guardian aforesaid, and in her own right, together with Margaret Jane Hamilton (now Agnew) and Ann Eliza Hamilton (now White), executed the mortgage in controversy to Lewis McMullen, who afterwards, for a valuable consideration, assigned to the appellant. To June Term, 1881, the bill before us. praying for a decree for the cancellation or satisfaction of this mortgage, was filed. In support of the prayer thus made three allegations were set forth That at the time of the execution of the mortgage Ann Eliza Hamilton was not of age; that Mrs. Rosanna Hamilton was not then in her right mind; that she was not, and never had been, guardian of the said minors. The court below, after reference to a master and hearing of the parties, entered the following decree: "1st. That as to the one-fourth interest in said mortgage made by Margaret Jane Hamilton, now Margaret Jane Agnew, this bill be dismissed. 2d. That as to the remainder of said mortgage, the defendant be required to enter satisfaction thereof on the margin of the record so that the same be and remain a lien upon the said one-fourth interest of Margaret Jane Agnew only, and that the bond accompanying said mortgage be cancelled as to all the obligors thereon except Margaret Jane Hamilton, now Margaret Jane Agnew." sumption is not one juris et de jure. It may be rebutted, and if it turns out that the court had no jurisdiction its order was void: Torrance v. Torrance, 3 P. F. Smith, 505. To rebut this prima facie presumption in favor of the decree of the Orphans' Court, we have this positive and unqualified finding of the master: "Rosanna Hamilton had not been appointed guardian of the said minors when she made the above stated application to the Orphans' Court, nof when she made the mortgage, neither did she thereafter obtain such appointment." And this finding he says is of one of several facts admitted, or not disputed. But if Mrs. Hamilton was not the guardian of her minor children, how was it possible for the Orphans' Court to empower her either to mortgage or sell their lands? The power of this court to order a sale or mortgage is based on some preceding relation of the person applying for such order to the property which it is intended thus to dispose of, as that of executor, administrator, guardian or trustee, but if there is no such relation the action of the court comes to nothing; it is mere usurpation. The maxim omnia præsumantur, when applied to judicial proceedings, is a valuable one, but it cannot clothe a court with a jurisdiction that the Constitution and laws have put beyond its reach. It cannot validate a decree authorizing A. to sell B.'s lands unless there is some precedent legal relation warranting it. The decree is affirmed and the appeal is dismissed at the costs of appellant. In the examination of the rectitude of this decree, we may notice, in the first place, that Mrs. Hamilton having died before the filing of this bill, and her estate, in the premises mortgaged, being but for life, she necessarily drops out of the case, and, as to her right, leaves nothing to be considered. Nor, as was properly observed by the master, does her mental condition at the time of the execution of the mortgage present itself as a matter of material consideration, for if in the execution of that instrument she acted under and in pursuance of the decree CHARLES HARTMAN v. WILLIAM KEOWN. of the Orphans' Court, it matters little whether she was sane or insane. The order of the court having been properly carried out, the mental condition of the instrument by which it was executed can in no manner affect its validity. We observe, in the second place, that the master having found that Mrs. White was not of age when she signed the mortgage, and that she did nothing after her majority which ought to be construed as a ratification thereof, we must of necessity approve the decree so far as she is concerned. Finally, as to how the interests of the two minors are to be affected, depends upon the validity of the decree of the Orphans' Court directing the mortgage. The prima facie presumption is in favor of that decree, but the pre SHARSWOOD, C. J., and GREEN, J., dissent. For appellants, Messrs. James Grier and W. F. McCook. Contra, W. K. Jennings, Esq. An innkeeper or agister has a lien upon an animal for boarding and keep, and may maintain replevin if the said animal is removed clandestinely or without his consent. An assignment of a bill of sale of an animal pledged for the payment of a debt, passes a sufficient title to the assignee to maintain an action in replevin against an owner who stealthily takes it out of his possession. Error to the Court of Common Pleas, No. 1, of Allegheny county. On or about the 17th day of June, 1876, Charles Hartman, a minor son of plaintiff in error, and Dale Keown, a brother of William Keown, defendant in error, made an arrangement in which Dale took possession of the mare "Geneva,” a