of the judgment, remitted to the court below, and the scire facias on it cannot issue from the supreme court, although taken there originally; but must be brought into that court where the record remains,' or elsewhere, if the defendant do not reside in such county.^ Notwithstanding a remittitur, the court has power to recall the record for a rehearing ; and may issue a certiorari for that purpose ; but will not do so, after further proceedings in the court below, in which there has been a final decree.^ XVn. Costs in error and damages. § 876. At common law, there were no costs on a writ of error,* and they were not given by the statute of Gloucester, because no damages were re- coverable therein. ' They were first given by the stat. 3 Hen. VII., c. 10,° where a defendant sued out a writ of error to reverse a judgment in favor of the plaintiff, in case the judgment was affirmed, the writ of error discontinued, or the plaintiff in error became nonsuit. This statute gives costs in all cases of affirmance, whether recoverable in the original action or not.* The stat. 13 Car. II., s. 2, c. 2, § 10,^ has also been reported to be in force in this state, though it is scarcely noticed in our practice : it gives double costs to the defendant in error, on the affirmance of a judg- ment, given after verdict.^ And the stat. 8 & 9 Wm. III., c. 11, § 2,* gave costs to the defendant in error, where the writ was sued out by the plaintiff below, in case of affirmance, discontinuance or nonsuit.'" § 877. These statutes extend only to the case of the affirmance of a judgment, and, therefore, on a reversal, no costs are recoverable," and if levied by execution, the court will order them to be refunded.'^ If the plaintiff below unsuccessfully bring error to his own judgment, and it is affirmed, he cannot recover the costs in error.'^ Where, however, the supreme court reverses a judgment, and awards a venire de novo, it may impose terms as to the costs ; otherwise, they abide the final event of the ' Smith V. Ramsay, 6 S. & R. 573. ' Rob. Dig. 140. ^ Act of 1809, ^6; 5 Sm. L. 17; ""A certiorari is in the nature of a Purd. 604. writ of error, and clearly within the ' Shisler's Appeal, 1 W. N. C. 29.5. spirit and equity of the statutes giving See Maitland's Appeal, 31 Leg. Int. costs in error. AUer ti. Shurts,2 Har- 46. risen 190. * Cro. Eliz. 588. 2 D'Anv. Abr. 227. " Landis v. Shaeffer, 4 S. & R. 199. Gilb. C. P. 274. And see4 Dall. xxv. Smith v. Sharp, 5 Watts 292. Came- * Rob. Dig. 127. ron v. Paul, 11 Penn. St. 277. Bren- ' Henslow v. Bishop of Sarum, 1 nan v. Taylor, 2 W. N. C. 16. Beam Dyer 76 b., pi. 34. Anon., Cro. Car. v. Warfel, 9 L. Bar 185. Jewell v. 145. Earl of Pembroke v. Bostwick, Arwine, Coxe 38. Where a judgment Ibid. 173. Penruddock v. Clerk, Cro. is reversed, and a venire de novo Eliz. 659. Graves v. Short, Ibid. 616. awarded, on a second recovery, the Ferguson v. Rawlinson, 2 Str. 1084. plaintiff will not be allowed the costs I'jtob Dig. 138. of the first trial. Havard v. Davis, 1 8 The' act of 1791, 3 Sm. L. 33-4, Bro. 334. gave double costs on affirmance, in the " Wright v. Small, 5 Binn. 204. former high court of errors and appeals. " Cameron v. Paul, ut supra. 502 EEEOE. suit.' If the defendant in error, upon the reversal of a judgment, pay the costs, in order to carry down the record to the common pleas, where he again obtains judgment, he may recover back the costs so paid, in an action of assumpsit.^ Otherwise, where such payment is not compulsory; as, where judgment upon an award is reversed, and the defendant in error pays the costs, and carries down the record, in order to get posses- sion of the award, with a view to its enforcement in another manner.' § 878. The act of 1874 provides, that in all cases in which a writ of error, or an appeal from a decree in equity, shall delay the proceedings on the judgment of the inferior court, and in the opinion of the supreme court, the same shall have been sued out merely for delay, damages at the rate of six per centum per annum shall be awarded upon the amount of such judgment or decree, by the supreme court ; and an attorney fee of twenty dollars, and the cost of printing the paper-book of the defendant in error or appellee, shall be taxed and collected as pari of the costs of suit.^ Where no error is pointed out in the proceedings, damages will be given under this act ; as, where the only defence is, that the copy filed is not sufiicient to entitle the plaintiff to judgment for want of an affidavit of defence.^ As we have seen, the rule of court provides that where the record is remitted for further proceedings, the fees paid for a copy of the Opinion of the supreme court, annexed to the record, are to stand as part of the costs in the cause.® XVm. Kestitutlon. § 879. When ordered. On the reversal of an execution executed, it is usual for the court to award restitution of the money or thing of which defendant has been deprived by the execution.' This, however, is not matter of right, but of grace, and will not be awarded, where the justice of the case does not call for it, as, where the process is set aside for a mere slip, and there is danger that the plaintiff may lose his demand f or, where the proceedings between landlord and tenant were irregular, but it appeared that the defendant was in possession under agreement of the plaintiff;' or, where the court reversed a judgment on a sd. fa. post annum et diem, on which defendant's land had been sold, and part of the money had been paid to plaintiff, and part to other creditors, and there was a suggestion of the insolvency of the defendant.'" In this ease, the court ordered the money received by plaintiff to be paid into ' Work V. Maolay, 14 S. & R. 265. 25. Winfleld v. Potter, Ibid. 67. Heyer's Appeal, 34 Penn. St. 183. = Rule xvi. ' Hamilton v. Aslin, 3 Watts 222. ' Ranck v. Becker, 13 S. & R. 43. ' Richardson v. Cassilly, 5 Watts Cassel v. Duncan, 2 Ibid. 57. 449. * Harger ». Commissioners of Wa«li- * Act 25 May 1874, P. L. 227 ; Purd. ington County, 12 Penn. St. 251. It 1874. This act is not retrospective, will not be awarded, on a bald legal Van Horn v. Stockham, 1 W. N. C. right, against equity and justice. Grant 246. V. Rodgers, 6 Phila. 132. 5 Binswanger v. Fisher, 3 W. N. C. « Fitzalden v. Lee, 2 Dall. 205 ; s. c. 340. And see Warner ». Lessler, 33 1 Yeates 160, 207. N. Y. 296. Maher v. Carman, 38 Ibid. " Kirk ». Eaton, 10 S. & R. 103. EESTITUTION. 603 court, to await further orders. So, where a judgment was reversed, and the land was bound by judgments subsequent to it in date, the court refused to award restitution to a defendant in insolvent circumstances, but ordered the money to be brought into court, and applied first to the discharge of all liens according to their priority, and the balance, if any, to the defendant himself."^ § 880. The order of restitution is, that "the defendant be restored to all things which he has lost on occasion of the judgment aforesaid," and it is a part of the judgment itself, conclusive of the matters adjudicated by it, not questionable in any collateral proceeding, nor to be delayed to abide the final result of the suit in which it is rendered ; and assumpsit will not lie upon it f otherwise, where there is a reversal, with an award of a venire de novo, but no order of restitution.' The order should be made, when the execution is reversed, but it may be made, at any sub- sequent time, while the record is still in the court.* § 881. What will he restored. The supreme court, however, will award restitution only of what the defendant in error has actually received. If, therefore, land has been sold by the sherifi", for a small sum, subject to the claim of the plaintiff, as ascertained by a verdict and judgment which has been removed to that court by writ of error, and the plaintiff' purchases it of the sheriff''s vendee, and obtains possession, the court will not order restitution of the amount subject to which the land was sold, as well as the price paid for it ; nor will they award a scire facias to show cause why this should not be done.^ But the de- fendant is entitled to be restored to everything he has lost by the execu- tion — as, where he has lost possession of land by an erroneous judgment in ejectment, he is entitled, on reversal, not only to possession, but to the intermediate crops.* By the act of 1705,' it is provided, that if any judgment, whereupon any lands, tenements or hereditaments have been sold, shall be reversed for error, none of the said lands, &c., so taken or sold, nor any part thereof, shall be restored, nor the sheriff's sale or delivery thereof avoided, but restitution, in such cases, only of the money or price for which such lands were sold. Where, however, the purchase is made under void process, this act will not prevent restitution of the land.8 This act is said to be "strictly agreeable to the principles of the common law, in case of the sale of a term for years, in England, in order that sales by sheriff's may not be defeated, provided the sale has been to a stranger."' If, therefore, the sale has been made to the plaintiff in the execution, it would seem, that restitution of the land itself might be had from him ; so, if it were extended and delivered to him to pay in seven years, it will be restored, and not merely the extended value." ' Ranck V. Becker, 13 S. & R. 41. " Breading v. Blocher, 29 Penn. St. 2 Duncan v. Kirkpatrick, 13 S. & R. 347. 292. ' 1 Sm. L. 61; Purd. 651. ' Breading v. Blocher, 29 Penn. St. ^ Burd v. Dansdale, 2 Binn. 92. 347. « Heister v. Fortner, 2 Binn. 47; * Cassel V. Duncan, 2 S. & R. 57. Yeates, J. ' CasseU 0. Cooke, 8 S. & R. 296. '» 1 Arch. Pr. 265. 504 EBEOE. § 882. Nature of the writ. The writ is in the nature of an execu- tion,' and if the person of the plaintiff be out of reach of an ^attachment, or it be inexpedient to issue an attachment against him, the writ is usually issued for the purpose of levying on his estate, personal or real, to make the money. Except in special cases of this kind, however, it is not the practice to issue the writ itself (though it may always be done, if desired) ; but, in lieu of it, the court makes an order of restitution, which Avill be enforced by attachment, if disobeyed. The supreme court, how- ever, will not enforce its order by attachment, in ordinary cases, but will send the record, with the order indorsed on it, to the court below, to be there enforced.^ Where an executor is defendant in the writ, it may be de bonis testatoris et si non, de bonis propriis. The writ or order is a lieu on goods, from the time it goes into the hands of the sheriff, and on lands, from the time of the levy, being within the general rule as to executions.* XIX. Error coram vobis. § 883. Where an issue iu fact has been decided, there is (as we have already seen) no appeal in our law from its decision, except in the way of motion for a new trial ; and its being wrongly decided is not error in that technical sense to which a writ of error refers. So, if a matter of fact should exist, which was not brought into issue, but which, if brought into issue, would have led to a different judgment, the existence of such fact does not, after judgment, amount to error in the proceedings. For example, if the defendant has a release, but does not plead it in bar, its existence cannot, after judgment, on the ground of error, or otherwise, in any manner be brought forward.* But there are certain facts which affect the validity and regularity of the legal proceeding itself; such as the defendant having appeared in the suit, while under age, by attorney and not by guardian ;° but a defendant in ejectment cannot assign this for error ;^ so, where the plaintiff or defendant was a married woman, at the commencement of the suit, or died before verdict or interlocutory judgment.^ Such facts as these, however late discovered and alleged, are errors in fact, and sufficient to reverse the judgment upon writ of error. To such eases the writ of error coram vobis applies ; because the error in fact is not the error of the judges ;" and reversing it, is not ' Duncan v. Kirkpatrick, 13 S. & R. tifiF. Bird v. Pegg, 5 B. & Aid. 418. 294. ' 2 Saund. 101 n.-Day v. Hamburgh, ' Russell V. Gray, 6 S. & R. 208. 2 Bro. 75. Pickett v. Legerwood, 7 » Boal's Appeal, 2 Rawle 37. Pet. 148. Hurst v. Fisher, 1 W. & S. * Steph. Plead. 118. Pickett v. Le- 438. And see Wood v. Colwell, 34 gerwood, 7Pet. 148. Penn. St. 92. * Mercer v. Watson, 9 L. Bar 93. » Tidd 1136-7. Error coram vobis Casteldine v. Mundy, 4 B. & Ad. 90. lies, where the alleged error is not a Marshall v. Jackson, 4 E. & Bl. 669 n. fault in the court, but some defect in Beven v. Cheshire, 3 Dowl. 70. the execution of the process, or some de- ' Goodright v. Wright, 1 Str. 33. fault of the ministerial officers. Phil- And if judgment be given iu favor of lips v. Russell, Hemp. 62. Durand v. the infant, his infancy cannot, in that Halbach, 1 Miles 49-50. It lies, to oase, be assigned for error by the plain- correct a misprision of the plerk in the ERROR CORAM VOBIS. 505 reversing their own judgment. If the defendant die before judgment, the writ is properly issued in the name of his administrator.' § 884. The writ issues upon a "praecipe to the prothonotary, naming the parties, and giving the term and number of the judgment sought to be reviewed f to which must be appended a special affidavit, setting forth the ground upon which the judgment is sought to be reversed ; as, that the defendant had died before the entry of judgment on a warrant of attorney; and that it is not intended for delay; whereupon, the court will specially allow the writ, and grant a stay of proceedings, until it is determined, on giving bail on error, in the usual form.^ On the return of the writ, the plaintiff must assign the special error in fact, on which he relies, praying a writ oi scire facias ad audiendem errores; but, as this writ-is said not to be in use in this state,^ it would seem, that the defend- ant in error may be ruled to plead to the assignment of errors, as in other cases. In the only cases in which the writ has issued, the defend- ant has voluntarily appeared, and pleaded in nullo est erratam.^ If the errors be sustained, the judgment is revocaturf but only the proceedings complained of, as erroneous, are set aside ; the cause remains in court for further proceedings.' The judgment on a writ of error coram vohis may be reviewed in the supreme court f unless it involve a mere question of the exercise of a discretionary power, vested in the court below.' XX. Error in criminal cases. § 885. It is provided by act of assembly, that on the trial of all cases of felonious homicide, and in all such other criminal cases as are exclu- sively triable and punishable in the courts of oyer and terminer and general jail delivery, exception to any decision of the court may be made by the defendant, and a bill thereof shall be sealed, in the same manner as is provided and practiced in civil cases ; and the accused, after conviction and sentence, may remove the indictment, record and all proceedings to the supreme court. In capital offences, a writ of error or certiorari will stay execution of sentence ; in all other cases, such writ will not stay or delay execution of sentence or judgment, without the special order of the supreme court, or a justice thereof, for that purpose ; and in case of such order, the said supreme court or justice may make such order as the case requires, for the custody of the defendant, or for his admission to bail. In all other criminal cases, such exceptions may be taken, and in cases charging the offence of nuisance or forcible entry and detainer, or forcible detainer, exceptions to any decision or entry of judffment. Alston v. Mun- Ewing, ] Phila. 233. ford, 1 Brook. 267. And see Davis v. * Commonwealth v. Emery, 2 Binn. Packard, 8 Pet. 324. 257. ' Devereux v. Roper, 1 Phila. 182. ^ For the forms in e.T:vov coram vohis, '■' The writ will be quashed, if the see 1 Bro. 78 ; 11 Q. B. 340. names of the parties be not truly stated. * Camp v. Bennett, ) 6 Wend. 48. Brown v. Davenport, 4 Wend. 205. ' De Witt v. Post, 11 Johns. 460. ' If the writ be sued out by a surety, * Wood v. Colwell, 34 Penn. St. 92. the court will stay proceedings in a suit ' Ibid. Pickett v. Legerwood, 7 Pet upon his recognisance. Devereux v. 144. 606 EEEOE. ruling of the court may also be taken by the commonwealth. And writs of error and certiorari may be issued from the supreme court to all criminal courts, when specially allowed by the supreme court or any judge thereof.' No writ of error or certiorari can, however, issue in a capital case, after the lapse of twenty days from the sentence, without a special allocatur.^ § 886. Under these statutes, a writ of error in a capital ease, or other case exclusively within the jurisdiction of the oyer and terminer, is of right, if issued within twenty days after judgment ; after the lapse of that time, and in all other criminal cases, it can only issue, when speci- ally allowed by the supreme court, or one of the judges thereof.' The writ issues from the prothonotary's office of the proper district ; but the application for an allocatur and the final hearing may be had before the supreme court while sitting in any other district.* On a certiorari, if the defendant be out on bail, he must enter into a recognisance in the nature of special bail, conditioned for his appearance before the supreme court in banc, from time to time, as the court may order, until the final determination of the cause.' § 887. The act of 1860 provided, that the defendant might except to the decision of the court upon any point of evidence or law f and this rule has been held to be incorporated into the act of 1874 ; the exception thereby given is to the decision of the court below upon a point of evi- dence or law ; it does not require the supreme court to declare the sufii- ciency or insufficiency of the entire evidence to support a conviction.' The act of 1860 also provides that, if, during the trial of an indictment for homicide, the court shall be required by the defendant to give an opinion upon any point submitted and stated in writing, it shall be the duty of the court to answer the same fully, and to fi^le the point and answer with the records of the case ; this, however, does not require the court to write out its charge to the jury.' But in cases of mur- der in the first degree, the supreme court is required by the act of 1870 to determine, from all the evidence, whether the ingredients neces- sary to constitute murder in the first degree have been proved to exist.^ Under this act, the supreme court will not review the facts, on the question of guilt or innocence, as on a motion for a new trial, but will merely inquire whether the facts constitute murder in the first ' Act 19 May 1874, P. L, 219 ; prothonotary cannot issue the writ, Purd. 1874. without » special allocatur. Rule of ^ Act 24 March 1877, P. L. 40; 20 January 1879 ; 6W.N. C. 337. Purd. 2108. This act is constitutional. * Act 31 March 1860, §60, P. L. Sayre v. Commonwealth, 36 Leg. Int. 444 ; Purd. 610. 38. 6 Rule xi. » Hutchison e. Commonwealth, 82 " P. L. 444; Purd. 610. Penn. St. 472. The praecipe for a writ ' Commonwealth v. Ferguson, 32 of eiTor or certiorari in a capital case, Lee. Int. 127. must be accompanied by a certificate, '^Commonwealth ». Jacoby, 1 Pitts, under the seal of the court below, of 489. the date of the sentence ; and if more ° Act 15 February 1870, § 2, P. L, than twenty days have elapsed, the 15 ; Purd. 610. CRIMINAL CASES. 507 degree.^ The court will not reverse for a mere technical error, by which the prisoner has not been prejudiced;^ and where the indictment is good, and there was no error on the trial, but the sentence is defective, the supreme court will re-sentence the prisoner,^ or remit the record, with directions to pronounce the proper judgment.* § 888. In cases in which a special allocatur is required, the prisoner must show that a substantial error was committed on the trial, by which he has been injured f it is never granted on mere technical matters, not going to the merits.' A special allocatur is requisite, on a conviction of forcible entry aud detainer;' but the commonwealth may take a writ of error without such allocatur;^ and the right is not waived, by an unsuccessful attempt to convict on a second indictment.' Upon the affirmance of the judgment, the same is to be enforced pursuant to the directions thereof, and the supreme court may make any further order requisite for carrying it into effect ; in case of reversal, they are required to remit the record, with their opinion, setting forth the causes thereof, for further proceedings in the court below."* XXI. Certiorari to justices' courts. § 889. Nature of tlie tvrit. The certiorari is a writ of error in respect to everything but form;" it is a judicial writ, issued out of the court to which the proceedings are to be removed, directed to the judge or officer who has custody of the record ; and he to whom it is directed, ought to sead the same record, or the tenor of it, as commanded by the writ.'^ Where a superior court has concurrent jurisdiction, it may issue its cer- tiorari to remove an action, or an indictment, or other matter determina- ble by the course of the common law, and proceed on it as the inferior court would have done; but when a special jurisdiction is created by statute, a certiorari lies to remove it, only after judgment, and for revision as to its regularity; the power of the court, in such cases, is purely cor- rectional.^* This writ, when required for the purpose referred to in this ' Grant v. Commonwealth, 71 Penn. St. 53. St. 495. Staup v. Commonwealth, 74 ' Heikes u. Commonwealth, 26 Penn, Ibid. 458. St. 513. 2 Fife V. Commonwealth, 29 Penn. '» Act 31 March 1860, §61, P. L. 444; St. 429. Purd. 610. ' Drew V. Commonwealth, 1 Whart. " Cooke v. Reinhart, 1 Rawle 321. 279. Daniels v. Commonwealth, 7 "A certiorari to remove the judgment Penn. St. 371. in an action before a justice of the * Beale v. Commonwealth, 25 Penn. peace, has long been considered with us St. 1 1 . ' to be, in substance, a writ of error, as * Fife V. Commonwealth, ut supra. the remedy would be in form, were the ' Commonwealth v. Profit, 4 Binn. justice the judge of a court of record." 424. Commonwealth v. Immel, 6 Ibid. Welker v. Welker, 3 P. & W. 24 ; Gib- 403. Commonwealth v. Pennook, 3 son, C. J. And see Young's Petition, S. & R. 199. Commonwealth v. Mar- 9 Penn. St. 216. tin, 2 Penn. St. 244. Commonwealth " Commonwealth v. McAllister, 1 V. Ferrigan, 44 Ibid. 386. Watts 308. ' Commonwealth v. Meyer, 2 S. & R. " Commonwealth v. Nathans, 5 453. Penn. St. 124. Carpenter's Case, 14 * Commonwealth v. Capp, 48 Penn. Ibid. 486. 508 EEKOE. section, issues out of the court of common pleas, directed to the justice by whom the judgment has been rendered, commanding him "to certify and send before them the plea, with all things touching the same, so full and entire as before him they remain, together with the writ itself; that they may further cause to be done thereupon that which of right and according to the laws and constitution of this commonwealth ought." The power of the common pleas to issue writs of eertiorari is derived from the constitution,' which declares that the judges of the courts of common pleas shall, within their respective counties, have the like powers with the judges of the supreme court to issue writs of eertiorari to justices of the peace, and other inferior courts not of record.^ By the act of 1810,^ no writ oi certiorari from the supreme court to a justice, in a civil action, is now available to remove the proceedings. § 890. The prohibition contained in this section, however, only extends to civil suits brought before justices' courts, under the jurisdiction con- ferred by the act of 1810 ; the jurisdiction of the supreme court is not taken away in other cases.* The writ may issue from the supreme court, to review the judgment of a justice's court, in a prosecution for a penalty under the road laws, at the suit of the commonwealth f and to review proceedings between landlord and tenant ;' or by a purchaser at sheriff's sale to obtain possession.' A certiorari lies from the common pleas, to review a summary conviction before a justice, in a criminal case f but not in a civil case, where a jury-trial is had before the justice, under a statute which expressly declares that the sole remedy of a party ag- grieved shall be by appeal.' The defendant cannot take both an appeal and a certiorari;^'' but the entry of an ineffectual appeal, is no bar to a certiorari, within the time prescribed by law.'' And where a justice's transcript is delivered to a magistrate of another county, the court of the latter county may reverse on eertiorari, if the absence of jurisdiction be apparent on the face of the record.'^ § 891. Affidavit. Before the writ issues, the party applying for it, or his agent or attorney,'^ must declare, on oath or affirmation, before a judge or the prothonotary of the court,'* "that it is not for the purpose of delay, but that, in the opinion of the party applying for the same, » Art. V. § 10. ' McClure v. White, Add. 192. '' The writ of certiorari may issue Clark v. Yeat, 4 Binn. 185. from the oommoa pleas, whenever a ' Lenox v. McCall, 3 S. & R. 95. new jurisdiction is conferred upon * Commonwealth ». Morey, 10 Phila. magistrates, and the proceeding is 460. summary. Wilt v. Philadelphia and ' Hill v. Olmstead, 1 W. N. C. 387. Lancaster Turnpike Co., 1 Brewst. 411. '" Philadelphia u. Kendrick, ! Brewst. 8 5 Sm. L. 172 ; Purd. 607. 406. Ward v. Harligan, 1 W. N. C. * Commonwealth v. Betts, 76 Penn. 72. St. 465. " Commonwealth v. Fiegle, 2 Phila. ' Ibid. But not, it seems, in a qui 215. tarn action, by a private prosecutor, for '^ Adams v. Hill, 29 Leg. Int. 126. a penalty given Ijy ordinance. Spicer '' Act 27 March 1833, ^ 2, P. L. 99 ; i>. Rees, 5 Rawle 119. Nor, in an action Purd. 604. under the stray law. Frick u. Patton, '* Act 3 February 1817, 5 Sm. L, 2 Ibid. 20. 398 ; Purd. 609. CEETIOEAEI. 509 the cause of action was not cognisable before a justice, or that the pro- ceedings proposed to be removed are, to the best of his knowledge, unjust and illegal, and, if not removed, will oblige him to pay more money, or to receive less from his opponent, than is justly due ; a copy of which affidavit shall be filed in the prothonotary's office." It is not necessary to pursue precisely the words of the act, but the affidavit should substan- tially set forth the reasons of removal ; and an omission to state that the proceedings would oblige the party to pay more money than was justly due, was held fatal.' So, on a certiorari to remove proceedings against special bail, an affidavit that the defendant would.be obliged to pay more money than he owed, was held insufficient.^ But to obtain a certiorari, in summary proceedings between landlord and tenant, it is not necessary to make the oatli prescribed by the act of 1810.' § 892. Sail, A special allocatur is not now required f the writ issues on a pr(Bcipe to the prothonotary, after the filing of the affidavit above described. To make it efiective, however, as a supersedeas, the prothono- tary, previously to the issuing of the writ, takes from the party applying, or his agent or attorney ,° a recognisance in the nature of bail in error, which is subscribed by the surety or bail upon the appearance-docket, conditioned that the party applying for the writ shall prosecute it with effect, and if the judgment of the justice be affirmed by the court, that he will pay the amount of the debt, interest and costs, or else that the bail will pay it for him. It is only necessary for the like purposes, and in like cases, as bail in error ; being an extension, by construction, of the statutes requiring bail in error, to certiorari.^ § 893. lAmitation. No judgment will be set aside in pursuance of a writ of certiorari, unless the same be issued within twenty days after judgment recovered, and served within five days thereafter; and no exe- cution will be set aside, unless the certiorari be issued and served within twenty days after the execution issued.' This provision, however, applies only to civil actions, and does not include an action for a penalty under an ordinance;* nor does it apply to cases where the justice has no juris- diction, as, where the cause of action was not cognisable by him,' or where the summons was not served in the manner directed by the act of assembly, and the defendant did not appear.'" But in such case, the 1 Benner v. Ducoing, 1 Bro. 217. * Act 27 March 1833, | 2, P. L. 99 ; 2 Monell V. Phillips, Com. Pleas, Purd. 604. Phila., June 1825. MS. But it is suf- « Clark w. McCormack, 2 Phila. 68. ficient, if it substantially comply with ' Act of 1810, § 21 ; 5 Sm. L. 171 ; the requirements of the act. Zerbe Purd. 608. V. Bewry, Com. Pleas, Schuylkill, 29 « Caughey v. Pittsburgh, 12 S. & R. March 1875. MS. 53. ^ Rubicum v. AVilliams, 1 Ash. 230. ' O'Malley v. Dempsey, 3 Leg. Gaz. * Act 26 April 1855, P. L. 304. This 225. Masters v. Turner, 10 Phila. 482. act is constitutional. McGinniss v. Ingham v. Siokler, 2 Luz. L. Reg. Vernon, 67 Penn. St. 149. A special 105. allocatur is required for a certiorari " Offerman v. Downey, Com. Pleas, to remove a summary conviction before Phila., Oct. 1849. MS. Tryon u. Keller, a justice, in a criminal case. Com- Com. Pleas, Phila., 2 Oct. 1852. MS. monwealth v. Morey, 10 Phila. 460. " The jurisdiction of an inferior court 510 CEETIOKARI. party must satisfy the court, that his application was made within twenty days after the fact of the entry of the judgment came to his knowledge ;' a justice's judgment cannot be reversed for error, unless the certiorari were sued out within twenty days, if the defendant had notice of the decision ;^ especially, if he applied to have the judgment opened.^ If, however, the justice enter judgment, without service of process, the defendant may sue out a certiorari, within twenty days after knowledge of the judgment ;* and if the justice render judgment against two defend- ants jointly, and the record show a service upon but one of them, a eorti- orari will lie to reverse the proceedings, after the expiration of twenty days.^ So also, a judgment obtained by any trick or fraud, may be reversed, after the lapse o,f that period.^ § 894. Service and return. It is the duty of the party taking the certiorari, to see that it is delivered to the justice before whom the pro- ceedings were had, and that the record is properly returned by him ; to enforce the return in due time, a rule upon the magistrate will be granted by the court, if necessary. By rule of court, in Philadelphia, it is made the duty of the party suing out a certiorari, to cause the record to be returned two days before the first argument-day,' in default of which, the writ will be dismissed. The return should include the whole pro- ceedings before the justice, and the original precepts should be sent, with copies of the judgment and executions, if any be issued f a transcript would neither answer the requirements of the act, nor the exigence of the writ at the common law ;' no other return than that of the record can be legally made.^" It has never been the practice, in this state, to serve a copy of the writ on an attorney, nor is the writ accompanied by a cita- tion ; But the court of review will take care that notice is given, and that proper parties are put on the record. In case the whole record is not returned, either party may allege diminution, and a rule on the justice to return the missing part will be granted. § 895. Assignment of errors. By rule of court, in Philadelphia and most other counties, "the particular exceptions intended to be insisted on, must be filed two days before the first argument-day, and in cannot be presumed, but must appear Galley v. Davenport, Ibid. 149. French affirmatively in every essential particu- v. Pennsylvania and New York Canal lar." Fritz v. Fisher, 5 Clark 355 ; and Railroad Co., 1 Leg. Chron. 66. Hare, J. And see Crosscupsu. Bissell, * Stedman v. Bradford, 3 Phila. 4 W. N. C. 560. A service before the 258. return-day, is essential to confer juris- ' Paine v. Godshall, 29 Leg. Int. 12. diction of the person. Fisher v. Long- Masters v. Turner, 10 Phila. 482. neoker, 8 Penn. St. 410. Benedict v. « Lacock v. White, 19 Penn. St. 498. Hickok, 3 Luz. L. Obs. 80. ' Rule xiii. 1 40. 1 Campbell v. Penn District, Com. » Act of 1810. § 22 : 5 Sm. L. 171; Pleas, Phila., 19 March 1853. MS. Purd. 607. The justice need not re- ' Brookfield v. Hill, 1 Phila. 439. turn the evidence; if he do so, it will Heft V. Hammill, Ibid. 394. Jones v. not be noticed. Managers of the Poor Delaware and Hudson Canal Co., 10 v. Zinck, 1 Ash. 64. Bedford v. Kelly, Ibid. 570. Harrison v. Wilkinson. 1 61 Penn. St. 491. Luz. L. Reg. 89. Scheaffer v. Smith, » Torr's Appeal. 1 Rawle 77. 2 Leg. Chron. 52. '» Commonwealth v. MoAllistei, 1 » Dailey v. Bartholomew, 1 Ash. 135. Watts 307. CEETIOEAEI. 511 default thereof, the judgment below will be affirmed of course; the assignment of general errqrs is insufficient and void."' Such a rule is valid, and necessary for the dispatch of business.^ But, though matters not specially excepted to, will not, in general, be noticed, yet the court always reserves to itself the right, whenever justice demands it, to notice a substantial error in the proceedings, such as a want of jurisdiction.' In general, exceptions must be confined to matters apparent on the face of the record.* § 896. Grounds of reversal. By the act of 1810,° the " proceedings of a justice of the peace shall not be set aside or reversed for want of formality in the same, if it shall appear on the face thereof, that the defendant confessed a judgment for any sum within the jurisdiction of the justice, or that a precept issued in the name of the commonwealth, requiring the defendant to appear before the justice, on some day certain, or directing the constable to bring the defendant forthwith before him, agreeable to the provisions of that act, and that the constable having served the said precept, judgment was rendered, on the day fixed in the precept, or on some other day to which the cause was postponed by the justice, with the knowledge of the parties; and no execution shall be set aside for informality, if it shall appear on the face of the same, that it issued in the name of the commonwealth, after the expiration of the proper period of time, and for the sum for which judgment had been rendered, together with interest thereon and costs, and a day mentioned on which return is to be made by the constable, and that the cause of action shall have been cognisable before a justice of the peace." § 897. In matters within his ordinary jurisdiction, and where the pro- ceedings are according to the common law, every reasonable presumption, not inconsistent with the record, will be made in favor of the justice's proceedings, except on the point of jurisdiction,^ and his judgment, though erroneous, is binding on the parties, until reversed on certiorari or appeal.^ But his jurisdiction must appear affirmativ^y upon the record,* and as it does not extend to all cases of contract, the record ought to show the nature of the contract to be such as is cognisable bj' a justice. In summary convictions, however, and in actions under special jurisdic- tions for penalties, &c., no intendment will be made in favor of his pro- ceedings, and the record must show not only his jurisdiction, but proof sufficient to sustain every material point.^ Thus, in an action of debt ^ Rule xiii. ^ 39. NeeUs u. MoKeown, Cornish «. Young, 1 Ash. 153. Knight 6 Phila. 310. »• Parry, Ibid. 221. Fisher v. Nyce, '' Snyder v. Bauchman, 8 S. & R. 60 Penn. St. 107. 336. ' Emery v. Nelson, 9 S. & R. 12. » Herrigas v. McGill, 1 Ash. 152. » Mulvary u. Miller, 1 Bro. 339. Commonwealth v. Cane, 2 Pars. 265. ' Commonwealth v. Cane, 2 Pars. Paine v. Godshall, 29 Leg. Int. 12. 265. Commonwealth v. Piegle, 2 * Curran v. Atkinson, 1 Ash. 51. Phila. 215. Philadelphia v. Duncan, Dumber v. Jones, Ibid. 215. Managers 4 Ibid. 145. Clark v. Bartlett, 8 Ibid, of the Poor o. Zinck, Ibid. 64. Com- 301. Commonwealth v. Finkheimer, 9 monwealth v. Evans, 29 Leg. Int. 133. Ibid. 504. Commonwealth v. Davenger, 5 5 Sm L. 171 ; Purd. 607. 10 Ibid. 478. Sohnell v. Philadelphia • Gibbs V. Alberti, 4 Yeates 373. 1 W. N. C. 636. 512. CERTIORARI. for a penalty for the violation of an ordinance, the record should state not only the substance of the ordinance, but what is alleged against the defendant, as to his acts, or omission of anything to be done, which exposes him to the penalty; and if there be two penalties, the judg- ment must be specific for which it is rendered.^ So, where the cause of action was "for a violation of the first section of an ordinance of the district aforesaid, passed the 1st July 1820," nothing more being stated, the court reversed the proceeding for informality.^ § 898. The day of appearance and judgment must appear on the record ;^ but if the day on which the parties appeared is mentioned, and then the docket-entry proceeds to state, that the cause was examined, and judgment rendered, the court will presume that judgment was given on that day;* if, however, the judgment be given by default, the record should state the hour f and that the defendant did not appear at the hour appointed f it must also appear, that the constable was sworn to his return.'' In trespass to real estate, the record need not show that it was sitaate in the county where the action was brought ;* but in trespass for breaking an awning-post, the record must show that it was the property of the plaintifil' And where referees are appointed under the act of 1810, the record must show a compliance with all the provisions of the statute.'" That the judgment was rendered "publicly," will be presumed, in the absence of evidence to the contrary." Unless it appear by the record, that evidence was given in support of the plaintiif's claim, the judgment must be reversed ;'^ but it is sufficient, to set forth the kind of evidence received.^' In a landlord and tenant case, it is ground of re- versal, that the justice signed the notice to quit, as the plaintiff's agent." Merely formal errors, however, will be disregarded ;'^ such as, a variance between the summons and complaint, by which no person could have been injured.'^ § 899. Hearing. A certiorari must be heard and decided at the term to which the proceedings of the justice are made returnable." At the 1 Mauayunk v. Davis, 2 Pars. 289. Daly u. Nolan, 6 Phila. 310. French Commonwealth v. Boos, 1 Luz. L. Reg. v. Pennsylvania and New York Canal 375. and Railroad Co., 1 Leg. Chron. 66. ^ Fraily v. Sparks, 2 Pars. 232. See Shell ». McConnell, ] Pears. 27. And see Bright. Dig. tit. " Penal Stat- " Lenore v. Ingram, 1 Phila. 519. utes," II. Moohamer v. Wenner, 1 Luz. L. Reg. » Anon., Add. 272. 696. Sauser v. Werntz, 21 Pitts. L. J. * Buckmyer v. Dubs, 5 Binn. 29. 15. ' Lindsay v. Sweeny, 6 Phila. 309. '' Douglass v. Laoey, 3 Leg. Gaz. 253. ^ Smith V. Petherston, 10 Phila. 306. French v. Pennsylvania and New York ' Fitzgibbons v. Essen, Com. Pleas, Canal and Railroad Co., ut supra. Phila., 10 March 1862. MS. '* Wistar v. Conroy, Binns's Just. « Brown V. Quinton, 2 Clark 169. (8th ed.) 14L Brown «. Fruit, 3 Ibid. 295. '« Stewart v. Thompson, 2 Ash. 120. ' Cummings v. Jenkins, Com. Pleas, " Road Commissioners v. Fiokinger, Phila., 14 Nov. 1848. MS. 51 Penn. St. 48. "> Weissbrod v. Gelder, 3 Leg. Gaz. " This is merely directory ; the 260. court does not lose jurisdiction by an " Snyder v. Carfrey, 54 Penn. St. 90. omission to do so. Stevenson v. Law- CEETIOEARI. 513 hearing, the attorneys for the parties deliver paper-books, setting forth the points to be discussed. In Philadelphia, a special day is usually assigned to the hearing of certioraries. If the proceedings appear on the face of the record to be regular, and jurisdiction is shown, the court, in general, will not look beyond the face of the magistrate's return ;■ but it will, sometimes, to prevent injustice, look into the evidence given before the justice,^ though that need not be set out at length, the justice being only required to state the demand and the nature of the evidence pro- duced in support of it.' For some purposes, the court will receive parol evidence — as, where there is reason to infer corruption or partiality on the part of the justice, in refusing to hear material testimony ;* where a want of jurisdiction cannot be otherwise shown — as, where one justice re-examines a matter already determined by another f where it does not clearly appear whether the judgment is rendered against the defendant, in his private or official capacity, as, a justice of the peace, who assigns for error an omission of the notice allowed by law to justices of the peace before suit instituted;^ and where it is alleged that the judgment is fraudulently ante-dated.^ Matters delivrs the record must be brought before the court by deposition, not by ex parte affidavit;^ and the parol evidence must relate to the conduct of the justice, not to that of the party ;' such evidence will not be admitted, unless the justice be charged with want of jurisdiction, partiality or misconduct.'" And no favor will be shown to a defendant, who might have had a remedy by appeal, and has lost it by his own laches ;'' nor will the court go so far as to interfere with matters properly within the discretion of the justice.'^ § 900. Judgment. The judgment of the common pleas on the certio- rari, whether of affirmance or reversal, is final ; and no writ of error will lie upon it.'' But this applies only to cases where the justice's jurisdic- tion is given by the act of 1810 ;" and a writ of error will lie to a judg- rence, 1 Brewst. 134. Sheppard's Case, ' Fitzsimmons v. Evans, 1 Ash. 52 n. 65 Penn. St. 34. ' Shell n. McConnell, 1 Pears. 27. ' Overseers of Coventry v. Cum- * Jones v. Pettit, 4 W. N. G. 14. mings, 2 Dall. 114. Curran v. Atkin- ' Road Commissioners v. Fickinger, son, 1 Ash. 51. Managers of the Poor 51 Penn. St. 48. Fisher v. Nyce, 60 V. Zinck, Ibid. 64. Ibid. 107. ' Buckmyer v. Dubs, 5 Binn. 29. '" Lancaster Agricultural Park Asso- Pray v. Reynolds, Com. Pleas, Phila., ciation v. Copland, 9 L. Bar 66; s. c. 1820. MS. 6 Luz. L. Reg. 251. The court has no ' Jones V. Evans, 1 Bro. 209. power to award an issue to try disputed ' Worstall V. Meadowcroft, 1 Ash. facts, Pool v. Morgan, 10 Watts 53. 52 n. Dumber v. Jones, Ibid. 215. " Morton v. Plowman, 1 Yeates 251. Knight V. Parry, Ibid. 221. McMullen Bradley v. Flowers, 4 Ibid. 436. V. Orr, 8 Phila. 342. Warren w. Wells, " Knight v. Parry, 1 Ash. 221. 3 Luz. L. Reg. 111. '' Act of 1810, ? 22 ; 5 Sm. L. 171 ; ' Burginhofen v. Martin, 3 Yeates Purd. 607. Cozens v. Dewees, 2 S. 479. Dumber v. Jones, 1 Ash. 215. & R. 112. Silvergood v. Storrick, Ohio and Pennsylvania Railroad Co. «. 1 Watts 532. Johnson v. Hibbard, 3 Brittain, 1 Pitts. 271. Johnson Whart. 12. Borland v. Ealy, 43 Penn. V. Aylesworth, 3 Ibid. 237. Sauser v. St. 1 14. Werntz, 21 Pitts. L. J. 15. Torbert '* Commonwealth v. Burkhart, 23 V. Yocum, 2 Leg. Chron. 319. Penn. St. 521. VOL. I.— 33 514 CERTIOEAEI. ment on certiorari, in cases of summary conviction, or where extraordinary jurisdiction is given by special statute.' Where the act applies, however, it covers every part of the judgment on the certiorari, whether as regards reversal, costs, execution or any other matter.^ § 901. Execution. On the affirmance or reversal of a judgment, the record is not remitted to the justice, as in cases of writs of error to infe- rior courts ; but execution issues at once from the common pleas, for the debt, interest and costs, in the former case, or for costs only, in the latter, without referring the cause again to the justice.' The party in whose favor the judgment has been affirmed, may also take a scire facias against the bail, upon his recognisance, who, like the bail on a writ of error, is liable, without any previous process being had against the principal.* Where the certiorari, however, is non-prossed, the record must be remitted to the justice, to be proceeded in ; in this respect, there is no difference between a certiorari and a writ of error.' § 902. Costs. Costs, on a second trial, after reversal of a judgment on certiorari, are regulated by the act of 1810,^ which directs that when the plaintiff removes and reverses the justice's proceedings, and on a second trial before him, or any other justice, if judgment shall not be obtained for a sum equal to or greater than the original judgment, the plaintiff shall pay all costs accrued on the second trial, as well as those which accrued at the court, including any fees not exceeding four dol- lars, which the defendant may have given his attorney in such trial, together with fifty cents per day to the defendant, while attending court in defence of the proceedings ; and where the defendant removes and reverses the judgment, and it shall appear that he attended the trial before the justice, or had legal notice to attend the same, and on a final trial being had as aforesaid, the plaintiff shall obtain judgment for a sum equal to or greater than the original judgment, the defendant shall pay all costs accrued on the second trial before the justice" of the peace, as well as those which accrued at the court before whom the proceedings had been set aside, including any fees, which the plaintiff may have given to any attorney, not exceeding four dollars, to defend the pro- ceedings of the justice, together with fifty cents per day, while attending at court on the same ; which costs shall be recovered before any justice of the peace, in the same manner as sums of a similar amount are reco- verable. The right to recover the costs, in such cases, depends on the relative amount recovered in the first and subsequent judgments; and this provision does not extend, therefore, to the reversal of an execution.' ' Zimmerly v. Road Commissioners, * Smith v. Ramsay, 6 S. & R. 573. 25 Penn. St. 134. Commonwealth v. ^ Welker v. Welker, 3 P. & W. 24. Betts, 76 Ibid. 465. Warner v. Moore, 3 Luz. L. Reg. 108. « Silvergood v. Storrick, 1 Watts Tobiu v. Griffith, 4 Ibid. 114. 532. « 5 Sm. L. 172; Purd. 608. ' Robbins v. Whitman, 1 Dall. 410. ' Atkinson v. Crossland, 4 Watts Essler V. Johnson. 25 Penn. St. 350. 450. CHAPTER XXVII. Of Costs. I. Of the PLAiNTirr's costs, ? 904. Right to costs in general, § 904. Statute of Gloucester, § 905. Costs de incremento, | 906. Costs in scire facias and waste, ^907. In partition, ? 908. In foreign attachment, § 909. In feigned issues, § 909. In divorce, ? 909. In suits on forfeited recognisances, J 909. In suits for registered taxes, ? 909. In lunacy, § 909. Judge's certiiicate in trespass, ?910. In assault and hattery, ? 911. In trespass quare clausum fregit, §912. In -ivilfiil and malicious trespass, §913. In slander, § 914. Power of the jury over the costs, §915. Under the statement law, § 916. In case of tender, § 916. Several issues, § 917. Actions within the jurisdiction of a justice, § 918. Jurisdiction of justices, § 919. Wlien costs recoverable without a previous affidavit, § 920. When the demand is reduced by set-off or payment, § 921. 11 Of the defeitdant's costs, § 922. When a defendant recovers costs, §922. Costs in replevin, § 923. Several defendants, § 924-5. Against equitable plaintiffs, § 926-7. Security for costs, § 928. When security must be given, § 929. When the motion must be made, §930. Costs of a former suit, § 931. In what cases proceedings will be stayed, § 932. Motion for stay of proceedings, §932. Tender before suit brought, § 933. Tender after suit brought, § 934. m. Costs on appeax from a tusticb's COURT, § 935. Act of 1833, §935. Costs on appeal by the plaintiff, §936. Appeal by the defendant, § 936. Tender of judgment, § 936. IV. Costs of reference and arbitra- tion, §937. Voluntary arbitration, § 937. At common law^ g 937. Of a pending suit, § 937-8. Compulsory arbitration, § 939. Costs on appeal from an award, §940. V. Actions bt and against particu- lar persons, § 941. Lia,bility of executors and adminis- trators, § 941. When they are liable for costs, §942. Other representative parties, § 943. Infant plaintiffs and defendants, §943. VI. Double and treble costs, § 944. When recoverable, § 944-5. Taxation of double and treble costs, §945. VII. Taxation and recovery op costs, §946. Piling of the bill of costs, § 946. Rules of court as to taxation, § 947. Compensatory fees, § 948. Taxation before the prothonotary, §948. Costs of witnesses, § 949. Witnesses attending in several cases, § 950. Who entitled to witness fees, § 951. Mileage of witnesses, § 952. When costs abide the event, § 952. Expense of dociunents, &c., § 953. Remedies for costs, § 954. When an action lies, § 955. Fees of officers, § 955. Remedy by set-off, § 956. (515) 516 COSTS. § 903. Incident to the judgment are costs, or allowances to a party for expenses incurred in conducting his suit, or for which he is responsible to the officers of the court for services rendered to him. They are called final, in contradistinction to interlocutory costs, or such as are awarded on interlocutory matters arising in the course of the suit, and which have already been considered whilst treating of the matters to which they relate. The former, or such as depend on the final event of the suit, will be the subject of the present chapter. I. Of the plaintiff's costs. § 904. Right to costs in general. No costs were recoverable either by the plaintiff or defendant, at common law ;' they are exclusively a creature of statute.^ But though not given eo nomine, they were always considered and included in the quantum of damages, iu all actions in which damages were recoverable ; and the plaintiff, if he obtained a ver- dict in such action, was, in effect, allowed his costs and expenses ; for the jury always computed them in damages.* But the defendant was wholly without remedy, at common law, for any expenses he had been put to, if he had a verdict, or the plaintiff were nonsuit ; the amercement to which the plaintiff was subject, in such case, pro falso clamore suo, going entirely to the king. This was remedied, however, in the case of plaintiffs, by the statute of Gloucester, 6 Edw. I., c. 1,* which provided that the plain- tiff should recover the costs of his writ purchased, " in all cases where the party is to recover damages." Although the statute only makes men- tion of the costs of the writ purchased, yet by a liberal interpretation, it has been extended to all the legal costs of a suit.' And the statute embraces not only all cases in which damages were recoverable at com- mon law, or were given by that statute, but cases in which damages are given by a subsequent statute, though costs be not expressly mentioned therein ;^ as, in assumpsit, covenant, debt on contract, case, trover, tres- pass, assault and battery, replevin, ejectment,' dower unde nihil habet, &c. f and where, by a subsequent statute, double or treble damages are given, where single damages were before recoverable.' § 905. In any case in which damages would have been recoverable at common law, the plaintiff is entitled to costs, though a new remedy be provided by statute, as, in an appeal under the plank-road law ;'° but in such case, no costs are recoverable in proceedings before the freeholders, ' Commonwealth v. Johnson, 5 S. & ^ Creswell v. Hoghton, 6 T. R. 359. R. 199. Maus v. Maus, 10 Watts 88. Tyte v. Glode, 7 Ibid. 268. Kneass v. Schuylkill Bank, 4 W. C. C. ' Postens v. Postens, 3 W. & S. 183. 106. Day v. Woodworth, 13 How. 372. A conditional verdict in ejectment car- ■■' Stewart u. Baldwin, 1 P. &W. 461. ries costs. Bradley v. O'Donnell, 40 Hoffman v. Slossan, 2 W. & S. 36. Penn. St. 479. Wickersham v. Petrow, 5 Penn. St. « Barnett v. Barnett, 16 S. & R. 55 261. Ex parte Shick, 1 Pears. 266. Hillyer v. Larzelere, 10 Johns. 216. ' AUer V. Shurts, 2 Harrison 188. ' Lawson v. Storie, 1 Salk. 205. * Rob. Dig. 107. •» Beardsley v. Honesdale and Dela/- * 2 Inst. 288. Witham v. Hill, 2 ware Plank-road Co., 5 Clark 306. Wils. 91. plaintiff's costs. 517 not beiug given by any statute ;i so, no costs are recoverable in a pro- ceeding to assess railroad damages, unless damages be awarded, and the report confirmed.^ In an action of debt upon a statute, by a party aggrieved, for a certain penalty, the plaintiff recovers costs, though not specially given by the act under which the action is brought f but no costs are recoverable by a common informer, or prosecutor gm iam, unless costs are expressly given by the act imposing the penalty.* The reason of this distinction is, that in the one case, a right to the penalty vests in the party aggrieved from the moment the offence is committed, for the detention of which he is entitled to damages ; in the other, there is no interest until judgment, and, therefore, no illegal detention. The stat- ute of Gloucester did not extend to cases in which no damages were recov- erable at common law, as in partition,' scire facias,^ audita querela^ writs of error, &c.,' nor to cases in which the king was plaintiff; there- fore, in an action at the suit of the commonwealth, no costs are recover- able, unless specially given by statute, as in quo warranto,^ mandamus^" in suits on the bonds of public officers,^^ and many other cases, in which costs are expressly given. § 906. After the statute of Gloucester, the judges began to make it a rule, for the better execution of the statute, that the jury should tax the damages and costs separately ; and when it was evident that the costs given by the jury were too little to answer the costs of the suit, the plaintiff prayed that the officer might tax the costs inserted in the judg- ment ; and this was the origin of costs de incremento}'^ Thus, in giving their verdict in actions of debt or ejectment, the jury say they find for the plaintiff six cents damages and six cents costs, in order that the court may consistently add the increase of costs to the damages. In cases where the verdict is for damages, they find so much damages and six cents costs.'^ In ejectment, the plaintiff is entitled to costs, if he obtain a verdict ; and costs are awarded by the court on reports of referees, though they are, in Pennsylvania, seldom or never specified in ejectment causes.'* When the jury are ex officio bound to give costs, and omit to do so, the court may supply the deficiency -^^ and if the jury assess costs in a case in which they are not recoverable, the judgment is to be entered without costs.'' ' Tripp w.Carbondale and Providence Johns. 251. Turnpike and Plank-road Co., 1 Luz. ^ Stewart w. Baldwin, 1 P. (feW. 461. L. Obs. 50. " Maus v. Maus, 10 Watts 88. 2 Ex parte Shick, 1 Leg. Gaz. 62. ' Gascoigne v. Whalley, 2 Dyer 193 b. And see Philadelphia, Germantown * Smith v. Sharp, 5 Watts 292. and Norristown Railroad Co. v. John- ' Act 14 June 1836, 1 11, P. L. 625 ; eon, 2 Whart, 275. Herbein v. Phila- Purd. 1207. delphia and Reading Railroad Co., 9 '» Ibid, i 24 ; Purd. 990. Watts 272. Beebe v. Newark, 4 Zab. " Act 16 April 1845, P. L. 534. 47. '2 Gilb. C. P. 267. » Jackson o. Calesworth, 1 T. R. 71. " Brack. L. Mis. 196. Norris V. Pilmore, 1 Yeates 405. Rit- " Harvey v. Snow, ] Yeates 156. chie V. Shannon, 2 Rawle 196. '^ Zell v. Arnold, 2 P. & W. 292. * Shore v. Madisten, 1 Salk. 206. Bellas v. Levy, 2 Rawle 21. Bull. N. P. 33. Clark v. Dewey, 5 " Sneively u. Weidman, 1 S. & R. 518 COSTS. § 907. Plaintiff's costs in particula/r cases. The right to recover costs in scire fadas depends on the statute of 8 & 9 Wm. III., c. 11/ which provides that " the plaintiff" obtaining judgment, or any award of execution, after plea pleaded, or demurrer joined therein, shall likewise recover his costs of suit." Under this statute, there can be no recovery of costs, where the defendant suffers judgment to go against him by default, for want of an affidavit of defence ;^ but where defence is taken, costs are recoverable on every proceeding by scire facias, as if it were an original suit.^ Costs on sdre facias upon a mortgage are expressly given by the act of 1705 ;* but the judgment is exclusively de terris ;' the mortgagor, however, may stipulate for the payment of an attorney's commission for collection, as part of the costs of suit,* but such commissions must be included in the judgment, or they are irrecoverable.'^ Where a terre-tenant comes in and takes defence to a sdre facias to revive a judgment, and fails, the proper judgment is de terris, as to the debt, and against the person, as to the costs.* The payment of costs in actions of scire fadas upon mechanic's claims is provided for by the act of 1836 f and they are payable out of the fund, though not prosecuted to judgment at the time of a sheriff"s sale :'" but as the proceeding is exclusively in rem, the contractor is not personally liable for the costs.^' The act of 1836^^ gives costs in a case in which judgment is entered on a bond with a collateral condition, and a sdre fadas is sued out to recover for subsequent breaches.'^ The statute 8 & 9 Wm. III., also gives costs in actions of waste against tenants for life or years (who were not embraced by the statute of Gloucester), where the plaintiff" recovers, after plea pleaded or demurrer joined. § 908. Prior to the passage of the act of 1835,'* costs were not recover- able in an action of partition." That act provides that the costs in partition shall be paid by all the parties in proportion to their several interests ; and that the costs of publication of summons, and notice of inquisition, shall be paid out of the estate. Under this act, the demandant, who has recovered a verdict and judgment, is entitled to demand from the defendant a proportion of the costs of subpoenaing and 417. Lentz v. Stroh, 6 Ibid. 34. Allen » Haskins v. Low, 17 Penn. St. 64. V. Flock, 2 P. & W. 159. » Act 16 June 1836, ? 25-6, P. L. ' Rob. Dig. 140. 701 ; Purd. 1036. ^ Renschler v. Harres, Bright. Costs '" McLaughlin v. Smith, 2 Whart. 184 n. McCoy v. Loughery, 2 W. N. 122. In such case, the court will stay C. 521. Holden v. Winslow, 19 Penn. proceedings on the scire facias. Mat- St. 449. lack v. Deal, 1 Miles 254. ' Haskins u. Low, 17 Penn. St. 64. i' Dickinson College v. Church, 1 W. * 1 Sm. L. 59 ; Purd. 484. & S. 465. 5 Wickersham v. Fetrow, 5 Penn. St. " Act 14 June 1836, P. L. 638 : Purd. 260. 162. » Hulingu. Drexell, 7 Watts 128. " See 11 East 387. Mahoning County Bank's Appeal, " Act 11 April 1835, P. L. 200 ; Purd. 32 Penn. St. 159. McAllister's Ap- 1117. peal, 59 Ibid. 204. And see Schmidt's " Stewart i). Baldwin, 1 P. & W Appeal, 82 Ibid. 524. Faulkner v. 461. Wilson, 3 W. N. C. 339. plaintiff's costs. 519 the attendance of witnesses.* The act of 1864^ is more extensive in its provisions ; it enacts that the costs in partition, " with a reasonable allowance to the plaintiff for. counsel fees, to be taxed by the court, or under its direction, shall be paid by all the parties, in proportion to their several interests." This embraces the expense of the partition proper ; but not a counsel fee for litigation ;' it only extends to services in procuring searches, formal motions, and the preparation of papers and conveyancing.* § 909. In foreign attachment, the right to recover costs, as between the plaintiff and the defendant, exists as in other cases ; but the garnishee is not liable to the plaintiff for costs, beyond the amount attached in his hands, and admitted by his answer;' otherwise, if he plead a false plea.^ The costs of a feigned issue, directed by a court of law, abide the event of the verdict f thus, if a sheriff be made party to an issue to try the right to money made by him on an execution, and the issue be found against him, he is liable for the costs.' But as the fixing of the parties, in order to give form to the issue, is a mere matter of arbitrary arrange- ment, parties who have no real interest in the question to be tried, will not be subjected to the costs ; the court will seek out those who have taken an active part in the contest, and compel them to pay the expenses of the litigation.' And where feigned issues are directed to try disputed facts arising on the distribution of the proceeds of a sheriff's sale, the costs of forming and trying the issues will be apportioned among the several creditors.*" And the costs of an issue devisavit vel non must be borne by the parties to it; not by the estate." In proceedings for divorce, the court may award costs to the successful party, or decree that each shall pay his or her costs, as shall appear reasonable and just;*^ and where a libel, at the suit of the wife, is dismissed with costs, a fien facias therefor may issue against the next friend.*' In an action on a forfeited recognisance, it is questionable whether any costs are recoverable, inasmuch as the commonwealth neither pays nor receives costs, unless specially directed by act of assembly.** The * St. Peter's Church v. Zion Church, 170. Mumper's Appeal, 3 W. & S. 2 Clark 349. 441. An executor is not bound to be- ^ Act 27 April 1864, P. L. 641; come party to such, issue, unless indem- Purd. 1118. ■ nified against the costs. Royer's Ap- ' Snyder's Appeal, 54 Penn. St. 67. peal, 13 Pei». St. .569. And see Lan- * Grubb's Appeal, 82 Penn. St. 21. dis's Estate, 1 Phila. 528. 5 Walker v. Wallace, 2 Ball. 113. *' Act 12 March 1815, ?12; 6 Sm. Wood V. Ludwig, 5 S. & R. 446. New- L. 289 ; Purd. 511. lin V. Scott, 26 Penn. St. 102. " South v. South. 1 Pitts. 187. « Foyle V. Foyle, 1 Phila. 182. Her- ** 2 Bl. Com. 400. Commonwealth ring V. Johnson, 5 Ibid. 443. v. Johnson, 5 S. & R. 199. The act 8 & ' Snyder v. Kunkleman, 2 Watts 9 Wm. 111., giving costs in scire facias, 426. does not extend to a writ in the name ^Hippie V. Hoffman, 2 Watts 85. of the crown. King v. Miles, 5 T. R. ' Dotts V. Fetzer, 9 Penn. St. 88. 367. And it was necessary, to enable And see Steel v. Bridenbach, 7 W. & S. the king to recover costs in an action 151. upoua specialty, to provide therefor by '» Cowden's Estate, 1 Penn. St. 283. a special statute, 33 Hen. VIII., c. 39, '* Koppenhaffer v. Isaacs, 7 Watts 1 54. By the express provisions of the 520 COSTS. act of 1842 provides,^ that the costs of suit, together with a reasonable compensation for the person, his agent or attorney, who shall have pros- ecuted the same to final judgment, shall be paid out of the fund recovered. The act of 1847^ contains a similar provision as to suits for registered taxes in Philadelphia. The costs of an inquisition of lunacy are in the discretion of the court ; it may order who shall pay them, or apportion them among the parties in interest.' § 910. Judge's certificate. Under the statute of Gloucester, where the plaintiff recovered damages, he was entitled to full costs, however trifling the sum recovered ; but this right has been restrained, in certain cases, by subsequent legislation. Accordingly, by the statute 22 & 23 Car. II., c. 9,* which is in force in this state, for the prevention of trivial and vexatious suits at law, it was enacted, that " in all actions of trespass, assault and battery, and other personal actions, wherein the judge, at the trial of the cause, shall not find, and certify under his hand upon the back of the record, that an assault and battery was sufiiciently proved against the defendant, or that the title or freehold of the land mentioned in the plaintiff's declaration was chiefly in question,' the plaintiff in such action, in case the jury shall find the damages to be under the value of forty shillings,'' shall not recover or obtain more costs of suit than the damages so found shall amount unto." Notwithstanding the general words of this statute, it has always been restrained by construc- tion to the two cases specially mentioned — actions of trespass quare clausum f regit, and actions of assault and battery; for, in no other case, is it possible to give the required certificate.^ And it does not extend to a writ of inquiry.* To entitle the plaintiff to full costs under this statute, where the damages are under forty shillings, the judge's certificate must be made before judgment.' § 911. To entitle the plaintiff to full costs in assault and battery, where the damages found by the jury are under forty shillings, the judge must certify that both the assault and the battery were proved.^" And where the action is in form an action of assault and battery, yet, if it be only maintainable in respect of special damages resulting from the Statute of ■Westminster I., the sheriff St. 3.57. waa bound to executetheking'sprocess ' Gilb. C, P. 263. Reeves v. Butt- without any fee, which is^o other but ler, Gilb. Eq. Rep. 196. Brown v. Tay- a declaration of the common law. Hale lor, 3 Keb. 31. Orpgood v. Holden, on Sheriffs' Accompts 29. Ibid. 389. Venn v. Phillips, I Salk. > Act 30 July 1842, § 26, P. L. 454 ; 208. Beck v. Nichols, 1 Str. 577. Si- Purd. 699. monds v. Barton, 76 Penn. St. 434. 2 Act 13 March 1847, P. L. 589 ; » Bull. N. P. 329. Purd. 1086. ° Simonds v. Barton, 76 Penn. St. Clark's Case, 22 Penn. St. 466. 434. See Johnson v. Stanton, 2 B. & Rob. 1% 138. C. 621. Towers v. Viele, 1 Johns. Cas. » See Taylor v. Nichols, 3 B. & Aid. 221. 443. Thomas v. Davies, 8 Ad. & E. " Smith v. Neesam, 2 Lev. 102. Such 377. a certificate has been given in this state. ' The forty shillings are to be esti- ' Cragan v. Kavanaugh, Bright. Costs mated in Pennsylvania currency, equal 30. to §5.33. Chapman v. Calder, 14 Penn. JUDGE S CEETIFICATE. 521 offence, it is not within the statute ;' and the statute does not extend to an action of assault and battery, per quod servitium amisit, nor to trespass and assault upon, and criminal conversation with, the plaintiff's wife, nor to assault and false imprisonment.^ But in an action for assault and battery, and tearing the plaintiff's clothes, if the plaintiff have a verdict for less than forty shillings, he shall have no more costs than damages, unless the judges certify; because the tearing of the clothes is a mere consequence of the battery, and not a substantive cause of action.^ Even in cases clearly within the statute, however, if the defendant plead a justification, the plaintiff shall have full costs, although the verdict be for less than forty shillings f and as, under the plea of non ml., with leave to give the special matter in evidence, the defendant may, by our practice, prove everything that amounts to a justification, it is unneces- sary that the justification should appear from the record, if the defendant actually justified.^ But where the defendant only justifies the assault, the plaintiff cannot have full costs, without a certificate f and where there is a verdict for the defendant, upon a plea of justification, and a verdict against him, upon the plea of not guilty, the plaintiff is not entitled to full costs, without a certificate/ § 912. In trespass qitare clauswn fregii, the plaintiff is entitled to full costs, without a certificate, although the damages be under forty shil- lings, where it appears from the pleadings that the freehold or title to the land could not have come into question.' And so also, where it appears on the face of the pleadings, or from the nature of the case, that the freehold or title to the land must have come into question, a certifi- cate is not always necessary to entitle the plaintiff to full costs. Thus, where, in a declaration for trespass upon land, a count is added for injury to personal property, the plaintiff is entitled to full costs, without a certificate f and where, in an action of trespass quare clauswn fregit, and carrying away goods, a recovery of five dollars damages was had, the plaintiff was held to be entitled to full costs.^" So, if the defendant justify the trespass, either by plea or notice of justification.^' But where the further injury is laid by way of aggravation of the trespass on the land, the plaintiff is not entitled to costs, without a certificate ;'^ and so also, where the asportavit is only alleged by way of description of the man- ner in which the injury to land was committed.'' Though the court, 1 Anderson v. Buckton, 1 Str. 192. » Guffey v. Free, 19 Penn. St. 384. 2 Shufelt V. Rowley, 4 Cow. 58. Bat- Reeves v. Buttler, Gilb. Eq. Rep. 196. chelor v. Bigg, 3 Wils. 319. Peaks v. '» Williams v. Glenn, 2 P. & W. 137. , 3 Keb. 184. Breneman v. Neff, 1 Leg. Opin. 122. ' Cotterill v. Tolly, 1 T. R. 655. " Wagner v. Day, Dist. Court, Phila., Lockwood V. Stannard, 5 Ibid. 482. Sept. 1827. MS. * Fisher v. Johnson, 1 Bro. 197. '^ Simonds v. Barton, 76 Penn. St. Washer v. Smith, 2 Barnard. K. B. 434. 277. " Clegg V. Molyneux, 2 Doug. 749. * Fisher v. Johnson, ut supra. In trespass or trover, in a justice's * Page V. Creed, 3 T. R. 391. court, if the damages recovered do not ' Beck ». Nichols, 1 Str. 577. exceedonedollar,theplaintifFshallhave « Keen v. Whistler, 1 Str. 534. no more costs than damages. Act 22 Thompson v. Berry, Ibid. 551. March 1814, 6 Sm. L. 182 ; Purd. 867. 522 COSTS. however, is bound by this statute, the jury are not ; they may give less than forty shillings damages in trespass, and full costs. Where there is a fixed measure of damages, beyond which the jury cannot go, they must be governed by it ; but where they are controlled by no standard, it would be idle, and without any practical effect, to say they must give damages only as such ; for the costs, which are almost always given as a compensation for the injury, would then be given, as in truth intended, by the name of damages, as before the statute of Gloucester.' § 913. One inconvenience resulted from the construction placed upon the statute of 22 & 23 Car. II. — that the plaintiff could not recover for any trespass, however wilful and malicious, if the damages found were under forty shillings, unless the defendant asserted a title to the land ; for remedy whereof, it was enacted by the statute of 8 & 9 Wm. III., c. 11, § 4,^ which is in force in this state, that if the judge shall certify that the trespass was wilful and malicious, the plaintiff shall have full costs, though the verdict be for less than forty shillings. Every trespass is wilful, within the meaning of this statute, where the defendant has notice, and is especially forewarned not to come upon the land ; as every trespass is malicious, where the intent of the defendant plainly appears to be to harass and distress the plaintiff.' Thus, it was held, that "over- seers entering a pauper's house, and taking away his bed, after the plain- tiff had desired them to go away," is a wilful trespass under the statute.* Where the trespass has been committed after notice, the judge usually certifies under this act ;' but it is perfectly discretionary with him to do so or not,° and he will not certify, if it appear that the trespass was com- mitted for the purpose of asserting a. disputed right.^ And such certifi- cate, it seems, may be given in other cases of trespass, besides quare clausmn fregit? The certificate in this case may, it seems, be granted out of court ; and the judge may certify at any time between verdict and final judgment.' § 914. Slander. The plaintiff's general right to costs has been fur- ther restrained by the act of 1713,'" copied from the 21 Jac. I., c. 16, which declares that in all actions upon the case for " slanderous words," if the damages found be under forty shillings, the plaintiff shall recover no more costs than damages." This statute, however, extends only to such words as are actionable of themselves ;'^ and it is settled, that the statute does not extend to slander of title, for that is not so properly a slander, as a cause of damage ;'' and where the words are not actionable in themselves, 1 Hinds V. Knox, 4 S. & R. 417. » 4 D. & R. 147 ; 2 B. & 0. 580. Painter v. Kisler, 59 Penn. St. 334-5. '» 1 Sm. L. 77 ; Purd. 1336. "■ Rob. Dig. 140. " See MoCarrigher v. Wilcox, 21 « 3 Bl. Com. 214. Pitts. L. J. 69. * Woodf. L. T. 549. " Ruth v. Bdelmati, 2 Leg. Gaa. 125. ^ Reynold ». Edwards, 6 T. R. 11. Moon v. Long, 12 Penn. St. 207. « Good V. Watkins, 3 East 495. " Law v. Harwood, Cro. Car. 141. Heath V. Molnroy, 6 Johns. 277. Moon v. Long, ut supra. Goodrich v. ' Ibid. Stewart, 3 Wend. 439. « Milburne v. Read, 3 Wils. 325. COSTS IN SLANDEE. 523 but the special damage is the gist of the action, the plaintiif is entitled to full costs, although the damages may be under forty shillings ;' where, however, the words are actionable in themselves, but the special damage is laid by way of aggravation, and as the essential cause of action, the plaintiff is not entitled to more costs than damages;^ and a plea of justi- fication, in slander, will not take it out of the statute.' If damages under forty shillings be recovered in slander, and judgment entered for costs, on error brought by the defendant below, the judgment will be reversed in toto, and a venire facias de novo awarded.^ Where a plaintiff appealed from an award of arbitrators in slander, allowing six cents damages, and the jury gave five dollars damages, it was held, that though he could not recover more costs than damages, yet he was entitled to recover back the costs paid by him on the appeal from the award." In actions of slan- der, arbitrators and juries are not restricted as to costs, where they find damages under forty shillings, they may find twenty cents damages and full costs, or they may find that each party pay half the costs.^ In all other actions on the case for torts, the plaintifi" is entitled to his full costs of suit, however trifling the damages may be ; an action for libel is not within the statute.^ § 915. In England, the power of the judges is taken away by the stat- ute as to giving costs de incremento, where the damages are under forty shillings, but although the court cannot increase the costs, the jury are not bound by the statute, and, therefore, they may give ten pounds costs where they give but ten pence damages ; so, where they give less than forty shil- lings damages, they may give full costs;* and this rule has been adopted by the supreme court, in construing our act of assembly.' The true reason why the court is bound, while the jury are not, seems to be, that there being no measure of damages in the cases which fall within these stat- utes, the jury are not bound to give damages eo nomine, but may sub- stantially do the same thing, in another form, by increasing the costs to the amount of the damages intended to be given.*" The construction of the statute has always been, that although the court cannot add the costs de incremento, yet the jury may find any sum they please in costs." Thus, in trespass quare elaxisum /regit, the jury may give full costs, although they find damages under forty shillings, and the judge do not ' Browne v. Gibbons, 1 Salk. 206 ; ages. Stuart v. Harking, 3 Binn. 321. s. c. 7 Mod. 129. Mitchell v. Young- Brown v. Ettla, 1 Pears. 180. Other- husband, Barnes 135. Moon v. Long, wise, of an award with " cost of suit." 12 Penn. St. 207. Gower t;. Clayton, v,t supra. But see ' Turner v. Horton, Barnes 132. Moon v. Long, 12 Penn. St. 207. Surman v. Shelleto, 3 Burr. 1688. ' Haff v. Hutchinson, 1 Cow. 415. Collier v. Gaillard, 2 W. Bl. 1062. Graves v. Warner, Merrifield on Costs » Dovor V. Robinson, Barnes 128. 448. * Gailey v. Beard, 4 Yeates 546. ^ Browne v. Gibbons, 1 Salk. 206 ; 5 Guy V. Wilkeson, 2 Watts 133. s. c. 7 Mod. 129. Cornoggt'. Abraham, « Gower v. Clayton, 6 S. & R. 85. 1 Yeates 253. Moon V. Long, 12 Penn. St. 207. Wil- ' Stuart v. Harkins, 3 Binn. 321. lett V. Seville, 2 Gr. 388. An award '» Hinds v. Knox, 4 S. & R. 417. for one dollar and costs, only entitles Painter v. Kisler, 59 Penn. St. 335. the plaintiff to as much costs as dam- " Wilkinson v. Grey, 14 S. & R. 345. 524 COSTS. certify that the freehold was in question.' But if a suit be brought in the common pleas, without a previous affidavit, for a matter within the juris- diction of a justice, neither the jury nor referees can give costs ;^ nor on appeal from a justice's court, where the recovery is for less than the amount of the justice's judgment ^'^ nor on appeal from an award, where the defendant obtains a verdict more favorable than the award ;^ nor can referees deprive the plaintiff of costs, when the law allows them.' § 916. Under the statement law,° if the plaintiff, on the trial, do not recover more than the amount for which the defendant was willing to confess judgment, no costs will be recovered that accrue subsequently to the offer of confession of judgment, except the costs of the execution, when the same may be necessary. So, the plaintiff may make a tender, after suit brought, at any time before the trial, of a sum of money, with the costs incurred ; and if the plaintiff, on the trial, fail to recover a greater amount than such sum, with legal interest thereon, he must pay all the costs legally incurred after the time of such tender; but the defendant must keep up such tender, at every trial of the action, or may pay the amount into court.' § 917. Where there are several issues, and the substantial issue is found for the plaintiff, he is entitled to the general costs of the cause, with the exception of such parts of the costs of witnesses, papers, &c., as are applicable only to the issue on which the defendants have succeeded. And this was decided to be the practice in Pennsylvania, in a case which occurred in the common pleas of Lancaster, in which the prothonotary was directed to strike out of the plaintiff's bill all costs not properly applicable to the count on which he recovered.^ And the general prin- ciple established by the cases is, that where there are several issues of fact upon several counts in the declaration, and a verdict passes for the plaintiff on any one of the issues, he is entitled to a general judgment for costs, and the defendant is not entitled to costs on the counts deter- mined in his favor.' This practice, however, in England, has been altered by rule giving the defendant costs on the issues on which he succeeds. Where the defendant pays the debt, after suit brought, the plaintiff is entitled to judgment for costs ;'" but where a case is settled by agreement, each party must pay his own costs.'' ' Hinds V. Knox, 4 S. & R. 471. ' Northampton Bank v. Winder, 3 ' Guier v. JIoFaden, 2 Binn._ 587 ; Clark 223. s. c. 1 Ash. 1. Heath ». Atkinson, ' Astley v. Young, 2 Burr. 1232. 1 Bro. 231. Sneively v. Weidman, 1 S. Butcher v. Green, 2 Doug. 652. & R. 417. '» Wagner v. Wagner, 9 Penn. St. ' Lewis i>. England, 4 Binn. 5. 214. And where payment was made, Downs V. Lewis, 1 3 S. & R. 198. after a summons had issued, and been * Lentz V. Stroh, 6 S. & R. 34. placed in the hands of the sheriff, but Holdship V. Alexander, 13 Ibid. 230. not served, it was held, that the plain- ' Spear v. Jamieson, 2 S. & R. 530. tiff was entitled to the amount paid by Allen V. Flock, 2 P. & W. 159. him for service of the writ. Drew v. « Act 21 March 1806, § 5 ; 4 Sm. L. Conrad, Dist. Court, Phila., 12 May 328 ; Purd. 1166. 1849. MS. ' Act 12 March 1867, P. L. 35 ; Purd. " Thomas v. Kast, supra, I 777 n. 1395. AMOUNT IN CONTROVERSY. 525 § 918. Actions ivithin the jtirisdiction of a justice. The general rule established by the statute of Gloucester, that the plaintiff is entitled to costs in all cases where he recovers damages, has been further re- strained by the act of 20th March 1810,' giving jurisdiction to justices of the peace, of all causes of action arising in contract (with certain excep- tions), where the sum demanded is not above one hundred dollars ; and by the 26th section, it is provided, that any person who shall bring suit in court, for a debt or demand made cognisable by the justices, is debarred from costs, unless, before the issuing of the original writ, he file in the office of the prothonotary, his oath or afiirmation, that he verily believes " the debt due or damages sustained exceed the sum of one hundred dollars."^ § 919. Jurisdiction is conferred upon justices of the peace, by the act of 1810, of all causes of action arising from contract, either express or implied, where the sum demanded is not above one hundred dol- lars ; except cases of real contract, where the title to lands or tenement may come in question ; and actions upon promise of marriage. And the act of 1814^ excepts from their jurisdiction actions of ejectment, replevin, slander, assault and battery, false imprisonment, and actions on real contracts for the sale or conveyance of lands. But the same act confers upon them jurisdiction in trover, in trespass to real or personal estate, and in actions for rent ; except where the defendant makes afB- davit that the title to lands will come in question. This embraces actions for ground-rent ;* and, consequently, if the plaintiff sue for ground-rent in the common pleas, without a previous affidavit, and take judgment on two returns of nihil, under the act of 1840,^ he cannot recover costs f but this is remedied, as to actions brought in the county of Philadelphia, by the act of 1857.^ Justices have no jurisdiction of actions on the case for consequential damages f nor in any case, except where the judgment is to be for a sum certain ;' in all such cases, no previous affidavit is requisite, to entitle the plaintiff to recover costs. §920. The jurisdiction of justices' courts being concurrent with that of the common pleas, in cases of trespass, a plaintiff- who sues in the latter court, and recovers less than one hundred dollars damages, is entitled topfull costs, without having filed a previous affidavit.'" But an 1 5 Sm. L. 161 ; Purd. 847. lass v. Davidson, 1 Phila. 516. Heineke ^ Such af&davit should be annexed to v. Kohler, 2 Ibid. 44. the prssoipe. It must be in the ■words ' Knight v. Wiltberger, 4 Teates of the statute. Kelley u. Dodge Manu- 127. This excludes from his jurisdic- faoturina Co., 86 Penn. St. 466. tion, the action of detinue. Sprenkle ' Act 22 March 1814, 6 Sm. L. 182 ; v. Spots, Com. Pleas, York, 6 Dec. 1825. Purd. 867. MS. A justice has no jurisdiction in * Rover V. Ake, 3 P. & W. 461. account-render. Wright v. Guy, 10 Louer v. Hummel, 21 Penn. St. 450. S. & R. 227. Steffen v. Hartzell, 5 ° Act 8 April 1840, P. L. 249 ; Purd. Whart. 448. And see the cases on the 751. jurisdiction of justices, collected in « Janney v. Funston, 1 Phila. 373. Bright. Dig. tit. "Justices' Courts," I. Louer v. Hummel, ut supra. '" Clark v. McKisson, 6 S. & R. 87. ' Act 8 April 1857, P. L. 175 ; Purd. Moyer v. Illig, 52 Penn. St. 444. De- 751. vers v. Gething, 21 Pitts. L. J. 115. ' Mann v. Bower, 8 Watts 179. Richards v. Gage, 1 Ash. 192. Herrigaa v. McGill, 1 Ash. 152. Doug- 526 COSTS. action of assumpsit for a breach of warranty in the sale of a horse being within the jurisdiction of a justice, the plaiutiif cannot recover costs, without a previous affidavit, if the verdict be for less ihan one hundred dollars.^ So, also, if the plaintiff sue in the common pleas, in assumpsit for unskilfulness in the performance of a contract, and do not recover more than one hundred dollars, the verdict does not carry costs ;^ otherwise, where the plaintiff brings a special action on the case ; it is substantially a tort, though a tort deducible from the existence of a con- tract.^ Where the plaintiff has the option to sue either in case or assumpsit, his right to costs depends on the form of action adopted.* § 921. It is well settled, that where the amount recovered by the plaintiff, in an action commenced in the common pleas, is reduced to a sum below one hundred dollars, by a set-off or cross-demand, the plain- tiff is entitled to costs, without having filed a previous affidavit ; and this, whether the set-off or cross-demand be of a liquidated or of an un- certain nature f so, also, if the plaintiff's demand be reduced below one hundred dollars, by an equitable defence.^ It is otherwise, where a debt is reduced to a sum within the jurisdiction of a justice, by direct payments ; in such case, costs are not recoverable, without a previous affidavit as to the amount of the demand ;'' where, however, the plain- tiff sues in the common pleas, without a previous affidavit, and recovers less than one hundred dollars, the pleas being payment and set-off, and the court below gives judgment for costs, it will be presumed, on error, that the claim was reduced by evidence of set-off.' If the verdict be for more than one hundred dollars, the court will not inquire whether or not it included interest, so as to affect the question of costs, in a case in which the jury were not bound to allow interest on the claim.' II. Of tlie defendant's costs. § 922. Neither by the common law, nor by the statute of Gloucester, was the defendant entitled to recover costs, if the plaintiff failed in his suit ; but by the statute of 4 Jac. I., c. 3,"" it is enacted, that in all cases 1 Sneively v. Weidman, 1 S. & R. 417. ler v. Slobaugh, 3 Ibid. 38?. Grant v. Landis «. Powell, 2 L. Bar, 6 May 1871. Wallace, 16 Ibid. 253. Bartram v. Mo And see Sample v. Cramptey, 13 Leg. Kee, 1 Watts 39. Odell v. Culbert, 9 Int. 85. W. & S. 66. Barry v. Mervine, 4 Penn. ^ Lytle V. Morris, 2 Am. L. Reg. St. 330. Glamorfran Iron Co. v. Rhule, 120. s. p. Conn v. Stumm, 31 Penn. St. 53 Ibid. 93. Shirley v. Eutriken, 3 W. 14. N. C. 51. » Zell V. Arnold, 2 P. & W. 292. « Bartram v. McKee, I Watts 39. Henion v. Morton, 2 Ash. 150. Manning v. Baton, 7 Ibid. 346. * If the plaintiff declare in case, ' Cooper v. Coats, 1 Dall. 308. Stew- both for a breach of warranty and de- art v. Mitchell, 13 S. & R. 287. Rogers ceit, and recover less than |100, the v. Ratcliffe, 23 Penn. St. 184. verdict carries costs, without a previous * Minich v. Minich, 33 Penn. St. affidavit. Cauffman v. Baird, Common 378. Pleas, Juniata, March 1875 ; Junkin, ' Knecht v. Freyman, 86 Penn. St. P. J. MS. 333. 5 Brailey v. Miller, 2 Dall. 74. '» Rob. Dig. 129. There were prior Spear v. Jamieson, 2 S. & R. 530. Sad- statutes giving costs to defendants in defendant's cosi!) 527 in which a plaintiff would be entitled to costs, if he recovered, the de- fendant shall recover his costs, if a verdict be found for him, or the plaintiff be nonsuit. This statute extends to every species of action ; and, accordingly, it was held, that where the plaintiff in an attachment- execution, not content with the answers of the garnishee to interrogato- ries, compels the latter to plead, and, on the trial, becomes nonsuit, the garnishee is entitled to recover costs, as he would have been liable for them, in case the plaintiff had proved a larger amount to be in his hands than was admitted by the answers.'^ Other statutes give costs to defendants, in cases not provided for by this act; thus, the statute 8 Eliz., c. 4,^ gives costs upon a discontinuance ; and a nol. pros, is a dis- continuance within the act.^ The statute 8 & 9 Wm. III., c. 11,* allows costs to a defendant upon a judgment on demurrer, and in actions of sdre fadas, upon verdict, nonsuit or discontinuance ; this statute does not embrace the case of a judgment on demurrer to a plea in abatement.' And the statute 18 Eliz., c. 5, gives costs to the defendant, on a verdict, in an action upon a penal statute, by a common informer, though the plaintiff would not have been entitled to costs, had he succeeded.* § 923. As a plaintiff in replevin might have recovered damages at common law, and, therefore, was entitled to costs by virtue of the statute of Gloucester, the defendant recovers costs, under the statutes referred to in the preceding section.'^ And our statute gives double costs to the defend- ant, in replevin upon a distress for rent, if the plaintiff become nonsuit, discontinue, or have judgment against him f but under this act, where the cause is arbitrated, the plaintiff is not compelled to pay double costs, in order to obtain an appeal ; the statute only contemplates a final judg- ment ;' and, it seems, that a distress for a rent-charge is not within the act.'" It is provided by another act," that if a replevin be issued for any goods or chattels, seized or taken in execution, or by distress or other- wise, by any sheriff, constable, collector of taxes or other officer acting under public authority, such writ shall be quashed, on motion, with treble costs ; this act extends to a replevin for property seized for non- payment of a militia fine ;'^ and to a replevin for goods seized in execu- tion for the city water-tax.^' It does, not, however, extend to a replevin issued against the sheriff's vendee ;" nor to a replevin issued against any particular cases, which have been sup- ' Tibbal v. Cahoon, 10 Watts 232. plied by the general provisions of this * Act 20 March 1772, ^ 10; 1 Sm. L. act. See Bright. Costs 80. 372 ; Purd. 1265. ' Hall V. Knapp, 1 Penn. St. 213. ' Hartley v. Bean, 1 Miles 168. See Newlin v. Scott, 26 Ibid. 102. Gurney v. BuUer, 1 B. & Aid. 670. ' Kob. Dig. 125. " Leominster Canal Co. v. Cowell, ' Cooper V. Tiffin, 3 T. R. 511. 1 Bos. & Pul. 214. Leominster Canal * Rob. Dig. 140. Co. v. Norris. 7 T. R. 500. Linden v. ^ Thomas v.- Lloyd, 1 Salk. 194. Collins, Willes 429. Garland v. Extend, Ibid ; s. c. 6 Mod. " Act 3 April 1779, 1 Sm. L. 470; 88. Toms V. Loyd, 12 Ibid. 195. Purd. 1266. « Kirkham v. Wheeley, 1 Salk. 30. " Pott !). Oldwine, 7 Watts 173. Garland v. Burton, 2 Str. 1103. Wil- " Stiles v. Griffith, 3 Yeates 82. kinson v. Allot, Cowp. 366. This stat- " Shearick v. Huber, 6 Binn. 2; s. c. lite has not been reported to extend to 2 Bro. 160. Pennsylvania. 628 COSTS. other persou than the officer ;^ and the court will not entertain a motion to quash, before service.^ § 924. Several defendants. In trespass, assault, false imprisonment, or ejectment, if there be several defendants, and one of them is acquitted, he shall recover his costs, in the like manner as if a verdict had been given against the plaintiff, unless the judge shall, immediately after the trial, in open court, certify upon the record that there was a reasonable cause for making such person a defendant.' When one of several defendants lets judgment go by default, and the other pleads a plea, which goes to the whole declaration, and shows that the plaintiff had no cause of action, if this plea be found for the defendant who pleaded it, he shall have costs ; and being an absolute bar, the other defendant shall have the benefit of it, and shall not pay costs to the plaintiff;^ but when the plea goes merely in discharge of the party pleading it, then the other party shall pay costs, though it be found against the plaintiff.^ § 925. But as all statutes relating to costs are to be construed strictly and according to the letter, the decisions on this act have restricted its operation to actions of trespass -vi et armis :^ and accordingly, an action of trespass on the case has been held not to be within the statute f nor is an action of trover,' or of replevin.' So, an action of sdre facias was held not to be within the statute ; and therefore, in an action of sdre facias to revive a judgment, with notice to several terre-tenants, where a several issue was joined between the plaintiff and each terre-tenant, and a verdict and judgment were rendered against some of the terre-tenants, and in favor of the others, the latter were held not entitled to recover their costs from the plaintiff."*" But, in a recent case, where a sdre fadas was issued against several defendants, and judgment was rendered against some of them by default, and in favor of others, on the plea of nul tiel record, it was held, that the latter were entitled to recover their costs against the plaintiff, under the equity of the second section of the statute, which enacts that, in any form of action, whenever, upon any demurrer, judg- ment shall be given by the court against the plaintiff, the defendant shall have judgment to recover his costs against such plaintiff." And where 1 Mulholm V. Cheney, Add. 301. * Day v. Hanks, 3 T. R. 654-6. English V. Dalbrow, 1 Miles 160. And « Hull, on Costs 143. see Weed v. Hill, 2 Ibid. 122. ' Dibben v. Cooke, 2 Str. 1005. It ^ Shewell v. Maokinley, 1 Miles 54. does not extend to an action on the case This act is said to have been made on for a malicious prosecution, though a the spur of the occasion, and in the false imprisonment be alleged as matter fervor of a revolution, many actions of aggravation. Murray v. Nichols, 6 having been brought by persons whose Bing. 530. goods were taken for taxes and militia ' Poole i>. Boul ton, Barnes 139. Maiv fines ; and is not to be extended by riner v. Barret, cited 3 Burr. 1285. construction. Mulholm v. Cheney, ' Ingle v. Wordsworth, 3 Burr. 1284. Add. 304. See Journ. Ass. 316, 227, '" Maus v. Maus, 10 Watts 87. 346, 352. " Steele v. Lineberger, 72 Penn. St. » Stat. 8 &9 Wm. III. c. 11, Rob. 239. And see 2 H. Bl. 28; 6 Taunt. Rig. 139. Urich v. Forney, 1 Pears. 93. 398. The statute of Jac. I. gives costs, * Porter v. Harris, 1 Lev. 63. Biggs where one of several defendants suffers V. Greenfield, 8 Mod. 217. judgment by default, and thq others EQUITABLE PLAINTIFFS. 629 there are several garnishees to a scire facias, in a proceeding in the nature of foreign attachment, it would seem, that those obtaining judgment are entitled to costs.^ § 926. Equitable plaintiffs. The act of 1829 provides,^ that " the equitable plaintiff, or person for whose use or benefit, and at whose in- stance, any action has been or may be prosecuted, whether named on the record or not, shall be liable to execution on judgment against the legal plaintiff or plaintiffs ; provided, that where such equitable plaintiff or plaintiffs were not named on the record, previous to judgment, his name shall be suggested on the record, supported by affidavit of his interest in the cause, before execution shall issue." This statute has made no alter- ation in the responsibility of an equitable plaintiff for the costs of an action ; for, long prior to its passage, it had been decided, that where an action had been carried on for the use of another, after judgment for the defendant, the court would permit the defendant to suggest the name of the cestui que use, and would rule him to pay the costs.^ But, by this act, a defendant is enabled to collect his costs from the party to whose use the suit has been prosecuted, by an execution against the actual plain- tiff.* Nor does the act relieve the legal plaintiff, by whom the suit was commenced, from his liability for costs.' § 927. Any person who brings an action in the name of another, is liable for the costs f and the court will search out the actual plaintiff, and fix on him the responsibility.^ Where a suit is founded on a chose in action, it must be brought in the name of the legal owner, for the use of the equitable owner ; but that is mere form, for he who holds the equity is the real party, and he is liable for costs f and where a chose in action is assigned, before suit brought, the nominal plaintiff is not liable for costs, where the transfer is without any collusion, and where the nominal plaintiff takes no part in carrying on the suit, nor is to gain any advan- tage from its termination, in any respect;' nor, it seems, is one who obtaiu a verdict on the trial. Price v. facias on a judgment against several Harris, 10 Bing. 557. terre-tenants, but there is no analogy. ' Mao-ruder v. Adams, District Court, Appeal dismissed. Phila. 2" Feb. 1850. Per curiam. The '^ Act 23 April 1829, 10 Sm. L, 455 ; 35th section of the act of 16 June Purd. 588. 1836, relating to execution, provides ' Canby v. Ridgway, 1 Binn. 496. that an attachment may issue in the Steele ». Phoenix Insurance Co., 3 Ibid, case of a debt due the defendant ; " but 312. in such case, a clause, in the nature of * Miller v. Lint, 36 Penn. St. 447. a scire facias against a garnishee in a * Kiuly v. Donnelly, 6 Phila. 120. foreign attachment, shall be inserted in And see Gilford v. Gilford, 27 Penn. St. such writ of attachment." It is clear, 202. then, that the attachment occupies, in ^ Brewer v. Hayes, 2 Watts 12 And respect to the garnishee, the same place see Gallagher v. Jlilligan, 3 P. & W. that a separate scire facias does against 177. Utt v. Long, 6 W. & S. 174. a garnishee in a foreign attachment, ' Armstrong v. Lancaster, 5 Watts and it is not to be doubted, that such a 68. Tomb's Appeal, 9 Penn. St. 67. scire facias is a suit, costs in which are ' Presbyterian Congregation v. Car- recoverable, as in the case of a suit lisle Bank, 5 Penn. St. 350; Coulter, J. commenced by original process. The • ' Lyon v. Allison, 1 Watts 162. question has been likened to a scire Wistar v. Walker, 2 Bro. 171. VOL. I. — 34 530 COST8. becomes interested in the prosecution and recovery of a claim, after suit brought, and divests himself of that interest, before the trial of the cause, liable for the costs ; and if liable, the responsibilty only extends to those actually incurred during the continuance of his interest.* So, where an award is assigned, and, on appeal, the other party recovers a judgment, the assignee is not liable for the costs.^ § 928. Security for costs. So necessary an appendage or incident to the judgment have costs now become, that the defendant may (under some circumstances), at an early period of the suit, call on the plaintiff to furnish security for the costs, or else to submit, in our practice, to a judgment of nonsuit or non-pros.; which security extends not only to costs already incurred, but also to the prospective costs of the suit;' and, therefore, the recognisance or obligation entered into by the plaintiff and his sureties, should be devised so as to bind them to the payment of costs, in case the plaintiff should not prosecute his suit with effect.* It is provided by rule of court, that, " in cases where the plaintiff resides out of the state, at the time of suit brought, or subsequently removes therefrom,^ in qui tarn actions,* in suits on administration or office bonds, or where the plaintiff, after suit brought, has taken the benefit of the insolvent laws, the defendant, on motion, and affidavit of a just defence against the whole demand, may have a rule for security for costs ; and for waut of security, at a time named by the court, judgment of nonsuit will be entered, on motion."' § 929. Under this rule, security for costs is of course, where the plain- tiff resides out of the state f and a non-resident must give security for costs, though he be actually within the jurisdiction.' If the plaintiff remove from the state pendente lite, the defendant must apply for secu- rity for costs, as soon as the fact comes to his knowledge.*" But security for costs will not be required, where one of the plaintiffs resides within the state, though the others be non-residents ;'* otherwise, if the resident plain- tiff die pendente liteP A non-resident administratrix may be required to give security for such costs as may be awarded against her de bonis * Orphans' Court v. Woodburn, 7 W. a non-resident petitioner in an equita- & S. 165. A party, however, to whom ble proceeding. Tyndall's Estate, 6 W. a pending action is assigned, and for N. C. 562. whose use it is prosecuted, if his inter- * Fisher v. Evans, 1 Bro. 256. A est continue until the time of trial, is non-resident plaintiff in replevin can- liable for all the costs from the com- not be required to give security for mencement of the action. Gambers costs ; they are sufficiently secured by V. Robinson, 1 Pears. 67. the ordinary replevin-bond. Howard '' Ritter v. Gundrum, 3 Am. L. J. v. Herbert. 36 Leg. Int. 16. Rogers v. 63. Hitchcock.' 9 Wend. 262. ' Ayres v. Sweigart, 6 Watts 191. ' Hansen v. Ackley, 2 W. N. C. 569. * Bowne v. Arbuncle, 1 Pet. C. C. *" McGarry v. Crispin, 3 Clark 25. 233. " Zimmerman v. Mendenhall, 2 Miles 5 See Sharp ». Buffington, 2 W. & S. 402. Pfister v. Gillespie, 2 Johns. 454. Cas. 109. Ten Broeck v. Reynolds, ' See Respublica v. Prior, 1 Yeates 13 How. Pr. 462. 206. " Lewis v. Powell, 2 Johns. Cas. 67. ' Rule xiy. ^41. The rule applies to Lambert v. Smith, 1 Cr. C. C. 347. SECURITY FOE COSTS. 531 propriis;^ so may the non-resident guardian of an infant plaintiff.^ A foreign corporation plaintiff must give security for costs f a non-resident claimant in a sheriff's interpleader •* a non-resident heir, on an appeal from the grant of probate of a will f and a non-resident equitable plain- tiff, where the resident legal plaintiff is insolvent.^ But the rule of court does not apply to a plaintiff suing for a personal tort, who has been discharged as an insolvent, pendeiUe lite ; the rule only applies to cases in which the beneficial interest in the action has passed to the assignees.' § 930. It is never too late to move for security for costs, if it do not delay the trial.^ It was ordered, where the cause was at issue, and on the trial-list — there being an interval of three weeks before the commence- ment of the period.^ But it is too late, when it will delay the trial of the cause ; as, where notice was given on the day of trial f and it was refused, after an appeal from an award of arbitrators, where the case was on the trial-list." So, also, where there has been an award of arbi- trators, from which an appeal has not been taken.'^ A general affidavit of defence is sufficient, on moving for security for costs ; the particulars of the defence need not be specified." § 931. Costs of a former suit. The practice of the courts to stay proceedings in a second action, where the plaintiff has failed in a former suit against the same defendant, for the same cause, until the costs of the former action are paid, originated in the action of ejectment, and afterwards, the practice was extended to other forms of action, but in all cases, as well in ejectment as others, the vexation of the party is the ground on which the court interposes in this' way." When the merits of the cause have been heard, and the plaintiff is either nonsuited or a ver- dict passes against him, the plaintiff will not be permitted to harass the defendant with a second suit, on the same ground, until the costs of the first are discharged.'^ Therefore, where, on the trial of an ejectment, the plaintiff was nonsuited, the judge believing the form of action to have been mistaken, and the plaintiff brought a second action against the same defendant, for the same cause, the court refused to stay proceedings, until the costs of the former action were paid ;'^ and where a plaintiff, ^ Murphy v. Darlington, 1 Code R. * Lehman's Estate, Register's Court, 85. And see Chevalier ». Finnia, 1 B. Phila., 4 Sept. 1847. MS. & B. 277. ° Swift u. Collins, 1 Den. 659. ^ Ten Broeck v. Reynolds, 13 How. ' McFarland w. Brown, U S.&R. 121. Pr. 462. * Shaw v. Wallace, 2 Dall. 179 ; s. e. ' Bank of Michigan v. Jessup, 19 1 Yeatea 176. "Wend. 10. Arid a foreign government. ' Hallahan v. Murray, 3 W. N. C. 44. King of Greece v. Wright, 6 Dowl. P. But.see Fuohs v. Wright, 6 Ibid. 157. C. 12. Emperor of Brazil v. Robinson, '» Hawkina v. Wiltbank, 4 W. C. C. 5 Ibid. 522. 285. * Spicer v. Sellers, District Court, " Cantelo v. Binns, 2 Milea 86. Phila., 9 Dec. 1848. MS. Williams v. " McGarry v. Crispin, 3 Clark 25. Crossling, 3 C. B. 957. And a non- '» Sheridan w. Cassidy, 1 W. N. C. 134. resident execution-creditor, who ia de- '* Cochran v. Perry, 2 Clark 521. fendant in a sheriff s interpleader issue. ^ Newton v. Bewley, 1 Bro. 38. Goss & Phillips Manufacturing Co. v. '^ Cochran v. Perry, ut supra. And Gerhard, 7 W. N. C. 51. see Beck v. Clark, 1 W. N. C. 268. 532 COSTS. who was the administrator of both husband and wife, brought trover as administrator of the wife, and suffered a nonsuit,' and then brought suit for the same goods, as the administrator of the husband, to whose estate the goods belonged, the court refused to stay proceedings, until the costs of the former action were paid, on the ground that he did not unneces- sarily vex the defendant.' § 932. Proceedings will be stayed, until payment of the costs of prior actions on the same policy, though there be some variation in the names of the parties, and the costs have not been taxed.^ So, proceedings in ejectment will be stayed, until payment of the costs of a former action in which the present plaintiff was one of the defendants.^ Pro- ceedings will be stayed, until payment of the costs of a former action, though ended by a compulsory nonsuit,* or by a non-pros.^ And pro- ceedings will be stayed in a second action, though no declaration has been filed ; it is incumbent on the plaintiff, to show that the cause of action is not the same.^ And notwithstanding a change in the form of action.^ And proceedings will be stayed in a seire faeias upon a judg- ment on a sheriff's bond, until payment of the costs of a former suit for the same cause.^ But the non-payment of the costs of a former attach- ment-execution, which has been discontinued, is no bar to the issuing of a fieri faaias? It is provided by statute, that where judgment is arrested for the insufficiency of the declaration, a new suit shall not be commenced, for the same cause of action, until the costs of the first suit shall have been paid.'" An application for a rule to stay proceedings, until the costs of a former suit are paid, must be made to the court in banc ;" but the refusal of it is not matter of error.'^ The application is too late, after notice of trial.'' § 933. Tender. By the act of 1705, § 2, it is provided, that where a tender is made of the amount of the debt or demand, previously to the institution of suit, which the plaintiff refuses to accept, the plaintiff is not entitled to recover costs ;" but, under this act, to entitle a defendant to recover costs from the plaintiff, upon a plea of tender before suit brought, he must have pleaded a tender and paid the money into court ;'^ ' Cornelius v, Vanarsdalen, 3 Penn. " Hamilton v. Dawson, 2 Clark 357. St. 434. _ _ '» Act 2 August 1842. § 1 2, P. L. 460 ; '' Flemming v. Pennsylvania Insur- Purd. 117D. Where the first writ is anoe Co., 4 Penn. St. 475. And see quashed, before appearance, proceed- Kentish v. Tatham, 6 Hill 372. ings will not be stayed in a second ' Altman v. Altman, 12 Penn. St. suit, until payment of costs in the 246. See Gouverneur v. Tucker, 2 former. Coxe v. James, 4 Halst. 378. Cow. 596. _ _ _ And see Smith v, White, 7 Hill 520. * Gerety v. Philadelphia and Reading " Plumsted v. Rudebagh, 1 Yeates Railroad Co., 9' Phila. 153. Perkins 502. V. Hinman, 19 Johns. 237. Taylor v. ^'' Withers v. Haines, 2 Penn. St. 435. Vandervoort, 9 Wend. 449. " Bacon v. Sharp, 4 W. C. C. 578. * Hurst V. Jones, 4 Ball. 353. " 1 Sm. L. 49 ; Purd. 487. See Wat- « Stiles V. Woodruff, 1 Phila. 67. son v. Coleman, 7 M. & G. 922. Trem- ' Koons V. Patterson, I Phila. 288. lett v. Adams, 13 How. 295. ° Commonwealth v. MoMiohael, " Sheredine v. Gaul, 2 Dall. 190. Dist. Court, Phila., 11 Deo. 1847. MS. Cornell v. Green, 10 S. & R. 14. TENDER. 533 and it seems, that payment must be made under a rule, regularly ob- tained for that purpose, as a payment irregularly made cannot be recog- nised.' And if the action was originally brought before a justice of the peace, the defendant must also have made the plea of tender before suit brought, and have offered the money to the plaintiff, before the justice f and this should appear on the justice's record, in order to excuse the defendant from the payment of costs on appeal.' Where the plaintiff becomes nonsuit, or the defendant obtains a verdict, after payment of money into court, the defendant is entitled to costs ;■* and it would seem, that in such cases, the plaintiff is not entitled to the costs up to the time of the payment into court f and, although, after payment into court, the defendant can never take it out, yet, if the plaintiff become nonsuit, or fail in his action, the money, if not previously taken out, may be im- pounded to answer the defendant's costs.^ § 934. " In all actions for the recovery of money, founded on con- tract, brought in any of the courts of this commonwealth, or before any of the justices of the peace or aldermen thereof, the defendant or defendants therein shall have the right, at any time before trial in court, to make to the plaintiff' or plaintiffs a tender of lawful money equal to the amount he or they shall admit to be due, with all lawful costs incurred in said action, up to the date of making such tender; and if the party to whom such tender shall be made, refuses to accept the same, then, in the event of the plaintiff or plaintiffs failing to recover more than the principal sum so tendered, with legal interest thereon, he or they shall pay all the costs legally incurred in the said action, after the time of the tender aforesaid : provided, that the said defendant or defendants shall be required to keep up said tender, at every trial of the action, and may pay the money into court, on leave obtained, but shall not be required to preserve or pay in the identical money originally tendered."' III. Costs on appeal from a justice's court. § 935. The costs on appeal from a justice's court, are now regulated by the act of 1833,* which provides, that they shall abide the event of the suit, and be paid by the unsuccessful party, as in other cases. But if the plaintiff be the appellant, he shall pay all costs which may accrue on the appeal, if, in the event of the suit, he shall not recover a greater sum, or a more favorable judgment^ than was rendered by the justice; 1 Harvey v. Hackley, 6 Watts 264. 492. Wheeler v. Woodward, 66 Ibid. ' Seibert v. Kline, 1 Penn. St. 38. 158. * Dawson v. Collins, Bright. Costs * Stodhart v. Johnson, 3 T. R. 657. 281. Stevenson w. Yorke, 4 Ibid. 10. * Jenkins v. Cutchens, 2 Miles 65. ' -Jenkins v. Cutchens, 2 Miles 265. Where a tender is made, before suit ' Act 12 March 1867, P. L. 55 ; Purd. broug:ht, and tbe money is brought into 1395. court, under a plea of tender, the ver- ' Act 9 April 1833, P. L. 480 ; Purd. diet should be for the defendant. Pen- 860. nypacker v. Dmberger, 22 Penn. St. 534 COSTS. and if the defendaut, either on the trial of the cause before the justice or referees, or before an appeal is taken, shall offer to give the plaintiff a judgment for the amount which the defendant shall admit to be due (which offer it is the duty of the justice or referees to enter on the record), and if the plaintiff or his agent shall not accept such offer, then, if the defendant appeal, the plaintiff shall pay all the costs which shall accrue on the appeal, if he shall not, in the event of the suit, recover a greater amount than that for which the defendant offered to give a judgment; and in both cases, the defendant's bill shall be taxed and paid by the plaintiff, in the same manner as if a judgment had been rendered in court for the defendant. This act applies to appeals in cases of trespass and trover.' § 936. Under this statute, the liability for costs on appeal is deter- mined by the verdict, without regard to the judgment of the justice.^ Where the plaintiff appeals from a judgment in his own favor, the sum recovered is the criterion of his right to costs f the court will not go out of the record, to ascertain whether the jury included interest in their ver- dict.^ And where the plaintiff appeals from a judgment in favor of the defendant for a sum certain, and in court there is an award of "no cause of action," neither party recovers costs ; the case does not fall within the statute.^ If the defendant appeal, to exempt him from liability for costs, he must show that he tendered a judgment before the justice, equal to the amount recovered ; and of this the record is the only evidence; it cannot be shown by parol;' nor is it sufficient, that it appear by the justice's certificate to his transcript.'' If, however, such offer be entered on the record, it is error, to receive evidence that it was in fact conditional in its terms.* But nothing short of a tender of judg- ment is sufficient ; a tender of a sum of money equivalent to the amount recovered, with the costs which have accrued, is not enough.' A tender of judgment for the purpose of relieving the defendant from responsi- bility for costs on appeal, may be made by his agent, in his absence ;'° it may be made at any time before an appeal is taken, though the plaintiff be not present ;" but after the entry of an appeal, it is too late, though before the justice has made out his transcript.'^ If such tender be made, to entitle the plaintiff to recover costs, he must recover a greater sum than that for which the defendant tendered a judgment, with interest added ; in such case, it is not necessary to go out of the record, to make 1 King V. Boyles, 31 Penn. St. 424. ' Clemens v. Gilbert, 12 Penn. St. ^ Holman v. Fesler, 7 W. & S. 313. 255. King «. Boyles, ut supra. * Gardner v. Davis, 15 Penn. St. 41. ^ MoMaster v. Rupp, 22 Penn. St. ' Dickerson t>. Anderson, 4 Whart. 298. 78. McDowell v. Glass, 4 Watts 389, * Barker v. McCreary, 66 Penn. St. The act of 1867 [supra, ? 934) has, 162, Haines o. Morehead, 2 Ibid. 65. however, provided for such a case. * Hoffman v. Slossan, 2 W. & S. 36. i" Randall v. Wait, 48 Pena St. And see Addison v. Hampson, 6 Penn. 127. St. 463. » Magill v. Tomer, 6 Watts 494. « McDowell V. Glass, 4 Watts 389. '^ Bogart v. Rathbone, 1 Penn. St. Seibert v. Kline, 1 Penn. St. 38. 188. EEFEEENCE AND AEBITEATION. 536 the comparison between the sum tendered and that recovered.' If two suits be brought before a justice, between the same parties, and both plaintiffs recover judgment, and the defendant in the first and smaller judgment appeal, and on the trial, use his own judgment as a set-off, and have a certificate in his favor, the plaintiff is nevertheless entitled to costs.^ IV. Costs of reference and arbitration. § 937. Voluntary arbitration. It has been said, that arbitrators at common law cannot give costs, unless expressly authorized f but this does not appear now to be the law. Under a general submission of all matters in controversy, the arbitrators may award costs, though no men- tion is made of them in the submission f the power of giving costs is necessarily incident to the authority contained in the general submission of the matters in dispute.* The reason given for denying this power was, that there was no person authorized to tax the costs ; but this rea- son fails, when they award a precise sum as costs, or where they annex a bill of costs to their award ,* or, where, in awarding costs, they direct the party to pay " the taxable costs of the witnesses ;" this is sufficiently certain.^ And where a cause in court is referred by consent, under the act of 1836, the statute provides that the award, if made according to the submission of the parties, being approved by the court, and entered upon the record, shall have the same effect as the verdict of a jury f and, of course, such an award carries costs, where that would be the result of a verdict.' § 938. Where there is a submission under the statute, the right to recover costs does not depend on the submission, nor on the special terms of the award, but on the statute of Gloucester ; and, therefore, the court will award costs,' if the plaintiff be entitled to them, though not found by the referees ;'" as, in an action of ejectment, which is referred under the statute, costs will be awarded, though neither damages nor costs be found by the referees.'^ Where, however, there was an agreement to refer all matters in variance between the parties (there being no pending action or rule of court obtained), and the award was filed under the act of 1806, and subsequently set aside, for misconduct of the arbitrators, and it was then agreed, that the case should stand as a cause in court, as upon an amicable action filed, it was held, that upon a verdict for the plaintiff, the costs of the former arbitration were not taxable in the plaintiff's bill.'2 ' Park V. Sweeny, 39 Penn. St. 111. tual Insurance Co., 22 Wend. ]25. Davidson v. Smith, 2 Clark 24. « Act 16 June 1836, i 6, P. L. 718 ; ^ Groff V. Ressler, 27 Penn. St. 71. Purd. 78. ' Buckley v. Ellmaker, 13 S. & R. 71. * As to the power of jurors and arbi- * Young V. Shook, 4 Rawle 299. trators over the costs, where the law * Strang v. Ferguson, 14 Johns. 161. denies them, see supra, § 915. Cox V. Jagger, 2 Cow. 638. And see '" Bellas v. Levy, 2 Rawle 21. s. P. Wood V. Doe, 2 T. K. 644. Zell u. Arnold, 2 P. & W. 292. * Hewitt V. Furman, 16 S. & R. " Harvey v. Snow, 1 Yeates 156. 135. " Smithu. Farley, Dist. Court, Phila., ' Nichols V. Rensselaer County Mu- 7 April 1849. MS. 636 COSTS. § 939. Compulsory arbitration. Arbitrators appointed under the compulsory arbitration law, have the same powers over costs, and no others, as those appointed by agreement of parties, where no provision as to costs is made in the rule or order under which the cause is referred. Their award, when filed, and entered of record, has the effect of a judg- ment, unless reversed on appeal. But all arbitrators and referees have the power, on an adjournment, to require payment of the costs of the meeting, according to the practice of the courts in like cases.^ Such order, however; cannot be enforced by attachment ; the only mode of enforcing it is, to refuse an adjournment, until the costs are actually paid.^ If the arbitrators ^ive costs where the plaintiff is not entitled to them, the remedy is by appeal or writ of error ; the court of common pleas has no power to alter the award, and enter a judgment without costs.' § 940. The statute gives to either party, dissatisfied with the award of arbitrators, under the compulsory arbitration law, the right to appeal therefrom to the court of common pleas, within twenty days ; but he must first, as one of the conditions of appeal, pay all the costs that may have accrued in the action.^ From this requirement, the act excepts executors, administrators and other persons suing or sued in a represent- ative character, and minors, if the appellant have not taken out the rule of reference.' This exception embraces the trustees of. an insolvent, the sequestrators of a corporation,' and an assignee in bankruptcy ;'' it has been extended to assignees under voluntary assignments for the benefit of creditors.' So, a municipal corporation may appeal from an award, without payment of costs,' And if no costs are recoverable in the action (as where a plaintiff sues in the common pleas for a matter within the jurisdiction of a justice), the defendant may appeal from an award, without paying costs.'" The actual payment of all the taxed costs is ' Act 16 June 1836, ^48, P. L. 727; out payment of costs, although they Purd. 89. may have taken out the rule of refer- ' Arnold v. Burr, 3 Luz. L. Obs. 87. ence. Murray v. Sharp, 72 Penn. St. Butler V. Bates, 5 Hill 375. Johnson 360. Zerbe v. Miller, 1 Pears. 292. !). Gay, 6 Cow. 55. Act 13 April 1846, J 2, P. L. 303; ' Post V. Sweet, 8 S. & R. 391. See Purd. 87. Frost V. Bryant, 4 Leg. Opin. 604. * Turnpike Co. v. McAnulty, 4 W. Fitsimmons v. Leckey, 3 P. & W. & S. 293. 111. ■ ' Morss V. Gritmann, 10 Phila. 573. * Act 16 June 1836, §27, P. L. 723; » ^ct 13 June 1840, JIO, P. L. 691 ; Purd. 86. This provision is not affected Purd. 93. The 28th section of the by the act of 1845, altering the condi- act of 1836 provides for an appeal in tions of the recognisance. Merritt v. forma, pauperis. Smith, 2 Penn. St. 161. And see act ' Robinson u. Jefferson County, 6 W. 13 April 1846, ? 2, P. L. 303 ; Purd. & S. 16. Pottsville v. Curry, 32 Penn. 87. St. 443. * Ibid. ? 31. And see act 27 March " Kerbaugh v. Curry, 2 Phila. 206. 1833, P. L. 99, Purd. 413, giving this And though double costs are recover- right to guardians. Under the recent able in the suit, only single costs are legislation, executors and administra- payable on appeal from an award, tors may appeal from an award, with- Hartley v. Bean, 1 Miles 168. EXECUTORS AND ADMINISTRATORS. 537 essential to perfect an appeal ;* it is not sufficient, to charge them to the appellant's attorney;^ nor is a payment "by draft" sufficient;'' nor a payment by check.'' The appellant must pay the costs of a former award, which was set aside, without terms f but, on appeal from an award in a scire facias to revive a judgment, he is not bound to pay the costs of the original suit.* If, however, the appellant pay all the costs taxed by the prothonotary, the court will not strike off the appeal, though more appear to be due ; the remedy for such omitted costs is, by order for their payment, enforceable by attachment ;' or, if the plaintiff be the appellant, by an order to stay proceedings until payment.' A direction to detain the costs, does not prejudice the appeal ; it is a mere nullity.^ On appeal from an award, the appellant is required to give bail absolute, conditioned for the payment of all costs that may be recovered against him.'" This statute renders obsolete the former deci- sions on the subject of the recovery of costs on appeal from an award ; the appellant pays the costs which have accrued, and those subsequently accruing depend upon the verdict.'' V. Actions by and against particular persons. § 941. In England, prior to a late statute,'^ in actions brought by execu- tors or administrators, if the verdict were given for the defendant, the plaintiff, in such case, was not liable for costs, unless the cause of action accrued after the testator's death, and the plaintiff might have brought an action in his own name.'' Also, previously to that act, the plaintiff was not liable to the costs of a nonstiit, unless the action were such that he might have brought it in his own name; nor to costs on judgment as in case of a nonsuit. In an early case, in Pennsylvania, the supreme court determined, that the rule of the English law in this respect had been introduced into this state, and that, consequently, on the discontinu- ance of a suit brought by an executor or administrator, although he was personally liable for the fees of the officers of the court, for services ren- dered to him, he was not liable de bonis propriis, for the costs of the ' AValter v. Beohtol, 5 Rawle 228. ' Fraley v. Nelson, 5 S. & R. 234. A plaintiff who appeals from an award Stewart v. Jewell, 1 1 Ibid. 359. Wil- in his own favor, must pay all the costs Hams v. Haslep, 14 Penn. St. 157. that have accrued. Copeland v. Hocker, Palmer v. Wilkinson, 73 Ibid. 339. Com. Pleas, Phila., 1827. MS. Rees McKeown v. Boudinot, 1 Bro. 150. ». Fisler, 3 Clark 254 ; Bell, J. Columbia Bank v. Bletz, 5 Luz. L. =* Carr v. McGovern, 66 Penn. St. Reg. 219. 457. Lagen u. Cadwell, 34 Leg. Int. ^ Crider v. Sheetz. 2 L. Bar, 8 Oct. 331. And the prothonotary has no 1870. right to take a note for them. Ellison ' Duffie v. Black, 1 Penn. St. 388. V. Buckley, 42 Penn. St. 281. McCulla v. Opple, 1 Pears. 150. » Walker v. Graham, 74 Penn. St. '" Act 20 March 1845, P. L. 188 ; 35. Purd. 87. * Richteru. Cummings, ILeg. Chron. "For the decisions under former 49 ; affirmed by the supreme court. laws, see Bright. Dig. tit. "Costs." Seely r. Barton, 5 S. & R.'390. '* Stat. 3 & 4 Wm. IV. c. 42, I 31. * Hill V. Thomas, Dist. Court, Phila., " See the English decisions collected May 1827. MS. in the notes to Bright. Costs 108-9. 538 COSTS. defendant. The ground of the distinction taken Ijetween fees and costs being that costs are an allowance to a party for expenses incurred in conducting his suit ; while fees are a compensation to an officer, for ser- vices rendered in the progress of the cause, which originally were in strictness demandable the instant at which the services were rendered.' And this doctrine, after some conflict of decision in our courts, may now be considered the established law of this state.^ If, however, an admin- ■ istrator set up an unfounded and vexatious claim, the court will, by special rule, make him personally liable to the costs ; this is an acknow- ledged exception to the general law upon the subject.^ § 942. An executor, however, is liable for costs de bonis propriia, if he plead a false plea ;* as, if a plea of ne unques executor be found against him f or a plea otplene administravit f so, if he be admitted, and unsuc- cessfully defend an ejectment.' And they must pay costs, on a judgment of non-pros. ; it is their own default;' so, also, on a judgment of nonsuit for not proceeding to trial ;' and on a judgment against them on demurrer to their declaration.'" And an administrator plaintiff, who is nonsuited at the trial, is liable to refund the costs paid by the defendant, on appealing from an award." An executor or administrator, when plaintiff, is exempt from the payment of costs in those cases only where he cannot maintain the action otherwise than in his representative char- acter, as, when he sues upon a cause of action which arose antecedent to the death of his testator or intestate ; for, whenever he can bring the action in his own right, without naming himself as executor or adminis- trator, and yet sues as such, he is liable for costs, if he be nonsuited, or a verdict be given against him ;'^ as, if he sue in trover, for an alleged conversion after the death of his testator.^' If, however, he declare for a conversion in the lifetime of his testator, and in another count for a conversion after his decease, and fail, he is clearly liable for costs.'* ' Musser v. Good, 11 S. & R. 247. ' Brown v. Lambert, 16 Johns. 148. ' Callender v. Keystone Mutual Life How v. Taylor, 1 Wend. 34. Insurance Co., 23 Penn. St. 471. Pur- "> Kellosg v. WUcocks. 2 Johns. 397. nis V. Ewing, 3 Clark 426. The de- Salisbury v. Philips, 12 Ibid. 289. It cisions to the contrary have been over- is otherwise, in England, under the ruled. statute of 8 & 9 Wm. III. c. 11. Tat- » Show V. Conway, 7 Penn. St. 136. tersall v. Groote, 2 Bos. & Pul. 253. 1 Pennypacker's Appeal, 57 Ibid. 114. Bac. Abr. 517-8. ♦ Howard v. Jemmet, 3 Burr. 1368. " Penrose v. Pawling, 8 W. & S. 379. ^ Peters v. Breckenridge, 2 Cr. C. C. " Kline v. Guthart, 2 P. & W. 490. 518. Potts V. Smith, 3 Rawle 377. Cham- ^ Swearingen v. Pendleton, 4 S. & R. berlin v. Spencer, 4 Cow. 550. People 389. It is said, that the judgment v. Judges of Mayor's Court, 9 Wend. against an executor, who defends the 486. Reynolds v. Collin, 3 Hill 441. action, is, in all cases, de bonis propriis Burhans v. Blanchard, 1 Den. 626. as to the costs. Wood v. Ludwig, 5 S. " Barker «. Baker, 5 Cow. 267. Fox & R. 447 ; Duncan, J. v. Fox, 5 Hun 53. Norcross v. Boulton, ' Bagnell v. Broderick, 13 Pet. 436, 1 Harrison 310. 447. " Gebhard v. Shindle, 15 S. & R. 239. ' Rudd !). Long, 4 Johns. 190. Mus- But see Tilton v. Williams, 1 1 Johns. ser u. Good, 11 S. & R. 249. Higgs ». 403. Ketchum v. Ketchum, 4 Cow. Warry, 6 T. R. 654. 87. DOUBLE COSTS. 539 § 943. Whether other persons suing in a representative character, such as trustees, guardians, &c., are liable personally for the costs, in case of failure, does not appear to have been the subject of a direct decis- ion, by our courts. The statute, as we have seen,* exempts them, in common with executors and administrators, from the payment of costs, on au appeal from an award. It is said, in one case, that the guardian of au infant plaintiff in ejectment, who fails in the suit, may be compelled to pay costs by attachment ; but this was not the point in judgment f and in another, that the committee of a lunatic plaintiff is primarily liable.' In New York, however, it is held, that a trustee, suing in hiS representative character, is not personally liable for costs f nor an assignee in bankruptcy, who litigates in good faith.^ An infant plain- tiff who fails in the action is not personally liable for costs f but an infant defendant is liable, in the same manner as any other defendant, though a guardian have been appointed.'^ VI. Double and treble costs. § 944. "Where the plaintiff recovers single damages, he is only entitled to single costs, unless more be expressly given him by statute ; but where double or treble damages are given by statute, the plaintiff will recover not only the double or treble damages thereby given, but also double or treble costs ; and this, notwithstanding the statute makes no mention of costs.* This, however, only applies to cases in which damages were recoverable, prior to the statute of Gloucester ; if double or treble dam- ages- be given by a subsequent statute, where no damages were formerly recoverable, double or treble costs do not follow as an incident to the recovery.' But, where a statute gives treble damages and costs of suit, the costs are to be trebled as well as the damages.'" Though a defendant, however, may be entitled to double costs on a final judgment in his favor, they are not payable by the plaintiff, on an appeal from an award of arbitrators ; he is only required to pay single costs.*' § 945. It is provided by the act of 1771,*^ that if any action shall be ' See supra, § 940. * Morris v. Brush, 14 Johns. 328. 2 Bigger v. Westby, 13 S. & R. 347. Gilb. C. P. 267. Lawson v. Storie, 1 » Utt V. Long, 6 W. & S. 177. Salk. 205; s. c. Ld. Kaym. 19. Deacon ' American Life Insurance and Trust v. Morris, 1 Chit. 137. Co. V. Van Bps, 56 N. Y. 601. « Wilkinson v. Allott, Cowp. 368. 6 Reade v. Waterhouse, 52 N. Y. *" Smith v. Dunce, 2 Str. 1048. Pil- 587. Olcott V. Maclean, 11 Hun 394. ford's Case, 10 Co. 116. And see But this appears to be the result of Welsh v. Anthony, 16 Penn. St. 254. I 317 of the code. See Lowrie's Ap- " Hartley v. Bean, 1 Miles 168. s. p. peal, 1 Gr. 373. Rider v. Hubbell, 4 Wend. 201. The ' Turner v. Turner, 1 Str. 708. And, act of 1772 gives double costs to an it seems, that if the infant die before avowant in replevin, in case of recov- the taxation of taxes, the prochein ami ery ; but to entitle him to more than will not be liable. Morgan v. Cromp- single costs, the recovery must be co- ton, Bunb. 332. And see 1 Freem. extensive with the avowry. Prescott «. 373 Otterstatter, 85 Penn. St. 534. ' Gardiner v. Holt, 2 Str. 1217. 1 " Act 9 March 1771, § 33 ; 1 Sm. L. Dyer 104 b. 1 Bulst. 189. 345; Purd. 1160. 540 COSTS. brought against any overseer of the poor, or other person who, in his aid, and by his command, shall do anything concerning his office, and the plaintiff shall fail in his action, discontinue the same, or become nonsuit, he shall pay double costs. And by the act of 1858,' when any suit shall be commenced against any militia officer, for any act done by him in his official capacity, in the discharge of his duty, or against any person act- ing under authority or order of such officer, or by virtue of any warrant issued by him, pursuant to law, or against any collector or receiver of taxes, if the plaintiff be nonsuited, or have a verdict or judgment against him, the defendant shall recover treble costs. It has been held,-under sitnilar statutes, that they only apply to acts of alleged malfeasance, not to those of non-feasance f and they do not extend to a judgment for the defendant, on a demurrer.* According to our practice, which in this respect differs from that of the English courts, where treble costs are given by statute, the defendant is allowed three times the usual costs ; but the fees of the officers, not regularly payable by the defendant, are not to be trebled.'' These additional costs are given to the party, to compensate him for the unjust and undue vexation which he has been put to; they do^not go to the officers;^ they belong to the party. who undertakes and carries on the defence, in the name of the officer sued.' Double costs include disbursements, as well as fees.'' VII. Taxation and recovery of costs. § 946. The taxation of costs is a proceeding whereby the fees, dis- bursements and expenses which the prevailing party is entitled to recover against his adversary, are settled and ascertained by a judge or other proper officer. Costs, with us, are uniformly taxed by the prothon- otary; from whose taxation, however, an appeal may be had to the court. After the final determination of a cause, the party entitled to costs, files with the prothonotary a written specification of the fees and expenses, which the law requires his adversary to pay ; such as the wit- nesses' fees and mileage, daily pay, price of the subpmnas and service, the charges of commissioners for examining his witnesses out of the state, &e. This is called the plaintiff's or defendant's bill, and is inserted in the bill of costs taxed by the prothonotary. If objected to, it is taxed before the prothonotary, upon notice to, or by agreement of, the 1 Act 21 April 1858, § 14, P.L. 543 ; Welsh v. Anthony, 16 Penn. St. 256. Pui-d. 1057. And see Crane v. Dod, Pen. 340. Mairs " Blanchard v. Bramble, 3 M. & S. v. Sparks, 2 South. 513. Shields v. Lo- 131. Piatt V. Osborn, 2 Cow. 527. zear, 5 Vroom 530. Patchin v. Park- Warner V. Lownds, 1 Hall 224. hurst, 9 Wend. 443. Walker v. Burn- ' Stone V. Woods, 5 Johns. 182. It ham, 5 How. Pr. 55. is said, in one case, that where double ' Van Auken v. Decker, Pen. 111. costs are given on a verdict for the de- ' Wheeler v. McFarland, 2 Den. fendant, they are not taxable, when the 183. case is tried by the court, without a ' Jackson v. Lynch, 32 How. Pr. 93. jury. Shields v. Lozear, 5 Vroom 530. Klinck v. Kelly, 15 Abb. Pr. (N. S.) ' Shoemaker v. Nesbit, 2 Rawle 201. 135. TAXATION. 541 opposite party. Costs are sometimes ordered to be retained, by the pro- thonotary or sheriff, from a party, until the bill is taxed ; in such cases, it is usual for the party claiming them, to fix the time of taxation and notify his opponent; in other cases, the objecting party usually urges the taxation. § 947. The rules of court provide, that all bills of costs shall be taxed, in the first instance, by the prothonotary (if taxation be required), sub- ject to an appeal to the court.* Where, after an appeal by the defend- ant, the amount recovered by the plaintiff below is reduced, either by arbitration, or trial by jury, no writ of execution shall issue (unless by agreement of parties), until the costs are taxed by the prothonotary.^ Where bills of costs are paid to, and stopped in the hands of, the pro- thonotary for taxation, either party may have the same taxed, on twenty- four hours' notice to the opposite party, or his attorney f a like notice must be given to the prothonotary; and the time to be fixed for such taxation shall be from two to three o'clock in the afternoon.^ Any party appealing from the taxation shall, within three days after appeal entered, file a specification of the items to which he objects, and the ground of his objections ; otherwise, the appeal shall be dismissed, and the costs paid over, according to the taxation of the prothonotary.^ It is. said to be irregular, to issue an execution for costs, without a previous taxation f and an execution issued on a judgment, confessed to secure the costs im- posed on a defendant in the court of quarter sessions, has been set aside, on error, for want of a prior taxation f and yet, it is every day's prac- tice, to issue such process, subject to the right of the opposite party to tax the costs, under the rule of court.* ' Rule xiv. § 42. practice of issuing execution, without ' Ibid. I 43. taxation, as a gross irregularity ; that, ' Ibid. I 44. however, is an extra-judicial dictum, * Ibid. ^ 45. and at all events, as it is a mere ques- ^ Ibid. I 42. No appeal lies to the tion of practice, can have no binding supreme court from the taxation. Mc- effect upon us ; the practice of every Cauley's Appeal, 86 Penn. St. 187. court is within its own power, and not * Richardson v. Cassilly, 5 Watts subject to review. The practice of this 449. ■ court, to issue executions without a pre- ' Harger v. Commissioners of "Wash- vious taxation of costs, is of very long Ino-ton County, 12 Penn. St. 251. But standing, and we are not disposed to see Shuman v. Pfoutz, 1 P. & W. 61. alter it. The right of the party a.gainst * Hart V. Dickerson, District Court, whom the writ is issued, to have the Phila., 16 Sept. 1848. Per curiam, costs taxed, upon very short notice to This is a fi. fa. by defendant for costs, his opponent, effectually secures him and the ground set up for setting it against wrong, while, at the same time, aside is, that it was issued without in a large majority of cases, as the taxation or notice to plaintiff. The amount of the costs is not disputed, an case of Richardson v. Cassilly, 5 "Watts unnecessary form, accompanied with, 449, is relied on as authority for the trouble and delay, is dispensed with, position that this is an irregularity. Itwouldoftenhappen, that a defendant, That case only decides, that the plain- apprised by the plaintiff's notice of tiff's bill tiled is not evidence, in an taxation, that an execution was about action of assumpsit brought to recover to issue, would seek to avoid it, either by the costs, which had not been taxed ; removing or disposing of his goods, or it is true, that the court speak of the delay it by an appeal from the taxation. 542 COSTS. § 948. It is said, that the fee-bill was intended to enumerate all the services for which an officer should be entitled to receive compensation ;' one main object of the law was, to cut up by -the roots the power which had theretofore been exercised by the courts, of allowing compensatory fees for services not specified in the fee-bill f and yet, where a subse- quent statute provides that a party shall recover his reasonable costs, to be assessed by the court, it has been held, that the latter has a discretion to allow compensatory fees ; except in extraordinary cases, however, it will be guided by the fee-bill, in fixing the amount.' The affidavit at the foot of the bill is said to be primd fade evidence of its accuracy, until impeached.^ It is not necessary that witnesses should attend personally, in the taxation of costs ; the fact of their attendance may be shown aliunde.' The party himself is competent to prove that he subpoenaed the witnesses; but not the fact of their attendance;^ this last point, however, was ruled before the passage of the act rendering the parties competent witnesses, without regard to the question of interest ; it would not now be law.' An appeal from the taxation does not raise the ques- tion of the party's liability for costs.' ^949. Where a statute gives costs, this, in general, includes the costs of witnesses, if the party be entitled to call them.' In the taxation of witnesses' costs, the party is entitled to payment of the fees of .witnesses who have attended in good faith, upon the trial, at his instance, whether they have been subpoenaed or examined, or not ■^'' but not to the costs of a witness subpoenaed, but who did not attend, and against whom no attachment was issued.^^ No general rule can be laid down as to the number or materiality of the witnesses for whom costs will be taxed, with safety to the suitors and the general practice — a party must come armed at all points, not knowing what will be conceded by his adversary, or what all his witnesses will testify ; upon such questions, manifest oppres- sion must be shown, to justify the interposition of the court, and they Costs, in this state, have always been a very different affair from what they are in England ; there is scarcely ever any dispute, except as to the mere costs of evidence — depositions, commissions and witnesses. The administration of justice, too, in Pennsylvania, is cheap to the parties ; the legal costs of the heaviest trials form, generally, a very small per-contage upon the sum in con- troversy. Rule dismissed. ^ Irwin V. Commissioners of Nor- thumberland County, 1 S. & R. 507; Tilghman, C. J. ^ Kline v. Shannon, 7 S. & R. 378. ' Brosman v. Union Canal Co., 3 Haz. Pa. Reg. 146. * Kafroth v. Reading and Columbia Railroad Co., 4 L. Bar, 24 Aug. 1872. Kauffman v. Oatman, Ibid. 15 Feb. 1873. Hostetter v. Fenstermacher, 7 Ibid. 117. ' Mc Williams v. Hopkins, 1 "Whart. 276. Hostetter v. Fenstermacher, ui supra. * Stokes V. Deringer, District Court, Phila., 2 Oct. 1847. MS. ' Dahman «. Quinn, 5 W. N. C. 449. ' Yeagley v. Wenger, 5 Luz. L. Reg. 119. ' Pennsylvania Railroad Co. v. Keif- fer, 22 Penn. St. 356. "* Lagrosse v. Curran, 10 Phila. 140. De Benneville v. De Benneville, 3 Yeates 558 ; s. c. 1 Binn. 46. Mc- Williams u. Hopkins, 1 Whart. 276. Swiler V. Casey, 1 Pears. 126. Bellin- ger V. Dellinger, 2 L. Bar. 29 Oct. 1870. " Stokes V. Deringer, District Court, Phila., 2 Oct. 1847. MS. TAXATION. 543 will readily interfere in such instances ; but a design to oppress will never be presumed.' But a plaintiif can recover no more from the defendant, for the fees of witnesses, than he is liable to pay them himself. Therefore, where there are several actions depending, by the game plain- tiff against different defendants, and the parties agree that the verdict and judgment in one case shall govern all, and the same witnesses are subpoenaed for each suit, the plaintiff is not entitled to recover, from each defendant, costs for the attendance of each witness.^ § 950. A defendant, succeeding in several cases tried at the same term by several plaintiffs, cannot recover more than one per diem allowance and mileage of a witness who was subpoenaed in each case ; but he may select any one of the plaintiffs to recover it from. If he has several wit- nesses, he may select of the plaintiffs, and recover part of the bill of costs of one, and part from another ; he may, however, recover from each, the service of subpcenas on the same witnesses in each case, but he can recover mileage in one case only. As to his own daily pay, if the attendance be on appeals from awards, he is entitled to it fully in each of such cases." In a controversy arising out of one and the same trans- action, between several and different plaintiffs, but the same defendant, who alone is liable for costs, a witness who is subpoenaed in the several suits, by the respective plaintiffs, is entitled to single pay for each day's attendance, and no more, without regard to the number of suits in which he is called to testify.^ And where an individual appears in the double light of a witness for the prosecution in one cause, and for the defence in another cause, which are tried together, he is entitled to but one com- pensation, and must elect to whom he will recur for payment ; and having so done, he is bound by his election.^ If, however, a witness attends in two cases, in one of which the plaintiff is not entitled to recover costs, he may tax the attendance of such witness in the other.* § 951. An attorney is not entitled to witness fees for attendance in a court in which he actually practises ^; nor is a party examined in his own behalf entitled to witness fees f nor a defendant in an attachment, who attends the trial of the issue against the garnishee, on a subpcena 1 De Benneville v. De Benneville, 3 creased fees allowed to the sheriiF there- Yeates 558 ; s. c. 1 Binn. 46. And see for. Commonwealth v. McAllister, 5 Commonwealth v. Wood, 3 Ibid. 414. Leg. Opin. 55. A constable, however, Hostetter v. Fenstermacher, 7 L. Bar who serves a subpoena from the court, 117. is entitled to the fee allowed to the ^ Curtis ». Buzzard, 15 S. & R. 21. sheriff such service. Coleman u. Hess, Brosman v. Union Canal Co., 3 Haz. 1 Bro. 274. Pa. Reg. 146. * Batdorff v. Eckert, 3 Penn. St. 267. ' Horner v. Harrington, 6 Watts Evans v. Hart, 10 L. Bar 77. 