shall be and they are hereby declared to be a lien thereon, *** and that the said lien shall have priority to, and shall be fully paid and satisfied before any recognizance, mortgage, judgment, debt, obligation or responsibility, which the said real estate may become charged with, or liable to, from and after the passing of this act." The proceeding under this act is in rem and the whole estate in the land is charged: Salser v. Reed, 3 Harris, 260. The reason for it is that the improvements are for the benefit of the property. The 16th section of the Act of 6th January, 1874, P. L., 1135, under which Bates alley was graded and paved, provides that the term "owner" as used in said act shall be construed to mean all individuals having any title or interest in the properties assessed. It was held in Perry v. Brinton, 1 Harris, 202, that a sale on a municipal lien did not divest the lien of a prior mortgage. That, however, was because mortgages in the city of Philadelphia were protected by an Act of Assembly. It has never been held that charges upon or estates in land created by the owner thereof can avail as against the taxing power of the Commonwealth. Municipal liens for grading and paving streets are a species of taxation and come within the rule. Such liens bind the entire estate in the land except where an Act of Assembly directs otherwise. If it were not so, the owner of real estate could wholly defeat the taxing power by charging it with the payment of a sum of money equal to its full value.

The appellant is a purchaser for value, and before his title can be affected by the fraud of the Bostwicks it must appear that he either was a party to the fraud or had knowledge of it. There is no pretense that he was a party or had actual knowledge of any fraud. But the learned | judge held that he had constructive notice as it appeared of record in his line of title. This was error. The appellant's title was acquired through a judicial sale upon a valid lien. It is true the charge in favor of Frederick Bentz appeared in the line of title, but the fraud by which the Bostwicks procured the sale did not appear. The fact that they resided upon the premises had no especial significance. If sufficient to put appellant upon inquiry he can only be charged with what he would probably have ascertained if he had made such inquiry. It is too much to assume that either Bostwick or his wife would have informed him of the fraud. He would only have learned what the record discloses, that the property had been sold at a judicial sale upon an adverse proceeding. Nothing appeared upon record to indicate that Bostwicks were practically both vendors and vendees. The tendency of judicial decision is to protect good faith purchasers at judicial sales, and where participation in or knowledge of actual fraud is not alleged, we are not disposed to extend the doctrine of constructive notice to unreasonable lengths. Where the record discloses such facts as fairly put a purchaser upon inquiry, the rule is to hold him to notice of what such inquiry would reasonably have developed. To extend it further is not warranted by the authorities and might work serious wrong in many instances.

The decree is reversed and the petition dismissed at the costs of the appellee.

PLUNKETT v. SAUER.

"Up to this point we are in harmony with the rulings of the court below. The learned judge held, however, that the appellant was affected with notice of the alleged fraud of Mary E. Bostwick and her husband. It is found by the court, and for the purposes of this case we assume the fact to be, that they procured the sheriff's sale of the premises for the purpose of getting it back discharged from the provision in Mrs. Carter's will in favor of Frederick Bentz.

1869 (Fraudulent Debtors'), against B. to recover a debt of $580, and filed his bond for $1,160 with C. as surety, conditioned that if he should fail to recover judgment he would pay all legal costs and damages incurred by B. Subsequently the attachment was dissolved and A. then brought an action of assumpsit on his claim against B. At the trial the latter offered the bond in evidence to be followed by proof that he had sustained damage by reason of the closing of his place of business by the sheriff in the attachment proceedings, which offer was rejected. Held, to have been error; that his set-off arose ex contractu (on the bond) and not ex delicto, and should have been admitted. Damages arising ex contractu and capable of liquidation by proof may be set off under our Defalcation Act. Error to the Court of Common Pleas, No. 2, of Allegheny county.

