sum of $198. Whereupon defendant took this writ, assigning for error, inter alia, the answer to defendant's point, and the portions of the general charge above cited. For plaintiff in error, Messrs. Edward Harvey and John D. Stiles & Son. Contra, Messrs. John Rupp and R. E. Wright, Jr. of the claim is rested on the right to share with the widow as in cases of intestacy. Had it been the legislative intent to give parents an equal right with the widow, when the deceased was childless, provision would have been made for the measurement of damages. The damages recoverable are for the injury to the relative rights of the surviving members of the family, and are compensatory in all cases, Opinion by TRUNKEY, J. Filed April 24, except where there is bad motive or circum 1882. This action is by a father to recover damages for the alleged negligent killing of his son by the defendant. His own testimony shows that the deceased was over nineteen years of age when he died, had been married six months, was keeping house and living about eight miles distant from his parents before his death, and that his parents gave him furniture for housekeeping; it does not show that after his marriage, hẻ gave any of his earnings to his parents. There is no question, but that his widow's rights, under the intestate laws and under the statutes relating to death caused by negligence, are the same as if he had been of full age. It is unnecessary to determine whether the deceased was emancipated, or whether he was primarily bound to support his wife, even if it took all his income from labor, leaving nothing for his father. In such cases as this, there was no right of action at common law. The right is purely statutory and is vested in the surviving members of the family, to wit, "the husband, widow, children or parents of the deceased and no other relative; and the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy." In the decisions under the statute, it has been uniformly said that the words used seem to indicate the family relation in point of fact as the foundation of the right of action: North Penn Railroad Co. v. Kirk, 90 Pa. St., 15. The Act of 1851 gave the right of action exclusively to the widow if there was one; if no widow, to the personal representatives. By the Act of 1855, the right is limited in all cases to the family, first, to the husband or widow; second, to the children, and last, to the parents. Where the deceased left children, his parents have no right; nor have they, where he left a widow and no children. The statute has never been construed that the husband and parents may have joint or separate | actions, for the loss of the deceased wife or daughter. This is believed to be the first attempt by a parent to recover under the statute, when the deceased left a husband or wife, or children surviving. The argument in support stances of aggravation, which would justify punitive damages. If the child was free by age or emancipation, and living apart from his parents, and in no way contributed to their support, they could not maintain an action, for they suffered no pecuniary loss, and the family relation had been dissolved to the extent of actual separation. But though the child was of full age, if the family relation existed in fact, and the parents had a reasonable expectation of pecuniary advantage from him, they can maintain the action: Penn'a Railroad Co. v. Adams, 55 Pa. St., 499; North Penn Railroad Co. v. Kirk, supra. In an action for loss by the death of a minor child, the parents can recover only the value of his services during minority: Caldwell v. Brown, 53 Pa. St., 453. The chances of survivorship, his ability and willingness after he should become of age to support others, are matters too vague to enter into an estimate of damages merely compensatory. The other classes to whom the right of action is given are entitled to damages based upon the expectancy of the life of the deceased. In any of their cases the "loss is what the deceased would probably have earned by his intellectual or bodily labor in his business or profession during the residue of his lifetime, and which would have gone to the benefit of his children (or other party entitled) taking into consideration his age, ability and disposition to labor and his habits of living and expenditures:" Penn'a Railroad Co. v. Butler, 57 Pa. St., 335. When a husband or wife recovers damages, and there are children of the deceased, the provision of the statute for distribution under the intestate law applies and strictly accords with the main object of the statute, which is a remedy for the loss to the family. The surviving members of the family are recompensed in damages for the deprivation. But if the parents take equally with the widow the main object of the statute is in part defeated. Besides, in some cases the parents would share with her, where if the deceased had not been