331. If, however, the subpoenas are ^ Commonwealth v. Cozens, 1 Ash. served by different persons, mileage 265. may be allowed in each case. Law v. * Delany v. Keys, Bright. Costs Cobb, 1 Luz. L. Obs. 3. A party who 291. serves his own subpoenas, is entitled to ' McWilliams v. Hopkins, 1 Whart. recover the cost of such service. Miller 276. V. Scott, 6 Phila. 484. But not the in- " Parker v. Martin, 3 Pitts. 166. 544 COSTS. issued by the plaintiff.' But the plaintiff's attorney in fact may be allowed for his attendance as a witness f and an officer of a corporation who is subpoenaed and attends as a witness, is entitled to witness fees and mileage ;^ so are school directors, in a case to which their school-board is a party.* A justice, who attends as a witness for the commonwealth, is entitled to the daily pay of a witness, except for one day, when he is bound to attend for the purpose of returning his recognisances.^ And a witness who attended before arbitrators, at several adjourned meetings, after having been examined, but not dismissed, and who was called to testify to the character of another witness, was allowed his fees for each day's attendance, though he had not been re-examined.^ The attendance of the witnesses, however, on the taxation, is not taxable in the bill of costs/ § 952. Witnesses are entitled to mileage only for each mile circular, in travelling from the line of the state, by the usual and ordinary route to and from their place of residence f but a witness who attends from a distant county, is entitled to mileage, though not subpoenaed until his arrival at the place of trial.' The costs of an attachment against a wit- ness, who is not found to be in contempt, must abide the event of the • suit ;'" so, also, where a cause is not reached on the trial-list, and is made a remanet, or where it goes off upon any other occasion, without the fault or contrivance of the parties, the costs incurred in bringing up the wit- nesses, &c., abide the final event ;" and the law is the same, where the supreme court reverses a judgment, and awards a venire de novo, but makes no order as to the costs.''' And the charges for the attendance of witnesses before a commissioner, with the reasonable charges of the latter for swearing them and reducing their testimony to writing, are taxable against the party who is condemned in the action.'^ § 953. The costs of a bill to perpetuate testimony, are not taxable against the defendant at law ;'* nor the expense of office-copies of deeds and other documents, produced in support of the plaintiff's title ;'° nor the cost of exemplifications of office-papers, which were rejected on the trial.'* ' Salada v. Seltzer, 3 Leg. Gaz. 130 ; ' Nichols v. Morehead, Bright. Costs s. c. 1 Luz. L. Keg. 270. 292, 375. 2 Clav V. Karsper, 1 Bro. 290. '« Butcher v. Coats, 1 Ball. 340. ' Bank of Mount Joy v. Greider, 5 " Burchall v. Bellamy, 5 Burr. 2693. L. Bar, 31 May 1873. Sharer «. Hodgson, 1 Binn. 535. * Evans v. Lancaster City School " Work v. Maclay, 14 S. & R. 265. Board, 9 L. Bar 102. " Tappan v. Columbia Bank and ^ Commonwealth o. Commissioners Bridge Co., 2 Clark 436. And see of Philadelphia County, 6 Binn. 397. Lynch v. Wood, 1 Dall. 310. A party * Dannaker v. Christman, Bright, may be allowed the cost of executing Costs 375. a commission in a distant state, though ' McWilliams M. Hopkins, 1 "Whart. the witness attended on the trial. Ban- 276. ■ croft V. Freeman, 7 W. N. C. 64. " Leeds v. Loud, 2 Miles 189. The " Mo Williams v. Hopkins, 1 Whart. mileage is to be computed by the direct 276. ■ route. Kafroth v. Reading and Co- '' Murphy v. Loyd, 3 Whart. 356. lumbia Railroad Co., 4 L. Bar, 24 Aug. s. p. Christmas v. Biddle, 1 Phila. 68. 1872. Swiler v. Casey, 1 Pears. 126. '« Leeds v. Loud, 2 Miles 189. KECOVEEY OF COSTS. 545 In an ejectment, the services of a surveyor, appointed by the court, are not taxable as part of the costs, against the losing party ;' so, in a scire facias on a municipal claim, the plaintiff cannot tax the cost of a survey.^ But, in a railroad case, the expense of the draft, required to be filed with the petition, is taxable as part of the costs f so is the hire of a room for the meeting of arbitrators/ A judgment fee is not taxable, on appeal from an award." And where a nonsuit is taken ofi", on payment of costs, the plaintiff, on a subsequent recovery, is not enti- tled to tax the costs which accrued prior to the nonsuit.* § 954. The usual method of recovering costs between party and party, is by writ of execution ;' and it would seem, by analogy to the exemp- tion law, that where the plaintifi" fails in an action for a tort, his body cannot be taken in execution for the costs f it has been expressly ruled, under that statute, that where the plaintiff is cast, in an action of trover, and the judgment is against him for costs, he is not thereby put into the situation the defendant would have occupied, had the result been reversed ; a party is not a trespasser, because he sues another in tres- pass ; costs against the plaintiff are not like damages against the defend- ant ; the judgment for costs is to be considered in the same light as a judgment for debt on contract, so far as the exemption-law affects the rights of the parties.' Interlocutory costs are collectible by attachment;'" and so, an attacbment lies to enforce payment of costs, by one who is not a party to the record — as, a guardian, who sues in the name of his ward," and, under the old practice, the plaintiff's lessor in ejectment.'^ But an equitable plaintiff is made liable to execution for costs, by the act of 1829.'» § 955. An action of assumpsit will lie against a person for whose use a suit is brought, for the costs thereof, upon proof of a promise to pay." And if a defendant in error, on a reversal and award of a venire de nmo, pay the costs in the supreme court, in order to take down the record, and again obtain judgment, he may recover back such costs, in assumpsit}^ So, where a suit, which originated before a justice, is dismissed for want ' Caldwell v. Miller, 46 Penn. St. which provide that where the defendant 233. is entitled to costs, he shall have such ^ Moyamensing v. Cox, Com. Pleas, process and execution for their recov- Phila., 25 Sept. 1847. MS. See act ery, as the plaintiff should or might 14 March 1865, P. L. 320 ; Purd. 1375. have had, in case the judgment had ' Seiber v. Lancaster and Reading been in his favor. See Bright. Costs Narrow-Guage Railroad Co., 21 Pitts. 80-1 ; and infra, ^ 1408. L. J. 151. ' Lane v. Baker, 2 Gr. 426; Black, * Butcher ». Scott, 1 Clark 311. J. 5 McCuUa V. Opple, 1 Pears. 150. "" Fraley v. Nelson, 5 S. & R. 234. Bank of Mount Joy v. Greider, 5 Terry v. Peterson, lug. Ins. 16. L. Bar, 31 May 1873. ContrJk, Butcher " Bigger v. Westby, 13 S. & R. V. Scott, 1 Clark 311. 349. « Hartley v. Lee, 6 W. N. C. 560. " Taylor v. Hickman, Sup. Court, ' South V. South, 1 Pitts. 187. 1807. MS. ' So decided in Guernsey v. Gage, 7 " See supra, § 926. Luz. L. Reg. 198. This, however, con- " Brewer v. Hayes, 2 Watts 12. flicts with the provisions of the statutes " Hamilton v. Aslin, 3 Watts 222. VOL. I. — 35 546 COSTS. of jurisdiction, the defendant may recover in assumpsit the costs paid by him, on an appeal from an intermediate award of arbitrators.^ The pro- thonotary may maintain an action of assumpsit for his fees, against the party for whom the services were rendered, after the termination of the suit f and so, the register's fees in an issue directed by the register's court, are recoverable in the common pleas.^ The fees of the officers are nominally part of the plaintiff's costs ; but they may be collected by an execution, sued out in his name, notwithstanding his agreement to pay the same, in exoneration of the defendant;* the plaintiff has no right to receive the fees due to the officers ; they may be collected by execu- tion, notwithstanding his receipt.^ § 956. To assist the parties in the recovery of costs, and to do justice between them, they are allowed to deduct, or set off the costs, or debt and costs, in one action, against those in another. " Judgments are set against each other, not by force of statutes, but by the inherent power of the courts, immemorially exercised, being almost the only equitable juris diction originally appertaining to them as courts of law. An equitable right of setting off judgments, therefore, is permitted only where it will Infringe ou no other right of equal grade ; consequently, it is not to affect an equitable assignee for value."* Not being conferred by statute, it is not a legal power, nor is its exercise demandable of right; being discretionary, it is not the subject of a writ of error.^ A judgment for costs, obtained against an administrator plaintiff, in one court, and assigned by the defendant to A., cannot be set off against a judgment for damages, obtained by such administrator against A., in another court.' The setting off of one judgment against another has always been per- mitted, but they must be both in the same right ;^ so, of a judgment against a demand not ascertained by judgment.^" Where the application is made by the party to whom the larger sum is due, the rule is for a stay of proceedings, on acknowledging satisfaction for a less sum;^' but where the less sum is due to the party applying, the rule is to have it deducted, and for a stay of proceedings on payment of the balance.^^ ,' Kennedy v. Hughey, 3 "Watts 265. Moyer v. Opie, 23 Pitts. L. J. 17. ^ Lyon V. McManus, 4 Binn. 167. * Ramsey's Appeal, 2 Watts 230. Banks v. Juniata Bank, 16 S. &R. 155. ' Burns v. Thombaugh, 3 Watts 78. Moore v. Porter, 13 Ibid. 100. A wit- * McWilliams v. Hopkins, 1 Whart. ness may recover his fees from the per- 275. son who subpoenaed him, without a ° Dunkinw. Calbraith, 1 Bro.47. See prior taxation, or demand. Utt v. Long, Hazlehurst v. Bayard, 3 Yeates 152. 6 W. & S. 174. Mervine v. Greble, 2 Pars. 271. ' Bellinger v. Bellinger, 2 L. Bar, 29 '■" Metzgar v. Metzgar, 1 Rawle Oct. 1870. 227. * Raneku. Hill, 3 Penn. St. 423. " Bull. N. P. 336. 1 Taunt. 426. 6 Eilsbre v. BUsbre, 28 Penn. St. 172. " Mitchell v. Oldfield, 4 T. R. 124. CHAPTER XXVIII. Of Execution. I. Nature, foem axd pkopeeties of EXECUTION, §957. Nature of execution, § 957. When allowable, J 958-9. On justices' ti-anscripts, ^ 960. Outstanding writs, § 961. Matters subsequent to judgment, §962. Death of parties, § 963-4. In favor of assignees, § 965. By what court granted, § 966. Different kinds of execution, § 967 . Order of executions, § 968-70. Contemporaneous wi-its, J 971-3. Successive ■m-its, § 974. II. "What mat be taken in execu- tion, § 975. Personal chattels, § 975. Stocks, § 976. Coin and bank-notes, § 977. Chattels bailed, § 978. Goods in the custody of the law, §978. Goods of a stranger to the writ, §980. Fraud in law, §981. Evidence of delivery, § 982. Wbat is not a legal fraud, § 983. Collusive sheriffs' sales, § 984-5. Actual fraud, § 986-8. Sale after notice of execution, §989. Goods purchased but not delivered, §990. Confusion of goods, § 991. Goods of defendant's wife, § 992-3. Partnership goods, § 994. Corporation property, § 995. Fixtures, § 996-9. Growing crops, § 1000. Chattels real, § 1001. Real property, § 1002-3. Lands of a corporation, § 1004. Wbat real interests not liable to execution, § 1005-7. Praudulent conveyances by defend- ant, § 1008. Estates of married women, § 1009- 10. After-acquired lands, § 1011. Kestricted judgments, § 1012. Lands of decedents, § 1013. Lands aliened after judgment, §1014. Life-estates, J 1015. III. Exemption, § 1016. Statutory provisions, ? 1016. Wlio entitled to exemption, § 1017. Nature of the action, § 1018. What property may be claimed, § 1019. Claim of exemption, § 1020. When the claim must be made, §1021. Appraisement, § 1022-3. Eefiisal of the exemption, § 1024. Waiver, § 1025. Effect of waiver, § 1026. Widow's exemption, § 1027. Who entitled to claim, § 1028. Eight of exemption, § 1029. Of the claim, § 1030. Appraisement, § 1031. Confirmation, § 1032. IV. Stat op execution, § 1033. By agreement of paaties, § 1033-4. By statute, § 1035. Freeholders, § 1036. Special bail, § 1037. Bail for stay of execution, § 1038. Who may enter bail, § 1039. Effect of recognisance, § 1040. V. Issuing and ketuen of the writ, § 1041. When execution may issue, § 1041. Time within which execution must issue, § 1042-3. By whom sued out, § 1044-5. Against whom issued, § 1046-8. Writ and indorsement, § 1049-51. Amount of the execution, § 1052. Power of the court to control exe- cution, § 1053-5. Staying and setting aside execution, § 1056-62. Relation and effect of the writ, § 1063-5. Of the return, § 1066-7. Amendment of return, § 1068. Effect of return, § 1069-73. (547) 548 EXECUTION. Void and voidable process, J 1074- 76. Lost executions, 1 1077. Keversal of judgment, g 1078. VI. POWEES AND DUTIES OF THE OFFI- CER, ? 1079. Of tlie proper officer, § 1079-80. Disti'ingas, § 1081. Autliority of slieriff', ? 1082-3. Liability of slieriff, ? 1084. Sheriffs' bonds and recognisances, § 1085. Liability to the plaintiff, J 1086. Indemnity, § 1087-90. Abandonment of lew, g 1091. Refusal to sell, i 109J2. Eefusal to deliver, § 1093. Non-return of writ, § 1094. On his return, § 1095. Upon receipt of the money, § 1096. On distribution, J 1097. Liability to the defendant, ? 1098. Liability to third persons, ^1099- 1100. Defences, § 1101. Liability of the plaintiff", ? 1102-5. Officer's compensation, j 1106. Expenses, J 1107. Illegal fees, §1108. VII. Execution against goods and CHATTELS, § 1109. Fieri facias, § 1109. How issued, ? 1109. Payment to the slieriff, § 1110-1. Of the levy, §1112-4. Time of levy, § 1115. Mode of levy, § 1116-7. Effect of a levy, 1118-9. Satisfaction, as to debtor, § 1120-2. As to other creditors, 1 1123. Custody of the goods, 1 1 124-5. Non-removal of the goods, § 1126- 28. Interference with the process, §1129-34. VIII. iNTEKrLEADEK, §1135. ^SherifPs interpleader act, § 1135. When the sheriff may apply, §1136. Of the claim, §1137-8. Return of the rule, § 1139. Rule of court, § 1 140. Of the claimant's bond, § 1141. Issue and pleadings, § 1142. Effect of the interpleader, § 1143. Refusal of interpleader, § 1143. rX. Sheeiff's sale of personalty, §1144. Of the sale, §1144. Mode of sale, §1145-6. Notice of sale, § 1145. Of the pui-chaser, § 1147. Delivery of the goods, § 1148-9. Payment, § 1150. Effect of the sale, §1151. Purchaser's title, § 1152-5. Setting aside sale, § 1156. Return of the writ, § 1157-8. Payment by sheriff, § 1159-61. Payment into court, § 1162. Distribution of the fund, § 1163. Wages, § 1164-5 Rent, § 1166-8. Between execution-ci-editors, § 1 1 69. Partnership property, § 1170-2. Surplus, §1173. Alias fieri facias, § 1174-5. Venditioni exponas, § 1176-7. X. Execution against choses in ac- tion, § 1178. Attachment-execution, § 1178. Nature of the process, 1 1179. When it lies, § 1180. Wliat may be attached, § 1181. Personal chattels, § 1182. Debts, § 1183-4. Legacies and distributive shares, §1185. Wages and salaries, § 1186. Of the garnishee, i 1187. Effect of attachment, § 1188-93. As to tHS defendant, § 1194. As to strangers, § 1195-6. Practice, §1197. Of the writ and service, § 1197. Motion to quash, § 1198. Appearance and defence, § 1 199 Interrogatories, § 1200. Answers, § 1201. Pleadings, § 1202-3. Trial, § 1204-5. Evidence, § 1206. Verdict, § 1207. Judgment, § 1208-9. Costs and execution, § 1209. Execution against stock, § 1210. When held in the name of the de- fendant, § 1210-1. When held in the name of another, § 1212-3. XI. Execution against real estate, §1214. Fieri facias, § 1214. Natuie and form of the writ, § 1215. Of the levy, §1216-9. Setting aside a levy, § 1220. Effect of the levy,"§ 1221. Of the inquisition, § 1222. EXECUTION. 549 When dispensed with, ? 1223. Waiver of inquisition, § 1224. Form of waiver, § 1225. How waiver may be shown, § 122G. Holding of the inquisition, § 1227. Proceedings under the inqtiisition, § 1228-9. Return of the inquisition and fi. fa., J 1230-4. Approval of the condemnation, i 1235. Of the extent, § 1236. Liberari facias, ^ 1236-8. Scire facias ad computandum, ^ 1239. Setting aside an extent, § 1239. Demise to the defendant, ^ 1240. Notices, ? 1241. Several liens on the lands, § 1242. Subsequent judgments, ^ 1243. Failm-e to pay instalments, § 1244. XII. Sheriff's sale of keai, estate, J 1245. Venditioni exponas, ? 1245. Form of the writ, § 1246. Of the proper officer, J 1247. Time of sale, J 1248. Notice of sale, § 1249-51. Mode of sale, i 1252-3. Lumping sales, ^ 1254-5. Conditions of sale, ? 1256-7. Notice of the sale, ^ 1258-9. Of the purchaser, J 1260. Parties, ? 1260. Lien-creditors, § 1261. Attorneys, | 1262. Trustees, § 1263. Fraud, § 1264. Setting aside the sale, ? 1265. Who may apply, | 1266. Paper-books, § 1266. Time of application, ? 1267. Grounds for setting aside the sale, §1268. Inadequacy of price, ? 1269-70. Misdescription, § 1271. Mistake and sui-prise, § 1272. Misconduct, § 1273. Irregularity, 1 1274-7. Defaulting purchasers, ? 1278-9. Eetiim of the writ, ? 1280-1. XIII. Of sheeiffs' deeds, § 1282. What passes by a sheriff's deed, § 1282. Recitals in the deed, § 1283. Effect as evidence, | 1284. Recording of the deed, | 1285. Acknowledgment, § 1286. Place of acknowledgment, § 1287. By whom made, 1 1288. Time of acknowledgment, § 1289. Mode of acknowledgment, § 1290. How proved, § 1291. Effect of acknowledgment, § 1292-4. Opposing the acknowledgment, 'i 1295. XIV. PUECHASE-MONET AND DISTKIBU- TION, 'i 1296. Payment of purchase-money, () 1296-7. Interest, § 1298. Pm-chase by a lien-creditor, J 1299- 1305. Disti-ibution by the sheriff, §1306-8. Payment of money into court, §1309-11. Distribution by the com-t, § 1312. Discharge of incumbrances, § 1313- 18. Right to the proceeds, § 1319-22. Mortgages, § 1323. Judgments, § 1324-7. Equitable jurisdiction, § 1328. Order of payment, § 1329. Costs and wages, § 1329. Taxes and municipal claims, § 1330. Ground-rent, § 1331. Mechanics' liens, § 1332. Judgments and mortgages, § 1333- 34. Pui'chase-money judgments, § 1335. Partnership judgments, § 1336. Disposition of the surplus, § 1337-8. Practice before auditors, § 1339. Appointment of auditors, § 1340, Notice of hearing, § 1341. Powers of the auditor, § 1342-3. Auditors' reports, § 1344. Conclusiveness of the report, § 1345. Exceptions and recommitment, § 1346. Compensation of auditors, §1347. Costs of audit, § 1348. Feigned issue, § 1349-50. Error and appeal, § 1351. XV. Title and eights of the pue- CHASEE, § 1352. Purchaser's title, § 1352. Rule of caveat emptor, § 1353. What will affect the purchaser's title, § 1354. Record notice, § 1354. Notice by lis pendens, § 1355. Actual notice, § 1356. Constructive notice, § 1357. Effect of irregularities, § 1358-61. Effect of fraud, § 1362. Sale under a void judgment, § 1363- 64. Sale under an expired judgment, § 1365. What passes by the sale, § 1366-7. 550 EXECUTION. XVI. Easements, ? 1368. Fixtures, | 1369. Growing crops, ^ 1370. Estate of the pm-chaser, § 1371-6. Purchaser's relation to a lessee, 1 1377-8. Liabilities of the purchaser, J 1379- 82. When deemed to hold in trust, 1 1383-4. Relation of the purchaser's title, §1385. Proceedings to obtain possession, 51386. Notice, 5 1387. Petition, § 1388. Warrant to the shorifif, § 1389. Inquisition, § 1390 Defences, ?1391. Damages and costs, ? 1392. Record, ? 1393. Writ of possession, § 1393. Certiorari, ? 1394. Proceedings when the tenant dis- claims, 5 1395. Wlien he names his grantor or lessor, ? 1396. Recognisance, § 1397. Trial of the ejectment, ? 1398- 1406. When the defendant had no notice of the suit, § 1407. EXEODTION AGAINST THE PERSON, ? 1408. Capias ad satisfaciendum, J 1408. Issuing of the writ, § 1409-11. Form and service of the writ, §1411. Privilege from arrest, § 1412-3. Escape, § 1414. Sheriff's liabilitv, § 1415. Return, § 1416-7. Satisfaction by payment, § 1418. Discharge from custody, | 1419. Death of defendant, § 1420. Discharge under the insolvent laws, § 1421-4. Discharge under the bread act, § 1425. Imprisonment under the writ, g 1426-7. XVII. Of certain peculiae kinds op EXECUTION, § 1428. Testatum fieri facias, § 1428-31. Execution on a transferred judg- ment, § 1432. Execution against a tract lying in two counties, § 1433-5. Execution upon restricted judg- ment, § 1436. Levari facias, § 1437-41. Purchaser's title, § 1442. Distribution of proceeds, § 1443. Contribution between joint defend- ants, 5 1444. Discovery in aid of execution, I 1445-51. Execution against life estate, .J 1452-3. Sequesti-ation of life-estate, § 1454- 56. Execution against corporations, i 1457-8. What may be sold on execution, ? 1459. Sale of franchises, § 1460-1. Rights of ptirchasers, § 1462. Attachment-execution, J 1463. Discovery of effects, j 1464. Mandamus execution, J 1465-7. I. Nature, form and properties of executions. § 957. Nature of execution. If the regular judgment of the court, after the decision of the suit, be not suspended or reversed by some one of the methods above mentioned, the next and last step is the execution of that judgment, or putting the sentence of the law in force. Execu- tion in civil actions is the mode of obtaining the debt or damages, or other thing recovered by the judgment.^ The process of execution is a judicial writ issuing out of the court where the record is, on which it is grounded.^ Writs of execution are directed to the sheriff, coroner or other ministerial officer of the court, and command him either that of the goods, or of the lands of the defendant, he caused to be made the amount of money required, or that of the lands of the defendant, he ' Tidd 993. ' Ibid. 994. It is necessary to the validity of an execution, that it state the place and time of return. Edgerton, 5 Duer 681. Fake v. EXECUTION. 551 cause to be levied such amount, or that he attach the choses in action of the defendant, or that he take the defendant in satisfaction. A party suing out an execution, and enforcing a judgment in his favor, elects to take it as rendered, and cannot afterwards prosecute a writ of error thereto.' The validity of an execution cannot be inquired into collater- ally ;2 but if it do not follow the judgment, it will be set aside.^ § 958. When allotvable. As the execution is grounded upon a judg- ment, it cannot issue until a judgment has been actually entered ;^ and the judgment must be final, for, in general, execution cannot issue on an interlocutory judgment.' And so, no execution issues upon the deter- mination of a feigned issue, which is merely a method of ascertaining a disputed fact.^ But the entry of judgment in the docket, without men- tioning the sum, is a very usual practice, and is sufficient, in the case of judgments by confession, wherever the plaintifi^'s demand is in the nature of a debt, which may be ascertained by calculation ; the judg- ment is supposed to be for the amount of damages laid in the declara- tion, and the execution issues accordingly ; but the plaintiff' indorses on the execution, the amount of the actual debt, and in case of injustice, the court will relieve the defendant, on motion.' And in an action of debt, a general judgment by default against the defendant, without liquidation of the damages by writ of inquiry, will sustain an execution, the real debt being indorsed on the writ.* The entry upon the record of the con- firmation of a report and award of viewers, under the railroad act of 1849,' is an entry of judgment, sufficient to meet the requisitions of that act, and will sustain an execution.'" The report of county auditors, when filed, has the effect of a judgment,'' and if no appeal be taken, or if the appeal be decided in favor of the commonwealth or county, execution may issue as in other cases.'^ In case of voluntary arbitration, where the submission is made a rule of court, judgment must be entered on the award before execution can issue.'^ Under the compulsory arbitra- tion act, the award has the effect of a judgment, unless appealed from;'* but a confession of an award, with right to appeal within thirty days, and without any judgment entered thereon, will not sustain an execution. '^ • Hall V. Laoey, 37 Perm. St. 366. 84; Purd. 1219. ' Stewart v. Stocker, 1 Watts 135. '" Davis w. North Pennsylvania Rail- And see Bank of the United States v. road Co., 2 Phila. 146. Bank of Washington, 6 Pet. 8. " Act 1-5 April 1834, § 55, P. L. 547 ; 3 Stuokert v. Ellis, 2 Miles 433. And Purd. 301. see Cobbold v. Chilver, 4 Scott N. B. " Ibid. § 48. If no appeal be entered, 678. the report is final and conclusive. * Johnson v. Johnson, 1 Pen. 318. Blackmore v. Allegheny County, 51 Conner v. Souder, 2 Ibid. 529. Little Penn. St. 160. Auditors of Schuyl- V. Fleming, Ibid. 552. kill v. Commissioners, 3 Luz. L. Reg. ' 5 Lewis V. Smith, 2 S. & R. 155. 39. •> West Branch Bank v. Donaldson, 6 " Book v. Edgar, 3 Watts 29. Steele Penn. St. 179. v. Lineberger, 59 Penn. St. 308. Ste- ' Lewis u. Smith, ui supra. McCann phens's Executors' Appeal, 38 Ibid. 9. V. Farley, 26 Penn. St. 173. » Act 16 June 1 836, 1 24, P. L. 722 ; 8 Gray v. Coulter, 4 Penn. St. 188. Purd. 84. » Act 19 February 1849, ^U, P. L. '* Corder v. Mays, 3 Gr. 135. 552 EXECUTION. § 959. Where judgment was entered upon bond and warrant, with a stipulation that execution should, not issue before default in the payment of several promissory notes, unless the partnership of which defendant was a member should be dissolved, an execution issued before maturity of the notes, without a sdre facias having been first sued out, to ascer- tain whether the partnership had been dissolved, was irregular, and was accordingly set aside.' But an execution issued on an absolute judg- ment, taken to indemnify the plaintiff, as surety for the defendant, for a debt not paid by the surety at the time of issuing the execution, is not erroneous, nor irregular; nor is it fraudulent by the statute of 13 Eliza- beth ; it is a measure to secure the surety, by means intended to produce payment of the debt out of the effects of the principal, by whom it is due.^ A plaintiff who holds several judgments against a debtor, with different sureties or indorsers, may, in the absence of any agreement to the contrary, issue execution upon any one of them, and the proceeds of personal property realized upon such execution will be applied to the judgment upon which it issued.^ Though a judgment confessed by a/eme covert is invalid, as a personal obligation of a married woman, yet, if the judgment were for the purchase-money of land, an execution restricted to such land may issue thereon.* § 960. A transcript of a justice's judgment, filed in the common pleas, upon the face of which appears the fact of the issuing of an execution by the justice, and a return of nulla bona thereto, is a judgment of the common pleas, upon which execution may issue f and the execution may recite the judgment in the common pleas, without reciting the judgment of the justice ;^ and where the fact that an execution was issued by the ' Monteliusc. Montelius, Bright. 79. v. Sweet, the supreme court held, in The plaintiff cannot suggest breaches Hitchcock v. Long, 2 AV. & S 169, that and issue execution, without giving the an attachment-execution might issue defendant a day in court. Magill v. on such transcript ; and Judge Rogers riiggins, 2 Pitts. 107. Commonwealth says, that "after certificate filed, ac- V. Specht, 23 Pitts. L. J. 67. cording to the fair interpretation of the '•' Miller v. Howry, ,3 P. & W. 374. act, the party is at liberty to issue a Stewart v. Stooker, 1 Watts 135. Balph fieri facias, in common form, command- V. Bynd, 25 Pitts. L. J. 45. ing the sheriff to levy on the goods and ' Marshall v. Franklin Bank, 25 chattels, lands and tenements of the Penn. St. 384. debtor, without any special restriction, * Eamborger v. Ingraham, 38 Penn. and this, we apprehend, has been the St. 146. Patterson v. Robinson, 25 practice, and it is certainly founded in Ibid. 81. McHugh v. Bashore, 2 Leg. convenience." This was followed by Chron. 237. the late court of common pleas, Jones, * This is a point of practice upon J., in Hamilton v. Dawson, 2 Clark 357. which the decisions are conflicting. Of And by the present court No. 4, in course, execution may issue out of the Techner v. Karpeles, 36 Leg. Int. 235, common pleas against the defendant's in an able opinion by Briggs, J. In real estate. But in Rockwell v. Sweet, Wheeler & Wilson Manufacturing Co. cited 2 Clark 527, the supreme court v. Moore, 6 W. N. C. 270, it was ruled, decided, that such execution could not that a ca. sa. could not issue on such be levied upon the debtor's personal transcript. And see Livsey ». Lan- property ; and to the same effect is the ders, 12 How. Pr. 25. case of Bradley v. Ward, 6 W. N. C. ' Hamilton v. Dawson, 2 Clark 366. After the decision in Rockwell 357. EXECUTION. 553 magistrate, and returned nulla bona, appears from the face of the trans- cript, a certificate to that effect is not necessary, to authorize an execu- tion to issue from the common pleas.' An attorney's prcBcipe for afi. fa. on a transcript from a magistrate, without a return of nulla bona, will not protect the prothonotary in the infraction of the act of assembly.^ Where the record of a magistrate has supplied one transcript for the purpose of a lien, and by its entry a lien has been obtained, the jus- tice's record has spent its force ; a second transcript secures no lien, and an execution upon it is irregular and void.^ Executions issued by a justice on transcripts from another justice of the same county, then in commission, are void, not being allowed by the act of assembly.* § 961. In strictness, a fi. fa. cannot issue, whilst a previous fi. fa. upon the same judgment is outstanding ; the first writ should be previously returned, and recited in the second, though a recital is unnecessary, where nothing has been levied on the first f and an omission in an alias or pluries Ji. fa., to recite the proceedings under the first execution, though irregular, does not render such alias or pluries writ void." So, a f,. fa. cannot be issued upon a judgment on a scire facias to revive, whilst there is an outstanding _^. /a. upon the original judgment ; the proper mode is to proceed upon the original fi. fa7 So, where a testatum fi. fa. was out- standing against one of several defendants, a fi. fa. in the county where the judgment was obtained, issued against all the defendants, two years afterwards, was held irregular, on the ground that the testatum was unreturned, and that no execution had been issued within a year and a day against the other defendants.^ § 962. Matters subsequent to the judgment sometimes occur to inter- fere with the issuing of an execution otherwise allowable. Thus, a writ of error, regularly sued out, stays the execution until it is decided ; so a delay for five years to issue execution will put the plaintiff to a scire facias. These, and other matters relating to the time at which the writ should be issued, and to the various circumstances under which execu- tion is stayed by statute, or will be stayed or set aside by the court, will be treated of in another part of this chapter.' A change of parties, after the judgment, is another cause which may prevent the issue of an exe- cution; this change may occur by the marriage, bankruptcy or death of either the plaintiff or defendant. It is laid down as a general rule, that when any new person is to be either better or worse by an execu- tion, there must be a scire facias, because he is a stranger.'" If the plain- tiff be a feme sole, and marry after judgment, she and her husband must take out a scire facias to add the husband as a party, before execution can issue;" so, i£afeme sole marry, after final judgment against her, the 1 Drexel v. Man, 6 W. & S. 343. « Coleman v. Mansfield, 1 Miles 56. 2 Frankem v. Trimble, 5 Penn. St. ' Gist v. Wilson, 2 Watts 30. 520. ' Gibbs v. Atkinson, 1 Clark 476. ' Bannan v. Rathbone, 3 Gr. 259. ' See infra, § 1041, et seq. * Hallowell v. Williams, 4 Penn. St. '» Pennoir v. Brace, 1 Salk. 319. 339. " Berryhill v. Wells, 5 Binn. 58. s Tidd 1020. Johnson v. Parmely, 17 Johns. 271. 554 EXECUTION. husbaud must be made a party to the record, before execution.' If the plaintiff become bankrupt or insolvent, after judgment, the assignees or trustees may issue execution in his name for their use.^ § 963. If either party die, after final judgment, the personal represen- tatives of such decedent must be brought into court and become parties, before execution can issue. And where execution was sued out in the name of the plaintiff, after his death, the court below set aside the execu- tion, but the supreme court, on error, remitted the record, with directions to permit the names of the personal representatives to be substituted nunc 2}ro tunc, and to reinstate the execution.^ Where an administratrix recovered judgment against her agent, for a loss to the estate caused by his negligence, and died, the administrator de bonis noii of the estate is the proper person to be substituted as plaintiff.* In all cases where the defendant dies, after final judgment, before execution can issue, his per- sonal representatives must be warned by sd. fa., to show cause against the issue thereof;^ otherwise, the execution is void, and a sale thereunder invalid f and where a defendant dies, after his lands have been levied on and condemned under afi. fa., it is necessary to bring in his personal rep- resentatives by a scire facias, before a venditioni can issue to sell the lands.^ The mode of affecting the substitution necessary in case of a change of parties will be discussed hereafter. § 964. Another ground of delay in the issue of a writ arises under the act of 24th February 1834, which provides that the land of a decedent shall not be charged with the payment of a judgment obtained against his personal representatives, unless the widow and heirs, or devisees, &c., shall be made parties thereto;** this is commonly done by a scire facias founded on the judgment obtained against the personal representatives.' The distinction should here be borne in mind between a judgment obtained against the personal representatives, and one obtained against the decedent himself; in the former case, the heirs, &c., must be brought in by sd. fa., in order to charge the decedent's lands ; in the latter, this is not necessary, for the judgment is already a lien, but the personal representatives must be warned by sei. fa., before execution can issue. § 965. For a variety of reasons, which it would be irrelevant to enu- merate here, it may be deemed proper by a third person, not a party on record, where the execution has failed of its object, to purchase the judgment, and to take an assignment of it frorn the plaintiff. When this is done, the plaintiff becomes a trustee to his use, and he may enforce ' 4 East 521. Bing. Ex. 141. 79 ; Purd. 425. ' Act 16 June 1836, § 22, P. L. 735; « Cadmus v. Jackson, 52 Penn. St. Purd. 780. Cottrellt). Mann, 1 W.N. C. 295. But the sheriff may sell under a 157. Silk Go. V. Disston, 7 Ibid. 63. writ in his hands, notwithstanding the ' Darlington ». Speakman, 9 W. & S. death of the defendant. Rosengarten 182. V. Deemer, 1 W. N. C. 63. * Lea V. Hopkins, 7 Penn. St. 385. ' Wood v. Colwell, 34 Penn. St. 92. And see Meiser v. Eckhart, 19 Ibid. " P. L. 80 ; Purd. 426. 201. » Atherton v. Athertou, 2 Penn. St. 5 Act 24 February 1834, § 33, P. L. 112. Murphy's Appeal, 8 W. & S. 165. EXECUTION. 555 the judgment or not, at his pleasure. Such assignments are liberally supported by the court, particularly where the purchaser has taken one, in consequence of, or to protect himself from, the inala fides of the defendant ; as, for example, where the bail has purchased a judgment, his principal keeping without the reach of a bail-piece.^ Where an execution was issued against several defendants, and the assignee in trust for the creditors of one of them paid the amount thereof to the sheriff, who marked the execution satisfied, it was ruled, that if such pay- ment were a purchase of the judgment, the sheriif might correct the indorsement, and proceed on the writ.^ In such case, the execution is under the control of the purchaser.' § 966. By ivhat court granted. Regularly, execution ought to be granted by the same court where judgment was given ;* but if the record be removed to a superior court by writ of error, and judgment is there affirmed, the superior court may award execution f yet, on a writ of error from the king's bench to the house of lords, only a transcript of the record is sent up, and when remitted, the king's bench awards execution f and the practice in our supreme court in error is, to remit the record, after judgment in error, to the court below, which then awards execution, in case- the judgment was affirmed.^ If the record be removed to another court, in any other way than by a writ of error, the court to which it is removed awards execution. The rule is, therefore, that exe- tion issues from the court where the record is.' A justice of the peace has no right to issue execution on a judgment of another justice, during the temporary absence of the latter, without a delivery of the docket ; the constable is not bound to execute such writ, and is not liable in damages in case of his refusal to do so.' § 967. Different executions. The writ of fieri facias, named from the words (formerly in Latin) addressed to the sheriff, commanding him to " cause to be made," out of the goods or lands of the defendant, the amount of the plaintiff's claim, is that most frequently used. It applies to lands and goods, or choses in possession, including chattels real. As will be seen hereafter, this writ is, to some extent, a remedy concurrent with attachment-execution. 1 SeeKetlandu.Medford, lBinn.497. ' Com. Dig. "Execution," I. 1. 2 Kuhn u. North, 10 S. & R. 399. ^ Ibid. One who pays a judgment to the holder, * Vicars v. Haydon, Cowp. 843. is entitled to control it, and issue exe- ' The supreme court, however, has cution thereon, without an actual as- power, if it see cause, to order execu- signment. Gratz v. Farmers' Bank, 5 tion to issue upon the judgment, and Watts 99. A judgment may be assigned thereupon to remit the record. Act by parol. Levering w. Phillips, 7 Penn. 16 June 1836, | 11, P. L. 787; Purd. St. 387. 606. ' The writ is entirely under the con- ' ' Tidd 994-5. Where the judgment trol of the plaintiif ; he may direct it of a justice is affirmed, on certiorari, to be enforced, notwithstanding a stay execution issues out of the common of proceedings, so long as the rights of pleas, without a remiftiiur. Robbins third persons are not affected. Mc- v. Whitman, 1 Dall. 410. Bssler v. Lauehlin v. McLaughlin, 85 Penn. St. Johnson, 25 Penn. St. 350. 317. ' Eberle v. Medara, 2 Phila. 284. 556 EXECUTION. Levari facias is the ordinary legal writ, in this state, for collecting charges upon land — as, in the case of mortgages, mechanics' liens, and municipal claims,^ and judgments for registered taxes, in Philadelphia. It is said, also, to be the proper process in equity in such cases.^ It is directed to the sheriff, commanding him to cause to be levied out of the lands specified, the amount of the plaintiff's claim. Venditioni exponas is a secondary writ, that issues after a previous fieri facias has been levied upon goods or lands, which has been returned without a sale. It directs the sherifT to expose to sale the property em- braced in the levy ; and he can sell no more than what is therein com- manded to be sold ;^ but the plaintiff may have a clause of fi. fa. added, to justify the levy and sale of property beyond what is described in the vend, exp.* As regards personal property, the peculiar office of the vend, exp. is, to force the sheriff to sell, when he has returned the property unsold for want of buyers, and to bring him into contempt for not selling.^ Capias ad satisfaciendum is process against the defendant's person, by which the sheriff is directed to arrest the defendant, and detain him in custody till he satisfy the judgment. Attachment-execution is rather a proceeding than a writ, whereby the choses in action of the defendant, as well as goods and chattels, to which he has no present right of possession, may be reached in the hands of strangers, and applied to the satisfaction of the judgment. Mandanviis-execution is a writ to enforce the payment of judgments agaiust municipal corporations. Sequestration is a proceeding by which the revenues of a corporation may be applied to the satisfaction of judgments against it. This writ is also used to reach the life-estate of an individual defendant. Testatum execution is a writ, either a fieri facias or capias ad satisfa- ciendum, issued into another county than that in which the record remains. § 968. Order in tvhich executions may issue. Under the 19th section of the act of 1836,^ execution against the defendant must be taken in the following order, to wit : 1st, upon the personal estate of the defendant ; 2d, upon his real estate ; 3d, if he have neither personal nor real estate liable to execution, then upon the person of the defendant. And though the plaintiff may issue afi.fa. de bonis et terris, and levy on both goods and lands under the same writ, he must be careful to exhaust the personalty, before proceeding to sell the lands under a venditioni^ So, where a fi. fa. has been levied on lands, and is undisposed of, the sheriff cannot, under the same writ, levy on coin belonging to the defendant.^ Though, where the sheriff was directed to exhaust the per- 1 Hart V. Homiller, 23 Penn. St. 39 ; « P. L. 764 ; Purd. 635. Lowrie, J. ' Childs v. Dilworth, 44 Penn. St, * Ibid. 127; Read, J. And see Maybury v. " Frisoh v. Miller, 5 Penn. St. 315. Jones, 4 Yeates 21. ' Ibid. * Rudy v. Commonwealth 85 Penn. ' Ibid. St. 172. EXECUTION. 557 sonalty first, but by mistake, he first levied on and advertised tbe land, and then, finding that there was personal property, levied on and sold that, before a sale of the land, it was held, that the prior levy on the land was not a relinquishment of the lien upon the personalty.' § 969. Taken alone, the 19th section requires a levy on the entire per- sonal estate, before recourse can be had to the real estate, or the person of the defendant.^ But as, by subsequent sections of the same act, a certain description of personal property can only be reached by attach- ment-execution, the rigor of the 19th section is mitigated by the 20th, which provides, in substance, that the plaintifi" may have execution against the real estate, or against the person of the defendant, in the usual mode, or, at his election, he may proceed by attachment-execution against the personal estate to which that process is applicable.' The election here mentioned is a privilege of the plaintiff", irrespective of the defendant's wishes ; and if he have previously issued a ca. aa., which remains unexecuted, he is not thereby debarred from issuing and execu- ting an attachment-execution ; until execution be had, under a fieri facias or ca. sa., the right to issue an attachment may be exercised.* But where a fi. fa. has issued, and the land of the defendant has been levied on and condemned, an attachment-execution will not lie — the plaintiff has made his election.' However, it is only when the execution is incon- sistent with the attachment, that the latter becomes irregular.* § 970. The act, although allowing a,fi.fa. and ca. sa. to issue at the same time, declares that no ca. sa. shall be executed, where the defendant has sufficient real or personal estate within the county to satisfy the debt, and if such estate be not sufficient, a ca. sa. may be executed for the defi- ciency. Under this act, it has been held, that when a fi. fa. and ca. sa. are issued at the same time, the defendant may be arrested, unless he disclose property to answer the debt and costs.^ Under the act of 1807, it was held, that there was nothing to prevent the plaintiff from issuing a ca. sa., in the first instance, at his peril ;* but where a ca. sa. and fi. fa. issued together, he should take care not to execute the ca. sa., until he had ascertained that the defendant had not property to satisfy the judgment, and this he might do, by calling on him to show property ;^ should he arrest the defendant without calling upon him to show pro- perty, and the ca. sa. afterwards be set aside, trespass would lie.'" § 971. Contemporaneous writs. The general rule is, that the plain- tiflf may have as many executions, at the same time, as the law affords, and pursue each, until satisfaction is obtained upon one of them.'' By the 27th section, a ca. sa. and a fi. fa. may be issued, at the same time, against ' Childs V. Dilworth, 44 Penn. St. ' Winder v. Smith, 6 W. & S. 429. 123, ' Hecker v. Jarret, 3 Binn. 407. ' Davies v. Scott, 2 Miles 57. Burk v. McFall, 2 Bro. 144. ' Ibid. ' Allison v. Rheam, 8 S. & R. 142. * Ibid. '" Ibid. Berry v. Hamill, 12S. &R. 6 HoUowell V. MoClay, 3 Phila. 261. 210. « Heath v. Page, 63 Penn. St. 108. " Pontius v. Nesbit, 40 Penn. St. Shaw V. Kenath, 2 W. N. C. 127. 309. 558 EXECUTION. a defendant;' and a. fieri facias, capias ad satisfaeiendwm, and attachment- execution may be issued contemporaneously ;" and an attachment-execu- tion may issue, notwithstanding the pendency of a fi. fa., if no levy has been made.^ So, two writs of attachment-execution may issue for the same debt, against different garnishees ;* but the case is altered, if the first writ has been executed, in whole or in part. Thus, the plaintiff cannot, without leave of the court, abandon &fi.fa., partly executed, and issue an attachment-execution f and where a fi. fa. has issued, and the land of the defendant has been levied on and condemned, an attachment- execution will not lie — the plaintiff having made his election.' § 972. So, under the act of 1807, after a,fi. fa. had been levied on real property, which was condemned, the plaintiff could not abandon these proceedings, and take out a ca. sa., without the leave of the court, because the levy was primd facie evidence that the defendant had real estate to satisfy the debt, and a ea. sa. would be irregular on the face of the proceedings f and so, if a fi. fa. against personal property has been returned "levied subject to prior executions," the plaintiff must compel a sale of the property levied on, before he can issue a ea. sa.^ It should be remarked, that the act of 1807 differs from that of 1836, in this respect, that when the defendant has sufficient real or personal estate, &c., the former act provides that no ca. sa. shall issue, the latter act provides that no ca. sa. shall be executed.^ Conversely, it was doubted, whether, after an arrest of the defendant upon a ca. sa., and his discharge upon giving secu- rity to take the benefit of the insolvent laws, the plaintiff could withdraw his ea. sa., and issue afi.fa., without leave of the court.'" But this doubt probably arose, as is suggested in a_ subsequent case, from considering the arrest as satisfaction, till the defendant should be finally discharged ;'' it might, however, have arisen upon the general principle stated above. Where an attachment-execution is discontinued, and a fi. fa. issued, it is no objection to the fi. fa., that the costs of the attachment were not paid, until after the fi. fa. had issued.'^ § 973. Though two writs of different kinds may be issued contempo- raneously, they cannot both be executed, at the same time ;'' that is, if the plaintiff procure one of them to be served, he must first dispose of that, before he can proceed to execute the other." Thus, if, while an 1 Act 16 June 1836, § 27, P. L. 766 ; » Burk v. McFall, 2 Bro. 113. Purd. 636. ° A fi. fa. cannot issue, pending a ^ Ibid. ■ Davies v. Soott, 2 Miles 52. levy on real estate in another county ; ' Tarns V. Wardle, 5 W. & S. 222. in such case, the plaintiff will be put Heath v. Page, 63 Penn. St. 108. Shaw to an election. Ames Plough Co. v. V. Kenath, 2 W. N. C. 127. Lloyd, 2 W. N. C. 488. ' Pontius V. Nesbit, 40 Penn. St. " Young j>. Taylor, 2 Binn. 230; 309. Or, several garnishees may be Yeates, J. included in one attachment. Cornelius " Bank of Pennsylvania ». Latshaw, V. Simpson, 3 Phila. 35. 9 S. & R 10; Gibson, J. " Farr v. Carlton, 17 Leg. Int. 109. ^'^ Hamilton v. Dawson, 2 Clark 357. ^ HpUowell V. McClay, 3 Phila. '» Young v. Taylor, ut supra. Burk 261. V. McFall, 2 Bro. 144. Allison v. ' Bank of Pennsylvania v. Latshaw, Rheam, 3 S. & R. 142. 9 S. & R. 9. " Miller v. Parnell, 6 Taunt. 370. EXECUTION. 659 attachment-execution is pending, the plaintiff proceed to levy on and condemn the defendant's land under a fi. fa., the latter may have either of the writs set aside, at his election.' But, under the modern practice, this will not be done, unless there be an inconsistency between the writs ■? thus, an attachment may be issued, pending a levy under afi.fa.;^ and a fi. fa., pending an attachment which had been served on the garni- shee.^ Where the defendant, being arrested on a ca. sa., petitioned for a discharge under the insolvent law, but failed to apply at the succeed- ing term, according to the provisions of the act ; and the plaintiff then took out a fi. fa., and levied on the defendant's land, which was con- demned, and then issued an alias ea. sa., under which the defendant was again arrested, and subsequently discharged under the insolvent law ; and afterwards, the plaintiff issued a vend, exp., and sold the land ; it was held, that the fi. fa. being in operation, the alias ca. sa. was irregular ; but the defendant having submitted to it, and obtained a discharge therefrom, the proceedings upon the fi. fa. became irregular, and a deed to the sheriff's vendee could not be acknowledged.^ But where a fi. fa. and ca. sa. issued together, and the sheriff" was afterwards instructed not to execute the ca. sa., notwithstanding which, the defendant went to the sheriff's office and offered to surrender himself, and induced the officer to go with him to the prothonotary's office, where he gave bond, the court set aside the service of the oa. sa.^ § 974. Successive writs. When an execution is returned unexe- cuted, an alias writ of the same species may issue, and if that be returned unexecuted, a pluries writ may issue, and so on. Two successive writs cannot be issued returnable to the same term ;^ and the alias or pluries should be tested as of the term to which the former writ was returnable, and be made returnable to the next ensuing term.^ It cannot be Davies v, Scott, 2 Miles 52. Tams v. must first dispose of that, before he can Wardle, 5 W. & S. 222. proceed to execute the other. Miller v. '■ Myers v. Riot, Dist. Court, Phila., Parnell, 6 Taunt. 370. Davies w. Scott, 25 March 1848. Why the execution 2 Miles 52. Tarns k. Wardle, 5 W. & S. should not be set aside. Per curiam. 222. The defendant has accordingly An attachment^execution issued upon asked us to set aside the alias fi. fa. and this judgment, 1st April 1847; it was the proceedings based thereon; which duly served, and Anthony G. Querville is accordingly done. Rule absolute, garnisheed ; interrogatories were ex- And see Grant v. Potts, 2 Miles 164. hibited and answers filed ; a rule to ^ Heath v. Page, 63 Penn. St. 108. plead was entered, and upon the 3d ' Dobbins v. Urlgus, 5 Leg. Gaz. 99. July 1847, nulla bona was pleaded And see Herriott v. Wagner, 26 Pitts, and the cause at issue ; after this, upon L; J. 109. the 29th January 1848, an alias fl. fa. * Lord v. Brokensha, 1 W. N. C. 3. was issued, upon which an inquisition Shaw v. Kenath, 2 Ibid. 127. has been held, property condemned, * Young v. Taylor, 2 Binn. 218. and a vend. exp. sued out. These last ' Davies v. Scott, 2 Miles 52. Tams proceedings certainly have placed it in v. Wardle, 5 W. & S. 222. the power of the defendant to elect ' Shaffer h. Watkins, 7 W, & S. 219. which writ he would have set aside — If this be done, the alias will be set the fi. fa. or the attachment. Though aside. Ibid. he might have purchased both, he * United States v. Parker, 2 Dall. could not use both, and having pro- 373. But the intervention of a term cured one of them to be served, he between the teste and return of judicial 560 EXECUTION. objected that two writs were sued out to the same term, where the inquisi- tion on which the first was founded had been set aside and a new one held.' If the former writ be outstanding, an alias cannot properly issue ;^ and a.fi. fa. cannot issue upon a revived judgment, whilst there is an out- standing fi. fa. upon the original one ; the proper practice is to proceed upon the original f,. fa.^ So, where a testatum was issued against one of several defendants in the judgment, and afterwards aji.fa. against all of them was issued in the county where the judgment was obtained, the testa- turn being outstanding, the second fi. fa. was held irregular, partly on account of the testatum being outstanding, and partly because the writ against the other defendants did not issue within a year and a day after the judgment.'* So, if the former writ be partly executed, the plaintiff cannot abandon it, and issue an alias, without leave of the court.' But where- the former writ was levied on land of a stranger, and the defend- ant, at the time, disclaimed all title to the land, whereupon the plaintiff abandoned his writ and issued an alias, the latter writ will not be set aside, on the application of the defendant, on the ground that the plain- tiff was bound to pursue his levy and condemnation on the former j?. /a;* in such case, the return of " levied and condemned " to the first writ, is not a satisfaction of the execution, so far as the defendant is concerned.' This rule seems to be grounded on the presumption that the abandon- ment of the former writ is a satisfaction of the execution ; we shall see hereafter, how dangerous it is, for the plaintiff to discontinue proceedings, when once the property is within the grasp of the sheriff.^ But where a former writ has been levied on personal property, the issuing of a second writ which was withdrawn before any proceedings were had under it, will not constitute an abandonment df the preceding levy.' n. What may be taken in execution. § 975. In general, all the goods and chattels of the defendant, which were in his possession, at the delivery of the writ to the sheriff, may be taken in execution.'" But, at common law, nothing which could not be sold, as deeds, writings, &c., could be taken in execution ;" and no chose in action could be seized in execution,'^ as bank notes, &c. ;'* so, a bond process, is not an irregularity. Ingham * See infra, \ 1129. V. Snyder, 1 Whart. 116. Miner ». ' Ingham v. Snyder, 1 Whart. 116. Walter, 8 Phila. 571. '» Com. Dig. "Execution," C. 3. ' Springer v. Brown, 9 Penn. St. " Ibid. C. 4. 305. " Heath v. Knapp, 10 Watts 406. " Gist !). Wilson, 2 Watts 30. Cole- In an early ease, Pulton v. Irwiu, Add. man ». Mansfield, 1 Miles 56. See 19, where notes, the property of the Misaimer v. Ebersole, 10 L. Bar 7. defendant, were sold under execution. Bole V. Bogardis, 86 Penn. St. 37. and purchased by the plaintiff, at less ' Gist V. Wilson, ut supra. than their value, the court recognised * Gibbs V. Atkinson, 1 Clark 476. the validity of the sale, by compelling * Coleman v. Mansfield, 1 Mihs 56. the plaintiff to account for them at * Ibid. their full value ; but the reporter, in a ' Ibid. Hunt v. Breading, 12 S. & note, expresses a doubt as to the right K. 37. Morrison's Appeal, 1 Penn. to take notes in execution. St. 13. " Com. Dig. "Execution," C. 4. EXECUTION. 561 or promissory note cannot be levied on and sold as a chattel ;^ nor an unexecuted land-warrant in the hands of the deputy-surveyor.^ And though ehoses in action may now be reached, in this state, by the pro- cess of attachment-execution, yet, the general rule that they cannot be levied on and sold as chattels still prevails. To this rule, however two exceptions have been introduced by statute. § 976. StocJcs. Stock in any corporation, held in the defendant's own name, may be levied on and sold, subject to debts due by the holder to the corporation.^ In such case, a subsequent sale of the stock, under the lien of the corporation, divests the title of the sheriff's vendee ; and the lien of a bank upon stock attaches upon protest of the note.* Stock owned by a municipal corporation may be levied on and sold under afi. fa. issued out of the United States circuit court.° But stock standing in the name of defendant, is not liable to execution, if it be actually the property of another.* Stock owned by a defendant, and held in his own name, may be reached either by levy and sale, under the act of 1819, or by attachment-execution f stock belonging to defendant, but not held in his own name, can only be reached by attachment-execution.* § 977. Coin and banJe-notes, By the act of 1836, the seizure of coin and bank-notes is expressly authorized, where the officer can find no real or other personal estate, except where such money is raised by exe- cution at the suit of the debtor, or is actually on his person at the time f this exception does not apply to the case of a surplus in the sheriff's hands, after paying an execution against the debtor, and such surplus is justly and legally liable to be taken in execution.'" And the sheriff may levy on money which is in bis hands by virtue of an execution against the debtor ;'' but where two unsatisfied executions were in the sheriff's hands, and the defendant paid the officer a sum of money, with direc- tion to apply it to the junior execution, the officer might so apply it, and was not bound to levy on such money in his own hands, by virtue of the first writ. And having levied on the defendant's real estate, the sheriff cannot, whilst that levy remains undisposed of, seize in execution, under the same writ, a sum of money voluntarily paid him by the defend- ant, with direction to apply it to a junior execution.'^ § 978. Chattels bailed. Chattels pawned or gaged for a debt, or leased for years, cannot be seized in execution for the debt of the pawnor ' Rhoads v. Megonigal, 2 Penn. St. Bonaflon ». Wyoming Canal Co., 4 40. . ' Phila. 29. Weaver v. Railroad Co., ^ Heath v. Knapp, 10 Watts 405. 50 Penn. St. 314. Kinter v. Jenks, 43 Perm. St. 445. « See infra, § 1212. = Act 29 March 1819, J 2 ; 7 Sm. L. 'P. L. 765 ; Purd. 636. Bank-notes 217 ; Purd. 642. are to be taken at their par value. * West Branch Bank v. Armstrong, Ibid. See Crane v. Freeze, 1 Harrison 40 Penn. St. 278. 305. Collingridge b. Paxton, 11 C. B. 5 Oebicke v. Pittsburgh, 17 Leg. 683. Int. 4. " Herron's Appeal, 29 Penn. St. 240. ^ Commonwealth v. Watmough, 6 " Ibid. Whart. 117. • " Rudy v. Commonwealth, 35 Penn. ' Lex V. Potter, 16 Penn. St. 295. St. 166. VOL. I. — 36 562 EXECUTION. or lessor ;' the sheriff cannot seize such goods, because the execution- defendant has no right of possession, but he may sell the defendant's interest, subject to the rights of the pawnee or lessee ; it is reasonable, that whatever interest the debtor himself may sell, the sheriff may sell, although it may not he capable of seizure and delivery;^ and so of ma- terials bailed for the purpose of being manufactured f and a lessee's interest in either personal or real estate may be taken in execution.* A sheriff seizing goods in the possession of A., under an execution against B., cannot justify the trespass by an authority from C, the rightful owner ; but A. will be entitled to nominal damages for the trespass to his possession.' Where, however, the goods of one of the defendants were seized in the possession of others of them, and advertised and sold as their property, under the writ, the sale divests the owner's inter- est, and the officer is not a trespasser.' But goods pledged or demised, or money deposited by the defendant, are now, under the act of 1836, liable to execution, and can be reached by the process of attachment- execution.^ § 979. Goods in the custody of the law. Goods in the custody of the law are not liable to be seized in execution. Thus, where goods are levied upon and delivered to a claimant, under a sheriff's interpleader, on his giving a forthcoming-bond, the property is not withdrawn from the custody of the law, and cannot be seized under other process ; the lien of the prior execution is not discharged,' So, if goods be levied on by a marshal, under federal process, the sheriff cannot take the property out of the marshal's possession, under state process ; but his execution will be paid out of the proceeds of sale, without regard to other execu- tions, which may subsequently come into the hands of the marshal.' But a constable may sell, notwithstanding a prior execution is in the sheriff's hands, upon which no actual levy has been made;'" if, how- ever, the sheriff have made no actual levy, a constable cannot interfere with his possession and custody, under a subsequent writ." * Srodes v. Caven, 3 Watts 258. tlie hands of the company. Gregg v. ^ Lindsey v. Fuller, 10 Watts 147. Hilson, 8 Phila. 91. Nor can the con- Welsh V. Bell, 32 Penn. St. 12. Meyers tents of such safe be levied upon, under V. Prentzell, 35 Ibid. 482. * a fi. fa. Klett v. Craig, 1 W. N. C. 28. ' Pierce v. Sweet, 33 Penn. St. 151. If, however, a garnishee admit the pos- The bailee's lien is independent of any session of goods pledged by the defend- speoial agreement. Ibid. ant, the practice is, to award a fi. fa. to * Lindsey v. Fuller, 10 Watts 147. sell the latter's interest. Freeman v. * Rogers v. Fales, 5 Penn. St. 154. Simons, 7 Phila. 307. ° Swires J). Brotherline, 41 Penn. St. ® Hagau v. Lucas, 10 Pet. 400. 135. Johnston v. Minor, Dist. Court, Phila., ' But a horse cannot be, attached in 4 Jan. 1848, infra § 1143. s. p. Sedg- the hands of a livery-stable keeper; a wick's Appeal, 7 W. & S. 260. Bain «. fi. fa. must issue. Buckner v. Crois- Lyle, 68 Penn. St. 60. sant, 3 Phila. 219. Hall u. Filter Manu- ' Bayard v. Bayard, 3 Clark 261. facturing Co., 2 W. N. C. 154. Nor Crane v. McCoy, 1 Bond 422. can the contents of a safe, leased from ^^ Duncan v. McCumber, 2 W. & S. a deposit-company, and of which the 264. renter holds the key, be attached in " Benson v. Berry, 55 Barb. 620. EXECUTION. 563 § 980. Goods of a stranger to the writ. No questions in practice arise more frequently than those relating to the ownership of goods taken in execution. These questions may be and generally are settled by an jssue raised under the sheriff's interpleader act, a proceeding by which a stranger to the writ, whose goods have been levied on, may intervene, raise the question of title, and have it decided, before the sale ; this pro- ceeding will be explained below.^ But one whose goods have been seized under an execution against another person, after notifying the sheriff of his claim,^ may, if he choose, remain passive until the sale has taken place, and then raise the question of title, in an action of trespass against the sheriff, and this mode is frequently adopted. The sheriff, how- ever, if he doubt the defendant's title to the goods, may refuse to levy on them, until he has been idemnified by the plaintiff against the consequences of a mistake ; and a refusal to indemnify, in a case where it might reasona- bly be demanded by the sheriff, would be a justification, in an action for a false return.' The plaintiff has a right to levy on property assigned to or claimed by a stranger, for the purpose of having the title tried by a jury (though he and the officers will be liable as trespassers, if found to be in the wrong) ; and it is error for the court to stay his proceedings, whilst attempting to sell the property in dispute.* § 981. Of sales by defendant fraudulent in law. The case of most common occurrence is, where goods in the possession of the execu- tion-defendant are levied on, and the property therein is claimed by an alleged vendee or assignee of such defendant. The law in this state is, that a sale of personal chattels must be accompanied by an actual delivery of the goods to the vendee, or it will be fraudulent as to the creditors of the vendor f or, if the nature and bulk of the articles pre- clude actual delivery, it must be constructive f and when possession is retained by vendor, after the sale, it is not only evidence of fraud, but fraud per se;'' iu such case, the transaction is fraudulent in law, and the question is for the court, and not for the jury f but even a temporary ' See infra, I 1135. is the same, where the debtor's wife is ^ Such notice should be specific, if the the claimant, if the validity of her title claimant know what goods are seized ; be disputed. Winch's Appeal, 61 Penn. otherwise, a general notice will be St. 424. Allen v. Gordon, 3 Brewst. sufficient to put the sheriff on in- 543. Dyer«. People's Bank, 9 Phila. quiry. Helfrich v. Stem, 17 Penn. St. 159. Shuster v. Bennett, Ibid. 208. 143. Simson v. Bates, 10 Ibid. 66. Boyle ' Spangler v. Commonwealth, 16 S. b. Ramsey, 1 Leg. Gaz. R. 45. Other- & R. 70. But the proper practice is, wise, if the wife make out a clear to move the court to enlarge the time title. Hunter's Appeal, 40 Penn. St. for returning the writ, until an indem- 194. Allen v. Benners, 10 Phila. 10. nity be given. Keifer v. Britt, District ^ See the cases collected in Bright. Court, Phila., 19 February 1848; Dig. tit. "Fraud," II. Adams v. Hazlitt, Ibid., 26 February " Steelwagon v. Jeffries, 44 Penn. St. 1848 ; infra, 1088 n. 407. Barr v. Reitz, 53 Ibid. 256. Ben- * Neel V. Bank of Lewistown, 11 ford v. Schell, 55 Ibid. 393. Penn. St. 17. Stewart v. Coder, Ibid. ' Dewart v. Clement, 48 Penn. St. 90. Reeser !>. Johnson, 76 Ibid. 313. 413. Billingsley u. White, 59 Ibid. 464. Bunting v. McCormick, 3 W. N. C. 496. Bentz v. Rockey, 69 Ibid. 71. Welsh V. Jermon, 4 Ibid. 55. The law * Milne v. Henry, 40 Penn. St. 352. 564 EXECUTION. change of possession will sometimes, it seems, take the sale out of the category of fraud in law.^ And it has been said, that cases of concurrent possession by vendor and vendee are exceptions to the rulef but this has been held otherwise, and there is now no distinction between separate possession by the vendor, and concurrent possession by the vendor and vendee.^ What constitutes a delivery depends upon circumstances ;* it is said, that whatever will authorize the purchaser to take possession, without committing a trespass, may be regarded as a delivery .° § 982. Whether there has been a delivery or not is, where the evidence is conflicting, a question for the jury,* but a transfer by a formal instru- ment of writing is usually but a slight circumstance on the question as to the existence of fraud in the transaction.'' Where no actual fraud exists, the want of an open and unambiguous change of possession wiU not render the sale fraudulent in law, if there were an actual delivery of possession, in such form as usually and naturally attends such a transaction.^ In case of a voluntary sale of household furniture, the lapse of two or three weeks before its removal, during which time the purchaser was looking for a house, will not vitiate the sale, where no process issued against the goods in the interim, nor for ten months after the sale.' And where, from the nature of the transaction, possession either could not be delivered at all, or not without defeating fair and honest objects intended to be effected by the transaction, the case may be regarded as an exception to the rule.'" So, in case of the sale or assignment of a lease for years, an immediate change of possession is not essential to the validity of the transaction." § 983. A sale of personalty in the hands of a bailee is valid against an execution-creditor of the vendor, though there be no actual delivery, if the vendor do not resume possession ; and so, if the vendee take pos- session, and leave the property with the former bailee for a specific pur- pose.'^ In such case, it is not error for the court to refuse to charge that the sale was a fraud in law, and to leave to the jury the question of fraud in fact ;'* and on a sale of fixtures, it is not necessary for the vendee to take immediate possession, because fixtures are a part of the Dewart v. Clement, 48 Ibid. 413. Mc- Witzmau v. Simpson, 1 W. N. C. 554. Kibbin v. Martin, 64 Ibid. 352. ' Forsyth v. Matthews, 14 Penn St. 1 Brady v. Haines, 18 Penn. St. 113. 100. Graham v. MoCreary, 40 Ibid. 515. * MoKibbin v. Martin, 64 Penn. St. '' Bckfeldt V. Friok, 4 Phila. 116. 352. McMarlan v. English, 74 Ibid. And see McKibbin v. Martin, 64 Penn. 296. Billingsley v. White, 59 Ibid. 464. St. 352. Sheldon v. Sharpless, 2 W. N. Sheldon v. Sharpless, 2 W. N. C. 311. C. 311. 5 Smith v. Stern, 17 Penn. St. 360. ' Brawn v. Keller, 43 Penn. St. 104. " Born v. Shaw, 29 Penn. St. 288. Miller v. Garman, 69 Ibid. 134. Wor- " Williams v. Downing, 18 Penn. St. man v. Kramer, 73 Ibid. 378. 60. * Chase v. Ralston, 30 Penn. St. " Linton v. Butz, 7 Penn. St. 89. 539. . Worman v. Kramer, 73 Ibid. 378. * Smith V. Smith, 5 Penn. St. 254. Bank of Pennsylvania v. Delbanco, 1 " Forsyth v. Matthews, 14 Penn. St. Phila. 104. Woods v. Hull, 1 W. N. 100. Chase v. Ralston, 30 Ibid. 539. C. 442. McKibbin v. Martin, 64 Ibid. 352. " Roberts v. Guernsey, 3 Gr. 237. EXECUTION. 565 realty, and do not come within a rule which applies exclusively to chat- tels personal.' Where there was a bond fide sale and actual delivery of a chattel, the fact that the vendee, some weeks afterwards, lent the chattel for a specific purpose to the former owner, in whose hands it was seized in execution for his debt, does not vitiate the sale f and a sale and deli- very of a chattel actually levied on, part of the price being applied in payment of the execution, is not a legal fraud.' Where there has been a delivery, if the vendee suiFer the chattel to be sold under execution against the vendor, he remains liable to the latter for the price.* A mortgage of a chattel is valid, if the mortgagee take such possession of the thing pledged as its nature and the circumstances will admit.^ § 984. Collusive sheriff's' sales. Sheriffs' sales of personalty are sometimes collusive, being designed to cover the defendant's property from his creditors ; in such case, the sale is invalid, and the pro- perty remains liable to levy and sale by the creditors of the defendant.^ Merely leaving the goods purchased at sheriif's sale in the possession of the defendant for his use, or under a contract of bailment, does not ren- der them liable to execution as the property of the latter.^ But where cloth was left by the purchaser with the defendant (a tailor) to be made up for the defendant's own profit, he accounting to the purchaser only for the price of the cloth, this was held not a bailment, but a sale to the defendant, and the goods were liable to levy and sale as his property.' So, misconduct on the part of the successful bidder, may vitiate the sale, and leave the goods still liable to execution as the property of the defend- ant — as, if he falsely declare that he is buying for the family of the de- fendant, though not, if such declaration be true ; or, if he falsely tell other bidders that he is buying under an arrangement for the common benefit of the creditors ; or make any false declaration of intention, in order to gain a particular advantage.' If the goods were bought in for the family, with the debtor's money, the title is not divested, and they remain liable to execution for his debt.'" § 985. Where the plaintifi" in the execution bought the goods at a price much below the amount of his judgment, but the possession was not changed, nor any credit given on the judgment, nor a receipt giveu to the sheriif for the amount of the bid, and the plaintiff afterwards received the whole amount of his judgment from another fund, it was held, that the goods were liable, as the property of the defendant, to levy and sale under an execution issued after payment of the judgment :" and ' Strauss v. Davy, 3 Phila. 137. Ibid. 72. Knightu. Bank, Ibid. 138. In such sale, * MoMichael u. McDermott, 17 Penn. the landlord's assent is not necessary to St. 3-53. render it valid as against creditors, but ' Walter v. Gernant, 13 Penn. St. is onlymaterial as concerns the landlord 515. Dick v. Cooper, 24 Ibid. 217. himself. Strauss v. Davy, ut supra. Craig's Appeal, 77 Ibid. 448. ' Brady v. Haines, 18 Penn. St. 113. ■ * Dick v. Cooper, ut supra. ' Ibid. ' Walter v. Gernant, ut supra. * Fry V. Lucas, 29 Penn. St. 356. " Ibid. 5 Fry V. Miller, 45 Penn. St. 441. " Schott v. Chancellor, 20 Penn. St. And see Duulap v. Bournonville, 26 195. 566 EXECUTION. this, though the plaintiff had other claims against the defendant, beyond the amount of his bid, and exceeding the amount of his receipt, given on payment of the judgment, and not mentioned therein.^ Where there are no other writs in the sheriff's hands at the time, the want of an actual levy and seizure of the goods is immaterial, when the constructive levy is immediately followed by a sale, at which the goods were in the actual power and control of the sheriff; nor is it a ground of legal fraud, that the sheriff had given the advertisements to the defendant to be posted, especially, where there were many bidders at the sale; nor that the plaintiffs purchased all the property, and that the prices were low, if the sale was public, without adverse levy or claim, and without remonstrance on the part of the defendant.^ § 986. Actiial fraud. A private sale or assignment of personalty may be fraudulent and void, though accompanied by delivery of pos- session.* If the possession be not changed, the sale is a fraud in law, as has already been seen ; but actual fraud, or fraud in fact, does not depend upon the non-delivery of the goods ; the existence of actual fraud is a question for the jury.* Of course, no general rule can be laid down as to what constitutes actual fraud ; it is a question of inten- tion, and intention is to be inferred by the jury from all the circum- stances.° The facts, that the defendant was indebted at the time of the sale, that he was then insolvent, and his vendee knew it, that shortly after the voluntary sale, judgments to a large amount were obtained against him, for debts due before the sale, are evidence to show that such sale was fraudulent as against the vendor's creditors.* It is, in most cases, the turning-point upon the question of actual fraud in a sale of chattels by one in debt — what did the vendor do with the money? — and if a cloud rest upon that, the bona fides of the vendee ought to shine as clear as the sun to disperse it.' So, an actual delivery to the vendee will not prevent a levy at the suit of a creditor of the vendor, where, by the terms of the agreement, the property was not to vest in the vendee, until he had performed some act in reference thereto ; and in such case, the entire property passes by the sheriff's sale, and the vendor's receipts for partial payments are only evidence of advancements by the vendee, for which he has no lien.* § 987. In general, a sale or assignment of personalty, by one largely indebted, or in contemplation of insolvency, is fraudulent as against his creditors.' So, an assignment of property in trust to sell part of it to pay advances, and to retain part subject to the future order of the 1 Chancellor ». Schott, 23 Penn. St. Forsyth v. Matthews, 14 Ibid. 100. 68. " Helfrich v. Stem, 17 Penn. St. '' AUentown Bank v. Beck, 49 Penn. 143. St. 394. ' Bastian v. Dougherty, 3 Phila. 30. ' Forsyth v. Matthews, 14 Penn. St. " Mitchell v. Commonwealth, 37 100. Graham v. Smith, 25 Ibid. 323. Penn. St. 187. ' Brady v. Haines, 18 Penn. St. 113. ' Stat. 13 Eliz. o. 5. Reinheimer v. Loucheim v. Henzey, 77 Ibid. 305. Hemingway, 35 Penn. St. 432. Dea- 5 Milne v. Henry, 40 Penn. St. 352. kers v. Temple, 41 Ibid. 234. EXECUTION. 567 assignor, is intended only as a cover to keep off execution-creditors, and has premeditated fraud upon its face.^ So, if the sale and delivery be accompanied by a secret trust, from which the debtor might ultimately derive a pecuniary benefit, it is fraudulent and void as against creditors.^ In this state, voluntary assignments for the benefit of creditors are regu- lated by various acts of assembly, to which we can only refer.^ Such assignments must be recorded within thirty days •* they must not prefer one or more creditors (except laborers for wages) f and a condition in an assignment, for the benefit of such creditors only as shall execute a release, is void.^ The act of 17th April 1843 does not prevent one in failing circumstances from paying particular creditors in full ; nor does it prohibit the assignment of a chose in action, for the purpose of securing a particular debt ; and the delivery of such chose in action to a stranger, in trust for the assignee's use, is goodJ So, a debtor may lawfully, by deeds and bills of sale, transfer to a creditor his entire property, in con- sideration of the satisfaction of the claim, and the appropriation of the balance of the price in discharge of debts due certain other specified creditors ; provided, the consideration be a fair one, and the transaction is bond fide, with the honest intent of paying the preferred creditors ; and the bona fides of the transaction is a question for the jury, and not for the court." Such preference by an insolvent debtor may be made by judgment, deed, or in any other mode, except by an assignment in trust; and it is no objection to the validity of a fair and honest transaction of this kind, that the debtor had other creditors who were delayed thereby, or wholly prevented from obtaining payment f and it is for the jury to determine whether the transaction was a sale, or the creation of a trust for the benefit of creditors.'" § 988. From the above, it may be inferred, that while an insolvent debtor cannot make a gift of his chattels, nor sell them to a stranger, nor dispose of them to any one at less than a fair price, without incurring the risk of having the transaction treated as fraudulent and collusive, he may safely deliver a chattel, at a fair valuation, to a creditor, in satis- faction of an honest debt. A mother holding personal property in trust for her children, has the legal right to give or sell it to them, in order to prevent it from being levied upon by a firm-creditor of the mother and her husband, where no judgment or execution exists against her at the time, or is in immediate prospect.^' One who, bond fide, for a valua- » Hart V. McFarland, 13 Penn. St. Purd. 91. 182. ' Act 16 April 1849, 1 4, P. L. 664 ; 2 Connelly v. Walker, 45 Penn. St. Purd. 91. 449. ' Mellon's Appeal, 1 Gr. 212. » Purd. Dig. (10th ed.) tit. "Assignr- * York County Bank v. Carter, 38 ments." Penn. St. 446. * Act 24 March 1818, ? 5; 7 Sm. L. ' Ibid. McCurdy's Appeal, 2 Am. 132 ; Purd. 93. Thomas v. Lowber, 14 L. Reg. 446. Prowattain v. Gilling- Penn. St. 438. The omission of the ham, 1 Phila. 271. assignee to give bond, does not inval- '° York County Bank v. Carter, ut idate the assignment. Heekman v. supra. Messenger, 49 Ibid. 46.5. " Smith v. Stern, 17 Penn. St. 360. 6 Act 17 April 1843, P. L. 273 ; 568 EXECUTION. ble consideration, and without notice, purchases a chattel from a fraudu- lent vendee, takes a title clear of the fraud, whether it be actual or legal ;' unless a fi. fa. against the fraudulent vendor, be previously lodged in the sheriff's office.^ § 989. Sale after notice of execution. A. sale of chattels by the defendant, after notice of the issuing of execution, is a fraud in law, of which the jury has not jurisdiction ; and if the vendee also have notice of the pendency of the writ, he takes no title as against creditors of the vendor.^ But where, after an assignment for the benefit of creditors, the assignor, with the assent of the assignee, sold part of the goods, for a valuable consideration, and delivered possession, and an execution had been left with the sheriff, between the assignment and sale, but the attorney of the plaintiff informed the intended purchaser that these goods would not be levied on, the sheriff taking the goods is a mere trespasser.^ § 990. Goods purchased but not delivered. The case of a levy upon chattels sold, by the creditors of the vendee, presents a different question from the above : here, the question of fraud can rarely arise ; but the point to be considered is, whether there has been such a transfer of the property, as will give the vendee an interest which may be levied on. If there have been an actual delivery of the chattel, it may be levied on by the creditors of the vendee, whether the sale were absolute or con- ditional, and whether the price have been paid or not f whatever will authorize the purchaser to take possession, without committing a trespass, may be regarded as a delivery.^ Where the vendor retains possession, but the price is in part paid, the chattel may be levied on by the vendee's creditors, and, on paying the balance due the vendor, the purchaser at the sheriff's sale acquires the right to the possession.^ So, where one had purchased the right to quarry and remove stone, to be used in construct- ing certain canal-locks, the quantity to be estimated in the locks, and to be paid for at a certain rate, when the canal contractors should be paid, the vendee had a property in stone quarried by him under his agree- ment, but not removed, which might be levied on.' Where the pur- chaser of machinery for his mill, which had been partly delivered and set up, made a written agreement with the vendor, that the machinery and boilers were the property of the vendor, and the latter agreed to leave them where they were, for three months, in order to give the ' Thompson v. Lee, 3 W. & S. 479. Jenkins v. Eichelberger, 4 Watts 121. MoMahon v. Sloan, 12 Penn. St. 232. Rose v. Story, 1 Penn. St. 190. Haak Sinclair u. Healy, 40 Ibid. 417. A v. Linderman, 64 Ibid. 499. Heppe v. minor son of an insolvent parent may Speakman, 3 Brewst. 548. Stiles ». acquire title to property, as against his Whittaker, 1 Phila. 271. It is other- father's creditors. MoCloskey v. Cy- wise, where the vendor retains either an phert, 27 Ibid. 220. exclusive or joint possession, with the ^ MoCabe v. Snyder, 3 Phila. 192. indicia of ownership. Lehigh Co. v. " Reinheimer v. Hemingway, 35 Field, 8 W. & S. 232. Rose v. Story, Penn. St. 432. ut supra. * McElrath v. Kintzing, 5 Penn. St. « Smith v. Smith, 5 Penn. St. 254. 336. ' Rose v. Story, ut supra. ' Martin v. Mathiot, 14 S. & R. 214. " Watts v. Tibbals, 6 Penn. St. 447. EXECUTION. 569 vendee time to make an arrangement with his creditors, and in the event of his inability to do so, then the vendor was to be left to his legal remedy for the machinery already furnished, or to the removal of the same, at his option, it was held, that the vendor's property was not divested by a sheriff's sale of the articles, under an execution against the vendee.^ A contract for the purchase of chattels by one, as agent for another, which is subsequently rescinded, by tacit consent of all parties, and a new and binding sale of the goods made by the agent to a third party, while they 9,re in transitu, vests no property in the first vendee or in the agent, and does not render the property liable to execution against either.^ Evidence of fraudulent sales of other property by the parties interested in that in controversy, is inadmissible to impeach its validity.^ § 991. Confusion of goods. Although it is well settled, that he who wilfully intermixes his goods with those of another, cannot recover them or their value from the other party, if it be impossible to distinguish and separate them, yet, where there is evidence of fraudulent conduct between two parties, in regard to the creditors of one of them, an improper inter- mixture of their goods by the party indebted, acting as the agent of the other, cannot be taken advantage of, nor disavowed, by the principal, in a contest with a bond fide execution-creditor of the party by whom the intermixture was made ; as to such creditors, the colluding parties are one."* Where an agent converts to his own use goods intrusted to his care, or misapplies them, the principal does not thereby acquire title to to like goods of the agent, as in the case of confusion of goods ; and, therefore, where a stranger to the writ, claiming property in the goods levied on, can find none that he can identify by marks or otherwise, but claims a like number of similar goods out of the bulk, on an issue framed to try the title, he is bound to show that his goods were among the property levied on; it is not enough for him to rely upon the fact, that his similar goods' had been wrongfully appropriated by the defendant in the execution.^ If the sherifi" knew, at the time, that a por- tion of the goods levied on had never belonged to the defendant in the ' Shell V. Haywood, 16 Perm. St. Vroom 163. See Seymour v. Wyokoif, 523. 10 N. Y. 213. ' Huntzinger v. Harper, 44 Penn. St. * Wood v. Fales, 24 Penn. St. 246 ; 204. Where the same thing is sold to s. c. 1 Phila. 499. The fact that the two different persons, by contracts plaintiff's fcoods have been commingled equally valid, and the second vendee is with similar goods of the defendant, ignorant of the first sale, he who first by the wrongful act of a third party, obtains the possession, is entitled to the is not necessarily a bar to a replevin, property. Winslow v. Leonard, 24 Wilkinson v. Stewart, 85 Penn. St. 2.'J5. Penn. St. 14; s. c. 2 Gr. 139. s. p. Wilson v. Nason, 4 Bos. 155. If, ' Huntzinger v. Harper, ut supra. however, the wheat of two parties be * McDowell V. Rissell, 37 Penn. St. put into a common bin, with their con- 164. The doctrine that one who mixes sent, this creates a tenancy in common his goods with those of another owner, between them. Nowlen v. Colt, 6 Hill loses his property therein, is adopted to 461. Adams v. Meyers, 1 Saw. 3(.i6. prevent fraud ; it cannot be invoked by And see Henderson v. Lauck, 21 Pei.i. a wrongdoer. Wooley v. Campbell, 8 St. 859. 570 EXECUTION. execution, he would be liable as a trespasser, as to such additional goods, unless he gave the owner notice or permission to remove them ; if the sheriff did not know that fact, the alleged owner, in order to render hiin liable as a trespasser as to such goods, should have notified him of the fact, and such notice should be specific, where the owner knew what goods had been levied on ; but where he did not know what precise goods had been seized, a general notice to the sheriff would be sufficient to put him ,)n inquiry.* But where the goods of one of several defendants are seized in the possession of others of them, and are advertised and sold as their property, the sale divests the owner's interest, and the officer is Dot a trespasser.^ § 992. Goods belonging to defendant's wife. The married woman's act' protects the property of a wife from her husband's creditors. To bring it within that protection, it is necessary to prove that she owns it, as having been hers before marriage, or that she acquired it afterwards, and in what way; mere evidence that she purchased it, or had the means of paying for it, is not sufficient to give her title ; it must be satisfacto- rily shown, that it was paid for with her own separate funds ; in the absence of positive evidence to this effect, the presumption is violent, that the husband furnished the means of payment : and this applies as well to real as to personal estate.* Her share of her father's estate, paid to her after the act, is protected by it, though the father died before its passage.' Unless the fact of her separate ownership of the purchase- money be fully proved, the question ought not to be submitted to the jury ; it is error, to submit it, without evidence.* Goods purchased by a married woman, on her own credit and used as stock in trade for her, are not her separate property, within the meaning of the act of 1848 ;' and where a married woman, residuary legatee of her deceased brother, who had directed his executors to sell his stock of goods, took the goods at the appraisement, agreeing, therefor, with the administrator, to pay the testator's debts, in amount greater than the value of the goods, and kept store, the husband living in the house and assisting in the business, this was a purchase on credit, and the stock kept up by sales and purchases was not within the protection of the act.' But where she is the hon&fide owner of a stock of merchandise, although not a /erne sole trader, she can 1 Helfrich u. Stem, 17 Penn. St. 143'. 49 Ibid. 231. Flick v. Devries, 50 ' Swires v. Brotherline, 41 Penn. St. Ibid. 266. Hause v. Gilger, 52 Ibid. 135. 412. Curry v. Bott, 53 Ibid. 400. 3 Act 11 April 1848, P. L. 536; Earl ». Champion, 65 Ibid. 191. Bow- Purd. 1005. er's Appeal, 68 Ibid. 126. Bucher v. *■ Keeney v. Good, 21 Penn. St. 349. Ream, Ibid. 421. Bradford's Appeal, 29 Ibid. 513. Top- ^ Mellinger o. Bausman, 45 Penn. ley V. Topley, 31 Ibid. 328. Auble v. St. 522. Mason, 35 Ibid. 261. Hallowell v. Hor- « Aurand v. Schaffer ; Gault v. Saffin, ter, Ibid. 375. Walker v. Reamy, 36 ut supra. Ibid. 410. Winter v. Walter, 37 Ibid. ' Robinson v. Wallace, 39 Penn. St. 155. Gillespie v. Miller, Ibid. 247. 129. Hofifman v. Toner, 49 Ibid. 231. Bhoads v. Gordon, 38 Ibid. 277. Aur- Fitzpatrick v. Borbridge, 2 Brewst and !). Schaffer, 43 Ibid. 363. Gault «. 559. Saffin, 44 Ibid. 307. Hoffman u. Toner, ' Hoffman v. Toner, ut supra. EXECUTION. 571 trade with them, and buy other goods with the proceeds, exempt from seizure for her husband's debts.^ A mere trespasser taking the goods has no right to dispute the assertion of both husband and wife, that the goods belong to the wife.^ § 993. If a husband has permitted his wife to acquire chattels by her own labor, or by a gift from himself or another, a subsequent voluntary assignee for the benefit of the husband's creditors cannot impeach her title ; though the creditors themselves might do so.' Where a resident of Missouri transferred to a trustee for his wife, under the law of that state, all his household furniture, and, having afterwards moved to Pennsylvania and contracted debts, the wife's title was contested by his creditors ; and it was held, that as she owned the property in Missouri, she would still own it, after moving into Pennsylvania, and that creditors could avoid her title only by showing that the transaction was intended as a fraud upon them.* A post-nuptial settlement of personal property fairly made by a husband, not indebted at the time, as a reasonable pro- vision for his wife, is not fraudulent per se ; but is void only when made with a fraudulent intent, which he who alleges must prove ; the posses- sion of a wife under a settlement being necessarily concurrent with her husband, does not render it void. The conveying of goods by the hus- band, for a nominal consideration, to a trustee in trust for the benefit of the wife, just before or at the time of engaging in a hazardous business, is not necessarily a fraud as to future creditors, but only so, if conveyed with an intent to protect the goods from their grasp; and the jury are, generally, to judge of the intent from such badgas as the transaction wears.' A recent act provides a mode of proceeding by a wife, in certain circumstances, to have herself declared a feme sole trader, whereupon she may engage in business, and her property, however acquired, is free from interference on the part of her husband.' § 994. Partnership goods. Under an execution against one partner, the sheriff cannot sell the goods of the partnership, but only the interest of the defendant in the partnership effects f and such interest can be made available only by an account between the partner and the partner- ship, and it is an item in such account, that enough must be left for the partnership debts.* The right to confine the purchaser to his interest in the surplus, belongs to the remaining partners, and may be insisted on or waived by them, at their pleasure ; the creditors of the firm cannot 1 Wieman v. Anderson, 42 Penn. St. * Reid v. Gray, 37 Penn. St. 508. 311. In this case, the original stock " Larkin v. McMullin, 49 Penn. St. of goods was purchased by the wife's 29. brother, at a sheriff's sale of her hus- ' Act 4 May 1855, P. L. 430 ; Purd. band's goods, and subsequently given 1008. See Black v. Tricker, 59 Penn. to her by the brother. And see Welch St. 13. V. Kline, 57 Ibid. 428. ' Smith v. Emerson, 43 Penn. St. 46] . 2 Hoar V. Axe, 22 Penn. St. 381. Bogue v. Steel, 1 Phila. 90. This is s. p. Barr v. Greenawalt, 62 Ibid, now regulated by act 8 April 1873, 172. And see Keichline v. Keichline, P. L. 65, Purd. 1813, which is merely 54 Ibid. 75. declaratory of the existing law. ' Kogers v. Fales, 5 Penn. St. 158. " Baker's Appeal, 21 Penn. St. 76. 572 EXECUTION. enforce it.^ Where some of the members of the partnership plaintiff are also members of the partnership defendant, the execution cannot be levied on the separate property of one member of the defendant firm.^ § 995. Corporation property. Under an execution against a cor- poration (municipal corporations excepted), the sheriff may levy upon any of its personal property, or may take so much current coin, as he may find, sufiBicient to satisfy the debt, interest and costs.' But under an ordinary/, fa., he cannot take such personal property, as cars, rails, &c., as is necessary to carry on its operations, as against a mortgagee of the road and franchises of an insolvent railroad company.* But the act of 1870^ gives a plaintiff, in addition thereto, the right to issue a special fi. fa., commanding the sheriff to seize and sell any personal, mixed or real property, franchises and rights of such corporation, which will convey a good title to the purchaser thereof, subject only to the rights of an existing mortgagee of the same property, at the time of the levy. The franchises of a railroad company may be sold on a fi. fa., issued under this act, without a prior return of nulla bona to a writ under the act of 1836." But the preliminary demand of payment, at the office of the company, during the usual office-hours, required by the lat- ter statute, is not thereby dispensed with ;'' and where a canal company is incorporated by two different states, the franchises of that part of it, which are situate in this state, cannot be sold under a fi. fa., by virtue of the act of 1870.^ § 996. Fixtures. Where a defendant is the owner both of the land and fixtures, the question is, whether the fixture is to be levied on as real or as personal estate. The general rule is, that the machinery of a manufac- tory, which is necessary to make it a manufactory, will pass by a sheriff's sale of the land.^ So, where the instrument or utensil is an accessory to anything of a personal nature, as to the carrying on of a trade, it is to be considered as a chattel; but where it is a necessary accessory to the enjoyment of the inheritance, it is to be considered a part of the inherit- ance f" and the fragments of a building, blown down by a tempest, are not thereby converted into personalty, but pass to the purchaser of the realty at a sheriff's sale." But gas-fixtures, such as chandeliers and side- 1 Baker's Appeal, 21 Penn. St. 76. Canal Co., 3 Pitts. 341. » Tassey v. Chuvch, 6 W. & S. 465. » Oves v. Oglesby, 7 Watts 106. ' Act 16 June 1836, §72, P. L. 772; Voorhis v. Freeman, 2 W. & S. 116. Purd. 289. Pyle v. Pennook, Ibid. 390. Christian • Loudenschlager u. Benton, 3 Gr. v. Dripps, 28 Penn. St. 271. 384 ; s. 0. 4 Phila. 382. Covey v. '» Olympic Theatre, 2 Bro. 285. Voir Pittsburgh, Port Wayne and Chicago ter ». Cromwell, 40 N. Y. 287. Voor- Railroad Co., 3 Phila. 173. ' hees v. McOinnis, 48 Ibid. 278. * Act 7 April 1870, P. L. 58 ; Purd. " Rogers v. Gilinger, 30 Penn. St. 291. 185. A house erected on the land of ° Williams v. Lawrenceville and another becomes part of the realty. Evergreen Passenger Railway Co., 21 Coheck v. George, 2 Am. L. J. 257. Pitts. L.J. 187. Fisher v. Saffer, 1 E. D. Sm. 611. ' Fox V. Hempfield Railroad Co., 18 But see Meigs's Appeal, 62 Penn. St. Pitts. L. J. 148. 28. Thropp's Appeal, 60 Ibid. 395. " Graham v. Pennsylvania and Ohio EXECUTION. 573 brackets', put up and attached to the gas-pipes by the owner of the premises, are mere personal property, not fixtures in the proper sense of the term, and do not pass by a sheriff's sale of the real estate.^ Fixtures, however, by agreement of plaintiff and defendant, where there is no party injured by such agreement, may be sold under an execution as personal property 5^ and where there are prior judgments against the land, an execution-creditor who, with the assent of the owner,- has levied on and sold the machinery as personalty, is entitled to the proceeds of the sale, although the purchaser at such sale buys at his own risk, and will get no title, if the machinery be not personalty f and although the machinery of a cotton-mill is part of the realty, yet, by the agreement of the owner and lien-creditors, it may be detached, and converted into personalty ; and if this have been done, it will not pass under a sheriff's sale of the freehold/ So, where the sheriff sold the machinery in a mill, under afi.fa., with the verbal consent of the owner of the land, and the purchaser paid the price and took possession, his title is good against a subsequent vendee of the land, before actual severance.^ § 997. Where, however, after the entry of a judgment against the owner of land, he sold a fixture, and then sold the land to another per- son, with notice of the previous sale of the fixture, and the fixture was never actually delivered, but was, in a short time, re-annexed to the free- hold, and continued to be so used, and subsequently, the vendee of the land became the purchaser at the sheriff's sale, under the judgment, he thereby became the owner of the fixture ; nor was his title as sheriff's vendee affected by his knowledge of the sale of the fixture, nor by his own previous admissions that it belonged to the purchaser, there being no contract or consideration for such statements, which would preclude him from acquiring such title as a stranger might have acquired by a purchase at sheriff's sale.^ It had been previously held, that a sale of a fixture, by the owner of land bound by a judgment, accompanied by actual severance, passed the property, divested of the lien of the judg- ment f and where there was no actual severance of the fixture, until after the sheriff's .sale of the land on the prior judgment, the assent of the purchaser of the land, who was plaintiff in the judgment, to a sub- sequent severance, if made with a full knowledge of his legal rights as sheriff's vendee, would bind him.* On the other hand, the sale, under execution, of machinery in an unfinished grist-mill, as the personal pro- perty of the owner of the mill, will not prevent the maker of the ma- chinery from showing that the title, and right to remove it, were in ' Vaughen v. Haldeman, 33 Penn. ' Mitchell v. Freedley, 10 Penn. St. St. 522. ' Shaw v. Lenke, 1 Daly 487. 198. McKeage v. Hanover Fire Insurance * Heaton v. Findlay, 12 Penn. St. Co., 16 Hun 239. 304. 2 Piper V. Martin, 8 Penn. St. 206. ' Ross's Appeal, 9 Penn. St. 494 ; White's Appeal, 10 Ibid. 252. Bell, J. ^ Hutchman's Appeal, 27 Penn. St. * Harlan v. Harlan, 20 Penn. St. 209. • 303. * Harlan v. Harlan, 20 Penn. St. 303. 574 EXECUTION. himself, and not in the owner of the mill.' A mortgage of a machine- shop includes all its fixtures as such, and the mortgagor cannot remove them to the injury of the mortgagee; and as a purchaser of a fixture from mortgaged premises is afiected with a knowledge of the existing lien, the sale is a fraud upon the mortgagee, and he may levy on the fixture in the hands of the vendee f and when the incumbrances are greater than the value of the property, the severance of the engine and machinery by the owner, is a fraud upon the prior judgment-creditors, such as a court of equity will restrain by injunction.^ § 998. Where the defendant's lessee erected the fixtures, though there appears to have been no decision in this state directly in point, it is evi- dent, that a question between the tenant and judgment-creditors of the landlord, or purchaser at sheriff's sale under a judgment against the land- lord, would turn ilpon the point whether the character of the fixtures be such that, as between landlord and tenant, the latter would have the right to remove them.* Thus, a boiler and steam-engine, put up by a tenant, for trade purposes are movable fixtures.^ Where a tenant puts in fixtures or conveniences for his own comfort, there is no presumption that they were intended to be left as permanent improvements.* But a trade fixture, put in by a tenant, may become irremovable, if such appear to have been the intention of the parties -J thus, a steam-boiler was held not to be removable by a tenant, under a lease which pro- vided that improvements should not be removed.* § 999. Where the defendant is lessee, fixtures erected by him, during his term, and removable by him, at its expiration, are personalty, and subject to levy and sale in execution by his creditors.' Such is a steam- engine set up and used by the lessee for more advantageously carrying on the manufacture of salt;'" and an engine-house, partly of stone and partly of wood, with stone foundations for a steam-engine, erected by tenant for years, for the use of a coal-mine, he having, by the terms of his lease, the privilege of removing all fixtures, at the expiration of his term ;" and buildings and machinery for the manufacture of shovels." The tenant, however, must exercise the right of removal, before the 1 Shell V. Haywood, 16 Penn. St. White's Appeal, 10 Ibid. 252. And 523. the execution-creditor will be entitled ^ Hoskin v. Woodward, 45 Penn. St. to the proceeds, in preference to a me- 42. chanios' lien claimant. Ibid. ' Witmer's Appeal, 45 Penn. St. '» Lemar r. Miles, 4 Watts 330. Hey 455. V. Bruner, 61 Penn. St. 87. It does * See Elwes v. Mawe, 1 Sm. Lead, not alter the case, that by the terms of Cas. 215, Am. Notes. the lease, the fixture, in a certain event, * Hey V. Bruner, 61 Penn. St. 87. which did not actually occur, was to Heffner v. Lewis, 73 Ibid. 302. become the property of the landlord. ' Seeger v. Pettit, 77 Penn. St. 437. Lemar v. jNIiles, ut supra. And see ' Jermyn v. Dickson, 3 Luz. L. Reg. Heffner v. Lewis, 73 Penn. St. 302. 100. " White's Appeal, 10 Penn. St. * Agnew ». Whitney, 10 Phila. 252. 77. "'^ Church v. Grifath, 9 Penn. St. ' Church V. Griffith, 9 Penn. St. 118. 118. EXECUTION. 575 expiration of his term,' or a forfeiture of his lease.^ And if a tenant, who has erected a removable building, surrender the lease, in considera- tion of a release of the rent due, the landlord's title will prevail over an execution-creditor, who had previously levied upon the building, of which the lessee had no notice.' § 1000. Crvoiving crops. Grain growing is personalty, and may be levied on and sold as such, and the proceeds will go to the execution- creditor, not to a prior judgment-creditor ;■* nor will the property in grow- ing grain pass by a sheriff''s sale of the land.^ And under a levari facias on a mortgage (the land being liable for the debt), the sheriff cannot levy on and sell growing grain.° Where a husband, in fraud of his creditors, conveys his life-estate in land held in right of his wife, the creditors may levy on the growing crops as his property.' Where growing crops are seized and sold as chattels, under a writ of fieri facias, the purchaser acquires the right of leaving the crop upon the soil, until its maturity, and the privilege of entering to cut and carry away the same.* § 1001. Chattels real, A lease for years may be sold on a fieri facias, without inquisition and condemnation, that is, as personal, and not real property f but not a lease pur autre vie ;'" it is a freehold of inheritance. A_nd where tenant for years assigns his lease, to take effect at a future day, before judgment entered against him, though the assignment in futuro passes the property, yet his remaining interest, prior to the day when the assignment should take effect, is the subject of levy and sale ; and so is his interest in the valuation of the buildings at the expiration of the term.'' And a lessee's interest in either personal or real estate may be taken in execution.'^ § 1002. Real property. There are two cardinal points of difference between execution of land under our statutes, and execution of it under the statute of Westminster II. In England, for execution purposes, a judgment binds the lands as a specific thing ; but with us, the debtor's title or estate in it is bound, without regard to whether he was seised or disseised at the time of the rendition ; there, an owner disseised is not the tenant of the freehold, or, in contemplation of law, an owner at all, his estate being turned to a mere right, which cannot be bound as a subject of execution ; here, whether the debtor were seised or disseised, a judgment binds every immediate interest vested in him which amounts to an estate, ' White V. Arndt, 1 Whart. 91. ' Myers v. "White, 1 Rawle 353. Overton v. Williston, 31 Penn. St. 155. ' Stehman v. Huber, 21 Penn. St. ' Davis V. Moss, 38 Penn. St. 346. 260. ' ThroDD's Appeal, 70 Penn. St. ^ Bloom v. Welsh, 3 Dutch. 177. 395. '^^ 9 Dalzell v. Lynch, 4 W. & S. 256. *'stambaugh w. Yeates, 2Rawlel61. Williams v. Downing, 18 Penn. St. Whipple V. Foot, 2 Johns. 418. West- 60. Sterling v. Commonwealth, 2 brook V. Eager, 1 Harrison 81. Gr. 162. Laflin v. Relyea, 7 Paige 368. * Myers v. White, 1 Rawle 353. But '° Commonwealth v. Allen, 30 Penn. growino- grass cannot be taken in exe- St. 49. cution as a chattel, even with the con- " Williams v. Downing, 18 Penn. St. sent of the debtor. Bank of Lansing- 60. burgh V. Crary, 1 Barb. 542. " Lmdsay v. Fuller, 10 Watts 147. 576 EXECUTION. perfect or inchoate ; again, land is taken in execution, under the English statute, and delivered specifically to the creditor, to make satisfaction by the profits of it, without regard to the debtor's title ; under our statutes, the sherifi" sells, not the land as the incontestable property of the debtor, but his estate in it, or title to it, as a chattel, and at the risk of the purchaser, who takes his chance of recovering on it against whom- soever may be in possession under an adverse title.^ § 1003. Under our statutes, all possible titles, contingent or otherwise, in lands, where there is a real interest, whether legal or equitable, may be taken in execution -f such as, a vested remainder in tail,^ or a rent- charge,'' or any other legal or equitable interest in lands^ — as, an execu- tory devise,^ or the interest of a vendee under articles, who has paid part of the purchase-money, and taken possession of the land, but has not received a deed ;' but after a sale of unseated lands for taxes, and the expiration of the time allowed to redeem, the former owner has no inter- est which can be taken in execution f nor doe^ it matter, that the land is in the possession of a stranger, even holding under an adverse title,' or in the hands of defendant's voluntary assignee for the benefit of credit- ors ;'" and though the assignment of land for the benefit of creditors passes the legal title, which is not defeated by the neglect or refusal of the assignees to act, but vests in those appointed by the court to execute the trust, yet a trust results to the debtor by operation of law, which entitles him to the possession of the property remaining unconverted, and is such an interest as may be bound by a judgment against him, and may be the subject of levy and sale.^' The lands, however, must be situate within the county in which the proceedings are had, on which the process was issued.^^ § 1004. The property of a public corporation, necessary to the exist- ence and maintenance of the object for which it was created, is not the subject of levy and sale ; such as a turnpike-road,'^ and a toll-house, belonging to a canal company, though not on the ground appropriated as the site of the canal ;" and a canal company, by entering upon land ' Mitchell «. Hamilton, 8 Penn. St. ' Auwerter v. Mathiot, 9 S. & R. 397. 488 ; Gibson, 0. J. Russell's Appeal, 15 Penn. St. .319. •^ Humphreys x>. Humphreys, 2 Dall. ^ Church v. Riddle, 6 W. & S. 511. 223 ; s. c. 1 Yeates 427. Thomas v. ' Jarrett v. Tomlinson, 3 W. & S. Simpson, 3 Penn. St. 60. Drake v. 114. Brown, 68 Ibid. 223. A husband's '° Neel v. Bank of Lewistown, 11 interest in his wife's real estate, as ten- Penn. St. 18. Thomas v. Lowber, 14 ant by the curtesy initiate, cannot be Ibid. 438. In such case, the title will taken in execution, during the lifetime be decided in a subsequent suit between of the wife. Act 1 April 1863, P. L. the sheriff's vendee and the assignee. 212; Purd. 1009. Ibid. ^ Humphreys v. Humphreys, ut su- " Webb v. Dean, 21 Penn. St. 29. pra. " Kinter v. Jenks, 43 Penn. St. 445. * Hurst V. Lithgrow, 2 Yeates 24. " Ammant v. New Alexandria and ^ Shaupe V. Shaupe, 12 S. & R. 12. Pittsburgh Turnpike-road, 13 S. & R. Streaper v. Fisher, 1 Rawle 162. 210. Rickert v. Madeira, Ibid. 329. " Susquehanna Canal Co. v. Bonham, « De Haas v. Bunn, 2 Penn. St. 337. 9 W. & S. 27. See wfra, ? 1459. EXECUTION. 577 and digging a canal, whicli is never used, and paying damages therefor to the owner, acquires no right to the soil, but merely an easement, which can be used by the company alone, and is not subject to levy and sale on execution.^ But town-lots, held by a railroad company, are not included in a mortgage of the road, " with its corporate privileges and franchises," unless directly appurtenant to the railroad, and indis- pensably necessary to the enjoyment of its franchises, and consequently, may be levied on and sold in execution.^ The rule does not apply to religious corporations, and a church, with the lot on which it is built, is private property, and subject, in the same manner as other private property, to levy and sale f but not, perhaps, the burial-ground attached to the church.* The lands and tenements of private corporations are liable to execution ;' but the real estate of a municipal corporation can- not be taken in execution.^ § 1005. The interest of a mortgagee in lands is not liable to execution, before foreclosure of the equity of redemption f nor the interest of an Leir-apparent f and the creditors of one possessing a general power of appointment under the statute of uses, cannot take the property in exe- cution, before the grantee has appointed it to his own use f so, an oral bargain for the purchase of real estate does not vest in the vendee such an interest as may be taken in execution, unless the contract be partly executed ; and payment of purchase-money is not a part execution of such bargain j^" but delivery of possession, in pursuance of a parol contract, amounts to a part performance ;^^ so also, the interest of one of several purchasers of land, who have given their joint bonds, repiesenting each one's share of the purchase-money, to one of their number, in whom the legal title was vested as their trustee, is not the subject of levy and sale, where he has paid no portion of his bond, and no equity arises out of such transaction, tangible for a judgment-creditor to seize and sell ;'^ and where a partnership is established to deal in lands, the estate of a single partner, not being a tenancy in common in the lands themselves, but only a resulting interest in the proceeds, is not subject to levy and sale under a judgment for his separate debt.''' So, land bought for partner- ship purposes, and paid for out of partnership funds, is partnership pro- perty, though conveyed to the partners, to hold as tenants in common." 1 Spear v. Allison, 20 Penn. St. 200. ' Shay v. Sessaman, 10 Penn. St. ' Shamokin Valley Railroad Co. v. 433 ; Gibson, C. J. Otherwise, if an Livermore, 47 Penn. St. 465. estate be given, with a general unre- ' Presbyterian Congregation v. Colt, striated power of appointment. Re- 2 Gr 75. formed Presbyterian Church v. Dis- * ibid.': Lowrie, J. brow,. 52 Ibid. 219. 5 Act of 1836 9 72, P. L. 775 ; Purd. '" Miller v. Specht, 1 1 Penn. St. 449. '" ' " Reed v. Reed, 12 Penn. St. 117. 289. -■ ■ -- 6 Wilson V. Commissioners of Hunt- Pugh v. Good, 3 W. & S. 56. ingdon 7 W & S. 200. Schaffer v. " Deitzler v. Michler, 37 Penn. St. Cadwailader, 36Penn. St. 126. 82 ' Rickert v. Madeira, 1 Rawle 329. " Kramer v. Arthurs, 7 Penn. St. Asav V Hoover, 5 Penn. St. 35. 165. 8 Humphreys v. Humphreys, 1 " Abbott's Appeal, 50 Penn. St. 234. Yeates 427. Black v. Seipt, 34 Leg. Int. 66. VOL. I.— 37 578 EXECUTION. § 1006. By a doctrine applied with great liberality in this state, a tes- tator or grantor may so settle real estate as to secure it to the object of his bounty free from execution. In the first case in which this question arose, a testator directed his executors to purchase a tract of land, to be conveyed to them in trust for his son, who was to have the rents, issues and profits thereof; but the same not to be liable for any debts con- tracted, or which might be contracted, by him ; and at his death, the land to vest in the heirs of his body in fee ; and if he should die without heirs of his body, then the land to vest in the right heirs of the testator ; and the executors purchased land, which was settled according to the trusts of the will : it was held, that the son had not such an interest in the land as could be taken in execution, and sold for his debts.^ And so, in a subsequent case, a testator devised certain lots of ground to his son in fee, and by the last clause of the will, gave the same to trustees in fee, in trust, during the son's natural life, to pay the rents arising therefrom to the son, or his appointees, and to transfer the same, at the son's death, to his appointees by will, or, in default of such appointment, to his heirs under the intestate act, with power to sell and re-invest the proceeds, or to convey to the son, provided, he should be relieved from embarrass- ment : it was held, that the son had no estate in the land liable to exe- cution under &fi.fa? § 1007. A devise, to testator's son, of a lot of ground, at a valuation to be made after the death of the widow, with a devise of the residue, including this valuation, to all the children (the son being one), vests an interest in the son, which may be levied on and sold.^ So, a devise to one of $1000 more than one-fifth of testatrix's whole estate, to be paid out of the remaining four-fifths, together with a devise of such four- fifths to other heirs, passes such an estate to the first-named devisee, as can be levied on and sold, although the testatrix directed that the land should not be sold without the consent of all the heirs.* But land devised to executors to be sold, and the proceeds to be divided amongst the legatees, is not the subject of a lien or execution against the legatees ; but 'they may elect to take the land instead of its proceeds, and, after such election, it becomes the subject of lien, and may be sold in execu- tion f but, if there be an election, a judgment-creditor of a devisee can- not make it.'' And a devise to grandchildren, "provided" that their father " have the privilege of living on the place with his children dur- ing his life," gives but a license to the father, not liable to judgment 1 Fisher B.Taylor, 2 Rawle 33. Hold- ' Vaux «. Parke, 7 Penn. St. 19. ship V. Patterson, 7 Watts 547. Ash- And see Norria v. Johnston, 5 Ibid, hurst V. Given, 5 W. & S. 323. Eyrick 287. V. Hetriok, 13 Penn. St. 488. Schryoek ' Hart v. Homiller, 20 Penn. St. V. Wagsouer, 28 Ibid. 430. Brown c 248. Williamson, 36 Ibid. 338. Rees * Lentz v. Lamplugh, 12 Penn. St ». Livingston, 41 Ibid. 113. Still v. 344. Spear, 4f) Ibid. 168. Rife v. Guyer, ^ gjugj. „ Maokey, 4 W. & S. 196. 59 Ibid. 593. Keyser v. Mitchell, 67 « Gally's Estate, 6 Phila. 75 : s. c. Ibid. 473. Ashhurst's Appeal, 77 Ibid. 51 Penn. St. 509. 464. EXECUTION. 579 and execution.* Where a testator directed that the residue of his estate, except a house devised to his widow till' his son should become of age, should descend as under the intestate laws, such interest of the widow, whether under the intestate laws or as devisee, is the subject of levy and judicial sale.^ In Pennsylvania, the widow's right of dower is something more than a mere right of action ; it is a title inchoate, or ini- tiate at least, an interest repeatedly ruled to be subject to execution.' A conveyance of land in trust for the grantor and wife during life, remain- der to their children, cannot be avoided by a subsequent creditor, with record-notice of the trust-deed, and the latter cannot levy on and sell the land, on the ground that it was intended to delay, hinder or defraud creditors.^ § 1008. Fraudulent conveyances by defendant, A mere expecta- tion of future indebtedness, or an intent to contract debts, not coupled with a purpose to convey the property, in order to keep it from the reach of creditors, is not within the statute of 13 Eliz., and will not avoid the con- veyance as to subsequent creditors ;' to have such effect, a voluntary deed must appear to have been made in contemplation of future indebtedness.^ The rule as to antecedent creditors is more stringent, and a voluntary conveyance made by one who is at the time indebted, with intent to delay, hinder or defraud creditors, is void as to them, and, in general, the intent will be presumed from the circumstance that the grantor is indebted.'^ So, if the consideration be greatly inadequate to the value of the land, it is evidence of fraud as to antecedent creditors ;^ but, even though the consideration be adequate, yet the existence of an intention on the part of the grantor to " delay, hinder or defraud" creditors, will render the conveyance void.' The mere existence, however, of indebtedness, at the time of the conveyance, will not avoid a voluntary deed, unless the debt bear such proportion to the property conveyed as may render its payment doubtful.*" A conveyance by a father to his sons, in consid- eration of their agreement to pay his debts, amounting to the full value of the property, is not voluntary, but for a valuable consideration." The rule as to personal property, that retention of possession by the vendor ' Calhoun v. Jester, 1 1 Penn. St. 474. Ibid. 478. Bradway's Estate, 1 Ash. 212. '' Thomas v. Simpson, 3 Penn. St. 60. ' Hamet v. Dundass, 4 Penn. St. 178. * Ibid. Bachman v. Chrisman, 23 Gans v. Renshaw, 2 Ibid. 34. Meyer Penn. St. 162. Schall's Appeal, 40 Ibid. v. Schick, 3 Ibid. 242. 170. Gourley v. Kinley, 66 Ibid. 270. ' Gans v. Renshaw, 2 Penn. St. 34. * Snyder v. Christ, 39 Penn. St. 499. Clemens v. Davis, 7 Ibid. 264. Ash- 5 Ibid. Preston v. Jones, 50 Penn. mead v. Hean, 13 Ibid. 584. Zerbe v. St. 54. Monroe v. Smith, 79 Ibid. 459. Miller, 16 Ibid. 488. « Waterson v. Wilson, 1 Gr. 74. See '" Mateer v. Hissim, 3 P. & W. 160. Carl V. Smith, 8 Phila. 569. Hart v. Hart, 5 Watts 106. Chambers ' Gilmore v. North American Land v. Spencer, Ibid. 404. Posten u. Posten, Co. Pet. C. C. 460. Rundle v. Mur- 4 Whart. 27. Miller v. Pearce, 6 W. & gatroyd, 4 Ball. 304. Thomson v. S. 97. Wilson v. Howser, 12 Penn. St. Dougherty, 12 S. & R. 448. Johnston 109. V. Harvy, 2 P. & W. 92. Geiger v. " Pattison v. Stewart, 6 W. & S. 72. Welsh, 1 Rawle 349. Hamet v. Dun- Shontz v. Brown, 27 Penn. St. 123. das8, 4 Penn. St. 178. Haekw. Stewart, Stafford v. Stafford, Ibid. 144. Preston 8 Ibid. 213. Kepner v. Burkhart, 5 v. Jones, 50 Ibid. 66. 580 £XKOUTION. is fraud in law, does not apply to real estate.' A conveyance fraudulent as to creditors is valid as between the parties, their esecutors and admin- istrators,^ and against a subsequent purchaser who had notice of it ;' but a bond fide purchaser from the fraudulent grantee, for a valuable consideration, is protected.* The proper and most effectual way in which a creditor can defeat and frustrate covinous transfers of property, is to levy on and sell it, and then contest the right with the person claiming title f and where a husband, in fraud of his creditors, con- veys his life-estate in his wife's land, the creditors may levy on the growing crops as his property.^ Judgment-creditors of a trustee are not in the position of purchasers without notice, and cannot hold against the cestui que trust ; the insolvency of the trustee, at the creation of the trust, does not disqualify him ; nor is that fact any evidence that the trust was but a cover to defraud his creditors.^ § 1009. Estates of married women. Under the recent statutes, a creditor of a husband has no right to levy on the wife's real estate, and may be restrained by injunction f but in order to warrant the interfer- ence of a court of equity, a clear title in the wife must be made out.' Where the wife claims against the sheriff's vendee of land which has been sold under an" execution against her husband, if the property has been acquired since the marriage, she must establish, by clear and full proof, that she paid for it with her own separate funds — it is not enough, that she had the means of paying.'" And the mere possession of money by her is no evidence of her title to it, for the purposes of the statute ; it ordinarily implies that she is holding it for her husband ;'' but the fact that he has joined with her in a mortgage to secure the purchase-money, will not give him any legal or equitable estate in the land;'^ and no judgment obtained against the husband, before or during the marriage, will bind her real estate, or his curtesy therein.'^ ' AUentown Bank v. Beck, 49 Penn. creditor of the husband will be en- St. 394. joined from selling land to which the '' Hartley ». MoAnulty, 4 Teates 95. wife claims title, under a judgment Church V. Church, Ibid. 280. Reichart given by a former owner — the wife M. Oastator, 5 Binn. 109. Sherk v. En- being ready and willing to pay the dress, 3 W. & S. 255. Worrall's Ac- mortgage-debt, on receiving an assign- counts, 5 Ibid. 113. Dannels v. Fitoh, ment. Lyon's Appeal, 61 Penn. St. 15. 8 Penn. St. 495. Murphy v. Hubert, » Winch's Appeal, 61 Penn. St. 424. 16 Ibid. 50. Allen v. Gordon, 3 Brewst. 543. Dyer ' Foster v. Walton, 5 Watta 378. v. People's Bank, 9 Phila. 159. Shus- Dougherty v. Jack, Ibid. 456, ter v. Bennett, Ibid. 208. Simson i). * Thompson u. McKean, 1 Ash. 129. Bates, 10 Ibid. 66. Boyle v. Eaiu- Hood V. Fahnestook, 8 Watts 489. sey, 1 Leg. Gaz. R. 45. 5 Neel V. Bank, 11 Ponn. St. 18; '" Winter a. Walter, 37 Penn. St. 1 55. Coulter, J. Stewart v. Coder, Ibid. Gault ». Saffin, 44 Ibid. 307. But except 94 ; Rogers, J. as against creditors, she is only held to * Stehman ». Huber, 21 Penn. St. the ordinary degree of proof. Sawtelle's 260. Appeal, 84 Ibid. 306. See supra, J 992. ' Schryock v. Waggoner, 28 Penn. " Parvinc. Capewell,45Penn. St. 89. St. 430. « Conrad v. Shomo,44 Penn. St. 193. 8 Hunter's Appeal, 40 Penn. St. 194. "Act 1 April 1863, P. L. 212; Allen V. Benners, 10 Phila. 10. A Purd. 1009. EXECUTION. 681 § 1010. A gift from husband to wife, without the intervention of a trustee, is valid, and will be sustained, if it be no more than a reasonable provision for her, proportioned to his circumstances at the time, and not hurtful to his creditors ; but a conveyance that denudes the husband of all, or the greater part of his property, is much more than a reasonable provision for her ; therefore, the purchase-money of land, which the wife claimed to have been a gift from her husband, being attached in the hands of the purchaser, was awarded to creditors of the husband.^ So, a conveyance to secure the real estate to her, free from debts which he might contract in a new business in which he was about to engage, is of no effect against creditors who became such in the course of such business f and a mere gift of money by the husband to the wife, is not a settlement of it as her separate estate.^ A conveyance of laud to a trustee for the wife is not to be overthrown upon presumptions merely; where the relation of the wife as creditor of the husband is clearly made out, her claim will be sustained ;^ and where she has pur- chased real estate, and given a mortgage for the purchase-money, in which he has joined, the rents are not liable to execution at the suit of his creditors.^ But she must have paid for the land ; a purchase on credit will not protect it ; hence, where the wife purchased, from the sheriff's vendee, her husband's land, which had been sold on execution for a ?um insufficient to pay the judgments, and gave a mortgage for the whole pur- chase-money, on which interest only was paid, the land remained liable to execution at the suit of the husband's creditors.^ The declaration of the husband, that certain property belonged to his wife, is not admissible as evidence in favor of the wife ;' but the declarations of husband and wife, not relating to the original ownership of the money by her, but only to its transmission by her to her husband as a loan, evidenced by a note given by him to her trustee, occurring before any claims of cred- itors existed, are competent evidence.* § 1011. After-acquired lands. Though a judgment is not a lien upon lands of the defendant subsequently acquired, yet the plaintiff may issue an execution and levy upon such lands in the possession of such defendant.' And in Philadelphia, after a levy on after-acquired land, ' the plaintiff may have the execution certified, by the officer making such levy, to the office of the court from which the execution issued ; where- upon, it is to be docketed in the judgment-index, and thenceforth binds the land levied on for five years.^" 1 Coates V. Gerlach, 44 Penn. St. ,43. ' Bajinger v. Stiver, 49 Penn. St. Townsend v. Maynard, 45 Ibid. 198. 129 ; and see the cases commented on See Goff v. Nuttall, 44 Ibid. 78. in the opinion of the court. ' Black V. Nease, 37 Penn. St. 433. ' Parvin v. Capewell, 45 Penn. St. Mullen V. "Wilson, 44 Ibid. 413, and 89. cases there cited. * Townsend v. Maynard, 45 Penn. St. ^ Parvin v. CapeweU, 45 Penn. St. 198. 89. » Packer's Appeal, 6 Penn. St. 277. * TriBner v. Abrahams, 47 Penn. St. Lea v. Hopkins, 7 Ibid. 492. 221 " Act 20 April 1853, § 9, P. L. 611 ; 5 Goff V. Isuttall, 44 Penn. St. 78. Purd. 647. 582 EXECUTION. § 1012. Sestricted judgments, A provision in a warrant of attor- ney, that the judgment to be entered thereon shall be a lien only on cer- tain designated lands, does not affect it as a personal security ; other property may be taken in execution ;' and if revived generally, by confession, after the expiration of the five years, the lien of the revived judgment is without restriction.^ But if the warrant of attorney con- tain a stipulation that no execution shall be levied, except upon the premises described in an accompanying mortgage, a levy made on other property, in violation of the agreement, will be set aside, on motion.' Where, however, a judgment is entered up, in a particular county, in violation of an agreement between the parties, this is an irregularity which can only be taken advantage of by the defendant* § 1013. Lands of decedents. Lands of deceased persons are also 3onsidered assets for the payment of debts ; but where the plaintiff, in in action against the personal representatives, intends to charge the same, the widow and heirs or devisees, and the guardians of such as are minors, must be made parties thereto ; or must be subsequently warned by scire facias; in default of which, the lands descended or devised will QOt be charged with the payment of the judgment recovered. What is the proper practice for the purpose of thus charging land with a dece- dent's debts, will be considered in the next volume. § 1014. Lands aliened after judgment. Such lands may be taken in execution, whilst the lien of the judgment continues ; but if the lien expire between the levy and the sale, the purchaser takes no title; opening and closing the judgment will not prolong the lien.* If pro- cess be issued at so late a day, that execution cannot be fully executed, during the lifetime of the lien, it ought to be accompanied by a scire fadas to continue the lien of the judgment.^ Where a tract of land, bound by a judgment, has been conveyed in parcels, at different times, the plaintiff in the judgment will be restrained from levying, at his pleasure, on any one of such parcels, and compelled to proceed in a certain order against them. The rule is, that the parcels are liable in the inverse order of the con- veyances, that is, the creditor must proceed first against the part last sold, and so on ; but the equity of the earlier grantee is solely for his own protection, and arises from his payment of the purchase-money; and if he have not paid all the purchase-money, he has no such equity, but must contribute, to the extent of his unpaid purchase-money, to a subse- quent grantee, whose land has been sold to pay the common lien.' And where, after aliening one of two tracts, bound by a judgment, another judgment is entered against the vendor, the vendee has an equity so far superior to the subsequent judgment-creditor, that the latter cannot compel the first judgment-creditor to come first upon the lot thus conveyed, so 1 Stanton v. White, 32 Penn. St. .358. » Gloniger v. Hazard, 4 Phila. 354. Garsed v. Hutchinson, 2 W. N. 0. 805. « Davis v. Ehrman, 20 Penn. St. 259 ; '' Dean's Appeal, 35 Penn. St. 405. Woodward, J. ' Snevely v. Tarr, 1 Phila. 220. ' Beddo-w v. Dewitt, 43 Penn. St. • Fullerton's Appeal, 46 Penn. St. 326. 144. EXEMPTION. 583 as to leave the residue of vendor's estate to satisfy the second judgment.' And the court will not willingly listen to a motion to quash a venditioni, on the ground that other property, conveyed by the defendant, after the judgment, and liable to contribute, might have been levied on ; it would seem reasonable, in such case, that the moving party should have notified the plaintiff of the existence of such lands, so that he might have included them in his levy.^ And the same general rule applies to lands bound by a mortgage conveyed in parcels.' The plaintiff may proceed against land bound by the judgment, in the hands of an alienee of defendant, without resorting to a seire facias against the terre-tenants.* § 1015. Life-estates. Under the act of 1840,^ the process of execution against an estate for life was by writ of sequestration ; but it has been provided by a subsequent statute,^ that estates for life, yielding rents, issues or profits, may be sold under execution, in the same manner as estates of inheritance, unless some lien-creditor shall, before the return-day of the first writ of venditioni exponas whereon a sale shall be advertised, apply for the appointment of a sequestrator. But, under this section, a venditioni exponas for the sale of a life-estate, can only issue by order of the proper court, on ten days' previous notice of the application for such writ, to the tenant for life, as directed by the proviso to the succeeding section of the statute ; a sale without such order and notice is void, and confers no title.' Even under the act of 1840, where there was an adverse possession, in hostility to the life-estate, a sequestration was unne- cessary; it might have been sold on execution.* Upon a principle analogous to that mentioned in the preceding section of this work, a life-estate is to be first called upon and exhausted to pay taxes and the interest of incumbrances, before the estate of the remainderman or reversioner can be resorted to.' III. Exemption. § 1016. Statutes have been passed, from time to time, with the design of securing indigent debtors against oppression on the part of their creditors. The modes in which this object has been sought to be accomplished are various ; but we have here only to do with one of them — the exemption of certain descriptions of property from levy and sale on execution. The act of 1849,'" which repeals all prior exemption ' Bruner's Appeal, 7 W. & S. « Act 24 January 1849, ? 3, P. L. 269. 677 ; Purd. 652. "■ Wilson V. Hurst, Pet. C. C. 140. ' Kintz v. Long. 30 Penn. St. 501. 3 Nailer v. Stanley, 10 S. & R. 450. Snyder v. Christ, 39 Ibid. 499. The Cowden's Estate, 1 Penn. St. 267. same proceedings are necessary in the Mevey's Appeal, 4 Ibid. 80. Warren case of an estate pur autre vie. Com- V. Sennett, Ibid. 114. Fluck v. Re- monwealth v. Allen, 30 Ibid. 49. plogle, 13 Ibid. 405. Carpenter v. * Gordon ». Inghram, 32 Penn. St. koons, 20 Ibid. 222. Lloyd v. Gal- 214; s. c. 1 Gr. 152. braith, 32 Ibid. 103. Becker v. Kehr, ' McDonald ». Heylin, 4 Phila. 73. 49 Ibid. 223. Jewell's Estate, I W. N. C. 404. And * Young V. Taylor, 2 Binn. 228. see Hoff's Appeal, 24 Penn. St. 200. 6 Act 13 October 1840, § 6, P. L. 3 ; '» Act 9 April 1849, P. L. 533 ; Purd. 651. Purd. 636. 584 EXECUTION. laws,' provides, that property to the value of three hundred dollars, exclu- sive of all wearing-apparel of the defendant and his family, and all bibles and school-books in use in the family (which shall remain exempted as heretofore), and no more, owned by or in possession of any debtor, shall be exempt from levy and sale on execution, or, by distress for rent; and by subsequent statutes, all sewing-machines belonging to seamstresses, or used and owned by private families, are in like manner exempted.^ And the exemption has been since extended to all pianos, melodeons and organs, leased or hired by any resident of the commonwealth ;' and by the militia law, the uniform, arms, ammunition and accoutrements of every officer and soldier shall be held free from all suits, distresses, exe- cutions, or sales for debt or payment of taxes.* § 1017. WIio entitled to exemption. An unmarried man is en- titled to the benefit of the act of 1849, though it is generally spoken of as intended for a debtor's family .° The joint owners of a chattel, dis- trained for rent, under a joint demise, cannot claim the benefit of the exemption ; they are not within the provisions of the act f nor can sev- eral partners each claim the benefit of the exemption out of partnership property f where, however, a joint execution is issued against two, and a levy is made on the individual property of one of the defendants, he is entitled to the exemption.^ A fraudulent grantor cannot claim the exemption out of property conveyed in fraud of creditors ; the convey- ance is valid as to him f so, if the defendant falsely deny the owner- ship of the property levied on, he forfeits his right to the benefit of the ' Kenyon v. Gould, 61 Penn. St. 292. the laws." And see U. S. Rev. Stat. * Acts 17 April 1869, P. L. 69, and 4 § 1977. All the authorities relied on March 1870, P. L. 35 ; Purd. 638. by the learned judge, with the excep- ' Act 13 May 1876, P.L. 171 ; Purd. tion of the dictum in McCarthy's Ap- 2011. peal, are prior in date to the 14th * Act 4 May 1864, § 55, P. L. 233 ; amendment. And the supreme court Purd. 1049. of- New York arrived at a different ^ Dieffenderfer v. Fisher, 3 Gr. 30. conclusion in Bunn v. Fonda, 2 Code The court of common pleas of Phila- R. 70. In Commonwealth v. Irving, 1 delphia. No. 4, Thayer, P. J., has de- Susq. L. Chron.69, Judge Jessup ruled cided that a non-resident of the state is that so much of the act of, 24 March notentitled to the benefit of our exemp- 1877 (P. L. 42 ; Purd. 2151), asdiscrim- tion law ; which, the court say, is in- inates against non-resident medical tended for the benefit of a certain class practitioners, having the requisite qual- of our own citizens, and not for foreign ifications, was opposed to the constitu- residents, whose property is generally tion. beyond the reach of the process of our ^ Bonsall v. Comly, 44 Penn. St. courts. Snow v. Dill, 6 W. N. C. 330; 442. citing Yelverton v. Burton, 26 Penn. ' Clegg v. Houston, 1 Phila. 352. St. 354; McCarthy's Appeal, 68 Ibid. « Spade u. Bruner, 72 Penn. St. 57. 219 ; Hawkins v. Pearce, 11 Humph. ' Huey's Appeal, 29 Penn. St. 219. 44 ; and Rice v. Allen, 1 Sneed 50. Dieffenderfer v. Fisher, 3 Gr. 30. Carl Sied qucere? whether this does not v. Smith, 8 Phila. 569. Nor a debtor conflict with the fourteenth amend- who has fraudulently concealed or re- ment to the constitution of the United moved any of his other proper^. Mc- States, which declares that no state Carthy's Appeal, 68 Penn. St. 217. shall ''deny to any person within its And see Shaw's Appeal, 49 Ibid, jurisdiction the equal protection of 177. EXEMPTION. 585 exemption law,' and cannot subsequently maintain an action against the officer for selling, on the ground that the goods were exempt by law.^ And so also, a grantor, who has parted with all his interest in land, can- not claim the exemption, when the property is sold under a prior judg- ment against him ;' and a terre-tenant cannot claim the benefit of the exemption out of the proceeds of land purchased subject to the judg- ment.* § 1018. Nature of the action. The exemption given by the act of 1849, is confined to executions issued upon judgments obtained in actions ex contractu, as distinguished from actions ex delicto ; there is no exemp- tion in an action for a tort^— as, in a suit against a constable, for official misconduct f or an action on a forfeited recognisance in a criminal case ;^ but the plaintiff in an action ex delicto is entitled to the exemption, as against a judgment for costs.* The garnishee in an attachment is enti- tled to the benefit of the exemption, on an execution against him f and so is the original defendant, with respect to the fund attached, if he make his claim within a reasonable time.'" And the statute extends to an action ex contractu, commenced by attachment of the defendant's goods ;" but not to a case of foreign attachment ; this is not an execu- tion.'^ The defendant in a scire facias on a mechanic's lien, is not enti- tled to the benefit of the act ;'^ nor the defendant in a levari facias upon a mortgage ;'"* nor is a mortgagor entitled to the exemption, as against an execution issued upon a judgment entered on the accompanying bond, and levied on the mortgaged premises; the mortgage is a continuing waiver by contract;" but he may claim out of the surplus, as against his judgment-creditors.'^ A defendant in proceedings to obtain possession ' Sfcrouse V. Becker, 38 Penn. St. 190. ' Fisher v. Elliott, 33 Leg. Int. 140. Dieffenderfer v. Fisher, 3 Gr. 30. '" Strouse v. Becker, 44 Penn. St. 206 ; 2 Gilleland v. Rhoads, 34 Penn. St. s. c. 38 Ibid. 190. Zimmerman v. Bri- 187. Engle v. HarringtOB, 4 Luz. L. ' ner, 50 Ibid. 535. Bair v. Steinman, Obs. 40. 52 Ibid. 423. Waugh v. Burket, 3 Gr. » Larkin v. MoAnnally, 5 Phila. 17. 319. Ashton v. Glass, 9 Phila. 510. ' Eberhardt's Appeal, 39 Penn. St. Rushworth v. Swope, 1 Leg. Gaz. R. 509. 223. Holmes v. Pettingill, 4 W. N. C. 5 Kenyon v. Gould, 61 Penn. St. 292. 495. Edwards v. Mahon, 5 Phila. 531, " Taylor v. Worrel, 4 Leg. Gaz. 401. « Kirkpatrick v. White, 29 Penn. St. Washburn v. Baldwin, 10 Phila. 472. 176. s.p.Woods'sEstate,7W.N. C. 84. '■' Yelverton w. Burton, 26 Penn. St. ' Commonwealth v. Dougherty, 8 351. McCarthy's Appeal, 68 Ibid. Phila. 366. . 217. « Lane v. Baker, 2 Gr. 424. In the " Laueks's Appeal, 24 Penn. St. 426. subsequent case of Stroheoker v. Buf- Building Association v. O'Connor, 3 fington, 1 Pears. 124, the court of com- Phila. 453. mon pleas of Dauphin county held, '* Morgan v. Noud, 5 Clark 93. that the plaintiff, even in an action ex Craig v. Craig, 1 W. N. C. 613. con^racfe, was not entitled to the benefit '» McAuley's Appeal, 35 Penn. St. of the exemption law, as against a 209. Gangwere's Appeal, 36 Ibid, judgment for costs ; which the learned 466. I'udge says is not founded on contract. '" Hill v. Johnston, 29 Penn. St, 362, Lane v. Baker, though previously de- Shelly's Appeal, 36 Ibid. 373. Bower's cided, had not then been reported. Appeal, 68 Ibid. 126. 586 EXECUTION. for non-payment of rent, is not entitled to the benefit of the statute ;' nor does the statute extend to federal process.^ § 1019. What property tnay be claimed. In addition to the arti- cles specifically enumerated, namely, wearing-apparel, bibles and school- books, sewing-machines, and rented pianos, melodeons and organs, the defendant is entitled to claim, as exempt by law, any other property, real or personal, to the value of three hundred dollars, owned by, or in his possession. The latter clause, in regard to " possession," only applies to distresses for rent in arrear; as against an execution, the debtor must be the owner of the property claimed.' He is allowed by a subsequent statute,'' to claim his exemption out of any bank-notes, money, stocks, judgments, or other indebtedness to him ; he cannot, however, be allowed his exemption out of the proceeds of a sherifi''s sale of his pro- perty, if he has failed to make an election, before the sale, to receive the same in specie f nor, if the sherifi" sell in disregard of the claim.*" A leasehold may be set apart to the defendant, under the exemption law;' and a new stock, purchased by a dealer, with the proceeds of his exempt property, is likewise protected.' The goods set apart to a defendant, under the exemption, are his exclusive property, to be sold or retained at his pleasure ;' and so, where $300 worth of property is set apart to the wife of a debtor, under a domestic attachment, it ceases to be the property of the husband, for purposes of execution, and cannot be levied upon by a creditor, in whose favor he has waived the exemption.^" § 1020. Claim of exemption. The defendant must claim his ex- emption as against each execution-creditor ;" where several writs are in the sheriff's hands, at the same time, one demand is sufficient for all ; but the rule is difierent as to successive writs :'^ thus, where two execu- tions are issued, and the judgment on which the second is based, is the prior lien, an omission to claim an appraisement on the first writ, will bar the defendant of his exemption on the second.^' The defendant must demand an appraisement ; but any words which apprise the officer of his desire for the benefit of the exemption, are sufficient ;^* and if the appa- rent value of the property levied on be less than the amount allowed by law, a general claim is sufficient ; it need not be made more specific, ' "Williams «. Sheridan, 7 Luz. L. ' Ehrisman v. Roberts, 68 Penn. St. Reg. 14. 308. ^ Lloyd V. Yost, 4 Phila. 42. See " Hess v. Beates, 78 Penn. St. 429. Rev. Stat. § 916. ^\ Strouse v. Becker, 38 Penn. St. " Huey's Appeal, 29 Penn. St. 219. 190. Dodson's Appeal, 25 Ibid. 232. * Act 8 April 1859, P. L.425 ; Purd. " Bechtel's Appeal, 2 Gr. 375. 