therefore, is whether other legislation has so far preserved the vitality of this association beyond the expiration of its general corporate powers that it may collect this mortgage? nor did it "renew" or "extend" the time of their existence according to the obvious meaning of the Constitution. The clause thereof quoted is in a section which relates to corpora|tions "with banking or discounting privileges,” and not to building or loan associations: Schober v. Accommodation Saving Fund and Loan Association, 11 Casey, 223. Its purpose was to prevent improper combinations from obtaining privileges detrimental to the public welfare. It was not to prevent the Legislature from giving to other corporations which had fulfilled their general purposes, authority to collect and distribute their remaining assets. The latter authority is all the Act of 186) professes to do. It does not provide for any renewal of the original purposes of such corporations. It gives no au The Act of 30th of April, 1864, Purd. Dig., 186, pl. 16, declares, in all cases where any savings fund, building or loan association, incorporated by the Court of Common Pleas of the county of Philadelphia, may have become seized or possessed of any real estate or entitled to the same, and the term for which the charter may have been granted shall have expired without their having made conveyance thereof, it shall and may be lawful for such association to sell and dispose of such real estate, and make title therefor, as fully and as effectually as if their charter had not expired. The first section of the Act of 26th of April, 1869, Purd. Dig., 187, pl. 18 (P.thority to require monthly contributions, to asL., 1223), declares all building, saving and loan associations may bring and maintain suits, and carry on those already brought, in their corporate names, on all judgments, bonds, mortgages or other evidences of debt or obligations due them, or for monthly dues, interest or any demand owing to them, and proceed to judgment and execution, notwithstanding their charter may have expired; and the officers last elected, or the survivors of them, shall be the officers to represent said corporations for such purpose. Section 3 declares: "This act shall only be construed so as to enable said associations to collect up and divide their assets, and wind up their affairs, and not to allow them to transact new business; provided, that this act shall only apply to the city of Philadelphia." sess dues, impose fines, make loans or issue stock. It merely provides a legal remedy to enforce a just and moral obligation. This the Legislature may do: Lycoming v. Union, 3 Har., 166. A retrospective act which merely touches the remedy, by removing a technical impediment, is not unconstitutional: Hinckle v. Riffert, 6 Barr, 196. Such a statute is valid as between parties and volunteers: Bolton v. John, 5 Id., 145. This action is solely between the parties to the mortgage. It is true, a deed was given in evidence showing the plaintiff in error had conveyed the land to one Henry Cooper, yet no evidence of the payment of purchase money was shown, other than appeared on the deed. The deed bears date the 19th of April, 1861, when the remedy on the mortgage was unThe injustice and confusion that would arise | doubted. A purchaser took then with full from prohibiting this class of associations from knowledge of the existence and validity of the collecting their assets and distributing them mortgage. He is no party to the record in this among those entitled thereto, after the expira-case, and if he has a superior right to the proption of their charters, were clearly manifest.erty, he is not barred from asserting it by this To cure these evils, these remedial acts were judgment. passed. Nothing therein indicates that the land to be sold and conveyed, nor the property mortgaged, must be situated in Philadelphia. It is sufficient if the association which holds the land or the mortgage be incorporated and located there. It is contended, if such be the case, and the intention of the statute was to authorize the maintenance of this action, that the act is in conflict with the last clause of Article I, Section 25, of the Constitution of 1838, which declares, "no law hereafter enacted shall create, renew or extend the charter of more than one corporation." And further, that the contract had become extinct, and could not be reinstated by legislative power. The Act of 1869 did not "create" charters, It was said in Erie and Northeast Railroad Co. v. Casey, 2 Casey, 287, "when a corporation is dissolved by a repeal of its charter, the Legislature may appoint, or authorize the Governor to appoint, a person to take charge of its assets for the use of its creditors and stockholders.” The opinion likens it to the appointment of an administrator to a dead man or of a committee for a lunatic. Such is substantially all the Act of 1869 provides for, and the manner in which the assets shall be collected is within the legis lative discretion. The learned judge committed no error. Judgment affirmed. For plaintiff in error, Messrs. Wm. & J. C. Stucker. Contra, Lewis B. Thompson, Esq. Pittsburgh Legal Journal. ESTABLISHED 1853. E. Y. BRECK, : : : N. S.. Vol. XIII. 0. S., Vol. XXX. PITTSBURGH, PA., APRIL 25, 1883. Supreme Court, Penn’a. JAFFRAY & CO.'S APPEAL. Editor. No. 37. A service of a writ of foreign attachment by the sheriff is good, where he states that he went to the store, and, in the presence of two credible persons, declared that he attached the stock of goods in the store, consisting of silks, etc., and then and there made known the con in turn was answerable, under the fiftieth section of the Act of 1836, for the forthcoming of the property to answer and abide the judgment of the court. About these facts, however, thus set forth, there is no dispute. It is a fact that the