is the amount of the judgment. The liability on the bond is for that. (Second assignment of error.) The defendants requested the court, inter alia, to charge: (4) That the delivery of the property mentioned in the bond to the obligee therein named was a compliance with the conditions thereof, and therefore there can be no recovery in this case. Answer.-We cannot affirm this point, because the delivery of the property mentioned in the bond to the obligee was not a delivery in pursuance of the obligation of the bond, but was a compulsory delivery by virtue of a sheriff's sale on another writ issued upon another judgment. It is the duty of the court to construe the meaning of papers and contracts between parties, and we hold that the meaning of this bond was not that such a delivery, as occurred in this case, should satisfy its term. We refuse to affirm the point. (Fifth assignment of error.) assignees stand on no higher plane. The lien Contra, Messrs. T. H. B. Lewis and G. L. Halsey. The defendants having agreed to pay the amount of the judgment in default of returning the property, are so bound, and cannot show the value of the property: People v. Reeder, 25 N. Y., 304; Cornell v. Dakin, 38 Id., 258, 259; Burrall v. Acker, 23 Wend., 609, 611. A creditor, The court charged, inter alia, as follows: having two or more securities, may pursue These being the facts, we instruct you, as matter either or all at his option: Lantz v. Worthingof law, that the contingency contemplated by ton, 4 Barr, 153; Coar, to use, v. Green, 5 Luz. the bond arose, and the liability on the part of Leg. Reg., 77; Jones v. Bomberger, 1 Out., 432. the bondsmen accrued, when the property was Little, in reply: In Coar v. Green delivery seized and sold upon another execution, and its was not compulsory, but voluntary, as the sherproduction under the first execution thus rend-iff had no right to take the property from the ered impossible. The suit being upon the bond, custody of the marshal. the law being in our judgment as we have stated, nothing has been shown by these defendants which will relieve them from liability under the bond. They are, therefore, liable for the amount of the debt in the judgment of the Messrs. Brown against Nautilus Slutter, that being the condition of the bond. (Sixth assignment of error.) Under the views which the court has explained to you of the law of the case, it will be your duty to find for the amount of the original claim, with interest added, in favor of the plaintiff. (Seventh assignment of error.) Verdict and judgment for plaintiff for $526.65; whereupon defendants took this writ, assigning for error, inter alia, the rejection of defendants' offer of evidence, the affirmance of plaintiff's point, the answer to the defendants' fourth point and that portion of the charge above cited. Opinion by MERCUR, J. Filed October 2, 1882. This suit was on a bond executed under the following circumstances: A fieri facias, in favor of the Browns against Slutter, was put in the hands of the sheriff the latter part of March. A second fieri facias, against the same defendant in favor of Harvey, was put in his hands the fore part of April. Both executions were returnable on the second Monday of May then next. On the 30th of April, with both executions in his hands, the sheriff made a levy on the execution in favor of the Browns upon personal property, Afterwards, on the same day, the court granted a rule to show cause why the judgment in favor of the Browns should not be opened and the defendant let into a defense; at the same time ordering "all proceeding to be stayed, sheriff to be secured in his levy." The For plaintiffs in error, Messrs. Charles D. Fos- sheriff proceeded no further on this execution, ter and W. E. & C. A. Little. and suffered the property levied on to remain in the possession of the defendant. Some few days thereafter, the precise time is not shown, the bond in suit was executed by the plaintiffs The bond being for the delivery of specific articles on demand, no action can be maintained without proof of such previous demand: Hamilton v. Calhoun, 2 Watts, 140; Lobdell v. Hop-in error. The execution in favor of Harvey was kins, 5 Cowen, 516. The sheriff, having rendered compliance with the bond impossible, is estopped from suing as legal plaintiff, and his also levied on the same property, but at what time the evidence fails to disclose. It is alleged, and not denied, to have been on the same day the bond was given. On the 16th of May the property was sold by the sheriff on the execution of Harvey, and purchased by the Browns. The first specification of error is to the rejecttion of evidence offered to prove, inter alia, that the sheriff obtained possession of the property on the execution of