638. " McCreary's Appeal, 74 Penn. St. ^ Hammer v. Freese, 19 Penn. St. 194. If the sale be effected under a 255. Diehl t). Holben, 39 Ibid. 213. writ issued on a judgment containing a Miller's Appeal, 16 Ibid. 300. Wea- waiver of the exemption, the debtor has ver's Appeal, 18 Ibid. 307. no claim upon the proceeds. Shelly's « Marks's Appeal, 34 Penn. St. 36. Appeal. 36 Penn. St. 373. Dodson's ' Vankirk w. Allen, 1 W. N. C. 231. Appeal, 25 Ibid. 232. Line's Appeal, ' Hanley o. O'Donald, 30 Penn. St. 2 Gr. 197. 261. » Diehl V. Holben, 39 Penn. St. 213. EXEMPTION. 587 until au appraisement is actually made.^ During the temporary absence of the debtor, a child of proper age may claim the benefit of the exemp- tion f or his wife, or other person left in charge of the property.^ But a stranger, whose goods are found on the demised premises, or an unre- cognised sub-tenant, cannot claim as against a distress for rent ; they are not the debtors of the lessor.* It seems, that a parol request to the sheriff, when absent from his office, is sufficient.^ § 1021. When the claim must be made. Though there is some conflict of decision upon the subject, the rule to be deduced from all the cases is, that where personal property is levied on, the claim for the benefit of the exemption must be made at a time sufficiently early not to delay the sale, or to require a new advertisement,* unless there be special circumstances, such as, absence from home, or ignorance of the levy, to excuse the delay ;^ if the debtor see his property levied upon and advertised, without claiming the exemption, he elects to waive it.* Where an officer is sued for disregarding a request for an appraisement, if such request were made at the time of the levy, or immediately after- wards, the court may say, as a matter of law, that the debtor's right is not waived ; if not made, until after the sale is ready to begin, it is equally the duty of the judge to decide, upon his own responsibility, that the right is gone ; but where the request is made between the time of the levy and sale, it must be submitted to the jury, to determine as a matter of fact, whether it was so late, that a compliance with it would necessarily have postponed the sale.' Where real estate is levied on, the defendant must claim his exemption, before inquisition;^" but where no inquisition is required by law, or it is waived, a demand for the exemp- tion is in time, before the sheriflT has incurred the expense of advertis- ing." As against an attachment-execution, the defendant must claim his exemption, at the time of appearance, and before the plaintiff has taken any further- step in the cause, to his detriment ;^^ it is too late, to * "VVilson V. McBlroy, 32 Perm. St. 82 ; Black, C. J. 82, 85. " Miller's Appeal, 16 Penn. St. 300. 2 Ibid. See Smith's Forms 380. Weaver's Appeal, 18 Ibid. 307. Brant's ' McCarthy's Appeal, 68 Penn. St. Appeal, 20 Ibid. 141. A person cannot 217. Meitzler's Appeal, 73 Ibid. 368. claim the exemption, after a sheriff's Waugh V. Burket, 3 Gr. 319. sale of his land, under a judgment * Rosenberger v. HalloweU, 35 Penn. against a former owner. Paokler v. St. 369. Bale, 1 Pears. 171. ' Bowman v. Smiley, 31 Penn. St. " Commonwealth v. Boyd, 56 Penn. 225. And see Diehl v. Holben, 39 St. 402. Bowyer's Appeal, 21 Ibid. Ibid. 213. 210. A claim for exemption is toolate, * Yost V. Heffner, 69 Penn. St. 68. after a general waiver of inquisition. And see Hammer v. Freese, 19 Ibid. Ibid. But tf the defendant waive an 255. inquisition on the real estate, and at the ' Diehl 11. Holben, 39 Penn. St. 213. same time, claim his exemption out of See Kee v. Hobensack, 2 Phila. 82. the proceeds ; the acts are not inconsis- 8 Dieffenderfer v. Fisher, 3 Gr. 30. tent. Shaw's Appeal, 49 Penn. St. 177. Rogers v. Waterman, 25 Penn. St. '' Landis v. Lyon, 71 Penn. St. 182. Kensel v. Kern, 4 Phila. 86. 473. Bittenger's Appeal, 76 Ibid. 105. » Cable V. Buckman, 1 Pitts. L. J. Holmes v. Pettingill, 4 W. N. C. 495. 588 EXECUTION. attempt to do so by plea to tlie sdre facias,^ or on the trial.^ If the defendaftt and garnishee plead nulla bona, it is too late, on the trial, to claim that the property attached, is exempt by law ;^ and if a fi. fa. and attachment-execution be issued on the same judgment, and are running at the same time, the defendant can only have his exemption on one writ.* Under the act of 1876, where a leased piano is in the pos- session of the tenant, it is too late to claim the exemption, after a levy ; notice must be given to the lessor, when the instrument is placed upon the demised premises, or, at least, before the right to distrain has accrued.^ § 1022. Appraisement. The act of 1849 provides, that the officer charged with the execution of the writ shall, if requested by the debtor, summon three disinterested and competent persons,* who shall be sworn or affirmed to appraise the property which the debtor may elect to retain ; for which service they shall be entitled to receive fifty cents each, to be charged as part of the costs. The appraisers may be sworn by the officer charged with the execution of the writ.' If the officer find personal property, which is claimed under the exemption law, he must appoint appraisers ; he is not justified in returning " no goods."* The time to make an election, whether the debtor will retain real or personal property, is, after the appraisers have been summoned f and the sheriff must allow the defendant a reasonable time to make his elec- tion.'" The sheriff must decide the question of exemption upon his own responsibility ;'^' it is sufficient, that the defendant point out a part of the goods, as to which he disclaims title, and claim the residue, which are appraised at less than three hundred dollars ; the officer must sell the others, at his peril.'^ If the sheriff wrongfully allow an appraisement, the plaintiff must move to set it aside ; otherwise, the defendant is entitled to his exemption.'^ There is no doubt of the power of the court to set aside an unjust or collusive appraisement ; aiid they may do so, 1 Strouse v. Becker, 44 Penn. St. 206 ; ' Act 8 April 1857, P. L. 170 ; Purd. s. c. 38 Ibid. 190. Bair v. Steinman, 638. 52 Ibid. 423. » O'Malley v. Dempsey, 3 Log. Gaz. '' Zimmerman v. Briner, 50 Penn. 225. St. 535. Rusliworth v. Swope, 1 Leg. ' Bowman v. Smiley, 31 Penn. St. Gaz. K. 223. 225. ' Bancord v. Parker, 65 Penn. St. i" Elliott ». Planigan, 37 Penn. St. 425. 336. On an attachment under the act " Houston v. Smith, 1 Phila. 221. of 1869, it is sufficient, that the defend- Pile v. Grambo, 1 W. N. C. 7. Chest- ant's claim of exemption be set up in nut v. Meaoe, 3 Ibid. 240. Thornton the garnishee's answers to the interro- v. Aubrey Hotel Co., 5 Ibid. 428. gatories. Hilbronner v. Sternberger, 4 " Keller v. Bricker, 64 Penn. St. W. N. C. 186. 379. ' Vogelsong v. Beltzhoover, 59 Penn. '* Seibert's Appeal, 73 Penn. St. 359. St. 57. But if the sheriff wrongfully allow * MoGeary v. Mellor, 6 W. N. C. the defendant's claim of exemption, 244. without notice to the plaintiff, he is ° Persons employed in the sheriff's responsible to the latter, though the office as watchmen and messengers, are writ do not inform him of the nature not competent appraisers. Posey v. of the cause of action. Hare v. Com- Loutey, 5 W. N. C. 291. monwealth, 26 Pitts. L. J. 149. EXEMPTION. 589 before the sheriff has returned an appraisement ; otherwise, the wrong, in a majority of cases, would be irremediable.' It ought to be made publicly ; it is the right of the execution-creditor to be present, to see that it is fairly and properly done.^ § 1023. When the property levied on consists of real estate of greater value than three hundred dollars, and the defendant elects to take his exemption in land, it is made the duty of the appraisers to determine whether, in their opinion, such real estate can be divided, without injury to, or spoiling the whole ; and if they determine that it can be so divided, to set apart so much thereof, by metes and bounds, as shall be of suffi- cient value to answer the defendant's exemption ; and upon a return of the proceedings, the plaintiff may issue his venditioni exponas for a sale of the residue. If, however, the 'appraisers determine against a division, the plaintiff may proceed to sell the whole of the real estate included in the levy ; and the defendant may claim his exemption out of the proceeds.' The defendant cannot claim out of the proceeds of sale, as against a lien for purchase-money ;* nor as against a mortgage f nor as against a mechanics' lien ;" nor as against a sale for arrears of ground- rent.'' § 1024. Mefusal of the exemption. If the officer disregard a claim of exemption, made in due time, the debtor loses his right thereto, and is put to his action against the officer f and either trespass or case lies — they are concurrent remedies.' The officer thereby becomes a trespasser ah initio z'" and no indemnity will save him harmless in thus disregard- ing the act ; a bond or obligation given for such purpose is void." Such action may be brought before a justice of the peace ;'^ and the plaintiff's debt cannot be defalked against the damages sustained by the debtor ;'' but the damages recovered may be attached at the suit of another creditor ; at least, so far as they are exemplary in their character." The officer's disregard of the exemption, however, will not vitiate the title of the purchaser.'^ § 1025. Waiver. There can be no doubt of the right of the debtor to waive the benefit of the exemption law ; but it is much to be regretted, that our courts should ever have given effect to a prospective waiver embodied in the contract. In New York, it is held, that such prospec- tive waiver is void as against public policy ; exemption laws seek to pro- mote the general welfare of society, by taking from the head of a family 1 Sleeper v. Nioholson, 5 Clark 163. 255. Marks's Appeal, 34 Ibid. 86. Fisher ?J. Hughes, 2 Pitts. 272. Norris Nyman's Appeal, 71 Ibid. 447. V Town 1 W. N. C. 51. ^ Van Dresor v. King, 34 Penn. St. ' " Huddy u. Sproule, 4 Phila. 353. 201. Stamer k. Nass, 3 Gr. 240. 'Act of 1849, ^3-4, P. L. 533; " Wilson ». Ellis, 28 Penn. St. 238. Purd 638. " Freeman v. Smith, 30 Penn. St. * Ulrioh's Appeal, 48 Penn. St. 489. 264. * Ganewere's Appeal, 36 Penn. St. " Stamer v. Nass, 3 Or. 240. 466 McAuley's Appeal, 35 Ibid. 209. " Wilson «. MoElroy, 32 Penn. St. 83. « Lauoks's Appeal, 24 Penn. St. 426. " Knabb ;;. Drake, 23 Penn. St. 489. ' Pepper's Estate, 1 Phila. 662. s. p. Hudson v. Plets, 11 Paige 180. *> Hammer v. Freese, 19 Penn. St. "° Hatch v. Bartle, 45 Penn. Si. 166. 590 EXECUTION. the power to deprive it of certain property, by contracting debts whicb will enable the creditors to take such property in execution ; and the parties ought not to be permitted to contravene the policy of the law by their contract.^ Our own courts have recognised this principle, by deciding that a prospective waiver of the benefit of the law exempting wages from attachment, is void f and also that a borrower cannot, by prospective agreement, waive the right to recover back usurious interest f but the validity of a prospective waiver of the benefit of the exemption law, embodied in the contract, appears to be too firmly established, to be afiected other than by legislative power.^ The sheriff is not bound to regard a claim of exemption, which has been waived in the contract between the parties.'' A prospective waiver, however, must be expressed in clear and unequivocal language ; the defendant cannot be prejudiced by an unauthorized indorsement, by a justice, of the words "exemption note," upon his execution ;' but the waiver requires no higher degree of proof, than the execution of the instrument in which it is contained.^ Where a lease stipulates that all property on the demised premises shall be liable to distress for rent, the waiver extends only to the property, and not to the debt ; if notes be given for the rent, the maker is entitled to his exemption in a suit thereon.* The claim for exemption being a personal privilege, may, of course, be withdrawn, without regard to the effect of such withdrawal upon the priorities of other creditors f and one who has consented to a levy upon exempt property, may withdraw such consent, before the day of sale.'" Being a mere personal privi- lege, it is not transferable ; whatever the debtor does not claim for him- self, remains in the fund, to be distributed according to law." § 1026. Effect of waiver. A waiver of the statutory privilege of the exemption of a portion of the debtor's property from levy and sale under execution, when made at the time the debt is created, is based upon the same consideration as that upon which rests the liability to pay, and is, therefore, irrevocable;'^ such waiver may be indorsed upon the exe- cution ;'' and in such case, the sheriff is not bound to regard the defend- ' Kneettle v. Newoomb, 22 N. Y. ' Adams v. Bachert, 83 Penn. St. 249. Crawford «. Lookwood, 9 How. 524. Wireman u. Schmidt, 4 W. N. C. Pr. 547. Harper i>. Leal, 10 Ibid. 276. 360. '' Firmstone v. Mack, 49 Penn. St. ^ Mitchell v. Coates, 47 Penn. St. 387. Cunliffe V. Kinehart, 2 "W. N. C. 262. A waiver of exemption, con- 79. Jones v. Garoway, 6 Luz. L. Reg. tained in a mortgage, as to the premises 17. described, or any other premises what- ' Bosler ». Rheem, 72 Penn. St. 54. ever, will not extend to the defendant's * MoKinney v. Reader, 6 Watts 34. personal property, irf a suit on the Case V. Dunmore, 23 Penn. St. 93. bond. Building Association v. Sohott, Laueks's Appeal, 24 Ibid. 426. Bow- 6 W. N. C. 399. man v. Smiley, 31 Ibid. 225 ; s. c. 3 Gr. ' Kyle's Appeal, 45 Penn. St. 353. 132. Winchester v. Costello, 2 Pars. '" Hutchinson v. Campbell, 25 Penn. 279. St. 273. * Bowman ». Smiley, ut supra. " Bowyer's Appeal, 21 Penn. St. 210. « O'Nail V. Craig, 56 Penn. St. 161. " Bowman v. Smiley, 31 Penn. St. 8. 1'. Brown v. Dougherty, 4 W. N. C. 225. 36. " Colahan v. Cooper, 2 W. N. C. 569. ■ EXEMPTION. 591 ant's claim for an appraisement.' After some conflict of decision, it has been finally settled, that a debtor cannot waive his exemption in favor of a junior lien-creditor, so as to give him a preference in the distribu- tion of the proceeds of sale ;^ and the same rule applies to execution- creditors ; in such case, the first execution levied will take the proceeds ;' and a waiver by a tenant in favor of his execution-creditor, will give the latter no preference over the claim of the landlord, in whose favor there is no such waiver.* If, however, the debtor's land be sold on a judgment, which contains no waiver, he may claim his exemption as against other judgment-creditors, holding such waiver, but who have not issued execution.^ If the sherifi^ sell on three writs of execution, on the second of which there is a waiver of the exemption law, the first execu- tion-creditor will be entitled to the fund; but the debtor may claim his exemption as against the third writf and if a third incumbrance be superior to the first, but subordinate to the second, the first incumbrancer is entitled to the proceeds of a judicial sale of the property.^ Where, however, one judgment-creditor has a waiver in his judgment, and another judgment-creditor has no such waiver, the latter can compel the former to resort to the exempted property for satisfaction f and where a debtor makes an assignment for the benefit of creditors, reserving so much property as is exempt from levy, a creditor holding a waiver must resort to the reserved property ; he cannot claim a preference out of the fund in the hands of the assignee.' § 1027. Widows' exemption. There is a species of exemption of the property of defendants from liability on account of their debts, which differs from exemption proper in these respects — that it only applies to estates of decedents, is not confined to proceedings in execu- tion, and is intended, not for the benefit of the defendant himself, but for that of his widow or children. Still, as the amount exempted, and the mode of proceeding to obtain the benefit of the exemption, are similar to those under the act of 1849, the subject may properly be considered here, as a supplement to the practice under that act. This ' Bowman ». Smiley, 31 Penn. St. 225. neaan's Estate, 26 Pitta. L. J. 153. 2 Bowyer's Appeal, 21 Penn. St. ^ Collins's Appeal, 35 Penn. St. 83. 210. Shelly's Appeal, 36 Ibid. 373. » Pittman's Appeal, 48 Penn. St. 315. Lauoks's Appeal, 44 Ibid. 395. Forney's Thomas's Appeal, 69 Ibid. 120. Appeal, 3 Luz. L. Obs. 84. Hartmau * McCreary's Appeal, 74 Penn. St. V. Hartman, 4 Brewst. 393. 194. ' Garrett's Appeal, 32 Penn. St. 160. ' Wilcocks v. Wain, 10 S. & R. 380. But where a subsequent execution, as Manufacturers' and Mechanics' Bank w. to which there is a waiver of exemp- Bank of Pennsylvania, 7 W. & S. 343. tion, is stayed before the sale, this does Tomb's Appeal, 9 Penn. St. 67. Lou- does not deprive the defendant of his cheim's Appeal, 67 Ibid. 49. Shultz's right of exemption, as against the prior Appeal, 1 Am. L. J. 173. Freuud's execution-creditor, who has no such Estate, 6 Luz. L. Reg. 65. And see waiver. Bowman v. Tagg, 6 W. N. C. the opinion of Black, C. J., in Smith's 220. And the fact that the defendant Appeal, 2 Pitts. L. J. 30. cannot claim the exemption as against * Kehler w. Miller, 4 Leg. Gaz. 125. a mortgage, does not inure to the bene- Pittman's Appeal, 48 Penn. St. 315. fit of a prior judgment-creditor. Fin- ' Myers's Appeal, 78 Penn. St. 452. 592 EXECUTION. exemption is given by the act of 14th April 1851,' which enacts that " the widow or the children of any decedent, dying within this commonwealth, testate or intestate, may retain either real or personal property belonging to said estate, to the value of three hundred dollars ; and the same shall not be sold, but suffered to remain for the use of the widow and family; and it shall be the duty of the executor or administrator of such dece- dent, to have the said property appraised in the same manner as is pro- vided in the act" of 1849 ; " provided, that this section shall not affect or impair any liens for the purchase-money of such real estate ; and the said appraisement, upon being signed and certified by the appraisers, and approved by the orphans' court, shall be filed among the records thereof"^ § 1028. Who entitled to claim. The statute provides, that the claim may be made by the widow or children of the decedent ; but the law con- templates the existence of the family relation, at the time of the hus- band's death. Therefore, a wife who has resided in a foreign country, and never formed a part of her husband's family here, is not entitled to the exemption f nor is a wife, who, without reasonable cause, had de- serted her husband, for many years, though there has been no actual divorce;* nor a widow who has been divorced a mensA et ihoro;^ nor a widow who, for a valuable consideration, has relinquished, by articles of separation, all claim to her husband's estate.^ But a widow who has been deserted by her husband is entitled to the exemption ; and she is not bound, at her peril, to take notice of his death f so also, she does not forfeit her right, by a remarriage.' And where a wife has obtained a divorce, on the ground of her husband's desertion, and remarried, her claim upon the estate of her second husband, cannot be defeated by proof of adulterous intercourse between the parties, prior to the divorce.' If two different women claim to be the widow of the decedent, proof must be taken as to the validity of the first marriage.'" The act does not extend to a surviving husband ;'' nor to the children of a wife and mother, who lived with her husband, at the time of his decease ; the statute was intended for the benefit of widows ouly.'^ § 1029. Might of exemption. The widow is entitled to her exemp- tion, whether the estate be solvent or insolvent;'^ whether her hus- ' P. L. 613; Purd. 416. 290. •■' The prior act of 1850, P. L. 581, « Dillinger's Appeal, 35 Penn. St. differed from the one in the text, in be- 357. And see Hutton v. Dewey, 3 ing confined to insolvent estates, and Ibid. 100. in requirina; that the widow and ohil- ' Terry's Appeal, 55 Penn. St. 344. dren claiming the exemption should ' Hilt v. Walton, 3 W. N. C. 545. have resided with the decedent, at the ' Hill v. Hill, 42 Penn. St. 19S. time of hla death. " Foster's Estate, 4 W. N. C. 75. » Spier's Appeal, 26 Penn. St. 233. " Klingler's Estate, 4 Leg. Opin. s. p. Piatt's Appeal, 80 Ibid. 501. 521. Coates's Estate, 6 W. N. C. 367. ''^ King's Appeal, 84 Penn. St. 345. * Tozer v. Tozer, 2 Am. L. Reg. 510. Minor children are entitled to the ex- Kelley's Estate, 1 W. N. C. 10. Adose emption, though there be no widow. V. Possit, 1 Pears. 304. Alexander's Estate, 35 Leg. Int. 491. " Hettrick v. Hettriok, 55 Penn. St. " Hill v. Hill, 32 Penn.'St. 511. EXEMPTION. 593 band died testate or intestate ;' and whether she elect to take under her husband's will,^ or against it f and she is entitled to her exemption, exclusive of her share under the intestate laws.* A delay of more than a year in claiming the exemption, will not prejudice the widow, where the rights of creditors are not affected.^ The widow's exemption is supe- rior to a claim under the mechanics' lien law f and it will prevail over an attachment levied in the lifetime of her husband,' and as against a creditor in whose favor the husband had waived the benefit of the exemption law.* She is not entitled to her exemption out of the pro- ceeds of land levied on in her husband's lifetime, and sold after his decease;' but she may claim as against a judgment-creditor, who loaned money to the husband, to pay the purchase-money of real estate of which he died seised.'" § 1030. Of the claim. The right of the widow to retain property to the value of three hundred dollars is waived, unless claimed before the expenses of a full administration are incurred ;'^ it is too late, after a lapse of several years, and a second marriage.'^ And a claim made before administration granted, upon one who afterwards obtained letters, is not sufficient. In the case of real property, the widow must make her claim before a sale ;'* she cannot claim out of the proceeds, without a previous demand, though the property consist of a single tract, incapable of division.'' The act of 1859'^ confers on the widow the right to take her exemption out of any bank-notes, money, stocks, judgments or other indebtedness to her deceased husbaod; and in such case, there is no need of an appraisement.'^ If no other interests be prejudiced, she may claim her three hundred dollars, out of moneys in the hands of the adminis- trator, before the auditor appointed to make distribution ;'^ but not after the assets have been appropriated to the payment of debts, and the expenses of administration." Where the widow claims her ex- emption, and certain personal chattels are assigned to her, this does not prevent her from claiming the residue of her three hundred dollars, ^ Compher v. Compher, 25 Penn. St. ' Thompson's Appeal, 36 Penn. St. 31. 418. 2 Ibid. '» Nottes's Appeal, 45 Penn. St. 361. ' Farrel's Estate, 4 W. N. C. 383. " Baskin's Appeal, 38 Penn. St. 65. See :Maier's Estate, 1 Pears. 420. Heller's Estate, 2 W. N. C. 338. See * Bowermasterw. Bowermaster, O.C., Maier's Estate, 1 Pears. 420. Lancaster, 27 April 1849. MS. And '•^ Burk v. Gleason, 46 Penn. St. 297. see Stineman's Appeal, 34 Penn. St. But see Shumate v. McGarity, 83 Ibid. 394. A widow who has elected to take 39. under her husband's will, cannot ren^ " Bryan's Estate, 4 Phila. 228. der it inoperative, by a claim for the " Cranse's Estate, 6 Phila. 71. Dech's exempt property. Maier's Estate, 1 Estate, Ibid. 72. Pears. 420. '^ Hufman's Appeal, 81 Penn. St. 5 Hurley's Estate, 5 W. N. C. 101. 329. 6 Hildebrand's Appeal, 39 Penn. St. '« Act 8 April 1859, P. L. 425 ; Purd. 133. 416. ' Mulford V. Thatcher, 1 Leg. Chron. " Larrison's Appeal, 36 Penn. St. 97. 130. 8 Spencer's Appeal, 27 Penn. St. '^ Kirkpatrick's Estate, 5 Phila. 98. 218. " Tibbin's Estate, 5 Phila. 100, VOL. I. — 38 594 EXECUTIOK. out of the proceeds of the sales of securities in the hands of the adminis- trator.^ § 1031. Appraisement. The act of 1859 provides, that the property set apart for the widow and children of a decedent, shall be appraised and set apart by the appraisers of the other personal estate.^ And the act of 1865 enacts, that whenever the real estate so appraised and set apart shall consist of a single message or tenement, which cannot be divided without prejudice to, or spoiling the whole, and the same may be appraised at any sum not exceeding six hundred dollars, it shall be lawful for the orphans' court to confirm the same, conditioned that the person on whose behalf the claim is made, shall pay the amount in excess of three hundred dollars, within one year from the date of confirmation ; or if the widow and children refuse to take the same at such appraise- ment, to grant an order to sell the same, as in case of a sale after proceedings in partition. And the real estate so taken shall vest abso- lutely in the widow or children, their heirs and assigns, upon payment of such surplus ; or if they refuse to accept, they shall be entitled to the sum of three hundred dollars out of the proceeds of sale.' The exempt property must be valued by the appraisers of the personal estate ; the guardian of a minor child has no right to appoint appraisers ;^ and it is not sufficient ground per se for setting aside the report, that two of the appraisers were relatives of the widow.' The exempt property must be inventoried ; the court will not confirm an appraisement in bulk.^ The widow can retain three hundred dollars, either in real or personal estate ; but she cannot compel a sale, in order to give her that amount in money f she cannot claim her exemption out of real estate, so as to sub- ject it to sale, unless there be a deficiency of personal property," except as provided by the act of 1865. She cannot claim three hundred dollars out of the proceeds of land in another state, brought here for distribution ;' nor can "property held by the decedent as a pledge for the security of a loan, be set apart for the use of a minor child.'" If a widow appropriate the personal property to her own use, she cannot maintain an action against the executor, for refusing to set ofi" the three hundred dollars ; she must first account for what she has taken ;" but a widow and admin- istratrix does not forfeit her right to the exemption, by an omission to enter a sum of money in the inventory, under a mistaken idea that it was her separate property,'^ § 1032. Conftrniation, The confirmation of an appraisement of ex- empt property vests it absolutely in the widow ; the administrator is not accountable for it to creditors in any way.'' If real estate be set apart, ' Soult's Appeal, 82 Penn. St. 153. 99 ; s. c. 2 Les. Gaz. 355. ^ P. L. 425 ; Purd. 417. » Scott's Estate, 2 Phila. 135. => Act 27 November 1865, P. L. 1227 ; » Hopper's Estate, 2 Phila. 367. Piird. 417. >« Eddy's Estate, 4 W. N. C. 172. * Eddy's Estate, 4 W. N. C. 172. " Lyman v. Byam, 38 Penn. St. 475. * Vandevort's Appeal, 43 Penn. St. '^ Speakman's Appeal, 71 Penn. St. 462. 25. « Drake's Estate, 1 W. N. C. 85. " Runyan's Appeal, 27 Penn. St. ' Witmer's Estate, 18 Pitts. L. J. 121. EXEMPTION. 595 the widow has power to. sell and convey a good title.^ There can be no distribution between the widow and children ; the amount must be paid directly to the widow, for the support of the family.^ And where the widow's exemption is decreed to be taken out of laud, it becomes a charge thereon, and the orphans' court may enforce payment by an order of sale.^ Where articles selected by the widow have been ap- praised and set apart to her, it is not competent for the court, some months after the confirmation, to open the same, on the application of the guardian of her minor children, and to direct a re-appraisement by an auditor.^ An appeal lies from the decree of confirmation f and the court may set aside the appraisement, if evidently erroneous.' IV. Stay of execution. § 1033. By agreement of parties. Agreements, stipulating for stay of execution, independently of that allowed by law, are frequently made, and courts will see that the proceedings are conducted according to good faith and the understanding of the parties ; and, if an agreement for a stay of execution be made, it seems to be now settled, that the court will receive evidence of it, although not entered on the record.'' So, if a plaintiff" is bound in equity to make a title to defendant for a portion of the premises, execution will be stayed upon the judgment in ejectment, until such title be secured.^ If, after judgment, an agreement be made between parties, that execution shall not be taken out, till the next term, and it is sued out before, the court will set aside the proceedings ;" so, where judgment is entered upon a bond, payable at a time certain, execution cannot issue, until that time is expired, though no provision for a stay of execution, until such time, have been inserted in the warrant.^" § 1034. On the other hand, the court will not interpose, unless it appear that the execution issued contrary to good faith ; upon this principle, they refused to set aside an execution, issued before the expira- tion of the stay agreed to by plaintiff", on condition that there were then no other judgments but one against the defendant, when, in fact, there were others, as appeared in evidence upon the hearing." So, where judgment ' Sipes V. Mann, 39 Penu. St, 414. stayof execution, provided for in a war- And see Filson v. Dunbar, 26 Ibid. 475. rant of attorney, upon the record, ia ^ Nevins's Appeal, 47 Penn. St. 230. not a forfeiture of his bond ; nor does ' Detweiler's Appeal, 44 Penn. St. it render him liable in damages. Com- 243. Brennflook's Estate, 9 Phila. 324. monwealth v. Conard, 1 Kawle 249. *'Vandevort's Appeal, 43 Penn. St. * Mathers v. Akewright, 2 Binu. 93. 462. '1 Mod. 20. 5 For the forms of proceeding under '" Shoemaker v. Shirtliffe, 1 Ball. 133. these statutes, see Smith's Forms 162, " Holmes v. Delabourdine, 1 Bro. ^g 130. If judgment be entered by con- s' Galloway's Estate, 1 Pears. 404. fession, with the privilege of entering But unless set aside by the court, the bail for stay, within thirty days, the sheriff cannot hold a second inquest, plaintiff may issue execution immedi- Geisinger jj. Applebach, 6W. N. C. 557. ately, liable to be stayed, upon the ' Dunlop V. Speer, 3 Binn. 169. The entry of bail, and payment of costs. omission of the prothonotary to enter a Keyler v. Holloway, 5 Phila. 530. 596 EXECUTION. was entered, with an agreement that it should be released on the defendant's performing a certain act, without expressly providing for any stay of execution, a fi. fa., issued after allowing a reasonable time, is regular, the defendant having neglected to fulfil the agreement — and no injury can arise from supporting such a proceeding, because the court will always interfere in a summary way to prevent injustice, and enforce the terms on which the judgment was entered. If, however, it had issued immediately after judgment, no doubt, the court would have set it aside.^ So, an agreement between the parties to a judgment-note, made at the time of its execution, that execution thereon shall not issue until after the entry of a certain other judgment against the defendant, and the issuing of execution thereon, is valid, and may be enforced by the plaintiflP in the preferred judgment, though not a party to the agreement ; and if execution issue in violation of the agreement, the plaintiif will be postponed, on the distribution of the proceeds of the sale of person- alty, to the plaintiff in the preferred judgment, though the execution of the latter came last into the sheriff's hands.^ Where such agreement was founded on a representation of the defendant, that there was but one other judgment against him, whereas, in fact, there were three, the court refused to set aside an execution, issued prior to the time agreed upon.' If an execution be issued before the expiration of the stay allowed by law, or fixed by agreement of the parties, the practice is, to set it aside, on a summary application to the court.* but, until set aside, or reversed on error, such writ, though irregular, is not void, and cannot be questioned in a collateral proceeding, except for fraud.' § 1035. By statute. It is provided by the act of 1836,^ that in all actions instituted by writ, for the recovery of money due by contract, or of damages arising from breach of contract (except actions of debt and scire facias upon judgments, and actions of scire facias upon mortgages), if the defendant is possessed of an estate in fee-simple within the county, worth, in the opinion of the court, the amount of the judgment, or the sum for which the plaintiff is entitled to have execution, clear of all incumbrances, he shall be entitled to a stay of execution upon such judgment, to be computed from the return-day of the writ by which the action was commenced,'^ as follows : if the amount or sum aforesaid shall not exceed $200, six months ; if such amount or sum exceed $200, but is less than $500, nine months ; if such amount or sum exceed $500, twelve months. In amicable actions, the defendant, in like cases, shall be entitled to the same stay as above, to be computed from the day of 1 Miller v. Milford, 2 S. & R. 35. » Stewart v. Stooker, 13 S. & R. '^ Ayers's Appeal, 28 Penn. St. 179. 203. The officer is justified by his writ, ' Holmea v. Delabourdine, 1 Bro. 130. though issued in violation of the agree- ' Banning v. Taylor, 24 Penn. St. ment of the parties. Swires v. Brotiier- 289. No person, other than the de- line, 41 Penn. St. 135. fendant, can object, that an execution ' Act 16 June 1836, 1 3, P. L. 762 ; was issued, in violation of parol agree- Purd. 634. ment for a stay. Elliott v. Brinzer, 1 ' Act 3 April 1873, P. L. 60 ; Purd. Pears. 39. 1783. STAY OF EXECUTION. 597 the agreement, unless otherwise provided therein by the parties.' But no defendant shall be entitled to stay of execution upon a judgment obtained against him as bail for stay of execution on any former judg- ment f and no stay of execution shall be allowed on any judgment for one hundred dollars and less, when the same has been recovered for wages of manual labor.' Corporation defendants are not embraced by the provisions of the stay laws.* In suits before justices, the period of stay is as follows : if the judgment be above $5.33, and not exceeding $20, three months ; if more than $20, and not exceeding $60, six months ; if above $60, and not exceeding $100, nine months ; and if exceeding $100, one year.^ A general stay law does not apply to judgments in favor of the commonwealth.^ § 1036. Freeholders. A defendant is not entitled to a stay, on the ground of being a freeholder, unless his freehold be in the county where the judgment was obtained;' and it must be clear of all other incumbrances;^ where two judgments are entered against a defendant, on the same day, he cannot plead his freehold in stay of execution of either ;' but a fee-simple in land, subject to an annual ground-rent, on which no arrears are due, entitles the owner to a stay of execution.'" And if one of several defendants have a sufficient freehold, there must be a stay, of execution as to all ; the stay is on the ground of security, not of privilege." The plaintiff may issue an execution, at his peril as to costs, notwithstanding a plea of freehold ; or he may move to dismiss it for insufficiency.'^ It is said, that the proper way to test the sufficiency ' Act 16 June 1836, I 5, P. L. 762 ; execution, he must show a freehold not Pard. 635. merely worth the amount of the judg- ' Act 25 April 1850, J 28, P. L. 574 ; ment above, or more than the incum- Purd. 635. brances upon it, but clear of all incum- ' Act 14 May 1874, P. L. 174 ; Purd. brances. The words of this section are 1967. Where a note is given for identically the same with those of the wages, there is no stay, under this 3d section of the act of 16th June act. Jung V. Roth, 1 W. N. C. 510. 1836,. the act now in force, though * Boyer v. Northern Central Railway there is a slight transposition, so far at Co., 1 Pears. 113. least as regards the point involved in ^ Act 20 March 1810, U 9, 14 ; 5 Sm. this application. The legislature, by L. 166 ; Purd. 848, 862. changing the law from requiring in the ° Commonwealth v. Smith, 4 Phila. defendant ''a freehold estate" to "an 421. estate in fee-simple," leaving words ' Commonwealths. Meredith, 5 Binn. which had received a judicial construo- 432. Nor unless it be liable to execu- tion to remain precisely the same, hav6 tion ; therefore, a municipal corpora- shown no disposition to extend this tion cannot enter a plea of freehold, privilege of the defendant. Rule abso- Morgan v. Moyamensing, 2 Miles 397. lute. 8 Girard v. Heyl, 6 Binn. 253. Jenks » Penn Bank v. Crawford, 2 W. N. V. Grace, 1 W. N. C. 20. Hansell v. C. 371. Thornton v. Knapp, 3 Luz. L. Garwood, Dist. Court, Phila., 6 March Reg. 23. See sjtpra, ^235. 1848. Why plea of freehold should '» ra,rmers' & Mechanics' Bank v. not be stricken off. Per curiam. It Schreiner, 1 Miles 291. was settled in the supreme court, in " Robinson v. Narber, 65 Penn. St. Girard v. Heyl, 6 Binn. 253, that under 85, th Meiser v. Eckhart, 19 Penn. St. 101. 201. • Act 23 April 1829, 10 Sm. L. 455 ; " Day v. Sharp, 4 Whart. 339. Purd. 588. " BerryhiU v. Wells, 5 Binn. 56. ' Penn v. Klyne, Pet. C. C. 446. " Penn v. Klyne, Pet. C. C. 446. ' Darlington v. Speakman, 9 W. & S. " Day v. Sharp, ut supra. And see 182. Darlington v. Speakman, 9 W. & S. ' Act 6 April 1845, P. L. 540; Purd. 182. 822. ISSUING OF THE WEIT. 605 § 1046. Against whom issued. Execution ought to be sued out against him who is party or privy;' it should follow the judgment, and be warranted by it f it should be against all the defendants f and where judgment is entered against only one of two defendants, a joint execu- tion is erroneous.'* Under a joint judgment, the^. fa. should be joint, as the execution must follow the nature of the judgment;^ but this rule is technical, and has more of form than of substance in it; the court out of which the process issues will take care that it be not so used as to work injustice, and will protect a surety from an attempted disregard of a release to him by a creditor.^ But a creditor who has judgment against the principal, against the indorsers, and against the absolute bail of the principal, and has issued execution and levied on the land of the principal, or of the absolute bail, may, nevertheless, have execu- iion of the chattels of the indorsers ; nothing but actual satisfaction can prevent him.'^ A plaintiff, who holds several judgments against a debtor, with different sureties or indorsers, may, in the absence of any agreement to the contrary, issue execution upon any one of them, and the proceeds of personal property realized upon such execution, will be applied to the debt upon which it issued.* § 1047. If one of the defendants die, execution can be sued out against the survivors only, the goods of him who is dead being dis- charged;' so, if judgment be against husband and wife, and the hus- band die, execution may issue against the wife.'" At common law, if execution were tested in the lifetime of a sole defendant, it might be exe- cuted against his .personal representatives, without a scire facias;^^ but execution taken out, after defendant's death, against his executor or administrator, without a scire facias, was void.? Under our act, execution cannot issue against a defendant, who has died since the judgment (and it makes no difference that the execution is tested in the lifetime of the defendant), unless his personal representatives be first warned by scire facias}^ A sale of real estate under an execution, sued out after the death of the defendant, upon a judgment obtained against him in his lifetime, and which was a lien at the time of his death, though voidable, is not void'* (this has since been held otherwise'*) ; but the court quashed ' Com. Dig. "Exeeution," F. " Ibid. See Springer v. Brown, 9 ' Stuckert v. Ellis. 2 Miles 433. Penn. St. 305. ^ Clark V. Clement, 6 T. R. 525. ''' Ibid. * McPeake v. Hutchinson, 5 S. & R. " Act 24 February 1834, J 33, P. L. 295. 79 ; Purd. 425. ° Shaffer v. Watkins, 7 W. & S. 219. '* Speer v. Sample, 4 Watts 367. Gibbs V. Atkinson, 1 Clark 476. " Cadmus v. Jackson, 52 Penn. St. * Mortland v. Himes, 8 Penn. St. 295. But this seems to be questioned :>65. by Thompson, C. J., in Taylor «. ' Grow. Huntingdon Bank, IP. &W. Young, 71 Ibid. 89. And it was 425. held, in Diese v. Fackler, 58 Ibid. * Marshall «.. Franklin Bank, 25 111, that such defect was curable, Penn. St. 384. by a subsequent waiver of the scire ' Commonwealth v. Vanderslice, 8 S. facias ; which would imply that the & R. 452. execution was voidable only, not ab- '» Com. Dig. "Execution," F. solutely void. 606 EXECUTION. such proceedings, where the lien of the judgment was gone.^ Where a defendant dies, the judgment remains a lien upon the land of such deceased party, which may be rendered effective by a scire facias against his representatives; if some of the defendants survive, they may be joined in the scire facias? § 1048. An equitable plaintiff, or person for whose use or benefit, and at whose instance, the suit is prosecuted, whether named on the record or not, is liable to execution on a judgment against the legal plaintiff; provided, that where such equitable plaintiff was not named on the record, previously to judgment, his name shall be suggested on the record, supported by affidavit of his interest in the cause, before execution shall issue.^ A judgment for the defendant for costs, warrants an execution against the legal as well as the equitable plaintiff; but where the legal plaintiff had no notice of the use of his name, or where, from other cir; cumstances, the costs ought to be paid by the equitable plaintiff, the court may, upon application, direct the fi. fa. so to issue.* The act is not to be so construed as to relieve the party who commenced the suit from his liability for costs, when his interest was subsequently assigned ; it does no more than extend the remedy for non-payment of costs to an equitable plaintiff, whether marked on the record or not.' § 1049. Writ and indorsement. The writ bears teste in term-time, and is made returnable on the several return-days, in the same manner as original process, except that no time is limited between the issuing and return-day ; and, it seems, that the intervention of a term between the issuing and the return-day, is not an irregularity.^ . In Philadelphia, the first Monday of each month, as well as the first day of the term, is a return-day for all writs of execution.' A fieri facias and alias cannot legally issue to the same term f but, in Philadelphia, it is the practice, to issue an alias to a succeeding monthly return-day in the term.' An omission to recite the first writ in an alias, does not render it void ; this is a mere irregularity, which may be corrected, on motion.'" § 1050. If the writ be irregular, the defendant may move the court to set it aside ; and this is the proper course, instead of going to the supreme court for relief on error." A misrecital in the body of the writ, does not render it void, nor affect the right of an ofiicer to justify under ' Commonwealth I!. Vanderslice, 8 S. 191-2. The Act 11 June 1879 provides & R. 452. that a fi. fa. issued within seven days '•^ Act 23 April 1829, 10 Sm. L. 45.5 ; of the return-day, may be made return- Purd. 588. able to the next succeeding term. » Glfford V. Gifford, 27 Penn. St. 202. « Act 14 April 1846, P. L. 328 ; Purd. * Kinley v. Donnelly, 6 Phila. 130. 1165. See supra, § 246. 5 Ingham v. Snyder, 1 Whart. 116. ' Shaffer v. Watkins, 7 W. & S. 219. Miner v. Walter, 8 Phila. 571. If judg- * It is irregular, to procure a return ment be confessed in term-time, a fi. fa. of nulla bona, and immediately issue cannot issue to the second return-day of a testatum to the ^me return-day. the same term ; otherwise, of a merely Root v. Oil Creek and Allegheny River formal writ to found a testatum. Bar- Railroad Co., 31 Leg. Int. 285. ker V. Smith, 4 Yeates 185. And see ' Coleman v. Mansfield, 1 Miles 56. Ewing 0. McNair, 2 Dall. 269, more '» Duncan v. Harris, 17 S. & R. 436. fully stated by Yeates, J., in 4 Yeates " Keeler v. Neal, 2 Watts 424. WRIT AND INDOESEMENT. 607 it ;^ an execution is good until reversed ; it cannot be examined collat- erally.^ The writ is amendable : thus, an erroneous teste of a fi. fa. by the clerk was amended, though executed f and the court will permit the teste and the return-day of the fi. fa. to be amended by the prcecipe f and after error brought, the supreme court will issue a certiorari to bring up the prcecipe, to amend the writ by, the power of the court above to amend having been asserted and exercised from the earliest period.^ " In mat- ters arising from the mere carelessness of the clerk in process, it is to be observed, that those things which are amendable before error brought, are amendable afterwards ; and if the inferior court doth not amend, then the superior court may amend them."^ But the defendant in error must pay the costs of the amendment,^ and executions.^ So, where the judgment and fi. fa. differ, the latter may be amended by the former;'' and where a fi. fa., after levy, but before sale, was destroyed by accident, the court granted permission to make out a new fi. fa., to be delivered to the sheriff.'" After many years, it will be presumed, in support of a title, that a lost praecipe contained a direction for a writ, which would have authorized a sale ; and the court will amend the writ according to the levy, where it appears by the deed, that all the land levied on was actually sold." So, where the body of the writ related to a different suit from that set out in the praecipe, in the indorsement, the venditioni, and the sheriff's deed, the court will amend the body of the writ to correspond with the rest of the proceedings.'^ § 1051. Indoi^sement. The prothouotary indorses on the execution the amount of the actual debt, and the time from which interest is to be calculated, together with the costs of suit, as a direction to the sheriff for the sum which he is to levy; the sheriff adds to these his fees and poundage, and levies for the whole. If the defendant complain that injustice has been done him, immediate and liberal relief will be given, either by the court, on motion, or by a judge at his chambers, upon lay- ing before him a proper case, verified by oath.'' It is the sheriff's dut)', in levying, to be governed by the amount indorsed on the fi. fa., and not ' Keeler v. Neal, 2 Watts 424. The exeoution-docketis evidence to show ^ Stewart v. Stooker, 1 Watts 135 ; the contents and proceedings upon a s. c. 13 S. & R. 199. Wilkinson's lost writ. Buchanan v. Moore, 10 S &. Appeal, 65 Penn. St. 189. R. 275. » Baker v. Smith, 4 Yeates 185. " Lewis v. Smith, 2 S. & R. 155. If * Berthon v. Keeley, 4 Yeates 205. any payments have been made on ac- ' Prevost V. NichoUs, 4 Yeates 479. count of the judcrment, the dates and « 8 Co. 162 a. amounts should also be indorsed by the ' Gilb. C. P. 167. plaintiff's attorney, in order that the ^ Peddle v. Hollingshead, 9 S. & R. sheriff may calculate the interest due. 284. Careful practitioners embody such ' Black V. Wistar, 4 Dall. 267. credits in their praecipe, or annex a '" White V. Lovejoy, 3 Johns. 448. memorandum thereof to the same, This is the usual practice incur courts, which the prothonotary indorses on See Hope Building Association D. Dun- the writ. When the defendant is agan 5 W. N. C. 148. brought in on an alias summons, a fi. " De Haas v. Bunn, 2 Penn. St. 339. fa. may be indorsed as of the original. " Owen V. Simpson, 3 Watts 87. Shaw v. Kenath, 2 W. N. C. 127. 608 EXECUTION. by that contained in the body of the writ, which is often nominal.' The indorsement is an official act, and must be taken to be correct, until the contrary is shown ; and this rule applies to the amount of costs indorsed, as well as to the debt to be levied, though the indorsement being a mat- ter en pais, the sheriff, in an action against him by the plaintiff in the execution, may show that it was not the act of the proper officer, or that it was improperly made.^ And where the indorsement corresponded with the prceeipe, but the body of the writ had relation to a different suit, and the levy, venditioni and sheriff's deed corresponded with the prce- eipe and indorsement, the supreme court held, that the body of the writ was amendable, to correspond with the other process, and that the sheriff's vendee had a good title.^ § 1052. Amount. In general, the plaintiff is entitled to levy the amount of the judgment, with interest and costs of suit and of the exe- cution ; and interest is now allowed on a verdict from its date.* Where a warrant of attorney provides that the creditor shall recover an attor- ney's commission for collection, it must be included in the judgment, or it cannot be collected by execution, as part of the costs.' But where the attorney's commission is made part of the judgment, though a separate indorsement thereof upon the writ is an informality, it will not affect the plaintiff's right to recover the sum out of the proceeds of a sheriff's sale.° Where judgment is entered for a sum payable at a future day, with a proviso, that if default be made in the payment of interest, for sixty days, the whole debt shall presently become due and payable, execu- tion may issue, immediately on a default for sixty days, without any suggestion of non-payment on the record ; such execution is under the equitable control of the court, on an allegation of payment.^ So, execu- tion may issue on a judgment confessed to secure future advances ; the plaintiff may take out execution, in case of default, without a scire faeias, for an amount not exceeding the penalty of the bond.' § 1053. Powers of the court. The powers of the court, in relation to executions, are very extensive ;' they may suspend the operation of the writ, or set it aside altogether; or they may restrict its effect to a particular tract of land ; or they may control it in other ways, so as to ' Griffith u. Lyle, 7 Phila. 244. certain notes, notwithstanding a re- ^ Commonwealth v. McCoy, 8 Watts newal note has not run to maturity. 155. Balph V. Rynd, 25 Pitts. L. J. 45. And ' Owen V. Simpson, 3 "Watts 87. where a judgment creditor issues exe- * Act 6 April 1859, P. L. 381 ; Purd. cution for an instalment due, and by 804. matter subsequent, the whole claim * McAllister's Appeal, 59 Penn. St. becomes due, he may issue a second 204. s. p. Mahoning County Bank's execution for the residue, before the Appeal, 32 Ibid. 158. Faulkner v. first is returned. Martin v. McBride, Wilson, 3 W. N. 0. 339. 2 Phila. 343. ' Schmidt's Appeal, 82 Penn. St. 524. ' Where the subject-matter is in dis- ' Collins w. Webster, 38 Penn. St. 1 50. pute, in different states, the court will ° Livingston v. Mclnlay, 16 Johns, so control the execution, as to protect 165. Execution may issue on a judg- the rights of the parties. Whipple v. ment confessed as an indemnity against Fire Association, 3 W. N. C. 259. POWERS OF THE COURT. 609 prevent injustice.^ Before return made, the courts always interfere to prevent injustice , but they cannot alter the effect of a return, although, in a proper case, they may enlarge the time for making it, or may grant leave to amend it.^ A judge, however, has no power to order an execution to be returned before the return-day; such order is void, for want of power to make it.' The court will control the execution, by the tenor of the evidence upon which the judgment was obtained.'' Executions on judg- ments by confession, without suit, are peculiarly under the equitable control of the court out of which they issue :° thus, they will permit an execution to issue on a judgment for a stated sum, confessed to the plain- tiff as an indemnity, without a saire facias, suggestion or other proceed- ing to ascertain the damages;' so, on a bond with warrant, payable in instalments, the times of the payment being specified in the entry of judgment, execution may issue, without obtaining leave of the court; but the court has control of such execution, and if payment be sug- gested, it may award an issue.' Where the judgment is on a note, pay- able in the notes of a particular bank, the court will, under its equitable powers, so control the execution as to prevent injustice;^ so, where the judgment is on bank-notes, the court can so control the execution, as to compel the delivering up of the notes f and where a note is lost, after commencement of an action upon it, though it is not necessary for the plaintiff to furnish indemnity against it, before judgment, yet the court may restrain the execution, till an indemnity be given.'" § 1054. If a plaintiff in a judgment by confession, with a special agreement annexed, restricting the execution to a certain specified tract, attempt, in violation of his agreement, to levy on other lands of the defendant, the court will interfere, and set aside the writ, on motion ;" and they will enforce such an agreement, where the judgment is obtained upon verdict.'^ The courts will interfere, in other cases, to restrict an execution to a particular tract : thus, where some of the tracts, bound by a general judgment, were afterwards aliened by the defendant, and the remaining lands are sufficient to satisfy all the liens, the court will interfere to prevent a levy on the lands aliened ;'' so, where judgment for arrears of ground-rent has been obtained against the executor of the covenantor, who had aliened the land, and died before the rent became due, the court will restrict the execution to the land out of which the 1 The court will not stay an exeou- * McCann v. Farley, 26 Penn St. 173. tion, on a summary application, on the ' Chambers v. Harger, 18 Penn, St. ground that the sale will pass no title. 15. Pennsylvania Co. v. Harshaw, 6 W. * Lowry w. Lumbermen's Bank, 2 W. N. C. 272. & S. 210. ^ Mentz V. Hamman, 5 Whart. 155 ; ' Bank of United States v. Thayer, Rogers, J. 2 W. & S. 443. ' Irons V. MoQuewan, 27 Penn. St. '" Bisbing v. Graham, 14 Penn. St. 14. 196. ■ " Snevely v. Tarr, 1 Phila. 220. « Irwin V. Shoemaker, 8 W. & S. 77. " Irwin v. Shoemaker, 8 W. & S. 75. 5 Lewis V. Smith, 2 S. & R. 155. " Nailer v. Stanley, 10 S. & B. Skidmore v. Bradford, 4 Penn. St. 450. Cowden's Estate, 1 Penn. St. 279.. 300. McCann v. Farley, 26 Idid. 173. Mevey's Appeal. 4 Ibid- 80.. VOL. I.— 39 610 EXECUTION. rent issues.^ But, where an executrix, being indebted to one of the lega- tees, confessed a judgment to a creditor of the legatee, and took a receipt from the legatee for so much paid, to be accounted for by him on a settlement of his accounts and of the estate, it was held, that the plaintiff had the right to levy his execution on the personal property of the estate, and was not bound to wait until there had been a settlement of accounts between his original debtor and the estate, and a decree of the court below, restricting the execution to the estate of the executrix, was reversed.^ § 1055. Where a judgment has been transferred to another county, the court in which the primary judgment was obtained can alone take any action operating on the judgment itself; and if that court direct satisfaction to be entered, on payment of the money into court, all fur- ther process on the secondary judgment must be arrested, except for its own costs, in a proper case.^ The court of the county to which a testatum fi. fa. is directed, has no control over it; the process is, for every purpose, under the control of the court whence it issues.* An attachment-execu- tion, as collateral to the old modes of execution, is under the control of the court, so far as to see that it is not used vexatiously, and that the garnishee shall run no risk of being compelled to make double pay- ment.' § 1056. Staying and setting aside executions. It may be con- sidered as settled law that, independently of those cases where the execution is on its face irregular, where an execution has been issued, without leave, and in violation of the agreement of the parties, the court has a power, which it is bound to exercise, to set it aside or stay proceed- ings, until the plaintiff do justice, by carrying into effect the terms and stipulations of an agreement.* Thus, where land was purchased at a sheriff's sale, for a part of the amount of the judgment, under an agree- ment that it was to be held as collateral security for the whole debt, and, in violation of an agreement, an alias fi. fa. was taken out for the residue, it was held, that the proper course was, to set aside the writ, or stay pro- ceedings on it, not to open the judgment to let the defendant into a defence on the merits.' And executions upon judgments entered upon bond and warrant of attorney are controlled by the equitable powers of the court issuing them, in such manner that no injustice is done to the defendant.' Every court having jurisdiction to hear and determine civil causes, has control over its own process of execution, in a summary man- ner, and without the intervention of a jury.' And the right of a court of common pleas, to stay an execution for a definite period of time, or to • Williams's Appeal, 47 Penn. St. « McCann v. Farley, 26 Penn. St. 283. 173. Irons v. McQuewan, 27 Ibid. 196. Miller V. Ege, 8 Penn. St. 352. Patterson v. Patterson, Ibid. 40. Loo- ' King V. Nimick, 34 Penn. St. 297. mis v. Lane, 29 Ibid. 242. See rapra, ?812. 'Harrison v. Soles, 6 Penn St. * Commonwealth v. Smith, 4 Phila. 393. *^s\r -,. ' McCann u. Farley, M< sMpra. Kase V. Kase, 34 Penn. St. 128. ' Loomis v. Lane, ut supra. POWERS OF THE COUET. 611 prevent one from issuing, has been frequently recognised, and is common in practice.' § 1057. A judge may stay an execution, upon good and sufficient grounds shown, but it should be with a stipulation that the lien be pre- served.^ But a rule to show cause why a judgment should not be opened, does not stay the proceedings, without an order to that effect ;^ and the sheriff is liable for goods previously levied on under such judgment, which, by his neglect to sell, were levied on and sold under a subsequent execution, and the proceeds paid to the plaintiff in that suit.'' The authority exercised by a judge at chambers, in a cause pending, is the authority of the court itself, and may be enforced by attachment, because disobedience to a judge's order is a contempt of court, and punishable as such. This jurisdiction is, ex necessitate rei, to prevent oppression, and to facilitate the interlocutory proceedings in suits at law, and embraces a variety of important subjects.'' The proper mode of proceeding, in most cases, is by summons in the nature of a rule nisi, fixing a day for a hearing, and served on the opposite party ; without this, the judge ought not to interfere, unless the order sought be of course. An order staying execution, without notice or a hearing, is void as regards the plaintiff;^ but the want of notice to the plaintiff would not justify the officer in refusing to obey the order.' On a motion to set aside, the court will not decide questions of the defendant's title.^ A court, upon motion to set aside an execution, may direct an issue to ascertain the facts ; but this is for its own satisfaction, the parties have no right to demand it.' § 1058. A mere general creditor, who has not obtained judgment, can- not intervene to stop an execution, which may indeed be fraudulent as to him, but which is good between the parties ; none but an execution- creditor, who has a lien, or an assignee for the benefit of creditors, who would be entitled to the goods, in case the fraudulent execution were set aside, has any right to ask the interposition of the court ; it seems, there is no difference in this respect between the case of a judgment confessed by way of preference, by a person in insolvent circumstances, and other cases.'" The court is bound, upon the application of executors or admin- trators, to stay an execution issued on a judgment against the decedent, or his personal representatives, if it appear that the personal estate is insufficient — such stay to be until the personal representatives' have applied to the orphans' court for the sale of the real estate.'' ' Patterson v. Patterson, 27 Penn. St. ' Irons v. MoQuewan, 27 Penn.St.l96. 40. ' Commonwealtli v. Magee, 8 Penn. 2 Irons V. MoQuewan, 27 Penn. St. St. 246. 196. ' Seitzinger v. Fisher, 1 W. & S. ' Batdorff t). Focht, 44 Penn. St. 293. Jarretu. Tomlinson, 3 Ibid. 114. 195. Lancaster's Estate, 21 Pitts. L. Harrison v. Wain, 9 S. & R. 318. J. 105. ' Loomis v. Lane, 29 Penn. St. 242. * Spang V. Commonwealth, 12 Penn. See Banning v. Taylor, 24 Ibid. 289. St. 358. '" Ludlow v. Button, 1 Phila. 226. s Commonwealth v. Magee, 8 Penn. " Act 24 February 1834, 1 35, P. L. St. 246. 79 ; Purd. 426. 612 EXECUTION. § 1059. It is not cause for setting aside an execution, that it was levied on land for which the defendant had no title, nor that the lien of the judgment had been lost by lapse of time;' but in such case, the court will set aside the levy on the land, as to which the lien of the judgment had expired, leaving the writ to stand as to personalty ;^ hence, where, on application of assignees of real estate, the court stayed a venditioni, issued on a judgment obtained after the assignment, the proceedings were reversed by the supreme court, who refused, at the same time, to inquire into the validity of the assignment, holding that the proper mode of testing it would be in an ejectment between the sheriff's vendee and the assignees.^ So, the court will not, on motion to set aside a fi. fa., inquire into the title of a third person, who claims the lands levied on, but will leave him to his ejectment ; nor will the court, in such case, inquire into the existence of a lien upon the land, though they would apply the proceeds to it, if valid, when the money is brought into court.* And where a legacy was bequeathed, upon condition that the estate should prove sufficient to pay prior legacies, the court will not interfere to stay execution, by the executors against the legatee, on an antecedent debt, except where it is perfectly clear that the estate will be large enough to pay the legacy.^ After a fi. fa. has been executed upon land, the court will not set it aside, on the ground that, since the inquisition, sufficient personal property has been found to satisfy the execution.' § 1060. Where the defendant, applying for a stay of execution, alleges that the plaintiff is indebted to him upon an unliquidated account, and is insolvent, the court would perhaps refuse to set aside on that ground ; but an offer by the plaintiff to give security to the amount of the judg- ment sought to be enforced, would fully meet the allegation of the defendant.' So, where the judgment was assigned to secure money lent to the defendant, which he covenanted, by articles of agreement, to repay on a certain day, the court will not stay an execution on the judg- ment, in order to give the defendant time to obtain a verdict against the equitable plaintiff, for alleged breaches of his covenants in the same articles ; though they would perhaps interfere, if the defendant alleged payment, or anything which, in its nature, admitted of liquidation.' § 1061. An execution issued before the stay of execution has expired, is irregular, and will be set aside by the court, or reversed on error;' still, it is not void, but, like a judgment erroneously entered, is valid, until reversed or set aside ; nor can its validity be questioned by another execution-creditor, who sues the sheriff for the proceeds, nor in any other 1 Seitzinger v. Fisher, 1 W. & S. ' Dunn v. American Philosophical 293. Jarrett v. Tomlinson, 3 Ibid. 114. Society, 2 Penn. St. 75. 3 Ibid- « Hunt V. McClure, 2 Yeates 387. heel V. Bank of Lewistown, 11 ' Patterson v. Patterson, 27 Penn. Penn. St. 17. But the act 17 Febru- St. 40. ary 1876, P. L. 4, Purd. 1973, has » Dunlop v. Speer, 3 Binn. 169. provided for the sale, by assignees for » The court will set aside a, fi. fa. the benefit of creditors, of incumbered issued in violation of a binding agree- real estate. ment to give time. Evans v. Barr, 2 Harrison v. Wain, 9 S. & R. 318. Luz. L. Reg. 136. POWEES OF THE COURT. 613 case, collaterally, except where there is collusion between the plaintiff and defendant, in fraud of a third person.^ The court will set aside an execution, issued after more than thirteen years from the date of the judgment, without a previous scire facias.^ Where the judgment has been attached by a creditor of the plaintiff, the court will stay proceed- ings, until the plaintiff pays the attaching-creditor or pushes his claim to a final determination.^ And where the defendant, subsequently to the judgment, has obtained a discharge in bankruptcy, an execution may be summarily set aside as to his personal property ;* but it is error to stay proceedings on an execution, because the defendant has made an assign- ment for benefit of creditors.' And where a joint judgment has been entered against two, apd subsequently opened as to one of the defendants, it is error, to permit execution to issue against the other defendant, until the issue as to the liability of the first has been disposed of.* § 1062. Where a court has jurisdiction to determine a motion and set aside an execution, its decision is final, and cannot be re-examined collat- erally ; the remedy is by writ of error or appeal, and if neither lies, the party is without remedy.^ A writ of error lies from an order staying an execution indefinitely, for this is the final adjudication of the party's right, and otherwise he would be deprived of his judgment, or the fruits of it, without remedy f but an order staying execution, subject to such further order of the court as the justice of the case may require, is not final, and is not the subject of a writ of error.' The refusal of the court to set aside an execution is error ;*" and this rule embraces a fi. fa. improvidently issued for costs not legally due, if that be apparent of record ;^' but such refusal is not the subject of review on writ of error, where there is nothing on the record to show irregularity.'^ When an execution, after having been executed, is reversed for irregularity, it is a matter of course, to award restitution of the money levied on the execu- tion ; and the liberality of courts is such, that when executions have been irregularly issued or executed, the court, on mere motion, will set aside the proceedings, and order the money levied to be restored to the party.*' § 1063. Belation and effect of the writ. At common law, the fieri facias had relation to its teste, and bound the defendant's goods from that time, so that if he had afterwards sold the goods, though hon& fide and for a valuable consideration, they were still liable to be taken 1 Stewart v. Stocker, 13 S. & R. Loomis v. Lane, 29 Penn. St. 242. 203. Pontius v. Nesbit, 40 Ibid. 309. 2 Comly V. Rissel, 1 Phila. 402. » Patterson v. Patterson, 27 Penn. ' Paxson V. Sanderson, 1 Phila. 177. St. 40. O'Hara v. Pennsylvania Rail- Daly V. Derringer, Ibid. 324. road Co., 2 Gr. 241. * Curtis V. Slossom, 6 Penn. St. 265. ' O'Hara v. Pennsylvania Railroad See Reeser v. Johnson. 76 Ibid. 313. Co., nt supra. * Neel V. Bank of Lewistown, 11 '" Cassel v. Duncan, 2 S. & R. 57. Penn. St. 17. But this is now provided " Barnet v. Ihrie, 1 Rawle 53. for bv act 17 February 1876, P. L. 4 ; '^ Lewis v. Amor, 3 Penn. St. 460. Purd. 1973. Neil ». Tate, 27 Ibid. 208. ^ Strutters v. Lloyd, 14 Penn. St. " Cassel v. Duncan, 2 S. & R. 58; 210. Yeates, J. ' Tassey ». Church, 6 W. & S. 465. 614 EXECUTION. in execution, into whose hands soever they came ; the inconvenience of this was remedied by the stat. 29 Car. II., c. 3, § 16, which provided that executions should thenceforth bind the property of the goods of the defendant only from the time that such writ should be delivered to the proper officer to be executed ; and the law is the same in this state.' The delivery to the sheriff may be effected by leaving the writ at his office, or the house where he usually transacts his business f but placing a fi. fa. in a pigeon-hole in the prothonotary's office, appropriated to the sheriff, is not a delivery to him, so as to give it priority over another writ, which first actually came into his hands.' In order to fix the time of delivery, both against vendees or assignees of the defendant, and against other executions, the sheriff or coroner is required,to indorse upon every writ of execution the day of the month and year, and the hour of the day on which it was received, for which he is not allowed a fee.^ The sheriff's indorsement is conclusive as to the time a fi. fa. came into his hands f but if he omit to indorse the time of receiving it, this does not affect its priority of lien ; the actual date may be shown by parol.' § 1064. After the delivery of the writ, if the defendant make an as- signment of his goods, the sheriff may take them in execution f so, he may levy on goods which had been, without authority, delivered by an agent of the defendant to a creditor such defendant, in payment of his debt.' And a sale, after delivery of the writ, to an innocent third party, by one who had previously purchased of the defendant in fraud of creditors, will not protect the goods from seizure under the writ.' But though the fi. fa. binds all the defendant's personal property in the bailiwick, from the time it is put in the sheriff's hands, yet, the object of this provision is to enable the creditor to frustrate fraudulent transfers by the debtor, and not to secure to the creditor a continuing lien :'" hence, if the writ lie dormant for a considerable time in the hands of the sheriff, without levy, a bond fide sale will be valid." And where the sheriff made no levy under a writ which had been delivered to him, a subsequent levy and sale by a constable, under another writ, was held to pass the property to the purchaser ;'^ where there is no levy, the lien expires on the return-day.'^ § 1065. So far as relates to the party himself, and to all others except purchasers for a valuable consideration, writs of execution bind the ' Act 16 June 1836, ? 39, P. L. 768 ; * Act 16 June 1836, § 40, P. L. T68 Purd. 643. In England, a sale of goods Purd. 643. by the defendant, in market overt, even * Person's Appeal. 78 Penn. St. 145. after the delivery of the writ, divests the * Hale's Appeal, 44 Penn. St. 438. lien; it is otherwise here, whore the ' Haggerty u. Wilber, 16 Johns. 287. law of market overt does not prevail. « Beals v. Allen, 18 Johns. 363. Hosacku.Weaver, 1 Yeates478. Hardy ' McCabe v. Snyder, 3 Phila. 192. V. Metzgar, 2 Ibid. 347. Easton u. '» Earl's Appeal, 13 Penn. St. 483. Worthington. 5 S. & R. 130. Lecky " Bhss o. Ball, 9 Johns. 132. V. McDermott, 8 Ibid. 500. King v. '^ Duncan v. McCumber, 2 W. & S. Richards, 6 Whart. 418. 264 ; s. c. 10 Watts 212. " Mifflin V. Will, 2 Yeates 177. " Commonwealth v. Magee, 8 Penn. » Person's Appeal, 78 Penn. St. 145. St. 240. EFFECT OF THE WRIT. 615 party's goods from the time of their teste} But trustees in a voluntar}' assignment, made by a debtor for the benefit of creditors, may be con- sidered as purchasers claiming under a deed made to secure the honest antecedent debt of fair creditors, and in such case, execution will not bind the goods from the date of the testeJ' Where the United States marshal has levied on the defendant's goods to an amount more than sufficient to pay the executions in his hands, an execution delivered to the sheriff will bind the surplus in the hands of the marshal.^ An execution issued by a justice of the peace does not bind the goods of the defendant until actual levy.* As to real estate, the question whether an execution is a lien, independent of the judgment on which it is founded, has been somewhat unsettled ; it is now held, that if the judgment be a lien, the execution thereon is not an independent lien, but if the judg- ment were no lien, the execution becomes a lien from the date of the levy.^ At common law, the lien of a testatum fi. fa. on lands began from the delivery of the writ to the sheriff;'' and under the act of 1836, it con- tinues for five years after it is docketed. A fi. fa. is a lien of stocks held by the defendant in his own name, from the time it comes into the sheriff's hands, as in case of any other personal property.' § 1066. Of the return. The sheriff is not, in strictness, bound to re- turn executed writs of execution ; he may, however, be ruled to do so, by the plaintiff or defendant, and if he neglect to make his return, before the expiration of the rule, the court, upon motion, will grant an attachment against him.^ The several courts of the commonwealth have power, by act of assembly, to issue attachments for enforcing the return of any writ for the payment of money received on any execution, and for the pro- duction of the body, after a return of cepi corpus, or, in default thereof, for the payment of the debt and costs ; and this power extends to for- mer sheriffs and coroners.' If the property in the goods be in dispute, the court, upon this or any other reasonable cause shown, will enlarge the time for making the return, until sufficient indemnity be given ;'° this indulgence will, however, be granted only in very special cases ; it will be generally extended, when the doubt arises upon a point of law, and not mere matter of fact." The sheriff ought not to wait, until he has been ruled to return the writ, for the plaintiff, without proceeding by attachment, has an election to commence an action on the case, in the first instance •^'^ but his omission to return an execution, until after the return-day, is not, of itself, such negligence as subjects him to an action." ' 1 Arch. Pr. 259. ' Commonwealth v. Ruske, 26 Pitts. ^ Lippincott v. Barker, 2 Binn. L. J. 121. 187 ^*^ 8 1 ^i-oh. Pr. 262. » Bayard v. Bayard, 3 Clark 261. » Act 16 June 1836, P8, P. L. 794; But see Hagan v. Lucas, 10 Pet. 400. Purd. 273. * Act 28 March 1820, ? 4 ; 7 Sm. L. " Keffer v. Britt ; Adams v. Hazlitt, 309 ; Purd. 266. infra, I 1088. 5 Packer's Appeal, 6 Penn. St. 277. " 1 Arch. Pr. 262. Davis «. Ehrman, 20 Ibid. 256. And '^ 2 Dunl. Pr. 775. Bee Stephens's Appeal, 38 Ibid. 9. " Commonwealth v. Magee, 8 Penn. « Cowden v. Brady, 8 S. & R. 505. St. 248. 616 EXECUTION. When the writ remains unreturned for years, the sheriff is presumed to have collected the money ; and he must rebut that presumption, by proof that he did not, and why.' But on a sale of real estate on execu- tion, the sheriff must return the writ.^ The return is made on the back of the writ, which is filed with the prothonotary, before or on the day when the rule to return it expires. § 1067. The court will sometimes enlarge the time for returning the writ, by granting a rule to stay proceedings, on the application of the sheriff, until indemnity has been furnished him by the plaintiff, when the goods are claimed as the property of a stranger to the execution ; this will be explained elsewhere.^ The return can be validly made only by the sheriff himself; by the stat. 12 Edw. II., c. 25, in force here, he is commanded to put his name to it, that the court may know whose it is ; therefore, a return by an under-sheriff is erroneous, though purporting to be in the sheriff's name ; still, it may be ratified by the sheriff, so as to charge his sureties, by delay to move to set it aside.^ Parol evidence is inadmissible, to show that the return of a sheriff, found in the o£B.ce, in the regular way, and purporting to have been made by him, was not in the sheriff's handwriting.' The proper and safe rule is, for the sheriff personally to sign returns ; this is his duty, and it is clearly his interest, as he is then obliged to supervise the acts of his subordinates ; but the return is formal, if in the name of the sheriff, and signed by his authorized deputy, whose acts, in such case, are his acts.* It is of no consequence, on whose information the sheriff relies for the truth of the return ; but it will not excuse him, in an action for a false return, that he was misled either by the mistake or misrepresentation of his deputy.^ § 1068. Amendtnent of return. Where an error or mistake is made by the sheriff, he should apply to the court for leave to amend his return, which privilege will not be granted, if intervening rights would thereby be prejudiced.^ The court can grant leave to the sheriff to amend, but ' Commonwealth v. McCoy, 8 Watts The depositions show a plain mistake 153. of the officer ; and we see no reason ^ Act 16 June 1836, J 94, P. L. 778 ; why he should not be permittedto Purd. 658. He need not, in his return, amend. While each party is left to set forth the title under which the de- pursue his remedies against the sheriff, fendant holds. Buckholder v. Sigler, the court will allow him to make such 7 W. & S. 154. ■ The want of a return a return as appears supported by the will not invalidate the purchaser's title, facts of the case. Though a levy was Gibson V. Winslow, 38 Penn. St. 49. made under the last writs, subjecttothe ' See infra, | 1088. first, it clearly appears, there was no ' Beale v. Commonwealth, 7 Watts lien of the first writs, and though the 186. sale was made under all the writs, it * Sample v. Coulson, 9 W. & S. 62. derived its force and effect from the ^ Emley v. Drum, 36 Penn. St. 123. last writs only. Rule absolute. Rudy V. Commonwealth, 35 Ibid. 166. Cadbury v. Duval, District Court, ' Mentz V. Hamman, 5 Whart. 153 ; Phila., 30 June 1849. Why leave to Rogers, J. sheriff to amend should not be with- * Keyser v. Sutton, District Court, drawn. Per curiam. Upon the 6th Phila., 6 Oct. 1849. Why sheriff should March 1848, the sheriff made a sale not have leave to amend. Per curiam, under a venditioni exponas to F. B. OF THE RETUEN. 617 cannot force him to do so ;^ but where real estate has been sold on exe- cution, the court may correct and amend a defective or formal return.^ No amendment should be allowed, except for reasons expressly stated and sworn to in the affidavit accompanying the application ; amend- ments in other particulars than those stated in the affidavit, on which the order to amend is made, are nullities as to other creditors, and are no evidence of the facts thus stated ; in contemplation of law, the amend- ment is made, when allowed, the affidavit being a sufficient material from which to reduce it to form, when necessary.' A sheriff out of office cannot amend his return, there being an action pending against him for a trespass committed under the writ.^ The court will not dictate to the officer what return he shall make to process in his hands ; he must make a return at his peril, and if false or insufficient, any person injured may have a legal remedy.^ § 1069. Effect of the return. The sheriff's return is, as between the parties, conclusive against him, so that he cannot contradict it,^ or avoid its legal effect, either directly or indirectly ; thus, where the sheriff had attached a levy to afi.fa., but had appropriated the proceeds of the sale to a prior execution against the same goods, to which a levy, although actually made, had not been attached, it was held, that he could not, in an action against him for misappropriating the proceeds of sale, be allowed to show that a levy had been actually made under the first exe- cution, by producing a paper, purporting to be a levy, in connection with proof that it was the levy made, although it was not attached to the execution.' A return of " money made" to a venditioni, discharges the debt, and fixes the sheriff for the money, in the same manner as such return to &fi.fa.f' the price is thenceforth a matter between the sheriff Seybert, which tie returned according- relieve the sheriff from liability on ac- ly, but that Mr. Seybert had failed to count thereof, but to make that which comply with the terms of said sale, and was true speak false, for the accommo- that the premises remained in his dation of a purchaser, who now sees hands unsold for want of buyers, that his bargain was a good one, would Upon the 19th May 1849, Mr. Seybert, not be, in our opinion, the exercise of through counsel, applied to the court a sound discretion. Rule absolute. and obtained leave for the sheriff to ^ Vastine v. Fury, 2 S. & R. 426. amend his return, the sheriff acquieso- Maris u. Schermerhorn, 3 Whart. 13. ing; it appears, that the purchaser, Sawyer u. Curtis, 2 Ash. 127. having at first declined, is now willing '' Act 21 April 1846, P. L. 430 ; Purd. to take the property. A motion has 659. nowbeenmade, in behalf of other judg- '' Lowry v. Coulter, 9 Penn. St. ment-creditors, to the court, to rescind 349. the leave thus given. The granting or ' McElrath v. Kintzing, 5 Penn. St. withholding leave to amend, is a matter 336. within the sound discretion of the ' Wortman v. Conyngham, Pet. C. C. court; in reference to the sheriff, it is 241. I exercised principally for his relief. * Paxton v. Steckel, 2 Penn. St^ We do not think this amendment 93. ought to have been granted, unless ' McClelland v. Slingluff, 7 "W. & S. under more special circumstances than 134. Kintzing v. McElrath, 5 Penn. have been shown. After the lapse of St. 467. more than a year, to amend a sheriff's ' Boas v. Dpdegrove, 5 Penn. St. return, not to correct an error or to 516. 618 EXECUTION. and the purchaser.^ But a general return of goods levied, whereby it does not clearly appear that they were insufficient to pay the debt and costs, does not discharge the defendant and make the sheriff liable for the whole debt f a return, however, of levied on certain specified articles, " together with the whole of the defendant's personal property," is pritnd facie evidence of a levy to the amount of the debt, and throws the bur- den of showing the nature and value of the goods upon the officer.' § 1070. The return is evidence in favor of the sheriff: thus, a return to a venditioni that he had sold the land to A., is prima, faeie evidence of the sale, &c., in an action by the sheriff against A., to recover the purchase-money f but the return is no evidence of a levy, in replevin by the sheriff for the goods.' And the return being always under the sheriff's own control, and always evidence for himself, should be con- strued rigorously against him ; hence, a written demand for the benefit of the exemption law, dated the day the fi. fa. came into his hands, and returned by him attached to the Ji. fa., without explanation, is, in a suit against him for disregarding the claim, evidence that he received the demand in due time.* § 1071. In an action between the parties to the writ, the return cannot be traversed f a party may make an averment consistent with the return, or explanatory of its legal bearing and effect, when the return is at large ; but he cannot aver a matter directly at variance with the facts stated in the return, contradictory to and falsifying it.* And the courts will not countenance the introduction of parol evidence to control a return, except in an action against the sheriff for misconduct.^ But when the return is obscure, it may be shown by parol evidence what property is embraced in the levy j^" and where it is ambiguous, parol proof of facts consistent with and not embraced in the return, may be heard in explanation, and to show the truth of the case." So, where the plaintiff is deprived of the fruit of his levy on goods, by the act of the law, not by anything he did or could have avoided, he cannot be deprived of his lien on the defendant's land, by the mere return of "levied ;" the return is open to explanation by evidence of subsequent circumstances, the proceeds of chattels being distributable according to priority of lien.^^ § 1072. The return cannot be attacked collaterally; if false, it can be impeached only in an action against the sheriff.^' Thus, where several 1 Hinds V. Scott, 11 Peun. St. 27; 2 Ash.- 127. Patton K.American Mu- Bell, J. tual Insurance Co., 1 Phila. 396. Hill ' Little V. Delancey, 5 Binn. 272. v. Robertson, 2 Pitts. 103. ' Bealeu. Commonwealth, 11 S. &R. * Knowles v. Lord, 4 AVhart. 504. 299. Farmers' and Drovers' Bank v. For- * Hyskill V. Givin, 7 S. & R. 369. dyce, 1 Penn. St. 454. Jordan e. Mins- Cash V. Tozer, 1 W. & S. 519. ter, 3 Clark 457. ' Snyder v. Beam, 1 Bro. 366. ° Mentz v. Hamman, 5 Whart. 155; ' Smith V. Emerson, 43 Penn. St. Rogers, J. 456. '0 Scott V. Sheakly, 3 "Watts 50. ' Wilson V. Hurst, Pet. C. C. 441. " Shoemaker v. Ballard, 15 Penn. Diller v. Roberts, 13 S. & R. 60. Flick St. 92. V. Troxsell, 7 W. & S. 65. Sample v. " Taylor's Appeal, 1 Penn. St. 392. Coulson, 9 Ibid. 62. Sawyer v. Curtis, " Mentz v. Hamman, ut supra. OF THE RETURN. 619 executions, at the suit of different plaintiffs, issued at different times, and the sheriff returned to the first writs that he had levied and sold, and to the others, that he had levied, subject to prior writs, the subse- quent execution-creditors will not be allowed to show, on the distribution, that the levies were not made, under the first writs, till after the return- day; the parties all claim through the sheriff, and cannot contest the truth of his return, in a controversy about the distribution of the pro- ceeds ; if the return be false, it may be made the foundation of a suit for damages.^ And, though it is true, that a return made to one writ is not conclusive upon parties to the other writs, yet, in this case, the party sought to contradict the return to his own writ, i. e., that the levy was made subject to prior writs ; and this he could not do.^ But a fraudulent return, which one execution-plaintiff has procured the sheriff' to make to the writ of another creditor, cannot be set up by such execution-plain- tiff, in an action against him by the sheriff on a bond to deliver the goods ; the fraud vitiates the return.^ And in an action against one who had guarantied the payment of the debt by the execution-defendant, a return of " debt and costs paid," made two years after the return-day of the execution, and a year after the commencement of the action, was held not to be conclusive.^ So, where the sheriff states facts unnecessa- rily (as, where he particularizes the day upon which the arrest was made), the party is not bound by it.^ § 1073. On a collateral issue between two creditors, to try the right to the proceeds of a sheriff's sale of personalty, the return is h\it jyrimd fade evidence.^ So, where the sheriff, under an execution against one partner, levied on certain property, and afterwards, under executions against all the partners, levied on the same property, subject to the former levy, and returned accordingly, such return is not conclusive that the property levied on was that of the individual partner ; this fact may be inquired into on the distribution.'' But where the sheriff had in his hands two executions, of different dates, and returned the later writ " levied, subject to a prior levy," and the former, " levied as per inven- tory, and sold for $508," this return was held conclusive as to the right of the former execution, and parol evidence was not admissible, to show that the return was false.' But it is not inconsistent with such return, to show a private arrangement between the first execution-creditor and the defendant, unknown to the sheriff, not to have a sale of the defendant's goods, and parol evidence of this may be given ;^ and proof of a levy is not inconsistent with a return of " stayed."'" > Savage v. Devereaux, 5 Phila. 420 ; ' Dolan v. Briggs, 4 Binn. 500. g. c. 49 Penn. St. 195, sub nom., Pax- ° Lowry v. Coulter, 9 Penn. St. eon's Appeal. 349. '' Ibid. Hill V. Grant, 49 Penn. St. ' Vandike's Appeal, 17 Penn. St. 200. 271. » Evans v. Matson, 51 Penn. St. * Flick v. Troxsell, 7 W. & S. 65. 366. " Ibid. . * Weidman v. Weitzel, 13 S. & R. " Farmers' and Drovers' Bank w. For- 9g_ dyce, 1 Penn. St. 454. 620 EXECUTION. § 1074. Void and voidable process, A distiuction has long existed between process which is absolutely null and void, and in an action of trespass affords no justification whatever to the party issuing it, and process which is voidable merely. Where the process is altogether irregular and defective, it is considered as null and void ; and if it be vacated or set aside by the court, the party who acted under it, becomes a trespasser from the beginning; though the officer may be justified by the command of the writ, not being bound to look into it. Even then, however, before the party can be sued in trespass, the process must first be set aside or vacated ; for, if it still subsist in full force and vigor, at the time of the action brought, the party may justify under it.' An execution, until quashed or reversed, is good, and cannot be questioned by a stranger to the writ, nor in any other case, collaterally, except where there is collusion between the plaintiff and defendant, in fraud of a third person.'' Where, however, the process is not totally defective and irregu- lar, but merely erroneous and liable to be reversed on error, it is not void, but voidable, and does not make the party issuing it a trespasser.' § 1075. The line of distinction has not been accurately drawn, as to all the cases in which the process is merely erroneous and those where it is an absolute nullity ; and perhaps each case must depend in some measure upon its own circumstances.* In general, it may be said, that an execu- tion is void, when the court whence it issued had no jurisdiction f or where it is issued against the positive command of the law, as a ea. sa. against a defendant who has estate sufiicient f or is issued against a party not liable ;^ or is such as the judgment does not warrant, as a ca. sa. against an administrator -^ or where there is no judgment at all, or the judgment has since been vacated for irregularity.^ Executions are merely voidable, which are defective in form, as where the recitals in the writ are incorrect,'" or where there is an omission in an alias to recite the proceedings under the former writ." If the writ issue for a larger amount than is due, it is not void, but the court will rectify the error on the distribution;'^ so, an execution issued before the expiration of the stay,- is not void, though it is irregular, and will be set aside on motion;'' so, an execution issued after the expiration of a year and a day, without a sdre fadas, is only voidable ;'* so, if issued after the defendant's death, Day V. Sharp, 4 Whart. 341 ; Ser- ' See Day v. Sharp, 4 Whart. 341. it, J. ■ * Barker v. Braham. 3 Wils. 368. Stewart v. Stooker, 13 S. & R. 204. » Philips v. Biron, 1 Str. 509. Berry ' Day V. Sharp, ut supra. v. Hamill, 12 S. & R. 212, and cases * Ibid. there cited. Wilson v. McCuUough, 19 * See Keeler v. Neal, 2 Watts 426. Penn. St. 83. Friok V. Kitchen, 4 W. & S. 31. Hal- '" Keeler v. Neal, 2 Watts 426. lowell V. Williams, 4 Penn. St 339. " Coleman v. Mansfield, 1 Miles 56. Commonwealth v. Magee, 8 Ibid. 246. " Ibid. « Allison V. Rheam, 3 S. & R. 141. " Stewart v. Stooker, 13 S. & R. Berry v. Hamill, 12 Ibid. 212.- But 203. under the act of 1836, a ca. sa. may " Patrick v. Johnson, 3 Lev. 404. issue in such case, though it cannot be Jackson v. Bartlett, 8 Johns. 361. And executed. See supra, § 972. see Speer v. Sample, 4 Watts 373. VOID AND VOIDABLE PROCESS. 621 without substituting his personal representative.' And where, after the death of the plaintiff, an execution issued in the name of his executors, without a suggestion of the death and substitution of the executors, the supreme court remitted the record, with directions to permit plaintiffs to make the suggestion and substitution nunc pro tunc? And, prior to the act of 1834, an execution issued after the defendant's death against land bound by the judgment, without notice to the heirs, was held not to be void, but merely voidable f though, since the passage of that act, such execution would probably be held void, as being against the positive command of the law. Writs which are erroneous are not void, but void- able ;* as an alias issued whilst the former writ is outstanding,'' but only the defendant can take advantage of such irregularity.^ § 1076. In respect to the effect of the writ, there is a difference be- tween writs which are erroneous, and those which are issued irregularly and by the fault of the party.' As we have just seen, the plaintiff is liable in trespass for issuing an irregular and void writ ; but not if the writ be merely erroneous ; and' at common law, process void for want of jurisdiction in the court, would render the officer who executed it liable in trespass f but this is remedied by statute, as to constables.^ So, a sale under a void writ passes no title to the land sold ; though it is otherwise, if the writ were merely voidable ;'" again, a void writ is incurably defective, but if it be merely voidable, the defect may be cured by acts of the defendant, which estop him from contesting its validity,'' and sometimes by his delay in raising the question. The proper mode of contesting a voidable writ, is by applying to the court to set it aside. § 1077. Lost executions. Where, after levy, but before the sale, the fi. fa. was destroyed by accident, the court granted permission to make out a new fi. fa., to be delivered to the sheriff.'^ So, where a testa- tum fi. fa. was executed by the sheriff of the county to which it was directed, who indorsed his return on it, and placed it in the post-office, addressed to the prothonotary of the court whence it issued, but it was not received, the court ordered a duplicate writ to isspe nunc pro tunc}^ Where the writ is lost, after a sale of. land under it, and the acknow- ledgment of the sheriff's deed, the recitals in the deed, duly attested by the prothonotary, will be evidence of the facts therein set forth, in the same manner as the original records would be, if produced.'* And where the vend. exp. has been lost, but there is evidence from the docket- ' Day V. Sharp, 4 "Whart. 340. monwealth v. Magee, 8 Perm. St. 2 Darlineton v. Speakman, 9 "W. & S. 247. 182. ' Act 21 March 1772, J 6 ; 1 Sm. L. 3 Speer v. Sample, 3 Watts 368. 36.'5 ; Purd. 270. * Allison V. Rheam, 3 S. & R. 141. '" Speer v. Sample, 4 Watts 368. * Coleman v. Mansfield, 1 Miles 56. " Coleman v. Mansfield, 1 Miles 59. * Potts's Appeal, 20 Penn. St. 253. '^ White v. Lovejoy, 3 Johns. 448. Philadelphia Loan Co. v. Amies, 2 See Hope Building Association v. Dun- Miles 292. agan, 5 W. N. C. 148. ' Allison V. Rheam, 3 S. & R. 140. " Clark v. Field, 1 Miles 244. « See Keeler v. Neal, 2 Watts 426. '* Act 16 June 1836, J 95, P. L. 778 ; Friok V. Kitchen, 4 W. & S. 31. Com- Purd. 658. 622 EXECUTION. entries and aliunde, that several lots, as numbered on a plan, were sold under it, the deed may be used as evidence to identify the lots sold to particular individuals.* It is settled, that docket-entries are admissible in evidence where the writs are lost.^ §1078. Reversal of judginent. By the 9th section of the act of 1705,' the purchaser is protected, in the event of a reversal of the judg- ment under which the sale took place, even where the judgment was totally void f but not where the sale was made under void process.* This section is agreeable to the common law f and it makes no diifer- ence whether the reversal is for matter of fact or of law ;' nor whether the plaintiff or a stranger is the purchaser.* In case of reversal, the act provides that none of the lands, tenements or hereditaments so sold shall be restored, nor the sale or delivery thereof avoided, but restitution shall be made only of the money or price for which the same shall be sold. So, where judgment is reversed, the court will award restitution of moneys, which have been made on the execution against personal pro- perty.' VI. Powers and duties of tlie oflicer. § 1079. Of tlie proper oflicer. The proper officer to execute the writ, is the sheriS" of the county in which it issues.*" If the sheriff be himself a party, he cannot execute it ;** and in actions against the sheriff's sureties, for damages, on account of his official acts, or in any other actions, wherein any one of them happens to be defendant, the pro- cess ought not to be intrusted to the sheriff;*^ and so, if there be any just cause of objection to him, from his situation with regard to the defend- ant. In such cases, as well as when the office of sheriff is vacant, the writ may, upon suggestion to the prothonotary, be directed to the coro- ner, who, in such case, has the powers, and is subjected to the liabilities, of the sheriff.*" Although no just cause exist for passing by the sheriff, the writ is not void, and the coroner, at his peril, must execute all pro- cess directed to him by a court having jurisdiction ; it is not for him to object, that the direction is erroneous.** If there be no coroner in com- mission, any constable of the county may serve the process.*' The con- stable is the ministerial officer of aldermen's and justices' courts, and * Woods V. Halsey, 9 Penn. St. 144. *" Though the sheriff be imprisoned, ^ Buchanan u. Moore, IDS. &R. 275. he may still act by deputy. Common- » ] Sm. L. 61 ; Purd. 651. wealth v. Shaver, 3 W. & S. 344. He * Feger v. Kroh, 6 Watts 296. And is the agent of the law, not of the see Evans v. Mylert, 19 Penn. St. plaintiff. Lytle v. Mehaffy, 8 Watts 410. 269. * Burd u. Dansdale, 2 Binn. 80. " Com. Dig. "Viscount," E. 1. Caldwell «. Walters, 18 Penn. St. 84. '^ Dalt. 104. Beale «. Commonwealth, « Heistner v. Fortner, 2 Binn. 47. 11 S. & R. 304. ' Warder v. Tainter, 4 Watts 286. *' 1 Bl. Com. 349. Act 15 April « Arnold v. Gorr, 1 Rawle 223. But 1834, \ 75, P. L. 551 ;, Purd. 1308. the plaintiff in a fraudulent judgment ** Beale v. Commonwealth, xd supra. cannot acquire title under it. Martin '* Act 22 April 1850, § 19, P. L. 553; :;. Gernandt, 19 Penn. St. 129. Purd. 269. But quaere whether this ex- ' Williams v. Coward, 1 Gr. 21. tends to executions? OF THE PEOPEE OFFICER. 623 the marshal, of the federal courts; their powers and duties being similai! to those of the sherifl'. Where the marshal or his deputy is a party, the writ may be directed to and executed by such disinterested person as the court or any judge thereof may appoint;' and, in case of the death of the marshal, his deputy shall continue in office, unless specially removed, and execute writs in the name of the deceased marshal, until a successor is appointed.^ § 1080. If the sheriff's term expire, after the writ is placed in his hands, and before it is executed, he must turn it over to his successor : this need not be done in writing ; the duties of the old sheriff cease by mere tradition of the writs.^ But, after a levy under a.fi.fa., the sheriff must go on to sell the goods, notwithstanding the expiration of his term of office ;■* and, in case of real estate, it seems, that, if the sheriff go out of office, after executing a deed, he may acknowledge it.^ Where the sheriff dies, after depositing in bank, to his account as sheriff, the money made on an execution, his successor in office is the proper party to demand and receive the money from the bank ; and the proper course is, to rule him to pay it into court or to the plaintiff; outside parties, who are not, by legal process, official position, or otherwise, in court and subject to its jurisdiction, are to be acted upon only by the ordinary pro- cess of law ; the bank, in such case, is such an outside party, and a rule upon it to pay the money into court, is null and void, for want of jurisdiction, and might be restrained by injunction, or reversed upon appeal, or disregarded as incapable of execution.^ And, it would seem, that an officer whose official term has expired, is equally beyond the summary jurisdiction of the court f but an exception to this principle, is created by the 28th section of the act of 16th June 1836, which gives to the courts power to make rules on sheriffs and coroners, for the return of all process in their hands, and for the payment of money, or delivery of any article of value in their possession, according to their respective duties, and extends this power to include former sheriffs and coroners, if application be made for the purpose, within two years after the ter- mination of their offices, respectively.' § 1081. Distringas. When a sheriff goes out of office, after returning that he has levied, but that tha goods remain in his hands, for want of buyers, instead of suing out a venditioni exponas, the plaintiff may have a distringas nuper viee-comitem, directed to the present sheriff, commanding 1 Rev. St. § 922. duty of the latter, to receive and exe- 2 Ibid. I 789. cute the same. » Leshey v. Gardner, 3 W. & S. * Woods v. Lane, 2 S. & E. 55. 31g_ Adams v. Thomas, 6 Binn. 254. Stan- * Span"' V. Commonwealth, 12 Penn. ley v. , Dist. Court, Phila., Nov. St. 360 ; Bell, J. The act of 18 March 1826. MS. 1875, P. L. 27, Purd. 2077, provides * Allegheny Bank's Appeal, 48 that out-going sheriffs who are paid by Penn. St. 328. salary (as in Philadelphia) shall hand ' See Aurentz v. Porter, 48 Penn. St. over to their successors in office, all un- 335. finished and unexecuted writs and pro- * P. L. 794 j Purd. 273. cess whatsoever: and it shall be the 624 • EXECUTION. him to distrain the late sheriff, to sell, the goods.' The former sheriff must thereupon sell the goods, aud pay over the money, otherwise, he will forfeit issues to the amount of the debt.^ On an alias distringas against the former sheriff, for not selling goods on a venditioni exponas, the court ordered the issues to be increased to the amount of the debt, and costs subsequently incurred.^ A distringas, directed to the coroner, will lie against a sheriff whilst in office, to compel a sale of goods levied on ; but where the goods levied on had been taken out of the hands of the sheriff, by virtue of a replevin, the court, in consideration of the circumstances, quashed the distringas.* The court out of which any writ of distringas vice-comitem, or distringas nuper vice-eomitem, or other writ of distringas proceeds, may, by a rule for that purpose made, order and direct that the issues levied, from time to time, shall be sold, and the proceeds applied in the first instance, to pay the plaintiff's costs, to be allowed by the court, at their discretion, and the remainder of the proceeds to be paid into court, to be retained until the defendant appears, or the other pur- pose of the writ is answered, or to be rendered to the plaintiff for his debt, damages and costs when ascertained ; provided that where the purpose of the writ is answered, the issues shall be returned, or if sold, what remains of the proceeds shall be returned to the party distrained upon.'' § 1082. Authority. The authority of the sheriff is, as a general rule, confined to his own county, and he cannot go beyond its boundaries for the purpose of executing a writ of execution.^ An exception to this rule is allowed, ex necessitate, in the case of execution against a tract of laud which lies in more than one county, as will be hereafter explained.' And in the case of an escape, he may, on fresh pursuit, retake the prisoner in another county.^ This limitation of the sheriff's authority to his own bailiwick is, iu some cases, the occasion of great inconven- iences, which may, however, generally be overcome by means of testatum writs of execution, hereafter to be explained.^ But, under a testatum capias, he cannot .carry the defendant out of his bailiwick to the county whence the writ issued.'" The authority of the oflicer within his baili- wick is limited as to writs of execution ; he may enter the house of the defendant, when the outer door is open, in order to take the goods of the defendant ; but he cannot break open the door of a dwelling-house ; it is even said, that he cannot open a latch." But the privilege of a man's house extends only to the owner, it will not protect the house ' Tidd 1021. 1 Arch. Pr. 271. For ity to sell lan'ds lying in the new one, form of writ of distringas, see 2 Saund. though the judgment be alien thereon ; 471. the plaintiff must take a testatum to ' Clerk V. Withers, 6 Mod. 295; the sheriff of the new county. Kings. Holt, C. J. Cartee, 1 Penn. St. ] 47. Otherwise, if ' 4 B. & Ad. 462. For form of ven- there be a saving of pending suits, ditioni exponas, see 2 Saurid. 47 m. Ulshafer v. Stewart, 71 Ibid. 170. * Zane v. Cowperthwaite, 1 Dall. ' See infra, I 1433. 312. 8 Avery v. Seely, S W. & S 497. 5 Act 28 March 1803, § 8 ; /i Sm. L. » See infra, ? 1428. 49; Purd. 1307. " Avery v. Seely, ut supra. ^ After the division of a county, the " Tidd 1012. People v. Hubbard, 24 sheriff of the old county has no author- Wend, 369. Curtis v. Hubbard, 1 Hill AUTHORITY OF SHERIFF. 625 of a third person iu which the goods of the defendant are ; and in such case, if the owner of tlie house refuse to deliver the defendant's goods, upon request of the sheriff, he may break open the house ; and the privi- lege only applies to dwelling-houses, so that a barn or storehouse of the defendant may be broken open.' When the officer is once inside the house, he may break open inner doors or trunks, in order to come at the goods, and this, even without previously demanding entrance.^ A levy, like a distress, may be made through an open window.^ Under a ji. fa. against the goods of an intestate, the officer may enter the house of the administrator, in order to search for such goods ;* but should he then proceed to levy on the goods of the administrator, from whom nothing is due, this will render him a trespasser ah initio? The extent of the sheriff's authority, under writs of execution, will be considered more in detail, when we come to treat of the different writs separately. § 1083. A return that the property was struck down to A., for B., creates no liability on which the sheriff can maintain an action for the purchase-money against B., and the refusal of the court to strike off the return, is, at most, no more than an affirmance of the legal liability of A.' If the sheriff sell stock on execution, he is not bound to transfer it on the books of the company ; the record is sufficient evidence of the title of his vendee.' A sheriff who has legally levied on property bound by a lien, has a right to discharge it, in order to get possession ; for his writ gives him every implied power which may be necessary to the execution of it.^ A sheriff's officer has no right, when executing a writ of habere facias possessionem, to qualify the legal effect of his act, by any declaration he may make to the parties.' § 1084. Liability. The sheriff is liable for neglect and misconduct in the execution of the writ, to the party injured thereby, whether plain- tiff, defendant, or a stranger to the suit. In this state, he is answer- able, for all civil purposes, for the conduct of his deputy, whether he recognise and adopt his acts or not;'" and in an action against the sheriff, for the misconduct of his officer, in the execution of a writ, it is not necessary to show a particular warrant to the officer ; proof of gen- eral privity is sufficient ;'' and exemplary damages may be given against the sheriff, for the misconduct of his deputy.'^ So, he is answerable for the conduct of his deputy, in taking the goods of a stranger, although the deputation was a special one, to execute the fi.fa., at the risk of the 336 ; 8. c. 4 Ibid. 437. Boggs v. Van- ' Sewall v. Lancaster Bank, 17 S. & dyke, 3 Harrington 288. But see Ryan R. 285. V. Shilock, 7 Exch. 72. ' MeMiohael v. Mason, 13 Penn. St. '' Tidd 1012. Haggerty v. Wilber, 215. 16 Johns. 287. ' Wengert v. Zimmerman, 33 Penn. 2 Ibid. St. 508. ' 1 Roll. Abr. 671. See Eldridge v. " Flazard v. Israel, 1 Binn. 240. Staoey, 15 C. B. (N. S.) 458. Clute v. Goodell, 2 McLean 193. Law- * Tidd 1011. Cooke v. Bit, 5 Taunt, renoe v. Sherman, Ibid. 488. 765. " Gregory v. Cotterell, 5 E. & B. » Hazard v. Israel, 1 Binn. 240. 571. « Lelar v. Holmes, 18 Penn. St. 281. '^ Hazard v. Israel, ut supra. VOL. I. — 40 626 EXECUTION. plaintiff in the writ.^ And he is liable for the penalty, for the extortion of his deputy -^ but not for the act of his deputy in serving a distress- warrant ; in such case, the latter acts as the landlord's bailiff.^ § 1085. The act of 1834 provides, that every sheriff, before he shall be commissioned or execute any of the duties of his office, shall give a recognisance and bond to the commonwealth, in a sum fixed by law, conditioned for the faithful performance of the trusts and duties of his office.* The coroner is required, by the same act, to give a bond and recognisance in one-fourth the amount required from the sheriff of the county. It appears to have been the intention of the legislature, to give the community security for redress against the sheriff, in all cases of injury received by his official misconduct.' The recoguisance binds the estate of the obligors, as effectually as a judgment;^ its lien was for- merly unlimited, both in duration and extent ;' but it now expires, after ten years from the date of the recognisance,* except in Philadelphia, where the limitation is five years.^ The mode of proceeding against the sheriff and his sureties, upon their official bond and recognisance, will be explained hereafter. § 1086. Liability to plaintiff. The sheriff is liable to the plaintiff for not executing a fi. fa., though the latter has taken a collateral, having time to run ;'" but not, if the writ has been stayed by order of a judge ; and it is no part of his duty to notify the plaintiff of the receipt of such order .^^ If the sheriff refuse to levy on the defendant's goods, an action may be supported against him on his official bond, before the return of the writ;^^ or, if, after such refusal to levy, he return "nulla bona," he is liable in an action for false return, for nominal damages at least, and beyond that, for all damages actually suffered by the plaintiff in the execution, by reason of his refusal ; the measure of damages is, however, not the amount of the execution ; for there may have been other previous executions in the sheriff's hands, which would have taken all the proceeds, even if the levy had been made according to the instructions."^ And if the delay be occasioned by the default or interfer- 1 Wilbur u. Strickland, 1 Rawle 458. W. 286. Pond V. Leman, 45 Barb. 152. ^ Act 3 April 1860, P. L. 650 ; ^ Overholtzer v. McMichael, 10 Penn. Purd. 1307. St. 189. Mclntyre v. Trumbull, 7 ' Act 13 April 1868, P. L. 948. Johns. 35. ^^ Bank of Pennsylvania v. Potiua, s Moulton V. Norton, 5 Barb. 286. 10 Watts 148. * Act 15 April 1834, §62, P. L. " Commonwealth u. Magee, 8 Penn. 547; Purd. 1304. In Philadelphia, the St. 240. And see Friek v. Kitchen, amount of the sheriff's bond and recog- 4 W. & S. 30. nisance is fixed by law at the sum of '^ Shannon v. Commonwealth, 8 S. & $80,000. In the other counties of R. 450. The measure of damages is the commonwealth, the amount is the value of the goods, if this do not regulated by the act 21 April 1876, equal the amount of the debt. Corson P.'L. 46 ; Purd. 2077. v. Hunt, 14 Penn. St. 510. 5 Act of 1834, 167. Carmack v. " Forsyth u. Dickson, IGr. 26. Ham- Commonwealth, 5 Binn. 189. ner v. Griffith, Ibid. 193. Common « Act of 1834, ^4. wealth v. Contner, 18 Penn. St. 439 ' Snyder v. Commonwealth, 3 P. & s. c. 21 Ibid. 266. LIABILITY OF THE SHERIFF. 627 ence of the plaintiff, and the injury is not solely chargeable on the sheriff, the damages may be nominal ;^ but if the plaintiff has not been actually aggrieved, he is not entitled to even nominal damages.^ So, where a writ is irregular — as, where a justice issues an execution on a judgment of another justice, who was temporarily absent — the constable is not bound to execute it, and is not liable in damages for a refusal to do so.' Where an execution is postponed, because the goods levied on were not in the power or view of the sheriff, but were several miles distant, the sheriff is liable to the execution-creditor for the amount realized by the preferred execution, which was properly levied.* The issue of an alias, does not release the sheriff from liability, incurred at the return of the former execution ; nor does the subsequent granting of a rule to show cause why the judgment should not be opened.' § 1087. Indemnity. The sheriff, under the writ of fi. fa., is bound, at his peril, to take only the goods of the defendant ; he is, therefore, a trespasser, if he take the goods of a third person, though the plaintiff inform him they are the defendant's property.^ On the other baud, if he refuse to levy, and return the writ nulla bona, he is liable to the plain- tiff.' In such case, the sheriff may, for his own protection, either demand indemnity from the plaintiff, and apply to the court for a rule, staying proceedings, and enlarging the time for him to make his return, until indemnity be given ; or, if he has actually levied on the goods, before the claim was made, he may take out a rule, under the sheriff's interpleader act, and require the claimant to establish his alleged title before a jury. But it is his duty, on being indemnified by the plaintiff, to sell the goods levied on, or, if they be claimed by others, to apply for an interpleader ; it is irregular and unwarrantable, to return that the property was claimed by others, who had given bond.* § 1088. The sheriff has, at common law, a right to indemnity before seizing goods on a fieri facias, in which the property of the defendant is disputed ; and a refusal to indemnify, in a case where it might reasona- bly be demanded by the sheriff, would be a justification in an action for a false return ;' and this right to indemnity applies to seizures under a foreign attachment or attachment-execution ;'" but not to a levy on real estate." The proper practice, when indemnity is necessary, is, for the • Dorrance «. Commonwealth, 13 St. 510. He has a right to require Penn. St. 160. that the sureties in a bond of indem- ' Commonwealth».Contner,18Penn. nity be residents of his county. Com- St.439. Levyw.IIale.SC.B. (N.S.)881. monwealth v. Vaodyke, 57 Ibid. 34. ' Eberle v. Medara, 2 Phila. 284. "' Shriver v. Harbaugh, 37 Penn. St. ' Linton v. Commonwealth, 46 Penn. 401. S^ 294. " Meyer v. Riot, Dist. Court, Phila., ^ Myers v. Commonwealth, 2 W. & 6 March 1848. Motion by sheriff for S. 60. Evans v. Boggs, Ibid. 229. rule to stay proceedings until indem- « 2 Bac. Abr. 715. Farr v. Newman, nity. Per curiam. This is a vend. 4 T. R. 633 ■ Grose, J. exp. levied upon real estate ; and an ' Nagle ».' Stroh, 4 Watts 125. adverse claimant, and, it is said, pos- 8 Connelly y.Walker, 43 Penn.St. 449. sessor of the premises levied on, has » See Spaingler v. Commonwealth, 16 given the sheriff notice that he will S. & R. 68. Corson v. Hunt, 14 Penn. hold him responsible for damages in 628 EXECUTION. sheriff to take a rule to stay proceedings, uutil indemnity be given ;^ and on the suggestion of a reasonable doubt, the court will always enlarge levying upon, advertising and selling his property. The sheriff, hovrever, does not take possession of real estate, as he does of goods and chattels, and deliver possession to the purchaser ; all he does is, to sell the right, title and interest of defendant. The practice of indemnifying the sheriff has never been extended to such a case, and we will not make the first precedent. Mo- tion refused. ' Watson on Sheriffs 137, 141. Kef- fer V. Britt, Dist. Court, Phila., 19 Feb. 1848. Why the time of return- ing the writ should not be enlarged. Per curiam. In this case, on the hear- ing, the rule was opposed on the ground of laches in the sheriff. The writ was returnable to the first Monday of No- vember ; the notice of an adverse claim was made to the sheriff, 27th Oc- tober 1847 ; a rule by the plaintiff on the sheriff to return his writ was taken 27th January, and this rule by the sheriff, on the following day, 28th Jan- uary. This would present a case of laches on the part of the sheriff, upon which the court would refuse to inter- fere for his relief, by enlarging the time for his return ; it is the duty of the sheriff, where an adverse claim is made to personal property, promptly to give notice to the plaintiff's attorney of the fact. Since the hearing, the sheriff has handed to the court the affidavit of Samuel Halsell, to prove the fact of im- mediate notice ; as that is an ex parte affidavit, we cannot act upon it; we will enlarge this rule until Saturday next, for depositions on this point. As to the objection that the goods levied on were claimed under a bill of sale, un- accompanied by possession, which is a fraud in law, we are in possession of no facts. It is enough, that there is a claim presented to the sheriff, supported by affidavit, ''of that kind which would reasonably raise a doubt or apprehen- sion as to the title, or create a pause in the mind of a constant man." Spangler v. Commonwealth, 16 S. & R. 71. And the plaintiff must make out a very strong case, to justify him in re- quiring- the sheriff to go on, without an indemnity. Rule enlarged until Satur- day, Feb. 26th. Adams v. Hazlitt, District Court, Phila., 26 Feb. 1848. Why the time for return of the writ of fi. fa. should not be enlarged. Per curiam. In this case, the writ issued 18th January ; the adverse claim was made 21st Jan- uary ; a bond of indemnity was given and accepted by the sheriff on 31st Jan- uary : and the goods levied on wore ad- vertised to be sold on the 9th February. The surety in the bond of indemnity, before that time, made a general as- signment for the benefit of his creditors, and it is not pretended here, that the indemnity is sufficient ; but it is con- tended by the plaintiff, that the sheriff having once accepted the indemnity as good, it is too late for him, afterwards, to refuse to proceed ; he took the risk when he accepted the indemnity. We admit, that this is too harsh a doctrine to apply to the case of the sheriff ; he is obliged to incur great responsibilities, at best, and we think, when he discovers that insufficient sureties have been im- posed upon him, he may, at any time before the sale of the goods, decline proceeding further, until the indemnity has been made good. Another ground of objection to the making this rule ab- solute is, that, it is said, parts of the goods levied on are claimed adversely. As long, however, as the plaintiff re- fuses to release the goods claimed from the operation of the levy, the sheriff is entitled to have the indulgence here asked for ; if he sold the part unclaimed and returned no more, the plaintiff would have his action against him. We repeat what we have already had occasion to say in more than one case, lately, that a claim supported by affi- davit is primft facie sufficient ground for the sheriff to pause and demand indemnity ; and that it must be a strong case of want of title in the claimant, and inability in the plaintiff to give indemnity, that would justify the court in refusing to enlarge the time for making the sheriff's return. If the plaintiff is a resident here, and a man of substance or character, the more groundless the claim, the easier will it be to procure indemnity ; and if there is any risk at all, there is no reason, when he is liable, why he should throw it on the shoulders of the sheriff. Rule absolute. INDEMNITY. 629 the time for the sheriff to make his return, until the right be tried between the contending parties, or until one of them has given a suffi- cient indemnity.^ An inquest of office cannot be held here, as in Eng- land f nor will the court try the property in goods levied on, for this would deprive the party of his right to a jury trial.^ It has been sug- gested, that when the claim is to a part only of the goods, the sheriff should make a special return that he has levied on certain goods, some of which he has sold, and has the money, in obedience to the writ ; and that, as to the residue, there had been a claim of property interposed by a third person ; if, after such a return, a vend. exp. were to issue, without reasonable indemnity having been first tendered to the sheriff, the court would set it aside/ § 1089. Although the plaintiff has promised to furnish indemnity before the sale, yet the sheriff must demand it, or the want of it will not excuse him, if the goods turn out to be the property of the defendant.* There is no implied promise of indemnity to the sheriff, on the part of an execution-creditor, where, through accident or mistake, but not under the special instructions of the plaintiff, the goods of a stranger have been levied on;" but an indorsement, "levy at the risk of the plaintiff," is, perhaps, an agreement to indemnify the sheriff.'^ The execution of a fi.fa. is one act, and, though the indemnity bond be given, after the levy, but before the sale, yet the execution is made after giving the bond.^ When the sheriff has received, or is tendered, an indemnity, it is his duty to proceed, on pain of being fixed or attached for the debt f thus, where the liability of goods levied on by a constable was disputed, and the plaintiff, on the day of sale, tendered a bond of indemnity, which the constable rejected as insufficient, and the next day, the plaintiff tendered adequate security, but the constable refused to proceed, unless certain designated security was given, it was held, that the officer should have proceeded, and was liable for a false return.^" Where a stranger to the writ claims a partnership interest in the goods, and the plaintiff refuses, upon request made, to indemnify the sheriff, he may either return the writ " nulla bona," or refuse to sell anything but the interest of the defendant in the goods." ' Nagle V. Stroh, 4 Watts 125. must apply for an interpleader. ^ Spangler v. Commonwealth, 16 S. & ^ Watmough v. Francis, 7 Penn. St. R. 68. See in/ra, 2 1135, as to the pro- 217. Corson v. Hunt, 14 Ibid. 510. ceedings on a sheriff's interpleader, Welsh v. Bell, 32 Ibid. 12. But he is ' Young V. Taylor, 2 Binn. 228. not absolutely fixed ; in an action * Hunt V. Hunt, 2 Penn. L. J. 297. against him for a false return, he may ^ Miller v. Commonwealth, 5 Penn. show that the defendant in the execu- St. 294. tion was not the owner of the goods. * Fitler v. Fossard, 7 Penn. St. 540. Commonwealth v. Watmough, 6 Whart. ' Keyser's Appeal, 13 Penn. St. 409; 117. Commonwealth v. Vandyke, 57 Rogers, J. Penn. St. 34. Lummis v. Kasson, * Watmough v. Francis, 7 Penn. St. 43 Barb. 373. But he cannot show 206. But a sheriff who has begun to that the property was exempt by law. execute his writ, and has incurred an Baker v. Brintnall, 52 Ibid. 188. obligation to the plaintiff, cannot sub- " Meeker v. Sutton, 2 Phila. 288. sequently demand an indemnity. Com- " Patterson v. Anderson, 40 Penn. monwealth v. Lelar, 1 Phila. 173. He St. 359. 630 EXECUTION. § 1090. Where judgment in trespass against the plaintiff in the writ and the officer, was obtained by a stranger, claiming property in the goods levied on, it was held, that the recovery against the plaintiff and the officer was in the character of joint trespassers, and the payment by the plaintiff of a portion of this judgment, greater in amount than the penalty of the bond of indemnity, previously given by him to the officer, was not a performance of the condition of the bond, but was merely a payment to the stranger for the trespass committed on his property, and, therefore, the officer, having paid a portion of the judgment in trespass, less in amount than the penalty of the bond of indemnity, was entitled to recover on the bond to the amount of his loss.^ . Where the plaintiff in a second execution indemnified the sheriff, who thereupon proceeded to sell the goods, the plaintiff was held liable on his bond of indemnity, although the whole of the proceeds, being less than the amount of the first writ, were paid to the plaintiff in the first writ.^ And where, in trespass against the sheriff, the execution-plaintiff, who had given a bond of indemnity, defended the suit, but, failing therein, compromised for a certain amount, part of which he paid, and part was collected of the sheriff, and the latter then sued each of the parties on the bond, which was joint and several, the condition of the bond to save the sheriff harmless was broken, when judgment was recovered against him, and he could recover as damages the amount he was obliged to pay, through failure of the sureties to comply with such condition ; and the record of the suit against the sheriff was held admissible in evidence for him, in this action, to show the occurrence of the loss and damage, though the surety-defendant was not a party to the action of trespass ; but such record is not conclusive evidence of the amount of the damage, for that may have been increased by the misconduct of the sheriff.^ § 1091. AJtandomnent of levy. The sheriff is liable to the plaintiff, if, after levying on the defendant's goods, he illegally withdraw from and surrender the possession and make return to that effect ;* or if he suffer the goods levied on to be eloigned.' The measure of damages seems to be the amount indorsed on the execution, unless the property levied on was worth less, or there were other liens upon it prior to the plaintiff — ^in which case, the plaintiff can recover only the fair value of the goods levied on, above the amount of such liens.* The value of the goods is not the price at which they afterwards sold, nor that which the plaintiff would have been willing to give, but what they would have brought at a fair bond fide sale, without puffing.' ^ Findlay v. Hutzell, 29 Penn. St. fendant. Lummis v. Kasson, 43 Barb. 337. 373. ' Watmough v. Francis, 7 Penn. St. ^ Mitchell v. Commonwealth, 37 207. Penn. St. 187. ' Huzzard v. Nagle, 40 Penn. St. * Commonwealth v. Contner, 18 178. Penn. St. 439. * Commonwealth v. Contner, 18 ' Ibid. But a return of levied on Penn. St. 439. But, in an action for a certain specified articles, "together false return, he may show that the with all the defendant's personal pro- goods were not the property of the de- perty," is prima facie evidence of a LIABILITY OF THE SHERIFF. 631 § 1092. Refusal to sell. Where the sheriff has levied upon goods and refuses to sell, the plaintiff is entitled to recover the amount of the goods, or the amount of the execution, whichever is least; but each creditor can recover only what he has lost by the sheriff's misfeasance, and one who could have got nothing, if the sheriff had done his duty, can demand nothing for the breach of it.^ And a rule to show cause why the judgment should not be opened, does not stay the proceedings, without an order of the court to that effect; the sheriff is liable for the value of goods previously levied on under such judgment, which, through his neglect to sell, were levied on and sold under a subsequent execution, and the proceeds paid to the plaintiff in that writ.^ § 1093. Refusal to deliver. If the sheriff refuse to deliver the goods to the plaintiff, who purchased at the sale, but deliver them instead to an alleged partner of the execution-defendant, he is liable to such pur- chaser for the value of the goods ; and in au action against him by such purchaser, the record of an equity suit, instituted to test the title of the alleged partner and decided against him, is competent evidence against the sheriff, though he was not a party to the equity proceedings.^ § 1094. Not returning writ. The sheriff is liable in an action for not returning the writ, if the plaintiff has suffered damage thereby ; and his failure to return throws the onus upon him f but mere omission to return the writ, till after the return-day, is not of itself such negligence as will make him liable in an action.^ In an action on the sheriff's official bond, where the breach assigned was, the failure to return the writ and a default in selling the goods levied on, the sheriff is answerable only for actual damages sustained by the plaintiff, in consequence of the default alleged ; and if he had actually sold the goods, though he had not returned the writ, the damages should be only nominal.^ § 1095. On return. The sheriff is liable in an action for a false return ; and though he were misled either by the mistake or misrepre- sentation of his deputy, it will not excuse him ; in such case, the sheriff alone is responsible to the injured party.' If he return that he has sold goods to a certain amount he is liable therefor f so, by his return of a sale of land, or what is equally efficacious, by making a deed, he fixes himself for the price bid.' Should the sheriff go on to execution, with- out resort to the safeguards of which he can avail himself, and return the writ so as to render the judgment extinct, and delay and hinder its levy to the value of the debt. Beale v. ' Commonwealth v. McCoy, 8 Watts Commonwealth, 11 S. & R. 299 ; s. c. 154. In certain counties, he may re- 7 Watts 183. fuse to return a writ "stayed," until ' Hamner v. Griffith, 1 Gr. 193. payment of the costs: see Purd. 1309. * Spang V. Commonwealth, 12 Penn. * Commonwealth i>. Magee, 8 Penn. St. 3.5k St. 240. ' Patterson v. Anderson, 40 Penn. ' Commonwealth v. Allen, 30 Penn. St. 359. On a liberari facias, it is the St. 49. duty of the sheriif, to deliver actual ' Mentz v. Hamman, 5 Whart. 154 ; possession ; but he cannot disturb that Bogers, J. of a third person, holding by title para- " Christy «. Bohlen, 5 Penn. St. mount. Sawyer v. Curtis, 2 Ash. 39. 127. " Hinds ». Scott, 11 Penn. St. 27. 632 EXECUTION, execution, to the plaintiff's injury, he does so at his own peril, and will be accountable.' The effect of a return, as well upon the sheriff as the parties, will be more fully explained hereafter. § 1096. On receipt of money. Where the sheriff has collected the debt, interest and costs, he is liable for the judgment-fee to the attorney not to the plaintiff, unless the latter has prepaid it -^ so, he is not liable to the plaintiff for court costs, unless the latter has advanced them.' If he retain the money in his hands, he is liable for interest, but only from the time of demand •* and a rule on him to pay the money into court, cannot be regarded as equivalent to a demand, where there was a dis- pute about the right to the money, and a long delay, during which the dispute existed, though he do not account for the disposition of the money in the meantime.' But, after a verdict against him, for not pay- ing over the proceeds of an execution, it will be presumed that evidence of a legal demand was given, if a rule of court required one to be made.^ If he were prevented from paying over the money by a rule to show cause why the execution should not be quashed, he is not liable for interest ; and this, though the purchasers have not paid him, and may be liable to him for interest.^ § 1097. On distribution. If the sheriff pay the money to any of the claimants, he is liable, in case of mistake, to the parties injured;^ if he obey the command of his writ, aud pay it into court, he is free from all responsibility.' Where he took notes instead of cash for the price of the goods, he has no right to assign them to a stranger, in payment of his own private debt, and the parties interested may follow the fund, and reclaim it in the hands of such an assignee, with notice, and are not confined to their remedy against the sheriff's sureties ; in such case, notice of the consideration of the notes, given to the attorney or agent of the assignee, is notice to the principal.'" He is not allowed to dis- affirm the right of the plaintiff to the proceeds, upon any allegation, such as, that his letters of administration are void, or that, being a trustee, he has not given the necessary security ; in such cases, however, the court will secure the creditors, before the plaintiffs have leave to take the money out of court." His liability for neglect to pay arrears of ground-rent, due at the time of the sale, is not affected by giving notice, at the sale, that such arrears would be paid out of the purchase-money, ' Miller v. Commonwealth, 5 Penn. sheriff has no right to pay the proceeds St. 295. of personal property into court ; it is ^ Pontius V. Commonwealth, 4 W. & his duty himself to make the distribu- S. 52. fion. Marble Co. v. Burke, 5 W. N. C. Commonwealth v. McCoy, 8 Watts 124. Dunn v. Megargle, 6 Ibid. 204. lo4. But where there are conflicting claims * llantz V. York Bank, 21 Penn. St. to the fund, the sheriff will be per- 291. mitted to pay the money into court, for ' Ibid. his protection. Kochenderfer v. Feigel, « Levistien v. Deal, 3 Phila. 113. 5 Ibid. 404. Kirk w. Ruckholdt, 7 ' Stewart v. Stocker, 13 S. & K. Ibid. 81. Mathiews v. Webster, Ibid. 199. Geisel v. Jones, Ibid. 82. ' McDonald v. Todd, 1 Gr. 17. '" Reed's Appeal, 34 Penn. St. 207. 8 Ibid, Without a special order, the " Dean v. Patton, 1 P. & W. 438. LIABILITY OP THE SHERIFF. 633 if the bills should be presented to the sheriff; otherwise, they would be paid by the purchaser.^ § 1098. Liability to defendant. We have already discussed the liability of the sheriif to the defendant, in regard to claims under the exemption law.^ He is liable as a trespasser, if he abuse his authority in the execution of the writ;' but if he levy in pursuance of his instruc- tions, and without any abuse of his authority, he is liable only for the injury actually sustained ; in such case, the measure of damages is the value of the goods, with interest from the time of taking them, or, if they be articles of merchandise, from the expiration of the usual term of credit on sales.* So, he is liable, if he proceed irregularly : thus, a constable, who sells any portion of the goods, without levy or advertise- ment, is liable therefor to the owner f and, where notes for money, belonging to the defendant, were taken in execution, and sold by the sheriff to the plaintiff, for less than their face, the sheriff was ordered to account for them at their full value.* He is liable, if the writ under which he proceeds be irregular ; if the writ be regular, he may justify under it, though the judgment be erroneous, for this is the act of the court ; and in justifying, he need only give the execution in evidence f and he may justify under an irregular judgment, as well as an erro- neous one ; so as the writ be not void, however erroneous, it is a good justification, and the purchaser will gain a title under the sheriff.^ Be- tween erroneous and irregular process, this disti?iction exists — the latter is void from the beginning; under the first, a party may justify, until it is reversed, but not under an irregular process, because it was his own fault that it was irregular at first ;' and if the officer, in such case, join in the same plea with the party, he loses the benefit of his own defence. But the officer may justify under a writ issued contrary to an agreement between the plaintiff and the defendant.'" § 1099. Liability to third persons. As has been seen, the sheriff is bound at his peril to take only the goods of the defendant, and is a trespasser if he take the goods of a third person, though the plaintiff assure him that they are the defendant's property ;" he is answerable for the conduct of his deputy in taking such goods.'^ In case of doubt as to the ownership of the goods, he may protect himself, before levying, by demanding an indemnity from the plaintiff, and after levying, by taking out a rule, under the sheriff's interpleader act, to compel the claimant to establish his claim before a jury.'^ In case he be indemnified by the plaintiff, though he remains liable for damages to the stranger whose ' Mather v. McMichael, 13 Penn. St. « Speer v. Sample, 4 Watts 368 ; 301. Kennedy, J. ^ See supra, § 1024. ' Read v. Markle, 3 Johns. 523. ' Wilson V. Ellis, 28 Penn. St. 238. " Swires v. Brotherline, 41 Penn. St. * Pacific Insurance Co. v. Conard, 135. Bald. 138. " See supra, § 1087 * Ward V. Taylor, 1 Penn. St. 238. " Wilbur v. Strickland, 1 Rawle « Fulton V. Irwin, Add. 19. 458. ' Holmes v. Wuncaster, 12 Johns. " See sw^m, 1 1088. 395. Paul V. Vankirk, 6 Binn. 123. 634 EXECUTION. goods are taken, he has an action over against the plaintiff; under the interpleader, he incurs no responsibility whatever, but merely delays till the title is determined, and then proceeds or abandons his levy, in accord- ance with the decision. We have already explained the leading doctrines in regard to the liability of goods, claimed by a third person, to execu- tion.^ It is not necessary that there should be an actual taking of the goods of a stranger to the writ ; a levy upon them is an exercise of dominion over them suflScient to constitute a trespass ;^ and a return of " attached, " to a foreign attachment, is conclusive against the sheriff, in trespass brought by a stranger to the writ.^ Under an execution against one partner, the sheriff can only sell, and the purchaser acquire the interest of such partner in the effects of the firm ; if he seize, sell and deliver the goods themselves, he commits a trespass, and is liable to the partner, who is not a defendant, for the injury committed in selling his property.* § 1100. If, at the time a levy was made on goods, in possession of a vendee, under an execution against his vendor, it were known to the vendee, that the goods were taken as the property of the vendor, and as a means of avoiding the sale, and the vendee gave only a general notice of his claim, such notice will amount only to a denial of fraud in the original sale, and the vendee will jiot afterwards be permitted to treat the sheriff as a trespasser, on proof of subsequent additions to the goods out of his own means ; if, however, the vendee did not know on what ground the levy was made, nothing but a general notice would be neces- sary, and this would be sufficient to put the sheriff on his guard, so that he might be sued as a trespasser as to all the goods which were honestly acquired ; if, at the time of the levy, the sheriff knew or had notice that the vendee had made additions to the stock out of his own means, and not out of the proceeds of the original stock, then the sheriff would be liable as a trespasser as to all such additional stock, unless he gave the vendee notice that he should be allowed to select and take away the same.^ After the termination of a bailment, by delivery of the goods to the owner, the bailee's lien is gone, and a sale of the goods under an attachment against the bailee, would render the sheriff liable in trespass, although the owner had notice.^ Where the purchaser kept a horse at livery, and allowed the vendor to have the frequent use of him, a levy and sale of the horse, as the property of the vendor, will render the sheriff liable in trespass to the purchaser.' § 1101. Defences. The sheriff may show that an alleged purchase of the goods from the defendant by the claimant, was fraudulent as to the creditors of such defendant.^ Where the sheriff seizes goods in the pos- session of a stranger to the writ, he cannot. justify under an authority from the real owner ; the other will be entitled to nominal damages foi 1 See supra, § 980. 5 Helfrioh v. Stem, 17 Penn. St » Welsh V. Bell, 32 Penn. St. 12. 144. ' Paxton V. Steokel, 2 Penn. St. 95. « Megee v. Beirne, 39 Penn. St. 50. * Bogue V. Steel, 1 Phila. 90; s. c. ' Sutton v. Shearer, 1 Gr. 207. 20 Penn. St. 228. » Helfrich v. Stem, ut supra. LIABILITY OF THE SHERIFF. 635 the injury to his possession.^ It is no defence as to the unlawful seizure and detention, that the owner subsequently recovered his goods in replevin against the purchaser at the sale f but he may show in mitiga- tion of damages, that the goods were bought in for the owner at an under price ; the measure of damages is the extent of the loss sustained by the owner — what it cost him to redeem the goods.' The sheriff cannot, however, show, in mitigation of damages, that he has voluntarily applied part of the proceeds of the sale to pay a debt due by the owner of the goods, for he had no right to make any appropriation of the funds thus illegally obtained.* Where the sheriff has levied on and sold the same goods twice as the property of the defendant, in an action of tres- pass against him by the purchaser at the first sale, he is not estopped from showing that the first sale was collusive ; and the execution-creditor in the second sale, may take defence to the suit, and show the fraud in the first sale.° § 1102. Zdability of the plaintiff. All persons who direct or order the commission of a trespass, or the conversion of personal property, are, in general, liable as principals, though not benefited by the act; but if a person do not assist in a trespass, either by word or deed, he is not liable, though it may have been done by a person assuming to act on his behalf.* To render the plaintiff liable for the act of the officer in tak- ing the goods of a stranger to the writ, he must have actually interfered or assented to the levy f the mere fact that he issued the execution is not sufficient f nor does the bare receipt from the officer of the proceeds of the goods of a stranger, sold under execution, render the plaintiff liable as a trespasser.^ He is not answerable for the blunders of the officer, whose proceedings are not necessarily directed by him, but who acts at his own peril and by the direction of the writ.'" Nor is a bond fide pur- chaser, without notice, at the sale of the goods of a stranger to the writ, liable in trespass for taking the property away ;" though, it is said, that he is liable in trover.^^ But where partnership goods are sold under an execution against one member of the firm, the plaintiff, who attended the sale, and purchased some of the goods, is such a participator, as to be liable as a trespasser jointly with the sheriff and his deputy.'* § 1103. In regard to what constitutes an interference, the plaintiff will become liable, if he be in the company of the sheriff's officer, at the time ' Rogers v. Fales, 5 Penn. St. 154. » Tarr v. Voorhees, 1 Phila. 74. ' Nagle V. Mullison, 34 Penn. St. 48. ' Helfrioh v. Karcher, 2 Am. L. J. 84. 3 Forsyth v. Palmer, 14 Penn. St. 96. " Ibid. Bedell v. Barnes, 17 Hun 353. " Hamliion v. Fisher, 2 Gr. 330. * McMichael v. Mason, 13 Penn. St. Ward v. Taylor, 1 Penn. St. 238. 214. Graham v. McCreary, 40 Ibid. 515. Otherwise, if the sheriff do not deliver ^ MoMichael v. McDermott, 17 Penn. possession, but the purchaser removes St. 353. the goods. Talmadge v. Scudder, 38 « 1 Chit. Plead. 