married, they would have no right at all. In such case as the present, by sharing with the widow they take half what the loss was to her, when if their son had been single, they would only be entitled to the value of his services for judgment. This the court refused to do, disless than two years. Results so preposterous charging the rule and filing the following opinare not within the intendment of the statute. ion: "On a former hearing, and upon all the Notwithstanding the repeated decisions, that evidence adduced by the petitioners, I refused for the death of a minor child, the parent can to open the judgment on which this scire facias only recover the value of his services during issued to let them into a defense. Their apminority, in addition to the expenses caused by pearance to this action is voluntary, and in the injury and death, the court instructed the their petition they do not pretend to set forth jury to estimate the damages by the rule appli- | that in the event of the judgment being stricken cable in cases of suit by the widow or children, off they have no defense whatever. Now, Feband inasmuch as the defendant had settled with ruary 1, 1881, motion refused." and satisfied the widow, the verdict should be for one-half the estimated damages. This instruction naturally followed the ruling that the parents may share with the widow in the amount recovered. By adhering to the statute which prefers the widow, it will be unnecessary to apply one rule for the parent in measuring damages, when the son was single at the time of his death, and another when he was married. As the plaintiff had no right of action, the fifth and eighth assignments need not be remarked. Judgment reversed. N. J. CLARK, Defendant Below, v. ADA E. It is not necessary to serve a scire facias on a mortgage on terre-tenants or give them notice. This action of the court is assigned as error. The paper books do not set forth the contents of the petition or affidavit filed in support of the motion. For plaintiff in error, Frank Gunnison, Esq. Contra, Messrs. Henry Souther and E. L. Whittelsey. PER CURIAM. Filed October 31, 1881. It is not necessary to serve a scire facias on a mortgage on terre-tenants or give them notice. They were here no parties. Their title whatever it was could not be affected by the proceeding. No doubt the court upon their coming in and disclosing a title clear of the incumbrance would have let them in to defend pro interesse But without such express permission they had no right to intervene. For aught that ap suo. Error to the Court of Common Pleas of Erie pears they were entire strangers. They had no county. standing in the court below and have no standWrit of error quashed. District Court, United States. In 1862, N. J. Clark, then the owner of a farming in this court. in Erie county, executed a mortgage on the same to Clinton George. By divers subsequent conveyances the farm became vested in the minor children of V. M. and Rebecca Thompson. A scire facias upon the mortgage given Western District of Pennsylvania. IN EQUITY. by Clark was issued in June, 1870, and judg- JOHN REBER, Assignee in Bankruptcy of CHAS. ment was entered thereon by default, Clark alone having been served and having failed to appear and defend. Five years after the entry of judgment upon the scire facias C. J. Brown, acting as guardian for the minor children of V. M. and Rebecca Thompson, presented a petition, praying that the judgment be opened and he be allowed to become a party and make defense. A rule to show cause was granted, depositions were taken and after a delay of five years more, in October, 1880, the rule to show cause was discharged. In October, 1880, a scire facias upon the original judgment was issued and C. J. Brown, acting as guardian, appeared. Upon the second scire facias judgment was again entered against N. J. Clark in default of an appearance. C. J. Brown, guardian, then filed an affidavit and moved the court to strike off the second PENNY, v. JOHN A. GUNDY. 1. A judgment to secure the purchase money of real estate, consisting of three pieces of land, entered upon a warrant to confess judgment given about one month after the delivery to the bankrupt of a deed for one of the pieces, but simultaneously with the delivery to him of the deeds for the other two pieces, cannot be impeached, either in whole or part as an unlawful preference by the assignee in bankruptcy to whom the real estate passed, it appearing that it was substantially one transaction consummated when the two later deeds were delivered and the warrant to confess the judgment was given. 