deputy sheriff did, at the time stated, go into the store, and there, with the goods in sight and fully within his power, execute the writ as set forth in his return. This was a seizure to all intents and purposes. As was said by SERGEANT, Justice, in Paxton v. Steckel, 2 Barr, 93, the levying the attachment may be done without either handling the goods or taking them into possession, and the property fully bound by it, and be in the officer's power, and the owner's possession thereby divested. Now, the error in the court below seems to have arisen tents of said writ to A. and B., who were found in pos- from a misunderstanding of the word "seized,” session of said goods. as used in the cases by it cited; as in the cases of the Pennsylvania Railroad Co. v. Pennock, Appeal from the decree of the Court of Com-1 P. F. Smith, 244, and Morgan v. Watmough, mon Pleas of Crawford county. Opinion by GORDON, J. Filed January 2, 1883. Able and ingenious as is the opinion of the learned judge of the court below, it has failed to convince us of the rectitued of the legal position which he therein assumes. The question is a very simple one, and one upon which there is no real difference of authority; indeed, there can be none, so far as the State of Pennsylvania is concerned, for the whole matter is fixed and controlled by the provisions of the Act of Assembly. The question is, were the goods in controversy regularly seized by the sheriff of Crawford county on the writ of foreign attachment of Jaffray & Co.? If they were so seized, the present contention must be determined in favor of the appellants. In order, then, to settle this matter, we must turn to the sheriff's return as indorsed on the writ; but when we do so find in this a strict compliance with the terms of the Act of Assembly. If it be, as stated by this return, that the sheriff, by himself or deputy, went to the store of Deforest Weld, in the city of Meadville, on the 1st of March, 1881, at 3:53 P. M., and there declared, in the presence of F. W. Ellsworth and L. H. Lenheim, two credible persons of the neighbor- | hood, that he attached the stock of goods in the store, consisting of silks, etc., and that he then and there made known the contents of said writ to Byres and Trawin, who were found in the possession of said goods; then, from that moment, this property, in the language of the act, was bound by the writ and in the officer's power, and from that moment Byres and Trawin became the sheriff's bailees, and to him they were responsible for the care of the goods, as he 5 Wharton, 127. But in these, as in all the other cases thus cited, where seizure and possession are insisted upon, it will be seen by a careful reading of them that no exception has ever been taken to a seizure such as the one now under consideration; on the other hand, that is exactly the one that is said to be required, and the one which, by force of the act, draws the possession to it. In the first of the two cases last mentioned, Mr. Justice THOMPSON says: "Now, it is undoubted that the property claimed to be attached in this case was susceptible of seizure had it been present; but it was not, and nothing was done in attaching it that the act requires. There was no seizure and declaration in the presence of witnesses, and if this were necessary to a service, as the act declares, the property was not bound by the writ. If the property was not bound it is not easy to see how any person would be bound to answer as garnishee. The first thing was to serve the property, so to speak, the next the person in whose hands it should happen to be found. But here the order was reversed, and rather more; the garnishee was served first, and the property not served at all." But certainly this language cannot be applied to the service of the writ under discussion, where every particular of the act relating to the levy was complied with, and in consequence of which the sheriff was vested with the possession of the goods, and the defendant's possession as completely divested as though the officer had at once carted them away from the premises on which they were found. So in the second of those cases, Mr. Justice SERGEANT speaks in this manner: "The sheriff is bound to seize the goods as in other cases, and in taking them into his actual possession until security was given, he was complying with the positive directions of the act." Here, what the learned justice means by the word "seize" is made obvious by his assertion that the "seizure must be made as in other cases;" that is, on an execution. But we all know what this means when applied to ordinary execution process. The sheriff must make his levy in view of the goods, but he need not carry them away. He may even leave them in the possession of the defendant, and thus constitute him his bailee. Yet in Troville v. Tilford, 6 Watts, 468, it is said, "the officer, in making the levy on the goods of the defendant, should make an actual seizure, but seizing part of the goods in the name of the whole, on the premises, is a good seizure of the whole." "being the same property attached by me as the property of Deforest Weld." This, of course, binds both the sheriff and his privies, the plaintiffs in the writs, and subordinates those writs to the previous attachment. It follows that, under any aspect of this case, the decree of the court below, sustaining the exception to the auditor's report was erroneous and must be reversed. The decree is now reversed at the costs of the appellecs, and it is ordered that the auditor's | report be restored and affirmed, and that distribution be made in accordance with it. For appellants, Messrs. John P. Vincent, R. Brown and J. B. Brawley. Contra, Messrs. F. B. Guthrie and D. T. Watson. An administrator or other person sued in a representative capacity, and against whom a judgment has been rendered by