90. McMurtrie v. Ibid. 517. Stewart, 21 Penn. St. 322. Judson " Farrant v. Thompson, 2 D. & R. 1. V. Cook, 11 Barb. 642. And he is liable in replevin. Shearick ' Sanderson v. Baker, 3 Wils. 309. v. Huber, 6 Binn. 2. Helfrich v. Karcher, 2 Am. L. J. 84. " Deal v. Bogue, 20 Penn. St. 228. 636 EXECUTION. of the execution ;' so, if the plaintiff indemnify the sheriff for selling goods claimed by a stranger, this is sufficient interference to subject him to an action.^ And if the attorney of the plaintiff, retained generally to conduct the suit, but without special authority in reference to the execution, direct the sheriff to levy on goods which do not belong to the defendant, the plaintiff himself is liable in trespass to the owner of the goods.^ An attorney who issued the writ, but who took no part in the seizure of the goods of a stranger, is not liable in trespass to the owner.^ § 1104. The plaintiff is also liable to the defendaut for injuries done to his person or property, under color of process void ou account of want of jurisdiction in the court.^ So, where the court has jurisdiction but the proceeding is irregular, an action lies against the attorney and the plaintiff;^ as, where a defendant who has sufficient property to satisfy the demand, is arrested and imprisoned on a ca. sa f or, the defendaut is arrested on a judgment which is afterwards set aside for irregularity;' so, if the plaintiff issue an execution not warranted by his judgment; as, where a ca. sa. is sued out on a judgment against an administrator.' But an erroneous judgment is good in law, until reversed, and everything done under it, before reversal, is valid ;'" hence, an action of trespass will not lie against a plaintiff, for selling a defendant's goods in execution upon a judgment obtained before justice of the peace, on the ground that the defendant in the judgment was never served with process.'^ And on the same principle, the plaintiff and constable executing an attachment under the act of 12th July 1842, are not liable to a stranger claiming the goods, on the ground that the affidavit and bond, upon which the judgment was founded, are defective.'^ § 1105. It is settled, that before the plaintiff can be made liable as a trespasser, for issuing a writ altogether irregular and defective, and there- fore null and void, the writ must be first vacated or set aside by the court ; for, if it still subsist in full force and vigor, at the time of the action brought, the party may justify under it.'' This results from the principle, that an execution, like a judgment, is valid, until quashed or reversed, and cannot be assailed collaterally, except in case of fraud.'^ It has been said, however, that a distinction exists between erroneous and irregular process; and that under the first a party may justify ' Menham v. Edmonson, 1 Bos. & * 1 Chit. Plead. 203-4. Pul. 369. Armstrong v. Dubois, 4 « Ibid. 206. Keyes 291. ' Allison v. Rheam, 3 S. & R. 142. ^ Root V. Chandler, 10 Wend. 110. Berry w. Hamill, 12 Ibid. 210. Berry v. Kelly, 4 Rob. 106. .Weber v. « Phillips v. Biron, 1 Str. 509. Tres- Ferris, 2 Daly 404. pass will not lie, for arresting and im- ' Gillingham v. Clark, 1 Phila. .51. prisoning the plaintiff on voidable pro- * Hammon v. Fisher, 2 Gr. 330. But cess. Reynolds v. Corp, 3 Caines 267. if an attorney render himself liable in Reynolds v. Church, Ibid. 274. trespass, by instructions to levy on the ' Barker v. Braham, 3 Wils. 368. goods of a stranger, the client in whose "" Allison v. Rheam, 3 S. & R. 140. interest the instructions were given, in *' Baird v. Campbell, 4 \V. & S. 191. good faith, is bound to Indemnify him " Billings «. Rjissell, 23 Pejin. St.l89. against the expenses of the suit. Mc- " Day v. Sharp, 4 Whart. 341. Daniels v. Cutler, 3 Brewst. 57. " Stewart v. Stocker, 13 S. & R. 204. sheeiff's compensation. 637 until it is reversed, but not so under an irregular process, because it was his own fault that it was irregular at first.' § 1106. Officer's compensation. The sheriff is entitled by law to certain fees for executing writs of execution f these will be found in the fee-bill, and need not be specified here. He is also entitled, on the execution of the writ, to certain compensation termed poundage; this is a commission on the real debt, or on the money actually received and paid over to the creditor,' if the whole debt be not collected. The amount of such commission is two per cent, on sums not exceeding three hundred dollars, one per cent, on the amount exceeding three hundred dollars, and less than one thousand dollars, and one-half per cent, on the amount in excess of one thousand dollars.^ Poundage is uniformly allowed on payment of all judgments and mortgages prior to the judg- ment on which the sale was made f on the same principle, it is allowed on the amount of liens paid, although they may have been subsequent to that under which the land was sold." And after a levy on which an inquisition is held, land condemned, and a venditioni exponas issued, but countermanded by the plaintiff's attorney, the sheriff is entitled to the same commission, if the plaintiff receive his debt and costs, as if the land had been sold.' The sheriff is entitled to poundage upon a liherari facias, but if the land be sold under a subsequent execution, before the expiration of the term, he cannot charge poundage on such subsequent execution, on the balance remaining due to the first creditor.^ The act, in giving poundage upon a ca. sa., confines it to cases where the money has been paid and received ; and though hard upon the sheriff, the court cannot allow what the act refuses.^ The charge of poundage, where the defendant was discharged from a ca. sa., upon giving the plaintiff hia promissory notes, was held improper, and was stricken from the bill of costs.'" The sheriff may maintain an action for his poundage,'' or he may retain it out of the money levied on the execution ; and where the sale is under a junior lien, the sheriff's costs are payable out of the fund, ' Read v. Markle, 3 Johns. 523. 255) the language of -which is similar 2 The sheriff is entitled to nothing to that of 1821, the sheriif is only en- at common law ; his right to compensa- titled to poundage, at the rate of one- tion is solely given hy statute. Mitchell half of one per cent, on the whole I'. Reynolds, 10 Mod. 139; Parker, C. amount, where the sum exceeds SIOOO. J. Dew V. Parsons, 2 B. & Aid. 562. But see Lake v. Turner, 4 Burr. 1981. Crofutw. Brandt, 46 How. Pr. 481. Cro. Bliz. 335. Cro. Car. 286. Impey ' When the sheriff pays the proceeds on Sheriffs 141. of sale into court, he is not entitled to * Petry v. Beauvarlet, 1 Binn. 97. poundage. Terry v. Gregg, 26 Pitts. Evans v. Elmes, 1 Clark 272. X,. J. 94. " Shoemaker v. Houtford, 1 Bro. 251. * In calculating the poundage on a Evans v. Elmes, ut supra. sum aboveSlOOO, the usage is, to charge ' Middleton v. Summers, 3 S. & R. two per cent, on the first |300, one per 549. cent, on the next §700, and one-half of ' Wall v. Lloyd, 1 S. & R. 320. one per cent, on all over $1000; this, » Milne v. Davis, 2 Binn. 137. it would seem, from the case of Browne "Bank v. Malcomb, 1 Bro. 234. !). Brown, 1 Bro. 100, is not the proper But see Alchin v. Wells, 5 T. R. construction of the fee-hill ; according 470. to that case, which was determined " Rawstorne*. Wilkinson, 4 M. &S. under the fee-bill of 1795 (3 Sm. L. 256. 638 EXECUTION. though it be exhausted by the prior liens, before reaching that under which the sale was made.^ § 1107. Expenses. The sheriff cannot charge the fund with the expense of selling the goods by auction, because he is bound to sell them himself; yet, if the auction be at the request of either party, that party must pay such expenses.^ So, he cannot charge the expense of arranging the goods for sale, although with a view of making them bring a better price f nor for a crier ;* nor for a watchman,^ although the plaintiff's attorney request him to put a watchman in charge, for such direction is simply a notice to sheriff that he will be held to his legal responsibility, if he suffer them to remain in the possession of the defendant, and they are lost;^ though, if the plaintiff himself em- ployed the watchman, he would be liable for his services.^ On taking an inquisition, he cannot charge for the jury's expenses, nor for his own attendance.' He is allowed, by the fee-bill, a fixed sum for advertising; but since then, it has been made obligatory upon him to advertise, and it is presumed, that he can charge the actual expense incurred.' § 1108. If the oiBcer charge excessive fees, or charge for services not compensated by the fee-bill, he is liable to a penalty of fifty dollars to the injured party, to be recovered in like manner as debts of that amount;'" the action must be brought within six months.^' The officer must, if requested, furnish a bill of particulars of charges, and a receipt ; if he refuse, the party may decline to pay his fees,'^ and he is liable to a penalty of ten dollars, in the case of a constable, and of fifty dollars, in the case of a sheriff, or coroner acting as sheriff.'^ In an action to recover the penalty for taking fees not compensated by the act, it is sufficient to aver that the fees were taken for services other than those provided for by the statute, without specifying for what services the fees were demanded." Taking illegal fees is also a misdemeanor; but the prosecution must be commenced within two years.'^ VII. Execution against goods and chattels. § 1109. Fieri facias. The only writ used in this state to reach goods and chattels in the possession of the defendant, is the writ of fieri ' Shelly's Appeal, 38 Penn. St. which the goods are stored. Graham v. 210. McLean & Bennor Machine Co., 35 '' I Aroh. Pr. 263^. Lord v. Rich- Ibid. 70. Crofut v. Brandt, 46 How, mond, 38 How. Pr. 173. Pr. 481. ' Miles V. Huber, 1 Clark 483. •» Act 28 JIarch 1814, § 26 ; 6 Sm. L. * Browne v. Brown, 1 Bro. 98. 234; Purd. 690. ' Miles V. Huber, ttt supra. Patton's " Act 22 February 1821, § 15 ; 7 Sm. Estate, 2 Pars. 103. Graham v. Mc- L. 377 ; Purd. 691. Lean & Bennor Machine Co., 35 Leg. '" Act 28 March 1814, ^ 27. Int. 70. " Act 20 JIarch 1820, § 3 ; 7 Sm. L. 8 Deal V. Tower, 1 Phila. 268. 308 ; Act 15 April 1834, § 79, P. L. ' Dumber v. Jones, 1 Ash. 215. 551 ; Purd. 690. 8 Wall V. Lloyd, 1 S. & R. 320. » Overholzer u. McMichael, 1 Penn. Middleton v. Summers, 3 Ibid. 550. St. 139. 9 See Philadelphia v. Wright, 34 ^^ ^ct 31 March 1860, ? U,?- L- 387 ; Leg. Int. 159. He cannot charge for Purd. 317. Act 31 March 1860, ? 77, fuel used in heating the building in P. L. 450 ; Purd. 395. FIERI FACIAS. 639 facias. This writ, lilie all other writs of execution, must strictly pursue the judgment, and be warranted by it. In substance, it is a command to the sheriff or coroner, that of the goods and chattels of the party, he cause to be made the sum recovered by the judgment (specifying it according to the form of action), and that he have the money and the writ before the judges of the court from which it issues, on the return- day thereof. To obtain a writ oi fieri facias, the attorney should prepare a prceeipe, directed to the prothonotary of the court in. which the judg- ment was recovered, in the following form : In the Court of Common Pleas, No. 3, for the' County of Philadelphia. James Eoberts J V. I Of March term 1879, No. 96. Adam Jackson. ) Issue Fi. fa., returnable the first Monday of June next. Real debt $956.75 Interest from . To W. B. M., Esq., A. B., Proth'y, C. P. Attorney for plaintiff. 3 May 1879. On this praxipe may be indorsed any payments on account of the judgment— as, "Cr. $200, paid 1st March 1879;" and if there be a waiver of the exemption, indorse "exemption waived." Hand this prce- eipe to the writ-clerk in the prothonotary's office, and pay him fifty cents for the writ."^ Indorse thereon any special directions to the sheriff, such as the place at which the levy is to be made, &c., and deliver it to the execution-clerk in the sheriff's ofRce, who is required to indorse thereon the day and hour of its receipt,^ and to enter the same upon the sheriff's execution-docket, before delivering the same to the deputy- sheriff of the proper district for service. § 1110. Payment to the sheriff. After the delivery of the writ to the officer, the defendant may pay him the amount of the execution ; if he neglect or refuse to do this, the officer is bound to proceed. The sheriff is so far the agent of the plaintiff, that payments made to him by the defendant, before the return-day of the writ, extinguish the judgment pro tanto ; and such payments may be indicated by indorsements upon the writ, and by receipts given by the sheriff to the defendant ; and where there are such indorsements, without date, and also receipts given to the defendant in the lifetime of the execution, and the indorsements and re- ceipts do not correspond, it is for the jury to say whether they were dupli- cates, and what amount was paid by the defendant to the sheriff before the return-day; but after the return-day of the writ, and after the sheriff has gone out of office, he is no longer the agent of the plaintiff, and payments to him by the defendant do not bind the plaintiff, unless actually paid over to him ; and where the sheriff has received money from the defend- ant, both before and after the return-day and the expiration of his term, and then pays over to the plaintiff a sum less than he had received ' See supra, 1 1051. " See supra, ? 1063. 640 EXECUTION. before the return-day (the plaintiff having no knowledge of the subse- . quent payments), the defendant has no right to claim that what the sheriff paid over were the subsequent payments, and thus get credit for both those and the prior oues.^ Prior to this, it had been held, that a payment by the debtor to the sheriff, after the return-day, was good, and that the debtor was thereby discharged, and the sureties of the sheriff rendered liable.^ If the sheriff accept payment in bank-notes, the debtor is discharged ; the sheriff takes the notes as cash, and how- ever worthless they may prove, he must account for them as cash.' § 1111. If the money be paid to the sheriff after levy under a joint execution against two partners, and afterwards the judgment be set aside as to one of the defendants, the sheriff is still liable for the money to the plaintiff.* Though, when the sheriff has two executions in his hands, it is his duty to apply any levy he makes, whether upon goods or money, to the earliest writ, yet where money is voluntarily paid him by the defendant, with direction to hand it over to a particular creditor, he is bound to obey the instructions of the defendant, in regard to its applica- tion ; such money cannot be said to have been seized and taken in exe- cution by the sheriff.' Where there are several defendants, and the assignee of one pays the amount to the sheriff, who marks the execution satisfied, if such payment were in reality a purchase of the judgment, the sheriff may correct the indorsement and proceed on his writ ; but if the assignee had funds in his hands to pay the debt, and there are circum- stances to show it was intended as a payment, the jury may so consider it, and the sheriff's proceeding afterwards on the writ will be considered a trespass.' This is said not to decide that an assignee may purchase a judgment against his assignor, with his own funds, and proceed by exe- cution.^ § 1112. Of the levy. If the defendant do not pay, on demand, it is the duty of the officer to levy on so much of the former's estate as will satisfy the debt, interest and costs, in the discharge of which duty, he is not bound to fractional exactness ; he should make a schedule of the property levied on,' and sell after six days' notice.' To constitute a good levy on personal property, it is not necessary that an inventory .should be made, in the first instance; nor that the sheriff should imme- diately remove the goods, or put a person in possession ; it is sufficient, ^ Slasher v. Washington County, 27 made on the execution. Penn. St. 206; Woodward, J. * Harper v. Fox, 7 W. & S. 142. ^ Beale v. Commonwealth, 7 Watts * Kudy v. Commonwealth, 35 Penn. 1S.5. See Rioketson v. Commonwealth, St. 166. 51 Penn. St. 158. ' « Kuhn v. North, 10 S. & R. 399. " Harper v. Fox, 7 W. & S. 142. Hall ' Keller v. Leib, 1 P. & W. 223 t). Fisher, 9 Barb. 17. Where, by the Huston, J. terms of the contract, the debt is pay- * McClelland «. SlinglufF, 7 W. & S able in gold coin, judgment should be 135. Wilson's Appeal, 13 Penn. St. so entered. Quin v. Lloyd, 41 N. Y. 426. 349. Chrysler v. Griswold, 43 Ibid. " Act 16 June 1836, | 42, P. L. 768 ; 209. AVeld v. New York and Austin Purd. 643. Trespass will lie, for selling Silver-Jilining Co., 59 Ibid. 644. And without six days' notice. Carrier ». a corresponding indorsement should be Esbaugh, 70 Penn. St. 239. OF THE LEVY. 641 that they were in the sheriff's power and control, at the time of the levy, if followed up with reasonable diligence.^ The indorsement of a sche- dule of the property levied on, is not necessary to vest a special property in the sheriff, except as against subsequent execution-creditors and pur- chasers;^ but to constitute a valid levy, the goods must be in the power or in the view of the sheriff.^ The indorsement of a levy on property not within the view of the sheriff, is void as against subsequent execu- tion-creditors ;■* a levy on a leasehold, however, need not be made in view of the premises, if sufficiently descriptive f and a levy upon part of the goods in a house, in the name of the whole, is a good levy upon the whole.' § 1113. The property levied on may-te designated in the body of the re- turn, or by reference to the schedule attached thereto ; and it is said, that such 'designation is requisite to render the levy good.' If the sheriff have several writs in his hands, at the same time, he may indorse upon each a list of the goods levied on ; but this is not necessary, and the practice is, to make the indorsement or attach the schedule to one writ, and refer to this in the returns on the others.* But an omission to do either, cannot be supplied by other proof; hence, if the sheriff return a levy and schedule under a second execution, the prior writ having been returned without a levy or schedule, he must apply the money to the second writ, leaving the plaintiff in the first to his remedy against him by action.' It is not com- petent to prove by parol, a levy made in writing, without first proving its loss.^" When the sheriff levies on a specific article or articles, naming them, without more, he will be confined to his levy ; as, for example, where he levies on a horse, he will not be permitted to sell a cow, or other article of property; but not so, where words are added which plainly indicate his intention to include other property, although not specifically named or enumerated -^^ and a levy on certain enumerated articles, and all the defendant's property not exempted by law, will embrace all the property then possessed or afterwards acquired by the defendant, though not enu- merated ; and evidence that part of the unenumerated goods sold were acquired after the levy, though before the return-day of the writ, will not be received, for the purpose of letting in on the fund a subsequent fi.fa., under which the sheriff had levied on such goods specifically.^ 1 Wood V. Vanarsdale, 3 Rawle 401. Graham, 77 Penn. St. 103 ■•^ Weidensaul v. Reynolds, 49 Penn. * Lewis v. Smith, 2 S. & R. 142. See St 73. Burchard v. Rees, 1 Whart. 377. ' Duncan's Appeal, 37 Penn. St. 500. ' Barnes v. Billinffton, 1 W. C. C. 29. Linton v. Commonwealth, 46 Ibid. " MoCormick v. Miller, 3 P. & W. 294. Carey v. Bright, 58 Ibid. 70. Con- 230. niff V. Doyle, 8 Phila. 630. ' McClelland v. Slingluff, 7 W. & S. * Lowry v. Coulter, 9 Penn. St. 349. 135. The lien of a fi. fa. expires on But a sheriff's sale, under a fl. fa., the return-day, if there have been no passes the title, without an actual seiz- actual levy. Sturges's Appeal, 86 ure, if there were no other writ in his Penn. St. 413. hands. Allentown Bank v. Beck, 49 '" Bank v. Fordyce, 1 Penn. St. 454. Ibid. 394. And see Trovillo v. Tilford, " Wilson's Appeal, 13 Penn. St. 42^-, 6 Watts 468. Rogers, J. 5 Titusville Novelty Iron Works v. ^' Ibid. VOL. I. — 41 642 EXECUTION. § 1114. Though, as between successive execution-creditors, it is essen- tial that the sheriff designate the property levied on, either in the body of his return, or by reference to the accompanying schedule, yet, as to all other persons, a valid levy may be made, without either indorsement or schedule ; the levy is a seizure, and the indorsement only evidence of it, and not exclusive evidence, except in favor of subsequent execution- creditors or purchasers.' In contemplation of law, unless it appear to be clearly otherwise, the sheriff is deemed to have seized, under the second writ, the same property that was seized under the first, and not merely the surplus, from the time the second writ came into his hands, or at any rate from the time he indorses the seizure.^ The refusal of the court to set aside a levy, is no* ground for a writ of error.' § 1115. Time of levy. The latest period for making the levy is the return-day of the writ ;* if not levied until after the return-day, the writ is spent, and though retained by the officer, is dead in his hands.* In the case of several executions against the same defendant, being delivered to the sheriff, he should first execute the one first delivered,' except it be fraudulent, when he ought to execute the other.'' The usual practice is, to sell on all the executions in his hands at the time, leaving the responsibility of distribution to the court f should he, however, give preference to the last, the proceeding is not void ; the property is bound by a sale so made, and the plaintiff in the first execution must take his remedy against the sheriff.^ Where it does not appear when the levy was made, it will be presumed to have been done prior to the return- day.'" The execution oi afi.fa. is one act, and not divisible by points of time, e. g., though a seizure be made before the giving of a bond of indemnity to the sheriff, and a sale be made afterwards, the execution is considered as made under the writ, after the giving of the bond." The sheriff, before the return-day, may seize property acquired after the writ was delivered to him ; and where property subsequently acquired was levied on under a second writ, and afterwards under the former writ, it was held, that the proceeds should be appropriated to the writs according to their priority of delivery to the sheriff.'^ § 1116. Mode of levy. In the execution of the writ of fi. fa. the sheriff cannot break open an outer door of the party's dwelling-house ;'' ' Weidensaul v. Reynolds, 49 Perm, gardner v. Hafer, 15 Ibid. 144. St. 73. « McDonald v. Todd, 1 Gr. 18 ; GiV '' Watmough «. Francis, 7 Penn. St. son, J. 214 ; Rogers, J. ° Sandford v. Roosa, 12 Johns. 162. ' Lewis V. Amor, 3 Penn. St. Lambert v. Paulding, 18 Ibid. 311. 460. McClelland v. Slingluff, 7 W. &. S. * Lynch v. Waters, 6 Luz. L. Reg. 135. 39. Trespass lies, for levying after the "" Fitler v. Patton, 8 W. & S. 455. return-day of the writ. Vail «. Lewis, " Watmough v. Francis, 7 Penn. St. 4 Johns. 450. 212. * Finn v. Commonwealth, 6 Penn. " Shafner «. Gilmore, 3 W. & S. 438. St. 460. And see supra, § 1063-5. * 2 Bac. Abr. 721. " Though an outer door be only ' 4 East 523. See Ricketson ». Com- closed by a latch, the sheriff has no monwealth, 51 Penn. St. 155. Wine- right to open it, for the purpose of mak- OF THE LEVY. 64? anless in the case of a writ of habere facias ; but having gotten entrance, he may, in all cases, break open an inner door, cupboards, trunks, &c., if necessary ;' and it has been held, that he need not demand entrance at the inner doors, before they are broken open.^ The rule extends only to the party's dwelling-house ; therefore, the sheriff may break open the outer .door of a barn or out-house, or store or warehouse, standing separate from the dwelling-house, without a previous demand and refusal of admission ;^ and goods may be taken through the windows, if open.* After demand and refusal of entrance, the sheriff may break open the outer door of a dwelling-house belonging to a third person, if the defendant or his goods be there f or, if the defendant, after being arrested on a capias, escape into either his own or another's dwelling-house, the officer will be justified in breaking the outer door to retake him.^ Also, if after a peaceable entrance at the outer door of the party's dwelling-house, the sheriff or his officer be locked in, he may justify breaking open the outer door, in order to get out ; and the court would probably grant an attachment against the defendant.^ If the sheriff break an outer door, when he is not justified in doing so, this does not vitiate the execution, but merely renders the sheriff liable to an action of trespass." Where the sheriff enters the house of the defendant, his justification does not depend on his finding or not finding property ; but it is otherwise where he enters a stranger's house, in which case, he is not justified, unless it turn out that the defendant had goods therein liable to execution.' No settled rule appears to exist as to the length of time the sheriff should continue in the house of the defendant or a stranger, upon &fi.fa.; he ought not, however, to remain there, unpermitted, longer than is necessary for the service of his process.'" § 1117. A levy cannot be made on personal property, without having the goods levied on in actual manucaption or control ;^' it is essential, that the property levied on be in the power, or within the view of the sheriff, at the time it was made ; a levy is an assertion of title by the sheriff, and should be public, open and unequivocal.'^ Therefore, where the chattel levied on was, at the time of the levy, ten miles off, and was not seen by the sheriff, until after the return-day, the levy was held invalid ing a levy, even in the absence of the And see "Wilson v. Gary, Ibid. 211. occupant. Curtis v. Hubbard, 1 Hill ' Cro. Jac. 555. Palm. 52. If he 336 ; s. c. 4 Ibid. 437. A levy made, has made a lawful levy, he may break after admittance has been obtained by open an outer door, to take the goods breaking open an outer door, is unlaw- out of the house. Pugh v. Griffith, 7 ful. People V. Hubbard, 24 Wend. Ad. & B. 827. 369. See supra, ? 1082. * 1 Arch. Pr. 261. But see People 1 Lee V. Gansel, Cowp. 1. Haggerty v. Hubbard, 24 Wend. 369. V. Wilber, 16 Johns. 287. ' 5 Taunt. 69-70. 2 Hutchinson v. Birch, 4 Taunt. 619. '» Tidd 1049. See Aitkenhead v. ' Haffsertv v. Wilber, 16 Johns. Blades, 5 Taunt. 198. 287. '• Welsh V. Bell, 32 Penn. St. 12. * Bins. Ex. 244. Wood v. Vanarsdale, 3 Rawle 405. * Sem'ayne v. Gresham, 5 Co. 91 a. Trovillo v. Tilford, 6 Watts 468. Post. C. L. 319. " Duncan's Appeal, 37 Penn. St. « Genner v. Sparks, 6 Mod. 173. 500. 644 EXECUTION. as against an actual levy subsequently made under another writ.* So, merely proclaiming a levy on goods locked up in a store, and not in view, i? not sufficient ; the store should be broken open, the goods seized and an inventory taken.^ In England, the officer generally enters upon the premises in which the defendant's goods are, and leaves one of his assist- ants in possession of them.' Actual seizure may be dispensed with for. the defendant's accommodation, and the officer will have a constructive possession, which is good as between him and the defendant, but not as against other creditors ■* in order to be valid against other creditors, this species of levy must be followed up, within a reasonable time, by the actual taking of possession.' And so, the defendant may retain posses- sion for the officer, becoming thereby quoad hoe his servant, and answer- able to him in trespass m et armis, should he retain or remove the goods, after such levy and arrangement to hold for the officer.* It is a frequent practice for the sheriff to take security for the forthcoming of the goods, leaving them in the defendant's keeping, but this is at his own risk ■/ the sheriff need not take the property into actual custody; it is enough, that it be forthcoming, to answer the exigencies of the writ.* The receipt of a second fi. fa. amounts, from the time it is indorsed by the sheriff, to a reseizure of the goods, on which a prior levy has been made, and thenceforth they are in his custody on all the writs f the indorsement itself amounts to such reseizure.'" Where one constable levies on goods, another cannot, under a second execution, take the same goods out of his hands and sell them, though the first execution be on a fraudulent judgment; the right to the proceeds must be determined by law.'' § 1118. Effect of a levy. The seizure of the goods vests the posses- sion in the sheriff, and he has such a special property in them, that he may maintain trespass or trover against the defendant, or a third person, for taking them away.'^ In such action, the defendant cannot set up that the chattel was his property ; whatever his title, he cannot assert it, while the chattel is in the custody of the law." But until sold, the ' Duncan's Appeal, 37 Penn. St. 500. 206 ^ Haggerty k. Wilber, 16 Johns. 287. " Wiuegardner v. Hafer, 15 Penn. St. 3 Blades v. Arundale, 1 M. & S. 711. 144. ' Trovillo c. Tilford, 6 Watts 468. '" Lytle v. Mehaffy, 8 "Watts 275. 6 Lowry v. Coulter, 9 Penn. St. 349. Welsh v. Bell, 32 Penn. St. 12. Tel- Wood V. Vanarsdale, 3 Rawle 401. ler v. Burtis, 6 Johns. 197. A forth- * Trovillo V. Tilford, ut supra. coming-bond vests no property in the ' By taking a forthcoming-bond, he officer, independently of the lien of the does not abandon his lien upon the execution. Lewis v. Smith, 2 S. & R. goods. Hastings v. Quigley, 2 Clark 142. The shoriflF has such a special 431. And the surety is liable for property in goods levied on, and a return of the goods, irrespective of a eloigned, as will support trover, though recital of their ownership. Evans ». he has not taken actual possession. Matson, 51 Penn. St. 366. See Coar Weidensaul v. Reynolds, 49 Penn. St. V. Green, 5 Luz. L. Reg. 77. 73. But if the goods be removed by a ' Dorrance ». Commonwealth, 13 stranger, after an execution comes into Penn. St. 160. his hands, but before an actual levy, he ' Watmough v. Francis, 7 Penn. St. cannot maintain trespass. Cluley v. 206. Cresson v. Stout, 17 Johns. 116. Lockhart, 59 Ibid. 376. "• Watmough v. Francis, 7 Penn. St. " Weidensaul v. Reynolds, ut supra. OF THE LEVY. 645 property of the judgmeut-debtor is uot wholly divested ; it reir.ains iu him subject to the levy, and is at his disposal, burdened with^the incum- brance.' The officer, under the authority of the law, is invested with full power to sell and transfer the absolute property in the goods, and this is the full extent of all that belongs to him.^ The sheriif is answerable to the plaintiff for the value of the goods seized, or which might have been seized under the fi. fa., but not beyond that value f and in the case of his refusal to sell, his liability will be measured by the value of the goods, or the amount of the execution, whichever is least.'' He is abso- lutely liable for the forthcoming of the goods, unless deprived of them by the act of God, sudden accident, or the public enemy ; hence, where the goods levied on are sufficient to pay the debt, and a part are stolen between the levy and sale, so that the money cannot be made, the sheriff is liable for the deficiency.' §1119. A clause in a policy of insurance, that it should "cease at and from the time" the premises "shall be levied on or taken into pos- session or custody, under any proceeding at law or in equity," is to be construed as meaning an actual levy and change of possession under it ; a mere notice of levy, given by the officer to the defendant, without tak- ing the goods insured into his possession or custody, though good as a levy, will not avoid the policy;' nor will a levy, under an execution against a stranger.^ § 1120. Satisfaction. The effect of a levy, as regards satisfaction, may be considered, first, in relation to the debtor; and then, in respect to his creditors. When the sheriff seizes sufficient property of the defendant, he cannot make a second levy;' the debtor is discharged from the judgment, and the plaintiff must look to the sheriff for his money;' the taking a bond for the money has the same effect;'" and the debtor may plead the discharge in bar to an action of debt or scire facias upon the judgment," being absolutely discharged to the extent of the levy, whether the sheriff can sell the goods or return the writ or not ;'^ or even, although they afterwards be rescued from him.'^ If the officer deliver the goods to a third person, on his giving a receipt to return them or pay the amount of the execution, he cannot afterwards take other goods of the defendant in execution ; and in such case, it is immaterial, whether the property originally taken were sufficient to ' Towar v. Barrington, Bright. 253. * Hunt v. Breading, 12 S. & R. 41. 2 Lytle V. Mehaffy, 8 Watts 275. Dean v. Patton, 13 Ibid. 344. Nagle ' Taylor's Appeal, 1 Penn. St. 392. v. Stroh,4 Watts 124. Freeman v. Cald- * Hamner v. Griffith, 1 Gr. 193. well, 10 Ibid. 9. Cummin's Appeal, 5 Hartleib v. McLane, 44 Penn. St. 9 W. & S. 73. Boas v. Updegrove, 510. 5 Penn. St. 519. Davids v. Harris, 9 * Commonwealth Insurance Co. v. Ibid. 501. Cathcart's Appeal, 13 Ibid." Berger, 42 Penn. St. 285. Manufac- 421. Lyon v. Hampton, 20 Ibid. 46. turers' and Merchants' Insurance Co. ' Troup v. Wood, 4 Johns. Ch. 228. V. O'Maley, 82 Ibid. 400. See Ken- '" Boas v. Updegrove, ut supra. sinffton Bank v. Yerkes, 86 Ibid. " 2 Bac. Abr. 720. Bryan v. Paul, 229 3 W. N. C. 64. ' Philadelphia Fire and Life Insur- "^ Taylor v. Baker, 2 Mod. 214. ance Co. v. Mills, 44 Penn. St. 241. " Mildmay v. Smith, 2 Saund. 343. 646 EXECUTION. satisfy the execution or not, or that the officer had been unable to recover anything on his receipt.' But, as between the plaintiff and defendant, a levy, afterwards released, is not an extinguishment of the debt.'' § 1121. There may be a question, whether the value of the goods is sufficient. By our practice, which differs in this particular from the English, a general return of goods levied, whereby it does not clearly appear that they were sufficient, does not operate to discharge the de- fendant, and deprive the creditor of all further remedy, except against the sheriff; in such case, if the sheriff pay the fair amount of the sales to the plaintiff, it is all that is required of him, and the plaintiff may issue an alias fi. fa. or ca. sa., for the residue, without application to the jourt. Therefore, where a fi. fa. was returned, levied on grain in the barn and in the ground, household furniture, &c. (.described and left at the plaintiff's risk), it was held not to be evidence that the judgment was completely satisfied, so as to make an alias for the residue void.' But a return to a fi. fa., levied on certain specified articles, with all the defendant's personal estate, is primd facie evidence of a levy to the value of the whole debt ;* and now the sheriff's return that he has levied the debtor's goods, without specifying the value, ia priind facie evidence that the value was sufficient to pay the debt.' The rule applies, though the title of a purchaser of the goods at the sheriff's sale be defeated in an action of replevin, for there is no warranty in judicial sales ; and it makes no difference, that the plaintiff became the purchaser; he is con- cluded by the sheriff's return, and cannot renew his execution.* § 1122. The rule as to the discharge of the debtor does not apply, where the goods have been left in his continued possession, and he has been permitted to use them as his own;^ nor where the goods were released by the plaintiff, the judgment remaining unpaid.* Accordingly, the return of " levied " on personal property, where the property had been restored to the defendant on a forthcoming-bond, and not delivered back to the sheriff, does not preclude the plaintiff from resorting to the proceeds of the defendant's lands, which are in court for distribution.' So, an execution issued by a justice, and returned " levied, but not sold for want of time," an alias stayed, and a pluries issued nine years afterwards, Clerk V. "Withers, 2 Ld. Raym. 1075. " Freeman v. Caldwell, 10 Watts 9. And see People v. Hopson, 1 Den. 574. But a levy is no satisfaction, if the pro- ^ Hoyt V. Hudson, 12 Johns. 207. perty be fraudulently withdrawn from ' Duncan v. Harris, 17 S. & K. 436. the possession of the ofBcer. Mickles Porter v. Boone, 1 W. & S. 251. A fi. v. Haskin, 11 Wend. 125. Or, if it fail fa., unreturned, is no evidence of satis- to produce satisfaction, in fact, without faction. Borne v. Krumpp, 4 Leg. Gaz. any fault of the plaintiff. Green v. 230. Burke, 23 Ibid. 490. Ostranderc.Wal- ' Little «. Delancey, 5 Binn. 266, 272. ter, 2 Hill 329. Holbrooke. Champlin, * Newlin v. Palmer, 11 S. & R. 99. lloS. Ch. 148. At least, so far as to cast the burden of ' Cummin's Appeal, 9 W. & S. 73. proving the value of the goods, upon Davids v. Harris, 9 Penn. St. 501. the sheriff's sureties, in an action for Cathcart's Appeal, 13 Ibid. 421. Peck refusing to sell. Ibid. v. Tiffany, 2 N. Y. 451. * Beale v. Commonwealth, 7 Watts ' Duncan v. Harris, 17 S. & R. 436. 187. ' Taylor's Appeal, 1 Penn. St. 392. OF THE LETT. 647 returned " no goods," are no evidence for the defendant that the debt is paid ; here, there is no evidence nor any pretence of evidence, that the plaintiff had an advantage or benefit from the levy ; the goods were not removed nor disturbed ; and in such case, there is no legal presumption that the judgment is satisfied.^ If the levy be released by the plaintiff, and is lost to the defendant, it is pro tanto a satisfaction ; though it is other- wise, if the release were at the defendant's request.^ After a levy on goods the plaintiff cannot discharge them, and continue his judgment in force as to the land of defendant ;^ but a revocation of a levy as to the goods of one surety, does not discharge his co-surety.* § 1123. As regards other creditors of the execution-debtor, the seizure of goods in execution to the amount of the debt, is a discharge of the judgment, whether the goods be sold or not, except where the plaintiff is deprived of the fruit of his levy, without any fault of his own.* So, if after levy, the goods be left in the hands of the debtor, who disposes of them, this is a satisfaction of the execution, to the value of the goods disposed of;* and if the sheriff return that he has levied and left the goods in the hands of the debtor, the judgment must be treated as hav- ing been at one time actually satisfied. Whether it might be restored to its former incidents, by agreement of the parties, as between themselves, is a question ; but it certainly could not be restored, so as to deprive third persons of any advantage acquired by such return.' Yet, a levy on per- sonal property, stayed by order of plaintiff, where there is no proof of collusion between the plaintiff and defendant, and the property, being left in the possession of defendant, and used by him as before the levy, was either sold under proceedings by subsequent creditors, or consumed and disposed of by the defendant himself, does not amount to a satisfac- tion, nor does it operate to postpone the plaintiff to junior judgments ; but the creditors are entitled to the proceeds of a judicial sale of the de- fendant's real estate, according to the seniority of their liens.^ So, the issuing of a second writ, which is withdrawn before any proceedings are had under it, is not an abandonment of the preceding levy f nor is a levy such a satisfaction of the debt, as to prevent an attachment by a creditor of the plaintiff in the execution.^" ' Davids u. Harris, 9 Penn. St. ' Lyon v. Hampton, 20 Penn. St. 501. 46. '' Porter v. Boone, 1 W. & S. 251. « Truitt v. Ludwig, 25 Penn. St. » Hunt V. Breading, 12 S. & R. 37. 145. United States v. Dashiel, 3 Wall. 699. ' Gratz v. Bayard, 11 S. & R. 41. * Whitehill v. Wilson, 3 P. &W. 405. Dean v. Patton, 13 Ibid. 342-3. An extent of the lands of the maker * Morrison v. Hoffman, 1 Penn. St. 9. of a note, is not a satisfaction, as to Cathcart's Appeal, 13 Ibid. 416. the indorser. Gro u. Huntingdon Bank, ' Ingham v. Snyder,! Whart. 116. Ibid. 425. And a delivery of the goods But any act done by an exeoution-ored- levied upon to a claimant, under an in- itor to the prejudice of junior liens, is terpleader, is not satisfaction, as to a a satisfaction pro tanto as to them, party liable for the same debt, as, an Kehler v. Miller, 4 Leg. Gaz. 125. indorser. Rice v. Groff, 58 Penn. St. '» Winternitz's Appeal, 40 Penn. St. 116 And see Lytle v. Mehaffy, 8 490. Baur v. Williams, 80 Leg. Int. Watts 275. 241. 648 EXECUTION. ' § 1124. Custody of the goods. As the goods levied on are at the risk of the officer, he must keep them safely till the sale. It is not cus- tomary to remove them, provided the officer be secured as to their pro- duction when demanded ; and the lien of the levy has always been held to continue, although the chattels were not removed under the fi. fa., unless fraud be proved ;' but a purchaser, without notice of the levy, will hold the goods discharged from the- lien of the execution.^ In England, however, the practice is to remove the goods, and the fact that they are not removed, is a badge of fraud, so as to render them liable to a second execution, or to pass into the hands of a purchaser discharged from the lien of the execution-creditor, and the only exception to the rule in this state, is the case of household furniture.^ And it has been doubted, whether even this class of goods, however valuable, is to be exempted, without limitation, from the general rule.* If the sheriff, with- out legal authority, withdraw from and surrender the possession of the goods levied on, and make return to that effect on the writ, the lien of the execution on the goods is gone, and the plaintiff has no claim on the proceeds of their sale under a subsequent ^. /a.° § 1125. It is a frequent practice for the sheriff to take security for the forthcoming of the goods, leaving them in the defendant's keeping ; but this is at his own risk. As agaiust a vendee, or a subsequent execution, the lien of the fi. fa. is gone, if the sheriff, having taken a bond from the defendant, conditioned for the return of the property, left the goods in the defendant's hands for nearly a year, when the defendant sold them.' But where there has been no excessive delay, the taking of a forthcom- ing-bond by the sheriff for the delivery of the goods at the day of sale, is not a dissolution of the levy, any more than is the taking a bond for stay of execution ; the creditor may press his lien, or his bond, or both, at the same time.' A surety in a forthcoming-bond is discharged, if, after the day specified in the bond for the delivery of the goods to the sheriff, the original award, on which the execution issued, was referred to the arbitrators, on exceptions, and confirmed, under an agreement that three months' stay should be given ; the execution being discharged 1 Cox V. McDoua;al, 2 Yeates 434. » Lewis v. Smith, 2 S. & R. 142. Perit V. Wallis, Ibid. 524. Levy v. Cowden v. Brady, 8 Ibid. 510. In the Wallis, 4 Dall. 167. Waters v. McClel- circuit court of the United States, the Ian, Ibid. 208. Howell v. Alkyn, 2 English rule prevails, without regard to Rawle 282. Keyser's Appeal, 13 Penn. the doctrine of the state courts. United St. 409. It is sufficient, that the pro- States u. Conyngham, 4 Dall. 358 ; s. c. perty levied on be forthcoming to an- Wall. C. C. 178. Barnes v. Billington, swer the exigencies of the writ. Dor- 1 W. C. C. 37. Berry u. Smith, 3 Ibid, ranee v. Commonwealth, 13 Penn. St. 60. But see Brack. L. Mis. 206. 160. McGinnis v. Prieson, 85 Ibid. * Commonwealth k. Stremback, 3 111. Rawle 341 ; Rogers, J. '■' Chancellor v. Phillips, 4 Dall. 213. ^ Commonwealth v. Contner, 18 Snyder v. Beam, I Bro. 366. Bliss v. Penn. St. 439. Ball, 9 Johns. 132. And if the sheriff « Snyder v. Beam, 1 Bro. 366. make no inventory, hislieu isdestroyed ' Hastings ». Quigley, 2 Clark 431. by a subsequent sale, under a distress Lantz v. "Worthington, 4 Penn. St. 156 ; for rent. McHugh u. Malony, 4 Phila. Gibson, C.J. MoGinniss v. Prieson, S9. 85 Ibid. ill. CUSTODY OF THE GOODS. 649 by such agreement, the surety is also discharged.' ^Yhere the sheriff, instead of removing the goods, takes from a stranger to the writ, a writing, in the nature of a forthcoming-bond, that he will deliver the articles levied on to the sheriff, at any time when demanded, or pay the debt, interest and costs in the execution ; the party, when afterwards sued on this writing, cannot set up, in excuse of non-performance, that the goods were his own, and not the property of the defendant in the execution.^ When the officer leaves the goods, without having made an inventory, and without leaving any one in possession on his behalf, and they are distrained for rent, and sold, without notice of the prior levy, the lien of the fi. fa. is gone, and the officer cannot reseize the goods in the possession of the purchaser; if he do so, and sell them, his vendee takes no title.' § 1126. N'oti-removal. The consequences of leaving the goods levied upon in the custody of the defendant, may affect the defendant, the officer or the plaintiff. As to the defendant, we have seen, that if the goods were left in his custodyj and the plaintiff thereby, and without any fault of his own, has failed to reap the fruits of his levy, the pre- sumption of satisfaction is overcome.* As relates to the officer, his duty being to remove the goods, it is at his own risk that they are left with defendant, and if they be eloigned, he is liable, as in other cases of misconduct. The plaintiff, therefore, is not liable for the wages of a watchman, hired by the sheriff to take charge of the goods ; a direction to the sheriff, by the attorney of the plaintiff, to put a watchman in charge, is not evidence from which to imply a promise to pay for his services ; such direction is simply a notice that the sheriff will be held responsible, if he suffer the goods to remain in possession of the debtor, and they be lost f nor can he deduct from the proceeds of sale the expenses of watchmen employed by him at the defendant's request, in consequence of a delay in the sale, at the instance of such defend- ant.^ An indorsement, " levy at the risk of the plaintiff," is understood to mean nothing more than that the property, until sale, may be left with the defendant, at the risk of the plaintiff, and not at the risk of the sheriff; that if the property is not produced on the day of sale, so far as regards the plaintiff, the sheriff is released ; and further, perhaps, as an agreement to indemnify the sheriff for a levy on the goods of a stranger.'' § 1127. As regards the plaintiff, the consequence of leaving the goods in the defendant's custody, may be most serious, especially, if his direction to that efi'ect be accompanied with instructions to the officer to delay or postpone the execution of the writ. Although the mere fact, that house- hold goods are permitted to remain in the defendant's custody, is not ' Blaine ». Hubbard, 4 Penn. St. Keller, 2 Miles 81. 183. * See supra, § 1122, 2 Nagle ». Stroh, 4 Watts 124. * Deal v. Tower, 1 Phila. 268. ' McHugh V. Malony, 4 Phila. 59. « Fitch's Appeal, 10 Penn. St. So, if a constable take a forthcoming- 461. bond and permit the property to be re- ' Keyser's Appeal, 13 Pemi. St. moved beyond his bailiwick. Wood v. 409 ; Rogers, J. 650 EXECUTION. here, as in England, a. badge of fraud, yet, as there is no certain rule how long they may, with safety to the plaintiff, be permitted to remain in the defendant's possession (the cases having varied from one day to up- wards of two years), it is attended with hazard ; and now it would hardly be safe for creditors to permit the levy to remain, without sale of the goods, or some person having them in charge, so long a time as would seem to be authorized by the earlier cases.' If an execution-creditor, after levy, leave the goods in the hands of the debtor, who disposes of them, this is a satisfaction of his execution to the value of the goods so disposed o£^ It is in contravention of the law, to permit the posses- sion and control of the property to remain, after the levy, as before, it being not only fraud in fact, but fraud in law ; and, though there be no unnecessary delay in making the sale, and no order to delay it, the exe- cution will be postponed.' Goods levied on should, in a reasonable time thereafter, be taken possession of by the officer, in such a manner as to apprise everybody that they have been taken in execution ;* and, if suf- fering the goods to remain in the possession of the debtor, has given him a false credit, the creditor loses his lien.® § 1128. The cases ruling the levy to have been lost as to junior^, fas., by staying proceedings, are instances of indefinite stay, and where the executions appeared to be designed as covins, or to create liens separate from the possession ; where, however, the sale is not postponed, but merely adjourned, before the return-day, for a few days, a measure not inconsistent with making the money on the same writ, and creating no presumption that anything else was intended, the lien will not be lost.. If adjourned until after the return-day, it would be equivalent to an in- definite postponement, and therefore fraudulent ; but where the creditor really means to obtain his money under the writ, it would be unreason- able to interfere with his direction of it.^ § 1129. Interference of the plaintiff with the process, is often com- bined with allowing the goods to remain in the custody of the defendant, and will, especially in such combination, cause the plaintiff to lose his priority. An execution is intended, not to secure, but to enforce pay- ment of the debt f and a levy made with any other than a boiid fide purpose of making the money under it, is fraudulent, as against subse- quent executions.' If, then, the plaintiff undertake to pervert the writ, and make use of it for the purpose of keeping other creditors at bay, he commits a fraud upon such creditors, which will have the effect of post- poning his execution to theirs. We have already seen, that, as regards household furniture, the mere fact of the goods having been left in defendant's possession, does not constitute a fraud; but, even as to this class of goods, if that fact be accompanied by a long and unreasonable ' Commonwealth v. Strembaok, 3 ' Knox v. Summers, 4 Yeates 477. Rawle 341 ; Rogers, J. ' Lantz «. Worthington, 4 Penn. St. ^ Truitt V. Ludwig, 25 Penn. St. 145. 154. ' Parys's Appeal, 41 Penn. St. 273. ' Truitt v. Ludwig, 25 Penn. St. 145. Fletcher's Appeal, 17 Leg. Int. 300. Wright's Estate, 3 Luz. L. Reg. 133. * Wood V. Vanarsdale, 3 Rawle 401. « Weir v. Hale, 3 W. & S. 286. DORMANT EXECUTIONS. 651 delay in eflPecting a sale, though without the plaintiff having instructed the officer to postpone the sale, it will, perhaps, cause the lien of the levy to be postponed in favor of subsequent execution-creditors.^ It has even been said, that the lien may be lost by the slightest negligence in pursuing the execution ;^ the latitude does not extend to merchan- dise taken in execution.^ And withdrawing the officer left in charge of the goods, suffering the debtor to go on in his business as usual, amounts to a relinquishment of the execution, as against other execu- tion-creditors.* § 1130. If the plaintiff, however, give positive directions to the officer to stay proceedings, manifestly intending thereby to wield the priority which he has obtained, for the double purpose of securing his own debt and protecting the defendant's goods against the just claims of more tardy creditors, he commits a fraud in law, which will cause his rights to be forfeited.^ And any arrangement with the defendant, or other con- duct of the plaintiff evincing his intention not to have a sale of the goods, will postpone his writ ; notice to the sheriff to stay proceedings is not necessary to operate a postponement.^ Thus, executions on a store have been postponed, where the plaintiff directed the store not to be closed, and the sales went on as usual, the proceeds being paid to the plaintiff,^ and this, though the first execution was not for security merely, and there was no unnecessary delay in executing it.* So, if the writ be stayed indefinitely, under an agreement which enables the defendant to comply with a sale already made by him of the goods, and his vendees thus obtain credit, the fact of the levy being unknown to their cred- itors.' So, a direction to the sheriff to stay proceedings till further orders will postpone the writ in favor of junior executions, if the object of the arrangement was a security for the debt ;" so, if the defendant, acting for the plaintiff", direct the sheriff to proceed no further, the exe- cution is fraudulent as to creditors." The principle is, that to levy with directions to proceed no further, can be referred to no object but the crea- » Lewis V. Smith, 2 S. & R. 142. ^ Eberle v. Mayer, 1 Rawle' 366. Oowden v. Brady, 8 Ibid. 510. Com- Hickman u. Caldwell, 4 Ibid. 376. Cor- monwealth v. Strembaok, 3 Rawle 341. lies v. Stanbridge, 5 Ibid. 286. Mentz An execution issued or kept on foot, v. Hamman, 5 Whart. 153. Lowry v. with intent to hinder, delay or defraud Coulter, 9 Penn. St. 349. Freeburger's other creditors, is fraudulent under the Appeal, 40 Ibid. 244. statute 13 Bliz. Snyder v. Kunkleman, « Weir v. Hale, 3 W. & S. 285. 3 P. & W. 487. Keyser's Appeal, 13 ' Bingham v. Young. 10 Penn. St.' Penn. St. 409. 395. Keyser's Appeal, 13 Ibid. 409. 2 Cowden v. Brady, 8 S. & R. 51 6. It Parys's Appeal, 41 Ibid. 273. would seem, that the postponement of ' Parys's Appeal, ut supra. the sale of goods taken under a dis- ' McClure v. Ege, 7 "Watts 74, re- tress, for a, short time, at the request viewing the prior decisions, and show- of the tenant, does not postpone the ing the changes in the law, since Levy distress to an intervening execution, v. Wallis, 4Dall. 168. Kline V. Lukens, 4 Phila. 296. '» Eberle v. Mayer, 1 Rawle 366. ' Chancellor v. Phillips, 4 Dall. 213. Commonwealth v. Stremback, 3 Ibid. ' Guardians v. Lawrence, 4 Yeates 341. 194. " Lowry v. Coulter, 9 Penn. St. 349. 652 EXECUTION. tion of a lien, which the law does not tolerate.* So, where a direction was given " not to proceed till further orders," and afterwards " to make a levy, but not to sell," and subsequently, by arrangement, the debtor was allowed access to the goods, by giving him the keys of the shop, this is sufficient evidence that the execution was not issued to collect the debt, but for another purpose, which was not legitimate nor protected by the law.^ An indorsement " levy at the risk of the plaintiff," does not amount to a direct or implied stay of the proceedings, nor is it under- stood, without more, that the execution is put in the hands of the sheriff for security, and not for sale." § 1131. So, where, after levy, the creditor takes a bond with security for the amount of the debt, conditioned for its payment by instalments, at future periods, and that the goods levied on shall not be removed, without consent of the sheriff, and then stays proceedings on the execu- tion, leaving the debtor in possession of the goods, and permitting him to buy, sell and do business with them as before, the lien of the levy is postponed in favor of a subsequent writ, under which the goods were seized, before actual possession taken under the first execution. By accepting such bond, and staying execution, the plaintiff parts with the right of seizing the goods, before the maturity of the debt under the new contract. An alias fi. fa. by the first execution-creditor, placed in the sheriff's hands, before the first instalment on his bond becomes due, and after the goods have been seized on a subsequent writ, will not revive the lien of the first execution, nor create a new lien having priority over the subsequent execution.* But the plaintiff's mere sufferance of pro- crastination by the officer is not fraudulent per se^ the plaintiff is to be postponed only where he has directed the sheriff not to proceed f and it has been said, that an execution cannot be postponed, under any circumstances, for the default of the officer.^ Yet, where an execution was issued more than a month before the return-day, and levied on cer- tain enumerated articles, " and all the rest of defendant's goods and chattels," and no further proceedings on the execution took place for two months, no inventory being returned, the defendant being permitted to carry on his business as usual, selling some of the goods and acquiring others, and no direction given to the sheriff to proceed and sell, it was decided, that the execution was postponed, whether the delay were owing to the direction or permission of the plaintiff, or to the default of the officer.^ It would seem, therefore, that great and unreasonable delay in proceeding will have the same effect as a positive direction from the plaintiff not to proceed.' ' Hickman v. Caldwell, 4 Rawle 376. explained in Hickman v. Caldwell, 4 2 Preeburger'8 Appeal, 40 Penn. St. Ibid. 376. 244. 6 McCoy v. Read, 5 Watts 302. » Keyser's Appeal, 13 Penn. St. 409. ' Ibid. • Truitt «. Ludwis, 25 Penn. St. » Earl's Appeal, 13 Penn. St. 483. 145. 9 See Cowden v. Brady, 8 S. & R. ' Howell V. Alkyn, 2 Rawle 282. aa 510. DOEMANT EXECUTIONS. 653 § 1132. The. postponement of an execution, which has been improperly used to protect the debtor's property, takes place because such conduct is a fraud upon junior execution-creditors ; but where the latter consent to such use of the first execution, the writ does not lose its priority ;^ and, although the execution was issued with the purpose of preventing other creditors from levying, its lien will not be postponed, if the plaintiff did not use it solely for the purpose of a lien, nor interfere with the sheriff in the performance of his duty, nor give any directions inconsistent with the mandate of the writ.^ Whatever laches an execution-creditor may have been guilty of, if, before a subsequent writ has come to the sheriff's hands, he wake up and order the sheriff to proceed, he is safe;' but where there is no order to proceed given, before the second writ came into the sheriff's hands, the lien of the former writ is gone.* Where the first execution-plaintiff alleges that the order to proceed was given before the second writ came into the sheriff's hands, he must prove this fact affirmatively f and where no intervening creditor's right is thereby affected, the priority of an execution-creditor is revived, by the failure of an arrangement, made between him and a subsequent execution- creditor, upon which the stay was based ; however liable for his default in the arrangement, the first creditor is not bound to lose his debt, by parting with his priority, without receiving the stipulated equivalent for it.* If the sheriff be directed not to proceed, but disregard the direc- tion, and proceed without delay, the writ will not be postponed f and where, in consequence of the plaintiff's request, he delayed advertising the sale for only one day, and then proceeded, it was held immaterial.^ § 1133. A stay, by order of the plaintiff, where there is no collusion shown between the plaintiff and defendant, and where the property was left in the defendant's possession, was use'd by him as before the levy, and either consumed and disposed of by himself, or sold under subse- quent judgments and executions, will not operate to postpone, in favor of junior judgments, the lien of the plaintiff's judgment upon the real estate of the defendant;" so, the plaintiff may withdraw his writ, without neces- sarily discharging his lien on the real estate, as respects other judgment- creditors.^" But where the plaintiff was prevented from selling the goods, in consequence of his own agreement not to sell, but to use the levy for the purpose of protecting the property from other executions, his judgment will be postponed ; and it is not proper to submit to the jury the question whether such an understanding was a material induce- ment to the confession of the judgment; the contract itself suificiently establishes the intention of the parties." Orders to stay proceedings • Fletcher's Appeal, 17 Leg. Int. 300. ' Childs v. Dilworth, 44 Penn. St. 2 Brown's Appeal, 26 Penn. St. 490. 123. » Deacon v. Govett, 4 Phila. 7. ' Morrison v. Hoffman, 1 Penn. St. * Christy v. Reynolds, 4 Phila. 8. 13. Campbell's Appeal, 32 Ibid. 88. 5 Freeburger's Appeal, 40 Penn. St. Burke's Appeal, 6 "W. N. C. 572. 244_ "' Cathoart's Appeal, 13 Penn. St. » Post «. Naglee, ] Penn. St. 168. 416. McLaughlin v. McLaughlin, 85 ' Lancaster Savings Institution «. Ibid. 317. Wiegand, 2 Clark 246. " Lyons v. Hampton, 20 Penn. St. 46. 654 EXECUTION. form a class of cases different from those relinquLshing them altogether — as, where a plaintiff directs the officer "not to proceed further on his writ," "to put no more costs upon it," &c., which will postpone him to a subsequent ji. fa} § 1134. We have seen, that the goods are at the risk of the officer, who is liable for their safe custody till the sale. If they be removed without his consent, he may have an action against the person taking them away. A constable making a levy has no right to remove goods previously levied on by another, while they are subject to the first levy, but the right to the proceeds is determinable by law.^ But where the sheriff left the goods in the custody of strangers to the writ, upon their giving him a sealed obligation to return them, at a time and place specified, he cannot maintain trespass against the defendant, for taking the goods away before the time for their return had expired, because, till its expira- tion, he was not entitled to the possession of the goods.^ So, where the officer levied on the property of a tenant, and went away, without making au inventory, or putting any one in possession, the lien of the levy is lost, and a subsequent distress upon part of the goods by the landlord, who had no knowledge of the levy, is valid.* VIII. Interpleader. § 1135. Sheriff's interpleader act. In cases where the goods levied on are claimed by a stranger to the process, difficulties were formerly of frequent occurrence, and the officers were exposed to the hazard and expense of actions; the courts, in such cases, refused to stay proceed- ings, and direct an issue to try the title.^ For remedy whereof, it has been provided by statute,' that where a claim is made to goods levied on, or entitled to be levied on, or to the proceeds thereof, upon applica- tion by the officer, made before or after the return of the writ, and either before or after suit brought against such officer, the court from which the process issued may call before it, by rule of court, the party issuing the writ and the claimant, and may thereupon exercise, for the adjustment of said claim, and the relief and protection of the officer, all the powers and authorities necessary, and make such rules and decisions as shall appear to be just, under the circumstances of the case; the costs of such proceedings to be in the discretion of the court,^and the court to have power to direct an issue for the trial of questions of fact, when requisite. The act of 1848 is almost a verbatim copy of the British statute of 1 & 2 Wm. IV., c. 58, § 6, and the English practice, under that statute, is adopted by our courts.* § 1136. If there be an adverse claim to the property, the sheriff may ^ Kauffelt's Appeal, 9 Watts 334. Purd. 643 ; extended throughout the ^ Winegardner v. Hafer, 15 Penn. state, by act 10 March 1858, P. L. 91 ; St. 14-1. Purd. 645. ' Lewis V. Carsaw, 15 Penn. St. 31. ' See Bank v. Emerson, 36 Leg. Int. * McHugh V. Malouy, 4 Phila. 59. 226. * Ins. Co. V. Ketland, 1 Binn. 499. * Masser v. Auble, District Court, 8 Act 10 April 1848, ? 9, P. L. 450 ; Phila., 6 May 1848. MS. INTEEPLEADEK. 655 apply for an interpleader, under the statute, though there has not been an actual levy ; but the claimant may insist upon an inventory.' The statute clearly empowers the sheriif to apply to the court, if he go with the intention of levying under a fi. fa., and a claim be set up to the goods ; and in many cases, he may be well justified in applying to the court, before he perils himself by an actual seizure, under circumstances which might perhaps subject him not only to an action for the value of the goods, but also for damages for taking them.^ Especially is this so, when the goods are in the actual possession, not of the defendant in the execution, but of the adverse claimant ; a very serioMs injury might be done to such a party, by closing his store, and putting a watchman in charge, even for the short period of time necessary to procure the order of the court for an interpleader.^ The sheriff is entitled to an inter- pleader, though he has levied on fixtures attached to the freehold ; he is not bound to decide, on his own responsibility, whether the property be real or personal.'' But, where two different plaintiffs, in executions against different defendants, have directed the sheriff to levy on the same goods, he cannot require them to interplead.' § 1137. Claim. To entitle the sheriff to an interpleader, it must appear that an actual claim has been made to the goods levied on f if made by affidavit, it need not be sworn to by the claimant himself.' The bringing of an action of trespass against the sheriff, is a sufficient claim.* The claimant should aver title, at the time of the delivery of the execu- tion to the sheriff;' but he need not set forth the source of his title.'" If 1 Phillips U.Reagan, 75 Penn. St. 381. ' Webster v. Delafield, 7 C. B. 187. ^ Day V. Carr, 7 Exoh. 883 ; Pollock, * Vandyke v. Bennett, Dist. Court, C. B. Phila., 28 Oct. 1848. Why the plaintiff ' Phillips V. Reagan, ut supra. and Elijah Prentiss should not main- * Prichett v. Mc Williams, 2 W. N. C. tain or relinquish. Per curiam. This 353. is the usual sheriff's rule to inter- * Vandyke v. Bennett; Chase v. plead, and the objection raised is, that Prentiss, Dist. Court, Phila., 23 Dec. no claim was made to the goods. This 1848. Sheriff's rule to interplead, objection is made by the claimant, who Fer curiam. Two different plaintiffs in produces his own affidavit, asserting executions against different defendants, that the goods levied on are exclusively have directed the sheriff to levy upon his property, and he had actually the same goods. Under the first writ, brought an action of trespass against he, of course, levied and took posses- the sheriff for the same. It seems too sion of the property as the property of plain for argument, that such an action the first defendant. The goods being is sufficient claim to authorize us to in the custody of the law, the second make the rule ; the act of assembly execution-creditor has no right to re- was intended for the protection of the quire him to seize them manually un- sheriff in oases of this character. It der the second writ. Under the first is not for us to question its policy, but writ, he must deliver possession to the to carry out the intention of the legis- purchaser ; all that he can do under lators in good faith. It is plain, that the second, is to sell the right, title the construction contended for by the and interest of the defendant. In no claimant would make it a dead letter, event, if he pursue this course, can he Rule absolute. be responsible to the plaintiff in either ' Lafferty v. Cormick, 1 W. N. C. execution. Rule discharged. 267. « Bently v. Hook, 2 Dowl. 339, " Kurtz v. Malony, 1 W. N. C. 84. 656 EXECUTION. the defendant himself claim to hold the goods solely as trustee, he may claim in that capacity, against a seizure for his private debt ;' but an interpleader will not be granted, on the application of one who claims a lien on the property seized; the sheriff in such case, must sell, subject to the rights, if any, of the claimant.^ On such claim being made, the sheriff may apply, by petition,^ supported by the affidavit of his deputy, for a rule on the plaintiff and the claimant, to show cause why they should not maintain or relinquish their respective claims to the pro- perty; a schedule or inventory of which should be annexed. If insuffi- cient, the sheriff may have leave to amend the inventory ;^ or the court may suspend the rule for an interpleader, until he do so.* § 1138. If the sheriff have been guilty of laches in applying for the rule, he is not entitled to relief;' nor where he has already exercised a discretion in the matter.' The circumstance that the goods seized were in the possession of a stranger, and not of the execution-defendant, does not prevent the sheriff from applying to the court f so, if the execution- creditor abandon his process in favor of the claimant, the sheriff has still a right of coming to the court, even after the goods are sold ;' and it is not necessary for the sheriff to apply to the different parties for an indemnity, before he applies to the court under the act ;'" and he need not wait till an action is brought against him." He cannot safely abandon the possession, until the final order of the court is complied with, and the issue and bond are approved and filed ; if he suffer the defendant, or claimant, or any one else, to eloign the goods, he becomes responsible, if they are the goods of the defendant. § 1139. Return of the rule. On the return of the rule, if the par- ties appear and maintain their respective claims to the property, the rule is made absolute generally. If the plaintiff do not appear, the ' Fenwick v. Layoock, 2 Q. B. 108. by introducing other articles not strictly ' Brill V. West End Passenger Rail- within the general terms he has em- way Co., 4 W. N. C. 1.39. So, if the ployed at first. Sheriff allowed to amend, goods be claimed to be partnership pro- by specifying the particulars of the lot perty. Ilollnes v. Mentze, 4 Ad. & E. of lumber mentioned in his inventory. 127. * Lentz v. Witte. Dist. Court, Phila., » See Smith's Forms 390. 24 Feb. 1849. Exception to sheriff's * Parmentier v. Stewart, Dist. Court, inventory. Per curiam. A very pro- Phila., 24 Feb. 1849. Why the sheriff per practice has been adopted in this should not be permitted to amend his case. The filing of exceptions, in anal- inventory filed. Per curiam. The in- ogy to other cases, will suspend the rule ventory filed is defective; it merely discharging the sheriff, until he has filed states a lot of lumber. In oases under a sufficient inventory, or procured a de- this act of assembly, the operation of cision of the court upon the subject, which is to relieve the sheriff from so In this case, the inventory is clearly heavy an amount of responsibity, it is insufficient. Exceptions sustained, the inclination of the court, to require ° Mutton v. Young, 4 0. B. 371. from the sheriff a particular inventory ' Crump v. Day, 4 C. B. 760. of his levy ; it should be as detailed ' Allen v. Gibbon, 2 Dowl. P. C. 292. as possible — as much so as a merchant's * Baynton v. Harvey, 3 Dowl. P. C. account of stock. He ought not, how- 344. ever, to be permitted to extend his in- •" Crossly v. fibers, 1 Har. & W. 216. ventory, to the prejudice of the surety, '' Green v. Brown, 3 Dowl. P. C. 337. INTERPLEADER. 657 sheriff will be ordered to withdraw from the possession of the goods, and that the plaintiff take no proceedings against him in respect thereof.' If the claimant abandon his claim, wholly or in part, the court will, on motion, order the sheriff to proceed in respect to the goods so aban- doned. But the failure of the claimant to interplead, does not make it the duty of the sheriff to sell, whether the goods belong to the defendant in the execution or not ; and, therefore, the sheriff, in an action against him by the execution-plaintiff, is not precluded from showing that the goods belonged to a third person, although such person may have failed to join issue under the rule of interpleader; the object of the inter- pleader act is to protect the sheriff against the claimant, in case he do uot proceed under the interpleader.^ § 1140. Mule of court. It is provided by rule of court,' that when- ever a rule for au interpleader, taken by the sheriff, under the statute, shall be made absolute by the court, without any special order or direc- tion, a feigned issue shall be framed in such case, upon a wager, in the usual form, to determine whether the right of property in the goods levied on and claimed, or any part thereof, is in the defendant or in the claimant, in which issue the claimant shall be the plaintiff, and the plaintiff in the execution, the defendant ; that the declaration in such issue shall be filed by the claimant, within fourteen days from the time such rule is made absolute; and within said time, the claimant shall give bond to the plaintiff, in such penal sum, and with such security as shall be approved by one of the judges of the court, conditioned that the goods levied on and claimed shall be forthcoming upon the determina- tion of the said issue, to answer the execution of the plaintiff, if said issue shall be determined in favor of the said plaintiff in the execution, or so* many of them as shall be determined to belong to the defendant, or to be subject to the execution of the said plaintiff; that when said declaration is filed and bond given, the sheriff do withdraw from the possession of such of the goods and chattels, seized by him under the execution, as are claimed by the claimant ; that no action be brought against the said sheriff, in respect of the said goods and chattels ; and that the question of costs, and all further questions, be reserved until after the trial of the said issues. § 1141. Bond. The amount of the claimant's bond is regulated by the value of the goods ; he is not, in all cases, required to give security 1 Doble V. Cummins, 7 Ad. & B. 580. withdraw from his possession of the MoCom V. Esher, Dist. Court, Phila., goods levied on, and which are claimed 13 :tlay 1848. Why the plaintiff and by Jacob Esher, and that the plaintiff Jacob Esher should not maintain or take no proceedings against him in re- relinquish. Per curiam. In this case, spect of the goods so claimed, service of the rule has been accepted ^ Commonwealth v. Magee, 4 Phila. by the plaintiff's attorney, but he has 258. Where neither party appeared on not appeared to maintaia his claim ; the return of the rule, the court ordered theclaimant has exhibited to the court, so much of the goods to be sold, as on the other hand, the evidence of his would satisfy the sheriff's charges, and title Ordered, that the plaintiff not the rest to be abandoned. Eveleigh v. having appeared in obedience to the Salisbury, 3 Bing. N. C. 298. rule, to maintain his claim, the sheriff ' Eule xvii. | 63. VOL. I. — 42 658 EXECUTION. in double the amount of the judgment.^ In some cases, the court do not require security from the claimant, other than his own bond ; but this is only where his case is prima fade very clear; as, where he avers that he does not derive title from or through the defendant, and is in exclusive possession f or that his title is derived from a judicial sale of the defend- * Commonwealth v. Chapman, 6 W. N. C. 15. '' Haywood v. Ashman, 8 Phila. 235. Becker v. Miller, 1 W. N. C. 83. Rump V. Williams, Dist. Court, Phila., 21 Oct. 1848. Why the claimant should not be allowed to give bond without surety. Per curiam. In this case, a sheriff's rule to interplead, under the 9th sec- tion of the act of 10th April 1848, P. L. 450, has been made absolute. Under the general order of this court in such cases, it is the duty of the claimant to file a narr. in the feigned issue awarded, within fourteen days, and to give bond with sufficient secu- rity, to be approved by one of the judges of the court, that the goods levied on and claimed shall be forth- coming to answer the plaintifi''8 execu- tion, in case the issue be determined against the plaintifi'. If the claimant desire that the time for this purpose should be enlarged, he must make a special application to the court, which, upon reasonable cause shown, will en- large the time. If he neither file his narr. nor give the bond, the court, on motion of the sheriff, or plaintiff in the execution, will make an order that the sheriff do proceed with the said exe- cution, and that the claimant be barred of any action against the sheriff, or any one acting by his authority, saving, however, bis right of action against the plaintiff and all others. If he file the narr., but neglect to give the bond, the court, on motion, will order the sheriff to proceed and sell, and pay the pro- ceeds of the sale into court, to abide the determination of the issue, and that the claimant be barred of any action against the sheriff and his officers in respect of such seizure and sale, saving his rights against the plaintiff and all others. Where, however, the case of the claimant is primS, facie very clear, as where he avers that he does not de- rive title from or through defendant, and is in exclusive possession, or that his title is derived from a sale of defend- ant's goods under public authority, the claimant may obtain a rule on the plaintiff in the execution, to show cause why he should not be permitted to give his bond without security. This is the rule which has been taken in this case. We are not satisfied, however, that a sufEicient case has been made out. The execution of Campbell and Rump was for partnership debts, though on judgments against Bradley alone ; under that execution, as appears by the affidavit of the sheriff's officer, he took actual possession, as he had a right to do, of the partnership goods, on the 18th July 1848 ; while the goods were thus in the actual possession of the sheriff, a levy was made by a constable, under an execution against Bradley alone, of all his interest in the goods, and a sale made to Martin Ryan. He says, he is in exclusive possession ; it is evident, however, that he shows no right against the sheriff, under the prior execution. His possession, as far as appears, is a tortious one, as was that of the constable. If, however, the sheriff did- not take actual posses- sion, when he made the levy, then, perhaps, the plaintiff has lost his lien, and his recourse ought regularly to be against the sheriff; how far he may have lost that recourse, by his submit- ting to the sheriff's rule to interplead being made absolute, it is not now for us to decide. Rule dismissed. Butterfield v. Hirst, District Court, Phila., 4 Dec. 1849. Why claimant should not give bond without surety. Per curiam. We do not think that this is a case in which the claimant should be relieved from giving security. It appears, that she made a conditional sale to the defendant, with a stipulation that she' should retain the property until the purchase-iaoney is paid. It depends upon the question, whether possession was delivered to the vendee ; if it was, the sale was fraudulent as to creditors. We have always refused to relieve a party claiming under a bill of sale from defendant, from giving security, merely on the allegation that INTERPLEADEE. 659 ant's goods ;^ so, where the defendant, a commission-merchant, received the goods from the claimant, to be sold on commission.^ But where the claimant derives title under a bill of sale from the defendant, the court will always require security, though the possession has been changed.^ Where the claimant is a married woman, her husband's bond cannot be received ;■* nor can she be permitted to give her own bond f even though a, feme sole trader ;' it is sufficient, however, if the claimant be a married woman, that the bond be signed by the surety only/ An assignee for the benefit of creditors, must give bond, with surety, on an interpleader f and so must a foreign corporation.' If the claimant be a non-resident, the bond of the defendant in the execution cannot be accepted for him ;"^ and a non-resident plaintiff must give security for costs ;^^ but not for possRSsion had changed; it ia a ques- tion for the jury, not for the court. This is a strictly analogous case. Rule discliarged. And see Lansdorf v. Bach, 1 W. N. 0. H7. Hartman v. Schofield, Ibid. 15-t. Dallett v. Bond, Ibid. 358. Bai- ley V. Vehineier, 6 Ibid. 271. 1 Bank V. Sharp, 1 W. N. C. 6. Peter v. Barron, Dist. Court, Phila., 23 Dec. 1848. Why the claimant should not give bond without security. Per curiam. The claim is under a prior sheriff 's sale of the same goods. The plaintiff might have controverted the fact, or shown circumstances to induce a suspicion that the sale wa;s not con- ducted in the usual fair and open manner. He has not done so ; but relies upon the simple fact, that the claimant was the plaintiff in the prior execution, and the purchaser of all the goods levied on. We do not think that, of itself, ought to put the claimant to giving security. Rule absolute. Time extended to 30th Deo. 1848. ^ Faulkner v. Voight, District Court, Phila., 4 Nov. 1848. Per curiam. It appears, that the defendant in this case is a commission-merchant, and received the goods which have been levied on, in that capacity, from the claimants ; they have never been the property of the de- fendant, nor do the claimants claim in any way through them. This is a case, then, in which we think they ought not to be required to give security beyond their own bonds. ' Butterfield v. Hirst, utsupra,Tp. 658. * Jacobs V. Wells, Dist. Court, Phila., 30 March 1850. Why claimant's hus- band should not give bond. Per cu- riam. This is a case under the sheriff's interpleader act. The claimant is de- fendant's wife, who shows, indeed, that she does not derive title from her hus- band. Her own bond to restore would not bind her ; she asks us to allow de- fendant's bond to be taken. We think, however, that we cannot do this, and that some person, not the defendant, must be found to answer for the forth- coming of the goods. Plaintiff has already the defendant for the debt ; de- fendant would not increase his present responsibility one iota by it ; the pay- ment of the debt, which he is already bound for, would discharge the bond. It may be unfortunate fiDr a party like the claimant to be placed in this position, but we do not think we can relieve. If she cannot give secu- rity, the goods can be sold and the money paid into court to await the de- termination of the issue. Rule dis- charged. Where the defendant claimed as the administratrix of a former husband, the second husband was accepted as surety. Whiteaides v. Vickers, 36 Leg. Int. 16. 5 Barrett v. Gross, 2 W. N. C. 324. Seeger v. Mornhinweg, Ibid. 406. ^''Nice V. Hing, 4 W. N. C. 478; contr^, Hahs v. Sohmeyer, 6 Ibid. 271. The act 3 April 1872 (P. L. 35 ; Purd. 1010) does not empower her to give her own bond without security. Ward v. Whitney, 5 W. N. C. 492. ' Warder v. Davis, 35 Penn. St. 74 ; s. c. 3 Phila. 322. * Anderson v. Tyndale, 1 W. N. C. 144. 9 Emerson v. Grattan, 4 W. N. C. 574. >" Faulkner v. Voight, District Court, Phila., 4 Nov. 1848.' MS. " See supra, I 929. 660 EXECUTION. damages.' If the claimant fail to give bond, the court may direct the sheriff to sell, and pay the proceeds into court, to abide the event of the issue.^ There is a breach of the condition of the bond, if the issue be determined against the claimant, unless all the goods levied on be forth- coming to answer the plaintiff's writ ;^ so also, if the claimant do not appear at the trial, and a nonsuit be entered.* And the surety remains liable, notwithstanding the suing out of a writ of error by the claimant ; the bail in error are only liable for the costs.' § 1142. Issue and pleadings. It is the duty of the claimant to file a narr. within fourteen days ; if he desire the time to be enlarged, he must apply to the court specially for that purpose. If he neither file the narr. nor give bond, the court, on motion of the sheriff or the plaintiff in the execution, makes an order that the plaintiff do proceed, and that the claimant be barred of action against the sheriff, saving his right of action against the plaintiff and all others. If he file a narr., but neglect to give bond, the court, on motion, will order the sheriff to sell and pay the proceeds into court to abide the determination of the issue, and that the claimant be barred of an action against the sheriff. The claimant must be plaintiff in the issue ; but it must be framed upon his owner- ship, not upon the title of the defendant in the execution, with which he has no concern, if he fail to establish his own right to the goods.' All ' Belmont v. Norris, District Court, Phila., 27 April 1850. Why plaintiff should not give security for damages. Per curiam. This is a case in which an interpleader has been awarded, on motion of the sheriff. We see no rea- son for ordering the plaintiff in the ex- ecution to give security for damages ; unless the sheriff has been guilty of some outrage, there can be nothing but nominal damages ; if he has, upon its being shown by deposi,tion, the court would not relieve him, by granting the interpleader. The plaintiff being a non-resident, we order him to give se- curity for the costs of the issue; in that respect, though in form defendant in the issue, the case is analogous to re- plevin, in which both parties are actors. Security ordered in costs. " Faulkner v. Voight, District Court, Phila., 4 Nov. 1848. MS. Dillon v. Conover, 2 W. N. C. 126. And see Hallowell v. Schnitzer, 6 Ibid. 469. Barnum's Universal Exposition Co. V. O'Brien, 7 Ibid. 82. ' Hill V. Robinson, 44 Penn. St. 380. * O'Neill w. Wilt, 75 Penn. St. 266. Brenizer v. Cahill, 6 W. N. 0. 147. ^ Guyer v. Spotts, 85 Penn. St. 51. « Green v. Rogers, 2 Car. & K. 148. Conklin v. Sayers, Dist. Court, Phila., 14 Oct. 1848. Per curiam. This was an application to the court to settle what are the proper terms of an issue, under the general order made by the court, in the case of rules to interplead for relief of the sheriff, under the late act of assembly. The words of the order express the issue, whether the right of property in the goods levied on be in the claimant or in the defend- ant in the execution. The claimant is in all cases to be the plaintiff, and the burden of the issue is upon him, in the first instance. If he fail to make out his case, there must be a verdict for the defendant in the issue, and the jury need not, in such a case, go on to inquire whether the goods are the goods of the defendant, or whose goods they are ; the claimant, by the verdict, is shown to be a stranger, who has no right to intermeddle in what does not concern him. We are asked, however, in this case, to go further, and make the par- ticular title set up by the claimant a part of the issue. We ought not to do this ; if he make different and incon- sistent claims, at different times, that will be for the jury, and may be ex- plained. To avoid the question whether evidence of a title different from that made to the sheriff ought to be admit- ted in evidence on the trial, it will, m all cases, be the safest practice, for the INTEEPLEADEE. 661 the claimants stould be made parties to the issue, and if either of them establish a title to the property, he is entitled to a verdict ; if there be several claimants, they need not show a joint right.^ But if the claimant assert an absolute interest in the goods, he will not be allowed, on the trial, to show a right to the possession, as lessee ; having stayed the plaintiff's execution, by a claim of absolute ownership, he cannot set up a limited interest on the trial ; for, if he had truly stated his interest, the plaintiff might have sold, subject to his rights.^ The burden of proving title is upon the claimant ;^ but he is entitled to a verdict for such of the articles as he proves title to.* The issue is not amendable on the trial -.^ if, however, a mistake in the date of the levy be amendable, it is too late to object, after the interpleader has been granted.* § 1143. Effect of the interpleader. The issue having been filed, and bond given, and approved by the court, the sheriff withdraws from the possession of the goods, and delivers the same to the claimant ; but they are still considered in the custody of the law, the claimant's custody being substituted for that of the sheriff, and, therefore, not liable, in his hands, to be taken in execution by another judgment-creditor ;' but counsel for the claimant, if lie means to vary from the title previously set up, to give distinct notice, a reasonable time before the trial, of such his intention, to enable his adversary to come pre- pared to meet it. As the whole pro- ceeding is under the control of the court, it ia in our power to adopt such a practice as will best conduce to a fair trial upon the merits. See Hill V. Grant, 46 Penn. St. 200. ' Van AVinkle v. Young, 37 Penn. St. 214. ^ Meyers v. Prentzell, 33 Penn. St. 482. Stewart v. Wilson, 42 Ibid. 450. Ward V. Zane, 4 Phila. 68. McDer- mott V. Kline, 6 Ibid. 553. ' Tremont Coal Co. v. Manly, 60 Penn. St. 384. * Rush V. Vought, 55 Penn. St. 437. « Grant v. Hill, 5 Phila. 173. « Grant v. Hancock, 5 Phila. 193. ' Ward V. Whitney, 7 W. N. C. 95. Fletcher v. Freeman, Ibid. 96. John- ston V. Minor; Struthers v. Minor, District Court, Phila., 4 June 1848- Why the plaintiffs should not take the amount of their executions out of court. Per curiam.- We have had consider- able difficulty in arriving at our j udg- ment in these cases ; the point which arises is entirely new, and requires a very important principle to be settled, upon the construction of the 9th section of the act of 10th April 1848, commonly known as the "sheriff's interpleader act." On 27th June 1848, Sayres levied an execution against Minor, " upon all the right, title and interest of the de- fendant in a certain establishment," &c. ; Conkling claimed to be the owner of this establishment. The sheriff took the usual rule, which was made abso- lute ; a feigned issue was formed be- tween Conkling as plaintiff, and Sayres as defendant, and a bond for the forth- coming of the property given by Conk- ling, with sureties ; and, thereupon, the sheriff withdrew from the possession ; the feigned issue is still pending and undetermined.. On 18th Sept. 1848, an- other fi. fa., at the suitof Rankin against Minor, was levied upon the same pro- perty ; on 8th Feb. 1849, the plaintiffs in these two cases issued executions against the same defendant, to which the sheriff returns that he has levied upon the personal property of the de- fendant, subject to the two prior levies of Sayres and Rankin ; and then goes on to state specially the fact of the issue, and bond, &c., and that he has sold the property for a certain sum. I'he money has been paid into court, and the ques- tion presented by this motion is, whe- ther the property was discharged, by the proceedings upon the sheriff's rule of interpleader, from the lien of Sayres's execution. As to Rankin's execution, he does not appear to be re- presented here; and were we about to make any order which could prejudice, 662 EXECUTION. they may be distrained for rent ;' the plaintiff, however, cannot have an alias fi. fa., whilst the interpleader is pending.^ The giving of an interpleader-bond does not discharge the lieu of the execution ; if the issue be determined against the claimant, the goods may be sold under a venditioni exponas, notwithstanding an intermediate sale thereof by the claimant, if found in the possession of his vendee ;' and the production of the same goods, although depreciated, if without the fault of the claimant, will discharge him.* If an issue be framed on a second exe- cution, the first will not lose its lien, whilst the proceedings are pending, we would delay it, until such time as he could have an opportunity to be heard. We are of opinion,-however, that the property has not been discharged by the proceedings upon the sheriif 's rule of interpleader. The lien of an execu- tion once attached upon personal pro- perty, continues until that property passes to another by a judicial sale, unless it should, in the mean time, be discharged by the laches of the party, or the sheriff. The law does no man wrong ; a rule staying proceedings, be- ing an act of the court, never affects the lien of the execution, however long it may be pending ; the sheriff, under such a rule, -continues answerable for the forthcoming of the property. The sheriff's rule of interpleader is, after all, nothing but a rule to stay proceed- ings, until a certain question arising has been settled. To relieve the sheriff — to relieve the claimant, and restore him the use of his property — to relieve the plaintiff and defendant, that the goods may not be, in the mean time, eaten up by the costs and expenses — the court have adopted the practice of taking security from the claimant to the value of the goods, and then direct- ing the sheriff to withdraw from the possession. If the goods in question should be eloigned, then, indeed, the plaintiff is turned over for his remedy to his bond ; but if the identical goods can be followed and retaken, they may be reseized, and sold, either upon the same writ of fi. fa., or venditioni expo- nas granted thereon, according to the circumstances. Why should the plain- tiff be stripped of his security, without his consent, further than is absolutely necessary for the administration of jus- tice between the parties ? He never agreed to substitute the bond for his lien, or to release the goods — ^it was the act of the court; he has been guilty of no laches, ^or are there any such overwhelming inconveniences as have been supposed ; there are no markets overt in iPennsylvania ; the bon^ fide purchaser from a wrongful possessor acquires no title ; a sale, by the claim- ant, of the goods left in his possession, will convey no title, unless he is the owner. The man who buys, and pays his price, takes the goods with the im- plied warranty of title of the vendor, nothing more ; it is upon that security our daily purchases are all made ; every loaf of bread or yard of muslin we buy, for daily consumption, may be followed into our hands by the real owners. Such has been the law of Pennsylvania for more-than a century and a half, and society has, nevertheless, got along very well; occasional hard cases have been more than compensated by the security of property which the general principle has afforded. In the case of Hagan v. Lucas, 10 Pet. 400, where there was a proceeding, under a law of the state of Alabama, precisely analogous to this, the supreme court of the IJnited States held, that the lien of the execution was not discharged by the giving of bond, with security. Says Judge McLean, in delivering the opinion of the court : " On the giving of the bond, the property is placed in the possession of the claim- ant ; his custody is substituted for the custody of the sheriff; the property is not withdrawn from the custody of the law." In the hands of the claimant, under the bond for its delivery to the sheriff, the property is as free from the reach of other process," as it would have been in the hands of the sheriff. Rule discharged. ' Gilliam v. Tobias, 2 W. N. C. 371. See White v. Binstead, 13 C. B. 304, 2 Burns » Toner, 9 Phila. 37. ' Bain v. Lyle. 68 Penn. St. 60. * Ibid. SALE OF PERSONALTY. 663 in the absence of fraud, or a direction not to proceed ; in such case, it is the duty of the second execution-creditor, to call on the first, either to take issue on the claim, or to relinquish the levy.^ The statute extends to absent claimants.^ The refusal of an interpleader does not affect the right of the claimant ; he has no right to demand an issue ; the statute is for the relief of the sheriff only ; and the refusal of it leaves him in the same position as if it had not been asked.^ IX. Sheriff's sale of personalty. § 1144. Of the sale. On a fieri facias, it is the duty of the sheriff to sell the goods, if the debt and costs be not paid to him. If he wilfully delay to sell, for an unreasonable time, with a view to injure the defend- ant, he is liable to an action. As to what length of time may elapse between a levy and sale, it seems, there is no fixed rule f a postpone- ment to a day subsequent to the return-day, will be equivalent to an indefinite postponement.^ As the sheriff cannot retain the goods to his own use, on satisfying the debt of his proper money, so neither can he deliver them to the plaintiff in satisfaction of his debt ; but, though they cannot be delivered to the plaintiff without a sale, they may be sold to him.^ Where several writs are in the sheriff's hands at the same time,, the practice is, to sell on all of them, and so return, leaving the respon- sibility of distribution to the court, as if the executions were liens on the money .^ § 1145. Mode of sale. The goods must be sold by public auction, a private sale not being justifiable in any case. To permit the property to be sold otherwise, would lead to fraud ; and, hence, such an arrange- ment, though no actual fraud may be intended, is deemed fraudulent, and, consequently, postpones the execution-creditor in favor of other executions, though subsequent in date.' The publicity of judicial sales is, in every aspect in which the matter can be conceived, a requisite of indispensable necessity, and in accordance with the whole statutory polity on the subject ; secret or private sales of personal property, by an ofiicer of the law, charged with execution, are not countenanced by any adjudicated case in this state.' But such an arrangement, though fraud- ulent as to non-assenting creditors, is binding on those who were parties to it.'" Before sale, however, the sheriff is required by law," to give notice thereof, during at least six days, by not fewer than six handbills, to be put up at such places as he shall deem best calculated to give ' Howell V. Roberts, 3 Leg. & Ins. Hitchcock. 2 Bro. 333. Kep. 9. ' Tidd 1013. 1 Ld. Raym. 346. ■' Moore v. Lelar, 1 Phila. 72. ' McDonald v. Todd, 1 Gr. 17. » Bain v. Funk, 61 Penn. St. 185. » Keyser's Appeal, 13 Penn. St. 411. * Howell V. Alkyn, 2 Rawle 286 ; KIopp v. Witmoyer, 43 Ibid. 221. Huston, J. ' Bingham v. Young, 10 Penn. St. * Lantz V. Worthington, 4 Penn. St. 396 ; Coulter, J. 155 ; Gib.son, C. J. Though the sheriif '" Reamer's Appeal, 18 Penn. St. cannot levy after the return-day, yet, 510. he may complete the execution by a " Act 16 June 1836, J 42, P. L. 768 ; subsequent sale. Religious Society v. Purd. 643. 664 EXECUTION. information to the public. If he should sell on only five days' notice, though after a lawful levy, it would render him liable in trespass ;' and if the plaiutifi" became the p^irchaser, he would take no title, as against other execution-creditors.^ The sherifi' has a reasonable discretion in adjourning the sale ;' he may sell after the return-day, and even after he has gone out of office, without a venditioni exponas.^ § 1146. The sheriff" must sell the goods separately, or in parcels, unless there be circumstances to justify a departure from the rule; the sale of an entire stock of goods, in the mass, to the execution-creditor, whose attorney has instructed the sheriff" so to sell, will pass no title ;° it is the policy of the law, to multiply bidders, and increase competition.^ But it is not necessary that the property be in the actual view of the bidders, at the time of sale ; though purchasers must have an opportunity for inspection f and leasehold property need not be sold upon the premises ;^ so, the right, title and interest of a debtor in personal property, may be sold at the sheriff's office, if so advertised as to give an opportunity for inspection.' Where there is no bidder present but the plaintiff" in the execution, and no bystanders, it is incumbent on the plaintiff to inquire whether the requisite notice has been given, and a sale to him, under such circumstances, no notice having been given, is fraudulent and void;'" the mere fact that there was no bidder but the plaintiff", and no bystanders, makes the sale collusive and invalid;" it is his duty, under such circumstances, to adjourn the sale.'^ So, a sale by a constable, due notice having been given, made to the plaintiff in the execution, no person but the constable being present, is illegal and invalid.^^ If there were only one bid offered and taken, without opportunity afiTorded for a second bid, the sale would be fraudulent ; but where only one bid could be obtained, at which, after a reasonable effort to get another, the pro- perty was struck off", the sale would be valid." It is not a ground of legal fraud, that the sheriff had given the advertisements to the defendant to be posted, especially, where there were many bidders at the sale." The ^ Carrier v. Esbaugh, 70 Penn. St. valid. Bruce v. Westervelt, 2 E. D. 239. Smith 440 ; affirmed by the New York '' Gibbs V. Neely, 7 Watts 305. court of appeals. ' Tinkom v. Purdy, 5 Johns. 345. « Sowers v. Vie, 14 Penn. St. 99. Lantz V. Worthington, 4 Penn. St. 153. And see Titusville Novelty Iron Works * Dorrance v. Commonwealth, 13 v. Graham, 77 Ibid. 103. Penn. St. 163 ; Rogers, J. Religious ' Harry v. Patterson, 57 Penn. St. Society v. Hitchcock, 2 Bro. 333. A 346. sale, after sunset, is void, and renders '" McMichael v. McDermott, 17 Penn. the sheriff a trespasser. Carnrick v. St. 353. Myers, 14 Barb. 9. " Ibid. ° Klopp V. Whitmoyer, 43 Penn. St. " Ibid. Conniff v. Doyle, 8 Phila. 219. See Tifft v. Barton, 4 Den. 171. 630. Corry v. Funk, 6 Ibid. 560. Morgan v. HoUaday, 6 J. & Sp. 53, " Ricketts v. Unangst, 15 Penn. St. 117. 90. * Ibid. " Swires v. Brotherline, 41 Penn. St. 'Ibid. A_ sheriff's sale of stereotype 135 ; s. c. 48 Ibid. 68. See lynch ». plates, contained in a vault, unlocked, Commonwealth, 6 Watts 495. but not in view of the bidders, by the « Allentown Bank v. Beck, 49 P^n^ exhibition of impressions therefrom, is St. 394. SALE OF PERSONALTY. 665 sheriff may disregard a bid conditioned that the money be applied to the bidder's execution, even though he was legally entitled to the pro- ceeds of sale.' A bid reduced to writing before the sale is concluded, is a waiver of prior bids by the same person.^ § 1147. Of the purcliaser. The plaintiff may purchase at the sale,' in which case, he need not pay for the goods, unless the price exceed his demand, when he merely pays the surplus ;■* and the plaintiff purchasing, is fixed, under the principle of caveat emptor, for the amount of his bid, though his judgment, &c., be afterwards set aside, and he is bound to the sheriff for its payment.' A constable cannot lawfully purchase at his own sale, and one deputed by him to make the sale, is subject to the same disability; but where the constable personally attends and super- intends the sale, and employs a person merely as a crier, the latter may purchase at the sale. Such purchase, however, would be only voidable, and not void, except in case of actual fraud ; and where the proceeds of such sale are applied to the debt of the defendant, he cannot take advan- tage of the illegality, except by claiming a resale, or demanding the property, after tendering the purchase-money.^ Where the auctioneer himself is the sole bidder, the validity of the sale might be affected, if he were the officer intrusted with the writ ; but not where he was a crier only, and the sale was conducted under the direction of a deputy-marshal holding the writ.' If the crier, who became the purchaser, make repre- sentations, which, as is alleged, caused the property to be struck down at a price much below its actual value, the fraudulent intent of the buyer is a question of fact for the jury, not of law for the court.' § 1148. Delivery. It is the duty of the officer to deliver the goods to the purchaser. But where, after payment of the purchase-money, the officer remained on the premises a sufiicient length of time to have protected a removal of the goods, and after his departure, the purchaser was enticed out of the house, and the door locked against him, it was held, that the officer was not liable to the purchaser, in trover ; if, how- ever, the latter had requested the officer to remain, whilst he went for assistance in the removal, it would have been the officer's duty to have done so.' But where there was a dispute as to the ownership of the goods, and the purchaser, after the sale, tendered an indemnity to t\ie sheriff, and subsequently established his title to the goods, the sheriff vt as held to be liable for their value.'" Where, however, the sheriff, under a separate execution, levies upon and sells the defendant's interest in part- nership property, he cannot deliver possession ; the purchaser only acquires a right to an account." ' Faunce v. Sedo-wick, 8 Penn. St. ' Swires m. Brotherline, 41 Penn. St. 407. ° 135 ; s. c. 48 Ibid. 68. 2 Ibid. ' Brotherline v. Swires, 48 Penn. St. » Tidd 1013. 1 Ld. Raym. 346. 68. * Nichols V. Ketoham, 19 Johns. 84. ' Spear v. Alexander, 2 Phila. 89. Russell V. Gibbs, i> Cow. 390. '" Patterson v. Anderson, 40 Penn. 6 Piper V. Martin, 8 Penn. St. 211. St. 359. s Crook V. Williams. 20 Penn. St. " Deal v. Bogue, 20 Penn. St. 228. 342. Durborrow's Appeal, 84 Ibid. 404. 666 EXECUTION. § 1149. Suffering the property to remaiu in the hands of the defendant, after the sale, is not a badge of fraud,* provided it be left under such a contract of bailment as would in law protect it from the bailee's cred- itors, if he had never been the owner of it.^ So, where the purchaser made the defendant his agent, and the business was carried on as before, under the old sign and trade-mark, it was held, that the sale was legal notice of a change of property, and no correspondent change of posses- sion and of the indicia of ownership were needed, to complete the effect.^ It is for the jury to determine whether there is actual fraud, in such cases.^ And if the defendant, be in fact the real purchaser, and the nominal purchaser falsely allege, at the time of sale, his intention of leaving the goods with the defendant as an act of benevolence, or of sell- ing them again for the benefit of creditors, by which the bystanders are induced not to bid, it is a fraud, and the property remains in the defend- ant, subject to execution. The declarations of the bystanders, at the time of the sale, are evidence as part of the res gesta? § 1150. Payment. Where a promissory note is taken from the pur- chaser in payment for the goods, it may, as respects the liability of the ofiicer, be treated as money.^ A sheriff who accepts the notes of the pur- chaser at a sale, instead of cash, has no power to assign them in pay- ment of his private debt ; the parties interested may follow the fund, and reclaim it in the hands of such assignee, with notice, and are not bound to look to the sheriff's sureties for their indemnity ; notice to the attorney and agent of such assignee, of the consideration of the notes, is notice to the principal.'' Where several execution-creditors agree that the sheriff shall sell the defendant's goods upon credit, the priority of lien among them will not be disturbed.' § 1151. Effect of sale. The debtor's liability for the debt ceases on the return-day of the writ, to the extent of the proceeds of the sale ; no matter how the pla,intiff be delayed in obtaining the fund, provided the defendant has not aided in such delay, his debt is paid, and his liability for interest on the amount of such proceeds must cease.' And the prin- ciple, that in judicial sales there is no warranty, is applicable to sales of personal as well as real property; hence, a judgment is satisfied by a levy and sale of goods to its amount, under afi.fa., although the title of the plaintiff in the execution, who was the purchaser at the sale, be sub- sequently defeated in an action of replevin.*"' And where the plaintiff purchased at a sale under his own judgment, he is, under the principle • Waters v. MoClellan, 4 Ball. 208. » Walter v. Gernant, 1.^ Penn. St. Walter d. Gernant, 13 Penn. St. .515. 515. Lover v. Mann, 2 Am. L. J. 95. « Seitzinger v. Steinberger, 12 Penn. 2 Myers v. Harvey, 2 P. & W. 478. St. 379. Dick V. Cooper, 24 Penn. St. 217. ' Reed's Appeal, 34 Penn. St. 207. Craig's Appeal, 77 Ibid. 448. « Fletcher's Appeal, 17 Leg. Int. ' Lothrop V. Wightman, 41 Penn. St. 300. 297. * Strohecker v. Farmers' Bank, 6 * Van Reed v. Serin. District Court, Watts 96. Glaoken's Estate, 9 Pitts. Phila., March 1840. MS. Loucheim u. L. J. 50. Henszey, 77 I'enn. St. 305. '» Freeman v. Caldwell, 10 Watts 9. SALE OF PERSONALTY. 667 of caveat emptor, fixed for the amount of his bid, and bound to the sherifi' for its payment, though his judgment, &c., were afterwards set aside.' § 1152. Purchaser's title. The principle, that in judicial sales there is no warranty, applies equally to judicial sales of chattels and of land.^ Such a sale passes the title to personal property, although the judgment upon which the execution issued should afterwards, in a contest as to the distribution of the proceeds, be decided to be invalid f but a sale to the plaintiff, upon a satisfied judgment, is void, and confers no title ;^ so, in case of a void judgment.^ If the writ be irregular, the sale is void; thus, an execution issued by one justice on the transcript of another justice of the same county, who was at the time in commission, and acting in his ofiice, is wholly void, and not merely voidable, and a levy and sale thereunder passes no title in the goods sold.^ So, where a judgment before a justice has been appealed from, and the execution revoked by the justice, the constable is a trespasser, if he go on with the sale, and the purchaser takes no title ; the justice is the proper person to determine whether the appeal was regularly taken ; if he allow it, the constable cannot refuse to recognise it, on the ground that the justice committed an error.^ The purchaser's title is not vitiated by the refusal of the constable to appraise and set off under the exemption law.' § 1153. A sale of partnership property on execution, under a judg- ment confessed by one partner alone, in the name of the firm, and for a partnership debt, will vest a good title to the property in the purchaser.' But, where, under an execution against a single member of a firm, his interest in the partnership property is sold, the purchaser acquires no right to the possession of the specific chattels ; the remaining partners are entitled to the exclusive possession ; such purchaser is only a quad tenant in common with the other partners iu the property of the firm, so far as to entitle him to an account ; but he has nothing to do with the settlement of the partnership concerns ; th^t is the right and duty of the remaining partners, and for that purpose they are entitled to the possession of the partnership property ; hence, such a purchase gives the sheriff's vendee no right to maintain replevin for the goods sold, as against one who purchased at a subsequent sheriff's sale, under an exe- cution issued against the same partner as sole owner.'" And even though one of a portion of the owners against whom the writ issued, have authority to sell all the shares of the owners of the chattel, a vessel, ' Piper V. Martin, 8 Penn. St. ' O'Donnell v. Mullin, 27 Penn. St. 211 199. ' Freeman v. Caldwell, 10 Watts 9. ^ Hatch v. Bartle, 4.5 Penn. St. 166. ' Thompson v. O'Hanlen, 6 Watts ° Corson v. Beans, 3 Phila. 433. 492. Grier v. Hood, 25 Penn. St. 430. * Gibbs V. Neely, 7 Watts 305. '» Reinheimer v. Hemingway, 35 Wood V. Colvin, 2 Hill 566. Penn. St. 432. Coover's Appeal, 29 5 Camp V. Wood, 10 Watts 12a. Ibid. 9. Deal v. Bogue, 20 Ibid. 228. « Hallowell v. Williams, 4 Penn. St. Lothrop v. AVightman, 41 Ibid, 297. 343. Smith v. Emerson, 43 Ibid. 456. 668 EXECUTION. the sheriff can sell only the interest of the defendants.^ But those of the owners who were not parties to the writ, might consent that their shares should be sold under the writ against the others, and in such case, the parties consenting will be estopped from disputing the purchaser's title, and may come in upon the surplus proceeds of the sale.^ Where a sheriff's sale was void for irregularity, it is, nevertheless, valid, if rati- fied and confirmed by the defendant.^ Where an attorney purchases at a sale under his client's execution, he does not become ipso facto a trustee for his client, but he may be made a trustee at the client's election ; such election is a mode of contracting, and, therefore, must take place between the parties.* A sale of bank-stock in execution, by the act of 1819, is subject to the lien of any debt due by the holder to the bank ; and a subsequent sale under such lien divests the title of the first purchaser.^ § 1154. If the purchaser, though cognisant of the illegality of the sale, or that the goods do not belong to the defendant, only participate in the transaction as purchaser, he is not liable to the owner in trespass f so, also, when the sheriff sells and delivers possession to the purchaser. From the moment of seizure, the property, although left with the owner, is constructively in the possession of the sheriff, and the removing of it by the purchaser, is only a completion of the purpose of the original seizure;' the remedy in such case is detinue, replevin in the detinet, or trover, after a demand and refusal.* But where the sheriff made no actual delivery at the sale, and the property was afterwards taken away by the purchaser, there was no such necessary constructive connection between the possession of the sheriff and that subsequently taken by the purchaser, as would relieve the latter from liability in trespass to the actual owner.' § 1155. Goods sold by a constable under an execution, are protected from a sale under an execution in the hands of the sheriff, though the latter execution were first delivered, if the sheriff had made no levy ; nor does a knowledge of the fact that the sale was under the second exe- cution, impeach the vendee's ^itle.^° When the purchaser falsely declares that his purchase shall inure to the benefit of the debtor or his family, he acquires no title ; but if such statement be true, the declaration will not invalidate the sale." Where the plaintiff, who purchased at the sheriff's sale, had never credited the defendant on his judgment, but had settled his debt in another way, and there was no change of possession, the goods remained liable to execution as the property of the defendant.^^ ' Hopkins v. Forsyth, 14 Penn. St. Hammon v. Fisher, 2 Gr. 330. 34. T Ibid. ' Ibid. * Hammon v. Fisher, ui supra. ' Klopp V. Witmoyer, 43 Penn. St. » Ward v. Taylor ; Talmadge v. 226. Soudder, ut supra. * Downey v. Gerrard, 3 Gr. 64. See '" Duncan v. McCumber, 2 W. & S. Barrett v. Bamber. 81 Penn. St. 247. 267 ; see s. c. 10 Watts 215. ' West Branch Bank v. Armstrona;, " Dick B. Cooper, 24 Penn. St. 40 Penn. St. 278. 217. « Ward V. Taylor, 1 Penn. St. 238. " Schott v. Chancellor, 20 Penn. St Talmadge v. Scudder, 38 Ibid. 517. 195. SALE OF PEESONALTT 669 The defendant cannot dispute tlie title of the purchaser of his goods at the sheriff's sale, on the ground of fraud upon the plaintiff in the execu- tion, in an arrangement made between the latter and the purchaser.^ A sheriff's vendee, with notice, buys exactly what the judgment-creditor can sell ; and if he can sell no more than the interest of the debtor, it follows, that he stands in the place of the debtor.^ § 1156. Setting aside sale. The court from which the execution issued, may inquire into the regularity and fairness of the sale, at the instance of a party interested by execution, foreign or domestic attach- ment, or under a general assignment, upon affidavit of circumstances, before delivery of the goods ; and if it appear that the sale was so irregular or fraudulent, as, in the opinion of the court, to have produced a sacrifice of the property, to the prejudice of such party, the court may set aside the sale, and the property may be again exposed to sale. In such case, a judge, at chambers, may grant a rule to show cause, return- able to the next session of the court. And if the circumstances require, the court may direct an issue to try questions of fact ; and may order a sale, in the meantime, of perishable or chargeable goods — the proceeds to be held to abide the result of the trial.^ It is too late, to move to set aside a sale of personal property, after a delivery to the purchaser ;* and the application must be made by a party in interest^ — the sheriff is not such party.* Nor will the court set aside a sale, unless so irregular or fraudulent as to have produced a sacrifice of the property.^ The court, however, will set aside a sheriff's sale of personal property, which has been sold at a great sacrifice, on the ground that it was not in view of the persons attending the sale, and that it was not sold in parcels ; the interest of the debtor not being that of a pledgor, though the property was held under a lease from him.* § 1157. Metivrn of the writ. On the return-day of the fieri facias, the sheriiff may be called upon, by rule, to return the writ ; and if he do not return it, or offer a reasonable excuse, an attachment will be awarded against him.' The return to an execution is made in the sheriff's own name, and also in that of his deputy, and, as has been seen, he will be allowed to make an addition to his return, if the omission has been acci- dental merely.'" To a fieri facias, the returns usually made are — first, that he has caused to be made of the defendant's goods and chattels, the whole or part of the debt, &c., which he has ready, to be paid to the plaintiff; but he need not specify the particular goods taken and sold ;'i ' Richards v. Alden, 1 Gr. 247. ' Dateman v. Trine, 2 Luz. L. Reg. 2 Reed's Appeal, 13 Peiin. St. 479; 103 Gibson, C. J. Osterman v. Baldwin 6 Wall. 116. » Act 10 April 1849, P. L. 597 * Maokaness v. Long, 85 Penn. St. 158. , ' Ibid- Purd. 645 ; extended throughout the * Morgan v. HoUaday, 6 J. & Sp. 53, state, by act 10 March 1858, P. L. 91 Purd. 645. * Lawrence v. Gallagher, 2 W. N. C 261. Dateman v. Trine, 2 Luz. L. Reg, 117. « Tidd 1017. '" Insurance Co. v. Ketland, 1 Binn. 499. i03. " It is enough to say : " I have levied 670 EXECUTION. secondly, that he has taken goods to a certain amount, which remain in his hands unsold, for want of buyers; or, thirdly, "nulla bona," or that defendant has no goods and chattels, lands or tenements, in his bailiwick, whereof he can cause to be made the sum directed, or any part thereof. The return may be special, with the addition that the defendant, being an executor or administrator, has wasted the goods of the testator or intestate.' §1158. In an action against the sheriff for misappropriating money made upon a fieri facias, which he had returned without a levy, it is not competent for him to prove by parol, that a levy was actually made, nor to give in evidence a written levy of the property out of which the money was made, which had remained in his possession, until the time of trial.^ So, schedules of property levied on, which were not returned with the writ, are not admissible in eviden'ee for the sheriff, to show what was seized under the writ.' In some of the counties in this state, it is usual for the sheriffs to return " debt and costs paid," without stating the facts of levy or sale ; whether such would be a legal return, if made in proper time, is uncertain ; but, after a delay of two years, it has been held to be unworthy of the name of a regular return, and inconclusive.* A return that the sheriff had paid over the surplus of the proceeds of a vessel, after satisfying the execution, to one of the owners, for himself, and as agent for the others, is not a legitimate part of the return ; and the proper remedy of one of the part-owners to recover his share, is in assumpsit, and not by an action for a false return.^ If the sheriff has committed a mistake in his return, he may apply to the court for leave to amend, which will, in general, be granted.^ § 1159. Payment by sJieriff. When the sheriff has returned fieri feci, the party applies to him for payment, and he is immediately res- ponsible to him for the amount f if he withhold payment, he is liable to an action of debt on the return, or of assumpsit for money ^had and received.' The latter action lies also, if he retain more money for fees, and made of the goods and chattels of The court will not, in general, order the within-named C. D., deceased, in the sheriff to pay the proceeds of per- the hands of A. B., executor within sonalty into court ; Snow k. Hyman, 2 mentioned, to the value of fifty dollars, W. N. C. 352 ; though they have power which money I have ready. The an- to do so in a proper case ; it is the swer of , high sheriff." Fitler duty of the sheriff himself to make the V. Fatten, 8 W. & S. 455. distribution. Marble Co. v. Burke, ' Tidd 1018. 5 Ibid. 124. And see supra, i 1097, n. ^ JMcClelland v. Slingluff, 7 W. & S. The court have power, by the act of 134. Kintzing v. McElrath, 5 Penn. 28 June 1871, P. L. 1371, Purd. 658, St. 467. to make a decree of distribution, with- ' McElrath v. Kintzing, 5 Penn. St. out a, payment into court, and such 336. decree mav be enforced by attachment. * Weideman v. Weitzell, 18 S. & R. Act 16 June 1836, § 28, P. L. 793 ; 96. Purd. 273. The sheriff has a right to * Hopkins v. Eorsyth, 14 Penn. St. retain the money, until the return-dav, 34. Fisher v. Allen, 2 Phila. 115. * See supra, § 1068. ' Dumond v. Carpenter, 3 Johns ' Scott V. Greenough, 7 S. & R. 200. 183. PUECHASE-MONEY. 671 &c., than he is entitled to at the suit of the creditor.' A payment by the sheriff of money made on an execution to one of the several plaintiffs, discharges the sheriff, unless notified not to pay, and he cannot main- tain a suit to recover it back, for the use of the others.^ He is liable, if he pay it to plaintiff's attorney, after notice of the revocation of his authority.' He cannot apply it to a debt due to himself from the plain- tiff;* nor, where he has paid it to the wrong person, can he, in an action against him by the plaintiff, set up in defence, that he holds a promissory note of the latter.' § 1160. If he choose, the sheriff may himself apply the proceeds of the sale to the execution ; but in doing so, he incurs the risk of mistake. Thus, if he pay the plaintiff, before the return-day, or permit him to pur- chase the goods, he is liable to a subsequent execution-creditor, in case the writ be set aside by the court ; and a decree of the court, sanctioning the payment, will not protect him, unless the money have been paid into the court.^ So, if, after the levy, a rule were taken to show cause why the judgment should not be opened, he is liable, if he apply the pro- ceeds to a subsequent execution, since such rule does not stay proceed- ings, without an order to that effect.^ So, he should give the landlord time to make his claim, and a payment to the plaintiff in the execution, the next day after the sale, and ten days before the return-day, is too soon, and renders him liable to the landlord.' Where, having paid the money to the plaintiff's attorney, the sheriff lost his receipt, and paid it over again, his personal representatives, having found the receipt, may recover the money back;' so, if he have paid the plaintiff more than he is entitled to, he may recover it back in an action.'" If, he, by mistake, apply the money to a junior execution, when he should have applied it to a senior writ, he cannot recover it back, although he has thus made him- self liable to pay it likewise to the senior execution-creditor ;" nor is the party receiving it in good faith, liable to the senior execution-creditor.'^ § 1161. It is at his own risk, then, that the sheriff distributes the pro- ceeds of an execution, before the return-day.'' In practice, he usually takes that risk, and where there are no conflicting claims, it is very well to avoid the delay and expense of paying the money into court; but this will not excuse him, if he commit a blunder, however unintentional. All the cases agree, that when he has several writs against the same person, he cannot safely pay one plaintiff, before the return-day, nor, perhaps, for some days after, except on notice to the others, and with ' Prior V. Craig, 5 S. & R. 48. Reed St. 358. V. Cist, 7 Ibid. 183. Clinton v. Strong, « Fisher v. Allen, 2 Phila. 115. 9 Johns. 370. " Bradford t). White, 1 Phila. 26. ^ Lazarus v. Follmer, 4 W. & S. 9. '" Longeneoker v. Zeigler, 1 Watts « Irwin V. Workman, 3 Watts 357. 257, 302. * Miles V. Riohwine, 2 Rawle 199. " Urie v. Johnston, 3 P. & W. 221. ^ Irwin V. Workman, ut supra. See McDonald v. Todd, 1 Gr. 17. « Williams's Appeal, 9 Peun. St. " Deichman v. Northampton Bank, 267. Otherwise, since the act 28 June 1 Rawle 54. 1871, P. L. 1376 ; Purd. 658. " Wortman v. Conyngham, Pet. C. C. ' Spang V. Commonwealth, 12 Penh. 245. 672 EXECUTION. their assent; the junior has until that time to contest the right of the senior to the fund, and the sheriff has no right to prefer his antago- nist; and when the sheriff has notice of an adverse claim, he cannot safelV' pay, even after the return-day, but should pay into court or force the claimants to rule him to do so.' If a third person claim a right to the money, he may rule the sheriff to pay it into court, and when this is ordered, such person may assert his right to the money, or any part of it, and the court will, in its discretion, determine these contested claims, upon a rule to show cause.^ Where the sheriff paid one execution-creditor, taking a bond of indemnity, and the fund was afterwards awarded to another execution-creditor, it was held, in an action on the bond, that the decree of distribution, unappealed from and unreversed, was conclusive, and that the right of the successful creditor to the money awarded him could not be again examined in such collateral action ; and further that a recital in the bond, that the money was made at the suit of the obligor, would not estop the sheriff from suing on the bond, after he had been compelled to pay the fund to another creditor.^ § 1162. Payment into court. The court from which the writ issued has power, in all cases of dispute concerning the distribution of the proceeds of sales on execution, whether of real or personal estate, to hear and determine the same ;* and they may do so, without ordering the money to be paid into court.' As a general rule, the proceeds of personal property will not be ordered into court, except on the appli- cation of a lien-creditor, who shows some reasonable ground to dispute the right of the execution-plaintiff;' the latter is primd faeie entitled to Williams's Appeal, 9 Penn. St. 267, The counsel for the applicant supposes and cases there cited. that, by virtue of his execution, the ^ See Harrison v. Wain, 9 S. & R. sheriff could take any current coin or 318. bank-notes in his possession belonging ' Noble V. Cope, 50 Penn. St. 17. to defendant, and that he, therefore, * Act 16 June 1836, § 86, P. L. 777 ; stands in the position of a party hav- Purd. 656. ing a lien. (Act of 16th June 1836, 5 Act 28 June 1871, P. L. 1376; |§ 24, 85.) However, the money in Purd. 658. As a general rule, they will the sheriff's hands, in no case, speci- not exercise this power, where the fund fically belongs to any party, so as to be arises from a sale of real estate. Ex subject to execution ; the plaintiff in parte Poulson, 33 Leg. Int. 32. an execution, or the defendant, as to any ' Stinson v. McEwen, District Court, surplus, has no property in the particu- Phila., 8 April 1848. Motion for a lar coin or bank-notes the sheriff may rule on the sheriff to pay money into have received on the sale of the goods, court. Per curiam. The money in the Turner u. Fendall, 1 Cr. 134. By the hands of the sheriff is the proceeds of proviso to the 24th section of the act personal property. It is our practice, in of 16th June 1836, the sheriff is pro- such oases, never to order the money into hibited from taking or retaining ''any court, unless upon the application of money which shall have been levied some one who has alien upon it, and by him, at the suit or instance of the who shows some reasonable ground to defendant, upon any other execution." dispute the right of the plaintiff upon The same reason applies to money be- whose process it was made. The appli- longing to the defendant in his hands, cant here is an execution-creditor, but made upon an execution against him; his execution was not placed in the such money has been often held not to hands of the sheriff, until after the sale, be subject to an attachment. Ross ». DISTRIBUTION. 673 the fund, without regard to an irregularity in issuing the execution ;^ and without regard to the return on a subsequent writ.^ To induce the court to make such order, special circumstances must be shown, render- ing it necessary for the protection of a lien-credttor.^ The sheriff him- self has no right to pay the fund into court, without a special order ; it is not necessary for his protection, as he can never be made responsible for paying the respective executions in his hands, after the return-day, in the order in which they were delivered to him, unless he has notice that the right of a prior execution-creditor is contested by one who is subsequent in point of time. If the party who raises such a question, do not bring it to a hearing, by moving that the money be paid into court, the sheriff may make the motion himself, and call on the party to sup- port it by affidavit ; and if the application be then dismissed, it will be an answer to any subsequent proceeding against the sheriff.* § 1163. Distribution, The fund, being in court, is to be distributed among those claimants who are by law entitled to it. The manner in which the rights of claimants are ascertained, being the same, whether the fund arise from the sale of personal or real estate, will be examined under the latter branch of the subject. But the principles which govern the distribution of the proceeds of a sheriff's sale of personalty, are fun- damentally different from those which control the distribution of a fund arising from the sale of real estate — the former being bound by the exe- cution, but the latter, by the judgment. These principles will be briefly here discussed — first, with reference to claims which have a preference of payment out of the fund ; then, as to contests between different exe- cution-creditors of the same defendant ; and, in the last place, as to dis- putes between separate and partnership creditors. § 1164. Wages. By various acts of assembly, preferences are estab- lished in favor of certain classes of creditors, in the distribution of the proceeds of sheriffs' sales of personal property. The first of these, in order of priority, after payment of the costs of the sale by which the fund is produced,^ is the wages of labor,' which will be here considered. The act of 1872 provides,^ that all moneys due for labor and services rendered by any miner, mechanic, laborer or clerk, from any person or company, employing such parties, either as owners, lessees, contractors or under-owners of any works, mines, manufactory or other business, where such parties are employed, whether at so much per diem or other- wise, for any period not exceeding six months preceding the sale and Clarke, 1 Call. 355. Fretz v. Heller, 2 204. See supra, 5 1097 n. W. & S. 397. Riley v. Hirst, 2 Peun. * Malone's Appeal, 79 Penn. St. 481. St. 347. Motion refused. Strohecker v. Buffington, 1 Pears. 124. ' Wilkinson's Appeal, 65 Penn. St. * The wages of laborers are entitled 2gg_ to a preference over the landlord's ^McCahen v. Bennett, 1 Phila. 22. claim for rent. O'Brien v. Hamilton, ' Weis V. Weis, 3 W. N. C. 76. 35 Les;. Int. 68. Where they are em- Snow V. Hyman, 2 Ibid. 352. Koch- ployed by the lessee. Act 12 June enderfer v. Feigel, 5 Ibid. 404. 1878, P. L. 207 ; Purd. 2175 * Marble Co. v. Burke, 5 W. N. C. ' Act9 Aprd 18,2, P. L.47| Purd. 124, 126. Dunn v. Megarge, 6 Ibid. 1464. VOL. I. — 43 674 EXECUTION. transfer of such works, mines, manufactory or business, or other pro- perty connected therewith, in. carrying on said business, by execution or otherwise, preceding the death or insolvency of the employer, shall be a lien upon such property, to the extent of the interest of said owners or contractors, and shall be preferred and first paid out of the proceeds of the sale, not exceeding two hundred dollars. The statute further pro- vides, that in cases of executions, landlords' warrants, attachments and writs of a similar nature, it shall be lawful for such miners, laborers, mechanics or clerks to give notice in writing of their claim or claims, and the amount thereof, to the officers executing either of such writs, at any time before the actual sale of the property levied on ; and the latter shall pay to such parties, out of the proceeds of sale, the amount each is justly and legally entitled to receive, not exceeding two hundred dollars. § 1165. It has been held, under this act, that the employees of a mer- chant tailor are entitled to a preference for their wages, out of the pro- ceeds of an execution;' but a servant in a hotel is not within the protection of the statute;^ nor is a farm-laborer;' nor the skilled employee of a florist ;* nor a contractor, who employs others to do the work f a chief workman, however, who has paid his helpers, is entitled to a preference for such payments.'' The rights of laborers, under the statute, cannot be aiFected by the contract between the parties ;' but wages are not entitled to a preference over an execution-creditor, whose judgment was obtained on a contract made prior to the passage of the act.* Wages due by a firm are not payable out of the proceeds of a sale of the interest of one of the individual partners.' There are contradictory decisions upon the question, whether wages earned after the date of the levy, are entitled to a preference out of the proceeds of sale ; the courts of Philadelphia hold, that they are entitled to such preference ;'" though there are respectable authorities to the contrary,'' which, however, our courts consider insuffi- cient to overcome the plain language of the act ; the plaintiff may avert the hardship, by holding the sheriff to diligence in the execution of his writ.'^ Unless the mechanics and laborers give notice of a claim for wages to the officer, before the sale, they cannot come in upon the fund.'' ' Teets V. Teets, 6 Luz. L. Reg. 19. 117. But in Fell v. Du£fy, 6 W. N. C. 44, it « Modes's Estate, 76 Penn. St. 502. was ruled, that the act does not extend ' Beatty's Appeal, 3 Gr. 213. King to the employees in a purely oommer- v. King, 2 W. N. C. 201. cial establishment, such as a grocery '° Askam v. Wright, 1 W. N. C.156. store. _ McCuttle v. Fitzgerald, 2 Ibid. 396. '' Sullivan's Appeal, 77 Penn. St. 107. Graham v. McLean and Bennor Ma- Allen V. Fehl, 33 Leg. Int. 366. chine Co., 35 Leg. Int. 70. ' Solms's Estate, 34 Leg. Int. 169. " Schrader v. Burr, 10 Phila. 620. ' Pfaender v. Hofifman, 4 W. N. C. Kindig v. Atkinson, 34 Leg. Int. 196. 171. Schwartz v. Banks, Ibid. 250. * Wentroth's Appeal, 82 Penn. St. " Askam v. Wright, ut supra. 469. >' Bank of Corry v. Childs, 10 Phila. " O'Brien v. Hamilton, 35 Leg. Int. 452 ; affirmed, 1 W. N. C. 55. Fulton 68. And see Seiders's Appeal, 46 v. Howard, 22 Pitta. L. J. 74. Peif- Penn. St. 57. fer's Estate, 6 Luz. L. Reg. 101. ' Nesmith's Appeal, 6 Leg. Gaz. DISTEIBUTION. 675 The notice must be in writing, and must state the business in which the employer was engaged, the fact that a lien is claimed upon the property taken in execution, and also the particulars of the service, and the amount claimed.* § 1166. Rent, Next in order as a preferred claim is the landlord's demand for rent. This is based upon the act of 1836,^ which enacts that the goods and chattels in or upon any premises, demised for life or years, or otherwise, taken by virtue of an execution, and liable to the distress of the landlord, shall be liable for the payment of any sums of money due for rent, at the time of taking such goods in execution, not exceeding one year's rent. And such rent shall be paid out of the proceeds of sale, even in preference to the costs, except such as the landlord would be liable to pay, in case of a sale under distress. The practice is, to rule the sheriff to pay the amount of rent due out of the proceeds of sale ;' but as the existence of arrears of rent is a matter peculiarly within the landlord's knowledge, he ought to give notice of it to the sheriff, in time to produce as little delay to the execution-creditor as possible ; it is suffi- cient, however, if this be done, before the sheriff has parted with the pro- ceeds of sale.* And the sheriff is bound to keep the proceeds a reasonable time, to enable the landlord to make his claim ; a payment to the exe- cution-creditor, on the day after the sale, and ten days before the return- day, is too soon, and will render the sheriff liable to the landlord.^ § 1167. The statute was intended to make amends to the landlord for taking away his power of distress, by a judicial sale of the tenant's goods ; hence, if a lessor have no right to distrain for rent, he cannot claim the arrears out of the proceeds of an execution f as, where the goods are exempt by law from being distrained for rent -J but a waiver of the exemption law in favor of an execution-creditor, will not give him a preference over the claim of the landlord.* And to entitle the latter to claim rent out of the proceeds of a sale of personal property, there must be an existing tenancy; if he accept a surrender of the term, after the levy, his right to claim rent out of the proceeds of sale is at an end f so, where the rent and the reversion are separated by a sheriff's sale, such rent is not payable out of the proceeds of a sale of the tenant's goods ;'" and, if the defendant die, after a levy, and before rent becomes due to ' Peiffer's Estate, 1 Luz. L. Reg. 101. ^ Ksher v. Allen, 2 Phila. 115. And see MoMillen v. Bank of Corry, " Ege v. Ege, 5 Watts 134. Martin's 1 W. N. C. 55. Kindig v. Atkinson, Appeal, 5 W; & S. 2:20. Beltzhoover 34 Leg. Int. 196. Graham v. McLean o. Waltman, 1 Ibid. 416. He cannot and Banner ^Machine Co., 35 Ibid. 70. claim out of the proceeds of goods The strictness of this rule was relaxed which have been removed from the de- in Bennett's Estate, 7 Luz. L. Reg. 2 ; mised premises, but not clandestinely, and the case of Peiffer's Estate dis- prior to the levy. Grant's Appeal, 44 sented from. Penn. St. 477. 2 Act 16 June 1836, §| 83, 84, P. L. ' Rowland v. Goldsmith, 2 Gr. 378. 777 ■ Purd. 645. ' CoUins's Appeal, 35 Penn. St. 83. » West V. Sink, 2 Teates 274. ' Greider's Appeal, 5 Penn. St. 422. * Ege V. Ege, 5 Watts 134. Beek- Shaw v. Oakley, 7 Phila. 89. man v. Lansing, 3 Wend. 446. And '° Hoskins v. Houston, 2 Clark 489. see Allen v. Lewis, 1 Ash. 184. Hampton v. Henderson, 4 Ibid. 438. 676 EXECUTION. his lessor, the latter cannot claim out of the proceeds of a sheriff's sale.' But if the landlord retain the title, and the power to distrain, he is entitled ,to his rent out of the proceeds of the tenant's goods, without regard to the time when it accrued.^ He is entitled to claim rent, which is payable in advance, by the contract of the parties f but if the rent has been paid in advance, on a sale during the current quarter, he has no claim on the proceeds ;* he cannot claim rent for a proportionate part of a quarter which has not commenced at the time of sale.' A lessor, however, is entitled to arrears of rent, out of the proceeds of the goods of a sub-tenant, though the latter has paid his rent to his imme- diate landlord.* If the landlord has previously distrained the property, and it has been replevied by the tenant, he can only claim such rent as accrued subsequently to the distress.'' And if the lease so mix the real and personal property together, that it cannot be determined how much of what is called the rent is to be paid for the chattels, and how much is the profit of the land, there can be no distress for non-payment of it.' No one but the immediate landlord of the defendant can claim rent out of the proceeds of sale f ground-rent is not within the act.'" The rights of the landlord are fixed at the date of the levy, and cannot be altered by the subsequent acts of the parties.'' § 1168. The landlord is not confined, in his claim for rent, to the cur- rent year, so that no more than one year's rent be received.'^ He is entitled to apportion his rent, and to receive payment out of the pro- ceeds, up to the time of the levy ;'^ but not to time of sale;'^ and he can only claim rent to the time of the levy, notwithstanding a stay of proceed- ings, under a sheriff's interpleader.'^ Where, however, the goods of a • tenant of a watering-place were sold on execution, it was held, that the landlord's rent was to be apportioned for the season, not for the whole year ;'* and where goods are levied upon under different executions, he is entitled to rent up to the date of the levy on that execution which exhausts the property." A landlord is entitled to his rent out of the proceeds of goods attached, and removed by a constable, under the act ' Hoskins u. Houston, 2 Clark 489. " Case v. Davis, 15 Penn. St. 80. McKim's Estate, Ibid. 224. '^ Ege v. Ege, 5 Watts 134. Kichie '' Moss's Appeal, 35 Penn. St. 162. v. MoCauley,4 Penn. St. 471. Parker's Lewis's Appeal, 66 Ibid. 312. Appeal, 5 Ibid. 390. Weltner's Ap- » Collins's Appeal, 35 Penn. St. 83. . peal, 63 Ibid. 302. * Purdy's Appeal, 23 Penn. St. 97. '^ Westw. Sink, 2Yeates274. Wiokey ' Morris v. Billings, 1 Phila. 464. v. Eyster, 58 Penn. St. 501. Theriat v. And see Martin's Appeal, 5 W. & S. Hart, 2 Hill 380. 220. 1* Binns v. Hudson, 5 Binn. 505. = MoComb's Appeal, 43 Penn. St. Case v. Davis, 15 Penn. St. 80. Wager 435. V. Duke, 1 Clark 316. Mecarse v. ' Gray v. Wilson, 4 Watts 39. Tanner, Ibid. 331. * Commonwealth v. Centner, 18 '* Horan v. Barrett, 3 Luz. L. Obs. Penn. St. 447. 96 ; s. c. 5 Leg. & Ins. Rep. 27. Bromley v. Hopewell, 14 Penn. St. '« Anderson's Appeal, 3 Penn. St. 400; 8. c. 2 Miles 414. Brown u. Fay, 218. *',y?P'i. 892. " Worley «. Meekley, 1 Phila. 398. '» PatUson V. McGregor, 9 W. & S. Todd v. Ashton,4 W. N.C. 347. Leam- 1^0. ing's Appeal, 5 Ibid. 221. DISTRIBUTION. 677 of 1842, and subsequently sold on execution in favor of the attaching- creditor.i And though his lease contain a waiver of the exemption, he is entitled to come in on the proceeds of an execution, if he has used reasonable diligence to make the fund within his reach available in satisfaction of the rent.