Harvey on the morning of the sale; that he retained the money produced by the sale until the September following; to be followed by evidence that by the consent of the Browns he paid the money on the execution in favor of Harvey. When the bond was executed it declared the property to be in the possession of the defendant in the execution. It was pertinent to prove it so remained until the day of sale. This was after the return day of each fieri facias. The lien of the execution first in time was no more lost than the lien of the later one. The plaintiffs in the first execution were purchasers at the sale. They had full knowledge of the sum produced thereby, and it must be assumed they knew their right thereto. If they omitted to assert that right, and consented that the money be applied on the later execution, it was the voluntary transfer to another of money to which they were entitled. In equity, it must operate as a payment to them of that amount. The first and seventh assignments are sustained. It may be conceded that the alternative obligation of the bond is greater than the sheriff had a right to require. An obligation to deliver the property when legally demanded, or to pay the value thereof, would have answered the just requirements of the law. The obligors appear to have voluntarily assumed a stronger obligation, and they are bound thereby. It is very probable that the value of the property was admitted to be fully equal to the amount of the | execution, and therefore the alternative agreement to pay the amount of the execution with costs was considered of no practical importance. Be that as it may, no cause is shown why the obligors shall not be held to a fulfillment of the obligation which they assumed: People v. Reeder, 25 N. Y., 302; Burrall v. Acker, 23 Wend., 606. The remaining assignments are, therefore, not sustained. The relevancy of this testimony depends on whether the lien of the levy on the execution of the Browns was divested by the order staying the writ, and the taking of the bond by the sheriff. If the plaintiffs in the execution had voluntarily agreed to a stay thereof beyond the return day of the writ, their lien would have been postponed to that of a subsequent execution creditor guilty of no laches. This stay, however, was not by act of the plaintiffs in the execution. It was by the court. The order of the latter clearly does not show any intention to disturb the lien of the levy; but, on the contrary, to continue it and make it secure. It is claimed, inasmuch as the sheriff took a bond, with sureties, for the forthcoming of the property on the payment of the execution, that this operated as a discharge of the lien, and the second execution thereupon acquired a preferred right to the proceeds of the sale. We cannot consent to this conclusion. In the language of the court, the purpose of the bond was to make the sheriff "secured in his levy." It was not to divest or destroy the lien, but to make it firm and steadfast. In Sedgwick's Appeal, 7 W. & S., 260, it was held that an execution stayed under the act of July 16, 1842, did not lose its lien upon the personal property levied upon. We see no sound reason for holding the effect on the lien to be different when the fieri facias be stopped by virtue of the command of a statute than stayed by virtue of the common law powers vested in the court. In either case security is given for the forthcoming of the property; but it is not withdrawn from the custody of the law. Unless there be unreasonable delay in reclaiming the same, it is as free from the reach of other processes as if it had remained continuously in the hands of the sheriff: Hagan v. Lucas, 10 Peters, 400. When the injune- | 1883. tion staying the writ be removed, the property can be sold without a new levy thereon. This property was sold in less than three weeks after the execution in favor of the Browns was ordered to be stayed. There had been no unreasonable delay in reclaiming it on that execution. Judgment reversed and venire facias de novo awarded. Court of Common Pleas, No. 1. IN EQUITY. The WESTERN PENNSYLVANIA RAILROAD The Act of 19th June, 1871, only empowers courts to inquire into the corporate powers conferred upon corporations, and does not authorize an inquiry in proceedings thereunder, as to whether the same have been forfeited by any acts of the company. Opinion by STOWE, P. J. Filed January 29, The only exception insisted upon by plaintiff's counsel, at the hearing of the exceptions to the master's report, involves the right of plaintiff to raise the question of the forfeiture of the franchises of the defendant company in this proceeding. That a private party cannot, in the absence of statutory authority, take advantage of a forfeiture resulting