pacer, agreeing to train her on the track, and to run her from time to time, subject to the ap proval of Hartman, dividing the track money and premiums that might be taken by her. Dale got the mare on these terms, and afterwards took her to the farm of his brother, William Keown, where she was kept most of the time. She was entered in races at different places up to the fall of 1878. On the 30th day of June, 1877, Hartman borrowed $50 from R. L. Henderson and gave him a bill of sale, pledging the mare as security for payment in two months. In the fall of 1878 Henderson got $50 from William Keown, defendant in error, and assigned to him the bill of sale received from Hartman. In September, 1880, Hartman went to Keown's farm and tavern near Perrysville, took the mare from the stable and rode her away. Thereupon, September 28, 1880, William Keown brought action in replevin against Charles Hartman. November 21, 1881, jury gave verdict for the plaintiff in the sum of $475. Two of the defendant's specifications of error, inter alia, were: First. That even if a contract of bailment had existed in the premises in favor of the plaintiff, if he at any time set up a claim of ownership to the mare (without having bought her from her owner) while in his possession, and exercised ownership over her adversely to the defendant or his son, that destroyed any lien as bailee that plaintiff might have had upon the mare up to the date he made such claim of personal ownership of the mare. And no lien did or could exist in law or equity against said mare for keeping from the date when he so made claim to her ownership, and plaintiff cannot recover. Refused. Second. That if the jury believe from the evidence that plaintiff regarded and treated the bill of sale to R. L. Henderson, on which he paid the $50 mentioned therein to Henderson, as a valid sale and purchase of the mare, and thereafter claimed her as his own, then he could not claim a lien on the mare for her keeping from that date, September 20, 1878, if he acquired no valid title to or ownership of the mare by virtue of said bill of sale, and he cannot maintain this action. Refused. the plaintiff below tended to prove that he was entitled to a lien on the mare in question for her keeping; and, under the instructions contained in the general charge, to which no exception is taken, the question was fairly submitted to the jury, and by them determined in his favor. To have withdrawn the case from their consideration by binding instruction, as requested in defendant's twelfth point, would have been error. In considering the remaining assignments, the purpose for which the mare was entrusted to defendant in error should not be overlooked. He testified she was left with him "for the purpose of being handled on the track" by his brother, Dale Keown; and, in his history of the case, plaintiff in error admits that, pursuant to an arrangement between himself and Dale, the latter took possession of her, "agreeing to train her on the track and run her from time to time, subject to his approval, dividing the track money and premiums that might be taken by her." It is true, that in the same connection he says, "Dale was to charge nothing, outside of his share of this money, for keeping and training the mare;" that he got her "on these terms and afterwards took her to the farm of his brother, William Keown, where she was kept for most of the time." The fact that she was taken there, for the purpose above mentioned, is impliedly established by the verdict; but, beyond this, there was no proof of any understanding or agreement, to which defendant in error was a party, that would deprive him of a lien for her keeping. In view then of the fact that Dale Keown was authorized to train the mare, and, in the language of the turf, "handle her on the track," we cannot say that the offers of testimony, covered by the seventh, ninth and tenth specifications, were improperly rejected as incompetent and irrelevant. The first offer was to prove "that the mare, during the time plaintiff alleges he was holding her under bailment, was removed from his custody and keeping, with his knowledge and consent, and taken to certain race tracks in Western Pennsylvania For plaintiff in error, Messrs. C. C. Taylor and elsewhere, where she was run for track and A. M. Watson. Contra, Messrs. Thos. M. Marshall and Morton Hunter. money, and that she had, in several of these races, taken the purse, track money or premiums." Assuming all this to be true, it is entirely consistent with the arrangement which Opinion by STERRETT, J. Filed November plaintiff in error admits he made with Dale 20, 1882. mare. Keown in regard to training and running the In view of the testimony, or rather the lack If so, defendant in error was not chargeof evidence to justify the affirmance, the learned able with any breach of duty or bad faith in President of the Common Pleas was clearly right permitting her