^ His claim will prevail over that of an assignee in bankruptcy f but not over the sheriff's costs for executing the writ ; the exception in the act is confined to the costs of the execution, and does not extend to those of the sale ;* and it is subordinate to the claims of laborers for wages due by the defendant.^ The acceptance of a note for the rent due, does not preclude him from claiming the proceeds of a sheriff's sale.* § 1169. JBetween execution-creditors. The general rule, where there are several executions levied on goods, is, that the proceeds are to be applied to the writs in the order of time in which they came into the sheriff's hands f and to give effect to this rule, the sheriff is required to indorse the day and hour of the receipt of the writ. The proceeds of personal property, sold under three writs oi fieri facias, must be appro- priated to the first execution, though the property was acquired by the debtor, after the first two, and before the third, came into his hands.' So, if the sheriff, having three writs of execution in his hands, require an indemnity from the plaintiffs, which is given only by the plaintiff in the junior writ, but he sell on all the writs, the prior executions are entitled to the proceeds.' But the sheriff must appropriate the proceeds of a sale of personalty to the execution on which the levy and sale were made, though he had a prior one in his hands, upon which he had made no levy.'" The proceeds of a sale of machinery, sold as personalty, go to the execution-creditor, whether it were realty or personalty in fact ;'' and on a question of distribution, the court cannot inquire into the ownership of the goods sold ; the remedy of an adverse claimant is, by action against the sheriff.'^ If the sheriff, however, pay the money raised under afi.fa. to the plaintiff, before the return-day, and the writ be sub- sequently set aside, he is liable to subsequent execution-creditors.'^ On a ■ Morgan v. Moody, 6 W. & S. 333. executions are simultaneously issued ^ Kline v. Lukens, 4 Phila. 296. and delivered to the sheriff, who sells ' Barnes's Appeal, 76 Penn. St. under both, the proceeds are to-be 50. equally divided, until the smaller one * Hennis v. Streeper, 1 Miles 269. is satisfied ; the residue to be applied * O'Brien v. Hamilton, 35 Leg. Int. upon the larger. Campbell v. Ruger, 68. The act 12 June 1878, P. L. 207 ; 1 Cow. 215. Purd. 2175, provides that the wages of * Shafner v. Gilmore, 3 W. & S.438. laborers, &c., shall have a preference Wilson's Appeal, 13 Penn. St. 426. over the landlord's claim for rent, where ' Girard Bank u. Philadelphia, Ger- the lessee is their immediate employer, mantovrn and Norristown Railroad Co., provided they shall have given pre- 2 Miles 447. And see Schuylkill Coun- vious notice to the landlord or his ty's Appeal, 30 Penn. St. 358. bailiff, before an actual sale of the '° McClelland v. Slingluff, 7 W. & S. property levied on. 134. 8 Kendig v. Kendig, 3 Pitts. 287. " Hutohman's Appeal, 27 Penn. St. ' Ulrich r. Dreyer, 2 Watts 303. Ly- 209. tie V. Mehaffy, 8 Ibid. 275. Long's '' Walters v. Pratt, 2 Rawle 265. Appeal, 23 Penn. St. 300. Where two " Williams's Appeal, 9 Penn. St. 267. 678 EXECUTION. question of distribution, the sheriff's return is conclusive as to the time and effect of his levy under successive writs ; if false, the only remedy is, by action against him.' § 1170. Partnership property. Where executions against separate members of a partnership, and others against the firm, are in the sheriff's hands at the same time, prior to a levy and sale of the partner- ship property, a conflict often arises between the separate creditors and the firm creditors, as to the right to the proceeds. In such case, the general rule is, that the partnership creditors are to be first paid out of the proceeds, without regard to whether their executions were or were not prior to those of the separate creditors ;^ and the surplus, if any, is to be distributed among the separate creditors pro rata, paying due regard to the interest of their respective debtors in the property sold.^ But a judgment entered upon a joint bond executed by the partners, is not necessarily for a partnership debt, and the execution on such judg- ment will not be entitled to preference, unless the fact be shown aliunde.* And where one of the two partners contributed the whole of the capital, under a stipulation that he should retain the exclusive ownership of the whole, until the other partner had contributed a specified portion of the profits, and this was never done, the execution-creditors of the firm have no preference over prior executions issued by separate creditors of the partner who contributed the capital.' So, in case of a secret partnership, an execution on a separate judgment against the one carrying on the business publicly in his own name, is to be paid out of proceeds of partnership property, in preference to a subsequent execution against the two partners as a firm.* And partnership creditors who have not obtained judgment and issued execution, have no such preference over separate creditors on whose writ the sale was made.' The return should indicate that the property sold belonged to the partnership, and if there be a doubt upon this point, the fact must be ascertained under the direction of the court.* Where writs of each class are in the sheriff's hands before the sale, he should sell under those ggainst the part- nership.' ' Savage v. Devereaux, 5 Phila. 420 ; 471. An execution-creditor of an indi- s. c. 49 Penn. St. 195. vidual partner, whose writ is returned ^ Coover's Appeal, 29 Penn. St. 9 ; levied on the interest of such partner, s. c. 6 Am. L. Reg. 745. Stuart v. is not entitled to the proceeds of a sale McHenry, 3 Phila. 340. of the property sold on writs against ' Ibid. Where there are writs in the firm, though the existence of the favor of firm creditors, and also writs partnership be denied. Bogue'a Ap- in favor of separate creditors, at the peal, 83 Penn. St. 101. same time, in the hands of the sheriff, * York County Bank's Appeal, 32 and, upon the latter, he sell both part- Penn. St. 446 ; s. c. 3 Phila. 96. nership and separate property, the pro- " Brown's Appeal, 17 Penn. St. ceeds of the partnership property are 480. applicable to the firm creditors' writs, ' Backus o. Murphy, 39 Penn. St. and the proceeds of the separate pro- 397. perty, to writs of the separate cred- « Vandike's Appeal, 17 Penn. St. itors. Miller v. Miller, 3 Pitts. 540. 271. Brady v. Conway, 3 W. N. C. 110. » Rex v. Lomman, 6 Am. L. Reg. bnodgrass's Appeal, 13 Penn. St, 745 ; s. c. 29 Penn. St. 9. DISTRIBUTION. 679 § 1171. It is often said, that the claim of partnership creditors to pre- ference in the distribution must be worked out through the equities of the partners themselves, of whom each, so long as he exercises d'ominion over the property, has a right to insist on its application to partnership liabilities, before it be appropriated to the individual debts of the part- ners ;^ and if backward in protecting their rights, a partner may be com- pelled by them to allow his name to be used in equitable proceedings to enforce those rights ; but when neither he nor they interpose to arrest proceedings at law, the effect of which is to dissolve the partnership and extinguish the joint stock, they cannot afterwards intervene in the distribution of the proceeds of partnership assets sold by the sheriff under executions of joint creditors.^ But where the partners have them- selves separated the goods, as by a dissolution and division, or by sales severally made, or by separate assignments each assented to by the other partner, there is nothing through which the equities of creditors can be worked out, and the above rule does not apply. In such case, an execu- tion against the firm is not entitled to preference over a prior execution against a separate partner.^ And the same effect is produced, where the several interests of the partners are sold under separate executions;'' that is, if the sale has actually been effected, and the property changed, before the execution issued against the firm ; but a mere levy on the separate interests of each partner will not affect the rights of a subse- quent execution against the firm, which came into the sheriff's hands, before he had sold under the separate writs.^ § 1172. A sale under an execution on a judgment, confessed by a single partner in the name of the firm and for a partnership debt, divests the whole interest of the partners, and the proceeds will be applied first to executions against the partnership f and though such a judgment might perhaps have been set aside, at the instance of the other partner, yet its validity cannot be contested by a subsequent execution-cred- itor.^ Where the sale of partnership property has been made, under separate executions against the individual partners, at the same time, the interests in the proceeds remain as they existed in the property at the time of the levy;* in such case, the court may direct an account, to ascertain the respective rights of the partners in the proceeds f and the distribution will be made accordingly; so that, if one of the partners was in advance to the firm, more than the whole amount of the proceeds, his creditors will be entitled to the whole fund.^" In equity, each estate, individual and partnership, is applied exclusively, in the first instance, to the payment of its own creditors." 1 Cope's Appeal, 39 Penn. St. 284. 745 ; s. c. 29 Penn. St. 9. Houseal'a Appeal. 45 Ibid. 484. * Corson v. Beans, 3 Phila. 433. ^ Backus V. Murphy, 39 Penn. St. ' Grier v. Hood, 25 Penn. St. 430. 397. ' Kelly's Appeal, 16 Penn. St. 59. " Cope's Appeal, ut supra. Cooper's Appeal, 26 Ibid. 262. * Doner v. Btauffer, 1 P. & W. 198. » Ibid. Baker's Appeal, 21 Penn. St. 76. " Cooper's Appeal, ut supra. ' Eex V. Lomman, 6 Am. L. Rej;. " Babbt). Reed, 5 Rawle 151. Walker 680 EXECUTION. § 1173. Surplus. The surplus, if auy, remaining, after paying the amount of the executions and the costs, is the property of the debtor; and the sheriff cannot set up any claim against the surplus, by reason of a debt due him by the defendant, nor for the expenses incurred in taking care of the goods, though the sale was deferred at the instance of the defendant, and on his promise to pay the expense -^ and in such case, the debtor or his transferree must take the surplus out of court in pre- ference to the sheriff.^ Bat the surplus in the hands of the officer may be levied on at the suit of a creditor.^ The return of the sheriff to a fi-fa., that he paid over the surplus to one of the owners of the chattel, for him- self and as agent for the others, is not a legitimate part of the return ; and the proper remedy of one of the part-owners to recover his share is in assumpsit, and not by an action for a false return.* § 1174. Alias fieri facias. If part of the money only be levied, the plaintiff may have an alias fieri facias for the residue. Where judg- ment on warrant of attorney is entered, by mistake, for less than the amount of the bond, the court may amend, after fi. fa. executed, and an alias may issue for the balance uncollected, if the rights of third persons be not thereby prejudiced.' The first writ must be returned, before a second can be taken out ; for that must be grounded upon the first, and recite that all the money was not levied thereon ; though, if, upon the first, all the money had been levied, the writ need not have been returned, for no further process was necessary ; and if nothing be levied on the first writ, it need not be recited in the second.^ So, if a testatum execu- tion against part of the defendants be unreturned, and no execution was issued against the others, within a year and a day after judgment, an alias is irregular.' The issuing of an alias, without disposing of the for- mer levy, is an irregularity ; no one but the defendant, however, can take advantage of it.' An omission to recite the proceedings under the first writ, though irregular, does not render the alias fi,. fa. void.' An alias issued to the same term as the first writ, is irregular, and will be set aside ;" but where the inquisition, on which the first writ was founded, was set aside and a new one held, a fi. fa. issued on the second inquisi- tion, to the same term, is not objectionable." If, after a sale has been set aside, an alias fi. fa. issue, it is not an independent writ, though irregular ; in substance, though not in form, it is a continuance of the original execution.'^ V. Eyth, 25 Penn. St. 216. Singizer's ' Hopkins v. Forsyth, 14 Penn. St. Appeal, 28 Ibid. 524. Black's Appeal, 34. 44 Ibid. 503. Houseal's Appeal, 45 * Smith v. Hood, 25 Penn. St. 218. Ibid. 484. • Tidd 1020. See supra, § 974. ' Fitch's Appeal, 10 Penn. St. 461. ' Gibbs v. Atkinson, 1 Clark 476. But the surplus ia liable for the costs ^ Potts's Appeal, 20 Penn. St. 253. and expenses of proceedings for dis- » Coleman r. Mansfield, 1 Miles 56. tribution. Oppenheimer v. Walker, 3 i» Shaffer v. Watkins, 7 W. & S. 219. H'ln 30. u Springer v. Brown, 9 Penn. St. Fitch's Appeal, ut supra. 305. * Herron's Appeal, 29 Penn. St. 240. " MoAfoos's Appeal, 32 Penn. St. Kudy V. Commonwealth. 35 Ibid. 166. 276. VENDITIONI EXPONAS. 681 § 1175. The issuing of an alias will not release the sheriff from liability- incurred on the fi.fa.; nor will the subsequent granting of a rule to show cause why the judgment should not be opened.^ Where the maker of several promissory notes, secured by bond and chattel-mortgage, had agreed with the payee, that in the event of an execution being levied upon the mortgaged property, the obligor might proceed to collect the unpaid residue, by execution levied upon said property, as if all such notes had become due, and after a fi. fa. had been issued for the amount of one of the notes, an execution was levied on the mortgaged property, at the suit of another creditor, it was held, that the obligor might issue a second fi. fa. for the residue of his debt, notwithstanding the first had not been returned f this is not an alias, which issues for the same debt, but a second writ for another debt. §1176. Venditioni exponas. If the sheriff return that he has taken goods, which remain in his hands unsold, for want of buyers, the plain- tiff may sue out a writ of venditioni exponas, reciting the former writ and return, and commanding the sheriff to expose the goods to sale, and have the moneys arising therefrom in court at the return of it.' If goods be not taken to the value of the whole debt, he may have a venditioni expo- nas for the goods already taken, with a clause of/, fa. for the residue of the debt.* And it is said, that if a sheriff seize goods to the value and return it, he is bound to find buyers.'^ If he wilfully delay to sell, for an unreasonable time, with a view to injure the defendant, he is liable to an action;^ he may sell, and it is his duty to sell, without a venditioni exponas ; this writ is only necessary to bring the sheriff into contempt for not selling on the fi. fa!' If he has made the return of levied, and unsold for want of buyers, then he is not liable, but a venditioni exponas must issue.* The peculiar office of a venditioni, as it regards personal property, is to force the sheriff to sell, when he has returned a levy unsold for want of buyers; and when it is thought the property re- turned levied will not satisfy the debt, the plaintiff may have a clause of fi. fa. added, to justify the levy and sale beyond what is described in the venditioni; this shows he can sell no more by the venditioni than what is therein commanded to be sold.*" If a levy be made under a writ oi fieri facias, which is stayed by order of court, without prejudice to the lien, and so returned, the plaintiff, to avail himself of such levy, as against an intermediate assignment for the benefit of creditors, must ' Myers v. Commonwealtli, 2 W. & tiif must look to the sureties on the S. 60. Evans v. Boggs, Ibid. 229. interpleader bond. Caven v. Cole, 35 ' ^ Martin v. Mc Bride, 2 Phila. 343. Leg. Int. 402. ' Tidd 1020. Cameron v. Reynolds, * Tidd 1020. Cowp. 406. Where an execution is * Clerk v. Withers, 6 Mod. 293 ; s. c. stayed, on a sheriff's interpleader, it 2 Ld. Raym. 1075. is the practice, for the sheriff to return ^ Carlile v. Parkins, 3 Stark. N. P. his writ, and if the issue be determined 163. against the claimant, to issue a vendi- ' Zane v. Cowperthwaite, 1 Dall. 313. tioni exponas for the sale of the goods Beale v. Commonwealth, 11 S. & R. 304. levied on ; and if, to this writ, he return * Ibid, that the goods are eloigned, the plain- ' Frisch v. Miller, 5 Penn. St, 315. 682 EXECUTION. take out a venditioni exponas ; if he issue an alias fieri facias, it is an abandonment of the prior levy.* § 1177. Where a sheriff goes out of office, after returning that be has levied, but that the goods remain on his hands for want of buyers, instead of suing out a venditioni- exponas, the plaintiff may have a distringas nuper vice-comitem, directed to the present sheriff, commanding him to distrain the late sheriff to sell the goods.^ The former sheriff must thereupon sell the goods and pay over the money; otherwise, he will forfeit issues to the amount of the debt.^ And a distringas, directed to the coroner, will lie against a sheriff while in office, to compel a sale of goods levied on.* The court has refused to grant an attachment against the sheriff, because he returned to a venditioni exponas, that part of the goods levied remained in his hands for want of buyers f and where he returned to a venditioni exponas, with a clause offi. fa., that he had made a certain sum of the goods, but omitted, by mistake, to return 7iulla bona to the fieri facias, he was allowed to amend the return, and an attachment against him for making it was set aside.* And where he had sold only part of the goods under the venditioni exponas, notwithstanding his return to the fi. fa., he was allowed, in an action against him for not selling the residue, or paying the money, to show that the execution- defendant became bankrupt, before the judgment, and that the plaintiff knew of his insolvency, at the time of the action.' X. Execution against choses In action. § 1178. Attachment-execution, The act of 1836 provides a mode of proceeding against stock owned by the defendant, but held in the name of another, and against debts due the defendant, or deposits of money made by him, or goods and chattels pawned, pledged or demised by him.* This process is generally called an attachment-execution, and, as will appear hereafter, enables the plaintiff to reach the choses in action of the defendant, almost as effectually as the fi. fa. reaches his choses in possession. It has been considerably modified by subsequent acts, which will be explained in their proper places. Although the mode of proceeding against the defendant's stock, when held in another's name, is very similar to that against his other choses in action, yet there are peculiarities in the practice in executions against stock, which make it preferable to treat them separately. We will, then, first consider the attachment-execution, as relates to choses in action generally, and after- wards discuss the practice in relation to stock, so far as it differs from the other proceeding. § 1179. An attachment-execution is process to enforce the judgment ; it is, in substance, if not in form, an execution, and subject to the rules ' Missimer v. Ebersole, 87 Penn. St. ' Leader v. Danvers, 1 Bos. & Pul. 109. 359. ' Tiddl02l. 8 'Rex «. Sheriff of Monmouth, 1 ' See supra, ? 1081. Marsh. 344. * Zane v. Cowperthwaite, 1 Ball ' 6 M. & S. 42. 313. 8 p_ L 767 ; Purd. 639. ATTACHMENT-EXECUTION. 683 governing execution.^ It cannot issue in an award, until after the twenty days allowed for an appeal ;2 but as it gives the defendant a day in court, it may issue after the lapse of five years from the recovery of the_ judgment, without a scire facias to revive;' or upon a judgment obtained before the passage of the act.* And, as a collateral process, is so far under the control of the court, as to enable it to prevent injustice, by giving equitable relief, on motion.^ For the same reason, it has been said, that the writ is not void, because issued on a justice's transcript, without previously filing a certificate of " no goods ;" this is, at most, an irregularity, which may be waived by the acts of the defendant ;'' the court may allow such certificate to be filed nunc pro tunc.'' So, if the defendant die, after attachment laid, the proceeding may go on as against the garnishee, without bringing in the executors of the original defend- ant, just as nfi.fa. issued in the defendant's lifetime may be executed after his decease.' And the plaintiff may withdraw it, at any time, and issue a fresh attachment.' Such writ, however, cannot issue, pending a rule to open the judgment.'" § 1180. When it lies. An attachment-execution can only issue from the court of the county in which the garnishee resides." It lies upon a justice's transcript, filed in the common pleas.'^ It may issue simultaneously with a fi. fa. and oa. sa., and may be served, if neither of the latter writs be executed ;^^ and notwithstanding the pendency of an alias fi. fa. on which a levy has been made.^* But not pending afi. fa. on which real estate has been condemned,^* unless the prior levy be aban- ^ Wray v. Tammany, 13 Penn. St. ' Bank v. Nelson, Dist. Court, Phila., 394. It is held to be an execution 4 Oct. 1851. Why attachment should within the meaning of the married not be dissolved. Per curiam. We see women's act. Franklin v. Kush, 1 nothing to hinder a plaintiff from with- Phila. 571. And within the stay law drawing or abandoning an attachment of 1861. Lewis ». Lewis, 47 Penn. St. of execution and issuing another. It is 127. And the defendant may claim not like the discontinuance of an action, the benefit of the exemption law, as but may be assimilated to the with- against the attach ing-creditor. Strouse drawal of a levy, or the stay of pro- V. Becker, 44 Ibid. 206. Zimmerman v. ceedings upon a fi. fa., which certainly Briner, 50 Ibid. 535. Bair v. Stein- was never considered to interfere with man, 52 Ibid. 423. his right to take out another execution. ^ Wray v. Tammany, ut supra. Rule discharged. * Ogilsby V. Lee, 7 W. & S. 444. '» Levy v. Kline, 2 W. N. C. 630. Gemmill v. Butler, 4 Penn. St. 232. '^ Cowden v. West Branch Bank, 7 * Bank of Chester v. Ralston, 7 Penn. W. & S. 432. St. 482. Hall v. Geyer, 2 Miles 321. '■' Hitchcock v. Long, 2 W. & S. 169. * Ibid. Kase v. Kase, 34 Penn. St. Reichenbauch v. Arnold, 2 Clark 527. 128. Brechemin v. McDowell, 1 Phila. ^ Swanger v. Snyder, 50 Penn. St. 368. Hood v. Brown, 4 Leg. Gaz. 83. 218. Dunn v. Fries, 3 Clark 113. " Davies v. Scott, 2 Miles 52. Dob- That it is irregular, to issue an attach- bin v. Allegheny County, 7 Pitts. L. J. ment, without such certificate, was held 282. in Moore v. Risden, 3 Clark 408 ; " Tams v. Wardle, 5 W. & S. 222. Clevenstine v. Law, Ibid. 417; and Shaw «. Kenath, 2 W. N. C. 127. Hughes V. Stelts, 2 Luz. L. Reg. 240. " HoUowell v. McClay, 3 Phila. ' Guerinu. Guest, 3 Clark 111. 261. Farr v. Carlton, 17 Leg. Int. 8 Btting V. Moses, 1 Phila. 399. 109. 684 EXECUTION. doned ; it is only when the other process is inconsistent with the attach- ment, that the latter becomes irregular.^ The act of 1845/'' provides that the process may issue upon judgments obtained against corporations, other than municipal corporations;' and it has been settled, that it lies against an insolvent improvement company.^ An attachment of pro- perty in another state, even if it bind assets suiEcient to meet the demand, is no bar to an attachment in this state;' so also, several attachments may be issued at the same time, and if the judgment be satisfied on one of them, the fund will be liable for the costs of all the writs ;° or the plaintiff may include several garnishees in the same writ/ § 1181. WTuit may be attached. The act of 1836 specifies debts due to the defendant, and deposits of money made, or goods or chattels pawned, pledged or demised by him. And by the act of 1843,' the remedy has been extended to all legacies given and lands devised by will, and to any interest which any person may have in the real or per- sonal estate of a decedent, by will or otherwise, except legacies and dis- tributive shares of married women. But by the act of 1845,^ it is provided, that the wages of any laborer, or the salary of any person iu public or private employment, shall not be liable to attachment in the hands of the employer. § 1182. Personal chattels. Goods deposited in the store of the gar- nishee, cannot be attached in his hands; the plaintiff must issue z. fieri facias-^" so, a horse cannot be attached in the hands of a livery -stable keeper ; he is not a pawnee, within the meaning of the act ; the plaintiff must resort to his fi. fa. ;^^ so also, the contents of a safe, leased from a deposit-company, and of which the renter holds the key, cannot be ' Heath u. Page, 63 Penn. St. 125. the garnishee, as appears by his answer, ^ Act 20 March 1845, § 4, P. L. 189 ; consists of goods ; they were deposited Purd. 641. by the defendant in the garnishee's ' See Parke v. Pittsburgh, 1 Pitts, store ; they may be liable to a charge 218. O'Connor «. Pittsburgh, 3 Pitts, for storage, 'though the garnishee does L. J. 92. not set that up. Admitting the lien to * Reed v. Penro.se, 36 Penn. St. 214 ; exist, they are, notwithstanding, "not s. 0. 3 Phila. 198 ; 7 Am. L. Reg. 126. goods pawned or pledged by him (de- Farmers' and Mechanics' Bank v. fendant), as security for any debt or Ryan, 64 Penn. St. 236. Jfox v. Reed, liability, or which have been demised, 3 Gr. 81. or in any manner delivered or bailed ^ Parsons v. Columbia Ins. Co., 2 for a term." Referring back the Phila. 21. words of the 35th section of the act « Heise u. Reynolds, 9 L. Bar 134. of 16th June 1836, to the 23d sec- Pontius V. Nesbit, 40 Penn. St. 309. tion, the words " pawned, pledged or ' Cornelius v. Simpson, 3 Phila. 35. demised as aforesaid," have this mean- * Act 13 April 1843, ^ 10, P. L. 235 ; ing. It can only mean an actual Purd. 640. pawn or pledge for a debt or liability ' Act 15 April 1845, ^ 5, P. L. 460 ; by defendant, not merely a lien arising Purd. 640. by implication of law. This, there- "• Good V. Obertauifer, Dist. Court, fore, is not a case for attachment of Phila., 6 January 1849. Motion for execution. Motion refused, judgment against garnishee. Per cu- " Buckner t). Croissant, 3 Phila. 219. riam This is an attachment of exeou- Hall v. Filter Manufacturing Co., 2 W. tion; the property in the hands of N. C. 154. ATTACHMENT-EXECUTIOK'. 685 attached in the hands of the company, as garnishee.' And the mere custodian of a chose in action, cannot be made garnishee in an attach- ment.^ § 1183. Debts. A debt payable in futuro, may be attached ;' and so may debts in suit, and unsatisfied judgments,* though recovered in another court.' A judgment-debt may be attached, though a levy be pending for its execution, and the attaching-creditor will be entitled to the proceeds f and the pendency of a writ of error to a judgment attached, is no objection to a recovery against the garnishee ; the proper course is, to give leave to move to open, in case of a reversal f but after a bond fide assignment of a judgment, it cannot be attached for the debt of the assignor.* A claim for general average may be attached f so may a claim for a loss by fire, whether adjusted or otherwise;'" and, though the real estate was under an extent, at the time of the loss ;" and a claim against a property-owner, for a culvert, constructed in front of his premises, which is payable to the contractor, may be attached for the debt of the latter ;'^ but a contract for the conveyance of real estate, on payment of the purchase-money, does not create a debt, which may be attached.'^ An over-due note may be attached, in the hands of the maker ;" so, a promissory note, not vet due, may be attached ; but such 1 Gregg V. Hilson, 8 Phila. 91. See Klett «.' Craig, 1 W. N. C. 28. United States V. Graff, 67 Barb. 304. 2 Gilmore v. Adams, 1 AV. N. C. 76. See Rhoads v. Megonigal, 2 Penn. St. 39. Christmas v. Biddle, 13 Ibid. 223. ' Walker v. Gibbs, 2 Dall. 211 ; s. c. 1 Yeates 255. Fulweiler v. Hughes, 17 Penn. St. 440. * Crabb v. Jones, 2 Miles 130. Sweeny v. Allen, 1 Penn. St. 380. See K.nabb v. Drake, 23 Ibid. 489. ^ Jones V. New York and Erie Rail- road Co., 1 Gr. 457. ^ Winternitz's Appeal, 40 Penn. St. 490. ' Woodward v. Carson, 86 Penn. St. 176, ' Bavington v. Aloook, Dist. Court, Phila., Deo. 1848. MS. A judgment against a foreign corporation, which has a resident officer, on whom process may be served, may be attached ; a transfer of such judgment to counsel, to secure fees and advances, leaves the residue liable to attachment. Fithian v. New York and Erie Railroad Co., 31 Penn. St. 114; s. c. 1 Gr. 457. » Morris v. Turner, 3 Clark 423. " Boyle V. Franklin Fire Insurance Co., 7 W. & S. 76. Girard Fire and Marine Insurance Co. v. Field, 45 Ibid. 129 ; s. c. '4 Phila. 286. West V. Franklin Fire Insurance Co., 2 Clark 70. " Oaks V. Gallagher, 1 Luz. L. Reg. 544. " Hewer v. Richardson, 3 W, N. C. 274. " Sarvi V. Brazier, 1 Phila. 214. s. p. Furness v. Smith, 30 Penn. St. 520. '* Wetmore v. Price, District Court, Phila., 8 April 1848. Rule for a new trial. Per curiam. We are of opinion, that a negotiable note may, after it is due, be attached in the hands of the maker, for the debt of the then holder of it. An attachment is payment to the defendant, or what is in effect the same thing, it is an appropriation of the fund, made by the law, exercising the power of the defendant, to the at- taching-creditor. The case of Hughes V. Large, 2 Penn. St. 103, then, does not apply ; it is there decided, that a debt due to the maker from the pa3'ee cannot be set off against the indorsee of a note over due ; but it is not decided, there, nor anywhere else, that a direct payment, made by the maker to the payee, will not avail the former. We think, however, that Anthony was a competent witness, and should have been admitted ; it was alleged, that at the time the attachment was laid, the defendant had passed the note for value 686 EXECUTION. attachment will not prevail against a bond fide indorsee, before maturity, without notice ;' in New York, however, it has been held, that if the maker be compelled to pay to the attaching- creditor, it is a complete defence as against a subsequent indorsee, without notice.^ So, a check, payable at a future day, may be attached.^ Rent due by a tenant may be attached ;* but not accruing rents f a debt payable in municipal bonds may be attached, and the bonds sold on execution f so, of a claim payable in specific articles.^ § 1184. An unsettled partnership account cannot be attached ; other- wise, if a balance have been struck between the parties.* Money awarded to a defendant out of the proceeds of his real estate, under the exemption law, cannot be attached in the hands of his attorney.' The to Anthony, and he was offered as a witness to prove this. As the matter then appeared, he could not have been affected by the result of the verdict, nor could it have been given in evi- dence for or against him in a suit by him against the maker. If a garnishee suffer the goods of A. to be condemned in his hands as the goods of B., the condemnation will not protect him against an action by A. ; Eyre, C. J., in Phillips V. Hunter, 2 H. Bl. 410. If, indeed, it had appeared, either aliunde or by the examination of Anthony upon his voire dire, that he had been notified to take defence in this suit, the case would then have been different ; he would then have been concluded by the result, and the verdict and judg- ment would have been evidence against him. But this is not to be inferred without evidence, and the mere fact that he knew of the suit, is not enough, unless he has tendered to him the right to intervene and defend in the name of the garnishee. Coates v. Roberts, 4 Rawie 100. Rule absolute. 1 Kieffer v. Ehler, 18 Peun. St. 388. Kent V. Schuylkill Navigation Co., Dist. Court, Phila., 19 June 1852. Atr tachment sur judgment. Per curiam. It has been decided by the supreme court, that an attachment of execution is available as a process to attach debts not due at the time it is served. The words of the act of assembly are, " debts due to the defendant," and upon the natural construction of these words this court has uniformly held that debts not due could not be attached. In this very case, we refused to give a judg- ment on this ground, when application was formerly made for this purpose. We are bound to yield to the decision of the supreme court, though as yet we are uninformed as to the reasons of it. The debt, in this case, is not yet due, and will not be due until 1 st Jan- uary 18.^6. In foreign attachment, a debt growing due upon bond or con- tract may be attached before it is due and payable, and judgment may be against the garnishee, but execution shall not issue till the time of pay- ment. The act of assembly in regard to attachment of execution, provides how execution shall be issued against the garnishee, in case of a judgment fi>r a debt due, and evidently contemplates that, whenever the plaintiff is entitled to judgment, he shall have execution. We decline, then, entering the special judgment asked for in this case ; the attachment itself gives him all that such a judgment could give him against the garnishee — a lien upon the debt and its accruing interest. We are not at present, prepared to say, Avhat is the proper practice to adopt under the new aspect presented by the recent decision of the supreme court ; all that we do, at present, is to refuse to enter the spe- cial judgment now prayed for. Rule dismissed. •' Simon v. Huot, 8 Hun 378. ' Fulweiler ». Hughes, 17 Penn. St. 440. * Derham u. Berry, 5 Phila. 475. ' Evans v. Ilamrick, 61 Penn. St. 19. « King V. Hyatt, 41 Penn. St. 229. ' CoUum V. Mason, 1 W. N. C. 298. Gillu. Snyder, 2 Ibid. 155. ' Knerr v. Hoffman, 65 Penn. St. 126. Alter v. Brooke, 9 Phila. 2,58. Lewis V. Paine, 1 Leg. Gaz. B. 508. See Lucas v. Laws, 27 Penn. St. 211. » Gery v. Ehrgood, 31 Penn. St 329. ATTACHMENT-EXECUTION. 687 proceeds of an execution in the hands of the sheriif, cannot be attached by a judgment-creditor of the plaintiff/ even though the judgment was confessed in fraud of creditors.^ So, where goods are levied on, and released on bond, which is afterwards forfeited and paid, their proceeds cannot be subsequently attached in the hands of the obligors f but a surplus in the hands of the sheriff, arising from an execution against the debtor, may be attached.'' An unpaid subscription to the stock of a cor- poration, may be attached by its judgment-creditor;' and advances due to a vendee, under a building contract, may be attached in the hands of the vendor, though the buildings have not been completed f so may a moiety of the cost of a party-wall.^ But the right of a member of the stock exchange to a seat in the board, cannot be attached by a creditor; it is held as security for debts due to other members.' §1185. Legacies and distribtitive shares. Under the act of 1843, a legacy may be attached by a creditor of the legatee.^ And where there are no debts, the creditor of a legatee may attach his interest in the purchase-money of land sold by the administrator with the will annexed.'" So, a legacj' to one of two executors, payable out of real estate to be sold after the death of the testator's widow, may be attached in their hands ;" and a legacy is attachable in the hands of an agent of the executor, who has possession of the fund.'^ Where the estate is ample, a distributive share may be attached, before settlement, and judgment had against the administrators, as garnishees;^' but a debt due to an administrator, who, is himself sole distributee, cannot be attached prior to the settlement of his account;'* where, however, the executor is residuary legatee, a debt due to the testator, for which the executor has taken a note in his own name, may be attached by a cred- itor of the latter — many years having elapsed since the death of the testator, and there being abundance of assets." The interest of an heir in his deceased ancestor's lands, may be attached ; and if such estate be turned into money, by a judicial sale, the attaching-creditor is entitled to a preference, in distribution, over the subsequent judgment-creditors of the defendant.'^ So, the interest of an heir in property taken by another at the appraisement, is liable to attachment ;'^ and the proceeds 1 Fretz V. Heller, 2 W. & S. 397. ' Davids w. Harris, 9 Penn. St. 501. Herron's Appeal, 29 Penn. St. 240. " Pancoast i\ Houston, 5 W. N. C. Worrell v. Vandusen Oil Co., 1 Leg. 36. Gaz. 53. Crossen v. McAllister, 1 ' Baldy u. Brady, 15 Penn. St. 103. Clark 257. '" Brady v. Grant, 11 Penn. St. 361. '' Bentiey v. Clegg, 1 Clark 411. " Zimmerman!;. Briner, 50 Penn. St. ' Taylor v. Hulme, 4 W. & S. 407. 535. * Herron's Appeal, 29 Penn. St. 240. " Gochenauer v. Hostetter, 18 Penn. It has been held, that surplus in the St. 414. hands of a constable, after a sale under " Lorenz v. King, 38 Penn. St. 93. a distress for rent, cannot be attached. " Bank of Chester v. Ralston, 7 Comfort V. Taylor, Com. Pleas, Phila., Penn. St. 482. March 1848. MS. '* Ross v. Cowden, 7 W. & S. 376. * Peterson v. Sinclair, 83 Penn. St. '° Straley's Appeal, 43 Penn. St. 89. 250 " Lancaster County Bank ». Stauffer, «'Kelly ». Snyder, 5W. N. C. 39. 10 Penn. St. 398. 688 EXECUTION. of real estate, sold under an order of the orphans' court, and paid into court, on the failure of the executors to give security, may, nevertheless, be attached in their hands.' And the act of 1849 provides,^ that an interest in the estate of a decedent may be attached, at any time after the same shall have accrued to the judgment-debtor, by reason of the death of the decedent; but a sale of such interest shall not be compelled, until after the lapse of one year from the death of such decedent, unless the personal representatives shall have sooner filed their account. By the same act, where executors, administrators or trustees are made gar- nishees, they are to be allowed their costs and necessary expenses. § 1186. Wages and salaries. Wages earned by the personal manual labor of the debtor are exempted from attachment, though his superior skill and care may entitle him to a greater compensation than the ordi- nary laborer.' But the profits of a master mechanic, over and above the results of his own personal labor, are attachable;* thus, where a person had contracted to excavate and grade a street, at a certain rate per cubic yard, and used two carts, and two or three horses in the prosecu- tion of the work, with a number of men, sufficient, with himself, to keep the carts and horses employed, it was held, that the money due under the contract was liable to be attached in execution.' Wages of labor cannot be attached on a writ issued from the common pleas, on a jus- tice's transcript.' The salary of a chorister in a church, is not liable to an attachment;' nor can the salary of a public officer be attached in the hands of the state treasurer.** So, the fees of a juror cannot be attached ;' nor fees due to a public ofiicer, such as a ganger of oils ;^'' nor can the commissions of an executor be attached, either in his own hands, or in those of his co-executors.'' But money due to the proprietor of a private school, for tuition, is neither wages nor salary, and, therefore, may be attached in the hands of his debtors.'^ § 1187. Of the garnishee. In general, the party owing the debt which is attached, must be made garnishee. In case of an assignment of assets by a debtor, the assignee must be made garnishee ;'' as, where pro- perty is iu the hands of an assignee for the benefit of creditors, under a void assignment ;'* or one that has become void, for want of being recorded within thirty days ;'* so, where a stock of goods has been sold ' Harper w. Valentine, 4 'W.N.C. 38. ' Simons u. Whartenaby, 2 Clark 438. 2 Act 10 April 1849, § II, P. L. 620; '" Hutchinson v. Gormley, 48 Penn. Purd. 641. St. -270. ' Pennsylvania Coal Co. v. Costello, " Adams's Appeal, 47 Penn. St. 94. 33 Penn. St. 241. Taylor's Estate, 5 Phila. 218. * Smith V. Brooke, 49 Penn. St. 147. '' Schwaake v. Langton, 6 W. N. C. And see Faunce v. Lesley, 6 Ibid. 124. 121. " See Neff v. Love, 2 Jliles 128. * Heebneru. Chave, 5 Penn. St. 115. '< Driesbach v. Becker, 34 Penn. St. ° Myers u. Lackawanna and Blooms- 152. burg Railroad Co., 2 Luz. L. Reg. 239. '» Stewart v. McMinn, 5 W. & S. 100. ' Catlin V. Ensign, 29 Penn. St. 264. Ashton v. Mann, 3 Phila. 215. But ' Mervine v. Wood, Common Pleas, the assignee is protected as to moneys Dauphin, April 1840. MS. Rundle v. collected and actually paid over, under Scheetz, 2 Miles 330. the assignment. Ibid. ATTACHMENT-EXECUTION. 689 in fraud of creditors, and the fraudulent vendee has sold part, and has the rest on hand.^ A person who is not the debtor, but merely holds the evidences of a debt, should not be made garnishee ;^ bat he will be a debtor, who has rendered himself liable as such, by a want of fidelity or diligence in dealing with or collecting the debt.^ And where the debt has been actually or constructively collected, by him who has the means of enforcing its payment, there is no reason why he should not be com- pelled to pay it over to the creditor of the party to whom it belongs, in point of fact, or by legal intendment.^ So, money in the hands of an attorney-at-law, may be attached by a creditor of his client;^ and a surplus in the hands of the sheriff, arising from an execution against the debtor f and so, also, the interest of a fund, which is payable to a legatee for life, may be attached for his debt, in the hands of the trustee.' A private corporation may be made garnishee, even though chartered under laws of another state, if located here;^ but not a municipal corporation ;' nor the state, nor its loan-agent in respect to a certificate of loan in his hands ;'" nor public officers, such as treasurers of the state, county, municipal corporation or school board, sheriff or prothonotary ;'^ nor an oflacer of the general government, with respect to public funds in his hands to be paid over to the defendant in the judg- ment.'^ In the case of an attachment of a legacy or distributive share, the executor may be made garnishee, or his agent, who has sold the land, and has the fund in his hands.'' When a judgment is attached, the defendant is made garnishee, and if execution has been sued out, the officer should be notified of the attachment ;" and if a debt in suit be * French v. Breidelman, 2 Gr. 319. Bulkley m. Eckert, 3 Penn. St. 368, '' Gilmore v. Adams, 1 W. N. C. 76. a municipal corporation cannot be But see act 13 June 1874, P. L. 285 ; made garnishee in an attachment of Purd. 1826. execution. The situation of the de- ' Kaiguel v. McConnell, 25 Penn. St. fendant does not appear to us to be 362. distinguished from that of a sheriff or * Robinett v. Donnelly, 5 Phila. 361. prothonotary, who has money in his * Riley v. Hirst, 2 Penn. St. 346. hands as a public officer ; and it has ' Herron's Appeal, 29 Penn. St. been determined, that these are not lia- 240. hie to the process of attachment. Great ' Park V. Matthews, 36 Penn. St. 28 ; public inconvenience must follow, if s. c. 1 Pitts. 22. Girard Life Insurance these corporations are compelled to an- Co. V. Chambers, 46 Penn. St. 485. swer to the claim of creditors of all Kinney v. Hemphill, 2 W. N. C. 323. the persons with whom they ha%'e busi- Otherwise, if payable only at the dis- ness, or to whom money is payable by cretion of the trustee. Keyser v. Mit- them. Rule absolute, chell, 67 Penn. St. 473 ; s. c. 7 Phila. '» Morrell v. Bank of Pennsylvania, 150. 2 Phila. 61. ' Fithian ». New York and Erie " Bulkley v. Eckert, 3 Penn. St. Railroad Co., 31 Penn. St. 114; s. c. 369. Pierson v. McCormiok, 1 Clark 1 Gr. 457. And see Darlington v. Ro- 260. See supra, i 1186, note 8. sers 36 Leg. Int. 115. ^' Buchanan v. Alexander, 4 How. 'Erie v. Knapp, 29 Penn. St. 173. 20, Raub v. Seaman, 2 Luz. L. Obs. Greer v. Rowley, 1 Pitts. 1. Keeley 221. p. Murray, Dist. Court, Phila., 22 Nov. " Gochenaur v. Hostetter, 18 Penn. 1851. Per curiam. We are satisfied St. 414. that, upon the principle established in '* See Winternitz's Appeal, 40 Penn. VOL. I. — 44 690 EXECUTION. attached, the defendant is made garnishee ; and the attaching-creditor, if the claim be established, may prosecute it to execution, by marking the action to his use.' Funds in the hands of an assignee in bankruptcy cannot be attached ;^ nor can the moneys of a railroad company be attached in the jiands of its ticket agents — they are mere servants f but the funds of an insolvent improvement company may be attached in the hands of its treasurer.* § 1188. Effect of the attachment. Where an attachment lies, and is duly served, it puts the attaching-creditor in the same relation to the garnishee as was occupied by the defendant, before the attachment was laid.^ It interferes in no way with any right of the garnishee, but leaves to him all the rights of set-off, defalcation or defence, incident to the relations existing between him and the defendant, at the time of the service;^ the attaching-creditor stands in the shoes of the defendant, and any equities that could be set up against the latter are equally available against the former;' if the claim attached be satisfied as against the defendant, the attaching-creditor can obtain no higher right.* And the garnishee may set off an equitable demand against the defend- ant;' he is only liable for the net balance in his hands, deducting payments made for the debtor, and liabilities incurred for him -^^ and where the defendants are members of the garnishee's firm, the latter are not chargeable with outstanding claims uncollected, unless received as money." The attachment is, in effect, an equitable assignment of the thing attached — a substitution of the plaintiff for the defendant, to the latter's rights against the garnishee ;'^ and in case of a debt, as in other assignments, carries with it the right to use all securities for the recovery of the debt ; therefore, where a judgment is attached, the plaintiff may claim, under such judgment, the proceeds of the sale of the real estate of the debtor therein.'^ § 1189. Where there are two debts due from the garnishee, only one of which is attachable, and payments have been made on account, without appropriation by the parties, the law will, for the benefit of the attach- ing-creditor, appropriate such payments to the debt which is not attach- St. 490. A judgment may be attached tor to account. Manigle's Estate, 32 in the hands of a fraudulent assignee Leg. Int. 83. And see Selfridge's Ap- thereof. Robinett v. Donnelly, 5 Phila. peal, 9 W. & S. 55. 361. 6 Myers v. Baltzell, 37 Penn. St. ' Sweeny v. Allen, 1 Penn. St. 380. 491. 2 Lloyd V. Brisben, 1 "W. N. C. 230. ' Patten v. Wilson, 34 Penn. St. » Fowler v. Pittsburgh, Fort Wayne 299. Strong v. Bass, 35 Ibid. 333. and Chicago Railroad Co., 35 Penn. St. * Dougherty v. Hunter, 54 Penn. St. 22. s. p. State Fire and Marine Insur- 380. anoe Co. u. The Oglesby, 1 Pears. 152. » Carrw. Beck, 51 Penn. St. 269. Muhlenberg v. Eiler, 1 Leg. Chrou. '» Coles v. Sellers, 1 Phila. 533. 248. " Allen v. Erie City Bank, 57 Penn. * Reed v. Penrose, 36 Penn. St. 214. St. 129. Fox V. Reed, 3 Gr. 81. " ^^^ „ Penrose, 36 Penn. St. 229 : <• Fessler t>. Ellis, 40 Penn. St. 248. Strong, J. An attaching-creditor of a distribu- " Fitzsimmon's Appeal, 4 Penn. St. tee's interest may cite the administra- 248. See Fox v. Foster, Ibid. 119. ATTACHMEXT-EXBCUTXON. 691 able.^ But the attaching-creditor can acquire no claim against the gar- nishee, superior to that of the debtor himself; and, therefore, if a debtor of a firm, at the request of the liquidating partner, after a dissolution, give his note payable to a creditor of the firm, the debt cannot be attached by another creditor of the firm ; it is discharged by the note.^ The attach- ment, however, of a debt for which judgment has been recovered, and bail for stay of execution entered, does not exclude the parties from their ordinary power of managing the remedy ; and, therefore, if they agree that the judgment be opened, the bail for stay of execution is dis- charged, notwithstanding the attachment.^ § 1190. From the time of the service of the writ, all debts, and all deposits of money, and all other efiects belonging or due to the defend- ant by the garnishee, are bound by it in the garnishee's hands, as in the case of foreign attachment.^ It binds money belonging to defendant, which came into the hands of the garnishee, after the service of the writ ;' and this, although the defendant, depositing money with the gar- nishee in his own name, was, in fact, an agent for others.* So, it will hold rent becoming due from the tenant-garnishee, after service of the attachment •] otherwise, if the reversion be severed from the rent, before the latter becomes due, by operation of law ; as, by an assignment in bankruptcy.' The attachment binds funds which come into the hands of the garnishee, after answers to interrogatories, unless accompanied by a plea of nulla bona-^ and, it seems, even funds which the garnishee admits to have come into his hands, after nulla bona pleaded ;'" but he cannot be compelled to answer with regard to an indebtedness which occurred after plea filed." The efiect of the attachment, as a lien on the fund, must be determined by the court which first obtained cognisance of the cause, and not by that out of which the attachment issues.'^ If a claim in suit be attached, and, without pleading the attachment, the defendant confess judgment for a certain sum, by way of compromise, it is not subject to the attachment.^^ § 1191. A foreign attachment suspends the interest on so much of the debt attached as will be required to satisfy the plaintiff's demand ;^'' and an attachment-execution has the same effect,'^ unless there be fraud or ' Smith V. Brooke, 49 Penn. St. his own funds. Jones v. Bank of the 151. Northern Liberties, 44 Penn. St. 253 ; 2 Riddle v. Etting, 32 Penn. St. 412. s. c. 42 Ibid. 536. " Corson v. McAfee, 44 Penn. St. ' Derham v. Berry, 5 Phila. 475. 288. * Evans v. Hamriek, 61 Penn. St. 19. * Act 16 June 1836, ? 37, P. L. 768 ; ' Benners v. Buckingham, 5 Phila. Purd. 640. 68. 5 Sheetz V. Hobensack, 20 Penn. St. "> Mullen v. Maguire, 1 W. N. C. 412. Mahon v. Kunkle, 50 Ibid. 216. 577. » Jackson v. Bank of the United " Mullen v. Maguire, 1 W. N. C. States, 10 Penn. St. 61. Paxon v. 331. Sanderson, 3 Phila. 303. Otherwise, " Atkinson v. Hines, 5 Phila. 16. if a collecting agent open a bank ac- " Hunter's Appeal, 72 Penn. St 343. count, in his own name as "agent," " Mackey v. Hodgson, 9 Penn. St. and such account be exclusively an 468. agency one, without any admixture of '"' Irwin v. Pittsburgh and Connells' 692 EXECUTION. collusion on the part of the defendant, or wilful delay on the part of the garnishee ;^ and this, though the debt attached was a note, not in the name of the defendant in the attachment.^ If the garnishee admit the amount in his hands, he cannot be made liable for costs, if ^o more be recovered, though he claim an allowance for counsel-fees ;' otherwise, if he contest the claim,^ or plead a false plea.' The attachment, how- ever, of a debt in suit, does not relieve the garnishee from the payment of costs.^ It seems, that where there are conflicting claims to the fund, the garnishee may have leave to pay the money into court f and the court, in a proper case, might relieve the garnishee, by compelling the plaintifl" to proceed.^ § 1192. The garnishee must retain possession of the thing attached, until the attachment is determined ; if the holder negotiate a note, attached in his hands as garnishee, it is a fraud upon the law, and the court from which the attachment issued may require the instrument to be placed in such custody as will prevent its improper transfer, taking care that payment be demanded at maturity, and, if necessary, proper notice be given to indorsers, the money, if paid, to be in the place of the note, to abide the event of the suit ; but if the note be improperly trans- ferred before maturity, and come into the hands of a bond fide holder for value, without actual notice of the attachment, the attachment will not avail against him.' Where a debt is attached, the garnishee is restrained ville Railroad Co., 43 Penn. St. 488. Allegheny Savings Bank v. Meyer, 59 Ibid. 361. ' Jackson v. Lloyd, 44 Penu. St. 82. Kushton V. Rowe, 64 Ibid. 63. '' Jackson v. Lloyd, ut supra. ' Newlin v. Scott, 26 Penn. St. 102. * Herring v. Johnson, 5 Phila. 443. * FoylsK. Foyle, 1 Phila. 182. ' Dean v. Rockwell, 2 Luz. L. Obs. 187. ' McBroom's Appeal, 44 Penn. St. 92. Goodu. Grant, 76 Ibid. 52. See Baldy v. Brady, 15 Ibid. 103. Wilson V. Mayhew, 6 Phila. 273. * Pretz V. Northampton Bank ; An- spaoh V. Northampton Bank, District Court, Phila., 4 Dec. 1849. Why plain- tiff should not proceed, or the attach- ment be dissolved. Per curiain. These are cases of attachment of execution, which have been pending many years. One of the garnishees being sued, not by the defendant in the attachment, but by a third person claiming the debt attached, adversely, in the supreme court, he put in an affidavit of defence, alleging, it is said, the pendency of this attachment ; whereupon, that court gave judgment, but stayed the execu- tion. If the affidavit in that case con- tained an allegation that the note in suit was claimed to be the property of another, as whose it had been attached, this court would have con- sidered the affidavit sufficient, and either sent the case to the jury to deter- mine the question to whom the note Or debt belonged, or, upon the money being brought into court, awarded an interpleader between the claimants. It has been held, in the supreme court, that an attachment-execution is plead- able in bar. Maynard v. Nekervis, 9 Penn. St. 81. And if a debtor is threat- ened with contradictory claims to the same thing, whether attempted to be enforced by suit or attachment, he is surely entitled to relief. It is not, however, our intention to examine whether the course adopted in the su- preme court, or that which we have indicated, is the most consonant with sound practice. All that we decide at present is, against the application now made, on the ground that sufficient evi- dence of the interest of the party now applying has not been laid before us. Rule discharged. » Kieffer v. Ehler, 18 Penn. St. 388. In such case, however, it requires but slight evidence of suspicion to put the ATTACHMENT-EXECUTION. 693 from paying over the money, either to his individual creditor, or to the attaching-creditor, until the attachment is disposed of, and then only according to the result of such disposal;^ so, where a judgment is attached by a creditor of the plaintiff, proceedings upon it will be stayed.^ And where the garnishee suggests an assignment of the debt, and the assignees, being summoned, assert their claim against the attach- ment, the case becomes an ioterpleader, the issue of which the garnishee is bound to await, before paying the money ; and he is not in fault, in not paying the fiiud into court, when he had not been ruled to do so by the assignees.' § 1193. Where a policy of insurance against fire contains a clause that no suit shall be maintained thereon, unl&s brought within six months after the loss, service of an attachment on the insurance company, before the expiration of the six months, does not excuse the failure to bring suit ; but it does not follow, that the failure to sue will bar a recovery under the attachment.* An attachment-execution prosecuted to judgment against the garnishee is not satisfaction of the debt, either in favor of the debtor or a' subsequent judgment-creditor;' and a judg- ment in favor of the garnishee is no bar to a subsequent action by the defendant against him ; the defendant, as to his rights against the gar- nishee, being excluded from participation in the trial of the attachment suit, cannot be precluded by the judgment therein.'^ § 1194. The law, however, only requires of the garnishee that in good faith he shall see that the money is recovered against him in due course of law; where there is no fraud or collusion on his part, a recovery against him is a good defence to an action by the defendant or his assignee.' It is not sufficient evidence of collusion, that he employed the attorney of the attaching-creditor to draw up his answers.^ But he is bound to contest the claim of the attaching-creditor, and payment before judgment against him is no defence to an a«tion by the defendant in the attachment ;' so, where the judgment on which the attachment issued was invalid, payment by the garnishee to the attaching-creditor is no defence to the claim of the defendant in the attachment.^" Where, holder on proof of bona fides. Hill v. Noble v. Thompson Oil Co., 79 Penn. Kroft, 29 Ibid. 186. St. 354. This case, however, appears ' Eo-e V. Koontz, 3 Penn. St. 109. to have been decided on the ground of ' Paxon V. Sanderson, 3 Phila. 303. collusion, the garnishee having omitted Daly V. Derringer, 1 Ibid. 324. to set up the assignment, which was ' Irwin V. Pittsburgh and Connells- known to him. If the garnishee, with- ville Railroad Co., 43 Penn. St. 488. out notice of an assignment of the * Schroeder v. Keystone Insurance claim, pay the judgment against him, Co. 2 Phila. 286. this has been held to be a legal dis- *' Campbell's Appeal, 32 Penn. St. charge of the original defendant. 88 Glenn v. Davis, 2 Gr. 153. Bishel v. Echert, 3 Leg. Opin. 375. « Ruff V. Ruff, 85 Penn. St. 333. And see Simon v. Huot, 8 Hun 378. ' Anderson v. Young, 21 Penn. St. ^ Swanger v. Snyder, 50 Penn. St. 443. But the decision of a court of 218. another state against the garnishee, ' Stoner v. Commonwealth, 16 Penn. who pays under the judgment, will St. 387. not protect him against a honk fide '» Calhoun v. Logan, 22 Penn. St. assignee of the claim in this state, 47. 694 EXECUTION. however, the garnishee notified the defendant to appear and defend, but the latter suffered judgment to go against him, the garnishee is not bound to defend, on the ground that the attachment was erroneously issued.' § 1195. The attachment will bind the goods as against a subsequent levy, and a sale under the attachment will confer a valid title on the vendee, as against one who purchased at a prior sale under a levy made subsequently to the attachment.^ Judgments against the vendor of land, who retains the legal title as security for the unpaid purchase- money, being liens, attaching, not only on the naked legal title, but also on the unpaid purchase-money, whether secured by bond or otherwise, cannot be disturbed by an attachment afterwards issued for the money due by the vendee, upon a judgment subsequently rendered against the vendor.^ And a partial assignment of a chose in action by a debtor, recognised as valid by him, in his answers to interrogatories in a prior attachment, is good against a subsequent attaching-creditor.* § 1196. There is tio rule of law which compels the real owner of attached property, on notice of the suit, to come in and defend pro interesse suo, on pain of forfeiting his rights of property or action.' But it has been held, that where a debt is attached, after it has been assigned, the garnishee may give notice of the attachment to the assignee, and he must come in and defend for his interest.* Where, however, in foreign attachment, the goods are ordered to be sold as perishable or chargeable, the title of the purchaser at such sale is indefeasible and unquestionable, whoever the owner may have been, because the order and sale are a proceeding in rem ; but in trespass by the real owner against the sheriff, for taking the goods, the sheriff cannot justify on the ground that the title of his vendee was validated by this peculiar rule of law.'' A bill of interpleader will not lie, to settle the relative rights of different parties to a fund which has hfcen attached in two different suits.* § 1197. Practice, The writ of attachment is sued out hy prcBoipe in the usual manner, and handed to the sheriff, with particular instruc- tions as to the mode of service. It may be made returnable to the second return-day of the term ;' in Philadelphia, it may be made returnable to any monthly return-day." Under the act of 1836, it must be served on the defendant, as well as the garnishee.'* but, by the act 20th March ' Swanger v. Snyder, 50 Penn. St. Penn. St. 224. 218. ' Megee v. Beirne, 39 Penn. St. 50. ^ Harbison v. McCartney, 1 Gr. 172. * Smith v. Harper, District Court, ' Stewart v. Coder, 11 Penn. St. 90. Phila., Sept. 1847. MS. ' Miller v. Insurance Co., 5 Phila. ' Schober k. Mather, 49 Penn. St. 21. 12. An omission in the writ of an initial ' Megee v. Beirne, 39 Penn. St. 50. letter of the defendant's name, will ' Wilcook ». Neel, 1 Phila. 129. not protect the garnishee in paying The court cannot, in a summary man- over the money. Paul «. Johnson, 9 ner, pass upon the rights of one claim- Phila. 32 And see Bentley v. Kauf- ing to be assignee of the fund attached, man, 34 Leg. Int. 12. Patterson's Estate, 10 Leg. Int. 114. '» Rtilevi"§7. Lancaster County Bank v. Gross, 50 " Corbyn v. BoUman, 4 W. & S. 342. ATTACHMENT-EXECUTION. 695 1845,' service on the defendant is dispensed with, except where he is a resident of the county f and, under this act, a return of nihil habet as to the defendant, is conclusive as to his non-residence.^ Where the defendant is a non-resident, judgment may be entered against the gar- nishee, without service on the former, though five years have elapsed since the rendition of the original judgment.* The court will not go into evidence, to prove the falsity of a return of nihil habet against the defendant, except when he comes in and shows a defence on the merits ;^ and if he has entered an appearance de bene esse, and moved to open the original judgment, he cannot complain of want of notice.^ So, where the defendant, who resided out of the county, was not served, but was notified by the garnishee to appear and defend, and suflfered judgment to go against him, he cannot afterwards object that the attach- ment was erroneously issued.' Non est inventus, as to the defendant, is not a good return to the writ.' "Where a note deposited in pawn is 1 P. L. 189 ; Purd. 641. ■■' See GemmiU v. Butler, 4 Penn. St. 232. ^ Murphey v. Burke, District Court, Phila., 30 March 1850. Why attaoh- meut-esecution should not be set aside. Per curiam. This attachment was is- sued 10th November 1849, and on the same day, was served on the garnishee ; on 12th November 1819, the defend- ant died ; as to him, the sheriff returned nihil habet. We have recently had occasion to examine the question of the form of the sheriff's return. The court will not go into oral evidence to prove its falsity, unless, indeed, in the single case, where a defendant comes in, and, showing a defence on the merits, asks to be let in. Now, here, the only ques- tion is the true meaning of nihil habet. Does it mean, "that service cannot be, or could not have been, made upon such defendant by the officer, within his bailiwick ?" We think it is equiva- lent to that, and that it is not neces- sary that the sheriff should, in his return, specifically negative the fact of residence. Rule discharged. Bencke v. Frick, Ibid., 10 June 1848. Why the attachment should not be set aside. Per curiam. In this case, an attachment of execution was issued, to which the sheriff returned, as to the defendant, nihil habet ; the garnishee appeared, and, upon his answers, a judgment in favor of the plaintiff was duly rendered. This is a motion by the defendant to set aside the attachment, on the ground that there was no service upon him, and that, in point of fact, at the time the writ issued and judg- ment was entered, he was resident of the county of Philadelphia, being an inmate of the Blockley Almshouse. Much ingenuity has been displayed on the point, whether the defendant had a legal residence within the county ; we do not deem it necessary to con- sider that question ; the sheriff's re- turn is conclusive that defendant is not a resident. It is true, we are in the practice, in the exercise of a legal dis- cretion, of relieving parties from the consequences of a false return, where they are really injured. Thus, in the common case of a summons returned " served," and a judgment by default, upon proof that the defendant, in fact, had no notice, made timely application for relief, and has a defence, we inva- riably open the judgment, and let the defendant into a defence. Here, it is not alleged that the defendant has any defence ; no injury has been done ; a portion of his property, in the hands of his garnishee, will be applied in discharge of a just debt. 'There is nothing, therefore, in the case, which calls for the exercise of our discretion- ary powers, and the proceedings on their face are regular. Rule dismissed. * Brook V. Driebelbies, 2 Leg. Chron. 317. ' Murphey v. Burke ; Bencke v. Frick, ut supra. ° Skidmore v. Bradford, 4 Penn. St. 296. And see Moorehead v. Harwood, 2 Clark 73. ' Swangerw.Snyder, 50Penn.St.218. ' Hains v. Viereck, 2 Phila. 40. 696 EXECUTION. attached as the property of the owner, it is proper to set out in the return, the nature of the property attached.^ The writ is to be served on the garnishee in the same manner as a summons. 8 1198. Motion to quash. If there be any irregularity in the issuing of the attachment, the court will entertain a motion to quash the writ, which should regularly be made before appearance f or, if there be any defect in the service, it may be set aside.' It is too late, however, to move to set aside the attachment for irregularity, after putting in a plea of nulla bona; it is a well-established rule of practice, that application to set aside proceedings should be made in the first instance, before the party has taken any step in the cause.* The court will not, in general, quash the writ, on a question involving the right to the fund attached ; thus, if a debt due to the estate of a testator be attached by a creditor of the executor, who is also residuary legatee, the court will not quash the writ, on a summary application ; the question can only be raised by pleading.' So, where the right to the fund attached is in litigation in another tri- bunal, the court will not entertain a summary motion to quash, but will leave the garnishee to his defence.^ An attachment against wages, how- ever, will be quashed, on motion, unless the allegation be traversed, on oath.' If a bailee, who has issued a warehouse-receipt or other voucher for the goods in his hands, be summoned as garnishee, the holder of the voucher to whom the same has been negotiated, is to be deemed the gar- nishee, though not named in the writ ; and he may obtain a rule to dissolve the attachment, on giving security, to be approved by the court, to answer to the attaching-creditor for any surplus that may remain of the proceeds of the goods, after the payment of prior liens thereon.* § 1199. Appearance and defetice. If the garnishee desire to defend the attachment, he must put in an appearance, otherwise, a default may be entered against him ;' but such default may be opened, on cause shown.'" The defendant also may appear and become a party, and plead payment, or any other plea which he might have taken advantage of, upon a seire facias upon the judgment.'* And if he come in, and plead payment and a release, the court will not give judgment upon the answer of the garnishee, admitting a balance to be due, until a truth of the pleas has been determined ;'^ the affidavit of defence law does not apply to such a case.'' This, however, is now regu- lated by rule of court, which requires a defendant who interposes a ' Rhoads V. Jtagonigal, 2 Penn. St. Purd. 1826. 39; Rogers, J. ' Layman v. Beam, 6 Whart. 181. ^ Ferris v. Trine, 2 Luz. L. Reg. 172. "> Wray v. Winner, 1 Phila. 336. ' Ibid. Nicholson v. Fitzpatrick, 2 Ibid. 205. ' Poor V. Colburn, 57 Penn. St. 415. Carlin v. Caveuaugh ; Small v. Hurl- ' Pleasants v. Cowden, 7 W. & S. but, supra, i 281 n. 379. And see Lancaster County Bank " Ogilsby v. Lee, 7 W. & S. 445 V. Gross, 50 Penn. St. 224. Patter- " Carter v. Wallace, 1 W. N. C. 68, son's Estate, 10 Leg. Int. 114. 74. « Neff V. Love, 2 Miles 128. " Carter v. Wallace, 9 Phila. 221. ' Miller ». Rush, 25 Pitts. L. J. 72. And see Grant v. Ilickoox, 64 Penn "Act 13 June 1874, P. L. 285; St. 334. ATTACHMENT-EXECUTION. 697 defence, to set forth the grounds thereof specifically, by affidavit, before or at the time of filing his plea ; in default whereof, the plea will be stricken ofi", on motion.' Where a debt is attached, after an assignment thereof, the garnishee may give notice to the assignee, to come in and defend pro interesse suo ;^ but the defendant has no standing in court, to rule the garnishee to plead.^ If the garnishee be an executor, and the funds of the estate be attached in his hands, he may rule the plaintiff and defendant to proceed, within a time to be appointed by the court ; in default whereof, the court may make an order discharging the pro- perty in his hands ; but this cannot be done, where the fund attached is not yet due and payable.* § 1200. Interrogatories. By analogy to the proceedings in foreign attachment, the plaintifi" may exhibit, in writing, to every garnishee, all such interrogatories as he may deem necessary, touching the estate and effects of the defendant, in his possession or charge, or due and owing from him, as the case may be, to the defendant, at the time of the service of such writ, or at any other time, and cause the same to be filed of record in the cause ; and, upon filing such interrogatories, the court, upon motion of the plaintiff, will grant a rule upon the garnishee, to appear before the court, at a time and place therein named, and exhibit, in writing, under his oath or affirmation, full, direct and true answers to the interrogatories so filed, or such of them as the court shall deem pertinent and proper.^ Interrogatories may be served before filing ; but they must be filed contemporaneously with the rule to answer; and they need not be served by the sheriff.* They must have reference to the estate and effects of the defendant in the hands of the garnishee, or debts due from him to the defendant,' as the garnishee is not bound to answer irrelevant interrogatories.^ § 1201. The entry of a rule to answer, may be regulated by general order, and taken as an office-rule.' In Philadelphia, an office-rule may be entered, at any time, after the return-day of the writ, to answer the interrogatories filed, on twenty days' notice.'" This rule may be served on the garnishee, at his dwelling-house, in his absence, by leaving it with an adult member of his family ; the mode of service not being pre- scribed by statute or rule of court." The answers may be sworn to before any officer with general power to administer oaths ; as, in case of a justice's attachment, before any other magistrate.'^ The garnishee I Rule vi ? 8 Wilkesbarre Railroad'- Co., 10 Phila. "■ Wiloock V. Neel, 1 Phila. 129. 336 : s. c. L W. N. C. 326. ' Hart V. Carlisle, 2 Lea;. Gaz. 223. ' Dougherty v. Thayer, 78 Penn. St. Wood V. Miller, 1 Phila. 226. 172. Wiener v. Davis, 4 Clark 91. * Act 28 February 1873, P. L. 37 ; "" Rule xviii. §66. A mistake of the Purd. 1783. the clerk in the date of the entry of the 5 Act 13 June 1836, §55-6, P. L. rule, is amendable. Mohr u. Warg, 26 582 ; Purd. 719. Penn. St. 106. ' Ringwalt v. Brindle, 59 Penn. St. " IMohr v. Warg, ut supra. 5j '^ Minhinnick v. Long, Com. Pleas, ' Corbyn v. BoUman, 4 W. & S. 342. Phila., Dec. 1847. MS. ' Rhine v. Danville, Hazleton and 698 EXECUTION. must make full and distinct answers to the interrogatories, or judgment may be entered against him ;' but he will not, in general, be compelled to annex copies of a correspondence to his answers.^ If the answers be insufficient, the practice is, to file exceptions ; the plaintiff cannot move for judgment." Judgment will not be entered against the garnishees, on their answer, unless it contain a distinct admission of liability;* the ' Jones V. Hacker, District Court, Phila., 22 Sept. 1849. Rule for judg- ment against garnishees. Per curiam. This was a rule to show cause why judgment should not be entered against garnishee for want of "full, direct and true" answers ; the answers are ob- jected to as not being sufficiently full and direct. It appears upon the whole answer taken together, that the original defendant, being indebted to the gar- nishee, had placed in his hands certain securities, as absolute payment of the debt, which were received as such, and the defendant discharged. The plain- tiff asks what these securities were ; this the garnishee has avoided or re- fused to answer. We think the plain- tiff has a right to a full and direct an- swer to the interrogatories, so as to be informed of the true nature of the trans- action between the debtor and gar- nishee. It may be, that the garnishee is thus compelled to discover effects now exclusively his own, and in which the debtor has no interest, but they were once the property of the debtor, and to say that the garnishee is excused in such a case from answering, is to afford tlie means of a very convenient cover and concealment to the grossest frauds upon creditors. ^ Lea V. Musser, 2 Clark 306. ' Lanback v. Black, 1 "W. N. C. 314. Or, it seems, he may demur to the an- swer. Fox V. Reed, 3 Gr. 81. * Fithian v. Brooks, 5 Clark 121. Kerr v. Diehl, 2 Ibid. 325. Ferguson V. Craig, 1 W. N. C. 153. Sheetz v. Leech, 2 Ibid. 291. Moore v. Moore, 34 Leg. Int. 12. Mercer v. Whitaker, District Court, Phila., 9 Deo. 1848. Rule for judg- ment against garnishees. Per curiam. It is a rule of practice of the court, intended for the protection of gar- nishees against the claims of those whose funds or effects they have in hand, never to render a judgment against them, upon answers filed, unless those answers contain either a distinct admission of funds in possession, or of such facts as leave the possession of such funds a mere inference of law. In this case, so far as any point has been pressed upon us, the answers of the garnishee show these facts — The defendants in the judgment upon which the attachment of execution in this case issued, on the 19th Novem- ber 1847, executed to the garnishee two assignments of their estate in Delaware and Maryland, for the benefit of their creditors ; these assignments were not recorded in Philadelphia, where the assignors resided, and we may assume that they were void as to the creditors, according to Weber v. Samuel, 7 Penn. St. 499. Yet, it is clear, that they were good between the parties, and passed the legal title to the assignee. Seal v. Duffy, 4 Penn. St. 274. Under these 'assignments, the garnishee has received certain assets ; before the attachment in this case was laid, however, he had incurred certain liabilities to the cred- itors of the defendants, under the au- thority of their assignments, to the amount of §6816 ; this is more than sufficient to cover all the money at present in his hands. It is distinctly averred, that these liabilities were in- curred in execution of the assignment, being in effect, as we understand it, in payment of debts of assignors, in an- ticipation of the receipt of funds under the assignment, by the garnishee's own paper, received by the creditor in satis- faction. We are not prepared, as a point of law, to say, that the garnishee cannot protect himself by funds after- wards received ; it will be a question for a jury, as we are at present advised, whether these acts of the garnishee were honestly in the execution of his trust. As to the securities, or policies of insurance, which he recovered, the balance, after paying his advances, whatever it may be, has passed under an assignment made by him to James W. HaiTis, on the 2tith of February 1848, before the attachment was laid, ATTACHMENT-EXECUTION. 699 admission of the garnishee, to warrant a judgment, should be such as to leave no doubt of the nature and extent of his indebtedness to the de- fendant.i The court cannot give judgment upon an answer, admitting a sum of money in the hands of the garnishee, but averring an assignment of it to a third person ;^ nor, upon an answer, admitting that the garni- shees held property of the defendant, more than sufficient to pay a debt which the latter owed them, if certain commercial adventures turned out well f nor, upon one admitting an indebtedness, but setting up a prior attachment of it* If the plaintiff take judgment against the garnishee, on his answer, he cannot afterwards proceed to a jury trial.^ And judg- ment cannot be entered in favor of the garnishees, on their answers to interrogatories.* § 1202. Pleadings. If the answers contain nothing more than a denial of the facts charged, the plaintiff is no more bound by them than he would be by a denial in an answer to a bill in chancery; he is not pre- cluded from going before a jury, to make out the proofs aliunde.'' The next step, then, in the cause, if the answer be not accompanied by a plea, is to rule the garnishee to plead to the writ. If the defendant has appeared, he also must be ruled to plead, and the case put at issue as to him, before it can be tried.' It is provided, however, by rule of court,* that where the defendant interposes a defence, he shall set forth the grounds thereof specifically, by affidavit, before or at the time of filing in trust for the creditors of the defend- ants, Adams & Co. It may be, that this transfer has not cured the fault in the non-recording of the original 'assignment ; and it may be, that the garnishee could not thus relieve him- self from the responsibility of the trust which he assumed. It may be, that he will continue liable for the acts and defaults of the new trustee ; but has not the title passed by this assignment, and is not James W. Harris the pro- per assignee, who will be entitled to collect and receive the assets? The contrary was not pressed ; but it was urged, that the liabilities incurred, and advances made by the garnishee, could not be considered, in law, as under and in execution of the assignment, which, we think, as has been stated, to be a question of fact. Rule discharged. Roberts v. Steiner, Ibid., 11 Nov. 1848. Rule for judgment against gar- nishees. Per curiam. It is a settled practice with the court, not to give a j udgment against garnishees, upon their answers, unless they contain a clear and unqualified admission of funds in hand belonging to defendant, or of facts which make the existence of such funds an inference of law. In this case, it appears, that the defendants are a for- eign commission-house, of whom the garnishee bought goods, and they have been notified, by a firm in England, that they will hold them responsible for the price. Surely, the garnishees do not mean to admit the funds out of their hands in the face of this notice. We will not look into the letters of the alleged claimants, to see whether their claim is consistent with the facts sworn to by the garnishees, for, after all, those letters are mere evidence, not admis- sions injudicio. Rule discharged. ^ Allegheny Savings Bank v. Meyer, 59 Penn. St. 361. Hyatt v. Prentzell, 10 Pitts. L. J. 4. '' Lancaster County Bank v. Gross, 50 Penn. St. 224. Or, an adverse claim to the fund. Sheetz v. Leech, 2 "W. N. C. 291. Moore v. Moore, 34 Leg. Int. 12. ' Kerr v. Diehl, 2 Clark 325. * Ferguson v. Craig, 1 W. N. C. 153. Moore v. Moore, 34 Leg. Int. 12. * Bradley v. Bradley, 3 Phila. 414. 8 Hess V. Shorb, 7 Penn. St. 231. * Bawling v. Phillips, Dist. Court, Phila., July 1848. MS. 8 Rule vi. J 8. 700 EXECUTION. his plea ; and, in case he shall not file such affidavit, the plea shall, on motion, be stricken off; in such case, the proper course is, to enter judgment against the defendant by nil dieit. The general issue is nuUa hona;^ but the garnishee may plead specially almost anything that he can plead against his own original creditor f he can raise the question of the ownership of the goods, and plead a prior assignment f but the plaintiff may show that a prior assignment, set up by the garnishee, was not bond, fide} A lien upon the fund attached, or a liability therefor to others, must be specially set up as a defence, by the garnishee.^ The garnishee, however, cannot impeach the judgment against the defendants ; he can take no defence that would not have availed them, after judg- ment f the validity of the original judgment is not in question/ He may plead that the debt is not presently demaudable, to qualify the judgment ; and with the same object he may plead former attachments, so as to make it subject to them ; but he cannot plead a pending suit, or a judgment recovered against him, by his own creditor, for the claim attached.' A plea of set-off ought to be as special as a declaration upon the counter-claim, or the plaintiff may demur to it.^ If the garnishee plead in confession and avoidance, the plaintiff must put in a replication, so as to raise a substantial issue.^" If the garnishee plead a former judg- ment between the parties, the plaintiff may reply a matter which could not have been set up on the trial of the former suit.^' § 1203. The garnishee has the same rights o^ set-off and defence against the plaintiff in the attachment, that he would have against the defendant, if sued by him ;^^ thus, he may set off a cross-demand exist- ing in him against the defendant ; but the set-off must have been acquired by him prior to the service of the attachment ; and the onus of showing this is on the garnishee ; there is no presumption in the case.^^ A judgment held by an administrator in his own right, against a legatee, cannot be set off against one who attaches the legacy in the hands of the administrator ;^* but a debt of the legatee to the estate may be set off.'' The debt of a single member of the firm, who are defendants in the attachment, cannot be set off by the garnishee, on the trial, without ' Reed v. Penrose, 36 Penn. St. 283 ; ^ Peterson v. Sinclair, 83 Penn. St. Woodward, J. The filing of a plea of 250. nulla bona does not preclude the plain- * Bank of Northern Liberties v. tiff from setting down the cause for Munford, 3 Gr. 232. hearing upon the answers. Fox v. ' Black v. Nease, 37 Penn. St. 433. Reed, 3 Qr. 81. And see O'Connor v. O'Connor, 2 Gr. '' Farmers' and Mechanics' Bank v. 245. Gill v. Joaquin, 2 W. N. C. 139. Little, 8 W. & S. 207. » Kase v. Kase, 34 Penn. St. 128. ' Beards v. Hathaway, 5 Luz. L. " Fox v. Reed, 3 Gr. 81. Reg. 259. If he plead a prior draft '» Maxwell v. Beltzhover, 9 Penn. St. upon the fund, he must show that the 139. holder is a creditor of the drawer, and " Ashton v. Mann, 3 Phila. 215. that such holder took the same, on the *'■' Myers v. Baltzell, 37 Penn. St. faith of the promise to accept. Hyatt 493. V. Prentzell, 20 Leg. Int. 133. » Pennell v. Grubb, 13 Penn. St. 552. * Allen V. Erie City Bank, 57 Penn. '« Lorenz v. King, 38 Penn. St. 93. St. 129. i» Strong v. Bass, 35 Penn. St. 333. ATTACHMENT-EXECUTION. 701 evidence that tlie apparently individual contract of such member is the contract of the firm, or has been ratified by the firm.' Where the funds of an insolvent canal company were attached in the hands of a banker, who was president of the company, and with whom the treasurer of the company had deposited them, under an agreement to pay interest thereon, and to hold the same subject to call, it was held, that the garnishee could not set ofi" bonds of the company owned by him.^ § 1204. Trial. The act authorizes the joinder of the original defend- ant and other persons in the scire facias, and they may join or sever in pleading. But under the plea of nulla bona the jury should be sworn as to the garnishee alone, for it is clear that, under such a state of facts, the proceedings against the garnishee and defendant are distinct and hostile ; and though there be a plea of payment by the defendant, the disposal of that issue is not a prerequisite to the trial of the one between the plaintiif and garnishee.^ The granting of a separate trial, however, to one of several garnishees, is not a matter of right, but rests in the sound discre- tion of the court, subject to review, if unjustly exercised.^ § 1205. From the principle that the attaching-creditor occupies the position of the debtor, it follows, that on the trial of the issue, the same presumptions of law arise from any particular evidence, as if there had been no attachment, but the action had been brought by the creditor of the garnishee against him. Hence, where the answer denies the indebt- edness on the part of the garnishee, and the plaintifi" proves that the garnishee had been indebted at one time, without showing that such indebtedness continued at the time of the attachment or afterwards, the onus is on the garnishee to show payment, or a set-ofi', or judgment will be given against him.^ Where the parties go to trial on a plea of former recovery, without a replication, this does not amount to a con- fession of the truth of the facts stated in the plea.^ § 1206. Evidence. The answers are primary evidence for the gar- nishee,^ but the jury are not bound by them, when there is anything to disprove or discredit them ;' and where the garnishee produced no evidence but his own answer, the transaction being in its nature suscep- tible of the ordinary means of proof, and no reason was assigned to excuse or explain the omission, and the jury found against the garnishee, a new trial was refused.^ The plaintiflT's ex parte affidavit, made in the original suit, to which the garnishee was not a party, cannot be read in evidence by the plaintifi".'" Where the point in issue is whether a mortgage-debt attached is the separate property of a married woman, or of the defendant, her husband, the mortgage being a security for money loaned by the wife in her own name, the declarations of husband ' Norcross v. Benton, 38 Penn. St. ^ Fessler v. Ellis, 40 Penn. St. 248. 217. ^ Tarns v. Bullitt, 35 Penn. St. 308. * Fox V. Keed, 3 Gr. 81. ' Erskine v. Sangston, 7 Watts 150. ' MoCormac v. Hancock, 2 Penn. St. * Adlum v. Yard, 1 Rawle 165. 310. ' Mcllree v. Guy, 1 Phila. 491. * Peterson ». Sinclair, 83 Penn. St. '" Black v. Nease, 37 Penn. St. 250. 433. 702 EXECUTION. and wife, as to advances of money by the wife to the husband, several years before, are not admissible.^ Evidence is admissible to show that a prior assignment of a legacy or distributive share attached, is fraudulent as to creditors.^ On attachment of a note, the payee's admis- sions, made while he had the note in his possession, that it had been attached, are not to be rejected, on the assumption that they were made after the assignment, the witness stating that the note had no assignment on it at that time.' § 1207. Verdict. Where there is a verdict against the garnishee, the jury find what goods, if any, are in his hands at the time of the attach- ment executed, and afterwards, and their value.* The issue on nulla bona is, whether the garnishee had effects in his hands or not, and the verdict should respond to it ; but, if it do not, the court may mould it into shape, after it is rendered.^ Considerable latitude is allowed in this respect, and a court of error will not scrutinize closely the power thus exercised.^ Where the issue was, whether the garnishee had received goods of the defendant, in fraud of creditors, and the verdict was against the garnishee, for an amount less than the plaintiff's judgment, the pre- sumption is, that the jury found a verdict for all the property fraudu- lently received from the defendant, and that question cannot be retried between the plaintiff and another garnishee, the agent of the first.^ And where an unascertained interest in a decedent's estate is attached,^ it is not necessary that the jury should find the amount in the hands of the garnishee.^ § 1208. J'udffment. The judgment, when for the plaintiff, is for the value of the goods, &c., found to be in the hands of the garnishee. If the garnishee make default, the proper judgment is, that the plaintiff have execution of so much of the debt, &c., due by the garnishee to the defendant, and attached in his hands, as may satisfy the judgment of the plaintiff, with interest and costs ; and if the garnishee refuse or neglect, on demand by the sheriff, to pay the same, then, the same to be levied of his, the garnishee's, goods and lands, according to law, as in case of a judgment against him for his proper debt ; and that the gar- nishee be thereupon discharged, as against the defendant, as of the sum so attached and levied, Ac.'" The form of the judgment, however, should be varied, where the garnishees are executors or administrators ; in such case, it is error, to enter judgment against them de bonis prop rm}^ And if the defendant have claimed the benefit of the exemption law, the conclusion should be, that the garnishee be discharged as of the sum ' Black V. Nease, 37 Penn. St. 433. ' Tama v. Richards, 26 Penn. St. 97. ^ Sinnickson v. Painter, 32 Penn. » See act 10 April 1849, 2 11, P L. St. 384. L. 620 ; Pui-d. 641. » Anderson v. Young, 21 Penn. St. ' Bousloush v. Bouslouffh, 68 Penn. 443. St. 495. * Pooru. Colburn, 57 Penn. St. 415. "> Layman «. Beam, 6 Wbart. 181. Bonnaffon v. Thompson, 83 Ibid. 460. Corbjn v. BoUman, 4 W. & S. 342. ^ Flanagin v. Wetherill, 5 Whai-t. " Lorenz v. King, 38 Penn. St. 93. 286. And see Mawson v. Goldstone, 9 Phila. ' Keen v. Hopkins, 48 Penn. St. 445. 30. ATTACHMENT- EXECUTION. 703 attached and levied, to the extent, and so far only as the same may exceed the sum of three hundred dollars, without prejudice to the right of the defendant to recover from the garnishee the said sum of three hundred dollars, or any less sum, due and owing by the garnishee to him, the defendant, at the time of, or at any time since, the service of the attachment.^ Where the defendant dies pending the attachment, it is not necessary to bring in his personal representatives, before entering judgment against the garnishee ; though the court may let them in to take defence, in a proper case.^ § 1209. A judgment against the garnishee bars an action by the assignee in bankruptcy of the defendant f but a judgment in favor of the garnishee, is no bar to a subsequent action by the defendant against him •* a judgment for the defendant, however, necessarily discharges the garnishee.^ The issue against each garnishee being in the nature of a separate suit, they are entitled to full costs on the issues determined in their favor f but one of several garnishees cannot claim his costs out of the fund found to be in the hands of another.' If the defendants and the garnishees are members of distinct firms, execution will be stayed, until the equities between them are adjusted.^ Where the gar- nishee admits the possession of goods pledged to him, the court will award nji.fa., to sell them, subject to his rights;^ so, also, where secu- ' Jones V. Tracy, 75 Penn. St. 417. 2 Etting V. Moses, 1 Phila. 399. 3 Yerkes v. Cole, 7 Phila. 189. * RufiF V. Ruff, 85 Penn. St. 333. 5 Commercial Manufacturing Co. v. Conrad, 9 Phila. 24. * ]MaoTuder v. Adams, supra, 1 925 n. ' Foyle u.Ioyle, 1 Phila. 182. The act 22 April 1863, P. L. 527, Purd. 642, provides, that where the garnishee, after issue joined therein, shall be found to have in his possession or con- trol no real or personal property of the defendant, nor to owe him any debt, other than such property or debts as shall have been already admitted by the plea or answers of the garnishee, or in case, without going to trial, the plaintiff shall take judgment against the garnishee for what shall be so ad- mitted in his plea or answer, then and in either such case, the garnishee shall be entitled, in addition to the costs already allowed by law, to a reasonable counsel-fee out of the property in his or their hands, to be determined and taxed, in case of dispute, by the court, or by some person appointed for that purpose. » Allen V. Erie City Bank, 67 Penn. St 129 ' Lamb V. Vansciver, District Court, Phila., 22 Dec. 1849. Rule for judg- ment against garnishees. Per curiam. It appears by the answers of the gar- nishees, that they hold certain articles of personal property belonging to de- fendants as a pawn, pledge or security for debts, advances or liabilities. The act of assembly of 16th June 1836, re- lating to executions, is not very clear in its provisions in regard to goods pawned or pledged. The 23d section provides, that "goods or chattels of the defend- ant in any writ of fieri facias, which shall have been pawned or pledged by him as security for any debt or liabil- ity, or which have been demised, or in any manner delivered or bailed for a term, shall be liable to sale upon exe- cution as aforesaid, subject, neverthe- less, to all and singular the rights and interests of the pawnee, bailee or les- see, to the possession or otherwise, of such chattels or goods, by reason of such pledge, demise or bailment.'' The 25th section, however, extends the attachment-execution to "goods or chattels pawned, pledged or demised, as aforesaid ;" but in the 38th section, which sets out with professing to give the proper execution in all oases of judgment against the garnishees in the process of attachment^execution, no 704 EXECUTION. rities are attached in the hands of a pledgee.^ And where a debt is attached, payable in corporation funds, the court will enter a special judgment for the delivery of so many of them, at their assessed value, as will satisfy the judgment and costs ; and, in case of refusal, that the same be levied of the proper goods and lands of the garnishees.^ Where a legacy or distributive share is attached in the hands of an executor or administrator, the plaintiff, before receiving payment, must give a proper refunding bond.' The garnishee is not entitled to a stay of exe- cution upon the entry of security.* And several attachments, issued and served on the same day, are to be paid pro rata, out of the fund attached.' § 1210. Execution against stock. In proceeding against stock be- longing to the defendant in the execution, it may happen, either that the stock is held in his own name, or that it is held in the name of . another person ; the mode of proceeding differs in the two cases. The act of 1819 provides,* that the stock of any body corporate, owned by the defendant in his own name, shall be liable to be taken in execution and sold, in the same manner that goods and chattels are liable in law to be so taken and sold, subject, nevertheless, to any debt due by the holder to the company. This section is still in force,' but it only applies to stock held in the name of the real owner ;^ hence, if the defendant has sold, but not transferred the stock, it cannot be taken in execution, but the creditor must resort to his attachment ; the rule which obliges exclu- sive possession of the chattels to be taken by the buyer, to secure them against executions against the vendor, does not apply to transfers of stock.^ A subsequent sale of bank-stock, under the lien of the bank for a debt due by the owner, divests the title of the purchaser at the former sale under execution against the owner ;'" the lien of the bank upon stock attaches upon the protest of a note made or indorsed by the owner of the stock." In case of a sale of stock under a.fi. fa., the sheriff is not bound to transfer it on the books of the company ; the record is sufficient evidence of the title of his vendee.^'' notice whatever is taken of the case of ' Act 13 April 1843, § 10, P. L. goods pawned; pledged or demised. 235 ; Purd. 641. See Smith's Forms It appears to us, however, that we must 389. The orphans' court will make an construe the whole act together, S'o as order to pay the fund to the attachino-- to give effect to all its parts, and, there- creditor. Downing's Estate, 5 W. W. fore, that whenever it appears, upon the C. 544. answers of the garnishees filed, that * Woolston v. Adler, 1 Phila. 284. they have in their possession goods or " Baldwin's- Appeal, 86 Peun. St. chattels, pledged, &c., we must award a 483. writ of fl. fa., under the 23d section, to » Act 29 March 1819, § 2 ; 7 Sm. L. sell all the right, title and interest of 217 ; Purd. 642. the defendants in the specific goods. ' Lex v. Potter, 16 Penn. St. 295. Judgment .against defendant for the * Ibid. amount admitted, and fi. fa. awarded » Commonwealth v. Watmoush, 6 as to the balance, against the goods Whart. 138. admitted to be held by both garnishees. '» West Branch Bank v. Armstroncr Freeman v. Simons, 7 Phila. 307. 40 Penn. St. 278. For form of execution, in such case, " Ibid. see Stoever u Stoever, 3 W. N. C. 169. " Sewall v. Lancaster Bank, 17 S. & King V. Hyatt, 41 Penn. St. 229. K. 285. ATTACHMENT-EXECUTION. 705 § 1211. The act of 1836' provides another mode of proceeding against stock held in the defendant's name, which is to some extent concurrent with that given by the act of 1819, so that the execution may be either by fi. fa., under the act of 1819, or by attachment, under the act of 1836, at the plaintiff's election.^ The latter mode, however, is exclusively to be used when the defendant is not the real owner of the stock held in his name, though he may have an interest therein, and is, therefore, the preferable mode of proceeding, in all cases where his ownership is doubtful ; and it is preferable, where the stock held in the defendant's name is subject to a charge or lien upon the title.^ In this proceeding, the prothonotary, upon application, issues process in the nature of an attachment against such stock held in the name of defendant.* In the case of Lex v. Potter,^ there was a clause of scire facias directed to the corporation, and this would seem to be the proper form, though not expressly required by the act. If any person claim to be the owner of the stock, he is to be admitted to become a party to the record, and take defence as if he had been made garnishee in the writ, upon his filing an affidavit that the stock is really his property, and entering into a recognisance, with two sufficient securities, conditioned for the payment of such dam- ages as may be adjudged to the plaintiff, if the stock be found to belong to the defendant.* The subsequent proceedings to judgment are the same as in attachment-execution ; the execution is the same as under the mode of proceeding -next described. § 1212. Where stock belonging to the defendant is held in the name of another, by the act of 1836,' the plaintiflT must file in the office of the prothonotary an affidavit, stating that he verily believes such stock to be really the property of the defendant, and must enter into a recognisance, with two sufficient sureties, conditioned for the payment of such damages as the court may adjudge to the party to whom the stock really belongs, in case it should not be the property of the defendant. Upon the filing of such affidavit and recognisance, the prothonotary may issue an attach- ment-execution in the usual form against the stock, with a clause of summons to the person in whose name it is held, as garnishee.^ The proceeeding must be brought in the county where the garnishee resides.' The effect of the attachment is, to bind the stock from the time of service, as has been already explained under attachment-ex;ecution. The pro- 1 Act 16 June 1836, § 32, P. L. 768 ; » Ibid. ^ 36. Where stock in a Purd. 639. building association has been assigned ■ ^ Bonaffon v. Wyoming Canal Co., to it, as collateral security for a loan, 4 Phila. 29. it cannot be attached, without the afB- ' Weaver v. Huntingdon, &o., Rail- davit and recognisance required by road and Coal Co., 50 Penn. St. 314. law, though the defendant's real estate In such case, it cannot be sold on a fi. has been sold on. execution, for a sum fa. Early's Appeal, 8 Luz. L. Reg. 169. more than sufficient to pay the loan ; * See Smith's Forms 385. there having been no distribution. * 16 Penn. St. 295. Mulford v. Weisgerber, 3 Luz. L. Reg. 5 Act 16 June 1836, ^ 34. See 9. See Smith's Forms 384, for th© Smith's Forms 386-7, for the forms of forms of procedure, procedure ' Cowden v. West Branch Bank, 7 ' Ibid. I 32. W. & S. 432, VOL. I. i5 706 EXECUTION. ceedings from the service to the judgment against the garnishee do not differ from the regular proceedings in attachment-execution. The exe- cution must be hy fieri facias against the original defendant, under which the stock, or so much as may be necessary, may be sold by the sheriff, as in other cases.^ § 1213. The 3d section of the act of 29 March ISIQ^ provides a mode of proceeding against stock of a defendant, not held in his own name, which is substantially the same as that provided by the act of 1836, except that the earlier act allows the proceeding to be commenced before judgment, and even before suit brought, expressly extends to suits before aldermen and justices of the peace, and in such suits allows appeals to be taken in the ordinary mode, when the amount in controversy exceeds five dollars and thirty-three cents. This section is believed to be still in force, so far as not supplied by the act of 1836. An attachment does not lie, under this section, where the holder of the stock has a good title to it, as collateral security ; it was intended to meet the case of stock held in the name of another, for the purpose of keeping it from the reach of the owner's creditors.' XI. Execution against real estate. § 1214. Fieri facias. When sufficient personal property cannot be found by the officer, on the writs just mentioned, the defendant's lands, tenements and hereditaments, which, with certain modifications, are con- sidered in this state as chattels for the payment of debts,^ are, by the act 16th June 1836,° liable to be seized and sold upon judgment and execu- tion. It is necessary to exhaust such personal property as can be reached hj fi.fa., before proceeding against the land f but after a,fi.fa. has been executed against land, the court will not set it aside, on the ground, that since the inquisition, sufficient personal property has been found to satisfy the execution.^ The character and extent of the interests in land which are subject to levy and sale have been already shown.* Though land which has been acquired by the defendant since the judgment, is not subject to the lien of the judgment, it is just as much subject to seizure and sale in execution as any other pro- perty of the defendant.' If land, bound by the judgment has since been aliened, the plaintiff may proceed against it in the hands of the terre- tenant, without resorting to a sdre facias}" And where the judgment is on the bond accompanying a mortgage, the fi. fa. is not restricted to the mortgaged premises." The writ generally used to enforce judgment against land is the fieri facias ; the proceedings under this writ, in their • Act of 1836, ? 38. « See supra, ? 968-9. ' 7 Sm. L. 217 ; Purd. 642. ' Hunt v. McClure, 2 Yeates 387. ' MoKee v. Moore, 1 W. N. C. 112. « See supra, ^ 1002, et seq. « Andrew v. Fleming, 2 Dall. 94. » Packer's Appeal, 6 Penn. St. 277. Cowden v. Brady, 8 S. & R. 508. Lea v. Hopkins, 7 Ibid. 492. Himes V. .Jacobs, 1 P. & W. 158. i» Young v. Taylor. 2 Binn. 228. * Act 16 June 1836, § 43, P. L. 769 ; " Morris v. McConaughey, 1 Yeates Purd. G46. 9 12. AGAINST EEAL ESTATE. 707 regular order, will be explained iu the present section, reserving certain special cases to be treated separately hereafter. § 1215. Nature and form of the writ. The object to be affected by the writ is the seizure and sale of the defendant's interest iu the land, and the application of the proceeds to the payment of the judgment. But in order that defendants may not be at the mercy of their cred- itors, an inquisition must be held, to ascertain if, from the profits of the land, the debt, interest and costs may be satisfied in seven years, in which event, the land is not sold at all, but appraised, and either taken by the plaintiff at the valuation, to hold until his judgment, with interest and costs, has been paid, or delivered to the defendant to keep, on his paying the plaintiff the appraised value in semi-annual payments, until his debt is satisfied. If, however, there be a written waiver of an inquisi- tion, by the defendant, the sheriff may proceed to sell the real estate on the fi. fa., before the return-day, without any further writ;' and this is also the proceeding where, from the peculiar nature of the estate levied on, an inquisition is unnecessary. If the inquest condemn the land, that is, find that it will not pay the debt, interest and costs, in seven years, the sheriff returns this fact along with his fi. fa., and thereupon the plaintiff may have a writ of venditioni exponas to sell the land, and pay his debt from the proceeds. The form of the writ is not prescribed by the act ; it is a mandate from the court to the sheriff, or other proper officer, commanding him that of the lands (or goods and lands) of the defendant he cause to be made the amount specified, and that he have the same, together with the writ, in court, at the return-day. § 1216. Levy. The first step towards the execution of this writ is the levy, to constitute which no actual entry upon or seizure of the lands and tenements need be made by the sheriff, who does not, in the case of land, as he does in the case of chattels, take the thing levied out of the defendant's possession.^ The act is silent as to the manner of its per- formance, and gives no directions as to notice to the defendant. The levy on real estate is made on paper ; the defendant is not entitled to any notice of it, and it may be entered after the return-day, even ii a former levy had been set aside ;^ but the defendant must have notice, either of the levy or of the inquisition.* The levy is to be made on the real estate of the defendant, or such part thereof as the officer may deem sufficient to pay the sum to be levied ; but not less than a whole tract can be levied on.° . . § 1217. The plaintiff should furnish to the sheriff a description of the property' by metes and bounds, as set forth in the defendant's title- papers on record. The sheriff annexes to his return a description of the 1 Act 16 June 1836, H5, P- L. 769 ; Hurst «. Rodney, 2 W. C. C 49. p J g^Y * Heydrick v. Eaton, 2 Bmn. 217. "'^ The act 11 June 1879 provides that If the defendant be a non-resident, no- an inquest shall be held, whenever real tice may be served on his tenant upon estate is taken in execution, under any ttie premises. Evans v. Sidwell, 9 L. '"^tiiZl Brady, 8 S. & K. 509. "Act' 16 Jun. 1836, ? 43, P. L. 769. * Thompson v. Phillips, Bald. 270. Purd. 646. See Heydrick v. Eaton, 2 Binn. 217. 708 EXECUTION. nature of the interest levied on, and of the situation and boundaries of the land ; this identifies and fixes the object levied on, and is the only mode of ascertaining what was taken in execution ; in case of a variance between the levy and subsequent proceedings, the levy must govern.* Generally, the levy controls all subsequent proceedings — as, where a levy was made on a rent-charge, and, by rriistake, the sheriff advertised the lot on which it was charged, and executed a deed conveying the lot, and no application was made in time, to set aside the sale, the rent- charge was held to pass to the purchaser.^ And a mistake in the levy, as to the character of the defendant's estate, is fatal ; thus, a levy and sale of the defendant's estate, as a tenancy by the curtesy, when he had the fee, 'passes no title f but a mere vagueness in the description of the defendant's interest in the land, is not a fatal objection to the levy; it may be amended.* So, a levy on an undivided moiety, when the defend- ant owns the whole, will be set aside, on his application.^ § 1218. But a mistake in respect to the quantity and boundaries of the land, is not so serious. A description by metes and bounds, and the rents described as issuing out of the land, is sufiicient ; more laxity of description is allowed in levies than in deeds, because the title-papers are not always accessible to the plaintiff; but a levy and sale is a mere nullity, which affects to pass all the defendant's property, in general terms, as, all his lands in Pennsylvauia.' It is enough, if the levy show what was intended to be levied on ; and where doubtful expressions are used, the construction should be favorable to the recovery of the debt by the plaintiff; thus, a levy on a tract of land generally, embraces whatever interest the defendant had in it, unless there were something else in the levy, restricting it to a particular part or share of the land.' So, if the levy and sale are not by fixed boundaries, or of any ascertained quantity, but of a certain number of acres, more or less, in the tenure of the defendant, the vendee holds by the extent of such tenure.' The levy ought not to be construed beyond the natural meaning of its words, where there is nothing else to explain them ; the description of real estate in a levy is usually furnished by the plaintiff, who may embrace in it whatever he chooses ; and if he use limited and restrained lan- guage, the purchaser, claiming under the plaintiff's levy and sale, must Grubb V. Guilford, 4 "Watts 223. granted leave to amend the levy ; and " Streaper v. Fisher, 1 Eawle 155. the supreme court held, that such mat- ' McLaughlin v. Shields, 12 Penn. ters must be left to the sound discretion St. 283. And mere acquiescence in of the court below, and were not mat- the mistake, by the defendant, will not ters of error. The writ of error was conclude him ; to have that effect, the quashed. Ibid. mistake must be brought about by the ^ McCormick v. Harvey, 9 Watts action of the defendant. Ibid. 484. * Donaldson v. Bank of Danville, 20 « Heartley v. Beaum, 2 Penn. St. Penn. St. 245. On a rule to show 171. cause why the levy, inquisition, vend. ' Inman v. Kutz, 10 Watts 100. exp., and sheriff's sale should not be set » Hyskill v. Givin, 7 S. & R. 369. aside, the court set aside the sale, but Swartz v. Moore, 5 Ibid. 257. Zeigler refused to set aside the inquisition, and v. Hautz, 1 W. & S. 533. AGAINST REAL ESTATE. 709 take according to the description ; thus, if the levy be on half of a tract, he takes no more at the sale, although the defendant may then be owner of the whole.^ A levy free from ambiguity, fraud or misrepresentation, cannot be impeached or contradicted by parol evidence.^ And a clear mistake in the situation of the land is fatal; thus, a sale under a mechanic's claim against a house on A. street, will not pass a house on B. street, and parol evidence is inadmissible, to show that the description was intended to apply to the house sold/'' In such case, also, the sale will be set aside ; and perhaps the purchaser might defend on this ground, i-n an action against him by the sheriff for the purchase-money.* § 1219. The sheriff is not bound to levy on all the defendant's lands in his bailiwick ; neither can he cut up and divide particular tracts, a levy upon a part of a tract being illegal and prohibited by the act ; nor can an administrator agree to such a levy.° But he is bound to follow the directions of the plaintiff, as to seizing on a specific tract, and this is constantly done.^ So, if there be a general judgment affecting different estates, or distinct tracts, the judgment-creditor may direct a levy to be made on one only ; although, if the estate levied on has been sold or conveyed by the defendant subsequently to the judgment, and the remaining lands are sufficient to satisfy all the liens, the court will interfere.' It is not a valid ground for setting aside a levy, that the land is named as several parcels, when it ought to be sold together ; or as one tract, when it ought to be sold separately ; nor that the description of the defendant's interest in the land is vague. The levy may be amended, with leave of the court, which has a controlling power over the sale.' Where a small piece of land is purchased by the owner of a tract adjoining it, for the purpose of uniting it therewith, and of using, im- proving and occupying the wliole as one tract, and it is so used and occupied, it becomes united to the larger tract ; and it is sufficient, in order to include both in a levy, for the sheriff to describe them generally as one tract, without any particular description of the lesser tract, or specification of the title under which it is held.' And where a second lot was held by adverse possession, having been the site of a mill-pond appurtenant to a mill on the tract held in fee, but that right had ceased, under the provisions of the grant, by disuser, a sheriff's sale of the defendant's title to the tract owned in fee, with the appurtenances, passes his title in the second lot.^" 1 McCormiok w. Harvey, 9 Watts 482. « Ibid. Carpenter v. Cameron, 7 Ibid. 51. See ' Mevey's Appeal, 4 Penu. St. 80. McLaughlin v. Shields, 12 Penn St. Cowden's Estate, 1 Ibid. 279. Nailer 287. V. Stanley, 10 S. & R. 450. And see ^ McClenahan v. Humes, 25 Penn. supra, g 1014. gt_ 85, • * Donaldson ». Bank of Danville, 20 ' Simnson v. Murray, 2 Penn. St. Penn. St. 245. 76 ' Buckholder v. Sigler, 7 W. & S. * Friedly ». Scheetz, 9 S. & R. 156. 154. ^ Snyder w. Castor, 4 Yeates 443 ; ■" Scheetz v. Fitzwater, 5 Penn. St. s. c. 2 Binn. 216 n. Maybury v. Jones, 126. 4 Yeates 21. 710 EXECUTION. § 1220. The remedy for a defective or erroneous description in the levy, is by application to the court to set it aside. This should be made at an early moment, if possible, before the sale, and must be made before the sheriff's deed is acknowledged ;' if the defendant lie by and allow the purchaser to pay his money and receive a deed, he has no cause of complaint.^ The court may permit the levy to be amended, instead of setting it aside. The grounds upon which a levy will be set aside have been already explained in considering the manner of making the levy. The refusal to set aside a levy is within the sound discretion of the court below, and is not matter of error.' When the levy is set aside, the plaintiff cannot proceed to sell, without a fresh levy, and a sale made under a venditioni exponas, issued without such fresh levy, would be void.^ § 1221. By the principles of the common law, a lien is a necessary and inseparable incident of seizure in execution.' And though an execution levied on land will not operate to continue the lien of the judgment, yet, if issued on a judgment which is not a lien, it would create a new lien, so as to protect, for a reasonable time, the property levied on.* And, after a levy on land in the possession of the debtor, he cannot, with a view to defeat the creditor, transfer the possession, even to the real owner — the owner, in such case, must pursue his title, by ejectment.' Afi.fa. levied- on the land is not notice to a terre-tenant.^ Where the defendant disclaimed all title to the land levied on, and the plaintiff thereupon abandoned further proceedings on the fi. fa., and issued an alias fi. fa., the court refused to set aside the latter writ, at the instance of the defendant, who based his application on the ground that the plaintiff was bound to pursue his levy on the first writ to condemnation.' And where the land is found by the inquest sufficient to pay, by its profits, the -debt in seven years, the plaintiff, it seems, is not bound to proceed to extend the land, but may bide his time, and come upon the proceeds of that or any other tract, when sold upon another execution.'" And where the plaintiff, having two judgments, issued a Ji. fa. upon the oldest, and levied upon the defendant's land, which was extended, though the liberari was not executed, it was held, that this proceeding did not pre- clude him from having an execution upon the second judgment, although both judgments were laid before the inquest upon the first execution." If the land. were retained by defendant, this would now fall within the prohibition of the act 26th April 1855.'2 ' Buchanan v. Moore, 13 S. & R. Packer's Appeal, 6 Penn. St. 277. 304. Carpenter v. Cameron, 7 Watts Hinds v. Soott, 11 Ibid. 25. 60 ; Huston, J. McCormiok v. Har- « Packer's Appeal, 6 Penn. St. 277 vey, 9 Ibid. 485. ' Stable v. Spohn, 8 S. & R. 317. '' Heartley v. Beaum, 2 Penn. St. ' Koons v. Hartma'n, 7 Watts 20. 165 ; Sergeant, J. ' Coleman v. Mansfield, 1 Miles 56. ' Donaldson ». Bank of Danville, 20 See Hunt v. Breading, 12 S. & R. 37. Penn. St. 245. Morrison's Appeal, 1 Penn. St. 13. « Burd V. Danadale, 2 Binn. 80. '» Taylor's Appeal, 1 Penn. St. 390. ' Stauffer v. Commissioners, 1 Watts " Gist v. Wilson, 2 Watts 30. 300. Shaeffer v. Child, 7 Ibid. 86. '' P. L. 313; Purd. 6.50. INQUISITION. 711 § 1222. Inquisition. The next step to be taken by the sheriff, after levying on real estate, is to summon an inquest for the purpose of ascer- taining whether the rents and profits of such estate, beyond all reprises, will be sufficient to satisfy, within seven years, the judgment upon which the execution was issued, with the interest and costs of suit.' Generally, a sale of improved land without inquisition is void f it is requisite, in order to authorize the sale of the equitable title of a vendee under articles of agreement, although levied on as an estate for life, and although the vendor had disseised or obtained possession from the vendee.^ The want of an inquisition is not cured, by showing that the land was held adversely to the title of the defendant.* And a statute providing that a judgment against a defaulting tax-collector, shall be without stay of execution, and shall be prosecuted without delay, does not dispense with the inquisition.* But the want of an inquisition can be taken advantage of only by the defendant in the execution, and by him only within a reasonable time ; and therefore, the voluntary aban- donment of the land by the defendant, after the sale, the entry by the purchaser from the sheriiF's vendee, and his retention of possession for twenty years or more, will defeat a mere intruder who defends his pos- session under the title alleged to exist in the defendant in the execution, on the ground of the defect in the sherifi''s sale, by reason of the want of an inquisition.* § 1223. If the property consist of a vacant lot in a town, or of mere woodlands unimproved, an inquest is unnecessary;^ and where it was evident that the debt and costs could not be satisfied, within seven years, out of the annual rents and profits, the want of an inquisition did not vitiate the sale.' If the land has been previously condemned under a fi. fa., another judgment-creditor may sell, without a new inquisition ;' so, an inquisition is unnecessary, where the estate levied on is of uncer- tain duration, as, where the defendant is seised in fee, liable, however, to be defeated by his dying and leaving children.^" The case of an estate for life has been specially provided for by the legislature, as will be explained hereafter. An inquisition is unnecessary, in order to effect the sale of a lease for years ;" and where the estate levied on is a reversion or remainder dependent on a life-estate, it may be sold, without an inquisi- 1 Act 16 June 1836, ?44, P. L. 769. ' Duncan v. Lawrence, cited, 2 Purd 646. Teates 150. 2 Baird» Lent, 8 Watts 422. Gard- » McCormiok v. Meason, 1 S. & R. ner v Sisk, 54 Penn. St. 506. St. 92. McCullough v. Thornton, 2 Left. Bartholomew's Church v. Wood, 61 Chron. 349. Wray v. Miller, 20 Penn. Ibid 96- s. c. 26 Leg. Int. 132. St. 115; Woodward, J. But see Lip- ' McLaughlin v. Shields, 12 Penn. pincott v. Tanner, 1 Miles 286, control. St 283 ^ condemnation of the same land, i Tu: j under a writ against a stranger, will 6 Mvers v Commonwealth, 34 Penn. not cure the want of an inquisition, g, 270 • Wolf V. Payne, 35 Penn. St. 97. « Wray v. Miller, 20 Penn. St. 111. '» Stewart v. Kenower, 7 W. & S. ' Duncan v. Robeson, 2 Yeates 455. 293. 3ray rCoulterf 4 Penn. St. 188. " Dalzell v. Lynch, 4 W. & S. 256. 712 EXECUTION. tion, for no rents and profits are receivable by the reversioner or remain- der-man ;' but the fact that the premises are mortgaged, does not dispense with an inquisition.^ § 1224. Waiver of inquisition. The act of 1836 provides that the defendant in the execution, being at the time of the issuing of the writ the owner of the estate levied on, or the person owning such estate by title from him, may, by writing filed in the proper court, dispense with and waive an inquisition, and in such case, the sheriff may, after giving notice in the manner therein provided, proceed to sell such real estate upon the fi. fa., before its return-day, without any other writ.' Since this act, the rightful owner of the estate, whether in or out of possession, is the only person who may dispense with the inquisition;^ and an insolvent assignor, after a voluntary assignment, is not such a person.' Before the act of 1834, the heir, as such, was not a party to the record, and the personal representative of the decedent might waive inquisition on a fi. fa. against his lands ;^ it has, however, been doubted whether, since that act, a waiver by the personal representative, without the heirs, will authorize a sale f but it is now settled, that an administrator may confess judgment, in a scire facias to revive a judgment entered against his decedent in his lifetime, and may waive inquisition in proceedings upon the judgment confessed.* A defendant, who has sold his interest, subject to the lien of the judgment, cannot waive inquisition;' nor, it seems, can an attorney-at-law, by virtue of his general retainer ;'" before the act of 1836, the waiver might be made by an attorney in fact.^' In a second sheriff's sale of land, as the property of the defendant in the execution under which the first sale was made, the defendant cannot waive the inquisition.'^ § 1225. In regard to the form of the waiver, the act is only declara- tory of the existing practice ; there is no form of waiver prescribed.^' There is nothing in the act which makes it compulsory to pursue the method pointed out ; and, as it is for the benefit of the debtor, there is nothing in the way to prevent him from consenting in some other mode, as, by writing merely, by acceptance of the purchase-money, or in any other way, that may estop him in equity from asserting title to the estate." Therefore, where the waiver was contained in a warrant of attorney to confess judgment, and a memorandum of the waiver was made upon the record, though the warrant itself was not filed, it was held ' Humphreys v. Humphreys, 2 Dall. ' Sample v. Barr, 25 Penn. St. 457. 223; 8. 0. 1 Yeates 427. Maoalester ' Bennett v. Fulmer, 49 Penn. St. V. Wistar, 2 Miles 156. 155. " Naples j;. Minier, 3 P. & W. 475. » Wolf v. Payne, 35 Penn. St 97 ' Act 16 June 1«36, §45, P. L. 769. '» Hadden v. Clark, 2 Gr. 107. Purd. 647. " Cash v. Tozer, 1 W. & S. 625. * Wolf V. Payne, 35 Penn. St. 97. " Haddeu v. Clark, ut supra. St. Bartholomew's Church v. Wood, " Kimball v. Kelsey, 1 Penn. St. 61 Ibid. 96. Hadden v. Clark, 2 Gr. 183. For form of waiver, see Smith's 107. Forms 395. ' * Pepper v. Copeland, 2 Miles 419. " Mitchell v. Freedley, 10 Penn St ' Hunt V. Deyling, 8 Watts 407. 209 ; Rogers, J. INQUISITION. 713 sufficient.^ So, it matters not whether the waiver be filed before or after • the sale ; it is enough, if the sheriff has the written authority before he proceeds upon the;?. /a., and it is returned with his proceedings.^ In practice, it is usually handed to the sheriff and returned with the fi. fa. § 1226. And circumstances may amount to a waiver, or estop the defendant from showing the want of an inquisition.' Thus, if the defendant acquiesce, and permit the sheriff's deed to be acknowledged, without objection, he cannot avail himself of the irregularity. At all events, he is > estopped, when he has induced the sheriff's vendee to become the purchaser, and the proceeds have been applied to the pay- ment of his debts ; so, he and all claiming under him are estopped, by his subsequent release to the purchaser, and delivery of possession; under such circumstances, his interest passes by the sale, and a second sale of the same land, under another execution against him, will confer no title on the purchaser.^ A waiver of inquisition is not incompatible with a claim for the benefit of the exemption law.' § 1227. Holding of the inquisition. The sheriff must give at least five days' notice of the time and place of the holding of the inquisition, to the defendant, or, if he be not in the county, to his attorney or agent, and if the latter be unknown to the sheriff, the notice must be given by a handbill fixed upon the premises.^ Under the act of 1806, and subse- quent statutes, the omission to give notice of an inquisition was an irreg- ularity, for which the sale might have been set aside, but which was cured by the payment of the purchase-money and acknowledgment of the sheriff's deed;'' if there be no notice in fact either of the levy or the inquisition, the proceedings cannot be supported.^ It is usually held on the Friday preceding the return-day of the process ; there is, however, nothing in the act which precludes the sheriff from holding an inquest ' ' Kimball v. Kelsey, 1 Penn. St. 183. 8 Phila. 178, as to this question. Whether or not a waiver of inquisition, ^ Overton v. Tozer, 7 Watts 333. contained in the contract, be binding ' Wray v. Miller, 20 Penn. St. 111. on a subsequent grantee of the judg- St. Bartholomew's Church v. Wood, ment-debtor, a title under such sale 80 Ibid. 219. will be upheld, under the maxim com- * Spragg v. Shriver, 25 Penn. St. munis error facit jus. Kostenbader u. 282. See Shoemaker v. Ballard, 15 Spotts, 80 Penn. St. 430. If an at- Ibid. 92. Baird v. Lent, 8 Watts torney confess judgment, by virtue of 422. a warrant of attorney, with waiver of * Shaw's Appeal, 49 Penn. St. 177. inquisition, the waiver becomes part ^ Act 16 June 1836, | 46, P. L. 769 ; of the judgment, and cannot be ques- Purd. 647. Notice need not be given tioned collaterally. Hageman v. Salis- to an assignee in bankruptcy. Fuller berry, 74 Ibid. 280. Otherwise, of a v. Sheridan, 2 Luz. L. Keg. 207. judgment entered by the prothonotary, Though the return need not show without the intervention of an attorney, notice of the holding of the inquisition, Hope u. Everhart, 70 Ibid. 231. But yet, the fact must be established affirm- see Jackson v. Morter, 82 Ibid. 296, atively, on a motion to quash the where it is said by Mr. Justice Mercur, condemnation. Buddy v. Jones, 5 W. that the authority of Hope v. Ever- N. 0. 491. hart was very much shaken, if not ' Meanor v. Hamilton, 27 Penn. St subsequently overruled, in Hageman v. 137. Salisberry. See also Stilwell's Estate, * Heydrick v. Eaton, 2 Binn. 217. 714 EXECUTION. after the return-day of the fi. fa., and such has always been the practice, when found necessary; therefore, where the inquest has been quashed for irregularity, he may proceed to hold a new one, without a new fi. fa} The day on which the inquisition is taken is not a matter of record, but a matter en pais ; when a blank for the date is left in it, the time may be shown by parol evidence, but not by the sheriff's docket.^ If required by the defendant or his agent, and notice of the requisition be given to the officer executing the writ, the inquisition must be held upon the premises.^ § 1228. Proceedings under the inquisition. It is necessary for the plaintiff or his attorney to attend before the inquisition, with a state- ment and evidence of the nature and amount of the incumbrances which may exist upon the land, in the shape of mortgages, judgments, taxes, ground-rents, &c., in order to effect a condemnation. The jury of inquiry must consist of at least six* men, who, together with the sheriff, com- pose what is denominated a court of inquiry; the sheriff's presence does not vitiate the proceedings, if he do not improperly interfere.' It is the duty of the jury, to fix the clear annual value of the land beyond all reprises, which include expenses of repairs, taxes, costs, trouble, &c.* They are bound to take into consideration mortgages against the estate, which are clearly included in the term " reprises ;" and the instalments of a mortgage becoming due within the seven years next after inquisi- tion, ought to be regarded by them in their judgment.' They should cake into consideration all liens which will become payable within the seven years f but the unpaid purchase-money due on articles of agree- ment between vendor and vendee, is not such a lien as is proper to be taken into consideration by the sheriff's jury.' It is the uniform practice to calculate the interest upon judgments for the seven years.'" " In all the counties where I was acquainted with the practice," says Judge Coulter, "they add seventeen per cent, interest to the liens, and then add all the costs, fix the net annual rent beyond repairs and taxes, and pay- able at the commencement of the year; and if this will pay the debt and interest of all the liens, with the interest and costs, the land is extended, and either the defendant or plaintiff must take it at that valuation."" In estimating the annual value of the land, the usual mode is for the jurors to make separate estimates, and, after adding them together, return the medium value as their valuation ; the propriety of this course has been recognised, where it is resorted to, not as a decision of the question, but as an approximation to unanimity by the inquest.'^ 1 Weaver u. Lawrence, 1 Dall. 379. ' Pulaski v. King, 1 Yeates 477. ^ Thomas v. Wright, 9 S. & R. 89. Corporation v. Wallace, 3 Rawle 142 ' Aofc of 1836, H7. * Near «." Watts, 8 Watts 325. ♦ Act 11 June 1879, §2. ' Springer ».Walters,34Penu.St.328. » White V. White, 5 Rawle 61. If '» 1 Sm. L. 63. The real debt is to a juror write the word "protest," op- be considered by the inquest, not the posite his signature, it will not vitiate penalty. Anon., Add. 21. ' the inquisition. Parker ». Nassau Coal " Mellon u. Camnbell, 11 Penn lSi Co., 3 Luz. L. Obs. 86. 416. » Mellon W.Campbell, 11 Penn.St.416. " White v. White, 5 Rawle 61. INQUISITION. 715 In the case of developed mineral lauds, the jury must take into con- sideration the amount of rent or mineral-leave paid, and which the estate may produce from the mines, and estimate the rent or mineral- leave, with the other rents and profits of the estate for the sevdn years.' § 1229. If the jury act improperly, as, by refusing to hear evidence of the yearly value of the premises, or otherwise, the defendant's mode of redress is by a timely application to the court whence the process issued, to quash the inquisition ; it is too late to raise such objection, in an ejectment instituted for the property, after the condemnation and sheriff's sale.^ So, the court will set aside an inquisition, where it clearly appears that the sum affixed is extravagantly high ; and where the court below assigned an insufficient reason for setting aside an inquisition and extent, the supreme court being of opinion that the court below were convinced that the jury had valued the land too highly, refused to reverse the judgment.^ Where the plaintiff produced an_ affidavit, which showed that the lands could not possibly pay the debt by extent, the court quashed the execution, at the costs of the plaintiff, who was desirous that it should be set aside, in order that he might pursue another course •* but after a fi. fa. executed and lands extended, it is not a sufficient reason for setting it aside, that, since the inquisition, sufficient personal property has been found.' The jury cannot enlarge the sheriff's levy as returned.' They are not entitled to an allowance for expenses beyond the compensation allowed by law.' § 1230. Return of the inquisition and fi, fa. The sheriff must return the inquisition, along with the writ, to the court.*. The return is, substantially, "that the rents and profits will pay the debt in seven years," with an estimate of the annual value of such rents or profits; or "that the profits are not sufficient to pay the debt in seven years." In the former alternative, the lands are to be extended or delivered to the plaintiff, until, from the rents, issues and profits, he has repaid himself, or else they are to be delivered to the defendant, at the assessed annual value, which is to be paid to the plaintiff, until his debt, with interest and costs, has been discharged.' In the latter alternative, when the inquest has found the rents, &c., insufficient to discharge the debt in seven years, the plaintiff may proceed to have the lands sold. But, before explaining the practice in these cases, we shall consider the effect and nature of the return. § 1231. The return is not final; the court will set it aside, on sufficient ground being shown — as, that the estimate of the value of the land is too high, or that the jurors have misconducted themselves, or will quash it for irregularity. As regards the plaintiff, an inquest finding lands > Act 4 May 1852, §3, P. L. 569. * Rodgers v. Gibson, 4 Yeates 111. Purd^ 647. ' Wall ». Lloyd, 1 S. & K. 320. And * Murphy v. MoCleary, 3 Yeates 405. see Middleton v. Summers, 3 Ibid. » MiUer v. Milford, 2 S. & B. 35, 549. 38 ' » Act of 1836, §44. * Hunt ». McClure, 2 Yeates 387. ' Act 13 October 1840, P. L. 2; 5 Ibid. Purd. 648. 716 EXECUTION. sufficient to pay in seven years, is not equivalent to satisfaction ; the fi. fa. may be discontinued, by leave of court, and an alicis had against other property, or the plaintiff may await the sale of the original subject of levy, on other executions, and then come in on the proceeds ;^ so, if land be extended under one inquisition, the plaintiff will not be precluded from issuing an execution on another co-existent judgment, levying on the same land, and having another inquisition, even though both judg- ments were brought into the view of the first jury.^ § 1232. After an inquest has returned that the rents and profits will pay the debt in seven years, the plaintiff cannot discontinue his fi.fa., and take out a new one, without leave of the court. This has been the practice and understanding of the courts, and great inconveniences might ensue from a contrary practice, because the plaintiff might set aside the proceedings, and lev)' again on the same land repeatedly, until he got a jury to condemn it, which would be taking away from the defendant the benefit of the act of assembly on this subject.* But where land was extended on a fi- fa-, and, upon motion, the inquisition and extent were set aside, and some time afterwards, the plaintiff took out an alias fi. fa., whereon the same land was levied upon and sold, it being objected that, as only the inquisition under the first fi. fa. was set aside, the writ and levy remained, which made the second fi. fa. erroneous ; it was held, that the first fi. fa. was in form relinquished, though not in substance ; and, as it was the cause of no hardship to the defendant, who would be protected against unnecessary costs, the court upheld the second fi. fa.^ In the former case, the plaintiff attempted to relinquish his inquisition, after the property was found sufficient to pay in seven years, but here the inquest was set aside ; the matter rested solely on the levy, which may be relinquished, provided the defendant be protected against unnecessary costs.^ § 1233. The return is made on the back of the writ, which is then filed with the prothonotary, before or on the day on which the rule to return it expires. In the description of the property in the levy, which makes a part of the return, it is not necessary to set forth the deed or title under which the defendant holds.^ The description of the pro- perty should be by metes and bounds ; a levy and sale is a mere nullity, where it affects to pass all the defendant's property, in general terms, such as, " all his property in Pennsylvania," &c. ; but, as it is not in the power of the sheriff or plaintiff always to ascertain precisely the details of a defendant's property, a reasonable degree of latitude is allowed in the description ;' and if the description be not, in the defendant's opinion, ' Gro V. Huntingdon Bank, 1 P. & <> Miller v. Milford, 2 S. & R. 35. W. 426. Lyons v. Ott, 6 Whart. 165. When the inquisition is set aside, the ^ Gist V. Wilson, 2 Watts 30. sheriif may hold another inquest, ' MoCullough V. Guotner. 1 Binn. under the same writ. Geisinger v. 215.. And see Miller v. Milford, 2 S. Applebaoh, 6 W. N. C. 557. & R. 37. Wilson u. Howser, 12 Penn. « Buokholder v. Sieler, T W. & S. St. 115. 154. * Miller v. Milford, 2 S. & R. 35. ' Inman v. Kutz, 10 Watts 90. INQUISITION. 717 perfectly precise, he may have relief, by application to the sheriff, or court, to correct it before the acknowledgment of the sheriff's deed ;' he cannot take advantage of such defect, after lying by, and allowing the purchaser to pay his money and receive his deed.^ § 1234. If the return be intelligible of itself, and ascertain with pre- cision the tract taken in execution, no room for explanatory proof is afforded, and none will be received to contradict the official act ; but where, either from the generality of the terms used, uncertainty of deline- ation, or seeming contradiction of description, a doubt is raised, affecting the boundaries of the levy, its locality or extent, recourse must be had to evidence aliunde, in which case, it becomes a legitimate object of investi- gation for a jury.' So, where a levy was made on two tracts of land, but, in the inquisition, it was stated, that "the rents, issues and profits of a certain piece or parcel of land set forth and described in the annexed schedule " (meaning the levy), " are not sufficient to satisfy the debt," the uncertainty as to whether both tracts were acted upon by the inquest, or only one of them, may be removed by parol proof; therefore, one party may show that the inquest acted upon one tract only, and the other may show the value of the rents and profits of the tract in dispute.^ And where it was uncertain, from the levy, which of two tracts of land was levied on, the fact of the election of one of the tracts by the purchaser may, after the lapse of many years, be taken into considera- tion by the jury, in connection with other facts, in deciding which of the two tracts had been levied upon.^ The court, in a proper case, will allow a return to be amended, upon application, supported by affidavits, made at any time prior to the acknowledgment of the sheriff's deed, provided intervening rights would not be thereby affected.* § 1235. Approval. In case of condemnation, the act of 1836 requires the court to approve the inquisition.'^ The defendant alone can take advantage of the want of approval by the court of the inquisition con- demning the land, and that only within a reasonable time.* In case of condemnation, it has not been the practice, to obtain a formal approval of the inquisition, before suing out the vend. exp. ; it seems, that the issu- ing of that writ, being in contemplation of law, the act of the court, is a sufficient approval to satisfy the act of 1836, at least, as to strangers.' The approval of the inquisition cures prior irregularities in a levy upon lands in adjoining counties, under the act of 1840.'" § 1236. Of the extent. We have already mentioned, that if the jury find that the rents, &c., of the land are sufficient to pay the judgment, with interest and costs, in seven years, the sheriff must then proceed to ' Heartlev v. Beaum, 2 Penn. St. ° See supra, § 1068, et seq. 172. ' Act of 1836, §61. 2 jjjij ' Crawford v. Boyer, 14 Penn. St. ' Hoffman v. Danner, 14 Penn. St. 380. Wray v. Miller, 20 Ibid. HI. 25. Fuller v. Sheridan, 2 Luz. L. Reg. Shoemaker v. Ballard, 15 Penn. St. 207. 92. » Ibid. ' St. Clair V. Shale, 20 Penn. St. 105. '» Hibberd v. Bovier, 1 Gr. 266. 718 EXECUTION. assess by the inquest, the annual value of the rents and profits, and return the same with the fi. fa. to the court.' Upon this, the plaintifi' may have a writ of liberari facias, commanding the sheriff to deliver to him the lands, with their appurtenances, at the valuation and appraise- ment made by the inquest, to be held by him, his executors, administra- tors and assigns, until the debt or damages, with interest from the day of the judgment rendered, be fully levied thereout.^ Under this writ, when the defendant, or any person claiming under him, by demise or title, subsequent to the judgment, is in possession of the premises to be extended, the sherifi" must deliver actual possession thereof to the plain- tiiF or his agent ;^ and where he returned, " executed as within com- manded," it was held, that the plaintiff could not take out an alias liberari facias, although evidence was given to show that actual posses- sion had not been delivered.'' The sheriff must return the manner of executing the writ f and he is liable for a false return.^ If the premises be occupied under an existing lease, given by the defendant prior to the judgment, the sheriff should return that fact specially, because the plain- tiff would be entitled to receive and compel payment of the arrearages of the rent, in liquidation of the debt ; a return that he had delivered possession, without more, renders him liable for a false return.' The person to whom the estate is delivered, his heirs, successors or assigns, are entitled to quiet possession thereof, as fully and amply, and for such estate and estates, and under the same rents and services, as the defend- ant was entitled to, before the execution.' § 1237. One whose judgment is a lien, and who is proceeding with all diligence to execute it, cannot be intercepted or defeated by another judgment-creditor, whose judgment is not a lien, but who obtains a judg- ment of revival, under an agreement with the defendant, and immedi- ately issues a liberari facias, the defendant agreeing, in order to make the writ good, that a f,. fa.,' levy, condemnation and an appraisement of rent, be considered as having been had ; in such case, the liberari is irregular, and a fraud upon the first lien and execution-creditor ;' a liberari requires afi.fa., levy and inquisition to support it.'" § 1238. Where two or more writs of liberari facias are in the hands of the sheriff, at the same time, against the same land, they are to be executed according to the priority of the respective judgments on which they issue ; but an extent already made cannot be disturbed by another writ oi liberari facias, though founded on a judgment prior to that under which the extent was made." In case a judgment is recovered against ' Act of 1836, § 48. 