from irregularities or departures from the charter-that it is a question for the sovereign power alone, which may waive it or enforce it at pleasure, and that courts are bound to regard it as a corporation so far as third persons are concerned, until it is dissolved by a judicial proceeding on behalf of the government that creates it, is too clearly established to call for a citation of authorities, and is not questioned by plaintiff's counsel. But it is urged that the Act of 19th June, 1871, section 1, changes the law in regard to this mat ter in this State. We do not consider that that act will properly bear any such construction. It provides that, "In all proceedings in courts of law or equity of this Commonwealth, in which it is alleged that the private rights of individuals or the rights or franchises of other corporations are injured or invaded by the corporation claiming to have a right or franchise to do the act from which such injury results, it shall be the duty of the court in which such proceedings are had, to examine, inquire and ascertain whether such corporation does in fact possess the right or franchise to do the act from which such alleged injury to private rights, or to the rights and franchises of other corporations, results, and if such rights or franchises have not been conferred upon such corporation, such courts, if exercising equitable power, shall, by injunction, at suit of the private parties or other corporations, restrain such injurious acts," etc. It is true, the act does make it the duty of the court to inquire whether the power or franchise does in fact exist in the corporation; and while this alone might bear the interpretation claimed by plaintiff, the next portion of the sentence sets at rest all possible doubt by declaring, “And if such rights and franchises have not been conferred upon such corporation, then the court shall interfere by injunction." And thus we see by the very terms of the act it is only the question as to whether the charter confers the powers claimed that gives the court authority to enjoin, and the other questions arising out of a loss of franchises by the acts of the corporation are not involved. This conclusion renders the consideration of the facts found by the master in regard to the alleged forfeiture of charter unnecessary; and for the reasons above stated we dismiss the exceptions. For plaintiff, Messrs. Hampton & Dalzell. Contra, Messrs. D. T. Watson and F. M. Magee. NEW BOOKS. A TREATISE ON THE LAW OF DAMAGES, embrac ing an elementary exposition of the law, and also its application to particular subjects of Contract and Tort. By J. G. SUTHERLAND. Vols. I and II. Chicago: CALLAGHAN & Co. 1882. eral principles of the law of damages and concludes with a chapter on pleading and procedure. It is a complete treatise in itself. The second to practical subjects," the subjects of the several volume treats of "the law of damages as applied chapters being: Interest, Debtor and Creditor, Promissory Notes and Bills of Exchange, Bonds and Penal Obligations, Liquidated Damages, Vendor and Purchaser, Contracts for Services and for Particular Works, Agency and Suretyship. The first volume of this work states the gen We have examined this work throughout with considerable care, and especially the chapters under two topics-Vendor and Purchaser and Entirety of Causes of Action and Damagesand have found the text very clear and conties, of which there are some twelve thousand cise and abundantly sustained by the authoricited. It is a very valuable work. The printing and binding are splendidly done-a commendation that can be bestowed on all works issued by Callaghan & Co. A TREATISE ON THE LIMITATION OF ACTIONS AT LAW AND IN EQUITY. With an Appendix containing the English and American Statutes of Limitation. By H. G. WOOD, Author of "The Law of Nusances," "Master and Servant," "Fire Insurance," "Landlord and Tenant," etc. Boston: SOULE & BUGBEE. 1883. The numerous cases that appear in the reports interpreting statutes of limitation have been well digested by the learned author, and are given in such a manner that a ready reference can be had to any question already adjudicated. An appendix contains the English Statutes of Limitations and also the Statutes of nearly all our States and Territories. The publishers present the work in excellent print and binding. SUPREME COURT REPORTER. Being a Supplement to the Federal Reporter and containing all the Current Decisions of the Supreme Court of the United States. ROBERT DESTY, Editor. Vol. I. October, 1882. Part I. Saint Paul, Minn.: WEST PUBLISHING CO. The publishers promise to give all the decisions of the Supreme Court of the United States with syllabi and indices, and the first number, begining with the October