2. Where two executors settled a joint account, charging themselves jointly with all the assets of the estate and exhibiting a general balance in their hands, but by a statement appended to the account it appeared (as the fact was) that they had actually received the assets and held the proceeds individually in stated proportions. Held, that while jointly liable to the legatees for the general balance they were not joint debtors inter se, and one of them having paid the legatees more than his individual proportion was entitled to be subrogated to the lien against the real estate of the other which the bankruptcy, who under an order of court sold legatees had acquired by docketing the general balance. it discharged of liens and holds the proceeds 3. A confessed judgment for a debt already fully secured for distribution among the creditors of the by a prior valid lien against the bankrupt's real estate, to which the judgment creditor had the equitable right bankrupt. of subrogation, is not impeachable as a fraudulent preference under the bankrupt law, for it takes nothing| from the general creditors and impairs not the value of the bankrupt's estate. On the 21st of April, 1877, Charles Penny and John A. Gundy, as executors of Alexander Penny, deceased, joind in settling an account of their trust, charging themselves jointly with all the assets, including the testator's share of the purchase money of tracts 3, 4 and 5. The account shows "a balance in the hands of the accountants" of $9,097.02. But at the foot of the debit side is appended a statement showing that the "total amount received by J. A. Gundy" was $3,346.61 only. And at the foot of the credit side of the account is the following statement: Out of the above amount, J. A. Gundy paid out as follows: Opinion by ACHESON, D. J. Filed July 31, 1882. From the evidence the following facts appear: The brothers, Thomas and Alexander Penny, were equal owners in common of several pieces of land in Union county. Thomas made his will July 22, 1868, constituting his brother Charles (the bankrupt) executor thercof. He directed his executor to sell his real estate and bequeathed the proceeds. He soon died, and Charles entered upon his trust. Alexander made his will February 2, 1872, constituting as executors thereof the bankrupt and John A. Gundy, the present defendant. Alexander's will was proved and letters testamentary issued to the executors named therein, November 16, 1874. His will directs his executors to sell his real estate and the proceeds are bequeathed to certain named legatees. | ister's fees and collateral tax Amount not receipted for, charges, etc........ 712.87% 139.90 Total amounts paid out by J. A. Gundy......$ 852.771⁄2 2,493.83% $3,346.61 This account was confirmed absolutely by the Orphans' Court of Union county on May 26, 1877, and subsequently the court directed distribution of the balance in the hands of the accountants among the legatees. The statements from the account above referred to are shown to be truthful, and it also appears that Gundy at no time received any further assets of the estate and that no part of the purchase money of the tracts 3, 4 and 5 ever came to his hands. On November 26, 1877, a certified transcript from the Orphans' Court, showing a balance of $9,097.02 to be in the hands of the accountants and due from them jointly to the estate of Alexander Penny, was filed in the Court of Common Pleas of Union county and docketed as a lien against their real estate. Charles Penny was then the owner of other real estate, besides said tracts 3, 4 and 5, which passed to his assignee in bankruptcy. No deed for tract No. 3 was made until February 14, 1878, when the executors executed and acknowledged a deed to Thomas Church, who, on the same day, executed and acknowledged a deed therefor to Charles Penny. The deeds for tracts Nos. 4 and 5 were not made until March 11, 1878, when the executors exe In the fall of 1876, Charles Penny and John A. Gundy, as executors of Alexander Penny, and Charles, as executor of Thomas Penny, united in the sale of the several pieces of real estate of which their testators had died jointly seized. Tract No. 3 was sold to Thomas Church | for $6,166.63 or $3,058.31 for each estate; tract No. 4 to D. D. Moyer for $2,137.50 or $1,068.75 | for each estate; and tract No. 5 to D. D. Moyer for $420 or $210 for each estate. It subsequently transpired (although Gundy was then ignorant of the fact and did not learn it until long after-cuted deeds therefor to D. D. Moyer and he wards) that Church and Moyer purchased not for themselves but for Charles Penny. The prices, however, seem to have been fair and all parties in interest have acquiesced in Charles' purchase. The land passed to his assignee in executed deeds to Charles Penny. On the e same day (March 11, 1878), Charles Penny executed and delivered to John A. Gundy the warrant of attorney for the confession of the judgment which is the subject of the present controversy. Prior to that date Gundy had paid to the legatees of Alexander Penny, of the balance due them under the executor's account and order of distribution, over $5,000, and he was liable to them for whatever then remained unpaid. At