4 Clark 191. A levari facias may issue ' Ibid., 5 49. on a mechanic's lien, notwithstanding ' Ibid., g 50. a prior extent. Schmidt v. Stetler, 21 * Sawyer v. Curtis, 2 Ash. 127. Pitts L. J. 34. ^ Act of 1836, H8. '» Bank of Pennsylvania v. Bayard, " McMichael v. McKeon, 10 Penn. ut supra. St. 143. _ " Act of 1836, ? 51. Notwithstand- ' Ibid. ing a prior extent, the plaintiff may ' Act of 1836, § 66. issue execution against other property " Bank of Pennsylvania v. Bayard, of the defendant. Coolbaugh v. Weis- EXTENT. 719 lands already under extent, and cannot be satisfied in seven years out of the profits, after deducting what remains due under the extent, the laud may be condemned by the inquisition, and sold under afi.fa.;^ and, in that case, the plaintiff" in the extent must account for the profits and rents already received, and will be entitled to receive the balance of his debt, if any, out of the proceeds of the sale of the land.^ If the plaintifi; before his judgment, &c., is satisfied, without any fraud, collu- sion or other default on his part, be legally evicted from the land taken by him under the extent, he may resort to the original judgment, and have a scire facias to compel the defendant to show cause why he should not have execution for the residue thereof § 1239. If the plaintiff hold over, after recovering his debt, interest and costs, out of the profits of the land, the defendant might, under the statute of West. II., c. 18, have a writ of scire facias ad computandum et rehabendum terrain ; and, though that statute never was in force in this state, yet, under the act of 1705, it has been the opinion, that the whole machinery of the English law relative to elegits, so far as it could be made applicable, was adopted as part of the law of Pennsylvania : such writ may, therefore, issue, notwithstanding the repeal of those sections of the act of 1836, by which it was specially regulated ; it was not a new remedy provided by that act, but rested on the provisions of the prior law.* But, under a writ of restitution, after an extent, the sheriff' cannot dispossess one' whom he finds in possession, claiming under an inde- pendent title.' If an extent be clearly erroneous, it may be set aside by the court f but it will not be set aside, at the plaintiff^'s instance, except for cause shown.^ On a motion to set aside an extent, the court will inquire whether the judgment is a lien.' § 1240. Demise to the defendant. Instead of suing out a writ of liherari facias, the plaintiff" may, at his election, permit the defendant, or any person claiming under him, by demise or title subsequent to the judgment, to retain possession of the real estate at the annual valuation and appraisement found by the inquest.^ If the defendant consent to retain the lands, he must pay the annual valuation to the plaintiflT, in equal semi-annual payments, commencing six months from the day the defendant notifies the sheriff" of his consent, and on default made for thirty days after any payment is due, the plaintiff", his agent or attorney, man, 4 Luz. L. Reg. 122. Where there 1 S. & R. 320. The plaintiff's attorney is a second extent, the proceeds are to cannot charge the defendant a comrais- be applied to the judgments in their sion on the collection of the rents. Mel- order. Orandall's Estate, 1 Luz. L. Ion v. Campbell, 11 Penn. St. 415. Obs. 75. " * Commonwealth!). Straub, 35 Penn. 1 Act of 1836, §58. St. 137. ^ Ibid., § 59. * President of the Orphans' Court v. ' Ibid., I 60. Bower, 9 L. Bar 73. Soofield V. Harbeson, 9 Phila. 38. ' Hunt v. McClure, 2 Yeates 387. But the creditor is only chargeable with ' Pray v. Brock, 1 Clark 354. the actual profits; the appraisal is not * Act 13 October 1840, g 2, P. L. 2; conclusive. McKelvy v. De Wolfe, 20 Purd. 648. For form of election, see Penn. St. 374. And see Wall v. Lloyd, Smith's Forms 396. 720 EXECUTION. upon making and filing an aiBdavit thereof, may issue a venditioni exponas, and sell the land, just as if it had been condemned.' The plaintiff is not chargeable with the rental, as satisfaction, until he has received it ; and the failure to issue a vend. exp. against the defaulting defendant, is no satisfaction of the debt, nor ground for postponing the plaintiff's lien.'' The semi-annual payments must be made to the plaintiff in the writ, whether or not he, his agent or attorney, reside in the county ;' payment to the sheriff of the proper county is effectual, only in case the court award the money to another than the plaintiff in execution, and that other does not reside within the county.* § 1241. N'otices, The plaintiff or his attorney may give notice to the sheriff, at any time after the inquisition, and before the execution of the liherari facias, of his intention to permit the defendant, or other person entitled, to retain the lands at the appraisement. The sheriff, within ten days after receiving notice from the plaintiff, must notify the defendant, or other person entitled, &c., of the plaintiff's intention.' A notice to the defendant, signed by the attorney of the plaintiff, instead of the sheriff, is a substantial compliance with the act, and, if irregular, is cured by the acknowledgment of the sheriff's deed, the land having been sub- sequently sold on a vend, exp.^ After receiving this notice from the sheriff, the defendant must, within thirty days, notify the sheriff of his willingness to retain the real estate at the valuation,^ and the sheriff must indorse on such notice the date of receiving it.* All these notices must be in writing, signed by the parties or their attorneys ; and must be served, by delivering a copy to the party, plaintiff or defendant, or to the person in possession of the real estate, or by leaving the same at his residence with an adult member of his family; of all which the sheriff must make return according to law ; and he is entitled to mile- age, as in other cases.' If the defendant neglect or refuse, within thirty days after receiving notice of the plaintiff's permission, to notify the sheriff of what he elects to do, the plaintiff may liave a writ of vendi- tioni exponas to sell the lands.'" If the defendant notify the sheriff of ' Act of 1840, ? 3. See Smith's St. 76. Forms 397. • ' Act of 1840, ? 2. ^ Slater's Appeal, 28 Penn. St. 169. « Ibid., ? 3. ' MoMurtrie v. Frazer, 26 Penn. St. " Ibid., ? 2. Where the defendant 391. indorsed on the fi. fa. an agreement to * Ibid. See infrd, ^ 1242. retain at the valuation, and the plain- ' Act of 1840, § 2, as modified by tiff received the rent for several years, Act 10 February 1846, P. L. 37 ; Purd. he was allowed to file his acceptance 649. Where the separate property of a nunc pro tunc, in order to perfect the married woman is extended, under a reco'td. Weyand's Appeal, 62 Penn. judgment obtained for necessaries, St. 198. The plaintiff's election, and notice of an election that the defend- notice to the defendant, must be filed ants may retain at the annual valua- of record in the suit^ it cannot be tion, must be served on the wife as proved aliunde. Hanzen v. Kummer, well as the husband. Cole v. Kolb, 3 9 L. Bar 6. Luz. L. Obs. 302. lo Act of 1840, | 2. Act 10 February « Shields v. Miltenberger, 14 Penn. 1846, P. L. 37 ; Purd. 649. EXTENT. 721 his refusal to retain the lands at the valuation, the plaintiff is thrown upon his remedy to take the lauds himself under a liherari Jacias} § 1242. Where there are several liens on the land. When the defendant retains the land, and the sheriff has so returned, and there are more liens against it than that of the plaintiff, the court, on the applica- tion of any creditor, may make an order directing the manner in which the semi-annual payments shall be distributed among the lien-creditors, according to the priority of their liens, in the mode pursued in distrib- uting the proceeds of sheriff's sales ; and the defendant, or person in possession of the estate, must pay such instalments to»the plaintiff, or party entitled to receive the same, under such decree, or to his agent or attorney, or to the sheriff of the proper county, where such plaintiff or person, his agent or attorney, resides out of the county.^ And where the defendant retains the land, no second or other inquisition and extent can be allowed, during the pendency of the first, on any writ issued on a judgment which was entered in the court of the proper county, at the date of the first inquisition, but the plaintiff in such judgment, or other person claiming to have a lien upon such real estate, may proceed to collect the same in the manner above mentioned.' But this does not prohibit a judgment-creditor, whose judgment was entered before a part of the lands had been extended at the suit of another judgment-creditor, from levying on other real estate of defendant, not included in the first extent.* It is only in case the court have decreed the fund to some other than the plaintiff in the inquisition, and such other person, his agent or attorney, does not reside in the county, that the payment may be made to the sheriff; if there be no such decree, the payment must be to the plaintiff, whether he, his agent or attorney, reside in the county or not.* A mortgage-creditor, whose lien would not have been dis- charged by a sale, is, not entitled to the fund.^ § 1243. Where judgments are entered subsequently to the extent, the amount of which, together with what remains due on the extent, cannot be paid out of the profits in seven years, the land may still be con- demned, either at the instance of the subsequent judgment-creditors,^ or at the instance of the plaintiff in the writ under which the extent was made.* In the former case, the sheriff must certify the iacts upon the return of the execution, and thereupon a vend. exp. may issue ;' when the condemnation is sought by the plaintiff, he must apply to the court for an alias fi. fa., and have the lands condemned, and issue a vend, exp.; but if the alias be taken out, without leave of the court, and the lands 1 Mellon V. Campbell, 11 Penn. St. Or, he may levy on personal property. 41g_ Oaks V. Gallagher, 1 Luz. L. Reg. 544. ^ Act of 1840, § 4. See Smith's * McMurtrie «. Frazer, 26 Penn. St. Forms 397. 391. Qucere? as to a testatum writ. * Act 26'April 1855, P. L. 313 ; Purd. * Bank v. Patterson, 9 Penn. St. 311. 650. Under this act, notice must be ' Act 16 June 1836, § 58, P. L. 771 ; given to all the lien-creditors, to make Purd. 648. the extent binding on them. SmuUer * Wilson u. Ho-sifser, 12 Penn. St.. V. Willson, 3 Luz. L. Obs. 133. 115. « Curtis V. Cook, 34 Penn. St. 244. » Act of 1,83^, J 58. VOL. I.— 46 722 EXECUTION. condemned and sold, the sale will be set aside, at the instance of the defendant, if application be made before acknowledgment of the sheriff's deed.' After lands have been extended, the plaintiff cannot discontinue thefi.fa., and take out a new one, without leave of the court ;^ but if this were done, and the land condemned and sold, and the sheriff's deed acknowledged, without objection on the part of the defendant, every intendment will be made in favor of the purchaser.' § 1244. After an extent, a venditioni is irregular, until after a notice to the defendant to accept ; he is not in default, until six months from the day of filing his acceptance, and a subsequent default for thirty days.^ But if he neglect to pay a semi-annual instalment for thirty days, a judgment-creditor may issue a venditioni; the plaintiff cannot extend the time of payment;^ nor can he be deprived of his right to a vendi- tioni, by a tender of the rent, even before the filing of an afiidavit of the default.' A venditioni, however, cannot issue, until an affidavit of the defendant's default is filed of record.'^ And it is the duty of the defendant to file of record the evidence of his payments, for the information of the other creditors.^ XII. Sheriff's sale of real estate. § 1245. Venditioni exponas. If the inquest find that the profits will not be sufficient to satisfy the debt or damages in execution, and the cost of suit, within seven years, and the sheriff has duly certified to that effect upon his return to the fi. fa., and the court approve the finding, the plaintiff may have a writ of venditioni exponas to sell the land for and towards the satisfaction of his judgment.' And where the lands have been extended, and other executions, on judgments entered subse- quent to the inquisition, are issued, the amount of which, with what remains due on such extent, cannot all be satisfied out of the yearly profits in seven years, the sheriff must certify the same by inquisition upon the return of such writs of execution, and thereupon a writ or writs of venditioni exponas may issue.'" Without this process, a sheriff's sale of lands levied upQu and condemned, is, in this state, invalid," except in the case of a soire facias on a mortgage, where no venditioni exponas is necessary ;'^ but, as has already been seen, both the inquisition aud vend, exp. may be waived, and the land sold under ihefi.fa. If the defend- ant die, after levy and condemnation, a vend. exp. cannot issue, without a previous scire facias against his personal representatives ;'' but the ' "Wilson V. Howser, 12 Penn. St. 115. Gaz. 6. ' McCuUough V. Guetner, 1 Binn. ' Black v. Aber, 2 Gr. 206. 214. 8 Myers u. Harris, 3 Luz. L. Obs. ' Wilson V. Howser, ut supra. 294. * Black V. Aber, 2 Gr. 206. ' Act of June 1836, ? 61, P. L. 772 ; ' Bitter v. Lesher. 3 Luz. L. Obs. Purd. 650. 394. But see Temple v. Miller, 1 Luz. '" Ibid., I 58. L. Beg. 717, where it was held, that " Porter v. Neelan, 4 Yeates 108. another judgment-creditor must first Glancey v. Jones, Ibid. 212. issue a fi. fa. " Glancey v. Jones, ut supra. » Diven v. Windowmakei, 3 Leg. " Wood v. Colwell, 34 Penn. St. 92. sheriff's sale. 723 sheriff may proceed to sell, under a writ in his hands, notwithstanding the death of the defendant. ^ Whilst it is in the course of execution, the plaintiff has complete control over the writ, and may stay it, even at the sale ;^ in certain counties, however, including Philadelphia, the sheriff may refuse to recognise a stay of proceedings, except on payment of his costs, and those of the prothonotary, legally taxed on the writ, but may proceed thereon, so far as to collect the same.^ § 1246. Form of the twit. It is a mandate to the sheriff, reciting the fieri facias and the return thereto, and directing him to expose to sale the property therein described, and to have the proceeds with the writ in court at the return-day. It should correspond with the return to the fieri facias, which controls all subsequent proceedings, and governs where there is a variance between them.^ After acknowledgment of the sheriff's deed, and a lapse of forty years, the court will amend the writ, according to the levy on the fi. fa., and to correspond with the terms of the deed ;^ a mere clerical error, such as a mistake in a party's name, or the omission of the prothonotary's signature (the seal of the court being attached), is amendable at any time by the court from which it issues, and even if error were brought, the supreme court will order an amendment.' And the omission of the name of one of the defendants in the vend, exp., the advertisements, and the sheriff's deed, is amendable by the prmApe, after the acknowledgment of the sheriff's deed, and during the trial of an ejectment brought by the jjurchaser at the sheriff's sale.' In an action against executors, where the judgment was de bonis testatoris, it is not error, that the writ directed a levy on the property of the defendants, as executors.* § 1247. Of the proper officer. The writ of venditioni exponas is directed generally to the sheriff of the county; and, even if imprisoned, he may act by deputy.' But after the division of a county, the sheriff of the old county has no authority to sell lands lying in the new one, though the judgment be a lien thereon ; the plaintiff must take a testatum writ to the sheriff of the new county ;" it is otherwise, if there be a saving of pending suits, in the act erecting the new county." If the sheriff who receives the writ die, resign, be removed from oiBce, or if ' Rosengarten v. Deemer, 1 "W. N. C. ' De Haas v. Bunn, 2 Penn. St. 335. 63. Wood V. Morehouse, 45 N. Y. 368. * Cluggage i-. Duncan, 1 S. & R. 120. ^ Shryock v. Jones, 22 Penn. St. 303. McCormiok v. Meason, Ibid. 97. Ped- ' Act 17 April 1859, P. L. 54 ; Purd. die v. Hollingshead, 9 Ibid. 284-5. 1309 ; extended to Philadelphia county, ' Sickler v. Overton, 3 Penn. St. 325. by Act 26 March 1860, P. L. 279 ; Purd. See Thompson v. Phillips, Bald. 247. 1309. By various acts of assembly, this Rodgers v. Gibson, 4 Yeates 111. provision is extended to the counties Feger v. Keefer, 6 Watts 297. Car- of Clearfield, Cumberland, Dauphin, penter v. Cameron, 7 Ibid. 51. Huntingdon, Lancaster, Luzerne, Ly- * McCormick v. Meason, 1 S. & R. coming,' Northampton, Perry, Schuyl- 92. kill and Wayne. See Purd. 1309 ; and ' Commonwealth v. Shaver, 3 W. & Act 27 February 1873, P. L. 182; S. 344. Purd. 1819. '" King "■ Cartee, 1 Penn. St. 147. * Grubb v. Guilford, 4 Watts 244. " Ulshafer v. Stewart, 71 Penn. St. See Owen v. Simpson, 3 Ibid. 87. 170. 724 EXECUTION. his term of office expire before the sale, the proceedings upon such execution are to be continued and completed by his successor in office, who may sell and execute a deed to the purchaser.^ The practice is, for the old sheriff to hand over the unexecuted process to his successor, whose duty it is to execute it f and by a recent act,^ it is made the duty of out-going sheriffs who are paid by salary (as in Philadelphia), to hand over to their successors in office, all unfinished and unexecuted writs and process whatsoever ; and the latter shall receive and execute the same.* § 1248. Time of sale. The practice was formerly for the sheriff to sell under a venditioni, at an adjourned day, after the return-day of the writ, and this has been repeatedly sanctioned by the supreme court, though always with considerable hesitation f but now, by the 45th section of the act of 1836, the sheriff, in case of a waiver of inquisition, is directed to sell upon the fi. fa., before the return-day.* And where no evidence existed of the defendant's assent to a sale, in such case, made after the return-day, it was held void, though the sheriff returned that he had advertised and offered the property for sale on the return-day, and adjourned it, by consent, to the day of actual sale, and although the sheriff's deed had been long previously acknowledged, after exceptions thereto f such a sale is void as against the purchaser at a subse- quent sheriff's sale, under an incumbrance which would have been discharged by the former sale, had that been valid.' After the return- day, the writ is spent, and is of no more virtue, for the purposes of sale, than if it had never existed.' But by the second section of the act of 16th April 1845," all sales of real estate by sheriffs or coroners may be made on or before the return-day, or within six days thereafter ;" the first section of this act, making valid sheriff's sales, made after the return-day, prior to the passage of the act, has been decided to be unconstitutional.^^ 1 Act 16 June 1836, § 101, P. L. 780 ; Bljthe v. Richards, 10 Ibid. 261. See Purd. 659. 1 Sm. L. 66. 2 Leshey «. Gardner, 3 "W. & S. "P. L. 169 ; Purd, 647. Under 319. this act, a sale on a fi. fa., after the ' Act 18 March 1875, P. L. 27 ; return-day, was void. Cash v. Tozer, Purd. 2077. 1 W. & S". 519. Otherwise, of a sale on * The terms of this act are broader a venditioni exponas. Kelly v. Green, and more comprehensive than those of 53 Penn. St. 302. Or, a writ of levari the New Jersey statute, where it is facias. Ryan v. Casey, 3 Luz. L. Obs. held that the term "unexecuted writ" 158. means one on which nothing has been ' Cash ». Tozer, 1 "W. & S. 526. done. ' State v. Hamilton, 1 Harrison ' Dale v. Medcalf, 9 Penn. St. 108. 154. There are great difficulties attend- ° Ibid. ing a construction, which requires a '" P. L. 538 ; Purd. 651. sheriff to transfer to his successor, writs " Under this act, the practice is, to upon which he has incurred an obliga- sell on a writ of fi. fa., at any time not tion, either to one of the parties, or to later than Saturday of the first week a stranger. of the term. St. Bartholemew's Church * Gordon v. Kennedy, 2 Binn. 291. v. Wood, 61 Penn. St. 96. McCormiok v. Meason, 1 S. & R. 192. " Dale v. Medcalf, 9 Penn. St. 108. NOTICE OF SALE. 725 § 1249. Xotice of sale. Before the sale, the sheriff is required to pre- pare so many written or printed handbills as the defendant shall reason- ably request, upon parchment or good paper, as may be sufficient to give notice of such sale, and of the day and hour, and place at which it is to be held, and what lands, &c., are to be sold, and where they are situated ; which notice must be given to the defendant, and one of the handbills must be fixed by the sheriff or other officer upon the premises, and the others of them in the most public places of the county or city, at least ten days before the sale.^ Slips from the sheriff's advertisements, cut from the newspapers, are not handbills.^ If the sheriff has omitted to fix one of the handbills on the premises, ten clear days before the sale, it will be set aside.' The district court of Philadelphia has held that the sheriff's handbills should be posted in the most conspicuous situations, and that negative testimony would be received of a non-compliance with this rule; as, that the witness had not seen the advertisements in such places, and that, if there, he must have seen them ; and, also, that the names of the defendants whose property is to be sold should be inserted in the handbills and papers. When the lands levied on are unseated, and the owner does not reside in the county, the sheriff need not fix the handbill on the premises, nor give notice to the defendant, but he must comply with the other requisites of the act of 1836.* § 1250. Besides the handbills, the officer is also required to give pub- lic notice of the sale, by advertisement, describing the real estate to be sold, and the time and place of sale, in at least two newspapers, one in the English language, and the other (except in Philadelphia), in the German, if there are any such printed in the county, or if no newspaper be printed in the county, then iu the newspaper printed nearest thereto, once a week for three successive weeks previously to the sale ; under penalty of fifty dollars to the party aggrieved by his neglect so to do, to be recovered as other debts of like amount ; provided that this is not to debar any party aggrieved from recovering the damages which he may actually sustain by reason of such neglect.^ But such advertise- ment is not to be made in two newspapers published in the same office, or by the same man, or company of men." There need not be three weeks between the first advertisement and the day of sale ; it is sufficient, that 1 Act of 1836, §62. It was decided, Phila., Dec. 1836. MS. under the act of 1705, of which this * Act^ 14 April 1840, P. L. 352; section is a transcript, that the notice Purd. 650. to the defendant, of an intended sale * Act of 1836, § 63. of his real estate, need not be in writ- ^ Act 22 April 1846, P. L. 476 ; inn-. Passmore v. Gordon, 1 Bro. 320. Purd. 651. This act does not apply to And that the sheriff did not give a Carbon, Dauphin or Montgomery oouu- special notice to the plaintiff's attor- ties. Purd. 651 n. Where a notice is ney, according to the practice of the required to be published m two news- office, is not sufficient ground for set> papers, English newspapers are pre- ting aside the sale. Kern v. Murphy, sumed to be intended : an advertising 2 Miles 157. sheet is not a newspaper. Tyler ». 2 Clark V Chambers, 1 Pitts. 222. Bowen, 1 Pitts. 225. Kratz's Appeal, Lane v. Gray, Dunl. Dig. 737. 2 Ibid. 452. Road in Upper Hanover, « Rinehart v. Tiernan, Diat. Court, 44 Penn. St. 277. 726 EXECUTION. the sale be advertised once in every week of three weeks preceding the sale.' In Philadelphia, the sheriff is required to publish an abstract of ' This is a question upon which there is much conflict of decision ; the point stated in the text is sustained by the oases of Williams v. Moore (infra) ; Wood V. Morehouse, 45 N. Y. 368; Oloott ». Robinson, 21 Ibid. 150.; Wood V. Tevry, 4 Lans. 80; Chamberlain v. Dempsey, 22 How. Pr. 356; Steinle D. Bell, 12 Abb. Pr. (N. S.) 171 ; and Pearson v Bradley, 48 111. 250. On the other side of the question, we have the cases of Francis v. Norris, 2 Miles 150 ; Wallace's Estate, 2 Pitts. 145; Erie Saving Fund and Building Associa- tion V. Thompson, 34 Leg. Int. 458 ; Evans v. Sid well, 9 L. Bar 113; Early v. Homans, 16 How. 610; Par- sons V. Lanning, 12 C. E. Green 70. And see North Whitehall Township, 47 Penn. St. 156. Stoever's Appeal, 3 W. & S. 157. Bachelor ». Bachelor, 1 Mass. 25fi. Williams v. Moore, District Court, Phila., 26 May 1849. Why sheriff's sale should not be set aside. Per curiam. If the proceedings have been regular, we do not think that there has been any such inadequacy of price estab- lished as would justify us in interfer- ing to set aside this sale. It is objected, however, that the law has not been complied with in regard to the advertisement of the sale. The 62d section of the Act of 16th June 1836, provides, that before any sale of real estate shall be made, the oficer shall cause so many hand- bills to be made, &c., "which notice shall be given to the defendant, and one of the said papers or parchments shall be fixed by the sheriff or other officer upon the premises ; and the others of them in the most public places of the county or city, at least ten days before such sale." The 63d section then pro- vides, that " the officer shall also give notice of every such sale, by advertise- ment, describing the real estate to be sold, and the time and place of sale as aforesaid, in at least two newspapers, one in the English, and the other (ex- cept in the city and county of Philadel- phia) in the German language, if such there are printed in the county where such real estate may be ; or, if there be no newspaper printed in such county, then, in the newspaper printed nearest thereto, once a week, during three suc- cessive weeks previous to such sale, under penalty of fifty dollars to the party aggrieved by any such neglect, &c." In the case before us, in one of the newspaper, and as the organ of publication, the first advertisement was inserted on Saturday, 21st April ; the second, on Monday, 23d April ; the third, on Monday, 30th April ; and a fourth, on Monday, 7th May, which was the day on which the sale took place. It is said, the law requires that three full weeks should elapse from the date of the first advertisement to the day of sale ; here, however, there were but seventeen days, both inclusive. It is evident, that the 62d section was that which was intended to provide for the extent of the notice, " at least ten days before such sale." The provision therein made for ''so many written or printed handbills, upon parchment or good paper, as the debtor or defendant shall reasonably request ; or so many, without such request, as may be suffi- cient to give notice of such sale," was by the 4th section of the act of 1705, and so continued as to this city and county (see act of 27th March 1824, P. L. 119), up to the passage of the act of 16th June 1836. The 63d section of that act superseded the provision in regard to advertisement ; and it is plain, from the old provision in regard to notice to the defendant, "at least ten days before such sale," having been suffered to remain, that the only object of that section was to provide further publicity, and not to extend the time of notice. It enacts, then, under a penalty, that the sale shall be adver- tised once a week, during three succes- sive weeks, previous to such sale. It is not pretended, that this requires the successive advertisements should be at the distance of a week from each other. A week is a definite period of time, commencing on Sunday and ending on Saturday : Ronkendorff v. Taylor, 4 Pet. 361. In the case before us, the law has been literally complied with; there was an advertisement on some day of the three weeks which p-fcceded the sale. It is difficult to NOTICE OF SALE. 727 his advertisements in the Legal Intelligencer ; but this abstract cannot be expected to afford all the details of a sheriff's handbill.' § 1251. Precision is required in describing the property and its appur- tenances, and the advertisement should specially mention any peculiarity which may be calculated to promote an advantageous sale. Where, therefore, a house and kitchen erected on the lot were not mentioned in the advertisement, the sale was set aside ; and it is not enough, that the buildings were proclaimed at the time of sale, because by the omission many persons may have been prevented from attending.^ So, the omis- sion to state that the premises were an established tavern-stand, and the perceive any warrant in the words or spirit of the act, for the idea that " the advertisement, ' once a week,' has re- lation "to the full expiration of the whole week, from the date of the first advertisement, and so, as to the remain- ing three weeks." It is only necessary to advert to the fact, that in many, if not most, of the counties, there are two or more news- papers published weekly, on different days ; and as the argument, if good at all, must hold good as to each of the newspapers in which the publication takes place, the result is, that more than three weeks must often elapse be- fore the terms of the law could be complied with. If, for example, in the ease before us, the newspaper used had been published on Saturdays and Mondays, and the first publication had been made on 21st April, the sale could not have taken place before Monday, 14th May, twenty-four days from the first publication ; and cases might be supposed, in which a still longer period must elapse. It has been decided, in Stoever's Ap- peal, 3 W. & S. 154, that the advertise- ment provided by law to be made by an executor or administrator, for succes- sive weeks, need be made only in so many consecutive weeks. The case of Bachelor v. Bachelor. 1 Mass. 256, is a case in point. There, an order was made by the court, that a certain notice should be published in a news- paper specified, " three weeks succes- sively ;" the notice was inserted in the paper pointed out (it happened to be a paper which was issued from the press twice weekly), first in the paper of Saturday, 30th June ; secondly, Sat- urday, 7th July ; and thirdly, Wednes- day, 11th July: and it was held, that the order had been substantially com- plied with. The case of Francis v. Nor- ris, heretofore decided by this court, and reported 2 Miles 150, is, undoubt- edly, opposite to this conclusion. It is within the recollection of one of this court, and who was also a member of the court at the time that decision was made, that it was decided, in the course of the current business of a Saturday, by two only of the court. Although unwilling to overrule precedents, yet, we are of opinion, that in cases of this nature, where sound interpretation of the statute, as well as the policy of affording greater facility to the collec- tion of debts, are concurrent, a hasty decision of this nature, which only reg- ulates the practice, without any eifect upon titles, ought not to outweigh such considerations as have been presented. Bule discharged. ' The sheriff of Philadelphia is also required, by the act 3 February 1860, P. L. 29, to publish his advertise- ments, or an abstract of them, in a German paper, the costs not to exceed one dollar in each case ; and the sheriff not to be responsible for errors in translation. The same act provides, that the prices to be charged for adver- tising sales of real estate, shall not exceed the usual rates of advertising other matter in the same newspapers. There are many special acts upon the statute-book, making particular provi- sions for certain counties, with respect to the advertising of sheriffs' sales of real estate, which do not come within the scope of this work. See Arnold v. Joslin, 2 Luz. L. Obs. 66. ^ Passmore v. Gordon, 1 Bro. 320. A sheriff's sale under a mortgage will be set aside for uncertainty in the descrip- tion of the premises, though it follow the mortgage. Thomas v. Ourren, 6 W. N. C. 432. 728 EXECUTION. house and out-houses calculated for a house of public entertaiument, coupled with au omission to state the name of the village, in a large district where the premises were situated, will be ground for setting aside the sale.^ So, the right to use an alley should be mentioned -^ and ' Whitacre v. Pratt, District Court, Phila., 16 Sept. 1848. Rule to set aside a sheriff's sale. Per curiam. We think the description in this case defective. The fact that the premises were an established tavern-stand, and the house and outhouses calculated for a house of public entertainment, ought to have been stated, although we do not mean to say that, if the description is in other respects sufficiently certain, we would set aside a sale, on that ground alone, unless, indeed, accompanied with gross inadequacy of price. Here, how- ever, the premises were situate in a village, the names of the streets in which were given, but not the name of the village ; so that a knowledge of the situation of the premises would neces- sarily be confined to those readers of the description, who knew that there were streets of that name in the village of Bridesburg, and none other such in the large district incorporated or unincor- porated, popularly and legally, per- haps, called the Northern Liberties. We are to look at substance, in mat- ters of this kind, and not make our judgment to depend on questions of legal nicety, such as whether the vil- lage of Bridesburg, not being incorpo- rated, has any legal existence, or whether the rest of the Northern Lib- erties, except that which is an incor- porated district, is properly to be called the unincorporated Northern Liberties, or simply the Northern Liberties. As to the defendant's having acquiesced in the first advertisement, that argu- ment might avail in the mouth of the plaintiff, who has been delayed, and, it may be, injured, but the purchaser is in the same situation as if this were the first sale. We take occasion to say, that the court has never changed the principle upon which it acts in oases in which there appears to be inadequacy of price. It is not, of itself, any ground ; but where it is very gross, the court will take ad- vantage of any irregularity in the pro- ceedings, however slight, to set the sale aside. Where there is inadequacy, but not very gross, the court requires security that an advance will be bid at a second sale ; in other words, where a doubt may be suggested as to the inad- equacy, the offer of security that the property will bring a certain, much larger, sum, will have decisive weight with the court in determining the ques- tion. We say this, in explanation of the case of Perceval v. Bryant, 7 P^nn. L. J. 196 (s. c. 4 Clark 161), the cir- cumstances of which are not remem- bered, but by the affidavit on which the rule in that case was granted, several irregularities are alleged, and certainly the court did not mean to hold, that mere inadequacy of price, where the proceedings have been all strictly regular, is, of itself, a suffi- cient ground to set aside a sale, even when a higher bid is offered to be secured. Rule absolute. Hall V. Mayer, Ibid., 30 Sept. 1848. Why sheriff's sale should not be set aside. Per curiam. This was a sale under a levari facias upon proceedings on a mortgage, and one ground upon which the sale is asked to be set aside is, that notice was not given to the defendant, as required by the 4th sec- tion of the Act of 1705. That is the only act of assembly in force, regula- ting executions upon jufigments on mortgages, and it certainly expressly provides for notice, to the defendant. The sheriff', however, is presumed to have done his duty, and without mean- ing to decide anything in regard to the point of notice, in this case, as there is another sufficient reason for setting the sale aside, we may be per- mitted to remark, that we have before us no affidavit of defendant that he did not receive notice, which would, at least, seem to be essential, to author- ize the court to set aside the sale on this around. It appears, however, that the premises had been fitted up at a very considerable expense as a tavern ; we think this was an improve- ment, which ought to have been stated. Rule absolute. 2 Carlin n. Leng, 1 Phila. 375. Chadwick u. Patterson, 2 Ibid. 275. Ulrich K, McCann, Dist. Court, Phila., NOTICE OF SALE. 729 notice of an intended subdivision of the land should be given in the handbills, and should not be reserved until the time of sale ;' but it is not necessary to describe the back-bdildings, that is, the kitchen and offices annexed to the dwelling.^ So, a mistake in the amount of an incumbrance, is ground for setting aside the sale ; as, stating a ground- rent, to which the property is subject, too high, whereby it is sold at an under value, although the mistake was rectified at the sale;' but an omission to mention that the ground-rent is redeemable, is not ground for setting aside the sale, where there was a reference to the deed, in which the ground-rent was fully described.* If the land be sufficiently described in the advertisement, though not in the levy, the court will not set the sale aside f but when there is a misdescription in the advertisement, though the sheriff's handbills described the property correctly, and there is evidence of inadequacy of price, the -court will set aside the sale f where, however, the description in the handbill was correct, but the des- cription in the abstract published in the Legal Intelligencer was defectiv.e, 27 April 1850. Rule to set aside the sheriff's sale. Per curiam. AVher- ever the price is inadequate, the court will lay hold of any circumstance of irregularity to set aside the sale. In this case, however, it is unnecessary to invoke this principle. It appears upon the evidence before us, that the lot No. 2 has a common right to an alley not mentioned in the advertisement; an important circumstance, which would weigh in setting aside any sale. Rule absolute. ^ Newman i>. Callagan, ire/r-a, 1255 n. ^ Scherer v. Harshaw, 4 W. N. C. 495. Steinmetz v. Stokes, Dist. Court, Phila., 14 Oct. 1848. Why sheriff's sale should not be set aside. Per curiam. It is objected, that the sheriff's bill did not describe the back-buildings — that is, not independent improvements on the rear of the lot,- but the usual ne- cessary offices of every dwelling, as kitchen, bath-house, privy, &o. ; such particularity has never been required. Again, it is said, that the bill does not state that the ground-rent, to which the property is subject, is redeemable ; it gives the date of the ground-rent deed, however ; and this was enough, to put every one upon inquiry, as to the na- ture and character of the charge. And lastly, we are by no means satisfied, by the evidence, that there is any inade- quacy of price ; we have no evidence as to the value; to prove that some- body had offered to give a certain sum, without producing that person, is man- ifestly nothing but that person's declar- ation, not under oath, of his opinion aa to its value. The remark has no ap- plication to this case, from anything that appears ; but it is clear to be seen, how easy such evidence could be manu- factured ; and this is the only evidence we have before us. Rule dismissed. Gilbert v. Jackson, Ibid., 7 Sept. 1850. Rule to set aside sheriff's sale. Per curiam. This is an application to set aside a sheriff's sale, on the ground of misdescription. The alleged error is, in not particularly describing the kitchen and back-buildings attached to the dwelling-house and used with it. Although all material improvements must be set forth, the sheriff ought not to go into a full description of them, like an auctioneer's puff; it is enough, that the buildings and improvements are mentioned; bidders can inquire and ascertain their extent and character. We have always decided, that it was not necessary particularly to mention and describe kitchens ; they are a part of the dwelling-house, which here is mentioned. Rule dismissed. " Wells V. Pfeiffer, 4 Yeates 203. But the notice of sale need not specify a prior incumbrance. Association u. O'Neill, 6 W. N. C. 501. * Steinmetz v. Stokes, ut supra. " Dunlap V. Gray, District Court, Allegheny ; Lowrie, J. " kenderdine v. McClintook, 2 Phila. 224. Neafie v. Conrad, 6 W. N. C. 303. 730 EXECUTION. the court refused to set the sale aside, ou the application of the purcha- ser.^ The sheriff's advertisements are but extrinsic preliminary matters, which have no bearing on the title, after the deed is acknowledged.^ § 1252. Mode of sale. The property is to be sold, at the time and place appointed, by auction, to the highest and best bidder ; therefore, if the highest bidder be unable to pay, the sheriff may make an offer to the next highest bidder.^ If a purchaser forfeit his pretensions as the highest bidder, the sheriff may refuse to give him a deed, at his own risk, and the merits of the purchaser's case may be ascertained, in an action by him against the sheriff.^ In Philadelphia county, the sheriff is liable to be imposed upon by persons unknown to him, who occasionally con- tract to purchase at his sales of real estate, with uo other intent than to get time for the defendant, or to speculate on the property, within the ten days ; frequent defeats of sheriffs' sales are thus produced, and to guard against them, he now requires, in all cases, an advance of a certain portion of the purchase-money as earnest; if it be refused,, he puts up the property again, or offers it to the next highest bidder.^ The payment in such cases, is not to be construed as a penalty for, but as a pledge to prevent, the failure of the purchaser to comply.^ A bidder has a right ' to retract his bid, before the property is struck off to him, and the sheriff has no right to prescribe conditions which deprive him of such right ;' and when the sale is adjourned, after a bid has been made, the bid is withdrawn by implication.' But where the plaintiff was the highest bidder, and the sale was adjourned, at his instance, it' was held, that he could not withdraw his bid and purchase the property at a lower price.' The sheriff is not bound to regard a conditional bid, nor an absolute one, which is merged in one conditional, and not subsequently revived.^" § 1253. When the sheriff has established a rule in regard to the order of selling, he cannot deviate from it ; therefore, it being the custom, in Philadelphia, to sell the properties according to the alphabetical order of the initials of the names of the counsel who have issued the writs, beginning the sales one month at the letter Z, and the next month at the letter A, and the sheriff sold, under the letter W, a property which was arranged in the advertisement, and would regularly have been sold, under the letter S, whereby it sold for much less than a person in the room was prepared to bid, the court set aside the sale." Where more 1 Building Association v. Silvy, 4 order that, on a resale, a sufficiently Phila. 17. Sergeant u. Shatzle, 1 W. N. large deposit shall be made, when the C. 403. Otherwise, if, at the sale, the property is struck off, to insure a com- description be read from the abstract in pliance with the terms of the purchase, the Legal Intelligencer, instead of the * Forster u. Hayman, 26 Penu. St. printed handbill. Van Dyke v. Leeds, 266. 4 Ibid. 139. ' Fisher v. Seltzer, 23 Penn. St. ^ Heartley, v. Beaum, 2 Penn. St. 308. 172. 8 Donaldson v. Kerr, 6 Penn. St. ' Zantzinger v. Pole, 1 Dall. 419. 486. * Vastine v. Fury, 2 S. & R. 435. See » Vanernan v. Cooper, 4 Clark 371. South b. Lavens, 6 W. N. C. 528. i» Faunce v. Sedgwick, 8 Penn. St. ' If no person be registered as a 407. second bidder, the court will make an " Sergeant v. Goslin, ] Phila. 301. LUMPING SALES. 731 ttan one property is described in the bill, the sheriff must put up each particular property, after reading the description of it ;' and it has been intimated, that he should read the names of the parties whose property has been seized, as well as the description, in order that agents of those concerned may know when the sale is commenced, from the one circum- stance, if not from the other.^ § 1254. Ziuniping sales. Upon a sheriff's sale of real property, the general rule, prescribed by public utility, is, that different lots of ground, houses and parcels of land, should be sold separately ; as many persons might purchase one, who could not buy several houses ; and bidders, by selling all together, would be discouraged, to the public injury. It is essential to the protection of unfortunate debtors, that lumping sales should be disallowed, when distinct ones can be effected. Thus, if there be a lot of ground, out of which an entire ground-rent is payable, with three tenements on it, but so divided that a portion of it is used with each tenement, it must be_ solA in three distinct parcels ; otherwise, the sale will be set aside ; so, in all cases in violation of this general rule, unless the sheriff satisfy the court that they form clear exceptions to it.^ This rule will not obtain, however, where the property is, from its nature, incapable of partition ; but only where distinct pieces can conveniently be sold separately. Thus, a sale of two undivided third parts of three contiguous houses in one lot was confirmed, as few persons would choose to purchase an undivided interest in a house incapable of division ;* so, distinct tenements on one entire farm, occupied by different persons, must follow the principal estate, and be sold as parcel of it ; so, if, after judgment, the defendant sell part of the land, and separate the tract by an ideal line, the sheriff may sell the whole." The sheriff ought not to sell more of the property than will probably satisfy the execution, and which can conveniently and reasonably be sold separately;^ and he cannot sell more than he has actually levied upon.' And a common in- cumbrance, or a common privilege, is no reason for selling two properties together.* Where the sheriff sells different parcels or houses together, the court will set the sale aside, without requiring it to appear that the price was inadequate ;' but. where two lots have been improved, and used for a single purpose, the fact that they were acquired at different times, and subject to unequal ground-rents, will not induce the court to set aside a sale of them as one property.'" ^ Hanscom v. Henderson, 1 Phila. * Prior v. Britten, 2 Yeates 550. 576. ^ Dickey's Case, 1 Jnuru. Jur. 91. 2 Garret v. Shaw, Dist. Court, Phila., ' Richards v. Brittin, 3 Clark 207. June 1830. MS. Wallace's Estate, 2 Pitts. 145. Hewson ' Ryerson «. Nicholson, 2 Yeates v. Deygert, 8 Johns. 333. 517. Vastine v. Fury, 2 S. & R. 434. ' Rodgers v. Gibson, 4 Yeates 111. Rowley v. Brown, 1 Binn. 62. Eok- " Tate v. Carberry, 1 Phila. 133. man v. Fautz, 9 L. Bar 65. Chestnut- See Hughes v. Calvert, 5 W. N. C. 98. wood V. Sangree, Ibid. 85. Where two Sargent v. Bedford, 6 Ibid. 575. Erb's properties are advertised to be sold Estate, 5 Leg. Gaz. 209. separately, the sheriff cannot sell them " Connell v. Hughes, 1 Phila. 225. as one Norris v. Adams, 36 Leg. Int. " Biddle v. Rudolph, District Court, 136. Phila., 29 April 1848. Why sheriff's 732 EXECUTION. § 1255. Where a subdivision of property, about to be sold at sheriff'a sale, is necessary, the proper course, in case the parties cannot agree among themselves as to a plan, is by application to the court whence the execution issues, which, on sufficient cause being shown, will order the manned in which the property is to be divided ; but notice of ^n intended subdivision should be given in the handbills, and not post- poned until the time of sale.' It is always a reasonable precaution, to call upon the defendant or terre-tenant, before the sale, and ask him to propose a plan for selling the houses otherwise than together f or to notify sale should not be set aside. Pei- cit- riam. The sole ground alleged in sup- port of this motion is, that the two properties described in the handbill, acquired at different times, subject to unequal ground-rents, have been sold together. It is very evident, however, that the two lots in question have been improved and used for one single pur- pose — that of a livery-stable, with the usual appurtenances for such a pur- pose. It is clear also, that the sale of it in two separate lots would destroy its use and value for the purpose to which it is now appropriated. It may be, that a division would be better, with a view to its future improvement, in a different way ; but is a plaintiff to enter into these calculations and conjectures? It is the settled principle upon which the court acts in cases of this kind, that the plaintiff is to look at the actual state of the premises, and no further. Who can doubt that, if the sale had been in separate parcels, and the value of the present improvements had thus been destroyed, the proceeding, if the result had been unsatisfactory to any party except the plaintiff, would have been set aside? Creditors are entitled to receive their debts, without unne- cessary delay ; and if they have done nothing but what was clearly right, and the proceedings have been per- fectly regular, on what principle can the court interfere? As to the fact, that the titles of the two lots were different, and the ground-rents unequal, that can make no difference. We have often decided, that separate lots, though derived from the same common source of title, and subject to one paramount ground-rent, more than the value of each particular lot and its improvement, must still be sold separately ; thus, throwing upon the purchaser the risk and trouble, after being obliged to pay the whole paramount ground-rent, of seeking contribution from the owners of the other parcels ; this is a much stronger case than its converse, which is now before us. Our discretion in oases of this kind is a legal discretion, not ta be exercised at random, accord- ing to mere whim or caprice, but ac- cording to" settled principles and rules. Rule dismissed. ' Newman v. Callahan, Dist. Court, Phila., 22 April 1848. Why sheriff's sale should not be set aside. Per cu- riam. Whenever a lot is sold in sepa- rate parcels, we think the subdivisions in which it is to be sold should appear in the handbills and advertisements, in order that bidders may have the opportunity to examine and decide beforehand what sum to offer for each parcel. Cautious men would hesitate to make up their minds, during the hurry of the sale ; and probably, de- cline bidding altogether. No doubt, a creditor has no right to out up an en- tire lot, according to his own pleasure ; if there are the marks of an actual division on the ground, he should fol- low that. In this case, there were three distinct tenements, though two of them were dilapidated and uninhabitable ; yet the lot was sold in two parts of very unequal size ; the brick building was sold by itself, not including a pas- sage and watercourse by the side of it, in actual use with it. In practice, it is the safer course, where there is any doubt, to notify the defendant or terre-tenants, of the subdivision in- tended to be made, and if they refuse to furnish any other, as more satisfac- tory, it must be a very strong and pe- culiar case, in which the court would interfere to set aside the sale. Rule absolute. 2 Tate V. Carberry, 1 Phila. 133 CONDITIONS OF SALE. 733 him of the intended subdivision ; and, if he refuse to furnish any other, as more satisfactory, it must be a very strong and peculiar case, in which the court would interfere to set aside the sale.^ A single sale of the same property, under two writs against different defendants, is irregular and invalid ; it should be sold under each writ, separately, or under one of them only.^ § 1256. Conditions of sale. The sheriff is bound by the statute to sell the debtor's interest, whatever it may be, without terms or condi- tions affecting the title f as the law prescribes the conditions of sale, a departure from them by the sheriff is invalid, and hence, he cannot ordi- narily stipulate for the continuance of a lien which the law decrees to be divested by the sale, or vice versd, and an attempt to do so, will not ordi- narily bind the parties in interest.* Thus, where the owner of a prior mortgage becomes the purchaser at a sheriff's sale, under a junior incum- brance, he is not entitled, in the absence of stipulations inserted in the conditions of sale, to a deed from the sheriff, on offering to credit tlie amount of his bid in satisfaction of his mortgage ;° and a sale will be set aside, where, by the plaintiff's direction, it was made subject to prior liens.^ Where a mortgage existed on the premises which the sale would not discharge, and the sheriff declared that the purchaser would not have to pay more than the amount of his bid, it was held, that the pur- chaser's remedy was, by application to the court to relieve him, at the return of the writ, but he could not set up this defence, in a suit on his bond for the purchase-money.^ And where the purchaser is seriously misled, by the representations of the sheriff, as to the amount of incum- brances against the property, the court will set aside the sale.^ § 1257. But land may be sold subject to a mortgage, although it is not the first incumbrance, if it be so understood and agreed to by the purchaser, at the time of the sale.' And where the sheriff's vendee had expressly agreed to purchase, subject to the lien of a mortgage, and the court accordingly decreed the proceeds of the sale to other and subsequent liens, one who afterwards purchases from the sheriff's vendee is concluded by the decree, and holds the land subject to the mortgage.'" So, where the conditions defining the liens to which a sale was subject, were in writing, and were expressed in the sheriff's deed, ^ Newman v. Callahan, ui supra, p. ° Dunlap v. Gray, District Court, 732. Allegheny ; Lowrie, J. ^ Building Association v. Henry, 3 ' Wood v. Levis, 14 Penn. St. 9. Phila. 34. ^ Finley «• McCully, 2 Phila. 212. » Aulenbaughu.Umbehauer, 8 Watts " Muse v. Letterman, 13 S. & R. 167. 48 • s c 3 W. & S. 259. Fretz v. Hel- Stackpole v. Glassford, 16 Ibid. 163. ler' 2 Ibid. 397. Shultze v. Diehl, 2 P. & W. 277. * Mather v. McMichael, 13 Penn. St. "" Towers v. Tuscarora Academy, 8 301.' Deviue's Appeal, 30 Ibid. 348. Penn. St. 298. And see Zeigler's Ap- Randolph's Appeal, 5 Ibid. 242. Van- peal, 35 Ibid. 173. Crooks r. Douglass, dever v. Baker, 13 Ibid. 121. Loomis's 56 Ibid. 51. Ashmead v. McCarthur, Appeal, 22 Ibid. 312. Mode's Appeal, 67 Ibid. 326. Jermon v. Lyon, 81 6 W. & S. 280. Ibid. 107. The conflicting decisions on ^ Crawford v. Boyer, 14 Penn. St. this subject have left the law in great 383 uncertainty. 734 EXECUTION. the court will not relieve the purchaser from any part of his bid, but will enforce the contract of sale.' A parol agreement, at the time of the sale, that certain liens, which by law would be discharged, shall not be so discharged, may be binding on those who make it, but it will have no validity against those who are not parties to it, and will have no effect against a subsequent purchaser or incumbrancer.^ And it is not in the power of the sheriff", by prescribing terms of sale, to affect the right of lien-creditors to the proceeds ; he is the mere agent of the law in affecting the sale.' In one case, the court rebuked the sheriff" for selling land subject to the widow's dower, as if the law were incompe- tent to protect her interests, without his aid ;* so, he is bound to sell the debtor's whole interest in the land, and can lawfully reserve nothing for him, either in the land or the price of it.* And it is no part of his duty, to examine and know the state of any incumbrances beside that under which he sells ; whether or not it will discharge the property from other liens; the rule caveat emptor fully applies to all such sales.^ The sale is always for cash, unless other conditions are specified.' § 1258. Notices at the sale. Notice of an unrecorded conveyance, given at the sale, will aff'ect a purchaser f but the holder of a mort- gage, not recorded, or illegally recorded, cannot, by giving notice of its existence, at a sale under a subsequent judgment, bind the purchaser, where the judgment-creditor had no notice of the mortgage, at the time when his judgment was entered ; and what would be the eff"ect of the notice, if the judgment-creditor had had notice, before his judgment was entered, of the existence of the mortgage, was doubted.' It has, how- ever, since been held, that if the purchaser, who was plaintiflT in the execution, had actual notice, prior to the entry of his judgment, of the existence of the mortgage, he is bound by a notice given at the sale.'" A tenant in common of the defendant, whose deed is on record, and who, being present at the sale, causes notice to be given that it is only the defendant's interest which is being sold, is not estopped from asserting his title against the purchaser.'^ And whatever puts a party on inquiry amounts to notice, provided the inquiry become a duty (as it always is with a purchaser), and would lead to the discovery of the requisite fact, by the exercise of ordinary diligence and understanding.'^ So, where the defendant was tenant in fee-simple of two-thirds of the land, and tenant for life, in right of his wife, of the other third, the wife is not con- cluded by an omission to give notice of her title at the sale, where the defendant's title was within reach of the purchaser, and the wife was * Schall's Appeal, 40 Penn. St. 170. 207. ' Loomis's Appeal, 22 Penn. St. 312. » Moyer v. Shiok, 3 Penn. St. 242. See 1 W. N. C. 595 n. » Uhler c. Hutchinson, 23 Pen^. St. * Devine's Appeal, 30 Penn. St. 348. 110. * AulenbaugliK.Umbehauer, SWatts '" Brittin's Appeal, 45 Penn. St. 49, 50. 172. ' Ibid. " Hill V. Epley, 31 Penn. St. 331. ' Carson's Sale, 6 Watts 140. " Barnes v. McClinton, 3 P. & W. 67. Negley v. Stewart, 10 S. & R. Weeks v. Haas, 3 W. & S. 525. NOTICE AT THE SALE. 735 not shown to be aware of the sale.^ "Where the purchaser is acquainted with an adverse claim of title, it is not the duty of the claimant to proclaim the same at the sale.^ A notice given at the sale, by a stranger to the writ, that he claims an absolute title in the land, precludes him from setting up any other title against the purchaser;' so, a person representing at the sale that a certain judgment was paid, is bound by such statement, if incorrect and injurious, though he was not then the owner of the judgment, but purchased it afterwards." But a mere notice or loose declarations by persons present, that the sale would be subject to certain liens, is of no effect.^ The sheriff is not the agent of the purchaser, and, consequently, notice to him is not notice to the purchaser;' but notice to counsel, is constructive notice to the client.^ § 1259. When the judgment was confessed by an attorney, without authority, the giving notice at the sale of such defect amounts only to notice that the defendant then knew of the defect, but had taken no proper measures to arrest the proceedings.^ The plaintiff may stay the vend, exp., even at the sale, and a purchaser having notice of such stay is bound by it ; thus, where two writs of vend. exp. issued, one for part of a mortgage-debt, and the other on a subsequent judgment, unconnected with the mortgage ; and at the sale, the counsel having charge of the first writ, gave public notice, to the effect that the property was selling subject to the mortgage, and the sheriff returned the property sold on the latter writ, it was held, that the purchaser, who was present when the notice was given, took the property subject to the mortgage.' The effect of notice upon the rights of purchasers, is discussed elsewhere." Written notice, put up at the place of sheriff's sale, may be proved by parol, without the production of the paper.^^ § 1260. Of the purchaser. The plaintiff in the execution may, of course, purchase ; but where the judgment was confessed by an insol- vent debtor, though the presumption of law is in favor of fairness, if the judgment itself be fair, yet the burden of showing this rests on the creditor-purchaser.^^ A joint-debtor in the judgment may purchase at the sale of his co-defendant's land, if with his own means and for his own use.'' As between the defendant or his representatives and the sheriff, a purchase by the latter, or any one in trust for him, is void, it being against public policy, that the same person should be both seller and purchaser ; but if the defendant consent, his representatives can- not impeach the sale; and if he neither know nor consent,, the sale will 1 Beal V. Stehley, 21 Penn. St. 376. ' Barnes v. McClinton, 3P. &W. 67. ■•' Owens V. Myers, 20 Penn. St. 134. ' Cyphert v. MoClune, 22 Penn. St. ' Eshbach v. Zimmerman, 2 Penn. 195. St. 313. ' Shryook v. Jones, 22 Penn. St. * Sitting's Appeal, 17 Penn. St. 303. 211 "> See infra, ^3.56. ' Fiokes v. Ersiek, 2 Rawle 166. " Weeks v. Haas, 3 W. & S. 520. Drexel v. Man, 6 W. & S. 343. Loo- '* Brandt v. Stevenson, 3 Phila. 205, mis's Appeal, 22 Penn. St. 312. '' Gibson u. Winslow, 38 Penn. St. « Stehl V. Spohn, 8 S. & R. 317. -49. 736 EXECUTION. not be disturbed, to the prejudice of a subsequent bond fide purchaser, without notice ;' where there is no fraud, the defendant may disaffirm such sale, but must pay the money back.^ A purchaser may lawfully agree to purchase for the benefit of the defendant, though the represen- tation of that fact, made at the sale, causes the property to sell for less than it otherwise would have brought f but a promise to purchase for the defendant's benefit will not constitute the purchaser a trustee for him, unless the purchase .were made with the money of the defendant;* a promise by a purchaser, who buys with his own money, that he will con- vey to the defendant, upon the payment of a stipulated price, creates no relation between them but that of vendor and vendee.' § 1261. Lien-creditors may purchase jointly at a sherifi''s sale, if all be open and fair, and if their combination tend to raise and not depress the price.^ A contract between two judgment- creditors, that the profits to be made upon a resale, if the property should be purchased by them, should, after paying their claims, be applied to the payment of the claims of other creditors, is not, in itself, fraudulent and without con- sideration, and may be enforced, in the absence of actual fraud in the conduct of the sale.' So, where there is an agreement between the plaintiff and a third party, that the latter, in case the land is bought in by the plaintiff, shall take it from him, at a certain fixed price, and the agreement is carried into eflfect, the amount which is to be applied to the discharge of the judgment, and to be credited to the defendant, is the price agreed to be paid, and not the smaller sum bid at the sale ; and this must also be considered the price of the land, not only between the plaintifl!" and defendant, but as regards all parties interested in the price.^ Arrangements of this kind, that the land shall be sold by the sheriff, in order to make title, but at a price previously agreed upon between the parties, are not uncommon in practice. An agreement by a bidder at the sale, to pay the judgment of another, if the latter would not bid, the former being permitted to purchase the property, is fraudu- lent and void as to the debtor or his creditors, and cannot be enforced by suit.^ Even if the promise had been valid, an auditor distributing the proceeds, could not, on that ground, disregard the prior lieij of the pur- chaser.'" Where the sale was void on account of a fraudulent combina- tion between bidders, the defendant may recover the land in ejectment ; ' Lazarus «. Bryson, 3 Binn. 54. ' Hogg v. Wilkins, 1 Gr. 67. Cook And see Powel v. Barrington, 1 Clark v. Cook, 69 Penn. St. 443. Dollar 239. Savings Bank v. Bennett, 70 Ibid. 402. ' Jackson v. McGinness, 14 Penn. Carhart's Appeal, 78 Ibid. 100. St. 331. « SmuU V. Jones, 1 W. & S. 136; ' Hoffman v. Strohecker, 9 Watts s. c. 6 Ibid. 122. 185. ' Young V. Snyder, 3 Gr. 151. * Barnet v. Dougherty, 32 Penn. St. » Young v. Stone, 4 W. & S. 45. 371. Kellum v. Smith, 33 Ibid. 158. Rease v. Cirowley, 4 Phila. 97. Williard V. "Williard, 56 Ibid. 119. » Slingluff v. Eckel, 24 Penn. St Kistler's Appeal, 73 Ibid. 393. Payne 472. V. Patterson, 77 Ibid. 134. Carhart's " Logue's Appeal, 22 Penn. St. 50. Appeal, 78 Ibid. 100. OF THE PUECHASEE. 737 and, it seems, he is not bound to tender the defendants the amount they have paid.' § 1262. The purchase of lands on behalf of a client, who is a lien- creditor, or plaintiff in the execution, is not within the trust confided to an attorney, and he is not entitled to a deed from the sheriff, without paying the purchase-money, or giving a receipt on behalf of his prin- cipal ; a receipt, provided there were no collusion, would justify the sheriff in giving a deed ; but, if the plaintiff himself should apply to the court, befoi'e the deed is acknowledged, and insist on payment of the money, the court would suspend the acknowledgment, until the money was paid, or set aside the sale, if it were not paid in a short time.^ An attorney cannot purchase for his own benefit, to the prejudice of his client, for a less sum than the amount of the claim upon which the land was being sold f and, if there be two plaintiffs in the execution, he can- not purchase for the benefit of one, without the consent of the other, for a less sum than the whole amount of the claim ; if he do so pur- chase, and the sheriff make a deed to one of the plaintiffs, under such circumstances, there is a resulting trust for both.^' But memoranda on the margin of the record, naming the attorney in the case, are not a part of the record, so as to charge the grantee of such attorney, who was the purchaser at sheriff's sale under the judgment, with notice that his grantor was the attorney of the plaintiff, and therefore purchased at the sheriff's sale in trust for the plaintiff.' § 1263. The prohibition against attorneys purchasing for themselves, at sales under the judgments of their clients, is somewhat akin to the general rule which prohibits a trustee from purchasing, for his own use, the property towards which he stands in a fiduciary relation. Thus, an administrator, purchasing at sheriff's sale, and settling the purchase- money by using bonds belonging to the estate, which were a lien on the land sold, no money being paid, becomes a trustee for the heirs of the deceased.^ But the rule does not apply, where the sale is made by a public officer, under proceedings adverse to the interest of the cestui que trust, and the trustee has not the means in his power to prevent the sale; therefore, a guardian, without funds in his hands, may lawfully become the purchaser, for his own use, of his ward's real estate, sold by the sheriff under a judgment against the ward's ancestor.' Yet, a sheriff's sale to the administrator of the defendant, who paid no money, but pur- chased in trust for the creditors and heirs, is fraudulent as to creditors.' ' Smull V. Jones, 1 W. & S. 138 ; And see Williamson v. Lamb, 2 Miles Gibson, C. J. 383. ^ Pearson w. Morrison, 2 S. & R. 21. ' Chorpenniiig's Appeal, 32 Penn. » Barrett v. Bamber, 81 Penn. St. St. 315. s. p. Fisk u. Sarber, 6 W. & S. 247; s. 0. 9 Phila. 202. Brady v. May- 18. Meaner v. Hamilton, 27 Penn. St. nard, 23 Leg. Int. 276 ; s. c. 24 Ibid. ] 37. This doctrine docs not apply, 220 300. where the trustee procures the sale to * 'Oalbraith v. Elder, 8 Watts 93. be made. Parshall's Appeal, 65 Ibid. Leisenring v. Black, 5 Ibid. 303. 224. * Barlow v. Beall, 20 Penn. St. 178. " Hays v. Heidelberg, 9 Penn. St. ' Beck V. Uhrick, 13 Penn. St. 636. 203. ■ VOL. 1.^47 738 EXECUTION. § 1264. If the purchaser possess a knowledge of facts unknown to others attending the sale, and which, if known, would have had an influence upon the sale, the court will not permit a deed to him to be acknowledged, but will set the sale aside.^ If the purchaser get the pro- perty at an under-price, by a trick or fraudulent pretence — as, by falsely giving out that he was buying it for the family of the defendant, or by fraudulently pretending that the sale would be subject to certain liens, which he knew would be divested by it — his title is invalid.^ But to have this effect, the fraudulent attempt must be successful, for if the land bring a fair price, such attempt will not vitiate the title ; and, on this question, evidence of the value of the property is pertinent and pro- per.^ If the purchaser have been guilty of actual fraud, he is not entitled to be reimbursed what he paid for the property ;^ but it is not fraud in the plaintiff, intending to purchase at the sale, if he do not make known to the bidders, the amount of mortgages or incumbrances against it, nor whether it is sold subject to, or clear of them.' In case of actual fraud, which has resulted in the property selling below its value, the sale may be invalidated, even after acknowledgment of the sheriff's deed.? And declarations and conversations of the purchaser, calculated to pre- vent others from bidding, may be given in evidence.^ § 1265. Setting aside the sale. Where there has been mistake, misconduct or fraud in the course of the sale, whereby any of the parties thereto are prejudiced, it may generally be corrected, on application made to the court, by the party aggrieved, to set the sale aside. The power of the court, in this respect, is very great, and is discretionary, as no appeal lies from its exercise f nor from a refusal to exercise it.' Whether a writ of error will lie, or whether the purchaser may, by refusing to take back his money, sustain an ejectment for the laud, has been doubted ;'" certainly, a writ of error will not, in general, lie to the confirmation of a sheriff's sale, and the acknowledgment of the deed.'' Where, however, the title of the purchaser has been fully confirmed, the term has passed, and the deed been recorded and delivered, it seems, that a writ of error will lie to a subsequent order, striking off the acknow- ledgment and setting aside the sale, on the ground of fraud ;'^ even in such case, the supreme court will not review the conclusion of the court below, as to the weight of the evidence, but will look at it, to ascertain ' Hutchinson v. Moses, 1 Bro. 187. « Young's Appeal, 2 P. & W. 380. ' MoCaskey v. Graff, 23 Penu. St. Hoffa's Appeal, 82 Penn. St. 297. 321. Abbey v. Dewey, 25 Ibid. 413. « Crawford v. Beyer, 14 Penn. St. Hogs '»■ Wilkins, 1 Gr. 68. 383. ' Abbey v. Dewey, iit supra. '" See Young's Appeal, 2 P. & W. * McCaskey v. Graff, ut supra. 380. Sharp V. Long, 28 Penn. St. 433. " Rees v. Berryhill, 1 Watts 263. Grim V. Grim, 1 W. N. C. 79. Sloan's Case, 8 Ibid. 194. Braddee v. ' Carson's Sale, 6 Watts 140. Brownfield, 2 W. & S. 271. " Sharp V. Long, ut supra. ''^ Jackson v. Morter, 82 Penn. St. ' Hoffman v. Strohecker, 9 Watts 291. 183. SETTING ASIDE SHERIFF S SALE. 739 the ground of their action.' An application to set aside the sale is by motion and affidavit, which, on the hearing, must be supported by depo- sition, taken on notice to all parties in interest, to wit, the plaintiff, defendant, purchaser and sheriff.^ The applicant, however, is not con- fined to the matters set forth in his affidavit ; an objection arising in the course of the examination, will b^ heard, provided the other party has had an opportunity to meet it.^ § 1266. TFlio may apply. In general, the party (plaintiff, defend- ant, purchaser or lien-creditor), who has been aggrieved by mistake, misconduct or fraud, committed in the course of the sale, may apply to have it set aside. He must be interested in the fund or the land ;* he must have a priind facie interest, at least;' and the court will not refuse such application, because the interest of the applicant is controverted, for they will not decide his rights in this proceeding.'' This is the pro- per remedy for a purchaser, who has bid under a misapprehension of his rights;^ and judgment-creditors may oppose the confirmation of a sale.' A mortgage-creditor, who has bid in property, improperly described iu the advertisements, &c., and has failed to comply with the terms of the ' Jackson v. Morter, 82 Penn. St. 291. Connelly v. Philadelphia, 86 Ibid. 110. ^ Ingersoll v. Sherry, District Court, Phila., 20 April 1850. Rule to set aside sheriff's sale. Per curiam. It was undoubtedly irregular, to set aside the first sheriff's sale, without notice to defendant ; the court acted on the assurance that all parties had notice. In all cases hereafter, the court will require an affidavit of service upon all parties (to wit, plaintiff, defendant, purchaser and sheriff) who may not have appeared at the taking of the depositions, or upon the hearing of the rule. The defendant here, however, suffered the second sale to go on, with- out coining in and asking the court to rescind its order, and calling their attention to this irregularity ; it af- fords no ground, therefore, to regard his application to set aside the second sale favorably. Apart from this, we see no ground to interfere. Rule dis- charged. This case is imperfectly re- ported in 1 Phila. 68. » Chadwickr. Patterson, 2 Phila. 275. * Laird v. Laird, 2 Clark 206. * A mortgagee, whose mortgage is not discharged by the sale, has no standing in court, to move to set it aside. Bloomer's Estate, 2 W. N. C. 512. 6 Shields v. Kuhn, District Court, Phila., 1 Dec. 1851. Rule to set aside sheriff's sale. Per curiam. It is not pretended, but there was a flagrant misdescription, affording ample ground for making this rule absolute. But it is alleged, that I'homas Sowerman, who makes this application, has no interest, he being a creditor by a judij;- ment, the lien of which has been dis- charged by a judicial sale. Whether his lien be discharged, or not, depends, not only upon a question of law, of great nicety and importance, which certainly has never been decided in the supreme court, but in a certain aspect of the case, may depend upon the bona fides of a certain deed, which it is al- leged by the purchaser who opposes this application, to have been fraudulent and void as to creditors ; and he has offered to establish this point by depo- sitions. We are clear, however, that upon such a question as this, we oiight not to assume the decision of such a controversy, in a collateral proceeding like this. It is enough, to show a prima facie case of interest, though it may be controverted, to let in a party to set aside a sheiiff's sale ; otherwise, in- deed, his most important rights and property might be irremediably sacri- ficed. Rule absolute. ' Crawford v. Boyer, 14 Penn. St. 380. Wait's Estate, 3 Luz. L. Obs. 390. Feury v. McLane, 5 Luz. L. Reg. 257. 8 'Cash V. Tozer, 1 W. & S. 528. 740 EXECUTION. sale, is not thereby estopped from objecting to a second sale, made under the same erroneous description.^ But the defendant, who has recently- been discharged as a bankrupt, is not entitled to make such application ;^ and a stranger, who claims by title paramount to that of the defendant, cannot apply to have the levy and sale set aside.^ On the hearing of the rule, the applicant is required, by ruie of court, to furnish a paper-book, setting forth the price for which the premises were sold, the value thereof, as resulting from a fair construction of the depositions, and the particulars of misdescription, or other irregularity.^ § 1267. Time of application. Good faith requires that the applica- tion to set aside a sheriff's sale should be made at the earliest possible period : it is true, that it may be entertained, at any time before the acknowledgment of the sheriff's deed ; but it is not proper that the party should sleep upon his rights, while the purchaser is continually incurring expense ; therefore, a long delay in making such application, which is not accounted for, will be sufficient ground for the court to decline inter- fering with the sale f a delay of twenty days after the sale, has been held unreasonable, and the court declined to interfere.^ In general, the application must be made before the acknowledgment of the sheriff's deed;' but where the judgment is set aside or opened, the setting aside the sale follows, as a matter of course, on the ground of restitution ; and in such case, the sale will be set aside, after the acknowledgment, and the lapse of a term, if the deed be still in the sheriff's hands.* So, the sale will be set aside, even after the acknowledgment of the sheriff's deed, where the plaintiff, being the highest bidder, adjourned the sale, and then purchased the property at a lower rate ;' in such case, the acknow- ledgment of the sheriff's deed, and the payment of the price, is no ground for refusing to set aside the sale, if the deed still remains in the sheriff's hands.'" And even after a delivery of the deed to the purchaser, the court may, on his application, set aside the sale and acknowledgment, for good cause, and order the purchase-money to be refunded." ' Connell v. Hughes, 1 Phila. 225. term. Connelly v. Philadelphia, 86 ' Laird v. Laird, 2 Clark 206. Penn. St. 110. The court may order ' Glassell v. Wilson, 4 W. C. C. 59. the deed to be returned to the pro- * Rule xxiv. ^ 88. thonotary for cancellation. Ibid. 5 Young V. Wall, 1 Phila. 69. '» Vanernan v. Cooper, 4 Clark 371. ' Ibid. The court may vacate the aoknowledg- ' McCuUoeh's Case, 1 Yeates 40. See ment, at the instance of the purchaser, Chadwiok v. Patterson, 2 Phila. 275. where he produces the deed, and de- * Stephens v. Stephens, 1 Phila. 108. livers it up to be cancelled. Chadwiok ' Vanernan v. Cooper, 4 Clark 371. v. Patterson, 2 Phila. 275. Handley v. The court has power to strike off the Coyle, 5 Luz. L. Reg. 69. Shakespear acknowledgment of the sheriff's deed, v. Fisher, 33 Leg. Int. 462. and set aside the sale, on the ground " Shakespear v. Delany, 86 Penn. St. of fraud, if the application be promptly 108. And see Jackson v. Morter, 82 made, and the deed has not been de- Ibid. 291. Connelly v. Philadelphia, livered. Jackson v. Morter, 82 Penn. 86 Ibid. 110. But if the deed have St. 291 . And an acknowledgment and been delivered, the remedy of any other delivery of the deed, pending a motion party is in equity. Carr u. O'Neill, to set aside the sale, will not preclude 1 W. N. C. 41. Fahinger v. Fahinger, the exercise of such power, during the 36 Leg. Int. 5. SETTING ASIDE SHEEIFf's SALE. 741 § 1268. Ch'oitnds for setting aside the sale. In describing the sheriff's duties in regard to the conduct of the sale, we have already enumerated many of the grounds upon which the court will interfere to set the sale aside. For the defects in description, discrepancies between the handbills and advertisements, insufficiency of notice, irregularities in the time, manner or conditions of the sale, misconduct on the part of the purchaser, and illegal agreements between bidders, which may con- stitute a good ground for setting aside the sale, reference is made to the preceding pages. On a rule to set aside a sheriff's sale for irregularity in posting bills, &c., the court require the deposition of the sheriff's bill- poster to be taken, not as conclusive, but as a necessary part of the testimony in the cause.^ § 1269. InadeqiMcy of price. Mere inadequacy of price is not suf- ficient ground for setting aside a sheriff's sale of land, unless so glaring as to authorize a presumption of fraud ;^ and even where security was offered, that the property, if again set up for sale, should bring a large advance, the court declared that they had no power to open the biddings, and refused to set aside the sale.' Where, however, there is an appear- ance of fraud, the inadequacy of price, though not conclusive in itself, affords an argument in favor of setting aside the sale, which is of great weight against a purchaser to whom the fraud is imputed ;* and where the inadequacy is very gross, the court will take advantage of an irregu- larity in the proceedings, however slight.^ Thus, a deviation from the established order of selling,^ an omission of the name of the village where the property is situate,' omitting the right to an alley-way,' and other matters of misdescription, coupled with inadequacy of price,' have ' 1 W. N. C. 18. overlook. Here, it is by no means clear, ^ Dickey's Case, Journ. Jur. 89. that there has been any such gross in- Carson's Sale, 6 Watts 147. Gobrecht adequacy as to bring the case within M. Diffenbach, 2 L. Bar, 25 Feb. 1871.- the category referred to. Without ' Dickey's Case, ut supra. A sale that consideration, the mistake of an under a mortgage was set aside, at the inch or two in the breadth or depth of instance of a second mortgagee, for the lot, and which evidently had no inadequacy of price, on his entering influence on the sale, is too trifling to security to bid a large advance on a re- justify our interposition. Especially, sale. Percival v. Bryant, 4 Clark 161. would our interference be un warrant- But, it is said, there were other irreg- able, where, as here, the sale is upon ularities in that case : see Whitacre v. a fourth pluries levari facias, the same Pratt, supra, § 1251 n. description having been inserted and • Weitzell v. Pry, 4 Dall. 218. Tripp continued in this long series of writs V. Silkman 29 Leg. Int. 29. and advertisements, without objection * Lewis's Petition, 1 Pitts. 537. by the defendant. Rule dismissed. Whitacre v. Pratt, supra, § 1251 n. " Sergeant v. Goslin, 1 Phila. 301, Evans V. Pratt, Dist. Court, Phila., 10 ' Whitacre v. Pratt, supra, 1 1251 n. June 1848. Why sheriff's sale should * Ulrich v. McCann, supra, | 1251 n. not be set aside. Per curiam. Sheriffs' Ellis v. Bliem, 2 W. N. C. 290. sales are never set aside merely for ' Fire Association v. Johns, 1 W. inadequacy of price, though in cases N. C. 74. Brown v. Sheppard, Ibid, where it is very gross, the court will 103, Association v. Adams, Ibid. 144. take advantage of an irregularity in the Moyer ». Ibbotson, 2 Ibid. 29. Whit- proceedings, which, under other cir- aker v. Birkey, Ibid. 476. cumstances, they might be disposed to 742 EXECUTION. been held sufficient grounds for setting aside the sale. And if mort- gaged property has been incorrectly described in the advertisement, though corrected before the sale, if sold at an inadequate price, the sale will be set aside ;^ but where the defendant has furnished to the sheriflp a description of his property, the sale will not be set aside, merely for inadequacy of price.^ Gross inadequacy of price, if accompanied by any other matter of equity, is ground for setting aside a sale.' But commencing the sale earlier than usual, the change of hour having been duly advertised f or not giving the plaintiff's counsel special notice of the intended sale, according to an alleged practice,^ are not grounds for setting aside the sale, even though the price be inadequate. § 1270. Where the inadequacy is not very gross, security is required that a greater sum will be offered at a second sale ; in practice, secu- rity is generally required for an advance of, at least, ten per cent, on the former bid. But no amount of inadequacy is sufficient reason for setting aside the sale, where the proceedings are strictly regular.^ Where there is a doubt as to the fact of inadequacy of price, the offer of security that the property will bring, at a second sale, a certain sum, much larger than it brought before, will have decisive weight with the court in determining the question.^ It is not, however, proof of inade- quacy, that a third person, not called and examined under oath, has stated that he would give a greater sum, if the property were put up again.^ § 1271. Misdescription, We have already seen, that a misdescrip- tion of the property, in the sheriff's handbills or advertisements, is a good ground for setting aside the sale f but, if it appear that the defendant acquiesced in the sale, under an erroneous description, with a view to the property being bought in by a friend, the court will not interfere, at his instance ;'" nor, where the defendant himself furnished a description ' Wells V. Pfeiffer, 4 Yeates 203. is a member of the bar. Rule dis- ^ Timlow V. Heidig, 2 Leg. Opin. charged. 103. ^ Kern v. Murphy, 2 Miles 159. ' Twells V. Conrad, 2 W. N. C. 30. " Whitaore v. Pratt, supra, § 1251 n. * Campbell v. Ruddaoh, Dist. Court, ' Ibid. And see Percival v. Bryant, Phila., 23 Deo. 1848. Why sheriff's sale 4 Clark 161. should not be set aside. Per curiam. * Steinmetz v. Stokes, supra, § 1251 n. Inadequacy of price is, of itself, no rea- ' See supra, g 1251. son for setting aside a sale. Here, the " Fisher «. Stokes, Dist. Court, Phila., circumstance relied on to take the case 12 May 1849. Why sheriff's sale as out of the general rule, is, that the sale to second-described property should not on this occasion commenced half an be set aside. Per curiam. The mis- hour earlier than the previous sale of description in this case is very pal- the sheriff. The change of hour, how- pable ; and though, if it appeared that ever, was duly notified in the bills and defendant had acquiesced, with a view advertisements ; and it is notorious, that to the property being bought in by a the hour for commencing such sales friend, we would not interfere, we can- varies with the different seasons of not act upon such a surmise, without the year. This, therefore, is no ground notice. To conclude a defendant, in case whatever for our interference. Nor can of misdescription, he should have dis- we perceive any for making a differ- tinct notice of the intended description, ence in these cases, when the purchaser before the advertisement, within a rea- SETTING ASIDE SHEEIFF's SALE. 743 of his property to the sheriff.^ The court, however, will always relieve the purchaser, where there has been a misdescription of the property;^ as, where the name of a street has been changed by law, and the description follows the old designation.^ § 1272. Mistake and surprise. Where the purchaser has been seri- ously misled by the sheriff's representations at the sale, as to the amount of liens against the property, the sale will be set aside at the cost of the purchaser.* So, where one purchases under the erroneous belief that the sale will discharge the lien of a mortgage, and the mistake is discov- ered, before the deed is acknowledged, the court can grant relief by setting aside the sale ; perhaps, it might be granted, even after the acknowledgment of the deed.' So, it seems, a misapprehension by the purchaser, a lien-creditor, as to his rights in reference to prior liens, might furnish a sufficient reason for the court to set the sale aside.* And a sale will be set aside, for misdescription, and surprise, resulting from the withdrawal of one of two writs, under which it was advertised;' so, where the sheriff has erroneously anijounced that the writ was " stayed ;" whereas, the one stayed was another writ against the same defendant.* And so, also, where a purchaser has bid, under a misapprehension of his rights, the sale may be set aside, on terms;' and where, by the plaintiff's direction, the sale was made subject to prior liens, it will be set aside.'" § 1273. MiscoHdtict. Where the plaintiff, being the highest bidder, had the sale adjourned, and then purchased at a lower rate, the sale will be set aside, even after the acknowledgment of the sheriff's deed.'' And where the sheriff, in the early part of the day, makes a sale under execu- tion, for a price aj)proximating the real value of the property, and gives notice that unless the bid be complied with, by a certain hour, later in the day, the property will be resold ; and the purchaser, not complying with his bid, appears at the later hour, when competing bidders have dispersed, and buys the property for a nominal price, the sale will be set aside, though such purchaser be entirely responsible for the difierence between his bids.'^ And a sale was set aside, where the property was put up, at a very late hour, after most of the bidders had departed.'^ § 1274. Irregularity. A sheriff's sale, made on a legal holiday, will be set aside." Where the sheriff sells different parcels or houses together, as a general rule, the sale will be set aside, and the court will sonable time, so that he may have the * Asspciation v. Campbell, I W. N. opportunity of having it amended. C. 81. Rule absolute. ' Wait's Estate, 3 Luz. L. Obs. 390. ' Timlow V. Heidig, 2 Leg. Opin. Feury v. McLane, 5 Luz. L. Reg. 103. 257. ^ Twells V. Mulligan, 2 W. N. C. 67. '° Dunlap u. Gray, District Court. » Fry V. Vetterlein, 6 W. N. C. 83. Allegheny ; Lowrie, J. * Finley v. McCully, 2 Phila. 212. " Vanernan v. Cooper, 4 Clark 371. * Cummings's Appeal, 23 Penn. St. " Tripp v. Silkman, 29 Leg. Int. 29. 509. " Greenwood v. Lehigh Coal Co., ' Crawford v. Boyer, 14 Penn. St. 1 Clark 393. 330 '* Monroe v. Durkin, 5 Luz. L. Reg. ' Shb^iffer V. Leippe, 6 L. Bar 78. 99. 744 EXECUTION. not require it to appear that the price was inadequate,' if made without the assent of the parties;^ and neither a common disadvantage or incumbrance, nor a common privilege, is any decisive reason for selling them together.' So, where several properties are advertised as one, though sold separately, the sale will be set aside.* But where the sale is made in the lump, by special agreement, and the purchaser stood in such relation to the transaction that he would naturally be expected to be alive to all the particulars of the description, the court refused to set aside the sale on his application, made on the ground that the number of lots (in a cemetery) was overstated in the advertisement.' Where the sheriff sells a single property, at the same time, under different writs against different defendants, the sale is irregular and invalid, and will be set aside ; it should be sold under each writ separately, or one of them only.^ § 1275. Any irregularity in the process is ground for setting aside the sale, and the objection should be taken in this way, for the defect will generally be cured, by suffering th^ deed to be acknowledged. Thus, the omission to give notice of the inquisition / the absence of a regular condemnation, or of the waiver of inquisition ;^ the absence of the sd. fa. qu. ex. non, in cases where such writ is requisite ;' the issuing of the fi. fa. and vend. exp. on the same day and to the same term ;'" the sale of land, already extended, under an alias ji. fa., issued without leave, on the same judgment,'' are all grounds for setting aside the sale. But where lands were sold under a ji. fa., it is no ground for setting aside the sale, that the writ only directed the sheriff to levy on goods and chattels.'^ § 1276. It will not be set aside, upon the application of the purchaser, for a defect in the title, where there has been no fraud in the sale ;" especially, if notice of adverse title was given at the sale, though the purchaser, being deaf, did not hear so as to understand such notice.'* 1 Connell v. Hughes, 1 Phila. 225. '* Hough v. Lorentz, District Court, 2 Tate V. Carberry, 1 Phila. 133. Phila., 17 Nov. 1849. Rule to set aside ' See supra, 1 12.54, where this sub- sheriff's sale. Per curiam. Caveat ject is fully considered. emptor'is, the rule which rigidly applies * Hoeckley v. Henry, 3 Phila. 34. to sheriffs' sales, as far as title and * Monument Cemetery Co. v. Potts, incumbrances are concerned. It might 1 Phila. 251. easily be' made to appear, that the in- * Building Association v. Henry, conveniences of allowing a bidder at a 3 Phila. 34. public judicial sale to come in and be ' Meanor i!. Hamilton, 27 Penn. St. relieved from his bid, on the ground that 137. the defendant had no title, or an im- ' Spragg u. Shriver, 25 Penn. St. 282. perfect one, would far outweigh the ' Vastine v. Fury, 2 S. & R. 430. occasional hardship of a case, where Hinds V. Scott, 11 Penn. St. 27. an ignorant or ill-advised purchaser "• Hadden v. Clark, 2 Gr. 107. may lose his money without an equiva- '' Wilson V. Howser, 12 Penn. St. lent, or be involved in a lawsuit. In 109. this instance, however, ignorance can- '^ Andrew v. Fleming, 2 Dall. 93. not be properly allowed as an excuse, Lands are considered chattels for the even though it may have existed ; for payment of debts, in this state. Ibid. clear and distinct notice that the title of " Juniata Bank v. Brown, 5 S. & R. the purchaser would be controverted, 226. was made at the sale. That the pur SETTING ASIDE SHERIFF'S SALE. 745 But it will be set aside, where the sheriff has led the purchaser to believe that he was selling the legal title, when in fact the defendant had but an equitable one.i It is no ground for setting aside the sale, that the purchaser was a defendaut, husband of another defendant, and had, in conjunction with his wife's trustee, executed a mortgage of her separate estate, which, by the terms of the trust, might have been executed with- out him.2 Nor, where the sale was under a judgment on the bond accompanying a mortgage of the wife's realty, given by husband and wife, will it be set aside, on the ground that the purchaser supposed he was buying the fee, instead of the husband's curtesy.' § 1277. Where, in consequence of the sickness of the plaintiff's coun- sel, and his consequent inability to attend the sale, a loss accrued to his client, the court said, that the sale should be set aside, upon a stipulation to pay the costs of the sale, and that the property should bring as much at a second sale, as the affidavits alleged it ought to have brought.^ In this case, the counsel had sent an agent to the sale, with instructions to bid up to a certain price ; the agent only knew the property from the defendant's name, which the sheriff omitted to read, by which omission the agent was prevented from bidding, and the property brought only one-fifth of the price he was instructed to bid for it. If puffers be employed at the sale, to raise the price against the real bidders, it is a fraud upon them, and the sale will be set aside.^ Where several parcels of land were levied on, and the sale of the first parcel was sufiicient to satisfy all the liens, the sale of the remaining parcels was set aside.^ The discovery, after the inquisition, of sufficient personal property to pay the debt, is not ground for setting aside the sale.' § 1278. Defaulting purchasers. When the purchaser fails to comply with the terms of his contract, by paying the amount of his bid, in the manner stipulated in the conditions of sale, he is liable in an action for the amount bid,' or the property may be sold again, and the purchaser at the first sale is liable for the loss arising from the diminution of price at the second sale.' But unless the bidder be notoriously insolvent, the chaser was deaf, and did not hear so See Miller's Appeal, 1 W. N. C. 242. as to understand the import of the no- ^ Richards v. Brittin, 3 Clark 2U7. tice which was made, does not make Wallace's Estate, 2 Pitts. 145. the case any better; he should act in ' Hunt v. McClure, 2 Yeates 387. such matters through the ajcency of ' If the purchaser give bond for the others. The objections which have purchase-money, the sheriif may recover been urged to the advertisement, are thereon, without a resale. Friedly v. mere typographical errors, by which a Scheetz, 9 S. & R. 156. In an action vigilant man, who had made the neees- for the purchase-money, it is only De- nary searches, could not have been cessary to prove the sale and to pro- misled. Rule discharged. duce the writ. Davis v. Ba.xter, 5 ' Auwerter v. Mathiot, 9 S. & R. Watts 515. And the defendant cannot 397. take advantage of irregularities in the ^ Kern v. Murphy, 2 Miles 157. execution. Emley v. Drum, 36 Penn. ' Elkin V. Meredith, 2 Miles 167. St. 125. * Garret b. Shaw, Dist. Court, Phila., ' Negley v. Stewart, 10 S. & R. 7 June 1830. MS. 207. Scott v. Greenough, 7 Ibid. 197. 5 Donaldson v. McRoy, 1 Bro. 346. Spang u. Schneider, 10 Penn. St. 193 Pennock's Appeal, 14 Penn. St. 446. Wright's Appeal, 25 Ibid. 373. 746 EXECUTION. sheriff cannot, long before the return-day, return that the purchaser has not paid, and therefore that the property remains unsold for want of buyers ; and where he does so, and has made no demand, and there is no evidence to justify him in so doing, the bidder is not liable for a differ- ence in price.' The sheriff is not bound to give the first purchaser notice of the time and place of the second sale; it is sufficient, to notify him that unless he pay the money, the property will be sold again, and even this seems not to be requisite.^ He may, at his own risk, refuse to give a deed to the delinquent purchaser, and the merits of the pur- chaser's case may be ascertained in an action by him against the sheriff.* A defaulting purchaser will be compelled, by a summary order, to return the writ to the sheriff; but he cannot complain of the making out of a duplicate original upon which a return is made.'' § 1279. An action against the purchaser, for the difference between the amount of his bid, and what the property produced on a resale, must be brought in the name of the sheriff; it can be maintained by no other person.' In such action, the purchaser cannot set up a defective descrip- tion as a defence f nor an irregularity in the judgment, if not absolutely void f if he have bid under a misapprehension of his rights, or the description in the levy be incorrect, he should apply to have the sale set aside.' In such case, the measure of damages is the difference between the prices bid at the two sales, together with the costs of the second sale.' But where the property is resold, without calling upon the defaulting purchaser to complete his contract, he cannot be held liable for a loss upon the second sale ;'" nor can he be held liable, if the property be resold, upon more onerous conditions.^' A fraudulent vendee, whose purchase is set aside in equity, is not entitled to a return of the amount paid to the sheriff.'^ And if the vendee pay part of the purchase-money, and make default, the land may be resold, at his risk, and the sum paid be dis- tributed among the lien-creditors, unless greater than the loss on a ' Holdship V. Doran, 2 P. & W. 18 ; » Gaskell v. Morris, 7 W. & S. 32. Huston, J. Lelar v. Gault, 2 Phila. 78. '' Gaskell v. Morris, 7 W. & S. 32. " GirardLife Insurance Co. u. Young, ' Vastine v. Fury, 2 S. & R. 435. If 8 Phila. 16. See Leeds v. Seery, 2 W. the purchaser neglect to pay the pur- N. C. 223. chase-money, within the time prescribed " Freeman v. Husband, 77 Penn. St. by the terms of sale, the sheriff may 389. s. p. Paul v. Shallcross, 2 Rawle execute a deed to the next highest bid- 326. Banes v. Gordon, 9 Penn. St. 426. der. South v. Lavens, 6 )V. N. C. 528. See Singerly v. Swain, 33 Ibid. 102. * Hope Building Association v. Dun- If, on the purchaser's default, the agan, 5 W. N. C. 148. plaintiff desire an order imposing more ' Adams v. Adams, 4 Watts 160. onerous conditions on a resale, as the Gaskell v. Morris, 7 W. & S. 32. Free- payment of more than §50, when the man v. Husband, 77 Penn. St. 389. property is struck down, ground must Hutchinson v. Allen, ] W. N. C. 123. be laid, by affidavit, showing failure " Spang V. Schneider, 10 Penn. St. of compliance with the terms of the 193. previous sale, and the affiant's belief ' Cooper V. Borrall, 10 Penn. St. that such failure was by, or at the iu- 491. Hower v. Houpt, 1 Leg. Gaz. stance of the defendant. 1 W. N. C. 101. 18. ' Ibid. " Grim v. Grim, 1 W. N. C. 79. EETUEN OF THE WRIT. 747 resale.' Where the conditions of a sheriff's sale stipulate that a desig- nated portion of the purchase-money shall be paid when the property is struck down, such payment is not construed as a penalty for, but a pledge to prevent, a failure to complete the purchase.^ So, where a purchaser, after payment of part of the purchase-money, makes default, and the property is resold, under another execution, for a sum which, with the partial payment on the first sale, amounts to the bid at such sale, the sum so paid by the first purchaser is distributable to the lien- creditors.^ § 1280. Return of the writ. The officer making sale of any real estate under execution, must make return thereof, indorsed or annexed to such writ.^ But an omission to return the writ does not invalidate the sale ; it is cured by the acknowledgment of the deed, reciting that the sale was made under the venditioni,^ even where it was not returned until several years after the acknowledgment, and after the sheriff had gone out of office." A return of " money made," discharges the defend- ant, and fixes the right of the plaintiff, and the liability of the sheriff, in the same manner as such return to a fi. fa.'' When the officer cannot sell, he must make return that he exposed the premises to sale, and that the same remained in his hands unsold, for want of buyers; such return does not render him liable to answer the debt or damages mentioned in the writ.* If the purchaser make default, he must return a sale for so much, and that the ' terms of sale have not been complied with, where- fore, the property remains in his hands unsold f and if the defaulting purchaser have paid part of the purchase-money, that fact should be stated in the return.'" But, notwithstanding a return of a default, and a sale to the plaintiff on a second writ, the court may direct the sheriff to amend his return to the first writ, and confirm the first sale." § 1281. Defective or informal returns to any execution, upon which a sale has been effected, may be amended, on the application of the pur- chaser, or other person interested in the sale, made by bill or petition to the court which issued- the writ, setting forth the facts, and upon notice given, in a manner directed by the court, to the purchaser or defendant, their heirs, executors, administrators or devisees, and to all other per- sons interested, to appear in court on a day certain, to be fixed by the court, and answer such bill or petition ; on the hearing, the court has power to examine into the facts, and make such order and decree as * Wright's Appeal, 25 Penn. St. * Act of 1836, 1 64. Upon such re- 373. turn, the plaintiif may sue out an alias ^ Forster v. Hayman, 26 Penn. St. or pluries writ. Ibid. 266 ' Zantzinger v. Pole, 1 Dall. 419. ' Tindle's Appeal, 77 Penn. St. 201. Gaskell v. Morris, 7 W. & S. S2. * Act 16 June 1836, J 94, P. L. 778 ; "> Wright's Appeal, 25 Penn. St. 373. Purd. 658. " Vastine v. Fury, 2 S. &R. 426. If * Gibson v. Winslow, 38 Penn. St. the sheriff return that the purchaser 49. has made default, the subsequent ao- ' Smull V. Mickley, 1 Rawle 95. knowledgment of a deed to him, is Hinds V. Scott, 11 Penn. St. 26. equivalent to leave to amend the re- ' Boas V. Updegrove, 5 Penn. St. 516. turn. Foster v. Gray, 22 Penn. St. 9. 748 EXECUTION. justice and equity may require, either by dismissing the application, or by* correcting and amending the return, and directing the sheriff for the time being to execute a deed to the purchaser, or to such other person, for the use of those entitled thereto, upon such terms and conditions aa the court may determine, and justice and equity require; which deed, thus executed, and acknowledged in the ordinary manner, is as effect- ual in law, as if the proper return had been made, and the title com- pleted, according to law.' Xin. Of sheriffs' deeds. § 1282. Where the sheriff or other officer has made sale of real estate under execution, it is his duty to return the same, indorsed or annexed to the writ, and to give the buyer a deed for what is sold, duly executed, and acknowledged in court.^ But a deed is unnecessary to pass a lease- hold interest; the return is evidence of title.^ The deed should describe the land with reasonable certainty; but the quantity of land which passes by it, is to be ascertained by the extent of the levy ; and in case of uncertainty, from the generality of the description, it is a question for the jury.^ A levy and deed, describing the land as "a tract of land in the name of A. (the warrantee), containing three hundred acres, more or less," is sufficiently certain, in the absence of extrinsic proof;' and where a levy and sale is made of a tract of land, without any particular description, the deed will pass a small piece of land, used in connection with the tract, for the purpose of overflowing, by the erection of a dam.^ So, a sheriff's sale and deed, for property levied upon as "the buildings, furnaces and other improvements, known as the Shawnee Iron Works," passes the right to a railroad across the lands of other persons, used in connection with the furnaces ; though the word " appurtenances" be omitted in the levy.'' And if the sheriff levy on a rent-charge, but advertise, sell and convey the lot out of which it issues, the rent-charge passes ; the levy controls the subsequent proceedings.' If, however, the fi. fa. and venditioni be lost, the premises must be identified by other evidence than the deed ; the levy and inquisition are not acts of I'ecord.' The defendant's title is not divested, until the acknowledgment of the deed ;'° but, as against an intermediate purchaser, under another execu- tion, the deed relates back to the day of sale, if there be no such delay as to raise the presumption that the sale had been set aside." ' Act 21 April 1846, P. L. 430; * Hyskill v. Givin, 7 S. & R. 369. Purd. 659. Extended to sales of per- « Buokholder v. Sigler, 7 W. & S. sonal property in Carbon county, by 154. act 1 March 1861, P. L. 83. And see ' Wrisht v. Chestnut Hill Iron-Ore act 26th February 1872, P. L. 155, Co., 45 Penn. St. 475. curing certain defects in sheriffs' deeds, ' Streeper v. Fisher, 1 Rawle 155. in Washington county. And see Arnold v. Gorr, Ibid. 223. ' Act 16 June 1836, ? 94, P. L. 778 ; » Buehler v. Rogers, 68 Penn. St. Purd. 658. 9. ' Sowers v. Vie, 14 Penn. St. 99. »° Storch v. Carr, 28 Penn. St. 135. Williams v. Downing, 18 Ibid. 60. " Hoyt ». Koons, 19 Penn. St * Hoffmaxi u. Dauner, 14 Penn. St. 25. 277, sheriffs' deeds. 749 § 1283. Recitals. The purchaser may have the judgment, the execu- tions and the returns made thereto, recited fully and at large in the deed, and if the prothonotary, by order of the court, certify, under the seal of the court, that the record is recited in such deed truly, fully and entire, as the same remains in his office, the deed will be as good evi- dence, in a suit wherein the land is in controversy, as the original records would be, if produced and offered in evidence.^ An omission to return the writ will not invalidate the sale, but may be supplied by the recitals in the deed.^ The recital in a sheriff's deed that the sale was made by a former sheriff, is not conclusive evidence of the fact, but the party" claiming under it, may show aliunde, that it was, in fact, made by the same sheriff who made the deed ;' and a recital that the sale was made on a certain day, does not estop the grantee from showing that it was made on another day.* But, unless the record be recited in extenso, under the statute, a recital is no evidence of the sheriff's power to sell ;^ and this is seldom or never done, in Philadelphia ; in such case, the judgment and execution must be produced.^ A mis-recital of the writ is open to correction.^ § 1284. Effect as evidence. The possession of the deed is primd facie evidence of the delivery, and of the payment of the purchase- money, without a receipt at the foot of it ; the acknowledgment of the receipt in the body of the deed, is sufficient ; besides, by making a deed, the sheriff fixes himself for the price bid, to the creditor and the owner.' And a sheriff's deed, defectively acknowledged, is evidence to show that a party holding under it is not a mere intruder, but is in under color of title.' Where the vend, exp, has been lost, but there is evidence from the docket-entries and aliunde, that several lots, as numbered on a plan, were sold under it, the deed may be used as evidence to identify the lots sold to particular individuals.'" It seems, if the deed be lost, the court, on application, accompanied by affidavits, may direct the sheriff to exe- cute another deed ; and, after showing a sale, and the record of acknow- ledgment, the petition of au attorney of the purchaser, praying that a new deed might be acknowledged, together with his affidavit of the loss of the former deed, may be given in evidence, to show the existence and loss of the deed." § 1285. Secording. In Philadelphia, it is the practice to record sheriff's deeds in the prothonotary's office; and a rule of court requires that this should be done in words at length.'^ They may also be recorded in the proper office for recording deeds, in the county where the lands lie.'^ ' Act of 1S36, § 9.5. ' Ibid. Foster v. Gray, 22 Penn. ■■' Gibson v. Winslow, 38 Penn. St. 49. St. 9. ' Leshey v. Gardner, 3 W. & S. 314. ' Wilson v. Howser, 12 Penn. St. * Hall V. Benner, 1 P. & W. 402. 109. ' Wilson V. McVeagh, 4 Yeates 86. '» Woods v. Halsey, 9 Penn. St. 144. * Ibid. Weyand v. Tipton, 5 S. & " Gray v. Coulter, 4 Penn. St. 192. R 332. Hampton v. Specknagle, 9 '^ Rule xxxvi. § 1 19. Ibid. 212. " Act 14 March 1846, P. L. 124; ' Hinds V. .Scott, 11 Penn. St. 19. Purd. 470. 750 EXECUTION. And the registry in the prothonotary's office is original evidence.' An act erecting a new county having provided, that in case of a sheriff's sale made in the old county, of land situate in the new county, the deed should be entered in the docket of the latter county, within thirty days after the acknowledgment thereof, it was held, that the object of this pro- vision being to give notice to purchasers, no one but a bond fide purchaser, before the actual entry of the deed, could take advantage of the omis- sion to have it entered within thirty days.^ If the deed remain in the possession of the prothonotary, at the expiration of his term of office, he is required by statute,^ to deposit the same in the custody of his successor, to be delivered to the purchaser, upon payment of the recording fees.* § 1286. Aclinowledgment. The acknowledgment is prescribed by the act of 1836.° Until it has been made, the legal title does not pass ; the vendee cannot demand the rents, nor recover the possession.^ But it would seem not to be indispensably requisite in all cases; as, after a great lapse of time and no objection made by the debtor;'' generally speaking, however, the deed is not complete, and cannot be recorded or given in evidence, until it is acknowledged f and to give the purchaser the right to notify the tenant to remove, under the statute, the acknowl- edgment is essential.' But a sheriff's deed, defectively acknowledged, is evidence to show that a party holding under it is not a mere intruder, but is in under color of title.'" And a sheriff's deed for leasehold premises need not be acknowledged, nor is any deed necessary, for his return is evidence of the sale of a chattel, whether real or personal." § 1287. Place of aclinowledgment. The acknowledgment of a sheriff's deed can only be made in open court.'^ In general, it must be made in the court from which the writ issued,'^ or it passes no title.'* In the case of a testatum writ, the acknowledgment may be made in the court of common pleas of the county where the land is situate ;'° and the same rule applies where the lands are sold, under an execution issued out of the supreme court.'^ In either case, the proper practice is, for the sheriff to apply to the court, by petition, setting forth the fact of the sale under the process of the other court, and praying for leave to acknow- ledge, on a certain day, so far in advance, that he may be able to give ' Stonebreaker i>. Short, 8 Penn. St. 458. 155. And see act 14 March 1846. ' Hawk v. Stouch, 5 S. & R. 161. " Graham v. Smith, 25 Penn. St. « Ibid. Hall v. Beuner, 1 P. & W. 323. 402. ' Act 15 March 1862, P. L. 125 ; '« Wilson v. Howser, 12 Penn. St. Purd. 660. 109. * It had been decided, prior to this " Sowers v. Vie, 14 Penn. St. 99. act, that the prothonotary was not enti- Williams v. Downing, 18 Ibid. 60. tied to a fee for recording a sheriff's '^ Woods v. Lane, 2 S. & R. 55. Bel- deed. Gault V. Vinyard, Dist. Court, las u. McCarty, 10 Watts 30. Phila., 27 Deo. 1852. MS. " Dehaven's Appeal, 38 Penn. St. ^ Act of 1836,? 94. 373. " Bellas V. McCarty, 10 Watts 13. '* McCormick v. Meason, 1 S. & R. Scheerer v. Stanley, 2 Rawle 276. 92. ''^homas v. Connell, 5 Penn. St. 13. i' Act of 1836, § 96. ' Moorhead u. Pearce, 2 Yeates " Ibid. SHERIFFS DEEDS. 751 the notice required by the statute.^ This notice of the acknowledgment must appear to have been given to the parties to the execution, in the manner provided for service of a summons in a personal action.^ And the court to which application is made has power to examine into the regu- larity and validity of the sale, and to set it aside for cause." In case of a sale under a tentatum execution, it is irregular, to acknowledge the deed before the court of the county where the land lies, after a rule has been granted in the court from whence the process issued, to show cause why ' Weigand v. Matthews, Dist. Court, Phila., 27 Oot. 1849. Why application, made by the purchaser, for leave to have a sheriff's deed acknowledged to him, should not be rescinded. Per curiam. This is the case of an execu- tion issuing out of ihe supreme court. It is provided by the 96th .section of the act of 16th June 1836, relating to exe- cutions, that " in the case of executions from the supreme court, the acknow- ledgment shall be made by the officer who executed the deed, before the said court in banc, sitting within the re- spective district, or before one of the judges of the said court, sitting at nisi prius within the county in which such real estate may be, or before the court of common pleas, or the district court of the city and county in which such real estate may be." The 97th section provides, that "in case of acknowledg- ment made in any court, except that from which the execution issued," no- tice must be given to the parties to the execution, in the manner provided for the service of a writ of summons in a personal action. And then, by the 100th section, " where application shall have been made to any court to take the acknowledgment of a deed for real estate sold upon the process issued by any other court, the court to which such application shall be made, shall have power to.examine the regularity and validity of such sale, and set the same aside.' ' In strictness of practice, the proper time to move for a rule to set aside the sheriflF's sale, is, when the sheriff has returned the writ, and thus put the court officially in possession of the fact, that a sale for a certain price, to a certain individual, had taken place, and is in court, with deed ready to be acknowledged, and' proclamation there- upon made according to law. A j)rac- tioe, probably coeval with the adminis- tration of justice in the province of Pennsylvania, grounded upon the con- venience of suitors, has allowed such motions to be made, at any time after the sale and before the return of writ. It is plain, however, that in cases under the lOUth section, something must be done with the case of an execution issuing out of the supreme court, be- fore it can be settled what court shall have jurisdiction. It is impossible for this court to assume the power to in- quire into the regularity and validity of the sale, until it is first settled, that in this court the acknowledgment is to take place : as after we had set aside the sale, the deed might still be acknow- ledged in either of the other courts men- tioned in the 96th section. It is plain, from reason, and the express words of 100th section, that " application to the court to take the acknowledgment," is a condition precedent to the vesting of any power in the court " other than that from which the execution issued." The only question is, by whom the ap- plication is to be made, and evidently it must be by the sheriff; he is the officer who executes the deed, and by whom it is to be acknowledged, and he alone has a right to elect in what court to make the acknowledgment. The proper practice, in these cases, there- fore, is, for the sheriff to apply to the court, by petition, informing them of the fact of the sale under the execu- tion of the supreme court, and pray- ing for leave to acknowledge, on a cer- tain day, so far in advance, that he may be able to " give notice to the par- ties to the execution in the manner provided for the service of a writ of summons in a personal action." In this ease, the application was made by the purchaser, and was, therefore, irregular. Rule absolute. ' Actof 1836. J97. ' Ibid., § 100.' 752 EXECUTION. the levy and subsequent proceedings should not be set aside; if such rule be made absolute, and the sale set aside, the purchaser takes no title under the sheriff's deed.' After an acknowledgment in a court other than the one from which the process issued, the sheriff must imme- diately return it into the latter court.^ § 1288. Sy tvhom made. In general, the acknowledgment is to be made by the sheriff who sold the land. An ex-sheriff may acknowledge a deed executed by him, whilst in office;^ and he may re-acknowledge a deed defectively acknowledged.* But, if the sheriff, after having sold the land, go out of office, before executing and acknowledging a deed, it is provided by statute, that the court in which the judgment was obtained, shall have power, upon the petition of the plaintiff, or of the purchaser, setting forth the facts of the case, by an order, to be entered upon the record, to direct the sheriff for the time being to execute a deed to the purchaser .° And it is thereby the duty of the officer to whom such order is directed, upon payment of the purchase-money and costs, to the former sheriff, to execute, deliver and acknowledge a deed to the purchaser of the property.^ And the courts may exercise the like power, in case of the defective or informal execution of a sheriff's deed f so, if the return to the writ be defective or informal, the court may order it to be amended, and the sheriff for the time being to execute a deed for the land.^ The statute requires the order to a sheriff to execute a deed for land, sold by his predecessor, to be entered upon the record ; prior to this statute, such order must have been proved to have been made;^ its existence could not be presumed from the fact of the acknow- ledgment.'" The court will not make such order, after a lapse of twenty years from the sale — there being intermediate purchasers for value, who had no notice." § 1289. Time of acknowledgment. As the sheriff is not bound to return the writ, before the return-day, and cannot be ruled to do so, and as exceptions to sheriffs' sales cannot be made before, the acknowledg- ment cannot be taken prior to the return-day ; and a premature acknow- ledgment is a nullity.'^ In Philadelphia, it is expressly provided by rule of court, th^t before any acknowledgment of a sheriff's deed shall be received or taken, the process under which the sale was made shall be duly returned and filed with the prothonotary." It must be made at a time appointed by the court for the purpose, or after notice previously affixed in the prothonotary's office, specifying the names of the parties to the execution, the name of the purchaser, and the time at which the acknowledgment is intended to be made, at least one week after the ' McKeown v. Craig, 20 Penn. St. Purd. 659. 170. ' 9 Woods V. Lane, 2 S. & R. 53. ■' Act of 1836, § 99. '» Seechrist v. Baskin, 7 W. & S. ' Woods V. Lane, 2 S. & R. 55. 403. * Adams v. Thomas, 6 Binn. 254. " Richards v. Dutot, 7 Penu. St. I* Act of 1836, §102. 431. ' Ibid., i 103. " Murphy „, McCleary, 3 Yeates ' Ibid., ? 104. 405. Glancey v. Jones, 4 Ibid. 212. « Act 21 April 1846, P. L. 430. '» Rulexxxvi. ?116. sheriffs' deeds. 753 return-day.' And where it is made in another court than that from which the execution issued, it must also appear that notice, in the man- ner piovided for the service of the summons in personal actions, has been given to the parties to the writ;^ but when in another court, it may be made before the return-day.^ In Philadelphia, the first Mon- days of each term, and the Saturdays of each week, are appointed, by rule of court, for the acknowledgment of sheriffs' deeds, by public pro- clamation in open court ; but they may be acknowledged at such other times as the court shall direct by special order.* §1290. Mode of acknowledgment. It must be made upon public proclamation in open court,^ at a time appointed by the court for the purpose, or notice must have been previously affixed in the office of the prothonotary, specifying the names of the parties and of the purchaser, and the time at which the acknowledgment is intended to be made, at least one week after the return-day of the execution ; and in case of acknowledgment made in another court than the one from which the execution issued, notice must appear to have been given to the parties in the execution, in the manner provided for the service of the summons in personal actions.* The provisions of the act upon this subject are directory, and after acknowledgment and delivery of the deed to the purchaser, it will be presumed that they have been complied with. At any rate, one who was a party to the sale, and confirmed it, by taking his share of the proceeds out of court, cannot allege that the deed was defectively acknowledged and inoperative.^ § 1291. How proved. It is a judicial act of the court, which must appear of record, and cannot be proved by parol evidence, in a collat- eral proceeding, whether by witnesses present in court at the time of the acknowledgment, or by witnesses who saw the entry of the acknowledg- ment on the deed, where no registry has been made of it in court.^ The certificate of the prothonotary to the acknowledgment of a deed made prior to the 4th April 1844, though not under seal of office, is sufficient evidence of the acknowledgment, although no other record was made at the time f but this will not affect a honci fide holder or purchaser, with- out notice, actual or constructive, of the execution of the sheriff's deed.^" ' Act of 1836, 1 97. that no entry of the acknowledgment 2 Ibid. had ever been made on the record. A 3 Ibid., § 98. sheriffs deed, with a certificate in- * Rule xxxvi. § 117. dorsed thereon, under the hand and ' Woods V. Lane, 2 S. & R. 55. ofScial seal of the prothonotary, that Bellas V. McCarty, 10 Watta 13. Pat- it was duly acknowledged in open terson v. Stewart, Ibid. 472. Eobb v. court, and entered of record, is primary Ankeny, 4 W. & S. 129. evidence, without showing the record. « Act 'of 1836, i 97. Foust v. Ross, 1 W. & S. 501. s. p. ' Stroble v. Smith, 8 Watts 280. Robb v. Ankeny, 4 Ibid. 128. St Bartholomew's Church v. Wood, " Act 4 April 1844, P. L. 188 ; Purd. 80 Penn. St. 219. 660. 8 Bellas V. McCarty, 10 Watts 13. "> Ibid. And see Wilson v. How- Patterson V. Stewart, Ibid. 472. In ser, 12 Penn. St. 116. The act 5 both these cases, the sheriffs' deeds April 1842, §12, P. L. 244, is iden- were lost, and it appeared affirmatively, tical with the act of 1844, omitting VOL. I. — 48 754 EXECUTION. In Allegheny county, all sheriff's deeds to bond fide purchasers, made and acknowledged in open court, prior to 1848, are made valid, notwithstand- ing informalities in setting forth the particulars of such acknowledgment, or omission of the prothonotary duly to certify the same according to law :^ this provision has since been extended to Erie county.^ § 1292. Effect of acknowledgment. Generally speaking, the deed is not complete, and cannot be recorded or given in evidence, until it is acknowledged ;' and to give the purchaser the right to notify the tenant to remove, under the statute, or to grant a lease, the acknowledgment is essential f and an acknowledgment is necessary to enable the purchaser to maintain ejectment.' But, when acknowledged, it relates back to the time of its execution, and the legal title vests in the grantee from that time, and the equitable title from the time of sale, if he paid his money according to the terms of sale.' By the purchase, the sheriff's vendee acquires an interest in the land, although the deed may not have been acknowledged, which descends to his heirs, and may be bound by a judgment or taken in execution.^ The acknowledgment and registry of the deed in the prothonotary's oflBce, are equivalent to recording it in the office of the recorder of deeds, as notice to a subsequent purchaser from the defendant in the execution.' The acknowledgment is not con- clusive evidence of delivery, but in connection with the fact of possession by the vendee, it is strong proof of it.' § 1293. The most important effect of the acknowledgment is to cure all defects of the process or its execution, which the court has power to act upon ;'" — all mere irregularities, however gross," such as, the want of an appraisement ;^^ or erroneous action on the part of the jury ;^^ or omis- sion to give notice of the inquisition ;" or that the last inquisition was held by the successor in office of the sheriff who held the first, or that the second inquisition was held after the return of the fi. fa. ;'' or the issuing of the fi. fa. and vend. exp. on the same day and to the same term ;'' or that the return to the fi. fa. did not show that the defendant had no the words '' although not under seal ' Hartman v. Stahl, 2 P. & W. 231. of office." '» Thompson v. Phillips, Bald. 246. 1 Act 10 April 1848, § 10, P. L. 450; It eonfirms a voidable, but not a void Purd. 660. sale. Cash v. Tozer, 1 W. & S. 519. ^ Act 11 March 1853, §14, P. L. Shields w. Miltenberger, 14 Penn. St. 167. 81. It cures irregularities, but- not ' Storoh V. Carr, 28 Penn. St. 135. want of authority. St. Bartholomew's * Hawk V. Stouch, 5 S. & R. 161. Church v. Wood, 61 Penn. St. 103. Hall V. Benner, 1 P. & W. 402. Temple v. Miller, 1 Luz. L. Reg. 717. * Storoh u. Carr, ut supra. Case of " Blair v. Greenway, 1 Bro. 219. Eleventh Street. Q. S. Phila., April McFee v. Harris, 25 Penn. St. 102. 1823. MS. ^■' Crowell v. Meconkey, 5 Penn. St. « Hoyt 11. Koons, 19 Penn. St. 277. 168. "Wallace v. Lawrence, 1 W. C. C. 503. " Murphy v. McCleary, 3 Yeates ' Bellas V. MoCarty, 10 Watts 21. 405. Morrison o. Wurtz, 7 Ibid. 437. Ste- " Meanor v. Hamilton, 27 Penn. St. phens's Appeal, 8 W. &S. 188. 137. * Naglee v. Albright, 4 Whart. 291. " Elliott v. McGowan, 22 Penn. St. McCormick v. Meason, 1 S. & R. 96. 198. Feger v. Keefer, 6 Watts 298. '« Hadden v. Clark, 2 Gr. 107. sheriffs' deeds. 755 personal estate ;* or the absence of a sd. fa. quare ex. non ;^ or misde- scription of the property in the advertisements and inadequacy of price.* So, where the deed recited the sale to have been made under a vend, exp., the acknowledgment cures the omission to return the vend. exp. ;* so, where land extended under a fi. fa. is sold under an alias Ji. fa., issued, without leave, on the same judgment, the acknowledgment cures the irregularity ;^ so, the acknowledgment cures an omission, in proceed- ings to sell land lying in two counties, to file the docket-entry and pro- ceedings, and to enter a copy of the proceedings subsequent to the inquisition in the adjoining county.^ And after seventeen years from the acknowledgment, the court will presume that the certificate of a justice, that execution had been issued before him and returned "nulla bona," was produced to the prothonotary, before he issued a fi. fa. on the transcript, although such certificate be neither on file nor noted on the docket, nor proved to have ever been in existence.^ Upon the trial of an ejectment by the sherifi''s vendee, the court will not inquire into the formality of the proceedings on which the sale was founded f if the sheriff has behaved improperly, the remedy of the party injured, after the acknowledgment, is confined to the sheriif.' § 1294. By returning the sale and acknowledging the deed, the sheriff becomes fixed for the amount bid, and the title to the land is vested in the purchaser.'^" But the acknowledgment is not such a res adjudicata as precludes an inquiry into the legality of the proceedings, by which the sale was made;" the absence of authority, or the presence of fraud, utterly frustrates the operation of a sheriff's sale, as a means of trans- mission of title, and may be insisted on, after acknowledgment.'^ The claimant under a sheriff's deed, must show the authority upon which the sale was made ; it is not sufficient, to show authority to sell in the pre- decessor of the sheriff who conveys, unless accompanied by the record of a special order of the court, founded on the statute authorizing the sheriff's successor to convey ; the existence of such an order is not to be inferred, from the acknowledgment of the deed by the succeeding sheriff.'* Where the sheriff returned the property unsold, on account of the refusal of purchaser to pay, a deed to such purchaser, acknowledged within less than a year, and stating the payment of the consideration, being the amount of the bid, though not having a separate receipt for the money, • CooDer V. Galbraith, 3 W. C. C. ' Laughlin v. Bunting, 1 Am. L. J. 546 271. 2 'Vastine v. Fury, 2 S. & R. 430. ^ Young v. Taylor, 2 Binn. 227. Hinds V Scott, 11 Penn. St. 27. ' McCuUooh's Case, 1 Yeates 40. ' Murphy «. McCleary, 3 Yeates 405. " Hartman v. Stahl, 2 P. & W. 223. Mott V Clark 9 Penn. St. 400. Chad- " Dawson v. Morris, 4 Yeates 341. wick V. Patterson, 2 Phila. 275. Cash w. Tozer, 1 W. & S. 529. Brad- * Gibson v. Winslow, 38 Penn. St. dee v. Brownfield, 2 Ibid. 271. 49 Hinds v. Scott, 1 1 Ibid. 26. '' Shields v. Miltenberger, 14 Penn. s Wilson V Houser, 12 Penn. St. St. 78. St. Bartholomew's Church v. J09 Wood, 61 Ibid. 96. Elliott V. McGowan, 22 Penn. St. " Seechrist v. Baskin, 7 "W. & S. 198. 403. 756 EXECUTION. is primd facie evidence of the payment of the purchase-money, and of a valid title to the land.' And a deed acknowledged after the commence- ment of an ejectment, is evidence for the defendant, when the sale was prior to the action.^ § 1295. Opposing the acknowledgment. Hence, it follows, that irregularities in executing the process must be taken advantage of, before the sheriff's deed is acknowledged, which takes place, as a matter of course, at the term to which the process was returnable, unless good ground be shown against it. If the sale has been made under void or irregular process, the court will not permit the sheriff to acknowledge the deed.^ And, in general, where cause of complaint exists, the party applies to the court, before the deed is acknowledged, and the acknow- ledgment is then suspended until the matter is decided.* A writ issued several years after judgment, without a previous scire fa. quare ex. non, is voidable but not void, the sheriff is authorized to sell under it, and the objection cannot be taken, after acknowledgment.^ The parties to the execution may oppose the acknowledgment f so may judgment- creditors of the defendant.' The confirming or setting aside the sale, and taking the acknowledgment, are matters entirely within the discretion of the court below, and cannot be reviewed by the supreme court.* XIV. Purcliase-inoney and distribution. § 1296. Payment of purchase-money. The sheriff is not bound to acknowledge Bis deed, before he demands the money, for it may be, that the purchaser will not pay, and in that case, the sheriff has a right to put up the land again to sale, or to return that it remains unsold. The purchaser runs no risk in paying the money and accepting the deed before its acknowledgment, because the court will compel the sheriff to make the acknowledgment.' In a suit, therefore, against the purchaser, for the purchase-money, it is not necessary to aver a tender of a deed acknowledged ; and it is said, that unless other conditions are specified, it is a cash sale, and the delivery of the deed is an act subsequent to the payment of the money.'" But this has since been qualified, and it now seems, that in ordinary cases, there is no reason to justify a sheriff in demanding the money, before he can give a title, or the purchaser can get possession ; unless a bidder be notoriously insolvent, the sheriff cannot make a return, long before the return-day, that the purchaser has not paid, and therefore unsold ; and when he does so, and has made no demand, and has no evidence to justify his course, the bidder is not liable for the difference in price at a second sale." But, after the return- » Foster v. Gray, 22 Penn. St. 9. Watson v. Willard, 9 Penn. St. 95. ^ Smith V. Grim, 26 Penn. St. 95. Shields v. Kuhn, supra, i 1266 n. ' Young V. Taylor, 2 Binn. 218. « Sloan's Case, 8 Watts 194. * Woods V. Lane, 2 S. & R. 55. » Scott v. Greenough, 7 S. & R 199 " Vastine v. Fury, 2 S. & R. 430. " Negley v. Stewart, 10 S. & R. « See Act of 1836, I 97. 207. ' Cash B. Tozer, 1 W. & S. 528. See " Holdship v. Doran, 2 P. & W. 17. PXIRCHASE-MONEY. 757 day, the sheriff may maintain an action against the bidder, for the amount of his bid, without having first tendered him a deed.' § 1297. The purchaser, after accepting a deed acknowledged, and keeping possession of it without objection, cannot resist payment of the purchase-money, on the ground of a defect in the deed.^ Neither can he object to receive the deed, and refuse payment of the purchase-money, on the ground of a defect of title, where the sale was fairly made ; he buys on his own knowledge and judgment, and the maxim caveat emptor applies to judicial sales ;^ especially, if he had direct notice of the adverse title, at the time of the sheriff's sale.* Lands are frequently sold greatly below their value, because the usual understanding is, that the purchaser takes his chance of the title.^ So, the existence of incum- brances, of which the purchaser had no notice at the sale, and even a mistaken assertion by the sheriff that there were no incumbrances, will not discharge the purchaser from his liability ;' this is, however, not to be understood, as preventing the purchaser from applying, in time, to have the sale set aside, under such circumstances, but only that, if he do not take this course, he cannot make the objection afterwards.' § 1298. Interest. Where the purchaser, a judgment-creditor of the defendant, who was ultimately decreed to be entitled to the proceeds, gave his bond to the sheriff for the purchase-money, the sheriff was held not entitled to recover interest ;* and where the bond of a purchaser has been deposited in court, by consent of creditors, in lieu of the purchase- money, as cash, it does not bear interest.' The sheriff is not bound for interest on the price received by him, until after demand made ; and a rule on him to pay the money into court, where there was a dispute among the execution-creditors about their several rights to it, and a delay for several years thereafter, during which the dispute existed, can- not he regarded as equivalent to a demand, even though he do not account for the disposition of the money in the mean time.'" But if it be agreed, that the sheriff shall deposit a sum of money in bank, pending a controversy as to the right thereto, if he take it out again, he is liable for interest to the successful party." § 1299. Purchase by a Hen-creditor. Where a lien-creditor be- comes the purchaser, instead of paying the whole amount of his bid in money, he is permitted to deliver to the sheriff his receipt for so much as he appears from the record to be entitled to receive.'^ This only applies 1 Hinds ». Scott, 11 Penn. St. 27. 291. And see Stewart v. Stocker, 13 S. « Scott V. Greenough, 7 S. & R. 199. & R. 199. ' Wood V. Levis, 14 Penn. St. 9. " Commonwealth v. Crevor, 3 Binn. Allen V. Gault, 27 Ibid. 473. 121. * Friedly v. Scheetz, 9 S. & R. 156. " Act 20 April 1846, P. L. 411 ; ' Smith V. Painter, 5 S. & R. 225. Purd. 655. For form of receipt, see ' Wood V. Levis, ut supra. Smith's Forms 402. But the sheriff ' See supra, g 1266. cannot discharge the purchaser, by ex- 8 Gardners. Klinefelter, 9 W. & S. changing receipts with the attorney, for 59. a sum of money in his hands, belong- * Oliphant v. Frost, 9 Penn. St. 308. ing to another client. Crawford v. •» Hantz V. York Bank, 21 Penn. St. Young, 26 Pitts. L. J. 33. 758 EXECUTION. to persons having a lien on the land, as distinguished from a right in or title to the land itself ;'^ but the sheriff may, at his own risk, accept the receipt of an owner, who has purchased at the sale, for the bal- ance remaining after the discharge of all liens.^ "Where, however, a mortgage is the first lien, and the land sold under a junior judgment, is purchased by the mortgagee, the latter has no right to a deed from the sheriff, on crediting the amount of his bid in satisfaction of the mort- gage, where there was no stipulation in the conditions of sale, that the mortgage should be discharged thereby, nor any arrangement to that effect with the sheriff.^ § 1300. The purchaser tendering such receipt to the sheriff, must pro- duce a duly certified statement from the proper records, under the hand and official seal of the proper officer, showing that he is a lien-creditor, entitled to receive some part of the proceeds of the sale, and he must, at all events, pay a sufficient amount of money to cover all legal costs which may be payable out of the proceeds.* The sheriff, when he has accepted such a receipt, must state the fact in his return, and attach thereto a list of the liens upon the property sold ; and such return must be read in open court, on some day during the term, to be fixed by the order of court ; and if the purchaser's right to the money be questioned by any person interested, the court must appoint an auditor, who, after due notice to parties interested, given in such manner as the court may direct, shall make a report, to be approved by the court, distributing the proceeds of the sale, with the facts and reasons upon which such dis- tribution is made.* If the auditor report the exceptions to be unfounded, the exceptant may be made to pay the costs of the audit, unless he sat- isfy the court that he had probable cause to object to the return.* § 1301. Or the court may direct an issue, to determine the validity of the purchaser's lien, pending which all proceedings will be stayed ; and if it be determined that the purchaser is not entitled to receive the money, the court must set aside the sale, and direct the land to be resold, unless, within ten days, the money be paid to the sheriff; and in case of a second sale, the former purchaser will be liable for any deficiency. But before an issue will be awarded, the applicant must make affidavit that there are material facts in dispute, and must set forth their nature and character, upon which the court will determine whether the issue should be granted, subject to a writ of error or an appeal by the appli- cant, if it be refused, as in other cases.' § 1302. The right of the purchaser can only be contested by lien- creditors ; they only are " persons interested," within the meaning of the ' Gaults). Tilford, 5 Phila. 6. Brinkle « Larimer's Appeal, 22 Penn. St. 41. r. Wagner, Ibid. 452. The order of court, to credit the pur- ^ Ibid. chaser with the amount of his judf;- " Crawford v. Boyer, 14 Penn. St. ment, is not conclusive evidence of 380. its fairness. Martin «. Gernandt, 19 ♦ Act of 1846, § I. Ibid. 124. ' Ibid., g 2. For form of return, see ' Act of 1846, ? 2. For form of ap- Smith's Forms 403. plication, see Smith's Forms 403. PURCHASE BY LIEN-CEEDITOE. 759 act ; hence, it is not error in the court, to refuse to grant an issue, or appoint an auditor, at the instance of the defendant, who seeks to set up a breach of agreement by the original vendor of the property (the sheriff's sale haying been under a judgment for purchase-money, assigned to the plaintiff), in order to share in the proceeds, to the extent of his damages.^ Nor is the heir-at-law of a mortgagor, who died before the sale, entitled to an issue to try the validity of the mortgage.^ § 1303. If the exceptants have complied with the terms of the law, by setting out in their affidavit that material facts are in dispute, and stating their nature and character, the court has no power to refuse an issue.^ But it is not sufficient, to charge that there are disputed facts, without stating what they are ; the affiant should, at least, to the best of his knowledge and belief, allege the existence of certain facts material to the question, and that the truth of these facts is disputed by other per- sons, or that certain facts are alleged by the other party, which, to th6 best of his knowledge and belief, do not exist, and are disputed by him> The provision of the act requiring an affidavit to accompany the demand for an issue is held to be general, and not confined to the single case of lien-creditors becoming purchasers ;^ it will, therefore, be discussed hereafter, in connection with the practice in feigned issues in the dis- tribution of the proceeds of sheriff's sales.^ Upon granting the issue, the court, as soon as the money has been paid into court, may, at their discretion, upon the application of parties appearing from the record to be entitled to the fund, order the money to be invested pendente lite, subject to their decree, in United States debt, or other sufficient securityJ § 1304. The rules of court provide, that a return of a sheriff's sale to a lien-creditor, pursuant to the act of 1846, shall be read in open court, on the Saturday next following the day on which it is made.' That any person interested in the proceeds of sale, may file exceptions to the right of the purchaser to any part thereof; but such exceptions must be founded upon material facts in dispute, the nature and character of which must be set forth, and verified by affidavit, or upon some matter of law, appearing of record.^ Such exceptions must be filed, on or before the Wednesday next following the day on which the return has been read ;'" and the exceptant may enter a rule of course, in the prothono- tary's office, to show cause why the sale should not be set aside, return- able on the Saturday following ; of which he must forthwith give notice to the purchaser, or his attorney." On the return of the rule, the court will appoint an auditor to report a distribution of the proceeds, or will direct 'Shaw's Appeal, 46 Penn. St. « SeetV«i 2 134^- 407 ' Act of 1846, I 3. And see act 25 2 Housekeeper's Appeal, 49 Penn. May 1878, P. L. 156 ; Purd. 2153. St. 141 ; s. c; 5 Phila. 