this principle that judgment can be logically | a certain piece of real estate, formerly the propsustained. erty of said Perry Marcy, and whereof he had died seized. We are unable to see anything in this case to charge the defendant with negligence in not enclosing their lot or guarding the well. There was no concealed trap or dead-fall as in Hydraulic Co. v. Orr. The well was open and visible to the eye. No one was likely to walk into it by day, and this accident did not occur at night. A boy playing upon its edge might fall in, just as he might in any pond or stream of water. In this respect the well was no more dangerous than the river front on both sides of the city, where boys of all ages congregate in large numbers for fishing and other amusements. Vacant brick yards and open lots exist on all sides of the city. There are streams and pools of water where children may be drowned; there are inequalities of surface where they may be injured. To compel the owners of such property either to enclose it or fill up their ponds, and leave the surface so that trespassers may not be injured, would be an oppressive rule. The law does not require us to enforce any such principle, even where the trespassers are children. We all know that boys of eight years of age indulge in athletic sports. They fish, shoot, swim and climb trees. All of these amusements are attended with danger, and accidents frequently occur. It is part of a boy's nature to trespass, especially where there is tempting fruit; yet I never heard that it was the duty of the owner of a fruit tree to cut it down because a boy trespasser may possibly fall from its branches. Yet the principle contended for by the plaintiff would bring us to this absurdity, if carried to its logical conclusion. Moreover, it would charge the duty of the protection of children upon every member of the community except their parents. Judgment reversed. For plaintiffs in error, R. Alexander, Esq. WYOMING NATIONAL BANK'S APPEAL. Where a mortgage is left for record and actually recorded, its lien will not be postponed to a subsequent judgment, by reason of the fact that the recorder has failed to enter the same on the book of entries, or upon the index. Appeal of the Wyoming National Bank, at the instance of the executor of Porter Marcy, deceased, from a decree of the Orphans' Court of Wyoming county, dismissing its exceptions to and confirming the report of an auditor appointed to distribute a certain fund of $6,675 in the hands of John G. Spaulding, administrator of Perry Marcy, deceased, which fund was the proceeds of a sale made by order of the court of Before the auditor the following facts appeared: On May 2, 1873, Perry Marcy executed a mortgage of the real estate in question to Jane E. Peckham, and duly acknowledged the same. This mortgage was left for record with the Recorder of Deeds the same day. It was not, however, actually recorded until about six weeks after; nor was there in the meantime any entry thereof made in the entry book, or in any other of the Recorder's books. It was not indexed until 1879. On February 26, 1878, the Wyoming National Bank recovered judgment in the Common Pleas of Wyoming county for $8,000 against Perry Marcy and Porter Marcy. This judgment was duly entered and constituted a lien on the real estate in question. Perry Marcy was principal in said judgment, and Porter Marcy was surety. The indebtedness which it represented had been incurred prior to the execution of the Peckham mortgage. Jane E. Peckham claimed the fund by virtue of her mortgage. The Wyoming National Bank claimed that as the mortgage was neither entered on the Entry Book, nor indexed in any book in the Recorder's office, it did not become a lien prior to the lien of their judgment. The auditor reported that the mortgage was a valid and subsisting lien entitled to be first paid out of the fund, and made distribution accordingly. The Wyoming National Bank filed exceptions to this report, which were dismissed by the court. The report being confirmed, it thereupon took this appeal, assigning for error the decree of the court. For appellant, Messrs. W. E. & C. A. Little. Contra, Wm. M. Piatt & Sons. PER CURIAM. Filed March 27, 1882. The mortgage in question was left at the Recorder's office in 1873, prior to the passage of the Act of March 18, 1875, P. L., 32, so that it is not necessary to inquire whether the failure to index deprived the mortgagee of his security. Whatever the effect of the failure of the recorder to enter the mortgage on his book of entries would have been in the case of a lien intervening between that time and the recording of the mortgage, we think such recording is a valid entry and recording against a subsequent judgment. The judgment of