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therefore, is whether other legislation has so far nor did it "renew" or "extend” the time of preserved the vitality of this association beyond their existence according to the obvious meanthe expiration of its general corporate powers ing of the Constitution. The clause thereof that it may collect this mortgage?

quoted is in a section which relates to corporaThe Act of 30th of April, 1864, Purd. Dig., 186, tions “with banking or discounting privileges," pl. 16, declares, in all cases where any savings and not to building or loan associations: Schofund, building or loan association, incorporated ber v. Accommodation Saving Fund and Loan by the Court of Common Pleas of the county of Association, 11 Casey, 2:23. Its purpose was to Philadelphia, may have become seized or pos- prevent improper combinations from obtaining sessed of any real estate or entitled to the same, privileges detrimental to the public welfare. It and the term for which the charter may have was not to prevent the Legislature from giving been granted shall have expired without their to other corporations which had fulfilled their having made conveyance thereof, it shall and general purposes, authority to collect and dismay be lawful for such association to sell and tribute their remaining assets. The latter audispose of such real estate, and make title there- thority is all the Act of 186:) professes to do. It for, as fully and as effectually as if their charter does not provide for any renewal of the original had not expired. The first section of the Act purposes of such corporations. It gives no auof 26th of April, 1869, Purd. Dig., 187, pl. 18 (P. thority to require monthly contributions, to asL., 12:23), declares all building, saving and loan sess dues, impose fines, make loans or issue associations may bring and maintain suits, and stock. It merely provides a legal remedy to encarry on those already brought, in their corpo-force a just and moral obligation. This the Legrate names, on all judgments, bonds, mortgages islature may do: Lycoming v. Union, 3 Har., 166. or other evidences of debt or obligations due A retrospective act which merely touches the them, or for monthly dues, interest or any de- remedy, by removing a technical impediment, mand owing to them, and proceed to judgment is not unconstitutional: Hinckle v. Riffert, 6 and execution, notwithstanding their charter Barr, 196. Such a statute is valid as between may have expired; and the officers last elected, parties and volunteers: Bolton v. John, 5 Id., or the survivors of them, shall be the officers to 145. This action is solely between the parties represent said corporations for such purpose. to the mortgage. It is true, a deed was given Section 3 declares: “This act shall only be con- in evidence showing the plaintiff in error had strued so as to enable said associations to collect conveyed the land to one Henry Cooper, yet no up and divide their assets, and wind up their evidence of the payment of purchase money affairs, and not to allow them to transact new was shown, other than appeared on the deed. business; provided, that this act shall only The deed bears date the 19th of April, 1861, apply to the city of Philadelphia."

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 bas 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 It was said in Erie and North-ast Railroad land to be sold and conveyed, nor the property Co. v. Casey, 2 Casey, 287, “when a corporation mortgaged, must be situated in Philadelphia. is dissolved by a repeal of its charter, the LegisIt is suflicient if the association which holds lature may appoint, or authorize the Governor the land or the mortgage be incorporated and to appoint, a person to take charge of its assets located there.

for the use of its creditors and stockholders." It is contended, if such be the case, and the The opinion likens it to the appointment of an intention of the statute was to authorize the administrator to a dead man or of a committee maintenance of this action, that the act is in for a lunatic. Such is substantially all the Aet conflict with the last clause of Article I, Section of 1869 provides for, and the manner in which 25, of the Constitutiou of 1838, which declares, the assets shall be collected is within the legis"no law hereafter enacted shall create, renew lative discretion. or extend the charter of more than one corpora- The learned judge committed no error. tion." And further, that the contract had be

Judgment affirmed. come extinct, and could not be reinstated by For plaintiff in error, Messrs. Im, & J. C. legislative power.

The Act of 1869 did not "create" charters, Contra, Lewis B. Thompson, Esq.

Pittsburgh Legal Journal.





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 E. Y. BRECK,

of the court. About these facts, however, thus

set forth, there is no dispute. It is a fact that V.S., Vol. XIII. 0. S., Vol. XXX.