452. " Rule xxxvi. ? 118, pi. 1. See Ex ' Linnincott v. Lippincott, 1 Phila. parte Bastian, 8 Luz. L. Reg. 1 10. 396 ^^ « Rule xxxvi. § 118, pi. 2. 'Brinton v. Perry, 1 Phila. 436. " Ibid., pi. 3. » Biddle v. King, 1 Phila. 394. " Ibid., pi. 4. 760 EXECUTION. an issue to determine the validity of the lien of the purchaser, if the case require it ; and thereupon stay all proceedings under the rule, until the report of the auditor shall have been confirmed, or the issue determined ; but if the exceptions be insufficient, the court will dismiss them and dis- charge the rule.' The question whether the case should be sent, in the first instance, to an auditor or to a jury, must be decided by the court, subject to the right of the parties, subsequently, on cause shown, to take the whole matter from the auditor, and bring it before a jury.^ The issue is a matter of right, in a proper case, and the court has no power to strike it off, after one trial and a failure of the jury to agree; if of opinion that there is no sufficient evidence of a fraud alleged, they should so instruct the jury, in order that the ruling may be reviewed on error.^ § 1305. The auditor's report is subject to the general rules relating to auditors' reports distributing the proceeds of sherifi"'s sales ; and the party in whose favor the verdict is rendered in an issue, may enter judgment thereon, according to the rules applicable to verdicts in other cases.'' If it appear by the report of the auditor, or the verdict of a jury, that the purchaser is not entitled to the proceeds, or a portion of them, the rule becomes absolute, as of course, unless within ten days after the approval of the auditor's report, or after the party prevailing in the issue is entitled to enter judgment, the purchaser pay to the sheriff the whole of the purchase-money, or so much of it as it is adjudged he is not entitled to retain.^ If, however, no exceptions be filed, or the same be dismissed, the sheriff may acknowledge and deliver the deed, on the Saturday after his return has been read, or on any subsequent day appointed for acknowledging sheriff's deeds, unless a motion be pending to set aside the sale for irregularity, or other cause.^ § 1306. Distribution by Hie sheriff. The sheriff may, if he will, distribute the proceeds himself, but this is on his own responsibility f his act is unofficial and informal, and in so doing, he can neither be protected nor prejudiced by his office.' It is said, that on account of the delay and expense attending the payment of the money into court, it ought not to be done, where the officer sees his way clear ; but where ignorance or doubt exists, or controversy is threatened, his safety lies in that course.' On a sale under a junior judgment, the plaintiff in a prior judgment is not bound to come in and take the money; and if the sheriff distribute the proceeds, without paying his lien, and the money go in ease of the defendant, by paying his other debts, the elder judg- ment will still be good against the defendant, though its lien is dis- charged.'" The only evidence of judgment-liens the sheriff is bound to regard, in the absence of all other proof, is the judgment-docket; and if • Rule xxxvi. 2118, pi. 5. ' Mather c. MoMichael, 13 Penn. ' White V. Lucas, 4 Phila. 30. St. 303. Wortman v. CoDyngham, ' Dormer v. Brown, 72 Penn. St. 404. Pet. C. C. 241. ' Rule xxxvi. ? 118. pi. 6. « McDonald v. Todd, 1 Gr. 17. ' Ibid., pi. 7. ' Mather v. MoMichael, td supra. « Ibid., pi. 8. '» Strorble i'. Cleaver, 1 Am. L. J. 74. DISTEIBUTION. 761 a prior judgment, entered only on the appearance-docket, is thus over- looked by the prothonotary, in making his search, the creditor may look to him for the loss sustained by his omission to enter it on the judgment- docket.' If the plaintiff in the execution, by falsely representing to the sheriff that his judgment is the first lien, procure the improper payment of the money to himself, it may be recovered back ; and, as his attorney is his agent, fraud by him affects the principal.^ § 1307. Where arrears of ground-rent were payable out of the pro- ceeds, but the sheriff, neglecting to pay them, distributed the funds to subsequent liens, he is personally liable for the amount, and cannot relieve himself by showing that one of the conditions of sale was, that, unless the bill for such arrears were presented, before he parted with the money, they were to be paid by the purchaser ; and in case he undertake the distribution, he is bound, if it be possible, to give direct notice to the ground-landlord.^ Where he does not run any risk of mispayment, he has no right to impose conditions, nor take a promise to refund from a claimant to whom he pays part of the proceeds, to which such person appears from the record to be entitled, although it be alleged that the judgment so paid is defective from want of consideration — proceedings to establish that fact not having been instituted by the junior judgment-creditors.^ So, where he has taken a refunding receipt from a claimant, and the other creditors afterwards recover the money from the sheriff, on the ground that the judgment paid was not a lien on the land sold, in an action on the receipt, it is a good defence, that the sheriff had purchased other land of the execution-defendant, on which the judgment in question was clearly a lien, and had agreed to pay it off, as part of the consideration ; in such suit, the record of the former recovery against the sheriff is not conclusive against the defend- ant, as to the rights of the other creditors, where he was not notified to appear and take defence.' § 1308. In the county of Allegheny, upon a sale of real estate under execution, the sheriff may report to the court a schedule of distribution, according to the liens certified to him by the proper oflieers, which schedule and list of liens are to be attached to the return ; and the return is to be read in open court, on some day in term, to be fixed by order of the court, and if the distribution be not questioned or disputed, within such reasonable time as may be fixed by the court, it becomes final and conclusive, and the sheriff naust proceed to pay out the proceeds in accordance therewith ; but if exception be made by any person interested, within such time, the court will proceed to hear and determine the same in the usual manner." § 1309. Payment of money into court. From what has just been stated, it appears, that in all cases where there are conflicting claims to 1 Mann's Appeal, 1 Penn. St. 24. 303. And see Bear v. Patterson, 3 W. & S. * Lewis v. Rogers, 16 Penn. St. 18. 233. Mehaffy's Appeal, 7 Ibid. 201. ' Morrison v. Mullin, 34 Penn. St. 12. •' McDonald v. Todd, 1 Gr. 17. ' Act 10 April 1862, P. L. 364; ' Mather v. MoMichael, 13 Penn. St. Purd. 657. 762 EXECUTION. the fund, or where the sheriff is not perfectly satisfied that no diffi- culty can arise as to the person entitled to receive it, his only safe course is, to bring it into court pursuant to the command of his writ ; if he do this, his act is official, and puts an end to his responsibility.' Any one having a claim against the fund may, in general, rule the sheriff to pay the money into court ; and this course is also pursued, where there is no dispute as to the right, but the sheriff refuses or delays to pay it over to the plaintiff; when it is in court, an order will be made to the prothono- tary to pay it over to the plaintiff, if no objection exist. The practice is, not to order the money into court, except upon application of a lien- creditor, who shows some reasonable ground to dispute the right of the execution-plaintiff.^ The money ought to be actually paid into court; though by a recent statute,^ the court may proceed to make a decree of distribution, without requiring it to be done ; but, as a general rule, they will not exercise such jurisdiction, where the fund arises from a sale of real estate.'' § 1310. Where a party recovers a judgment in his own name, and the money is paid to him, another person claiming a portion of the sum recovered, cannot have his rights tried, by moving the court to direct such portion to be paid to him, and that the judgment be marked to his use pro tanto ; in such case, the agreement of the parties to consider the money in court, for the purpose of the motion, would not confer jurisdic- tion upon the court, to decide the matter in that way, nor would the fact of the money being actually in court, alter the case ; such case bears no analogy to a proceeding to distribute the proceeds of a sheriff's sale; in the latter case, the evidence comes up with the record, and an appeal is expressly given by act of assembly ; in the former, the facts, whether proved or admitted, are not part of the record, and no appeal lies from the order of the court allowing or refusing the motion.^ § 1311. Where a sheriff dies, after having deposited in bank, to his account as sheriff, the proceeds of an execution, his successor in office is the proper person to demand and receive the money from the bank, and the rule should be on the new sheriff, to pay the money into court or to the plaintiff; the bank, being an outside party, is not subject to the summary jurisdiction of the court, and a rule on it to pay the money into court, is null and void for want of jurisdiction, and might be restrained by injunction, reversed on appeal, or disregarded as inca- pable of execution.' So, a prothonotary who has received money paid into court, and afterwards gone out of office, is beyond the summary jurisdiction of the court, and a rule upon him, in reference to such money, is null and void, and no writ of error lies thereon.' But the sum- mary jurisdiction of the court in regard to former sheriffi and coroners 1 McDonald v. Todd, 1 Gr. 17. ' Hudson's Appeal, 27 Penn. St. ^ Stinsouu. MoEwen, sitpra, §1162n. 46. » Act 28 June 1871, P. L. 1378 ; « Allegheny Bank's Appeal, 48 Purd. 658. Penn. St. 328. ' Ex parte Poukon, 33 Leg. Int. ' Aurentz v. Porter, 48 Penn. Sb 32. 335. DISCHAEGE OF INCUMBRANCES. 763 may be exercised, if application be made for the purpose, witbin two years after the termination of their offices respectively.^ § 1312. Distribution by the court. When theJimd is in court, it will be distributed among the lien-creditors entitled to it, according to the priority in date of their respective liens ; except where a preference is given by act of assembly to claims of a particular kind. Before pro- ceeding to explain the manner in which distribution is made, we shall briefly discuss the right of claimants to participate in the fund. It is a rule, without exception, that the fund in court being merely a substitute for that which is sold, a valid incumbrance, which is discharged by the sale, must share in the proceeds so far as they will reach ; but the con- verse of this rule is not invariably true, for, as we shall see, there are certain preferred claims which may come upon the proceeds, but which remain a lien upon the land, in the hands of the purchaser, if the fund be not sufficient to pay them. It is necessary, then, to ascertain what liens are, and what are not, discharged by a sheriif's sale of land. § 1313. Discharge of incumbrances. It is a familiar principle, that a judicial sale discharges liens, but not estates:^ thus, a sheriff's sale of a lot of ground does not affect a rent-charge issuing out of it ; they are distinct estates.^ So, a widow's statutory dower is an interest in the land, not merely a lien;^ and a widow's interest in her husband's real estate, charged upon the part accepted by one of the heirs, is not divested by a sale under a subsequent incumbrance;" otherwise, if the widow die, between the levy and the sale.* So also, an easement in the land is not extinguished by a sheriff's sale of the servient tenement, though, at one time, the two properties were vested in the same owner, if it be apparent and continuous.^ And a purchaser at sheriff's sale of the interest of a vendee by articles, takes subject to the vendor's lien for unpaid purchase-money* — the vendor's lien, in such case, results from the retention of the legal title ;' and, on the same principle, where land is devised, at a valuation or price to be paid by the devisee, the title passes subject to the charge or lien for the price, if the devise be accepted, and it is not affected by a sheriff's sale of the devisee's interest in the land." § 1314. Another rule is, that a judicial sale will not discharge an incumbrance, where the charge stands in the title, and can be discharged , 1 Act 16 June 1836, §28, P. L. 793; dever w. Baker, 13 Penn. St. 121. It Purd 273. i^ otherwise as to the arrears due at ^ ■Western Pennsylvania Eailroad the time of sale, if there be no inter- Co. V. Johnston, 59 Penn. St. 294. vening fixed incumbrance. Dickinson * Irwin V. Bank of the United States, o. Beyer, 35 Leg. Int. 483. 1 Penn St. 349. Panooast v. Haga- « Riddle's Appeal, 37 Penn. St. 177. man 4 Le". & Ins. Rep. 75. But the ' Kieffer v. Imhoff, 26 Penn. St. arrears are'discharged, if there he no in- 438. Worne v. Marsh, 6 Phila. 33. tervening fixed incumbrance. Hacker Church v. Vonneida, Ibid. 557. V Cozent, 6 W. N. C. 468. ' Bradley v. O'Donnell, 32 Penn. St. ' ♦ Schall's Appeal, 40 Penn. St. 170. 279. Zeigler's Appeal, 69 Ibid. 471. Gourley v. Kinley, 66 Ibid. 270. » Zerby v. Zerby, 9 Watts 234. <• Fisher v. Kean, 1 Watts 259. Kline v. Lewis, 1 Ash. 31. Mentzer v. Menor, 8 Ibid. 296. Van- '" Hart v. Homiller, 23 Penn. St. 39. 764 EXECUTION. only by the court undertaking to administer the fund, by investing it in order to fulfil the purposes of the charge.'^ Thus, where a father con- veyed land to his son, on condition that a bond should be given for part of the purchase-money, the interest to be paid to the grantor and his wife, and the survivor of them, during life, and the premises were after- wards sold on a judgment against the grantee, it was held, that the purchaser took subject to the charge contained in the deed.^ So, a sale under execution issued upon a judgment obtained against an heir, does not divest the lien of his ancestor's debts f and so, also, where lands are devised, charged with the payment of debts, a 8herifl''s sale for a debt of the devisee passes the title, subject to the payment of the testa- tor's debts.^ A sheriif's sale does not discharge a fixed lien, created by deed or will, in the nature of a testamentary provision for a wife or children, the value of which is incapable of being definitely ascertained, or which is expressly created to run with the land f nor does it dis- charge an incumbrance created by contract with a third party, for the benefit of the latter's estate.* So, a recognisance to secure a widow's interest is a fixed lien, not discharged by a sheriff's sale;' neither does a sheriff's sale discharge the commonwealth's claim for unpaid purchase- money f nor a mortgage given to the commonwealth for the same ;' nor a mortgage to the trustees of the loan-office.'" But between private parties, an equitable lien for unpaid purchase-money, though charged upon the property by deed, is discharged by a judicial sale.'' § 1315. From the rule discussed in the preceding section, results another, of great practical importance ; namely, that a judicial sale, subject to a fixed lien, is necessarily subject also to all prior incum- brances.'^ Thus, where a testator devises land, incumbered by a judg- ment, subject to the maintenance of his widow, on a sheriff's sale of the land upon a judgment against the devisee (inasmuch as the charge in favor of the widow is not divested), the purchaser takes subject to the lien of the judgment against the testator." And it makes no difference, that there are arrears due on the prior charge ; such arrears are part ' Dewalt's Appeal, 20 Penn. St. 236. Wilson, 83 Penn. St. 83. Hart V. Homiller, Ibid. 248. ' Connelly v. Withers, 9 L. Bar ■' Ibid. 117. " Horner v. Hasbrouok, 41 Penn. St. * Ibid. 169. s. p. Stallmau's Estate, 6 Phila. ' Duncan v. Reiff, 3 P. & W. 369 389. '» Febiger v. Craighead, 4 Dall. 151 ; • Parr v. Bouzer, 16 S. & R. 309. s. o. 2 Yeatea 42. * Cowden's Estate, 1 Penn. St. 267. " Stewartson v. Watts, 8 Watts 392. Heist V. Baker, 49 Ibid. 9. Hiester Hiester u. Green, 48 Penn. St. 96. V. Green, 48 Ibid. 102. Helfrich w. Strauss's Appeal, 49 Ibid. 353. Pierce Weaver, 61 Ibid. 390. If the lien-cred- v. Gardner, 83 Ibid. 211. itors, on a proceeding for distribution, '^ Northern Liberties v. Swain, 13 ^ acquiesce in an erroneous decree, which Penn. St. 113. Devine's Appeal, 30 ' treats it as divested by the sale, they Ibid. 348. Helfriok v. Weaver, 61 Ibid. cannot subsequently impeach it, in a 385. collateral proceeding. Rutty' s Appeal, " Mix ». Ackla, 7 Watts 316. s. p. 84 Penn. St. 61. Swar's Appeal, 1 Penn. St. 92. Lau- ^ Beaver Falls Water-power Co. v. man's Appeal, 8 Ibid. 473. DISCHARGE OF INCUMBEANCES. 765 of it, and are not payable out of the proceeds of sale.^ Thus, on a sheriff's sale, subject to a mortgage, and also to a prior ground-rent, the purchaser takes subject to the arrears of ground-rent due at the time of the sale;^ so, also, on a sale subject to a mortgage, and also to a widow's thirds charged on the land, the purchaser takes subject to the arrears of interest due to the widow at the time of sale.* § 1316. With these exceptions, and one other, hereafter to be noticed, a sheriff's sale of land discharges all incumbrances upon the title taken in execution, whether by mortgage, judgment, recognisance or other- wise.* Thus, a purchaser at a sheriff's sale under a judgment, does not take subject to a prior judgment, obtained against a former owner; it is discharged by the sale;' so, a sheriff's sale, under a former judg- ment, discharges the lien of a prior mortgage,^ except in cases provided for by the act of 1830, which will be the subject of future consideration. So also, a judicial sale discharges the lien of a legacy charged on the land, though payable in instalments, not due and payable at the time of sale ;^ and a municipal lien for curbing and paving,* except as other- wise provided by statute ; and a sheriff's sale under a mechanic's lien, divests the lien of other claims.' To this general rule, however, the case of a sheriff's recognisance is an exception ; a purchaser at a sheriff's sale of lands bound by the lien of such recognisance, takes subject to the lien thereby created ;" but such lien is discharged by a sale under a prior incumbrance.^' And a recognisance to secure a distributive share is discharged by a judicial sale.'^ § 1317. The act of 1830, which was passed to remedy the supposed hardship resulting from the decision of the supreme court in Willard v. Norris,'* and its supplements, have worked an entire revolution of the 1 Devine's Appeal, 30 Penn. St. 348. 410. Lobach's Case, 6 Watts 167. Wertz's Appeal, 65 Ibid. 306. Field MoLanahan v. Wyant, 1 P. & \Y. V. Oberteuffer, 2 Phila. 271. 96. Hellman v. Hellman, 4 Rawle Deirine's Appeal, ut supra. Field v. 440. Hanna's Appeal, 31 Penn. St. 53. Oberteuffer, ut supra. Drake u. Brown, 68 Ibid. 223. ' Wertz's Appeal, wt supra. * Spring Garden's Appeal, 8 W. & * A sale under a judgment, which is S. 444. janney v. Harlan, 3 Clark not a lien, divests all prior judgments, 230. Foy's Estate, 2 W. N. C. 188. and turns the holders thereof over to ' Anshutz u. McClelland, 5 Watts 487. the proceeds. Kelhoffer v. Herman, 6 Under the tax laws of Philadelphia, Phila. 308. registered taxes, whether filed as claims * Commonwealth v. Alexander^ 14 or not, are discharged by a sheriff's S. & R. 257. Thompson v. Phillips, sale, except as to so much thereof as the Bald. 246. United States v. Mechanics' proceeds are insufficient to pay ; and Bank, Gilp. 51. On a sale of the un- this includes the taxes for the current divided interest of a tenant in com- year, which are payable out of the pro- mon judirments against a former ceeds of sale. Camac v. Beatty, 5 Phila. owner of'the whole tract, are to be 129. Dungan's Appeal, 36 Leg. Int. 214. paid in full. Hildebrand ». Wertz, 1 '" McKenzey's Appropriation, 3 Penn. L. Bar, 22 January 1870. St. 156. ^ Willard v. Norris, 2 Rawle 56. " Spang v. Commonwealth, 12 Penn. Presbyterian Corporation v. Wallace, St. 358. 3 Ibid. 109. Mode's Appeal, 6 W. & " Gilmore ». Commonwealth, 17 S. & S. 280. R- 276. ' Bamet ». Washebaugh, 16 S. & R. "2 Rawle 56. 766 EXECUTION. law on this subject, with respect to mortgages ; and have occasioned more litigation than could possibly have resulted from the enforcement of the old doctrine. These statutes, in effect, provide that where the lien of a mortgage is prior to all other liens upon the same property, except other mortgages, ground-rents, and purchase-money due to the commonwealth, the lien of such mortgage shall not be affected by any sale under a writ of venditioni exponas, levari fadas,^ or any other writ of execution f nor by any judicial sale whatsoever.' The entering up of judgment for the same debt, on the bond accompanying the mortgage, will not cause the discharge of the same by a sheriff's sale of the pre- mises ;■* nor will the existence of a prior lien for taxes or municipal improvements ;° nor will a sale to enforce the payment of taxes or municipal assessments, unless judgment for the same were obtained prior to the recording of the mortgage.^ The date of the sheriff's sale is the period when it is to be ascertained whether a mortgage is prior to all other liens ; a prior judgment, satisfied before the sale, will not operate to discharge the mortgage;^ and a purchaser is not bound to look beyond the record, as to the effect of the sale in discharging a prior mortgage.^ § 1318. Under these statutes, it has been decided, that if a mortgage (other than for purchase-money) and a judgment be entered of record on the same day, a sheriff's sale, under a subsequent judgment, will discharge the mortgage ; it is not "prior to all other liens."' And as between two purchase-money mortgages, both of which are recorded within sixty days, there is no priority ; therefore, a sheriff's sale on one, divests the 1 Act 6 April 1830, P. L. 293 ; Purd. one of the purparts. Wright v. Yick- 478. ers, 81 Penn. St. 122. Steel's Appeal, ^ Act 16 April 1845, P. L. 488 ; 86 Ibid. 222. And in the excepted Purd. 479. counties, an orphans' court sale for ' Act 23 March 1867, § 3, P. L. 44 ; the payment of debts, does not dis- Purd. 479. This statute does not ex- charge the lien of a mortgage, created tend to mortgages upon unseated lands, by the intestate, though scheduled or sales of the same for taxes. It is among the debts. Bloomer's Estate, 2 repealed as to orphans' court sales, W. N. C. 68. Grice's Estate, Ibid. except in the counties of Philadelphia, 211. Perry and Venango, by act 10 March * Act 16 April 1845, ? 5, P. L. 488 ; 1870, P. L. 37 ; Purd. 479. It is also Purd. 479. Commonwealth v. Wilson, repealed as to Erie county, by act 34 Penn. St. 63. Cross v. Stahlman, 24 April 1869, P. L. 1213; and as 43 Ibid. 129. to Berks and Schuylkill counties, by ' Act 1 1 April 1835, g 2, P. L. 190 ; act 28 June 1871, P. L. 1379 ; and by Purd. 479. Act 16 April 1845, § 4, ut act 9 April 1872, P. L. 1103, it is not supra. to apply to Brie and Berks counties. * Act 23 January 1845, § 4, P. L. The effect of this legislation is, that 686 ; Purd. 479. Perry «. Brinton, 13 orphans' court sales discharge the lien Penn. St. 202. of a prior mortgage, in every part of ' Clarke v. Stanley, 10 Penn. St. 472. the commonwealth, except the city ' Magaw v. Garrett, 25 Penn. St. of Philadelphia, and the counties of 319. Coyne v. Souther, 61 Ibid. 455. Allegheny, Berks, Erie, Perry, Schuyl- Norris v. Brady, 4 Phila. 287. kill and Venango. And notwithstand- ' Magaw e. Garrett, 25 Penn. St. ing this act, a sale in partition dis- 319. See Eckert v. Lewis, 4 Phila. charges the lien of a, mortgage upon 422. LIEN-CEEDITOES. 767 lien of the other.' So, the existence of a widow's interest in the lands, charged thereon by virtue of proceedings in partition, will effect the dis- charge of an intervening mortgage, by a sale under a junior judgment agaiast the purchaser at the orphans' court sale.^ Where, however, land is sold under a junior judgment, the existence of a prior mechanic's claim, void upon its face, will not cause the discharge of an intervening mortgage, which is the first valid incumbrance ;' otherwise, if the prior mechanic's claim be valid upon its face ; the invalidity of the claim can- not be shown by evidence dehors the record, in order to prevent the dis- charge of the mortgage.* But an award of damages under the act of 1864,^ does not become a lien, until actually filed ; and therefore, its existence does not operate to discharge a mortgage, given between the date of the award and the time of filing the same, by a sheriff's sale under a junior incumbrance.^ The lien of a mortgage, however, is dis- charged by a sheriff's sale, notwithstanding the act of 1830, unless it be the first incumbrance on the premises.' Where, however, mortgaged premises are sold under a judgment, and purchased by the judgment- creditor, under an agreement with the mortgagor to reconvey, on pay- ment of his judgment, the equitable estate is never out of the mortgagor, and the mortgage is not discharged.^ § 1319. SiffJit to the proceeds. No one is entitled to be paid out of the proceeds, unless his claim were previously a lien on the interest which passed by the sale, and has been divested by it ; hence, one who claims as the grantee of the defendant, by a conveyance anterior to the judg- ment on which the land was sold, is not entitled to the proceeds, as agaiust the judgment-creditors ; if his title be valid, he may set it up against the sheriff's vendee.' And a judgment-creditor is not entitled to protection, as a purchaser of the legal title would be, against an equita- ble owner ; therefore, a judgment-creditor of one who holds the legal title as trustee for the vendee of land, cannot claim out of the proceeds of a sale of the land, under a judgment for a portion of the purchase-money, as against judgment-creditors of the vendee himself.'" And one who pur- chased land, subject to a judgment, under which the land was afterwards ' Dungan v. American Life Insur- on one of several bonds so secured, ance and Trust Co., 52 Penn. St. 253. McGrew v. McLanahan, 1 P. & W. 44. 2 Kurtz's Appeal, 26 Penn. St. 465. Berger v. Hiester, 6 Whart. 210. West Zeio-ler's Appeal, 35 Ibid. 173. Branch Bank v. Chester, 11 Penn. St. »°Goepp V. Gartiser, 35 Penn. St. 282. Or a sale for the interest on the ISO- s c 3 Phila. 335. bonds. Hartz n. Woods, S Ibid. 471. * Harper's Appeal, 4W. N. C. 49. Clarke v. Stanley, 10 Ibid. 472. Or a ^ Act 1 April 1864, P. L. 206 ; Purd. sale under a judgment obtained on a 1290 The act 6 January 1864, P. L. note which formed part of the mortgage- 1130 Purd. 1289, is repealed by the debt; and this may be shown by parol, former act. Merriman v. Richardson, Bittinger's Appeal, 6 W. N. C. 231. 5 W N C. 9. * Good v. Sohoener, 10 Leg. Int. 151. « Merriinan v. Richardson, ut supra. See Thomas v. Davis, 3 Phila. 171. ' Byers v. Hoch, 11 Penn. St. 258. ' Helfrich's Appeal, 15 Penn. St. But a sheriff's sale on the accompany- 382. Bush's Appeal, 65 Ibid. 363, ing bond, discharges the lien of the Kirby v. Nichols, 2 Luz. L. Obs. 147. mortgage. Pierce v. Potter, 7 Watts '» Reed's Appeal, 13 Penn St, 476. 475 So of a sale under a judgment Schryock v. Waggoner, 28 Ibid. 430. 768 EXECUTION. sold by the sheriff, is entitled to the surplus, as against the plaintiff in a judgment obtained against the grantor after the conveyance;' and where the defendant purchased expressly subject to a lien for the balance of the purchase-money, and the land is afterwards sold under judgments against him, the lien for purchase-money is entitled to the pro- ceeds, as against judgments against the defendant.^ And since, in equity, -a purchaser under articles of agreement is considered the owner of the land, subject to the payment of the stipulated price, it follows, that when the land is sold under a judgirient obtained against the vendor, prior to the date of the articles, for a sum exceeding the contract price, the vendee is entitled to the surplus, as against a judgment-creditor of the , vendor, whose judgment was entered after the date of the articles.' § 1320. Two classes of creditors claimed the proceeds of the sale by the sheriff of a debtor's real estate : the first class obtained judgments subsequently to a conveyance by the debtor of his real estate, which judgments were in full force at the date of a sale by the sheriff, under a j udgment of the same class ; the claims of the second class were founded on liens derived from seizures of the premises, made subsequently to the sheriff's sale, under testatum fi. fas. issued to the county where the land lay, under one of which writs, the property was sold a second time by the sheriff, and the proceeds of this sale constituted the fund in court ; under these circumstances, it was held, that the liens of the first class were discharged by the first sheriff's sale, and therefore, did not bind the interest which passed by the second sale, but the liens of the second class attached in the order of the respective levies which were made thereunder, and the second class were entitled to the fund.^ A judgment is a lien according to the title which the defendant has or appears to have ; if he have no title, at the time it is entered, it is no lien.^ And judgments entered several days after the sheriff's sale are not liens on the surplus, as against creditors of the defendant, to whom it was assigned by him, after such judgments had been entered.* § 1321. It is settled, that all liens on the land which are due at the time of the sale, and have been discharged by that sale, when they cau The doctrine of constructive fraud from money, tbouf^h he bas previously ob- retention of possession, baa no applica- tained judgment for the amount there- tlon to real estate. Lud-n-ig v. High- of. Canon v. Campbell, 34 Penn. St. ley, 5 Ibid. 132. Allentown Bank u. 309. Zeigler's Appeal, 69 Ibid. 471. Beck, 49 Ibid. 394. ' Siter's Appeal, 26 Penn. St. 178. 1 Sitting's Appeal, 17 Penn. St. 211. And see Colver's Appeal, 25 Ibid. 71. ^ Barnitz u. Smith, 1 "W. & S. 142. But a sale of the interest of a vendee But, in general, the judgment-creditors by articles, on a judgment for unpaid of a vendee by articles, who has paid purchase-money, passes both the legal part of the purchase-money, and gone and equitable estate ; and hence, the into possession, are entitled to the pro- vendor is entitled to the proceeds, in ceeds of a sale of his interest, in prefer- preference to prior liens on the veu- ence to the vendor. Auwerter v. Math- dee's title. Horbach v. Riley, 7 Penn. iot,9S.&R.397. Muroney «. Copeland, St. 81. Zeigler's Appeal, 69 Ibid. 471. 5 Whart. 407. Such sale does not * Abbott v. Remington, 4 Phila. 34. divest the lien of a judgment against '• Beekman's Appeal, 38 Penn. St. the vendor. Creigh v. Shatto, 9 W. 385. 6 S. 82. Nor his lien for purchase- » Small's Appeal, 24 Penn. St. 398. LIEN-CEEDITORS. 769 be reduced to a certainty, are entitled to payment out of the proceeds.^ The date of the sheriff's sale is the point of time to which all liens entitled to payment out of the proceeds are to be computed ;2 and interest is allowed on liens till the day of the sheriff's sale.^ So, the rights of the lien-creditors are fixed by the sale, and must be determined as they existed at that time.* A judgment, however, entered on the very day of the sale, though some hours thereafter, is a lien on the fund and en- titled to be paid in the order of priority ; but judgments entered some days after the sale, are not liens on the surplus, as against creditors to whom it had been assigned by the defendant after the entry of such judgments.' § 1322. But, though there may be no doubt that a lien has been dis- charged by the sale, there may be a question as to its right to participate in the proceeds. The provisions of the act of 1836 embrace only judg- ment or lien-creditors of the defendant ; his contract- creditors who have acquired no judgment or lien, have no right to be heard as to the distri- bution of the proceeds, and are not entitled to a writ of error f and an attorney has no lien for his services on money brought into court for distribution, and, therefore, cannot claim as distributee.^ And where a mortgage was given to trustees, to secure such creditors as should accept, for their debts, certificates payable in futuro, the trustees only are enti- tled to claim the amount of the mortgage ; and the court, at this stage, cannot notice the holders of the certificates.* So, debts due by a dece- dent, though liens upon his land, are not liens of record, and even if judgments be obtained on them, after his death, the plaintiffs cannot claim out of the proceeds of a sale of such land, under a judgment attaching prior to his death, but must apply to the personal representa- tives, who, upon giving security, satisfactory to the court, are entitled to the surplus remaining after the payment of judgments entered before the death of the defendant.' So, the statutory lien of a decedent's debts is discharged by a sale under a testamentary power for the payment of unscheduled debts ; and where the purchaser, under such circumstances, mortgaged the land, which was afterwards sold under the mortgage, the mortgagee was held entitled to the proceeds, as against the creditors of the testator, who obtained judgment within five years after the death of the latter .1° § 1323. Mortgages, A mortgagee is entitled to payment out of the proceeds of a sheriff's sale, so far as he has a prior lien ;'' unless his mort- 1 Mohler's Appeal, 5 Penn. St. 420. * Small's Appeal, 24 Penn. St. 398. ' AValton v. West, 4 Whart. 221. ^ Smith v. ReifF, 20 Penn. St. 364. ' Siter's Appeal, 26 Penn. St. 178. A purchaser at a prior sheriff's sale, Stulzfoos's Appeal, 3 P. & W. 26.5. whose interest has been swept awfu by Where real estate is ordered to be sold, a sale under a paramount incumbrance, under the act 17 February 1876, P. L. has no right to come in on the fund. 4, Purd. 1973, the liens against the Jaooby's Estate, 9 Phila, 311. property bear interest only to the time ' Dubois's Appeal, 38 Penu. St. 231. of the confirmation of the sale. Strick- ' Yarnal's Appeal, 3 Penn. St. 363. ler's Estate, 35 Leg. Int. 276. Tom- » Willing u. Yohe,.l Phila. 223. linson's Appeal, IIL. Barl. '° Cadbury v. Duval, 10 Penn. St. * Douglass's Appeal, 48 Penn. St. 205. 223. And see supra, 1 1317. " Lindle v. Neville, 13 S. & R. 227. VOL. I. — 49 770 EXECJJTION. gage be one which, by force of the act of 1830 and its supplements, is not discharged by the sale.' But a mortgage (except for purchase- money) is not a lien, until left for record f if not duly recorded, it will be postponed to a subsequent judgment.^ The holder of a purchase- money mortgage, however, is allowed sixty days in which to record the same ; and if so recorded, it is a lien Irom the date of its execution ;* and a mortgage for purchase-money, given at the time of the convey- ance of the legal title, has priority over judgments against the vendee, intermediate between the sale and the conveyance f but if a purchase- money mortgage be recorded within sixty days, it is not discharged by the sale, and, consequently, not entitled to come in on the proceeds.^ It is entitled to priority over mechanics' claims against the equitable estate of the vendee, if recorded within sixty days after it becomes operative, without regard to its date, and though made to a third person, who advanced the purchase-money •'J and where two mortgages are given at the same time, one to the vendor, and the other to a third party, the former is entitled to the protection of a purchase-money mortgage, though not first recorded.' Where a piece of land, after the execution of a mortgage, has been sub-divided and improved, the proceeds of each lot are to be applied to the mortgage, in equal proportions.' Where a mortgage is executed, for the purpose of raising money for the use of the mortgagor, it is a lien, as against intervening incumbrances, only from the time of its sale to a honA fide purchaser ;'" but it is a valid lien, as against a subsequent purchaser, from the time it is so negotiated, though the assignment to the holder for value be not recorded — the mortgage itself being on record.'^ § 1324. Judgments. As we have seen,'^ a judgment is a lien on every kind of equitable interest in land, vested in the debtor, at the time of its entry ; and as judgments are discharged by a sheriif's sale of the debtor's estate in the land, his judgment-creditors are entitled to be paid out of the proceeds, according to the order of their date upon the record.^' The judgment-docket is ■prim& jade, evidence of the order in which liens are entered.'* But between the parties, it is not necessary that a judg- ment should be docketed, in order to create a lien ;'^ a judgment-creditor ' See siepra, ^1317-8. ' Hillary ». Parvin, 2 Phila. 346. ^ ^ Foster's Appeal, 3 Penn. St. 79. See Norris v. Brady, 4 Ibid. 287. Pease f f the time a mortgage is left for record- v. Hoag, 32 Leg. Int. 220. ue correctly indorsed, its lien is not ' Leech v. Bonsall, 10 Phila. 384. affected by an error in the entry there- '" Mullison's Estate, 68 Penn. St. of upon the record. Brooke's Appeal, 212. Hess v. Coleman, 2 W. N. C. 224. 64 Penn. St. 127. Nor, if entered upon See Starr v. Ferguson, 1 Ibid. 87. the mortgage-blotter, by the delay of " Johnson e. MoCurdy, 83 Penn. St. the recorder to record or index the 282. same. Woods's Appeal, 82 Ibid. 116. '^ See supra, I 777. » Sample d. Burd, 7 S. & R. 286. •' Wetmore r. Wisner, 2 Luz. L. Obs. *■ Act 28 March 1820, 7 Sm. L. 303 ; 203. Forney u. Royer, 3 Ibid. 162. Purd. 478. i-* Polhemus's Appeal, 32 Penn. St. " Cake's Appeal, 23 Penn. St. 186. 328.. « Bratton's Appeal, 8 Penn. St. 164. '^ ^mV Bank's Appeal, 36 Penn. St ' CampbeirsAppeal,36Penn.St.247. 458. LIEN-CREDITOES. 771 is entitled to the fund, in preference to the defendant in the execution, though his judgment be not entered on the lien-docket.^ The judgment- docket is conclusive as. to the amount of an incumbrance, though it differ from that actually rendered f if a judgment, entered on the appearance- docket, be not transferred to the judgment-docket, the holder must look to the prothonotary for his damages f but, nevertheless, a plaintiff can- not claim out of the proceeds of a sheriff's sale, Tnore than the amount of the judgment as stated on the appearance-docket; a subsequent lien- creditor may have an erroneous transfer thereof to the judgment-docket corrected.* § 1325. An award, in pursuance of an amicable submission, creates no lien, until judgment is entered thereon;^ otherwise, of an award under the compulsory arbitration law.* And a decree in equity for the payment of money, has the same effect, as to lien, as a judgment in a court of com- mon law f so, a judgment obtained in a justice's court, when a transcript thereof is filed in the common pleas, creates a lien upon the debtor's real estate, from the time when it is actually filed.^ A report of county auditors, finding a balance due to the county from its treasurer, must be entered on the judgment-docket and indexed, in order to render it a lien, as against subsequent judgment-creditors.^ And so, also, to entitle the commonwealth to a lien for a balance due by a county treasurer, upon the land of him and his sureties, as against other lien-creditors, a certified copy must have been transmitted to the prothonotary and entered of record.^" § 1326. A judgment or mortgage given to secure future advances is valid, as against subsequent incumbrances ;^^ and whether given to secure future advances to the judgment-creditor or third persons.'^ But, in general, it is only a lien, as against intervening incumbrances, from the time of making such advances, not from its date;"^^ if, however, the plaintiff be bound, by his contract to make the advances, it is a valid lien to the extent thereof, from the date of its entry." If such security be given to a bank, to secure discounts, it will not prevail against an intervening incumbrance, without affirmative proof that a subsequent discount was, in point of fact, a renewal of a prior note.^'^ A mortgage executed to secure bonds, to be issued at a future time, is only a lien, as I 'Worrell v. Vandusen Oil Co., 1 Leg. " Arnold's Estate, 46 Penn. St. 277. Graz. 53. But a judgment entered after " Lyle v. Duoomb, 5 Binn. 585. Ter the sheriff's sale, cannot bind the pro- Hoven v. Kerns, 2 Penn. St. 96. Tay- ceeds Tackier v. Bale, 1 Pears. 171. lor v. Cornelius, 60 Ibid. 187. ■' Bear v. Patterson, 3 W. & S. 233. '' Maffet v. Rynd, 69 Penn. St. 380. Mehaffy's Appeal, 7 Ibid. 200. " Bank of iMontgomery County's s Mann's Appeal, 1 Penn. St. 24. Appeal, 36 Penn. St. 170. McClure ' * Hance's Appeal, 1 Penn. St. 408. v. Roman, 52 Ibid. 458. Parker v. 6 Stephens's Appeal, 38 Penn. St. 9. Jaooby, 3 Gr. 300. « Act 16 June 1836, § 24, P. L. 719 ; " Parmentier v. Gillespie, 9 Penn. St. Purij 84 86. Morouey's Appeal, 24 Ibid. 372. ' Act 29 March 1859, P. L. 289 ; Taylor v. Cornelius, 60 Ibid. 187. Purd. 601. '° Bank of Commerce's Appeal, 44 « Bratton's Appeal, 8 Penn. St. 164. Penn. St. 423. Hartley v. Kirlin, 45 Snyder County's Appeal, 3 Gr. 38. Ibid. 49. 772 EXECUTION. against an intervening incumbrance, to the extent of the bonds issued to bo7id fide purchasers.' § 1327. Where the owner of land incumbered with liens, makes a conveyance, which is fraudulent as against creditors, a judgment subse- quently obtained against him only binds the interest which has passed to the fraudulent grantee, and the conveyance being valid as to such fraud- ulent grantee, if a sheriff's sale be had under a subsequent judgment, for the purpose of avoiding the fraudulent conveyance, prior judgments existing before such conveyance, and which are undoubted liens upon the legal title, are not affected by the sale, and are consequently not payable out of the proceeds ^^ neither are arrears of ground-rent, nor taxes.' But judgments obtained against the fraudulent grantor, after the conveyance, are to be paid in the order of their date.* And even if the title were never in the judgment-debtor, if a sheriff's sale be had, for the purpose of establishing a resulting trust in his favor, by reason of his having paid the purchase-money, and the creditor becomes the pur- chaser, in order to test the debtor's ownership, arrears of taxes are not payable out of the proceeds of sale ; the lien thereof is not divested.' Where, however, the debtor had no interest in the land, legal or equita- ble, at the time of the recovery of the judgment, and the acquisition of his equitable title, the alleged fraudulent conveyance, and the assessment of the taxes, all intervened between the recovery of the judgment and the issuing of the execution, it was held, that the taxes were the prior lien upon the fund produced, as against the execution, which did not become a lien upon the fraudulent title, until the levy.* § ] 328. In distributing the proceeds of a sheriff's sale, the court, as between equitable claims, is governed by the principles of equity;' it will consider that to be done, which a chancellor would decree to be done.' Thus, on a question of distribution, a judgment against a part- nership, by its firm name only, will be upheld ; it is not absolutely void ;' and the equitable doctrine of subrogation is constantly invoked, in proceedings for the distribution of the fund accruing from a sheriff's sale.'" On the same principle of equity, a prior judgment-creditor, who is insolvent, will not be permitted to take the fund, to the prejudice of a junior judgment-creditor, for the payment of whose judgment the former is liable as surety ;" and where land is sold under a judgment against two defendants, one of whom has a judgment of the same date against his co-defendant, who is the owner of the property, the execu- tion-creditor is entitled to the proceeds ; the defendant holding the judgment cannot claim against his own judgment-creditor." So, if one ' Rice». Southern Pennsylvania Iron ' Kohl v. Harting, 8 Watts 329. and Railroad Co., 32 Leg. Int. 431. » gelden's Appeal, 74 Penn. St. 323? ' Byrod's Appeal, 31 Penn. St. 241. » Merkle's Appeal, 33 Leg. Int. 358. ' Fisher's Appeal, 33 Penn. St. 294. '° See Bright. bia;.,tit."Subrogation." * Hoffman's Appeal, 44 Penn. St. 95. " ilimes v. Barnitz, 8 ^yatts 39. s. p. Wiehl V. Ditsohe, 34 Leg. Int. 338. Erb's Appeal, 2 P. & W. 296. AVor- * Fisher u. Lyle, 8 Phila. 1. And see rail's Appeal, 41 Penn. St. 524. Ecker v. Lafferty, 3 Pitts. 500. " Vierheller's Appeal, 24 Penn. St ' Dungan's Appeal, 36 Leg. Int. 214. 105. ORDER OF PAYMENT. 773 creditor has a judgment against principal and surety, and another has a judgment against the surety only, if the creditor of the two collect his judgment from the surety, the other creditor will be subrogated to the judgment of the former one.^ But the assignee of a mortgage will not be postponed to a subsequent judgment-creditor, who holds the mortgagee's guarantee for the security of his judgment.^ "Where money is raised by a sheriff's sale, and brought into court for distribution, the court has an equitable jurisdiction to set off one judgment against another, independently of the statute;^ otherwise, as to. claims which are not in judgment.^ § 1329. Order of payment. The first claim upon the fund is the costs by which it was produced; the sheriff's costs are payable out of the proceeds of sale, in preference to a prior lien upon the land,^ but this preference does not extend to the general costs of the suit f they have no priority over the claims of lien-creditors.^ But the costs of a writ, which has been stayed, are' not a lien upon the fund f nor those incurred on an execution upon a judgment not reached in distribution.^ The landlord's claim for rent is not entitled to precedence as against the sheriff's costs.*" The preference given to wages, which are the next claim on the fund, has already been considered.*'^ § 1380. In Philadelphia, registered taxes and municipal claims are a preferred claim upon the fund, by virtue of the act of 1824;'^ and this has been extended to state taxes, by a subsequent statute. '^ This includes all taxes, rates and levies imposed or assessed by authority of the city of Philadelphia, upon real estate situate therein, except water-rents;*^ a municipal claim for paving is included, though not registered under the act of 1824 ;'' and a municipal claim authorized by subsequent legislation is within the protection of the statute.*^ Taxes assessed on real estate in Philadelphia, are a lien from the date of assess- ment,*'' and have priority of payment over antecedent mortgages and other incumbrances ;** and this includes the taxes for the current year, * Huston's Appeal, 69 Penn. St. 485. Whether they are entitled to a priority And see Datesman's Appeal, 77 Ibid, over taxes does not appear to have been 243. considered. 2 Moore's Appeal, 7 W. & S. 298. ^^ Act 3 February 1824, 8 Sm. L. ' Coates's Appeal, 7 W. & S. 99. 189 ; Purd. 1084. * Cornwell's Appeal, 7 W. & S. 305. *' Act 16 April 1845, | 2, P. L. 495; 5 Shelly's Appeal, 38 Penn. St. 210. Purd. 1390. Strohecker v. Buffington, 1 Pears. 124. '* Act of 1824, § 8. « Fry's Appeal, 76 Penn. St. 82. " Pray v. Northern Liberties, 31 ' Malone's Appeal, 79 Penn. St. 481. Penn. St. 69. « Boyd V. Mole, 9 Phila. 118. '* Northern Liberties v. Swain, 13 ' Graham v. McLean and Bennor Penn. St. 113. Machine Co., 35 Leg. Int. 70. " Qucere? when is the assessment '" Hennis v. Streeper, 1 Miles 269. completed, so as to render the taxes a " See supra, ^UM. The statute pro- lien? It would seem to be, the date of vides that claims for wages shall be_^r«< placing the duplicates in the hands paid out of the fund. It has been de- of the receiver of taxes. See Barlow cided, that this gives them a preference v. St. Nicholas Bank, 63 N. Y. 399. over the landlord's claim for rent. '* Parker's Appeal, 8 ^Y. &. S. 449. O'Brien v. Hamilton, 35 Leg. Int. 68. Camao v. Beatty, 5 Phila. 129. So 774 EXECUTION. though not registered.^ On a sale of the equitable interest of one of two joint owners of laud, taxes and municipal claims are payable out of the proceeds of sale -^ and so, the fund arising from a sheriff's sale of an equitable interest, under articles, is subject to the lien for unpaid taxes.^ And the relinquishment of a distress upon the goods of a tenant of the premises, does riot affect the lieu.* It is provided, however, by statute, that the lien of such claims shall not be divested by any judicial sale, as to so much thereof as the proceeds may be insufficient to discharge f and therefore, they are payable out of the proceeds of a subsequent sheriff's sale of the premises.^ They are, nevertheless, discharged, when the pro- ceeds of sale are adequate to their payment ■] and a sheriff's sale of any portion of an entire property, for a sufficient amount, discharges the lien as to the whole;' if the proceeds be primA fade sufficient, it lies upon a purchaser at a second tax sale to rebut the presumption ; it is not enough, that the city failed to claim the taxes out of the fund aris- ing from the first sale.' In Pittsburgh, a municipal assessment is not entitled to precedence over a mortgage, recorded prior to the passage of the act conferring the lien ;'" and, except where so provided by statute, taxes assessed subsequently to the execution of a mortgage are not entitled to a priority of lien over it.^^ § 1331. Arrears of ground-rent are payable out of the proceeds of a sheriff's sale of the land,'^ if the ground-rent deed contain a clause of re-entry, in default of payment ; in such case, the owner of the ground- rent has a lien upon the estate of the tenant, and he may have recourse to its substitute, when the land is converted into money .^^ And it matters not that, during all the time the rent was accruing, there was sufficient personal property upon the premises that might have been dis- trained.'* But where the party thus resorts to the land, he cannot be allowed interest on the arrears ; he could not have distrained for interest, and if he had re-entered, he could only have held until his arrears were paid.*° The day of sale, however, is the time to which all liens, payable also, as to municipal assessments. 351. Pennook v. Hoover, 5 Rawle 291. ' Smith v. Simpson, 60 Penn. St. 168. '■ Dungan's Appeal, 36 Leg. Int. 214. " Pittsburgh's Appeal, 40 Penn. St. Camac v. Beatty, 5 Phila. 129. But 455. see Duffy v. Philadelphia, 42 Penn. St. " Gormley'a Appeal, 27 Penn. St. 49. ■ 192 ; s. c. 4 Phila. 289. Bean's Estate, 3 Luz. L. Leg. 113. ■■' Moroneyj). Copeland, 5 Whart. 407. " Potts v. Rhodes, cited 2 Binn. 148. ' Vanarsdalen's Appeal, 3 W. N. C. Bantleon v. Smith, Ibid. 146. Ter 463. But the sale of the estate of a Hoven v. Kerns, 2 Penn. St. 96. remainder-man, under a personal judg- '' Pancoast's Appeal, 8 W. & S. 381. raent against him, does not discharge Spangler's Appeal, 30 Penn. St. 277 n. the lien of taxes assessed against the It is otherwise, where there is no right owner of the life-estate. Philadelphia of re-entry, tut only a power of dis-' V. Hepburn, 36 Leg. Int. 105. tress reserved ; in such case, the ground- * Parker's Appeal, 8 W. & S. 449. landlord has no lien. Sands v. Smith, ' Act II March 1846, g 6, P. L. 115; 3 W. & S. 9. McCleery v. Henry, 2 Purd. 1089. Am. L. J. 257. « Townsend v. Prowattain, 31 Leg. " Dougherty's Estate, 9 W. & S. 189. Int. 28. « Banfleon v. Smith, 2 Binn. 146. ' Eaton's Appeal, 83 Penn. St. 152. Ter Hoven v. Kerns, 2 Penn. St. 96. * Philadelphia v. McGonigle, 4 Phila. In the former case, Chief Justice Tilgh- OEDEE OF PAYMENT. 775 out of the proceeds, are to be computed ; and therefore, ground-rent accruing after the day of sale, but prior to the execution of the deed, must be paid by the purchaser.^ The sheriff cannot relieve himself from responsibility for arrears of ground-rent, by a condition of sale, that unless a claim for arrears be presented, before he parts with the money, they will be paid by the purchaser ; if he distribute the fund to subse- quent lien-creditors, he is personally liable to the ground-landlord.^ The lien for arrears of ground-rent relates back to the date of the ground- rent deed, as against an intervening judgment;^ but a surety for stay of execution, on a judgment for arrears of ground-rent, is not entitled to subrogation as against arrears subsequently accruing.* § 1332. Mechanics' liens have priority, from the commencement of a building, over judgments and other incumbrances, intervening prior to the filing of the claim,' and are payable out of the proceeds of a sheriff's sale of the land.^ The commencement of the building, with reference to the lien of the mechanics, is the first labor done on the ground, with a view to the construction of the building ;^ and from that period, the mechanics and material-men are entitled to a prior lien, as against a mortgagee, whose mortgage is subsequently recorded.* But where an owner, after commencing a building, discontinues the erection, pays off the claims for work, and sells the property, and the vendee, more than six months afterwards, recommences and finishes the build- ing, the liens of the last mechanics employed, cannot be carried back beyond the time of recommencing the work.^ Under the act of 1840,'" a mechanic's lien only binds the estate of the builder;'' but a contract whereby a lessor agrees to pay to the lessee a gross sum towards the erection of a house upon the land, enables the latter to bind it for the mechanics' claims ;'^ and it matters not, that there was no express contract on the part of the lessee to build, if such were the manifest intention of the parties.'^ Though the claim filed be defective, yet, if the six months have not elapsed, it is payable out of the proceeds of a sheriflT's sale.'* man intimates that the case might be Purd. 1026. different, if the deed gave the grantor " Werth v. "Werth, 2 Rawle ]51. power to enter and hold as of his for- ' Pennook v. Hoover, 5 Rawle 291. mer estate (which is the form now Henning v. Fry, 23 Pitts. L. J. 125. used) ; for, in such case, the defendant * Parrish's Appeal, 83 Penn. St. would be driven into equity for relief, 111. and in equity it might be thought rea- ' Fordham's Appeal, 78 Penn. St. sonable, to relieve on terms of paying 120. interest, 2 Binn. 154. See McQues- '» Act 2S April 1840, ^ 24, P. L. 474 ; neyc. Hiester, 33 Penn. St. 441. Chew's Purd. 1027. Estate. 4 Phila. 186. " Smith's Estate, 7 Leg. Gaz. 31. ' Walton V. West, 4 Whart. 221 ; '' Woodward v. Leiby, 36 Penn. St. s. c. 2 Miles 91. 437. Leiby v. Wilson, 40 Ibid. 63. ' ■■' Mather v. MoMiehael, 13 Penn. Hopper u. Childs, 43 Ibid. 310. s. p. gt. 301. Fisher v. Rush, 71 Ibid. 40. Rush v. 3 Watson V. Bradley, 1 Phila. 177. Perot, 34 Leg. Int. 58. Fassitt V. Middleton, 5 Ibid. 196 ; s. c. " Barclay v. Wainwright, 86 Penn. 47 Penn. St. 214. St. 191. And see Parker v. Hall, 36 * Fassitt V. Middleton. ut supra. Leg. Int. 126. » Act 16 June 1836, § 10, P. L. 698; " Schrader v. Burr, 10 Phila. 620. 776 EXECUTION. On a question of distribution, each claimant must establish his debt, by due proof as agaiust the others;' a judgment on it is not even primd fame evidence, as against the other lien-creditors ;^ but it is conclusive as to the validity of the claim, in point of form.' Lien-claimants share ratably among themselves, if the fund be insufficient to pay them in full.* The law of mechanics' liens will be more fully discussed in the second volume of this work. § 1333. Judgments and mortgages, when the latter are discharged by the sale, stand upon precisely the same footing, and are payable in the order of their priority.^ And a judgment against a former owner of the property, which is a lien on the land, is payable out of the proceeds of sale.' There is no priority between judgments entered on the same day ; they are to be paid pro rata ■' nor is there any priority between a judgment entered and a mortgage recorded on the same day;' in such case, the law does not regard fractions of a day f and the judgment- creditor may show that a recital in the mortgage, that it was for pur- chase-money, is untrue.'" But as between a judgment and a conveyance, of the same date, the priority depends upon proof of the actual time of the entry and execution ;" if, however, there be no proof as to the time of the entry of the 'judgment, it will have priority over an assignment for the benefit of creditors, executed on the same day.'^ As we have already seen,'' a judgment entered after a conveyance in fraud of creditors, is a lien only upon the estate of the fraudulent grantee. § 1334. Where a mortgage is given to secure several accompanying bonds, for instalments of the same debt, some of which are assigned, and others retained by the mortgagee, in case of a deficiency in the proceeds of the mortgaged premises, the bonds are to be paid pro rata;^* but the purchasers of several parcels of land, subject to a common incumbrance, are, in equity, to be charged in the inverse order of their alienation.'* ' Denkel's Estate, 1 Pears. 213. of such agreement. ^ Smedley v. Conaway, 5 Clark 417. ^ Lanning v. Pawson, 38 Penn. St. And see Field v. Oberteuffer, 2 Phila. 480. 271. Cadwalader v. Montgomery, 7 '" Hendrickson's Appeal, 24 Penn. St. Leg. Int. 133. 363. ' Lauman's Appeal, 8 Penn. St. 473. " Mechanics' Bank u. Gorman, 8 W. * Denkel's Estate, 1 Pears. 213. & S. 304. Ladley v. Creiffhton 70 5 Lindle V. Neville, 13 S. & R. 227. Penn. St. 490. ^ Commonwealth v. Alexander, 14\. '^ Bover's Estate, 51 Penn. St. 432. S. & R. 257. 15 See' supra, § 1327. ' Metzler v. Kilgore, 3 P. & W. 245. '* Donley v. Hays, 17 S. & R. 400. Ladley v. Oreighton, 70 Penn. St. 490. Betz v. Heebner, 1 P. & W. 280. Moh- Emerick v. Garwood, 1 Bro. 20. Steele lev's Appeal. 5 Penn. St. 418. Car- V. Taggert, Ibid. n. penter v. Koons, 20 Ibid. 222. Perry's » Claason's Appeal, 22 Penn. St. Appeal, 22 Ibid. 43. Hancock's \p- 359. Doolittle v. Beary, 2 Phila. 354. peal, 34 Ibid. 155. Where a mortgage is recorded, and a '» Nailer v. Stanley, 10 S. & R. 450. judgment entered on the same day, it Cowden's Estate, 1 Penn. St. 267. may be shown by parol, that the mort- Warren v. Sennett, 4 Ibid. 114. Me- gage was to have priority over the vey's Appeal, Ibid. '80. Fluck ti. Rep- judgment. Maze V. Burke, 35 ,Leg. logel, 13 Ibid.405. Carpenter w. Koons, Int. 396. See this case, as to what 20 Ibid. 222. Lloyd v. Giilbraith, 32 circumstances are sufficient evidence Ibid. 103. Becker u. Kehr, 49 Ibid. 223. OEDEE OF PAYMENT. 777 Thus, where land, held by articles, is sold under a mechanic's lien against the vendee, as between him and his grantee of an undivided moiety thereof, the unpaid instalments of purchase-money, and the mechanics' claims, are payable out of the moiety remaining in the former; and liens against him, which attached after the sale, only bind his remaining interest."^ If a third incumbrance be superior to the first, but subordinate to the second, the first incumbrance is entitled to the proceeds of a judicial sale of the property.^ § 1335. A judgment for purchase-money, entered on the same day as the execution of a conveyance of the legal title, has priority over a judgment obtained against the vendee, after the purchase, but before the execution of the conveyance ; but the priority would be the other way, if the judgment for purchase-money had been entered some days after the execution of the conveyance.^ And in such case, the judgment for purchase-money has priority over a mechanic's lien.* But where the sale is under a judgment in favor of vendor against vendee, for the purchase- money, the vendor's whole interest passes, and he is entitled to the proceeds, to the whole extent of the unpaid purchase-money, without regard to the date of his judgment, in preference to liens on the vendee's title.^ "Where the vendee purchased subject to incumbrances expressly charged in the deed, the amount of such incumbrances is not to be deducted from the unpaid purchase-money ; and a parol agreement may be shown between vendor and vendee, that the latter should take subject to incumbrances not named in the deed.^ § 1336. Partnership judgments are to be paid out of the proceeds of the partnership lands, in preference to prior judgments against indivi- dual members of the partnership ; and if the judgment be merely joint, the plaintifi" may show, on the distribution, that the cause of action was a partnership debt.'' But a judgment entered on the judgment-docket against the raen^bers of a firm, by their surnames, omitting their Christian names, though valid between the parties, is not such notice as will bind purchasers or subsequent judgment-creditors, and will be postponed to a subsequent judgment properly entered ; and it makes no difference, that the judgment in question had been entered in the appearance-docket.' \ judgment against a partnership is a lien on the separate real estate of each partner, and is entitled to the proceeds in preference to a subsequent ' Barnes's Appeal, 46 Penn. St. constitute one transaction. Lyon v. 350 McGufiFey, 4 Penn. St. 126. And see ' Wilcocks V. Wain, 10 S. & K. 380. Watt v. Steel, 1 Ibid. 386. Manufacturers' and JMeohanics' Bank u. * Stoner v. Neff, 50 Penn. St. 258. Bank of Pennsylvania, 7 W. & S. 343. * Horbach v. Eiley, 7 Penn. St. 81. Tomb's Appeal, 9 Penn. St. 67. Lou- Zeigler's Appeal, 6'.) Ibid. 471. cheim's Appeal, 67 Ibid. 49. Thomas's ' Buckley's Appeal, 48 Penn. St. Appeal, 69 Ibid. 120. McCreary'sAp- 471. peal 74 Ibid. 194. ' Overholt's Appeal, 12 Penn. St. ' Cake's Appeal, 23 Penn. St. 186. 222. Erwin's Appeal, 39 Ibid. 535. Eckert u. Lewis. 4 Phila. 422. Ajudg- ' Ridgway's Appeal, 15 Penn. St. ment for purchase-money does not re- 177. York Bank's Appeal, 36 Ibid, late to the date of the conveyance, 458. Smith's Appeal, 47 Ibid. 128. unless entered so soon thereafter as to See Merkle's Appeal, 33 Leg. Int. 358. 778 EXECUTION. judgment by a separate creditor of such partner.' A judgment confessed, without authority, by one partner, in the name of the firm, though void as to his copartners, is good as between himself and his creditor, and is a lien upon his land.^ The fact that land, conveyed to two persons as tenants in common, was purchased and paid for by them as partners, and was partnership property, must appear by deed or writing placed on record, and cannot be shown by parol proof.^ Where land was purchased by one of the partners, who gave his individual bonds and mortgages therefor, the vendors are not entitled to share in the proceeds of partner- ship assets, though it be shown that the purchase was on firm account.* § 1337. Disposition of the surplus. When the proceeds amount to more than sufficient to satisfy the liens, the officer making the sale or receiving the proceeds, must pay the surplus to the debtor, unless the fund has been paid into court, and then, and not before, such officer is discharged of record.' By the word " debtor" seems to be meant, persons deriving title from the defendant, such as assignees, grantees or personal representatives. If the land were sold after the death of the defendant, on a judgment obtained against him in his lifetime, the surplus remain- ing, after paying the liens of record, must be paid to the personal repre- sentatives, on their giving security for the legal distribution of the fund; such money to be distributed as real estate.^ By " liens of record," in this section, are meant liens existing prior to the death of defendant ; the debts due at his death, though liens upon his land, are not liens of record, and even if judgments be obtained after his death, they have no claim against the surplus of the fund in court, but must be paid through the personal representatives, to whom such surplus must be awarded.^ If the land sold under such a judgment has been taken by an heir at a valuation, and a recognisance given, the cognisee is entitled to the sur- plus paid to the administrator.* § 1338. V/here a life-tenant had joined with the remainder-men in a mortgage of the land, for the proper debt of the latter, and the land was sold under a judgment on the mortgage, the tenant for life was'allowed to take the surplus, as against judgment-creditors of those in remainder, on giving security for the payment of the principal sum after her death.' So, where, under a joint judgment against two, the land of one is sold, the surplus, after payment of the joint liens, goes to the owner of the land, in exclusion of his co-defendant and the creditors of the latter.'" If, after Cummings's Appeal, 25 Penn. St. " Act 24 February 1834, | 33, P. L. 268. 79:Purd. 425. Morrison's Case, 9 "W. = York Bank's Appeal, 36 Penn. St. & S. 116. 458. ' WiUing V. Yohe, 1 Phil. 223. ' Eidgway's Appeal, 15 Penn. St. ' Commonwealth v. Mclntire, 8 177. Lefevre's Appeal, 69 Ibid. 122. Penn. St. 295. Harding v. Devitt, 10 Phila. 95. Black ' Bloomfield v. Budden, 2 Dall. 183 ; ». Seipt, 34 Leg. Int. 66. s. c. 1 Yeates 187. Phipps v. Phipps, * North Pennsylvania Coal Compa- 3 Clark 280. ny's Appeal, 45 Penn. St. 181. '» Myers's Appeal, 2 Penn. St. 465: * Act 16 June 1836, § 93, P. L. 778 ; Rogers, J. Purd. 657. AUDITORS. 779 articles of agreement for the sale of land, the premises be so d under judgments against the vendor, entered prior to the date of the articles, and the proceeds are greater than the contract price of the land, the ven- dee is entitled to the difference, in preference to a judgment-creditor of the vendor, whose lien attached after the date of the articles.^ And it makes no difference, that the vendee was the purchaser at the sheriff's sale, or that he procured the sheriff's sale to be made, by obtaining an assign- ment of the judgment, for value, and issuing the execution.^ Where, after a conveyance of land, subject to certain judgments, it is sold by the sheriff, under several writs issued on those judgments, and on others which did not attach against the vendor, until after the conveyance, the vendee, who purchased at the sheriff's sale, is entitled to the surplus remaining after payment of the judgments entered before the conveyance, in pre- ference to the plaintiffs in the judgments entered after the conveyance.^ § 1339. Practice before auditors. Having explained the principles which govern the distribution, we now proceed to show the mode of hearing and determining the claims to a participation in the fund. The act of 1836 provides,* that in all cases of dispute concerning the distri- bution of the proceeds of sales upon execution, the court from which the e'xecution issued shall have power, after reasonable notice given, either personally or by advertisement, to hear and determine the same, accord- ing to ]^w and equity. In the case of a testatum execution, the court of the county where the sale is made may distribute the fund, if the pro- ceeds have been paid into such court, in the same manner as if the pro- ceeds had issued from such court.^ And in the case of a sale of lands lying partly in different counties, the court issuing the writ has power to distribute the ftind, with respect to liens upon the portion of the tract lying in the adjoining county or counties f and where separate sales have been made in several counties, of the defendant's lands therein, and it is claimed that one or more of the liens binds the whole, the common pleas of the county where the first sale was made, or, in case a special court is necessary, then the president judge of any adjoining district, may distribute the whole fund.^ § 1340. Appointment of auditors. The courts rarely, in the first instance, exercise this power of distribution, but where there are con- flicting claims to the fund, the questions in dispute are, on motion of one of the claimants, referred for examination to an officer of the court, appointed pro hdc vice, who is called an auditor. Auditors are called in by the court, to hear matters of detail, which the court has not time to hear, and to inform the conscience of the court as to facts which are essential to be known, before a particular decree or judgment can be pro- nounced.* Auditors must be members of the bar, of at least two years' » Siter's Appeal, 26 Penn. St. 178. ' Ibid., § 100. 2 Grouse's Appeal, 28 Penn. St. 139. ' Act 13 June 1840, § 12, P. L. 692; ' Bittinff's Appeal, 17 Penn. St. 211. Purd. 654. And see Small's Appeal, 24 Ibid. 398. ' Act 13 April 1843, § 9, P. L. 235 ; Faxjkler v. Bale, 1 Pears. 171. Purd. 654. * Act 16 June 1836. ^ 86, P. L. 777 ; ' Miller's Appeal, 30 Penn. St. 490 ; Purd. 656. Woodward, J. 780 EXECUTION. standing ;^ and not related to any one or more of the judges of the court by ties of consanguinity or marriage f but, except in Allegheny county, this prohibition does not apply to cases in which the parties, or their counsel, nominate the auditor.^ The order issued under the seal of the court, is evidence of the extent of the auditor's authority.* § 1341. Where the distribution of the proceeds of a sheriff's sale is referred to an auditor for adjustment, after obtaining a certificate of his appointment, he is required, by rule of court, to give public notice of the time and place of hearing, by advertisement, made twice successively, in the Legal Intelligencer, published in Philadelphia; also, every other day, five times, in one daily newspaper of the city of Philadelphia ; and also to post in the prothonotary's office, a written or printed notice of the time and place of hearing, at least six days before the hearing. In such notices, all persons must be required to make their claims before the auditor, or be debarred from coming in upon the fund.* It is also cus- tomary for the auditor, before the meeting, to procure searches for incumbrances ; but it is not incumbent on him to do so ; all persons are concluded by the public notice given ;^ the lien-creditors must look to the application of the fund at their peril.^ § 1342. Powers of the auditor. The auditor's powers are restricted by the terms of the order.' He is empowered, by statute,' to issue mb- pcenas to witnesses to appear before him ; and also to issue attachments against defaulting witnesses, directed to the sheriff or any constable of the proper county. He has power to administer an oath or affirmation to the witnesses produced before him ; and if a witness refuse to testify, the court will grant a rule to show cause why an attachment should not issue against him, and, if the reasons for such refusal be insufficient, will award an attachment against the contumacious witness.'" In admitting or rejecting testimony, the auditor is to be governed by the ordinary rules of evidence, and his decision is subject to review by the court, upon exceptions taken by a dissatisfied party. When evidence is offered and objected to, and he is desired by a party to note it for the opinion of the court, he should distinctly state in his report the offer and its purpose, the objection thereto, and his ruling thereon : in some cases, he may also state how the report should be, in case the evidence has been erro- neously admitted or reported by him : and it may be very proper, in some cases, to report the question of evidence to the court for decision, and suspend the proceedings until it is decided." ' Rule viii. § 19. ' Finnev v. Commonwealth, 1 P. & ■^ Act 24 January 1849, ?16, P. L. W. 240. " Bank of Pennsylvania u. 682 ; Purd. 113. Wina;er, 1 Rawle 295. 'Act 29 March 1860, P. L. 343; ^ Benson's Appeal. 48 Penn. St. 159. Purd. 113. For the several purposes Gaston's Appeal, 1 Pitts. 48. See Yo- for which auditors may be appointed, der's Appeal, 45 Penti. St. 394. see Purd. 113 n. « Act 11 April 1848, H, P- L. 507; ' Toder's Appeal, 45 Penn. St. 394. Purd. 113. * Rule viii. § 20. ' '" Jlatthews's Estate, 1 Phila. 292. « Shantz V Lyle, 1 W. N. C. 224. " Mengas's Appeal, 19 Penn. St. Cramp's Appeal, 81 Penn. St. 90. 221. AUDITOES. 781 § 1343. An auditor appointed to distribute a fund in court, cannot inquire into the validity of a judgment ; be must take it as conclusive f- he must either allow it, according to its date, or suspend his decision, until its validity is decided f other lien-creditors cannot attack a judg- ment, on the ground that its recovery is fraudulent as against the debtor.^ But an auditor may disregard a void judgment;'' as, where a judgment has been entered on a warrant of attorney, without a compliance w'ith the provisions of the statute.^ So, he may reduce the amount of a judg- ment, entered by warrant of attorney, on the ground of usury in the transaction f so, it has been ruled, that subsequent judgment-creditors may impeach a mortgage for usury, on a question of distribution f but this has been denied f at all events, if the judgment be entered to secure a claim, indefinite in amount, it is competent for subsequent lien-creditors to show usury, in order to ascertain the amount for which it is claimed to be a lien.' And so, also, it is competent for an auditor to receive testimony to show that a judgment has been paid or satisfied.'" But, on a question of distribution, he cannot go behind the record of a lien, to inquire into the true time of its entry on the docket; " he may, how- ever, inquire into the validity of a judgment against a. feme co'yeH, which is primd facie void.'^ § 1344. Auditors' reports. It is well settled, as a matter of practice, that an auditor must report the facts, and not the evidence of them.'' The evidence taken by the auditor will not be considered, on exception to his report, unless brought up by special order ; which can only be had on affidavit and rule, grounded on mistake of the auditor ; which mistake must be distinctly set out in the affidavit." The auditor should annex to his report a schedule of distribution, in which should be stated the name of each party entitled to participate in the fund, and the amount to which he is entitled.'^ He is required by rule of court, to give ' Dyott's Estate, 2 W. & S. 557. 470. Thompson's Appeal, 57 Penn. St. 175. " Kendig's Appeal, 82 Penn. St. 68. Edwards's Appeal, 66 Ibid. 89. Bor- ^'' Fritohey's Estate, 1 Pears. 169. land's Appeal, Ibid. 470. Malone's " Treasurer of Jefferson v. Shannon, Appeal, 79 Ibid. 481. Bank of Titus- 51 Penn. St. 221. Wesoo's Appeal, 52 ville's Appeal, 85 Ibid. 528. Rice v. Ibid. 195. Harper's Estate, 1 Brewst. Southern Pennsylvania Iron and Rail- 471. Killion's Appeal, 3 Ibid. 235. road Co., 9 Phila. 294. Haines v. Burr, 1 Phila. 52. Field 2 Leeds v. Bender, 6 W. & S. 315. v. Oberteuffer, 2 Ibid. 271. Church v. A voidable judgment may be reversed Church, 5 Ibid. 358. Ford's Estate, 8 on error, but an auditor cannot inquire Ibid. 196. into its regularity. Edwards's Appeal, " Stilwell's Estate, 8 Phila. 178. 66 Penn. St. 90. O'Kane's Estate, 1 "W. N. C. 416. ' Dougherty's Estate, 9 W. & S. 189. Gegan's Estate, 4 Ibid. 127. The court * Brunner's Appeal, 47 Penn. St. 67. will not direct the testimony to be ^ Cairy's Appeal, 4 Pitts. L. J. 652. returned, unless on cause shown. » Bachdell's Appeal, 56 Penn. St. 386. Quinn's Estate, 1 Ibid. 9. McMullen's ' Building Association v. O'Connor, Estate, Ibid. 415. 3 Phila. 453. Greene v. Tyler, 39 Penn. " Where it is rendered certain by the gj. 3gi_ evidence, that a particular creditor is * Sill V. Wright, 21 Pitts. L. J. 190. entitled to the fund, the auditor need * Price's Appeal, 84 Penn. St. 141. not state an account. Girard Life In- >» Borland's Appeal, 66 Penn. St. surance Co. v. Young, 8 Phila. 16. 782 EXECUTION. notice to the parties who appeared before him, or their attorneys, of the time and place of making his report ; and proof of such notice must be filed of record.^ When filed, the report is, upon motion in open court, confirmed nisi; and unless exception thereto be filed within eight dayg thereafter, the confirmation becomes absolute;^ in a proper case, how- ever, the court may allow exceptions to be filed nunc pro tuno;^ but exceptions must be filed in the court below ; they cannot be taken for the first time, on appeal.^ § 1345. The auditor should put his finding of the facts in some such form as this — " The auditor, from the evidence adduced before him, finds the facts to be as follows :"° When- so found, his report upon the facts will not be set aside, except for plain mistake, afiirmatively established, or apparent upon its face f it is entitled to the same weight as a verdict, and will only be set aside, upon ground which would be sufficient for the granting of a new trial at common law f if approved by the court below, it will not be disturbed, on appeal, except for flagrant error.* If there be sufficient evidence to sustain the report, which has been sustained by the court below, the supreme court will not reverse for the admission of incompetent evidence, unless shown to have resulted in manifest injustice.' If not supported by the evidence, it may be disregarded ; but, like a verdict, must stand, unless clearly against the weight of evidence.'" As the decision of an auditor, however, is m rem, it is only binding on the fund before him for distribution.^' § 1346. As we have seen, any party dissatisfied with the auditor's rul- ing at the hearing, or with the conclusion at which he has arrived, may except to the report; but each party aggrieved must except for himself; he cannot take advantage of exceptions filed by another, and dismissed by the court, after argument.'^ The exception should point oat specifi- cally the very error complained of, or it may be disregarded.'^ After argu- ' Rule viii. § 22. In the absence of 32 Leg. Int. 199. Clendaniel's Estate, such rule, it would not be error, to file 35 Ibid. 90. the report, without notice. Gossner's ^ Burrough's Appeal, 26 Penn. St. Estate, 6 Whart. 401. 264. Loomis's Appeal, 22 Ibid. 312. 2 Ibid. Whiteside's Appeal, 23 Ibid. 114. » Diller's Estate, 9 L. Bar 2. Bull's Appeal, 24 Ibid. 286. Mellon'a * Irwin's Appeal, 5 "Whart. 577. Appeal, 32 Ibid. 121. Landis v. Scott, 5 Church V. Church, 5 Phila. 358; Ibid. 495. Robinett's Appeal, 36 Ibid. Sharswood, J. 174. Chew's Appeal, 45 Ibid. 228. » Harland's Accounts, 5 Rawle 323. Dellinger's Appeal, 71 Ibid. 425. Gil- Stehman's Appeal, 5 Penn. St. 413. bert's Appeal, 78 Ibid. 266. Bolton's Miller's Appeal, 30 Ibid. 478. Yohe's Appeal, 3 Gr. 204. Killion's Appeal, 3 Appeal, 55 Ibid. 121. Brua's Appeal, Brewst. 235. Heft's Appeal, 1 W. N. Ibid. 294. Scattergood's Estate, 2 C. 174. Rudy's Estate, 2 Ibid. 674. Phila. 158. Gilbert v. Grim, 1 W. N. » Sawtelle's Appeal, 84 Penn. St. C. 306. 306. ' Ilottenstein's Appeal, 2 Gr. 301. '" Speakman's Appeal, 71 Penn. St. Harris's Appeal, Ibid. 304. And see 25. See Hindman's Appeal, 85 Ibid. Bicking's Appeal, 2 Brewst. 202. 466. Haines v. Burr, 1 Phila. 52. Field " Cowan v. Gonder, 5 Phila. 51. V. Oberteuffer, 2 Ibid. 271. Abbott v. '" Constine's Appeal, 1 Gr. 242. Myers, 5 Ibid. 451. Wedekind's Es- " Mengas's Appeal, 19 Penn. St. tate, 1 W. N. C. 418. Jones v. Jones, 221. ATTACHMENT-EXECUTION. 783 ment on the exceptions, the court may either confirm the report, modify it, set it aside, or refer it back to the auditor for reconsideration ; parties may agree that an auditor's report shall be final and conclusive, as between themselves ; but this will not affect the powers of the court, as to^creditors or others.' The court, on setting aside an auditor's report, may itself distribute the fund, on the facts reported by him.^ The case will not be referred back to the auditor, simply on the alle- gation of want of notice, where notice by publication has been given ; otherwise, if the auditor has rejected claims of which there was some evidence before him, though the creditor did not appear in person." When a report is referred back to the auditor, the whole case is reopened, and all parties are bound to take notice;^ but where it is recommitted, simply to restate the account, he is not bound to hear new testimony." § 1347. Compensation of auditors. Auditors are entitled to fees for distributing a fund in court; they are not within the provisions of the fee-bill.^ Except where regulated by statute, the courts possess the power of regulating the compensation of auditors ; it is a matter of sound discretion.^ In general, the compensation should be regulated by the labor bestowed ; not by the amount of the fund.' An auditor should be fully and liberally compensated for his trouble and professional services, but beyond this the court ought not to go f what is such proper com- pensation must be determined in each particular case.'" In Philadelphia, it is provided by statute,^' that where the fund for distribution amounts to $1000 and upwards, auditors shall be entitled to ten dollars for each day they necessarily attend to the duties of their appointment, not exceeding five days, and the additional sum of twenty-five dollars for making the report; and they shall receive one-half such rate, in compen- sation for their services, where the balance for distribution is less than $1000 ; but in important cases, on cause shown, the court may allow such additional compensation as they may deem proper. An auditor can only charge the amount allowed by this statute, unless his fee be agreed to by the counsel of all the parties in interest, or is fixed by the court.'^ The auditor should submit the question of his compensation to all the parties to be affected thereby ; he should not name any sum in advance; if the amount fixed be satisfactory, he should state the fact of the sub- mission in connection with the charge; and his report should always 1 Miller's Appeal, 30 Penn. St. 478. " Parker's Appeal, 61 Penn. St. 478. Porter's Appeal, Ibid. 496. ° Bordman's Estate, 1 Phila. 384. ' Drysdale's Appeal, 14 Penn. St. " Heiney's Estate, 4 Phila. 178. 531. " Act 14 April 1870, P. L. 1158 ; 3 Coates's Estate, 2 Pars. 258. See Purd. 114. Harlan's Accounts, 1 Clark 451. " Haugh's Estate, 9 Phila. 329. * Thoma's Estate, 76 Penn. St. 30. "Ward's Estate, Ibid. 332. Milligan's * Donnelly's Estate, 3 Phila. 18. Estate, 1 Leg. Gaz. R. 203. Moffett's Landis's Estate, 6 L. Bar 57. Estate, 1 W. N. C. 518. Benner's Es- " Pitzsimmon's Appeal, 4 Penn. St. tate, 32 Leg. Int. 28. Bradley's 248. Estate, Ibid. 257. Bewley's Estate, ' Porter's Appeal, 30 Penn. St. 496. 35 Ibid. 120. 784 EXECUTION. show that every party in interest has been consulted.^ And it is said, the agreement of counsel, fixing the compensation of an auditor, should be in writing.^ If dissatisfied with the amount fixed by the statute, the auditor should complete his report, so far as the table of distribution, and then submit the report, with a statement of his fee, calculated on the regular charges of the act, and a suggestion of what further allowance is deemed reasonable by himself, or by the counsel before him ; having thus before it the facts by which to.judge of the extent and diificulty of the auditor's labors, the court is enabled to comply with the spirit as well as the letter of the act of assembly.' § 1348. Costs of audit. On a question of distribution, the costs are, in general, payable out of the fund;* but where the proceeds of a a sheriff's sale of different properties are brought into court for distribu- tion among contending lien-creditors, the costs of each particular case must be paid out of the fund applicable to the payment of the principal debt ; and the costs of trying issues, printers' bills, and compensation of the auditor will be apportioned among the creditors pro rata? Whether a party to the distribution shall be allowed, out of the fund, the costs of witnesses, subpomas, &c., is a matter in the discretion of the court, under the circumstances ; as against an undisputed lien, no such costs will be allowed; but as against a contested claim, the successful party is entitled to costs out of that part of the fund contested for.^ Where the proceeds of a sheriff's sale are ruled into court, in good faith, the court will not impose the costs upon the claimant, in case of non-success.^ § 1349. Feigned issue. If any fact connected with the distribution be in dispute, the court is required, at the request in writing of any per- son interested, to direct an issue to try the same.' In such case, a lien- creditor is entitled to an issue, as a matter of right,' if the provisions of the statute be complied with -^^ and the court has no power to strike off such issue after one trial, and a failure of the jury to agree ; if of opinion that there is no sufficient evidence to sustain the issue, they should so instruct the jury, in order that their ruling may be reviewed on error.^' An issue can only be demanded by a " person interested ;" a simple con- tract-creditor is not entitled thereto ;'^ but a purchaser at sheriff's sale ' Benner's Estate, 3 Brewst. 398. " Easton's Appeal, 47 Penn. St. 255. An auditor must, in the first instance, ' Dinsmore v. Davis, 36 Leg. Int. submit the amount of his compensation 174. • to the counsel of the party liable to the = Act 16 June 1836, 1 87, P. L. 777 ; costs of the proceeding. Stewart's Es- Purd. 656. tate, 6 W. N. C. 434. » Reigart's Appeal, 7 W. & S. 267. 2 Benner's Estate, 32 Leg. Int. 28. Bichal c. Rank. 5 Watts 140. Trim- ' Krause v. Stiles, 9 Phila. 127. ble's Appeal, 6' Ibid. 133. White v. And see Myers's Estate, Ibid. 310. Lucas, 4 Phila. 30. Souder's Appeal, * O'Neal V. McClure, 1 Phila. 102. 57 Penn. St. 498. See Dietterich v. Heft, 5 Penn. St. 90 ; >» Lippincott v. Lippincott, 1 Phila. where it is said, the auditor's fees and 396. charges are always allowed out of the " Dormer v. Brown, 72 Penn. St. fund. And see Harding's Estate, 24 404. And see Gentner ti. Geiler, 4 W. Mfl- 1*^9- N. C. 139. » Cowden's Estate, 1 Penn. St. 267. " Smith v. Reiff, 20 Penn. St. 364. FEIGNED ISSUE. 785 is a person interested, where the question is, whether a prior mortgage was discharged by the sale.' In Philadelphia, it is provided by rule of court, that a demand for an issue must be made within forty-eight hours after the hearing by an auditor has been concluded.^ § 1350. It is provided by act of assembly, that before an issue shall be awarded, the applicant therefor shall make affidavit, that there are material facts in dispute, and shall set forth the nature and character thereof; upon which affidavit, the court shall determine whether such issue shall be granted, subject to writ of error or appeal, in case of a refusal thereof.^ The court is not bound to award an issue, unless there be a dispute as to the facts;* the right to an issue depends on the materiality of the facts alleged in the affidavit of the applicant.' The demand must set forth, on oath, the nature and character of the mate- rial facts in dispute ;" it is not enough, to aver that a prior judgment is fraudulent and collusive; the applicant must set forth that there are material facts in dispute, and also the nature and character of them.^ But where there is a distinct allegation of fraud and collusion between mortgagor and mortgagee, an issue will be awarded.* The rule of court provides, that it shall be the duty of any person desiring an issue, to reduce his request to writing, with an affidavit that there are material facts in dispute, setting -forth the nature and character thereof, and to present the same to the auditor, within forty-eight hours, after the hear- ing has been concluded ; and the auditor shall forthwith make report to the court of the presentation of such written request to him, annexing such request and affidavit to his report.' When an issue is awarded, the court should order who are to be the parties plaintiff and defendant; and the cause should be put in form, by filing a declaration, plea and joinder in issue ;^'' the issue must be restricted specially to the ascertainment of the particular matter in dispute ; the whole subject of distribution is not to be comprised in it ;^^ and an adverse claimant of the land cannot b© made a party to the issue,^^ The finding of the jury is conclusive on the question of distribution ;^' but nothing found by such issue will avail any ^ Towers v. Tusoarora Academy, 8 * Biddle v. King, 1 Phila. 394. Penn. St. 297. Morgan's Estate, 3 Luz. L. Reg. 118. 2 Rule viii. | 21. Connelly v. "Withers, 9 L. Bar 1 1 7. ' Act 20 April 1846, P. L. 411 ; ' Robinson's Appeal, 36 Penn. St. Purd. 6.56. See Reed's Appeal, 71 81. Penn. St. 378. ' Goodwin v. Sheppard, 3 Phila. * Dickerson's Appeal, 7 Penn. St. 441. And see Association v. McDon- 255. Knight's Appeal, 19 Ibid. 493. aid, 5 Ibid. 442. Christophers v. Selden, 28 Ibid. 165. », Rule viii. § 21. The court is not bound to grant an '" Muhlenberg v. Brock, 25 Penn. St. issue, if the record show that it must 517. And see Ringwalt v. Ahl, 36 necessarily prove unavailing. Benson's Ibid. 336. Appeal, 48 Ibid. 160. " Shertzeru. Herr, 19 Penn. St. 34. ^ Battin v. Meyer, 5 Phila. 73. Russel v. Reed, 27 Ibid. 166. Chris- Brinton v. Perry, 1 Ibid. 436. If no tophers v. Selden, 28 Ibid. 165. Mc- ground be laid for an issue, it would be Daniel v. Haley, 1 Miles 353. irregular to award it. Gregg «. Patter- '^ Wolf v. Payne, 35 Penn. St. 97. son.' 9 W. & S. 197. Overholt's Ap- '' Garrison's Appeal, 38 Penn. St. peal, 12 Penn. St. 224. 531. Barrett's Appeal, 71 Ibid. 317. VOL. I. — 50 786 EXECUTION. other than the parties to it.' The omission of a party to demand an issue is equivalent to an acquiescence in the submission of the facts to the auditor.^ § 1351. The judgment upon the issue is subject to a writ of error, as in other cases, without prejudice to the right of appeal from the final decree.^ And pending a feigned issue, or writ of error or appeal, the court is empowered to direct an investment of the fund ;* or, in the latter case, it may order the fund to be paid over according to the decree of distribution, taking suiBcient security for the refunding thereof, with interest, in case of a reversal.' A writ of error or appeal, however, must be taken within twenty days from the decree of distribution.^ After the decision of a feigned issue, the auditor proceeds to make his report, which has been suspended during its pendency ; but, whilst the issue is pending, the court will not allow even an undisputed dividend to be taken out of court.' The auditor's report is to be recorded in the pro- thonotary's office;* and upon confirmation thereof, the court makes a final decree of distribution, from which an appeal lies,' by any person aggrieved.'" The appeal is entered in the court below; the appellant ' Schultze's Appeal, 1 Penn. St. 251. Schick's Appeal, 49 Ibid. 380. Schick V. Pharo, Ibid. 384. Brown v. Parkinson, 56 Ibid. 336. Thompson's Appeal, 57 Ibid. 178. '' Yardley v. Holby, District Court, Phila., 26 June 1852. Exceptions to an auditor's report. Per curiam. The decision of an auditor upon the facts of a case is conclusive. The party had a right to demand an issue, and not having exercised that right, must be taken to have acquiesced in the submission of the matter to the judgment of the auditor. Of the com- petency of the witness Cromwell, there can be no doubt ; he was the assignor of one of the claims, and was called by the other lien-creditors, to prove that the claim was paid by the defendant before he assigned. The ground of objection was, that one dollar of the ;onsideration of the assignment re- mained unpaid, as came out in the course of his testimony ; but that was no claim on the fund ; a personal claim only against the assignee. We think, therefore, the witness was rightly ad- mitted. As to the question presented under the exemption law, we also agree with the auditor, that the claim of the defendant, in the case of real estate, must be made under the fi. fa., and before a venditioni exponas ; otherwise, it is waived. Exceptions dismissed. 'Act 12 February 1869, P. L. 3 ; Purd. 604. * Act 16. June 1836, | 92, P. L. 778 ; Purd. 657. Act 20 April 1846, p, P. L. 411 ; Purd. 656. ^ Ibid. For form of refunding bond, see Smith's Forms 404. « Act of 1836, §90. The twenty days run from the date of the entry of the decree, though in vacation, if with notice to the party's counsel. Daw- son's Appeal, 15 Penn. St. 480. But the court below may review their deci- sion, and grant relief, after the expira- tion of the twenty days. Beek's Ap- peal, Ibid. 406. And see Ross's Estate, 9 Ibid. 17. ' Pepper v. Bavington, Dist. Court, Phila., Sept. 1848. MS. 8 Act 25 April 1850, g 19, P. L.572: Purd. 1250. ' If the party aggrieved desire to re- viewthe findingof the jury on afeigned issue, he must take a writ of error to the final judgment ; he cannot do so by appeal. Reed's Appeal, 71 Penn. St. 378. '" See snpra, §1349, as to who is a party aggrieved. It seems, that the sheriff, who has the proceeds in his hands, may appeal pro interesse sito. Hamner v. Grifhth, 1 Gr. 193. Cred- itors, whose claims were not submitted to the auditor, have no status to appeal from the decree. Reamer's Appeal, 18 Penn. St. 510. McLellan's Appeal, 26 Ibid. 463. Nor can a mere custodian puechaser's title. 787 being required, by statute, to make oath, that his appeal is not intended for delay ; and in order to make it a supersedeas, he must also give secu- rity, by recognisance, with surety, to prosecute his appeal with effect, and pay all costs that shall be adjudged against him.^ The appeal having been duly entered, it is usual to sue out a writ of certiorari from the supreme court, to remove the record ; though this is not indispensable.^ The writ of certiorari issues, of course, upon a praecipe to the prothono- tary of the supreme court, directing him to issue such writ for the removal of the appeal of the party suing it out, from the decree of the court below, in the matter of the distribution of the proceeds of the sheriff's sale in the particular case. We have already considered the effect of the auditor's report, in case of an appeal.^ If, however, there be no appeal from the final decree, or if the same be affirmed on appeal, then the fund is to be distributed by the prothonotary, if it be in court, in accordance with the schedule accompanying the report. But no money can be paid out of court, except on the check of the prothono- tary, on which must be indorsed a certificate, under his hand and seal of office, that the money has been ordered to be so paid, by one of the judges of the court.'' XV. Title and rights of tlie purchaser. § 1352. Purchaser's title. It is provided by statute,^ that the pur- chaser shall take the same estate in the premises, and under the same rents and services, as the debtor had at the time of the taking thereof in execution ; and several purchasers take as tenants in common.^ This is the general rule; but it would not be correct to say, that the purchaser has no better title than the defendant had, at the time of sale ; his title dates, in many respects from the lien of the judgment or mortgage under which it was sold ; he holds the land discharged of secret trusts, and of intervening incumbrances, leases and conveyances made by the debtor ; the sale overreaches the mesne acts of the debtor, and passes the title discharged of them.^ So, a sale on an execution issued on a judgment entered upon a bond and warrant of attorney, accompanying a mortgage, avoids a lease made by the mortgagor, intermediate between the date of the mortgage and the entry of the judgment ; the purchaser's title relates back to the date of the mortgage.* It is, however, ex- pressly provided by statute, that sales for registered taxes or municipal assessments, in Philadelphia, shall not operate to extinguish a ground- rent ;' the purchaser, therefore, takes subject thereto ; which, it seems, of the fund. Allegheny Bank's Ap- « Act of 1705, 1 Sm. L. 32; Purd. peal, 48 Ibid. 328. And see Hise's 651. Estate, 5 Watts 157. Constine's Appeal, ' MoCx)rmick ». McMurtrie, 4 Watts 1 Gr. 242. 192. Bury v. Sieber, 5 Penn. St. 434. 1 Act of 1836, ^ 91. Coulter v. Phillips, 20 Ibid. 154. 2 Tryon v. Cadwalader, 3 Luz. L. ^ McCall «. Lenox, 9 S. & R. 302. Obs. 226. Bury v. Sieber, 5 Penn. St. 434. ' See supra, 1 1345. ' Act 23 January 1849, ?6, P. L. * Rule xxiii. I 78. 686 ; Purd. 752. ' Act of 1836, I 66. 788 INQUISITION. he would not otherwise have done ; especially, if the ground-rent deed were not recorded.^ § 1353. The rule of caveat emptor applies in all its force, to a pur- chaser at a sheriff's or other judicial sale; if the defendant in the execu- tion had no title, the purchaser takes noue ; he cannot object to payment of the purchase-money, on the ground of defect of title ;^ nor can he recover back his purchase-money, on account of the existence of incum- brances of which no notice was given.^ He takes subject to superior rights existing in a third person, under a contract with the state ;* and he is affected by a notice given at the sale, that the defendant in the execution is a mere trustee, and that the equitable title is in another.' So also, a purchaser of tlie equitable title of a vendee by articles, has constructive notice of the equi ties residing in the vendor ; the latter is not bound to attend the sale and give notice thereof;' but he is not affected by unrecorded articles of agreement, of which he had no notice.' Since the passage of the act of 1830, a purchaser of mortgaged property, under a subsequent judgment, only acquires the equity of redemption;* and even if the mortgagee became the purchaser, he is not entitled to a deed, on crediting the amount of his bid in satisfaction of the mort- gage ; he must pay the amount thereof to the sheriff' And one who holds expressly subject to an incumbrance upon the land, cannot get rid of the same, by permitting a sale under a judgment against a former owner, and himself becoming the purchaser.'" § 1354. What will affect the purchaser's title. The record of a deed or mortgage is constructive notice to all mankind ;" a purchaser is bound, therefore, to look to the records and the state of the possession at the time of the sale ;'^ but not to its state at the date of the acknow- ledgment of the sheriff's deed.'^ And where a trust was only mentioned in the recital of the deed, it is no notice to the purchaser at a sheriff's sale of the land, on a judgment against the grantee.'* So, where the description in a recorded deed is too vague and indefinite either to bring home notice to the purchaser, or to put him upon inquiry, he will be pro- tected against it." And the purchaser is not bound to notice a deed or mortgage defectively registered ; nor a judgment or lien which appears Salter v. Reed, 15 Penn. St. 260. Ross v. Baker, 72 Penn. St. 186. 2 Smith «. Painter, 5 S. & R. 226. ^ Biddle v. Moore, 3 Penn. St. 161. Priedly v. Soheetz, 9 Ibid. 156. Elkin ' Swartz v. Moore, 5 S. & R. 257. V. Meredith, 2 Miles 167. Hough v. « Garro v. Thompson, 7 AYatts 416. Lorentz, supra, § 1276. A sale under ' Crawford v. Boyer, 14 Penn. St. a judgment in partition is a, judicial 380. ' ' one, to which the rule of caveat emptor "" Taylor v. Smith, 2 Whart. 432. applies. Allen v. Gault, 27 Penn. St. •' Evans v. Jones, 1 Yeates 173. 473. So is an orphans' court sale. •^ Stewart v. Freeman, 22 Penn. St. Vandever v. Baker, 13 Ibid. 121. 120. Gingrich v. Foltz, 19 Ibid. 38. ' Moffat V. Israel, 4 Yeates 489. '■' Stewart v. Freeman, ut supra. AVeidler v. Farmers' Bank, 11 S. & R. Gibson v. Winslow, 38 Penn. St. 49, 134. " Kaine v. Denniston, 22 Penn. St. * Beaver Falls Water-Power Co. v. 202. Wilson, 83 Penn. St. 83. '» Banks v. Ammon, 27 Penn. St. " Barnes v. MoClinton, 3 P. & W. 67. 172. PUECHASER S TITLE. 789 on its face to be a nullity ;* he is not bound to look beyond the judg- ment-docket.^ And where a judgnaent existed, unsatisfied of record, which, if valid, would have the effect of causing a mortgage to be dis- charged by the sheriff's sale, the jjurchaser will not be affected by the fact, that such judgment had been paid, unless actual notice to him of such payment be shown.^ But, though a purchaser is, in general, pro- tected by the recording acts against an outstanding title of which he has neither actual nor constructive notice, this does not apply as against the holder of the legal title of land, to which the defendant had only the equitable title under articles ; the possession of the defendant, in such case, is notice of his equitable title only, and such title only passes by the sale ; the admissions of the defendant, made before the entry of the judgment, that the purchase-money was unpaid, are admissible in evi- dence against the purchaser at the sheriff's sale.* § 1355. lAs pendens. The pendency of proceedings at law is con- structive notice to purchasers; therefore, one who purchases, pending an ejectment, to which the owner of the interest sold is a party, is affected with notice, and is bound b}' the decree, as much as if he were a party to the ejectment.^ So, a sheriff's sale is constructive notice, and one who purchases at a second sheriff's sale of the same interest, made before the sheriff's deed on the first sale is acknowledged, takes no title, where the first sale was valid, although the deed for the last sale was first acknowledged;^ but an irregular proceeding does not affect a sub- sequent purchaser.'' So, where a sale of land was fraudulent under the statutes 13 and 27 Eliz., the grantor remaining in possession, by his tenants, and during that possession, the land was sold by the sheriff as the property of the grantee, such possession of the grantor was construc- tive notice to the sheriff s vendee of the fraudulency of the conveyance from the grantor to the grantee.* § 1356. Actual notice. Actual notice of an adverse title will, gener- ally, conclude a purchaser at sheriff's sale, and he will then stand in the ' Goeppw. Gartiser, .35 Penn. St. 130. with notice of an ejectment, or action ' Hance's Appeal, 1 Penn. St. 408. to recover real estate, or to compel a Commonwealth's Appeal, 4 Ibid. 165. conveyance thereof, unless such action Coyne v. Souther, 61 Ibid. 455. shall be indexed against the defendant, ' Magawu. Garrett, 25 Penn. St. 319. and any terre-tenant made a party * jNIorrison v. Funk, 23 Penn. St. thereto, in the ejectment-index, kept 421. This case is really no excep- in the prothonotary's office. This does tion to the rule above stated, for, not affect parties to actions pending at here, the defendant's possession was the time of its passage. Act 22 April constructive notice of an outstanding 1863, P. L. 560. Injunctions restrain- legal title. A purchaser of the equita-. ing the sale or incumbrance of real es- ble title, with notice of the outstanding tate, are required by law, to be properly legal title, cannot set up an outstand- indexed ; as also decrees in lunacy r-nd ino- equity against the legal title, divorce. Act 22 May 1878, P. L. 95 ; Do'uTan v. Blocher, 24 Ibid. 28. Purd. 2162. * Herseyu. Turbett, 27Penn. St. 418. * Hoyt y. Koons, 19 Penn. St. 277. Snively v. Hitechew, 59 Ibid. 4.9. By And see McFee v. Harris, 25 Ibid. 102. act 22 April 1856, |2, P. L. 532, ' See Galbraith w. Fisher, 22 Penn. Purd. 537, it is provided, that no pur- St. 406. chaser or mortgagee shall be affected * Hood ti. Fahnestook, 1 Penn. St. 470. 790 EXECUTION, same situation as the defendant.^ And it is sufficient that notice of an adverse title be given at the salef but notice communicated to the sheriff, not publicly announced to the bidders, will not affect the pur- chaser — the sheriff is not his agent f the adverse claimant, however, will, as against the purchaser at the sale, be restricted to the particular title of which notice was given.* Statements or loose conversations made at the sale by strangers will not affect the purchaser.^ Actual notice may be inferred from circumstances, and is then a question for the jury.° As regards incumbrances, the rule seems to be different, and it has been said, that the purchaser is protected against an unrecorded mortgage, prior to the judgment under which the sale was made, whether he had notice of it or notJ At any rate, the judgment-plaintiff purchasing at the sale is not affected by notice, given at the sale, of an unrecorded mortgage prior to his judgment f but if he had actual notice of the mortgage, at the time of the execution of his warrant of attorney, he takes subject thereto.' And a mortgagee in possession under an uarecorded mortgage, has no right to retain the possession, until he has been repaid his mortgage-debt, as against the sheriff's vendee under a judgment against the mortgagor.^" § 1357. Constructive notice. A purchaser at sheriff's sale being within the protection of the recording acts," to affect him with construct- ive notice of an unrecorded conveyance, by reason of the occupancy of a person claiming under it, such possession or occupancy must be clear, open, notorious and unequivocal, at the time of sale.'^ Possession, to con- stitute notice of a claim of title, sufficient to put a purchaser on inquiry, must be an actual one, manifested by notorious acts of ownership, such as would naturally be observed by and known to the public.^' But if there be such open and notorious possession, by one claiming under an unrecorded deed, it is constructive notice of his title, to a purchaser at sheriff's sale under a judgment against the grantor." So, a purchaser ^ Brown v. Bank of Chambersburg, ' Hibberd v. Bovier, 1 Gr. 266. See 3 Penn. St. 187. Coleman v. Lewis, note to 1 W. N. C. 595. 27 Ibid. 291. Patton v. Hollidaysburg, « Stradling v. Henok, 2 Phila. 302. 40 Ibid. 206. Stradling v. Henck, 2 Uhler v. Hutchinson, 23 Penn. St. PMla. 302. 110. 2 Barnes v. McClinton, 3 P.& W. 67. ' Britten's Appeal, 45 Penn. St. 172. Weeks v. Haas, 3 W. & S. 525. Esh- '" Wilson u. Shoenberger, 34 Penn. back V. Zimmerman, 2 Penn. St. 313. St. 121. And it is not necessary to charge the " Heister v. Fortner, 2 Binn. 40. purchaser with notice at the date of the Clark v. Campbell, 2 Rawle 215. judgment. Meyer v. Shick, 3 Ibid. 242. Stewart v. Freeman, 22 Penn. St. 120. ' Stable V. Spohn, 8 S. & R. 327 ; Hultz v. Ackley, 63 Ibid. 142. Duncan, J. '^ Meehan v. Williams, 48 Penn. St. * Bshback v. Zimmerman, 2 Penn. 238. St. 313. Brown v. Bank of Chambers- " Holmes v. Stout, 3 Green Ch. 492 ; burg, 3 Ibid. 1 87. Randall v. Silver- s. c. 2 Stock. 419. Union College v. thorn, 4 Ibid. 177. Wheeler, 59 Barb. 585 : s. c. 5 Lans. * Sergeant v. Ford, 2 W. & S. 122. 160. And see Drexel v. Man, 6 Ibid. 343. " Tuttle v. Hills, 6 Wend. 213. Loomis's Appeal, 22 Penn. St. 312. Webster v. Van Steenbergh, 46 Barb. " -Brown v. Bank of Chambersburg, 211. Landes v. Brant, 10 How. 348. 3 Penn. St. 187. Rhines v. Baird, 41 And see Krider v. Lafferty, 1 Whart. Ibid. 256. 303. pukc ha see's title. 791 at sheriff's sale is not affected -svith constructive notice of a deed defect- ively acknowledged, though actually recorded ;^ aod if a party in pos- session register a particular title, his possession is not constructive notice of any other claim.^ § 1358. JSjfect of irregularities. In general, it may be said, that the purchaser's title is not affected by the invalidity of the judgment upon which the sale was made, nor even by its reversal, unless it was absolutely void from the beginning •? thus, a sale under a judgment against Ephraim Jackson's executors, without naming them, is valid."* And even if the judgment was confessed by an attorney, without authority,^ if the parties were competent to appear by attorney, the pur- chaser acquires a good title by a sale under it,*" although the judgment was irregularly revived. So, if the judgment had been paid, but not satisfied of record, until after the sale, though this was done before the acknowledgment of the sheriff's deed, the purchaser's title is good, unless the plaintiff become the purchaser.'^ But where the defendant had aliened his land, and the lien of the judgment expired between the levy and sale, the purchaser takes no title f if process be issued at so late a day that execution cannot be had, before the expiration of the lien, it ought to be accompanied by a scire facias, which will have the effect of preserving the lien.' The title of a purchaser cannot be affected by an irregularity in the proceedings, of which he had no notice ;'" and in such case, if the plaintiff purchase, he is entitled to the same protection as a stranger.^^ § 1359. Mere irregularities in obtaining the judgment, or in the course of the execution, are sometimes cured. '^ If the party contesting the judgment were present at the sale, and induced others to purchase;'^ or participated iu the disposition of the proceeds ;" or stood by when valua- ble improvements were made by the purchaser, and gave no notice of his claim,^^ he is estopped thereby. But where the real estate of a lunatic was illegally sold by the sheriff, the receipt of proceeds by his committee will not estop a future committee from recovering possession, even though ' Heister v. Fortner, 2 Binn. 40. notice of a prior payment of his judg- McNeil V. Magee, 5 Mason 244. ment, and therefore, a sale to him is ^ "Woods V. Farmere, 7 Watts 382, void. Gibbs v. Neely, 7 Watts»305. ' Act of 1705, § 9 ; 1 Sm. L. 61 ; But a bonS fide purchaser from him, • Purd. 651. Heister v. Fortner, 2 Binn. without noticte, will take a good title. 40. Feger v. Keefer, 6 Watts 297. Hofi'man v. Strohecker, Ibid. 86. Overton^u. Tozer, 7 Ibid. 331. Duff «. * Gloninger v. Hazard, 4 Phila. 354. Wynkoop, 74 Penn. St. 300. Jermou ' Davis v. Ehrman, 20 Penn. St. V. Lyon, 81 Ibid. 107. 256. * Jones V. Gardner, 4 Watts 416. '» Stable v. Spohn, 8 S. (fe R. 327. 5 Evans v. Meylert, 19 Penn. St. 402. " Arnold v. Gorr, 1 Rawle 223. The remedy is, by action against the " Burdick v. Norris, 2 Watts 28. attorney. Ibid. '" Willing u. Brown, 7 S. & R. 467. 8 Fetterman v. Murphy, 4 Watts Bixler v. Gilleland, 4 Penn. St, 156. 424. Spragg n. Shriver, 25 Ibid. 282. ' Samms «. Alexander, 3 Yeates " Hamilton v. Hamilton, 4 Penn. St. 268. Gibson a. Win-slow, 38 Penn. St. 193. Crowell v. Meconkey, 5 Ibid.. 1 68. 49. If the plaintiff become the pur- Spragg v. Shriver, 25 ILiid, 282, chaser, of course, he is affected with '* Hamilton v. Hamilton, ut supra. 792 EXECUTION. valuable improvements were made by the purchaser.^ And a sheriff's sale, made after the discharge of defendant as a bankrupt, conveys no title, even as against one claiming under a fraudulent deed, made by defendant in contemplation of bankruptcy.^ If judgment against execu- tors, for a legacy charged on land, be entered against the land of cer- tain only of the devisees, the land of another devisee will not pass by the sheriff's sale.^ Where, however, judgment upon a mortgage is irregular, the sheriff's vendee, before he can be dispossessed by the mort- gagor, is entitled to repayment of so much of the proceeds as have been applied to the mortgage.* § 1360. Irregularities in the course of the execution are generally cured by the acknowledgment of the sheriff's deed •? thus, the issue of two writs of vend. exp. to the same term, where one inquisition was set aside and a new one held;^ or the omission to return the vend, exp.f or a sale under a fi. fa. and vend, exp., issued after the defendant's death f or a sale under an alias lev. fa., which contained no description of the pro- perty,' will not affect the purchaser's title. And it is no objection to the purchaser's title, that one of the defendants was a surety, and the prin- cipal had personal property which was not levied on.^" Where the description in the levy is so defective, that the sale conveys no title for a part of the .land, a subsequent conveyance by the defendant to the pur- chaser will give him title to the whole tract." But a sale of a life-estate under a venditioni, which was issued without the order of the court, and without due notice to the tenant for life, is void, and confers no title on the purchaser.'^ § 1361. A sale of a decedent's land upon execution issued without warning his administrators, is invalid.^' And a sale made after the return-day of the fi. fa., with the defendant's consent, is void as against a . purchaser at a subsequent sale, under an incumbrance which would have been discharged, had the first sale been valid." So, a sale after waiver of inquisition by a defendant who had parted with his interest, is void 1 Warden v. Eichbaum, 14 Perm. St. " Springer v. Brown, 9 Penn. St. 305. 121. " Iddings v. Cairns, 2 Gr. 89. 2 Kingw. Dietz, 12 Penn. St. 156. " Kintz v. Long, 30 Penn. St. 501. ' Capsley o. Lapsley, 9 Penn. St. A purchaser is not protected, where 130. the sale was made under void process. * Evans v. Meylert, 19 Penn. St. 402. Burd v. Dansdale, 2 Binn. 80. ^ The erroneous process stands good, ^' Cadmus v. Jackson, 52 Penn. St. until the party avoids it by error, and 295. This doctrine does not apply to no person can bring a writ of error, the case of a judgment on a mortgage, but he who is party or privy to the on two returns of nihil ; such return is record and competent to release it. equivalent to scire foci, whether the Stackpole v. Glassford, 16 S. & R. mortgagor be living or dead ; and it ia 106-7. Lowber's Appeal, 8 W. & S. not necessary to warn his personal 390. Wilkinson's Appeal, 65 Penn. representatives by scire facias, before St. 190. Fister !). Greenawalt, 1 W. N. issuing execution on the judgment. C. 322. Taylor v. Young, 71 Penn. St. 81. * Springer v. Brown, 9 Penn. St. 305. Otherwise, if the sheriff return mortuus ' Gibson v. Winslow, 38 Penn. St. 49. est, as he is bound to do, if he know * Springer v. Brown, ut supra. the fact. » Dalzell V. Crawford, 1 Pars. 37. '* Dale v. Medcalf, 9 Penn. St. 108. puechaser's title. 793 and will confer no title ; and the irregularity is not cured, by a previous condemnation under a writ against a stranger to defendant's title.^ Where by mistake the land of the plaintiff is included in the levy, and sold with the defendant's land, the purchaser acquires no title thereto.^ A sale under authority of a foreign judgment, the parties not having appeared before the court, passes no title f so, of a sale under a judgment on a mortgage, the action on which was brought in a county where the land does not lie.* § 1362. A fraudulent vendee gains no title to the land by a sheriff's sale, although an innocent creditor may receive the proceeds in payment of a judgment.^ If the purchaser at the sale get the property at an under price, by a trick or fraudulent pretence, as by falsely giving out that he was buying it for the family of the defendant, and by fraudu- lently pretending that the sale would be subject to certain liens which he knew would be divested by it, his title is invalid f but to avoid such title, the fraudulent intent must have been successful.^ And declarations of third parties, since deceased, that they would have bid more than the land brought, had ihey not been prevented by the declarations of the purchaser, that if he got it, he would let the defendant have it upon being repaid his money, are not competent testimony.' When the pur- chaser has been guilty of actual fraud, he is not entitled to be repaid his money .^ A sheriff's sale to the administrator of the defendant, who paid no money, but purchased in trust for the creditors and heirs, is fraudu- lent as to creditors.^" Where a deputy -sheriff became the purchaser, and there was no fraud, the purchase is voidable but not void, and the title is good, until set aside by the court, which will only be done upon the purchaser being reimbursed the money paid.'"^ § 1363. Sale under a void judgment. We have seen, that if the judgment be absolutely void, a sale thereunder confers no title. Such is a judgment confessed under a bond and warrant given by a married woman and her husband, and a sale of her property under such judg- ment, during the coverture, confers no title.^^ The bond of a married woman is absolutely void, and so is any judgment on it, whether by con- fession or otherwise,^' even if given for necessaries for her family, or for ante-nuptial debts," and even where she has obtained the consideration 1 Wolf V. Payne, 35 Penn. St. 97. 321. Sharp v. Long, 28 Ibid. 433. ^ Hunter v. Hulings, 37 Penn. St. Grim v. Grim, 1 W. F. C. 79. 307. '° Hays v. Heidelberg, 9 Penn. St. » Magill V. Brown, Bright. 346 ji. 203. * Menges v. Oyster, 4 W. & S. 20. " Jackson v. McGinness, 14 Penn. Treaster v. Fleisher. 7 Ibid. 137. St. 331. 5 Foulk V. McFarlane, 1 W. & S. " Caldwell v. Walters, 18 Penn. St 299. '^^: * Gilbert v. Hoffman, 2 Watts 66. '* Steinman v. Ewing, 43 Penn. St. Hogo- V. Wilkins, 1 Gr. 68. 63. Kelly v. Downs, 3 Luz. L. Reg. 'Abbey v. Dewey, 25 Penn. St. 413. 232. 8 Hogg V. Wilkins, ut supra. " Glyde v. Keister, 32 Penn. St. 85. » McCaskey v. Graff, 23 Penn. St. Keiper v. Helfrioker, 42 Ibid. 325. 794 EXECUTION. by falsely representing herself to be unmarried.' Where the land was sold by the sheriff, in the lifetime of the ground-tenant, and in his name, the subsequent confession of judgment by his administrator for arrears of ground-rent, for a period of years extending back far beyond the sheriff's sale, and a sale on such judgment, with notice, given at the sale, of the claim of the former purchaser, the latter not being a party to the judgment, and no notice of the proceedings being given to him, will not affect his title.^ § 1364. Fraud in the judgment renders it void, and a sale under it to the plaintiff will confer no title upon the purchaser ;^ but if the purchaser be a stranger, the rule is otherwise.* But where the plaintiff in a judg- ment confessed by an insolvent debtor, purchases at a sale, the pre- sumption of law is in favor of the fairness of the transaction, if the judgment itself be a fair one, but the burden of showing this is upon the creditor-purchaser.^ And the title of a plaintiff purchasing at the sheriff's sale is not affected by the fact, that the judgment had been confessed by the defendant, in contemplation of applying for the benefit of the bankrupt law of 1841, for the purpose of giving the plaintiff a prefer- ence over the general creditors, the plaintiff not being in any way a party to such fraudulent purpose; though the judgment would be avoid- able in the proper court of bankruptcy, it cannot be controverted or set aside out of it, for the act, in declaring preferences void, merely prescribes a rule for administering the estate in the court of bankruptcy, but does not define the parties' rights outside of it.^ An order of the common pleas to credit to the plaintiff's judgment the amount of his bid at a sheriff's sale is not conclusive evidence of the fairness of the judgment; even if the sale were under a prior valid judgment, if the purchaser's judgment were fraudulent, the order of appropriation would not protect him therein, and the deed of the sheriff conveys to him no title.' An act of assembly making valid a sheriff's sale which had been decided by the supreme court to pass no title, is unconstitutional and void.' § 1365. Sale under an expired judgment. The purchaser can be implicated in the consequences of the lien having expired, only in a con- troversy with a purchaser from the debtor, by conveyance prior to the levy ; in a controversy between judgment-creditors, he cannot be impli- cated at all.' Where 'fhe plaintiff becomes the owner of the land upon which his judgment is a lien, it is extinguished by operation of law, and no subsequent sale by the sheriff on that judgment will pass the ' Keen v. Coleman, 39 Penn. St. ' Hall v. Hamlin, 2 Watts 354. 299. But her judf^ment-bond for the * Martin v. Gernandt, 19 Penn. St. purchase-money of real estate, though 128-9 ; Gibson, C. J. invalid as a personal obligation, will ^ Brandt u. Stevenson, 3 Phila. 205. constitute a valid lien upon the pro- ' Fenlou v. Lonergan, 29 Penn. St. perty. Ramborger v. Ingraham, 38 471. Penn. St. 146. s. p. Patterson v. Rob- ' Martin v. Gernandt, ut stipra. inson, 25 Ibid. 81. Stone v. Bird, 21 « Menges o. Dentler, 33 Penn. St. Pitts. L; J. 60. McIIugh v. Bashore, 495. 2 Lea;. Chron. 237. » Chahoon v. Hollenback, 16 S. & R. " Salter v. Reed, 15 Penn. St. 260. 426. puechasee's title. 795 title.^ A sale under a satisfied judgment to the plaintifi" is void;^ so, if the purchaser knew that the debt had been, paid, he gets do title ;^ but his bond fide vendee for a valuable consideration, without notice, will be protected.* § 1366. Wliat passes by tlie sale. The quantity of land which passes to the purchaser at a sheriff's sale, is to be ascertained by the return to the levy, which, in the absence of reasonable doubt, is to be construed by the court alone ; but, where by reason of uncertainty or looseness of description, evidence aliunde is resorted to, to ascertain the quantity and define the boundaries of the land included in the levy, the whole of the evidence is to be referred to the jury.' Though a less estate may pass under a misdescription in the levy, a greater cannot.^ But after acknowledgment of the deed, the defendant cannot have the sale set aside, on the ground that part of the land sold was not included in the levy, though he tender the costs. Where the defendant represented that certain laud was included in the levy, such land, in equity, passes to an innocent purchaser.^ And where the defendant was the owner of part of a tract, and of a ground-rent reserved out of another part, and the levy was made on the whole tract, with the rents, issues and profits thereof, the ground-rent passed, under the word rents; and this, though the advertisements described the land only, for defective description therein can have no efiect, after the deed is acknowledged.^ A sheriff's sale of A. with its appurtenances, passes the defendant's title in B., which he had held by adverse possession, short of twenty-one years, and used in connec- tion with A. as one farm, B. having been formerly the site of a mill-pond appurtenant to a mill on A., but that right having ceased, under the pro- visions of the grant, by disuser.' § 1367. If the sheriff's deed, by mistake, call for the land of a stranger, as adjoining in a particular direction, the latter would not be bound by the error, and, consequently, those who claim under him have DO right to insist upon it, as precluding the sheriff's vendee, by estoppel, from showing the truth.^" Where A., the owner of a tract, agreed to convey part of it to B., upon certain conditions, which were performed by B., and afterwards, under a judgment obtained by A. against B., the whole tract was levied on and sold, it was held, that A. was bound by the levy aud sale, aod his title passed to the sheriff's vendee." But where the lands of the plaintiff in the execution were, by mistake, included in the levy, and sold with the property of the defendant, it was » Koons ». Hartman, 7 "Watts 23. 25. See swpra, ^ 1282. The terre-tenant need take no steps to * McLaughlin v. Shields, 12 Penn. set aside such sale ; he can defend in St. 287 ; Rogers, J. an eiectment. Ibid. ' Buchanan ». Moore, 13 S. & R. 2 Hoffman v. Stroliecker, 7 Watts 89. 304. Gibbs V. Neely, Ibid. 305. * Heartley v. Beaum, 2 Penn. St. ' Hoffman v. Strohecker, ut supra. 165. * Ibid. ; s. c. 9 Watts 183. And see ' Scheetz v. Fitzwater, 5 Penn. St. Samms v. Alexander, 3 Yeates 268. 126. Arnold v. Gorr, 1 Rawle 227. " Cramer v. Carlisle Bank, 2 Gr. 267. ' Hoffman v. Banner, 14 Penn. St. " Kirkpatrick v. Black, 10 Watts 329. 796 EXECUTION. held, that the sheriff's vendee acquired no title thereto — the judgment, in such case, being no lien upon the plaintiff's own lands.' § 1368. Easements. Where the owner of the land has annexed an easement to it, and then the land is sold by the sheriff, the easement passes as an appurtenance, though not distinctly levied on.^ An ease- ment created by the owner of both estates, permanent and visible, ripens into a servitude, and passes to the sheriff's vendee of the dominant tene- ment.^ And a purchaser at sheriff's sale of the servient tenement takes subject to a continuous and apparent easement, imposed by the owner of one portion of his real estate for the benefit of another, without any express reservation.* But the use of the easement must be restricted to the original purposes of the grant.° Where the owner of two properties recognises an existing easement, and they are sold on execution, with the easement, it is not extinguished by the unity of title.^ The rule is, that where a man owns several tenements, with a way between them, which has been dedicated to the use of both, and enjoyed by the occu- pants of both, and a judicial sale of both subsequently takes place, the purchaser of the one over which the way is laid out, although his pur- chase be first in time, purchases subject to the existing right of way, and cannot deprive a subsequent purchaser of the other tenement, of the use of the way, which was intended for the benefit of both, and was appurte- nant to both.' But to create a permanent easement, in favor of an adjoining property, as against a sheriff's vendee, it must be palpable and manifest, and notoriously permanent in its nature.* § 1369. Fixtures. The machinery of a manufactory passes with the freehold to the purchaser at sheriff's sale;^ but rolls delivered at a rolling-mill, where they remained a long time, without being turned or finished off, or put into a mill, do not pass to the purchaser of the realty.*" The fragments of a building blown down by a tempest, are not thereby converted into personalty, but pass to the purchaser of the realty at sheriff's sale." A fixture annexed to the freehold at the date of the judgment, afterwards temporarily detached and sold to a stranger, but not delivered, then re-annexed, and so continuing till the sheriff's sale passes to the purchaser of the land ; and the fact that the sheriff's vendee knew of the sale of the fixture, and admitted that it belonged ' Hunteri). Hulings, 37Penn.St. .SOT. ' Church w. Vonneida, 6 Phila. 5.57. '' Cope V. Grant, 7 Penn. St. 488. And see McCarty v. Kitohenman, 47 ° Fidelity Bailding Association v. Penn. St. 239. Phillips v Phillins Getty, 3.3 Leg. Int. 238. Walsh v. 48 Ibid. 178. Murphy v. Bedford 35 Mallon, 2 W. N. C. 444. Leg. Int. 262. One who purchases' ex- * Seibert v. Levan, 8 Penn. St. 383. pressly subject to a right of T\-ay, is Overdeer v. Updegraff, 69 Ibid. 110. estopped from denying its existence Cannon v. Boyd, 73 Ibid. 179. Hart Meyer u. Young, 7 W. TST. C. 60 V. Martell, 26 Pitts. L. J. 33. » Adams's Appeal, 7 "W. N. C. 86. 5 Kirkham v. Sharp, 1 Whart. 333. » Overton v. Williston, 31 Penn. St. Carty's Appeal, 5 W. N. 0. 241. Gor- 155. ' )n V. Pennsylvania Railroad Co., 6 '" . lid. 405. 308. 8 Worne v. Marsh, 6 Phila. 33. " Rogers v. Gilinger, 30 Penn. St. 185. don V. Pennsylvania Railroad Co., 6 '» Johnson v. Mehaffey, 43 Penn St Ibid. 405. 308, purchaser's title. 797 to the buyer, does not affect his title to it under the sheriff's sale.^ But, by agreement of the owners and lien-creditors, machinery, which is part of the realty, may be detached and converted into personalty, and then it will not pass under a sheriff's sale of the freehold.^ Gas- fixtures, such as chandeliers and side-brackets, are mere personal pro- perty, and do not pass, as fixtures, by a sheriff's sale of the real estate.^ § 1370. Growing crops. Grain growing on the land at the time of the sale, being the property of the defendant, passes to the purchaser; and one who purchased at a subsequent sheriff's sale of the grain, under an execution against the defendant, cannot maintain trover against the purchaser of the land, for cutting and taking away the grain.* The test as to whether grain growing passes to the purchaser of the land at sheriff's sale, is, whether there has or has not been a prior severance, either actually, or by private or judicial sale.^ But a lessee of land, incumbered by a judgment, which is paramount to the lease, is entitled to the way-going crop, in preference to a purchaser at sheriff's sale under the judgment f a mere cropper, however, is not a tenant, and on a sale of the land by the sheriff, is not entitled to the emblements.'^ Where land is sown, after the time of harvest, a purchaser at sheriff's sale is not entitled to a growing crop, sown in the preceding autumn, but not harvested, a portion of which is reserved as rent f otherwise, of a crop sown previously to the time of harvest ; in such case, the landlord's interest in the growing crop passes to a purchaser at a judicial sale, as an incident to the reversion.' § 1371. Estate of the purchaser. The estate which passes to the purchaser at sheriff's sale, is, in general,' that of the defendant which was levied on. The estate is qualified by the extent of the levy : thus, where a defendant owned a life-estate in the land, and the fee-simple in a moiety, under a sale of all his right, title and interest, the fee-simple passes, but the life-estate cannot pass, under the act of 1840, pre- scribing the mode of taking life-estates in execution.^" Where a widow was devisee for life, and confessed judgment, as administratrix, on a claim for paving done after the death of testator, it was held, that only her life-estate passed to the purchaser." And where the defendant was devisee in fee of a moiety, and executory devisee of the other moiety of a house, and a fi. fa., levied on both estates, was returned unsold, for ' Heaton v. Findlay, 12 Penn. St. 304. » Borrell v. Dewart, 37 Penn. St. 134. 2 Harlan v. Harlan, 20 Penn. St. 303. " Burns v. Cooper, 31 Penn. St. 426. ' Vaughan w. Haldeman, 33 Penn. '" Dennison's Appeal, 1 Penn. St. St. 522. Shaw v. Lenke, 1 Daly 487. 201. And a levy and sale of the de- See Hays V. Doane, 3 Stockton 84. fendant's interest, as tenant by the cur- McKeage v. Hanover Fire Insurance tesy, will pass no title, if he had the Co., 16 Hun 239. fee. McLaughlin v. Shields, 12 Ibid. * Bear v. Bitzer, 16 Penn. St. 175. 283. 6 Ibid. " Loud v. Bull, ] Whart. 238. The " Bittinger v. Baker, 29 Penn. St. sheriff's vendee of a life-estate is enti- 66. s. p. Miller v. Clement, 40 Ibid. 484. tied, during the life of the tenant, to ' Adams ». McKesson, 53 Penn. St. hold against the remainder-man. Mc- 81. Mullin V. Leslie, 29 Penn. St. 314. 798 EXECUTION. want of buyers, and a vend, exp., reciting this levy, commanded a sale of the vested moiety, to which the return was of a sale in obedience thereto, and the sheriff conveyed both estates, both moieties passed, for the court will amend the return from the levy — it appearing clearly from the deed, that all the land levied on was actually sold, and forty years having elapsed.' Where a lot was devised to one of the heirs, subject to a valuation to be afterwards made, and, before the valuation, was sold, under a judgment against the devisee, the deed reciting that the sale was subject to the valuation, and, after the valuation, was again sold, upon the same conditions, on a judgment against the former vendee, the pur- chaser acquired only the devisee's interest in the lot, and not his share in the residuary estate, nor in the amount of the valuation charged upon the lot.^ After judgment against a second husband, partition was had of the first husband's estate, and after levy upon the interest of the second husband in the estate of the decedent, that estate was sold by the administrator, under proceedings in partition, and some weeks afterwards, the interest of the second husband was sold by the sherifi"; and it was held, that by such sale, the share assigned to the wife in the partition passed.^ Formerly, an estate-tail was not barred by a sheriff's sale under a judgment against the tenant-in-tail f but this seems to have been changed by the act of 14th April 1859.^ And it was long ago decided, that where an estate-tail is charged with the payment of a legacy, and sold under a judgment obtained by the legatee, in a suit for the recovery of the legacy, the purchaser takes a fee-simple.* § 1372. In general, where the defendant is the vendee under articles of agreement, the purchaser at a sheriff's sale of his interest, takes sub- ject to the payment of the purchase-money f in such case, the pur- chaser is in a position inferior to that of the defendant, for the latter might set off, in an action for the purchase-money, any debt due him by the vendor, whereas, the purchaser can only set off what was directly or indirectly given and received as payment.' Where the vendor is him- self the purchaser, at a sheriff's sale of his vendee's interest, it is virtually a rescission of the contract, and he has no further remedy for the unpaid purchase-money.' Where the sale of the vendee's interest is made under the vendor's judgment for purchase-money, the purchaser takes both the equitable estate of the vendee and the legal estate of the vendor, dis- charged of the lien of the purchase-money and judgment ;'" .but where the vendor's judgment, on which the sale is made, is not foV purchase- ' De Haas v. Bunn, 2 Penn. St. 335. the issue in tail. Waters v. Margerum, ' Hart V. Homiller, 20 Penn. St. 248. 60 Penn. St. 39. ' Bachman v. Chrisman, 23 Penn. « Gause v. AYiley, 4 S. & R. ^09 St- 162. ' Stahle v. Spohn, 8 S. & R. 325. Doyle V. Mullady, 33 Penn. St. Bradley c O'Donnell, 32 Penn. St. 279. s'n T ^.,n T. , .„. ^ . " MoGuu-e V. Faber, 25 Penn. St. ^ P. L. 670 ; Purd. 620. Prior to 436. this act, a purchaser at sheriff's sale, " Bradley v. O'Donnell, ut supra. of the estate of tenant-in-tail, took a Zeigler's Appeal, 69 Penn. St. 471. base fee, liable to be defeated, on the "'Horbach v. Rilev, 7 Penn. St. 81 death of tenant-m-tail, by the entry of Zeii^ler's Appeal, 69 Ibid. 471. purchaser's title. 799 money, the vendor's estate does not pass, and the purchaser acquires only the equitable title, subject to the vendor's lien for purchase-money.' And where the legal title is held as security for certain claims, and one of the claimants so secured obtains judgment against the equitable owners and sells the land, the purchaser takes only the equitable interest, unless the holder of the legal title was instrumental in effecting the sale, or his assent to it appears of record.^ A judgment against one of two joint vendees, under articles, and a sale thereunder, passes only the inte- rest of the defendant — that of his co-vendee is not affected.^ The equit- able interest of a vendee under articles, on which a considerable portion of the purchase-money had been paid, does not pass under a levy and sale of all his right, title and interest, as tenant by the curtesy, although such misdescription in the levy, &c., was made by the sheriff, or at the instance of the plaintiff or his counsel, and although the defendant knew of the error.*' § 1373. Where the estate of a vendor under articles of agreement is sold on a judgment against him, prior in date to the articles, the whole estate legal and equitable passes.* If the equitable vendee purchase at such sale, he remains liable to the vendor for the residue of the purchase- money, and can only deduct from the bond the amount paid at the time of the sale, even though the purchase-money was not then due.^ And where the vendor's estate is incumbered, it is no abandonment of the contract, for the vendee to buy in an incumbrance, have the property sold at sheriff's sale, and himself become the purchaser.' A sale of the vendor's interest, under a judgment subsequent in date to the articles, passes only the estate remaining in the vendor, after the contract of sale, and conveys to the purchaser a right to the unpaid purchase- money, subject to the payment of liens existing against the vendor, prior to the date of the articles ;' the prior liens are not divested by such sale.' If, at such sale under a judgment subsequent to the date of the articles, the equitable vendee become the purchaser, the vendor's claim for the balance of the purchase-money, beyond the amount paid to the sheriff, is not extinguished;'" the equitable vendee, so purchasing, is deemed a trustee for his vendor of a beneficial interest in the land, to the extent of the unpaid purchase-money." § 1374. Where the estate of a decedent is sold under a judgment against his personal representatives, the interest of the heirs is not divested, ' Vierheller'a Appeal, 24 Penn. St 11 Penn. St. 295. 105. ' Grouse's Appeal, 28 Penn. St. * Hersey v. Tuvbett, 27 Penn. St. 418. 139. If a vendee be compelled to pur- ' Arnold v. Cessna, 25 Penn. St. 34. chase a prior mortgage, in order to * Craio' V. Shields, 2 Am. L. J. 257. make title, he will be allowed the costs " Garrard v. Lantz, 12 Penn. St. of the sale. Fasholt v. Reed, 16 S. & 186. R- 266. 8 McGinnis v. Noble, 7 W. & S. 454. ' Garrard v. Lantz, 12 Penn. St. Jlellon's Appeal, 32 Penn. St. 121. 186. But he is not obliged to purchase, to ' Colver's Appeal, 25 Penn. St. 71. save the title ; he may look to his ven- '" Garrard iJ. Lantz, ut supra. dor for damages. Dentler v. Brown, " Ibid. 800 EXECUTION. unless they were made parties to the proceeding, as prescribed by the act of 1834;^ but the purchaser at a sale under a judgment obtained against an administrator, in a suit originating in the lifetime of the dece- dent, where the heirs were not made parties, obtains a title good against strangers and intruders, though it would not be conclusive against the heirs and devisees.^ A sale under a judgment against an executor, with notice to a devisee, but without making the alienee of the latter a party, passes no title.^ Notice to the widow and heirs of one who had granted land, with intent to defraud his creditors, is not necessary ; the title passes at a sale under a judgment against such fraudulent grantor/ A sheriff's sale of the interest of an heir in his ancestor's real estate, passes only the interest of the heir, after payment of the debts of the ancestor, and the title of the purchaser is divested, by a subsequent sale of the whole property, under an order of the orphans' court, for the payment of the debts of the ancestor.* § 1375. Where the defendant has conveyed the land, in fraud of his creditors, and it is levied on and sold under a subsequent judgment, only the title of the fraudulent grantee passes, and the prior liens are not affected f such a sale is but a means of vesting in some particular per- son the right which the creditors have to avoid the conveyance.' But the title of the sheriff's vendee cannot be gainsayed by the fraudulent grantee, whether the judgment were prior or subsequent to the convey- ance.'* Where a father conveyed to his son, and the property was sold under a judgment against the son alone, though for a debt incurred by both, the purchaser cannot recover, by impeaching the conveyance, for if the deed be void, he has acquired no title, as the sheriff's deed did not pass any estate of the father ; if the conveyance be valid in the son, it is good as to his creditors.' The purchaser takes only the title of the defendant in the execution, and if that be fraudulent, it may be avoided by the creditors of the grantor, unless the purchaser can show that he is a bond fide purchaser for value, without notice.^" § 1376. It has been questioned, whether a judicial sale, in Philadel- phia, on a municipal claim filed under the act of 16th April 1840," would not pass the estate both of the owner of the fee and of the ground-rent ;^^ but by a subsequent act, it is provided, that the estate in a ground-rent in fee shall not be divested by a sale for the non-payment of any tax, charge ' Act 24 February 1834, § 34, P. L. « Byrod's Appeal, 31 Penu. St. 241. 79 ; Purd. 426. Warden v. Eiohbaum, ' Fisher's Appeal, 33 Penn. St. 294. 14 Penn. St. 121. MoCraoken v. Rob- See supra, ^ 1327. erts, 19 Ibid. 390. Smith v. Warden, » Miner v. Warner, 2 Gr. 448. Ibid. 424. 9 Eyriok v. Hetrick, 13 Penn, St. ^ Riland v. Eokert,23 Penn. St. 215. 488. ' Soles V. Hickman, 29 Penn. St. '" Hood v. Fahnestock, 1 Penn. St. 342. 470. * Smith u. Grim, 26 Penn. St. 95. " P. L. 413 : Purd. 1088. Drum «. Painter, 27 Ibid. 148. And '^ Spring Garden's Appeal, 8 W. & S. see Colborn v. Trimpey, 36 Ibid. 463. 444. Salter v. Reed, 15 Penn. St. 260. * Horner «. Hasbrouck, 41 Penn. St. But see Heckerman v. Hummel, 19 169. Ibid. 70. purchaser's title. 801 or assessment imposed on the land.' Such sale passes the estate of the ground-tenant, whether the owner be named in the proceedings or not, for this is a proceeding in rem ; and the purchaser need not show that the acts of assembly have been strictly complied with — he is protected by the judgment.^ Under such sale, the purchaser takes a defeasible estate, subject to the right of redemption,* and his grantee is in the same situation.'' At a sale under a levari facias, in proceedings under a mortgage, the estate of the mortgagor passes, discharged from all equity of redemption, and all other incumbrances made or suffered by the mortgagor or his successors.^ As we have already seen, a prior mort- gage, which is the first incumbrance, is an exception to this, and is not discharged.^ It is, of course, understood, that the purchaser, takes only the estate conveyed by the mortgage.^ § 1377. Purchaser's relation to a lessee. Where the lien under which the land was sold is subsequent in date to a lease given by the defendant, the lessee is tenant for years of the purchaser ; where the lease is posterior in date to the lien, the lessee becomes his tenant at wi41.' It is at the purchaser's option, either to affirm or disaffirm an existing lease of the premises, which was made subsequently to the date of the judgment or of the mortgage.' If he choose to disaffirm it, which he may do, by giving the tenant notice to quit, he cannot claim anything under the terms of the lease;'" in such case, the relation of landlord and tenant cannot be renewed, by the tenant's remaining in possession, nor by any act short of a mutual contract for a new lease." And if the rent were payable in advance, and the purchaser disaffirm the lease, the tenant, who has paid, must have recourse to his lessor, on his covenant for quiet enjoyment ; or, if he has not paid, it is competent for him to show that his lessor's title has expired or been divested.'^ The lessee of an equit- able vendee of land, sold by the sheriff under a judgment prior to the lease, and with the knowledge of the lessee, has no title as against the pur- chaser, and cannot maintain trespass against him, for entering the dwell- ing-house, in the absence of the lessee, and carefully removing his goods.'' If the purchaser affirm the lease, he may claim the rent payable under it, and avail himself of the rights of the former owner to recover it.'^ 1 Act 23 January 1849, § 5, P. L. v. Levan, 16 Penn. St. 179. 