the appellants was not entered until nearly five years after the mortgage had been fully recorded. Decree affirmed and appeal dismissed at the costs of the appellants. KNOLL'S APPEAL. HOLTZMAN'S APPEAL. A defendant cannot waive the benefit of the exemption law, if the result be to give a junior execution creditor a preference over a prior levy on the same property. A. issued execution and levied on defendant's personal property. Defendant claimed the benefit of the exemption law and $300 worth of property was set apart to him. B. and C. afterwards issued execution on judgments, both containing waivers of exemption, and levied on the goods exempted from A.'s levy. The goods were all sold by the sheriff under the three executions the same day, and failed to realize the amount of A.'s judgment. Held, that A.'s execution was entitled to all the proceeds of sale. Garrett & Martin's Appeal, 8 Casey, 160, followed. Appeals of Isaac K. Knoll and John S. Holtzman from a decree of the Court of Common Pleas of Berks county, dismissing their exceptions to and confirming the report of the commissioner appointed to make distribution of the proceeds of a sheriff's sale of the personal property of William N. Potteiger. The facts as they appeared by the report of the commissioner were as follows: Jared Spengler and William Spengler, executors of Daniel Spengler, deceased, issued a writ of execution to January Term, 1880, on a judg Exceptions having been filed to his report on the part of the junior execution creditors, they were dismissed by the court, and the report confirmed. Whereupon Isaac K. Knoll and John S. Holtzman took these appeals, assigning for error the decree of the court. For appellants, Messrs. Morton L. Montgomery and D. & G. Ermentrout. Contra, H. G. C. Reber, Esq. PER CURIAM. Filed March 13, 1882. We see nothing in these appeals to distinguish them from Garrett & Martin's Appeal, 8 Casey, 160. The goods levied on were all in the defendant's possession, when the junior executions were placed in the sheriff's hand, and there had been no appropriation to his own use of the goods appraised under the first writ. The goods were sold at the same time under all the executions and the proceeds are in court for distribution. Decree affirmed and appeals dismissed at the costs of the appellant in each case. District Court, United States. Western District of Pennsylvania, IN BANKRUPTCY. ment note entered against William N. Potteiger In Re CHARLES B. and JAMES C. MCVAY, dated November 3, 1879, payable six months after date for the sum of $700 with interest. Isaac K. Knoll also issued execution to February Term, 1880, on a judgment note against Potteiger with waiver of exemption dated July 10, 1879, payable six months after date, entered January 12, 1880, for $200. John S. Holtzman also issued execution to February Term, 1880, on a judgment against Potteiger, with waiver of exemption dated March 14, 1879, payable in six months after date, entered January 12, 1880, for $96.77. Under the Spengler writ the sheriff on December 31, 1879, levied on defendant's personal property, whereupon defendant claimed the benefit of the exemption law, and $300 worth of property was appraised and set apart to him. Under the Knoll and Holtzman writs the sheriff on January 12, 1880, levied on the property set apart under defendant's claim for exemption in the prior execution. The sheriff's sale under all three executions took place January 26, 1880, the amount realized being $197.87 under the first writ, and $262.71 from the sale of the property set aside. The commissioner awarded the total sum realized by all the sales to Jared Spengler and William Spengler, executors, plaintiffs in the first writ of execution. Bankrupts. 1. The bankrupts, who were bankers, procured B. to become surety on their bond to a depositor, and for B.'s indemnity gave him certain of their bills receivable; the next day they borrowed from B. marketable securities to raise money and delivered to him securities owned by them; in both transactions B.'s assistance was gratuitous and to aid the bankrupts in their business at a time of general financial stringency; a set off existed against one of the bills receivable which the bankrupts had overlooked. Held, that in the absence of any express restriction as to their use, B. had the right, as against the assignee in bankruptcy, to appropriate the second lot of securities to reimburse himself from loss occasioned by the set-off against the first lot. 2. If the assignee desired to contest B.'s right to make such appropriation his proper course was to sue him, and he could not have the controversy determined collaterally and in a summary way by objecting to B.'s proof of a distinct and independent debt. Sur