the time he received the warrant of attorney he gave Charles Penny the following written agreement: In consideration of a judgment bond for $5,000, dated March 11th, A. D. 1878, executed in favor of J. A. Gundy by Charles Penny, I hereby agree to enter on record the following papers, viz: Release of Eliza G. Gundy for A. Penny's legacy. #6 "Jane E. Stewart 46 T. A. B. Fowler T. P. 44 "A. M. Harter Mary Burd W. L. Gundy and wife for A. Penny's legacy, and to deliver to said Charles Penny a bond of indemnity for the amount of Eliza G. Gundy's legacy from T. Penny's estate, and also within sixty days from date, either procure the following releases or deposit either in bank or with a justice of the peace, the amounts due them as below. F. N. Penny, balance due from A. Penny's legacy, $239.24 bankrupt law would avoid a security: Grant v. National Bank, 97 U. S., 80. But if such knowledge be assumed, it by no means follows that the defendant's judgment is impeachable by the assignee in bankruptcy. Nothing surely is better settled than the doctrine that such assignee takes title subject to all equities which existed against the property in the hands of the bankrupt: Gibson v. Warner, 14 Wal., 248; Yeatman v. Savings Institution, 95 U. S., 764. Now the judgment in question, in the bulk, represents—and the parol evidence evinces that the parties thereto intended it should stand for the purchase money of the real estate of the decedent (Alexander Penny) which the bankrupt had bought through Church and Moyer. So long as John A. Gundy, as executor, retained the legal title to that real estate, he had an ample security for the purchase money, available as well to the legatees as to himself. It would seem, however, that on February 14, 1878, he parted with this security so far as concerned the tract (No. 3) sold nominally to Church; but the whole transaction touching the real estate was not closed until the execution of the conveyances by the defendant to Moyer and by the latter to the bankrupt, on March 11, 1378, presumptively at the same time when the warrant to confess judgment was delivered to the defendant. The case then is this: At the conclusion of the real estate transaction, the bankrupt, by means of the defendant's deeds for the tracts knocked down to Moyer, completes his title to Alexander Penny's real estate, and simultaneously gives his warrant of attorney to confess judgment in favor of the defendant, a judgment which unquestionThere is nothing in the evidence tending to ably was available as a security to such of the show bad faith on the part of John A. Gundy unpaid legatees of Alexander Penny as are in any of these transactions. He seems to have named in the defendant's written agreement been somewhat careless of his own interests already quoted at large. The assignee in bankand too confiding in his co-executor, but he ruptcy succeeds to this real estate, converts it held fast his integrity; and certainly outside of into money and proposes to hold on to the prothe bankrupt law there is no ground for im-ceeds, and yet asks the court to strike down the peaching his judgment. With a trivial excep- | judgment. If there is any equity in this detion, it represents moneys which the bankruptmand, I confess it is not apparent to me. should have paid but which Gundy had either paid or was liable to pay for him. 53.71 314.65 Jas. Sweency, amount of A. Penny's legacy. ..... 364.65 M. J. Housel, balance due on A. Penny's legacy, J. L. Penny, balance due on T. and A. Penny's legacy 7.78 and also pay the following claims: W. O. Shaffer, auditor for A. Penny's estate, $25. Other costs of audit in account of Alexander Penny's estate, except $2 to Charles Penny and $2 to J. A. Gundy, amounting to $12. T. P. Wagner and Prothonotary costs (4 cases), $25.30, and the sum of $13 to any parties the said Charles Penny may direct. In witness whercof, I have hereunto set my hand this 11th day of March, A. D. 1878. J. A. GUNDY, In his answer to the bill the defendant denies that he knew, or had reasonable cause to believe, at the time when he received the warrant to confess the judgment, that the bankrupt was insolvent, or know that it was given in fraud or to defeat the provisions of the bankrupt law. And were this the turning point of the case, I might, under the pleadings and evidence, well pause, before adopting the conclusion, that the defendant had such knowledge as under the But, furthermore, I think the defendant takes an impregnable position when he claims that he was invested with the equitable right of subrogation to the assured lien which the legatees had acquired against the real estate of the bankrupt by the filing and docketing in the Court of Common Pleas of the transcript from the Orphans' Court, and shows that the confessed judgment, in the main, represents and secures the same debt. Why may it not well stand as a valid cumulative security to