On March 12, 1879, Francis T. Plunkett, the

plaintiff in error, defendant below, was engaged in the manufacture of glass in the Twentyeighth ward, city of Pittsburgh, and had on hand a large stock of goods in the way of lamp chimneys, etc. He was indebted at the time to Christian Sauer in the sum of $580. On that day Christian Sauer caused an attachment to be issued against F. T. Plunkett under the Act of 17th of March, 1869 (Fraudulent Debtors' Act), and filed a bond with Domenick Ihmsen as surety in the sum of $1,160, conditioned that if he should fail to prosecute his attachment with effect against said Plunkett, then he or his surety should pay to the said Plunkett all legal costs and damages which he, the said Plunkett, might sustain by reason of said attachment.

After the court had heard the evidence of the parties, plaintiff and defendant, in the attachment proceedings, on the 9th day of April, 1879, the attachment was dissolved. In the meantime, from the 12th of March, 1879, the factory of Plunkett was entirely closed, and his stock of goods in the custody of the sheriff, by virtue of the attachment. After the dissolution of the attachment the defendant in error, Christian Sauer, brought this action in assumpsit in the court below, for the identical debt upon which the attachment had been issued. Plunkett ad- | mitted that he had been indebted to Sauer in the sum sought to be recovered, but that, by reason of the attachment issued by Sauer against him, he was damaged, his factory being closed for the space of nearly one month, his goods in the custody of the sheriff, the market price depreciating during that time to a sum far in excess of any claim Sauer had against him.

On the trial of the case Plunkett offered the bond of Sauer, filed in the attachment proceedings against him, to be followed by proof of the damage, by way of set-off against the claim of said Christian Sauer. The offer was overruled by the court, the jury instructed to return a verdict for the plaintiff.

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any damages that he, defendant, might sustain by reason of plaintiff below closing his premises, was by virtue of this bond. He must look to the bond. It was a contract wherein plaintiff below agreed with defendant below that if he, plaintiff, should fail to prosecute his action with effect and recover judgment against defendant, he should pay to defendant all legal costs and damages which defendant might sustain by reason of said attachment.

Contra, J. J. Mitchel, Esq.

Opinion by GREEN, J. Filed November 20, 1882. We think the learned court below was in error in rejecting the defendant's offer of proof. In the proceeding by attachment the plaintiff was obliged to, and did give a bond conditioned for the payment to the defendant of all legal costs and damages which he might sustain by reason of the attachment, if the plaintiff failed to prosecute the attachment with effect. After the giving of the bond in the attachment proceeding, the seizure of the defendant's goods was not a tort, but a perfectly lawful act. If any damages resulted therefrom to the defendant, the plaintiff was bound by his contract, to wit, the bond, to pay the amount thereof to the defendant. The defendant in order to recover these damages would necessarily be obliged to bring an action on the bond for that purpose, if the plaintiff refused to pay them voluntary. This being so, it is perfectly clear that his right of action against the plaintiff is not for damages for a trespass, but damages for breach of the condition of the bond. This right is ex contractu and not ex delicto. While it is true, the damages are unliquidated, they are capable of liquidation by proof, and therefore the right to set them off in this action comes clearly within the adjudicated cases. The whole subject of the right of set-off in such cases was exhaustively reviewed by the present Chief Justice in the case of Hunt v. Gilmore, 9 P. F. Smith, 450, in

The judgment is reversed and a venire de novo awarded.

a part of plaintiff's claim and permitted the plaintiff to go to trial for the residue. This was certainly a liberal construction of the rule of court and leaves us in some doubt whether there is a final judgment below to which a writ of error would lie. As the case must go back we have concluded to decide the main question.

The judgment is reversed and a procedendo awarded.

THE COMMONWEALTH OF PENNSYLVANIA, for the use of ROBERT MCCLURE, v. FREDERICK GEDIKOH.

The Act of 3d April, 1872, Purd., 951, in relation to the sale of liquors in Allegheny county, repealed all acts in force in said county.

Error to the Court of Common Pleas, No. 1, of Allegheny county.

This was an action before a justice for the recovery of the penalty prescribed by Act of 26th February, 1855, for the sale of liquors on Sunday. The justice gave judgment in favor of the plaintiff, which on certiorari was reversed by the Court of Common Pleas, No. 1, and this writ was taken.

