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is the amount of the judgment. The liability assignees stand on no higher plane. The lien on the bond is for that. (Second assignment of of the first execution was not lost by the sheriff error.)

taking the bond: Irons v. McQuewan, 3 Casey, The defendants requested the court, inter alia, 196; Sedgwick's Appeal, 7 W. & S., 263; Batto charge: (4) That the delivery of the property , dorff v. Focht, 8 Wright, 195. Its lien was, mentioned in the bond to the obligee therein therefore, transferred from the goods to the fund, named was a compliance with the conditions and the offer to prove that the proceeds were thereof, and therefore there can be no recovery paid on account of the other judgment should in this case. Answer.- We cannot affirm this have been received. The condition of the bond point, because the delivery of the property men was fulfilled by the delivery to the sheriff at the tioned in the bond to the obligee was not a de- second levy: Hastings v. Quigley, 2 Clark, 431; livery in pursuance of the obligation of the bond, Hagan v. Lucas, 10 Peters, 400. but was a compulsory delivery by virtue of a sheriff's sale on another writ issued upon another contra, Messrs. T. H. B. Lewis and G. L. judgment. It is the duty of the court to con- | Halsey. strue the meaning of papers and contracts be- The defendants having agreed to pay the tween parties, and we hold that the meaning of amount of the judgment in default of returning this bond was not that such a delivery, as oc- the property, are so bound, and cannot show the curred in this case, should satisfy its term. We value of the property: People v. Reeder, 25 X. refuse to affirm the point. (Fifth assignment Y., 304; Cornell v. Dakin, 38 Id., 258, 259; Bur. of error.)

| rall 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 marsbal. the law being in our judgment as we have stated, nothing has been shown by these defendants Opinion by MERCUR, J. Filed October 2, which will relieve them from liability under 1882. the bond. They are, therefore, liable for the This suit was on a bond executed under the amount of the debt in the judgment of the following circumstances: A fieri facias, in favor Messrs. Brown against Nautilus Slutter, that of the Browns against Slutter, was put in the being the condition of the bond. (Sixth assign- hands of the sheriff the latter part of March. ment of error.)

A second fieri facias, against the same defendUnder the views which the court has ex- ant in favor of Harvey, was put in his hands plained to you of the law of the case, it will be the fore part of April. Both executions were your duty to find for the amount of the original | returnable on the second Monday of May then claim, with interest added, in favor of the plain- next. On the 30th of April, with both executiff. (Seventh assignment of error.)

tions in his hands, the sheriff made a levy on Verdict and judgment for plaintiff' for $526.65; the execution in favor of the Browns upon perwhereupon defendants took this writ, assigning sonal property, Afterwards, on the same day, for error, inter alia, the rejection of defendants' the court granted a rule to show cause why the offer of evidence, the affirmance of plaintiff's judgment in favor of the Browns should not be point, the answer to the defendants' fourth point opened and the defendant let into a defense; at and that portion of the charge above cited. 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 The bond being for the delivery of specific in the possession of the defendant. Some few articles on demand, no action can be maintained days thereafter, the precise time is not shown, without proof of such previous demand: Ham- the bond in suit was executed by the plaintiffs ilton v. Calhoun, 2 Watts, 140; Lobdell 1. lIop- in error. The execution in favor of Harvey was kins, 5 Cowen, 516. The sheriff, having rend- also levied on the same property, but at what ered compliance with the bond impossible, is time the evidence fails to disclose. It is alleged, estopped from suing as legal plaintiff, and his and not denied, to bave been on the same day the bond was given. On the 16th of May the When the bond was executed it declared the property was sold by the sheriff on the execution property to be in the possession of the defendant of Harvey, and purchased by the Browns. in the execution. It was pertinent to prove it

The first specification of error is to the reject- | so remained until the day of sale. This was tion of evidence offered to prove, inter alia, that after the return day of each fieri facias. The the sheriff obtained possession of the property lien of the execution first in time was no more on the execution of Harvey on the morning of lost than the lien of the later one. The plainthe sale; that he retained the money produced tiff's in the first execution were purchasers at hy the sale until the September following; to the sale. They had full knowledge of the sum be followed by evidence that by the consent of produced thereby, and it must be assumed they the Browns he paid the money on the execution knew their right thereto. If they omitted to in favor of Harvey.