removal "from his custody and in refusing the points referred to in the first six | keeping" for the purposes stated in the offer. specifications. The testimony introduced by | The third and fourth offers are substantially the same in principle and do not require any further LUPTON et al. v. MOORE and RILEY. Act of Assembly in case of a foreign attachment. Is this sufficient? Did the sheriff attach anything in the hands of the garnishee? Plaintiffs' counsel claims that it is sufficient, as it was a compliance with the 36th section of the Act of Assembly of 16th June, 1836, Purd. Dig., 640, Sec. 33, which provides that it shall be the duty of the officer charged with the execution of such writ, to serve a copy on the defendant in such judgment, and upon every person and corporation named in such writ of attachment, in the manner provided for the service of a writ of summons in a personal action. And further, that for many years, perhaps from the first, it has been the custom in Allegheny county to make the attachment by simply serving the writ on the garnishee as a writ of summons. It appears that the custom has been as claimed by plaintiffs' counsel, though it is not A garnishee in an attachment execution having ap- uniformly so, and unless the custom is a bad peared and joined issue, cannot after verdict against him, except to the validity of the service of the writ upon him. Whether personal service of the writ on the garnishee is necessary, not decided. one, or clearly in neglect or contravention of the statute, we would accept it as a contemporaneous interpretation of the statute. It also has the apparent authority of Troubat & Haley's Error to the Court of Common Pleas, No. 2, Practice in its favor, at least inferentially so of Allegheny county. This was an attachment execution against J. H. Riley, garnishee of J. H. Moore. The sheriff's return to the writ was as follows, to wit: "Executed October 14, 1879, by leaving a true and attested copy of the within writ at the residence of J. H. Riley, with an adult member of his family, and by summoning J. H. Riley as garnishee; and November 3, 1879, by delivering a like copy to John F. Moore, and by making known to him the contents thereof." (see T. & H., Vol. I, p. 694, Sec. 1197); though it is not clear that it is so intended. The Act of 16th June, 1836, relating to executions, provided new remedies and new subjects for the collection of debts in judgment. The 22d section provides that "the stock owned by any defendant in any body corporate, also deposits of money in bank, or with any person or body politic belonging to him, and debts due to him, shall be liable to execution like other goods and chattels," subject, etc. The 32d to the 37th sections inclusive, relate to the manner of taking this class of property in execution. The defendant Moore obtained a rule to set aside the return, which the court discharged, "without prejudice to the right of any of the parties to raise the question thereafter." The 32d, 33d and 34th sections relate to the The garnishee appeared, answered interroga-proceedings or manner of procedure to take tories and joined issue. After special verdict in stocks in execution. favor of the plaintiff, the garnishee moved for judgment, non obstante veredicto, on the ground that the writ was not properly served on him. The court entered judgment accordingly, and filed the following opinion: The 35th section (Purd. Dig., 639, 640, Sec. 32) provides as follows: "In the case of a debt due to the defendant or of a deposit of money made by him, or of goods or chattels pawned, pledged or demised as aforesaid (referring to the 22d and 23d sections), the same may be attached and levied in satisfaction of the judgment, in the manner allowed in the case of a foreign attachment; but in such case a clause in the nature of a scire facias against a garnishee in foreign attachment shall be inserted in such writ of at This is an execution attachment sur judgment. The question arises on the manner in which the sheriff executed the writ, which was simply by leaving a copy of the writ at the residence of the garnishee, with an adult member of his family. Aside from this, and service on the defendant, nothing further was done, as ap-tachment, requiring such debtor, depositary, pears by the return of the sheriff and by the finding of the jury. The sheriff did not see the garnishee, nor did he do anything towards making an attachment, as is required by the etc., to appear at the next term of the court ** and show cause why such judgment shall not be levied of the effects of the defendant in his hands." And then follows section 36, directing how the writ shall be served on the defendant and other persons named therein, evidently referring to the foregoing sections in relation to stock as well as to the attachment of a debt. The 35th section evidently looks to two things to be done by the officer, to wit: 1st. Attachment