For plaintiff in error, A. M. Watson, Esq.
Contra, J. D. Ramsey, Esq.

Opinion by GORDON, J. Filed November 20, 1882. "All laws and parts of laws now in force relative to the sale of vinous, spirituos, malt or brewed liquors, or any admixtures thereof, in the county of Allegheny or any part thereof, be and the same are hereby repealed:" Act 3d April, 1872, Sec. 1, Br. Purd., 951.

The language above recited is so general and all embracing in its character that a misconception of the legislative intent is impossible. It repeals not only all laws but all parts of laws then in force, relative to the sale of intoxicating liquors, in the county of Allegheny. It thus, so far as this county was concerned, swept away the Act of 1855 and every part of it. It is very true that the later act does not supply the second section of the former, but this omission may be accounted for under the supposition that the Legislature regarded the making of the offense of selling liquors on Sunday a misdemeanor, punishable by fine and imprisonment, as all sufficient for its suppression. At all events this shows that in framing the Act of 1872, that part of the Act of 1855 was not overlooked. It is, however, not necessary to attempt to account for either the omissions or commissions of the Act of 1872, since at the very head of it stands the repealing clause which we have cited, and that leaves no law, general or special, respecting the sale of intoxicating liquors, of force in the

county of Allegheny, saving and excepting only those special laws for which the act itself provides. It follows that there is no prohibition of, nor penalty against, the sale of such liquors, whether on Sunday or any other day, except that found in the Act of 1872. Judgment affirmed.

SMITHS v. McGINTY.

The Act of Assembly of May 8, 1876, P. L., 139, Purd., 2016, authorizing attachment of wages for boarding, does not deprive the debtor of the benefit of the $300 Exemption Act of April 9, 1849.

The provision in the Attachment Act, that the " wages attached shall not be paid to the defendant until the judgment had against him shall be satisfied," applies only where the benefit of the Exemption Act is not claimed in proper time, or where the wages attached exceed $300.

The Attachment Act may have intended to repeal the Exemption Act pro tanto, but the intent is not sufficiently evinced in the act.

Error to the Court of Common Pleas, No. 2, of Allegheny county.

Plaintiffs in error, the Smiths, for a three weeks' board bill, by complaint and statement on oath before Alderman T. Brucker, attached the wages of McGinty ($20) as authorized by Act of Assembly of May 8, 1876, P. L., 139. Defendant claimed the benefit of the $300 Exemption Act of April 9, 1849, and thereupon asked that the lien of the attachment be dissolved.

The alderman conceiving that such claim was excluded by the clause in the Attachment Act, that the wages attached "shall not be paid to the defendant until the judgment so had for such amount as may be due upon such attachment shall be satisfied," rejected it, and on the proofs gave judgment for plaintiffs against defendant and garnishee. Thereupon defendant sued out certiorari.

The case was argued in Common Pleas before a full Bench, January, 1882, by Jas. F. Gildea, Esq., for McGinty, plaintiff in error, and by Thos. J. Keenan, Esq., for defendant in error. Opinion by EWING, P. J. Filed May 20, 1882. The main question in this case is, as to whether or not the defendant in this action could successfully interpose a claim for the Exemption Act of April 9, 1849, against an attachment of his wages in a suit for his boarding bill.

Counsel for the defendant in error asks us to reverse our uniform rulings for several years past on this point, and he has presented the case in a light new to us, and has argued his case ingeniously and ably. It is argued, that both under the Act of 16th March, 1872, local to Allegheny county, and under the general Act of May 8, 1876, under which this suit was be

gun by attachment, the defendant is deprived of his ordinary exemption. (1) Because the proceeding authorized is an attachment of the wages in the beginning, and (2) From the wording of the Act, that the wages (so attached) "shall not be paid to the defendant until the judgment, so had for such amount as may be due on such attachment, shall be satisfied."

Neither of these acts in terms repeals the Act of 1849 pro tanto. Are they inconsistent with the provisions of that act?