assert that right, and consented that the money The relevancy of this testimony depends on | be applied on the later execution, it was the whether the lien of the levy on the execution of voluntary transfer to another of money to which the Browns was divested by the order staying they were entitled. In equity, it must operate the writ, and the taking of the bond by the as a payment to them of that amount. The first sheriff. If the plaintiffs in the execution had and seventh assignments are sustained. voluntarily agreed to a stay thereof beyond the | It may be conceded that the alternative oblireturn day of the writ, their lien would have gation of the bond is greater than the sheriff been postponed to that of a subsequent execu- had a right to require. An obligation to deliver tion creditor guilty of no laches. This stay, the property when legally demanded, or to pay however, was not by act of the plaintiffs in the the value thereof, would have answered the just execution. It was by the court. The order of requirements of the law. The obligors appear the latter clearly does not show any intention to have voluntarily assumed a stronger obligato disturb the lien of the levy; but, on the con- tion, and they are bound thereby. It is very trary, to continue it and make it secure. It is probable that the value of the property was adclaimed, inasmuch as the sheriff took a bond, mitted to be fully equal to the amount of the with sureties, for the fortlicoming of the prop-execution, and therefore the alternative agreeerty on the payment of the execution, that this ment to pay the amount of the execution with operated as a discharge of the lien, and the sec- costs was considered of no practical importance. ond execution thereupon acquired a preferred | Be that as it may, no cause is shown why the right to the proceeds of the sale. We cannot obligors shall not be held to a fulfillment of consent to this conclusion. In the language of the obligation which they assumed: People v. the court, the purpose of the bond was to make Reeder, 25 N. Y., 302; Burrall v. Acker, 23 the sheriff "secured in his levy." It was not Wend., 606. The remaining assignments are, to divest or destroy the lien, but to niake it firm therefore, not sustained. and steadfast. In Sedgwick's Appeal, 7 W. & Judgment reversed and venire facias de novo S., 260, it was held that an execution stayed awarded. 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

IN EQUITY. on the lien to be different when the fieri facias be stopped by virtue of the command of a stat

The WESTERN PENNSYLVANIA RAILROAD ute than stayed by virtue of the common law

Co. v. The EVERGREEN RAILROAD CO. powers vested in the court. In either case security is given for the forthcoming of the prop

The Act of 19th June, 1871, only empowers courts to inerty; but it is not withdrawn from the custody

quire into the corporate powers conferred upon corof the law. Unless there be un reasonable delay porations, and does not authorize an inquiry in proin reclainiing the same, it is as free from the ceedings thereunder, as to whether the same have been reach of other processes as if it had remained

forfeited by any acts of the company. continuously in the hands of the sheriff: Ha- Opinion by STOWE, P. J. Filed January 29, gan v. Lucas, 10 Peters, 400. When the injunc- 1883. tion staying the writ be removed, the property The only exception insisted upon by plaincan be sold without a new levy thereon. This tiff's counsel, at the hearing of the exceptions property was sold in less than three weeks after to the master's report, involves the right of the execution in favor of the Browns was or- plaintiff to raise the question of the forfeiture dered to be stayed. There had been no unrea- of the franchises of the defendant company in sonable delay in reclaiming it on that execution. I this proceeding.

Court of Common Pleas, No. 1.


That a private party cannot, in the absence of

NEW BOOKS. statutory authority, take advantage of a forfeiture resulting from irregularities or departures A TREATISE ON THE LAW OF DAMAGES, embrac

ing an elementary exposition of the law, and also its from the charter-that it is a question for the application to particular subjects of Contract and Tort. sovereign power alone, which may waive it or

By J. G. SUTHERLAND. Vols. I and II. Chicago:

CALLAGHAN & Co. 1882. enforce it at pleasure, and that courts are bound

The first volume of this work states the gento regard it as a corporation so far as third persong are concerned, until it is dissolved by a

eral principles of the law of damages and conjudicial proceeding on behalf of the government

cludes with a chapter on pleading and procedure. that creates it, is too clearly established to call

It is a complete treatise in itself. The second for a citation of authorities, and is not ques

volume treats of "the law of damages as applied tioned by plaintiff's counsel.

to practical subjects," the subjects of the several But it is urged that the Act of 19th June, 1871,

chapters being : Interest, Debtor and Creditor,

Promissory Notes and Bills of Exchange, Bonds section 1, changes the law in regard to this mat

and Penal Obligations, Liquidated Damages, ter in this State. We do not consider that that act will properly bear any such construction.

