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shall be and they are hereby declared to be a The appellant is a purchaser for value, and belien thereon, * * * and that the said lien shall fore his title can be affected by the fraud of the have priority to, and shall be fully paid and Bostwicks it must appear that he either was satisfied before any recognizance, mortgage, a party to the fraud or had knowledge of it. judgment, debt, obligation or responsibility, There is no pretense that he was a party or had which the said real estate may become charged actual knowledge of any fraud. But the learned with, or liable to, from and after the passing of judge held that he had constructive notice as it this act.” The proceeding under this act is in | appeared of record in his line of title. This rem and the whole estate in the land is charged: was error. The appellant's title was acquired Salser v. Reed, 3 Harris, 260. The reason for it through a judicial sale upon a valid lien. It is is that the improvements are for the benefit true the charge in favor of Frederick Bentz of the property. The 16th section of the Act appeared in the line of title, but the fraud by of 6th January, 1874, P. L., 1135, under which which the Bostwicks procured the sale did not Bates alley was graded and paved, provides that appear. The fact that they resided upon the the term “owner' as used in said act shall be premises had no especial significance. If sufficonstrued to mean all individuals having any cient to put appellant upon inquiry he can only title or interest in the properties assessed. It be charged with what he would probably have was held in Perry v. Brinton, 1 Harris, 202, that ascertained if he had made such inquiry. It is a sale on a municipal lien did not divest the too much to assume that either Bostwick or his lien of a prior mortgage. That, however, was wife would have informed him of the fraud. because mortgages in the city of Philadelphia He would only have learned what the record were protected by an Act of Assembly. It has discloses, that the property had been sold at never been held that charges upon or estates in a judicial sale upon an adverse proceeding. land created by the owner thereof can avail as Nothing appeared upon record to indicate that against the taxing power of the Commonwealth. | Bostwicks were practically both vendors and Municipal liens for grading and paving streets vendees. The tendency of judicial decision is are a species of taxation and come within the to protect good faith purchasers at judicial sales, rule. Such liens bind the entire estate in the and where participation in or knowledge of land except where an Act of Assembly directs actual fraud is not alleged, we are not disposed otherwise. If it were not so, the owner of real to extend the doctrine of constructive notice to estate could wholly defeat the taxing power unreasonable lengths. Where the record disby charging it with the payment of a sum of closes such facts as fairly put a purchaser upon money equal to its full value.

inquiry, the rule is to hold him to notice of
That the sheriff's sale in this instance dis what such inquiry would reasonably have de-
charged the premises in question from the veloped. To extend it further is not warranted
charge in Mrs. Garber's will, in favor of Freder- by the authorities and might work serious
ick Bentz, is settled by Allegheny City's Appeal, wrong in many instances.
5 Wright, 60, and Pittsburgh's Appeal, 20 P. F. The decree is reversed and the petition dis-
Smith, 142. It is equally clear that under De- missed at the costs of the appellee.
laney v. Gault, 6 Casey, 63, and Emerick v.
Dicken, 27 PITTSBURGII LEGAL JOURNAL, 143,

PLUNKETT V. SAUER.
the irregularities complained of were cured by
the judgment and do not affect the purchaser

| A. commenced proceedings under the Act of 17th March,

1869 (Fraudulent Debtors'), against B. to recover a at a judicial sale. Wiston v. The City of Phila

debt of $580, and filed his bond for $1,160 with C. as delphia, 5 Norris, 215, is not in conflict with

surety, conditioned that if he should fail to recover this view, for the reason that there the defense judgment he would pay all legal costs and damages was made by the owner prior to any sheriff's

incurred by B. Subsequently the attachment was dis

solved and A. then brought an action of assumpsit on sale of the premises.

his claim against B. At the trial the latter offered the Up to this point we are in harmony with the

bond in evidence to be followed by proof that he had rulings of the court below. The learned judge sustained damage by reason of the closing of his place held, however, that the appellant was affected

of business by the sheriff in the attachment proceed

ings, which offer was rejected. Held, to have been with notice of the alleged fraud of Mary E. Bost

error; that his set-off arose ex contractu (on the bond) wick and her husband. It is found by the

and not ex delicto, and should have been admitted. court, and for the purposes of this case we as- Damages arising ex contractu and capable of liquidation sume the fact to be, that they procured the ' by proof may be set off under our Defaication Act. sheriff's sale of the premises for the purpose of Error to the Court of Common Pleas, No. 2, getting it back discharged from the provision in of Allegheny county. Mrs. Carter's will in favor of Frederick Bentz.) On March 12, 1879, Francis T. Plunkett, the

