itself, and government cannot allow the citizen to suffer for his proper trust in its proper functionaries." It is true, in that case it was the district attorney who was consulted, yet the reasoning of the court is as applicable to any other functionary, especially when the question submitted, as in this case, was one of fact and not of law. The question from the facts submitted to the alderman here was: "Was there reasonable cause to believe Mrs. Thomas implicated in the fraud?" A layman of calm and cautious judgment could as well, perhaps better than a lawyer, answer this. And just this question even a judge must submit to laymen in the capacity of jurors, in the last resort, for their determination; and if they determine it affirmatively, it protects the defendant. This is so because the law says it shall be so. Yet the mandate which requires the citizen to invoke the agency of our minor magistrates in the first instance is not less imperative, and should, it seems to us, be as effectual under similar circumstances.

Discovering no error in the proceedings at the trial, the rule for a new trial is refused.

Rule refused.

[Leg. Int., Vol. 32, p. 90.]

FAUNCE TO USE vs. SUBERS et al.

Presumption of service.

In taking a judgment for want of an appearance on a return of two nihils on a sci. fa. sur mortgage, the fourteen days must be calculated from the return day of the writ, and not from the teste of the writ.

Practice.

An alias sci. fa, sur mortgage issued January 29, 1875, to first Monday in February, 1875, and was entered "nihil habet." Judgment was taken February 12, 1875, for want of an appearance upon two returns of “nihil habet" (the original sci. fa. having also been so returned). Execution issued and property was advertised by the sheriff. Rule taken to strike off judgment and set aside levari facias. Krumbhaar, for rule.

Argued that the entry of judgment under two returns of nihil habet obtained from an old established practice and not from statute.

That two returns of " nihil habet" were equivalent to a service; therefore, service must be presumed to have been made when the second return is made, which is upon the return day.

That fourteen days must then be allowed defendant to appear, which, if he does not do, judgment may be taken against him, therefore, judgment in above case was premature, eleven days only having elapsed.

That to reckon from the teste of writ would be too indefinite. Chambers vs. Carson, 2 Wh. 9 and 372; Warder vs. Tainter, 4 Watts,

270.

Cantrell, contra.

Argued that the fourteen days should run from date of writ, and cited: Act 1 th June, 1836, sections 16 and 17, 1 Purd. 44 and 45; Laws vs.. McDanel, 1 Penna. L. J. R. 421.

The court said this was a very important question of practice, which seemed to be in an unsettled state, but thought the objection well taken. That the two returns of nihil habet were equivalent to a service, and in such cases, unless some particular day was established upon which service should be presumed to have been made, it still left the question open.

That the teste of the writ was not the proper day, because the writ might have issued many days before return day, and if judgment was entitled to be taken at the expiration of fourteen days thereafter, it apparently might be entered, even before the writ was returned; therefore, to settle the practice, the court decided that the return day is the proper day to count from.

Rule absolute.

[Leg. Int., Vol. 32, p. 98.]

MORGAN et al. vs. TENER et al.

Where defendants undertake merely to forward a claim for collection they can only be held liable for fraud or concealment, and the statute of limitations will be a bar to an action against them.

Rule to take off nonsuit. Opinion delivered March 13, 1875, by BRIGGS, J.-That a great fraud has been done to the plaintiffs cannot well be denied.

But there is no evidence whatever before us to show that the defendants are in any way implicated in the fraud; and the learned counsel for the plaintiffs, both at the trial, and during the argument here, disclaim such imputation, and base their right of recovery in the plaintiffs' behalf upon the defendants' undertaking to collect the money due to plaintiffs by Tilghman Nuttle, who resided in Carolina county, Maryland.

This, then, raises the question, the plaintiffs and defendants being alike innocent, which should bear the loss?

The defendants' undertaking is to be found in this receipt, which they delivered to the plaintiffs in September, 1857:

"Received of Messrs. Morgan and Stedpole, the claims below described, to be forwarded by us for collection, by suit or otherwise, at our discretion."