Vendor and Purchaser, Contracts for Services It provides that, “In all proceedings in courts

and for Particular Works, Agency and Surety. of law or equity of this Commonwealth, in


We have examined this work throughout which it is alleged that the private rights of

with considerable care, and especially the chapindividuals or the rights or franchises of other |

ters under two topics—Vendor and Purchaser corporations are injured or invaded by the cor

and Entirety of Causes of Action and Damagesporation claiming to have a right or franchise

and have found the text very clear and conto do the act from which such injury results, it shall be the duty of the court in which such pro

cise and abundantly sustained by the authori

ties, of which there are some twelve thousand ceedings are had, to examine, inquire and as- |

The printcertain whether such corporation does in fact, cited. It is a very valuable work. possess the right or franchise to do the act from

ing and binding are splendidly done—a com

mendation that can be bestowed on all works which such alleged injury to private rights, or to the rights and franchises of other corpora- |

issued by Callaghan & Co. tions, results, and if such rights or franchises

A TREATISE ON THE LIMITATION OF ACTIONS have not been conferred upon such corporation, AT LAW AND IN EQUITY. With an Appendix such courts, if exercising equitable power, shall,

containing the English and American Statutes of Lim

itation. By H. G. Woon, Author of "The Law of Noby injunction, at suit of the private parties or

sances," "Master and Servant," "Fire Insurance,"

Landlord and Tenant," etc. Boston: SOULE & BCGother corporations, restrain such injurious acts," BEE. 1883. etc.

The numerous cases that appear in the reports It is true, the act does make it the duty of

interpreting statutes of limitation have been the court to inquire whether the power or fran

well digested by the learned author, and are chise does in fact exist in the corporation; and while this alone might bear the interpretation

given in such a manner that a ready reference

can be had to any question already adjudicated. claimed by plaintiff, the next portion of the

An appendix contains the English Statutes of sentence sets at rest all possible doubt by declar

Limitations and also the Statutes of nearly all ing, “And if such rights and franchises bave

our States and Territories. The publishers prenot been conferred upon such corporation, then

sent the work in excellent print and binding. the court shall interfere by injunction.” And thus we see by the very terms of the act it is

SUPREME COURT REPORTER. Being a Supplement only the question as to whether the charter to the Federal Reporter and containing all the Current

Decisions of the Supreme Court of the United States. con fers the powers claimed that gives the court ROBERT DESTY, Editor. Vol. I. October, 1882. Part I. authority to enjoin, and the other questions

Saint Paul, Minn.: WEST PUBLISHING Co. arising out of a loss of franchises by the acts of The publishers promise to give all the decisthe corporation are not involved.

ions of the Supreme Court of the United States This conclusion renders the consideration of with syllabi and indices, and the first number, the facts found by the master in regard to the begining with the October term of the court, realleged forfeiture of charter unnecessary; and ports thirteen cases covering forty-eight pages. for the reasons above stated we dismiss the ex. The editor, Mr. Desty, also edits the Federal ceptions.

Reporter, and the promise is made that each For plaintiff, Messrs. Hampton & Dalzell. opinion published will be revised by the judge

Contra, Messrs. D. T. Watson and F. M. delivering it. The price is $3 a volume or $5 a Magee.


Pittsburgh Legal Journal.

the pressure of these circumstances, Haberman

caused an execution to be issued upon the judgESTABLISHED 1853.

ment which he held for the estate, had a levy E. Y. BRECK,

Editor. made upon and sale of Zweidinger's goods and X. S., Vol. XIII. l

bid them in for $2,220.15. Upon resale these (), S., Vol. XXX.

No. 28.

same goods brought him $.5, 100, and for this PITTSBURGH, PA., FEBRUARY 21, 1883,

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 Supreme Court, Penn'a.

omits to charge himself with the Zweidinger

claim, which, in the previous account, he had PETER HABERMAN'S APPEAL.

credited as uncollected. There is also another

remarkable circumstance in this transaction, H., as executor, bad a claim against Z. Subsequently H. individually became a voluntary creditor of 2., who

that is, whilst in the present or third account, became insolvent and assigned certain assets generally the appellant exhibits a balance against himself to H. Held, that the trust claim had a right of prefer- of but $1,062.67, his counsel adınits that he is ence in respect of these assets.

properly surchargeable with $12,665.94; and this Appeal from the decree of the Orphans' Court

seems to arise from the fact that he again, in of Allegheny county.

this third account, omits the Zweidinger claim. For opinion of court below, see 29 PITTS