a justice of the peace on a claim for manual labor, has a right to appeal without taking the oath required by the Act of April 20, 1876. McConnel v. Morton, 1 Jones, 398, distinguished. Error to the Court of Common Pleas of Bedford county. But the counsel for the appellees seriously KOONTZ'S Adm'r v. HOWSNARE and Wife. contend that the latter clause of the fiftieth section of the act should be made part of the return. But, we answer, the statute does not direct an act so useless and illogical. As well might the first clause be made part of the return, though it is merely declarative of the effect of the levy. In like manner is the latter clause but declarative of the sheriff's responsibility with reference to the goods which the law, by virtue of the levy, has put into his possession or power. The error is found in the attempt to make that language directory which is purely descriptive and definitive. Where the property is of a particular character, that is, where it is of a kind which is susceptible of manual seizure, the sheriff must, at his own peril, so secure it that it may be forthcoming on the final disposition of the case. But how he is to secure it is not said, except that, inter alia, he may for that purpose take the bond of the garnishee. All this, however, is no more than the responsibility cast upon the sheriff as to goods seized upon a fieri facias. Opinion by STERRETT, J. Filed October 2, 1882. The controlling question in this case is, whether an administrator, or other person sued in a representative capacity, and against whom a judgment has been rendered by a justice of the peace on a claim for manual labor, has a right to appeal without making the oath and giving the security prescribed by the first section of the Act, entitled "An Act regulating appeals from the judgment of justices of the peace and aldermen in this Commonwealth, for the wages of manual labor," etc., approved April 20, 1876, P. L., 43. As we have before intimated, after the seizure While the phraseology of the act itself is suffiof the goods in controversy the garnishee be- ciently comprehensive to include personal repcame the bailee of the sheriff: Shriver v. Har-resentatives, we think they are not within its baugh, 1 Wright, 37; and thus was his posses-spirit, when it is properly construed in connecsion continued until he chose otherwise to secure the property, and which he did so otherwise secure by taking it into his own possession on the very day of the seizure, and within four or five hours after it was made. There is, therefore, nothing left but the conclusion that all things that were done in the premises were done regularly and bound the goods in controversy, and so the appellants became entitled to their proceeds. Finally, if Paxton's Appeal, 13 Wr., 195, is law, we cannot see how the appellees can avoid the return on their own writs of fieri facias. The indorsement with the levies is tion with previous legislation on the subject of appeals from justices of the peace, especially the general Act of 1810, in which they are expressly excepted from the provision requiring appellants to give security. These acts are in pari materia, and should be construed together. We can readily understand why the Legisla ture should require those defending, in their own right, against claims for manual labor, to make the affidavit and give security, not only for costs, but also for the claim; but it would be extremely difficult to assign a satisfactory reason for applying the same provision to those sued in a representative capacity and previously payment of costs and entering into recogniexempt from giving security in form. The rea-zance, but it was silent as to the making of an sons which induced the exception contained in affidavit. The court says: "This exception the Act of 1810, apply with greater force to the does not embrace the making of the affidavit, Act of 1876; and in the absence of a clearly ex- and the old maxim is, that the exception proves pressed intention to the contrary, we are con- the rule; that is, makes the general rule good strained to conclude that the act does not apply so far as the exception does not reach." More to personal representatives. In thus limiting recently, in Murray v. Sharp, 22 P. F. Smith, the operation of the act to those defending in 360, it was held that executors and administratheir own right against the class of claims tors may appeal from awards of arbitrators mentioned therein, we give it all the effect the without payment of costs or entering into reLegislature intended, and certainly all that it cognizance, although they may have taken out reasonably should have. the rule of reference. This view accords with the construction given by this court to the Act of July 26, 1842, P. L., 431, providing for appeals from Nisi Prius to the court in banc, which requires the party appealing to give absolute security for the payment of all damages and costs in case the proceedings were affirmed. In Maule v. Shaffer, 4 | Barr, 404, on a motion to quash an appeal taken by executors without giving security, it was held they were not within the act; and Mr. Justice KENNEDY, referring to the seventh and eighth sections of the Act of June 16, 1836, the latter of which exempts persons suing or defending in a representative capacity from giving security on a writ of error, says: "Whether the Legislature had these sections of the act in view or not at the time they gave the right of appeal from a judgment of the Court of Nisi Prius, we feel satisfied that they never could have intended to require an executor or administrator to give the security contemplated by the Act of 1842. It would be most highly unjust and unreasonable to require such security of an executor or administrator, who may have no assets of the estate in his hands wherewith to pay damages and costs. The inevitable