issue, certified by register into court for determination, upon application to re-examine claim proved by D. W. C. Bidwell. Opinion by ACHESON, D. J. Filed September 9, 1882. The bankrupts were bankers in the city of Pittsburgh. On September 30, 1873, they gave a bond to the Commissioners of Ellsworth avenue to secure them on a deposit of $25,668.47. Bidwell was surety on this bond, and for his indemnity the bankrupts on said date gave him certain of their bills receivable, aggregating $26,000. The next day (October 1st) the bankrupts borrowed from Bidwell available securities, amounting to $28,910, which they desired to use for the purpose of negotiating a loan in the East, and delivered to him local securities to the amount of $30,400. In both these transactions Bidwell acted without pecuniary consideration or recompense, and entirely from motives of friendship to the bankrupts. The bankrupts suspended payment and closed their doors on November 7, 1873, and on the first of December following filed their petition | in bankruptcy. On November 28, 1873, they returned to Bidwell the securities they received from him, but left in his hands their own securities, and Bidwell continued to hold them until after the bankruptcy. On December 2, 1873, the Ellsworth Avenue Commissioners entered judgment on the bond against Bidwell, who paid them in discharge thereof, $26,123.35. Owing to a set-off existing against one of the bills receivable, he realized out of the securities delivered to him on September 30th, $23,925.53, only. After the appointment of the assignee in bankruptcy, Bidwell returned to him all the securities he received from the bankrupts on October 1st, except two negotiable promissory notes which he collected, paying of the proceeds to the assignee, on January 9th and March 4, 1874, $5,790.90, and retaining $2,389.06 which he applied to make himself whole on the Ellsworth avenue debt. The claim proved by Bidwell is based upon a deposit account entirely separate and distinct from the transactions above stated. The proof is regular in form and correct in amount, and confessedly the debt is a just one. The only ground upon which the assignee seeks to have the proof expunged is, that the securities which appertained to the transaction of October 1, 1873, retained by Bidwell, were assets belonging to the estate in bankruptcy, and that until he fully surrenders to the assignee the proceeds, he has no right to prove a debt or receive dividends. The issue formed under general order No. 34 and certified by the register, presents for determination the following questions, viz: 1st. Has Bidwell the right to retain $2,389.04 of the securities he received in the transaction of October 1, 1873, to reimburse him for his loss on the securities he received in the transaction of September 30th ? tion of the claim proved by Bidwell upon his deposit account, for the purpose of expunging the same because of his detention of said money? 1. If it be conceded that the case is not strictly one of "mutual credits" within the provision of the bankrupt law as expounded by the cases of Rose v. Hart, 8 Taunt., 499, 2 Smith's L. C., 293; Young v. Bank of Bengal, 1 Moore, P. C., 150, and Ex parte Whiting, in re Dow, 14, B. R., 307, still I am of opinion that the creditor here under the special circumstances had the right to use the securities which came into his hands on October 1st to make good the deficiency on those he received the day previous. The two transactions were not only nearly contemporaneous, but were intended to subserve a common purpose, viz., to aid the bankrupts in their business at a time of general financial stringency. In both instances Bidwell's aid was | gratuitous on his part and wholly for the benefit of the bankrupts. The evidence discloses that when he signed the bond on September 30th the intention was to fully indemnify him, and it was then supposed the bills receivable handed him were ample for the purpose. The bankrupts seem to have overlooked the fact of the existing set-off and Bidwell was ignorant in respect to it. What then was the plain duty the bankrupts owed Bidwell? They were under the highest moral and legal obligation to furnish him additional security to protect him against the set-off. The succeeding day the bankrupts applied to him for further assistance and he accorded it, receiving the second batch of securities. Now while these latter securities were not then expressly made applicable to Bidwell's indemnity on the previous transaction, it is also true that they were not in terms restricted to the second transaction. There was indeed at the time no express agreement on the subject. In the absence then of an express restriction as to their use, I think it would shock the moral sense of most men to hold that the bankrupts or their assignee could redeem the second lot of securities without indemnifying Bidwell from loss on account of the set-off which existed against the first. 