For this strange condition of affairs there may BERGHI 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 $13,757.81, 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 judge trust for which he was acting. ment note in amount equal to the inventory as He, however, contends most earnestly, that, above stated. He also, as it appears, received for the profit upon the resale of these goods, the from him assignments of leases, notes, etc., on difference between $.),100 and the amount of the which he realized some $14,160. In addition to bid, some $3,179, he ought to have credit. But this he received in cash from Zweidinger some by what means does he become entitled to such $2,700. It is thus apparent that the executor a credit? There is no doubt but that the goods had, from time to time, in his possession money thus bought belonged to the estate; as we have enough, and more than enough, to have paid said, he did not pay for them; how then can he the claim of the estate in full, and had he acted claim the benefit of the proceeds? A trustee faithfully and discharged his trust as he ought I cannot thus be allowed to speculate or trade to have discharged it, he would have delivered with the money or goods of the estate; if he himself from the troubles which now beset him. does, he must account for the profits which he But in the meantime he allowed Zweidinger to may realize therefrom: Frank's Appeal, 9 P. become largely indebted to himsell, and upon F. Smith, 190; Harmstead's Appeal, 10 Id., 423; this indebtedness he applied all the moneys Robinett's Estate, 12 Ca., 174; Norris' Appeal. which he had received. So it was, that in March, 21 P. F. Smith, 106. It is in effect, the servant 1876, when Zweidinger's creditors began to press setting up a claim to the proceeds of his master's him, the debt of the estate was not paid. Under | goods.


But it is claimed that, as he is surcharged with The parties objected to taking the note in its the whole of the Zweidinger debt, he ought to altered condition, but Swartley said he would be entitled to this credit. We cannot under- guarantee it. Rebecca then took the note and stand how this proposition can be sustained, gave Swartley the money. This was all done for the fact remains that the goods, out of which without the knowledge or consent of Latshaw, this profit was realized, were the goods of the who at no time agreed to it. The interest upon estate, and when they were turned into money this note was paid for several years, as it fell that belonged to the estate as much as did the due, by Swartley to Rebecca, the holder. chattels from which it was made.

But, on August 26, 1879, an action of debt We cannot, therefore, see how the court below upon tiie note was brought in the court below by could have done other than it did, or that it Rebecca Hiltebeitel against John G. Swartley surcharged the accountant with anything that and Daniel Latshaw, and the case put at issue did not fairly belong to the trust of which he upon a plea of non est factum." When it came had charge.

on for trial the court below held that Rebecca The appeal is dismissed and decree affirmed could not recover as against the security, Lat. at costs of appellant.

shaw, because the note was not drawn to her, por For appellant, Messrs. H. & G. C. Burgwin. was the contract made with her, and because the

Contra, Messi's. W. S. Purviance and Breil & note was altered without the knowledge or conFitzpatrick.

sent of Latshaw, the security. Therefore, on

motion of the plaintiff, the court allowed the LATSHAW v. HILTEBEITEL.

suit and pleadings to be amended so that it stood

“Catharine Hiltebeitel to the use of Rebecca An alteration, in the Christian name of the payee of a Hiltebeitel against John G. Swartley and Dannote, made by the promissor after the note had been

iel Latshaw." Upon the trial the evidence was signed by himself and by A. as security, but without the knowledge or consent of said security, will not re

that the alteration was made by Swartley withlease said security from his liability on said note, said out the knowledge or consent of Latsbaw, and alteration being immaterial, and placing on him no

against the protest of Rebecca Hiltebeitel. But responsibility to which he was not subject before the

she agreed to take the note after Swartley guarchange.

anteed that it would be all right. There was no Error to the Court of Common Pleas of Mont

allegation that Latshaw either agreed to or knew gomery county.

of the alteration. A short time before suit was Suit was brought in the court below upon the

brought Rebecca asked Latshaw to pay this following note:

| note. He then asked to see it, and when it was [10 cent stamp.] $500.

ROYER's Ford, April 5th, 1869. produced he told her that it was altered and he One year after date we, or either of us, promise to pay would not pay it. The above facts appeared by Rebca Catharine Hiltebeitel or order Five Hundred Dollars with interest of five and a half per cent. per annum without defalcation for value received.

to the jury and directed a verdict for the plain(5 cent stamp and 10 cent stampil

tiff against both principal and security, for the John G. SWARTLEY, (SEAL.]

DANIEL LATSHAW. SEAL) | full amount of the note. John G. Swartley, in the year 1869, asked This writ of error was brought by Latshaw, Daniel Latshaw to become his security for five the security. bundred dollars, which he was going to bor- ! For plaintiff in error. Messrs. Theo. W. Rogers row from Catharine Hiltebeitel. This Latshaw and Franklin March. agreed to do, and the above note was drawn up Contra, Charles Hunsicker, Esq. at the house of Latsbaw and signed by the parties. Mr. Latshaw was to have none of the Opinion by STERRETT, J. Filed October 2, money, he only was security for Swartley. The | 1882. 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

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