term of the court, reports thirteen cases covering forty-eight pages. The editor, Mr. Desty, also edits the Federal Reporter, and the promise is made that each opinion published will be revised by the judge delivering it. The price is $3 a volume or $5 a year. the pressure of these circumstances, Haberman caused an execution to be issued upon the judgment which he held for the estate, had a levy made upon and sale of Zweidinger's goods and bid them in for $2,220.15. Upon resale these same goods brought him $5,400, and for this amount, in his second account, he charges himself as "realized out of stock in store." But it is remarkable that in this second account he omits to charge himself with the Zweidinger claim, which, in the previous account, he had credited as uncollected. There is also another remarkable circumstance in this transaction, that is, whilst in the present or third account, the appellant exhibits a balance against himself of but $1,062.67, his counsel admits that he is properly surchargeable with $12,665.94; and this seems to arise from the fact that he again, in this third account, omits the Zweidinger claim. For opinion of court below, see 29 PITTS- For this strange condition of affairs there may BURGH LEGAL JOURNAL, 63. be, and perhaps is, some explanation consistent Opinion by GORDON, J. Filed November 20, with the integrity of the executor, but if there 1882. is such an explanation we have not heard it. From the records of this case, which, we are Complaint is made that the Orphans' Court obliged to say, are not as full and perfect as they opened the second account for the purpose of might have been, we gather the following: surcharging the accountant with the profits Peter Haberman, the appellant, as executor of made on the goods purchased at the sheriff's Mrs. Gertrude Zweidinger, found himself in sale. But we cannot see that it did anything possession of the stock in trade of a musical of the kind. The appellant brought forward establishment which had been conducted by the the $5,400, charge in the second account as a testatrix during her life, with the aid of her credit on the uncharged Zweidinger claim. It minor son, John C. Zweidinger. This stock was thus became the duty of the court to inquire inventoried at the sum of $13,757.84, and was whether or not this demand should be allowed. turned over at that price to this minor son. The But of this, the amount of the bid at the sherexecutor seems, at that time, to have taken no iff's sale, whilst it was properly a credit on the security for the goods thus disposed of, but a judgment against Zweidinger, was certainly not mortgage on one Weiland which he afterwards, a credit to the executor for he did not pay over in a trade of his own with Weiland, satisfied. this bid to the estate, but it simply remained in But, subsequently, when John C. Zweidinger his hands in the shape of goods belonging to the came of age, Haberman took from him a judg-trust for which he was acting. ment note in amount equal to the inventory as above stated. He also, as it appears, received from him assignments of leases, notes, etc., on which he realized some $14,460. In addition to this he received in cash from Zweidinger some $2,700. It is thus apparent that the executor had, from time to time, in his possession money enough, and more than enough, to have paid the claim of the estate in full, and had he acted faithfully and discharged his trust as he ought to have discharged it, he would have delivered himself from the troubles which now beset him. But in the meantime he allowed Zweidinger to become largely indebted to himself, and upon this indebtedness he applied all the moneys which he had received. So it was, that in March, 1876, when Zweidinger's creditors began to press him, the debt of the estate was not paid. Under He, however, contends most earnestly, that, for the profit upon the resale of these goods, the difference between $5,409 and the amount of the bid, some $3,179, he ought to have credit. But by what means does he become entitled to such a credit? There is no doubt but that the goods thus bought belonged to the estate; as we have said, he did not pay for them; how then can he claim the benefit of the proceeds? A trustee cannot thus be allowed to speculate or trade with the money or goods of the estate; if he does, he must account for the profits which he may realize therefrom: Frank's Appeal, 9 P. F. Smith, 190; Harmstead's Appeal, 10 Id., 423; Robinett's Estate, 12 Ca., 174; Norris' Appeal. 