consequence would be, in almost every case where a judgment shall be rendered against an executor as such, though highly unjust and illegal, that it would have to be submitted to." It also accords with the judicial construction given to rules of court requiring, in general terms, the filing of affidavits of defense. It has been uniformly held that they do not apply to persons defending in a representative capacity: Umberger v. Zearing, 8 S. & R., 163; Reed v. Bush, 5 Binney, 455. The reason given is that it is not to be supposed that an executor has sufficient knowledge of his testator's affairs to justify him in making oath on the subject. McConnel v. Morton, 1 Jones, 398, is cited as an authority on the other side. An examination of the case will show that there was in the act then under consideration an express exception in favor of personal representatives as to The order should be reversed on the first, third and fifth assignments. The remaining assignments are not sustained. The order of court striking off the appeal is reversed and set aside, and appeal reinstated. For plaintiff in error, Messrs. Russell & Longenecker. Contra, J. M. Reynolds, Esq. THACKARA v. MINTZER. Where by the provisions of a testator's will the income of his estate in the hands of his testamentary trustee was not to be liable in any way or manner for his son's debts, etc., such fund cannot be attached for alimony due the son's wife. As to the nature of the remedy the wife would have after the fund was paid over to the husband, not decided, Error to the Court of Common Pleas, No. 2, of Philadelphia county. Opinion by MERCUR, J. Filed October 2, 1882. The plaintiff in error is the executor and testamentary trustee of Wm. G. Mintzer, under whose will this contention arises. After several specific legaties the testator devised to the plaintiff in error the residue of his real and personal estate in trust, inter alia, to let, lease and demise the real estate, and to keep invested the personal estate, to collect the rents, interest, income and profits thereof, and after paying therefrom all all the expenses necessary to keep the real estate in repair, and all charges and expenses, to make distribution of the remaining net income, and to pay over the one-third part thereof to his son George, for and during all the term of his natural life, and on his death remainder over to others named. The testator proceeds to declare, “it is expressly my will that the income which I have heretofore directed to be paid to my children, respectively, is to be for their respective sole, separate and exclusive use and benefit * * * so that the same shall not be in any manner pledged, appropriated, disposed of or parted with by anticipation, or before the same shall have accrued and become payable, nor be sub ject to execution, attachment or sequestration, for any debts or liabilities whatever." It is now attempted to collect by attachment execution, against the plaintiff in error, as garnishee of George, the sum now due to the latter under the will of his father. An unbroken line of cases from Fisher v. Taylor et al., 2 Rawle, 33, down to 7 Norris, 276, has settled the law in this Commonwealth, that a father may, by creating a trust in proper form, provide for a son without exposing his bounty to the debts or improvidence of the beneficiary. In the will before us the testator, in due and legal form, has expressed such intent in clear and unmistakeable language. He created in the plaintiff in error an active trust. The fund in question was to be kept by him for "the sole, separate and exclusive use and benefit" of George, and not be subject in the hands of the trustee for "any debts or liabilities whatever" of George. It is contended that the character of the debt in this case, on which the attachment issued, is not within the meaning of the testator's exemption. It is for alimony awarded by the court to the wife of George, after a verdiet and judgment against him, for a divorce a mensa et thoro, in her favor. The attachment issued on a debt of record fixed by judgment and decree. Whether the judgment be for a breach of contract or for a debt, matters not. The testator recognized no such distinction. He impressed on the fund exemption from all kinds of legal process against the trustee, not only for debts, but also for "all liabilities whatever" of George. Language broader and more comprehensive could not be used. The testator made no distinction between the character of the obligations which might rest on George. He designed to cover all, legal, equitable and moral. If we depart from the clearly expressed will of the testator in this respect, we make a new will instead of enforcing the one he made. The question whether George should justly apply the money after it has reached his hands, to the discharge of this obligation, or in case he refuses so to do, what form of legal proceedings may be instituted against him, does not now arise. clause of the will. The learned judge, therefore, Judgment reversed and judgment in favor of DU BREE v. ALBERT et al. An action of ejectment cannot be maintained by the Opinion by MERCUR, J. Filed October 2, 1882. We are dealing solely with the case of legal proceedings against the trustee instituted for the purpose of intercepting his action and de-In February, 1871, the whole land, of which the feating the trust stamped on the fund by the donor. plaintiff claims a right to recover the undivided fourth, was conveyed to John McMath, Isaac As the wife of George has become one of his Reese, Benjamin F. Reese, James Hammond, creditors, and seeks to enforce her claim by ad- Thomas Hammond, William Albert, George verse process against the trustee, the debt as well | Albert and Henry Albert, as copartners, comas the proceedings, comes within the prohibitory posing the firm of the Woodland Fire Brick |