686 ; Purd. 752. "' Farmers' and Mechanics' Bank v. 2 belaney v. Gault, 30 Penn. St. 63. Ege, 9 Watts 436. But he may main- Soullier v. Kern, 69 Ibid. 16. tain an action against the tenant, for ' Hess V. Potts, 32 Penn. St. 407. use and occupation, up to the time of * Gault's Appeal, 33 Penn. St. 94. obtaining actual possession, in pursu- PMladelphia v. Lukens, 3 Phila. 333. anoe of the notice to quit. Mozart 5 Act of 1705, ^ 6 ; 1 Sm. L. 59 ; Building Association v. Frisdjen, 5 W. Purd. 483. N. 0. 318. « See supra, § 1317. " Hemphill v. Tevis, 4 W. & S. 535. ' Act of 1705, § 8. " Market Co. v. Lutz, 4 Phila. 322. 8 Bittinger v. Baker, 29 Penn. St. '^ Kellamu. Janson, 17Penn. St. 467. 66. As to the tenant's right to the '* Menough's Appeal, 5 W. & S.432. way-going crop, see supra, § 1370. He may maintain an action for use and ' Hemphill v. Tevis, 4 W. & S. 535. occupation, against one who came into Menough's Appeal, 5 Ibid. 432. Groff possession under the defendant in the VOL. I. — 51 802 EXECUTION. The purchaser is entitled to rent only from the acknowledgment of the sheriff's deed;' if, by the contract, the rent is payable in advance, at the beginning of the year, a purchaser in the middle of the year is not entitled to it.^ Rent payable in kind, without specification of the day of payment, is payable at the expiration of the year.^ § 1378. The 119th section of the act of 1836 provides,* that, upon receiving his deed, a purchaser at sheriff's sale shall be deemed the land- lord of the lessee, or other person holding or claiming to hold under the defendant, and shall have the like remedies as the defendant might have had, to recover the rent accruing subsequently to the acknowledgment of the sheriff's deed, whether such rent may have been paid in advance or not, if paid after the rendition of the judgment. This section applies only where the relation of landlord and tenant continues;^ the object of it was, to avoid the fraud and collusion arising from payment of rents in advance, where they were not due by the terms of the lease, thereby depriving the purchaser of so much rent ; if, therefore, the tenant antici- pate his payments, after the rendition of the judgment, he does it, at the risk of liability, under the act, to pay over again to the purchaser.* This, as we have seen, does not apply to rent payable in advance by the terms of the lease. The purchaser is entitled to rent payable after the sale, as against the assignee of the defendant, by order accepted by the tenant.' Where the sale took place after the expiration of a term for years, the purchaser is not entitled to rent which accrued before, but which was not payable until after the sale ; but if the rent is yet becoming due, out of a term not completed at the date of the sale, it is rent " accruing thereafter," within the meaning of the act, and passes by the sale.' The fall grain sown in any one year, belongs to the tenancy of that year, and as the term for the crop does not extend beyond the next succeeding harvest, the purchaser at a sheriff's sale, made after that harvest, is not entitled to any share of the grain as rent ; it does not pass with the reversion.' And where, by the terms of the lease, the landlord's share of the grain as rent became due on the 1st of September, and was delivered to him, the sale having been made on the 21st of April, but the deed was not acknowledged until the 27th of September, the pur- chaser was held not entitled to any share of the grain ; and it gave the purchaser no greater interest, that the purchase-money was paid to the sheriff, at the time of the sale, and before it was made payable by the execution, as a tenant, without any ' Hemphill v. Tevis, 4 W. & S. 535, fixed sum being reserved as rent. " Farmers' and Mechanics' Bank v. Hayden v. Patterson, 51 Peun. St. 201. Ege, 9 Watts 436. FuUerton v. Shauf- ' Scheerer v. Stanley, 2 Rawle 276. fer, 12 Penn. St. 221. Garrett v. Dewart, 43 Penn. St. 342. ' Menough's Appeal, 5 "VV". & S. 432. Bank v. Hanson, 1 W. N. 0. 613. Boyd v. McCombs, 4 Penn. St. 146. ^ Farmers' and Mechanics' Bank v. * Bank of Pennsylvania v. Wise, Ege, 9 Watts 436. Fullerton v. Shauf- 3 Watts 400. Braddee v. Wiley, 10 fer, 12 Penn. St. 221. Market Co. v. Ibid. 362. Hart v. Israel, 2 Bro. 22. Lutz, 4 Phila. 322. Sharpless's Estate, 8 L. Bar 125. » Boyd w. McCombs, 4 Penn. St. 146. ' Borrell v. Dewart, 37 Penn. St. * P. L. 783; Purd. 663. 134. puechaser's liabilities. 803 conditions of sale ; nor did the fact that the mortgage, under which the sale was made, was anterior to the lease, give the purchaser any claim to the rent.^ Where the rent is appropriated, by the terms of the lease, to the payment of a debt due from the lessor to a third person, and for which the lessee is surety, it is considered as paid to the landlord, from the time of the contract, and does not pass to the purchaser.^ § 1879. Liabilities of the ptircliaser. In the exercise of a reason- able discretion, the courts have not been rigid in the application of the maxim of caveat emptor to judicial sales, but have always liberally inter- fered for the protection of an erring purchaser, untainted by fraud.' As the purchaser has no right to the possession and profits of the land, until the acknowledgment and delivery of the deed, he is not personally liable for ground-rent accruing between the date of the sale and the date of his deed.* Where the sale was made subject to an apportioned ground-rent, the purchaser takes subject to the rent.^ The purchaser is, of course, not liable for incumbrances which have been discharged by the sheriff's sale, but he is bound, without notice, to come in, at the return of the writ, take part in the distribution, and defend his par- ticular interest, at his peril ; and where he had notice from the auditor, he is concluded by the decree, and cannot set up want of notice, in a subsequent proceeding.^ In a sale under a mortgage, the purchaser holds the estate clearly discharged and freed from all equity and benefit of redemption, and all other incumbrances made or suffered by the mort- gagor, his heirs or assigns f so, a purchaser of land under a judgment on the bond accompanying a mortgage, holds it clear of a lease made by the mortgagor, after the mortgage, but before the entry of the judgment on the bond f but a purchaser at a sale on levari facias, under a mort- gage, takes subject to an agreement by the mortgagor to sell the land.' § 1380. The question whether a mortgage is discharged by a sale under a subsequent judgment, has already been considered ;'" if not, the purchaser takes only the equity of redemption." When the sale is sub- ject to a mortgage, and the purchaser pays it off, and takes an assign- ment to himself, he cannot claim the amount out of the assigned estate of the mortgagor ;'^ so, one who purchased the interest of one of the heirs of a decedent, subject to a mortgage, is not entitled to have money, sub- sequently raised by sale of other property of decedent, under an order of the orphans' court, applied to pay off such mortgage.'^ But a purchaser ' Garrett v. Dewart, 43 Penn. St. 342. » MoCall v. Lenox, 9 S. & R. 302. ' FuUerton v. Shauifer, 12 Penn. St. s. p. Bury v. Sieber, 5 Penn. St. 431. 220, De Haven y. Landell, 31 Ibid. 120. ' Crawford v. Beyer, 14 Penn. St. ' Catlin v. Robinson, 2 Watts 373. 380; Bell, J. " Seesvpra, i 1317. * Thomas v. ConneU, 5 Penn. St. 13; " Garro v. Thompson, 7 Watts 416. s. c. 1 Clark 319. Pieroe v. Potter, Ibid. 475. Berger v. ' Wistar v. Mercer, 6 Phila. 44. Hiester, 6 Whart. 210. Bratton's Ap- ' Towers v. Tusoarora Academy, 8 peal, 8 Penn. St. 167. Penn. St. 297. '' Cooley's Appeal, 1 Gr. 401. s. p. ' Act of 1705, ^ 6 ; 1 Sm. L. 59 ; Crawford v. Boyer, 14 Penn. St. 380. Purd. 483. " Hay's Estate, 2 Phila. 277. 804 EXECUTION. at sheriff's sale, subject to a building-association mortgage, is entitled to credit for the value of the shares of stock assigned to the association as collateral security for the mortgage-debt.' And the purchaser at sheriff's sale of one of several shares of land, subject to a mortgage, is not thereby personally chargeable with a proportion of the mortgage- debt, paid, after the sale, by one of the other owners, in the absence of proof, that he purchased on condition of assuming such liability ; his mere declarations, made either before or after the sale, that he was bound to pay part of such mortgage-debt, are too slight evidence to create such liability, without proof of consideration for the promise, ' especially, if made after his interest had been determined, by a sale under a prior mortgage.^ § 1381. Where land is devised at a valuation to be paid by the devi- see, and the devise is accepted, the title passes subject to the charge, and if the devisee's interest be sold by the sheriff, and in all the proceedings the title is described as subject to the unpaid valuation, the purchaser takes the land so charged.' Where, at a sale by order of the orphans' court, the widow's third was not specially charged on the land, but the heirs, having afterwards purchased, conveyed by deed, declaring that the one-third remained charged on the land, during the widow's lifetime, and during her lifetime, the land was sold under a judgment, obtained against the grantee, after the conveyance, the purchaser at the sheriff's sale takes subject to the charge, though it was not specially made by the order of sale of the orphans' court.* But, where a widow, adminis- tratrix, executes a conveyance, pursuant to a contract of her husband, without adding a description of her oifice, her dower does not thereby pass, and if the vendee, who had agreed to apply part of his purchase- money in satisfying all judgments and liens against the vendor, pur- chase at a sheriff's sale under one of those judgments, he takes subject to the dower, for he was bound to discharge the judgment under which the sale was made.° Where a widow, whose dower is charged on the land, dies between the levy and sale, the purchaser takes the land divested of the lien.^ § 1382. Though the general rule is, that in the absence of express stipulations to the contrary, a sheriff's sale discharges all prior liens against the title, yet, where the conditions defining the liens to which a .sale is subject, are in writing, and are expressed in the sheriff's deed, the court will not relieve the purchaser from any part of his bid, but ' Kupfert V. Guttenberg Building ' Hart v. Homiller, 20 Penn. St. Association, 30 Penn. St. 465. Hughes's 248 ; s. c. 23 Ibid. 39. Appeal, Ibid. 471. But he is not enti- * Kline v. Bowman, 19 Penn.. St. 24. tied to credit for stock-payments made Shertzer v. Herr, Ibid. 34. by the mortgagor. Building Associa- = Shurtz v. Thomas, 8 Penn. St. 359. tion V. Eshlebach, 7 Phila. 189. s. p. ' Riddle's Appeal, 37 Penn. St. 177. Spring Garden Association v. Trades- A widow's dower is not a lien which is men's Loan Association, 46 Penn. St. subject to be discharged by a sheriff's 493. Springville Association u. Raber, sale, but an estate in the land. Schall's S3 Leg. Int. 329. Appeal, 40 Penn. St. 170. Gourley v. "■ Wager v. Chew, 15 Penn. St. 323. Kinley, 66 Ibid. 270. purchasee's liabilities. 805 will enforce the contract of sale.^ Current taxes, not due at the time of the sale, because the period for completing the assessment had not expired, and the tax-rate had not been fixed, nor the appeal held, are not discharged by the sale ; and if the proceeds be insufficient to pay and discharge the whole of the registered taxes, those not paid remain a lien on the property, and must be paid by the purchaser.^ Where the real estate of a corporation is sold at sheriff's sale for the payment of honcL fide debts, the purchaser's title is discharged from any right of forfeiture to the commonwealth by reason of misnomer, limitation, or defect of power in the corporation to purchase and hold such lands.^ § 1383. WJien deemed to hold in trust. Since the passage of the act of 22d April 1856,* a trust in lands cannot be established by parol evidence, without writing.' A promise to purchase at a sheriff's sale for the benefit of the defendant, will not constitute the purchaser a trustee for him, unless the purchase were made with the money of the defendant.^ A resulting trust is raised only from fraud in obtaining the title, or from payment of the purchase-money when the title is acquired; a subsequent repayment of the purchase-money is not sufficient.' A joint-debtor in the judgment may purchase at a sale of the land of his co-defendant, if with his own money, and for his own use.* Where one joint-tenant sold the land of himself and his co-tenant, by articles of agreement, taking a mortgage to himself to secure the purchase-money, and afterwards sold the premises under the mortgage and became himself the purchaser, the effect was merely to cancel such unsuccessful sale, and not to vest a new title in the purchaser on his own account.' So, a purchase by one joint- tenant at a sheriff's sale of the whole estate, renders him a trustee for his co-tenants.'" Where a grantor is bound to discharge an incum- brance, if he purchase at a sheriff's sale under it, his purchase will inure to the benefit of his grantee.^' An administrator purchasing lands at a sheriff's sale, the purchase-money being settled, by using bonds 1 Schall's Appeal, 40 Penn. St. 170. And see Cook v. Cook, 69 Ibid. 443. 2 Duffy V. Philadelphia, 42 Perm. St. Squires's Appeal, 70 Ibid. 266. O'Hara 192 ; s. c. 4 PhUa. 289. See supra, v. Dilworth, 72 Ibid. 397. Blavlock's 2 1330. Appeal, 73 Ibid. 146. Kistler's Ap- " Act 30 April 1844, i 2, P. L. 532 ; peal, Ibid. 393. Boynton v. Housler, Purd. 290. Ibid. 453. Wolford v. Hen-ington, 74 * P. L. 533 ; Purd. 724. Ibid. 311 ; s. o. 86 Ibid. 39. Dollar ° Barnet v. Dougherty, 32 Penn. Savings Bank v. Bennett, 76 Ibid. 402. St. 371. Seichrist's Appeal, 66 Ibid. Payne v. Patterson, 77 Ibid. 134. 237. * Gibson v. "Winslow, 38 Penn. St. « Fox V. Heffner, 1 W. & S. 372. 49. Kellum V. Smith, 33 Penn. St. 158. ' Jack v. Woods, 29 Penn. St. 375. Williard v. WiUiard, 56 Ibid. 119. '" Gibson v. Winslow, 46 Penn. St. Kistler's Appeal, 73 Ibid. 393. Payne 380. The recitals in the sheriff's deed V. Patterson, 77 Ibid. 134. Carhart's affect a subsequent purchaser with no- Appeal, 78 Ibid. 100. tioe. Ibid. ' Barnet v. Dougherty, 32 Penn. St. " Skinner v. Starner, 24 Penn. St. 871. Nixon's Appeal, 63 Ibid. 279. 123. 806 EXECUTION. belonging to the estate, which were a lien on- the land, and no money being paid, becomes a trustee for the heirs of the deceased.^ § 13^4. The rule prohibiting a trustee from purchasing for his own use the property towards which he stands in a fiduciary relation, does not apply when the sale is made by a public officer, under proceedings adverse to the interest of the cestui que trust, and the trustee has not the means in his power to prevent the sale.^ An agent or attorney buying at a sale under a judgment of his principal become^ a trustee, if he pay with the money of his principal, or purchase for less than his claim, but in such case, the principal has an election either to consider the purchaser as a trustee and claim the land, or to consider him as a debtor and claim the money ; and if he has not elected to treat the purchaser as trustee, the evidence being the other way, he cannot enforce his right against a pur- chaser at a subsequent sheriff's sale, who had no notice of the resulting trust nor of the intention of the principal to enforce it.^ Notwithstand- ing the general rule, that a tenant cannot dispute the title of his landlord, if he purchase the landlord's title at a sheriff's sale, he may defend his possession ; and he is not estopped, by a previous failure in an attempt to enforce a mortgage against the same land.^ If one of two plaintiffs undertake to collect the judgment, he cannot purchase at the sale, fbr his own benefit, at a less price than the amount of the judgment ; he is a . trustee for his co-plaintifi" to the extent of the latter's interest.^ § 1385. JRelation of the purchaser's title. The time to which the title of the purchaser relates, is, for most purposes, the date of the acknow- ledgment of the sheriff's deed. Thus, he is not entitled to rent which accrued before the acknowledgment;* nor has he any right of pos- session, until after the acknowledgment ;'' though his tenant, who takes possession between the sale and the acknowledgment, cannot be treated as an intruder.* But, for some purposes, the title of the purchaser relates back to the date of the sheriff's sale. Thus, he has such an inceptive interest, before he gets his deed, as may be bound by a judgment, and when his title is perfected by payment and conveyance, such judgment, by relation, embraces the whole estate;' so, where, between the sale and the acknowledgment, there has been a second sale and acknowledgment, the first purchaser, nevertheless, takes the land, ' Beck V. Uhrich, 13 Penn. St. 636. ent, the purchaser ought to take aquit- ^ Meaner v. Hamilton, 27 Penn. St. claim deed from the client, to make his 137. Chorpenninff's Appeal, 32 Ibid, title a marketable one. 315. See Fisk u. Sarber, 6 W. & S. 18. * Elliott v. Smith, 23 Penn. St. 131. Parshall's Appeal, 65 Penn. St. 224. ' Leisenring v. Black, 5 Watte 303. ' Eshleman ». Lewis, 49 Penn. St. » Thomas v. Connell, 5 Penn. St. 13 ; 410. The rule that an attorney who s. c. 1 Clark 319. Garrett v. Dewart, purchases at a sale under his client's 43 Ibid. 342. Bank v. Hanson, 1 W. judgment, will be affected with a re- N. C. 613. suiting .trust, if the purchase-money ' Storch «. Carr, 28 Penn. St. 1 35. be less than the amount of the client's ' Smith v. Grim, 26 Penn. St. 95. claim, is so strict, that even if such " Hartman «. Stahl, 2 P. & W. 223. transaction take place with the full Morrison v. Wurtz, 7 Watts 437. Sla- knowledge and acquiescence of the cli- ter's Appeal, 28 Penn. St. 169. SUMMARY PEOCEEDINGS. 807 as his title, for that purpose, relates back to the date of the sale.' For some purposes, the purchaser's title relates back even beyond the sale. Thus, under a sale in proceedings on a mortgage, the purchaser's title relates back to the date of the mortgage f and where land was con- veyed subject to the payment of a certain sum to a third person, and the deed referred to a bond for the same amount, executed at the same time, and afterwards the land was sold under a judgment on the bond, the liens created by the deed and by the judgment on the bond arise out of the same transaction, and are, in contemplation of law, one instrument, and form one security, and the lien of the judgment relates to the date of the lien in the deed, and, consequently, the purchaser's title relates to the date of the deed, and is good against a terre-tenant, who had pur- chased before the judgment.' § 1386. Proceedings to obtain possession. By the sale and con- veyance, the defendant becomes quasi a tenant at will to the purchaser, and his possession is not deemed adverse.* The defendant will not be suffered to set up an adverse title ; and as between him and the purchaser, in an action of ejectment, the latter can recover on the strength of the sale and sheriff's deed, without showing other title.^ From the time of the levy, the jus possessionis is in the sheriff's vendee, where the debtor is in possession at the time of the levy, and the debtor cannot, with a view to defeat the creditor, treacherously deliver possession even to the real owner, who must pursue his remedy against the purchaser.^ The sheriff cannot turn the defendant out of possession by force, and put the purchaser in possession.^ The purchaser may, if he choose, bring ejectment against any one in possession, and this course he is compelled to pureue, where the terre-tenant claims under a title adverse to that of the defendant, or claims under the defendant, but by title derived before the judgment under which the sale was made. But where the possession is in the defendant himself, or in one claiming under him by title derived subsequently to the' judgment, a summary remedy to recover possession is provided by the act of 1836, which is similar to the acts of 6th April 1802,* and 14th March 1814 ;« though the older acts extend to sales under any execution whatever, and are perhaps not fully supplied by that of 1836. The same remedy is given by a subsequent ' Hoyt V. Koons, 19 Penn. St. 277. the time of the sale, the purchaser is ^ De Haven «. Landell, 31 Penn. St. entitled to recover the possession, as 120. against him, and those claiming under ' Bury V. Sieber, 5 Penn. St. 431. him. Culbertson v. Martin, 2 Yeates Such terre-tenant, without notice of 443. Eisenhart v. Slaymaker, 14 S. & the suit on the bond, may set up any R. 153. Green v. Watrous, 17 Ibid, defence, in ejectment by the purchaser, 393. Young v. Algeo, 3 Watts 222. which he could have taken in the suit Suavely v. Wagner, 3 Penn. St. 275. on the bond, had he been a party. Drake v. Brown, 68 Ibid. 223. Ibid. " Stable v. Spohn, 8 S. & R. 317. * Kane v. Sternbergh, 1 Johns. Cas. ' Pennsylvania v. Kirkpatriok, Add. 153. Stable v. Spohn, 8 S. & R. 193, 203. 326. » 3 Sm. L. 530. ' If the debtor were in possession, at '6 Ibid. 132. 808 EXECUTION. act to purchasers at orphans' court sales, after coniirraation of the sale and acknowledgment of the deed ;^ but an order of sale awarded in an action of partition, is not within the act of 1836.^ The sheriff's vendee may lawfully obtain possession of the premises, in a fair way, from the tenant of the defendant in the execution ;^ and if the premises be unoccupied, it seems, the purchaser may peaceably enter, and take pos- session ; he may obtain the possession, under the statute, or in any other fair manner.* § 1387. Notice. The first step to be taken by the purchaser is to notify the parties in possession of the sale, and require them to surrender the same to him, within three months from the date of notice.* Such notice cannot be given before the acknowledgment of the sheriff's deed.' Where, after giving notice, the sheriff's vendee sold to another, who also gave notice, it was held, that the first notice formed no objection to the recovery of the second vendee.' The certificate of the acknowledgment of the sheriff's deed constitutes the only proof of the time at which the title of the sherift''s vendee accrued ; a variance between that and the date of the deed is not material.' § 1388. Petition. If the terms of the notice be not complied with, the purchaser, his heirs or assigns, may apply to any justice of the peace or alderman of the city, town or county where the land lies,' by petition, setting forth : 1. That he purchased the premises at a sheriff's or coro- ner's sale : 2. That the person in possession, at the time of the application, is the defendant, as whose property the land was sold, or that he came into possession thereof under him : 3. That such person in possession had notice as aforesaid of such sale, and was required to give up such estate three months prior to such application.^" The application should be verified by the oath or affirmation of the petitioner, or probable cause to believe the facts therein set forth be otherwise shown." The sheriff's deed is conclusive evidence of the right to the possession, against the defendant in the execution, and all claiming under him subsequently to the judgment.'^ 1 Act 9 April 1849, ? 16, P. L. 527 ; 780 ; Purd. 660. For form of notice, Purd. 662. see Binns's Justice (8th ed.) 706. In '^ Fitzgibbons v. Keller, Supreme such case, a previous notice to quit, Court, 31 January 1852. MS. But a not being a matter of right, may be purchaser under an order of sale proved in any manner the legislature awarded by the orphans' court, under may direct. Wyncoop v. Cooch, 7 W. proceedings in partition, is within the N. C. 53. act of 1849. Simpson v. Thornton, 54 ' IIawk«. Stouch, 5 S. & R. 157. Penn. St. 391. And summary pro- ' Brown v. Gray, 5 Watts 17. ceedings will lie, under the act of 1836, * Ibid. against a railway company, whose land ' Act 24 Jlay 1878, P. L. 134 ; Purd. has been sold by the sheriff, to put the 21 18. purchaser in possession, subject to the "> Act 16 June 1836, ^ 106. For form servitude of the right of way. Oak- of petition, see Binns's Justice (8th ed.) land Railway Co. v. Keenan, 56 Ibid. 706. 198. " Act It June 1836, ? 107. » St. Clair V. Shale, 20 Penn. St. 105. '■•' Hale v. Henrie, 2 Watts 147. Dean * Ibid. Ill ; Woodward, J. u. Connelly, 6 Penn. St. 239. And see Act 16 June 1836, § 105, P. L. supra, § 1386 n. The party in posses- SUMMARY PROCEEDINGS. 809 § 1389. Warrant to the sheriff. Upon these facts being sworn to, or otherwise established by the petitioner, the justice is required and enjoined forthwith to issue his warrant in the nature of a summons, directed to the sheriff of the county, commanding him to summou a jury of six men of his bailiwick, to appear before him at a time and place to be specified, within not less than three, nor more than eight days after the issuing of the warrant, and also to summon the defend- ant, or person in possession, at the same time and place, to appear before him and the said jury, to show cause, if any he has, why delivery of the possession of the premises should not forthwith be given to the peti- tioner.' No person but the sheriff himself is competent to perform the duty of selecting the jurors ; it is a judicial act, requiring judgment and discretion, which cannot be delegated to another.^ § 1390. Inquisition, If the defendant or terre-tenant fail to appear at the time and place appointed for the hearing, the justice is to require proof, by oath or affirmation, of the due service of such warrant upon him, and of the manner of such service, which must have been made three days before the return." If the defendant or terre-tenant be duly summoned, or if he appear,^ the justice and jury proceed to inquire : 1. Whether the petitioner, or those under whom he claims, became the purchaser of the land in question at a sheriff's or coroner's sale ; of this fact, the deed, duly acknowledged and certified, is full and conclusive evidence :^ in such case, the only question submitted to the justice and jury on this point is, whether there be a sheriff's or coroner's deed, in fact and form, duly acknowledged in open court, and duly cer- tified under the seal of the court ; it was never intended by the act to make such tribunal a court of error, to examine the regularity of the proceedings in court, as to the judgment, process of sale, and execution of the deed.^ 2. Whether the person in possession of such real estate was the defendant in execution under which the land was sold, or came into possession under him.'' 3. Whether the person so in possession has had three months' notice of the sale, prior to such application.' It is suffi- cient, if the jury find that the purchaser gave "due and legal notice" to the defendant.' § 1391. Defence. Where the defendant is in possession at the time of the levy and sale, he cannot make any defence against the purchaser; by a purchase under regular process, the purchaser acquires a right, at sioa is not entitled to a jury trial, as a payment of costs cannot be exacted as a matter of right ; the proceedings may condition. McMulIen v. Orr, 8 Phila. be summary. Wyncoop v. Cooch, 7 W. 342. N. C. 53. . '^ Act 16 June 1836, §109. > Act 24 May 1878, i 2, P. L. 134 ; « Dean v. Connelly, 6 Peun. St. Purd. 2118. For form of warrant, see 239. Binns's Justice (8th ed.) 707. ' Act 16 June 1836, ? 109. 2 McMullen v. Orr, 8 Phila. 342. « j^ij ' Act 16 June 1836, i 108. ' Cooke y. Keinhart, 1 Rawle 317. * If good cause be shown, such as And see this case, as to the legal effect the sickness of counsel, the defendant of the finding. For form of inquisi- is entitled to a continuance ; and the tion, see Binns's Justice (8th ed.) 707. 810 EXECUTION. least, to the possession of the debtor.^ But this rule does not apply to a sale where the process is void — as, where the sheriff undertook to sell a life-estate, before the act of 1849, which he could not do f in such case, evidence by the defendant, that he took the land in question as his wife's purpart, and that it was less in value than her share of the estate, is competent, for, in such case, the husband, having nothing to pay out of his own funds, acquired but a life-estate, which the sheriff could not sell.^ And one admitted to defend as landlord of the tenant, who came in under the debtor, may show that he and the debtor are tenants in com- mon.* Where matter of defence arises subsequently to the judgment, but before the sale, such as payment and satisfaction, or a release, the defendant's remedy is, by application to the court to stay proceedings, or set aside the process, or, perhaps, to stop the acknowledgment of the sheriff's deed ; but he cannot set up these matters to defeat the pur- chaser's right of possession under the deed ; nor can he show that the judgment was paid, before the sale under it, although the purchaser was plaintiff in the judgment.^ So, where the judgment was confessed by an attorney, in excess of his authority, it is the duty of the defendant to make early application to the court to open the judgment ; if this be omitted, and his land be sold under it, he is concluded from raising the objection against the sheriff's vendee ; giving notice at the sale, of the defect in the authority of the attorney, amounts only to notice that the defendant then knew of the defect, but had taken no proper mea- sures to arrest the proceedings.^ A bill of exceptions cannot be taken in such proceedings.' In proceedings under the landlord and tenant law, if the inquest cannot agree, they may be discharged and a new jury summoned.^ § 1392. Damages and costs. If the jury find for the petitioner, they are to assess such damages as they may think right, against the defend- ant or terre-tenant, for the unjust detention of the premises, and there- upon the justice is required to enter judgment for the damages assessed, and reasonable costs, which judgment is final and conclusive between the parties.' The jury must make the assessment of damages ; it is error for the justice to make it, and nul tiel record may be pleaded to a sci. fa. mr recog. on damages so assessed." The practice is, for the justice to give judgment for a gross sum for costs ; and the court, on certiorari, will presume that the costs were duly taxed." The judgment cannot be cer- tified to the common pleas, under the act of 1810, in order to create a ' See supra, ? 1386 n. Dean v. Connelly, 6 Penn. St. 239. ^ Snavely v. Wagner, 3 Penn. St. « Cyphert v. McClune, 22 Penn. St. 275. 195. ' Ibid. ' McKeon v. King, 9 Penn. St. 213. * Knox V. Herod, 2 Penn. St. 27. * Cunningham u. Gardner, 4 W". & ^ Hale V. Henrie, 2 Watts 147. Es- S. 120. White v. Arthurs, 24 Penn, peoially, when he has thus lain quiet, St. 96. and allowed an innocent purchaser to ' Act 16 June 1836, ? Ill- pay his money, he is estopped from '» Hull v. Russell, 4 Clark 453 setting up the invalidity of the sale. " Brown v. Gray, 5 Watts 17 SUMMARY PROCEEDINGS. 811 lien on real estate -^ but, as it is a debt of record, an action of debt may be maintained upon it.^ § 1393. Record. Upon the finding of these facts, the justice is re- quired to make a record thereof, and thereupon award the possession to the petitioner -^ the record should set out all the facts necessary to confer jurisdiction.* Upon the finding for the petitioner, the justice must issue his warrant, directed to the sherifi', commanding him forthwith to deliver to the petitioner, his heirs or assigns, full possession of the pre- mises, and to levy the costs taxed by the justice, and the damages assessed by the jury.° • § 1394. Certiorari. Although the act makes the judgment final and conclusive between the parties, yet the proceedings may be removed by certiorari to the common pleas, or to the supreme coilrt, at the party's election.^ But the certiorari will not be a supersedeas, nor have any effect to prevent or delay the execution, or the delivery of possession agreeable thereto.' It does not bring up the evidence ; the regularity of the pro- ceedings alone can be examined f and on a reversal, restitution is ex gratia, and may be refused.' A writ of error is the proper remedy for the revision of the judgment of the common pleas, on a certiorari}" In reversing the judgment of the common pleas, the supreme court may restore the possession to the purchaser, to whom it had been awarded by the justice.^^ §1395. Proceedings where the terre-tenant disclaims. If the ■person in possession of the premises make oath or affirmation before the justice either : 1. That he has not come into possession, and does not claim to hold under the defendant, but in his own right ; or, 2. That he has come into possession, under title derived to him from the defend- ant, before the judgment under which the sale took place — and enter into the recognisance hereafter explained, with one or more sufficient sure- ties, the justice is to forbear to give the judgment above mentioned.^^ A tenant for years of a devisee, who purchased the land at a sale under a judgment against the devisor, holds by title paramount to his lessor, ' Gault V. McKinney, Com. Pleas, tioe (8th ed.) 708. Phila., 4 Feb. 1854. MS. Amos v. « Lgnox v. McOall, 3 S. & E. 101. Stiles, 1 W. N. C. 414. Bodkin ». Mo- ' Act 16 June 1836, § 116. The act Donald, 2 Ibid. 478. _ 24 March 1865, P. L. 750, Purd. 886, ^ Gault V. McKinney, 2 Phila. 71. does not extend to such a case ; it is a Bodkin v. McDonald, 2 W. N. C. 586. common-law writ. Jackson v. Gleason, It was held otherwise, under the act 6 Phila. 307. of 1802. Moyer v. Kirby, 14 S. & E. * Brown v. Gray, 5 Watts 17. Oak- 162. landEailway Co. v. Keenan, 56 Penn. ' Act 16 June 1836, ? 110. For form St. 198. of record, see Binns's Justice (8th ed.) ' McGee v. Pessler, 1 Penn. St. 126. 708. Fitzalden v. Lee, 2 Dall. 205 ; s. c. 1 * McGee v. Fessler, 1 Penn. St. 126. Yeates 207. The record must show a strict compli- ^° Cooke v. Eeinhart, 1 Eawle 317. ance with the statute. Lantz v. Sohaf- " Ibid, fer, 3 Haz. Pa. Eeg. 410. '^ Act 16 June 1836, |114. For ' Act 16 June 1836, 1 112. For form form of affidavit, see Smith's Forms of writ of possession, see Binns's Jus- 413-4. 812 EXECUTION. and is not, under the act of 1836, liable to summary proceedings to obtain possession, by one who had purchased the land at a previous sale, under a judgment against the devisee.' The defendant in the execution cannot stay proceedings in the manner above described, by making affidavit that he is in possession under a contract with the sheriff's vendee, on which he has paid a part of the consideration-money f he must show either a conveyance, or such an equitable right to one, as would sustain a decree for a specific performance.* An affidavit that the terre-tenant does not hold the whole of the premises under the defendant, is insufficient — he should specify what part.* The oath is sufficient, if it contains a positive averment, that the title is derived from the defendant, before the judgment, though it do not specify when the title commenced in possession.' It is sufficient, if the oath and recognisance be tendered at any time before the judgment.' § 1396. Where he names his grantor or lessor. If the person in possession make oath or affirmation, before the justice that he does not hold under the defendant, but under some other person, whom he names, the justice must forthwith summon such person to appear before him at a time specified, within thirty days ; and if he appear at the time appointed, and make oath or affirmation that he verily believes that he is legally entitled to the premises in dispute, and that he does not claim under the defendant, but by a diflferent title, or that he claims under the defendant by title derive(l before the judgment, and enters into the recognisance hereafter described, with sureties as aforesaid, in such case also, the justice must forbear to give judgment.' The following is the form of the oath or affirmation to be administered to the claimant in such case: — "I do (swear or affirm) that I verily believe that I am legally entitled to hold the premises in dispute, against the petitioner, that I do not claim the same, by, from or under the defend- ant as whose property the same were sold (as the case may be) — that I do not claim the same by, from or under the defendant, as whose pro- perty the same were sold, by title derived to me subsequently to the rendition of the judgment under which the same were sold, but by a different title," &c.* § 1397. Recognisance. The recognisance must be taken in a sum fully sufficient to cover and secure as well the value of the rents and mesne profits of such lands and tenements, which may have accrued, and • Elliott V. Ackla, 9 Penn. St. 42. judgment, by claim of adverse title, set And see Newell w. Gibbs, 1 W. & S. forth the nature and character thereof ; 496. presumptively, he is in as one of the ^ Brown v. Gray, 5 Watts 17. Ci-ess heirs. -Williams's Appeal, 4 W. N. C. V. Righter, Sup. Court, 7 April 1853. 458. MS. 5 Lenox v. MoCall, 3 S. & E. 95. ' Debozear v. Butler, 2 Gr. 417. " Ibid. * Hawk u. Stouch, 5 S. & R. 157. In ' Act 16 June 1836, § 115. For form a proceeding by a purchaser at an of affidavit and summons, see Smith's orphans' court sale, to obtain posses- Forms 414-5. siou, one of the heirs of the decedent, * Act 16 June 1836, § 116. See in possession, must, in order to prevent Smith's Forms 416. SUMMARY PEOCEEDINGS. 813 which may be expected to accrue, before the final decision of the claim, as all costs and damages, with condition that the cognisor shall appear at the next court of common pleas having jurisdiction, and then and there plead to any declaration in ejectment which may be filed against him, and thereupon proceed to trial, in due course of practice, and in case he shall fail therein, that he will deliver up the premises to the purchaser, and pay him the full value of the rents or mesne profits of the premises, accrued from the time of the purchase.' After the recogni- sance has been entered into, it is not necessary that the plaintifi" should go on and prosecute the proceedings before the justice to an issue, but it is a sufficient compliance with the terms of the recognisance for him to proceed at the next term of the proper court with an ejectment ; and upon a verdict therein for mesne profits and costs, and a return of nulla bona, the bail in the recognisance becomes liable thereupon.^ But the commencement of an amicable action of ejectment, at the third term after the date of the recognisance, and a recovery therein, is not evidence to charge the surety.^ Upon the forfeiture of the recognisance, the justice must proceed to give judgment, and cause the premises to be delivered up to the petitioner, as in the case of no defence being made.* § 1398. Trial of the ejectment. The ejectment is, of course, subject to the general rules in regard to the action of ejectment, which will be found elsewhere;^ but it has some peculiarities which will be more suitably discussed in this place. The person in possession having made oath that " he does not claim the land through or under the defendant, as whose property the same was sold, by title derived subsequently to the rendition of the judgment under which it was sold, but by a different title," becomes the actor in court, and must establish that the title under which he claims is paramount to and different from the one sold by the sheriff, or else he fails ;^ and therefore, the judgment, execution and sale are admitted by him, and are, in fact, part of the process ; and the sheriff's deed, properly acknowledged and certified, is admissible in evidence, even though the acknowledgment were taken after the sheriff's term had expired, and the deed were not delivered to the purchaser, until some time after the acknowledgment.^ If he show such title, and it appear to have been obtained by a fraudulent collusion between him and the former owner, for the purpose of defeating the legitimate effect of the sheriff's sale, it will not avail as a defence.' Where the plaintiff claims under a judgment confessed by an administrator, it is not necessary for him to produce the letters of administration, but the defendant may show, by evidence aliunde, that the proceedings were collusive.^ It has often been 1 Act 16 June 1836, ? 117. For ^ See vol. ii., tit. "Ejectment." form of recognisance, see Smith's ' Dean v. Connelly, 6 Penn. St. 239. Forms 416. "Walker v. Bush, 30 Ibid. 357. ' Tenbrooke v. Bell, District Court, ' Dean v. Connelly, ui supra. Phila., Dec. 1848. MS. ^ Walker v. Bush, ut supra. ' Hibbs V. Rue, 4 Penn. St. 848. » McDonald v. Mulhollan, .5 Watts ' Act 16 June 1836, § 118, 173. 814 EXECUTION. decided, that in ejectment by the sheriff's vendee, the court will not inquire into the formality of the proceeding on which the sale was founded.^ § 1399. The record of the justice is part of the res gestce, and may be given in evidence for the purpose of showing when the proceedings were commenced.^ Evidence inconsistent with the claim before the jus- tice cannot be given by the defendant.^ The certifying of the cause into court is equivalent to a removal by certiorari to a higher ccurt for trial, and the proceedings thereafter are part of the same cause that was begun before the justice.* Damages for the wrongful detention are pro- perly included in the verdict, even though notice of such claim be not given ; and a verdict for the plaintiff for a sum of money, though in- formal, is necessarily a verdict for damages for the wrongful detention, and involves a finding of the title in his favor ; and the proper judgment may be entered thereon.^ Where the terre-tenant is known to claim under a title adverse to that of the defendant, or derived from the defendant prior to the judgment under which the sale was made, the proper course for the purchaser is, to commence his ejectment directly, in the ordinary form, without incurring the delay and expense of the pro- ceedings before a justice, which, in such case, would only lead him by a circuitous route to the same point. The following are' a few of the principles which have been decided in such proceedings. § 1400. The purchaser must, of course, show a good title in himself, by means of the record, and the proceedings in the execution, down to the ackowledgment of the sheriff's deed.' And on the trial, the venditioni may be amended by the praecipe, by inserting the name of one of the defendants.^ So, a missing record may be proved by secondary evidence, but its existence and loss must first be established by competent proof; therefore, where no deed was shown, the existence of a petition and an order of the court thereon, authorizing the sheriff to make a deed, being in the nature of a judgment, cannot be presumed against a stranger to the proceeding, who claims by virtue of a possession altogether distinct from and independent of it.* The existence of the record will only be presumed after a great lapse of time f where the jury presumed the loss of a venditioni, between February 1800 and July 1811, and there were no circumstances to authorize the presumption, besides the length of time, the court granted a new trial.^" Where the plaintiff produced a transcript, containing a short entry of a judgment in a sei. fa. sur mort- gage, and a certificate that the sei. fa. could not be found, it was held admissible;" and proof of the existence of the venditioni may be supplied ' See supra, § 1293. ' Siokler v. Overton, 3 Penn. St. ' Dean v. Connelly, 6 Penn. St. 325. 239. 8 Baskin v. Seechrist, 6 Penn. St. ' Kimball V. Kelsey, 1 Penn. St. 154. 183. » Woods V. Lane, 2 S. & R. 53. * Walker v. Bush, 30 Penn. St. 352. '» Willing v. Brown, 6 S. & R. 457. ■' Ibid. " Lanning v. Dolph, 4 W. C. C " Lanning v. London, 4 W. C. C. 513. 624. SUMMARY PEOCEEDINGS. 815 by circumstances.^ The sheriff's authority to sell and convey must be shown f in the case of a sale under a mortgage, the mortgage and pre- cept to the sheriff must be produced by the plaintiff in the ejectment.* The conditions of the sale are part of the res gestm, and are admissible in evidence on the part of the plaintiff.* Where the terre-tenant is a stranger, the title must be made out ; if, however, the terre-tenant be the defendant in the judgment, or one claiming under him, it is sufficient to show the judgment, and the proceedings under it.^ If no title be shown to exist in the defendant, the record, sheriff's sale, &c., are not evidence.^ It is not necessary for the purchaser under a levari facias, to prove that due notice of the time and place of sale was given ; nor that the sheriff's return should state that the notice had been given.' § 1401. The defences which may be taken in these cases amount in general to this, that the execution-defendant had no estate in the land sold, and, consequently, the judgment was no lien upon it. Evi- dence inconsistent with the claim before the justices cannot be given by the defendant ;^ but if the defendant afterwards acquire possession, under a better title than that obtained by the plaintiff under the sheriff's deed, he may avail himfeelf of it in the ejectment.' And he may show a title derived from a sheriff's sale of the land to him, as the property of the petitioner, after the commencement of the proceedings, before the justice, and whilst the cause is pending in court, and thus defeat the plaintiff's recovery.-'" So, if the first sale were subject to a mortgage, under which the land was sold a second time, the first purchaser cannot recover possession of the land, though he may recover the costs of suit ;'' and so, if the first sale were under a judgment against a devisee, and the second sale were under a judgment against the devisor, the first purchaser cannot recover the land against the second.'^ § 1402. The wife of the execution-defendant not infrequently claims the land as her separate property. If the judgment upon which the land was sold were confessed by her deceased husband, she may show that this was done with the fraudulent design of destroying her title, the pur- chaser having notice of the fraud, and of her title ; and she may show this in an ejectment by the sheriff's vendee, because she could not con- test the validity of the judgment, in a scire facias against her as admin- istratrix of her husband — it being valid as between the parties." When the land sold under a judgment against the husband belongs to the wife, ' Moorhead v. Pearoe, 2 Yeates ' Topper v. Taylor, 6 S. & R. 456. 173. 2 Seeohrist v. Baskin, 7 W. & S. * Kimball v. Kelsey, 1 Penn. St. 403. 183. s Marshall v. Ford, 1 Yeates 195. ' Cooper v. Galbraith, 3 W. C. C. * Arnold V. Gorr, 1 Rawle 223. 546. 5 Wilson V. McVeagh, 2 Yeates 86. "• Brownfield v. Braddee, 9 Watts Little w. Delancey, 5 Binn. 270. Cooper 149. V Galbraith, 3 W. C. C. 546. Arnold u. " Street v. Sprout, 5 Watts 272. Gorr, 1 Rawle 223. Schall v. Miller, ''' Elliott v. Aokla, 9 Penn. St. 42. 3 Whart. 250. " MitoheU v. Kintzer, 5 Penn. St^ * Arnold v. Gorr, ut supra. 216 816 EXECUTION. she need not become a party to the record; her husband may defend, her interest, in an ejectment by the sheriff's vendee, brought against the husband alone.' The question whether the wife is the real owner of land purchased during coverture, depends upon whether the purchase- money was her own separate funds ; this must be clearly and fully proved ; that she had the means of payment is not sufficient ; in the absence of such proof, the presumption is violent, that the husband fur- nished the means of payment.^ Money in possession of the wife, or any- thing purchased with such money, is prirnd fade the property of her husband, as well since as before the act of 1848.^ Admissions made by her vendor, at the time he received the deed, under which he held the property, which had been used by her in a former ejectment, brought against her by the representative of such vendor, to show an equitable estate in her husband, were held to be her own admissions, by adoption, and competent evidence of the fact which they tended to establish.* § 1403. All who come into possession under the defendant in the exe- cution, are estopped by the judgment, from disputing the plaintiff's right of possession.^ Thus, the terre-tenants cannot set up a mortgage and release of the equity of redemption given by the defendant to one of them.^ Nor can it be set up that the title purchased at the sheriff's sale was only an equitable onef nor can the defendant set up an outstand- ing title in another.^ The defendant cannot prove the value of the pro- perty to affect the purchaser's title.' Nor will a mere error in the proceedings overturn the vendee's title ;'" but, it seems, where the terre- tenant was not a party to the scire facias in which the judgment was obtained, he may make any defence to the ejectment, which would have been open to him on the the scire facias}^ And the defendant may show that he had but a life-estate, and that, consequently, the sale passed no title.'^ § 1404. The terre-tenant may defend as vendee of the execution- defendant, prior to the judgment on which the land was sold. Where a vendee of the execution-defendant, by a parol sale, who is in possession of the land, had notice of the intended sheriff's sale, and made a state- ment that he owned no land, in the presence of one who afterwards pur- chased at the sale, he should give actual notice of his title ; his mere possession will not be constructive notice, after such declaration ; but, it seems, that an advertisement, in the same newspaper with the sheriff's advertisement, or a written notice posted at the place of sale, will be suf- ' MoBlfatriok v. Hicks, 21 Penn. St. ' Cooper v. Galbraith, 3 W. 0. C. 402. 546, ' See supra, ? 992-3, § 1009-10. » Young v. Algeo, 3 Watts 223. » Winter v. Walter, 37 Penn. St. ' Mott v. Clark, 9 Penn. St. 400. 156. And see Bright. Dig. 1290, pi. " Springer v. Brown, 9 Penn. St. 247-8. 305. See supra, § 1358-61. * Ibid. " Nace v. Hollenback, 1 S. & R. 540. 5 See supra, ? 1386 n. " Snavely v. Wagner, 3 Penn. St. « Eisenhart v. Slaymaker,'14 S. & K. 275, 153. SUMMARY PROCEEDINGS. 817 ficient.' A sheriff's vendee of an equitable estate under articles, without notice of a prior unrecorded conveyance of the legal title, is not bound to tender the purchase-money, before bringing ejectment against the claimant under the unrecorded conveyance, who claims to hold the land, not as security for the unpaid purchase-money, but absolutely and in bar of the title of the sheriff's vendee ; but it is otherwise, where the owner of the legal title acknowledges the trust.^ § 1405. But if the prior sale were fraudulent, the vendee of the execu- tion-defendant has no title, as against the subsequent sheriff's vendee. And this class of cases is of frequent occurrence, the most effective mode of testing a suspected fraudulent sale of his land by a debtor, being for the creditor to sell it under execution against the debtor, purchase it himself, and bring ejectment against the sheriff's vendee.^ A convey- ance by a defendant in a judgment to his son, intended to delay and hinder creditors, is fraudulent as to creditors, whether the consideration amount to the value of the land sold or not ; in such case, the father being in possession, at the time of the sale of the land under an execution against him, the son cannot set up, against the sheriff's vendee, an out- standing title in another.* A fraudulent grantee cannot set up the dis- charge and insolvent assignment of the grantor, against a creditor who has pursued the land, and purchased it at a sheriff's sale, under an exe- cution against the grantor, founded on a claim existing against him at the time of his discharge.^ § 1406. The terre-tenant may defend on the ground that the judgment was no lien on the land sold. Thus, he may show that he was a tenant in common with the defendant, who held the legal title as trustee, and that the plaintiff had notice of these facts.' And where a judgment was obtained on a sci. fa. quare ex. non, against one whose interest in the land was not bound by the judgment, although the terre-tenant was sum- moned under the sd. fa., he will not thereby be prevented from setting up his adverse title, in an ejectment by the sheriff's vendee.'^ But the report of an auditor, making distribution of the proceeds, having been confirmed, is evidence against the defendant, in an ejectment brought by the purchaser at the sheriff's sale, to show that such defendant had been a claimant against the proceeds, under a judgment against the execution- defendant, though not conclusive against the defendant in the ejectment ; his claim, although rejected by the auditor, was an admission that the execution-defendant had some interest in the land sold.* And in eject- ment by a sheriff's vendee to recover possession, it will be presumed, after a great lapse of time, that the debts for which the land had been assigned, long prior to the judgment and sale, were paid, and that the 1 Keeler v. Vantuyle, 6 Penn. St. 275. 250. * Knox v. Herod, 2 Penn. St. 26. ' Stewart v. Freeman, 22 Penn. St. ' Mitchell v. Hamilton, 8 Penn. St. 120. 486. Drum v. Kelly, 34 Ibid. 415. ' See svpra, ? 1008. ' Garrigues v. Harris, 17 Penn. St. * Zerbe v. Miller, 16 Penn. St. 488. 345. But see Leeds v. Bender, 6 W. 6 Hollinshead w. Allen, 17 Penn. St. & S. 315. VOL. I. — 52 818 EXECUTION. debtor's resulting interest in the land, by operation of law, was com- plete, and, consequently, that the sheriff's vendee could recover.^ The terre-tenant cannot impeach the judgment under which the sale was made, except for fraud or collusion:^ thus, it is no defence, that the judgment was confessed by an attorney, without authority; in such case, his only remedy is by action against the attorney.^ And we have already seen, that irregularities in obtaining the judgment, or in the proceedings under it, must be objected to, as a general rule, before the acknowledgment, or they will be cured/ § 1407. Where the defendant had no notice of the suit. After a sale under proceedings in a sei. fa. on a municipal claim, although it is no defence to an ejectment by the sheriff's vendee, that the real owner was not named in the proceedings, yet, if he had a good defence to the payment of the debt for which his land was sold, and, not having been a party to the sei. fa., had no opportunity to make it there, he may make it in the ejectment ; it is a suiScient defence, that the claim was actually paid to the proper officer, before the issuing of the writ, although such payment was made through mistake, by the owner of the adjoining lot, and the money was subsequently refunded to him ; for such payment having been received in satisfaction of the debt due by the lot, might have been lawfully retained.* One with whose privity and under whose direction the sale was made, is estopped from controverting the sale, so far as relates to any interest he possessed f and so of one who partici- pated in the proceeds.' It is not competent for the defendant in the ejectment, to prove a fraudulent combination to defraud creditors between himself and the sheriff's vendee.^ In an ejectment by the executors of the sheriff's vendee, against a mortgagee in possession under an unre- corded mortgage, the defendant acquires no additional equities against the plaintiffs, from the fact that the mortgagor is entitled to a share of the residuary estate, under the will of the plaintiff's testator.' XIV. Execution against the person. § 1408. Capias ad satisfaciendum. If the defendant have neither personal nor real estate liable to execution, the plaintiff, subject to cer- tain restrictions and qualifications hereafter to be mentioned, may have execution against the person of the defendant.'" The general rule is, fhat whenever a capias is allowable on mesne process before judgment, it may be had on the judgment itself.'^ The provisions of the act abol- ' Webb V. Dean, 21 Penn. St. 29. ' Wilson v. Shoenberger, 34 Penn. ' Postens V. Postens, 3 W. & S. 182. St. 121. See supra, § 1363-4. i» Act 16 June 1836, ? 19, P. L. 764 ; ' See supra, | 1358. Purd. 635. A ca. sa. cannot issue upon ' See supra, \ 1293. a justice's transcript, filed in the com- " Delaney v. Gault, 30 Penn. St. 63. mon pleas, in order to create a lien. ' Willing V. Brown, 7 S. & R. 467. Wheeler and Wilson Manufacturing ' Stroble V. Smitli, 8 Watts 280. Co. u. Moore, fi W. N. C. 270. See Wilson v. Bigger, 7 W. & S. 126. " 3 Salk. 286. 3 Co. 12. See supra, « Leshey v. Gardner, 3 W. & S. 315. il 286, 299. CAPIAS AD SATISFACIENDUM. 819 ishing imprisonment for debt/ in eifect, restrict the use of the cajnas ad satisfaciendum to judgments in actions for fines and penalties, on pro- mises to marry, on moneys collected by a public officer, for misconduct or neglect in office or in any professional employment, and in actions for torts.^ The neglect of an attorney to pay over money collected for his client, is a "neglect in a professional employment," and he may be arrested on a judgment obtained in assumpsit for money so collected ; in such case, it is not necessary that the action should be in tort, in order to authorize the arrest.^ But in an action for the breach of a warranty of a horse, if the plaintiff declare in assumpsit, a ca. sa. will not lie, to enforce the judgment — -no scienter being averred.'' It lies upon a judg- ment for mesne profits, after a recovery in ejectment; such judgment is not founded on contract.^ And this process lies for a defendant, to recover his costs upon a judgment in his favor in an action of tori.* § 1409. The plaintifi" may have a fieri faeias and a capias ad satisfaci- endum at the same time.^ It was a general practice, before the act of 1836, to issue both writs at the same time, where it was uncertain whether the defendant had property, and then, if none was found, the sherifi" was enabled, by an immediate service of the ca. sa., to obtain the only remaining security for the plaintiff's claim, the debtor's body. But if afi.fa. be already in operation, the plaintiff cannot legally proceed against the body of the defendant : therefore, when a fi. fa. is returned . " levied subject to prior executions," it is incumbent on the plaintiff, before he can issue a ca. sa., to compel a sale of the property levied on, • in order to put a judicial termination to the first writ f and although he find the property altogether worthless as a means Of satisfaction, he can- not abandon a levy upon real property condemned, and take out a ca. sa., without the leave of the court.' If, after a levy on the defendant's lands, the plaintiff issue a ca. sa., and the defendant submit thereto, and 1 Act 12 July 1842, P.L. 399; Purd. « Miller v. Scherder, 2 N. Y. 262. 636. Parce v. Hulbert, 1 How. Pr. 235. In ^ The proceedings "as for contempt, such case, the defendant is entitled to to enforce civil remedies," excepted by a ca. sa. for his costs, by virtue of the the act, are not by ca. sa., but by at- statutes of 23 Hen. VIII. o. 15, and 4 taehment. Notwithstanding the act Jac. T. u. 3, which provide that a de- of 1842, a court of equity has power to fendant " shall have such process and enforce a decree for the payment of execution for the recovery and having money, against a trustee, by attach- his costs against the plaintiff, as the ment against the person. Chew's Ap- plaintiff should or might have had peal, 44 Penn. St. 247. Klein's Estate, against the defendant, in case the judg- I W. N. C. 250. But such attachment ment had been given for the plaintiff." will not be awarded against an admin- Bright. Costs 312. Brown v. Brockett, istratrix, where the money has been 55 How. Pr. 32. A married woman, received by her attorney, and misap- however, is not liable to arrest in such propriated by him. Hamilton's Estate, case. Hovey v. Starr, 42 Barb. 435. 4 W. N. C. 204. And see Schadewald's See supra, 1 954. Estate, 6 Ibid. 96. ' Act 16 June 1836, 1 27. Winder ' Wills V. Kane, 2 Gr. 60. v. Smith, 6 W. & S. 429. * Howard v. McKee, 82 Penn. St. » Burk v. McFall, 2 Bro. 144. 409. ' Bank of Pennsylvania v. Latshaw^ * Hopkinson v. Cooper, 8 Phila. 8. 9 S. & R. 10. 820 EXECUTION. obtain his discharge under the insolvent law, the submission to the ca. sa. renders the fi. fa. irregular, all proceedings on it are gone, and the sheriff selling the land, after such discharge, will not be allowed to acknowledge a deed to the purchaser.^ ' § 1410. Although both a, fieri facias and capias ad satisfaciendum may- be had at the same time, yet they cannot both be served ;^ and if the plaintiff have levied his fi. fa. on the defendant's lands, and then taken him upon a ca. sa., the defendant may, at his option, set aside either of the writs.' So, in the case of a ca. sa. and an attachment-execution, the plaintiff must elect which writ he will pursue, though his election is not determined, until one of the writs has been executed.* And no writ of capias ad satisfaciendum can in any case be executed, where the defendant has real or personal estate within the county sufficient to satisfy the judg- ment.' The plaintiff, in case of necessity, should issue the fi. fa. and ca, sa. together, with directions to the officer to call on the defendant to show his property, and to execute the capias only in case he refuse to do so ; if the plaintiff have the ca. sa. executed, without this precaution, he sub- jects himself to an action of trespass vi et armis, if it appear that the defendant had sufficient property to satisfy the judgment ;^ and in such case, the ca. sa., being not merely irregular but void, will be quashed by the court f but the writ, though void, is nevertheless a justification to the officer who executed it.*. After the defendant has been illegally dis- charged from, and retaken upon the same execution, it is too late to offer to show property ; the offer should be made previously to the original arrest.' The exemption from arrest, under the act of 1836, is a privilege, and if the defendant submit to the arrest and give bond, he waives the privilege.^" If the defendant have not sufficient property in the county to fully satisfy the judgment and costs of execution, the ca. sa. may be executed, but only for the deficiency." If, after a fi. fa. levied on per- sonal property and returned, the plaintiff release the levy ; this, though an extinguishment of the debt, as respects third persons, does not operate as a satisfaction, as between the plaintiff and defendant, if the debt remain unpaid.'^ § 1411. The writ of capias ad satisfaciendum commands the sheriff to take the defendant and him safely keep, so that he may have his body in court on the return-day, to satisfy the plaintiff. In point of form, this process must pursue the judgment ;^' therefore, on a joint judgment against several defendants, it must include them all.'* It should regu- larly be returnable on a general return-day, in like manner as the for- mer proceedings.'' If part of the debt have been levied on Si fi. fa., the ' Young V. Taylor, 2 Binn. 218. " Ibii ' Burk V. MoFall, 2 Bro. 144. And ' Hecker v. Jarrett, 3 Binn. 404. see act 16 June 1836, §§ 27, 28. '» Winder v. Smith, 6 W. & S. 424. ' Tiffin V. Tiffin, 2 Binn. 202. " Act 16 June 1836, ? 28. * Davies v. Scott, 2 Miles 52. " Duncan v. Harris, 17 S. & R. 436 ' Act 16 June 1836, § 28. " Tidd 1027. " Berry v. Hamill, 12 S. &R. 210. " Clarke v. Clement, 6 T. R. 526-7. ' Allison V. Rheam, 3 S. & R. 139. '^ Tidd 1028. CAPIAS AD SATISFACIENDUM. 821 m. sa. may be for the remaiader.^ If informal, it may be amended in like manner as the fieri facias ;^ in matters arising from the mere care- lessness of the clerk, in process, amendments are allowed even after error brought.^* It is the duty of the sheriff, to arrest the defendant, if he can be found, unless he be privileged from arrest, and keep him in custody, until discharged by due course of law.^ Whether the judgment or execution be voidable, is a point which the sheriff is never permitted to raise; and, having arrested the party, he is bound to keep him till duly discharged/ If he discharge him without the authority of the plaintiff or his agent, or take bail for his appearance, without such authority, the sheriff will render himself liable for the debt.^ The arrest cannot be made on SundayJ § 1412. Privilege from arrest. It is manifest, that there is a radi- cal difference between arrest upon mesne and upon final process. The first is intended merely to bring the defendant before the court, and compel him to give security to abide the event of the suit ; the other is intended to obtain satisfaction of a debt adjudged against him ; it is, therefore, to be expected, that we shall find some differences as to the privileges of the defendant in the two cases. The privileges of members of congress and of the legislature ; of ambassadors and other public ministers, or their domestic servants ; of members of corporations aggre- gate ; and of witnesses, counsel and suitors in attendance upon cburts of justice, eundo, morando et redeundo, are the same under final process as under the capias ad respondendum, to which reference is made.' Wit- nesses, however, are not protected throughout the term at which the cause was marked for trial, nor while transacting their private business, after having been discharged from the obligation of the subpoena f the doctrine of privilege will not be extended, to the injury of honest creditors,'" § 1413. If the defendant be illegally arrested, he should sue out a habeas corpus, or apply, by motion, to the court for relief" And the order of a court of competent jurisdiction, discharging a defendant from arrest, upon this ground, will be a conclusive justification, in an action against the sheriff for an escape ;'^ but a discharge upon habeas corpus, by a judge of the common pleas, without notice to the plaintiff, is void, ' Olcott V. Lilly, 4 Johns. 407. ^ Commonwealth v. Lecky, 1 Watts = Tidd 1028. 67. » Peddle v. HoUinahead, 9 S. & « Dowdel v. Hamm, 2 Watts 63 ; B. 277. De Haas v. Bunn, 2 Penn. Bogers, J. St. 335. Sickler v. Overton, 3 Ibid. ' Act of 1705, H; 1 Sm. L. 25; 325. Purd. 1345. * Having arrested the defendant, it * See su^ra, ? 231. is the duty of the sheriff, to imprison ' Smythe v. Banks, 4 Ball. 329. him in the jail of the proper county ; See supra, ^ 239. he is not permitted to retain the defend- '" See Morgan v. Eckart, 1 Ball. 295. ant in custody, in a private house, for " Johnston v. Coleman, 8 W. & S. more than twenty days, even with his 69. And see supra, g 240. own consent. Act 14 Feb. 1729-30, »^ Hurst's Case, 4 Ball. 388 ; Wash- g 14; 1 Sm. L. 186 ; Purd. 775. ington, J. 822 EXECUTION. and the defendant may be retaken on the same execution.' The court •will not, however, interfere in a summary way, and relieve a defendant from arrest in execution, unless his case be made out entirely to their satisfaction ; where his equity is not clear, they will leave him to his action.^ § 1414. Escape. If a party escape or be rescued from arrest on a ca. sa., though the sheriff is thereby liable, because he ought to have taken the posse oomitatus, yet the plaintiff may retake such prisoner on a new ca. sa., or sue out another kind of execution on the judgment, and will not be compelled to take his remedy against the sheriff, who may be dead or insolvent.' And he may commence suit against the sheriff, and take out execution against the property of the defendant, at the same time ; for the remedies are not inconsistent with each other.* After an escape, the sheriff may himself retake the defendant f unless the escape were with his permission, in which case, he cannot arrest or detain him without new process.^ § 1415. Sheriff's liability. If the sheriff suffer the defendant to go at large, he becomes absolutely liable for the debt and costs,'^ unless by the authority of the plaintiff or his agent.* And as a prisoner in actual custody on one writ, is, by operation of law, in custody on every other writ lodged against him in the sheriff's office, and also, as a prisoner arrested' by the under-sheriff or bailiff, is legally in the custody of the high sheriff, who is exclusively liable, in case he escape,' it has been held, that the sheriff is liable for an escape, where he has returned -non est inventus to a ca. sa. delivered to him, if, prior to the return-day, his deputy had the defendant in custody under another ca. sa., and dis- charged him ; though it did not appear that the sheriff knew of the latter writ, nor that the deputy knew of the former.'" If a jailer suffei a prisoner to escape, without the sheriff's knowledge, and the sheriff be thereby made responsible, the jailer is liable to him, in an action on the case, nor will it relieve the jailer from liability, that he took advice and acted with good faith in the matter." In an action against the sheriff for an escape, he cannot take advantage of the fact, that the ca. sa. had been issued after a year and a day, without a scire faoias.^^ But the ' Heoker v. Jarrett, 3 Binn. 404. Watts 141. Comnionwealth v. Sheriff, ' Pearoe v. Affleck, 4 Binn. 344. 1 Gr. 187. Robertson v. Taylor, 2 " Wesson v. Chamberlain, 3 N. Y. Chit. 454. 331. MoGuiuty v. Herrick, 5 Wend. ^ Dowdel v. Hamm, 2 Watts 63 ; 240. 2 Bac. Abr. 719. AndseeArden Rogers, J. V. Goodacre, 11 C. B. 371. ' 5 Co. 89. Rol. Abr. 94. Jackson * McCrea v. Bartlett, 8 Johns. 361. v. Humphreys, 1 Salk. 273. ^ Featherstonehaugh v. Atkinson, '» Wheeler «. Hambright, 9 S. & R. Barnes 373. AUeu v. Martin, 10 Wend. 390. And see Wemple v. Glavin, 5 300. Abb. N. C. 360. « Commonwealth v. Sheriff, 1 Gr. " Duncan v. Klinefelter, 5 Watts 187. Lansing i). Fleet, 2 Johns. Cas. 3. 141. Thompson!). Lookwood, 15 Johns. 256. " Shirley v. Wright, 1 Salk. 273. Butt V. Jones, Gow 99. And see Patton v. Freeman, Coxe 113. ' Shewellu. Fell, 3 Yeates 17; s. c. Jones v. Cook, 1 Cow. 309. Hinman 4 Ibid. 47. Duncan v. Klinefelter, 5 v. Brees. 13 Johns. 529. CAPIAS AD SATISFACIENDUM. 823 plaintiff's attorney has full power to discharge the defendant from imprisonment, and the sheriff is bound to receive and obey his instruc- tions ; the sheriff may, therefore, rely upon the fact, that the attorney of the plaintiff ordered the defendant's discharge ; but this fact must be clearly proved, and if it appear that the order was given, after the escape, it will not relieve the sheriff.^ So, if the plaintiff, his assignee, trustee or agent, direct the sheriff to execute the writ in a particular way, and the sheriff obey, as he is bound to do, he will be relieved from all responsibility, in case of loss or escape, and the former must take the consequences.^ If the action be brought in debt, the jury must find the whole debt and costs, the plaintiff being entitled to recover them, in the same manner as he could have done against the debtor ; for the insolvency of the debtor cannot be given in evidence, as it could, if the escape had been on mesne process.^ But if it be brought in case, they may find such damages as they think proper.* § 1416. Return. The common returns to a ca. sa. are " C. C. & C," that is, cepi corpus et committitur, when the defendant is arrested and com- mitted to jail ; and " N. E. I.," that is, non est inventus, when the defend- ant cannot be found in the bailiwick. Special returns vary accord- ing to circumstances : when the debtor has given bond for his appearance under the insolvent laws, the sheriff adds to his return, after stating the arrest, that the defendant was discharged by order of the .court, or of the judge who subscribed the discharge; after which a fi. fa. would be irregular, though issued before final discharge by the insolvent court.^ If the sheriff cannot serve the writ, on account of some privilege enjoyed by the defendant, he makes a special return to that effect ; the sheriff may be compelled, by attachment, to return the writ.^ The truth of the return may be contested, in an action for a false return f the sheriff will be permitted to amend his return, upon application being made in a reasonable time, and showing clearly that the return was made under a mistake of fact which, from its nature, might not be within his know- ledge ; as, where he arrested a man of the same name as the real defend- ant, and returned the arrest of the latter ; but not, when the application to amend is delayed, until after suit has been brought against him for an escape, and issue joined.^ He is not bound to particularize in his return the day of the arrest, and if he do so, the party is not bound by it.' The production of the defendant's body, after a return of cepi corpus, may be enforced by attachment; to obtain which, application must be I Scott V. Seller, 5 Watts 235. 1 Clark 314. ' Dowdel V. Hamm, 2 Watts 61, 63. * Davis v. Sommer, 1 Miles 397. » Wolverton v. Commonwealth, 7 S. « Act 16 June 1836, ^ 28, P. L. 794; & R. 273. Smith v. Commonwealth, Purd. 273. 59 Penn. St. 320. Barnes v. Willett, ' 1 Arch. Pr. 278. 35 Barb. 514. ' Scott v. Seller, 5 Watts 235. And * Duncan v. Klinefelter, 5 Watts see supra, § 1069, as to the effect of 141. Patterson v. Westervelt, 17 Wend, the return. 543. And see Catherwood v. Fitler, ' Dolan v. Briggs, 4 Binn. 500. 824 EXECUTION. mad J during the sheriff's term of office, or within two y§ars after its termination.^ § 1417. On the return of non est inventus, the plaintiff may sue out an alias capias into the same, or a testatum capias into a different county. The testatum ca. sa. is regulated by the act of 1836,^ which directs that if the defendant has no real or personal estate within the commonwealth, and he cannot be found in the county, it may be lawful for the plaintiff, upon affidavit of the fact, to the best of his knowledge and belief, to have, upon his own suggestion, and without any previous writ, a writ of testatum ca. sa., or several such writs, at the same time, into any other county or counties, which writs shall be made returnable to the court from which they issue ; provided, that the plaintiff shall not be allowed the costs of more than one writ, unless the court be satisfied that the plaintiff had sufficient cause for issuing more. The sheriff refusing or neglecting to execute and return a testatum ca. sa., directed to him, may be amerced in the court where he ought to return it, and will also be liable to the action of the party aggrieved.^ The court of the county to which a testatum writ of fi. fa. is directed has no control over it ; the pro- cess is under the control of the court whence it issues, for every purpose whatever.* But the rule is different on a testatum ca. sa.; the sheriff arresting the defendant must commit him to the jail of his own county, not that of the county whence the writ issued, and if he take him to the latter county, it seems, he will be chargeable with an escape ; and the debtor should make his application for a discharge under the insolvent laws, to a judge or the prothonotary of the common pleas of the county in which he was arrested ; and his bond should be conditioned for his appearance at the next term of the court of that county.^ § 1418. Payment, Upon being arrested, the defendant has three alternatives : either to satisfy the plaintiff's claim, to give bond for his appearance at the next insolvents' court, or else to continue in close custody. So strict was the law on the subject of the sheriff's duty as to the custody of the defendant's body, that it was long before it was settled, that payment to the sheriff, on a ca. sa., was a good payment." Upon receiving the money, the sheriff is bound to pay it over to the real and not to the nominal plaintiff, when the writ was indorsed to the use of the former ; if he do not, he is liable to an attachment.'' The sheriff cannot release the defendant from the execution, on his giving security for the ^ Act_16 June 1836, § 28, P. .L. 794 ; which a debtor is in his custody on a Purd. 273. ca. sa. ; and therefore, he is not liable, ^ Act 16 June 1836, § 81, P. L. 775 ; if his bailiff receive the amount of Purd. 654. such debt, and omit to pay it over. » Ibid., i 82. Wood r. Finnis, 7 Exch. 363. United * Commonwealth v. Smith, 4 Phila. States t. Moore, 2 Brock. 318. Waite 419. t,. Delesdernier, 15 Maine 144. But ^ Avery v. Seeley, 3 "W. & S. 494. the plaintiff can attain the same end, ° Sharpe v. Speokenagle, 3 S. & E. by an action of debt against the 467 ; Duncan, J. At common law, it sheriff, for a permissive escape on final is no part of the sheriff's duty, to re- process. ceive payment of the amount for ' Zantzinger v. Old, 2 Dall. 265. CAPIAS AD SATISFACIENDUM. 825 payment of the debt — sucli security is void ;^ nor upon his giving his negotiable note for the amount of the debt ; in such case, the defendant remains liable, though the officer gave him a receipt in full, and returned the execution satisfied.^ The officer cannot apply this writ in his hands to the satisfaction of his own debt, thereby substituting himself for the defendant ; therefore, where the coroner, having a ca. sa. against the sheriff, to whom he was indebted, gave him a receipt in full, and engaged to settle the amount with the plaintiff, but failed to do so, this did not discharge the execution, actual payment alone being competent to pro- duce that effect.' So, two officers cannot set off executions in their hands against each other, as such arrangement would substitute the officer for the defendant, and if one of them were insolvent and the other not, the set-off would effect an injurious change of liability ;* to avoid this and other mischiefs, the law will not endure the mingling of private trans- actions with official duties. The sheriff's commission on receiving and paying over money to the creditor under this process, is the same as that allowed under other executions, and subject to the same restrictions.' § 1419. Discharge from, custody. If the plaintiff direct or assent to the discharge of the defendant from arrest in execution, though it be on terras which are not subsequently fulfilled, as upon giving fresh secu- rity, which afterwards becomes ineffectual, the debt is extinguished ;^ and the plaintiff cannot resort to the judgment again, nor charge the defendant's person in execution, though he was discharged upon an express agreement, that he should be liable to be retaken, in case of non- compliance with the terms.'' The discharge of the defendant by the plaintiff extinguishes the judgment, and all remedy on any promise, except that which formed the immediate consideration of the discharge ; a subsequent promise is nudum pactum;^ but the lien of the judgment is not discharged, by an agreement to release the defendant from arrest in execution, on payment of costs and jail-fees, without prejudice to his future liability for the judgment.^ If, therefore, the plaintiff discharge one of several defendants, in custody under a joint capias, he cannot * Dowdel V. Hamm, 2 Watts 6.3. A discharge from custody, on the Wheeler v. Bailey, 13 Johns. 366. But receipt of a sum in cash, and the an obligation given to the plaintiff in defendant's notes for the balance, the ca. sa., for the defendant's appear- releases the judgment; the plaintiff anoe on a day certain, to answer the can only look to the notes. McCauley claim, or in default, to pay the debt v. Kelley, 2 W. N. C. 30, So, an and costs, is not within the statute 23 arrest on a ca. sa. and discharge of Hen. VI. c. 9. Koons v. Seward, 8 the defendant, by order of the plaiu- Watta 388. tiff; operates as a satisfaction of the * Bank of Orange County v. Wake- judgment, and discharges a guaran- man, 1 Cow. 46. tor. Bamford v. Keefer, 68 Penn. St. 8 Codwise v. Field, 9 Johns. 263. 389. s. p. Miles V. Richwine, 2 Rawle 199. ' Yates v. Van Rensselaer, 5 Johns. * Miles V. Richwine, ut supra. 364. See Magniac v. Thomson, 15 6 See supra, § 1106. How. 281. 6 Sharpe v. Speckenagle, 8 S. & R. ^ Snevily v. Read, 9 Watts 396. 464. Heisse v. Markland, 2 Rawle ' Jackson v. Knight, 4 W. & S. 412. i!74. Jordan v. Mintzer, 3 Clark 457. See act 16 June 1836, \ 31. 826 EXECUTION. retake him nor take any of the others ;' but where the actions against two joint debtors were separate, and they were both arrested, one for the debt and the other for the costs, it was held, that the plaintiflP, by dis- charging the defendant in execution for the costs only, did not discharge the other, and it was not a satisfaction of the debt for which the latter was imprisoned.^ But in qui tarn actions, the plaintiff having no right to discharge the judgment, nor compound with the defendant, without leave of the court, or payment of the judgment, the defendant's discharge, so far as relates to the moiety of the penalty belonging to the common- wealth, is void, and cannot excuse an escape.^ So, where a single judge discharges a defendant from execution, upon a habeas corpus, without notice to the plaintiff, the proceeding is void, and the defendant may be retaken in execution •* and the supreme court cannot discharge from a ca. sa., issued out of the common pleas.^ § 1420. Death of defendant. At common law, if the defendant died in jail, the plaintiff had no further remedy f but by statute 21 Jac. I., c. 24,^ if the defendant die whilst charged in execution under this writ, the plaintiff may afterwards sue out a new execution against his lands, goods or chattels.^ And now, by the act of 1836,' if the defendant die in prison, the judgment will not be deemed satisfied, but the plaintiff may proceed as if the ca. sa. had not issued, saving, nevertheless, all rights and interests which may have accrued to others, between the issu- ing of the writ and the death of the defendant. § 1421. Discharge under the insolvent laws. If the defendant has resided in the state for six months, or has been confined in jail for three months,^" he may make application for his discharge to any judge, or to the prothouotary of the common pleas of the county in which he is arrested or detained ;'' but one arrested on a testatum ca. sa. can only be discharged by the court of the county to which the writ is issued.'^ A state court cannot discharge, under the insolvent laws of the state, a defendant in custody upon final process from the United States courts.'^ The defendant must give bond to the plaintiff (it is void, if taken for the use of other creditors),^^ in such amount and with such security as shall be approved by the judge or prothouotary ,'° conditioned that he will appear at the next term of the court, and then and there present his ' Clark V. Clement, 6 T. R. 525. Purd. 778. ' McLean v. Whiting, 8 Johns. 339. " Ibid., § 2. For form of petition, ' Minton v. 'Woodworth, 11 Johns, see Binns's Justice (8th ed.) 478. 474. »^ Avery v. Seely, 3 W. & S. 494. * Hecker ». Jarrett, 3 Binn. 411. " Duncan v. Klinefelter, 5 Watts 141. Commonwealth v. Lecky, 1 Watts Ex parte Thomas, 10 Phila. 82. 66- " Beaoom v. Holmes, 13 S. & R. 190. ^ loster V. Jackson, Hob. 52. 's The sureties cannot object that ^ob. Dig. 246. the bond was approved by the deputv- bharpe v. Speckenagle, 3 S. & R. prothonotary ; the approval is for the » ■ . , ■.„ -r , „ benefit of the creditor, and he may Act 16 June 1836, 5 31, P. L. 766 ; waive it. Wells v. Bentley, 3 Penn. St. i" A . ?« T * ,=0. =o T, . 2^^- ^- '■■ Stroop .. Gross, 1 W. & S. " Act 16 June 1836, § 3, P. L. 731 ; 139. CAPIAS AD SATISFACIENDUM. 827 petition for the benefit of the insolvent laws of the state, and comply with all the requisitions of the said law, and abide all the orders of the court in that behalf, or, in default thereof, and if he fail in obtain- ing his discharge as an insolvent debtor, that he will surrender himself to the jail of the said county.' Upon such bond being given, the judge or prothonotary may make an order, directing the officer or other person having the defendant in custody or confinement, forthwith to discharge such defendant, on his paying the jail-fees, if any be due.^ The officer or jailer will be exonerated, on making a return of such order upon the execution ;^ and he is bound to comply with the order of discharge, whether the bond be legal or not.^ § 1422. The conditions of the bond must be strictly complied with, or it is forfeited, and a second execution may issue against the defendant, or the plaintiff may proceed against the bail. Thus, the defendant must present his petition at the very next term of the court at which it can possibly be done ;° it is not sufficient, to present it at an adjourned court, after the regular term is ended f but any time during the term is suffi- cient ;'' and it may be presented to the current term of the court,^ or to an adjourned court, before the next regular term.' The pendency of an application in another suit, will excuse the defendant from making a second application ;'" so, if an application be pending in another county ;" so will a pending application, subsequently granted, made to the United States court for the benefit of the bankrupt law.'^ And if the court, at the next term, set aside the ca. sa., the bond is not forfeited, by a failure on the part of the defendant to present his petition, but became inoper- ative when the p.rocess was set aside.'^ In Philadelphia, notice of appli- cation for the benefit of the insolvent laws must be published in the Legal Intelligencer." Where the defendant has forfeited his bond, by non-compliance with the conditions, and has been re-arrested under a second writ, if the plaintiff discharge him from custody, without the assent of the surety, the debt is satisfied, and no action can be maintained against the latter upon the bond.'* § 1423. If the application be rejected, the defendant, in order to relieve his surety, must surrender himself upon the day of its rejection ; a sub- sequent surrender is ineffectual, and an escape from it would not charge the sheriff with the debt.'* The surrender may be made to the sheriff."^ ' Act 16 June 1836, § 6. For form ' Bailie v. "Wallace, 10 "Watts 228. of bond, see Binns's Justice (8th ed.) * McClure v. Foreman, 4 "W. & S. 280. 478. ° Johnson v. Turner, 4 "W. & S. 465 ; ' Ibid., 1 4-5. s. c. 2 Ash. 433. ' Ibid., ^7. "* McClure v. Foreman, ni supra. * Friok V. Kitchen, 4 "W. & S. 30. " Caldcleugh v. Carey, 5 W. &. S. 155. 6 See Wain v. Shearman, 8 S. & R. '^ Nesbit v. Greaves, 6 "W. & S. 120. 357. Lincoln v. Williams, 12 Ibid. 105. " Mason v. Benson, 9 Watts 287. McDonough's Case, 37 Penn. St. 275. " Rule xix. 1 68. Ex parte Reming- Kindt V. McDonald, 5 W. N. C. 38. ton, 3 Phila. 435. For form of petition, see Binns's Jus- '* Palethorpe v. Lesher, 2 Rawle 272. tiee (8th ed.) 479. '^ Frick v. Kitchen, 4 W. & S. 30. s Horton V. Miller, 38 Penn. St. 270. " Ranington v. Bennett, 3 Phila. 343. 828 EXECUTION. An offer by the defendant, in open court, to surrender himself, and his afterwards going to and remaining in prison, will discharge his surety, and his subsequent release does not revive the liability of the surety ;^ but his voluntary surrender of himself will not excuse him from present- ing his petition, in accordance with the conditions of his bond, and his surety will not be discharged thereby.^ And if the petition be rejected, because the accompanying affidavit was taken by the prothonotary, who had no power to administer the oath, and he is immediately surrendered to jail, his bond is forfeited.^ Where the defendant gave bond, and his application was rejected, whereupon he surrendered himself in discharge of his bail, and while in custody, executed another bond to the same plaintiff, which was approved by a judge of the court, and he was dis- charged, and his application was again rejected — though the second bond was illegal, yet, in an action upon it, the defendants are estopped from asserting its illegality, and the plaintiff is entitled to recover.* So, where a privileged person was arrested and gave bond, which he for- feited, he cannot set up, in an action on the bond, that his arrest was illegal, and the bond void f nor can his surety on the bond plead the illegality of the arrest.^ § 1424. Where a time has been fixed by the court for hearing the petitioner 'and his creditors, the petitioner, if he would save his bond, must either ask for a discharge, surrender himself to jail, or procure another day for final hearing ; if the court discharge a prisoner who has not performed one of these alternatives, it is erroneous, and will be re- versed on certiorari.'' Where, by mistake, no hearing is fixed, it is the duty of the debtor to appear at the next term, and have a day for hear- ing appointed ; where no proceedings are had after presenting the petition, the bond is forfeited.^ The discharge is matter of record, and should be pleaded prout patet per recordum ;' it can be proved only by the record, or by parol to supply a loss, but unless the existence of the record be first shown, other evidence is inadmissible.^" It would be foreign to the object of this work, to explain at length the proceedings upon the application for the benefit of the insolvent laws ; they may be found in Ingraham on Insolvency.'^ § 1425. Discharge under the bread act. By the 19th section of the act 26th March 1814,'^ commonly called the bread act, the courts ' Mullen V. Wallace, 2 Gr. 389. power to relieve the surety. Ex parte ' "Wolfram v. Striekhouser, 1 W. Taylor, 1 Pears. 191. & S. 379. 9 Murphy v. Richards, 5 W. & S. * Detwiler v. Casselberry, 5 W. & S. 279. 179. " Loughry v. McCullough, 1 Penn. < Egbert v. Darr, 3 W. & S. 517. St. 503. Karch v. Commonwealth, 3 5 Winder v. Smith, 6 W. & S. 424. Ibid. 269. « Johnston v. Coleman, 8 W. & S. '' And see Bright. Dig, tit. " Insol- 69. vency." J McDonough's Case, 37 Penn. St. '^ « Sm. L. 201 ; Purd. 776. Eorthe 275. amount of daily allowance in different * Bartholomew v. Bartholomew, 50 counties, see Purd. 776 n. Penn. St. 194. And the court has no CAPIAS AD SATISFACIENDUM. 829 of common pleas are authorized to fix a daily allowance for such defend- ants in the county prison as have not property sufiicient to support themselves, and the plaintiff, his agent or attorney, upon notice from the jailer, must cause the said allowance to be paid at the prison, on every Monday morning, while the debtor continues in custody; on failure whereof for three days, the debtor may apply to the common pleas, or to a judge thereof, if the court be not in session,^ who, if it be found, on inquiry, that the debtor is unable to support himself, and that payment of his allowance has not been made, is required forthwith to discharge the debtor from imprisonment, and he cannot be again imprisoned for the same debt. And now, the prothonotary of the common pleas may dis- charge the defendant, in such case.^ One imprisoned for damages in tort is not within the act.^ Such discharge cannot be impeached collaterally, by proof that, at the time of his discharge, the defendant was in possession of a sufficient sum of money to pay the debt.* A discharge under the bread act merely prevents another arrest of the defendant for the same debt ; while a discharge under the insolvent laws secures the person of the debtor from arrest under any other process, upon a claim accruing prior to such discharge.^ § 1426. Itnprisonment. The defendant may, if he choose, adopt the third of the alternatives above mentioned, and remain in prison. In all cases of imprisonment for debt, the debtor is protected by legislation from oppression or extortion, on the part of sheriffs, under-sheriffs and jailers.' And the plaintiff is liable for the debtor's boarding and jailer's fees, from the time of the commitment, if such debtor make affidavit that he is unable to support himself, which may be recovered by the sheriff or jailer, in the manner in which debts of like amount are recoverable by law.^ Where the body of the defendant has been taken in execution, this, during the confinement, amounts to a discharge of the debt,* and the plaintiff can never have against him, whilst in jail, any other execu- tion. The plaintiff, by arresting the defendant, relinquishes his lien on the defendant's lands ; and if they be sold under other executions, and afterwards the defendant is discharged under the insolvent laws, the ' For form of application, see Smith's case he is only protected from another Forms 429. arrest at the suit of the same plaintiff. ^ Act 30 March 1833, P. L. 107 ; Ibid.,_ § 32. A discharge under the Purd. 777. state insolvent law, does not entitle a ' Commonwealth v. Sheriff, 6 Penn. defendant in execution at the suit of St. 445. This decision, in connection the United States, to be discharged with the act to abolish imprisonment from such arrest, by virtue of the act for debt, has practically narrowed the of congress in reference to imprison- application of the bread act to but a ment for debt (Rev. Stat. 1 990). very limited number of cases. United States v. Hewes, Crabbe 307. * McKinney v. Crawford, 8 S. & R. « Act 14 February 1729-30, II 14, 351. 15, 18, 19 ; 1 Sm. L. 186; Purd. 775-6. 5 Act 16 June 1836, § 15. An ex- ' Act 16 July 1842, 1 11, P. L. 395; ception, however, is made where the Purd. 777. defendant is not a resident of the county * Sharpen. Speokenagle, 3 S. & R. in which he is imprisoned, in which 465-6. Griswold v. Hill, 2 Paine 492. 830 EXECUTION. plaintiff cannot resort to the land, nor has he a claim to any part of the purchase-money.* § 1427. But the arrest on a ca. sa. is, in itself, no satisfaction of the debt f for if two persons be bound in an obligation, jointly and sever- ally, and sued severally, each may be taken in execution, or one may be taken under a oa. sa., and the property of the other may be levied on by a fi. fa., which could not be, if the debt were satisfied by taking one in execution ; for there can be but one satisfaction for one debt, although one hundred persons are bound for it ; but if one make actual satisfac- tion, by payment of the money, all the rest are discharged.^ There is a difference, therefore, between actual satisfaction, and that kind of legal satisfaction which arises from an arrest under a ca. sa. And a discharge under the insolvent laws, being the act of the law, does not discharge the debtor from the debt, but only from the imprisonment ;* nor does it discharge his surety for stay of execution f nor does such discharge of one of many debtors, taken under a joint capias, afiect the others.^ But if the plaintiff consented to the discharge, the debt itself is gone f and after having discharged one of the defendants, who had been taken under a joint capias, he cannot afterwards retake such defendant, nor take any of the others.^ XV. Of certain peculiar kinds of execution. § 1428. Testatum fieri facias. At common law, when the defendant had uo goods in the bailiwick, and the sheriff returned nulla bona to the fieri facias, the plaintiff might have had a testatum fieri facias into a different county, suggesting that the defendant had goods there ; and a testatum fieri facias might be either for the whole, or, on a return of a partial levy, for the residue.' The preliminary _/i. fa. is very much a matter of form ; hence, it is not error, that a fi. fa., issued in order to found a testatum, was returned " N. E. I." instead of nulla bond}'' And where judgment was entered on the 14th November, a testatum fi. fa., tested on the second return-day of September term, returnable on the last return-day of December term following, and founded on a fi. fa. not actually issued, but only marked on the docket, was held good." But ' Freeman v. Ruston, 4 Dall. 217. ' Sharpe v. Speckenagle, ui siipra. Spencer v. Benedict, 13 Johns. 533. " Clark u. Clement, 6 T. R. 525-6. ^ Sharpe v. Speckenagle, 3 S. & R. ' Tidd 1022. A testatum may issue 464 ; Tilghman, C. J. It is a satisfac- to the county to which the judg- tion, as to the defendant, so long as the ment has been transferred to create a imprisonment continues. Koenig v. lien. Fitch v. Early, 2 W. N. C. 587. Steckel, 58 N. Y. 475. See Tayloe And it is the proper process, where a V. Thomson, 5 Pet. 358. county has been divided, without any ' See AVatson «. Summers, 1 Cr. C. 0. reservation of jurisdiction, and lands 200. Ransom v. Keyes, 9 Cow. 128. upon which the judgment is a lien, * Sharpe v. Speckenagle, 3 S. & R. fall within the new county. King v. 464. Cartee, 1 Penn. St. 147. ' Ibid. i» McCormiok v. Meason, 1 S. & R. » 2 Bao.Abr. 719. Bingham on Exe- 92. cutions 266. " Maybury v. Jones, 4 Yeates 21. TESTATUM WRIT. 831 where a verdict for plaintiff was obtained four days before the term, and by consent of the defendant a testatum issued, tested the first day of the term, and returnable to the next term, it was doubted whether this would be valid as against other execution-creditors.' Where, in the supreme court, the venue was laid in one county, it was held error, to issue a.fi. fa. directly into another county, and such writ was quashed ; the proper course was, to issue a_/i. fa. into the county where the venue was laid, have it returned nulla bona, and then issue a' testatum into the other county.^ 1429. Now, by the act 16th June 1836, § 76, a testatum fieri facias may issue, when the defendant has no real or personal estate in the county where the judgment was obtained, upon the plaintiff's suggestion of that fact, verified by affidavit, without any previous writ.' Where, however, a fi. fa. has issued and been returned nulla bona, it is unnecessary to file a suggestion.^ If the estate of the defendant, in the county to which the testatum fi. fa. first issues, be insufficient, the plaintiff may, in like manner, have an alias or pluries writ into any other county, until the judgment is satisfied.* § 1430. The testatum fi. fa. is directed to the sheriff or coroner of the county where the defendant's property lies, and is returnable to the court from which it issues.^ The officer, immediately on receiving the writ, must deliver it to the prothonotary of the court of common pleas of his county,^ who must forthwith enter it in a docket to be provided for the purpose, and as of the preceding term, stating particularly the amount of the debt or damages and costs indorsed upon the writ, and redeliver it to the officer, to be by him executed.' If the officer refuse or neglect to execute and return the writ, he will be amerced in the court to which it is, returnable, and is liable to an action by the aggrieved party.' Where the sheriff executed the writ, indorsed his return on it, and placed it in the post-office, directed to the prothonotary of the court to which it was returnable, but it was not received, the court ordered a duplicate writ to issue nunc pro tunc}° The court of the county to which the writ is directed has no power to stay the execution ; the process is under the control of the court whence it issues for every purpose." The See Ewing v. McNair, 2 Dall. 269. ^ Ibid., ^9. For this service he is Fulton c. Irwin, Add. 19. It is irrejiu- allowed a fee of one dollar, by act 2 lar to procure a return of nulla bona April 1868, § 3, P. L. 3 ; Purd. 675. to a fi. fa., and immediately issue a tes- But this act does not extend to the tatum to the same return-day. Root u. counties of Beaver, Lancaster, Mont- Oil Creek and Allegheny River Rail- gomery, Philadelphia or Washington; road Co. 31 Leg. Int. 285. in those counties, the act 1 April 1823, 1 Cochran v. Cummins, 4 Teates 136. § 2, allows a fee of fifty cents for such 2 Lesher v. Gehr, 1 Dall. 330. service. 8 Sm. L. 175. » P. L. 775; Purd. 654. For form ' Act 16 June 1836, |82. of sut'i-gestion and affidavit, see Smith's "> Clark v. Field, 1 Miles 244. A Forms 401. second fi. fa. cannot issue, whilst a * Boyer v. Kimber, 2 Miles 393. testatum is outstanding, unreturned. Bowman v. Tagg, 6 W. N. C. 219. Gibbs «. Atkinson, 1 Clark 476. ' Act 16 June 1836, I 77. " Commonwealth v. Smith, 4 Phila. Ibid., ? 76- 419. Ibid., §78. 832 EXECUTION. manner in whicli a sheriff's deed is acknowledged, in the case of a sale under a testatum execution, is explained elsewhere.^ § 1431. The lien of the writ continues for five years from the date of its entry in the docket, as above mentioned, upon the real estate of the defendant within the county, unless the debt or damages and costs be sooner paid.^ The lien of the testatum, execution is an independent one only because the lien of the judgment is limited to lands in the county where it was obtained ; but it is regulated by a separate act, and depends ' on considerations different from those which regulate the lien of judg- ments.' The act only applies where the testatum is issued for the purpose of creating the lien, not where it is merely used as a means of selling the land ; and where the lien is not created by the testatum, it is not affected by the lapse of five years from its entry.* Since the act of 1834,° a testatum fi. fa., on a judgment against administrators, will not bind the decedent's lands in another county, without a previous scire facias against the widow and heirs." The lien of the testatum upon the defendant's goods is not postponed to subsequent executions, by reason of a judicial order in the county where it originated, staying it until a rule taken by defendant should be disposed of, though there was, in the order staying ' the writ, no stipulation that its lien should remain.^ Upon payment being made, the plaintiff is bound to enter satisfaction, in the same manner and under the same penalties as are required in the case of judgments.* § 1432. Execution on a transferred judgment. It has been pro- vided by statute, that a judgment obtained in any court of common pleas, may be transferred to any other court of common pleas, by filing therein a certified copy of the whole record. The mode of transferring judg- ments and the effect thereof has already been explained.' The process of execution issued thereon does not differ in any respect from that in ordinary cases. § 1433. Execution against a tract lying in two counties. When any part of lands, which lie in one or more adjoining tracts, in different counties, is taken in execution under a fieri facias or a kvari facias, issued out of any court in either county, the sheriff must summon an inquest to ascertain whether the part taken in execution can be sold separately from the other part, lying in the adjoining couiity, without prejudice to the whole, or to the interest of the defendant, or of any of his lien-cred- itors, or of any other person interested in the proceeds ; and also to ascer- tain how much and what part of the land in the adjoining county ought to be sold with that part taken in execution, describing it by metes and ' See supra, ? 1287. ' Act 24 February 1834, | 34, P. L. '' Act 16 June 1836, § 80. 79 ; Purd. 426. ' Jameson's Appeal, 6 Penn. St. ' McLaughlin v. MeCumber, 36 280. Penn. St. 14. * "West's Appeal, 5 Watts 87. This ' Batdorff v. Focht, 44 Penn. St. 195. was decided under the act of 1823, » Act 1 April 1823 ; 8 Sm. L. 175 ; which was almost identical with that Purd. 655. of 1836. « See supra, ? 810. LANDS IN TWO COUNTIES. 883 bounds.^ The inquest is not to ascertain whether that part of the tract which lies beyond the sheriff's bailiwick can be sold separately from that within it, without prejudice to the whole, but whether the part taken in execution, situate within the sheriff's bailiwick, can be sold separately.^ The sheriff must duly return the inquisition, with the writ ; and if the inquest find that the part levied on cannot be sold separately from the other part, lying in the adjoining county, or a portion thereof, without prejudice as aforesaid, and the inquisition shall be approved by the court, the plaintiff may have a vend. exp. or a lev. fa.,.&c., to sell the part levied on, and the other part described in the inquisition : the land is to be exposed to sale, sold and conveyed as in other cases, and the pur- chaser will take, hold and enjoy the same, as if it were situated wholly within the county in which the writ issued.^ The approval of the inquisi- tion by the court cures prior irregularities, and the vend. exp. may issue.* To entitle the inquisition to the approval of the court, they require that notice be given to the defendant of the time and place of holding the inquisition, and an affidavit thereof to be filed ; and if the defendant demand it, the inquisition must be held upon the premises.^ In Phila- delphia, the motion to approve the inquisition, caunot be made before the Saturday succeeding the return-day of the writ; when, if it be regular, and no exceptions have been filed, it will be approved.^ § 1434. Upon the return of the inquisition, the plaintiff must file in the office of the prothonotary of such adjoining county, a copy of the docket-entry, and the whole proceeding connected with the writ, which is to be entered on the records of his office, and from the date of such entry, the judgment becomes a lien on the lands in that county; and copies of all subsequent proceedings must, in like manner, be filed and entered in the office of such prothonotary, immediately after the sheriff has returned a sale of the premises ; notice of the sale must be given in each county, in the manner required in ordinary cases of sheriffs' sales.' It is not necessary for the plaintiff to file the docket-entry and proceed- ings in the adjoining county, before suing out the vend, exp., nor will his omission to do so, destroy the jurisdiction of the court ; nor will his omis- sion to enter in the adjoining county a copy of the proceedings subse- quently to the inquisition, vitiate the sale, though it may affect his lien.^ § 1435. If there be liens against the part of the land lying in the adjoining county, existing previously to filing and entering the proceed- ings, the court, after the return of the sale, is to ascertain and determine, in such manner as they may think proper, what proportion of the pro- ceeds is to be applied in satisfaction of such prior liens.' In case one or more liens be claimed to exist against such real estate, the court of 1 Act 13 June 1840, 1 12, P. L. 692 ; ^ Worthington v.. Worthington, 3 Purd. 653. For form of inquisition, Clark 208 see Smith's Forms 401. * Ibid. 2 Worthinaton v. Worthington, 3 ' Act 13 June 1840, § 12. Clark 208 * Elliott v. McGowan 22 Penn. St. » Act 13 June 1840, §12. 198. ♦ Hibbert v. Bovier, 1 Gr. 266. » Act 13 June 1840, ? 12. VOL. I. — 53 834 EXECUTION. common pleas of the county iu which the first sale is made, or, in case a special court shall be necessary, then the president judge of any district adjoining the same, has jurisdiction to decree distribution of the whole of the funds so raised by such sales; provided, that in case of a special court, the judge holding the same; before making a final decree of dis- tribution, shall try all the necessary issues in fact, in the proper county where such issues may be formed.' § 1436. Execution upon restricted judgment. A general judg- ment binds the whole of the defendant's lands within the jurisdiction ; though it may be restricted to particular lands, by agreement of parties, and such agreements will be enforced by the courts, by staying or setting aside executions issued or levied in contravention of them. But a stipu- lation of this kind, in a bond and warrant of attorney, though it restricts the lien of the judgment, does not exempt the other real and personal property of the defendant from liability for the debt ; the lien is but an incident to the judgment, and a restriction of it to certain designated lands does not affect the judgment as a personal security.^ And an uncon- ditional revival of a restricted judgment, during the defendant's lifetime, makes it general ;' but a revival against his administrators will not have this effect ; yet, as a debt of the decedent, it is a lien upon his lands.^ There are, however, judgments which, from their nature, only afiect par- ticular lands of the defendant ; such are judgments in real actions, generally speaking, and in scire facias upon mechanics' liens, municipal claims and mortgages; but a judgment on the bond accompanying a mortgage is general, and execution is not restricted to the mortgaged premises.^ The executions in real actions, and the proceedings in the several species of scire facias, down to the entry of judgment, will be treated in detail, under their appropriate heads, in our second volume. We have here only to explain the practice in executions upon judg- ments obtained in the writs of scire facias just mentioned. § 1437. Levari facias. The writ employed in such cases is the levari facias, which, in the case of mortgages, has been used since the act of 1705 f in mechanics' claims is authorized by the mechanics' lien law;^ and in municipal claims and taxes, in Philadelphia, has grown up in practice, under the various acts since that of 1824,^ and is recognised in the act of 11th March 1846.' This is a common-law writ, and issued, in England, at the suit of a private person, against the goods and chattels ..nd profits of the'lands of the defendant, but not against the lands them^ selves," though the writ says de terris et catallis}^ At the suit of the king, the levari facias was employed, where the land was the debtor, ' Act 13 April 1843, § 9, P. L. 235 ; 9, 12. Purd 654. 6 1 s^ L 59; Purd. 483. Stanton v. White, 32 Penn. St. ' Act 16 June 1836, 3 21, P. L. 700: 358. See supra, § 785. Purd. 1035. Dean's Appeal, 35 Penn. St. 405. » 8 Sm. L. 192 ; Purd. 1088. a^*.^,'' ""y "• Hopper, 43 Penn. " P. L. 115; Purd. 1089. hli' ■ „T r, " Com. Dii^." Execution," C. 1,2, 3. Morris v. MoCouaughy, 1 Yeates " Ibid. Plowd. 441 u. LEVAEI FACIAS. 835 though, even in such case, the debt was levied of the profits only.^ Here, the writ is employed, in the latter case, where the land is the debtor, but under our statutes authorizing the sale of lands in execution, its power is enlarged, and it is used to sell the lands absolutely. It differs from the fieri facias against real estate, in the following particulars : 1. It is used only where the land is the debtor, and the proceeding is in rem. 2. No inquisition or condemnation is necessary, but the land may be sold immediately .2 3. The exemption of $300 in favor of defendants does not apply as against . plaintiffs in levari facias, though such claim may be enforced against the fund, in preference to the liens of judgments and other executions.^ § 1438. The writ commands the sheriff" to cause to be levied of the described property the amount of the judgment, interest and costs. The levari, under the mechanics' lien law, may embrace several judgments at the suit of different plaintiffs against the property.* The levari facias should follow the judgment ; hence, where a mortgage embraces several parcels of land, a levari directing the sale of only one, was held to be erroneous and irregular.' So, a sale under a levari faoias, issued on an amicable confession of judgment, which contains no description of the mortgaged property, is void, and passes no title.^ Where the writ states only the amount of the debt, and interest on the mortgage from the time it was due, instead of interest to the date of the judgment, and interest thereafter on the aggregate, the error is amendable.'^ An omission in the writ, of the command to levy the debt, is a clerical mistake which, like similar ones in other writs of execution, is amendable by the court above, after error brought ; but the defendant in error must pay the costs of the amendment and execution f it is, in general, governed by the same rules as other executions. It cannot be resorted to, on a mort- gage, after a sale of the mortgaged premises has been effected, under a judgment on the accompanying bond.' In general, the sheriff" is governed by the description of the property in the writ; he cannot sell grain growing on the mortgaged premises.^" Where a life-estate is liable for * See Tidd 1042-3. in itself, which would detract from the ^ The act 11 June 1879 provides that value of such security. an inquisition shall be held, whenever * For form of such writ, see act 16 any real estate shall be taken in execu- June 1836, §21, P. L. 700; Purd. tion, under existing laws of the com- 1035. monwealth. Whether it applies to the * Stuckert v. Ellis, 2 Miles 433. It writ of levari faoias, will be a question seems, the proper course is, to direct for the courts. It is a, loosely-drawn the sheriff to sell one only of the pro- statute, and appears not to have re- perties described in the writ ; or, after ceived due consideration by the law- a sale of one, to stay proceedings as to making power. the residue. ' See supra, 1 1018. The ground = Wilson v. McCullough, 19 Penn. seems to be, that the land has been ex- St. 77. See Sanderson v. Phinney, 4 pressly made responsible for the debt, Luz. L. Obs. 26. by the defendant's ovra act, in the case ' Mohn v. Hiester, 6 Watts 53. of a mortgage, by legislative enactment, ^ Peddle «. Hollinshead, 9 S. & R. in the cases of mechanics' liens and mu- 284. nicipal claims, and its owner cannot be ° McCall v. Lenox, 9 S. (fe R. 304-5. allowed to set up a claim, though legal " Myers v. White, 1 Rawle 353. 836 EXECUTION. the debt, as sometimes occurs in proceedings on mechanics' liens, the act 14th October 1840, relating to the sequestration of life-estates, applies.' § 1439. The 4th section of the act of 1705, applied to executions gen- erally, but now obsolete, except as to levari facias upon a mortgage, requires the sheriff, before the sale, to "cause so many writings to be made upon parchment or good paper, as the debtor or defendant shall reasonably desire or request, or so many, without such request, as may be sufficient to signify and give notice of such sales or vendues, and of the dav and hour when, and of the place where, the same will be, and what lands or tenements are to be sold, and where they lie, which notice shall be given to the defendant ; and the said parchments or papers shall be fixed by the sheriff or other officer in the most public places of the county or city, at least ten days before the sale."^ It has been decided, that the ten days' notice to which the defendant is entitled under this act, need not be a written or printed one.' The notice is, in practice, seldom, in fact, given to the defendant, but an advertisement is usually posted by the sheriff on the premises advertised for sale. It is not neces- sary that the notice should appear upon the return to the levari facias; and on the trial of an ejectment, the fact of notice is not necessary to be proved by the party insisting on the validity of the sale, unless evidence be given to raise a presumption that such notice has not been given ; in such cases, it is presumed that the sheriff has performed his duty, unless the contrary appear.* In writs of levari facias upon municipal claims, the sheriff's handbills and advertisements must contain, at the foot, a memorandum, setting forth the name of the party plaintiff, and the nature and character of the claim ; in default of this, the sale may be set aside by the court f such sales, for taxes, in Philadelphia, can take place only on the first Mondays of April, July, October and January.* In other respects, the general rules relating to notices and advertisements of sheriffs' sales apply to sales under a levari facias. § 1440. Where a mortgagor has sold part of the mortgaged premises, the mortgagee, upon suing out the mortgage, is bound to proceed first against that part of the land remaining in the mortgagor's bands, and will not be permitted to come upon the portion sold, until he has exhausted the portion so remaining ; and where the mortgagor has sold the whole, in parts, at different periods, the mortgagee must come first upon the part last sold, and so on, in an order inverse to the order in which they were soldf especially, where there was an agreement to that effect with the first purchaser.* And the court will direct the sheriff so to sell, and in such order, as will produce most, and so pro- tect the terre-tenant's rights and equities.' So, where there are several distinct tracts or parcels covered by the mortgage, the sheriff has no > Pentland v. Kelly, 6 "W. & S. 483. Purd. 1089. See infra, § 1454-6. * Act 31 January 1862, P. L. 9. * 1 Sm. L. 59 ; Purd. 484 n. ' See s^ipra, ? 1014. ' Passmore v. Gordon, 1 Bro. 320. " Winberg v. Reiff, 4 Penn. St. * Topper V. Taylor, 6 S. & R. 173. 88 n. ' Act n March 1846, § 5, P. L. 115 ; ' Mevey's Appeal, 4 Penn. St 80. LEVARI FACIAS. 837 right to sell more than is necessary to extinguish the liens, and if he do, the sale will be set aside as to all the tracts sold after the parchase- money was sufficient.' Although the act is not clearly expressed, it has been the invariable usage, for the sheriff to sell to the mortgagee, as well as to a stranger, provided he be the highest bidder, no matter whether for a sum less than the debt and costs, and to make a deed to him, sanctioned by an acknowledgment in open court.^ § 1441. Though by the 6th section of the act of 1705, in case of a want of buyers, the land is directed to be delivered to the plaintiff, yet the practice has been, to take an alias levari facias and not a liherari} The writ of liberari facias does no't appear to have been resorted to very frequently under this section; probably, because on an alias levari facias the party could usually effect a sale to others, or become the purchaser himself; thus avoiding the expense, trouble and loss of time attending an inquest upon the other process. Where, however, it is executed by actual delivery of the land, it is a satisfaction of the debt.^ If the pro- perty can be sold under the levari, the sheriff proceeds as upon other executions. If the sheriff do not receive the money under an effectual sale, there is nothing to prevent the plaintiff from going on to complete his execution; if the sheriff return "struck off for a certain sum, and that he cannot make title, therefore remains unsold," the plaintiff may issue a new execution ; so, if he return the premises unsold.^ The rules as to the sheriff's deed and its acknowledgment, are the same as in other executions. § 1442. Purcliaser's title. In a levari on a mortgage, the purchaser takes only the estate for which the land was mortgaged, as appears by the mortgage or defeasible deed f but a subsequent reversal of the judg- ment for error, does not affect the title of the purchaser at a sheriff's sale under such a judgment.'' A terre-tenant, hnving no notice of the pro- ceedings in the scire facias, may set up against the purchaser under the levari, any defence which he might have made to the scire facias? In a sale under a judgment upon a municipal claim, &c., or for taxes, in Philadelphia, the purchaser takes a defeasible title,. subject to redemption by. the owner, at any time within two years from the acknowledgment of the sheriff's deed, upon payment of all costs and charges, and twenty per cent, upon the amount bid for the property.' The person entitled to redeem may enforce his right by petition to the court from which the process issued, setting forth the facts and his readiness to pay the redemp- tion-money ; upon which the court will grant a rule 'on the purchaser ' Richards v. Brittin, 3 Clark 207. Landell, 31 Penn. St. .120. If there be ' Blythe ». Richards, 10 S. &R. 261. a reservation in the mortgage, the ' Topper V. Taylor, 6 S. & R. 173. purchaser takes subject to it. Sheaff's Peddle v. Hollinshead, 9 Ibid. 277. Appeal, 55 Ibid. 403. * Barnett v. Washebaugh, 16 S. & R. ^ Act of 1705, § 9. 4j^0. * Mevey's Appeal, 4 Penn. St. 80. * Peddle v. Hollinshead, ut supra. " Act 13 May 1856, § 11, P. L. 569 ; 6 Act of 1705, I 8 ; 1 Sm. L. 60 ; Purd. 1090. Hess v. Potts, 32 Penn, Purd. 484. But his title relates back to St. 407. Gault's Appeal, 33 Ibid. 94. the date of the mortgage. De Haven v. Philadelphia v. Lukens, 3 Phila. 333. 838 EXECUTION. to show cause why he should not reconvey ; such rule is to be served like a summons in partition ; and if the petitioner establish his right to redeem, the court will make the rule absolute and enforce it by attach- ment.' In scire facias on a mortgage, if there were no judgment on which a writ of levari could issue, the purchaser takes no title.^ Where, to a sd. fa. and alias soi. fa., there were returns of nihil as to the mortgagor, and an appearance by the terre-tenanU, whose attorney afterwards agreed in writing to withdraw his plea and confess judgment, on which the plain- tiflf's attorney indorsed an order to enter this judgment and issue a levari; whereupon the prothonotary, who was empowered by the rules of court to enter judgment by default on writs of sei. fa., entered on his docket "judgment;" it was held, that the judgment thus entered was against the mortgagor by default on two nihils, and against the terre-tenanU by confession, and that a levari might issue thereon.^ § 1443. Distribution of proceeds. In the case of mortgages, the sheriff is required by the act of 1705, to pay the plaintiff the proceeds ;* and if there be any surplus, to pay that to the defendant, and until he has so done, he is not to be discharged.' If, however, there are liens posterior to the mortgage, he cannot safely do this, but should pay the surplus into court, to be distributed, as in other executions. In the case of mechanics' liens, all the valid liens are of equal rank, and come in upon the fund pro rata, without regard to priority.^ Of course, incum- brances which are prior to this class of claims are to be first paid, accord- ing to the general rules of distribution. In the case of a sale, in Philadelphia, for municipal claims or taxes, the lien of a mortgage prior to the registry of the claim on which the sale was made, is not divested thereby ;^ so, the estate in a ground-rent is not divested by the sale of the land, out of which such rent issues, for taxes, municipal claims, &c., in Philadelphia.^ Estates and liens not divested by a sheriff's sale have, of course, no claim against the fund ; as to those which are divested, the general rules of distribution apply. § 1444. Contribution between joint defendants. Where the real estate of several persons is subject to a joint incumbrance, to which they are bound to contribute, a special remedy is provided by the act of 1856, which has been already discussed.' § 1445. Discovery in aid of execution. Under the act of 1836, the defendant, and all persons holding his effects, may be compelled to disclose the requisite information relating thereto, by a bill of discovery or interrogatories, to be framed according to the rules and practice in courts of equity. The courts of common pleas are provided with adequate power for these purposes ; to guard against the absconding or ' Act 13 May 1856, J 11, P. L. 569; ' Act of 1705, ? 7. Purd. 1090. 6 Act 16 June 1836, ? 22, P. L. 701 ; "■ Wilson V. MoCuUough, 19 Penu. Purd. 1036. St. 77. I Act 23 January 1849, 1 4, P. L. « Cooper V. Borrall, 10 Penn. St. 686 ; Purd. 479. 491. Mbid., «5. * 1 Sm. L. 59 ; Purd. 483. » See svrpra, § 63. DISCOVERY. 839 departure of any of the parties in the bill, they are empowered to direct a clause of capias in the soire facias against them, under the rules relat- ing to garnishees in foreign attachment,' and they are authorized to regulate the payment of costs, at their discretion, according to the rules in equity. The court of common pleas of the county where the judg- ment may be, has exclusive jurisdiction under the act ; but if the person of whom discovery may be sought, reside without the county, the bill may be filed in the common pleas of the county where he resides.^ § 1446. A bill of discovery lies to discover debts due to the defendant in the judgment,^ as well as his real and personal estate.* Though it is not the practice to compel a discovery of the defendant's personal estate, until eifi.fa. has issued, and been returned nulla bona, yet, discovery will be compelled of real estate, without such previous execution, and a plaintiff is entitled to the bill of discovery, notwithstanding he has levied on goods alleged to belong to the defendant, if the sheriif were prevented from proceeding by an allegation that the property had been transferred to another.' For the discovery of real estate, a bill will be sustained, in all cases where the knowledge of such real estate is con- tained in the mind alone of the defendant, as where it is held in trust for him, either through conveyance in which he is named as cestui que trust, or where the trust is entirely secret and concealed ; but where the defendant's property, and every interest belonging to him, is spread out in the public records, so that all necessary information can be obtained there, by search made by the complainant, the court will not compel the defendant to exhibit the same in his answers.* It is said, that a bill of discovery lies, in all cases to which an attachment-execution is applica- ble f and discovery may be compelled against a corporation.* In gen- eral, a court of equity will intervene, in aid of a judgment-creditor, only when the remedy afforded him at law is ineffectual to reach the property of the debtor, or the enforcement of the legal remedy is obstructed by some incumbrance upon the debtor's property, or some fraudulent trans- fer of it ; it is indispensable, that the party seeking relief should show that he has attempted iu vain to enforce his remedy at law;' but under our statutory proceeding this does not seem to be requisite. § 1447. The bill may be filed against the defendant in the judgment, and against any person having possession of his real or personal estate, or who may owe or be accountable for the same, or may have knowledge thereof It must set forth: — 1. The recovery of a judgment, and the amount actually due thereon : 2. That there is reason to believe that the defendant in such judgment has real or personal estate, where- 1 See infra, 1 1450. ' French v. Breidelman, 2 Gr. 319 ; ■' Act 16 June 1836, 1 10, P. L. 763 ; Lowrie, J. Purd. 594. ■ ' Large v. Bristol Steam Tow-boat ' Bevans v. Dingman's Choice Turn- Co., 2 Ash. 394. Bevans v. Dingman's pike, lOPenn. St. 174. Choice Turnpike, 10 Penn. St. 174. * Act 1 6 June 1836, | 9. See infm, § 1464. ' Large v. Bristol Steam Tow-boat ° Jones r. Green, 1 Wall. 330. Co., 2 Ash. 394. '» Act 16 June 1836, ', 10. « Rose V. Lloyd, 1 Clark 333. 840 EXECUTION. with the same may be satisfied : 3. That such real estate has been con- veyed, transferred or incumbered, or that such personal estate has been removed, transferred or concealed, or, that by reason of concealment, or fraudulent transfer, or incumbrance thereof, the complainant is pre- vented from having execution of his judgment: 4. If such bill be filed against any other than the defendant in the judgment, it must set forth also, that such person has possession or knowledge of such real or per- sonal estate, or that he can make discovery of such facts as will enable the plaintiff to have satisfaction of his judgment.' The bill must be accompanied by an affidavit, made by the complainant himself, or his agent or attorney, or any disinterested person in his behalf, that he verily believes the facts set forth therein to be true.^ And the com- plainant may, either in the bill or by interrogatories to be filed therewith, propound to the defendant such questions touching the subject-matter thereof, as may be necessary and proper for the purposes thereof, and as may be according to the rules and practice of courts of equity.-'' It is well also to add a prayer for a writ of scire fadas, to compel the defend- ants to appear and answer the interrogatories.* § 1448. Upon the filing of the bill, the court, or any judge thereof, in vacation, may award a writ of scire fadas to the sherifi", requiring him to make known to the defendants therein named, that they be and appear, at a certain time to be appointed by the court, to answer the bill and all such interrogatories as shall be propounded to them, or show cause why they should not, and abide the judgment of the court in the premises.* No defendant can be compelled to answer, at the return of the scire fadas, unless a copy of the bill and interrogatories has been served upon him at least ten days prior to the return f but he is not excused from answering, by the fact that ten days did not intervene between the ser- vice and return of the scire fadas, though he is not bound to answer until ten days after a service of a copy of the bill and interrogatories ; the objection that sufficient time did not intervene, cannot be taken by demurrer to the bill ; the proper course is, to move to quash the process for irregularity.^ Leaving a copy of the bill and interroga- tories at the dwelling-house of the defendant, in the presence of one or more of the adult members of his family, is a good service.* From the ' Act 16 June 1836, ? 11. admission or denial by implication is ^ Ibid., §12. The oath may be made not sufficient. Benkert u. Benkert, 35 by the agent, attorney, or any disin- Leg. Int. 16. terested person, on behalf of the com- * Precedents for a bill of discovery plainant. Act 24 April 1844, P. L. are given in Bright. Eq. 678, and 512; Purd. 595. Smith's Forms 35l', 353; but in using ' Act 16 June 1836, ^13. If the these forms, the practitioner must be answer raise a defence, by confession carefvil to adapt them to the new rules and avoidance, which introduces a new of Equity practice. issue, the defendant will not be com- ^ 'Act 16 June 1836, § 14. For form pelled to answer interrogatories im- of scire facias, see Smith's Forms 356. material to the issue thus raised; but * Ibid., J 15. he must fully answer interrogatories, ' Lai-ge v. Bristol Steam Tow-boat which go to the substance of the plain- Co., 2 Ash. 394. tiff's case, under the issue raised ; an ^ Gouldey r. Gillespie, 3 Clark 125. DISCOVERY. 841 time of the service of the scire facias upon a stranger to the judgment, the personal property of the defendant, in the hands of such person, is bound, and becomes liable to be taken in execution, at the instance of the plaintiff, in like manner as goods or effects in the hands of the gar- nishee in foreign attachment ; and if such person, after service of the scire facias, transfer such personal property to any other person, he becomes liable to pay the value thereof to the complainant, out of his own proper goods and chattels.' The remedy thus provided is an exclusive one, and if the goods have been fraudulently transferred, they are liable to seizure by any creditor of the debtor, the complainant included ; they are not protected, by the service of the scire facias, from seizure in execution under a subsequent f,. fa? § 1449. The proceedings in the scire facias are substantially the same as those in a scire facias in foreign attachment ; and, therefore, where the defendant and garnishee have waived their privilege of trial by jury, by omitting to plead to the scire facias, and have submitted their case upon their answers to the interrogatories, the court may render a joint judg- ment against them both, for the amount of the plaintiff's debt.^ In pro- ceedings by warrant of arrest, and perhaps the same rule applies to a bill of discovery in aid of execution, no person is excused from answering in relation to such fraudulent concealment of the property of the defendant in a judgment, as is within the prohibition of that act, but the answer cannot be used in evidence, in any other suit or prosecution.^ The costs of the proceedings are within the discretion of the court in which the bill is filed, which has power to direct payment of such costs by either of the parties to the bill, according to the rules of equity and justice.' § 1450. After judgment for the plaintiff, upon the bill of discovery, the court may award execution against the effects, provided the original judgment was in the court where the proceedings for discovery are had. But the court cannot award execution against the effects, after discovery has been there compelled, upon the prayer of a plaintiff haying a judg- ment in another court; their power to issue execution is confined to judgments rendered by their own court ; in such case, resort must be had to the court in which the judgment remains.' It was, at one time, held, that their power to issue execution against personal pro- perty, after discovery on a scire facias, did not extend to the case of a judgment on a transcript from an alderman filed in the common pleas f but the law now seems to be, that a transcript is a judgment which can be used for the purpose of equitable as well as of other executions.^ The court or judge, at the time of awarding the scire facias, may order that a clause of capias be inserted in such writ against the defendants, or any 1 Act 16 June 1836, § 17. ^ Act 16 June 1836, |18. 2 Bennett's Appeal, 22 Penn. St.' « Piatt ». Bridges, Com. Pleas, Phila., 476. 1837. iMS. ' Shaffer v. Watkins, 7 W. & S. 219. ' Perot v. Spicer, Com. Pleas, Phila., * Act 12 July 1842, J|20, 22, P. L. 1837. MS. 344 : re-enacted by the criminal code of ' Hitchcock v. Long, 2 W. & S. 169. 1860, ? 130, P. L. 413 ; Purd. 53, 351. See supra, 1 960. 842 EXECUTION. one or more of them, under the lules and regulations provided in case of a garnishee in a foreign attachment.^ The object of this clause ot capias is to guard against the absconding or departure of any of the parties in the bill, and the consequence of its insertion is, to cause the defendant to be arrested, and compel him to give bail for his appearance. The clause of capias is no longer used in actions of foreign attachment, since the passage of the " act to abolish imprisonment for debt ;" and if still in force in the proceeding now under consideration, it must be confined to cases in which the defendant is liable to arrest under that act. § 1451. The act of 11th June 1879, passed whilst this work was going through the press, in providing for an oral examination of the defendant, or other person having knowledge of the fa;cts, has almost superseded the proceeding by bill of discovery in aid of execution. It provides that where an execution upon a final judgment shall be returned nulla bona, the judgment-creditor, on filing an affidavit, that he has reason to believe that the judgment-debtor has property, rights in action, stocks, moneys, or evidences of debt, which he fraudulently conceals, and refuses to apply to the payment of his debts, may call and examine the debtor, or other person having knowledge, under oath, for the purpose of disclosure of any such property or rights of action of which such debtor may be possessed or in any manner interested, out of which the plaintifi''s judg- ment may be, in whole or in part, satisfied. Such examination is to be had before a commissioner appointed by the courts, and to be reduced to writing, and filed of record in the case; and the attendance of the debtor, or other witness, and the production, on such examination, of such books and papers as shall be necessary, may be enforced by suhpcena and attachment, as in other cases. The cost of such examination is to be paid by the execution-creditor, except where property is discovered. Though this statute provides that the creditor may call and examine the debtor, or other person having knowledge, it would seem, that he ought to obtain an order of court for that purpose, on special motion ; this appears to a necessary prerequisite to the obtaining of jurisdiction of the case, by the particular commissioner to whom it is referred.^ § 1452. Execution against life-estate. After levying on a life- estate, or a reversion or remainder dependent upon a life-estate, the sherifi" could formerly have proceeded and sold without an inquest, for the estate being of uncertain duration, it was deemed doubtful, whether the former would last seven 'years, or the latter come into possession within that period, and the only use of an inquisition was to ascertain whether the profits of the land would discharge the judgment in that time;' and an inquest on an estate for life was considered irregular, and was quashed.* This is still the mode of proceeding against life-. ' Act 16 June 1836, § 16. ' Humphreys v. Humphreys, 2 Ball. ^ This act was evidently drafted by 223 ; s. c. 1 Yeates 427. Burd v. a lawyer ; he would have done well, in Dansdale, 2 Binn. 91. Stewart v. the first place, to have studied Coode Kenower, 7 W. & S. 288. on Legislative Expression, published . * Howell v. Woolfort, 2 Ball. 75. In the Appendix to Purd. Dig. 1489. AGAINST LIFE-ESTATE. 843 estates in unimproved lands, not yielding rents, issues and profits, as woodlands, or a vacant lot in a town.^ And even life-estates in lands yielding rents, issues and profits may now be sold in the manner pro- vided by law in the case of estates of inheritance, unless some lien- creditor, on or before the return-day of the first writ of venditioni exponas, on which a sale is advertised, shall have procured a sequestrator to be appointed.^ The proceeding, when a sequestrator is appointed, will be explained presently, after some peculiarities in the sale of life-estates under venditioni exponas have been noticed. Though a life-estate may now, since the act of 24th January 1849, be sold in execution, it cannot be sold under &fi.fa.; the sale must be in the manner provided by law in the case of estates of inheritance, and it can only be made under a venditioni exponas.^ And where the life-estate is merged in the fee, both can be sold on a judgment obtained after the merger, though, in the dis- tribution, the court will discriminate between claims against the life- estate and those against the fee, by permitting the estimated value of the life-estate to be appropriated to the claim upon it.* § 1453. If the defendant, his agent or attorney, or the occupant of the land, make request and give notice to the plaintiff, his agent or attor- ney, at least three days before the holding of the inquisition, the sheriff must, if the life-estate be condemned, cause the inquest to appraise the yearly value of the lands, and return the same as part of the inquisition and condemnation ; and the defendant, his agent or attorney, or the occupant of the land, has thirty days to elect, by notice in writing, to the sheriff or coroner, to pay the plaintiff the annual value, in half- yearly instalments ; if the defendant, &c., fail to elect, or if he elect and fail to pay for thirty days after any half-yearly payment becomes due, the plitintiff may proceed as in cases of estates of inheritance extended on a sheriff's inquest f that is, he must first file an afiidavit in the prothonotary's office of the non-payment of the semi-annual rental, and then may issue a venditioni exponas to sell the estate as if it had been condemned by inquisition.^ In case the annual rent found by the inquest be sufficient to pay the interest on the debts entered of record, the plaintiff cannot have a venditioni exponas to sell the life-estate.'' The venditioni for the sale of a life-estate can only issue by order of the pro- per court, and after ten days' notice of the application for the writ being ' See Duncan v. Kobeson, 2 Yeafces estate, and that the provisions of the 455. statute have not been complied with. ^ Act 24 January 1849, ?3, P. L. De Frehn u. Leitenberger, 2 Leg. Chrou. 876 ; Purd. 652. 365. A widow's estate in her deceased ' Commonwealth v. Allen, 30 Penn. husband's lands, is not such a life- St. 49 ; Strong, J. estate as is contemplated by the * Deunison's Appeal, 1 Penn. St. statute. Seipt v. Stein, 3 Ibid. 145, 201. 149. 5 Act 24 January 1849, §4, P- L. « Act 13 October 1840, §3, P. L. 2; 676 ; Purd. 652. In order to set aside Purd. 649. See supra, 1 1240. And a sheriff's sale of a defendant's right, for form of notices to the sheriff and title and interest in lands, he must to the plaintiff, see Smith's Forms 400. show that he has an undoubted life- ' Act 24 January 1849, |4. 844 EXECUTION. given to the tenant for life;* and a sale of a life-estate under a vendi- tioni, issued without such order and notice, is void, and confers no title on the purchaser.^ § 1454. Sequestration. The provisions just recited for the sale of a life-estate in improved lands, are only effectual where there has been no application made in due time for the appointment of a sequestrator.' But where the parties interested permit proceedings repugnant to the privilege of sequestration to be taken, they will be deemed to have waived it.* And a sequestration is unnecessary, where there is an adverse possession in hostility to the defendant's life-estate; or where the defendant claims to hold in fee; or the creditor has reasonable ground to believe that the debtor owns the fee; in all these cases, the defendant's interest in the land may be sold in execution.^ So, a seques- trator will not be appointed, where the life-estate has been converted into money.' A levari faeias upon a judgment on a mechanic's lien, is an execution upon which a sequestrator may be appointed.^ Where a life- estate in improved lands has been taken in execution, the court, upon the application of a lien-creditor, must award a writ to sequester the rents, issues and profits of such estate, and appoint a sequestrator to carry the same into effect.' It has been said, that the application may be made at any time before the sale;' but since the act of 24th January 1849, it would seem, that it must be made before the return-day of the first writ of venditioni exponas on which a sale is advertised.'" The act makes the appointment of the sequestrator imperative upon the court, upon the application being made ; and makes no distinction as to the kind of creditor who may apply." § 1455. The sequestrator has power, under the direction of the court, to rent or sell the lands, for a term during the life of the tenant, which will be sufficient to satisfy all liens against them, together with all charges for taxes, repairs and expenses, during such term, and must apply the proceeds, under the direction of the court, to the payment of the liens in the order of their priority.'^ In estimating the value of the life-estate, the rule adopted in England, and in this state, is, in general, to put it at one-third the price or value of the fee-simple estate, including the life-estate.'^ The court may, when they think necessary, require a ^ Act 24 January 1849, §4. Kintz see Smith's Forms 39S. V. Long, 30 Penn. St. 501. Snyder v. '^ Act 13 October 1840, §7- Chnst, 39 Ibid, 499. " Dennison's Appeal, 1 Penn. St. ' Kintz V. Long, ut supra. 201. The Carlisle Tables are not Act 24 January 1849, § 3. authoritative, in a judicial investifiation Gordon v. Inghram, 32 Penn. St. of the value of a life-interest; in such s t^'a^' ^ ^^' ^''^' investigation, each case must depend ^^^- on its own circumstances. Shippen's I'ancaster County Bank u. Stauffer, Appeal, 80 Penn. St. 391. They are ,^°°' • competent evidence, in connection with ' Pentland v. Kelly, 6 W. & S. 484. proof as to the health, constitution and Act 13 October 1840, § 6, P. L. 3 ; habits of the party. Schell v. Plumb, P"''