Ele

--------- - - -----plaintiff in error, defendant below, was engaged any damages that he, defendant, might sustain in the manufacture of glass in the Twenty- by reason of plaintiff' below closing his premises, eighth ward, city of Pittsburgh, and had on was by virtue of this bond. He must look to hand a large stock of goods in the way of lamp the bond. It was a contract wherein plaintiff chimneys, etc. He was indebted at the time below agreed with defendant below that if he, to Christian Sauer in the sum of $580. On that plaintiff, should fail to prosecute his action with day Christian Sauer caused an attachment to be effect and recover judgment against defendant, issued against F. T. Plunkett under the Act of he should pay to defendant all legal costs and 17th of March, 1869 (Fraudulent Debtors' Act), damages which defendant might sustain by and filed a bond with Domenick Ihmsen as reason of said attachment. surety in the sum of $1,160, conditioned that if | Contra. J. J. Mitchel. Eso. he should fail to prosecute luis attachment with | effect against said Plunkett. then he or his Opinion by GREEN, J. Filed November 20, 1882. surety should pay to the said Plunkett all legal! We think the learned court below was in costs and damages which he, the said Plunkett, error in rejecting the defendant's offer of proof. might sustain by reason of said attachment. In the proceeding by attachment the plaintiff

After the court had heard the evidence of the was obliged to, and did give a bond conditioned parties, plaintiff and defendant, in the attach for the payment to the defendant of all legal ment proceedings, on the 9th day of April, 1879, costs and damages which he might sustain by the attachment was dissolved. In the mean reason of the attachment, if the plaintiff failed time, from the 12th of March, 1879, the factory to prosecute the attachment with effect. After of Plunkett was entirely closed, and his stock the giving of the bond in the attachment proof goods in the custody of the sheriff, by virtue ceeding, the seizure of the defendant's goods of the attachment. After the dissolution of the was not a tort, but a perfectly lawful act. If attachment the defendant in error, Christian any damages resulted therefrom to the defendSauer, brought this action in assumpsit in the ant, the plaintiff was bound by his contract, court below, for the identical debt upon which to wit, the bond, to pay the amount thereof to the the attachment had been issued. Plunkett ad-defendant. The defendant in order to recover mitted that he had been indebted to Sauer in these damages would necessarily be obliged to the sum sought to be recovered, but that, by rea- bring an action on the bond for that purpose, son of the attachment issued by Sauer against if the plaintiff refused to pay them voluntary. him, he was damaged, his factory being closed This being so, it is perfectly clear that his right for the space of nearly one month, his goods in of action against the plaintiff is not for damages the custody of the sheriff, the market price de for a trespass, but damages for breach of the preciating during that time to a sum far in ex-condition of the bond. This right is ex concess of any claim Sauer had against him. tractu and not ex delicto. While it is true, the

On the trial of the case Plunkett offered the damages are unliquidated, they are capable of bond of Sauer, filed in the attachment pro- liquidation by proof, and therefore the right to ceedings against him, to be followed by proof set them off in this action comes clearly within of the damage, by way of set-off against the the adjudicated cases. The whole subject of the claim of said Christian Sauer. The offer was right of set-off in such cases was exhaustively overruled by the court, the jury instructed to reviewed by the preseut Chief Justice in the return a verdict for the plaintill.

case of Hunt v. Gilmore, 9 P. F. Smith, 450, in For plaintiff in error, Messrs. Duff & Alcorn which it was held that unliquidated damages and Hays & Noble.

arising ex contractu from any bargain may be In the first place we maintain that unliqui set off under the Pennsylvania Defalcation Act, dated damages are the subject of off-set when- whenever they are capable of liquidation by any ever they are capable of liquidation by any known legal standard. The same doctrine was known legal standard: Speers v. Sterrett, 5 repeated and applied in the cases of Ihalfpenny Casey, 192; Munt v. Gilmore, 9 P. F. Smith, 450. v. Bell, 1 Norris, 128, and The Domestic Sewing

In the second place the closing up of defend- | Machine Co. v. Saylor, 5 Norris, 287. The first ant's premises under the act was not a tort. assignment of error is sustained, and on that the The plaintiff proceeded by authority of law and judgment is reversed. We say nothing about could not be guilty of tort. The defendant be- , the second assignment, because we do not know low could not have sued in tort, his only remedy whether the question.it involves was raised by was on the bond, the giving of which under the any proper plea. act superceded his action of tort at common law. The judgment is reversed and a venire de novo

The liability of plaintiff'below to defendant for ) awarded.