Then follows a description of the notes against Tilghman Nuttle. This receipt shows an undertaking by the defendants not to collect themselves, but to transmit to another for collection. This part of the undertaking they performed by duly sending the claims to George W. Russum, an attorney-at-law, at Denton, Maryland. He caused the suit to be brought, and judgment was obtained against Nuttle, April 5, 1859. This judgment Russum had satisfied on the 28th of September of the same year, without knowledge of the plaintiffs or defendants, and without having transmitted to either of them a cent. There is no evidence that the plaintiffs or defendants knew of the satisfaction of this judgment until 1869, ten years thereafter.

The present suit was brought to September term, 1869, to which the defendants pleaded the statute of limitations. And the question now is, does the statute bar the claim?

All of the authorities show that the statute begins to run at the time the defendant becomes liable to answer or pay: Campbell's Administrators vs. Boggs, 12 Wr. 524; Rhines's Administrators vs. Evans, 16 P. F. Smith, 192.

That time was, viewed most favorably for the plaintiffs, on the 28th day of September, 1859, when Russum had the judgment satisfied. And unless the defendants have done something to stop the running of the statute it effectually bars the plaintiffs' right of recovery. But the plaintiffs allege that the defendants took the case out of the statute by reporting to the plaintiffs, responsive to their inquiries, that the judgment was uncollectable." While such reply would be unanswerable, had the defendants undertaken to collect, as was done in Bradstreet vs. Everson, 22 P. F. Smith, 127, it has not such force or effect where the obligation is to forward for collection.

This relation clearly indicated to the plaintiffs that the defendants were not themselves to collect, and in the absence of negligence on their part in the selection of Russum, or that they knew the answer that the judgment was uncollectable, was untrue, they should not be made liable for merely reporting to the plaintiffs what Russum communicated to them. To hold more than this would convert the defendants from forwarders into insurers. This can in no sense be inferred from an undertaking to forward, and to report information received. That nothing short of fraud or concealment, in such a case as this, will arrest the running of the statute, is obvious from the cases already cited. does the fact that the defendants did not impart to the plaintiffs the name of Russum, weaken the defendants' position. The plaintiffs could, at any moment, have ascertained it by asking, and the fact that they did not ask, shows their confidence in whomever he might be, or indifference as to who he was.

Nor

The evidence shows that the information communicated by Russum, deceived both the defendants and the plaintiffs. In such case the loss must be borne by the one on whom it falls. The same view is aptly and elegantly expressed by Mr. Justice Sharswood, at the conclusion of his opinion in Grubb vs. Cottrell, 12 P. F. Smith, 28, wherein he says: "It is well settled that if a loss must fall upon one of two innocent persons, both parties being free from blame, and justice being thus in equilibrio, the maxim melior est conditio defendentis, rules the case." From this, it follows, that the judgment of nonsuit was properly entered, and the rule to take it off must be discharged.

Rule discharged.

Charles E. Morgan, Jr., and Robert H. McGrath, Esqs., for plaintiffs. Gustavus Remak, Esq., for defendants.

[Leg. Int., Vol. 32, p. 107.]

MEYER US. BASSON.

The treaty of December 11, 1871, between the United States and the German empire, containing provisions which give to the consuls of the respective governments exclusive cognizance of differences of every kind arising between the captains and crews of vessels belonging to the respective countries, and enacting that the local tribunals shall not, on any pretext, interfere in these differences, it was held, that a sailor, who was a Hollander, who had shipped at Liverpool as a seaman, on board of a German ship, and who, upon the arrival of the ship in this port, had been arrested and handed over to the German consul upon a requisition made by him on a complaint preferred to him by the captain of the ship, could not maintain an action in this court against the captain for such arrest.