2. But if I am wrong here, I am nevertheless of the opinion that the assignee has shown no good reason for expunging Bidwell's proof of claim. The proof is entirely regular and the claim for an admitted debt which has no sort of connection with the transactions of September 30th and October 1, 1873, or either of them. When the bankrupts on November 28, 1873, delivered to Bidwell his securities, they left in his hands their own. He testifies it was then ex 2d. Is the assignee entitled to a re-examina-pressly understood he was to hold those of Octo Filed June 26, 1882. ber 1st for his indemnity against the Ellsworth | Opinion by WICKES, P. J. A careful consideration of the case stated has failed to convince me that the plaintiff is entitled to the compensation he claims. He stands upon no better footing in this regard than an attorney appointed by the court to defend a pauper prisoner, and as to counsel so assigned, it is said by the Supreme Court in Wayne County v. Waller, 9 Norris, 104, that the county is under no legal obligation to compensate them for their professional services." Having reached the above conclusions it is not necessary to consider a third question which the issue presents. It is not pretended that any statute authorizes the payment of this claim, but it is alleged to stand upon the footing of costs, and we have been referred to several cases where contingent and necessary expenses, not provided for by statute, have been allowed. In Commissioners v. Hale, 7 Wright, 290, the county was held liable for boarding and lodging a jury kept together in a capital case by order of court. In Allegheny County v. Watt, 3 Barr, 462, the county was held liable for the services of a physician employed to conduct a And now, September 9, 1882, the first and second questions certified by the register are de-post mortem by the coroner. The McCalmonts termined in favor of D. W. C. Bidwell, and the application of the assignee to have said creditor's proof of claim expunged or diminished is denied. By the Court. For creditor, S. Schoyer, Jr., Esq. Court of Common Pleas, York County. MCELROY v. COUNTY OF YORK. Plaintiff was assigned by the court, upon motion of the District Attorney, as special counsel to assist the Commonwealth in the prosecution of a capital offense. Held, that the county was not liable to pay him for services rendered in such capacity. Such services must continue to rest, as heretofore, upon that foundation of obligation and duty which attach as certainly to the office of an attorney as do its rights and privileges. Case stated. The plaintiff, George W. McElroy, Esq., was assigned by the Court of Oyer and Terminer, upon motion of the District Attorney, to assist him in the prosecution of the case of Commonwealth v. John Coyle, Jr., indicted for murder. He presented his claim for compensation to the county commissioners, who refused to pay the same, whereupon suit was brought. These facts were embodied in a case stated, and the legal question of the county's liability was, after argument, submitted to the court. For plaintiff, John W. Blackford, Esq. v. Allegheny County, 5 Casey, 417, the county The Act approved May 3, 1850, provides for the election of a District Attorney "who shall sign all bills of indictment and conduct in court all criminal or other prosecutions in the name of the Commonwealth." So essentially is this duty imposed upon him, that it can scarcely be doubted that he alone is entitled of right to appear, unless by leave of court, private counsel are permitted to aid him, and then only in subservience to his will and instructions: 2 Barr, 189; 4 W. N. C., 87. The question is between the accused and the Commonwealth, not between the prosecutor and the defendant. A public officer is therefore provided by law, and his compensation fixed by statute. Necessary expenses incurred by him in the preparation of a case for trial, would doubtless fall within the rule established by the cases above cited; but when he feels over-matched or outnumbered, and applies to the court for aid, counsel so assigned perform an official duty, for which no compensation is provided. Such services must continue to rest, as heretofore, upon that foundation of obligation and duty which attach as certainly to the office of an attorney as do its rights and privileges. Entertaining this view of the law, we can only award the learned plaintiff the meed of thanks he so fully deserves, but we must enter judgment for the defendant in the case stated. NEW BOOKS. THE AMERICAN DECISIONS, containing the cases of general value and authority decided in the courts of the several States, from the earliest issue of the State Reports, to the year 1869. Compiled and annotated by A. C. FREEMAN, Esq., Counselor-at-Law, and author of "Treatise on the Law of Judgments," "Co-Tenancy and Partition," "Executions in Civil Cases," etc. Vols. XXXIV, XXXV, XXXVI and XXXVII. San Francisco: A. L. BANCROFT & Co., Law Book Publishers, Booksellers and Stationers. 