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JOSEPH NIXON v. WM. McCRORY. and also at the time referred to in said affidavit,

when said plaintiff left the said steam-tug with Damages for which an action sounding in tort might be maintained may be set off in an action on a promis

a high pressure of steam in her boilers, and a sory note.

large fire under the same with the fire-doors Error to the Court of Common Pleas. No. 1. | closed; that he, the plaintiff, was the officer in of Allegheny county.

charge of said boilers and the machinery of said This was an action in the court below brought | boat, that it was his duty to regulate the pres. by McCrory against Nixon to recover the amount sure of steam, control the fires, and see that the of a promissory note for $906.69. Nixon filed an fire-doors were opened at the proper time.” affidavit of defense in which he averred that in

The court entered judgment for plaintiff for or about the month of April, 1879, he bired the

$733.43, which the plaintiff declined to accept plaintiff "as an engineer on the steamer Joseph | in full satisfaction of his claim and elected to Nixon, for the term of one month, and in pur- | proceed for the balance. The defendant took suance of said engagement said plaintiff went this writ, assigning the entry of judgment as on said boat and acted as first engineer on the error. said boat, and on the 4th day of April, 1879, the For plaintiff in error, John Barton, Esq. said boat left Pittsburgh on a trip down the Ohio Contra, Isaac S. Van Voorhis, Esq. river with said plaintiff in charge as engineer, and on the said trip proceeded to and arrived at

| Opinion by PaxSON, J. Filed November 20, 1882.

pinion by PAXS the Port of Cincinnati, Ohio, on or about the For the purposes of this case we must assume 8th of April, 1879, and that on the 9th day of the facts to be as stated in the affidavit of deApril, 1879, the said plaintiff did conspire with fense. If, as defendant swears, he hired the and induced the crew of the said boat to leave plaintiff as engineer on board the steamer Joseph the said boat in distress at a foreign port, and Nixon, for the term of one month, and that also that at the time said plaintiff left the said | during said term the plaintiff not only left the boat he left the boat with a high pressure of steamer and his service while in a foreign port, steam on the boilers of the said boat and a large

but in addition conspired with and induced the fire under the said boilers with the fire-doors / crew of said boat to desert it, he was clearly closed, and that in pursuance of said neglect and guilty of a breach of his contract with the demalicious conduct of said plaintiff said boilers fendant. The defendant also swears that when and the said defendant were damaged to the the plaintiff deserted the steamer he left it with extent of one thousand dollars, and that further a high pressure of steam in its boilers, with a said defendant claims usury, for that said plain

large fire under the boilers and the fire-doors tiff charged 8 per cent. interest on the note for

closed; that the said plaintiff' was the officer in which the note sued on in this case is the re charge of said boilers and the machinery of said newal, that the said usurious interest amounts boat, that it was his duty to regulate the presto the sum of $76.26, as per statement attached,

sure of steam, control the fires and see that the and further, that afterwards, to wit, on or about fire-doors were opened at the proper time, and February, 1881, the plaintiff took and carried

that by reason of this neglect the boilers were away with him, off of and from said boat, a large injured. While the affidavit is not as full and amount of scrap iron belonging to the said de precise as it might have been, we cannot say it fendant of the value of fifty dollars, all of which

is evasive. It sets forth substantially a breach defendant expects to prove on the trial.”

of contract and of duty on the part of plaintiff

by means whereof the defendant was injured. STATEMENT. WM. McCRORY,

Can such injury be set off under our Defalca

To Jos. Nixon, DR. 1879.

tion Act against the note in suit. Of this we Feb. 14th, To usurious interest on note, from

are in no doubt. The precise question was ruled May 1, 1874, to February 1, 1879, 4 years, 6 months and 60 days,

in Halfpenny v. Bell, 1 Norris, 128, which is @ 2 per cent.......

76 26 April 9th, To damages incurred by reason of

one of the more recent of a long line of cases leaving boat at Cincinnati.............. 1,000 00 | asserting the same principle. Feb., 1881, To scrap iron taken from boat....... 50 00

The rules of the court' below provide that

$1,112 26 By amount of note as sued for....... 906 69

where a defendant admits a part of plaintiff's

claim to be due, the plaintiff may accept the

$ 219 57 Pittsburgh, April 11, 1882.

tender, take judgment, issue execution and go Subsequently he filed the following supple-to trial for the balance. Here the defendant admental affidavit of defense: “That the steam- mitted nothing, but denied the right of the tug ·Jos. Nixon,' referred to in his affidavit of plaintiff to recover anything, yet the learned defense, was in 1879, and is now, owned by him, I court gave judgment against the defendant for

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a part of plaintiff's claim and permitted the county of Allegheny, saving and excepting only plaintiff to go to trial for the residue. This was those special laws for which the act itself procertainly a liberal construction of the rule of vides. It follows that there is no prohibition court and leaves us in some doubt whether thereof, nor penalty against, the sale of such liquors, is a final judgment below to which a writ of whether on Sunday or any other day, except error would lie. As the case must go back we that found in the Act of 1872. have concluded to decide the main question.