The Act of 1849 provides for the exemption of property "from levy and sale on execution, issued upon any judgment obtained upon contract."

The suit for boarding is necessarily on a contract, express or implied, and the form of the suit, or manner in which it is instituted, makes no difference. The judgment against garnishee is a judgment that the wages be taken in execution.

In Waugh v. Burket, 3 Grant, 319, it is held, that in a suit begun by attachment under the Act of 1842, the defendant is entitled to the exemption given by the Act of 1849.

The provision that the wages shall not be paid to the defendant until the judgment shall be satisfied, is good; but it applies only where the defendant does not claim the benefit of the exemption law in proper time, or where the wages attached exceed $300. In either case judgment would be obtained as a matter of course, and the wages cannot then be paid to defendant until the judgment against him be satisfied.

It may be that the Act of Assembly was intended to repeal the Exemption Act pro tanto, and that it is a great hardship on boarding house keepers that worthless men are so enabled to cheat them out of their dues, but we cannot find evidence of the intent to repeal in the Act, nor can we legislate for the relief of those so defrauded. Judgment is reversed.

The Smiths then took writ of error. For plaintiffs in error, Thos. J. Keenan, Esq. The plain language of the act is inconsistent with the exemption claim. The Legislature had in view the class of debtors to be affected who are usually strollers, men without families and whose wages are never allowed to amount to $300. If the construction put by the court below on the clause, preventing payment of the attached wages to the debtor till the judgment had against him for his board bill be satisfied, is to prevail, the clause has no effect whatever. Waugh v. Burket, relating to the Act of July 12, 1842, cited by the court, has no bearing here. By section 28 of that act the attachment is ex

pressly limited to property "not exempt by law from sale upon execution."

This statute is eminently remedial, designed to suppress a great mischief and benefit many people, but cannot so operate if the court's construction be correct. Giving it the effect we claim, it will be highly beneficial in a threefold aspect; it will help the poor man seeking work in the mills, mines and shops to credit for his board until he can draw wages; it will give a security to the trusting boarding house keepers, many of them poor widows, willing to help the needy in getting work; and it will relieve the community of a multitude of tramps and idle persons desiring to labor, but unable to pay or get credit for board till the next monthly or semi-monthly pay day and thus be compelled to beg for subsistence. It should, therefore, receive a liberal, benignant interpretation so as to suppress the mischief and advance the remedy. The established rules of construction give the court ample power in the premises. See Dwarris on Statutes, 184, 131, 134; 1 Kent, 465.

Contra, Jas. F. Gildea, Esq., contended that the Exemption Act was not repealed pro tanto by this Attachment Act: Egypt St., 2 Grant, 455; 2 Parsons in Equity, 241. Beneficial laws for protection of the poor are not to be repealed by implication. Act of May 8, 1874, P. L., 123, cited as showing the necessity of express proviso to repeal exemption. Waugh v. Burket also cited. PER CURIAM. Filed November 20, 1882. This judgment is affirmed, for the reasons given in the opinion of the learned president of the court below. Judgment affirmed.

BOLSTER v. CITY OF ALLEGHENY. ARTZ v. SAME-FUCHS v. SAME.

When damages are sought to be recovered from a municipal corporation by reason of negligence in the construction of a sewer, the action cannot be sustained if it appears that the injury would have occurred in all human probability in the absence of such negligence. And further, the rulings in Baltimore & Ohio Railroad Co. v. Sulphur Spring School District, 28 PITTSBURGH LEGAL JOURNAL, 257, sustained.

Error to the Court of Common Pleas, No. 2, of Allegheny county.

These were three cases tried together, in which the plaintiffs sought to recover damages from the city of Allegheny on account of injuries sustained by the bursting of a sewer on July 26, 1874, when what is known as the "Butchers' Run flood" occurred.

The plaintiffs alleged that the break occurred near and just above a point where a sewer seven and one-half feet in diameter connects and empties into one five feet in diameter.