No. 37. }

the deputy sheriff did, at the time stated, go

into the store, and there, with the goods in sight PITTSBURGH, PA., APRIL 25, 1883.

and fully within his power, execute the writ as

set forth in his return. This was a seizure to all Supreme Court, Penn'a. intents and purposes. As was said by SER

GEANT, Justice, in Paxton v. Steckel, 2 Barr, 93, JAFFRAY & CO.'S APPEAL.

the levying the attachment may be done without either handling the goods or taking them

into possession, and the property fully bound A scrvice of a writ of foreign attachment by the sheriff is good, where he states that he went to the store, and, by it, and be in the officer's power, and the in the presence of two credible persons, declared that owner's possession thereby divested. Now, the he attached the stock of goods in the store, consisting error in the court below seems to have arisen of silks, etc., and then and there made known the contents 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 ('om

1 P. F. Smith, 244, and Morgan v. Watmough, mon Pleas of Crawford county.

ū Wharton, 127. But in these, as in all the Opinion by GORDON, J. Filed January 2, 1883. other cases thus cited, where seizure and posses

Able and ingenious as is the opinion of the sion are insisted upon, it will be seen by a carelearned judge of the court below, it has failed ful reading of them that no exception has ever to convince us of the rectitued of the legal posi- been taken to a seizure such as the one now untion which he therein assumes.

der consideration; on the other hand, that is The question is a very simple one, and one exactly the one that is said to be required, and upon which there is no real difference of author- the one which, by force of the act, draws the ity; indeed, there can be none, so far as the State possession to it. In the first of the two cases of Pennsylvania is concerned, for the whole mat- last mentioned, Mr. Justice THOMPSON says: ter is fixed and controlled by the provisions of “Now, it is undoubted that the property claimed the Act of Assembly. The question is, were the to be attached in this case was susceptible of goods in controversy regularly seized by the seizure had it been present; but it was not, and sheriff of Crawford county on the writ of foreign nothing was done in attaching it that the act attachment of Jaffray & Co.? If they were so requires. There was no seizure and declaration seized, the present contention must be deter- in the presence of witnesses, and if this were mined in favor of the appellants. In order, necessary to a service, as the act declares, the then, to settle this matter, we must turn to the property was not bound by the writ. If the sheriff's return as indorsed on the writ; but property was not bound it is not easy to see how when we do so find in this a strict compliance any person would be bound to answer as garwith the terms of the Act of Assembly. If it nishee. The first thing was to serve the propbe, as stated by this return, that the sheriff, by erty, so to speak, the next the person in whose himself or deputy, went to the store of Deforest | hands it should happen to be found. But here Weld, in the city of Meadville, on the 1st of the order was reversed, and rather more; the March, 1881, at 3:53 P. V., and there declared, garnishee was served first, and the property not in the presence of F. W. Ellsworth and L. H. served at all.” But certainly this language canLenheim, two credible persons of the neighbor- not be applied to the service of the writ under hood, that he attached the stock of goods in the discussion, where every particular of the act restore, consisting of silks, etc., and that he then lating to the levy was complied with, and in and there made known the contents of said writ consequence of which the sheriff was vested to Byres and Trawin, who were found in the with the possession of the goods, and the defendpossession of said goods; then, from that mo-ant's possession as completely divested as though ment, this property, in the language of the act, the officer had at once carted them away from was bound by the writ and in the officer's the premises on which they were found. So power, and from that moment Byres and Trawin in the second of those cases, Mr. Justice SERbecame the sheriff's bailees, and to him they GEANT speaks in this manner: "The sheriff' were responsible for the care of the goods, as he is bound to seize the goods as in other cases, and in taking them into his actual possession until being the same property attached by me as security was given, he was complying with the the property of Deforest Weld.” This, of course, positive directions of the act.” Here, what the binds both the sheriff and his privies, the plainlearned justice means by the word "seize" is tiff's in the writs, and subordinates those writs made obvious by his assertion that the "seizure to the previous attachment. It follows that, must be made as in other cases ;' that is, on an under any aspect of this case, the decree of the execution. But we all know what this means court below, sustaining the exception to the when applied to ordinary execution process. auditor's report was erroneous and must be The sheriff must make his levy in view of the reversed. goods, but he need not carry them away. He The decree is now reversed at the costs of the may even leave them in the possession of the appellees, and it is ordered that the auditor's defendant, and thus constitute him bis bailee. report be restored and affirmed, and that disYet in Troville v. Tilford, 6 Watts, 468, it is said, tribution be made in accordance with it. "the officer, in making the levy on the goods of


For appellants, Messrs. John P. Vincent, R. the defendant, should make an actual seizure, Brown and J. B. Brawley. but seizing part of the goods in the name of the

Contra, Messrs. F. B. Guthrie and D. T. whole, on the premises, is a good seizure of the

Watson. whole."

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. An administrator or other person sued in a representaBut, we answer, the statute does not direct an tive capacity, and against whom a judgment has been act so useless and illogical. As well might the

rendered by a justice of the peace on a claim for manual

labor, has a right to appeal without taking the oath first clause be made part of the return, though

required by the Act of April 20, 1876. it is merely declarative of the effect of the levy.