Judgment affirmed. The judgment is reversed and a procedendo awarded.

SMITHS v. McGINTY. THE COMMONWEALTH OF PENNSYLVA

The Act of Assembly of May 8, 1876, P. L., 139, Purd.,

2016, authorizing attachment of wages for boarding, NIA, for the use of ROBERT MCCLURE, v.

does not deprive the debtor of the benefit of the $300 FREDERICK GEDIKOH.

Exemption Act of April 9, 1849.

The provision in the Attachment Act, that the “ wages The Act of 3d April, 1872, Purd., 951, in relation to the attached shall not be paid to the defendant until the sale of liquors in Allegheny county, repealed all acts judgment had against him shall be satisfied," applies in force in said county.

only where the benefit of the Exemption Act is not Error to the Court of Common Pleas, No. 1,

claimed in proper time, or where the wages attached

exceed $300. of Allegheny county.

The Attachment Act may have intended to repeal the This was an action before a justice for the re Exemption Act pro tanto, but the intent is not suffi. covery of the penalty prescribed by Act of 26th | ciently evinced in the act. February, 1855, for the sale of liquors on Sun Error to the Court of Common Pleas, No. 2, day. The justice gave judgment in favor of the of Allegheny county. plaintiff, which on certiorari was reversed by ! Plaintiffis in error, the Smiths, for a three the Court of Common Pleas, No. 1, and this weeks' board bill, by complaint and statement writ was taken,

on oath before Alderman T. Brucker, attached For plaintiff in error, A. M. Watson, Esq.

the wages of McGinty ($20) as authorized by Contra, J. D. Ramsey, Esq.

Act of Assembly of May 8, 1876, P. L., 139.

Defendant claimed the benefit of the $300 ExOpinion by GORDON, J. Filed November 20, 1882. emption Act of April 9, 1849, and thereupon

"All laws and parts of laws now in force rel- asked that the lien of the attachment be disative to the sale of vinous, spirituos, malt or solved. brewed liquors, or any admixtures thereof, in | The alderman conceiving that such claim was the county of Allegheny or any part thereof, be excluded by the clause in the Attachment Act, and the same are hereby repealed :" Act 3d that the wages attached "shall not be paid to April, 1872, Sec. 1, Br. Purd., 951.

the defendant until the judgment so had for The language above recited is so general and such amount as may be due upon such attach

cing in its character that a misconcep-ment shall be satisfied,” rejected it, and on the tion of the legislative intent is impossible. It proofs gave judgment for plaintiffs against derepeals not only all laws but all parts of laws fendant and garnishee. Thereupon defendant then in force, relative to the sale of intoxicating sued out certiorari. liquors, in the county of Allegheny. It thus, | The case was argued in Common Pleas before so far as this county was concerned, swept away a full Bench, January, 1882, by Jas. F. Gildea, the Act of 1855 and every part of it. It is very | Esq., for McGinty, plaintiff in error, and by true that the later act does not supply the second Thos. J. Keenan, Esq., for defendant in error. section of the former, but this omission may be | Opinion by Ewing, P. J. Filed May 20, 1882. accounted for under the supposition that the The main question in this case is, as to Legislature regarded the making of the offense whether or not the defendant in this action of selling liquors on Sunday a misdemeanor, could successfully interpose a claim for the Expunishable by fine and imprisonment, as all emption Act of April 9, 1819, against an attachsufficient for its suppression. At all events this ment of his wages in a suit for his boarding bill. shows that in framing the Act of 1872, that part Counsel for the defendant in error asks us to of the Act of 1855 was not overlooked. It is, reverse our uniform rulings for several years however, not necessary to attempt to account past on this point, and he has presented the for either the omissions or commissions of the case in a light new to us, and has argued his Act of 1872, since at the very head of it stands case ingeniously and ably. It is argued, that the repealing clause which we have cited, and both under the Act of 16th March, 1872, local to that leaves no law, general or special, respecting Allegheny county, and under the general Act the sale of intoxicating liquors, of force in the l of May 8, 1876, under which this suit was begun by attachinent, the defendant is deprived pressly limited to property “not exempt by law of his ordinary exemption. (1) Because the pro- from sale upon execution." ceeding authorized is an attachment of the wages. This statute is eminently remedial, designed in the beginning, and (2) From the wording of to suppress a great mischief and benefit many the Act, that the wages (so attached) “shall not people, but cannot so operate if the court's conbe paid to the defendant until the judgment, so struction be correct. Giving it the effect we had for such amount as may be due on such at- claim, it will be highly beneficial in a threetachment, shall be satisfied.”.