of the effects of the defendant; and 2d. Notice or service of the writ on the defendant and on the garnishee; and the 36th section, that this notice shall be given as a summons may be served in a personal action. The writ in this case is framed in accordance with this view: It first directs the sheriff to attach the moneys and effects of defendant; and second, to make known to Riley, the garnishee, that he appear in court, and show causé, etc. The latter duty was performed in accordance with the statute, and the garnishee now appears and alleges for cause that no attachment of the effects was made. The statute directs that the attachment shall be in the manner allowed in the case of a foreign attachment. Plaintiffs' counsel argues plausibly, that this means to subject the debt to execution process with like effect as in foreign attachment. But a careful reading of the Act shows that this had already been done in the 22d section of the Act, supra. And unless it was intended that the attachment should be made in the manner in which it is directed to be made in foreign attachment, the clause was not merely useless but injurious, and calculated to mislead. Whereas, by interpreting this clause to mean what it says, there is no inconsistency or conflict with the succeeding clause, which provides the manner in which the "clause in the nature of a scire facias" may be served on the garnishee. When we come to inquire as to the "manner allowed in the case of a foreign attachment," we find that by the custom of London the attachment was not by service of a writ but by actions of the officer in going and declaring that he attached (see Sergt. on Attachment), etc. Our Act of 10th of May, 1699, (Sergt. on Attach., App. p. 278,) validated attachments heretofore made and authorized attachments, substantially enacting the custom of London, and directed that attachments be made "by the officer going to the house or land, or to the person in whose hands or possession the defendant's estate or effects are supposed to be, and then and there declaring, in the presence of one or more credible persons of the neighborhood, that he attached the same." The Act of October, 1705, (Sergt. on For. Attach., p. 281), contains provisions substantially the same as those above quoted. Neither by the custom of London, nor by the Act of 1699 or that of 1705, was any provision made for a summons to the garnishee to appear. By the Act of 13th June, 1836 (Purd. Dig. For. Attach.), the form of the writ in foreign attachment is prescribed, a clause of summons to garnishee is directed to be inserted. The manner of serving the summons is prescribed in the 2d section of the same Act, under title of "Commencement of Personal Actions." The 48th, 49th and 50th sections of the act prescribe the manner of making the attachment. The 48th section, relating to personal property, reads thus: "In the case of personal property the attachment shall be executed as follows, to wit: The officer *** shall go to the person in whose hands or possession the defendant's goods or effects are supposed to be, and then and there declare, in the presence of one or more credible persons of the neighborhood, that he attaches the said goods or effects." The 50th section provides, that if the goods be susceptible of seizure the officer shall proceed to secure the same, to answer, etc., *** unless the garnishee shall give security. And it is decided that as to property susceptible of seizure, the officer must seize it as directed in the act or there is no attachment: Penn'a Railroad v. Pennock, 1 P. F. Smith, 244. Prior to that case a custom had obtained in this county for the officer to disregard the statutory direction to seize the property. The same construction of the act as that given in Pennock v. The Railroad Co., supra, requires the declaration required by the statute to be made in the case of effects not capable of seizure. A custom to the contrary is a bad custom, as under the custom a debtor may, in good faith, pay his creditor, and days after go home and find that the debt had been attached by leaving a copy of the writ at his residence in his absence. The only case that has been cited or that we have found bearing on the question is that of Neely v. Grantham, 8 P. F. Smith, 433, which seems to be wholly against the plaintiffs' view in this case. A reading of that case shows, that while Judges STRONG and AGNEW dissented from the judgment of the court affirming the judgment against the garnishee, all the judges concurred in holding that the attachment in an execution attachment must be executed in the manner allowed in the case of a foreign attachment. The case also shows that the practice in this county does not obtain throughout the State, as in that case the return of the sheriff is, that he had attached all, etc., and had summoned notwithstanding the verdict, entered judgment H. F. and others named as garnishees. in favor