21 P. F. Smith, 106. It is in effect, the servant setting up a claim to the proceeds of his master's goods. But it is claimed that, as he is surcharged with the whole of the Zweidinger debt, he ought to be entitled to this credit. We cannot understand how this proposition can be sustained, for the fact remains that the goods, out of which this profit was realized, were the goods of the estate, and when they were turned into money that belonged to the estate as much as did the chattels from which it was made. We cannot, therefore, see how the court below could have done other than it did, or that it surcharged the accountant with anything that did not fairly belong to the trust of which he had charge. The parties objected to taking the note in its altered condition, but Swartley said he would guarantee it. Rebecca then took the note and gave Swartley the money. This was all done without the knowledge or consent of Latshaw, who at no time agreed to it. The interest upon this note was paid for several years, as it fell due, by Swartley to Rebecca, the holder. But, on August 26, 1879, an action of debt upon the note was brought in the court below by Rebecca Hiltebeitel against John G. Swartley and Daniel Latshaw, and the case put at issue upon a plea of "non est factum." When it came on for trial the court below held that Rebecca The appeal is dismissed and decree affirmed could not recover as against the security, Latat costs of appellant. For appellant, Messrs. H. & G. C. Burgwin. Contra, Messrs. W. S. Purviance and Breil & Fitzpatrick. LATSHAW v. HILTEBEITEL. An alteration, in the Christian name of the payee of a note, made by the promissor after the note had been signed by himself and by A. as security, but without the knowledge or consent of said security, will not release said security from his liability on said note, said alteration being immaterial, and placing on him no responsibility to which he was not subject before the change. Error to the Court of Common Pleas of Montgomery county. Suit was brought in the court below upon the following note: [10 cent stamp.] $500. ROYER'S FORD, April 5th, 1869. One year after date we, or either of us, promise to pay Catharine Hiltebeitel or order Five Hundred Dollars with [5 cent stamp and 10 cent stamp.] . shaw, because the note was not drawn to her, nor was the contract made with her, and because the note was altered without the knowledge or consent of Latshaw, the security. Therefore, on motion of the plaintiff, the court allowed the suit and pleadings to be amended so that it stood "Catharine Hiltebeitel to the use of Rebecca Hiltebeitel against John G. Swartley and Daniel Latshaw." Upon the trial the evidence was that the alteration was made by Swartley without the knowledge or consent of Latshaw, and against the protest of Rebecca Hiltebeitel. But she agreed to take the note after Swartley guaranteed that it would be all right. There was no allegation that Latshaw either agreed to or knew of the alteration. A short time before suit was brought Rebecca asked Latshaw to pay this note. He then asked to see it, and when it was produced he told her that it was altered and he would not pay it. The above facts appeared by the evidence, but the court refused to submit it to the jury and directed a verdict for the plaintiff against both principal and security, for the full amount of the note. This writ of error was brought by Latshaw, the security. For plaintiff in error, Messrs. Theo. W. Rogers and Franklin March. Contra, Charles Hunsicker, Esq. Opinion by STERRETT, J. Filed October 2, 1882. JOHN G. SWARTLEY, [SEAL.] DANIEL LATSHAW. [SEAL.] John G. Swartley, in the year 1869, asked Daniel Latshaw to become his security for five hundred dollars, which he was going to borrow from Catharine Hiltebeitel. This Latshaw agreed to do, and the above note was drawn up at the house of Latshaw and signed by the parties. Mr. Latshaw was to have none of the money, he only was security for Swartley. The name of Catharine Hiltebeitel was inserted in There is no conflict of testimony as to any of the note, and it was completed at the time it the facts or circumstances material to this case. was signed. Mr. Swartley took it away, but It clearly appears that the Christian name of when he went for the money he was told that the payee in the note, as originally written, was the note should be to Rebecca Hiltebeitel; that erased and that of her sister interlined by Swartshe and not Catharine was to loan the money. ley, the principal obligor, solely for the purpose It was suggested by Rebecca and her brother of correcting a mistake, and thus making the that a new note should be procured, but Swart- instrument conform to what he and his surety, ley said that was all right, "he would just alter the plaintiff in error, undoubtedly intended at that." So Swartley with his pen erased the the time they executed it. Miss Rebecca Hiltename of Catharine and wrote Rebecca over it. | beitel, one of the sisters, had agreed to lend |