McConnel !. Morton, 1 Jones, 398, distinguished. In like manner is the latter clause but declara

Error to the Court of Common Pleas of Bedtive of the sheriff's responsibility with reference to the goods which the law, by virtue of the

ford county. levy, has put into his possession or power. The Opinion by STERRETT, J. Filed October 2, 1882. error is found in the attempt to make that lan- The controlling question in this case is, guage directory which is purely descriptive and whether an administrator, or other person sued definitive. Where the property is of a particu- in a representative capacity, and against whom lar character, that is, where it is of a kind which a judgment has been rendered by a justice of is susceptible of manual seizure, the sheriff must, the peace on a claim for manual labor, has a at his own peril, so secure it that it may be right to appeal without making the oath and forthcoming on the final disposition of the case. giving the security prescribed by the first secBut how he is to secure it is not said, except tion of the Act, entitled "An Act regulating that, inter alia, he may for that purpose take appeals from the judgment of justices of the the bond of the garnishee. All this, however, peace and aldermen in this Commonwealth, for is no more than the responsibility cast upon the the wages of manual labor," etc., approved sheriff'as to goods seized upon a fieri facias. 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 tion with previous legislation on the subject of the property, and which he did so otherwise appeals from justices of the peace, especially secure by taking it into his own possession on the general Act of 1810, in which they are exthe very day of the seizure, and within four or pressly excepted from the provision requiring five hours after it was made. There is, there appellants to give security. These acts are in fore, nothing left but the conclusion that all pari materia, and should be coustrued together. things that were done in the premises were done We can readily understand why the Legislaregularly and bound the goods in controversy, ture should require those defending, in their and so the appellants became entitled to their own right, against claims for manual labor, to proceeds. Finally, if Paxton's Appeal, 13 Wr., make the affidavit and give security, not only 195, is law, we cannot see how the appellees can for costs, but also for the claim; but it would be avoid the return on their own writs of fieri extremely difficult to assign a satisfactory reafacias. The indorsement with the levies is son 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 The order should be reversed on the first, by this court to the Act of July 26, 1812, P. L., third and fifth assignments. The remaining 431, providing for appeals from Nisi Prius to assignments are not sustained. the court in banc, which requires the party ap- The order of court striking off the appeal is pealing to give absolute security for the pay: reversed and set aside, and dippeal reinstated. ment of all damages and costs in case the pro

For plaintiff' in error, Messrs. Russell & Longceedings were affirnied. In Maule v. Shaffer, 4 enecker. Barr, 404, on a motion to quash an appeal taken Contra, J. M. Reynolds, Esq. by executors without giving security, it was held they were not within the act; and Mr.

THACKARA V. MINTZER. Justice KENNEDY, referring to the seventh and eighth sections of the Act of June 16, 1836, the

Where by the provisions of a testator's will the income latter of which exempts persons suing or de- of his estate in the hands of his testamentary trustee fending in a representative capacity fromı giv- was not to be liable in any way or manner for his son's ing security on a writ of error, says: Whether

debts, etc., such fund cannot be attached for alimony

due the son's wife. the Legislature had these sections of the act in

As to the nature of the remedy the wife would have after view or not at the time they gave the right of

the fund was paid over to the husband, bot decided. appeal from a judgment of the Court of Nisi Prius, we feel satisfied that they never could

Error to the Court of Common Pleas, No. 2, have intended to require an executor or admin- of Philadelphia county. istrator to give the security contemplated by Opinion by MERCUR, J. Filed October 2, 1882. the Act of 1812. It would be most highly unjust The plaintiff in error is the executor and tesand unreasonable to require such security of an tamentary trustee of Wm. G. Mintzer, under executor or administrator, who may have no whose will this contention arises. After several assets of the estate in his hands wherewith to specific legacies the testator devised to the plainpay damages and costs. The inevitable conse- tiff in error the residue of his real and personal quence would be, in almost every case where a estate in trust, inter alia, to let, lease and demise judgment shall be rendered against an executor the real estate, and to keep invested the personal as such, though highly unjust and illegal, that estate, to collect the rents, interest, income and it would have to be submitted to."