of the garnishee non obstante veredicto. The writ was served by the sheriff on the 14th of October, 1879, by leaving a true and attested copy thereof at the residence of J. H. Riley, with an adult member of his family, and by summoning him as garnishee. It was duly and personally served on Moore. The sheriff did not otherwise attach any money, goods or effects in his | hands than by the service stated and the com In the opinion of the court, delivered by THOMPSON, C. J., it is said (pp. 439, 440): "The 35th section of the Act (relative to execution attachments and above quoted), however declares, that debts due may be attached and levied in satisfaction of a judgment in the manner allowed in the case of a foreign attachment. When we turn to the Foreign Attachment Act of 13th June, 1836, we find that in the 8th section Purd. | mand of the writ. It is claimed, inasmuch as Dig. (48th Sec.), it is provided that in case of personal property, the officer to whom such writ shall be directed shall go to the person in whose hands and possession the defendant's goods or effects are supposed to be, and then and there declare, in the presence of one or more credible persons of the neighborhood, that he attaches the said goods and effects, as done here, and from that time forth, says the act, the same shall be bound and in the power of the officer. It is not to be doubted that goods and effects include or embrace debts due." And again (p. 441): "The execution process by attachment is distinctly assimilated to the foreign attachment process by the Act of 16th June, 1836, section 35." None of the judges appear to have supposed that an execution attachment could in any case be properly executed by merely serving the writ on the defendant and the garnishee. Reason and authority concur in requiring us to hold that no attachment was made on any effects in the hands of the garnishee. The plaintiff thereupon took this writ, assigning for error, first, the refusal of the court to enter judgment for the plaintiff on the verdict, and second, the entry of the judgment in favor of the defendant, non obstante veredicto. there was no personal service on the garnishee and the sheriff took no actual possession of any property, that the service was so defective as not to sustain a verdict in favor of the plaintiffs. It is not necessary to decide whether the service on the garnishee might not have been held insufficient, in case he had moved, at the proper time, to set aside the sheriff's return. He made no such motion. On the contrary he appeared generally by attorney. That appearance stands on the record unchallenged. It is a well recognized rule that actual appearance is a waiver of defects in the service of process: Shidmore v. Bradford, 4 Barr, 300; Lorenz's Administrators v. King, 2 Wright, 93. In answer to interrogatories, he denied having any goods, moneys or credits in his hands in which the defendant had an interest; but admitted his indebtedness to the defendant in the sum of $276.07, in such language that it would have justified the entry of a judgment against him. In his plea he averred the facts set forth in his answers. At no time before verdict does the record show that the garnishee made any objection to the service on him. On the 28th of August, 1880, the defendant obtained a rule on the sheriff, the plaintiffs, and the garnishee, to show cause why the sheriff's return should not be set aside. In October following the rule was discharged without prejudice to either the defendant or the garnishee. Opinion by MERCUR, J. Filed November 20, There is no assignment of error to the dischage For plaintiff in error, J. H. White, Esq. 1882. This suit was commenced by attachment execution. It issued on a judgment in favor of the plaintiffs against Moore with scire facias against Riley as garnishee. The special verdict found Riley was indebted to Moore in the sum of $276.47 for a balance due for building a house, and that there was due from the defendant Moore, on the judgment to the plaintiffs, the sum of $158.91. If there was nothing else in the case the plaintiffs were clearly entitled to judgment on the verdict for the amount due them. The verdict further found the manner in which the writ was served on the garnishee. The court thinking that service insufficient, of that rule. The defendant was heard and the jury passed upon the amount of his indebtedness to the plaintiffs. The appearance of the garnishee was a matter beyond the control of the defendant. Neither he nor the garnishee can, on a trial of the issue joined, defeat a recovery by the plaintiffs by reason of the service made in this case, therefore Judgment reversed, and judgment in favor of the plaintiffs against J. H. Riley, garnishee of John H. Moore, for $158.91 with interest thereon from the 14th of October, 1879, and on payment thereof the said Riley shall be discharged from that amount of his indebtedness to said Moore. |