Rule to show cause why a new trial should not be granted. Opinion delivered March 20, 1875, by

THAYER, P. J.-The facts of this case, as they appeared in evidence at the trial, were, that the plaintiff, a Hollander, shipped at Liverpool as a sailor on board the German ship " Elena," bound thence on a voyage to the United States, and back again to Europe. The defendant, Victor Basson, was the master of the ship. The "Elena" sailed from Liverpool on the 22d of July, 1873, and arrived at Philadelphia September 17. On the following day the master of the ship, having appeared before the consul of the German empire at this port, and having made a complaint to him against the plaintiff, of insubordination and desertion, the consul, acting under the provisions of the treaty of December 11, 1871, between the German empire and the United States, made a requisition upon a United States commissioner for his arrest and detention. The plaintiff being brought before a commissioner, the master of the ship appeared and charged the plaintiff with insubordination and desertion, declaring that he had shipped as a sailor on board the "Elena," under the name of Jan Umlend, and that his name, as such, was borne on the ship's articles.

The plaintiff did not deny that he had shipped as a sailor on board the "Elena," at Liverpool, and had made the voyage to Philadelphia in that capacity; but he denied that his name was Jan Umlend, or that he had signed the ship's articles, or that he was bound to make the return voyage to Europe. The commissioner committed him under the provisions of the 13th and 14th articles of the treaty, to be detained during the stay of the vessel in this port, and to be at the disposal and expense of the consul of the German empire. On the 23d of September, the plaintiff sued out a writ of habeas corpus before the judge of the District Court of the United States. On the 26th of September, the German consul, Mr. Charles H. Meyer, sent a note to the marshal of the United States, requesting him to discharge the plaintiff from custody and to instruct him to call at once at his office. Whereupon the marshal discharged him from custody, and made return accordingly to the writ of habeas corpus. The plaintiff then commenced this action against the master of the ship, had him arrested upon a capias, and the German consul gave bail for him.

On the trial the treaty was put in evidence by the defendant's counsel, and also the laws of Germany, regulating the contracts and obligations of sailors on board German ships.

By the latter it appeared that sailors who ship on board German ships are bound for the whole voyage, whether they sign the ship's articles or not.

The articles of the treaty, which are pertinent to the case, are as follows:

"ARTICLE XIII.-Consuls-general, consuls, vice-consuls or consular agents, shall have exclusive charge of the internal order of the merchant vessels of their nations, and shall have the exclusive power to take cognizance of, and to determine, differences of any kind which may arise, either at sea or in port, between the captains, officers and crews, and especially in reference to wages, and the execution of mutual contracts. Neither any court nor authority shall, on any pretext, interfere in these differences, except in cases where the differences on board ship are of a nature to disturb the peace and public order in port or on shore, or when persons other than the officers and crew of the vessel are parties to the disturbance. Except as aforesaid, the local authorities shall confine themselves to the rendering of efficient aid to the consuls when they may ask it, in order to arrest and hold all persons whose names are borne on the ship's articles, and whom they may deem it necessary to detain. Those persons shall be arrested at the sole request of the consuls, addressed in writing to the local authorities, and supported by an official extract from the register of the ship, or the list of the crew, and shall be held, during the whole time of their stay in port, at the disposal of the consuls. Their release shall be granted only at the request of the consuls, made in writing. The expenses of the arrest and detention of those persons shall be paid by the consuls.

"ARTICLE XIV.-Consuls-general, consuls, vice-consuls or consular agents, may arrest the officers, sailors, and all other persons making part of the crews of ships of war or merchant vessels of their nation who may be guilty, or be accused, of having deserted said ships and vessels, for the purpose of sending them on board or back to their country.

"To this end the consuls of Germany in the United States shall apply to either the federal, State, or municipal courts or authorities; and the consuls of the United States in Germany shall apply to any of the competent authorities, and make a request, in writing, for the deserters, supporting it by an official extract of the register of the vessel and the list of the crew, or by other official documents to show that the men whom they claim belong to said crew. Upon such request alone thus supported, and without the exaction of any oath from the consuls, the deserters (not being citizens of the country where the demand is made, either at the time of their shipping or of their arrival in port) shall be given up to the consuls. All aid and protection shall be furnished them for the pursuit, seizure, and arrest of the deserters, who shall be taken to the prisons of the country, and there detained, at the request and at the expense of the consuls, until the said consuls may find an opportunity of sending them away.

"If, however, such opportunity shall not present itself within the space of three months, counting from the day of the arrest, the deserters shall be set at liberty, and shall not again be arrested for the same cause."