1882. The cases re-reported in volume 34 are from 23 Pickering's Mass.; 3, 4 Howard's Miss.; 6 Missouri; 10 N. H.; 2 Harrison's N. J.; 1 Green's N. J. Chancery; 21, 22 Wendell's N. Y.; 7, 8 Paige's N. Y. Chancery; 4 Devereux & Battle's N. C. Law; 2 Devereux & Battle's N. C. Equity; 9 Ohio; 8, 9 Watts Penn.; 4, 5 Wharton's Penn.; 1 Chere's S. C.; 1 Chere's N. C. Equity; 1 Humphrey's Tenn.; 11 Vermont; 10 Leigh's Virginia; 1 Ala. The cases in volume 35 are taken from 1 Alabama; 2 Arkansas; 13, 14 Connecticut; 2 Scammon; 5 Blackford; 9 Dana; 1 B. Monroe; 15, 16 Louisiana; 17 Maine; 11 Gill & Johnson; 24 Pickering; 1, 2 Metcalf; 4, 5 Howard (Miss); 6 Missouri; 11 New Hampshire; 1 Green's Chancery; 2, 3 Harrison; 23, 24, 25 Wendell; 8 Paige's Chancery; 1 Iredell's Law. Volume 36 contains cases from 1 Iredell; 10 Ohio; 9, 10 Watts; 6 Wharton; 1 Rhode Island; 1 McMullen Law; 1 McMullen Ch.; 2 Humphrey; 12 Vermont; 11 Leigh; 2, 3 Alabama; 3 Arkansas; 14 Connecticut; 3 Scammon; 5, 6 Blackford; 1, 2 B. Monroe; 17, 18, 19 Louisiana; 1 Robinson; 18, 19 Maine. In volume 37 the cases are taken from 20 Me.; 11 Gill & Johnson's Md.; 2, 3 Metcalf; 5 Howard; 7 Missouri; 12 N. H.; 3 Harrison's N. J.; 25, 26 Wendell's; 1, 2 Hill's N. Y.; 9 Paige's Chancery; 2 Iredell's N. C. Law; 11 Ohio; 6 Wharton; 1, 2, 3 Watts & Sergeant's; 2 McMullan's S. C. Law; 1 McMullan's S. C. Equity; 2 Humphrey's Tenn.; 13 Vermont ; 11, 12 Leigh's Va.; 3, 4 Ala.; 4 Arkansas. The cases re-reported partially cover the period from 1832 to 1842. Over one hundred Pennsylvania cases are re-reported and to nearly every one there is a foot-note showing where it has been cited and to what effect in subsequent cases. The value of this series of reports cannot be overestimated. A TREATISE ON EQUITY JURISPRUDENCE, as administered in the United States of America; adapted for all the States, and to the Union of Legal and Equitable Remedies under the reformed procedure. By JOHN NORTON POMEROY, LL. D. In three volumes. Vol. II. San Francisco: A. L. BANCROFT & Co., Law Book Publishers, Book-sellers and Stationers. 1882. The titles to the sections of this volume are: Concerning performance; Concerning notice; Concerning priorities; Concerning bona fide purchase for a valuable consideration and without notice; Concerning merger; Concerning equitable estoppel; Certain facts and events which are the occasions of equitable, primary or remedial rights; Mistake; Actual fraud; Constructive fraud; Origin of uses and trusts; Express private trusts; How express trusts are created; Public or charitable trusts; Trusts arising by operation of law-resulting and constructive trusts; Powers, duties and liabilities of express trustees. This work shows a vast amount of labor by the learned author and the result is a concise and valuable treatise. The text is tersely and well written and hundreds of cases have been examined and are cited in support of it. A TREATISE ON THE LAW OF CONVEYANCING. By W. B. MARTINDALE. St. Louis, Mo.: WM. H. STEVENSON, Law Publisher and Publisher of The Central Law Journal. 1882. Price, $6.00. Purchase Deeds, Leases, Mortgages and Wills are the titles among which the contents of this book are divided and under the first The General Requisites of Deeds; The Formal Parts of a Deed; The Execution of Deeds; Acknowledgment and Registration of Deeds are the headings of the first four chapters. Chapters 5, 6 and 7 treat of leases in general; the formal parts of a lease, the execution assignment and determination of leases. Under the title Mortgages the chapters are headed Nature and History of Mortgages; Form and Requisites of a Mortgage; Assignment and Lien of Purchasers of the Equity of Redemption; Redemption, Payment and Discharge; Foreclosure. Under Wills the chapters treat respectively of the general requisites of a valid devise; of the revocation and republication of wills; of the probate of wills and of their registration; of the construction of wills. The object of the work stated by the author is to "present, in a convenient form for ready reference, a concise, yet somewhat comprehensive view of the law of conveyancing applicable to all the States." For the purpose stated it will doubtless prove convenient to many practitioners, but it cannot be accepted as a standard work on the subjects treated. |