profits thereof, and after paying therefrom all It also accords with the judicial construction all the expenses necessary to keep the real estate given to rules of court requiring, in general in repair, and all charges and expenses, to make terms, the filing of affidavits of defense. It has distribution of the remaining net income, and been uniformly held that they do not apply to to pay over the one-third part thereof to his son persons defending in a representative capacity: George, for and during all the term of his natural Umberger v. Zearing, 8 S. & R., 163; Reed v. life, and on his death remainder over to others Bush, 5 Binney, 455. The reason given is that named. The testator proceeds to declare, “it is it is not to be supposed that an executor has expressly my will that the income which I have sufficient knowledge of his testator's affairs to heretofore directed to be paid to my children, justify him in making oath on the subject. respectively, is to be for their respective sole,

McConnel v. Morton, 1 Jones, 398, is cited as separate and exclusive use and benefit * * * so an authority on the other side. An examina- that the same shall not be in any manner tion of the case will show that there was in the pledged, appropriated, disposed of or parted act then under consideration an express excep- with by anticipation, or before the same shall tion in favor of personal representatives as to have accrued and become payable, nor be subject to execution, attachment or sequestration, clause of the will. The learned judge, therefore, for any debts or liabilities whatever."


erred in entering judgment in favor of the deIt is now attempted to collect by attachment fendant in error on the point of law reserved. execution, against the plaintiff in error, as gar- Judgment reversed and judgment in favor of nishee of George, the sum now due to the latter the plaintiff in error non obstante veredicto. under the will of his father.

For plaintiff in error, W. A. Manderson, Esq. An unbroken line of cases from Fisher v. Tay- Contra, Messrs. Albert B. Guilbert and Daniel lor et al., 2 Rawle, 33, down to 7 Norris, 276, has | Dougherty. settled the law in this Commonwealth, that a father may, by creating a trust in proper form,

DU BREE v. ALBERT et al. provide for a son without exposing his bounty to the debts or improvidence of the beneficiary. An action of ejectment cannot be maintained by the

vendee of a partner's interest in the firm, where the In the will before us the testator, in due and

real estate in question is part of the assets of the firm. legal form, has expressed such intent in clear and unmistakeable language. He created in

Error to the Court of Common Pleas of Clearthe plaintiff in error an active trust. The fund

field county: in question was to be kept by him for "the Opinion by MERCUR, J. Filed October 2, 1882. sole, separate and exclusive use and benefit” of The main contention is whether this action of George, and not be subject in the hands of the ejectnient will lie for the enforcement of the trustee for any debts or liabilities whatever" plaintiff's right. It was brought to enforce payof George.

ment of purchase money due from defendants It is contended that the character of the debt under articles of agreement of 1st of June, 1874. in this case, on which the attachment issued, is They were entered into between Kessler and not within the meaning of the testator's exemp- Du Bree (whose right is now in the plaintiff), tion. It is for alimony awarded by the court to of the first part, and William Albert & Bros. the wife of George, after a verdiet and judgment (that is, the three Alberts, defendants), of the against him, for a divorce a mensa et thoro, in second part; “both parties being members of her favor. The attachment issued on a debt of the Woodland Fire Brick Company, of the firm record fixed by judgment and decree. Whether of Kessler, McMath & Co.” The party of the the judgment be for a breach of contract or for first part agreed to sell and convey all their onea debt, matters not. The testator recognized no fourth interest in the Woodland Fire Brick such distinction. He impressed on the fund Company, * * * being the same as bought of exemption from all kinds of legal process against James and Thomas Hammond; also their threethe trustee, not only for debts, but also for eighths interest in the store of Kessler, McMath "all liabilities whatever” of George. Language & Co., ** * consisting of the amount of stock broader and more comprehensive could not be which has been put in, as well as the proceeds used. The testator made no distinction between up to date. And they do hereby transfer and the character of the obligations which might set over to the party of the second part all their rest on George. He designed to cover all, legal, rights and claims in stocks, notes and book acequitable and moral. If we depart from the counts belonging thereto." In consideration of clearly expressed will of the testator in this re- a specific sum which they agreed to pay, and spect, we make a new will instead of enforcing their further agreement to settle all the interest, the one he made.

whether assets or liabilities, of the party of the The question wh ner George should justly first part, in the one-fourth interest in the Woodapply the money after it has reached his hands, land Fire Brick Company, and the three-eighths to the discharge of this obligation, or in case he interest in the store of Kessler, McMath & Co. refuses so to do, what form of legal proceedings Although it does not appear on the face of the may be instituted against him, does not now agreement, yet in fact the land now in contenarise.

tion was a part of the property of the Woodland We are dealing solely with the case of legal Fire Brick Company, and which, by virtue of proceedings against the trustee instituted for this agreement, the plaintiff claims to recover. 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 plaintiff claims a right to recover the undivided donor.

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

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