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fold aspect; it will help the poor man seeking Neither of these acts in terms repeals the Act work in the mills, mines and shops to credit for of 1849 pro tanto. Are they inconsistent with his board until he can draw wages; it will give a the provisions of that act ?

security to the trusting boarding house keepers, The Act of 1819 provides for the exemption many of them poor widows, willing to help the of property "from levy and sale on execution, needy in getting work; and it will relieve the issued upon any judgment obtained upon con- community of a multitude of tramps and idle tract."

persons desiring to labor, but unable to pay or The suit for boarding is necessarily on a con- | get credit for board till the next monthly or tract, express or implied, and the form of the semi-monthly pay day and thus be compelled suit, or manner in which it is instituted, makes to beg for subsistence. It should, therefore, reno difference. The judgment against garnishee ceive a liberal, benignant interpretation so as to is a judgment that the wages be taken in exe- suppress the mischief and advance the remedy. cution.

The established rules of construction give the In Waugh v. Burket, 3 Grant, 319, it is held, court ample power in the premises. See Dwarthat in a suit begun by attachment under the ris on Statutes, 184, 131, 134; 1 Kent, 465. Act of 1842, the defendant is entitled to the ex- Contra, Jas. F. Gildea, Esq., contended that emption given by the Act of 1849.

the Exemption Act was not repealed pro tanto The provision that the wages shall not be by this Attachment Act: Egypt St., 2 Grant, paid to the defendant until the judgment shall 455; 2 Parsons in Equity, 241. Beneficial laws be satisfied, is good; but it applies only where for protection of the poor are not to be repealed the defendant does not claim the benefit of the by implication. Act of May 8, 1874, P. L., 123, exemption law in proper time, or where the cited as showing the necessity of express proviso wages attached exceed $300. In either case to repeal exemption. Waugh v. Burket also cited. judgment would be obtained as a matter of

PER CURIAM. Filed November 20, 1882. course, and the wages cannot then be paid to

This judgment is affirmed, for the reasons defendant until the judgment against him be

given in the opinion of the learned president of satisfied.

the court below.

Judgment affirmed. It may be that the Act of Assembly was intended to repeal the Exemption Act pro tanto,

BOLSTER v. CITY OF ALLEGHENY. and that it is a great hardship on boarding

ARTZ v. SAME-FUCHS v. SAME. house keepers that worthless men are so enabled to cheat them out of their dues, but we cannot When damages are sought to be recovered from a mufind evidence of the intent to repeal in the Act, nicipal corporation by reason of negligence in the connor can we legislate for the relief of those so

struction of a sewer, the action cannot be sustained if defrauded. Judgment is reversed.

it appears that the injury would have occurred in all

human probability in the absence of such negligence. The Smiths then took writ of error.

And further, the rulings in Baltimore & Ohio Railroad For plaintiff's in error, Thos. J. Keenan, Esq. | Co. v. Sulphur Spring School District, 28 PITTSBURGH The plain language of the act is inconsistent

7, sustained. with the exemption claim. The Legislature Error to the Court of Common Pleas, No. 2, had in view the class of debtors to be affected of Allegheny county. who are usually strollers, men without families. These were three cases tried together, in and whose wages are never allowed to amount which the plaintiffs sought to recover damages to $300. If the construction put by the court from the city of Allegheny on account of inbelow on the clause, preventing payment of the juries sustained by the bursting of a sewer on attached wages to the debtor till the judgment July 26, 1874, when what is known as the bad against him for his board bill be satisfied, “Butchers' Run flood” occurred. is to prevail, the clause has no effect whatever. The plaintiffs alleged that the break occurred

Waugh v. Burket, relating to the Act of July | near and just above a point where a sewer 12, 1842, cited by the court, has no bearing here. seven and one-half feet in diameter connects By section 28 of that act the attachment is ex- | and empties into one five feet in diameter.

LEGAL JOURNAL, 2

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