the defendant as claimed by him? Clearly in so far as it is a but if, as between themselves, there is a superior obligation resting on one to pay the debt, the other, after paying it, may use the creditor's security to obtain reimbursement." It was therefore held in Scott's Appeal, 88 Pa. St., 173, that a partner who goes out of a partnership, and for a valuable consideration is indemnified by his partners against all debts of the firm, is entitled to subrogation to a judgment obtained against the firm and paid by him, for which under the agreement of indemnity he was not liable as between himself and partners. The assignee, whose position is simply that of the bankrupt himself, has no countervailing equities to defeat the defendant's right of sub But the defendant's right to subrogation is stoutly denied, and the plaintiff produces authorities to show that as between principal debtors jointly liable there can be no subrogation: Mehaffy v. Share, 2 P. & W., 361; Griener's Appeal, 2 Watts, 414; Singizer's Appeal, | 28 Pa. St., 524. But Watson's Appeal, 90 Pa. St., 426, proves that the above proposition is not universally true. There it was held that joint obligors in bonds secured by mortgage are en-rogation. The legatees have either been paid titled as against each other to subrogation. And in Lidderdale v. Robinson, 12 Wheat., 594, it was decided that the principle of substitution is not confined to cases arising between surety and principal, but applies as between co-sureties. Hence, one of two joint sureties having paid the whole debt, has been permitted to enter judgment on their obligation in the name of the creditor and have execution thereon against his co-surety for his proportion: Wright v. Grover & Baker S. M. Co., 82 Pa. St., 80. Charles Penny and John A. Gundy, however, did not stand simply in the relation of joint debtors. Doubtless they had become jointly liable to the legatees for the entire balance of $9,097.02; but, as between themselves, they were not jointly liable. Their account upon its face showed that of this balance but $2,493.83 had actually come into Gundy's hands and that Charles Penny was personally answerable for $6,603.19. These sums were the measure of their | liability inter se. Of the balance due to the legatees, Charles Penny in good conscience was bound to pay the last mentioned sum and to indemnify Gundy from liability therefor. Unquestionably as between the executors, Penny was under a superior obligation to pay that amount. Why then was not Gundy entitled to subrogation in respect to the lien entered in the Common Pleas upon the certificate from the Orphans' Court? It is true, he did not stand strictly in the relation of a surety to Penny, but for the purposes of subrogation he had the equitable rights of a surety: Gearheart v. Jordon, 11 Pa. St., 325. "The familiar doctrine of subrogation," says Mr. Justice STRONG in McCormick's Adm'r v. Irwin, 35 Pa. St., 117, "is, that when one has been compelled to pay a debt, which ought to have been paid by another, he is entitled to a cession of all the remedies which the creditor possessed against that other. To the creditor, both may have been equally liable, or are secured, and they do not gainsay the defendant's equitable right. I do not see that he has done anything to mislead other creditors or of which they have any just reason to complain. Nor can laches fairly be imputed to him. It was indeed urged at the argument that he had not fully complied with the terms of his agreement of March 11, 1878. But to this suggestion there are several answers. Nothing of the kind is alleged in the bill, and the evidence was not directed to the inquiry whether the defendant was thus in default, and the facts in this regard are not sufficiently clear. But if in default, it is not shown that the bankrupt or his estate has sustained any injury thereby. And finally, the appropriate remedy for such injury is an action at law. Upon the whole, I have reached the conclusion that the substantial justice of the case is with the defendant, and that the plaintiff has failed to establish any ground for equitable relief. This court sitting in bankruptcy will of course see to it that the defendant makes no inequitable use of his cumulative securities. Let a decree be drawn dismissing the plaintiff's bill with costs to be paid out of the bankrupt's estate. For plaintiff, Messrs. A. Leiser, J. Merrill Linn and Charles S. Wolff. For respondent, Messrs. Andrew H. Dill, Alfred Hays and Kennedy & Doty. Orphans' Court. Estate of MARY A. GARBER, Deceased. A sheriff's sale on a municipal lien filed under the Act of January 6, 1864, relating to streets, etc., in the city of Pittsburgh, divests a prior fixed lien on the property sold. The lien was filed against a party as the owner, who had no title to the premises, more than six months after the completion of the work for which it was filled; it |